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$70,000 Non-Pecuniary Assessement For Largely Recovered but "Vulnerable" Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a collision.
In today’s case (Boysen-Barstow v. ICBC) the Plaintiff was injured in a 2011 collision caused by an unidentified motorist. ICBC accepted statutory fault for the collision.  The Plaintiff sustained various soft tissue injuries which enjoyed significant recovery but remained susceptible to aggravation.  In assessing non-pecuniary damages at $70,000 Mr. Justice Williams provided the following reasons:

25]         My conclusion is that the plaintiff sustained moderate soft tissue injuries in the accident, causing her neck and back pain and headaches. The headaches resolved within a few months, and the other physical discomfort gradually resolved to the point that, by taking appropriate care, Ms. Barstow was substantially pain free by the end of 2013. I accept that she has a certain vulnerability to back discomfort with prolonged sitting and that requires some management; that is a condition which has not fully resolved, although it is certainly not characterizable as an acute disability. It is a relatively minor artefact of the accident requiring some accommodation.

[26]         It follows that I am not fully able to accept the opinion of Dr. le Nobel as an accurate view of Ms. Barstow’s condition and prognosis. With respect, it simply does not accord with the substantial body of evidence that is before me.

[27]         As for the psychological aspect of the effects of the accident, the phobia experienced while travelling in a motor vehicle, both as a passenger and a driver, I accept that was, certainly initially, a problem that caused serious difficulties for the plaintiff. It contributed to her difficulties in carrying out her duties at work when she returned and was, I am sure, a factor in her decision to end that employment. However, I am also satisfied that by the time of trial, that has substantially resolved and whatever lingering unease she may have in an automobile is of a quite minor magnitude.

[28]         I accept the evidence of the plaintiff and Mr. Barstow that the plaintiff’s disposition and temperament was adversely affected to an extent by the accident, though that has diminished over time. I also acknowledge that the plaintiff’s marriage was, during that time, made more difficult as a result.

[29]         In terms of determining the appropriate quantum of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life, the role of the court is to arrive at a sum which is fair to both the plaintiff and the defendant, and which provides a full and proper one-time compensation for all of the effects that have been caused by the defendants’ negligence—effects past, present, and future…

[35]         In my respectful view, when the circumstances are considered in their totality, together with the cases relied upon, the quantum of the award sought by the plaintiff is excessive. I find that an appropriate award for pain, suffering, and loss of enjoyment of life is $70,000.

BC Court of Appeal Addresses Threshold in Proving Psychological Injury Claim

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

Update June 2, 2017 – The below decision was overturned today by the Supreme Court of Canada 
Reasons for judgement were released today by the BC Court of Appeal confirming the threshold that has to be met to successfully prove a psychological injury claim.
In today’s case (Saadati v. Moorhead) the Plaintiff was involved in a collisions and sued for damages alleging brain injury.  The trial judge rejected this claim but found that the Plaintiff “was a “changed man” after the accident” and awarded $100,000 in non-pecuniary damages for a psychological injury.  The BC Court of Appeal overturned the judgement and dismissed the claim finding the test of proving “a recognizable psychiatric (or psychological) condition” was not met.
In reaching this finding the BC Court of Appeal provided the following reasons:

[28]        I do not accept Mr. Saadati’s argument that the above quoted passage brought about a change in the law.  I agree with the decision in Healy, wherein Mr. Justice Sharpe, writing for a five-member panel of the Court of Appeal for Ontario, held that Mustapha did not remove the requirement that a plaintiff prove a recognizable psychiatric (or psychological) condition:  paras. 39-63.  As discussed in that decision, this requirement is also the law in the United Kingdom, Australia, and New Zealand.  I also agree with the reasoning on this point in the judgment of Mr. Justice Joyce in Kotai:  paras. 64-69.

