More on ICBC Injury Claims and the Subjective Nature of Pain
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, highlighting an important truth in injury litigation – it is not up to ICBC’s doctors to decide if a Plaintiff’s pain complaints are legitimate, rather it is up to the Judge or Jury.
In today’s case (Sharma v. Didiuk) the Plaintiff was involved in 2004 rear end collision in Delta, British Columbia. Fault was admitted by the rear motorist. The vehicles did not suffer much damage but the Plaintiff alleged injury.
The Plaintiff’s doctor provided the following evidence with respect to her accident related injuries:
She sustained soft tissue injuries of her back, neck, and shoulders. This pain is present several times a week. It is aggravated by her work as a hairdresser. It is also aggravated by lifting or carrying. She has used Tylenol, heat, anti[?]inflammatories, physiotherapy, and massage as treatment with some variable symptoms. Her recent pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic recurrent in nature. With regular strengthening and stretching exercises she should continue to remain functional with pain. She may require future treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She will likely remain prone to aggravations of her pain with prolonged standing, lifting of her arms to shoulder height, and carrying.
The Defendant arranged for an ‘independent medical exam’ with orthopaedic surgeon Dr. Boyle. Dr. Boyle disagreed with the Plaintiff’s physician with respect to the extent of the Plaintiff’s injuries. Dr. Boyle provided the following evidence:
[66] In his report Dr. Boyle concluded that the plaintiff had suffered a minor myofascial strain to her cervical spine with injury to ligaments, tendons and muscles, and that medical management for this should be in the form of stretching and strengthening exercises and the use of anti-inflammatories.
[67] He also said she may have suffered a very minor strain to her lumbar spine although she was asymptomatic at the time of his examination.
[68] He concluded there was no disability associated with her function as a hairdresser from 2005 onwards and the myofascial strain that she would have suffered would have been very mild at most with a very transient and limited effect on her.
[69] In his opinion there is no disability associated with the events surrounding the motor vehicle accident and no vocational or avocational limitations to be placed on her, with no need for any passive modalities of treatment.
[70] At trial he agrees that pain is usually considered chronic after two years, and that soft tissue injury may not exhibit any objective signs. Even if the soft tissue injuries heal in three months they can still produce current pain.
[71] However, in his opinion the probability that the plaintiff has these complaints ongoing is very low.
The Court went on to accept that the Plaintiff was injured and rejected Dr. Boyle’s opinion. In awarding the Plaintiff $30,000 for her non-pecuniary damages Mr. Justice Truscott made the following comments:
[73] I also accept that the plaintiff’s complaints of continuing pain from her soft tissue injuries have exceeded the expected time period for recovery.
[74] I conclude that Dr. Boyle is saying in his own words that he does not believe the plaintiff when she says she still has continuing pain from injuries in this motor vehicle accident, almost six years later, as he found no basis for that in his examination and in his general understanding of the effects of minor soft tissue injuries.
[75] However, the fact is that I do accept the plaintiff’s evidence when she says she is still suffering pain from soft tissue injuries that she sustained in this motor vehicle accident of April 8, 2004.
[76] I therefore reject the opinion of Dr. Boyle that she does not have any further effects from those injuries, and I will assess the plaintiff’s damages on the basis that she continues to suffer some chronic pain from these injuries caused by the motor vehicle accident….
[92] I conclude the plaintiff’s present pain is intermittent and not continuous and that it depends on what activity she carries out and for how long she carries out those activities.
[93] She was able to continue her schooling full-time after the accident and was able to continue thereafter working close to full-time or at full-time at her hairdressing employments…
[98] Here I accept that the plaintiff’s ability to continue to work full-time has been accomplished with some difficulty because of her injuries as she has to stand and reach for long periods of time which brings about pain and discomfort and exhausts her by the end of the day. Her social activities have also been curtailed.
[99] I accept the prognosis of Dr. Rayavarapu and after reviewing the cases cited by both counsel, I consider a proper award for the plaintiff for non-pecuniary damages attributable to this motor vehicle accident to be $30,000. In assessing non?pecuniary damages in this amount I have already reduced the full value of her injuries by $10,000 to account for the measurable risk of her pre-existing injuries continuing to affect her regardless of this accident.
Only an injured person truly knows the extent of their pain. If a Defendant arranges for an independent medical exam and that doctor minimizes the extent of the injury cases such as this one serve as an important reminder that the Defence Medical Examiner is not the Judge and Jury.