A Sensible Take on Gaps in Clinical Records

In the ICBC Claim process the number of medical visits following a collision are often scrutinized.  If there is a substantial gap in treatment an argument can be made that the symptoms are recovered and compensation should be limited accordingly.  Reasons for judgement were released recently by the BC Supreme Court, Nanaimo Registry, dealing with such an argument.
In the recent case (Noon v. Lawlor) the Plaintiff suffered from a chronic whiplash injury following a 2009 collision.  ICBC argued that a “large time gap in which the Plaintiff did not seek any medical treatment” was consistent with injury recovery.  Mr. Justice Halfyard rejected this absolute position and provided the following sensible analysis:
[194] A plaintiff’s failure to seek medical attention for relatively long periods of time cannot, by itself, justify the inference that the plaintiff was not experiencing the symptoms which he or she describes at trial. This is particularly so where exercise is the only “treatment” being advised by the plaintiff’s doctor. However, the circumstances in a particular case may warrant the inference that any pain symptoms that were experienced by the plaintiff during these time gaps were not continuous or frequent or alternatively, if they were, then such symptoms of pain were at a low level of intensity, perhaps not much more than discomfort. If one or other of these inferences is drawn, and if that inference is inconsistent with the plaintiff’s description of his or her symptoms at trial, then such inconsistency may adversely affect the plaintiff’s credibility.
For more judicial commentary on injury claims and frequency of medical appointments you can click here to access my archived posts.

bc injury law, Frequency of Medical Appointments, Mr. Justice Halfyard, Noon v. Lawlor

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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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