Tag: soft tissue injury cases

$35,000 Non-Pecuniary Damages for Moderate Soft Tissue Injuries

Reasons for judgment were released today by the BC Supreme Court awarding just over $40,000 in total damages as a result of injuries and loss sustained in a 2006 Richmond, BC Car Crash.
In today’s case (Lo v. Chow) the Plaintiff was injured when his vehicle was struck by the Defendants.  Liability (fault) was admitted by the Defendant leaving the court to decide quantum of damages (the value of the plaintiff’s losses and injuries).
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $35,000 Mr. Justice Sewell of the BC Supreme Court highlighted the following findings:

[19] As I have already indicated many of Mr. Lo’s symptoms resolved within a relatively short period after the accident.  His on-going complaints relate mainly to his lower back and are aggravated by heavy exertion at work.  Mr. Lo did not give any evidence about curtailment of recreational activity which he has suffered as a result of the accident.

[20] I conclude that Mr. Lo suffered a mild to moderate soft-tissue injury as a result of the accident.  On the evidence before me, and in particular given the duration of his symptoms, I conclude that he will continue to be symptomatic for the foreseeable future.  At the same time, the intensity of his symptoms is not severe and they do not appear to be in any way debilitating.  My impression of Mr. Lo is that he has coped well with his pain.  Nevertheless, he has continued to experience pain for over 3 years and, as I indicated above, that pain is likely to continue indefinitely.  In all the circumstances I award Mr. Lo non-pecuniary damages for pain and suffering of $35,000.00.

In addition to the discussion addressing damages for pain and suffering this case is worth reviewing for some of the ways ICBC defence lawyers use entries contained in clinical records to try and impeach a Plaintiff at trial.  This type of impeachment with ‘prior inconsistent statements‘ is a common method used in personal injury claims.

In this case the defence lawyer argued that the Plaintiff’s evidence was inconsistent with statements recorded in certain documents.   Mr. Justice Sewell put little weight in this argument and in rejecting it noted the following:

[13] In his submissions counsel for the defendant submitted that Mr. Lo’s credibility was in issue and that I should be very sceptical about the evidence which he gave as to his condition.  Having observed Mr. Lo in the witness box and taking into consideration the whole of the evidence I find that Mr. Lo was a credible witness and that I should accept his evidence as credible.  He did not seem to overstate his symptoms and gave forthright answers to questions even when the answers did not advance his case.

[14] Defence counsel’s criticisms of Mr. Lo’s credibility are centered on two particular documents.  The first is a document described as a Discharge Report prepared by Mr. Troy Chen, a personal trainer who supervised an exercise program to Mr. Lo between August 29, 2006 and October 12, 2006.  Counsel submitted that Mr. Lo’s evidence that he continues to have difficulty and pain when called upon to do heavy work cannot be reconciled with some of the comments attributed to him in the Discharge Report.  In particular, counsel points to the following passage on page 2 of the Discharge Report dealing with client activities:

“Mr. Lo indicated the following:

Working fulltime as a packager for BEPC Apparel.  No time for any sporting or recreational activities.  On October 12, 2006, Mr. Lo indicated that he was now able to perform all job-related duties without assistance.”

[15] Counsel submits that this statement is inconsistent with Mr. Lo’s evidence that while he was employed at BEPC he required assistance in lifting heavy objects and packages.  He therefore invited me to make adverse findings of credibility against Mr. Lo.

[16] I do not think that Mr. Lo’s credibility is in any serious way damaged by the contents of the Discharge Report.  Firstly, Mr. Chen testified that he has absolutely no recollection of the matters recorded in the Report.  Accordingly, the only evidence that I have from him is in the form of past recollection recorded in the Discharge Report.  Mr. Lo speaks primarily in the Cantonese dialect of the Chinese language.  Mr. Chen speaks English and Mandarin.  He testified that he would have spoken to Mr. Lo through an interpreter but was unable to identify who that interpreter was or the circumstances in which he made notes of Mr. Lo’s comments.  I also note that in the portion of the Discharge Report immediately below client activities Mr. Chen noted that Mr. Lo continued to suffer constant discomfort in his lower back and that exertion tended to elicit pain which may linger for several days.  Mr. Lo also reported to Mr. Chen that lifting heavy objects elicited pain in his right pectoral area.

[17] The other document which counsel submitted brings Mr. Lo’s credibility into question is a WorkSafe B.C. claim filed by Mr. Lo in June 2007 with respect to a work-related injury.  On June 8, 2007 Mr. Lo lifted 30 boxes weighing at least 60 pounds each.  Mr. Lo at that time reported back pain and made a claim for wage loss compensation to WorkSafe B.C.  In the course of investigating Mr. Lo’s claim WorkSafe B.C. required various forms to be completed.  In one of the forms which was completed on behalf of Mr. Lo, in English, he reported that there was no previous condition prior to the injury.  I, again, do not find that the contents of these documents cause me to form an unfavourable impression about Mr. Lo’s credibility.  The documents, as I indicated above, are prepared in the English language and were prepared on Mr. Lo’s behalf by an employee of BEPC.  Mr. Lo testified that the contents of the document were not read to him and he understood that they were an application for benefits.  In all of the circumstances, I do not think that Mr. Lo intended to mislead or make false statements in his application to WorkSafe B.C., nor do I think that the contents of these documents are necessarily inconsistent with Mr. Lo’s symptoms as he reported them to his physicians and testified to at trial.

