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"Cut and Paste Affidavit" Derails Defence Medical Exam Application

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a defence request for an independent medical assessment of a Plaintiff in part due to the use of a “cut and paste affidavit”.
In the recent case (Mirzai-Sheshjavani v. Ho) the Plaintiff was involved in a collision and sued for damages.  As trial neared the Plaintiff served expert reports and the Defendant applied to compel the Plaintiff to attend an independent medical exam to obtain a responsive report.  The request was denied with the Court criticizing the supporting materials.  In dismissing the application Master Baker provided the following reasons:

[3]             The global response addressed the — I think the term used in some of the email was the “institutional litigant” approach of the defence. I agree in large measure with that. I agree just from the materials before me. Mr. Jiwa says there are too many of these applications, “these applications” being applications for defence medical examinations brought very proximate to the trial, often with short leave. He is correct.  There is no utility in my getting into an anecdotal review, but it has become quite common in chambers to have that application. Yes, short leave is typically given. Yes, the applications are heard, and I guess, yes, sometimes the applications are successful, perhaps often, I do not know, but it is becoming the case where a fair proportion of the short-leave applications that we hear on a daily basis relate to just this subject. His conclusion and his assertion is that this represents an institutional litigant who is, as he termed it, sitting on their hands until the trial date approaches. I do not know. I do not know whether that is the case or not. I suspect it may be because litigation is being driven by adjustors and not by counsel. I believe it may be the case that counsel are not being given enough latitude to exercise their professional judgment. I do not know.

[4]             It is not for me to tell them how to do their job, but that might explain a few things, but in the particular case before me, the affidavit in support — one of the affidavits in support — is by Dr. Hummel indicating why he needs to do a physical examination of the plaintiff and there is just absolutely no question that this is a cut-and-paste affidavit. It is taken literally verbatim from the affidavit of — I think it is — Dr. Reebye in one of the other cases cited to me – down to the punctuation.

[5]             The interesting paragraph, paragraph 9(d), where he says, “I understand that the plaintiff has been assessed by Dr. Heran and Dr. Kazemi…” — well, that was not verbatim, different doctors — “…whose reports I have not reviewed extensively, but sufficiently to determine that they noted the plaintiff’s complaints of neck, back, and shoulders causing headaches,” et cetera, on down to, “To properly assess his claimed injuries, I need to review the plaintiff’s history, accident information provided, and conduct a physical examination.”  These are all conclusions. He does not say, “Well, I notice that Dr. Heran did this or did not do this, performed this test which I think as a professional is inappropriate for the symptoms suggested”; no, nothing, he just simply says, “I need to look at this person,” and when he says that, he essentially, in my respectful view, says, “I need to do the same things Dr. Heran did,” but he just says that without giving us any reasons and, without reasons, there is no evidence, there is no requirement proven, and the application fails, but I also agree with Mr. Jiwa’s submissions that there is not a surprise here.

[6]             Yes, I can see the defence’s point, but I can also see the other elements and aspects of Dr. Kazemi’s report which, as Mr. Jiwa points out, says, among other things, he needs to be assessed for neurosurgery. Well, maybe you can say that is different than being assessed by an orthopedic surgeon, I do not know, but it is obvious that Dr. Kazemi certainly considered that a full understanding of the plaintiff’s circumstances would require further inquiry by another specialist and, in fact, the very specialist or physician of the same specialty that he considered who happens to be Dr. Heran. So no surprise there.

[7]             The application is dismissed.

"Outlandish" Uncorroborated Injury Claims Rejected

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, largely rejecting many “outlandish” claims in a personal injury lawsuit that were not supported by medical evidence.
In today’s case (Lamb v. Fullerton) the Plaintiff was involved in several collisions and sued for damages.  He claimed aggravation of a historic head injury and further claimed severe consequences including ‘vomiting 100 times in a day‘ and severe bowel incontinence.  The reported symptoms and any relationship to the collisions in question were not corroborated by medical evidence.  The court was critical both of the lack of evidence in support of the claim and the Plaintiff’s credibility.  In rejecting these and other portions of the claim Madam Justice Warren provided the following reasons:
9]             Mr. Lamb’s testimony was unsatisfactory.  Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.
[10]         Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies.  Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident…

[14]         Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.

