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ICBC Pain and Suffering Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized.

With the Canucks losing game 6 and the series to the Blackhawks I figured its a fitting time to write about Pain and Suffering Claims in BC.
In the first case, Chan v. Kao, the Plaintiff suffered a left shoulder injury as a result of a 2006 motor vehicle collision.   Mr. Justice Verhoeven had credibility concerns with respect to some aspects of the Plaintiff’s testimony.  Despite this he concluded that “I have no difficulty in finding that Mr. Chan did in fact injure his left shoulder in the motor vehicle accident“.
In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering) at $22,000 the court summarized his injuries and prognosis as follows:
[65]            I accept that Mr. Chan has continued to have shoulder problems and pain since the accident.  The extent to which this has affected his work is impossible to gauge, in view of the unreliability of his evidence.  It seems likely that Mr. Chan has worked at various times and places since the accident, but has chosen not to testify about that work…

72]            In summary, I accept that the plaintiff’s left shoulder was injured in the motor vehicle accident, and that he continues to suffer, to some extent, from shoulder difficulties initially caused by the accident.  The evidence as to the extent to which the ongoing shoulder problem causes the plaintiff ongoing difficulty and disability with respect to his ability to work is subject to considerable doubt, due to the unreliability of the plaintiff’s evidence in this respect, and the lack of corroborating evidence.

[73]            While Dr. Lui’s prognosis of permanent disability is overly pessimistic, both orthopaedic surgeons are of the view that there are ongoing problems in the shoulder which require treatment.  In my view, treatment options have not been adequately explored.

In addition to referencing several cases dealing with pain and suffering values in BC for shoulder injuries this claim is worth reviewing to see how Mr. Justice Verhoeven dealt with his concerns regarding the credibility of certain aspects of the Plaintiff’s evidence.

The second ICBC Pain and Suffering Claim released today (Mattu v. Fust) involved a 2004 collision.  The Plaintiff was 39 years old at the time.  His vehicle was rear-ended with enough force to push it into the vehicle ahead of him.

The Plaintiff suffered various soft tissue injuries leading to chronic pain and headaches.  The court found that the effects of these would likely be permanent.  Madam Justice Brown summarized the medical evidence of the Plaintiff’s treating family physician as follows:

 

[31]            Dr. Parhar has been Mr. Mattu’s family physician since April 2004. He provided three reports to the court. In his first report of November 1, 2004, he diagnosed Mr. Mattu with paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches.  He had received ice, heat, rest, exercises, massage therapy, kinesiology, acupuncture, herbal medicine and medications: anti-inflamatories, analgesics and muscle relaxants.  With respect to prognosis and recommendations, Dr. Parhar was impressed by Mr. Mattu’s motivation to recover and try different treatments, but was concerned that he may be trying too many modalities.  He recommended limiting treatment to massage and physiotherapy and increasing active modalities such as swimming and exercises.  He anticipated further treatment and improvement.

[32]            In his report of May 26, 2006, Dr. Parhar found that Mr. Mattu continued to have decreased range of motion in the cervical spine, tenderness in the paracervical and paralumbar regions.  He found muscle spasm in the paracervical and paralumbar regions.  His diagnosis remained the same.  His prognosis for full recovery had worsened.  Mr. Mattu had tried a variety of treatments with minimal success.  Dr. Parhar’s recommendations were unchanged, but he thought that Mr. Mattu’s condition had plateaued.

[33]            In his final report of September 16, 2008, Dr. Parhar considered the MRIs of Mr. Mattu’s spine taken September 19, 2006, and July 28, 2008, and concluded that Mr. Mattu’s injuries included cervical and thoracic disc herniations.  He said: “… it is unclear if the cervical and thoracic disc herniations were caused by the motor vehicle accident … but certainly, this motor vehicle accident made these spinal lesions symptomatic.”  He commented on Mr. Mattu’s efforts to recover: “… pursued many more modalities of treatment than most patients would have. Despite all of these modalities his pain symptoms persist.”  He concluded that the prognosis for a full recovery was poor, that Mr. Mattu’s condition had plateaued and further improvement in his functioning or symptomatology was unlikely  

In awarding $60,000 for the Plaintiff’s non-pecuniary loss injuries and their effect on the Plaintiff’s life the court accepted the family physicians evidence and stated as follows  

[60]            I found the evidence of Dr. Parhar to be very helpful.  Dr. Parhar has seen Mr. Mattu regularly since shortly after the accident.  I accept his opinion that Mr. Mattu suffered paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches from the accident; that his condition has plateaued; and that it is unlikely there will be further improvement.  I also accept the opinions of Drs. Parhar, Hershler and Hunt that the accident likely caused the disc herniations in Mr. Mattu’s back to become symptomatic.  Mr. Mattu will continue to need chiropractic treatment from time to time and would benefit from a personal trainer.

