Our first case deals with an award of nearly $2,000,000 stemming from a rear-end collision which caused the Plaintiff primarily subjective injuries, including neck and back pain, which afterwards developed into chronic pain.
Our second case deals with the Plaintiff’s need to show medical evidence supporting a claim for the cost of additional chiropractic and massage treatments in a personal injury claim. Plaintiffs are not given “carte blanche” to take any therapy that makes them feel good.
Richard v. Ward, 2013 NBQB 107
In 1998, the Plaintiff, a 27 year old pharmaceutical sales representative, was rear-ended while stopped at a red light. Following the accident she experienced neck and back pain and was off work for a period of five days. Despite complaints of on-going pain, the Plaintiff was married three months after the accident and had her first child 13 months after the accident. Due to her physical condition, she took an early leave during her pregnancy.
In January 2000, the Plaintiff attempted an unsuccessful return to work six months after the birth of her first child. She completed her Master’s Degree sometime 2000, and returned to the workforce in July 2001. In September 2001, the Plaintiff gave birth to her second child. She was dismissed from her employment while on maternity leave.
In 2002, the Plaintiff returned to work as a director of operations for a research and development center. She found she was unable to manage full time hours due to chronic pain. After nine months of part-time work, the Plaintiff ceased working altogether.
During the following four years, the Plaintiff continued to experience chronic pain. She focused on her rehabilitation through various doctors and treatment providers. She also tried to launch her own business, which failed after a few months. From 2008 to 2012, the Plaintiff worked part-time at a community college and did some supply teaching.
At trial, the Plaintiff testified that she continued to suffer from neck, back and hip pain.
The Defendant argued that the injuries sustained by the Plaintiff were minor, that she had made a personal choice not to pursue full-time employment, and that based on her level of education and functional abilities the Plaintiff was capable of full-time employment.
The Court determined that the Plaintiff never recovered from the injuries she sustained in the accident and continued to experience chronic pain which rendered her permanently partially disabled with little possibility of improvement.
The court awarded $75,000 in general damages, $7,500 in past loss of valuable services, $29,000 in future loss of valuable services ($1,200 annually to age 70 and $500 annually from age 71 to 75), and $23,229.80 in past cost of care.
The Plaintiff presented evidence from an occupational therapist estimating her future care costs at $304,804. The court found that the Plaintiff’s future cost of care claim, which included 38 massage therapy treatments, 38 chiropractic treatments, and as many physiotherapy treatments annually was absurd. The Plaintiff was awarded $10,000 for future care costs.
The Court accepted the past loss of income calculations presented by an actuarial expert called by the Plaintiff, and awarded $632,544 in addition to $35,842 for past loss of pension contributions.
The Court found that the Plaintiff would never enjoy the level of income she had prior to the accident. In considering the Plaintiff’s future loss of income claim, the court determined that the Plaintiff would have retired at age 60.
The court found that the Plaintiff had a residual earning capacity of $25,000 per year. However, the Plaintiff was previously earning a salary of $60,000 per year plus bonuses as a pharmaceutical representative. After subtracting her residual earning capacity, the Plaintiff’s future loss of income claim was assessed at $1,044,412. She was also awarded $60,252 for future loss of pension contributions.
The Plaintiff was awarded a total of $1,950,779,80 plus costs in the amount of $62,900.00.
Redl v. Sellin, 2013 BCSC 581
The Plaintiff, a 41-year-old social worker, sustained soft tissue injuries in a motor vehicle accident, which developed into chronic myofascial pain and a chronic pain disorder.
Prior to the accident the Plaintiff attended regular monthly chiropractic treatments for “maintenance” and regularly attended massage therapy treatments for stress relief. After the accident, she drastically increased the frequency of her visits.
The Plaintiff claimed $46,501.22 in special damages, mainly relating to past massage therapy treatments (163 visits), acupuncture treatments (73 visits), chiropractic treatments (97 visits), pilates, and naturopathic treatments.
The Court pointed out that while a Plaintiff claiming these expenses is generally only held to a standard of reasonableness, the benefits of a treatment aimed at promoting the Plaintiff's physical or mental well-being should be supported by medical justification.
The Court accepted that a patient may be in the best position to assess her or his subjective complaints, but recognized that “plaintiffs are not given carte blanche to undertake any and all therapies which they believe will make them feel good”.
Following the accident, the Plaintiff’s family physician did refer her to a massage therapist, a chiropractor and a kinesiologist. However, there was no evidence that the family physician monitored the frequency of the Plaintiff’s treatments. Under cross-examination, the family physician testified that he would normally advise a patient such as the Plaintiff to have eight massage therapy treatments and a very limited number of chiropractic treatments. He would then refer a patient to a specialist for recommendations on further treatments, and advise the patient to begin active rehabilitation therapy rather than receiving passive treatments.
The Court found that there was no medical evidence that the additional therapies accelerated the Plaintiff’s return to work or otherwise improved her physical condition. The Court was not persuaded that the Plaintiff's physical or mental well-being was or could reasonably have been expected to be any greater as a result of undertaking these frequent therapies.
The Court awarded the cost of the Plaintiff’s first 12 massage therapy sessions, her first 12 chiropractic treatments, the cost of additional massage therapy treatments when she experienced flare-ups, and$2,100 in acupuncture incurred based on medical advice. The cost of the Plaintiff’s pilates in the amount of $3,974.92 was also allowed as treatment aimed at increasing her core strength which her pain specialist referred to as a priority. Along with the cost of other miscellaneous treatments, the Plaintiff received only $6,337.49 of the $46,501.22 she claimed.
The Court disallowed the balance of the massage, chiropractic and acupuncture treatments, as well as the claims for naturopathic and reflexology treatments, as not having been demonstrated as reasonable.