Tag: mild traumatic brain injury

There is Nothing "Mild" about Mild Traumatic Brain Injury


Traumatic Brain Injuries (TBI) are generally categorized as Mild, Moderate and Severe.  Despite what the name suggests, there is nothing necessarily “mild” about the effects of a mild traumatic brain injury (MTBI).  Reasons for judgement were released today by the BC Supreme Court, New Westminster registry, doing a great job explaining this.
In today’s case (Cikojevic v. Timm) the Plaintiff was injured in a 2002 crash.  She was 17 at the time.  She was a passenger in a truck that drove off the road and hit a tree.  The force of the collision “threw her head into the windshield hard enough to star it“.
All of the medical experts that examined the Plaintiff (both her own and those hired by ICBC) agreed she suffered a mild traumatic brain injury in this crash.  The consequences of this never fully resolved and the Court accepted she would struggle with life long difficulties.  Mr. Justice Brown awarded the Plaintiff over $1.4 million in total compensation including $1 million for her diminished earning capacity over her lifetime.   The case is worth reviewing in full for the Court’s discussion of this head of damage.  Prior to awarding damages Mr. Justice Brown provided the following useful quote about “mild” TBI:

[251]     Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

[252]     “Mild” describes the severity of the organic injury, not its effect.

[253]     Although the organic severity of an injury usually associates with the severity of symptoms, sometimes symptoms can be severe while the organic injuries to the brain are mild.

[254]     Upwards of 85% of people suffering uncomplicated MTBI recover within six months. The recovery range lies between 85% and 95%, depending on the expert’s views and the literature they accept. I find that around 90% of people suffering uncomplicated MTBI recover according to scientific literature. However, as noted by Dr. Anton, such statistics are of no value when dealing with a patient who falls into the subset of people who never fully recover. Each case must be evaluated individually.

[255]     The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.

You can click here to access my archived posts of other recent BC personal injury cases dealing with Traumatic Brain Injury.

More on the Law of Multiple Defence Medical Exams in Injury Litigation


Further to my previous posts on this topic, the law is well settled that the BC Supreme Court can order a Plaintiff involved in an injury lawsuit to undergo multiple defence medical exams in appropriate circumstances in order to ‘level the playing field‘.
There are many reported court cases considering such applications and today reasons for judgement were released by the BC Supreme Court, Victoria Registry, providing a concise summary of some of the legal principles at play when ICBC or another defendant wishes to have a Plaintiff assessed by multiple doctors.
In today’s case (Hamilton v. Pavlova) the Plaintiff was involved in a 2002 BC car crash.   The Plaintiff alleged that she suffered a mild traumatic brain injury (MTBI) in the crash which affected her cognitive functioning and had been assessed by at least 14 doctors since the time of her accident.
The Plaintiff attended two independent medical exams at request of the defendants, the first with an orthopaedic surgeon and the second with a neurologist.  The neurologist provided an opinion that “there was no evidence to support a diagnosis of brain injury“.  The Defendants then requested the Plaintiff to be assessed by a psychiatrist.  The Plaintiff refused and this resulted in a court motion to force attendance.
Mr. Justice Bracken dismissed the motion finding that the defendants were seeking to “bolster the opinion (of the neurologist they chose) by providing a similar opinion from someone with perhaps a more appropriate specialty“.  Before reaching this conclusion Mr. Justice Bracken provided the following very useful summary of some of the factors Courts consider in requests for multiple ‘independent’ medical exams:

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives:  Wildemann v. Webster, [1990] B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”:  Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report:  McKay v. Passmore, 2005 BCSC 570 at para. 17, andChristopherson v. Krahn, 2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination:  Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff:  McKay v. Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary:  Vermeulen-Miller v. Sanders, 2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823.

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances:  Wildemann v. Webster, supra, at p. 3.

As previously pointed out, the BC Supreme Court Rules are being overhauled in July 2010.  Under the new rules the Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. I plan to follow the law as it develops under the new rules and will report how our Courts apply the concept of proportionality to multiple defence medical exams in ICBC and other BC Personal Injury Litigation.

Mild Traumatic Brain Injuries and the Recognition of Symptoms


When people suffer from mild traumatic brain injuries (MTBI), it sometimes takes time for people to recognize the extent of the injury and the impact that the consequences of MTBI have on everyday life.  Changes can be subtle but the impact could be dramatic.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering such a case.
In today’s case (Burdett v. Eidse) the Plaintiff was involved in 2 serious motor vehicle accidents.  The first in Kelowna, the second in North Vancouver.  Fault was not admitted for the first but after trial the Court found the Defendant 100% liable for the first crash.  Fault was admitted by the Defendant for the second crash.  Madam Justice Loo was asked to determine the extent of the Plaintiff’s accident related injuries.
The Plaintiff suffered from an MTBI in the first crash.  As is sometimes seen with these types of injuries the Plaintiff did not appreciate the significant impact his MTBI had on his level of functioning.   The Plaintiff, who had a “bulldog” attitude took very little time off work and complained very little about the consequences of the car crash.
To those around the Plaintiff, however, the changes were noticeable.  Evidence was called that there were significant changes in the Plaintiff’s functioning after the car crash by those close to him.  Ultimately Madam Justice Loo of the BC Supreme Court accepted that the Plaintiff did suffer an MTBI in the collision and that he was competitively unemployable as a result.  The Court went on to award just over $1.1 Million in total damages including an award of $200,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In reaching her conclusions Madam Justice Loo highlighted the difficulty the Plaintiff had in realizing the consequences of the car crash.  Some of the key findings were as follows:

[106] When asked when he became aware that he had a problem, Mr. Burdett said that when he first saw his counsel Mr. Burns, he mentioned he had an accident, and “kind of left it” at that. No one in his crew told him he was not doing what he was supposed to be doing on the job. Then “weird things” started “creeping into my life”. Friends started telling him he was forgetting things, he was having a hard time remembering numbers, he could no longer estimate the cost of a plan, and he was forgetting things at work. His crew told him to get joist hangers and he returned with something else. They started writing things down for him so that he would remember. He finally realized “there’s something really wrong here; I need help”. He returned to see Mr. Burns again.

[107] There is no evidence of when Mr. Burdett saw his counsel the first or second time, but this action was commenced and a statement of claim filed on April 4, 2007. The statement of defence was filed July 30, 2007.

[108] Despite what his family, friends, and co-workers saw and observed of Mr. Burdett, it was not until he saw Dr. Cameron that he recognized the extent of his injuries from the motor vehicle accident of June 26, 2005.

[109] At the time Mr. Burdett worked on the Losch and Summerland Motel projects, he thought he was doing fine. In retrospect, he was not. In retrospect he realized that he was cut out of the loop, did not stay on top of matters, and let work get out of control.

[110] Several times during the construction of the Losch projects, the architect voiced to him that the project was not running satisfactorily. Not only has an architect never said that to him, but Mr. Burdett also did not realize that the project was not running smoothly at the time.

[111] Mr. Burdett’s company is still owed $80,000 on the Losch project, but Mr. Burdett is unable to determine what the deficiencies are or what work has been left undone because he left everything to the job superintendent with whom he no longer has a relationship.

[112] The Summerland Motel project became an even bigger disaster because Mr. Burdett failed to properly manage the project. He did not write up a change order or extra work order and did everything with a wave of his hand. He never made sure that the owner had financing in place, with the result that Mr. Burdett financed much of the work with his own personal funds. He did not deal with the trades as he should have, with the result that trades walked off the job or never showed up. The job occurred at a time when carpenters and other trades were hard to get. Mr. Burdett misquoted parts of the work by leaving out necessary work, and did not know at the time that he was having difficulty estimating and working with numbers.

[188] There is no doubt that Mr. Burdett initially did not recognize the extent of his injuries:  Dr. John Pullyblank testified that it is not uncommon when a person suffers neurocognitive injuries. It takes that person some time to realize that his brain does not work the way it used to.

[189] I find that Mr. Burdett is neither a complainer nor a malingerer. At first, he was not aware of the extent of his cognitive difficulties and worked without even telling those with whom he worked closely that he had been in an accident. Common sense tells me that those who worked with him would not and did not tell him that something was wrong with him or his brain. This is supported by the evidence. Instead, those who worked with him avoided dealing with him and basically cut him out of the loop.

[190] Dr. Kates, Mr. Nemeth, Dr. Cameron, and Dr. Kaushanksy all spoke about Mr. Burdett’s bullish or bulldog attitude. Dr. Kaushansky put it best when he said that Mr. Burdett probably did not recognize he was injured in the accident (I pause to note that Mr. Burdett seemed genuinely surprised when the police officer’s report indicated that he had been injured). It is part of his bull dog approach: “This is a nothing accident. I’m out of here and on my way”. It explains why he took no time off work, why he told very few about the accident, and why he complained little, if at all…

[194] While Mr. Burdett clearly did not appreciate the extent of his injuries or that something was wrong with him, clearly those who were close to him—his family, friends, and workers—knew he was a different man long before Dr. Cameron’s diagnosis…

[198] I conclude on a consideration of all of the evidence that Mr. Burdett suffered soft tissue injuries and a concussion or an MTBI from the June 2005 accident. He had a pre-existing brain injury that made him more susceptible to more significant and prolonged symptoms, and he fell within that small percentage of individuals who do not recover. His soft tissue injuries were aggravated by the January 2006 accident. The overwhelming evidence is that Mr. Burdett suffered cognitive impairment immediately after the first accident, his condition will likely not improve, and he will suffer the same problems for the rest of his life. His anxiety and depression are related to the accident and the realization that not only is he no longer the same high functioning successful businessman that he once was, but also that his condition is permanent and he is not likely to recover.

[199] I conclude on all of the evidence that Mr. Burdett is no longer capable of working as a contractor and is competitively unemployable, or put at its best, is minimally employable.

