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.

 

At first, Ms. D got chiropractic and physiotherapy treatments but they did not include exercise therapy.

 

She improved to some extent over time, but 3.5 years after her accident she continued to experience “myofascial pain” in her right shoulder according to both the specialist ICBC hired & her family doctor.

 

Almost 4 years after her accident she started a program at Orion Health. Ms. D’s pain greatly improved after she spent 2 months in this program up to the date of her trial.

 

The program at Orion included:

  • IMS & TENS (nerve & muscle stimulation therapy),
  • exercises with therabands & a stationary bike &
  • some massage work.

 

The judge concluded that:

  • Ms. D had a good chance of significantly recovering from her injuries;
  • there was not enough medical evidence to conclude that she will have a significant permanent disability and
  • the following showed that her pain & disability were likely “not at the upper end of the range of pain associated with such injuries.”
    • her failure to follow her doctor’s advice in seeking a conditioning program sooner &
    • her passive approach overall to seeking treatment.

 

He therefore awarded Ms. D $65,000 for her pain & suffering rather than the larger award that her lawyer sought at trial based on a comparison with similar cases.

 

See Dupuis v Tomczak, 2016 BCSC 2225