[15]         Mr. Lamb claimed to have been vomiting 100 times in a day.  He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing.  He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain.  Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads…

[20]         Mr. Lamb acknowledged having been untruthful in other contexts.  He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia…

[85]         As I have already explained, because Mr. Lamb’s subjective reports provide the foundation of his claims it is particularly important to examine his evidence carefully.  For the reasons already expressed, I have concluded that his evidence was neither credible nor reliable.  He has failed to marshal any persuasive independent corroborating evidence.  Most importantly, he has presented no medical evidence in respect of the cause of the injuries and conditions he claims to suffer from; whether his pre-existing conditions were aggravated by the accidents; if so, the extent of the aggravation; or the impact of the two intervening accidents on his current condition.  In the circumstances of this case, such evidence is necessary in order to establish possible causes of the injuries and conditions about which he complains:  Deo v. Wong, 2008 BCCA 110 at para. 19.

No Negligence Where Customer Trips on Overlapping Mats

Written by admin on . Posted in Occupier's liability claims.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a trip and fall lawsuit where a customer fell on over-lapping mats at a grocery store.
In the recent case (Biason v. Loblaws, Inc) the Plaintiff tripped and fell injuring herself while she walked on overlapping floor mats.  She argued that it was negligent for the store to have these mats overlap each other.  The Court noted that counsel could not point to other cases addressing such a fact pattern but ultimately found there was no negligence.  In dismissing the claim Madam Justice Baker provided the following reasons:

[29]         Mr. Patton testified that he was unaware of any previous incident involving a customer tripping over overlapped mats.  Although there was no direct evidence about the depth of the mats, from the description given, and the appearance of the mats on the recording, they were neither deep nor “plushy”.  The front end of the third mat that overlapped a portion of the rear end of the second mat was not wrinkled or buckled or folded back or lifting up in any unusual fashion.  Part of one mat was simply lying on top of part of another mat.

[30]         There is no evidence that there had been previous accidents due to overlapping mats – the evidence is to the contrary.  There is no evidence that the overlapping of mats was a recognized hazard in the industry.  Other customers had been walking over the mats without incident on the day that Ms. Biason tripped and fell…

[35]         I have read and considered all the other authorities provided by counsel.  Taking the authorities and all of the evidence into account, I have concluded that the plaintiff has failed to establish, on the balance of probabilities, that the placement of the mats in the defendant’s store constituted a failure on the part of the defendant to take reasonable care to ensure that the premises were reasonably safe.  The defendant placed the mats in the entryway to protect customers from a readily apparent and recognizable risk – the risk of slips and fall due to wet floors.  I am of the view that it was not reasonably foreseeable that a customer would fail to lift his or her feet sufficiently while walking to avoid tripping on the edge of one of the mats, even if those mats were slightly overlapping.

[36]         Having found no breach of the standard of care, and therefore no liability on the defendant’s part, Ms. Biason’s action must be dismissed.

