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$40,000 Awarded for Persistent Low Back Pain in ICBC Case

In the recently reported case of Wilkinson v. Whitlock, 2011 BCSC 1781, Mr. Justice Barrow awarded $40,000 in non-pecuniary damages (pain & suffering) after a seven day trial to a plaintiff injured in a motor vehicle accident in downtown Vernon in September 2007. The plaintiff sustained injuries to her back as a result of the accident. The court found that as a result of the accident the plaintiff was off work until early January 2008.


Limitations on Heavy Lifting and Bending Following Car Accident


The court found that as a result of the accident the plaintiff faced limitations involving work she was doing to her house, including heavy lifting or overhead or bending postures. The court found that she could no longer accomplish “heavier seasonal tasks” around the house.


In awarding the above amount, Justice Barrow said the following:


[56] I am satisfied that Ms. Wilkinson sustained a mild to moderate soft tissue injury to her lower back. It was significantly painful and physically limiting for the first four months following the accident. It has remained painful since. She uses over the counter Tylenol regularly, and prescription strength Tylenol with codeine intermittently to help her manage the pain. I am not satisfied her lower back has deteriorated since early 2008. To the extent Ms. Wilkinson has experienced increased pain it is associated with the hip condition she developed independently of the accident. Her injuries have affected her recreational activities and her ability to do the heavier chores around her home. The injuries also significantly impeded her ability to do the renovation work she was in the midst of when the accident happened. This was a source of frustration and inconvenience to her. Finally, while I accept that her condition plateaued in early to mid 2008, I am satisfied that if she were to pursue a reasonable fitness program, her symptoms would moderate and her functional abilities would improve. Even with exercise however, I do not consider that she will ever be symptom or pain free.


[57] In these circumstances an award of $40,000 is appropriate.


The court declined to award costs for loss of future earning capacity due to the medical evidence showing that the plaintiff would be able to work “fulltime and indefinitely”.


Future Care Costs in ICBC Injury Case:


Justice Barrow also awarded the plaintiff $33,060 in for her cost of future care. In making that award, he said the following:


[72] The more frequent future care costs are interior seasonal house cleaning ($450 a year), heavy seasonal yard work ($1,120 a year), footwear ($275 a year), medication (between $52 and $104 annually) and an annual gym pass ($368 to $537). The footwear is due to the hip and gait problems and is not the responsibility of this defendant. The seasonal interior housework and yard maintenance are supported by the medical evidence and by Ms. Wilkinson’s evidence. Medication at $50 a year is also warranted as is an annual gym pass. There is no explanation for the variation in the annual gym costs. I consider that $400 a year is reasonable.


[73] I note the defendant’s argument that Ms. Wilkinson may well have developed back problems in the future even if she had not been involved in this accident. That argument is based on her history of back problems in the latter half of the 1990s. I am not satisfied that there is a measurable risk of that occurring and thus decline to discount the award on that basis. Further, while I accept that Ms. Wilkinson’s functionality will likely improve with exercise and stretching, I am satisfied that the tasks associated with annual interior and exterior chores will remain beyond her.


[74] In summary, the plaintiff is entitled to $1,750 for onetime expenses, and an award to cover annual expenses of $2,020. As I understand Mr. Carson’s August 30, 2010 cost of future care multipliers, the present value of $1,000 annual expense incurred for the next 22 years, that is until Ms. Wilkinson is 65 years old, is $15,500. I consider 65 the reasonable outer limit because Ms. Wilkinson will likely be retired then and that will result in a decrease in her symptoms and an increase in her ability to attend to at least some of these matters herself. Further, her living arrangements may then require less assistance. Therefore, the award for the cost of future care is $33,060 ($31,310 plus $1,750).


(written by Charles D. Jago)Need help with your ICBC injury claim? Call us.

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