$65,000 Awarded for Soft Tissue Injuries & Chronic Pain Disorder in ICBC Injury Claim

In the recent case of Loveys v. Fleetham, 2012 BCSC 358, Mr. Justice Armstrong awarded a plaintiff $65,000 in non-pecuniary damages (pain & suffering) following a seventeen day trial for injuries sustained in a motor vehicle accident in November 2006.
The plaintiff argued that the accident caused a chronic pain disorder associated with psychological factors, including an anxiety order and an aggravation of her pre-existing depression and bulimia.
Failure to Lead Evidence of Treating Doctors:
In his decision, Mr. Justice Armstrong noted criticized the plaintiff for not leading evidence of her treating physicians. In that regard he said the following:
[119] There are significant shortcomings in the medical evidence offered to support Ms. Loveys’ claims. The difficulties in assessing her claim stem, in part, from the absence of any medical opinions from physicians treating the plaintiff for the first 2 1/2 years after the accident. The three opinions relied on by the plaintiff were very much dependent on the plaintiff’s recollection of events, records and opinions created by others in the immediate aftermath of the accident and the intervening 2 1/2 years. There is no opinion from Dr. Bola-Reebye, the plaintiff’s initial attending family physician. Ms. Loveys was seen by a physiatrist, Dr. Jaworski, and a psychiatrist, Dr. Zaitzow, both of whom appear to have provided reports which were not tendered at the trial but were referenced in the opinions of Dr. Mallavarapu and Dr. Hirsch. I was not asked to draw any adverse inference from the plaintiff’s failure to call evidence from these treating physicians.
Compounding the problem, the plaintiff’s psychiatric expert confirmed in cross-examination that “psychiatric assessments and diagnosis are more reliable when the data is obtained closer to the causative event”.
I regards to the plaintiff’s injuries the court concluded that she had sustained soft tissue injuries to her neck, back and shoulder that “evolved” into a chronic pain disorder. The court futher accepted that the plaintiff’s pre-existing symptoms of depression and bulimia had been aggravated by the accident. However, Justice Armstrong was not persuaded that the plaintiff’s psychiatric problems were caused by the accident. In that regard he said the following:
[191… the plaintiff has not proven that “but for the accident” she would have suffered the recurrent bulimia, acute stress disorder and/or depression.
[192] Ms. Loveys experienced significant psychological symptoms after the accident but they have not been proven to have resulted from the car accident. On the evidence it is equally possible she would have developed a major depression even if the motor-vehicle accident had not occurred. The history of disputes with CRA, the bankruptcy, the serious tax arrears, the death of her friend, her parents’ illness, and the strata owners litigation all indicate she faced serious stressors that would have occurred independent of the accident. She had already had an attack of bulimia in March 2006 and was under stress at the time of the accident.
[193] In my view Ms. Loveys’ psychiatric symptoms represented a divisible injury which is separate from the initial pain and chronic pain complaints that have persisted.
[194] The plaintiff in the case at bar seems to possess a “crumbling skull” with respect to her psychiatric condition…
[195] I accept that the plaintiff’s psychiatric symptoms diagnosed by Dr. Mallavarapu may have had an impact on perpetuation of her chronic pain symptoms. To the extent there was a connection between her continuing chronic pain and those symptoms, the damages caused by the chronic pain are fully compensable. In that respect, the injuries are indivisible. However any other damage caused by the psychiatric symptoms not connected to the chronic pain is divisible and is not compensable.
In awarding the plaintiff the above amount, Justice Armstong said the following:
[214] I have concluded that Ms. Loveys has endured significant suffering and inconvenience resulting from the injuries from the accident. I observe that she will likely have symptoms of chronic pain for the balance of her life although there is some possibility she may yet achieve some improvement. Although I do not attribute her recurrent bulimia or her depression to the accident I accept that the duration of her physical symptoms and the interference with her very active lifestyle are important factors in this assessment. The presence of chronic pain has, for this very active woman, impacted her work life, her competitive and recreational dance, and the level of enjoyment she achieved from her other recreational choices. The plaintiff had an extraordinary history of physical accomplishments in her vocational and recreational life before the accident and her return to full participation in these activities is guarded.
[215] Her injuries will not prevent her from returning to most of those activities; she will not be able to perform in those areas with the same intensity and for the same duration she enjoyed prior to her injuries.
[216]Even on an intermittent basis, chronic pain

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deprives a victim of the enjoyment of a full and active life. Chronic pain coupled with the limitations on Ms. Loveys’ recreational activity and work will play an important part limiting her future enjoyment. I must consider that her low back pain and toe pain will also detract from her enjoyment of life as will her psychiatric health issues. In view of all of these factors I conclude that she is entitled to $65,000 for her non-pecuniary losses.

Loss of Future Earning Capacity:
Justice Armstrong made a further award of $100,000 the plaintiff’s loss of earning capacity. In that regard he said the following:
[312] I conclude Ms. Loveys is less capable overall of earning income due to the compensable injuries I have described…The evidence establishes that there is a real and substantial possibility that her ongoing chronic pain will impair her future income prospects. It is Ms. Loveys’ capacity that has been diminished because of the injuries.
[313] Although she will be able to perform substantially all of her duties, I conclude that the chronic nature of her physical complaints will limit her effectiveness and durability in the business of real estate sales. I accept the evidence she gave that she is less able to perform a door-to-door marketing campaign on a sustained basis as she did before the accident. I also accept that her ability to attend to office work on a prolonged basis is limited and that she will need to make adjustments in her schedule to accommodate these shortcomings. In the end I am satisfied there is a substantial likelihood that she will earn less commission income in the future. Ms. Loveys related her immediate post-accident losses to specific opportunities she was pursuing in November 2006 but which did not result in sales. Some of the facts focused on were the result of speculation and hearsay as evidence of the lost sales opportunities in 2007. However, I conclude the amount of income loss and duration of that loss is to be measured against medical and vocational evidence.
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