[61]            I have considered the cases which counsel have provided to me.  In my view, an appropriate award for non-pecuniary loss is $60,000.

BC Personal Injury Claims Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 55 Comments on BC Personal Injury Claims Round-Up

On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.
In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:
In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision.  In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:

[101]        The trial occurred about five years following the accident.  Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities.  He is stoic and is inclined to push through pain until it becomes intolerable.  He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers.  He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.  

[102]        The evidence demonstrated on a balance of probabilities that these problems were caused by the accident.  Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods.  All the problems had resolved prior to the accident.  The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.

A highlight of this decision for me was the court’s discussion of credibility.  One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff.   That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:

[6]                The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain.  I quote portions of pages 397-399 of those reasons for judgment:

The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

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.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.

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The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC.  The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome.  Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue.   The Plaintiff was found 60% at fault for the collision.

In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:

[127]        I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back.  Further, I am satisfied that she developed and continues to suffer chronic pain as a result.  I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.

[128]        I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:

…her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

[129]        Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail.  He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.

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The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC.   The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches.  In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:

[112]        The issue of causation in this case is determined by applying the factors in Athey.  Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event.  I disagree.  I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident.  Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35. 

[113]        Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation.  In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch.  The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future.  The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication.  Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004.  I accept that he has tried every mode in an effort to alleviate his symptoms.  In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help.  I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.

[114]        Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness.  These are frustrating and to some extent debilitating.  He also has jaw, or temporal mandibular joint arthralgia and myofascial pain.  He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue. 

[115]        It is understandable that these conditions have affected him emotionally.  The opinion of Mr. Koch corroborates the plaintiff’s evidence.  I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms. 

I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims.  As always, I welcome any feedback from all my visitors.

$24,515 Damages Awarded for Moderate Soft Tissue Injury

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

Reasons for judgement were released today awarded damages as a result of injuries sustained in a 2005 Kamloops, BC car crash.
The Plaintiff’s vehicle was rear-ended as she slowed to make a right hand turn.
Normally in such rear-end cases liability (fault) is admitted but in this case liabilty was disputed.  The Defendant claimed that the accident was caused by the actions of the plaintiff when she ‘accelerated in front of him, cut him off and themn braked quite dramatically at the corner (of the intersection).’
The court rejected this defence and found that “this is not a case where the evidence supports a conclusion that the plaintiff’s vehicle cut in front of the defendant in such a way as to alleviate his responsibility‘.  The defendant was found 100% to blame.
In terms extent of injury, the court made the relevant findings at paragraphg 50 of the judgement, which I set out below:
[50]            I conclude that (the Plaintiff) sustained a moderate soft tissue whiplash injury in December 2005 which caused pain and discomfort to her neck and back and resulted in her experiencing headaches.  These symptoms were initially acute, causing her to miss approximately three weeks of work and necessitating that she take pain medication and treatment, most notably physiotherapy.  The pain and discomfort at times extended to her hip area.  It gradually subsided with the passage of time.  It was significantly resolved within three to four months of the accident, but she continued to experience some discomfort and limitation of her activities, albeit on a gradually improving basis, over time, up to the point of trial.  At trial, all of the complaint of headache had resolved but there was some lingering discomfort and stiffness in her neck and back.  That discomfort is essentially resolved at this time, and there is every reason to conclude that she has not sustained any permanent damage.  With proper exercise and self-care, there will be a complete resolution
The court awarded $22,000 for these moderate soft tissue injuries, $2,163.21 for lost wages and $351 for special damages.
This is a short crisp judgement dealing with issues that often arise in ICBC claims.  This case is worth reviewing for anyone involved in an ICBC injury claim to see some of the factors court’s consider when valuing soft tissue injuries and addressing the issue of fault in a rear-end crash.
 

