Category Archives: Believability of claimant

Claimant’s experts out-persuade ICBC’s specialists- judge awards $765,395 for chronic pain

Ms Lauriente was injured in an mva in 2010 & developed chronic neck pain & headaches. The main issue in her trial was whether they impaired her future ability to work full-time as an RN. Dr. Locht, an orthopedic surgeon, assessed Ms. L for ICBC. He wrote that Ms L’s injuries did not give rise to any impairment in her function. The judge dismissed his opinion & wrote that: Continue reading

Judge disbelieved claimant because his testimony conflicted with other evidence – denies his income loss claims

This case is a great illustration of how judges & also ICBC decide whether or not to believe what a claimant is telling them.  Mr. Nagra claimed at his trial that he lost income & will lose income in the future in his orchard business as a result of the injuries he suffered in his MVA  3 years earlier. The judge entirely rejected these claims.
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Claimant’s believability at trial harmed by his non-disclosure to CRA of his tips as a server

Mr. McLatchie, a 46-year-old server, continued to suffer from chronic pain & a psychological reaction 5 years after his MVA. He claimed that his injuries limit his work ability.

At trial, he admitted that he had received tax credits & health benefits from governments by under-reporting his income to the CRA. Continue reading

Judge awards young woman $425,000 for her loss of future earnings due to her inability to pursue a law enforcement career

Ms. Bains was 27 when she was injured in a car accident in 2013. She was interested in finding a career as a law enforcement officer. This would have required her to pass challenging strength & endurance testing.

She claimed at trial 4 years later that she was no longer able to do this work due to her ongoing injuries & limitations. Continue reading

Judge awards $80,000 for pain & suffering to plumber who worked through his long-term pain

Mr. Catling, age 56, was broadsided in a car accident.  Four years later at his trial, he complained of ongoing pain in his back, knees & elbows which doctors diagnosed as moderate soft tissue injuries. 

His work in his own small plumbing business involved very physical labour & working in awkward body positions. ICBC’s medical expert was optimistic about his recovery but the expert hired by Mr. C’s lawyer was quite pessimistic. 

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Injured & getting the feeling that someone is watching you?

If you get the feeling that someone is watching you may be correct. Sometimes an investigator ICBC hires will sit in a parked van on the street where an injured person lives.

ICBC uses this less these days since it now gets some valuable evidence much less expensively by checking claimants’ social media sites, particularly Facebook.

The following are some of the most important aspects of ICBC surveillance.  Continue reading

 Judge awards $125,000 for pain & suffering to claimant with permanent low back disc injury who exaggerated his disability

Mr. Churath, age 46, was rear-ended in a car accident. Five years later at his trial, he complained of back pain which radiated down to his right foot, continuing disability & resulting depression.

Video ICBC investigators took showed that Mr. C was less limited in his activities than he claimed.

One year before his accident, he suffered a low back disc injury. After surgery, he was left with only minor pain & limitations at the time of his car accident.

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ICBC uses young man’s Facebook posts to greatly weaken his claims for damages

Mr. Dhaliwal was 24 years old when he went to trial. He had posted on Facebook photos & opinions about his job & recreational activities & his thoughts on the police. He claimed that he continued to suffer from neck, shoulder & back pain & that his pain impaired his ability to work.

ICBC’s lawyer used his postings to argue at trial that:

  • he was not believable,
  • he no longer experienced pain &
  • the court should reject his claims that he intended to become a police officer & that he can no longer do this.

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Claimant changed her story between accident & medical assessments – judge rejects all her specialists’ opinions 

Ms. Gill’s lawyer claimed that she will have long-term consequences from a head injury from her car accident. He relied on the opinions of 4 medical specialists he hired to prove her claim.

ICBC’s lawyer claimed that the opinions of those medical experts were wrong because they got the facts wrong from the claimant. Continue reading

Judge penalizes claimant for not disclosing a serious fall & not providing her gp’s report

Three years after Ms. Mohamud’s car accident she fell, was knocked unconscious and was taken to the hospital. She claimed at trial that her fall made her pain worse for only a week. Then it returned to what it was like before her fall.

She did not mention her serious fall to any of the 3 medical specialists her lawyer hired for her case.

Her lawyer did not provide the court with a report from her family doctor (gp). Continue reading

Judge slams opinions of orthopaedic surgeon & psychologist hired by ICBC’s lawyer & makes large award

Ms. Kalstrom was involved in six MVA’s between 2001 & 2004. Ms. K claimed at trial for all her MVA’s that she suffered from chronic pain & depression as a combined result of all her accidents. ICBC’s lawyers, on behalf of the drivers at fault for the accidents, argued that her chronic pain was caused by stressors that are unrelated to her accidents.

ICBC’s lawyer hired:

  • Dr. Schweigel, an elderly orthopaedic surgeon who had done a huge amount of work for ICBC over the years. He, in essence, rejected Ms. K’s claim and implied that she was exaggerating and
  • Dr. Koch, a psychologist. He claimed that Ms. K’s problems stemmed from a borderline personality disorder and not from her MVA’s.

