Tag: pain and suffering

More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Runghen v. Elkhalil) awarding a Plaintiff just over $147,000 in total damages as a result of injuries and damages sustained in a BC car crash.
The collision occurred in 2004 when the Plaintiff’s vehicle was rear-ended.  The issue of fault was admitted leaving only an assessment of damages at issue at trial.
In awarding $40,000 for pain and suffering (non-pecuniary damages) Madam Justice Fenlon made the following findings with respect to the Plaintiff’s injuries:
[16]            Based on the evidence of the experts, which is largely consistent, I find that Ms. Runghen suffered mild soft tissue injuries to her cervical and lumbar spine as a result of the accident; I further find that due to those injuries, she has headaches and chronic pain that has affected her ability to function both at home and at work.  I also find that Ms. Runghen’s pain and related incapacity are likely to markedly improve once an appropriate treatment plan is put in place.
Madam Justice Fenlon engaged in a thoughful discussion at paragraphs 17-34 of the judgement which is worth reviewing for anyone ingterested in seeing some of the factors courts take into consideration when valuing pain and suffering in ICBC soft tissue injury claims.
The balance of the judgement deals largely with claims for past wage loss and diminished earning capacity.   Awards were made under both of these heads of damages.  The court found that the Plaintiff’s ability to work was diminished as a result of chronic pain and that this would likely continue for at least some time after the trial.  In awarding $35,000 for diminished earning capacity the court engaged in the following analysis:

[50]            As noted earlier in these reasons, I accept that the chronic pain experienced by Ms. Runghen to date has been a limiting factor in her ability to take on longer hours at work.  I expect that limitation will continue to some extent over the next year, as she engages in a rehabilitation exercise program.  After that time, it is probable that she will be able to increase the amount of time she works to be more in keeping with what she would have been doing prior to the accident.  In coming to this conclusion, I recognize that Ms. Runghen had not established her career as a massage therapist and that we do not have a solid base line from which to work.

[51]            I am mindful that there is no certainty possible in terms of predicting what will occur in the future; there is a possibility, even with the correct treatment for her injuries, that Ms. Runghen may still experience some limitations.

[52]            Applying the considerations identified in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), I find that Ms. Runghen is likely to be somewhat less capable, overall, of earning income from all types of employment and that, in particular, she is likely to be less capable of earning incoming from her chosen field of massage therapy.  Ms. Runghen may have to consider retraining in another field or another area of specialization within massage therapy if she wishes to work full-time.

[53]            In my view, given the potential for marked improvement in Ms. Runghen’s condition that both Dr. Cameron and Dr. McGraw identified in their reports, and based on Ms. Runghen’s own experience with a similar but truncated rehabilitation program with Karp, it would not be appropriate to apply the precise mathematical calculation of future income loss used by Ms. Runghen.  Rather, this is an appropriate case to award a sum that takes into account the various contingencies and possibilities, without overcompensating Ms. Runghen by assuming the status quo and calculating a set wage shortfall over the next 36 year’s of her working life.  I set that sum at $25,000. 

[54]            I find that Ms. Runghen will need approximately six months to put in place and complete a four-month exercise rehabilitation program.  During that time, she will continue to work at her current level.  I therefore award damages of $10,000 to cover loss of income during this period.  

[55]            In summary, I award Ms. Runghen  a total of $35,000 for loss of future income and loss of earning capacity

 

Can Future Wage Loss be Awarded in an ICBC Claim When There is no Past Wage Loss?

The answer is yes and reasons for judgement were released yesterday (Schnare v. Roberts) by the BC Supreme Court illustrating this fact.  In yesterday’s case the BC Supreme Court awarded the Plaintiff just over $240,000 in total damages as a result of a 2005 BC Motor Vehicle Collision.   
The Plaintiff was a school teacher and was on her way to school when her vehicle was rear-ended.  The crash was significant enough that the Plaintiff’s vehicle was pushed into the vehicle in front of hers.
The Plaintiff suffered various injuries and these and their effect on the Plaintiff’s life are summarized at paragraphs 56-57 as follows:

[56]            Based on the evidence of Ms. Schnare, Dr. Fagan, Mr. McLean and Dr. van Rijn, I conclude that, in the accident on March 14, 2005, Ms. Schnare suffered soft tissue injuries to her neck, upper, mid and lower back, including in and around her sacroiliac region.  As a result of the injuries, Ms. Schnare was left with a mobile sacroiliac joint.  I conclude further that the defendants’ negligence caused Ms. Schnare’s injuries.  While, as of the trial, Ms. Schnare had occasional neck pain attributable to the accident, I find that the most serious result of the injuries Ms. Schnare suffered in the accident has been the mobility in her sacroiliac joint, the pelvic misalignment and rotation, and the associated back pain.  The pelvic rotation was observed and identified (by Mr. McLean) at Ms. Schnare’s first physiotherapy assessment on March 31, 2005 (approximately two weeks after the accident).  Dr. van Rijn’s examination disclosed that Ms. Schnare had a mobile right sacroiliac region and he identified Ms. Schnare’s sacroiliac region as the probable pain generator and source of Ms. Schnare’s back pain.

