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$40,000 Non-Pecuniary Damages Awarded for Moderate Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westinster Registry (Lehtonen v. Johnston), awarding a Plaintiff just over $60,000 in total damages as a result of a 2005 BC Car Crash.
The car crash was a rear-end collision.  The issue of liability (fault) was admitted and the trial focused on quantum of damages (value of the Plaintiff’s injuries).
The accident was found to be a “very minor” one and appears to fit ICBC’s Low Velocity Impact program as the Plaintiff’s vehicle sustained only $780 in damages.  Notwithstanding the minor amount of vehicle damage the Plaintiff alleged she suffered from serious injuries including a right hip misalignment.
Madam Justice Baker found that many of the Plaintiff’s complaints were not caused from the crash, however, despite the minor nature of this crash the Court found that the Plaintiff did suffer various injuries.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Madam Justice Baker summarized the accident related injuries as follows:

[83] Having considered the evidence as a whole, with particular reference to the medical opinion evidence, I conclude that Ms. Lehtonen sustained a mild injury to the soft tissues of her neck and upper back and a mild to moderate injury to the soft tissues of her lower back as a result of the motor vehicle accident on July 30, 2005.

[84] While the injuries caused discomfort, Ms. Lehtonen did not lose or quickly recovered full range of motion in the affected areas. The neck and upper back symptoms improved significantly within the first six weeks after the accident, although the symptoms recurred from time to time, exacerbated by physical exertion.  The lower back symptoms caused by the accident persisted for about a year but after the first several months have not been proved to be disabling.  Ms. Lehtonen testified that her physical injuries improved steadily over the first six months after the accident and that she did not have an exacerbation of her anxiety or depression related to the accident during that period…

[86] I accept that Ms. Lehtonen continues to have a subjective perception of a variety of symptoms, but I consider it more probable than not that the symptoms she has experienced from the second half of 2006 to present are not caused by the relatively mild soft tissue injuries resulting from the motor vehicle accident and are the result of a complex interplay of social, psychological and emotional factors unrelated to the motor vehicle accident; and fibromyalgia…

[90] I am satisfied that the discomfort from Ms. Lehtonen’s injuries likely did contribute to Ms. Lehtonen’s pre-existing depression and anxiety, although she denied this during the first six months post-accident.  I am also satisfied, however, that Ms. Lehtonen would have had depression even if the accident had not happened, and that any exacerbation of her mental health problems was temporary and minor.  The depression is, in my view, a chronic condition, that waxes and wanes….

[92] I am satisfied that Ms. Lehtonen had recovered from her physical injuries within a year following the accident. I accept that after that time she has continued to experience episodes of lower back discomfort from time to time.  However, her experience of other symptoms after that date is more probably caused by her complex pre-existing and ongoing psychiatric condition; in particular, depression and anxiety, exacerbated by adverse reactions to and, at times, abuse of medications prescribed to treat the depression and anxiety.  I also conclude that Ms. Lehtonen’s later and current subjective symptoms of soft tissue and joint pain are more probably the result of Ms. Lehtonen’s fibromyalgia than any sequelae of the motor vehicle accident injuries…

[94] As Chief Justice McEachern stated in Price v. Kostryba, [1982] B.C.J. No. 1518:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

[95] I might add that the same caution must be exercised when a plaintiff’s recovery not only deviates significantly from the normal course of recovery, but where a plaintiff develops new, different, unusual and more serious subjective complaints long after the event said to be the cause of those complaints.

[96] In saying this, I have not concluded that Ms. Lehtonen has fabricated these symptoms.  I accept that she subjectively perceives these things to be true.  I do not consider her perception of these symptoms to be reliable, however.  I consider it more probable than not that they are subjective physical manifestations of a complex interplay of emotional, physical and psychological factors unrelated to the motor vehicle accident.  Ms. Lehtonen’s statement to Dr. Riar that even the pain from a mosquito bite persists for months indicates that while these symptoms are real to her, they cannot be accepted on any objective evaluation.

