Court awards $400,000 in Cost of Future Care for soft-tissue and emotional injuries

In reasons for judgment released yesterday, the court in Pearson v. Savage, 2017 BCSC 1435, awarded the 21-year-old plaintiff over $400,000 for cost of future care in a case involving soft-tissue and emotional injuries.  In Pearson, the plaintiff suffered soft-tissue injuries which eventually caused depression, anxiety, and PTSD.  In making the award for cost of future care Madam Justice Loo said as follows:

[215]     Ms. Pearson seeks an award of cost of future care of $401,868.50, which includes the cost of the medical treatment that the medical experts recommend based on their assessments of her. The purpose of a cost of future care award is to sustain or improve the physical and mental health of the injured person based on what the medical evidence is reasonably necessary: Gignac v. Rozylo, 2012 BCCA 351.

[216]     There is general agreement among the medical witnesses that Ms. Pearson needs treatment, although the names of the treatment may differ slightly.  However, a multi-disciplinary intervention, physical rehabilitation and pain management program, or multidisciplinary chronic pain management program is necessary. This includes physiotherapy, occupational therapy to establish an initial rehabilitation plan, physical therapy, active rehabilitation with a kinesiologist, psychological counselling or therapy, and cognitive behavioural therapy or psychotherapy. She also requires prescription medication for anti-depressants, Botox treatments, and intramuscular stimulation (IMS) or myofascial trigger point injections, and after Ms. Pearson has plateaued following her rehabilitation plan, a vocational or career consultant, and life-long access to a gym.

[217]     Ms. Pearson testified that she is willing to travel to Vancouver for the recommended medical treatment that she needs (assuming of course, that the treatment is not available in Squamish) and as set out in Ms. Craig’s cost of care report. Despite her anxiety with being on the Sea-To-Sky Highway, I believe that she will obtain the treatment she requires, despite the problems she has had in the past.

[218]     Ms. Pearson has found IMS helpful for reducing pain, and Botox helpful for her headaches.

[219]     Ms. Craig prepared a cost of care report based on the recommendations made by the medical experts, including the recommendations in her functional capacity evaluation. The plaintiff points out in argument that no aspect of Ms. Craig’s cost of future care report was challenged...

...

[222]     Ms. Pearson is entitled to damages of $401,868.50 for cost of future care.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1435.htm#_Toc490471362

Court calls plaintiff's expert an "undisclosed salesman"; says evidence showed "a shocking lack of candour"

In reasons for judgment released today, the court in Ma v. Haniak, 2017 BCSC 549, severely criticized the plaintiff's expert Occupational Therapist calling him an "undisclosed salesman" and saying his report showed "a shocking lack of candour".  Mr. Justice Armstrong wrote:

[179]     Mr. McNeil is an occupational therapist and certified work capacity evaluator. He and Kevin Turnbull’s opinions form the basis for Ms. Ma’s estimate for future care costs in the amount of $390,065.

...

[183]     I consider Mr. McNeil's failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour. As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue. To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time. It is impossible to parse out Mr. McNeil’s evidence as a qualified expert from that as an undisclosed salesman for Biosyn.

...

[199]     Overall, I have little confidence in Mr. McNeil’s opinions. He candidly acknowledged he could not measure or verify Ms. Ma’s subjective claims of disabling pain. His assessment was performed five years before trial and one-and-a-half years before Mr. Enright’s assessment. Additionally, Mr. McNeil acknowledged several shortcomings in the preparation and final content of his report.

[200]     Mr. McNeil has an unenviable record in this Court as highlighted by the authorities cited by the defendants. While those cases do not render his report unreliable, the errors in his report, the differences between his and Mr. Enright’s findings and the carelessness with which he prepared his opinion result in my finding that I can give little weight to his views.

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

Plaintiff awarded $90,000 for future cost of massage and chiropractic treatments

In reasons for judgment released yesterday, the court in Kodelja v. Johal, 2017 BCSC 164, awarded a 40 year-old elementary school teacher $80,000 in non-pecuniary damages as well as $90,000 for the future cost of massage and chiropractic treatments.  The plaintiff in Kodelja suffered from chronic myofascial pain syndrome and post traumatic thoracic outlet syndrome after being injured in a motor vehicle accident, however these injuries had not caused her to miss any work in the four years leading up to trial.  The court also found that she was “capable of performing her duties at her school into the foreseeable future”, but nevertheless awarded $50,000 for future loss of earning capacity.  In giving judgment, Mr. Justice Masuhara wrote as follows:

[92]         Therefore, my summary of findings regarding the plaintiff’s injuries is: 

(a)            The Accident caused the plaintiff’s chronic myofascial pain syndrome and post traumatic thoracic outlet syndrome.  The pain is in her left neck, left shoulder and upper back.  She also has paresthesia in her left arm as a result of the thoracic outlet syndrome. 

