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$45,000 Awarded to Plaintiff for Post Accident Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

After a 13 day trial in Vancouver, BC,  reasons for judgement were released yesterday awarding a Plaintiff $45,000 plus special damages (out of pocket expenses for treatment of injuries) as a result of a 2001 BC car accident.  This was a ‘headache claim’ and the primary issues were whether the Plaintiff’s headaches were caused by the BC car accident and if so, how much money the injury claim was worth.
At trial the BC personal injury lawyers on opposing sides were miles apart in their view of the value of the case in their submissions to the court.  The Plaintiff’s lawyer alleged permanent impairment of her capacity to earn income and sought damages in excess of $900,000.  The personal injury lawyers defending the claim responded that the Plaintiff only suffered from mild soft tissue injuries and that damages between $10,000 – $20,000 were appropriate. 
It is quite common for lawyers on opposing sides of ICBC claims to take very different positions at trial  and this case is a good example of how far apart 2 sides to an ICBC claim can be.  In this case the Plaintiff presented a case of chronic headaches which interfered with tasks of daily living including work.  The defence lawyers presented a case alleging mild soft tissue injury with headaches resolving a short time after the accident.  At the end of the trial the court largely sided with the defence lawyer’s position. 
The Plaintiff was 19 at the time of the accident.  As she was driving the defendant turned left directly in front of her lane of travel.  She had the right of way.  She had time to step on the brake and the clutch of her vehicle, shift into neutral and brace herself for the impact.   The accident was described as a t-bone collision by the Plaintiff although the court noted that the front left portion of the Plaintiff’s car struck the driver’s side door of the other vehicle in this BC car accident claim.
As is often the case in ICBC claims alleging an ‘impaired earning capacity‘ due to a BC motor vehicle accident, the court heard from a variety of doctors as ‘expert witnesses’.
Dr. Robinson, a neurologist who specializes in headache disorders, testified on behalf of the Plaintiff.  He stated that her headaches ‘have features consistent with a diagnosis of chronic post-traumatic headache of a migrainous type.’
Dr. Chu, a physiatrist (specialist in physical medicine and rehabilitation) testified that the accident “is the direct cause of (the plaintiff’s) mechanical left upper neck pain.  This in turn is the cause of her secondary cervicogenic headaches”
Dr. Vincent, a cutting edge specialist in Anaesthesiology and Interventional Pain Medicine, also testified and gave evidence which ended up largely supporting the Defendant’s position.  Dr. Vincent injected anaesthetic medications into the Plaintiff’s neck on two occasions.  Unfortunately neither of the injections relieved the Plaintiff’s headache.  After a rigorous cross-examination Dr. Vincent testified that the Plaintiff’s results were inconsistent with a ‘causal relationship between an injury…to the neck and the headaches the Plaintiff experiences.”
The defence lawyer relied on the opinion of Dr. Jones, a neurologist, who testified that the Plaintiff’s headaches are ‘true migraines that have arisen spontaneously and are unrelated to any injury to her neck or cervical spine’.
The court preferred the evidence of Dr. Jones.  The court found that the BC accident ‘did cause an exacerbation of (pre-existing) headaches’ and that ‘those headaches largely resolved and (the Plaintiff) had returned to her pre-accident state of health within approximately 10 months following the accident.‘
The court found that there were problems with the Plaintiff’s evidence and that her present recall of symptoms in the months after the accident was ‘unreliable’.  The ultimate finding was that all of the Plaintiff’s headaches sinced 2002 were ‘primarily migraine headaches that she would have developed (even without the accident)’.
The court awarded $45,000 for pain and suffering and the Plaintiff’s special damages up to March 16, 2002.
This case is a great example of the different positions opposing lawyers can take in court in an ICBC claim and results such as this one should be reviewed when in settlement negotiations with ICBC for a ‘headache’ claim as a result of a car accident.
Do you have questions about this case or an ICBC headache claim?  Are you looking for a free consultation with a ICBC claims lawyer?  If so click here to arrange a free consulation with ICBC claims lawyer Erik Magraken.

