Saturday, 28 June 2014

Is anyone who runs a marathon after a car accident entitled to compensation for injuries?                     

This is an interesting article about whiplash injuries.

This article relates to a motor vehicle accident that took place on June 8, 2006 in Coquitlam, British Columbia, just east of Vancouver. Marek Kouba’s vehicle rear ended the vehicle of Gloria Clark in West Vancouver, British Columbia.

She was driving her Oldsmobile minivan and it was raining at the time.  Traffic on the off-ramp from Highway 1 must yield to the traffic travelling north on Westview. Ms. Clark was stopped before the first northbound lane and turned her head to the left to look for traffic.  She had both hands on the steering wheel and her foot on the brake at the time of the accident.

Kouba was driving his Volkswagen at the time of the accident and he was proceeding behind Ms. Clark.  He took his eyes off the traffic in front of him briefly because he too was looking to the left in order to merge.  As a result of this, he struck Ms. Clark’s van from behind.  At the time of the impact he was driving at about 15 km an hour.  The impact pushed Ms.Clark’s vehicle forward at least ten feet across the first northbound lane of Westview. Kouba described the impact as a “good, forceful” impact.      

The accident caused minor damage to Ms. Clark’s vehicle in the range of $300.00 and she did not have her vehicle repaired.  There was more extensive damage to Mr. Kouba’s vehicle, including a broken engine mount, as well as the radiator, front bumper and grill.
Immediately after the accident, Ms. Clark got out of her vehicle and exchanged information with the defendant.  She described being dazed because she was not expecting the impact.  She was sore in her head and neck.  As she was exchanging information with the defendant her left arm was tingling and she could barely hold a piece of paper.  After exchanging information Ms. Clark drove home and she arrived at about 9:30 p.m.  That evening she felt pain in her neck, back and across both shoulders, more to her left.

The next day, June 9, 2006, Ms. Clark attended the office of her general practitioner, Dr. Christopher Ryan who has been Ms. Clark’s physician since August 2, 1983.  Dr. Ryan did not conduct a physical examination that day, but he did discuss with her recommended treatment for the injury, in particular, massage treatment.          

Three weeks later, he conducted another exam. In his medical report, he wrote;

“On exam she had moderate spasm and tenderness across the base of her skull, both sides of her lateral and posterior neck and spines, bilateral upper back, and low thoracic and all lumbar areas including spines.  The worst tenderness was mid thoracic. The diagnosis was numerous neuromuscular soft tissue stretch injuries, caused by the Motor Vehicle Accident (MVA) and a worsening of a few minor prior overuse problems which had not caused her any significant disability.  These MVA related injuries were causing her major inconvenience, pain, lost hours at work due to medical appointments, and major disabilities in her exercise and home activities.  She did not require time off work otherwise.”

Dr. Ryan saw Ms. Clark on and off for the next three years.  Ultimately his diagnosis is contained in his report of May 19, 2009, as follows:

“In review, following up from the summary paragraph above, Gloria Clark has been an amazingly fit athlete.  She was significantly injured in this MVA.  She had been completely healthy prior to the MVA, except for some minor left knee and buttock strains due to a leg length difference.  She has suffered many pains and problems due to her persisting injuries, but she has not taken any days off work, just time for appointments and treatments. Recently she has had some injections which have helped somewhat, but only months will tell if this will cause any real and long-term improvement.  Considering that she has now been suffering for three years, I do not believe that she is likely to ever improve completely.  If she stops treatments completely, and stops exercising, then I would expect she would worsen significantly.”
Ms. Clark was previously assessed at the Allan McGavin Sports Medicine Centre on December 1, 2005 with a 12 month history of left buttock pain that came on gradually while training for the Boston Marathon.  She had pursued massage therapy, chiropractic care, physical therapy and acupuncture  with incomplete relief.
Physical examination at the time revealed functional leg length discrepancy, tenderness in her left quadratus lumborum, gluteus medius, pyriformis, iliotibial band, and superior sacroiliac ligament plus left hamstring origin tenderness at the ischial tuberosity.  She was advised to pursue treatment for her functional leg length discrepancy, core stability, local flexibility and strength and also gradually to increase her running program.  At the time specifically there was no mention of neck and/or upper back pain.
As a result of the June 8, 2006 motor vehicle accident, Ms. Clark sustained a whiplash associated disorder grade 1 and subsequently developed regional neck and upper back myofascial pain syndrome.  Given the fact that 4 1/2 years has elapsed since the motor vehicle accident, Ms. Clark's condition would be considered permanent. 
In his evidence at trial during cross-examination it is clear that Dr. Lloyd-Smith did not consider it inconsistent that Ms. Clark suffered a chronic injury as a result of the accident and yet she was able to do many of the athletic pursuits after the accident that she pursued prior to the accident such as hiking the “Grouse Grind” which is a challenging hike on Grouse Mountain in North Vancouver, and running marathons.  He described Ms. Clark as a “survivor” since she had run multiple marathons and it was concluded from his evidence that in his view her ability to run through pain was inherent in the ability to run multiple marathons.    

