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Credibility in Personal Injury – Part 3

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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This article is part 3 and a continuation of our articles named Credibility in Personal Injury – Part 1 and Credibility in Personal Injury – Part 2.

In the recent decision of Stevenson v Thompson, 2017 ABQB 451, the defence argued that the plaintiff, Ms. Stevenson, was not credible and should not be believed.

Ms. Stevenson was involved in a low-speed collision while she was in a parked car with her right foot over on the passenger seat of the vehicle. She had some prior injuries including a fall off a table while climbing into her basement suite two months before this collision. She did not follow her doctor’s advice to exercise, and was not totally honest with her medical team.

Regardless, at trial, Ms. Stevenson rehabilitated herself by being honest and not guessing when answering questions at trial. More importantly, the judge believed her.

On the issue of the plaintiff’s credibility, Justice A.G. Park found:

[333]      Stevenson has proven beyond a balance of probabilities on the evidence that as a result of the index accident, she has experienced, she continues to experience and will experience ongoing pain and dysfunction beyond normal healing times. I accept Dr. Flaschner’s diagnosis Stevenson suffers from chronic regional myofascial pain, cervicogenic headaches and a chronic mechanical low back pain.

[334]      Counsel for Thompson urged Stevenson is not a credible witness. I disagree. Her trial testimony was credible. I do not find she lied or attempted to deceive me. She expressed disagreement with some of the observations made by the health professionals who testified in this trial. She expressed disagreement with the role stress plays in her pain. She has walked her own path with respect to her rehabilitation in that she has chosen to ignore or not listen to the advice and counsel her medical caregivers have provided to her, based upon her testimony at this trial. Disagreement with those observations or addressing her health rehabilitation in a different manner than recommended or ignoring medical advice does not make her testimony non-credible. She gave her evidence in a straight forward manner. Her answers were given with care and precision. Her memory was shown to be deficient or lacking in certain areas but I do not find that she has attempted to mislead me or Counsel in this trial. There were questions put to her as to her evidence provided on her answers to Counsel for Thompson in her Questioning in the Discovery process. Her evidence at trial was that she could not offer a satisfactory answer. While it might behoove her to provide a satisfactory answer to explain her conduct on that particular day, she was honest and direct in response to the questions posed to her in that area at trial. Her answer that she could not provide a satisfactory answer obviously was lacking as to its content but it was a truthful statement. The truth was that she had no answer at trial to explain her conduct.

[335]      However, I do find she is a witness who somewhat exaggerated her symptoms to her caregivers. She is a plaintiff who has whitewashed her past medical history in her interactions with her caregivers. However, these failings do not make her a witness who is not credible in her trial testimony. Her trial testimony was forthright. Her demeanor on the witness stand could in no way be criticized to allow me, as the trier of fact, to disbelieve her. I accept her evidence that she suffered an injury as a result of the index accident which has required extensive treatment with ongoing chronic pain. I will rely on her subjective reports of pain provided to her caregivers and her testimony provided at trial.

[336]      In this connection, I note all the medical professionals who testified in this trial found that her condition was at least a WAD I injury when each examined her. It was only Thompson’s medical experts who questioned the extent of her injuries and the causation factor as applied to her injuries.

[337]      I turn now to deal with the submissions on the evidence proffered by Counsel for Thompson in final argument to suggest Stevenson is not a credible witness.

[338]      I agree that it is beyond dispute that Stevenson gained 70 – 80 pounds prior to the index accident as a result of her hypothyroid condition and did not gain that weight subsequent to the index accident as she testified in her trial examination-in-chief. However, when cross-examined, Stevenson readily admitted the true situation. She admitted her weight fluctuated up and down. She further advised she cannot remember her weight eight years ago. Under cross-examination she agreed her evidence relating to her weight gain being related to the index accident was incorrect. Counsel for Thompson very fairly commented in his closing argument that a failure to remember one’s weight 8 years earlier can be an honest answer. However, he argued what has happened over the course of time is that she has fixated on the index accident and she attaches all the blame to it. He drew a parallel between her testimony respecting her weight and she blaming the index accident for her complaints of pain. Yet despite his submission, I note that she corrected her evidence as to her weight when her doctor’s chart notes made three months post-index accident were shown to her in cross-examination. She agreed in cross-examination her examination-in-chief respecting her weight was wrong. She admitted her error. That admission alone does not make her a non-credible witness.

[339]      Counsel for Thompson pointed to evidence from her cross-examination that she provided conflicting histories to treatment providers; withheld information from her treatment providers; exaggerated or overstated her disabilities and limitations. With respect to the first two former concerns, she did admit under cross-examination that she provided conflicting histories to treatment providers and she withheld information from treatment providers. When pressed for a reason as to why she would act in such a manner, she advised she could not think of any reason why she would not tell the correct histories or provide all the information to her treatment providers. However, she did not provide conflicting histories or evidence nor did she withhold any information in her trial testimony. She admitted her conduct. In that sense, her evidence was credible. However, her conduct in dealing with her care providers left something to be desired. Yet that conduct occurred before her trial testimony. Her trial testimony was truthful, and she admitted to her pre-trial conduct dealing with her treatment providers. Yet her pre-trial conduct respecting her candour is concerning.

[340]      Another area of concern to me involved her sworn evidence in this action provided to then Counsel for Thompson at a Questioning on March 29, 2016 that she had not experienced any slips and falls since the last Questioning in 2011. In fact there were three subsequent falls in that timeframe. Stevenson advised Dr. Lana Cosman on that same day, March 29, 2016, of her two separate slips and falls. Her conduct on that day certainly speaks to an intention to deceive and in fact she did deceive Counsel. She admitted her deceit at trial.

[341]      Yet the irony is that she did not have to behave in that manner. Dr. Flaschner found as stated in his medical report of October 17, 2011 that his diagnosis secondary to the index accident included:

1.  Chronic regional neck pain consistent with a cervical musculoligamentous injury initially, WAD II with findings at this point consistent with chronic regional myofascial pain syndrome.

2.   Cervicogenic headaches.

3.  Chronic mechanical low back pain.

4.   Sensory symptoms in the arms, most consistent with carpal tunnel syndrome identified electrodiagnostically. This would not be secondary to the motor vehicle collision. It should be noted that some of the sensory symptoms in the arms can be seen in the setting of the regional myofascial pain syndrome.

[342]      He found Stevenson suffers from chronic pain which affects the central nervous system. That diagnosis is now a different entity than a whiplash and it takes it out of the Minor Injury Regulation. His diagnosis noted she had no significant musculoskeletal complaints between 2004 to 2008. After the 2008 index accident there were documented significant pain complaints, a further loss of motion and muscle tension or spasm.

[343]      He opined the index accident was the inciting event which led to the subsequent pain condition. The accident was an event which was a turning point which was associated with the onset of her symptoms. There were no pre-existing conditions from any prior accidents. With respect to her hypothyroidism, he advised it was not a new condition. It commenced in 2004. It did not appear to be associated with musculoskeletal complaints.

[344]      With respect to her depression he advised it can amplify her symptoms. Her history of depression started before the index accident. His opinion was it does not appear to be associated with any type of chronic pain condition.

[345]      In summary, her lack of candour before trial did not affect the diagnosis of chronic pain.

[346]      Another area of Stevenson’s testimony, which Counsel for Thompson submitted was not credible, involved her examination-in-chief where she indicated that she stretched every day and held her stretches for 40 seconds. Her cross-examination produced an admission from Stevenson that she was unable to properly demonstrate those stretches to Ms. Brennan or Ms. Ball. Flowing from this admission was an acknowledgment by her that perhaps the stretches were of an irregular frequency. Counsel for Thompson submitted these admissions constitute intentional misleading behaviour and a failure to mitigate. However her cross-examination admission was credible when confronted by the evidence of Ms. Ball and Ms. Brennan. This admission does not undermine her credibility in my opinion.

[347]      Finally I note the general consensus of the medical professionals that Stevenson has a high level of perceived disability. A specific instance of direct evidence in this area can be found in the report of both Functional Capacity Evaluators who testified Stevenson’s self- reports regarding abilities and disabilities were much grimmer than the actual attested abilities. In a similar vein, Stevenson demonstrated a lack of effort in the testing exercises required by Ms. Ball, Thompson’s expert. Stevenson provided a far better effort in completing the necessary tests for Ms. Brennan, her Functional Capacity Evaluator, than she did for Ms. Ball.