$70,000 Pain and Suffering for Neck Injury and Debilitating Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today, Mr. Justice Bernard of the BC Supreme Court awarded a Plaintiff just over $200,000 in compensation for losses as a result of a 2005 BC car accident.
The accident involved a left-hand turning defendant who failed to see the Plaintiff’s vehicle. The result was a significant, near head on collision. Fault was admitted leaving only the issue of quantum of damages to be decided at trial.
The court’s key findings of fact were made at paragraphs 34-35 of the judgement where it was held that the Plaintiff suffered from debilitating headaches as a result of the BC car crash, that the headaches continue to plague him and that the source of these headaches is the neck injury the Plaintiff suffered in the crash. The court also found that these injuries where likely to plague the Plaintiff for 3-5 years following the trial.
The Plaintiff was a young man starting out in a career in the entertainment industry. The court accepted that the injuries took away his ability to take full advantage of various opportunities that were open to him in his career and this ‘loss of oportunity’ will continue into the future as a result of the on-going injuries.
In the end the court assessed damages as follows:

Non-pecuniary $70,000

Special $5,642

Loss of Opportunity $125,000

Future Care $14,520

This case is interesting for the court’s comments on the use of the various doctor’s clinical records at trial. As any ICBC claims lawyer knows, Plaintiff’s in personal injury claims are often exposed to hard cross-examinations based on previously recorded statements contained in medical records.
When you go to the doctor he/she usually notes your complaints. These ‘clinical notes’ are often put to use by ICBC lawyers to cross examine a Plaintiff’s testimony discussing the extent of injuries and symptoms. Here, the court found that the Plaintiff held up to cross examination very well and made some very practical comments about the reliability of clinical records, namely:

[35] I accept (the Plaintiff’s) evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance. Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful. It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes. If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

[36] Physicians are not investigators. They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes. The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness. It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

[37] I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

$75,000 Pain and Suffering Awarded for Headaches and Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized.

Reasons for judgement were released today awarding a Plaintiff just under $150,000 damages in total as a result of two ICBC claims.
One thing I’ve been meaning to point out for some time on this blog is that in BC tort claims (which include car accident claims), ICBC is almost never named as a party to the lawsuit. There are a few circumstances when it is appropriate to name ICBC directly but these are few and far between. It is a safe bet that if a case goes to court in BC involving a BC car accident it is more often than not an ICBC claim. I know that this case involves ICBC (despite them not being named as a party) because the defence lawyer is an ICBC in house lawyer from Kamloops. When you are looking at precedents to help you value your ICBC case to determine what a fair settlement, you should know that most any BC car accident case serves as a valuable precedent because even if ICBC is not mentioned or is not the insurer in any given case, each BC case serves as an example of how our courts value injuries in BC.
Getting back to the case – here the Plaintiff was injured in 2 car accidents for which others were at fault. The first in 1998, the second in 2004. In the first accident the Plaintiff was a passenger in a pick-up truck involved in a roll-over accident. In the second the Plaintiff was a passenger in a vehicle that was T-boned. Both crashes were significant and resulted in injuries.
This case is a good example of how complex chronic pain ICBC claims can be when they head to trial. In this case the court heard from over 10 lay witnesses who could comment on their observations of the Plaintiff’s injuries (or lack thereof by the witnesses called by the ICBC defence lawyer). The court also had access to medical evidence from over 6 doctors and other specialists.
The Plaintiff presented a case of chronic pain affecting every single aspect of her life. The defence case was one of injury which significantly improved after 2 years.
The court concluded that, although the Plaintiff ‘exaggerated her claim to some extent‘ she ‘has suffered to some degree from headaches and chronic pain over the past 10 years, and will continue to suffer these in the future, over some limited period of time. Some of her complaints are psychosomatic and she may benefit from counselling‘.
The court awarded damages as follows:
The plaintiff shall recover damages as follows:

– general damages: $75,000

– past income loss: $680

– cost of future care: $4,271.72

– diminished future earning capacity: $60,000

– special damages: $7,753.60

In doing so the court recited some good quotes from previous BC judgements addressing the assessment of damages. These precedents are worth knowing for anyone advancing and ICBC injury claim. Particularly the court referred to a great BC Court of Appeal case summarizing the principles used in the assessment of damages in personal injuries, the key quote being:

The most basic of those principles is that a plaintiff is entitled to be put into the position he would have been in but for the accident so far as money can do that. An award for loss of earning capacity is based on the recognition that a plaintiff’s capacity to earn income is an asset which has been taken away. Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset. In some cases, projections from past earnings may be a useful factor to consider in valuing the loss but past earnings are not the only factor to consider.