Dr. Akerley has been Ms. Clark’s treating chiropractor since July 2010 and provided a report dated May 24, 2011.  Based on her examination and findings, Dr. Akerley summarized:

“Ms. Clark suffered from chronic whiplash associated disorder (which has also been termed as cervical acceleration-deceleration injury i.e. cervical sprain and strain), pelvic unlevelling and facet joint irritation of L4-5 in her backbone.  According to the criteria from the Quebec Taskforce on Whiplash-Associated Disorders, it would appear to be a Grade 2 Whiplash associated disorder, consisting of her neck complaints and musculoskeletal signs including decreased range of motion and point tenderness.”

Ms. Clark testified particularly in cross-examination about two prior motor vehicle accidents that she had been in during the late 1980’s, and about her attendances at a chiropractor, Dr. Weller.  She described the accident in this case as different from the other two accidents.  Although the damage to her vehicle in the other two accidents was greater, the injury to her body in this accident was greater.  She attributes the difference to the fact that in this accident she did not see the collision coming when she was rear-ended.

The jury must have concluded that from the evidence heard that the impact of the accident on Ms. Clark has been significant and has impacted all aspects of her life.  She has had to modify her work life and work day in order to adjust to manage her ongoing pain.  

At trial, she described her pain as being most significant in her neck and in her upper shoulders and in the muscle on the inside of her shoulders.  She said that the pain was more significant on her left side behind her left shoulder blade.  The pain was magnified by prolonged sitting and she organizes and manages her work day, including scheduling of appointments and meetings, in order to allow for frequent stretch breaks.  She rises early and starts her work day with a one hour yoga class close to her workplace in downtown Vancouver in order to practice a mind, body, soul approach to her health and ongoing rehabilitation.  All of her medical practitioners have supported her practicing yoga. Further, she said that her sleep had been disrupted and she relies on medication and a natural sleep aid in order to fall asleep at night.  Since the accident, she wakes at least once, and often twice, during the night.

She has difficulty with household chores and relies on help from her 16 year old son, and 11 year old twins.  She arrives home exhausted, irritable and “just generally spent”.  Her patience with her children is “just not there anymore”.  
Her life with her husband is impacted. Ms. Clark’s husband Jeff described her as “physically tired and mentally frustrated” and “as down as I have seen her.”  

Mr. Kouba’s witnesses with respect to Ms. Clark’s suit against him included her current supervisor at work who said that her work was satisfactory and she was unaware of any physical limitations of Ms. Clark.

Mr. Gustafson who is a Regional Director with Transport Canada where she works said that Ms. Clark does not currently have the appropriate management experience to advance to a director position. This means that her physical handicap isn’t preventing her from advancing in the company.
The defence called Dr. O. M. Sovio who is an orthopedic surgeon and was qualified as an expert in orthopedics.  In his testimony, he said;

On a physical examination, the patient's findings were entirely subjective.  The patient does not have any evidence of restriction in the range of motion of her neck.  She does not have any problems as far as the shoulders are concerned.  She does not have any nerve root impingement signs in the upper or lower extremities nor does she have any evidence of muscle asymmetry of muscle wasting. I find it difficult to accept that the patient was able to carry on with the rigorous training program for marathons and not be able to work in an office setting more than 3 days a week.  Training for marathon running is very strenuous indeed.  I have personal experience having run a number of marathons myself.  It is extremely time consuming to put in the training miles and very fatiguing.  Certainly if one works only part time it makes it a lot easier to manage.  I do not feel that the patient was physically limited as far as working in her capacity as a project manager for Transport Canada.”