[97] I am not persuaded that any symptoms that Ms. Lehtonen continued to experience subjectively more than 12 months after the accident, except for episodic and non-disabling muscle tightness and discomfort in her lower back, were caused by the motor vehicle accident.

More on BC Injury Claims, Pre-Existing Conditions and Causation

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Spine Injury Cases, Uncategorized. 64 Comments on More on BC Injury Claims, Pre-Existing Conditions and Causation

(UPDATE:  The below decision was upheld by the BC Court of Appeal in Reasons for Judgement released on January 19, 2012)
Reasons for judgment were released today by the BC Supreme Court (JFC v. Ladolcetta) awarding a Plaintiff just over $500,000 in total damages as a result of a serious BC motor vehicle collision.
The Crash occurred in 2005 and was a near head-on collision for which the Defendant was found 100% at fault.  As a result of this crash the Plaintiff suffered various serious injuries including a compression fracture in the low back, a brain injury with post concussive problems and various cuts, bruises and soft tissue injuries.
The majority of the judgement dealt with the Plaintiff’s pre-existing psoriasis and psoriatic arthritis and the extent to which this was affected by the collision.
Mr. Justice Brown concluded that in addition to the above serious injuries the Plaintiff’s pre-existing conditions were made significantly worse by the car crash.   The Plaintiff’s non-pecuniary damages were assessed at $150,000 although this award was then reduced to $120,000 to account for the plaintiff’s ‘failure to mitigate’.
In summarizing the Plaintiff’s accident related injuries and their effect on his life Mr. Justice Brown found as follows:
[112] I find no sufficiently persuasive reason to doubt that the plaintiff sustained significant soft tissue neck, thoracic, lumber spine, right shoulder, ankle, right knee and other soft tissue injuries, as set out in paragraph 3 of these reasons, together with a compression fracture in the lumbar spine, and ongoing sequelae. The ultimate residual effect of these injuries absent the influence of the plaintiff’s psoriatic arthritis will have to wait on the full remediating effects of medication, unfortunately unknown to the date of trial. However, given the history and opinions in this case, I find that the evidence supports a finding that, more likely than not, he will continue to experience some residual symptoms that may be alleviated to a degree by further therapy….
In this case, a belief based on clinical experience that physical or psychological trauma can initiate or influence the course of both psoriasis and psoriatic arthritis, is one, based on the sufficiently weighty evidence heard in this case, widely held among dermatologists and rheumatologists in their respective fields…
[153] Given the evidence before me from rheumatologists and dermatologists, as well as Dr. O’Shaughnessy and other experts called, there are sound and substantial reasons for concluding that emotional trauma/stress, as well as physical trauma, may exacerbate both psoriasis and psoriatic arthritis…
I find the evidence, including the plaintiff’s, persuades that the plaintiff’s psoriasis and psoriatic arthritis worsened sufficiently soon after the accident…

[158] What is important here is that the evidence sufficiently establishes that the plaintiff was struggling when he returned to work in mid-February 2006 experiencing joint pain and limitation that he thought he needed to hide for the sake of job security. He saw some improvement in the summer, to be expected because of the sun’s benefits and the fact that he had most of June and July off work, presumably a time when he golfed and was in the sun more. As it is, I note that by early October 2006, he saw Dr. Hong, reporting a flare-up. I accept the plaintiff’s evidence that over-all he had experienced a change in the pattern of the disease from a slow gradual worsening over time between treatments to one of intense flares involving both skin and joints. The basic pattern and course of the disease had manifestly altered; I accept the plaintiff’s evidence that pre-accident he never had to abrade the skin for over two hours each day; that the plaques and other aspects of the disease had taken on an aggressive flaring pattern. This is not to overlook the fact that the worsening condition went largely untreated, which likely worsened his situation; but that points to questions of mitigation discussed below.