Because damage awards are made as lump sums, an award for loss of future earning capacity must deal to some extent with the unknowable. The standard of proof to be applied when evaluating hypothetical events that may affect an award is simple probability, not the balance of probabilities. Possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. These possibilities are to be given weight according to the percentage chance they would have happened or will happen.

The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence … [The factors] include:

[1] whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

[2] whether the plaintiff is less marketable or attractive as an employee to potential employers;

[3] whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

[4] whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

The task of the court is to assess damages, not to calculate them according to some mathematical formula. Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. The valuation may involve a comparison of the likely future of the plaintiff if the accident had not happened with the plaintiff’s likely future after the accident has happened. As a starting point, a trial judge may determine the present value of the difference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry. The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

The court then did a great job of summarizing the two approaches when addressing future wage loss and ICBC claims, summarizing the law as follows:

There are two methods of assessment under this head of damages, although both have the same outcome. The court can either use the “real possibility” approach, and compare the plaintiff’s likely earnings, had she not been injured, with the income she likely now earns, factoring in the positive and negative contingencies; or the court can value the loss of earning capacity as a capital asset (as Finch J.A., as he then was, suggested in Pallos v. ICBC (1995), 100 B.C.L.R. (2d) 260 (C.A.)).

More on Soft Tissue Injuries, ICBC, and Expert Evidence

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

Reasons for judgement were released today awarding a Plaintiff $12,000 for ‘pain and suffering and loss of amenities‘ (non-pecuniary damages) for ‘a mild soft tissue injury which had essentially cleared within 3 months or so. ‘.
The Plaintiff was rear-ended in 2006 in North Vancouver. The court found that the impact was significant. The Plaintiff complained of headaches, neck pain, low back pain, mid back pain, left elbow and forearm pain and occasional pain shooting to his knees.
In what can be described as a very unusual occurrence, the trial proceeded without any medical opinion evidence addressing the extent of injury. The Plaintiff attempted to have his GP testify but the court would not permit it as proper notice of the ‘expert opinion’ was not provided per Rule 40-A.
The court admitted the doctor’s clinical notes into evidence. The Plaintiff then tried to treat these as notice of what the doctor was going to testify to. The court found this improper and did not permit the doctor to give opinion evidence stating that:

During the trial and following submissions on the issue, I ruled that medical/clinical records cannot be said to meet what was meant by the above-quoted Rule.

[12] In my view, the basis of Rule 40A is to provide adequate notice of evidence which is to be tendered by way of an expert’s opinion to avoid trial by ambush, to avoid unnecessary delays, and to generally permit trials to be run in an orderly fashion. Use of clinical records in the manner suggested by counsel for the plaintiff does not approach, let alone meet, that objective. Rarely is a concise and clear expression of any opinion capable of being gleaned from such records, provided that they can even be deciphered, which is indeed problematic in this case. Further, there is usually nothing in those records that might clearly identify what, if any, of the facts contained therein are being relied upon for any such opinion. Finally, clinical records often contain consultation reports which, while they may be evidence of their existence, most probably cannot be relied upon without proof of the facts or opinions contained in them. I am sure that there are other objections as well.

[13] To have permitted Dr. Marcos to testify as to his opinion on the basis that his clinical records amounted to compliance with Rule 40A would, in my view, have been impermissibly prejudicial to the defendant. In that regard I note that in this case none of the grounds enumerated in Rule 40A(16) had been met. Thus, I am faced with the task of assessing damages due to Mr. Murray based upon his largely uncorroborated testimony alone. I am obliged to be mindful of the observation of Chief Justice McEachern in Price and Kostryba where he said the following:

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.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.