Plaintiff "Antics" During Cross Examination Undermine Injury Claim

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting substantial aspects of a personal injury claim due in part to concerns about plaintiff credibility.
In today’s  case (Siddall v. Bencherif) the Plaintiff was injured in 2 separate collisions that the Defendants accepted fault for.  Much of her claim was rejected at trial where the presiding judge raised concerns about her credibility and “antics” while testifying.  In concluding that “the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her” Mr. Justice G.C. Weatherill provided the following reasons:
[183]     A plaintiff who accurately describes his or her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable. 
[184]     Regrettably, that did not occur in this case.   The plaintiff was not particularly forthcoming during her evidence-in-chief.  Significant aspects of her story were not revealed until cross-examination at which point she was evasive and took great pains to minimize the history of her pre-Collisions physical and emotional issues.  Despite insisting that her memory was “good”, on several occasions she had to be taken to her relatively recent examination for discovery transcripts before she was prepared to recall her previous evidence.  She had difficulty agreeing that her income tax returns reflected her actual income because she could not remember whether she had worked more than what they reflected.  Although the details of her many pre-Collisions psychological and psychiatric issues were set out in voluminous historical clinical records, including the answers to questionnaires in the plaintiff’s own handwriting, she was either unable to recall, or unwilling to admit to them.  She was also unable to recall significant portions of the clinical history set out in the various expert reports filed in this action that had been provided by the plaintiff herself. 
[185]     When clinical records or other documents were put to the plaintiff that contradicted her evidence, she insisted that the documents were likely in error or that she had been misinterpreted or misunderstood. 
[186]     The poor quality of the plaintiff’s memory at times when it suited her is at odds with her obvious high level of intelligence.
[187]     During her cross-examination, the plaintiff became increasingly evasive, argumentative and adversarial.  She often launched into lengthy, rambling answers that were replete with speculation and devoid of factual foundation.  She repeatedly played down her pre-Collisions symptoms as minor and inconsequential and emphasized her post-Collisions symptoms as new and debilitating.
[188]     Although the plaintiff appeared to have no difficulty reviewing documents and answering questions during her direct examination, she requested a recess early in her cross-examination, complaining of having difficulty extending her arms to read a one page document due to pain in her arms and shoulders.  However, she did not indicate any further difficulty with her arms during the remainder of her lengthy cross-examination, interrupted as it was by other witnesses over four days.  Indeed, throughout her cross-examination she frequently used her arms to gesture during her answers, as people typically do when attempting to make a point.  She continually alternated between standing and sitting in the witness box, which is in noticeable contrast to Ms. Tencha’s observations during the Functional Capacity Evaluation that the plaintiff was capable of engaging in casual sitting for 1 hour and 40 minutes.
[189]     The plaintiff’s antics and demeanour during cross-examination, as well as her numerous and vehement attempts to convince the court of her ordeal, evoked the oft-quoted line from Hamlet: “the lady doth protest too much”.
[190]     I find that, overall, the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her, which I find she exaggerated.  Unfortunately, I am unable to give her evidence in that regard much weight. 
[191]     As a consequence, I have not found the opinion evidence of the medical experts of much assistance.  That is not because the experts are lacking in the necessary experience and expertise in their respective fields.  Indeed, they are all highly qualified.  Rather, it is because medical experts necessarily take a patient’s complaints at face value and then offer an opinion based on those complaints.  Here too they relied for their respective opinions to a significant degree on what they were told by the plaintiff without the benefit, as the court had, of a thorough and lengthy cross-examination of the plaintiff during which her self-reports and evidence generally were tested.
[192]     In contrast to the plaintiff, ….gave his evidence in a down-to-earth and forthright fashion.  He was clear, candid, animated, articulate and passionate about his testimony.  I find that his evidence was credible and generally reliable.

$135,000 Non-Pecuniary Assessment for Ruptured Breast Implant, Chronic Physical and Psychological Injuries

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry assessing damages for numerous injuries sustained by a pedestrian struck by a vehicle.
In today’s case (Starchuk v. Hannig) the Plaintiff was a customer standing in a store “when a vehicle driven by the defendant, Helmutt Hannig, crashed into it. Ms. Starchuk was pushed into the wall of the deli, breaking the drywall.”
The Plaintiff suffered a host of psychological and physical injuries including a breast implant capsular tear requiring surgical repair.  In assessing non-pecuniary damages at $135,000 Mr. Madam Justice Brown made the following findings:

[101]     In summary, I am satisfied that as a result of the motor vehicle accident of May 13, 2013, Ms. Starchuk has suffered soft tissue injury to her neck, shoulders, upper limbs, back, chest, and right foot; a capsular tear of her breast implant which required surgery and has left her with postoperative pain and loss of nipple sensation; chronic mechanical neck and shoulder pain; soft tissue injuries to her arms with persisting forearm and hand pain, numbness and tingling; posttraumatic stress disorder, somatic symptom disorder, chronic pain, and a mild traumatic brain injury. I accept that Ms. Starchuk:

1.       will remain at risk for a potential reduction in capacity due to her psychiatric diagnoses because of exacerbation from stress or other triggers; increased risk of developing another psychiatric diagnosis; and increased risk of developing fibromyalgia and chronic fatigue syndrome;

2.       would likely benefit from further therapy for her soft tissue injuries within the next year, but that she will be left with ongoing pain and activity restrictions related to neck, back, chest, arms and hands which will likely be permanent and enduring; and

3.       has had a good result from her breast revision surgery, but is left with pain and lack of sensation and the result is not aesthetically satisfying to her…

[103]     I have considered the cases provided to me by each of the parties. It is trite to state that no two injuries and no two plaintiffs are the same (Boyd v. Harris, 2004 BCCA 146 at para. 42). Considering the factors set out in Stapley v. Hejslet, 2006 BCCA 34, in my view the appropriate award for damages for Ms. Starchuk’s pain and suffering is $135,000.

Failure to Mitigate Cuts Pain and Suffering Award in Half

Written by admin on . Posted in ICBC Psychological Injury Cases.

Update November 6, 2017 – Today the BC Court of Appeal dismissed an appeal of the below judgement
_____________________________________
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, cutting a Plaintiff’s non-pecuniary damage award in half due a failure to mitigate loss.
In today’s case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s non-pecuniary assessment of $140,000 was reduced by 50%.  In reaching this result Mr. Justice Verhoeven provided the following reasons:
[116]     She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse. ..

[121]     In sum, the plaintiff ought reasonably have begun use of anti-depressant medication earlier than she did initially.  She could have resumed use of Pristiq or other suitable anti-depressant medication by July 2015 when she stopped breastfeeding, if not earlier. She ought to have been treated by a psychiatrist. Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work which could have been attempted in early 2013 and again in 2015, and 2016.

[122]     I doubt that the plaintiff has engaged in physical exercise to the extent recommended. Physical exercise has been consistently recommended to her. In examination in chief she testified that she followed the exercise advice of Dr. Chu and of her physiotherapist to the greatest extent possible.  However on cross examination she was vague and evasive about the extent to which she had followed this advice. She testified that she tried to do what was recommended but could not recall exactly. Currently she participates in pilates at a local facility 3 to 4 times per week. Her husband candidly acknowledged that she was not doing much exercise other than attending pilates. However the evidence concerning exercise does not allow me to derive sufficiently firm conclusions that would be necessary to conclude that the defendant has met its burden to establish a failure to mitigate in this respect.

[123]      A question is whether the plaintiff’s refusal to attempt to return to work and her reluctance to accept and failure to obtain full psychiatric treatment is rooted in her accident injuries, such that a deduction for failure to mitigate would not be appropriate. However there is no basis for such a finding in the medical or other evidence. The plaintiff is highly educated and intelligent. There is some evidence that she has experienced some cognitive difficulties but these are not severe. She displayed considerable intelligence in giving her evidence, especially in describing her previous work. I do not accept that the plaintiff was impaired in her rational decision-making capacity in relation to her career and her treatment…

[216]     Based on all of the circumstances of this case, including consideration of the cases cited to me my both counsel, in my view a fair and reasonable award for non-pecuniary loss is $140,000

[217]     I reduce this by 50% to $70,000 on the basis of failure to mitigate loss.

"One of Those Rare Instances in Which the Left-Turning Servient Driver is not at Fault"

Written by admin on . Posted in ICBC Liability (fault) Cases.