ICBC Soft Tissue Injury Claims Round Up

As usual its been a busy week with ICBC Injury Claims in the BC Supreme Court.  In addition to the previous claims I’ve posted about this week the BC Supreme Court released reasons for judgement on 3 ICBC Soft Tissue Injury Claims late this week.
The first case (Jacobsen v. Beaton) involved a 66 year old Plaintiff who was involved in an intersection crash in Smithers, BC.  This was a significant crash which caused the Plaintiff’s vehicle to spin 270 degrees before coming to a stop.
All that was at issue in this claim was the value of the Plaintiff’s non-pecuniary damages.  The Court made the following findings with respect to the Plaintiff’s injuries:

(a)        That posterior ligament damage to the neck may be caused by sudden hyperflexion from a high impact blow;

(b)        That the collision in question was sudden and high impact, causing Mr. Jacobsen’s neck to flex and extend;

(c)        That post-collision x-rays showed a widening between two vertebrae consistent with torn posterior ligaments;

(d)        That post-collision range-of-motion testing showed increased neck flexion relative to neck extension, consistent with torn posterior ligaments;

(e)        That when posterior neck ligaments are ruptured, the neck is destablized and the trapezius muscles are overworked to compensate for the damaged ligaments;

(f)        That when the trapezius muscles in the neck are overworked they become stiff and painful;

(g)        That after the collision Mr. Jacobsen suffered from tight and sore trapezius muscles, for which massage provided only temporary relief;

(h)        That torn ligaments do not spontaneously heal; and,

(i)         That prior to the collision Mr. Jacobsen did not suffer from neck pain.

In making an award of $50,000 for the Plaintiff’s non-pecuniary damages the court made the following analysis:

[26]            In the instant case the two most compelling facts are the permanence of the injury and the pervasiveness of the impact of the pain upon Mr. Jacobsen’s enjoyment of life.

[27]            Mr. Jacobsen will live with the injury and the pain it causes for the rest of his days.  He is a fit and healthy senior citizen who clearly anticipates living many more years.  The pain he suffers from his neck injury has a pervasive effect on his life because it chronically deprives him of a restful sleep.  He begins his days feeling weary and drained rather than rested and energetic.  This compromised start affects all aspects of his daily life.  It has taken the lustre off his so-called golden years.

[28]            In all the circumstances, and with due regard for the awards in other cases, I am satisfied that $50,000 would represent a fair non-pecuniary damages award for Mr. Jacobsen.

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The second ICBC Soft Tissue Injury Case released this week(Rochon v. Mott) involved a 36 year old Plaintiff who was involved in an intersection crash in December, 2005.  The Plaintiff suffered mild – moderate soft tissue injuries and the court made the following findings with respect to these:

[29]            At the time of trial Ms. Rochon was 4 years post-accident and still experiencing intermittent pain in her neck, mid back and low back.  There are no objective findings with respect to her injuries.

[30]            I found Ms. Rochon to be a straight-forward witness and she was unshaken on cross-examination. 

[31]            While she had moved from a more physical, demanding position at the Hart Wheel Inn, going first to a different restaurant and then to her present employment with the Credit Union, it is somewhat noteworthy that after commencing employment in September 2008 at the Credit Union she took on 1 shift per week, again at the Hart Wheel Inn, where she testified she had experienced pain as a result of the additional physical work required at that location.  She works 1 shift on Sunday and, although describing the work as quite physical and aggravating to her neck, she took the job because of financial need….

[33]            I have concluded that the plaintiff suffered mild to moderate whiplash as a result of the subject motor vehicle accident.  The plaintiff took a month off from a physically demanding job and completed the minimum number of physiotherapy treatments at the CBI program.  While there are minor inconsistencies in her testimony, I do not find any hidden agenda on the part of the plaintiff but the fact remains that physical observations by her family doctor and by the personnel at the CBI centre indicate more progress than what the plaintiff has testified to in her oral testimony. 

[34]            She has been able to continue to live her life despite some ongoing pain that occurs occasionally when she is physically active.  While she has had to give up the stress releasing activity of belly dancing she has not, since the accident, attempted to replace it with something else, although to some extent she may have replaced it with her involvement in her fiancé’s car racing.  One concern is that following her attendance on Dr. Mah in August 2006 no other appointment was made with respect to her complaints relating to the motor vehicle accident following September 5, 2006 when an ICBC report was completed until March 5, 2008, which I infer from Dr. Mah’s letter was made as a result of Ms. Rochon’s counsel requesting a medical report on January 23, 2008.

On these facts the Plaintiff’s non-pecuniary damages were assessed at $23,000 by Mr. Justice Chamberlist.

