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Video Surveillance Influences Chronic Soft Tissue Injury Trial

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009.  The Defendant admitted fault.  The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain.  The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived.  In reaching this decision the Court was influenced by video surveillance evidence.  In commenting on this Mr. Justice McEwan provided the following reasons:
[24]         The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.
[25]         Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
[26]         Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
[27]         The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff’s condition. I largely accept what he had to say about the plaintiff’s reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
[28]         The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff’s evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
[35]         As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.

$35,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing "Significant" Muskuloskeletal Issues

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Johal v. Conron) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.  At the time of the accident the plaintiff had significant pre-existing issues including bilateral rotator cuff tendinitis, complex regional pain syndrome and underlying degenerative arthritis.  The collision caused soft tissue injuries which aggravated these conditions.  In assessing non-pecuniary damages at $35,000 Madam Justice Donegan provided the following reasons:
[79]         In his July 26, 2011 report, Dr. Wade opined:
The global clinical picture of Mrs. Surinder Johal is complex. It would be my opinion that she had significant musculoskeletal complaints prior to a motor vehicle accident of June 10, 2009. As a result of the accident of June 10, 2009 she had an aggravation of neck and back complaints likely because of a mild soft tissue injury of the cervical and lumbar spine. Over time she has had persistent and increasing problems in a number of areas.
…
It is unclear to me whether her right shoulder pathology [tear] is any way directly related to the motor vehicle accident of June 10, 2009; however her global pre-existing musculoskeletal complaints have been aggravated by the soft tissue injury of the cervical and lumbar spine as a result of the accident of June 10, 2009.
[80]         Dr. Wade fairly conceded that it is difficult to sort out the symptoms that pre-dated the accident and those that could be directly attributed to the accident. In this regard, he wrote:
In my opinion it would be a blend of both pre-accident and accident type problems that have resulted in her current state of pain and disability.
[81]         He further opined that if she would not have had the accident of June 10, 2009, and had been treated with appropriate aggressive physiotherapy to her right shoulder and upper extremity, that Mrs. Johal would have likely improved over time. I accept this opinion.
[82]         Accepting Dr. Wade’s evidence as I do, I am satisfied that Mrs. Johal has proven, on a balance of probabilities, that the defendant’s negligence caused mild to moderate soft tissue injuries to her cervical and lumbar spine. These injuries caused aggravation of her pre-existing conditions and caused new conditions in her lumbar spine and lower body…
[92]         I find she would have been disabled to some extent by her right shoulder and upper extremity problems if the accident had not occurred. However, the injuries from the accident have made her symptoms worse, slower to recover and have had a more significant impact on her life. In the unique circumstances of this case, I find that the appropriate award for non-pecuniary damages is $35,000.00.

$60,000 Non-Pecuniary Damages For Soft Tissue Injuries Interfering With Infant Care

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for collision related injuries which interfered with a Plaintiff’s ability to breastfeed her infant.
In this week’s case (Mezo v. Malcolm) the Plaintiff was injured in a 2010 rear end collision.  She was three months pregnant at the time.   She suffered a variety of soft tissue injuries which not only made her pregnancy more difficult but also interfered with her ability to care for her newborn with the Court noting that the Plaintiff ” could not comfortably lift her baby or hold her to breast feed. Her neck hurt from bending down over the baby and her headaches returned.”
The plaintiff remained symptomatic at the time of trial and her symptoms were expected to continue into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Russell provided the following reasons:
[133]     The plaintiff was a young, fit woman at the time of the Accident.
[134]     The plaintiff’s pregnancy at the time of the Accident added to the fear she felt and impacted on her ability to achieve any pain relief. I accept her evidence that she chose to endure the pain rather than risk damage from medication to her unborn child.
[135]     After the baby’s birth, her neck, back and arm pain interfered with her ability to care for her baby. She lost the opportunity to breastfeed her baby after a short period of time. For a conscientious contemporary mother, this was a serious loss.
[136]     Her ability to lift the baby was compromised due to her back and neck pain. One of the joys of motherhood is to hold the infant close. Losing this opportunity is another serious loss. Having her mother enjoy this pleasure no doubt was helpful to the baby’s wellbeing, but it does not replace the disappointment suffered by the plaintiff.
[137]     The athletic lifestyle enjoyed by the plaintiff, Florin, and the plaintiff’s mother is now beyond the ability of the plaintiff due to her injuries. It is all well and good for Dr. Bishop to say that it is likely her pain will increase with more activity but that does not mean re-injury, but the continuing pain does and will interfere with her activities. Not every accident victim is able to ignore pain to the extent Dr. Bishop seems to suggest is desirable.
[138]     I agree with Dr. Adrian that she will continue to suffer some degree of disability for the foreseeable future….
145]     Taking into account the circumstances of this case, I award the plaintiff the amount of $60,000 for non-pecuniary damages.

