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Functional Capacity Recommendations Awarded if Linked to Doctor Assessment

Occupational_therapy
This personal injury award, $186,000 for injuries suffered in two motor vehicle accidents, was appealed by ICBC, the defendant’s insurer. The judge found the ICBC appellants liable for the two car accidents but ICBC argued that the judge had made serious mistakes in her findings of fault for the injuries and her findings of fact supporting the awards. The  appeal was dismissed, save an agreed adjustment to the award of future care costs.  The judge made no reversible error in the conclusions she reached.(Ali v. Glover, 2016 BCCA 446)
No law was created or clarified in this appeal. The judge found that each car accident caused an aggravation of a degenerative condition in his neck and back that impacted his work and other activities. The judge found that what the other driver said at trial was inconsistent with statements he had made to ICBC and therefore his testimony could not be relied upon.
The claimant was awarded $60,000 for pain and suffering, a past wage loss of $8,000, a loss in his earning capacity justifying an award of $110,000, special damages of $4,001, and future care costs of $4,250.  A total of $186,251 was awarded.
The only interesting part of this appeal was the allegation that care not recommended by a medical doctor cannot be awarded. The Court of Appeal found no justification for this contention and was at odds with what was said in Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39., which I quote was convenience:

[39] I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed.  But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Aberdeen at paras. 43, 63.

The judge relied upon an occupational therapist in assessing the claimant’s functional capacity and his care costs.  The occupational therapist considered the claimant demonstrated restrictions in his capacity to perform his work on a full-time basis and that he should avoid working overtime as doing so increased the risk of further injury to his back.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B
 

Tags: cost of future care, Functional Capacity Report, icbc case examples, ICBC Injury claim, ICBC Statement, Occupational Therapy Expert Opinion, Pain and Suffering

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