[159] Further, as also discussed below, I find that the evidence well establishes that accident-induced ongoing emotional trauma and persistent stress are the pre-dominant and most significant exacerbating factors of both the plaintiff’s psoriasis and psoriatic arthritis.

[160] I also reject the defence argument that the onset of psoriatic arthritis suffered by the plaintiff was too temporally removed from the accident to be related to it. There is sufficient accepted evidence to show that the plaintiff’s psoriatic arthritis flared within a few weeks of the accident and involved new areas and that to the date of trial he has not returned to his pre-accident level of functioning…

[216] It must be borne in mind that although the plaintiff in this case did suffer from a psoriatic arthritis condition pre-accident, it was very mild; and he was able to work in what were heavy labor intensive positions. Accepted evidence indicates that the plaintiff’s condition, both in relation to his psoriasis and psoriatic arthritis, were set upon a new and more aggressive course after the accident. This was not a short term exacerbation—which said, is not to over look the contribution that the plaintiff’s failure to seek or follow treatment advice played in his worsening condition psoriasis. Further, I find that the plaintiff suffered significant sequelae from his brain injury; and further, and very significantly, as earlier explained, that his other physiological and emotional accident-induced stressors amplified his symptoms, which gradually became worse over time. He has obviously suffered a serious depression and remains vulnerable in that regard. Moreover, he suffered significant soft tissue injuries, the ultimate prognosis for which is not certain. As Dr. Shahid explained, most people do make a good fairly uneventful recovery from compression fractures and are able to return to work; but a significant proportion of those people continue to suffer pain and disability and some of those are unable to return to labor intensive work.

[217] Further, the plaintiff has suffered a substantial loss of enjoyment of life, is now unable to participate in golf and other activities he enjoyed before the accident. With successful treatment, he may be able to return. As I view the evidence, his suffering, both physiological and physical, has been quite intense, albeit partly in relation to his failure to follow treatment recommendations.

[218]     Considering all of the evidence and the submissions of counsel, for non-pecuniary damages I award $150,000, and taking into account the plaintiff’s failure to mitigate before the date of trial, reduced to $120,000.

In addition to the above, today’s case contained an interesting discussion of causation when it comes to traumatic injury.  Often in ICBC Injury Claims different experts come to different conclusions as to the reasons for a Plaintiff’s disabilities.  In this case there was a debate whether many of the Plaintiff’s problems were due to a head injury, depression, chronic pain or perhaps other causes.  Mr. Justice Brown gave useful reasons holding that it is not necessary to pigeon-hole a Plaintiff’s injuries into specific categories to find that a compensable loss occurred.  Specifically he stated as follows:

I find the conclusion that most accords with the testimony and medical evidence that I have accepted is this: All of the plaintiff’s injuries and associated symptoms, including those from his mild concussive frontal lobe injury, his subclinical PTSD and its symptoms, the stress and anxiety he experienced related to pain from his soft tissue injuries, his incrementally worsening psoriasis and psoriatic arthritis, and his inability to work operated over time to produce a serious depression. These factors in varying degrees punctuated the plaintiff’s experiences from the time of the accident onwards, and produced the levels of psychological stress that produced the ongoing exacerbation of the plaintiff’s condition that plaintiff experts identified as the cause of the worsening of the plaintiff’s psoriasis and psoriatic arthritis. Given the extensive evidence heard, I find this consilient view of the evidence and medical opinions removes the need to reduce judicial findings to specific diagnostic categories; at the same time more accurately reflecting the actual subjective experiences of the plaintiff. These causative stressors were caused directly or indirectly by the accident, subject to consideration of mitigation arguments.

The above quote, particularly the bolded part, could prove persuasive in ICBC Injury Claims where experts agree that a Plaintiff suffers a deterioration in health and functioning following a colliison but cannot agree on the exact medical cause for the same.