[348]      However, these detailed areas of concern do not affect her credibility respecting the ultimate diagnosis of chronic pain. Nor does it affect her credibility on the issue of causation which I will deal with shortly. Her evidence, while compromised, was credible. Instead her pre-trial behaviour must be criticised.

[349]      It is my finding that Stevenson painted a much bleaker position of her perceived disabilities than she actually demonstrated. I agree with the opinions of the medical professionals in this area. I conclude she was and is in pain due to the chronic pain syndrome developed as a result of the index accident. However I note that she consciously exaggerates the level of her pain. The evidence of both Ms. Brennan and Ms. Ball at the minimum lays the foundation for that finding. This exaggeration may very well be rooted in her depression issues. However I will not speculate on that point. Yet it must be noted from the experts’ medical testimony that her hypothyroidism and her depression form part of the inter-linking circles of pain, mood and depression.

On the issue of failing to follow her doctor’s advice by failing to exercise and thereby “failure to mitigate”, Justice Park found:

[391]      Both Dr. Flaschner and Dr. Atkinson agreed that a hypothyroid state can amplify pain symptoms. Depression and anxiety and sleep deprivation can as well amplify pain symptoms.

[392]      There is ample evidence that Stevenson has not complied with her medical advice. She has been given prescriptions to combat her anxiety and depression with anti-depressants. She has taken some but not all of them.

[393]      Stevenson has been considered deconditioned by some of her medical care providers. She has been repeatedly advised to stretch, exercise and achieve better physical condition. Active rehabilitation has been discussed and recommended to her. A regular and ambitious exercise program has been stressed to her in order to assist in loss of weight, high blood pressure, sleep disturbances and stress. It will help her chronic pain condition.

[394]      Over the years Stevenson has demonstrated poor compliance with regular consumption of her thyroid medications. In addition she has failed to attend medical laboratories to obtain results for her medical caregivers to assist her with her health.

[395]      She has not taken to heart much advice to engage in physiotherapy. It has been stressed to her the importance of an active rehabilitation program.

[396]      However, she has not followed the advice for a regular exercise program, stretching or physiotherapy. Her medical caregivers have advised her repeatedly that regular exercise and physiotherapy could assist in reducing her chronic myofascial pain.

[397]      The evidence from Donald Falk states the obvious. He indicated she will comply with a doctor’s advice if she agrees with that advice. In addition, I note Stevenson indicated she does not need a pill to make her feel better.

[398]      Her course of conduct in refusing to follow her caregivers’ advice has not helped her chronic pain condition. Instead, for some unknown reason she follows her own counsel. Such counsel amounts to a failure to mitigate. This failure to mitigate will result in a discount of the damages awarded to her.

[399]      Similarly as detailed earlier, her pain complaints and her reluctance to perform the required tests as requested by Ms. Ball signifies to me a desire to exaggerate her level of physical limitations. She sought to disguise her actual physical capabilities in an attempt to convince Ms. Ball that her level of physical disability was higher. This factor, too, will result in a discount of the damages awarded to her.

[400]      Stevenson preferred to accept the acupuncture treatment and the manipulative chiropractic treatment of both Drs. Cosman. This treatment provided her pain relief and allowed her to function. However, Dr. Ernie Cosman provided her advice to exercise. He provided her with exercise programs. She either refused to engage in such programs, or if she did engage in such programs, her time of engagement was both irregular and of short duration. The expert witnesses testified physiotherapy is the golden rule of orthopedics. While pain relief is important, Stevenson had a duty to mitigate by following the almost unanimous advice of her medical caregivers to exercise in order to address her injuries. She did not. She failed to mitigate her losses.

Turning to the quantum of her pain and suffering damages, Justice Park found:

[408]      Although Stevenson experienced a whiplash type of injury in a fall from her kitchen table on or about June 22, 2008, she had recovered from it by the time of the index accident. I make that finding on the basis of the evidence of Dr. Ernie Cosman, Dr. Curtis and Dr. Flaschner. As I noted earlier, Stevenson after seeing Dr. Mah initially after the kitchen table fall, did not follow up with any attendances on any physicians or health care providers. That lack of follow up by Stevenson convinces me she had no lingering pain or effects after seeing Dr. Mah. Having observed her demeanor on the witness stand and having noted her regular and frequent attendances upon her health care providers throughout her medical history, I am satisfied if she had experienced any lingering effects from the kitchen table fall, she would have sought continuing treatment or relief for any resulting pain from that fall. She did not. Again I am comforted by my finding in that regard as she presently continually seeks acupuncture treatment from Dr. Lana Cosman in order to alleviate her current pain issues which continue to linger from the index accident.

[409]      As a result, I am satisfied that Stevenson’s primary health concerns immediately prior to the index accident related to her hypothyroid condition; depression issues; anxiety and stress issues and sleep deprivation. These conditions did affect her energy levels and gave her some health limitations which lowered her enjoyment and quality of life.

[410]      The index accident caused her to experience headaches, stiffness and pain in her neck, back, shoulders and arm. She experienced global loss of range of motion, difficulties with extension and muscle spasms. She was diagnosed by many health care providers as having suffered a sprain/strain of the lumbar, cervical and thoracic spine. Consensus agreement was that she suffered a WAD II whiplash injury. It was anticipated her whiplash injuries would resolve with the passage of time. While her improvement was steady, it was slow and fragile. Her function was pain limited. She continued to experience stress together with minor slips and falls. Her anxiety, stress, and thyroid conditions together with ongoing physical aggravations from various sources amplified her pain levels. Now Stevenson is of the opinion that she is worthless and not nearly the productive woman she once was. She exhibits a high level of self-perceived physical limitation. She has the opinion, which is shared by her common law husband, that her physical limitations inhibit her participation and enjoyment in employment, family activities, domestic activities, recreational activities, social activities, self-care activities and sexual activity. She scores herself low on a quality of life scale.

[424]      I do agree with the submission of Counsel for Thompson that Stevenson’s self-reports of pain are exaggerated. As set out in the evidence of Ms. Brennan and Ms. Ball, Stevenson has a higher perception of her functional limitations as opposed to their more objective assessment of her actual limitations.

[426]      In my view an appropriate award for Stevenson’s general damages would be the sum of $75,000. However, I do not award her that amount as the issues of mitigation and her pre-trial conduct need to be addressed in terms of general damages.

As Justice Park found that the plaintiff had failed to mitigate, he reduced her award by 20 percent:

[427]      Stevenson repeatedly received advice from her medical caregivers to exercise. In effect she ignored it by choosing to relieve her pain through acupuncture and chiropractic manipulative treatment. Such treatment alleviated her pain but it did not assist her in resolving or improving her whiplash injury or her subsequent chronic pain condition. All her medical caregivers, including both Drs. Cosmans, urged her to follow an exercise program. Such advice was reasonable. The quality of the medical advice was sound. There was no conflicting medical advice provided to her which suggested an exercise program would be detrimental to her health. Stevenson chose not to follow the exercise treatment program on a regular and sustained basis. Counsel for Thompson certainly has proven some of Stevenson’s losses would have been avoided if she had followed the regimen exercise plan provided by her medical caregivers.

[428]      In addition, I note Stevenson failed to take on a regular and sustained basis, her prescribed anti-depressants, thyroid medication and sleep medication. The resulting periods of anxiety and depression, sleep deprivation and poor health linked to her fluctuating thyroid levels amplified her chronic pain. Her pain and suffering increased.

[429]      Further, Stevenson’s lack of explanation respecting her pre-trial conduct in providing conflicting answers in her Questioning by Counsel for Thompson and in her advice on that same day to Dr. Lana Cosman is concerning. In addition, her conduct in providing conflicting histories and withholding information to her treatment providers is concerning. A final concern on my part revolves around her exaggeration of her pain complaints and her underperformance on the tests administered by Ms. Ball.

[430]      My aforesaid concerns and her failure to mitigate warrant a reduction in the award of general damages. In the circumstances I will reduce her entitlement by 20%. As a result of this reduction her general damages are reduced to $60,000 and I award her that sum.