[29]        In the alternative, Mr. Saadati submits there was medical evidence at trial to support a finding he suffers from a recognizable psychiatric condition.  In that regard, he states in para. 67 of his factum:

[T]here was clearly expert evidence before the court.  While that evidence may have had limited weight due to the inadmissibility of evidence relied on by Dr. Mok, it was still before the court.  It is submitted that even under the strictest version of the test proposed, Mr. Justice Funt was permitted to find compensable psychological harm.

Dr. Hiram Mok is a psychiatrist who prepared an expert report tendered by Mr. Saadati.  That report was based on an evaluation of Mr. Saadati which took place in the summer of 2010, more than a year after the fifth accident.

[30]        The difficulty with this argument is that the trial judge, who had before him both Dr. Mok’s report and his viva voce testimony, was not satisfied Mr. Saadati had proven he suffers from a recognized medical condition.  Given, as Mr. Saadati concedes, Mr. Mok’s evidence was of “limited weight”, it is not for this Court to make a finding based on that evidence that the trial judge was not prepared to make.

[31]        In the further alternative, Mr. Saadati submits, based on para. 41 of Odhavji Estates, that even if he did not prove he suffers from a “recognizable … psychopathological harm”, he is nonetheless entitled to damages on the basis that he proved he suffers from a “visible and provable illness”.  He says that “illness” was visible to his family and friends and that a medical diagnosis is not required.  I disagree.

[32]        In my view, it is apparent from how those expressions are used in the cases cited in para. 41 of Odhavji Estates—Guay v. Sun Publishing Company, [1953] 2 S.C.R. 216 at 238, and Frame v. Smith, [1987] 2 S.C.R. 99 at 127-129—that both connote a medically recognized condition that affects a person’s health or well-being.  Absent expert medical opinion evidence, a judge is not qualified to say what is, or is not, an illness.

[33]        For the above reasons, I am of the view Mr. Saadati did not prove an entitlement to compensation arising out of the second accident.

Passengers Operating Vehicles are "Users" Covered By ICBC Insurance Scheme

Written by admin on . Posted in Uncategorized.

Important reasons for judgement were released today by the BC Court of Appeal addressing the scope of ICBC insurance coverage when a collision is caused by a passenger intervening in the use and operation of a vehicle.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  The matter proceeded to trial and damages of over $800,000 were assessed.  The Defendant motorist was insured with ICBC at the time.  ICBC refused to pay arguing they had no responsibility to cover the damages.
The trial judge sided with ICBC and found no coverage existed in these circumstances.  The BC Court of Appeal overturned this judgement finding the trial judge erred.  In finding ICBC liable to cover the damages the Court provided the following reasons:

[46]        The word “use” is to be considered in the context of the legislative scheme to provide “access to compensation for those who suffer losses” as a result of a motor vehicle accident, along with the legislative history, context and jurisprudence noted above. The word has been given a broad meaning in other judicial authorities. Considering all of these factors, as noted in Rizzo Shoes, I can only conclude that the word “use” in s. 63(b) includes use by a passenger in a motor vehicle when it is used as a motor vehicle.

ii)        In the context of the facts of this case, is there some nexus or causal relationship between Ms. Felix’s injuries and the use of her vehicle by Mr. Hearne?

[47]        The Court in Vytlingam addressed the issues of causation at para. 25, and said:

For coverage to exist, there must be an unbroken chain of causation linking the conduct of the motorist as a motorist to the injuries in respect of which the claim is made.

[48]        I would adopt the analysis and rephrase it in this context, as, “For coverage to exist, there must be an unbroken chain of causation linking the conduct of the user as a user of a motor vehicle to the injuries in respect of which the claim is made.”

[49]        In Amos, the Court said, at para. 26, “Generally speaking, where the use or operation of a motor vehicle in some manner contributes to or adds to the injury, the plaintiff is entitled to coverage.”  See also Westmount (City) v. Rossy, 2012 SCC 30 at para. 42.