$86,967.02 Awarded for Chronic Soft Tissue Injuries and Anxiety

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC PTSD Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today following a 3 day trial in Vernon, BC in which Mr. Justice Cole awarded a 35 year old plaintiff close to $90,000 in compensation for her losses and injuries as a result of a motor vehicle accident.
This case is worth a read for anyone advancing an ICBC claim or involved in ICBC settlement negotiations concerning the issue of ‘indivisble injuries’. That is, where an event other than the accident has contributed to the injuries sustained in the accident. I will say more about this below.
The Plaintiff was involved in a rear-end accident in Kelowna BC on June 30, 2005. Her vehicle was rearended by a truck driven by the Defendant. As a result of this incident she suffered from various soft tissue injuries and anxiety.
In early 2007, the Plaintiff was almost struck by a vehicle while she was in a cross-walk. This added to her anxiety issues.
The court heard from several medical experts who commented on the Plaintiff’s injuries. This is quite common in ICBC injury claims that proceed to trial as there is often 2 sides to the medical story. In this case, however, the medical evidence addressing the physical injuries was quite similar.
Dr. Laidlow, a physiatrist who often conducts ‘independent medical exams’ for ICBC, testified that the Plaintiff will be “prone to mechanical lower back pain…and may require the odd use of anti-inflammatories during times of flare up“.
Dr. Travlos, another physiatrist well versed in diagnosing and treating injuries related to ICBC claims, stated that “(the plaintiff’s) current residual neck and shoulder symptoms are a result of tjhe accident. It is likely that these symnptons will slowly continue to improve and ultimately resolve….the Plaintiff’s tailbone symptoms are clearly an ongoing issue…..the nature of her current low back / pelvic symptoms is intermittent and this bodes well for further recovery.”
The court also heard from the plaintiff’s family doctor who testified that there was room for improvement in the Plaintiff’s condition.
Possible future treatments for the injuries included trigger point injections, diagnostic injections, a facet joint rhizotomy and medicaitons.
In the end the court concluded that the Plaintiff sufferd a soft tissue injury “that would be described as the upper end of a moderate soft tissue injury that should resolve itself over time“. The court also found that the Plaintiff suffered from anxiety as a result of the collision in 2005 and the near collision in 2007. The Plaintiff claimed she suffered from Post Traumatic Stress Disorder (PTSD) as a result of the collision and this was supported by the evidence of Dr. Neilson. The court, however, held that the Plaintiff did not make out this claim as the Plaintiff did not prove all the facts that were underlying Dr. Neilson’s diagnosis of PTSD.
The court awarded damages as follows:
Pain and Suffering (non pecuniary damages) $60,000
Special damages: $6,045
Past wage loss: $19,522.02
Future medical care: $400
Future Therapy: $1,000
This case did a great job reviewing 2 areas of law which frequently come up in many ICBC claims, namely claims for ‘loss of future earning capacity’ and claims where intervening events add or contribute to accident related injures.
As in many ICBC claims the Plaintiff had an intervening event which added to her anxiety. When valuing the injuries the court did a great job in summarizing how a court is to do so when the subsequent event caused an ‘indivisble injury’.
The court referenced some of the leading authorities in concluding the PTSD claim gave rise to an ‘indivisble injury’.   Most experienced ICBC claims lawyers are familiar with these authoritative cases which the court referred to, particularly:
Athey v. Leonati
EDG v. Hammer
Ashcroft v. Dhaliwal
The court concluded that “I am satisfied, in this case, that the two incidents that the plaintiff was involved in are indivisble. The anxiety caused to the plaintiff by the second incident is directly connected to the accident involving the defendant. Since the individual that caused the second accident was not before the court, as was the case in Ashcroft, where there was a settlement of the claim, the defendant is liable for all of the plaintiff’s damages”
Do you have questions about this case or a similar ICBC case involving soft tissue injuries, post traumatic stress or an intervening event?  If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 62 Comments on Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

