Defence Doctor's "Bald Proposition" Minimizing Collision Related Injuries Rejected
Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting defense expert evidence minimizing the connection of chronic pain issues to a motor vehicle collision.
In today’s case (Worobetz v. Fooks) the Plaintiff was injured in a 2010 collision and continued to experience symptoms at the time of trial. The defendant admitted fault but denied the extent of the Plaintiff’s injuries. In support of his case the Defendant retained a physician who gave evidence that the Plaintiff’s lingering symptoms were likely related to deconditioning and being overweight. In rejecting this evidence Mr. Justice Joyce provided the following critical comments:
[91] Dr. Grypma’s opinion appears to be based substantially on two things: first, the lack of evidence of any structural injury; and second, her lack of conditioning and mild obesity. Dr. Grypma suggests that if Ms. Worobetz had suffered an injury other than a mild soft tissue injury, she would have experienced immediate pain of such intensity that she would have sought out immediate attention at an emergency room. I am not persuaded, however, that a person need sustain a serious structural injury in order to develop serious and chronic pain following a trauma such as an Accident. There are simply too many cases where persons have been found to have developed chronic back pain following a motor vehicle accident in the absence of objective evidence of structural damage to accept Dr. Grypma’s bald proposition.
[92] Dr. Grypma’s opinion that Ms. Worobetz suffered only a mild injury that would have healed completely within a few months is contradicted by the evidence of Ms. Worobetz concerning her symptoms and how they affected her functioning, which is supported by the evidence of a number of other specialists who have treated Ms. Worobetz and followed her progress over a long period of time.
[93] In my opinion, it is a relevant factor that Ms. Worobetz developed her pain complaints very soon after the Accident and that they progressed, with little change, until the present time. I accept that a mere temporal connection between an accident and the development of pain is not determinative by itself that the Accident caused the pain, but it is, nonetheless, a relevant factor. I also accept that the court must be cautious in relying on the subjective complaints of a patient, where there is no other objective evidence to support those complaints.
[94] However, in this case, there is more evidence than simply subjective complaints and a temporal connection between those complaints and the Accident. I accept that Ms. Worobetz’s symptoms of pain are real and honestly felt. The manner in which they have impacted her functioning is supported by evidence of her husband, mother, co-worker and the woman for whom Ms. Worobetz acts as a support teacher. There is a strong body of expert opinion evidence in this case from specialists in a number of fields to support a finding that Ms. Worobetz’s ongoing pain was caused by the Accident. Those specialists have spent a great deal of time examining Ms. Worobetz, investigating her complaints and providing treatment. In my respectful view, their evidence is to be preferred over that of Dr. Grypma, who conducted a single, rather brief examination and a review of her medical records.
[95] Dr. MacInnes, in particular, puts forward an explanation as to how Ms. Worobetz could have developed the pain at various sites in her body as a result of a rather modest soft tissue injury that one would ordinarily think would resolve quite quickly: central sensitization. Dr. Grypma admits that he is not qualified to comment on that topic, so he is not able to agree or disagree that it is a reasonable explanation for Ms. Worobetz’s continuing symptoms.
[96] In summary, I find that but for the Accident, Ms. Worobetz would not be suffering the ongoing symptoms that she feels and her daily activities of life and ability to work would not be affected the way they are. She is less able to enjoy the social and recreational pursuits that she used to enjoy. She is less able to carry out the functions of a mother and wife, compared to her life before the Accident. She no longer has the same ability to work at her chosen career as a teacher because of the Accident.