Court rejects plaintiff’s evidence, finds complaints of pain due to “factitious disorder or malingering”

In reasons for judgment released today, the court in Ma v. Haniak, 2017 BCSC 549, rejected the evidence of the plaintiff and found that her complaints were as a result of either a “factitious disorder or malingering”.  Mr. Justice Armstrong wrote:

[1]             The plaintiff Yin Yin Ma (“Ms. Ma”) was in a car accident in September 2007. She was involved in two other car accidents in 2009 with her brother Hla Shwe Maung. Liability for these collisions is admitted by the defendants and the trial concerned the assessment of damages payable to both plaintiffs, each of whom contends that they suffer from incapacitating and permanent injuries.

[2]             Ms. Ma has asked the court to award her approximately $175,000 for non-pecuniary damages, $243,000 in past wage loss, $616,000 for impaired earning capacity, $409,000 in future care costs, $20,000 in housekeeping expenses and $12,000 for special damages.

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[107]     Overall, Ms. Ma claims to be virtually incapable of any physical activity because of severe, constant and unrelenting pain at many times since the three accidents and at the time of trial.

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[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

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[291]     The defence argues that the plaintiff is a malingerer who might have been motivated to exaggerate her claims because she has had no economic success since immigrating to Canada in the early 1990s. There is no evidence that proves her ability to earn income other than her work in very modest manual labour positions. The defendants argue that evidence of her past economic performance goes against any assertion that, but for the accident, she would have been economically successful.

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[306]     For the reasons that follow, I am satisfied that Ms. Ma’s claims that she has experienced and continues to experience extreme levels of disabling pain throughout her entire body are unreliable and not credible. Further, although I accept that Ms. Ma suffered injuries to her neck, back and left side because of the three MVAs, I do not accept her evidence concerning the extent and duration of those symptoms. I find that the plaintiff exaggerated some of these symptoms and feigned others.

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[325]     In addition to exaggerating her claims, I find Ms. Ma’s testimony to be reflective of her expectations that her descriptions of pain would be helpful in increasing her damages claim and augmenting for her personal financial gain. Ms. Ma conceded that she had written letters outlining her symptoms and injuries to her doctors and requested that they keep those letters to deal with ICBC. The nature of this correspondence suggests that Ms. Ma was pain focused and intent on maximizing her compensation claim rather than on following her doctors’ advice concerning active rehabilitation and recovery.

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[331]     I find that Ms. Ma has not proven on a balance of probabilities that she suffers a chronic pain syndrome or fibromyalgia caused by the three MVAs. Based on all of the evidence, I conclude that the plaintiff claims that she suffers extremes of pain and discomfort throughout her body and which she says completely and permanently disabled her are animated by a factitious disorder or malingering.

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[374]     Ms. Ma will have judgment for the following:

a.     non-pecuniary damages $35,000;

b.     past wage loss $10,300;

c.     special damages $3,400; and

d.     the parties will be at liberty to speak to the question of costs.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0549.htm

Helpful comments from the Court of Appeal on Chronic Pain

In reasons for judgment released yesterday, the BC Court of Appeal in Park v. Targonski, 2017 BCCA 134, made some very helpful comments on Chronic Pain.  The court wrote:

Chronic pain

[76]         Chronic pain is a complex disorder. Dr. Lu explained that it negatively impacts sleep, energy, mood, and motivation. The medical evidence established that Ms. Park’s chronic pain manifested itself as hypersensitized and widespread pain that developed over time from her physical injuries. The psychological component of her pain is made evident in her ongoing issues with sleep, lack of energy, anxiety, lack of motivation and depressed mood.

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[86]         The complexity of chronic pain was acknowledged in Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, where Mr. Justice Gonthier, for the Court, wrote:

[1]        Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and no-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians. …

[87]         As in Martin, the medical evidence in this case conclusively established that Ms. Park’s pain is real, even though it includes a significant psychological component, and that its ongoing nature renders her vulnerable to depression. In my view, the judge erred in rejecting the subjective component of Ms. Park’s chronic pain as not being credible when he had accepted that component of her pain as an injury that was caused by the Accident. Even rejecting her evidence, there was a substantial body of medical evidence to support the reasonableness of her reported symptoms and their effect on her motivation. This error, in my respectful view, led the judge to focus principally on the physical nature of Ms. Park’s injuries and her physical capacity to do certain tasks, while discounting the distinct but inter-related emotional and psychological components of her injury, in assessing her functional capacity.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/17/01/2017BCCA0134.htm

Plaintiff awarded $95,000 in non-pecuniary damages for Chronic Pain and Depression