In conclusion, a plaintiff’s credibility is their most important asset. Where a plaintiff has not been honest and forthcoming in the past, the plaintiff can sometimes still rehabilitate him or herself by being honest and trustworthy at trial.

Article by Walter W. Kubitz Q.C., a personal injury lawyer in Calgary, Alberta.

Possible Range of Values for a Severe Brain Injury with Numerous Fractures and a Prior Brain Injury

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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Assume that Mr. Plaintiff, was injured in a motor vehicle accident. The driver of the car, in which he was a passenger, was impaired and the car rolled. Mr. Plaintiff was seriously injured and was hospitalized for approximately four months immediately following the accident. He was in intensive care for the first couple of weeks immediately following the accident. His Glasgow Coma scale was 3/15 at the start of the hospital stay.

Other medical interventions resulting from the accident that took place during the hospital stay included:

  • Left eye surgery;
  • Incision and drainage of tibia, fibula fracture;
  • Exploratory laparotomy;
  • Fixation of facial fractures and wiring of jaw;
  • Tracheostomy and closure of laparotomy;
  • Open reduction and internal fixation left tibia, fibula fracture and open reduction and internal fixation of the left elbow fracture as well as PEG tube placement; and
  • Transposition and flap closure to left lower extremity deficit and exploration of facial fractures for query entrapped lateral rectus muscle.

After the hospital stay, Mr. Plaintiff attended physiotherapy at the hospital and attended at the Brain Injury Relearning Service Centre. After the hospital stay, Mr. Plaintiff had day surgery on his left elbow and left ulnar nerve. He also had right knee surgery after the accident but it appears this was not due to the accident.

Prior to the accident, Mr. Plaintiff had suffered some minor to moderate injuries. These included the following:

  • Head and neck injury 11 years prior due to diving off a wharf;
  • Brain injury, intracranial hemorrhage, basal skull fracture, apex fracture, left TMJ fracture and left facial nerve palsy 6 years prior due to a prior accident. This required some surgery and hospitalization;
  • Hit back of head 5 years prior due to a fall;
  • Struck in face with jaw pain and left neck pain 4 years prior due to being hit in face; and
  • Foot fracture 3 years prior due to being assaulted at work;

It appears to be established in the documentation that Mr. Plaintiff was suffering from some cognitive impairments prior to the accident. However, it also appears to be the consensus on the file that the accident caused significant brain damage and was of a much greater magnitude than any previous cognitive impairments.

Mr. Plaintiff resumed employment on a part time basis approximately two years after the accident. He has since maintained some employment since that time however he is unable to do very demanding physical work.

For the purposes of this quantum assessment, Mr. Plaintiff’s injuries resulting from the accident are considered as follows:

  • Amnesia with respect to the details of the accident and events immediately preceding;
  • Broken left arm and leg;
  • Left side facial fractures and broken neck;
  • Stomach surgery for exploration of injuries with resulting scar on his abdomen;
  • Tracheostomy scar;
  • Hardware in arm and jaw;
  • Severe traumatic brain injury;
  • Left subarachnoid haemorrage;
  • Diffuse axonal injury;
  • Vertebral fracture of C2 and spinous process fracture of C7;
  • Left comminuted supra condylar fracture;
  • Left open tibia and fibula fractures; bilateral pulmonary contusions;
  • Chemical burns on torso;
  • Entrapment of left rectus muscle; and
  • Intimal tear of internal carotid artery.

Mr. Plaintiff currently suffers from the following as a result of the accident:

  • Painful left leg for which he uses extra strength tylenol. There is also significant deformity with respect to this leg;
  • Cannot extend his left arm fully due to elbow broken in accident;
  • Personality change including more mood swings;
  • Currently uses Synthroid for thyroid issues;
  • Cognitive impairment, easily overwhelmed and confused
  • Bad balance and cannot run;
  • Missing part of left visual field. It is also noted there is facial scarring on his left side;
  • Hearing is weak on left side;
  • Reduced sensitivity in taste and smell;
  • Numbness in left pinky;
  • Memory problems;
  • Requires eye drops for his left eye (which he still cannot completely close);
  • Altered speech; and
  • Potential 23% whole person impairment for orthopedic injuries and potential whole person impairment of 42%

Clearly, the pain and suffering experienced by Mr. Plaintiff resulting from the accident is significant. His ability to enjoy his life to the fullest has been seriously compromised given his injuries. He has also had to follow a different career path given his inability to do any physically demanding work.

According to the Bank of Canada inflation index, the current trilogy cap is $366,384.18.

CONCLUSION:

Alberta case law suggests general damages ranging from $230,000 to $250,000. Two outlying British Columbia cases are presented where the damage awards exceeded $330,000.

The judgment awards in the cases discussed below have been inflation adjusted using the Bank of Canada inflation calculator, rounded off.

The cases (discussed in detail below) are presented in the order of most relevant to Mr. Plaintiff’s situation, having regard to the amount of the damage award as well, to least relevant.

Ward v. Ward, 2010 ABQB 654, [2010] AJ No 1200

Damage Award: $205,000

Inflation Adjusted Damage Award: $230,000

The 16-year-old male plaintiff (Cory Ward) was injured when he was a passenger in a vehicle that was involved in a motor vehicle accident. As a result, he suffered extensive internal and external injuries. He almost died twice en route to the hospital and required immediate surgeries to be kept alive. He was in a coma for 19 days. He suffered multiple brain hemorrhages, diffuse axonal injuries, multiple fractures to skull including a jaw fracture, mandible, shoulder blade, ribs and pelvis, liver lacerations and blood and air in the space between his lungs.

As result of the injuries, the plaintiff maintained he was totally and permanently disabled and would require supervision for the rest of his life. The defence argued that while he did suffer a severe brain injury and multiple physical injuries which would have some permanent effect, he had made a good recovery from his injuries.

The plaintiff had done various kinds of therapy following the accident including physio, OT, speech therapy, neuropsychology, and social work. He also took part in rehab for his brain injuries. He had to relearn various skills while in rehab including basic life skills like toileting, grooming, feeding, speaking, etc.

The plaintiff did make great strides in recovery and it was reported that he became independent in self-care but his memory was poor and he was a greater risk of experiencing seizures because of the accident. His gross and fine motor skills were sufficiently impaired such that he would not be safe on such things as ladders, scaffolding or stilts. He was assessed as having a 17% whole body impairment due to the physical injuries and a 20% impairment of the whole person due to the cognitive impairments. Using a combined value, total impairment was 34%. While the plaintiff was well within the range of being physically functional in the home setting and able to manage basic self-care tasks, he had significant cognitive and behavioural deficits and would require guardianship and trusteeship. Cognitively, he was at a very low level prior to the accident and the court concluded he would not have completed high school in any event.

Plaintiff’s counsel argued given his severe brain injury, his young age and long life expectancy that general damages were appropriately in the range of $250,000.00 to $300,000.00. It was admitted by plaintiff’s counsel and recognized by the court that the cap amount is generally reserved for the most severe cases involving both physical and mental disability.

Defence counsel argued that the plaintiff had made a good recovery and damages were in the range of $175,000 to $205,000 arguing that the top end in a brain injury case is reserved for a case where the plaintiff has suffered almost total physical debilitation but still has retained their mental faculties and therefore experience the full range of mental anguish for what they have lost.

The court reviewed the cases of the plaintiff and defendant (many of which are covered in this memo) and made an award of $205,000 for general damages in this case. This amount inflation adjusted is $230,000.

Madge v. Meyer, 1999 ABQB 1017, aff’d 2001 ABCA 97, [1999] AJ No 1566

Damage Award: $150,000

Inflation Adjusted Damage Award: $212,000

A 53-year-old- male was severely injured in a motor vehicle accident. He had no memory of the collision or aftermath and was in the ICU for approximately 3 weeks. Upon admission, his Glasgow Coma Scale Score was 3/15. He remained at the hospital for a total of approximately 3 months. The plaintiff’s injuries included: a basal skull fracture with accompanying severe brain injury, left femoral fracture requiring open reduction and internal fixation, right cranial nerve palsy resulting in double vision, left side hemiparesis (weakness) and scars to voice box (due to intubation). He required surgery to repair his broken femur by way of nailing. When the plaintiff was discharged from his physio, it was noted he was fully independent and functional level was normal with his main complaint being of tiredness. The only formal rehabilitation he received after being released from the hospital was 15 physiotherapy sessions. He did attend for brain injury rehab for approximately 2 weeks over a year after his accident.

