In this car accident injury case the claimant was a passenger when her vehicle was side swiped. she did not hit her head, and did not lose consciousness. The vehicle damage was minor. Eight months following the claimant had resumed full-time duties as a dental receptionist. She was also able to do the housework, food preparation and cooking for a full thanksgiving dinner for her family. (Fernandez v. Beltran,2022 BCSC 1482)
The claimant was seeking compensation for pain and suffering, loss of past income, loss of future earning capacity, cost of future care, and out of pocket expenses. Relying on a functional capacity evaluation and other experts opinions sought an award of $917,743.81. The lawyer for the other driver suggested that an overall award in the range of $89,220.91 to $140,132.91 would be appropriate. After a 9 day trial in 2022 the court awarded $192,059.75. The judge concluded that a large part of the claim was not supported by the evidence. Here’s what you need to know about this case.
Functional Capacity Evaluations
A functional capacity evaluation (FCE) is essentially an evaluation of a persons physical and functional abilities, using objective and measurable tests. The evaluator has specialized training and experience to determine fitness for work and activities of daily living. The court does not have to accept the conclusions of an FCE if these findings are inconsistent with other evidence of the claimants activities. As in this case, a judge can accept some but not all of the conclusions set out in an FCE.
The claimant in this case indicated that she had significant difficulty with many every day activities. For example, she indicated having difficulty with using her vehicle. However, video surveillance showed she could exit and enter her vehicle without the appearance of difficulty; walking without the appearance of difficulty; being able to carry things in her arms while opening the car doors without difficulty; and she was able to drive from Edmonton to Calgary, a 3-hour drive each way; it seems as well that the plaintiff was driving to work each day, a drive that was about 30 minutes. The claimant was also able to live alone in a detached two-story house.
In the FCE questionnaire, when asked what activities she was no longer doing she wrote “everything”. The claimant agreed she answered these truthfully, and to the best of her ability. For example, she wrote that she could not cook at all (later in the same questionnaire she responded she could “with help”). However, during cross-examination she indicated that she hosted a full thanksgiving dinner for her family. Further, though her daughter was reluctant about revealing the extent of her mothers cooking ability, it was apparent in cross-examination that her mother could cook and did cook to a level above what the plaintiff asserted, including cooking meals for her. The cross-examination of the claimant revealed she was able to prepare and cook meals for herself. The judge concluded that she was capable of preparing meals and did so on a regular basis.
The judge was not persuaded that the psychiatric and physical medicine opinions were a sufficient answer to the incongruences in her evidence. Nor was the judge persuaded by the functional capacity report given the evidence available outside of the assessment. The evidence of her abilities and function as observed by others who worked closely with her, her achievements in completing her pharmacy assistant course, and the various activities in the video lead the court to conclude that she was not as debilitated as she claimed.
Assessing Credibility of a Personal Injury Claimant
Personal injury claims such as in this case are difficult because they are based on subjective symptoms. As a result, the evidence is scrutinized closely by the court in order to ensure fairness. This attracts an assessment of the reliability and credibility of the claimant. In this regard, Justice Dillion’s summary in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012 BCCA 296, is helpful:
[186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356).
Ultimately the judge awarded the following damages:
| Description | Amount | |
| (a) | Pain and Suffering: | $100,000.00 |
| (b) | Out of pocket expenses: | $13,223.75 |
| (c) | Past loss: | $8,047.00 |
| (d) | Future loss: | $40,000.00 |
| (e) | Future care: | $30,789.00 |
| TOTAL: | $192,059.75 | |