"Rigid" Expert Evidence Regarding Soft Tissue Injuries Rejected by BC Supreme Court

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing ‘rigid’ evidence which downplayed the relationship between lingering symptoms and a motor vehicle collision.
In this week’s case (Mezo v. Malcolm) the Plaintiff suffered a variety of soft tissue injuries in a motor vehicle collision.  These remained symptomatic at the time of trial.  The Defendant hired an independent medical examiner who stated that “all soft tissue injuries heal within 12 to 16 weeks after a motor vehicle accident….the plaintiff’s symptoms outside this time range cannot be soft tissue injuries related to the trauma of the Accident”
In rejecting this ‘rigid’ opinion as unhelpful Madam Justice Russell provided the following reasons:
[114]     I found Dr. Bishop to be rigid in his point of view and unable to do other than say that if the plaintiff’s pain continued long past the 12 to16 month time limit for the healing of soft tissue injuries, the pain could not come from soft tissue injuries. In my view, this begs the question of why the plaintiff continues to suffer pain from activities which place stress on her spine. That her injuries are not objectively demonstrable does not mean she does not suffer pain.
[115]     Dr. Bishop agreed in cross-examination that there can often be soft tissue injuries in patients where the pain endures more than 16 weeks but which are not objectively determinable.
[116]     The plaintiff’s pre-existing low back pain has not been a factor in the injuries stemming from the Accident.
[117]     I did not find Dr. Bishop’s report helpful.

$50,000 Non-Pecuniary Assessment For Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s archived posts addressing soft tissue injury non-pecuniary assessments, reasons for judgement were released earlier this month addressing such an injury.
In the recent case (DeGuzman v. Ge) the Plaintiff was injured in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained various soft tissue injuries which lingered at the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Smart provided the following reasons:
[38]         Here, the plaintiff was 50 at the time of the MVA.  She has a physically demanding job.  She enjoyed a relatively active life away from work.  As stated, I accept her evidence and I find that while her pain has reduced since the MVA, she continues to have significant discomfort from her injuries.  I find that this has impacted her enjoyment of her work and her relationship with her co-workers.  It has also limited the activities she used to enjoy doing away from work, such as cooking, keeping her house and yard, walking, driving for pleasure, and caring for her grandnieces.
[39]         In my view, a fair and reasonable award of damages under this heading is $50,000.

$40,000 Non-Pecuniary Assessment for Lingering "Intermittent" Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases. 102 Comments on $40,000 Non-Pecuniary Assessment for Lingering "Intermittent" Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering intermittent soft tissue injuries.
In last week’s case (Wilson v. Honda Canada Financial Inc.) the Plaintiff was involved in a 2009 rear end collision.  Fault was not at issue.   Although the Court found that there “are serious issues regarding (the Plaintiff’s) credibility”  Madam Justice Fitzpatrick concluded the Plaintiff suffered a variety of soft tissue injuries, some of which remained symptomatic on an intermittent basis at the time of trial.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:
[75]         I conclude and find as a fact the following with respect to Mr. Wilson’s injuries:
a)    Mr. Wilson suffered soft tissue injuries to his neck, shoulder and back areas as a result of the motor vehicle accident.
b)    Mr. Wilson’s low back injuries resolved very quickly after the accident.
c)     Mr. Wilson suffered from fairly constant neck and shoulder pain and headaches for the first six months, but these symptoms gradually became more intermittent and less severe until his return to work in early 2010.
d)    By May 2010, Mr. Wilson’s neck and shoulder pain and headaches were continuing on an intermittent basis, but were continuing to improve.
e)    At the time of the trial, Mr. Wilson continued to experience pain in his neck and shoulder area and was experiencing headaches, all on a very intermittent basis.
[112]     I award the sum of $40,000 for non-pecuniary damages.

