Tag: back injury cases

A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims.  Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision.  The key findings of fact were as follows:

30]            Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do.  Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems.  Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before.  She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31]            I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip.  I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before.  I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches.  However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32]            Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits.  I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits.  Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future.  To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary.  The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:

$35,000.00

Special damages:

$8,500.00

Past loss of wages:

$12,000.00

Loss of capacity:

$20,000.00

TOTAL:

$75,500.00


 
In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.  
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints.  Damages were awarded as follows:

[109]        In summary, my conclusions are as follows:

(a)        The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b)        I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c)        Mr. Haag’s claim for past income loss is dismissed.

(d)        I award Mr. Haag $60,000 for loss of earning capacity.

(e)        Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only.  I will leave counsel to calculate the dollar amount.  The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f)        With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts. 

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC.   The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion.   Her syptmoms improved by about 80% by the time of trial.  The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

 

(a)

Non-Pecuniary Damages

$30,000

(b)

Loss of Income to Trial

$15,000

(c)

Loss of Earning Capacity

$15,000

(d)

Future Care

$     500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry.  This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident.   Damages were assessed as follows:

1.

Pain and suffering

$115,000

2.

Past wage loss (gross)

$75,000

3.

Impairment of earning capacity

$262,000

4.

Special damages

$47,400

5.

Future care

$75,000

Whew!  Now back to work.

$40,000 Pain and Suffering for Neck, Back and Shoulder Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $90,000 in damages as a result of a 2005 collision.
The Plaintiff was 25 at the time of the BC car crash.  He was not at fault for the crash and the trial focussed exclusively on the issue of damages.
The court heard from a variety of experts.  The court also viewed surveillance footage of the Plaintiff playing hockey and doing other physical activities.  Such surveillance footage often comes to light at the trial of ICBC claims, particularly those inovlving on-going soft tissue injuries.
In awarding $40,000 for non-pecuniary damages (pain and suffering) the court made the following findings:

[15] I am persuaded by the evidence to conclude on the balance of probabilities that (the Plaintiff) suffered a flexion extension injury to the soft tissues of his neck, back and shoulder.  Considering the persistent difficulty that he has had with his lower back, the injury is fairly described as moderate in nature.  (the Plaintiff) had back trouble related to his rugby injury and on occasion his extremely heavy work load prior to his injury for which he sought treatment, but I accept his evidence that his previous back problems were intermittent and less severe before the accident.  (the Plaintiff) had already given up rugby and snowboarding prior to his injury.  His ability to play in-line hockey demonstrates that he does not have a functional disability, his problem is that demanding activities can cause the onset of significant pain.

[16] I accept Dr. Travlos’ opinion that:

He will likely still experience intermittent pain flare ups, but should be capable of reasonable physical activity.  He will learn to avoid certain recreational activities and certain types of work activities in order to manage his pains and by doing so should have reasonable pain control.

As I have noted earlier, (the Plaintiff) had pain in his back prior to the collision and would have had it in the future if the collision had not occurred, but his motor vehicle injuries have increased his susceptibility to back pain and made that back pain worse when it occurs.  I assess (the Plaintiff’s) claim for general damages for pain and suffering which has been and will be caused by his motor vehicle injuries above and beyond that which he would have had had he not been so injured at $40,000.

$40,000 Pain and Suffering for "Very Unique' Ankle Injury

Reasons for judgement were released today awarding a Plaintiff a total of$71,060.06 as a result of personal injuries which were caused by a 2004 BC car crash.
This was a left-turn intersection case involving a semi-truck and a mini-van. The semi truck turned left in front of the mini-van at an intersection causing a collision. The Plaintiff was a passenger in the mini-van. She ‘braced herself (for the collision) by holding the sides of the seat and placing her feet on the dash’.
Fault for the accident was admitted. The issue at trial was the extent of the injuries sustained and their value.
The court concluded that the Plaintiff suffered from soft tissue injuries to her neck back and jaw which ‘had all effectively cleared up within some 6-7 months after the accident‘.
The Plaintiff also suffered injuries to her knee and ankles which ‘progressed to the point where she could return to work in July, 2005‘. The exact nature of these injuries were ‘bilateral ankle bone contusions and patellofemoral discomfort‘. The court found that these injuries were chronic and that ‘she will have continuing pain from time-to-time (in her ankle) of more likely on a diminishing basis‘.
The court awarded $40,000 for non-pecuniary damages (pain and suffering).
This case focused largely on credibility. The court concluded that the plaintiff ‘has exaggerated her ongoing pain’. This case is worth reviewing for anyone advancing an ICBC injury claim as an example of how BC courts deal with the credibility (truthfulness) of a witness.
Here the court found that the Plaintiff was not truthful when describing the extent of her pain and that she misled the court when addressing past wage loss.
Specifically, the court found that:

