More on ICBC Injury Claims and Low Velocity Impacts
Reasons for judgement were released today awarding a Plaintiff $21,500 for pain and suffering plus ‘special damages’ (accident related out of pocket expenses) as a result of a 2005 motor vehicle collision.
While the judgement does not mention ICBC directly (BC personal injury tort judgements rarely mention who the insurer for the defendant is) this case appears to me to be one which was defended on the basis of ICBC’s Low Velocity Impact (LVI) program. The reason why I reach this conclusion is because the defence lawyer argued that “this was such a minor motor vehicle accident that no damages should be awarded”. This is a standard argument behind ICBC’s LVI program.
The accident did not occur at a significant rate of speed and resulted in little vehicle damage. The Plaintiff’s vehicle cost approximately $1,500 to repair.
The Plaintiff’s injuries are discussed at paragraphs 5-16 of the reasons for judgement which I reproduce below:
[6] She described her symptoms as significant pain in her wrist, pain in her neck, shoulders, lower back, and a small amount of pain in her jaw.
[7] The doctor told her to “take it easy”. She went home and put an ice pack on her wrist and shoulders.
[8] The pain in her wrist resolved within a month of the accident. The pain in her neck lasted for approximately a year and a half. Massage therapy helped with the pain in her neck; she developed better range of motion.
[9] She also began to experience headaches which resolved within a year and a half of the accident.
[10] The muscles in her jaw tightened and she experienced pain. She described the jaw pain starting after the accident as minor, though it continued to get worse. She still has some symptoms of jaw pain but it has improved with the use of a night guard.
[11] Three weeks after the accident she developed chest pains. She first noted the chest pains when she was jogging. She did not have this pain prior to the accident. When she developed the pain she stopped jogging. She has gradually built up her jogging and she can now jog for 6 km before the chest pain sets in.
[12] Her back pain first developed approximately an hour after she left work and it got worse the next day, but it resolved itself within a month of the accident.
[13] She did not play tennis for almost a year and a half because the right side of her body was sore.
[14] She attended the drop-in clinic on three occasions and saw her family doctor, Dr. Sewell, on three occasions. She had difficulty making appointments with Dr. Sewell because he did not work on Saturdays. Initially, however, she did not think her symptoms would last very long and therefore did not see him sooner.
[15] She has had massage therapy, physiotherapy, chiropractic treatment, attended her dentist for a night guard, and attended Pilates, and has incurred special damages in the amount of $3,982.
[16] The massage therapy was commenced shortly after the accident and a friend of hers did some initial massage therapy on her until she saw Ms. Chung who provided massage treatments for her from approximately December 2005 to April 2007, a total of 22 treatments. She had approximately 10 physiotherapy treatments between June and November 2006. She also had chiropractic treatments on 6 occasions in February and March 2006.
The court, in awarding damages, made the following findings:
[26] Here, however, I am satisfied that the plaintiff is a credible witness. She did not exaggerate any of her claims and the massage therapy provided by her friend Ms. Chung was done on a professional basis and she paid somewhat less than the going rate. Nevertheless, the massage therapy was beneficial and she should be reimbursed for those disbursements….
[28] I have no difficulty accepting those principles, but as stated above I found the plaintiff to be a credible witness. There is a lack of objective evidence and that has made me exceedingly careful in weighing the evidence, but at the end of the day I am satisfied that the plaintiff has suffered the injuries over the periods of time referred to in this judgment. I am of the view that this is a mild to moderate soft-tissue type injury and I am satisfied that the range of damages is between $20,000 to $25,000, as set out in Reyes v. Pascual, 2008 BCSC 1324, Pardanyi v. Wilson, 2004 BCSC 1804, and Walker v. Webb, 2001 BCSC 216. I am satisfied that she is entitled to non-pecuniary damages in the amount of $21,500 and special damages in the amount of $3,982. The plaintiff is also entitled to her costs.