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Judge rejects claim that addiction to illegal drugs was caused by car accident

Mr. McCullum was in an mva in 2008, from which he suffered a neck & back injury, & then in a 2nd mva in 2011. His lawyer argued at trial that Mr. M’s ongoing use of and addiction to illegal drugs were caused by his 2nd accident because:

  • his drug use began in the first week after his 2nd accident occurred;
  • he was self-medicating to address his physical pain and
  • he turned to illegal drugs because he did not like the idea of using prescription medicines.

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Claim disallowed because tips not fully declared to CRA

Ms. Rock, a waitress in a pub, sued her former employer in BC Small Claims Court. She gave her version of conversations between her & her employer & her employer gave a different version of events.

At trial, Ms. R testified that she had earned more than $10,000 in tips in 2011, but that she had only disclosed 15% of these tips to CRA. Her lawyer argued that the judge should look past her lack of candour, partially because it is common in some industries that taxpayers do not report all of their income. This was not a winning argument.

 

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Judge awards man $30,000 for the extent mva worsened his condition but rejects loss of housekeeping capacity claim

Mr. Ben-Yosef was in a serious car accident in 1998 and never fully recovered. In 2011, 13 years later, he was struck by a car while in a crosswalk. He described the accident to his family doctor 2 weeks later — that he had been “bumped”.

At trial, Mr. B claimed that:

  • his 2011 accident worsened his ongoing symptoms from his 1998 injuries,
  • it had prevented him from being able to do his family’s housekeeping and
  • he hired a housecleaner to replace his work around the house.

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Judge praises claimant for her stoicism and awards her $60,000 for pain & suffering

Ms. Hinder was 29 years old when her vehicle was hit by the defendant taxi driver in Dec 2010.

She suffered from intense headaches and upper back pain for over a year after her accident. Then her headaches and upper back pain became low-grade pains with occasional flare-ups.

A specialist wrote a report for her lawyer stating that Ms. H will unlikely to be ever free from pain. This has hampered her ability to go mountain biking which she greatly enjoyed.

She went to court in March, 2015 to seek compensation for her injuries. She sought somewhere in the range of $55,000-$65,000 for her pain and suffering. ICBC’s lawyer argued:

  • for an award of $25,000 to $35,000 partly on the basis
  • that she failed to take all reasonable steps to get better.

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Claimant giving inaccurate facts to medical specialists destroyed the usefulness of their reports

Ms. Pitcher was involved in a car accident in 2004 in Kelowna. She claimed that she suffered from a neck injury, head tremors and psychological disorders as a result of her accident. A significant issue in her lawsuit was whether or not she was being honest and forthright about her injuries and her pre-accident condition.

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Court refuses to penalize claimant who tried to return to her pre-accident sport in spite of her pain

Ms. Hendry was an energetic 26 year old who loved sports at the time of her car accident in Burnaby in 2012.

Her accident caused her jaw soreness, neck & shoulder pain & shooting pain down her arms. She claimed that she missed work briefly before the start of her trial in 2015.

A year after her accident she entered an auto racing competition even though she said that her symptoms had only mildly improved by then. ICBC’s lawyer argued at her trial that:

  • this showed that she had fully recovered from her injuries within one year;
  • her accident did not cause her a significant injury; and
  • he should award her $20,000 – $30,000 for her pain and suffering.

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ICBC’s lawyer challenges the claimant’s claim about his reduced ability to work

Mr. Espinoza was was injured in a car accident in Surrey. After the accident, he suffered chronic pain syndrome, myofascial pain syndrome and thoracic outlet symdrome. While he was laid off at the time of his accident he found a job as a cement mason soon after his accident. Because he returned to work so soon after his accident, ICBC took issue with the extent of his injuries.

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Judge accepts claimant’s testimony which conflicted with what what her doctor thought her pre-accident medical records stated

Ms. Lemyre suffered soft tissue injuries to her neck in a car accident.  One issue at her trial was whether or not she already had neck pain prior to the accident. If the court concluded that she had pre-accident neck pain this would have resulted in a decrease in her overall award for damages.

In a medical report used as evidence in court her doctor wrote that:

  • she had visited the clinic in which she worked in 2009 complaining of neck pain and
  • she had a fall in 2008, for which she received cortisone injections and a neck brace.

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Judge rejects claimant’s long term income loss claim because she pursued other vocational activities

Ms. Gupta was involved in 3 separate car accidents, the first being in 2009. They left her with back and shoulder pain and impeded her ability to work. At the time, she was a part-time bank teller at Scotiabank and was beginning to get involved in franchising a tutoring service. She continued to work part-time for the bank until 2011 before focusing on the tutoring service exclusively.

She sought compensation at her trial for past and future loss of income from her bank teller job.

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What judges consider when they decide whether to believe an injured claimant

Mr. Bouvier, the claimant in the Bouvier v. Behrend case, injured his arm in a bus accident. The judge concluded that the testimony of the medical & lay witnesses was largely based on what the claimant told them. If he was not truthful with them then their value as witnesses was greatly reduced.

This case is an example of the lawyer’s maxim, “credibility is king”, meaning that it wins cases.

Mr. Justice Harris explained the factors judges and juries are to consider when they decide whether or not to believe a claimant. Key points here were that Mr. Bouvier:

  • did not overstate his injuries,
  • admitted that he had greatly improved since his accident and
  • tried hard to return to work after his accident.

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