Article by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.
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:
- There was only $700 damage to the back of Mr. Kohlendorfer’s pickup truck when he was struck by a Honda Civic;
- He did not see a doctor after the collision as he expected the insurance company to find a doctor for him;
- He saw a lawyer before he saw his family doctor;
- Mr. Kohlendorfer’s treatment primarily consisted of visiting a hot spring in Nevada, massage therapy, rolling his shoulders, and herbal remedies;
- He did not see a chiropractor until six months after the collision, whom he only saw five times;
- Mr. Kohlendorfer did not mention any jaw symptoms to his dentist or doctor until three years after the collision;
- Despite his claimed injuries, he continued to conduct prospecting in the Yukon, a physical activity;
- Surveillance videos showed Mr. Kohlendorfer appearing to be strong and active and moving his neck and shoulders freely;
- The plaintiff’s posture along with age-related degenerative change could explain the plaintiff’s ongoing difficulties;
- He complained of symptoms that were medically unexplainable such as a number of episodes of paralysis;
- His range of motion when formally tested was less than his range of motion when he was being observed discretely;
- His symptoms spread from his neck, to his shoulders and then to his upper back over time, which is unusual;
- He continued to drive long-distances to Nevada and the Northwest Territories, and to engage in physical labour, despite his reported functional limitations;
- 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,
- 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:
- 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;
- 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”;
- 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;
- Her own family doctor testified that over the last ten years of dealing with Ms. Petz, the doctor had doubts about her pain;
- 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.
- 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;
- Her psychiatrist testified that Ms. Petz demonstrated disproportionate reactions to any injuries she had suffered;
- Ms. Petz helped renovate her house by painting. She had no problems doing this;
- 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,
- 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:
- That Ms. Petz provided inadequate explanations for the inconsistencies in her testimony;
- The contents of the surveillance video and Ms. Petz response thereto;
- The medical evidence of symptom amplification;
- Dr. Safran’s doubts about Ms. Petz’s pain;
- The correlation between the events in the litigation, such as Questioning, and Ms. Petz’s reports of pain to her doctors;
- 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;
- Ms. Petz’s extreme preoccupation with the litigation and the financial gain flowing therefrom (a source of “secondary gain”); and,
- 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.