It is difficult to extract sound bites from a case like this and I suggest that anyone interested in Brain Injury litigation in British Columbia review this judgement in full to see some of the types of issues that can arise in MTBI cases.

This judgement reveals 2 issues that are worth taking note of.  First that lay witnesses (friends, family co-workers) play a vital role in brain injury litigation as their evidence can be key towards establishing not just the diagnosis of injury but the severity of its impact.  Second this case shows that being stoic in the face of injury does nothing to reduce the value of an injury claim.  Here the Plaintiff’ ‘bulldog‘ attitude did not reduce the value of his claim and in all likelihood assisted the Court in making positive credibility findings.

$115,000 Pain and Suffering Awarded for Mild Traumatic Brain Injury

In reasons for judgement released yesterday (Williamson v. Suna) by the BC Supreme Court, Victoria Registry, damages of just over $266,000 were awarded for injuries and losses as a result of a 2004 motor vehicle collision.
The Plaintiff was a 38 year old member of the Canadian Armed Forces at the time of the car crash.  The crash was a significant head on collision.  The issue of fault was admitted focusing the trial solely on damages.
The Plaintiff suffered various injuries and symptoms as a result of this crash including a mild traumatic brain injury, headaches, poor sleep, irritability and difficulties with memory.  While the medical evidence did not rule out further possible recovery the testifying physcians stated that the plaintiff would probably suffer from headaches, neck pain and consequences of the mild traumatic brain injury for many years to come.
In awarding $115,000 for the plaintiffs non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Mr. Justice Goepel summarized the consequences of the injuries on the Plaintiff as follows:

[41]            Prior to the accident, Mr. Williamson was in good health.  He was physically active, and enjoyed activities such as fly fishing, scuba diving, sky diving, and competitive target shooting.  He was a former member of the Canadian national shooting team. 

[42]            After the accident, Mr. Williamson stopped skydiving and scuba diving.  While he still participates in target shooting, the enjoyment that he derives from that activity has decreased.  He explained that the noise from the rifle aggravates his headache, and the kick from the rifle aggravates his neck pain. 

[43]            Before the accident, Mr. Williamson was an active photographer.  He had taken a number of photography courses.  Since the accident, the enjoyment he derives from photography has decreased.  He has difficulty maintaining the static neck positions required to take quality photographs. 

[44]            Mr. Williamson testified that as a result of the accident and his headaches, he now seldom goes out in the evenings.  His irritability has obviously impacted on his family life.  Because of his headaches, he is unable to enjoy his young child as much as he should.

[45]            Mr. Williamson realizes that his injuries, particularly his difficulties with memory and concentration may eventually curtail his military career.  That possibility has caused him considerable anguish and diminished his enjoyment of life.

In addition to non-pecuniary damages, $150,000 was awarded for the Plaintiff’s diminished earning capacity.  Although he missed little time from work in the Canadian Armed Forces and in fact was promoted in the years after the car crash the court found that there was a possibility that the Plaintiff would not be able to continue in his current position or perhaps in the military  altogether as a result of his injuries.  Paragraphs 52-62 are worth reviewing for a discussion demonstrating how damages for future wage loss / diminished earning capacity can be made in an ICBC Injury Claim even where there is no wage loss from the time of the crash to the time of trial.

Over $250,000 Awarded for Serious Injuries in ICBC Claim

Reasons for judgement were released today (Tchao v. Bourdon) in an ICBC Injury Tort Claim awarding $276,504.46 in total damages as a result of injuries suffered in a 2004 collision in the Lower Mainland. 
I am still in trial still and only have time for bare bones reporting.  In this case it appears the Plaintiff suffered significant injuries including a mild traumatic brain injury, significant soft tissue injuries, PTSD, depression and a lumbar facet syndrome.  The court’s key analysis of injuries is set out below:

[73]                  I am satisfied that, as a result of the accident at issue in this action, the plaintiff suffered a knee injury that recovered within approximately a month, a significant soft tissue injury to the neck and upper back that recovered within approximately seven months but which has left the plaintiff more vulnerable to degenerative changes in the neck, a concussion with post-concussion syndrome that still causes headaches once or twice a week, but is likely to resolve, a mild post-traumatic stress disorder that is resolving but remains problematic, and a depressed mood.

[74]                  Counsel for the defendant suggested that the plaintiff did not suffer a concussion because there was no clear evidence of loss of memory.  There is, however, evidence of a loss of awareness, a blow to the head, and ongoing symptoms consistent with post-concussion syndrome.  Dr. Duncan, the treating GP, Dr. Bozek, the treating neurologist, and Dr. Hunt were all of the view that Mr. Tchao indeed suffered a concussion and post-concussion syndrome, and I find that conclusion to be consistent with all of the evidence.

[75]                  That brings us to the most serious of Mr. Tchao’s ongoing difficulties, his lower back.

