Determining the appropriate amount of money in a personal injury case for pain and suffering is and assessment and not a calculation. This assessment was made difficult in the following personal injury case when the court was forced to consider the opinion of an argumentative ICBC paid doctor (Redmond v. Krider, 2015 BCSC 178).
Mindful of the difficulties in assessing injuries based on subjective reports of pain ICBC’s expert expert, Dr. Levin, stated that the claimant did not develop a new major psychiatric condition due to this motor vehicle accident. The ICBC hired doctor unfairly concluded that her level of functioning was inconsistent with the diagnosis of a pain disorder. It became clear on cross-examination that the doctor had not even asked the claimant questions to determine if she met the diagnosis set out in the DSM-5.
The car accident occurred in Coquitlam, British Columbia, when the claimant was driving eastbound along Guildford Way, nearing the intersection at Falcon Drive. The light facing her was green and as she carried on through the intersection, a vehicle moved out from its position in the oncoming westbound left-hand turn lane and struck the claimants’s grey vehicle. The other driver was found to be 100% at fault.
The Insurance Corporation of British Columbia, ICBC, defended the case by hiring Dr. Levin as an expert. The judge however gave his medical report no weight given the extent to which his report strayed into advocacy. Amazingly Dr. Levin received 91% of his income for 2013 from ICBC reports. In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%. The court found it difficult to ignore the percentage of yearly income gained by the doctor as an expert for one particular party, ICBC. Although that was not the only reason that Dr. Levin’s report was given little to no weight.
During the course of the trial, Dr. Levin was argumentative and stated that if the DSM-5 criteria were applied as a checklist, everyone in the courtroom would have a number of psychiatric diagnoses. This opinion was not accepted. In fact the court did not accept Dr. Levin’s opinion at all and gave it no weight.
The court found that as a result of the car accident the claimant suffered soft tissue injury whiplash to her neck, and upper body, sacroiliac strain, flare-up of fibromyalgia, cervicogenic headaches, and adjustment disorder with depressive symptoms and anxiety, including persistent somatic symptom disorder of moderate severity (chronic pain) and reduced cognitive ability.
In awarding $150,000 for pain and suffering the court accepted that the claimant has suffered significant changes to her life since the motor vehicle accident. Her quality of life changed drastically. As the judge stated, “Where she used to be able to enjoy physical fitness and life with her partner, enjoy travel and live a pain-free life, she now comes home from work exhausted and preoccupied with measures to try to lessen her pain.”
The total court award was as follows:
|Pain and Suffering:||
|Past loss of earning capacity:||
|Future loss of earning capacity:||
|Cost of future care:||
|Out of pocket expenses:||
ISSUE: Should ICBC be allowed to use “hired guns” to deny legitimate personal injury claims?
Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B.