The court found that while the plaintiff had suffered a significant physical and mental disability because of the injuries from the accident, he was sufficient in daily care and was able to contribute to his home and work environment (farming) on a reduced basis. In terms of pre-accident history, the plaintiff had a long history of complaints regarding his health. However, the court found none of these impacted the injuries he suffered from the accident.

The court (at paragraph 242) found that the general damage awards in cases such as these with traumatic brain injuries ranged from $125,000 to $133,000 (in 2017 that would be $177,000 to $188,000).

At paragraph 243 the court stated:

It must be remembered that the purpose of non-pecuniary damages is to compensate the plaintiff for losses by way of an award of damages to the extent that money can be used to purchase solace for the losses that have been sustained. Here, Madge, age 53 at the time of the accident, suffered a severe brain injury, left temporal fracture, right cranial nerve palsy, scars to the voice box and left sided herniparesis. He required extensive hospitalization as well as orthopaedic surgery. He suffered complications in the hospital. He is not the man he was pre-accident and more importantly, he understands that and feels it and must deal with it daily. In my judgment, having regard to the cases, the legal principles applicable, Madge’s age, injuries, treatment and permanent disabilities, pain and suffering, an appropriate award for non-pecuniary damages would be $150,000.

Crackel v. Miller, 2003 ABQB 781, aff’d 2004 ABCA 374, [2003] AJ No 1160

Damage Award: $180,000

Inflation Adjusted Damage Award: $227,000

 The 35-year-old male plaintiff was injured in a motor vehicle accident when the vehicle he was driving drove into the back of a three tonne truck that was parked on the side of the road due to mechanical issues. He was hospitalized for approximately two months and suffered from amnesia for at least two weeks after the accident. He suffered a severe traumatic brain injury as a result of the accident. He made a remarkable physical recovery from his injuries but continued to suffer from cognitive and emotional difficulties in the aftermath. His intellectual abilities recovered to close to the level they were at pre-accident but he had greater difficulty recalling verbal information, more so than visual information. He suffered anger management issues resulting from the accident. The plaintiff also suffered a fractured skull in the left frontal sinus area and a subdural haematoma, an open left distal radius and ulna fracture, a burst fracture of the first lumbar vertebra and transverse fracture of the third left metacarpal. He also lost his sense of smell as a result of the accident. He had continued pain and limited movement in the mid-low back and left wrist.

The plaintiff’s medical expert assessed the plaintiff with a 5% whole person permanent, partial disability due to the loss of motion in the left wrist, a 1% whole person permanent, partial disability due to the diminished back flexion and extension resulting in a 6% whole person permanent, partial disability.

After considering the case law presented, the court found this case similar to Madge v. Meyer and awarded $180,000 in general damages.

Labrecque v. Heimbeckner, 2007 ABQB 501, [2007] AJ No 1462

Damage Award: $200,000

Inflation Adjusted Damage Award: $254,000

The female plaintiff was injured in a motor vehicle accident. She was thrown from the vehicle and badly injured. The plaintiff had an extensive pre-existing medical history including substance abuse, a personality disorder and general mental issues. She was involved in two previous motor vehicle accidents although did not suffer any serious injuries in either.

As a result of the accident in question, she suffered a fractured right humerus, a fractured clavicle, a compression fracture of the lower spine, a complex fracture to her left calcaneus. She also suffered multiple abrasions, cuts and bruises to her head, face and body and significant scarring as a result of the “gravel rash” from the accident. She also suffered a brain injury and was unconscious for a period of time after the accident.

Plaintiff’s counsel argued it was a moderate brain injury whereas defence counsel argued it was at best, a mild brain injury and that her situation was primarily the result of her drug dependency and personality disorder which existed prior to the accident. She was discharged from the hospital approximately three weeks after the accident. She moved back to her home where she was essentially bedridden for two or three months. She did attend physiotherapy sessions for about three months after arriving home from the hospital (approximately 19 visits). She continued to have difficulties with short term memory and multi-tasking. She attended at the Brain Injury Centre at the Foothills Medical Centre where she accessed physio, OT, chiro, massage and psychology.

Given the plaintiff’s extensive drug abuse and mental health issues, the court struggled with the issue of whether the plaintiff did suffer a traumatic brain injury. After reviewing the evidence, the court concluded that she did suffer a traumatic brain injury as a result of the accident. She became incapable of living independently from the help of her family and care givers. She was not able to run a business, look after herself, her son or her property without daily assistance.

On the other hand, the court recognized that her drug dependency prior to the accident was a major complicating factor and would have significantly interfered with her life in any event if not treated. As a result, the court concluded she was entitled to $200,000 in general damages. The Court at paragraphs 147 to 155 reviews its reasoning in granting that order noting that this case did not justify an award of the upper limit. It appears the court may have allotted $150,000 for the brain injury (relying on Madge v. Meyer and Bourbonnais v. Gavreau) and $50,000 for the physical injuries for a total non-pecuniary award of $200,000.

Bourbonnais v. Gauvreau, 2003 ABQB 952, varied on other grounds 2005 ABCA 154, [2003] AJ No 1429

Damage Award: $150,000

Inflation Adjusted Damage Award: $189,000

The 35-year-old male plaintiff was injured when he was hit by a vehicle while riding his bike. He suffered a severe brain injury resulting in a 12% impairment of the whole person. He also suffered a broken arm and rib, a punctured lung and multiple lacerations and abrasions. He continued to have cognitive impairments and significant speech and fatigue problems. He also lost his sense of smell. He continued to receive regular chiropractic treatments and required such treatments for the foreseeable future.

He suffered amnesia immediately after the accident and did not remember the following three weeks. While the plaintiff suffered a very severe brain injury, he made a remarkable recovery and was able to teach a college level computer programming course. The court awarded $150,000 in general damages and gave the following summary of injuries at paragraphs 165 and 166:

He sustained a very severe traumatic brain injury with extensive deficits that will affect him for the rest of his life. The deficits include: on-going limitations of his right shoulder; the total loss of his sense of taste and smell; significant fatigue and reduced endurance which will impact his ability to work and to enjoy the physical leisure activities in which he excelled. In general, his level of intellectual function has been reduced from a high level to a low average level. His ability to acquire new information has been negatively affected. When his fatigue increases, there is the resulting loss of word finding ability and difficulty in speech. Extreme fatigue in early 2002 raised fears of incontinence.

Dr. Nagy testified as to the other medical issues which he may now face as a result of his brain injury and the risk of subsequent injury to his brain. Those include a higher risk of epilepsy and increased vulnerability to future stroke and brain injury. In addition, Mr. Bourbonnais sustained physical injuries which included fractures to the right humerus; fractured right acromium and third right rib; a hole drilled into his skull to insert a drain to relieve the pressure on his brain; punctured right lung and scarring from his shoulder to his elbow.

Calahasen v. Northland School Division No. 61, 2012 ABQB 611, [2012] AJ No 1058

Damage Award: $135,000

Inflation Adjusted Damage Award: $137,900

The 40-year-old male plaintiff was injured when he was assaulted by a group of people. He suffered a moderate-severe brain injury, fractures including facial fractures, dylopia, ongoing pain and depression, cognitive impairment, PTSD, post-concussion syndrome, decreased senses, dizziness, fatigue and speech difficulties. His enjoyment and quality of life were severely compromised.

He underwent surgery to address the facial fractures and multiple plates were inserted. He experienced double vision for two years due to his left eye being lower than his right eye. His face remained misshapen. Cognitively, he suffered short term memory loss and difficulty with calculation and attention. He experienced constant facial pain, blurry vision and watery eyes all resulting from the assault. He medicated using Tylenol 4 on a regular basis to control the facial pain. He has also suffered from gait changes, decreased gross motor coordination, speech difficulties and exacerbation of emotional anxiety and stress.