$85,000 Assessment for Permanent, Partially Disabling Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s archived caselaw addressing soft tissue injuries, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for such an injury with permanently partially disabling consequences.
In last week’s case (Stull v. Cunningham) the Plaintiff was involved in a 2009 collision.   Fault was admitted by the Defendant.  The collision was significant and the Plaintiff caused soft tissue injuries to the Plaintiff’s back and neck.  These continued to be symptomatic by the time of trial and were expected to continue in the future.  The Plaintiff worked as a tradesman and the injuries interfered with his physical abilities at work.  In assessing non-pecuniary damages at $85,000 Mr. Justice MacKenzie provided the following reasons:
[91]         Having regard to the totality of the circumstances, I accept the evidence of the plaintiff that he still suffers reasonably moderate neck and back injuries and that this has affected, to a certain degree, his ability to do the same type of work around the house that he once enjoyed, that it has affected his recreational activities to a modest extent, and most significantly, his ability to perform at full capacity in his chosen occupation.
[92]         I accept that Mr. Stull is permanently partially disabled because of the injuries incurred in this accident and that his pain is constant and relatively significant. I find that the injuries he suffered in the accident have prevented him from doing all of the installation work he used to be able to do throughout his full work day.
[93]         I also accept the evidence of both Mr. and Mrs. Stull that the financial impact of the motor vehicle accident caused significant stress and disharmony in their marriage.
[94]         I also agree with counsel for the plaintiff that, by their very nature soft tissue injuries are not always manifested by objective signs. Complaints of soft tissue pain and headaches are subjective in nature. I do note, however, that Dr. Martin saw Mr. Stull in late May 2012 and noted “a mild decreased range of motion.” I accept Mr. Stull’s evidence with respect to the ongoing significance of these symptoms and find that they were caused by the accident and are not a result of normal wear and tear on a back that had been traumatized many years before.
[95]         Given the totality of the circumstances, I am satisfied a fair and reasonable assessment of non-pecuniary damages would be $85,000.

$50,000 Non-Pecuniary Assessment for Chronic Intermittent Lower Back Pain

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

Short and to the point reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for a chronic low back injury.
In the recent case (Wong v. Robillo) the Plaintiff was involved in a 2010 collision which resulted in a “severe” impact.  Liability was admitted.  The Plaintiff suffered a neck injury which largely improved and a lower back soft tissue injury which became chronic and posed ongoing, intermittent difficulties by the time of trial.  In assessing non-pecuniary damages at $50,000 Mr. Justice Wong provided the following reasons:
[15]         The plaintiff still has chronic intermittent lower back pain which affects his endurance and prolonged walking or sitting.  Although he is able to carry out most household chores, it is with discomfort.  He has dramatically improved, but he has had to live with chronic intermittent pain, anxiety, and uncertainty for almost three years.  I would assess his pain and loss of personal amenities past and future at $50,000.