[76]                  Counsel for the defendant conceded that Mr. Tchao suffered a soft tissue injury to his lower back in the accident, but submitted that Mr. Tchao had recovered from that injury by some point in 2005, and that his ongoing symptoms relate to his pre-existing degenerative condition.  He based this argument on the absence from Dr. Duncan’s clinical record of any notes of complaints from the plaintiff about his lower back, as opposed to his upper back and neck, in the relevant period.  I observe, however, that throughout that period, the plaintiff was attending at CBI undergoing rehabilitation therapy for his lower back, and I do not find it surprising that during the course of that treatment, he did not raise lower back issues with his GP.

[77]                  Defendant’s counsel also urged me to treat Dr. Hunt’s opinion with great caution because of his apparent advocacy.  I find that the passages defence counsel brought to my attention in this regard are more consistent with a certain degree of impatience and curmudgeonliness on the part of a very senior and experienced surgeon, than with improper advocacy.  There are nevertheless aspects of Dr. Hunt’s opinion that I am not prepared to accept.  In particular, I do not accept his suggestion that Mr. Tchao possibly suffered a hiatus hernia in the accident, nor do I accept his opinion that Mr. Tchao may require surgery in the future as a result of the motor vehicle accident – although to be fair, Dr. Hunt raised these as possibilities, not probabilities.

[78]                  I do accept, however, Dr. Hunt’s opinion that Mr. Tchao’s pre-existing degenerative condition made him more vulnerable to injury in the motor vehicle accident (no expert disagrees with this), and that as a result of the effect of the accident on Mr. Tchao’s pre-existing condition, Mr. Tchao suffers from bilateral lumbar facet syndrome.  This is supported by Dr. Purtzki’s findings of “predominately mechanical back pain due to a facet joint dysfunction”, and by Dr. Adrian’s impression of mechanical low back pain with radicular features.  None of the pre-accident investigations demonstrated any facet joint issues.

[79]                  I observe further that regardless of how one characterizes the effect of the accident on Mr. Tchao’s pre-existing condition, there is no question that the accident aggravated it as noted by the defence expert, Dr. Arthur.  There is also no doubt that, as reported by both Dr. Arthur and by Dr. Hunt, the plaintiff’s prognosis remains guarded.

[80]                  That the accident has had a significant and lasting impact on Mr. Tchao is also consistent with his own evidence.  This brings me to the issue of his credibility.  In general, I found the plaintiff to be a believable witness.  I observed nothing that would suggest malingering or exaggeration on his part, and there is nothing in any of the medical records or reports, including those submitted by the defence, that would suggest that I may be mistaken in my impression.

[81]                  As previously noted, the CBI discharge report considered that his perceived functional ability was the same as his actual, demonstrated ability, and that there was maximal effort on his behalf.  Ms. Jodi Fischer, who carried out a Functional/Work Capacity Evaluation, administered a number of tests from which she was able to conclude that Mr. Tchao was devoting his best efforts to the evaluation, and was reliably reporting his levels of pain and disability.  There were no non-organic findings.  I found Ms. Fischer to be a compelling witness.

[82]                  In these circumstances, I conclude that, as a result of the effect of this accident on his pre-existing degenerative condition, the plaintiff has suffered a significant injury in the form of a lumbar facet syndrome that causes him ongoing pain and disability, and which has left him with a guarded prognosis.

[83]                  There was very little evidence concerning what lower back problems the plaintiff would likely have suffered in the future as a result of his pre-existing degenerative condition, in the absence of the accident.  Dr. Arthur, the defendant’s expert in orthopaedic surgery, was silent on this point.  I nevertheless find that, as conceded by Dr. Hunt, problems of the sort that plagued Mr. Tchao before the accident would likely have recurred in the future.  There is no evidence, however, that they would have been as disabling as the condition in which Mr. Tchao now finds himself.  As I will explore further below, he was able to carry on with physical labour at his jobs at Safeway, Nexus and The Blox in the past, but is no longer able to do physical labour of any kind.  No expert witness, including Dr. Arthur, has suggested that Mr. Tchao is presently capable of more than light and sedentary duties.

Damages were assessed as follows:

D.        CONCLUSION

[127]              I find the defendant 100% liable for the plaintiff’s damages.  Those damages are assessed as follows:

non-pecuniary damages:                                   $70,000.00

past loss of income:                                          $67,500.00

loss of income earning capacity:                     $120,000.00

future care costs:                                               $17,317.00

special damages:                                                $1,687.46

Total:                                                               $276,504.46

 

ICBC Claims, CPP Disability and Deductibility of Wage Loss Awards

Reasons for judgement were released today dealing with the issue of whether a defendant ordered to pay a plaintiff money for future wage loss as a result of a BC motor vehicle accident can deduct from such an award disability benefits the Plaintiff will receive from the Canada Pension Plan (CPP).
The Plaintiff was injured in a 2005 motor vehicle collision.  Liability was not seriously contested and the Defendant was found 100% at fault at trial.  The Plaintiff suffered serious injuries including a