[57]            I find that, as a result of her injuries, Ms. Schnare continues to suffer some neck pain and significant back pain, and that this pain – particularly her back pain – limits and interferes with most normal and routine activities of her daily life.  Based on the evidence, particularly from Mr. McLean, Ms. Schnare’s condition has improved since the accident, as a result of physiotherapy and Ms. Schnare’s own efforts.  However, I accept the opinion of Dr. van Rijn and conclude that Ms. Schnare’s accident-related symptoms caused by her injuries have resulted in some permanent disability.

In justifying an award for non-pecuniary damages (pain and suffering) for $85,000 the Court highlighted the following facts:

Ms. Schnare’s injuries have had a very significant effect on the quality of Ms. Schnare’s life.  She has back pain regularly, and from time to time flare-ups of severe pain; she fatigues easily; she is unable to enjoy activities such as hiking or car trips with her family; she is unable to participate in her children’s activities (including homework and sports) in the manner and to the degree she would like; household chores are more difficult; she feels like a spectator on family activities, rather than involved and engaged; her intimate relationship with her husband has changed; and her strong desire to pursue a career as a kindergarten teacher has been frustrated.

[63]            Taking into account in particular Ms. Schnare’s evidence, the evidence of Mr. Schnare, Ms. Schultz and Ms. Brebuck concerning Ms. Schnare’s circumstances before and after the accident, and the opinions stated by Dr. van Rijn, I conclude that an award of $85,000 is appropriate in the circumstances.

From there the court went on to discuss the law of diminished earning capacity (future wage loss).  Despite only having a minimal past wage loss the Court awarded the Plaintiff $125,000 for diminished earning capacity.  In doing so the Court summarized and applied the law as follows:

 

[64]            The principles governing a claim for loss of earning capacity are set out in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.  There, the court confirmed that, “Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation.  What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.”  The standard of proof to be applied when evaluating hypothetical, future events that may affect an award is simple probability, not the balance of probabilities.  Huddart J.A. continued:

10.     The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence:  Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31;Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

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

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

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

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

11.     The task of the court is to assess damages, not to calculate them according to some mathematical formula:  Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued.  . . . The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[65]            Ms. Schnare seeks damages in the sum of $345,600 for lost earning capacity.  This sum is based on a full-time salary of $64,000 per year; on the assumption that, because of her injuries, Ms. Schnare is permanently unable to work more than 4 days per week; and on the further assumption that, but for her injuries, she would begin teaching full time in about 2010 and continue until age 65, a period of 27 years (20% of $64,000 = $12,800 multiplied by 27 years = $345,600).

[66]            When Ms. Schnare worked a full-time week in the fall of 2008, she determined that she could not keep it up, and that she needed the one day a week to recuperate.  Other than that one week, Ms. Schnare last taught full time during the school year September 2000 to June 2001.  At that time, the Schnares’ daughter was about two, and Ms. Schnare was pregnant with their son.  As noted above, the Schnares has discussed Ms. Schnare returning to work full time when their daughter entered grade 7.  Of course, that Ms. Schnare would in fact have returned to work full time once her daughter entered grade 7, but for the accident, is not a certainty.

[67]            Dr. van Rijn addressed the topic of Ms. Schnare’s potential “occupational restrictions” in his June 5, 2008 report.  He noted Ms. Schnare’s plans to move to grade 1, rather than teaching kindergarten, and observed that “some of the job requirements (including sitting on the ground) may not be as necessary, which will hopefully allow her to manage more easily.”  He continued (italics added):

She has permanent restrictions with respect to jobs requiring increasing physical effort and would be competitively unemployable in such work when compared to an able-bodied woman with similar interests and skill sets.  This represents a permanent loss in her work capability and has caused her to suffer a work handicap as a result of her injuries.  She is potentially less desirable an employee to perspective employers as a result of her accident related symptoms.

