Car Accident Injury May Cause Flare ups of Pain But No Loss of Earning Capacity

August 1st, 2012

The injury claimant was an accounting student at the time of this head-on car accident(Pisani v. Pearce,2012 BCSC 1118). One of the key issues related to the extent her symptoms may impact her plan to become a chartered accountant.

The claimant was driving downtown Vancouver and was returning home to their mother’s home in Coquitlam. The claimant entered the intersection east bound on Como Lake Avenue at Porter Street in Coquitlam when suddenly she was struck by a west bound sport utility vehicle. Immediately before the head on collision the claimant braced herself on the steering wheel and slammed on the brakes. She felt her body jerk, the seat belt constrain her, and the air bags deploy.

She sustained soft tissue injuries to her shoulder, neck, and back and will likely suffer flare ups from time to time for the rest of her life.  Her medical expert stated  that her plan to become a chartered accountant was a good fit for her physical capacity but  prolonged use of a computer or sitting at her desk could cause flare ups of pain. The injury claimant therefore made a claim of $125,000 to $150,000 for loss of earning capacity. The judge did not think any employer will complain if she takes periodic breaks to stretch or that taking mini-breaks will affect her income earning ability. In denying her claim for loss of earning capacity the judge gave the following reasons:

[94]  While Ms. Pisani argues that the facts in Mayenburg are distinguishable, I find they are similar. Mr. Justice Myers stated in Mayenburg at paras. 54 to 58.

[54] The real question, therefore, is whether Ms. Mayenburg’s ability to earn income as an accountant or similar job is impaired.  I do not think that is the case.

[55]Ms. Dobbin’s finding with respect to sitting was based on testing Ms. Mayenburg in a sitting position over the course of two hours and 25 minutes in a non-supportive chair.  Furthermore, Ms. Mayenburg was able to sit in a classroom for two hour lectures.

[56]In the absence of evidence to the contrary I think I can assume – whether as a matter of judicial notice or common sense – that an accountant or similar professional is not tied to his or her seat for any fixed duration.  Ms. Mayenburg will be free to get up and stretch as she wishes.  Similarly, I do not think that a prospective accounting firm or similar employer would balk at hiring Ms. Mayenburg if she told them that she would have to get up and stretch periodically.

[57] Just as Ms. Mayenburg was able to complete her studies successfully, there is no reason to think that her injuries will impede her ability to be a successful accountant.  She might suffer some discomfort while performing her job, as she does when hiking and running, but that is what the general damages are meant to compensate.

[58] These comments apply with greater force to prospective self-employment as an accountant or similar professional.

[95]  I am not satisfied that there is a real and substantial possibility that she will suffer an income loss as a result of her injuries. I decline to make an award to Ms. Pisani under this head of damages.

The court went on to however to award  the claimant the following:

Pain and Suffering $80,000.00
Delayed Entry into the workforce $35,000.00
Loss of Housekeeping Capacity $5,000.00
Cost of Future Care $3,000.00
Out of pocket expenses $997.95
TOTAL $123,997.95

Posted by Personal Injury Lawyer Mr. Renn A, Holness B.A. LL.B.

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Personal Injury Claimant Wins Award for Loss of Farm Earning Capacity

July 19th, 2012

In this loss of farm earning capacity car accident case(Verge v. Chan,2012 BCSC 876) the claimant’s vehicle was hit head-on at the intersection of Summit Drive and Chilcotin Crescent in Kelowna. The injury claimant suffered soft tissue injuries to her neck and back, a fractured right talus, bruising to and pain in her chest, and pain in her left shoulder, both knees, and hip. At the time of the trial she continued to suffer from her ankle injury, sleep disturbance, headaches, stress, anxiety, including post-traumatic stress disorder,  depression and chronic pain.

Her and her spouse owned a farm and she played a significant role in the farm operations.  She kept 35 chickens, and assisted feeding the horses and cows in the evenings and on weekends.  She also assisted with the moving of irrigation pipes in the fields during the growing and summer season in the evenings and on weekends.  She assisted  building fences and with many other jobs about their property.  She kept a vegetable garden which was used for family consumption.

In addition, she worked full time at a job as a receptionist.   Notwithstanding her rigorous work schedule, the evidence established she enjoyed her rural lifestyle.

In making an award of $125,000.00 for loss of farm earning the judge commented,

[84] In my view, this case engages the capital asset approach discussed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.).  It is clear Ms. Verge meets the criteria:  she has been rendered less capable of earning income overall as a result of the accident; she is less marketable as an employee as a result of her ankle injury; she has lost the ability to take advantage of all job opportunities which were formerly open to her; and she is less valuable to herself as a person capable of earning income in a competitive labour market…

[91] I conclude Ms. Verge is entitled to compensation for loss of future earning capacity in two areas:  loss of future farm earning capacity and future loss of earning from employment.  There will be some deductions for future contingencies.

The court made the following personal injury award:

Pain and Suffering $125,000.00
Past loss of earnings/Farm labour $45,000.00
Loss of future earning capacity  
- Loss of farm earning capacity $125,000.00
- Loss of future income from employment $100,000.00
Costs of future care $82,367.00
Out of pocket expenses $4,257.39
TOTAL $481,624.39

Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A., LL.B.

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ICBC Defends Car Injury Case and Massage Therapist Still Wins $300,000 Award

July 17th, 2012

The claimant, a registered massage therapist, was injured in a motor vehicle accident(Combs v. Moorman,2012 BCSC 1001) when her car, which was stopped, was struck from behind  in New Westminster, BC. Her vehicle was pushed into oncoming traffic and struck again head on by another vehicle.   ICBC participated directly in the personal injury lawsuit as a Third Party and the at fault driver did not attend the trial.

The injury claimant suffered fairly extensive injuries in the accident, some of which are permanent.   A hematoma in her knee and damage to her finger, though not interfering with her activities, will not improve.  She now deals with daily neck, back and hip pain and has done so for four years.  While surgery will likely improve her hip pain, it is not likely that her neck and back pain will resolve.  Her prognosis was said to be poor.

At the time of the car accident she was working only three days per week because she had just had her first baby.  She was planning to get back up to 4 ½ days and her claim was that she has lost her ability to perform at that level.

The judge was satisfied that the claimant had established a substantial likelihood of loss of a half day per week, but estimated the chances of the loss occurring after the birth of her second child at about 50%. The judge also agreed that the injury claimant will suffer some ongoing loss in the future as a result of the diminished working hours and possible retraining and will also suffer a loss associated with the surgeries and recovery time. The court therefore awarded the following:

Pain and Suffering $90,000.00
Past Wage Loss $51,480.00
Loss of future earning capacity $100,000.00
Cost of future care $40,000.00
Out of pocket expenses $17,456.62
Past Loss of housekeeping capacity $10,000.00

 Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A., LL. B

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Car Accident Injury Claimant Wins Case Despite ICBC Statements

July 16th, 2012

This personal injury case involved four car accidents for which liability was admitted(Demidas v. Poinen, 2012 BCSC 416). The Insurance Corporation of British Columbia (ICBC), on behalf of the defendants, said that the injury claimant was an unreliable witness and deliberately exaggerated his claims.  In each of his ICBC statements following the four accidents, he listed numerous complaints that he did not subsequently report to his doctor.

Accident #1 he  said he suffered injury to his neck, upper back, lower back, buttocks, both shoulders, left arm, right arm, both hips, and both knees. The claimant said he was also experiencing trouble sleeping, nausea, fear of driving, headaches, and pain and numbness down the back of his left leg.

Accident #2 - The claimant said he suffered injury to neck, upper back, mid back, lower back, buttocks, both shoulders, both arms, both hands, abdomen, both legs and a both knees.  He said he was also experiencing shock, ringing in his ears, trouble breathing, fear of driving, trouble sleeping and “I am scared”.

Accident #3 – The claimant said he suffered injury to his neck, whole back, buttocks, shoulders, arms, chest, hips and knees.  He said he was also experiencing pain down the back of both legs, tingling and numbness in both hands, tingling in his feet, headaches, dizziness, blurred vision, ringing in the ears, trouble sleeping, trouble breathing, poor memory, poor balance, difficulty concentrating, and fear of driving.

Accident #4 - The claimant  said he suffered injury to his neck, whole back, both shoulders, both arms, chest, buttocks, right knee, left knee, both legs.  He said he was also experiencing headaches, shock, dizziness, buzzing in his ears, pain and numbness into both legs, trouble sleeping, nervous when driving, anxiety, trouble concentrating and “am depressed”.

However, the court found the claimant to be  a straightforward witness.  “His list of symptoms given in his initial statement is indeed a veritable “shopping list” as defendants’ counsel says, but his reports to his doctor were limited to pain in his neck and right shoulder blade and lower back, which has persisted to this day”. With respect to the award of damages the Judge was quick to point out that, Read the rest of this entry »

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$250,000 Personal Injury Award Reduced by 25% Despite Claimant being Rear ended

June 19th, 2012
In this unique factual scenario, the BC Supreme Court found that the car accident, which occurred on King George Highway in Surrey, was caused by a car rear ending the injury claimant. However the injury claimant that was rear ended still faced some responsibility(Stanikzai v. Bola, 2012 BCSC 846) because he failed to see the other driver’s turn signal.