Following a 3 day trial in Victoria, reasons for judgement were released today awarding an injured Plaintiff just over $70,000 in compensation as a result of 2 separate but allegedly related incidents.
The facts of this case are somewhat unique. The Plaintiff was injured in a BC car accident in August, 2005. Following an incident of ‘road rage’ the Defendant rear-ended the Plaintiff’s vehicle. Both the Defendant’s car and the Plaintiff’s van sustained significant damage in the impact. The Plaintiff sustained various injuries in this crash.
A few months later, the Plaintiff lost consiousness and fell and broke his leg while on a BC Ferry. The Plaintiff sued claiming the subsequent fall was related to the injuries sustained in the car accident.
Addressing injuries, Mr. Justice Metzger found that the Plaintiff suffered whiplash injuries as a result of the accident with associated severe headaches, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some brief dizziness. He found that these symptoms “were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly resolved within 6 weeks of the motor vehicle accident“.
With respect to the fall the court found that the Plaintiff suffered a fractured right fibula and tibia. The court accepted that, as a result of this ankle injury, the Plaintiff was unable to enjoy skiing and curling anymore.
The court canvassed some important decisions in deciding whether the fall was in any way related to the car accident. The court reviwed 2 of the leading Supreme Court of Canada decisions often relied on by ICBC claims lawyers in advancing ICBC claims addressing the issue of ‘causation’, namely:
Athey v. Leonati
Resurfice Corp. v. Hanke
The court concluded that “the Plaintiff demonstrated that his MVA related symptoms contributed to his collapse on the ferry….I accept the Plaintiff’s testimony that he was overwhelmed with MVA related headache and neck pain immediately prior to the fainting incident…I find that the Plaintiff’s general fatigue and headach were significant factors in his loss of consciousness. There was a substantial connection between the injuries and the defendant’s conduct“.
The court went on the value the non-pecuniary loss (pain and suffering) for each of the events seperately.
For the Whiplash injuries the court awarded non-pecuniary damages of $12,000 and then reduced these by 15% to account for “(the Plaintiff’s) failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery”
For the broken leg (ankle injury) the court awarded $20,000 for non-pecuniary damages and then also reduced these by 15% for the Plaintiff’s failure to mitigate. The court concluded that the Plaintiff failed to follow sensible advice from his doctor (to attend physiotherapy after the ankle injury) and this is what resulted in the reduction of damages.
The Plaintiff also was awarded damages for past loss of income and special damages (out of pocket expenses incurred as a result of the injuries).
If you are advancing an ICBC claim involving a subsequent injury (intervening injury) this case is worth a read to view some of the factors courts consider in determining whether accident related injuries contributed to a future event that is compensible in law. This decision also shows the ‘failure to mitigate’ argument in action which resulted in the Plaintiff’s pain and suffering damages being reduced by 15% for failing to follow his doctors advice.
Do you have questions about this case or an ICBC claim involving an intervening injury that you wish to discuss with an ICBC Claims lawyer? If so click here to arrange a free consultation with ICBC Claims Lawyer Erik Magraken.

BC Supreme Court Awards $16,324 For Soft Tissue Injuries in an LVI Accident

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.
The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.
The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.
The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.
This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.
The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.
In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”
Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.
The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.
In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.
Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

$19,840 Awarded for 15 Month Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgment released this week, Madam Justice Humphries of the BC Supreme Court awarded a 60 year old Plaintiff a total of $19,840 in compensation as a result of soft tissue injuries sustained in a British Columbia motor vehicle accident.
The Plaintiff’s vehicle was rear-ended on July 25, 2005. The accident is the kind that ICBC typically likes to call an LVI (Low Velocity Impact) as the damage to the vehicle totalled $200.
A year later, in August 2006, the Plaintiff was involved in another rear-end accident. This time she was a passenger. This accident also is the type ICBC likes to characterize as an LVI accident as the vehicle damage cost approximatley $480 to fix. The Plaintiff testified the second accident did not aggravate her symptoms from the first accident and no issue was taken with this assertion at trial.
The Plaintiff filed a report in court authored by her family doctor. The doctor’s evidence was that the Plaintiff suffered from “Whiplash, left shoulder (muscle strain) and back muscle strain.”
The court found the Plaintiff to be a credible witness. The Plaintiff’s injuries were accepted on the basis “of 9 months of pain causing restriction, and a further six months of gradual improvement with ongoing fairly minor symptoms of decreasing frequency“.
In the end the court awarded damages as follows:
Pain and Suffering: $15,000
Past Wage Loss: $4,790.50
Mileage Expenses for treatments: $50
This case was a short one day trial heard in Vancouver, BC and is a good example of a simple ICBC claim getting heard without excessive burden on our justice system or the parties involved.
Do you have have questions about an ICBC whiplash claim or an LVI claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC claims lawyer Erik Magraken for a free consultation.