[68]            However, Dr. van Rijn does not say anywhere in his report that Ms. Schnare would be unable, because of her injuries, to work full-time as a teacher.  I compare what Dr. van Rijn says with the evidence referred to in Fox v. Danis, at para. 97, where the court had the benefit of opinion evidence to the effect that the plaintiff had lost the capacity to work full-time.  While Ms. Schnare may have restrictions, and therefore be less employable or “competitively unemployable,” with respect to “jobs requiring increasing physical effort,” Dr. van Rijn does not identify teaching grade 1, or indeed teaching any particular school grade, as a job of this type.  In addition, there is no evidence that Ms. Schnare has ever considered any type of work other than teaching.

[69]            I consider that the approach taken by Ms. Schnare with respect to damages for loss of earning capacity is excessively mathematical.  In my view, it seeks to have Ms. Schnare compensated as if it were certain that she would never work full-time again, and her approach produces a result that, overall, is neither fair nor reasonable, taking into account all of the evidence.  On the other hand, based on the evidence, I do not accept the defendants’ submission that Ms. Schnare should receive no award for loss of capacity to earn income.

[70]            In my view, based in particular on Ms. Schnare’s evidence and on the opinions stated by Dr. van Rijn in his June 5, 2008 report, Ms. Schnare has suffered some impairment of her earning capacity as a result of her injuries.  She has been rendered less capable overall from earning income from all types of employment available to an individual qualified as a teacher, and she has lost the ability to take advantage of all job opportunities that might otherwise have been open to her had she not been injured.  Specifically, Ms. Schnare has lost the ability to take advantage of the opportunity to work full-time as a kindergarten teacher, taking into account the physical demands of that job.  On the other hand, I do not consider that the evidence supports the conclusion that, as a result of her injuries, Ms. Schnare has lost the ability generally to take advantage of opportunities to work full-time as a teacher, should she choose to do so in the future.  In that light, the difference between Ms. Schnare’s likely future income had the accident not occurred and her income now that the accident has occurred may well be small.

[71]            Accordingly, Ms. Schnare is entitled to damages, but the amount should be more modest than what her counsel has submitted.  I conclude that the damages for Ms. Schnare’s loss of earning capacity should be assessed at $125,000.

ICBC Claims, Future Wage Loss and the Ability to Work in Your Chosen Profession

Imagine sustaining permanent and partially disabling injuries in a BC Car Accident through the fault of another.  Despite your permanent injuries you are able to carry on in your own chosen profession.  Are you entitled to be compensated for future wage loss in your ICBC tort claim or does the fact that you can work in your own occupation restrict such an award?  Reasons for judgement were released by the BC Supreme Court today dealing with this issue.
In today’s case (Ayoubee v. Campbell) the now 34 year old Plaintiff was injured in a multiple vehicle collision which occurred in September, 2003.    The Plaintiff sustained serious injuries including a herniated disc (at the L5 / S1 Level) with associated pain down his leg and mechanical back pain in the collision.  At the time of the accident he had just begun a computer course at BCIT and intended to make a career from the opportunities that this education would provide.  Despite his serious injuries he was able to complete his studies then found and maintained employment in his chosen field.
In awarding $100,000 for non-pecuniary damages the court accepted that the Plaintiff will have some permanent pain and made came to the following conclusion with respect to his injuries:
[104]        I accept Mr. Ayoubee’s evidence that he has never been pain free since the accident, although he has managed to control the level of pain through exercise and stretching.  He has attempted to function as fully as he can, despite the limitations he now contends with.  In the past year, however, his leg has deteriorated and the quality of his life has diminished even further.  Surgery may help with the pain, but he will likely be left with residual numbness and discomfort, and the back pain will remain.  As a result of the accident, he has lost the quality of life of an active young man.
Madam Justice Humphries engaged in a lengthy discussion addressing the Plaintiff’s loss of future earning capacity.  The court found that given the Plaintiff’s permanent injuries certain occupations will be closed to the Plaintiff, however, the Plaintiff ‘is not foreclosed form the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time employment ever since.’
In assessing the Plaintiff’s impaired earning capacity (future wage loss) at $80,000 Madam Justice Humphries made the following analysis:

[89]            In my view, this is a case in which it would be more appropriate to award a lump sum for loss of capacity.  There are a significant number of jobs that Mr. Ayoubee can no longer do, jobs of the type he once held and which could still provide him with opportunities for part time income enhancement that he now must forego.

[90]            As well, he is not as attractive an employee on the open labour market as he once was, given his chronic pain and inability to work without breaks.