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The last ICBC Soft Tissue Injury Claim judgement released last week by the BC Supreme Court (Hutchinson v. Cozzi) involved a rear-end collision in June, 2005.   The Plaintiff suffered soft tissue injuries throughout his back which continued to flare up occasionally by the time of trial.  The court summarized the injuries as follows:

[25]            I find that the plaintiff sustained significant injury to his neck, mid-back, and lower back.  He has testified to these injuries and much of what he says is supported by other testimony.  Several practitioners found objective signs upon palpitation.  Two found his body type susceptible to such injuries.  I find that he has, despite his frequent tardiness and some missed appointments, worked hard at following his health practitioners’ advice about exercise and treatment directed at significant recovery.  I also find that the injuries were disabling for a period of approximately six months, and continued on for some time thereafter, limiting him to light forms of work.  

[26]            I am satisfied that he is now able to perform the tasks necessary for a gas fitter.  I conclude he is not completely recovered, for he now has occasional or sporadic pain which has become chronic.  While compensable, it is no longer significant in the sense of significant impact upon his ability to work or his recreational activities….

[34]            Taking into account the injuries to the plaintiff in this case, the fact that they are almost completely resolved but for periodic flare-ups of pain which I have concluded will not result in any significant loss of work, I assess non-pecuniary damages at $40,000.

$40,000 Pain and Suffering for Neck, Back and Shoulder Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $90,000 in damages as a result of a 2005 collision.
The Plaintiff was 25 at the time of the BC car crash.  He was not at fault for the crash and the trial focussed exclusively on the issue of damages.
The court heard from a variety of experts.  The court also viewed surveillance footage of the Plaintiff playing hockey and doing other physical activities.  Such surveillance footage often comes to light at the trial of ICBC claims, particularly those inovlving on-going soft tissue injuries.
In awarding $40,000 for non-pecuniary damages (pain and suffering) the court made the following findings:

[15] I am persuaded by the evidence to conclude on the balance of probabilities that (the Plaintiff) suffered a flexion extension injury to the soft tissues of his neck, back and shoulder.  Considering the persistent difficulty that he has had with his lower back, the injury is fairly described as moderate in nature.  (the Plaintiff) had back trouble related to his rugby injury and on occasion his extremely heavy work load prior to his injury for which he sought treatment, but I accept his evidence that his previous back problems were intermittent and less severe before the accident.  (the Plaintiff) had already given up rugby and snowboarding prior to his injury.  His ability to play in-line hockey demonstrates that he does not have a functional disability, his problem is that demanding activities can cause the onset of significant pain.

[16] I accept Dr. Travlos’ opinion that:

He will likely still experience intermittent pain flare ups, but should be capable of reasonable physical activity.  He will learn to avoid certain recreational activities and certain types of work activities in order to manage his pains and by doing so should have reasonable pain control.

As I have noted earlier, (the Plaintiff) had pain in his back prior to the collision and would have had it in the future if the collision had not occurred, but his motor vehicle injuries have increased his susceptibility to back pain and made that back pain worse when it occurs.  I assess (the Plaintiff’s) claim for general damages for pain and suffering which has been and will be caused by his motor vehicle injuries above and beyond that which he would have had had he not been so injured at $40,000.

Another ICBC LVI Trial, Another Award for Pain and Suffering

After a summary trial on June 23, 2008 pursuant to Rule 18-A (a rule that lets certain cases proceed to trial using affidavit’s as evidence instead of requiring the parties and witnesses to testify in person in court) reasons for judgement were released today awarding a Plaintiff $12,250.10 in compensation as a result of a 2005 Vancouver car crash.
This is another LVI case. The Plaintiff’s 1995 Honda Civic was rear-ended by a Ford F150 pickup truck. It was apparent that ‘this was a low impact collision’.
Many BC residents have received letters from ICBC telling them their claim has been denied based on ICBC’s LVI policy often referred to as ‘no-crash no cash’.
As is often the case, here the claim was brought to trial and the court recognized that an injury occurred despite the absence of significant vehicle damage. In reaching this conclusion Mr. Justice Williams made some useful comments about LVI crashes, specifically:

[18] This was undoubtedly a low velocity collision where damage to the vehicles was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case the principal evidence in support of the plaintiff’s claim is subjective, that is, it is her self-report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19] In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles is slight or non-detectable, that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces were greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

The court went on to find that the Plaintiff suffered injuries as follows:
[21] I find that the plaintiff is an honest witness and accept her evidence of the event and its consequences. On all the evidence, I conclude that the plaintiff was injured in the collision and that she experienced moderate discomfort in the first two or three months following the accident. With the passage of time, she made a steady and gradual recovery, although there was some ongoing but lessening discomfort over the following months. Fortunately for her, the degree of pain was not especially great, although it undoubtedly detracted from her everyday comfort and full enjoyment of life. To some degree, she experienced frustration and impatience with the way she felt. There is a paucity of evidence with respect to details of disruptions or difficulties that the injuries caused in her day to day routine.
$9,000 was awarded for pain and suffering, $2,031 for lost wages when she took time off work ‘to enable her to recover from her injuries’ and $1,219.10 in special damages (accident related out of pocket expenses).

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.

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