[50]        While a passenger, or user, in a moving automobile, Mr. Hearne grabbed the steering wheel causing the accident that led to Ms. Felix’s injuries. It matters not for these purposes that he did not intend to take control of the car. He intentionally (and negligently) grabbed the wheel while he was “using” the vehicle. As a result, Ms. Felix suffered injury. There is, in my view, a clear unbroken chain of causation from his negligent act to her injuries. I would not disagree with the trial judge on this point.

Hospital Found Liable For Brain Injury Following Patient Suicide Attempt

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a hospital liable for a profound and permanent brain injury a patient suffered during a suicide attempt by hanging while in the care of the Defendant.
In today’s case (Paur v. Providence Health Care) the Plaintiff “suffered a brain injury when he attempted suicide by hanging in a bathroom at St. Paul’s Hospital“. He was there certified under the mental health act following having suicidal thoughts.  In finding the hospital was negligent in their care of the Plaintiff and finding them liable for his damages Madam Justice Griffin provided the following reasons:

[6]             I have conclude that SPH was negligent because, in summary:

a)    as part of its patient mix, SPH had a large number of suicidal, intoxicated patients treated in the ER who were certified and held involuntarily, many of them held in the Comox Unit;

b)    SPH knew or ought to have known of the real risk that a suicidal, intoxicated certified patient might attempt suicide by hanging in the hospital;

c)     SPH knew or ought to have known that the bathroom in the Comox Unit was unsafe for such a patient as the bathroom had not been made ligature-proof;

d)    SPH knew or ought to have known that the risk to a patient who attempts hanging is a very grave risk, as serious irreversible brain damage can be done to the patient quickly, within the range of five minutes, and the hanging can be fatal beyond ten minutes; and

e)    SPH had no policies or protocols for nursing staff in place to ensure that such patients were not permitted to be unmonitored in an unsafe locked bathroom for a period of time approaching five minutes or more.

[7]             This is not a case where, in the exercise of clinical judgment as to the degree of suicide risk Mr. Paur presented, medical professionals made a decision to allow Mr. Paur the freedom to be unmonitored for a period of time in an environment in which he might attempt hanging. Because he was intoxicated, Mr. Paur’s level of suicide risk had yet to be assessed beyond the fact that he was a suicide risk.

[8]             Nor is it a case where, after weighing the known risks, costs and benefits, SPH made a decision as to how to deal with the risk of suicidal patients attempting suicide by hanging in the bathroom in the Comox Unit, either by designing the bathroom a certain way or by instituting nursing policies to deal with the risk. Rather, this is a case where SPH ought to have known there was a significant risk to suicidal patients posed by the bathroom in the Comox Unit and by the lack of protective policies concerning bathroom use, but did nothing about this risk.

[9]             Mr. Paur was left unmonitored in the bathroom for a long enough period to be able to wrap a hospital gown around his neck, open up the ceiling tiles, tie the gown around fixtures in the ceiling, and hang himself to the point of unconsciousness, causing brain damage.

[10]         It would have been relatively simple and not too costly for SPH to design the bathroom facilities safely to prevent the risk of suicide by hanging; or, alternatively, to establish policies to mitigate the risk of a suicidal patient being left alone in the bathroom unmonitored for a sufficiently long period of time as to cause serious harm from hanging.

ICBC Punished 25% for Unproven Fraud Allegation

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding that unproven allegations of fraud can be used as a factor to minimize a successful party’s costs entitlement after beating a formal offer.
In today’s case (Gupta v. Doe) the Plaintiff was involved in three separate collisions and sued for damages.   At trial the Plaintiff was awarded just over $43,000.  Priro to trial ICBC made several formal offers, the first at $90,000 and the last at $164,000.  Having beaten their formal offer by a considerable margin ICBC asked for post offer costs.
The Court agreed that ICBC was entitled to post offer costs and would have awarded these fully but did not due to ICBC’s unproven allegations of fraud with respect to one of the collisions.  In reducing ICBC’s costs award Mr. Justice Jenkins reasoned as follows –

[27]         One additional factor which I consider to be appropriate for consideration was the allegation of fraud on the part of the defence in the defence of the 2009 accident. The circumstances of that accident which involved a hit and run driver were included in the testimony of the plaintiff and no explanation was provided by the defence to support this most serious of allegations which subsequently was abandoned by the defence.