1. Fractured sternum; and

2. Head injury with probable significant cerebral concussion; and

3. Contused lower thoracic spine and upper lumbar spine; and

4. Multiple rib contusions.

The most contested injury was whether the Plaintiff suffered from on-going problems as a result of a brain injury allegedly sustained in the collision.  The court found for the Plaintiff noting that 
[71]            On balance I conclude that I accept the expert evidence to the effect that it is more likely than not that there are persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition.  The effects on Mr. Kean’s cognition are so subtle as to be virtually indistinguishable from the concurrent effects from the other operating causes, namely pain, pain medication, and depressed mood. 
The Court assessed damages as follows:

Non-pecuniary damages:

$180,000.00

Past wage loss:

$32,506.38

Future earning capacity loss:

$100,000.00

Future care costs:

$51,032.28

Special damages:

$10,672.95

 

 


ICBC argued that money the plaintiff has/will receive from CPP should be deducted from his awards for past wage loss and future wage loss awards.  The court dismissed this argument concluding that  “the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss”
The key discussion took place at paragraphs 102 – 111 which I reproduce below:

[102]        Counsel for the defendant and the third party argued that CPP disability benefits received by Mr. Kean should be deducted from his award for past wage loss, and the present value of future CPP disability benefits should be deducted from his future income award.  The thrust of their argument is that this is necessary to prevent double recovery.  The defendant argues that CPP disability benefits are a form of mandatory social insurance that workers cannot negotiate out of, and the scheme is a form of income replacement.

[103]        The defendant’s argument is essentially the same argument that these same counsel made unsuccessfully in the case of Maillet v. Rosenau 2006 BCSC 10.  In Maillet, the plaintiff had received social assistance payments which were deducted from the past wage loss, but Powers J. did not accede to the defendant’s argument that future CPP disability benefits should be deducted from the award for losses of future earnings.  As here, the defendants relied on the case of M.B v. British Columbia, 2003 SCC 53, suggesting that the rationale applied in that case to conclude that social assistance payments were deductible from a future wage loss award, was equally applicable to CPP disability benefits and that the decision represented a change in the law.

[104]        In Maillet, Powers J. followed a line of authority which had held that the CPP disability pension scheme was essentially an insurance scheme and covered by the insurance exception to the rule against double recovery.  This line of authority includes Canadian Pacific v. Gill,[1973] S.C.R. 654, Hayre v. Walz (1992), 67 B.C.L.R. (2d) 296 (BCCA) and Cugliari v. White, (1998) 159 D.L.R. 4th 254 (Ont.C.A.).

[105]        Like Powers J, I do not see the reasoning in M.B. as effecting a change in the law as it applies to CPP disability payments.  The analysis undertaken in that case was outlined in ¶24 of the decision:

The first question is whether social assistance is a form of income replacement.  If it is not, no duplication arises.  If it is, the further question arises of whether social assistance can be excluded from the non-duplication rule under an existing or new exception.

[106]        The court determined that social assistance was a form of income replacement and then stated in ¶28:

It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this court carves out a new exception. Otherwise, retention of them would amount to double recovery.

[107]        After holding that social assistance payments did not fit the charitable benefits exception (because the rationale for that exception did not concern the purpose of charitable donations, but its effect on the owners and the difficulties of valuation), the court discussed whether it should carve out a new policy- based exception.  The court decided that it should not do so.  Clearly there was no viable argument that the insurance exception might be applicable to social assistance and that was not considered.

[108]        The defendant wishes to characterize the CPP disability payments as a form of social security because it is a legislative creature and contributions are mandatory. But, unlike social assistance, it is funded by contributions and only those who have contributed can benefit.  There is an overlap of recovery, but that is inherent in the insurance exception to the rule against double recovery.  The other side of the coin is that to deduct the CPP benefits from a tort award is to force the injured contributor to share the benefits of his contributions, (which represent deductions from his former earnings), with the tortfeasor.

[109]        The defendant’s book of authorities included, in fairness, the case of Sulz v. Minister of Public Safety and Solicitor General 2006 BCCA 582, which was decided shortly after theMaillet decision.  In Sulz, the British Columbia Court of Appeal quotes from Mr, Justice Iacobucci in Sarvanis v. Canada 2002 SCC 28 at ¶33:

….it has already been held by this court that CPP disability payments are not to be considered indemnity payments, and therefore that they are not to be deducted from tort damages compensating injuries that actually caused or contributed to the relevant disability.  See Canadian Pacific Ltd. v. Gill; Cugliari, supra.  This rule is passed on the contractual or contradictory nature of the CPP.  Only contributors are eligible, at the outset received benefits, provided that they then meet the requisite further conditions.

[110]        The issue in Sulz was the deduction of superannuation pension from a tort award.  The British Columbia Court of Appeal, in a decision written by Madam Justice Levine, (who was the trial judge in M.B. whose deduction of social assistance payments was upheld by the Supreme Court of Canada) said, at ¶65:

The superannuation pension received by the respondent is of the same character as CPP disability benefits and other pension payments, which have consistently held to be non-deductible from tort damages.