The assault and corresponding injuries had a grave impact on the plaintiff. He became reclusive with sleep disruption and it impacted his family as well. He had concerns he was a burden to his wife.

Plaintiff’s counsel submitted the appropriate range of general damages was between $125,000 and $150,000. The court awarded $135,000.

Izony v. Weidlich, 2006 BCSC 1315, [2006] BCJ No 1986

Damage Award: $275,000

Inflation Adjusted Damage Award: $330,000

The male plaintiff was injured in a motor vehicle accident. He alleged the following injuries:

  • L4 burst fracture;
  • Grade 3B open proximal left tibia fracture associated with distal segmental fibula fracture;
  • Posterior fracture dislocation of the right acetabulum;
  • Fracture of the left distal radius;
  • Fracture of the right radius;
  • Comminuted mid-shaft fracture of the right humerus;
  • Fracture of the sternum;
  • Multiple rib fractures;
  • Pulmonary contusion;
  • Cardiac contusion;
  • Abdominal wall laceration;
  • Multi-system organ failure;
  • Systemic MRSA (methicillin resistant staphylococcus aureus) infection resulting in infection of his left tibia;
  • Hyperbilirubinemia;
  • Hyperkalemia;
  • Renal failure;
  • Liver failure;
  • Pneumonia;
  • Traumatic brain injury;
  • Hearing loss;
  • Depression;
  • Hernia at abdominal incision; and
  • Sexual dysfunction.

The plaintiff underwent numerous surgeries and was left with extensive scarring. He continued to suffer from decreased mobility, chronic pain and effects from his brain injury. He complained of difficulties with attention, concentration and memory and could no longer multi-task.

The court found that the plaintiff had suffered a mild traumatic brain injury resulting in cognitive impairment. The court also found the injuries suffered caused him pain which caused some difficulty and decrease in sexual activity. His most serious limitations were his physical ones, notably his decreased mobility due to the multiple surgeries he underwent after the accident. He developed a staph infection from these surgeries. The head of his femur was removed, leaving his right hip joint unstable and thus, he was unable to walk long distances. The court found that while he suffered some decrease in mobility, he was not completely helpless and continued to enjoy hiking, fishing and hunting. He did not experience continual pain but rather when the weather changed or when he was required to move strenuously. When medication was required he used Tylenol #3. The court awarded $275,000 for general damages.

Coulter v. Ball, 2005 BCCA 199, 39 B.C.L.R. (4th) 82

Damage Award: $284,000

Inflation Adjusted Damage Award: $348,000

The plaintiff Coulter was a passenger in a vehicle that was driven by Ball. The accident occurred when Ball attempted to cross the highway and collided with a vehicle driven by Leduc. Coulter suffered a serious injury to the frontal lobe of his brain and suffered other injuries, including a fractured mandible, fractured clavicle, fractured pelvis and bruised kidneys.

The trial judge awarded general damages at the rough upper limit of $284,000 primarily because of the extent of the brain injury. The trial judge accepted the defence theory that before the accident the plaintiff was distractible, exercised poor judgement and impulse control, and that he was aggressive, becoming more rude and confrontational when drinking. She found that after the accident Coulter was socially isolated in the sense that he was unable to form and maintain friendships, he exhibited emotional volatility, disinhibition, and had an inability to interpret social situations and presented a danger to himself and to others. He had lost the psychological benefits of engaging in competitive employment. He required a committee for the management of his financial affairs. While the negative traits of his personality and lifestyle were present before the accident, they were accentuated by the accident to the extent that his functional ability was substantially impaired. The degree of impairment was within the “catastrophic” category, sufficient to support an award at the rough upper limit of pecuniary damages.

This general damage award was upheld on appeal.

 

Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta

Credibility in Personal Injury – Part 2

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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This article is part 2 and a continuation of our article named Credibility in Personal Injury – Part 1 posted on February 26, 2016.

There is no diagnostic technique, machine or medical device that can objectively prove or disprove chronic pain or soft tissue whiplash injuries. Without “objective” evidence or proof of the plaintiff’s injury in chronic pain or whiplash cases, the court relies heavily upon the subjective evidence provided by the plaintiff when making its judgment. It is crucial then that the plaintiff’s evidence to the court be truthful and believable. If it is not, there may be serious consequences to the plaintiff’s claim.

The importance of credibility has again been emphasized by two decisions rendered within a week of each other in February 2017: Kohlendorfer v Northcott, 2016 ABQB 114, and, Petz v Duguay, 2017 ABQB 0090.

In Kohlendorfer, Justice Clackson comments about the importance of credibility (at paragraph 28):

In my view, in the world of personal injury litigation where so much turns on subjective complaint, the court is entitled to expect the utmost honesty from a plaintiff. Obviously, where the plaintiff claims sequelae which are not borne out by evidence, the Court must remain open-minded but must also exercise caution when assessing the plaintiff’s subjective claims when they are at odds with or inconsistent with the objective evidence before the Court. Although the sequelae are not supported by the objective evidence, the plaintiff might actually be experiencing the claimed sequelae from a subjective, individual perspective. However, where the plaintiff, in the course of testifying, wilfully exaggerates or complains of symptoms that the medical profession and its practitioners are not familiar with, that plaintiff’s credibility is significantly undermined. In cases such as that, the Court must be wary and concerned about such testimony. Simply accepting the plaintiff’s word at face value is neither wise nor fair to the defendant. That is the situation here. Consequently, some objective evidence or proof of the Plaintiff’s claims is necessary in this case.

In both cases, the Plaintiffs were seeking hundreds of thousands of dollars, but because the judge did not believe them, Mr. Kohlendorfer was only awarded $23,000.00 for pain and suffering plus $41,786.00 for income loss, and Ms. Petz was only awarded $50,000.00 for pain and suffering plus past loss of income and expenses for a total of $76,028.00. Both of these plaintiffs will likely have to pay punishing court costs to the defendants for failing to beat the defendant’s formal offers.

The facts that damaged Mr. Kohlendorfer’s credibility include:

  1. There was only $700 damage to the back of Mr. Kohlendorfer’s pickup truck when he was struck by a Honda Civic;
  2. He did not see a doctor after the collision as he expected the insurance company to find a doctor for him;
  3. He saw a lawyer before he saw his family doctor;
  4. Mr. Kohlendorfer’s treatment primarily consisted of visiting a hot spring in Nevada, massage therapy, rolling his shoulders, and herbal remedies;
  5. He did not see a chiropractor until six months after the collision, whom he only saw five times;
  6. Mr. Kohlendorfer did not mention any jaw symptoms to his dentist or doctor until three years after the collision;
  7. Despite his claimed injuries, he continued to conduct prospecting in the Yukon, a physical activity;
  8. Surveillance videos showed Mr. Kohlendorfer appearing to be strong and active and moving his neck and shoulders freely;
  9. The plaintiff’s posture along with age-related degenerative change could explain the plaintiff’s ongoing difficulties;
  10. He complained of symptoms that were medically unexplainable such as a number of episodes of paralysis;
  11. His range of motion when formally tested was less than his range of motion when he was being observed discretely;
  12. His symptoms spread from his neck, to his shoulders and then to his upper back over time, which is unusual;
  13. He continued to drive long-distances to Nevada and the Northwest Territories, and to engage in physical labour, despite his reported functional limitations;
  14. He was 55-years of age when the collision occurred, and his symptoms are consistent with his chronological age from the normal aging process; and,
  15. A judge concluded that “Mr. Kohlendorfer saw an opportunity to make a buck and pounced on it”.

Justice Clackson concluded that Mr. Kohlendorfer’s injury lasted a maximum of one year and awarded $23,000.00 for general damages.