PTSD and Chronic Pain Claims Dismissed, $36,260 Awarded for Soft Tissue Inuries and Anxiety

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

BC Courts have heard many ICBC claims involving PTSD and Chronic Pain Syndrome. In reasons for judgement released this week Mr. Justice Cullen heard and dismissed a PTSD claim and Chronic Pain Syndrome claim as a result of a motor vehicle collision.
In 2004 the Plaintiff, who was a passenger in her boyfriend’s vehicle, was involved in a collision where her vehicle rear-ended the vehicle in front of her. The accident occurred on Nanaimo Street in Vancouver, BC. She advanced a tort claim against her boyfriend who was deemed to be the at-fault driver (a tort claim is the legal term used to describe a civil action, such as an ICBC claim for damages against an at fault driver).
ICBC, on the boyfriend’s behalf, admitted fault but disputed the alleged injuries. The Plaintiff claimed to suffer from soft tissue injuries to her neck and back, a myofacial pain syndrome and/or a pain disorder and post-traumatic stress disorder.
As in alsmost all ICBC claims involving alleged chronic pain, the court heard from a number of expert witnesses including the Plaintiff’s family doctor, a physiotherapist, a physiatrist (rehabilitaiton specialist) a psychologist and an orthopaedic surgeon. The orthopaedic surgeon was a defence witness who conducted an ‘independent medical exam’ of the Plaintiff pursuant to the BC Rules of Court.
In the Plaintiff’s case evidence was led that she suffered from a ‘myofacial pain syndrome’ which was described as ‘a central nervous system disorder with peripheral manifestations of muscle tightness and soreness to palpation over areas called trigger points…areas in the muscles that are rich in nerve endings’.
A psychologist testified that the Plaintiff suffered from a Post Traumatic Pain Disorder (PTSD) and also that she suffered from ‘many symptoms of a pain disorder’.
The orthopaedic surgeon, who is often used by ICBC, testified that the Plaintiff suffered from soft tissue injuries to her neck, upper back and shoulders, along with some cuts and bruises. He dismissed the connection of the Plaintiff’s low back complaints to the accident by stating “There is a basic premise in medicine that if a site has been traumatized, that site becomes symptomatic immediately, right after the MVA or certainly within the first few days after the MVA”. He then testified that his physical examination of the Plaintiff was ‘completely normal’ and he regarded any soft tissue injuries sustained by the Plaintiff as resolved.
In the end the court rejected the Plaintiff’s claim for PTSD and Chronic Pain Disorder and found that the Plaintiff suffered mild to moderate soft tissue injuries to her neck, upper back and shoulder. The court also found that the Plaintiff’s low back symptoms which developed 3 months post accident were causally connected to the accident either through compensatory back pain of through myofacial pain syndrome. The court also found that the Plaintiff suffered from anxiety as a result of the accident and awarded $35,000 for pain and suffering, $560 for past out of pocket expenses and a further $700 to permit the Plaintiff to attend further counselling sessions with her pscyhologist to treat her anxiety.
This judgement is worth a quick read if you are advancing an ICBC claim involving chronic pain or PTSD to see some of the factors courts look at when weighing competing medical evidence. The judgement seems to be a compromise between the competing evidence accepting that the Plaintiff’s injuries, while not PTSD or Chronic Pain Syndrome, were not resolved by the time of trial. When considering settling an ICBC claim it is good to become familiar with how courts treat similar injuries and what the various outcomes at trial can be.
Do you have questions about an ICBC claim involving PTSD or Chronic Pain that you want to discuss with an ICBC Claims Lawyer? If so, click here to contact ICBC Claims Lawyer Erik Magraken for a free consultation.