The court went onto award $12,000 for pain and suffering and $180 for special damages.
This case is a great reminder of the need to comply with Rule 40-A if you are advancing an ICBC injury claim in Supreme Court and wish to call expert evidence to give the court an opinion about injuries, causation, future treatment, and prognosis. Failure to do so can result in the court not admitting the evidence which can badly damage an ICBC claim. Here the court expressly stated that “although an opinion of a medical expert such as a medical/legal report from (the Plaintiff’s) GP may have provided a foundation for a factual finding of continuing pain and discomfort, I unfortunately do not have the benefit of such an opinion.”
Another note-worthy result of this judgement is the apparent ‘cost’ consequences.
From reading paragraphs 25-29 of the judgement it appears that the lawyer for the defendant made a formal offer of settlement prior to trial which was greater than the judgement. In such circumstances a defendant can be awarded ‘costs’ for the trial. In this case the court awarded $4,400 in costs which would have to be subtracted from the judgement amount prior to the Plaintiff getting paid. In addition, the Plaintiff would not be reimbursed disbursements for the trial and would be responsible for the Defendant’s trial disbursements. After taking all this into account the true value of the judgement may in fact be $0. When considering ICBC claim settlement it is very important to consider the likelihood of beating ICBC’s formal offer at trial.

ICBC Claims, Wage Loss, and Loss of Overtime Opportunities

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized.

In reasons for judgement released today Madam Justice Dillon of the BC Supreme Court awarded an injured Plaintiff just over $200,000 in damages as a result of a ‘hit and run’ accident.
The Plaintiff was 56 at the time of the BC car crash. He was on his way to work when he was rear-ended. The crash was significant enough to push the Plaintiff’s car the length of a city block prior to coming to a stop. The Defendant ‘took off around a corner” after the collision.
The Plaintiff is an apparently stoic man who returned to work despite being injured in this crash. He continued to work for several days ‘before (his) neck and back pain, headaches and dizziness steadily increased to the point that (he) was unable to perfrom the heavy work of a millwright.’
The Plaintiff was off work for almost 6 months prior to returning to work full time. Once returning he struggled and needed assistance from his work partners. He also struggled in taking advantage of over-time opportunities.
As in many ICBC injury claims that go to trial, the court heard from various doctors including an orthopaedic surgeon, a physiatrist, a neurologist and the Plaintiff’s GP. Again, as is common in ICBC injury claims, the doctors testifying had varying takes on the nature and severity of the Plaintiff’s injuries and their connection to the car accident.
No issue was taken a trial as to who was at fault for this rear-end accident. The trial focused on quantum of damages (value of the injuries). The theory advanced by ICBC’s expert was that, while the Plaintiff was injured, the Plaintiff ‘probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine‘.
The court heard evidence from the Plaintiff’s doctors that he had various injuries that would likely impact him well into the future.
The court’s key finding as to the extent of injury can be found at paragraph 28 where Madam Justice Dillon noted that:
[28] There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident. Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement. He continues to have headaches. His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part. This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made. He has suffered a loss of lifestyle and recreational activity.
The court awarded $80,000 for ‘general damages’ (pain and suffering).
The court also made an award for past wage loss, past loss of overtime opportunities and loss of future earnings.
This case raised some common issues which often arise in ICBC claims. Particularly the amount of past loss income when a Plaintiff returns to work but is not able to work as many overtime shifts. I recommend this case for anyone involved in an ICBC injury claim who has missed overtime work as a result of injuries. This case gives an example of how this issue can be dealt with at trial. The personal injury lawyer representing the Plaintiff capably called evidence addressing wage loss and overtime and in the end the court addressed this loss fairly.
In awarding money for loss of future wages, the court noted that “there is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.’ and also that, given the Plaintiff’s age and injuries, that he would have ‘a difficult time finding work if his (current) job ended‘, As a result of this the court awarded $70,000 for loss of future earnings / loss of earning capacity.
Lastly, the ICBC lawyers argued that “damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist“
This argument is known in law as ‘failure to mitigate’. If a person injured in an ICBC claim does not take reasonable steps to recover from their injuries the value of compensation can be reduced.
The court summarized the law of ‘failure to mitigate’ as follows:
[44] To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37). The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)). The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).
The court rejected ICBC’s failure to mitigate arguments.
This case illustrates just how important credibility is in ICBC injury claims. The court clearly liked the Plaintiff and he made a good impression on the judge. His stoic attitude certainly helped. Contrary to what some believe, having a tough attitude in the face of injuries does not hurt the value of an ICBC case, as this case illustrates, this postitive attribute can in fact add to the credibilty of an injured person and help result in a good trial result.