[91]            He will also be unable to work while he recovers from surgery, which it is likely he will undergo once he has seen Dr. Dommisse.  Dr. Yu suggests the recovery time would be two or three months.  The defendants calculate the loss attributable to those months, reduced by the possibility that Mr. Ayoubee might decide not to have the surgery, and suggested that the applicable rate should be his salary level in 2005 when, in their position, he should have mitigated his damages.  The defendants arrived at a figure of approximately $7,700.  The plaintiff did not address that issue.

[92]            Surgery may improve Mr. Ayoubee’s leg pain, although the doctors differ on whether this is still realistic.  In any even he will be left with back pain.  I take into account that, of the two, the leg pain has always been the most severe, and is the cause of his greater restrictions at present.  On the other hand, given the back pain, there is no suggestion that he will be able to undertake moderate to heavy physical employment again.

[93]            An important factor that distinguishes Mr. Ayoubee’s case from those in which very high awards have been made for future loss is that he is not foreclosed from the type of job he was training for at the time of the accident, obtained after the accident, and has held full-time ever since.  He does not require retraining.  His employability does not depend on his ability to do heavy physical labour and he never intended that it should, although there is a substantial possibility that he might have supplemented his income occasionally with the type of job he held at Rona, if he were still able to do so.  

[94]            Considering that some future wage loss will be attributable to the surgery, and considering the diminution in the capital asset of his employability generally, I set his future loss, including his loss of capacity, at $80,000.

How Much is the Pain and Suffering Worth in my ICBC Injury Claim?

One of the most frequent questions I get asked as a BC Personal Injury Lawyer is ‘how much is my pain and suffering worth?’.
This is an important question for anyone injured through the fault of another in a BC motor vehicle collision.  When negotiating with ICBC the playing field is typically imbalanced in that the ICBC claims adjuster has lots of experience in valuing personal injury claims.   Unless you are an injury claims lawyer you understandably would have little experience in valuing pain and suffering and may need help valuing this loss.  
It is important to empower yourself for the negotiation because in tort claims ICBC is negotiating on behalf of the person that injured you (the tort claim is, after all, made against the other persons policy of insurance). Practically speaking, this means that this imbalance in experience can work as a huge disadvantage, particulary if you think the ICBC adjuster is ‘your’ adjuster.  
With this in mind, here is some basic informaiton on paind and suffering and ICBC tort claims.  Pain and Suffering is awarded under the legal head of damages called ‘non-pecuniary loss’.  One of the best ways to value pain and suffering in an ICBC tort claim is to find cases with similar circumstances and injuries to see what damages were awarded.  When you find several similar cases a range of damages starts to become apparent and this range can serve as a useful guide in helping you understand the potential value of your ICBC personal injury tort claim.
Reasons for judgement were released today (Hoang v. Smith Industries Ltd.) dealing with the issue of pain and suffering in a BC motor vehicle collision tort claim.  In awarding the Plaintiff $19,000 for his non-pecuniary loss as a result of soft tissue injuries Madam Justice Russell summarized the law of non-pecuniary damages as follows:

[32]            The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136. 

[33]            There are a number of factors that courts must take into account when assessing this type of claim.  Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)  age of the plaintiff;

(b)  nature of the injury;

(c)  severity and duration of pain;

(d)  disability;

(e)  emotional suffering; and

(f)  loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)  impairment of family, marital and social relationships;

(h)  impairment of physical and mental abilities;

(i)   loss of lifestyle; and

(j)   the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

$75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

In lengthy reasons for judgement released today by the BC Supreme Court (Peake v. Higo) Mr. Justicer Brown awarded a 52 year old Plaintiff approximately $170,000 in total damages as a result of a 2003 motor vehicle collision.
The Plaintiff had pre-existing pain in her neck and back and these were aggravated as a result of this collision.  Additionally, the Plaintiff suffered a frozen left and right shoulder as a result of this collision.
In justifying a non-pecuniary damages award (pain and suffering) of $75,000 the court summarized the Plaintiff’s injuries as follows:

[145]        Considering all the pertinent evidence before me, I find that the plaintiff suffered an aggravation of pre-existing neck and low back pain that she had been experiencing at the time of the accident, together with the imposition of some new soft tissue injuries in those areas.  I find that when she was experiencing neck and back pain in the month or so preceding the accident, she was in a highly emotional psychological state that was magnifying her perception of pain at that time.  To take her symptoms at this time as representative of her physical health would be inaccurate and unfair, given her medical history as a whole and the accepted evidence of witnesses who testified about her pre-accident functioning and activities.  The plaintiff herself acknowledges that 90% would be a fair representation of her pre-accident health.  The evidence of Dr. Regan, which I have accepted with some minor qualification, is clear that the 2003 accident cannot be burdened with all of Mrs. Peake’s on-going post accident neck and back symptoms and headaches.