There is a mistaken belief by some that when a collision occurs at an intersection between a left turning motorist and a vehicle proceeding straight through the intersection that fault will rest with the turning vehicle.  This is often, but not always, the case.
Reasons for judgement were released today by the the BC Supreme Court, New Westminster Registry, finding a left turning vehicle faultless for such a crash due to excessive Defendant speed.
In today’s case (Theiss v. Shorter) the Plaintiff was attempting a left hand turn on an amber light when she miscalculated the on-coming Defendant’s speed and a collision occurred.  The Defendant was travelling at approximately double the posted speed limit and due to this the Court concluded fault should rest entirely with him.  In reaching this conclusion Madam Justice Baker provided the following reasons:

[45]         I found the opinions in Mr. Dinn’s report, reinforced by his response to rigorous cross-examination and some questions from the Court, to be logical, reasonable and persuasive, and the assumptions on which he based his opinions to be supported by the evidence.  I conclude that Mr. Shorter was travelling at an excessive rate of speed as he approached the intersection − probably a speed in excess of 100 kph and possibly as great as 110 kph − more than twice the posted speed limit.

[46]         Ms. Theiss commenced her left turn when the defendant’s vehicle − had it not been been travelling at an excessive speed − was sufficiently far from the intersection that it did not pose a hazard.  She could not, in my view, have anticipated that the approaching vehicle was travelling at twice the posted speed limit.  As such, and given that she was well into her turn when Mr. Shorter approached the intersection, he was obliged to yield to her.

[47]         Mr. Shorter knew, I conclude, that the light at Chancellor Avenue for traffic on Helmcken Road had been green almost from the time he entered Helmcken Road and should have anticipated that it would turn to amber or red before he reached the intersection.  He also knew that there was a southbound vehicle stopped at the intersection waiting to make a left turn.  He was aware there was no left turn light and that vehicles wishing to turn left often did so on an amber light.  Had he not been driving at an excessive rate of speed he could have stopped before entering the intersection, or had a greater opportunity to consider his options and to avoid the swerve to the right that was a contributing factor in the collision.

[48]         This is, in my view, one of those rare instances in which the left-turning servient driver is not at fault.  Ms. Theiss drove in a prudent and reasonable manner − stopping twice to check the distance from the intersection of the oncoming vehicle; and checking to ensure no pedestrians or cyclists were in the crosswalk. She was familiar with the intersection and able to make a reasonable estimate of when she could safely make it through the intersection before oncoming traffic reached the intersection.  She could not reasonably have predicted the highly excessive rate of speed at which I have concluded Mr. Shorter was travelling.

[49]         I find Mr. Shorter’s negligence in driving at an excessive rate of speed and failing to keep a proper look-out for left-turning vehicles to be the sole cause of the accident.

Court Finds It is an Abuse of Process For ICBC to File Inconsistent Pleadings From Single Collision

Written by admin on . Posted in Uncategorized.

Interesting reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other “where there are no facts to distinguish the two”.
In today’s case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.
Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:
[67]         In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…

[93]         The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.

[94]         I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1.               A declaration of mistrial means that the matter will proceed to a new trial.

2.                I grant judgment on the liability issue in favour of the plaintiff.

3.               The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

[95]         Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.

$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases.

Adding to this site’s archived ICBC case summaries involving shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, assessing damages for a rotator cuff tear requiring surgical intervention.
In today’s case (Mitchell v. Martin) the Plaintiff was involved in a 2009 motorcycle collision caused by the Defendant where “the plaintiff was thrown from his motorcycle and injured his right shoulder, neck and back and suffered from bruising and road rash“.
The Plaintiff’s most serious injury was a rotator cuff tear which required surgical intervention and the Plaintiff was left with chronic pain in the shoulder.  In assessing non-pecuniary damages at $85,000 Madam Justice Young provided the following reasons:
[41]         I am satisfied on a balance of probabilities that the labral tear and the rotator cuff tear were caused by the Accident and that the majority of the plaintiff’s right shoulder injuries were caused by the Accident. I prefer the evidence of the surgeon, who not only reviewed the MRI and treated the plaintiff, but actually visualized the shoulder joint during surgery…

[61]         The plaintiff suffered considerable pain and instability of his shoulder while waiting for surgery. This was a time period during which he saw no improvement. After 12 months, he then had to undergo the pain of surgery and a six-month recovery period. The surgery distinguishes this case from many of the defendant’s cases that fall in the lower range.