[111]        I conclude, as did the court in Maillet, that the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss.

NOTE – the reasoning of this case may not apply to all ICBC claims.  For example in ICBC UMP Claims where ICBC is entitled to certain statutory deductions from the damages they need to pay to an insured.

$200,000 Non-Pecuniary Damages for MTBI and PTSD

Reasons for judgment were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a signficicant motor vehicle accident which occurred in Burnaby, BC in 2005.
The Defendant lost control of a garbage truck which tipped over and landed on the Plaintiff’s Honda Civic.  A photo of the collision is included at paragraph 2 of the reasons for judgement and this is worth glancing at to get a feel for the severity of this impact.
The Plaintiff was knocked unconsious as a result of the crash.  His Glasgo Coma Scale was 9 by the time the ambulance crew arrived and this qucikly rebounded to 15 by the time the Plaintiff arrived at hospital.
There was no dispute that the Plaintiff suffered various injuries as a result of this crash, what was at issue was the ‘nature and extent of the Plaintiff’s current condiction and the degree to which improvement may occur in the future’.
After hearing various medical evidence the court found as follows:

[35]            (The Plaintiff) has clearly suffered physical and psychiatric injury as a result of the August 19, 2005 collision.  I accept that his injuries caused him headaches, back pain and neck pain and pain in his shoulder.  Likely, he would have had some neck and shoulder problems from his previous condition without the August 2005 injury, however that injury clearly either initiated them anew or made them worse.  The physical problems |(the Plaintiff) suffered because of the August 19, 2005 collision have, by the date of the trial almost three years later, largely resolved as documented in the medical records, however his psychiatric ones have not, and there is an issue that he may still be suffering symptoms of a mild traumatic brain injury in addition to his PTSD and major depressive disorder.  (the Plaintiff) was clearly rendered unconscious by some degree of impact to his head as evidenced by the ambulance crew reports, Mr. Touffaha’s observations and the glass found embedded in his scalp.  I find that (the Plaintiff) probably suffered a mild traumatic injury to his brain at the time of the collision.

[36]            Whether or not (the Plaintiff) still is affected by his mild traumatic brain injury is not clear, particularly because his psychiatric condition can produce the same symptoms at this point.  On the balance of probabilities, I accept the opinion of Dr. Teal, the neurologist, that (the Plaintiff) has not sustained persisting cognitive impairment as a result of traumatic brain injury, and will not have any long-term cognitive sequelae as a result of a neurological injury.

[37]            I also find, on the balance of probabilities that while (the Plaintiff) was initially rendered essentially catatonic for the first six months following the collision, he has since that time made significant improvement, and I accept the opinion of Dr. Wiseman that with a course of cognitive behavioural therapy conducted by a specialist in that field, he will continue to make improvements.  On the other hand, I accept that he will likely continue to have problems and symptoms from his PTSD and depression for the rest of his life.  I find that it is highly unlikely that (the Plaintiff)will be able to return to his employment at Coastal Ford or any other competitive employment.  The medical evidence is that to the date of trial he has been unfit for employment.  He is now 67 years old, an age at which neither the body nor the brain is particularly resilient.  His mental state in my opinion is and will remain too fragile for him to be competitively employed.

[38]            The result of this collision and its consequent injuries to (the Plaintiff) is that he has lost a large measure of who he was.  While human identity is partially associated with physical ability, it is much more related to a person’s mental state and abilities.  (the Plaintiff) is quite simply not the man he was.  Rather than being energetically and happily employed as the lease manager for Coastal Ford, he is unemployed.  Rather than being the social outgoing man he was, he is socially withdrawn and has little or no interest in conversing about anything.  Rather than being the patriarch supporting his family, he is dependent upon them in a way that corrodes his relationship with his wife and children.  I find there is a real likelihood he will make progress in these areas so that his life is more enjoyable, however I do not think that will extend to re-employment.

[39]            I assess general damages for the loss (the Plaintiff) has suffered consequent upon the collision for which the defendants are responsible at $200,000.

 

Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck.  The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’.  The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted.  The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:

(i)

General damages – non-pecuniary

$200,000.00

(ii)

Past loss of income

$171,250.00

(iii)

Future loss of income earning capacity

$400,000.00

(iv)

Loss of opportunity

$10,000.00

(v)

Special damages

$26,955.75

(vi)

Costs of future care

$77,449.00

(vii)

Management and Tax Gross up

(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury.  Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