[146]        Mrs. Peake exhibited pre-accident degenerative changes in her cervical spine.  Dr. Webb commented that Mrs. Peake’s degenerative cervical spine, exhibited by x-ray and MRI imaging, pre-disposes her to more intense symptoms and prolonged recovery.  Just the same, she had already experienced symptoms in the neck (and low back) together with headaches pre-accident, with no recent physical trauma and only a heightened emotional state to partly explain the intensity of her symptoms at that time.

[147]        Further, the effect of Mrs. Peake’s emotional state in May 2003 on her symptoms, and the fact that, as Dr. Webb comments, Mrs. Peake has suffered depressed mood, anxiety and frustration in relation to her symptoms since the accident, is a factor that I should take into account in assessing the extent to which her symptoms have been influenced by her emotional state post accident—and that this bodes positively for further future improvement as her emotional state continues to improve.

[148]        Both Dr. Regan and Dr. Sovio’s opinions negate a direct relationship between Mrs. Peake’s lower back flare-ups and the accident.  This is a mechanical condition and the plaintiff has not established that her ongoing back flare-ups, certainly past the summer of 2006, are attributable to the accident.  At the same time, Mrs. Peake testified that her low back symptoms are different and more intense then those experienced pre-accident.  I find that some small portion of Mrs. Peake’s ongoing lower back symptoms relate to the 2003 accident.

[149]        There is little question that the 2003 accident caused Mrs. Peake’s left shoulder injury and frozen shoulder.  I accept Mrs. Peake’s sworn testimony that she continues to experience mild periodic situational discomfort and some functional limitation in the use of her left shoulder.

[150]        With respect to the more problematic question of the causation of Mrs. Peake’s right frozen shoulder, with recovery from that predicted to extend to some time in 2010, albeit in a less problematic way then was the case for the left shoulder, I find that the plaintiff has proven that her right shoulder injury and eventually frozen state was caused by the accident….

[154]        Turning to Mrs. Peake’s neck symptoms and headaches, and Mr. Pankratz’ submission that “but for the subsequent traumatic events of 2006, this condition “would have” resolved completely,” Dr. Regan did not testify that the condition “would” resolve; but “should” resolve.  I note that when he wrote his second report, he was aware of ongoing neck complaints and headaches; but made no skeptical comments about their having continued her he last saw Mrs. Peake.  Mrs. Peake continues to experience neck pain and headaches that frequently cause her to awaken in the middle of the night with a “terrible headache” that can last for a few days – bearing in mind that Mrs. Peake has a history of pre-accident headaches.  Further, Mrs. Peake confirms ongoing improvement; and indeed in the summer of 2006 experienced extended pain-free periods, as stated earlier.  I bear in mind as well that she has suffered a right frozen shoulder, but  that continues to improve and should resolve completely by 2010; and with improvement in that condition she should see further relief in her neck, noting that she saw considerable improvement when her left shoulder pain and limitation more or less resolved.

[155]        The evidence does not support the gloomier aspects of Dr. Webb’s prognosis considering Dr. Regan’s expectations that Mrs. Peake’s neck pain and accompanying headaches, should eventually recover and Dr. Regan’s opinion that negates a continuing connection between her lower back symptoms and the accident.  In my assessment of non-pecuniary damages, and considering Mrs. Peake’s pre-accident condition, I see the medical and other evidence going so far as to support a finding of a possibility that Mrs. Peake will in future continue to suffer some minor residual neck sequelae and headaches that are attachable to the accident, although the most likely outcome is complete recovery from those within two years, insofar as the effects of the 2003 accident are concerned.