[28]         In these circumstances, it is appropriate that the plaintiff be awarded costs of the action for damages arising from the 2009 action. Such allegations should never be made without serious consideration by the accuser of the ability to be able to prove the allegations. In this case, it would appear as though the allegations could never have been substantiated and as a result, it is a factor in favour of the plaintiff in considering costs. The problem that follows is how to reflect this conduct on the part of ICBC in the award of costs.

[29]         I have come to the conclusion that this factor, i.e. the unproven and abandoned allegation of fraud and the third factor enumerated under Rule 9-1(6), i.e. the relative financial circumstances of the parties should be reflected in the award of costs with a 25% reduction in any amount of costs otherwise payable to the defendants.

[30]         Accordingly, the plaintiff is entitled to her full costs on Scale B in all three actions to August 14, 2014.

[31]         Considering the options available to a judge under R. 9-1(5), the factors which may be considered under R. 9-1(6) and all other factors where an offer has been made, I award 75% of one set of costs on Scale B to the defence in respect of all steps taken after delivery of the offer of settlement of August 14, 2014 as contemplated under R. 9-1(5)(d).

Worsening Prognosis Insufficient To Allow Late Defence Medical Exam

Written by admin on . Posted in BCSC Civil Rule 11.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding that a Plaintiff’s failure to recover from injuries is not enough for a Defendant to secure a late defence medical exam.
In today’s case (Dzumhur v. Davoody) the Plaintiff was injured in a a collision and sued for damages.  In the course of the lawsuit the Plaintiff served an expert report opining that the Plaintiff ought to recover provided the injuries are responsive to recommended treatments.  The Defendant did not obtain a defence medical report and as the deadline approached for exchanging expert evidence the Plaintiff served an updated report suggesting the Plaintiff’s prognosis was poor.  The Defendant argued they ought to be entitled to a late exam in these circumstances but the Court disagreed noting the defence should have been alive to this possibility earlier.  In dismissing the requested late exam Master Muir provided the following reasons:

[13]         Further, I am not satisfied that the defendants can properly say they shall have been truly taken by surprise by the medical condition of the plaintiff. Dr. Caillier’s initial report was in 2013. It is couched in careful terms that said in essence: provided the plaintiff responds to the treatments prescribed, he should fully recover. Well, that is the very nub of the matter: will he or will he not respond to the treatments? Did he or did he not respond to the treatments? Obviously Dr. Caillier’s second report indicates that he did not

[14]         The defendant then had an opportunity to discover the plaintiff in May of this year, two weeks before the plaintiff saw his doctor. At the discovery, I am advised it was evident that the plaintiff was still playing soccer, but counsel was not able to say whether the plaintiff claimed to be pain free.

[15]         There is no basis that I can see on the evidence for the assertion that the second report of Dr. Caillier took them or should have taken them, perhaps more to the point, completely by surprise. The possibility existed that the treatments would not be successful. The defendant must be seen to have chosen to accept that risk without obtaining an IME before the 84-day deadline.

[16]         One of the important factors in these cases, as noted in Timar at para. 21, is whether the party can claim to be truly surprised by the condition of the plaintiff. Here it is my view that that is not the case. There is nothing that satisfies me that Dr. Bishop cannot do a responsive report to the report of Dr. Caillier without a complete IME of the plaintiff. As a result, the application is dismissed.