[62]         The plaintiff is a stoic, motivated individual who enjoyed an excellent recovery because of his rehabilitation efforts so that he has a stable, fully mobile shoulder but he is not without chronic pain. There is no indication that this level three out of 10 pain is going to improve and I expect, given that it has not improved in six years, he will continue to experience it.

[63]         His shoulder pain will affect his productivity at work and in his recreational activities, which impact his enjoyment of life. He does not suffer the level of pain that Ms. Cimino does, however, I take into consideration that award is seven years old and may have been higher in 2016.

[64]         I award $85,000 for non-pecuniary damages.

$65,000 Non-Pecuniary Assessment for "Persistent Myofascial Pain"

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

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic back injury.
In today’s case (Cirillo v. Mai) the Plaintiff was involved in a 2012 collision where her vehicle was struck and pushed into oncoming traffic where she was struck a second time.  The Plaintiff suffered a chronic back injury with symptoms continuing at the time of trial and expected to likely persist into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Hinkson provided the following reasons:

[41]         Dr. Khalfan commented in her report of April 20, 2016 that:

a)       The plaintiff’s diagnosis at that time was persistent myofascial pain as a result of the Collision.

b)       The plaintiff’s range of motion in her spine was good, other than her spinal extension, which demonstrated significant impairments.

c)       The plaintiff had first received trigger point injection treatment on January 26, 2016. Other than experiencing some short-term flare-ups in pain for after treatment, the plaintiff responded well to the injections, and reported 50% improvement in her pain by the fifth treatment.

d)       By the sixth trigger point injection on April 12, 2016, the plaintiff had plateaued with that treatment, and decided to pursue ultrasound-guided injection treatment, which would require a series of diagnostic tests.

e)       Because the plaintiff responded well to trigger point injections, Dr. Khalfan was optimistic that the plaintiff would continue to experience improvement with ultrasound-guided injection treatment. Dr. Khalfan expected that the plaintiff would experience appreciable improvement of her symptoms in the future, but was unable to predict with precision the degree to which the plaintiff would recover.

f)        Given the fact that the plaintiff has experienced pain for years after the Collision, it is unlikely that she will experience full recovery of all symptoms. Dr. Khalfan opined that it was likely that the plaintiff would have ongoing pain well into the future and possibly indefinitely.

g)       Dr. Khalfan recommended a focused strengthening and stabilizing exercise program as a possible management tool for mitigating the plaintiff’s limitations and pain…

[92]         The authorities relied upon by the plaintiff are all cases where the injured parties suffered from chronic pain. Although I accept that Ms. Cirillo continues to experience back pain, I am unable to accept that it rises to the level of chronic pain as that term is used in the cases that she relies upon. While she may experience the improvement in her pain that is hoped for by Dr. Khalfan, I do not regard that as likely. I consider that the injuries and ongoing difficulties that she experiences are more consistent with the difficulties described in the awards cited by the defendant, with the exception of the loss of her ability to participate in the sport that she pursued with such devotion and considerable success before the Collisions.

[93]          As I have already found, it is unlikely that she would have been able to continue with her level of activity in the sport for much longer than she did, but the choice to do so was taken from her by her injuries from the Collisions, and this, in my view, elevates her damages from the range that can be derived from the cases relied upon by the defendant. I therefore assess her non-pecuniary damages at $65,000.