Truck Accident Injury Award Reduced By Judge Despite Lawyer Funded Physiotherapy

March 12, 2012- This injury case was overturned by the BC Court of appeal and is no longer good law. See my personal injury article reviewing the Court of Appeal decision.
In this Surrey personal injury lawsuit(Wahl v. Sidhu)  the injury claimant was driving his employer’s 1988 Ford Pickup Truck which was loaded with two large tires weighing approximately 1,200 pounds each.   The claimant was travelling  on 72nd Avenue, in Surrey, B.C. when the other driver came out into traffic on 72nd Avenue which resulted in the front part of the claimant’s truck hitting the  other vehicle.   
As a result of the truck accident, one of the large tires broke through the back of the cab of the pickup, smashing the window, and hitting the injury claimant in the head.  Initially his family doctor recommended physiotherapy however the injury claimant continued attending physiotherapy for over 350 visits with no further referral by his doctor . As the Judge pointed out with respect to the evidence of the physiotherapist:

“Most important is the fact that his evidence was that although Dr. Hay initially recommended physiotherapy treatment he referred to “the lawyer” paying for the treatment.  While he could find no more than two referral notes from Dr. Hay in his records, he also agreed that not one of the 350 physiotherapy visits was contained in the MSP printout from the date of the accident to the date of trial.”

The lawyers working for ICBC made the argument that it was not for the injury claimant’s lawyer to make the referrals to treators as was done in this case.  With reluctance the court accepted that criticism and stated, “I am of the view that had the treators recommendations been referred to the treating family physician there would have been appropriate steps taken to ensure such attendance at a pain clinic.  In this case there was a lack of follow-up with respect to the attendance at the pain clinic which I find was particularly required…” The duty on an injury claimant is to take reasonable steps to minimize his loss  which the claimant failed to do in this case.
There was a claim for  physiotherapy costs  in the amount of $14,175.  The evidence however was that the injury claimant  had plateaued within a very few months and no improvement was noted past that time.  Physiotherapy was, however, continued for some 350 visits.  The judge found that the physiotherapy treatments continued solely because injury claimant’s lawyer was paying for them without reference to the family doctor.  The judge only allowed  23 sessions at $45 per session  for an award of $1,035. 
 The judge concluded that the claimant was experiencing pain, emotional distress, depression and anxiety that  were due either directly or indirectly to the truck accident.   The evidence was overwhelming that the claimant  sustained an aggravation of his pre-existing injury to his right shoulder following the truck accident .
The injury claimant was ultimately awarded the following:

Pain and Suffering		$ 65,000.00
Past Wage Loss		78,000.00
Future Loss of Capacity		0.00
In Trust Claim		0.00
Out of pocket expenses	Physiotherapy	1,035.00
	Prescriptions	101.26
	Psychology Visits	8,100.00
	Miscellaneous	2,997.01
Future Care		10,000.00
TOTAL CLAIM		$165,233.27

Posted by Mr. Renn A. Holness
Issue: Should personal injury lawyers pay for their clients treatment?