ICBC, Chronic Pain, and Fair Settlement
With the exception of experienced BC injury lawyers, most people advancing ICBC claims need to do extensive research to determine fair value for pain and suffering in an ICBC injury claim. One of the best ways to go about this is to look at BC court cases for similar injuries and see just how much, or how little, our courts award for pain and suffering for various injuries.
If you are advancing an ICBC chronic pain case, reasons for judgement were released today that are worth reviewing.
The Plaintiff was involved in a two vehicle accident on January 9, 2006. He stopped his vehicle for a cyclist who was crossing in a marked crosswalk. Shortly afterwards the Plaintiff was rear-ended by a Jeep Cherokee. The impact was significant causing ‘substantial damage’ to the Plaintiff’s vehicle.
The Plaintiff reported several injuries as a result of this rear-end crash including left shoulder pain, dizziness, headaches, neck and back pain, and numbness to his left arm.
The Plaintiff’s family doctor referred him to an orthopaedic specialist who stated that the Plaintiff “has had some soft tissue injuries to the cervical and lumbar spine….he does not require any special investigation as he has no neurological defecits. I would encourage him to return to work‘
Shortly after this time the Plaintiff switched family physicians. His new treating doctor diagnsosed major depression and soft tissue injury to the neck, shoulder and back. Specifically she diagnosed
a left anterior supraspinatus tear and multiple soft tissue injuries of the neck and back, possible muscle spasm, strains, contusions, cervical facet syndrome and discogenic pain…..(and) two other medical conditions, major depression and peptic ulcers, since the MVA in January 2006. I believe these two conditions were precipitated by the chronic pain and stress caused by the accident.
She went on to state that:
(the Plaintiff) has not been able to return to work, his function remains partially impaired and his level of activity is significantly reduced. His chronic pain and his depression symptoms have significantly restricted his ability to perform a range of daily living activities on ongoing basis such as personal self care, meal preparation, basic housework, daily shopping and use of transportation.
The court also heard from an ‘independent medical examiner’ who stated that “permanent disability is not anticpiated as a result of the accident.’ and that ‘the only objective finding (of injury) was that of restricted movement of the cervical spine. All complaints otherwise were of a subjective nature.’
This doctor made some interesting comments about chronic pain, namely that:
Many authors who have studied chronic pain syndromes have demonstrated that patients have been shown to have beliefs and expectations of chronic pain which are critical cognitive facilitators or impediments to the recovery process. The attribution of blame may be an unrecognized factor co-related to pain behaviour, mood disturbance, and poor response to treatment. It is unlikely that (the Plaintiff) is going to change his perceptions of pain until the issues are resolved for him.
The court made it’s key findings at paragraphs 24 and 25 where Justice Rice stated:
[24] I accept that as a result of the motor vehicle accident Mr. Niloufari suffered moderate strains to his neck and back which have caused him substantial pain and suffering over the two years and several months since the accident. I find these injuries have disabled him from any activities, including his work. As it stands now, more than two years have passed since the date of the accident with little hint of improvement in his pain and suffering or capacity to work.
[25] I am satisfied that the plaintiff suffers chronic pain with both physical and psychological components. I am not entirely satisfied that he has done his best to mitigate his loss by exercising and seeking psychiatric and/or psychological advice and treatment. I am not satisfied based on the medical evidence, that Mr. Niloufari should expect to be permanently disabled or disabled at all after a few years from now with diligent attention to his rehabilitation. I would expect him to gradually recover, as Dr. Hill suggested, over the next three or four years, with the expectation he could return to work in a limited capacity within one year.
The court awarded damages for pain and suffering, lost pass of income, loss of future earning capacity, special damages and cost of future care.
The non-pecuniary damage award (pain and suffering) was $63,000.
This case is worth reading for anyone advancing and ICBC injury claim seeking damages for ‘loss of earning capacity’ for Justice Rice’s summary of the law on this topic at paragraphs 75-84 of the judgment.