$25,000 Non-Pecuniary Assessment for Largely Recovered Soft Tissue Injury

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

A pattern that is sometimes seen with soft tissue injuries is that of significant recovery with a lingering occasional flare up of symptoms.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.
In this week’s case (Lumley v. Balilo) the plaintiff was involved in a 2009 rear end collision.  The defendant admitted fault.  The Plaintiff suffered soft tissue injuries which largely recovered in 9 months but occasionally flared with activity.  In assessing $25,000 for her non-pecuniary damages Madam Justice Baker provided the following reasons:
[45]         I conclude that Ms. Lumley’s injuries did not incapacitate her from work; or from any of the social and recreational activities she enjoyed before the accident, although discomfort in her neck and back caused her to limit her physical activities for a few months following the accident.  After a few weeks she stopped using prescription medication and relied on occasional use of an over-the-counter analgesic to manage her discomfort.  She had resumed her normal activities by April 2010 – nine months after the accident, although she continued to have stiffness and some discomfort in her neck and muscle tension headaches from time to time.  She was able to combine a full-time job with attendance at a part-time college course to become a physical fitness trainer; and began working as a trainer while completing the course, in addition to working full-time at her regular job.  Although Ms. Lumley testified that she had not improved at all after terminating physiotherapy treatments in February 2010, I conclude that she has made a significant recovery and that her current symptoms are mild and controlled with only occasional use of a non-prescription pain medication…
[57]         Ms. Lumley is a person who enjoyed a high level of fitness before the accident, and derived an important source of enjoyment and satisfaction from her participation in sports and recreational activities.  Ms. Lumley continues to be very fit and active but as a result of the accident, sometimes experiences stiffness or discomfort in her neck; and headaches that her doctor believes are causally related to muscle tension in her neck.  While these residual symptoms are not disabling; they do occasionally interfere with Ms. Lumley’s enjoyment of life and in particular, her enjoyment of the sports and athletic endeavours that are so important to her.
[58]         I am not persuaded, however, that the symptoms are likely to persist in any significant way and that the symptoms Ms. Lumley continues to experience are mild and can be managed with the use of non-prescription analgesics.
[59]         I have considered the authorities cited.  I award Ms. Lumley $25,000 in damages for pain, suffering and loss of enjoyment of life. 

$75,000 Non-Pecuniary Assessment for "Moderate, Substantially Resolved" Soft Tissue Injuries

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

Adding to this site’s case-law archives dealing with ICBC soft tissue injury cases, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a moderate soft tissue injury.
In this week’s case (Aubin v. Ball) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a moderate soft tissue injury that was “substantially recovered” by the time of trial.   She continue to have some symptoms, however, and these were expected to be “here to stay“.  Despite finding that the Plaintiff  “is likely exaggerating her present difficulties to some degree” the court concluded the Plaintiff had genuine ongoing symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Baird provided the following reasons:
[105]     I think it is clear, on all of the evidence, that the plaintiff suffered moderate soft tissue injuries in the September 2009 accident and that these negatively affected her life in a variety of ways for quite some time.
[106]     There is also little doubt that her injuries have substantially resolved, to the extent that her present difficulties may be succinctly stated to be a Grade II whiplash associated disorder to her cervical spine and upper back (right side), and a lumbosacral sprain injury involving the lower lumbar spine and right sacroiliac region, with muscular pain in her right buttock and right hip region.
[107]     In most important ways, I was impressed by the plaintiff as a witness. She struck me as an intelligent and articulate person who, for the most part, had followed the directions of her caregivers and medical advisers and made creditable efforts to get over her injuries and return to her former lifestyle…
[117]     With some reluctance I find that Ms. Aubin is likely exaggerating her present difficulties to some degree. On the basis of everything I have heard from her and others, I conclude that she is doing so unconsciously without any active intention to mislead.
[118]     However I have no reason to reject the proposition, seemingly concurred in by all the witnesses, expert or otherwise, that Ms. Aubin continues to suffer from back pain related to the accident, and that this condition, in the words of Dr. Njalsson may be “here to stay”…
[129]     In recognition of the fact that Ms. Aubin was not as active in approaching recovery as she could have been, but without penalizing her for not being as robust as some plaintiffs, a just, fair and reasonable award in this case is $75,000. The defendant must take his victim as he finds her, and in this case, the accident caused a young woman who was on track in pursuing her ambitions and goals to go off course and lose some very good years of her life. This is no trivial matter.