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Tag: Whiplash Associated Disorder

Chronic Whiplash Associated Disorder and the "Unrelated Pain" Defence

It is well established that a small percentage of people who suffer from whiplash associated disorder following a collision go on to experience pain for a prolonged period of time.
When cases with prolonged injury go to trial it is not uncommon for the Court to hear competing medical evidence as to the cause of the chronic pain.  Oftentimes defence doctors provide opinions that causes unrelated to the collision are responsible for a Plaintiff’s ongoing symptoms.  Reasons for judgement were released today by the BC Supreme Court, Powell River Registry, dealing with and dismissing such a defence.
In today’s case (Borgfjord v. Penner) the Plaintiff was involved in a rear-end collision.  Fault for the crash was admitted by the Defendant.  The trial focused on the value of the Plaintiff’s claim.
The Plaintiff injured her neck in the crash.  She went on to have chronic symptoms of pain.  The Defendants acknowledged that the Plaintiff likely had on-going pain but argued that this was unrelated to the crash and instead was as a result of ‘degenerative changes’ .  Mr. Justice Shabbits rejected this argument and went on to assess the Plaintiff’s non-pecuniary damages for her chronic whiplash injury at $85,000.  In rejecting the defence argument the Court provided the following useful reasons:
[74] Dr. Dommisse’s opinion is that cervical strain caused the plaintiff’s early problems and that her cervical strain symptoms likely resolved within 6 months to 2 years post accident. His opinion is that degenerative changes caused the plaintiff’s later problems. He says that degenerative changes are the cause of the plaintiff’s continuing problems…

[98]         In my opinion, the plaintiff has established that the accident caused her to suffer a cervical strain.

[99]         In my opinion, Dr. Dommisse is speculating when he opines that the plaintiff’s accident caused symptoms have already resolved. The usual pattern of soft tissue injury may well involve the resolution of symptoms within 6 months to two years post injury, but the plaintiff’s complaints have continued unabated and there is no certainty that the plaintiff’s disc protrusion or degenerative condition of the spine is now or ever has been symptomatic. Dr. Waterman’s opinion is that what he saw on the MRI, (which includes the disc protrusion), is unlikely to be clinically significant. He says it is difficult to attribute spine pain to what he observed.

[100]     I accept the opinion and prognosis of Dr. Waterman. In my opinion, his evaluation and analysis of the medical evidence is persuasive.

[101]     I find that the plaintiff suffered a whiplash injury in the motor vehicle accident and that her whiplash caused injuries are ongoing. I think it more likely than not that the plaintiff falls within that category of patients referred to by Dr. Waterman who experience whiplash caused pain for years post-accident. I find that the most likely outcome of the plaintiff’s injuries is that she will be improved in several years, but that she will suffer intermittent pain which she will be able to largely control by modulating her activities…

[124] I assess the plaintiff’s non-pecuniary damages at $85,000…

$45,000 Pain and Suffering for Aggravation of Degenerative Changes

Reasons for judgement were released today awarding a Plaintiff just over $100,000 as a result of a 2006 collision which occurred in Vernon, BC.
The Plaintiff was hit from behind when stopped for a red light.  The issue of fault was admitted.  The accident resulted in minimal vehicle damage.  In many ICBC claims defence lawyers try to get the Judge/Jury to focus on the lack of vehicle damage as opposed to the medical evidence.  Here the Court noted that “Although the lack of vehicle damage may be a relevant consideration in considering (the Plaintiff’s) injuries,k it has to be balanced against the evidence of the Plaintiff and the medical evidence.
The court heard from various medical experts including the Plaintiff’s doctor and 2 physiatrists (physicians specializing in rehabilitation).
The court accepted that the Plaintiff suffered a Whiplash Associated Disorder, cervicogenic headaches, and an onset of pain in previously asymptomatic degenerative changes in her neck.  The court further accepted that these injuries will linger for some time but should continue to improve in the coming years.
The court assessed damages as follows:

Non-pecuniary Damages:


Special Damages:


Past Loss of Earnings/Opportunity to Earn:


Loss of Future Earning Capacity:


Cost of Future Care:


Loss of Past and Future Housekeeping Capacity: