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Court Blames Injury Claimant for not Following Treatment Despite 72 Physiotherapy Visits


Schmidt v. Hawkins, 2010 BCSC 1154
August 17, 2010-  The claimant was driving her car between Sparwood and Invermere, British Columbia returning to Kamloops, British Columbia having attended a  birthday party in Sparwood. Just before the accident the injury Claimants’ vehicle was travelling at approximately 100 kilometres per hour. As claimant vehicle rounded a corner a half-ton truck, drove into an intersection and stopped.  The injury claimant  slammed on her brakes but  was unable to avoid hitting the  truck. The truck driver admitted fault.
The claimant’s doctor  diagnosed her with myofacial pain syndrome relating to trapezius muscles and thoracic facet joint dysfunction, cervicogenic headaches due to facet joint or occipital nerve involvement, medication side effects of Pregabalin, overuse of passive coping strategies and high catastrophizing tendencies.
ICBC, on behalf of the truck driver, argued that the claimant is to blame for not getting better by failing to take the advice of her doctors and healthcare providers.  The advice she failed to follow was to  involve herself in a properly structured exercise and strengthening program.  All the physicians who examined or treated the injury claimant recommended that Mrs. Schmidt involve herself in swim or involve herself in a gym program or both.
The judge found that the claimant was to blame for not following the advice of all of the doctors who examined her and gave opinions. The judge therefore reduced her money award for pain and suffering  and cost of future care by 15%.
The judge awarded the injury claimant the following:

Pain and Suffering   $45,000 (less 15%) $38,250.00
Future Cost of Care   $5,713.00 (less 15%) $4,856.05
Out of Pocket Expenses $11,090.92
Total: $54,196.97

Posted by Mr. Renn A. Holness
Issue: Should an injury claimant be compensated for treatment that does not improve the condition but only makes it temporarily better?

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