ICBC Injury Claims and Lack of Continuous Medical Complaints


Individuals who suffer long-term chronic pain following a motor vehicle collision often attend frequently for treatment to their general practitioner.   These visits generate ‘clinical records‘ which generally document the patients complaints.
These clinical records are usually produced in the course of a subsequent personal injury lawsuit.  ICBC defence lawyers scrutinize these records and see if they can poke a hole in the Plaintiff’s case.  A common tactic is to review these records and see if the Plaintiff complains of the same symptoms at each and every visit.  If not, ICBC may argue that the Plaintiff recovered since there is a lack of continuous complaint.  So, does this mean an injured Plaintiff should make sure they discuss their accident related complaints each and every time they see their doctor?  The answer is no and reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing some of the reasons why this is not necessary.
In this week’s case (Van Den Hemel v. Kugathasan) the Plaintiff was injured in two motor vehicle collisions in 2006.  She was not at fault for either and the trial focused on the value of her ICBC claims.   During the course of trial ICBC’s lawyer argued that the Plaintiff was not credible and that her in Court testimony of chronic pain was contradicted by “temporal gaps” in the Plaintiff’s doctors clinical records.  Mr. Justice Stewart was quick to dismiss this attack and provided the following useful comments in response to the Defendant’s argument:

[9]             Another wing of the defendants’ attack on the plaintiff’s testimonial reliability – more particularly sincerity – focused on what the defendants say is the disparity between the plaintiff’s telling me, in effect, that her pain and suffering in the neck, shoulders and back has been present, persistent and continuous since the first motor vehicle accident in April 2006 and what the defendants describe as telling temporal gaps in what the plaintiff complained of when she was seen by her family doctor, Dr. Sun, over the years.

[10]         The plaintiff, in effect, told me that on any given occasion when she saw Dr. Sun and had her few minutes in the examining room that she went straight to only what was her most significant problem or complaint that day. I accept that. It makes sense in light of how our medical system functions today. Also I infer from the whole of Dr. Sun’s testimony that it was her practice to let the patient take the initiative and that she did not invite the patient to lodge a bill of complaints. Last, I note that – as will become clear later in these Reasons for Judgment – throughout the four years in question in the case at bar the plaintiff has been a woman beset with a myriad of problems for which she sought help or advice from caregivers, only some of which were neck, back and shoulder problems.

Mr. Justice Stewart went on to award the Plaintiff $75,000 in non-pecuniary damages for her accident related injuries.  This case is also worth reviewing in full for the Court’s lengthy discussion of Plaintiff “credibility” and “testimonial reliability” which is set out at paragraphs 5-17.

chronic pain, clinical records, credibility, Gaps in clinical records, Mr. Justice Stewart, Reliability, Van Den Hemel v. Kugathasan

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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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