$20,000 Non-Pecuniary Assessment For Modest and Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries sustained in a collision.
In today’s case (Hall-Smith v. Yamelst) the Plaintiff was involved in a so called ‘low velocity’ collision in 2009.  Fault was admitted by the offending motorist.  The Plaintiff alleged she sustained fairly serious injuries from the collision with detrimental consequences.  The Court had issues with the Plaintiff’s credibility but did accept the collision caused some level of lingering injures.  In assessing non-pecuniary damages at $20,000 Madam Justice Dillon provided the following reasons:

[50]         The plaintiff lacked credibility about the nature of her injuries. The physical complaints were out of proportion to the severity of the accident. While this court appreciates that not all plaintiffs respond the same way to a minor incident and that a minor accident does not in itself define injury, this plaintiff’s response was so unrealistic as to affect credibility. The plaintiff was vague or could not remember when asked about post-accident activities in cross-examination and her answers were contrary to other witnesses. The documentary evidence that the plaintiff completed herself in April and May 2009 belied the suggestion that she was still considerably disabled from injury sustained in the accident or that she was suffering back and knee pain. ICBC and Turning Point documents completed by the plaintiff mentioned only pain in her neck. She misled Mr. Nordin by attributing her relapse back into drugs shortly after the accident as due to taking prescribed medication, by implying that her UBC employment was permanent and that she left due to increased back pain, and by telling him that she left the licensed practical nurse programme due to back pain and financial difficulty.

[51]         The preponderance of medical opinion does not find that knee or groin pain was caused by the accident. The plaintiff’s fiancé was unaware of any knee pain.

[52]         It is accepted that the plaintiff suffered soft tissue injury to her neck and mid back as a result of the accident. Dr. O’Connor also said initially that she suffered exacerbation of a pre-existing degeneration of the spine that caused low back pain that had not existed prior to the accident. However, the doctor changed this view when faced with the suggestion of no complaint of back pain until the plaintiff saw Dr. Harjee in October 2009 and the plaintiff’s failure to report back pain in important documentation in April and May 2009. In these circumstances that were brought to Dr. O’Connor’s attention, he concluded that the farther the low back pain complaint was from the accident, the less likely that it had been caused by the accident. But, the plaintiff had reported back pain in her first visit to the doctor immediately after the accident. In this circumstance, Dr. O’Connor’s initial opinion still prevails and it is accepted that the plaintiff suffered exacerbation of her pre-existing degenerative condition as a result of the accident and began to have pain in her lower back that did not exist prior to the accident. In any event, the injury to the plaintiff’s neck and back had largely resolved by the time that the plaintiff saw Dr. O’Connor in December 2011. At that time, any residual pain was as a result of the exacerbation of the pre-existing degenerative disc condition and heightened pain from chronic anxiety unrelated to the accident. The plaintiff would have suffered back pain at an early age eventually in any event of the accident. In all of the circumstances, it cannot be concluded that all of the plaintiff’s present symptoms are as a result of the accident. The prognosis of Dr. O’Connor is accepted, however, so that at least a small part of her ongoing back and related pain is attributable to the accident and there is no prospect for resolution with time.

[53]         Despite her injuries, the plaintiff was able to enter and succeed in a rehabilitation programme for the first time within two months of the accident. She felt sufficiently secure in her physical wellbeing to engage in dodgeball and other activities. She was able to work at a shoe store where she maintained part time employment for the first time. She completed a nine month medical office assistant programme that was rigorous in time demands. She was able to get work as a medical office assistant but did not keep the work for reasons that were not related to injury from the accident. She eventually found employment suited to her and has successfully worked full time since June 2014. Given the plaintiff’s pre-accident background and her dependence upon social assistance due to chronic anxiety, she has done quite well since the accident despite injury. The plaintiff has managed despite the injuries. From all of this, the nature of the injuries suffered in the accident, and the existence of other non-accident related physical ailments, it is concluded that the injuries suffered in the accident were relatively minor and did not prevent the plaintiff from establishing herself away from a troubled past…

