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$45,000 Awarded for Chronic Mild Back Pain in ICBC Injury Case

In the recently published case of Loeppky v. ICBC, 2012 BCSC 7, Madame Justice Gray awarded non-pecuniary damages of $45,000 to a plaintiff injured in a motor vehicle accident in Burnaby in December 2007. The matter proceeded by way of a summary trial application brought on by ICBC. Expert evidence at trial indicated that the plaintiff’s was suffering from “mechanical upper thoracic pain” and that he was likely to continue to experience mild chronic symptoms and flare ups of the pain with “provocative events”.


Justice Gray said the following respecting the suitability of the award:


[74] Mr. Loeppky continues to suffer mild back pain and stiffness, and will likely continue to do so. These chronic symptoms are subject to occasional flare-ups where he experiences more severe pain.
[75] Fitness and physical activity are an integral part of Mr. Loeppky’s life. Prior to the accident, Mr. Loeppky maintained a very high level of physical activity. Since the accident, he has been able to return to a high level of activity, but with some adjustments to his routines and some limitations on what he can do, particularly in the area of weightlifting. Chores around the house also take him longer than before the accident. Nevertheless, he has been able to try-out activities like judo and add boxing-type exercises to his regular routine.


[76] Mr. Loeppky joined the VPD to be a patrol officer. The accident and his resulting injuries were the major factor in his transfer to the GIU and may limit his ability to work as a patrol officer in the future.


[77] In all the circumstances, an appropriate award is $45,000.


Suitability of ICBC Injury Case for Summary Trial:


In deciding that the question of damages was suitable to determination in a summary trial, Justice Gray pointed to the following factors:


  • there was no significant difference between the plaintiff’s affidavit evidence and the evidence given at his examination for discovery;
  • the defence did not challenge the plaintiff’s credibility;
  • the plaintiff’s “work loss” was minimal;
  • there was no suggestion of malingering.

Wage Loss Benefits Not Deductable in ICBC Injury Case:


Relying on s. 106 of the Insurance (Vehicle) Act regulations, ICBC argued that wage loss benefits paid to the plaintiff by his employer were to be deducted from the award of past wage loss as a matter of law. The court disagreed and found that the plaintiff’s wage replacement benefits did not constitute an “insured claim” under that section of the regulation.


In that regard Justice Gray said the following:


[84] In Arklie v. Haskell (1986), 33 D.L.R. (4th) 458, 25 C.C.L.I. 277 (B.C.C.A.), McLachlin J.A., writing for the court at para. 26, held that a sum of money advanced by an employer to an employee that had to be repaid in the event of any recovery did not qualify as a benefit under the predecessor of s. 106.


[85] More generally, in Lopez v. Insurance Corporation of British Columbia (1993), 26 B.C.A.C. 142, 78 B.C.L.R. (2d) 157, Hollinrake J.A., writing for the court at para. 21, held that an “insured claim” for the purposes of the Regulations must still import at least some element of insurance. He went on conclude that payments made by reason of a contract of employment, without some evidence that they originate from an insurer, do not possess such an element of insurance.


[86] The sum of $6,804.77 was paid to Mr. Loeppky under the collective agreement between the Vancouver Police Union and the Vancouver Police Board. Under the terms of that agreement Mr. Loeppky must repay that amount if he recovers it in this action. There is no evidence that the payments originated from an insurer. Thus, it is not an insured claim under s. 106 and the defendant is not entitled to deduct it from any award.


[87] Mr. Loeppky is therefore entitled to an award of $6,804.77 in respect of the thirteen days work he missed as a result of the accident.


Loss of Earning Capacity in ICBC Injury Case:


The court also awarded the plaintiff $25,000 for his loss of earning capacity, despite finding that it was “unlikely” that his regular earnings would be affected his injuries. However, Justice Gray found that the plaintiff’s ability to work had been diminished as a result of the accident:


[96] There is evidence, however, that the accident has limited Mr. Loeppky’s ability to work patrol call-outs, and thereby to earn overtime pay. In light of his actual record of call-outs worked both before and after the accident, the amount of his loss is about $1,300 a year.


[97] Mr. Loeppky is now 36 years old. But for the accident, he would likely have sought overtime work until the end of his career at VPD. While he may be able to retire before age 60, he might have pursued a physical job after retiring from the VPD. As a result, consideration of his loss of overtime for the 24 years until he reaches age 60 provides a rough measure of his lost future earning capacity.


[98] The 2.5% discount rate is applicable to future income loss. Using that rate for a 24-year loss yields the multiplier 17.885. Applying that multiplier to a loss of $1,300 per year yields $23,250.50.


[100] As a result of the accident, Mr. Loeppky is less capable of earning overtime from the VPD. He is less marketable and more limited in the work he can pursue. He is less able to take advantage of job opportunities and less valuable to himself as someone earning income in a competitive market.


[101] In all the circumstances, an appropriate award under this head of damage is $25,000.

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