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$673,000 Awarded to Permanently Unemployable Plaintiff for Chronic Pain Disorder in ICBC Case

In the recently reported case of Mohan v. Khan, 2012 BCSC 436, Mr. Justice Bowden awarded $673,000 following an eight day trial for a chronic pain disorder arising from soft tissue injuries sustained in a motor vehicle accident in May 2007 on Kingsway and 16th Ave. in Vancouver. The plaintiff was awarded $100,000 for her pain and suffering and $400,000 for her loss of future earning capacity. The plaintiff was represented by Anthony E. Thomas and Steve Ferguson of Simpson, Thomas & Associates.


With respect to the plaintiff’s condition, Mr. Justice Bowden said the following:
[159] Based on the evidence of the medical experts it is apparent that chronic pain disorder is a condition that involves both physical trauma and psychological factors.


[160] The diagnosis of chronic pain disorder is largely subjective in nature and based on the plaintiff’s description of her condition to the medical practitioners supported by some testing. The expert evidence is that this condition cannot be objectively confirmed. If the plaintiff’s account of her condition as a result of the accident is not convincing then the hypothesis upon which the expert opinions are based is undermined…
The amounts awarded reflected both that the plaintiff was found to have exaggerated her symptoms and that she had failed to follow through with recommendations made to her by various medical doctors. Justice Bowden found that had the plaintiff followed the recommendations set out by medical experts who examined her (apparently at the request of her legal counsel) there might have been “significant improvement in her condition”.


Proving Failure to Mitigate in ICBC Injury Case:


The law places the onus on a defendant to prove the extent to which a plaintiff’s damages may be reduced had he or she reasonably followed the recommendations of his or her doctors. In his decision, Justice Bowden held that he could draw a “reasonable inference” of the effect of the plaintiff’s failure take recommended treatments from the opinions of the plaintiff’s psychiatrist, despite the fact that the doctor had given no opinion on the effects of the plaintiff’s failure to follow his advice regarding treatment of her chronic pain disorder:

[175] … Although Dr. Anderson was not asked to comment on the effects of the failure of the plaintiff to follow his earlier recommendations, he again recommended that the plaintiff receive 30 sessions of therapy from a psychologist with experience in treating chronic pain disorder and provided her with the names of two such qualified psychologists. The plaintiff did not follow those recommendations. It might reasonably be inferred that if the plaintiff had attended therapy sessions with a qualified psychologist as recommended by Dr. Anderson on two occasions, she may not have developed the major depressive disorder that resulted in a more negative prognosis by Dr. Anderson.


In trying to justify the Plaintiff’s failure to follow the recommendations of her medical experts, her counsel argued that she could not afford the expense of the treatments required to address her condition. Justice Bowden rejected that argument on the basis that the evidence showed that the plaintiff, on her own accord, had obtained and paid for other treatments to address her condition:


[180] In both of his reports Dr. Anderson recommended that the plaintiff be referred to a comprehensive multidisciplinary pain clinic. The evidence was that there was a two-year wait list for the public clinic at St. Paul’s Hospital. Even though the recommendation was made in May 2008, by the time of the trial, in October 2011, the plaintiff had still not been enrolled in that clinic and only went on the wait list in 2009.


[181] The clinical records of Dr. Petrovic show that that the plaintiff consistently refused to take her recommendation to see a psychiatrist and start taking anti-depressant medication at an early stage after the accident.


[182] Counsel for the plaintiff argues that in the East Indian community the culture is such that the plaintiff would resist the diagnosis of a mental health disorder. The only evidence of this is some testimony by Dr. Vallance, a psychiatrist, who the Court does not consider an expert in East Indian culture. Plaintiff’s counsel also argued that the cost of psychological counselling would have been too much for the plaintiff. I do not recall that the plaintiff ever testified to that effect. Rather, she seemed not to have recalled the recommendations made by Dr. Anderson. The plaintiff was able to afford other forms of treatment which she chose over the recommendations of the experts.


[183] I rely on the opinions of both Dr. Anderson and Dr. Caillier to conclude that their recommendations might well have resulted in significant improvement to the plaintiff’s condition had they been followed soon after they were made.


Loss of Earning Capacity in ICBC Injury Case:


The plaintiff was awarded $400,000 for a loss of earning capacity. The plaintiff’s failure to take reasonable steps to address her pain condition or seek full time employment was factored into this award. With respect to the overall award for this head of damages, Justice Bowden said the following:


[198] While the evidence of Drs. Caillier and Anderson is that the plaintiff will likely be unemployable for the rest of her life, it is my view that her inability to return to work is in part attributable to her failure to mitigate as described earlier in these reasons.


[199] I also do not accept that but for the accident the plaintiff would have been earning $40,000 to $50,000 per annum. There is no evidence that the plaintiff took any steps towards obtaining full-time employment and it remains speculative to conclude that she would have done so. I am prepared to accept that the plaintiff may have earned $35,000 based on anticipated increases in her salary for her continued part-time work. Allowing for the same contingency and uncertainties of the labour market as the plaintiff has applied in her claim under this head and reducing the amount because of the plaintiff’s failure to mitigate, I have concluded that a reasonable award is $400,000.


Special Damages Partially Denied in ICBC Injury Case:

The plaintiff claimed $30,168.17 in special damages.However, due to the fact that much of the treatments for which the plaintiff sought payment for were not recommended by medical experts, the bulk of the plaintiff’s claim was disallowed. With respect to this head of damages, Justice Bowden said the following:
[209]To the extent that the special damages claimed by the plaintiff arise from passive modalities of treatment which provided the plaintiff with, at best, only temporary relief such as physiotherapy, massage therapy, acupuncture and chiropractic treatment and were not recommended by the medical experts, they will not be allowed.


[210] In my view a reasonable award for special damages $8,000.


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