Tag: icbc claims database

ICBC Soft Tissue Injury Claims Round-up

On Friday the  BC Supreme Court released reasons for judgement in 2 cases dealing with soft tissue injuries which I summarize below to continue to grow this free database of ICBC Injury Claims Judgements. Additionally, both of these cases contain a useful analysis of Plaintiff credibiilty and are worth reviewing for anyone interested in this area of the law.
In the first case, Skusek v. Gill, the Plaintiff was injured in 2 BC car crashes, the first in 2000 and the second in 2006.  Liability was admitted in both cases leaving the court to deal with quantum of damages (the value of the plaintiffs injuries and losses).
The Plaintiff was 22 years old by the time of trial.  She suffered various soft tissue injuries in both collisions which did not fully resolve.  Mr. Justice McEwan of the BC Supreme Court largely accepted the evidence of Dr. Ames who summarized the Plaintiff’s injuries as follows:

[20] The plaintiff saw Dr. Janet Ames on August 22, 2007.  Dr. Ames took a history which suggested significant ongoing pain from the first accident which was seriously aggravated by the second:

After the first accident on January 12, 2000 the symptoms included headaches, neck pain, lower back pain, pain between the shoulder blades and bilateral hip pain.  She commented her entire back hurts.  At the time of the second accident she was still going for chiropractor treatment and physiotherapy.  The patient would place her recovery at about 50 percent before the second accident.

After the second accident the patient describes becoming a lot worse in all of the previously symptomatic areas and specifically the right hip became worse.  There were bruises from the seat belt.  The left anterior ribs felt “out of place” (later resolved with chiropractor care).

[21] She note the following symptoms on her examination:

1. There is pain across the low back, left greater the right.  The pain does not consistently radiate down the legs.  There is occasional pain down both anterior thighs not going past mid thigh.  There is no tingling or numbness associated with this.  There is no history of bowel or bladder control problems.  The patient describes pain in the area of the right hip and points to the lateral aspect of the hip.

2. There is pain in the mid back area, left worse than right.  This does not radiate around the chest or through to the front.  There is no history of tingling or numbness.

3. There is a history of headaches described as frontal, temporal and from neck tension.  The frequency and severity varies.  There is no pain down the arms and no tingling or numbness.  Caffeine intake is 1 c. of coffee or tea every two or three weeks and chocolate about twice a week.  The patient will be seeing a Neurologist in February 2009, arranged by Harris Johnsen.

4. The patient comments that she has a lot of stomach aches daily.

5. Sleep varies depending on the pain level.

[22] The prognosis was as follows:

The prognosis for the various injuries is good as there are no clinical findings consistent with a serious injury.  This excludes the problem with the headaches.  The patient will be assessed by a Neurologist who will comment on the diagnosis and prognosis with regards to the headaches.

Determining when the symptoms will come under good control and/or resolve is very difficult.  The patient may benefit considerably from low dose Amitriptyline to improve sleep and a consistent core stability/strengthening program with one or one supervision.  The supervision from a Pilates instructor would continue until she was on a full program and was aware of how to progress the exercises.  This usually takes about eight sessions over eight weeks.  The patient then graduates to doing the exercises on their own or joining a small group.

Damages of $50,000 were awarded for the Plaintiffs non-pecuniary loss (money for pain and suffeirng and loss of enjoyment of life) and $60,000 was awarded for the young Plaintiff’s diminished earning capacity.

Paragraphs 41-48 of this judgement are worth reviewing for anyone interested in some of the factors courts look at when weighing a Plaintiff’s credibility in soft tissue injury cases.

In the second soft tissue injury case released on Friday (Mohamadi v. Tremblay) the Plaintiff was awarded $10,000 for non-pecuniary damages as a result of injuries sustained in a 2006 BC car crash.   In valuing the Plaintiff’s injuries at this modest figure Mr. Justice Truscott of the BC Supreme Court summarized the injuries as follows:

[91] It is extremely difficult to determine the value of the plaintiff’s claims with all of the inconsistent evidence he has given and the lack of supporting evidence from his doctors.

[92] I do accept that in the motor vehicle accident of February 14, 2006 the plaintiff sustained soft tissue injuries to his neck, back and left shoulder, accompanied by headaches.

[93] I am prepared to accept that his soft tissue injuries lingered on for a period in the order of two years on a mild basis but thereafter I conclude that he had recovered with no long term consequences.

[94] I accept that his headaches lasted for a short period of time but thereafter this complaint is not supported by his physicians and I reject his evidence that his headaches continued thereafter.

This case is also worth reviewing for the court’s discussion of plaintiff credibility in soft tissue injury claims.  Many of the Plaintiff’s claims were rejected by the Court.   Specifically in paragraphs 95-113 the court gives reasons for rejecting many of the Plaintiff’s claims and these paragraphs contain a useful discussion for anyone interested in some of the factors courts consider important when weighing credibility in ICBC Injury Claims.

ICBC Pain and Suffering Round-Up

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

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.

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If you would like further information or require assistance, please get in touch.

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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