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Tag: headaches

ICBC, Chronic Pain, and Fair Settlement

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 Spine Injury Cases, Uncategorized.

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.

BC Supreme Court Takes Hard Stance Against LVI Defence

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 57 Comments on BC Supreme Court Takes Hard Stance Against LVI Defence

I have blogged several times with respect to ICBC’s LVI (Low Velocity Impact) Defence with a view towards educating BC vehcicle collision victims that ICBC’s LVI Policy is not the law, rather it is an internal policy geared towards saving ICBC money. 
ICBC’s LVI policy, when used in the defence of an injury claim, is often rejected by BC courts.  The LVI policy has one fatal flaw, assuming that the amount of vehicle damage (or lack therof) is related to the severity or possibility of sustaining injury. 
This week reasons for judgement were published in which the ICBC defence lawyer ran the LVI Defence.  Mr. Justice Macaulay rejected this defence and in doing so used the best language I have yet come across as an ICBC claims lawyer in explaining the flaw in the LVI Program’s logic.  At Paragraph’s 3-4 the court summaries the evidence led by the ICBC defence lawyer as follows:

[3]                According to Jiang, a line of traffic was stopped waiting for the left-turn signal.  When the light changed, the line started to move.  Jiang testified that the Lubick vehicle stopped when the light changed to yellow and he was not able to stop before hitting it.  He said the vehicles “barely touched” and that the impact was “very light, just a little boom”.

[4]                The evidence of the ICBC estimator confirms that the impact was relatively minimal.  The Lubick vehicle sustained cosmetic damage to the rear bumper.

Mr. Justice Macaulay then goes on to dismiss the logic behind the LVI policy in very strong words.  At paragraphs 5-6 of the judgement the court takes the following very harsh view of the so called LVI Defence:

[5]                The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury.  In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury.  This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court.  It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”.  In particular, he noted that there was no evidence to substantiate the defence theory in the case before him.  Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

[6]                I am satisfied that Lubick sustained an injury in the collision in spite of the low impact.

After hearing evidence from the Plaintiff, the Plaintiff’s doctor and physiotherapists, the court concluded that the Plaintiff suffered a minor soft tissue neck injury with associated headaches and a moderate low back soft tissue injury.  The court found that the injuries were largely recovered by the time of trial and awarded non-pecuniary (pain and suffering) damages for $18,000. 
This judgement shows once again, in no uncertain terms, that medical evidence is key in determining whether or not one sustained injury in an LVI crash, not the evidence of an ICBC vehicle estimator. If you are the victim of a BC auto collision, have been injured, and received the standard ICBC LVI claim rejection letter, this case is certainly worth having handy if you wish to take your claim to court.

Do you have questions about an LVI claim denial?  If so feel free to contact the author of this article for a no-obligation consultation.

$18,000 Awarded for 2.5 Year Whiplash Injury With Headaches

Written by admin on . Posted in ICBC Headache Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In brief reasons for judgement released today by the BC Supreme Court, Madam Justice Morrison awarded a 33 year old Plaintiff $18,000 for pain and suffering (non-pecunairy damages) for injuries as a result of a 2005 motor vehicle accident.
The Plaintiff’s vehicle was rear-ended in Delta, BC in August, 2005. There was relatively little vehicle damage.
The Defendant’s lawyer admitted fault for the accident. The Defence ran what can be called ICBC’s Low Velocity Impact Defence, that is the defence lawyer led evidence that this was a ‘low impact’ collision with little damage to the vehicles. The Defence lawyer suggested that an appropriate pain and suffering award was $3,000.
The court made a positive finding with respect to the Plaintiff’s credibility. The court qualified the Plaintiff’s massage therapist as being capable of giving expert evidence with respect to massage therapy.
The court accepted that the Plaintiff suffered from pain and discomfort until 2007 when the soft-tissue injuries healed. In short, the Plaintiff suffered from soft tissue injuries affecting her neck and shoulders. The acute phase of injury lasted several months and gradually improved by the time of trial. The court accepted that the Plaintiff was fully recovered by the time of trial.
The Plaintiff had no lost wages as a result of the accident. $18,000 was awarded for pain and suffering for these injuries.
This case is worth a quick read as it is a great example of an LVI claim going to trial, having all the evidence heard in two days, and receiving timely reasons for judgement. Counsel for the Plaintiff did a great job getting this matter tried and having the client compensated for an amount outside of ICBC’s soft tissue injury settlement guidelines and outside of ICBC’s LVI policy.
Paragraph 37 of Madam Justice Morrison’s reasons for judgement was the highlight for me where she dismissed the LVI defence by stating as follows:
The motor vehicle accident was a minor one, with minor damage to her vehicle, but as Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) reminds us, a minor motor vehicle accident does not necessarily mean minor injuries. In Boag v. Berna, 2003 BCSC 779, Mr. Justice Williamson reflected at paragraph 12, “That a piece of steel is not dented does not mean that the human occupant is not injured.”
Cases such as these are certainly key ammunition should you wish to take an LVI case to trial.  If you have questions about this case or potential settlement of a similar ICBC claim feel free to click here to contact the author of this article.

Court Awards $25,000 Pain and Suffering for Shoulder Injury

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

In reasons for judgement released today from a Rule 66 “fast-track” trial, Mr. Justice Masuhara awarded a Plaintiff a total of $27,427.67 in compensation as a result of a September, 2004 rear-end accident which occurred in Coquitlam, BC.
The Plaintiff, a 33 year old female at the time of the accident, suffered soft tissue injuries including headaches, dizziness, nausea, sleep disturbance, and various soft tissue injuries.
The majority of the Plaintiff’s pain resolved by the time of trial with the exception of pain in her shoulder girdle and mid back.
The Plaintiff’s family physician testified that she suffered from “soft tissue injuries to her neck and upper back as a result of the accident.” Treatments included trigger-point injections to the Plaintiff’s right shoulder blade muscles.
A physiatrist also gave expert opinion evidence that the accident caused neck injuries that had resolved and further had caused “injuries to her right posterior shoulder girdle region and mid back”. He expected the Plaintiff to make a good or very good recovery but his prognosis of a complete resolution was guarded.
The ICBC lawyer defending the case called an orthopaedic surgeon who had examined the Plaintiff on behalf of the defence. He testified that the Plainitff “suffered a mild to moderate soft tissue injury to her neck and upper back areas“, that he “would have expected the soft tissue symptoms to have resolved over the first 6-12 weeks following the accident ” and that the “ongoing musculoskeletal complaints are due to physical deconditioning that result from factors unrelated, or having little relationship to the accident“.
The court accepted the evidence of the Plaintiff’s physicians and found that the Plaintiff’s “persisting symptoms in the area of her right shoulder blade are as result of the accident”.
Damages were awarded as follows:
1. Non-pecuniary (pain and suffering): $25,000
2. Past Wage Loss: $974.67
3. Special Damages (out of pocket expenses) $1,453
Mr. Justice Masuhara deals with some common arguments often advanced by ICBC lawyers defending these types of claims including attacks on the Plaintiff’s credibility. His findings were favourable to the Plaintiff and a quick read of this judgement reveals some of the accusations Plaintiff’s often face whem advancing ICBC claims.