[55]         It is important to remember that non-pecuniary damages are awarded to compensate an individual for the pain, suffering and loss of enjoyment of life and loss of amenities caused by the accident and that the compensation awarded should be fair and reasonable to both parties (Miller v. Lawlor, 2012 BCSC 387 at para. 109 (Miller)). The fact that this was a low velocity collision does not rule out injury (Dao v. Vance, 2008 BCSC 1092 at para. 19; Naidu v. Gill, 2012 BCSC 1461 at paras. 33-34). The inexhaustive list of factors to be taken into account in the assessment of non-pecuniary damages is well established as listed in Miller at para. 105 and Buttar v. Brennan, 2012 BCSC 531 at para. 35. These factors have been considered in coming to the conclusion here.

[56]         The plaintiff had substantially recovered from the effects of the accident by December 2011 when she first saw Dr. O’Connor, except for aggravation of the pre-existing degenerative disc disease. The impact of the accident upon the life of the plaintiff was not significant. She was able to recover to the extent that only her neck pain was worthy of her comment by the spring of 2009. She was able to rehabilitate and educate herself for the first time. She was able to start serious work and eventually get and maintain full time employment that she never had before. She started and has maintained a stable family life. As in Sevinski v. Vance, 2011 BCSC 892 at para. 84, it not possible to determine here the extent of the plaintiff’s participation in sports and other activities prior to the accident based upon her evidence and prior lifestyle. There is no evidence of prior regular participation that was hindered by the accident.

[57]         The plaintiff is awarded $20,000 for her non-pecuniary damages.

BigLaw the Novel – Exposing the Guts of Big Firm Life

Written by admin on . Posted in Uncategorized.

BigLaw Image
A bit of an off-topic post from this site’s personal injury theme, but a quick shout out to my sister in law, Lindsay Cameron, who has just published her first novel, Big Law, a story influenced after being involved in the grind in both Canadian and US top tier lawfirms.
If you are looking for a fun read this fall its great for lawyers, lawyers to be and those with the sense to steer clear from the profession altogether!
You can find it on amazon.ca, amazon.com for you US folks and Barnes and Noble.
You can follow Lindsay on twitter here. Enjoy!

Pain Clinic Treatment a "Mandatory" Item Under ICBC's Part 7 Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether ICBC’s no-fault benefits cover payment for treatment at a pain clinic.  In short the Court found they do.
In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages.  At trial future care costs were awarded including $8,500 for treatments from a pain clinic.  The Defenant argued that these damages should be deducted as ICBC must cover the cost under the Plaintiff’s no fault beneifts.  In agreeing with this submission and finding such treatments are included in ICBC’s no-fault coverage Mr. Justice Fitch provided the following reasons:

[44]         …The narrow issue before me is whether a pain clinic that is focussed on “necessary physical therapy” is a mandatory benefit as contemplated by s. 88(1).

[45]         The mere fact that psychological and/or cognitive obstacles to optimal physical rehabilitation are likely to arise in the administration of what amounts, at its core, to a physical rehabilitation program does not negate the fact that the program is designed to achieve “necessary physical therapy.”  The law must take cognizance of our growing awareness of the intersection between physical and mental therapy.  Indeed, it is difficult to envision aggressive implementation of the sort of active rehabilitation Back in Motion has in mind without necessarily engaging psychological and/or cognitive issues, particularly for an individual in the plaintiff’s situation.  Looking at the issue this way, it is unnecessary and unrealistic to hold that a physical therapy program that incidentally engages psychological and/or cognitive issues ought not to be characterized as a s. 88(1) benefit in circumstances where the language of the provision does not dictate this result.  Further, it is undesirable for courts to embark upon the impossible task of deciding which discrete components of a holistic pain program constitute s. 88(1) benefits because they are purely given to physical therapy, and which components fall outside the scope of s. 88(1) because they engage psychological issues that stand as barriers to the successful implementation of an active rehabilitation program.  Such an approach is not only artificial, it is one that would breed uncertainty and spawn further litigation in an area already beset by what the Court of Appeal in Raguin charitably described as “jurisprudential inconsistencies”.

