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Chronic Pain Syndrome and Fractured Spine Net $60,000 for Pain and Suffering

In a judgement released today a total of $81,694 was awarded in compensation as a result of a 2004 ‘chain rear end’ accident in BC.
The accident involved mutliple vehicles and the force of the crash was enough to write off the Plaintiff’s car. Fault was admitted by ICBC leaving only quantum of damages at issue.
As a result of crash the court found that the Plaintiff suffered from a fracture at T12 and a disc injury to T11 / T12 and perhaps T9 / T10 (basically fractures to the mid back) and that the Plaintiff ‘has gone on to develop a chronic pain syndrome with discomfort, sleep disturbance and depression.
The court went on to award $60,000 for pain and suffering, $20,000 for Loss of Earning Capacity and just over $1,000 in special damages (out of pocket expenses as a result of the accident.)
This case is worth reading for the judge’s discussion of credibility. When people complain of ‘chronic pain’ in an ICBC claim their credibility is always at issue. The reason is obvious, pain cannot be measured objectively. People can only describe their pain and a judge or jury can believe this descrpiton or reject it. In this case the judge had problems with the Plaintiff’s credibility but accepted that her chronic pain syndrome was legitimate.
More interesting is the judge’s comments on the credibility of the expert witnesses that testified. In this case ICBC, on behalf of the Defendant, hired an orthopaedic surgeon to examine the Plaintiff. He testified, in essence, that the Plaintiff had no serious injuries or ongoing problems. The court rejected this doctor’s evidence finding that ‘it was obvious to me that he had not spent as much time, nor was he as objective in his assessment of the Plaintiff (as her own physicians were). (ICBC’s doctor) impressed upon me that he was more of an advocate for ICBC than an objective expert, and I therefoe attach little wieght to his evidence.
This case is also worth reviewing for the judge’s great summary of the law relating to future wage loss at paragraphs 34 and 35.

$108,924 Awarded for Chronic Low Back Pain

Reasons for judgement were released today awarding a Plaintiff just over $100,000 in compensation for injuries and losses arising from a 2006 BC car accident.
This was primarily a low-back soft tissue injury case. The Plaintiff did have other injuries but these largely resolved.
Fault was admitted for the accident, as such, the trial focussed exclusively on quantum (value of the injuries).
In reading the reasons for judgement Mr. Justice Metzger was obviously impressed with the Plaintiff. ICBC’s defence (assuming of course that the defendants were insured by ICBC) was largely rejected.
The court summarized the plaintiff’s injuries and course of recovery as follows:

[14] I am satisfied that within seven to ten months of the accident, the plaintiff recovered from any significant discomfort or effect of injuries to his shoulder, wrist, right foot and right side. Although Mr. Raper’s low back pain does not prevent him from working, or from mountain scrambling, I am satisfied that his physical ability in these pursuits has been compromised. His ability to perform his work to his previous standards and to enjoy his sports activities has been decreased.

After naming some precedents dealing with low back injuries the court went on to award $35,000 for non-pecuniary damages (pain and suffering).
This case is worth reading for the court’s discussion of future wage loss or loss of future earning capacity. In this case the Plaintiff returned to work shortly after the accident and continued to work through to trial. Despite this the court found that he was entitled to an award for loss of future earning capacity because he could no longer do general carpentry work (something that he has done in the past during slow cycles of employment) and that he lost the opportunity tow obtain a management position in his current line of work. In these circumstnaces the court awarded $55,000 for loss of earning capacity.
This case, and many like it, goes to show that simply because a person recovered from injuries to the point that they are able to return to work does not preclude an award for future wage loss. There are many factors to consider when valuing a future wage loss in an ICBC claim. In this case Mr. Justice Metzger did a good job summarizing the law and repeated one of the quotes that all ICBC claims lawyers should be aware of, namely that:
Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning ability.

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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.

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