[56] Following the adjournment of the trial to October, it became clear from the evidence led by the defence from West Jet’s representatives and employment records that the plaintiff’s position on picking up shifts was not true. In fact, the employment records in evidence confirm that the plaintiff began picking up more work than she was scheduled within a month of returning to regular hours of employment in July of 2005. From the evidence of the West Jet supervisor the plaintiff could routinely work 30 hours a week or less simply by working the hours that she was scheduled but it is clear from the employment records she chose to work more than 40 hours per week by picking up shifts from fellow agents following her return to work in July 2005 and commencing in August 2005.

[57] From a review of her employment records relating to her employment before the accident it became crystal clear that since she began working at West Jet Ms. Polson has routinely lobbied her fellow agents for more work as evidenced from commentary in work reviews directed to her in 2005 and 2006.

[58] Primarily relative to these inconsistencies relating to her employment following the accident, I have, regretfully, come to the conclusion that the plaintiff, in her direct evidence, led the court to believe that she was unable to work additional hours that she had worked prior to the accident and wanted fewer hours of employment because of the pain working additional hours caused her when, in fact, she volunteered for and obtained additional hours notwithstanding the additional pain she asserts.

[59] Likewise, with respect to the medical evidence and her contention that the pain levels at the time of trial were in the ranges she described, this level of pain is inconsistent with her attendances at her treating physician’s office. As indicated previously, following her return to work in July 2005 I can count, from the clinical records, only one occasion prior to her attendance for a medical/legal report to be provided by Dr. Gorman some 13 months after returning to work. While there are complaints of depression, as already indicated, there is ample clinical notations to indicate pre-existing problems with depression and fatigue which cannot be causally connected to this motor vehicle accident without more.

[60] Although the plaintiff testified that she routinely suffers from pain in her neck at a 7 out of 10 pain level when at work, and frequently rubs her neck as a result, only one witness testified that she had seen the plaintiff sometimes stretching her neck, perhaps once a week, and only occasionally sitting on an exercise ball provided by her employer. With respect to rolling her ankle at work and the resulting limp thereby occasioned, Ms. Polson described herself rolling her ankle frequently at work and limping frequently at work for approximately 3 or 4 times a day, but no witness testified to having seen Ms. Polson limping or rubbing her ankle. While her co-worker Amanda Fraser-Doyle testified that Ms. Polson had slowed down since the accident, this would be inconsistent with the actual hours worked and voluntarily picked up by Ms. Polson after returning to work.

[61] One other matter of evidence also needs to be dealt with. Tricia Spencer, the administrative assistant for West Jet at the Prince George operations, testified to having observed the plaintiff at the Christmas party in December 2006 where she described the plaintiff as “enjoying herself on the dance floor for a relatively substantial time and was unable to notice any pain behaviour while she was dancing”. While Ms. Spencer agreed that she did not have much casual conversation with the plaintiff at this time, she maintained her observations of the plaintiff’s abilities on the dance floor.

Credibility of a Plaintiff is vital in all ICBC injury claims, particularly those where the injuries cannot be verified through objective measures such as X-rays or MRI findings. In such cases courts are very careful in assessing a Plaintiff’s credibility prior to awarding damages for injuries. Cases such as this one are worth reviewing if you are proceeding to trial in an ICBC injury claim to see what kinds of factors the court can consider when weighing a person’s credibility.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
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