[46]         As is evident from the foregoing, I favour the result reached on this point in Klonarakis.  In the result, I am of the view that a pain clinic focused on “necessary physical therapy” is a mandatory benefit; one that shall be paid by ICBC even in circumstances where it is anticipated that psychological issues may arise in the implementation of the program.

[47]         As noted in Ayles v. Talastasi, 2000 BCCA 87 at para. 32:

As a claim covered by s. 88(1) I.C.B.C. is obliged to pay the benefits. It is not a matter of discretion under s. 88(2) where entitlement depends “on the opinion of the corporation’s medical adviser”. The risk in deducting too much from the tort award for discretionary benefits is that I.C.B.C. may ultimately refuse to pay on items which although found to be compensable in the tort claim were deducted on the assumption that they would be paid as a no fault benefit. In that instance the claimant is out of pocket for the expense and I.C.B.C. enjoys a windfall. But here the class of future expense is obligatory, not discretionary, and so the plaintiff does not stand to lose anything by the deduction. It is only in circumstances where the classification of the future cost is unclear or an issue arises whether the item is covered by Part 7 at all, that some caution is required.

[48]         As I am satisfied in this case that the pain clinic is a mandatory benefit and that ICBC is obliged to reimburse the plaintiff for all reasonable expenses associated with her attendance at the clinic, there is no uncertainty as to whether this benefit will be paid.

Chronic Regional Myofascial Pain Syndrome Leads to $125,000 Non-Pecuniary Assessment

Written by admin on . Posted in ICBC Chronic Pain Cases.

Reasons for judgement were released today assessing damages following chronic injuries sustained in a collision.
In today’s case (Kam v. Van Keith) the Plaintiff was injured in a 2011 rear end collision.  The Defendant admitted fault.  The Plaintiff complained of” injuries to her neck, upper and lower back, shoulders, she suffers from depression, sleep disturbance, fatigue, headaches and has chronic pain”.  These were ultimately diagnoses as a chronic regional myofascial pain syndrome and the Plaintiff’s symptoms were not expected to make meaningful improvement.  In assessing non-pecuniary damages at $125,000 Mr. Justice Cole provided the following reasons:
[15]        Dr. Apel does not state the plaintiff has fibromyalgia but does find she has some symptoms of fibromyalgia. She makes a conclusive diagnosis of chronic regional myofascial pain syndrome which is unchallenged by the other experts…
[24]        I was impressed with Dr. Apel. She saw the plaintiff on two occasions. Her report was thorough and detailed as was her examination. I am satisfied that the kinesiologist that worked with the plaintiff (which I assume was in response to Dr. Piper’s recommendation in his first report) between November 2013 and April 2, 2014 along with her continual rigorous workout program that she had continued to do following his recommendation of a kinesiologist has not improved her condition and I am satisfied that it is unlikely her symptoms will improve in any significant way. In my view she had tried everything possible. She has applied herself in a rigorous discipline fashion and four years after the accident she still has chronic lower back pain…

[25]        Non-pecuniary damages are awarded to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to consider are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal refused, 2006 SCC 100. Any assessment of damages of course must be fair to both parties, and must be decided on the facts of the particular case.

[26]        The plaintiff is still relatively young, being born in November 1975. The nature of her injuries are significant and they have subsisted at least in the lower back for four years. The plaintiff has suffered emotionally and her life has been impaired. It has also adversely affected her family, her marital relationship and her social relationships. She is incapable of doing practically all the sporting activities that was a vital and vibrant part of her personality and her relationship with her husband, her family and friends. Although she only took three days off work purely because she is stoic is not a reason to generally penalize the plaintiff…

[31]        I am satisfied, considering all of the evidence that the proper award is the amount of $125,000.