In reasons for judgment released last Friday, the court in Jamal v. Kemery-Higgins, 2017 BCSC 213, awarded the plaintiff $95,000 in non-pecuniary damages for chronic pain disorder, depression disorder and generalized anxiety symptoms.  The plaintiff in Jamal was a 36 year-old mother of two young children who had worked a Registered Massage Therapist and operated a successful Spa and Wellness Centre before the accident, which she was subsequently forced to sell due to her injuries.  In discussing the appropriate amount of non-pecuniary damages, Madam Justice Morellato wrote as follows:

[55]         Ms. Jamal seeks an award of $180,000 for non-pecuniary damages.  Counsel for the defendants submit that Ms. Jamal ought to be awarded non-pecuniary damages of $90,000, subject to the duty to mitigate her loss. 

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[59]         ...The evidence establishes that Ms. Jamal has suffered both physically and emotionally for a number of years as a result of the accident.  She is not able to work full-time in her chosen vocation, and she has developed a moderately severe chronic pain disorder, a depressive disorder and an anxiety disorder... In addition, Ms. Jamal has not been able to resume the active lifestyle she enjoyed prior to the collision, and she has suffered some cognitive impairment such as memory loss and lack of concentration which she attributes to her “flare-ups” or her chronic pain.  Ms. Jamal’s relationship with her children has also been negatively impacted due to her persistent pain.  In this light, and after reviewing the cases cited by counsel for both parties, I am of the view that the appropriate amount of non-pecuniary damages in this case is $95,000.

The text of the full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/02/2017BCSC0213.htm

Court awards $120,000 in non-pecuniary damages to 24 year-old plaintiff with "chronic mechanical back pain"

In reasons for judgment released today, the court in Brown v. Mitchell, 2017 BCSC 125, awarded $120,000 in non-pecuniary damages to a 24 year-old plaintiff who suffered from “chronic mechanical pain” as well as vision problems after being involved in two motor vehicle accidents.  Prior to the accidents the plaintiff worked as a dental assistant and was a competitive baseball player.  While she was able to return to playing baseball after the accidents, she suffered pain while doing so.  The court also awarded $120,000 in damages for future loss earning capacity, on the basis that the plaintiff was no longer able to work as a dental assistant and would have to retrain for work in a new field.  In giving reasons for judgment, Mr. Justice Ball wrote as follows:

[24]        The plaintiff’s case may be summarized as follows: she was involved in two motor vehicle accidents, detailed above, the first of which was more serious than the second accident. After a brief period of dizziness, the plaintiff suffered immediate pain in her right lower back which radiated into her right buttocks and right leg. The injuries reported by the plaintiff included a lack of steadiness in her vision which caused her to have difficulty tracking lines of text on a computer screen.

[25]        This second accident aggravated the neck and back pain which arose from the first accident but the symptoms were resolved within three months.

[43]        At the end of the day the evidence generally supports the proposition that this plaintiff will not have a pain free future and that painful symptoms will persist.

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[46]        The plaintiff has had to change her occupation from one she was highly successful at and had trained at some considerable expense to obtain. She remains with a significant debt which she will now have to pay off without the immediate expectation of an increased salary.

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[48]        Having reviewed the cases cited by counsel for both parties, I am satisfied beyond a balance of probabilities that the appropriate award of general damages in this case is $120,000.

[49]        The plaintiff had potential for advancement in the dental field and her employer testified that he would provide opportunities for that advancement to take place. The plaintiff also achieved raises in her salary during the eight months preceding the first accident. Without repeating more of the foregoing I am satisfied that the plaintiff has lost a significant capital asset in that she cannot continue her chosen profession for which she has paid a significant sum for training which was clearly successful. Her future income loss, I fix at $120,000.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/01/2017BCSC0125.htm

Court awards motorcyclist $850,000 in loss of earning capacity

In reasons for judgment released yesterday, the court in Sundin v. Turnbull, 2017 BCSC 15, awarded a 33 year-old plaintiff $850,000 for loss of future earning capacity.  In Sundin, the plaintiff had been rear-ended while riding his motorcycle and suffered a variety of physical and psychological injuries, including chronic pain and adjustment disorder.  In finding that the plaintiff was also entitled to $175,000 in non-pecuniary damages, Madam Justice Gerow wrote as follows:

[26]         Mr. Sundin has not adjusted well to the chronic pain, and has been diagnosed with an adjustment disorder. He is having trouble accepting he is not going to fully recover, and is going to have to live with chronic pain.

[77]         In my view, the expert evidence supports a finding that Mr. Sundin will continue to suffer from chronic pain and cognitive and memory problems in the future, and will likely suffer flare ups of both his physical and psychological symptoms from time to time.