Damages of $159,857 Awarded for Soft Tissue Injuries and Migraines

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court compensating a Plaintiff for accident related injuries.
The trial concerned a 2001 BC car accident. Her vehicle was struck in a down-town Vancouver intersection by a left-turning van. Liability (fault) was admitted leaving only the issue of quantum (value) of injuries and losses.
The impact was reasonably significant causing the Plaintiff’s head to jerk to the right and hit the window, then snap back.
At the time of the accident the Plaintiff was a 38 year old operations manager at a Vancouver travel agency. As with many ICBC claims that head to trial the Plaintiff’s pre-accident health was explored at trial in some detail. The court found that, prior to the Vancouver car accident, the Plaintiff ‘continued to suffer regularly from migraine and tension headaches, and from neck and back pain due to stress and postural strain. (the Plaintiff’s) tension induced neck and shoulder pain sometimes precipitated migraines.’
The court concluded that despite these pre-accident problems, the Plaintiff ‘continued to funciton without significant compromise‘ prior to her Vancouver car accident.
As is often the case in ICBC injury claims, the court heard from various medical experts including a psychologist, a psychiatrist, an orthopaedic surgeon and an occupational therapist.
After hearing the competing evidence the court found that “the increase in (the Plaintiff’s) headaches and neck and shoulder pain is causally related to the soft tissue injuries she sustained in the accident. I find that her increased neck and shoulder pain sometimes leads to full-blown migraines. In addition, it is related to other painful headaches that she experiences from time to time.”
The court accepted the expert evidence of Dr. Robinson who is a highly-regarded BC neurologist who specialises in headache disorders. He testified in part that “when patients with a stable migraine disorder are exposed to neck trauma they sometimes suffer an indefinite aggravation of their headaches. Due to the neck pain caused by trauma such patients develop a new way to get headaches, which may or may not develop into full blown migraines“.
In terms of prognosis, the court found that ‘with treatment, (the Plaintiff’s) headaches will probably continue to improve over the course of the next five years.‘ and that ‘the low grade neck and shoulder pain caused by the accident will probably persist indefinitely. As a result some aggravation of (the Plaintiff’s) pre-existing headache condition will also persist‘.
The court awarded $65,000 for non-pecuniary damages (pain and suffering). In doing so the court noted that ‘non-pecuniary damages are awarded to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The compensation awarded should be fair and reasonable to both parties…for purposes of assessing non-pecuniary damages, fairness is measured against awards made in comparable cases. Such cases, though helpful, serve only as a rough guide‘.
Thanks to these reasons for judgment, British Colmbian’s now have one more rough guide to help assess the fair pain and suffering value for lingering soft tissue injuries, aggravation of pre-existing injuries and migraine headaches when considering ICBC claim settlement.
This case is also worth a quick read for anyone advancing a claim for loss of earning capacity (future wage loss) as the court does a good job summarizing some of the leading legal precedents in this area at paragraphs 151-155 of the judgment.
The court concluded that, as a result of the Vancouver car accident, the Plaintiff ‘is less able to complete the same high volume of computer based work she could before before the accident and it it sometimes obvious that she is exhasted. In these circumstances, it is apparent that her earning capacity, viewed as a capital asset, has been impaired.’ The court went on to award $75,000 for this loss.

Car Accidents, Post Trauma Headaches and ICBC Claims

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Dental Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 71 Comments on Car Accidents, Post Trauma Headaches and ICBC Claims