$1.065 Million Awarded to Brain Injured Plaintiff

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Dental Injury Cases, ICBC Head Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wrist Injury Cases, Uncategorized.

In highly anticipated reasons for judgement released today, following a 4 week trial in late 2007, Mr. Justice Maczko awarded a severely injured Plaintiff over $1,000,000 in compensation as a result of a motor vehicle accident.
The issues to be decided at trial were liability (who was at fault) and quantum (the value of the injuries) as a result of a significant accident which occurred in West Vancouver, BC in 2004.
The Plaintiff, who was 26 years old at the time, was standing in a roadway in West Vancouver when he was struck by a Hummer SUV driven by the Defendant. The Plaintiff sustained serious injuries including a traumatic brain injury, scalp wound, bilateral wrist and jaw fractures, the loss of several teeth, and soft tissue injuries to the neck and back. The traumatic brain injury was the most significant of these in terms of the Plaintiff’s employability and need for future medical care.
In the end the court found the Defendant entirely at fault an awarded over $1,000,000 in damages to the Plaintiff.
Addressing the issue of liability at paragraph of 127 of the judgement, the court held as follows:

[127] The Hummer travelled too quickly for the existing conditions. Mr. Samieian was negligent in moving his vehicle too quickly and travelling around the cube van when his view of his path was obscured. It is more likely that the accident arose from driver error than from a complete failure of all controls on the Hummer. It is unlikely that steering, braking and acceleration all malfunctioned at once, and without leaving anything detectable on inspection after the accident.

[128] As a result, the defendants are entirely responsible for the accident and for the losses it caused Mr. Dikey.

As is often the case in ICBC claims involving brain injuries, the court heard from numerous expert physicians including neurologists, a neuropsychologist, and a Physiatrist (physical medicine and rehabilitation specialist).
In the end the court made the following findings regarding the Plaintiff’s injuries:

[109] In summary, Mr. Dikey suffered many injuries as a result of the accident. The most significant injury in terms of functioning was the traumatic brain injury. The preponderance of evidence suggests that the injury was moderate when it occurred, but this is of little assistance in determining the long-term impact of the injury.

[110] Mr. Dikey’s continuing cognitive problems include significant limitations with memory, planning, organizing, attention, concentration, awareness, judgement, decision-making, language, reasoning, abstract thinking, mental flexibility, and calculations. He forgets to eat and take his medications regularly, and forgets appointments. He also suffers depression, isolation and limited social support and interactions. He has minimal initiation and motivation.

[111] Mr. Dikey suffered serious head and jaw injuries. Dr. Goldstein recommends investigating jaw reconstruction, likely requiring refracturing the jaw on both sides, and tooth replacement. Mr. Dikey and his family were undecided for several years about whether to pursue that treatment, owing to the risk of damage to a facial nerve. The evidence suggests that the risk is small and any damage that might occur would probably be temporary.

[112] Mr. Dikey suffered two broken wrists. His left wrist healed appropriately, but the right wrist did not. He does not have pain-free full range of motion of his right wrist owing to the way the fracture healed. The suggested surgery will give him a very good chance of increased range of motion without pain.

[113] Mr. Dikey suffered injury to his right knee. The recommended surgery for his right knee would have a good likelihood of relieving his right knee pain.

[114] Mr. Dikey has continuing pain from his soft tissue injury to his neck and back. His cuts and bruises have healed, but he has a visible scar on his forehead and in his scalp. His primary complaint is of headaches, which can be so bad at times that they lead to vomiting. They are his most frequent and significant cause of pain.

The court summarized the profound effects of the injuries as follows:
[142] Mr. Dikey’s life has changed profoundly as a consequence of the accident. He is unlikely to work, and has lost the self-esteem, enjoyment and income that is available from work. While he retains the ability to walk and talk and engage in the activities of daily living, his cognitive problems are such that he will require some assistance for the rest of his life. His most significant loss is the loss of cognitive abilities. He also suffers severe headaches. He has chronic pain in the neck. His pain and the lost function of his right wrist are likely to improve following surgery. He will likely have on-going problems with his neck and back.
In the end damages were assessed as follows:
$215,000 for non-pecuniary damages (pain and suffering)
$500,000 for lost future earning capacity
$350,000 for cost of future care
If you have questions about an ICBC claim or a brain injury claim that you would like to discuss with an ICBC claims lawyer feel free to contact Erik Magraken for a free consultation.