 

Pain and Suffering and Your ICBC Injury Claim

If you have an ICBC Injury Claim for Non-Pecuniary Damages as a result of a BC Car Crash (a tort claim) the best way to determine the potential value of your non-pecuniary damages (damages for things such as loss of enjoyment of life, pain and suffering) is to look at how courts have treated similar ICBC injury claims. 
When looking to previous court cases for guidance some of the things you will want to look at are similarities with the type of injury, the severity of injury, the age of the Plaintiff, whether the injury involves a dominant or servient limb, the types of treatments involved and the prognosis.  Another useful factor is recency.  If you can’t find recent cases with similar injuries and are relying on older cases you should adjust the damages for inflation to get a sense of what they would be worth today.
No two injuries are identical and the best one can usually hope to do is find ICBC Injury Cases with a similar injuries to help establish a potential range of damages.  In recognizing the the uniqueness of each ICBC Injury Claim Mr. Justice Halfyard said the following in the case of Tuner v. Coblenz:
It is well accepted that previously-decided cases have limited value which usually consists in establishing a general range of damages within which the award in a particular case may fall.  No two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities.  The injuries sustained by one plaintiff will never be the same as those received by another, in kind or severity.  The reaction of any two persons to the pain of a similar injury, or to particular treatments, will be different.  The length of time that has passed between the date of the injury and the date of trial will vary from case to case, and can be a significant distinguishing feature.
As an ICBC Injury Claims Lawyer I have enjoyed publishing this blog to help people have access to a database of ICBC Injury Claims.  Time permitting I intend to keep this service up.   To this end, here is the latest ICBC Injury Claims update.
Reasons for judgement were released today by the BC Supreme Court (Rattenbury v. Samra) awarding a Plaintiff $30,000 in non-pecuniary damages as a result of an ICBC Injury Claim.
In today’s case the 23 year old plaintiff was injured when he was involved in an intersection crash in Surrey, BC.  The crash occurred when the Defendant attempted a left hand turn in front of the Plaintiff’s vehicle.  Fault was admitted leaving only the issue of quantum for trial (value of the claim).
In this case the Plaintiff suffered a concussion and had headaches, neck pain and shoulder pain.  These injuries resolved fairly quickly.  The most serious injury was an alleged low back injury.  The Plaintiff’s physician gave evidence that the collision caused a disc injury to the L5/S1 level of the Plaintiff’s spine.
The court rejected this opinion and found that this disc injury could have easily preceded the car crash given the Plaintiff’s very active lifestyle.  The court did find, however, that even if the disc injury was unrelated to the car crash this disc injury became symptomatic with pain because of the collision.  The court made the following finding:

[86]            I find myself unable to accept Dr. Fritz’s opinion that the disc injury occurred in the motor vehicle accident.  Certainly the disc injury does exist but Dr. Fritz agrees that it is impossible to prove when it occurred and it could just as easily have occurred from the plaintiff’s other activities than from the motor vehicle accident.  Dr. Fritz did not treat the plaintiff before his accident and it is therefore understandable that he would conclude that the disc injury occurred in the accident when the plaintiff demonstrated a restricted straight leg raising after the accident.  However, I do not think that is enough to prove the disc injury occurred in the accident itself.

[87]            In my view it is enough to prove, however, that even if the disc injury preceded the accident, it became symptomatic with back pain because of the accident.  The evidence is that the plaintiff had no back problems before the accident and was a completely healthy and physically active young man.  As a result of the accident he could not play soccer for six months and was unable to do any of the heavy lifting in his job at Black & Lee.

[88]            The plaintiff’s evidence of originally not being able to do any heavy lifting at work but being able to do it at the time of his examination in January 2008, and then not being able to do it again by the time of trial, is certainly strange.  However Dr. Fritz was never questioned about this evidence and it is logical to me that the plaintiff may have been able to resume the heavy lifting for a time after the accident, with back pain, but over time became too wearing on him and he had to stop.

[89]            I am satisfied that it has been proven that the plaintiff has chronic back pain resulting from the disc injury, even if that injury preceded the accident.  I must accept Dr. Fritz’s opinion that it is chronic because I have no other medical opinion.

[90]            I do conclude, however, this chronic back pain is only mild in nature, in the nature of a nagging back pain that does not disable the plaintiff from pursuing his soccer at the highest level or his golf or any other sports that he used to enjoy, and does not prevent him from working full time at the business in a more supervisory role.

The following damages were awarded after a 2 day trial:
Non-Pecuniary Damages: $30,000
Past Wage Loss: $1,088
Special Damages: $271.56

A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims.  Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision.  The key findings of fact were as follows:

30]            Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do.  Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems.  Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before.  She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31]            I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip.  I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before.  I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches.  However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32]            Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits.  I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits.  Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future.  To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary.  The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:

$35,000.00

Special damages:

$8,500.00

Past loss of wages:

$12,000.00

Loss of capacity:

$20,000.00

TOTAL:

$75,500.00


 
In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.  
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints.  Damages were awarded as follows:

[109]        In summary, my conclusions are as follows:

(a)        The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b)        I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c)        Mr. Haag’s claim for past income loss is dismissed.

