Credibility in Personal Injury – Part 3

By August 29, 2017Articles

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

accident lawyers Calgary Walter Kubitz

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.