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[108]     There is no question that Mr. Sundin’s life has changed profoundly as a result of the accident. Prior to the accident Mr. Sundin had a history of performing at a high level in both his work and personal life.

[156]      Accordingly, I have concluded that as a result of the accident, Mr. Sundin has lost the opportunity to pursue many careers involving heavy physical demands, including firefighting and policing or corrections. It is clear from the evidence that Mr. Sundin is unlikely to be successful in retraining in a formal setting. However, Mr. Sundin has the capacity to work at jobs that can accommodate his limitations.

[157]     This is a difficult case because Mr. Sundin’s ability to keep employment or find full time employment in more sedentary or recreation oriented jobs will likely be limited due to his mood issues, irritability, indecisiveness and inability to get along with people. On the other hand, Mr. Sundin may be able to find and keep employment in the hunting or working outdoors. However, that kind of work is seasonal.

[158]     Having considered all of the evidence, including Mr. Sundin’s age and residual capacity to earn income, I am of the view that the appropriate award for loss of future income earning capacity is $850,000. This award takes into consideration the fact that Mr. Sundin has not established that he would have applied for the RCMP but for the accident, but that he has established he would have applied for and obtained full time employment, likely in the fitness or recreation field. In my view, given his experience at the Canada Games Centre, it is unlikely Mr. Sundin will be able to obtain full time employment dealing with the general public which significantly limits that career possibility.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0015.htm

 

 

Court declines to follow long-standing case law instructing judges to be "exceedingly careful" when examining subjective complaints of plaintiffs

In reasons for judgment released on December 22, 2016, the court in Deol v. Sheikh, 2016 BCSC 2404, criticizes long-standing case law from 1982 which stated “a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved” and that courts “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”.  In Deol, Madam Justice Griffin writes:

[108]     Since many people experience a minor injury at some point in their lives and get better from it, the idea that someone else might have lasting severe and debilitating pain from a minor injury has long been met with skepticism.

[109]     In the legal system the argument was typically advanced that patients complaining of this kind of disorder were exaggerating for the sake of an ongoing legal claim, given that medical science could not understand why someone would have pain in the absence of an objective ongoing injury.

[110]     It was in this context and the then state of medical science that more than 34 years ago McEachern C.J.S.C. (as he then was) wrote the judgment of Price v. Kostryba...

[111]     As was pointed out by Mr. Justice Kent in Kallstrom v. Yip, 2016 BCSC 829 at para. 335, the Butler v. Blaylock decision relied upon in Price was overturned on appeal; see [1983] B.C.J. No. 1490 (C.A.). There is no principle by which plaintiffs suffering chronic pain ought to be subject to a higher standard of proof or a higher degree of skepticism.

[112]     Medical science and technology have advanced since the Price decision. Medical science has come to accept that some people can suffer an increased and prolonged sensitivity to pain from what to others appears to be a minor injury.

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[120]     The underlying concern in Price had to do with the question of how a defendant can defend against false complaints of chronic pain since such complaints depend so much on a plaintiff’s own testimony, which is necessarily self-serving given that the plaintiff is seeking compensation.

[121]     Experience has shown that this is not so difficult a question to answer. Many disputes in the courts turn on circumstantial evidence, and that is how cases involving chronic pain are often proven and disproven.

[122]     The medical experts in chronic pain cases typically put plaintiffs through a series of tests and manoeuvres designed to reveal if the person is exaggerating or making claims of pain that make no sense.

[123]     Further, the lives of these types of plaintiffs pre-accident and post-accident are gone over with a fine tooth comb to reveal consistencies and inconsistencies with the claim. The “before” and “after” accident picture of the plaintiff is usually the best source of information as to how the accident impacted the plaintiff, and medical experts also rely on this to a great extent. Often years pass before these cases are brought to trial, reducing the possibility that a plaintiff can keep up a false act.

The full text of the decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/24/2016BCSC2404.htm

Court awards $110,000 non-pecuniary damages for Chronic Pain Syndrome

In the recent decision of Beaton v. Perkes, 2016 BCSC 2276, the court Court awarded the plaintiff $110,000 in non-pecuniary damages for Chronic Pain Syndrome caused by the car accident .  The court said:

19]         Each of the experts I have referred to accepts that Ms. Beaton now struggles with chronic pain syndrome. They provided the following opinions on her prognosis:

[59]         In the result, I consider that an award of $110,000 fairly compensates Ms. Beaton for her non-pecuniary losses.

The full text of the decision can be found here: http://www.canlii.org/en/bc/bcsc/doc/2016/2016bcsc2276/2016bcsc2276.html?resultIndex=1