(d)        I award Mr. Haag $60,000 for loss of earning capacity.

(e)        Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only.  I will leave counsel to calculate the dollar amount.  The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f)        With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts. 

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC.   The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion.   Her syptmoms improved by about 80% by the time of trial.  The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

 

(a)

Non-Pecuniary Damages

$30,000

(b)

Loss of Income to Trial

$15,000

(c)

Loss of Earning Capacity

$15,000

(d)

Future Care

$     500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry.  This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident.   Damages were assessed as follows:

1.

Pain and suffering

$115,000

2.

Past wage loss (gross)

$75,000

3.

Impairment of earning capacity

$262,000

4.

Special damages

$47,400

5.

Future care

$75,000

Whew!  Now back to work.

ICBC Expert Rejected in Injury Claim, $100,000 Awarded for Myofacial Pain

Reasons for judgement were released today by the BC Supreme Court awarding a 22 year old Plaintiff $50,000 for pain and suffering and a further $50,000 for loss of earning capacity as a result of soft tissue injuries.
The court’s findings of injuries are summarized at paragraphs 45-46 which stated as follows:

[45]            In the final analysis, I am unable to place much weight to Dr. Schweigel’s report.  I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome. 

[46]            I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely.  She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain. 

What interested me most in this judgement was the judges discussion weighing the Plaintiff’s medical evidence against the evidence tendered by the Defendant.  The Defendant relied on Dr. Schweigel, a senior orthopaedic surgeon who is often retained by ICBC to review injury claims and often disagrees with Plaintiff’s physicians regarding the long term prognosis of soft tissue injuries.  In today’s case the court largely rejected his opinion and offered the following analysis:

[36]            The defence relies heavily on the evidence of Dr. Schweigel, an orthopaedic surgeon who examined the plaintiff in January 2008.  Dr. Schweigel concluded the plaintiff suffered no more than a very minor soft tissue injury to the cervical and upper back area. 

[37]            In Dr. Schweigel’s opinion, cervical soft tissue injuries may be classified as either minor, moderate or severe, depending on the presence of various findings and complaints.  In his opinion, a cervical soft tissue injury must be in the moderate to severe category before it will give rise to a chronic myofascial pain syndrome. 

[38]            In his opinion, before being diagnosed with a moderate to severe soft tissue injury the patient must present with a constellation of at least three complaints including:  moderate to severe spasm, moderate to severe deformity, and a moderate loss of motion.  Sometimes the patient will also present with neurological findings and/or x-ray changes and sometimes the patient will require strong pain medication for a few days. 

[39]            Based on his review of Dr. Fahim’s clinical records, including the CL-19 report, which he understood was completed on March 3, 2003, Dr. Schweigel concluded that the plaintiff did not suffer a moderate to severe soft tissue injury.  In his view, since the CL-19 report reflects pain and tenderness of the neck and upper back, a good range of motion of the neck and upper back and mild tenderness of the neck and upper back, the physical abnormalities noted at this time were “extremely minimal”.  He noted that “(s)he had mild tenderness of the neck muscles with good range of motion”. 

[40]            The difficulty here is that the CL-19 report relied upon by Dr. Schweigel was actually authored on March 3, 2004 rather than March 3, 2003.  At that time the plaintiff was in Grade 12, she was dancing regularly and the intensive final examination study period had not begun.  She was in fact doing quite well. 

[41]            This is in contrast to her condition just over a year earlier when Dr. Fahim examined her on February 15, 2003.  At that point he noted her complaints of pain and tenderness in both the trapezius and upper back areas, and the decreased range of motion of her neck in all directions.  There is no recording of “mild” tenderness with a good range of motion as Dr. Schweigel suggests in his report of January 14, 2008. 

[42]            While Dr. Fahim’s clinical records were available for review, Dr. Schweigel made no reference to them in his report.  Nor did he refer to the records of the physiotherapist, Dawn Stevens, who, three weeks post accident, noted that the plaintiff’s neck was “very stiff” and that it was “very hard to mobilize (her) neck”.  

[43]            Quite apart from his erroneous reliance on the March 3, 2004 CL-19 report, I am not persuaded that Dr. Schweigel’s rigid classification of soft tissue injuries and his insistence that a myofascial pain syndrome may only arise in the case of a moderate to severe soft tissue injury case are reliable. 

