Category Archives: Duty to try hard to get better

BC Court of Appeal backs Judge cutting claimant’s damages in half because she stopped psych treatment & didn’t try to return to work

Ms. Mullens continued to experience significant pain & psychological problems 4 years after her accident when she went to trial. Her doctors had recommended more psychiatric treatment & exercise but she did not follow this advice. She also never tried to gradually return to work. Continue reading

Study finds association between muscle strengthening activity & lower odds of low back pain

In a study published in August 2017, researchers measured the association between low back pain (LBP) & muscle-strengthening activity (MSA) in adults. They found that engaging in MSA at least 2 times per week was associated with having lower odds of having LBP. However, they found that this association did not hold in male smokers. Continue reading

Judge awarded claimant less because she didn’t do a conditioning program – $65,000 for pain & suffering

Ms. Dupuis, 56, suffered from neck, shoulder, back & hip pain caused by her second accident a month after her first minor one.

When her symptoms did not improve 2 years after her accident, her family doctor recommended she start a conditioning program. She didn’t follow his advice until almost 4 years after her accident when she still had shoulder pain. The judge awarded her $65,000 for the pain and suffering she experienced over those four years and minor problems after that. Continue reading

Carpenter would not take rehab program recommended by ICBC’s doctor – judge reduces award by 10%

After Mr. Klein’s 2 mvas, he suffered from neck, back & shoulder pain & a fractured tailbone. He returned to part-time carpentry a few months after each mva, but he was forced to take on easier jobs, work fewer hours and rest more. Almost a year after his 2nd mva, he started up his own carpentry company but he worked only 40 – 60 % of what did before his accidents.


ICBC’s lawyer argued at his trial that Mr. K had failed to mitigate (minimize or reduce) his losses because he had failed to:

  • look for non-carpentry jobs &
  •  undertake the rehab program that ICBC’s doctor had recommended.

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Judge reduces claimant’s damages by 50% because she discontinued psych treatment & didn’t try to return to work

Ms. Mullens continued to experience significant pain & psychological problems 4 years after her accident when she went to trial. Her doctors had recommended more psychiatric treatment & exercise but she did not follow this advice. She also never tried to gradually return to work. Continue reading

 Judge assessed $140,000 for pain & suffering for long-term pain & psych problems – but then cut this in half

Ms. Mullens suffered moderate soft tissue injuries in a car accident. At her trial 4 years later, she continued to suffer from anxiety, depression, panic attacks & chronic headaches, neck & low back pain.

The judge concluded that “from a purely physical point of view she ought to have recovered from her injuries long ago, but the accident triggered ongoing psychological conditions…”

She had not followed several recommendations given by her doctors.  Continue reading

ICBC’s argument – reduce damages because of failure to lose weight after mva – rejected

Mr. Martin suffered neck & back injuries from his mva in December, 2012. He had gained 20 – 25 pounds in 2012 prior to his accident. Between April, 2013 & May, 2015 he attended a physiotherapy exercise program to strengthen his back & abdominal core muscles.

ICBC argued at trial that:

  • Had Mr. M made a reasonable & prompt effort to lose weight and keep that weight off his condition would have improved faster and,

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Claimant’s damages not reduced even though she refused medication & yoga

Ms. Kaler’s mva’s left her with chronic pain & cognitive & psychological problems. 2 years after her last mva she stopped attending yoga & also stopped taking her pain medication.

At trial ICBC’s lawyer argued that:

  • Ms. K was unreasonable to stop her medication & yoga &
  • her award for damages should therefore be reduced.

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Claimant not penalized for refusing anti-depressants & counselling— judge found reasonable

Mr. Moini experienced pain & depression that were worsened by his 3 car accidents. A few months after his first accident, he stopped taking his anti-depressant medication because he found that it made him dizzy, drowsy & unable to concentrate & work. Mr. M also stopped attending psychological counselling after a few sessions because he found it “completely unhelpful”.

At trial ICBC’s lawyer argued that:

  • he failed to mitigate his losses by not attending counselling & taking anti-depressants;

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Claimant’s award reduced by $13,500 because she failed to attend a doctor-recommended exercise program

Ms. Nijar was injured in two car accidents two years apart. Neither of them were her fault. She suffered from headaches & neck & back pain from both her accidents which had not resolved at the time of her trial.