The Judge found  that the defendant, in changing lanes, failed to notice or properly assess the position of other vehicles and failed to ensure that she had sufficient room to change lanes safely.  Because it was the defendant who created the dangerous situation, the Judge found she must bear the greater share of blame and apportioned liability 75 per cent to the defendant and 25 per cent to the injury claimant.

In assessing compensation for pain and suffering the Judge observed that the injury claimant experienced and will continue to experience low back pain. However, the claimant remains able to do a variety of day-to-day tasks, but is restricted from more strenuous activities, including his former recreational activities.  If the Judge had not found the claimant to have been at significant risk for back problems, Judge Smith would have assessed non-pecuniary damages (pain and suffering) at $100,000. In recognition of that risk, the Judge applied a 15 per cent reduction and assessed  non-pecuniary damages at $85,000.

The claimant’s total personal injury award amounted to the following:

Pain and Suffering $ 85,000
Past Income loss $ 10,000
Loss of Future Earning Capacity $125,000
Cost of Future Care $ 31,000
Out of pocket expenses $    2,000
subtotal $253,000
Less contributory negligence @ 25 per cent ($63,250)
Total $189,750
 

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Surrey Car Accident Injury Claimant Awarded Loss of Earning Capacity despite Inconsistencies

June 14th, 2012

This car accident personal injury claim occurred at  92nd Avenue in Surrey,(Narain v. Gill,2012 BCSC 848) British Columbia when the claimant was hit head on by a minvan. The Insurance Corporation of British Columbia (“ICBC”) did not admit fault, but liability was not contested, and the judge found that the other driver was negligent and caused the accident.

When assessing the reliability of the injury claimant’s evidence with respect to her claim for pain and suffering the judge observed,

[39]  One of the universal difficulties in assessing or quantifying pain and the consequent effect on enjoyment of life is the subjective nature of pain. As Dr. Anton pointed out in his first report, it is not possible to objectively quantify disability due to pain. Doctors generally accept the self-reporting of their patients as factual. The court must assess the reliability of the plaintiff’s testimony in the context of the adversarial process, where testimonial reliability is questioned, sometimes with vigour, as in this case. The universal difficulty with assessing the effects of a plaintiff’s pain is compounded in this case, because the issue involves comparing Ms. Narain’s pain levels and disabilities pre-existing the subject accident to pain levels and disabilities following the accident, based on her self-reporting in the past and at present, overlaid with pre-existing and ongoing depression.

The Court did not accept ICBC’s argument that the claimant  had fully recovered to her pre-accident state of health and that her capacity to earn income was undiminished. Nor did the Judge accept the award suggested by the claimant as being fair and reasonable. The judge stated at paragraph 68, “There is a reasonable prospect of full recovery to pre-accident status with the appropriate interventions and therapies, but there is a real and substantial possibility that her pain symptoms will not fully abate to that point. In the latter event, I find that the plaintiff will suffer an impairment of her earning capacity in one or more of the ways described in Brown v. Golaiy, [1985] B.C.J. No. 31.”

The Surrey injury claimant was awarded the following:

Pain and Suffering: $50,000.00
Past wage loss: $18,225.00
Loss of future earning capacity: $30,000.00
Loss of housekeeping capacity: $5,000.00
Cost of future care: $10,225.34
Out of Pocket expenses: $3,284.73
TOTAL: $116,735.07

 Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A., LL.B.

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Car Accident Injury Claimant Awarded Child Care Costs -Upheld by BC Court of Appeal

June 13th, 2012

This child care costs case (Tsalamandris v. McLeod, 2012 BCCA 239) was an appeal of  a $740,000 award  for loss of future earning capacity and a $135,050 award for cost of future care made at trial for injuries sustained in two motor vehicle accidents.   The appellants admitted fault  for the two car accidents accidents and the trial judge concluded that the  injuries were indivisible  and assessed them on that basis.

The British Columbia Court of Appeal allowed  the appeal to the extent of reducing the cost of future care by applying a contingency of 10% in respect of the cost of a Pilates programme and the respondent’s share of the cost of a membership in a community centre.  However, the Court found that the cost of child care was a cost incurred in order  to undertake a rehabilitation programmes and were caused by the accident and are compensable.

In the first car accident the injury claimant was driving south on Granville Street towards the Vancouver airport and a car behind then drove into the back of the claimant’s car.  The car was driven by the defendant Ms. MacDonald. The claimant said that the accident felt like a considerable amount of force.  Her body hit the back of her seat and she remembers having a sore head and back.  She went to UBC Hospital right away and subsequently went to massage therapy, before seeing her family physician.

The second accident happened almost two years later when the claimant was parked next to the curb, and sitting in the driver’s seat.   The claimant’s young daughter was in her car seat in the back seat, and the claimant twisted sideways from the front seat to strap the daughter into the car seat.  While in this twisted position, the claimant suffered the second accident.  The claimant’s first thought was for her unborn baby, as she was then approximately seven months’ pregnant.  She was taken to St. Paul’s Hospital and initially the fetus was moving quite rapidly and eventually the movements calmed down.  The claimant was told that it was safe to leave the hospital.

The trial judge awarded $18,000 as damages representing 18 months’ child care costs. In upholding this award the Court of Appeal stated at paragraph 77: Read the rest of this entry »

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How Much Should I get from ICBC for a Whiplash Injury?

May 22nd, 2012

As a personal injury lawyer in British Columbia I am often asked, “How much is my ICBC car accident injury worth?” by clients and potential clients.  Many car accident injury claims involve damages to the muscles and ligaments (soft tissue) in the neck which is commonly referred to as Whiplash.  For the purpose of injury compensation and payment of treatment costs, the Insurance Corporation of British Columbia, ICBC, has adopted a classification system for what they call Whiplash Associated Disorder (WAD). This disorder  is broken down into:

  1. Grade 0: no neck pain, stiffness, or any physical signs are noticed;
  2. Grade 1: neck complaints of pain, stiffness or tenderness only but no physical signs are noted by the examining physician;
  3. Grade 2: neck complaints and the examining physician finds decreased range of motion and point tenderness in the neck;
  4. Grade 3: neck complaints plus neurological signs such as decreased deep tendon reflexes, weakness and sensory deficits;and
  5. Grade 4: neck complaints and fracture or dislocation, or injury to the spinal cord.

ICBC and other insurance companies tend to have a “meat chart” for injuries depending on the serverity, frequency and duration of the injury. These assessment charts are not reflective of what compensation a claimant can get in court but will often reflect what injury claimants might agree to accept without the benefit of a lawyer. There is no injury chart in British Columbia that injury claimants can look at to determine what their cases are worth and lawyers are required to research the law to find comparable cases to present to the court.

In the personal injury infant case, Hahn v. Barnes, 2012 BCSC 724, the injury claimant was awarded $40,000.00 for pain and suffering. The claimant was young and had a long standing neck and back injury. However, the claimant’s injuries were not severe or disabling and the court had no evidence that the injuries caused the claimant any emotional suffering. This case did examine the factors that the court considers when deciding how much a claimant should get for pain, suffering and loss of enjoyment of life.

 

 The judge in the Hahn case referred to the decision of Collyer v. Boon, 2008 BCSC 1745, wherein Madam Justice L. Russell, at para. 105, stated the following:

There are a number of factors that courts must take into account when assessing this type of claim [for pain and suffering]. 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[ compensation for pain and suffering] 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).

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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Personal injury Claimant has Welfare Payments Deducted from Car Accident Award

April 2nd, 2012

This car accident injury claimant was awarded over $1.6 million for personal injury after deduction of welfare payments(Campbell v. Swetland, 2012 BCSC 423). This  personal injury claim arose from a motorcycle and automobile collision that occurred when the claimant was riding her red 2010 Triumph motorcycle northbound on Highway 6 when the south bound defendant, driving a white 1998 Subaru Forester, turned left across her path.  The collision occurred at the intersection of Highway 6 and Storbo Road about 7 kilometres north of Crescent Valley near Nelson, British Columbia.

 The judge found that the other driver was at fault.

The claimant suffered severe, debilitating and life threatening injuries. With respect to the deduction of past and future welfare payments the court pointed out,

[69] The Supreme Court of Canada affirmed the deductibility of welfare payments from income loss awards in M.B. v. British Columbia, 2003 SCC 53, [2003] 2 S.C.R. 477, holding:

25. It is argued that social assistance is not a form of income replacement, because it is given on the basis of need for the purpose of relieving poverty.

26. In my view, this argument is mistaken. It is true that social assistance benefits are intended to relieve poverty, and that need is the relevant criterion. However, as Smith J.A. pointed out in his dissenting judgment in the Court of Appeal in the case at bar, this does not mean that they are not intended as wage replacement. On the contrary, it suggests that they are intended to replace that part of employment income that would normally be spent on meeting basic needs (para. 162). Most people who require welfare require it because they lack sufficient income to meet their basic needs, and the normal source of sufficient income is employment of one sort or another. Social assistance therefore replace income that most people would have obtained through employment. It does not purport to replace all of the income they would have obtained if they had a job. It only replaces enough to satisfy basic needs. But it is no less “wage replacement”, simply because it only replaces a portion of the income a person might otherwise have had.

Posted by personal injury lawyer Mr. Renn A. Holness

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