(b)            The Accident caused the plaintiff to suffer headaches which continue.  The headache pain ranges from dull, to mild to severe.  She gets dull or mild headaches every other day and manages without medication.  She has more significant headaches once every two weeks.  They can be managed with Tylenol and Advil. 

...

(h)            The plaintiff has some physical limitations, however, she is able to carry out normal day-to-day activities including teaching, with the work support and prep time available to her, and home cleaning and cooking. 

(i)              The plaintiff is functional for basic handling, reaching, balance, stooping, lifting and carrying for amounts tested, sitting, standing and walking.  She is able to do housecleaning though has difficulty with heavier activities for which she requires some assistance. 

...

(k)            She is able to perform her teaching duties, including leading or assisting in after school student extra-curricular activities. 

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[93]         With the above in mind, I turn to damages.

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[102]     The ranges the parties rely on are not too far apart.  The assessment in this case, while guided by other cases, is tailored to the specifics of the present case.  My review of the cases handed up and my findings lead me to assess damages under this head at $80,000

...

[126]     For massage and chiropractic treatments, which are a key source of relief, I assess the amount at $90,000

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/01/2017BCSC0164.htm

Court awards paralyzed plaintiff $4,500,000 for cost of future care

In reasons for judgment released today, the court in Warick v. Diwell, 2017 BCSC 68, awarded the plaintiff $4,500,000 for the cost of future care.  The facts in Warick were tragic.  The plaintiff was paralyzed and her husband killed after a semi-truck crossed the centre-line on Highway 5 and slammed into their car.  In giving reasons for the cost of future care award, Mr. Justice Shultes wrote as follows:

[1]             On March 1, 2009 the plaintiff Leslie Warick was involved in an extremely serious motor vehicle accident on Highway 5 near Kamloops. She and her husband of 27 years, along with two of their close friends, were returning from a ski holiday at Sun Peaks Resort to their home in Edmonton when their vehicle was struck by an oncoming semi-truck/trailer driven by the defendant David Diwell, which had crossed into their lane. Her husband and their two friends were killed in the collision and Ms. Warick suffered major injuries, the most serious of which was to her spinal cord, which has left her paralyzed from the waist down.

[2]             Most of Ms. Warick’s personal injury claims arising from the accident have been settled. What remains in issue is the cost of her future care.

[3]             The trial was conducted in a very efficient way. The many uncontested background matters were dealt with by an agreed statement of facts, and counsel were adept in focusing the evidence on those aspects of Ms. Warick’s current circumstances and future needs that are actually in dispute. The most important of these are the level of home care that she will require and the necessary skills of those who will provide it.

[356]     Subject to submissions on the issues to tax gross-up and management fees…I will award the following amounts:

...

TOTAL:   $4,503,880

 

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0068.htm

 

Court of Appeal sets aside award for future cost of Botox treatments saying "no evidentiary foundation for the award"

In reasons for judgment released this morning, the BC Court of Appeal in Reimer v. Bischoff, 2017 BCCA 4, overturned a trial judge’s $34,000 award for future cost of Botox treatments.  In finding the Botox treatments to be not medically justified, the Court of Appeal said the following:

[26]         Included in the future cost of care award is $34,768.90 for Botox treatment…

[29]         The parties do not dispute that determining the cost of future care involves identifying medically justified and recommended treatment responding to injury caused by an accident that sustains or improves the mental or physical health of the plaintiff.

[30]         It is quite clear on the record that the judge fell into error in concluding that the cost of Botox treatment had been recommended by a medical professional. The respondent had testified that she had in the past used Botox for cosmetic reasons, and found that it provided relief from her migraines. The use of Botox to treat migraine was confirmed to her by a Dr. Donat, and the respondent testified that its use to treat migraines had been recommended to her by Dr. Donat and Dr. Buttars. Neither of those opinions was in evidence in an admissible form for their truth. The only admissible medical evidence concerning Botox was an opinion that if the other preventive treatments should become ineffective, then a trial with Botox might be recommended...

[31]         I am satisfied that there was no medical evidence before the court capable of justifying the cost of Botox treatment. Moreover, the possibility that Botox would be recommended in the future was entirely speculative…

[32]         In my view, there was no evidentiary foundation for the award of the future cost of Botox treatment and no basis on which to assume… that treatment of the migraine headaches by using Botox would ever be medically recommended for the respondent.

[33]         I would set aside the award for the future cost of Botox treatment.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/17/00/2017BCCA0004.htm