ICBC’s lawyer:

  • used Ms. N’s doctor’s records to show that he had told her a few times to go to the gym or to a rehab program to strengthen her back muscles,
  • argued that she did not follow his advice & thus did not take all reasonable steps to mitigate (minimize) her damages and
  • had her doctor agree in cross-examination that if she had done some weight training she would have had less back pain.

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Claimant dodges bullet — judge refuses to penalize him for failing to do exercise program

After his car accident Mr. Kostinuk suffered from ongoing neck & back pain and, eventually, depression. His doctors all recommended that he maintain an active exercise program. However he found a new job as a security guard and claimed that his work obligations interfered with his ability to attend a gym or do other exercise programs.

ICBC’s lawyer argued that Mr. K. failed to mitigate (minimize) his damages and, as a result, his award for damages should be decreased because he contributed to his poor recovery from his injuries.

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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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Court cuts 25% off loss of future earning capacity due to likelihood claimant won’t take anti-depressants

Ms. Castro sought compensation at trial for injuries she sustained in two accidents from which she suffered broken ribs, bruising, chronic pain and a major depressive disorder.

She claimed that her ability to earn income in the future has been reduced because she could not do any heavy lifting. This is required of a health care aide. She had previously worked as a server in a restaurant. She then went back to school to train as a health care aide. She did not get a chance to work in her field before she was injured.
She sought $100,000 for her loss of future earning capacity.
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Claimant chose to not take anti-depressants her doctor gently suggested – 20% reduction in P&S award

Ms. Castro was involved in an accident in 2010 and then a second one in 2012. Fault was admitted.  The legal actions respecting each of these accidents were ordered by agreement to be heard together at one trial. This is the practice in our courts.

As a result of the first accident Ms. C received six fractured ribs, bruising to her arm, leg, and chest, and head injuries. The second accident made these injuries worse, particularly to her neck, shoulder, and spine. She went on to develop chronic pain. Her doctor diagnosed her with “major depressive disorder” in Feb, 2015 and prescribed her anti-depressant medication which she decided to discontinue.

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Judge rejects ICBC’s argument that the claimant failed to take reasonable steps to exercise and to return to work

Ms. Liu’s involvement in 3 car accidents left her with severe chronic pain in her neck and back. After the accidents her doctors determined that she was not capable of anything more than part-time work.

At trial, ICBC’s lawyer argued that the claimant failed to take all reasonable steps to minimize her injuries. If ICBC’s argument was successful, then the claimant would be awarded less compensation.

ICBC’s lawyer argued that the claimant failed to:
– do an adequate exercise program to rehabilitate her injuries and
– pursue part-time work with her former employer. Continue reading

Claimant rejects shoulder surgery – See how judge rules

Mr. Tabatabaei suffered an injury to his shoulder due to a car accident. Mr. T’s lawyers and ICBC each hired an orthopaedic surgeon to assess him and provide a report. They disagreed on the appropriate treatment.

Dr. Tarazi, the claimant’s expert, concluded that:

  • surgery would not improve Mr. T’s symptoms.
  • Mr. T will likely have ongoing pain and
  • he will require manual therapy 15 to 20 times per year for the rest of his life.

In spite of the surgeon that ICBC hired recommending surgery the judge awarded Mr. T. $15,000 for the cost of future manual therapy.

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Judge awards woman with constant pain & headaches $90,000 for pain & suffering

Ms. Roth was injured in a motor vehicle accident in 2011. She experienced neck pain and headaches up to her trial three years after the accident. Her doctors thought her injuries did not affect her as much as she claimed. They were also quite optimistic about her future. They predicted that: Continue reading

Judge reduces award to woman with chronic pain who failed to accept medical advice to seek counseling and take meds

After her accident, the plaintiff (claimant) in the Carreon-Rivera v. Zhang case got worse rather than better over time and developed  chronic pain and depression as a result of her injuries.

Her one failing, which cost her at trial, was this: she chose to ignore the advice of her physicians to obtain psychological counseling and to take anti-depressant medication for her depression. Her physicians thought that this would have helped but not cured her chronic pain.

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