In the appeal, the judge hearing the appeal of Mr. Kouba said, “I do not accept the plaintiff’s submission that Dr. Sovio displayed either incompetence, or bias, or both in the preparation of his report.  He was asked to provide a “paper” opinion to the defence and he did so.”
The Appeal court judge said later in the appeal by Mr. Kouba; “Ms. Clark also had a long-term career goal of becoming a director of finance, but it is clear from her evidence and the evidence of her supervisors, called by the defence, that she does not have an accounting designation which she requires in order to advance to that position. Accordingly, I will not be considering any increase in wage from that possible position, as part of my consideration of future wage loss.”                                                                
The appeal judge also said;

“I do not find Dr. Sovio’s report of assistance in this case. He was not the plaintiff’s personal physician and was not familiar with her pre-accident health as Dr. Ryan and Dr. Lloyd-Smith were. He neglected to consider the objective symptoms of injury observed by other health care providers. A fundamental underpinning of his report and his opinion seems to be that the plaintiff could not suffer the injury she describes and be suffering chronic pain, yet be able to complete multiple marathons post-accident.  He seems to draw from his own personal experience of how challenging marathon running is, rather than any medical expertise. I prefer the evidence of Dr. Lloyd-Smith, a sports medicine specialist, on this latter point that Ms. Clark, by virtue of her ability to complete multiple marathons, is a survivor, and her ability to run multiple marathons, while at the same time suffering chronic pain, is not necessarily inconsistent.”
The plaintiff sought a substantial award and argued that the impact of the collision had profoundly impacted her life in every respect in her various roles as mother, wife, elite athlete and account manager at Transport Canada.  If a jury were to accede to her submission in its entirety, it would be awarding a substantial sum, including a large award for future wage loss since the plaintiff argued that full-time work  is not sustainable as a result of the injury.

The trial judge said; 

The defence submission that Ms. Clark was feigning her injuries for financial gain does not accord with my view of the evidence.  Ms. Clark was a successful professional with a full and active life prior to the accident.  In my view the medical evidence is incompatible with the supposition that she is feigning her injuries. It ultimately does not make sense to me that for financial gain Ms. Clark would pretend to be incapable of certain activities or exercise, or do anything that would impact negatively on her physical condition, when the evidence is clear that she is exceptional in her commitment to her personal health and she has no interest in being injured.

He then said, “Notwithstanding the fact that overall I accept the evidence of Ms. Clark, I will be awarding a much more modest sum for future wage loss than is sought on behalf of Ms. Clark since it is my view that her evidence, and all of the other evidence, supports a more modest sum.”

She was awarded $238,700 of which $100,000 was for loss of future income, $85,000 non-pecuniary damages (an award of damages as a result of pain and suffering and loss of amenities of life), $38,452.38, cost of future care and $15,286.66 special damages (was out of pocket expenses)
The defendant appealed the decision on the basis that her injuries weren`t that bad since Ms. Clark didn’t take any time off work and was able to run five marathons. His appeal was dismissed.

There is a lesson to be learned here. Just because an injured person looks like they are not injured, doesn`t mean that they are not suffering the effects of that injury. For example, people watching me parking my car in a handicap parking spot and then watching me walk into a mall with a normal gait doesn`t mean that I am not disabled. I am disabled because for the last 15 years, only 27% of my heart functions so I have limitations as to what I can do physically. In 1975, when I climbed that deadly 14,000 foot Matterhorn mountain in Switzerland, I was in good shape for a 42-year-old man. I looked at the clouds below me and said to a fellow climber, “Ì think I am closer to God than I have ever been before.” Now when I climb a flight of stairs, I am closer to God than I have ever been before. As you can see, looks can be deceiving. 

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