$75,000 Pain and Suffering Awarded to Cyclist Injurd in Car Accident

OK, I’m back in Kelowna, but this time more for pleasure than business, so this case summary will be a little light on the usual details.
Reasons for judgement were relesed today finding a motorist at fault for a 2003 impact with a cyclist. The Plaintiff suffered serious injuries and was awarded close to $500,000 in compensation for his losses and injuries.
In this case the cyclist was travelling on the side-walk. This is prohibited in law but simply violating the motor vehicle act does not automatically make one negligent for an accident. In this case the court found that while the cyclist was unlawfully riding on the sidewalk, he was not responsible for the accident because this did not cause the accident, rather
the accident was caused by (the Defendant) either failing to stop his vehicle before driving across the sidewalk in accordance with s. 176(1) of the Act, or by failing to look to his right before starting motion after looking away for a period of time during which a person could have appeared to the right of his vehicle.”
Here the court found that the Plaintiff was a credible witness that did not exaggerate his symptoms. The injuries were summarized by the Plaintiff’s treating family physician as follows:
fracture of the distal tibia, laceration of his scalp, laceration of his left shin, post-traumatic periostitis of the left shin, a partial tear of his anterior tibiofubular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa in the ankle/heel area).
In other words, a very serious ankle injury.  Evidence was also led that the Plaintiff suffered from a Mild Traumatic Brain Injury (MTBI) and that this resulted in some on-going cognitive problems.
The Plaintiff was a young man who suffered from a significant period of disability and there was evidence of some permanent partial disability.
Damages were assessed as follows:

a. Cost of future care: $73,078.00

b. Lost wages: $185,684.40 less the amount actually earned by the Plaintiff from December 3, 2003 to the date of trial;

c. Loss of future wages: $72,526.40.

d. Loss of earning capacity: $80,000.00

e. Non-pecuniary damages: $75,000.00

f. Special damages: $2,811.45.

g. In-trust claim: $14,040.00

Mild Trauamtic Brain Injury (MTBI) Claim Dismissed by BC Supreme Court

In a striking example of how complex brain injury litigation can be, lengthy reasons for judgment were released today dismissing a Plaintiff’s claim that 2 accidents caused/contributed to a Mild Traumatic Brain Injury (MTBI).
The trial lasted over 30 days of court time spanning between November, 2006 – July 2007. The reasons for judgement give insight into just how complex the brain injury trial was. The reasons are well over 300 paragraphs long.
The Plaintiff was involved in 2 accidents. She sued for both and the trials for both claims were heard at the same time. The first accident happened in 2001 in Abbotsford BC when the Plaintiff’s vehicle was struck by a driver who failed to stop at a stop sign. Liability (fault) for this accident was admitted by the defence lawyer. The second accident happened in 2005 when the Plaintiff’s vehicle changed lanes and collided with the defendant vehicle who was pulling out from a parking lot. Liability was denied and the trial judge found the defendant was solely responsible for the accident.
With the determination of fault out of the way the court had to decide what injuries the Plaintiff suffered in both these crashes and their value. The Plaintiff said she suffered from a Mild Traumatic Brain Injury in the first accident and this injury was made worse in the second accident. This allegation was hotly contested by the defence lawyers.
The court heard from numerous witnesses including over 10 doctors. It is very common for ICBC brain injury claims to include opposing medical evidence and numerous ‘lay witnesses’ who give evidence of changes in a Plaintiff’s level of functioning after the accident. ICBC claims lawyers often refer to these witnesses as before and after’ witnesses.
The expert medical evidence included
1. The Plaintiff’s GP who diagnosed a ‘closed head injury
2. A Physiatrist who diagnosed ‘a head injury that has resulted in some brain dysfunction‘ along with ‘soft tissue aches and pains
3. A psychiatrist who treated the Plaintiff since 2002 who diagnosed ‘impairments…as a result of the accidents‘ and a ‘significant concussive injury in both accidents (which have gone on to become) a post-concussion syndrome, now persistent type…a personality change due to MTBI….a pain disorder that relates to (the Plaintiff’s) headaches and other chronic pain complaints…a post-trauma seizure disorder‘ He concluded that the Plaintiff ‘will continue to have significant disruption of her life and her ability to work is permanently compramised’.
4. A neuropsychologist who accepted the diagnosis of ‘closed head injury, possible seizure activity, chronic pain and post-concussive syndrome.’ He performed numerous tests and concluded that the Plaintiff ‘was suffering from psychological turmoil which was sufficiently severe to affect her score on neuropsychological tests’ and lastly that ‘the pattern of neurological test results was consistent with diffuse brain injury attributed as likely being caused by the car accident‘.
5. A urologist
6. A psychologist who saw the Plaintiff regularly since 2003
7. a Neurologist from the University of Colorado School of Medicine who diagnosed a ‘concussion with amnesia in the first accident and that she subsequently developed post-concussion syndrome’.
8. Another physiatrist who assessed the Plaintiff after the second accident and ‘attributed (her) symptoms after the first accident to post-concussive syndrome’. He also diagnosed various soft tissue injuries.
9. A psychologist who assessed the Plaintiff in 2006 who stated that ‘the plaintiff suffered from a brain injury based personality change arising from a frontal-lobe related impairment and emotional disturbance reactive to the trauma of the accidents
10. An orthopaedic surgeon who was hired by the defence lawyer. His opinion differed largely from most of the previous experts and gave evidence that:

Based on my assessment of Ms. Abma on May 9, 2003, she presented as an extremely symptom focused individual whose clinical examination strongly suggested a significant non-organic component to her various musculoskeletal/neurologic complaints. I base this latter opinion, that Ms. Abma has significant nonorganic illness, on the following findings:

1. Multiple areas of complaint.

2. No reported pain free interval.

3. Failure of all treatment modalities to date.

4. Significant pain behaviour and reaction on clinical examination.

5. Multiple areas of non-anatomic pain.

6. Regional numbness affecting her right arm.

7. Abnormal pain diagram.

All of these factors would suggest that there is a significant psychological social component influencing the reporting scenario and duration of Ms. Abma’s multiple musculoskeletal/neurologic complaints. In addition, Ms. Abma’s clinical records indicate that she suffered from anxiety/depression preceding her November 2001 motor vehicle accident, both of which can negatively influence an individual’s pain experience and their self perception of disability.

11. A Psychiatrist hired by the defence lawyer who noted that ‘there is no objective evidence to support the fact that this woman suffered any type of concussion or brain injury.’
12. An otolaryngolgist hired by the defence lawyer who ‘concludes that the plaintiff suffered a mild/modest neck sprain in the first motor vehicle accident classified as whiplash-associated disorder (WAD) Type 1. He considers that this may have re-activated the neck sprain from her 1996 motor vehicle accidents which demonstrated that her complaints continued for more than three years. Dr. Sinanan states “but for that factor, recovery from a Grade 1 WAD Type neck sprain usually is within six to eight weeks, 12 weeks at most
13. Lastly the court heard from a neurologist also hired by the defence lawyer and it was ‘uncontested’ that this doctor is the ‘foremost epilepsy expert in the Province of BC’. he concluded that the Plaintiff did not have a brain injury.
After all of this the court sided largely with the defence medical evidence. The key findings were made starting at paragraph 308 where the court held that:

[308] The most persuasive view of the plaintiff’s post-accident experience is described by Drs. Anton and Smith. Dr. Anton suggests that the plaintiff is suffering psychological injuries. Dr. Smith is also of a similar view: adjustment disorder with anxiety, which does not result from injuries sustained in either of the accidents, but arising from her belief that she is cognitively impaired as a result of the accident.

[309] I am not finding that the plaintiff is acting dishonestly. She believes that she is suffering from a brain injury. She is relying on the information she has been provided by her treating physicians. She has not proven on a balance of probabilities that she suffered a brain injury in the first accident. I find it much more likely that the psychological difficulties, including the cognitive, emotional and behavioural problems which the plaintiff has experienced, arose from her reaction to the brain injury diagnosis made by Dr. Ancill in April 2002. I do not accept the plaintiff’s assertion that all of her symptoms had their “genesis” in the motor vehicle accidents.

[310] Ultimately, I find that the injuries suffered by the plaintiff in the first accident are the physical injuries and to some extent the depression described in the evidence. The plaintiff suffered the following injuries as a result of the first motor vehicle accident on November 14, 2001:

1. aggravation of previous soft tissue injuries to her neck, back, shoulders and hips;

2. a contusion to the area above her left knee; and

3. some depression and anxiety (exclusive of that related to the diagnosis of a brain injury) attributable to the pain of her injuries.

As a result of this finding the court largely dismissed the Plaintiff’s claims for loss of income past and future, future care needs, and her in-trust claims for voluntary services provided by her family.
Ultimately little more than compensation for pain and suffering for soft tissue injuries was awarded.
As an ICBC Injury Claims Lawyer, one of the highlights of this case for me was found at paragraph 204 of this judgement where the court discussed its view of some of the neuropsychological test results.  These tests, which can be used to see if a pattern of cognitive defecits are consistent with brain injury, have some built in ‘fail-safes’ in them.  These measures are built in to help the neuropsychologist gauge whether the patient is applying their best effort.  In other words, these built in to see if the Plaintiff may be faking the injury.
In this case the “Fake Bad Scale‘ disclosed some ‘suspicious results‘.  The various doctors placed varying levels of importance on this fact.  Madam Justice Gropper made her views quite clear at paragraph 304 where she stated that “If the testing is invalid it does not mean there is something wrong with the test,; it suggests that there is something suspicious about how the individual is responding to the testing and whether she is applying her best effort to it.  It is a factor to be considered, not simply ignored.’
This case, while perhaps lengthy and difficult to read through, is worth reviewing for anyone involved in an ICBC claim alleging Mild Traumatic Brain Injury. This is one of the most aggresively litigated injuries and this case shows just how involved these trials can be, not just from the medical side of things but from the involvement of ‘before and after’ witnesses and many intimate details of a Plaintiff’s life.
Do you have questions about this case or an ICBC claim involving Mild Traumatic Brain Injury?  Do you need advice from an ICBC claims lawyer?  If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (services provided for ICBC injury claims throughout BC!)

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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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