Chronic Whiplash Associated Disorder and the "Unrelated Pain" Defence

It is well established that a small percentage of people who suffer from whiplash associated disorder following a collision go on to experience pain for a prolonged period of time.
When cases with prolonged injury go to trial it is not uncommon for the Court to hear competing medical evidence as to the cause of the chronic pain.  Oftentimes defence doctors provide opinions that causes unrelated to the collision are responsible for a Plaintiff’s ongoing symptoms.  Reasons for judgement were released today by the BC Supreme Court, Powell River Registry, dealing with and dismissing such a defence.
In today’s case (Borgfjord v. Penner) the Plaintiff was involved in a rear-end collision.  Fault for the crash was admitted by the Defendant.  The trial focused on the value of the Plaintiff’s claim.
The Plaintiff injured her neck in the crash.  She went on to have chronic symptoms of pain.  The Defendants acknowledged that the Plaintiff likely had on-going pain but argued that this was unrelated to the crash and instead was as a result of ‘degenerative changes’ .  Mr. Justice Shabbits rejected this argument and went on to assess the Plaintiff’s non-pecuniary damages for her chronic whiplash injury at $85,000.  In rejecting the defence argument the Court provided the following useful reasons:
[74] Dr. Dommisse’s opinion is that cervical strain caused the plaintiff’s early problems and that her cervical strain symptoms likely resolved within 6 months to 2 years post accident. His opinion is that degenerative changes caused the plaintiff’s later problems. He says that degenerative changes are the cause of the plaintiff’s continuing problems…

[98]         In my opinion, the plaintiff has established that the accident caused her to suffer a cervical strain.

[99]         In my opinion, Dr. Dommisse is speculating when he opines that the plaintiff’s accident caused symptoms have already resolved. The usual pattern of soft tissue injury may well involve the resolution of symptoms within 6 months to two years post injury, but the plaintiff’s complaints have continued unabated and there is no certainty that the plaintiff’s disc protrusion or degenerative condition of the spine is now or ever has been symptomatic. Dr. Waterman’s opinion is that what he saw on the MRI, (which includes the disc protrusion), is unlikely to be clinically significant. He says it is difficult to attribute spine pain to what he observed.

[100]     I accept the opinion and prognosis of Dr. Waterman. In my opinion, his evaluation and analysis of the medical evidence is persuasive.

[101]     I find that the plaintiff suffered a whiplash injury in the motor vehicle accident and that her whiplash caused injuries are ongoing. I think it more likely than not that the plaintiff falls within that category of patients referred to by Dr. Waterman who experience whiplash caused pain for years post-accident. I find that the most likely outcome of the plaintiff’s injuries is that she will be improved in several years, but that she will suffer intermittent pain which she will be able to largely control by modulating her activities…

[124] I assess the plaintiff’s non-pecuniary damages at $85,000…

bc injury law, Borgfjord v. Penner, causation, degenerative changes, Dr. Dommisse, Mr. Justice Shabbits, Whiplash Associated Disorder

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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