[44]            While I accept that Dr. Schweigel is a very senior and experienced orthopaedic surgeon, with a long career focused particularly on spinal cord injury, in my view he did not demonstrate the same degree of expertise as Dr. Anton in the diagnosis and treatment of soft tissue injury.  His categorization of soft tissue injuries struck me as both rigid and simplistic.  No peer reviewed journals or other medical literature were produced to support his analysis.  Nor did he demonstrate any in depth appreciation of the characteristics of a “trigger point”, as described by Dr. Anton. 

[45]            In the final analysis, I am unable to place much weight to Dr. Schweigel’s report.  I accept Dr. Anton’s evidence that as a result of the accident, the plaintiff has suffered soft tissue injuries of the cervical and thoracic spine and shoulder girdle, which in turn have given rise to a myofascial pain syndrome. 

[46]            I accept his evidence that while there is some room for improvement, the plaintiff will likely suffer intermittent headaches and neck and upper back pain indefinitely.  She must be careful to modify her activities and avoid bending, leaning, heavy lifting or repetitive lifting—particularly those involving sustained postures of the neck and upper arms or repetitive use of the upper arms—which will exacerbate her pain.  

$25,000 Awarded for Pain and Suffering in ICBC Low Back Injury Claim

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $50,000 in total damages as a result of a motor vehicle collision, $25,000 of which represented non-pecuniary damages (money for pain and suffering).
The collision occurred in 2005.  The Plaintiff’s vehicle was rear-ended.  The court concluded that the force of the impact was mild.  
The court accepted that the Plaintiff suffered a mild muscular injury to his lower back in the motor vehicle accident.  The court also found, however, that the Plaintiff was partly to blame for his ongoing symptoms stating that:
[53]            The fact that Mr. Moojelski has been long-delayed in returning to a normal state of health results from a combination of inadequate or ineffective exercise and supervision, Mr. Moojelski’s refusal to take prescribed medications in prescribed dosages and his decision to exceed the recommended dosages by some substantial margin.  In that regard, Mr. Moojelski admitted that he reported to Dr. McPherson that when he had been prescribed Tylenol 3, he had used 6 tablets every 2 hours, greatly in excess of the prescribed quantity.  I find that it is likely that Mr. Moojelski’s mental health was adversely affected by his personal decision to rely on marijuana as a source of relief rather than adhering to his physician’s prescription of anti-depressants, and by not pursuing physical reconditioning of the kind Dr. le Nobel considers appropriate to a man of his pre-accident physical ability and age. 
The court found that the Plaintiff should fully recover from his injury.  In valuing the pain and suffering claim at $25,000 the court noted the Plaintiff’s role in his prolonged symptoms stating as follows:
[60]            In all of the circumstances, I am satisfied that an award of $25,000 as general damages adequately compensates Mr. Moojelski for the pain and suffering he has endured, and for the adverse effect upon his enjoyment of life and the loss of amenities.  In that assessment, I have taken into account the onset of a mild depression in March 2006, which was accident-related.  However, the depression was prolonged by Mr. Moojelski’s failure to adhere to the use of prescribed medications.  His refusal was unreasonable and is therefore reflected in the assessment of general damages.

Pain and Suffering and Your ICBC Claim

One of the most common questions asked of me through this blog is “how much is my Pain and Suffering worth in my ICBC personal injury tort claim?”.  The answer to this, of course, depends on various factors and who better to discuss these than a BC Supreme Court judge?
On that point, reasons for judgement were released today discussing the law of ‘pain and suffering’ in tort claims.  Pain and Suffering is awarded under the legal head of damage called “Non-Pecuniary Loss”.  Non Pecuniary Loss includes damages for “pain and suffering, loss of enjoyment of life and loss of amenities”.
In today’s case $70,000 was awarded in non-pecuniary damages as a result injuries sustained in a 2005 BC car crash.  In doing so Madam Justice Russell summarized the law of non-pecuniary damages ar paragraphs 104-105 of the judgment as follows:

Non-pecuniary damages

[104]        The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136. 

[105]        There are a number of factors that courts must take into account when assessing this type of claim.  The majority judgment in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines a number of factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of pain;

(d)      disability;

(e)      emotional suffering; and

(f)      loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)      impairment of family, marital and social relationships;

(h)      impairment of physical and mental abilities;

(i)       loss of lifestyle; and

(j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

Cases such as this one are key in helping one understand the principles behind awards for pain and suffering in ICBC tort claims.  Once the general principles of this head of damage are understood, the extent of injuries and prognosis known, and cases with similar injuries are canvassed the easier it will be to value the potential range of damages for pain and suffering in an ICBC personal injury (tort) claim.

Contact

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.

“Work hard, be kind and enjoy the ride!”
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