BC Supreme Court awards $229,890 for Concussion and Chronic Back Pain

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

In written reasons for judgement released today, a Plaintiff who was injured in a 2003 single vehicle accident was awarded a total of $229,890 for his injuries and losses.
The Plaintiff, who was 18 at the time, was the centre passenger in a pick-up truck that lost control. The accident was significant. The truck “crossed a cattle guard and then hit loose gravel. The Driver lost control and the truck slid off the embankment. It rolled a number of times and apparently flipped end over end once. In ended up lying on its right side.”
For a time, the Plaintiff lost consciousness. He suffered a concussion and for a while suffered symptoms of headaches, light headedness, imbalance and tinnitus (ringing in the ears.) These symptoms resolved by the time of trial. He also had a neck injury which largely resolved and a shoulder injury which fully resolved by the time of trial.
The Plaintiff’s main injury by the time of trial was chronic low back pain.
4 doctors testified on the Plaintiff’s behalf. His family doctor painted a positive picture of the Plaintiff.
A specialist in physical medicine and rehabilitation (physiatrist) testified that the Plaintiff suffered from a soft tissue injuries to the cervical and lumbar spine (neck and low back).
A rheumatologist testified that the Plaintiff suffered from chronic back pain and that this pain “would have a significant negative influence upon his ability to compete in the workforce in the area of strenuous laboring jobs.”
A specialist in occupational medicine testified that the Plaintiff had not recovered from the soft tissue injuries to his back and that “it is unlikely the Plaintiff will have full resolution of his back injuries“.
The defence had the Plaintiff assessed by an orthopaedic surgeon. This is a common choice of ICBC for their ‘independent medical exams” when dealing with soft tissue injuries. The doctor hired by the defence testified that one of the factors leading to the Plaintiff’s ongoing complaints was ‘psychosocial factors‘ and that he would ‘strongly recommend that the plaintiff be assessed by a psychiatrist“.
The court preferred the evidence of the Plaintiff’s physicians and stated that “I conclude there is little, if anything, in (the defence doctors) report that would detract from the evidence from the other medical personnel or the lay witness evidence with respect to the Plaintiff’s present condition“.
In the end, damages were assessed as follows:

Non-Pecuniary Damages

$ 85,000

Past Wage Loss

$ 23,000

Future Wage Loss

$120,000

Cost of Future Care

$ 1,890

Total:

$229,890

Damages of $216,430 Awarded for 2 rear-end collisions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today the Honourable Mr. Justice Smith awarded a 46 year old mechanic over $200,000 in compensation as a result of 2 rear-end motor vehicle accidents.
The first accident was in May 2002. The Plaintiff’s vehicle was rear-ended with enough force to push it into the vehicle ahead of the Plaintiff. The second accident for which compensation was sought occurred 3 years later in May 2005. The Plaintiff’s vehicle was ‘struck from behind with enough force to break the back of the driver’s seat and push the vehicle into the vehicle ahead‘.
The Plaintiff had pre-existing, asymptomatic, osteoarthritis. A rheumatologist gave evidence that “The Plaintiff’s major current symptoms are in the neck and some pain and restricted movement will likely continue given the established nature of the osteoarthritis“. He went on to state that “asymptomatic arthritis often becomes symptomatic following a motor vehicle accident or other trauma and although the relationship is poorly understood and contraversial, it’s something I often see in practice“.
A physiatrist (a specialist in physical medicine and rehabilitation) who assessed the Plaintiff at the request of the Plaintiff;s family physician gave evidence that “the Plaintiff’s complaints could not be fully explained based upon the physical findings” and he diagnosed a pain disorder.
This diagnosis of a chronic pain disorder was shared by the Plaintiff’s treating psychiatrist.
After hearing all of the evidence the court found that the Plaintiff suffered soft tissue injuries in the first accident with the most severe symnptoms being in his lower back. There was substantial improvement withing the first 6-8 months, and chronic but not disabling pain conintued for another 2.5 years. The court alos found that the back pain was not as “severe or as frequent as the Plaintiff now recalls it“.
Addressing the second accident the court found that “the Plaintiff has had some increase in back pain, but the most significant pain was in the neck, where he has the more significant spondylosis. This pain is likley to worsen as (the Plaintiff) gets older. Again, this pain is nto disabling and the plaintiff could, if necessary, return to either of his former occupations but, given the pain and discomfort he experiences, he is well advised to seek lighter work”
In discussing the connection between the accident and the pre-existing condition the court noted that “the Plaintiff in this case had a degenerative condition that was not symptomatic. He had no prior neck or back pain prior to these accidents. Temporal connection between an accident and the onset of symptoms does not, in and of itself, prove causation…It is not necessary for the Plaintiff to prove that he would never have developed symptoms from his degenerative condition ‘but for’ the accident. He must only prove that ‘but for’ the accident, he would not have developed these symptoms when he did….I find that the Plaintiff has proved, on a balance of probabilities, that his spondylosis would not have become symptomatic when it did but for the third accident.”
In the end the court awarded damages as follows:

For the Accident of May 18, 2002:

Non-pecuniary damages

$30,000.00

Past income loss
(subject to deduction for Income tax)

$5,939.18.

For the Accident of May 5, 2005

Non-pecuniary damages

$52,500.00

Past income loss
(subject to deduction for Income tax)

$62,499.00

Loss of Future Earning Capacity

$45,500.00

Cost of Retraining

$2,730.00

Cost of Future Care

$15,300.00

Special Damages
(Not apportioned)

$1,926.39

"No Impact Crash" Nets $40,000 Pain and Suffering Award

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Liability (fault) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Privacy Issues, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In a case with a slightly unusual fact pattern where reasons for judgement were released today, a Plaintiff was awarded nearly $90,000 in damages as a result of a July, 2005 motor vehicle collision in Nanaimo, BC.
In a trial that lasted just over two days pursuant to Rule 66, Mr. Justice Wilson concluded that the Plaintiff sustained a soft tissue injury to her neck and shoulder as a result of the motor vehicle collision. Mr. Justice Wilson concluded that it took the Plainiff several months to “fully functionally recover” from her injuries (meaning she was able to functionally return to work as a painter) but that activity caused ongoing pain at the site of injury. The court accepted the evidence of an orthopaedic surgoen who assessed the Plaintiff and found “a significant amount of trapezius spasm” in late 2007 and attributed this to the motor vehicle collision. The court summarized the effects of the Plaintiff’s injuries as follows:
[63] I thus conclude that Ms. Levy was disabled from her employment duties for approximately three and one-half months; has had ongoing, but decreasing, pain in her neck and left shoulder since that time, now almost three years post-accident; and is likely to have some ongoing pain or discomfort with activities.
What made this judgement interesting is that the Defendant denied that an accident occurred at all.
The Plaintiff testified that her mini-van was rear-ended by the Defendant’s vehicle. The Defendant denied this. He testified that he felt no impact. It is not unusual for ICBC defence lawyers to lead evidence that an impact was ‘low velocity’ but evidence of no crash is certainly quite unusual. The defence lawyer also called an ICBC vehicle estimator who reviewed the Defendant’s vehicle and testified that it revealed ‘no new damage’, however, he did admit on cross-examination that a vehicle with a steel checker-plate front bumper welded to the frame can cause damage to another vehicle without it showing on the steel bumper.
After hearing all the evidence the court concluded that a collision did occur and that the Defendants were liable for this rear-end motor vehicle accident.
In the end Mr. Justice Wilson awarded damages as follows:

a. non-pecuniary damages: $40,000;

b. past loss of income and employment insurance benefits: $9,187.60;

c. loss of future earning capacity: $10,000;

d. special damages: $586.43;

e. pre-judgment interest.