ICBC Injury Claims and Credibility

Reasons for judgment were released today by the BC Supreme Court, Prince George Registry, dealing extensively with Plaintiff credibility in ICBC Injury Claims.
In today’s case (Willing v. Ayles) 2 Plaintiffs were involved in a 2005 crash that was described as a ‘significant rear end collision causing some significant physical damage to the vehicle occupied by the plaintiffs
The court found that both Plaintiffs sustained injuries and non-pecuniary damages of $20,000 and $35,000 were made for various soft tissue injuries.
The lion’s share of this 43 page judgement focuses on the Plaintiff’s credibility.  I reproduce some highlights of the courts discussion on this topic below.   Anyone interested in seeing how BC Courts deal with Plaintiff credibility in ICBC injury claims in encouraged to read this judgment in full:
[75] For reasons which will become apparent these statements are demonstrably inaccurate and untrue.  Of more concern, they appear to be repeated consistently to create a particular impression, namely that she was far more active before the accident and that her injuries had restricted her activities and resulted in a major weight gain…

[153] I am satisfied that both Dr. Haskins and Dr. McKenzie suffered in the preparation of their reports and opinions from information that was, at best, exaggerated and inaccurate.

[154] This factor alone diminishes the value of their reports and opinions but when it is combined with the absence of evidence from either family doctor the difficulties become even greater.

[155] Ms. Willing struggled to fill the void created by the absence of her family doctor by repeatedly offering her own opinions on a wide variety of topics ranging from the reason for notes found in Dr. Scott’s clinical records to the cause of her weight gain after the accident.  These opinions, though revealing, are of extremely limited evidentiary value and do not supplement the actual medical evidence before the court.

[156] In the absence of medical evidence based on a proper foundation I am not prepared to accept Ms. Willing’s opinions as to causation.  To be clear, I am satisfied that, above all, Ms. Willing demonstrated a remarkable capacity to blame the collision in question for virtually everything which crossed her path.  This included attributing her weight gain to the accident, her move to Smithers, and complaints of headaches with orgasm which appears to have surfaced on March 21, 2007, approaching two years post-accident, and that of lower back and hip pain after sex which appears to have been reported to Dr. Haskins on February 11, 2008.

[157] This penchant for exaggeration and attribution appears to have been passed on to her husband who, at least in the reports of Dr. Haskins, attributes the change from his job as a mechanic to a salesman to the after effects of his injuries.

[158] Perhaps the most troubling aspect of the evidence in this case arises again in the reports and the opinion of Dr. McKenzie about the plaintiff, Kristina Willing.

[159] This report is replete with qualifications which make it clear that Dr. McKenzie’s opinion that her reported complaints were caused by the collision in question were based on the fact that she had recovered completely from previous injuries and she was asymptomatic from the degenerative disc condition prior to the accident.

[160] Those qualifications include the following –

(a)      For approximately 10 years following her last pregnancy however she had no significant back pain;

(b)      She was involved in a previous motor vehicle accident with some neck and right shoulder pain.  By her history the neck pain completely resolved although she had some mild residual shoulder pain;

(c)      The degenerative disc disease almost assuredly pre-existed but was minimally or completely asymptomatic.

[161] It seems clear that Dr. McKenzie’s opinion as to causation, even couched as it is on the various contributing factors, is based on his acceptance of her evidence of her health and condition prior to the accident.

[162] Clinical records produced apparently from the Glover Physiotherapist Corporation (Exhibit 3, Tab 10) contain an intake form dated April 9, 2002.  The symptoms recorded include neck problems, headache and problems with her right shoulder area.  After the initial assessment Ms. Willing is recorded as attending for three treatments – April 16, 2002; April 18, 2002; and April 25, 2002, before apparently discontinuing physiotherapy.

[163] A second intake form on February 17, 2004 references an “old mva” and contains a similar pain diagram to that found in the earlier intake form.  This assessment goes on to record constant pain and a series of difficulties mainly centred on her right shoulder.

[164] On this occasion Ms. Willing apparently attended four physiotherapy treatments over a period of some 16 days from February 21, 2004 to March 9, 2004 before discontinuing her attendances.

[165] During the course of her evidence Ms. Willing was insistent that she recovered completely from these symptoms and that they had completely resolved after March 9, 2004.

[166] Coincidently her claim arising from the 2002 motor vehicle collision was settled on February 27, 2004.

[167] The third intake form is dated August 19, 2005 and follows the present collision.  The pain diagram in this case covers a somewhat larger area of the neck and upper back and includes the lower back.

[168] On this occasion Ms. Willing apparently attended on some 26 occasions from August 29, 2005 until April 7, 2006 before apparently discontinuing the treatments.

[169] Upon arriving in Smithers Ms. Willing began attending at the Bulkley Valley Chiropractic Clinic.  These attendances began on August 9, 2006 and concluded on October 18, 2006 after some 16 visits which apparently included two acupuncture sessions.

[170] On July 27, 2007 Alpine Physiotherapy in Smithers completed an initial assessment form which records, amongst other information, that she had just returned from a trip to France.

[171] The physiotherapist, Graham Pollard, notes in a letter dated July 14, 2008 that he has treated her on five occasions since her initial assessment.

[172] What is interesting about this entire sequence of events in Smithers, I hesitate to describe it as a pattern, is the gaps in what she now claims are necessary therapy treatments.

[173] When Mr. Pollard refers to five treatments after her initial assessment he is not speaking about the July 27, 2007 initial assessment, because after that assessment she did not attend a single physiotherapy treatment until she returned for another initial assessment on June 3, 2008, some eleven months later.

[174] Dealing initially with the initial assessment on July 27, 2007, this appointment took place immediately after the plaintiffs retained counsel to pursue the present claims.  The writs were prepared and signed on July 25, 2007, and they were filed and these actions commenced on July 26, 2007.  The next day she attended Alpine Physiotherapy.

[175] On June 3, 2008 she returned, was assessed and began a series of five treatments.  This followed her attendance at her examination for discovery some weeks before.

[176] Once again I am forced to conclude that this is not a pattern that supports the recital of symptoms and problems presented by Ms. Willing in her evidence.

[177] The adverse credibility findings in this case go to the heart of the factual underpinnings of Dr. McKenzie’s opinion.

[178] The absence of evidence from Dr. Scott and, indeed, from the time of the accident until Ms. Willing first saw Dr. Haskins leaves the court without any medical assessment from the time of the accident until nearly two years later.  More importantly, it leaves the court without any evidence from her doctor concerning the extent of her recovery at the time of the present accident.

[179] There is, in the body of evidence before the court, little in the way of objective evidence let alone convincing evidence of any significant injury.

[180] A medical/legal report or evidence from Dr. Scott may have provided a clearer picture and the basis for a factual finding of continuing pain and discomfort related to the accident; but we do not have the benefit of any such evidence.

[181] A decision must not be based on speculation, supposition or facts not placed in evidence.  While this may possibly result in Kristina Willing being under-compensated she has only herself to blame.

[182] The absence of evidence from Dr. Scott in this case fulfills the circumstances necessary for the drawing of an adverse inference.  The inference in this case is, that if his evidence had been called, Dr. Scott’s evidence would not have supported the ‘complete recovery’ scenario found in Ms. Willing’s evidence and on which, to a significant extent, Dr. McKenzie’s opinion is based.

adverse inference, credibility, failing to call family doctor in icbc claim, icbc injury claims, Willing v. Ayles

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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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