Short clear reasons for judgment were released by Mr. Justice Savage of the BC Supreme Court yesterday awarding a Plaintiff compensation for car accident related headaches.
This is one of the crispest judgements I have read in quite some time.  I recommend reading the full judgment for anyone advancing an ICBC pain and suffering claim for headaches as the issues are succinct in this case and it does not get bogged down in legalese.
The Plaintiff was injured when she was 4 years old.    She was in a proper infant car seat in her family van when it was broadsided by the defendant who failed to stop at a stop sign.  The accident was in 2002 and the claim finally went to trial in 2008.  For those of you not well versed in ICBC injury claims I should point out that there is nothing unusual about this timeline.  In infant injury claims in BC, most limitation periods are delayed until the infant’s 19th birthday.  One of the reasons for this is because doctors often can’t give a prognosis for an infant’s injuries until they reach adulthood.
In this case most of the Plaintiff’s injuries were not disputed.  She suffered from a broken tooth, some injury to her legs which healed in a few months, soft tissue injuries to her neck and back which took about one year to heal.
What was at issue was headaches.  The Plaintiff claimed that she had on-going headaches over 5 years after the accident and that these were caused by the accident.  The defendant said there are other potential causes for the headaches such as migraines or other trauma.  It is worth pointing out that such a ‘causation’ argument is typical in most ICBC injury claims that go to trial.  Usually the court hears competing theories about the extent of injury and the cause of injury.  (click here to see an example of just how far apart 2 sides can be in an ICBC injury case involving headaches)
The court accpeted that the ongoing headaches were indeed caused by the accident and summarized the accident related injuries as follows: “very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.”
Mr. Justice Savage noted that the headaches have persisted for some six years althogh there has been some improvement.  He went on to value the non-pecuniary loss (pain and suffering) for these headaches at $35,000.

More on LVI's, ICBC Claims and Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Whiplash Cases, Uncategorized.

There is no shortage of opportunity to blog about ICBC LVI (Low Velocity Impact) cases as these seem to go trial frequently.   While each case is unique and have varying outcomes based on the severity of injury, the courts reactions to the ‘no crash no cash’ position often advanced on ICBC’s behalf seems to end in a predictable result.  It is typically rejected.
The issue always is, on a balance of probabilities, does the evidence establish that the Plaintiff was injured in the crash?  Not “how significant was the vehicle damage”.
In yet another example of BC courts reactions to LVI crashes, reasons for judgment were released today awarding a Plaintiff $12,000 for various soft tissue injuries.
The accident happend in 2005.  It was a rear-end crash.  The defendant gave evidence that the crash was so minor that ‘he did not hear any impact’.  The Plaintiff, on the other hand, stated that the impact was ‘a jolt that threw her forward although she was restrained by her seatbelt‘.
As is often the case in ICBC LVI cases, the lawyers put into evidence the photographs of the vehicles.  The pictures showed minor damage to the Plaintiff vehicle and no visible damage to the Defendant vehicle.
The court accepted that the Plaintiff was injured in this crash.  The Plaintiff complained of headaches, neck pain, upper back pain, lower back pain, right shoulder pain and right ankle pain.
The Plaintiff suffered injuries in previous car accidents and also in a subsequent fall.  This complicates the courts job somewhat in assessing the extent of the injuries suffered in this LVI trial.
The medical evidence was that the Plaintiff, while injured in this LVI crash, should not have any permanent consequenses as a result of her injuries.  In other words, she should get better.  The Plaintiff’s doctor also testified that ‘a lot of her symptoms arise from ‘something else’ (something other than the crash)… She has an underlying condition of depression and alcohol consumption which makes her depression worse’.
One thing that should come to no surprise to ICBC injury lawyers is the position taken by the defence lawyer in this case.  It was argued that ‘there should be no award as the symptoms are not reasonably attributable to the accident’.  In support of this argument the defence lawyer cited Mustapha v. Culligan of Canada Ltd.   For full background you can read my former blog on this case but for the sake of this blog here are the broad strokes:
In Mustapha the Plaintiff claimed to suffer psychological injury due finding flies in a bottle of water supplied by Culligan.  The Supreme Court of Canada dismissed the lawsuit claiming that such an injury was not ‘foreseeable.’.   Just last week I was discussing Mustapha with a senior colleague ICBC claims lawyer and we concluded it was only a matter of time before an ICBC defence lawyer would bring Mustapha to a court’s attention claiming that injuries from an LVI crash are not ‘forseeable’.  Fortunately, Mr. Justice Savage, rejected such an argument at paragraph 39 of the judgment.
All was not rosy for the Plaintiff, however.  The court found that she ‘tended to exaggerate her symptoms, which, expecially laterrly, are probably not attributabel to the accident.  I accpet, however, that she was injured in the accident but her ongoing symptoms after one year post accident are a result of her failure to mitigate her damages, or other causes’.
For the soft-tissue injuries with headaches and other symptoms which the court found lasted for only one year (at least in terms of being related to the accident) the court awarded non-pecuniary damages (pain and suffering) of $12,000.