The factors that damaged Ms. Petz’s credibility include:

  1. While testifying at trial, Ms. Petz described her pain as ranging from a 3 to 8 out of 10, but when her hair got in her face while giving evidence, she shook her head left to right quickly to reorganize her hair, and the quick motion did not seem to bother her neck and head; consequently there were inconsistencies between her reported ability and the observations made by the judge at trial;
  2. Surveillance video taken of Ms. Petz showed her moving her household, including lifting boxes and household items with no signs of pain except for one instance where she briefly took her left arm and touched the back of her neck. The court did not accept her evidence that boxes she was lifting were “quite light”;
  3. Ms. Petz would attend on her family doctor and not mention any pain complaints, but when she was assessed in the same time period for medical legal purposes, she complained of serious chronic pain;
  4. Her own family doctor testified that over the last ten years of dealing with Ms. Petz, the doctor had doubts about her pain;
  5. Ms. Petz saw over 20 health care professionals since the collision. At one point she was seeing three family physicians at the same time and was not happy with any of them.
  6. She went to see a certain family physician on the advice of her lawyer, and this new physician, after treating her 29 times, told her to go back to her current doctors and stay there;
  7. Her psychiatrist testified that Ms. Petz demonstrated disproportionate reactions to any injuries she had suffered;
  8. Ms. Petz helped renovate her house by painting. She had no problems doing this;
  9. While being formally assessed for litigation purposes by a doctor retained by the defendant, Ms. Petz said she was unable to move her neck or use her left arm, but when observed informally, she was able to perform these movements easily, in a normal rhythm, and without any signs of discomfort; and,
  10. During the defence psychiatric examination Ms. Petz was able to sit for 1-1/2 to 2 hours with no obvious pain demonstration or difficulty.

Justice Sullivan found that Ms. Petz’ perceived level of pain could not be reasonably explained by reference to any organic cause, and as such her credibility was of utmost importance. Justice Sullivan did not find Ms. Petz to be a credible witness. He noted:

  1. That Ms. Petz provided inadequate explanations for the inconsistencies in her testimony;
  2. The contents of the surveillance video and Ms. Petz response thereto;
  3. The medical evidence of symptom amplification;
  4. Dr. Safran’s doubts about Ms. Petz’s pain;
  5. The correlation between the events in the litigation, such as Questioning, and Ms. Petz’s reports of pain to her doctors;
  6. The inconsistency in Ms. Petz’s reports of pain to her family physicians versus her reports of pain to doctors providing IMEs for the litigation;
  7. Ms. Petz’s extreme preoccupation with the litigation and the financial gain flowing therefrom (a source of “secondary gain”); and,
  8. Ms. Petz’s dissatisfaction with any health care provider that did not give her a favourable report with respect to the litigation.

Justice Sullivan found that Ms. Petz had recovered from her accident-related injuries about four years after the accident, or five months after the surveillance video, and awarded her general damages of $50,000.00 plus $21,710.00 for past loss of income and $4,318 for out-of-pocket $4,318.00 for a total of $76,028.00.

In conclusion, as chronic pain and whiplash cases usually have no objective proof, the credibility of the plaintiff is absolutely crucial in these types of cases.

Article by Walter W. Kubitz, a personal injury lawyer in Calgary, Alberta.

The Slip and Fall Claus(e)

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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This article will look briefly at the law of “occupier’s liability”.

Imagine, if you will, Santa Claus coming down the chimney on Christmas Eve. He squeezes out through the bottom of the chimney, dusts himself off.

The Christmas song, “You Better Watch Out, You Better not Pout” is playing on the stereo. As he walks across the barely lit hardwood floor towards the Christmas tree, his foot lands on a toy car that the owner’s 5 year old son has left out in the middle of the room, causing Santa Claus’ foot to fly backwards. Santa lands on his sack with a loud crash. So much for that batch of toys.

Gathering himself up, Santa Claus spies a glass of milk and some cookies on the kitchen table. He hobbles towards the kitchen, but halfway there he falls forward off the unlit step between the living room and the kitchen floor. He pulls himself off the ground a second time, grabs the glass of milk, and enjoys the cookie. He hopes the milk has not spoiled before he gets to it.

Santa Claus is too stiff to make it back up the chimney, so he calls a taxi. He incurs a huge taxi and icebreaker bill in getting back to the North Pole.

Prior to the two-year limitation, Santa Claus sues the owner, the tenants and the cleaning company of the residence for personal injury and expenses.

The governing statute in Alberta is the Occupiers’ Liability Act, RSA 2000, cO-4. Briefly:

  1. The statute defines an “occupier” as a person who is in physical possession of premises or who has responsibility for, and control over, the condition of premises, the activities conducted on the premises and the persons allowed to enter those premises. There can be more than one occupier of the same premises.
  2. A visitor is defined as an entrant as of right, a person who is lawfully present on the premises by virtue of an express or implied contract, any person whose presence on the premises is lawful, or a person whose presence on the premises becomes unlawful after entering the premises and who is taking reasonable steps to leave the premises.

The statute provides that every occupier of premises owes a duty to every visitor on the occupier’s premises to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there. This is called the “duty of care”.

The duty of care applies to the condition of the premises, the activities on the premises and the conduct of third parties on the premises.

An occupier is not liable to a visitor in respect of a risk willingly accepted by the visitor.

A warning does not absolve an occupier from his or her duty of care to the visitor unless in all the circumstances the warning is enough to enable the visitor to be reasonably safe.

The liability of the occupier can be restricted or excluded by express agreement or express notice, provided reasonable steps were taken to bring this restriction to the attention of the visitor.

Other than child trespassers, an occupier does not owe duty of care to a trespasser unless the trespasser suffers injury or death that results from the occupier’s willful or reckless conduct.

Where an occupier knows or has reason to know that a child trespasser is probably on the premises, and that the premises create a danger of death or serious bodily harm to that child, the occupier owes a duty to that child to take such care as is reasonable in all the circumstances of the case to see that the child will be reasonably safe from that danger, bearing in mind the age of the child and the ability of the child to appreciate the danger compared to the burden of eliminating the danger or protecting the child from the danger.

Applying the law to our unfortunate Santa Claus, as Santa was lawfully on the premises (as indicated by the cookies and milk left on the table for him), Santa was a “visitor” rather than a trespasser, and was owed a duty of care by the occupiers of the home. The Christmas song playing softly in the background does not help the occupier as a “warning”, as it is not sufficient in the circumstances. However, as Santa Claus knew that there were children in the home, the occupiers would argue that Santa Claus should have known that young children would leave toys scattered across the floor, and that he should have taken more care when walking across the living room floor. As far as falling off the step, leaving an enticing plate of cookies and a glass of milk on the table, which would draw Santa’s gaze away from where he was walking, would work against the occupiers. The occupiers would hire the Grinch to defend them, and would claim contributory negligence on the part of Santa Claus, which would reduce Santa’s claim by the percentage that he was at fault relative to the occupiers on a comparative blameworthiness basis.

Although this is a far-fetched and light-hearted look at the law of occupier’s liability, we invite you to call one of our lawyers at (403)250-7100 to discuss whether you may have a claim or not for your slip and fall injury.

We would, at a minimum, suggest that:

  1. You take photographs of where the fall happened as soon as possible after it occurs;
  2. Look for and photograph what caused the fall;
  3. Photograph any visible injuries;
  4. Look for any video cameras in the area that may have recorded your fall;
  5. Preserve the footwear that you were wearing, and take photographs of the soles. Do not wear them again;
  6. Get the names and contact information of any witnesses;
  7. See your family doctor immediately, and follow his or her treatment recommendations;
  8. Give notice to any appropriate government entity (some municipal notice periods are as short as 21 days, which if not, met can bar your action); and,
  9. Sue well before the 2 year Limitation Period Deadline expires.

Article by Walter W. Kubitz Q.C., a personal injury lawyer, in Calgary, Alberta.

How to Get Your Medical Expenses Paid After a Car Crash Before You Sue

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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There are two ways to get your medical expenses paid after a car crash and before you sue the at fault driver.

If you have a health plan through your or your spouse’s work, then obtain the application forms, fill out your form, have your doctor fill out the medical form, and submit the forms to the health plan provider.   Ask for a copy of the benefits booklet and read it so that you know what you can claim, as nobody will tell you unless you ask. If you have it, a private health plan is the best source of money to pay for medical expenses.

If you have WCB coverage for the crash, then the WCB pays for your medical expenses.

If you were a passenger, or if you were a pedestrian struck by a vehicle, then (in non-WCB cases) you can access the “Section B” No-Fault Benefits coverage of the relevant vehicle’s insurance policy. This policy is written in archaic language and is difficult to understand. We highly recommend that if you have any questions on what you are entitled to, or about who pays what, that you call the Alberta Government Superintendent of Insurance Compliance Officer at 310-0000 and then (780) 427-8322. The compliance officer is happy to help you and can issue fines against an insurance company that is not paying what they are supposed to pay.

Section B Benefits should cover your medical expenses incurred within two years of the crash up to a maximum of $50,000, subject to some exclusions and monetary limits. This is a complex insurance policy, and you may need the assistance of the compliance officer to figure it out.

If you cannot pay for your necessities of life and your treatment costs, then you or your lawyer can ask the at fault driver’s insurance company for an Insurance Act section 581 advance. This is voluntary, although on the right facts, a court application can be brought to compel the at fault driver’s insurer to provide an advance payment.

For any medical expenses that are not paid up front from these sources, and if you sue the at fault driver before the limitation period to sue runs out, then at the end of the law suit the insurer for the at fault driver will reimburse you for any reasonably incurred medical expenses that you prove are caused by the crash.

It is important to track your expenses, and to track which expenses or portions of expenses have been reimbursed to you and by whom, so that you can claim the unpaid expenses from the at fault insurer at the end of the lawsuit.

If there are no private benefits or if two years have passed since the crash, then an application can be made to the Motor Vehicle Accident Claim Fund for a loan for treatment costs. This is difficult to get, but is made on occasion.

Give us a call at (403) 250-7100 and let us see if we can help you.

Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

How to Get Some Money to Live On if You Can’t Work After a Collision and Before you Sue

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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If you can’t work after a collision, the best sources of disability benefits is any disability plan that you have through your work.

If you have WCB coverage, you can apply for WCB benefits.

Ask your human resources manager or supervisor for the application forms, fill out your portions, have the medical forms filled out by your doctor, have your employer fill out their forms, and then submit the forms to your private disability benefit provider or the WCB.

Most private disability policies have an “initial coverage period” for short-term disability benefits, where you are paid if you cannot do your own current job.  After about two years (depending on the policy), you transition to long-term disability where you are paid if you cannot do any job that is reasonably fit for you (The policy wording varies for each policy and has to be reviewed on a case by case basis.)

In addition to this, or if you do not have a private disability plan or WCB coverage, then the “Section B” policy of the vehicle you are in (or of the vehicle that hit you if you are a pedestrian or bicyclist, or on occasion, of your own vehicle) would pay disability benefits in the amount of up to $400 per week for up to 2 years.  You have to obtain the “Section B” application forms from the “Section B” insurer, complete your portion, and have your employer and your health care provider complete their portions.  After the forms are completed, submit the forms to the “Section B” insurer as soon as possible (usually within 10 days).

It is important that if you have any questions about “Section B” disability benefits, that you contact the Superintendent of Insurance Compliance Officer at 310-0000 and then (780) 427-8322.  The compliance officer is happy to help you get “Section B” benefits, and can issue fines against an insurance company that is not paying when they should be paying.

A last resort option is if you cannot work and the “Section B” benefits are insufficient for you to live on, then you or your lawyer can ask the “Section A” insurance company for the at-fault driver for an Insurance Act section 581 advance.  This is voluntary, although if you cannot pay for the cost of your necessities of life, a court application can be brought to compel the “Section A” insurer to provide an advance payment. This is rare, but does occur if the facts are there.

Give us a call at (403) 250-7100 and let us see if we can help you.

Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

Credibility and the Risks of Trial

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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At Kubitz & Company we try to take a reasoned approach to litigation. Civil litigation is a risk balancing exercise, both for the plaintiff and for the defendant.  For every offer, we ask, “What are the chances of doing better or worse than this offer if this matter goes to trial?” It is important at regular intervals during the litigation process to assess the reasonable range of values of any case.

The risks of trial were recently emphasized by Justice P.R. Jeffrey in Kitching vs Devlin, 2016 ABQB 212.  This was a legal malpractice matter where Mr. Kitching had settled his accident injury case at a judicial mediation, but then changed his mind, and thought that his personal injury case was worth more than he had settled it for, so he sued his lawyer, Mr. Devlin.  Mr. Kitching gave Justice Jeffrey’s numerous reasons to doubt his credibility during his testimony, leading Justice Jeffrey to conclude that Mr. Kitching’s overall testimony was “less trustworthy”. Accordingly, Justice Jeffrey accorded less weight to Mr. Kitching’s evidence (paragraphs 332–333).

Of importance, Justice Jeffrey commented (paragraph 247):

I do not view Mr. Rodin’s comments as Mr. Kitching does. Mr. Rodin did not advance a theory of judicial discrimination.  Rather, his testimony emphasized the many legal hurdles that personal injury plaintiffs face in discharging their onus of proof. In respect to each such hurdle a claimant will face a healthy judicial skepticism, as will a defendant. Evidentiary problems with witness credibility, standard of care, causation, or damages are common and may arise unexpectedly at trial. Trial judges will reduce the damages award, if not dismiss the action entirely, if on balance the plaintiff’s case is not proven in some key aspect.  In this case, the defence had an IME (Independent Medical Examination) that disputed Mr. Kitching’s diagnosis of CRPS (Chronic Regional Pain Syndrome).  Mr. Kitching’s own treating physicians did not agree as to what was causing his pain symptoms or whether he continued to suffer from CRPS.  As mentioned earlier, it was reasonable for Mr. Devlin to conclude that Mr. Kitching might not present as a credible witness at trial.  When the defence learned of Dr. Clarke’s IME, which would have been increasingly likely over time, then Mr. Kitching’s case would have been in even greater danger.  Accordingly, I find that these problems with Mr. Kitching’s case created a significant risk that a trial judge would reduce a damages award.  This potential deduction does not result from systemic judicial discrimination; it results from uncertainties and shortcomings in Mr. Kitching’s evidence. (Emphasis ours).

A recent example of a trial going horribly wrong for a plaintiff whose evidence was not believed is the decision of Blicharz vs Livingstone, 2014 ABQB 373.  In that case, Justice Langston found that the plaintiff’s evidence was marked by exaggeration, deception, and manipulation, and that she was an untrustworthy witness (paragraph 135).  Prior to the trial, Ms. Blicharz had been offered $500,000.00 to settle her accident injury lawsuit, but she rejected that offer.  Ms. Blicharz went to trial on her own after going through 3 lawyers. After trial, Justice Langston awarded her $11,500.00.  Justice Langston then awarded costs against Ms. Blicharz to be paid to the defendants in the amount of $325,000.00.  Ms. Blicharz’ appeal was unsuccessful, and the appeal costs were also awarded against her.

The “bottom line” is that the credibility of a personal injury plaintiff, especially in a chronic pain case, is absolutely crucial.

One practical maxim is “If the judge likes your client and believes your client, then the judge will try to find some way to get your client money”. We cannot do much about whether or not a client is likeable, but whether or not a client is believable depends on how honest and truthful the client is at all times.

At Kubitz & Company we try to build your case as strong as we can based on the evidence that you give us, supplemented by the strength of the evidence of your treating health professionals, family members, friends and co-workers. We try to give you guidance on what a reasonable range of values would be if the matter proceeds to trial, and if the defendants make an offer within that range of values, then we encourage you to accept an offer within that range of values.  If the defendant’s offer is not in a reasonable range of values, we will recommend that you proceed with the lawsuit.  The message that we want to send to the defendant is that, “We are being reasonable, but if you are not, then we will move this matter towards trial and do our best to achieve a judgment that exceeds your offer.”

At the end of the day, both sides to a lawsuit need to continually evaluate their respective risks of being more or less successful at trial, and base their offers and any settlement on the overall risk assessment.

Call us today if you want to discuss your accident injury or wrongful death case.

Article by Walter W. Kubitz Q.C., a personal injury lawyer in Calgary, Alberta.

Credibility in Personal Injury – Part 1

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

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In the recent decision of Bumstead v Dufresne, 2015 ABQB 787, the Plaintiff claimed to be suffering from chronic pain resulting in severe disability that prevented him from working since a September 9, 2005 accident, except for three failed return-to-work attempts.  The court cut off his damages as of the date of some damning video surveillance.

Justice Horner referred to the decision of Price v Kostryva 1982, CanLII 36 (BC SC) where the chief justice of British Columbia stated:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

In the Bumstead case, Justice Horner noted that there was no evidence of any organic cause for the Plaintiff’s ongoing complaints (paragraph 337).  The whole case turned on the March 7, 2008 video surveillance (paragraph 67):

 [67]           The Defendant particularly emphasized surveillance footage from March 7, 2008. This footage showed the Plaintiff in an alley, performing mechanical work on his vehicle for approximately three hours. It displays the Plaintiff maneuvering around his truck and he is seen in sustained positions of standing, kneeling, stooping, and crouching. Multiple times, the Plaintiff is seen bending at the waist, twisting his torso, squatting, and working with heavy objects. In particular, the footage shows the Plaintiff using a manual jack to lift up his truck, remove and mount tires on his truck, and work within the wheel/brake assembly for a sustained period of time. The Plaintiff does not appear to be in pain, working slowly, or taking extended breaks. Rather, his movements appear fluid and he is observed sustaining static positions over extended periods of time.

Justice Kenney commented (paragraph 303):

 [303]      In my view, a lay person watching the March 7, 2008 video without explanation or context would not think that the man performing the tasks shown had been off any kind of work for over 30 months due to disabling pain. The Plaintiff simply did not present as having any movement difficulty or attendant pain at all. It is difficult to accept that this was a man simply having a “good day”. It is particularly troublesome when viewed in the context of his reporting of pain and greatly restricted lifestyle to the three medical experts in and around this date. The fact that the Plaintiff did not report to either Dr. Hurlbert or Dr. Atkinson that he had just done maintenance on his truck and in fact reported that he could not do so, leads to the inescapable inference that the Plaintiff presented himself and his injury in the light best suited to result in gain for himself.

Justice Kenney concluded (paragraph 314 – 315):

 [314]      Upon reviewing these facts and the totality of the evidence at trial, I conclude that the Plaintiff is not credible. I cannot conclude with certainty that the Plaintiff has accurately and honestly presented his treatment providers with a reliable description of his symptoms and condition. As a consequence, his ability to prove on a balance of probabilities that he suffers from disabling chronic pain such that he has not been able to work and cannot in the future work in any capacity is significantly undermined.

[315]      Given my finding on the Plaintiff’s credibility, that his injuries were largely self-reported and of a soft tissue nature, his claim cannot be established solely on the basis of his evidence. I need then to consider the objective findings of his medical service providers to determine what injury the Plaintiff suffered, if any, in the accident.

[318]      Based on what I saw on the video surveillance, I find that the Plaintiff could have found employment commensurate with his prior seniority and income by March 2008.

[319]      However, the March 2008 video makes it clear to me that the Plaintiff had, by that time, significantly greater capacity than he reported to the medical professionals.

Justice Kenny concluded (paragraph 392):

[392]      In summary, I find that the Plaintiff has failed to establish on a balance of probabilities that he was fully disabled and unable to work by reason of the accident beyond the date of the surveillance video, being March 7, 2008. Therefore, the Defendant is liable for the Plaintiff’s damages only up to that date.

In conclusion, as injuries such as whiplash, chronic pain, and brain injuries have no “objective” tests available to prove their existance, the credibility of the plaintiff will win or lose the case for them.

Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

 

How to Choose a Personal Injury Lawyer

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Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

accident lawyers Calgary Walter Kubitz

If you have suffered a personal injury (such as a brain injury, fractured bones, whiplash injury, or chronic pain), or if a loved one has been killed, it can be difficult to choose the right lawyer.

In Alberta, there are no formally recognized specialties, and a lawyer is not allowed to call himself or herself a “specialist”. Anyone can advertise in any area that they want to practice in.

So how do you find a “good lawyer”?

The best way is by word-of-mouth from past clients or from other lawyers.

You can also do some research and ask:

  • Does the lawyer have numerous years of experience in handling personal injury and wrongful death claims?
  • What severity of injuries have they handled in other cases?
  • What percentage of his or her practice is in the personal injury or wrongful death area?
  • Does he or she practice in other areas?
  • What experience do they have in conducting settlement negotiations, mediations or judicial mediations, as over 99 percent of cases settle and very few go to trial?
  • Do they have trial experience?
  • Does the lawyer work on a contingency-fee basis or on an hourly-retainer basis? Remember that the lawyer with the lowest contingency fee percentage may not be the best lawyer in the area. You usually get what you pay for.
  • Will he or she pass your file on to a secretary or junior lawyer to run it, or will they remain personally involved in your file?
  • Has he or she been involved in lawyers’ associations such as the Alberta Civil Trial Lawyers Association or the Canadian Bar Association Personal Injury Section? If so, has he or she served on the executive of those associations?
  • Does he or she regularly attend seminars in the area of personal injury or wrongful death claims?
  • Has he or she spoken at seminars to other lawyers in the area?
  • Search the lawyer’s name in www.canlii.org to see if he or she has any reported cases.
  • Do a Google search on the lawyer and the firm.
  • Ask for the lawyer’s resume.

Most importantly, ask yourself if this lawyer’s personality and character is a “fit” for you, as you will be spending the next two to five years with that lawyer. Do you trust the lawyer and do you like the lawyer?  Likewise, the lawyer has to trust, believe, and like you in order to make the relationship work.

At Kubitz & Company, our personal injury and wrongful death lawyers have years of experience. We are happy to meet with you on a no obligation basis to discuss if we can help you and are a fit for you.

Call us at 403-250-7100 for a free initial phone call or appointment.

Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

Personal Injury Claims Process

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INITIAL MEETING

•    Review of accident facts, liability, injuries suffered, and the claims available to you
•    Advice regarding No-Fault and other benefits

OPEN FILE IF RETAINED

NOTICES TO

•    Administrator, Motor Vehicle Accident Claims Act
•    City or Municipal District
•    Opposing insurance company
•    WCB
•    SEF 44 Insurer
•    Minister of Infrastructure

UPDATE MEETINGS – every 3 – 4 months

•    Review medical treatment and functional restrictions
•    Review expenses, income, and other losses

INFORMATION GATHERING and TREATMENT

•    Police Collision Report and file
•    Motor vehicle ownership searches
•    Witness statements
•    Hospital records
•    Doctor’s, Physiotherapist’s, and Chiropractor’s treatment notes/medical reports
•    Alberta Health Care Statement of treatment paid by them (list of Doctors).
•    Section B benefits file
•    Tax returns and income loss details

ISSUE AND SERVE STATEMENT OF CLAIM

•    Prepare and file Statement of Claim; limitation period can be 1 year for claims against your own insurer, and 2 years for claims against other drivers, with exceptions (Minors, Dependent Adults, etc).

RECEIVE STATEMENT OF DEFENCE

•    If no Statement of Defence is filed, or if a Demand of Notice is filed, note Defendant in default.  Provide notice to Administrator, Motor Vehicle Accident Claims Act.  Apply to Court for assessment of damages or final judgment.

PREPARE AFFIDAVIT OF RECORDS

QUESTIONING

•    Prepare client
•    Conduct Questioning of other side
•    Attend at Questioning of client

UNDERTAKINGS

•    Answer undertakings given at Questioning

QUESTIONING ON ANSWERS TO UNDERTAKINGS

ASSESSMENT and NEGOTIATIONS – can occur at various points in time

•    Order medical reports and treatment charts once “maximal medical improvement” is reached, meaning that the injury is well stabilized and unlikely to change substantially in the next year with or without treatment,
•    Research the applicable law; quantify damages
•    Attempt to settle claim

DEFENCE MEDICAL EXAMINATION

•    Videographer present at our request

MANDATORY MEDIATION

•    Judicial or private

TRIAL

•    Prepare for trial and brief witnesses
•    Conduct trial

JUDGMENT

•    If judgment is in your favour, prepare Judgment Roll and Bill of Costs, obtain payment from Defendant’s insurer, or apply for payment from the Motor Vehicle Accident Claims Fund.  If your SEF 44 policy was accessed, obtain payment from your insurer.  Pay out any subrogated claims.  Pay our account.  Pay balance to yourself.  In some circumstances a structured settlement may be to your advantage.  File Acknowledgement that Judgment or Order has been satisfied.

This Personal Injury Claims Process worksheet was created by Kubitz & Co.