Plaintiff's credibility key in soft tissue injury claim
April 10, 2011, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
In order to maintain a car accident claim for general damages, the injured party has to show that their injuries and ongoing problems meet the threshold definition of a permanent and serious impairment of an important physical mental or psychological function. The review of the threshold is more complicated but that is the general idea. Ultimately this is a question that the plaintiff and defence have to consider in the context of a court action. In a recent court action, the trial judge had to rule on a threshold motion.
The plaintiff was injured in a car accident in 2003. The plaintiff had constant pain in various parts of his body. The plaintiff had been involved in a previous car accident in 2000. In addition, the plaintiff sustained a workplace injury to his lower back. At the time of the 2003 car accident the plaintiff was still receiving physiotherapy treatment for the workplace accident. Further, the plaintiff had not worked since the workplace accident so he was not working at the time of the car accident.
The trial judge determined that the plaintiff does not meet the threshold – he did not sustain a permanent and serious impairment of an important physical, mental or psychological function. There were a number of factors that worked against the plaintiff in this case. All the experts were of the opinion that there was not sufficient, if any, objective evidence confirming the plaintiff’s complaints. There was nothing in the medical records that would support the severe disability and pain that the plaintiff described. The trial judge did not consider the plaintiff a very “impressive” witness. This would be a severe blow to the plaintiff’s credibility, which is particularly important in a claim involving soft tissue injuries. There were a number of surveillance video tapes produced at trial that showed the plaintiff in numerous situations doing things that he claimed he was unable to do both at trial and to the medical experts. There were also many inconsistencies in the information provided by the plaintiff to the medical doctors. The trial judge was not persuaded that the injuries were as disabling as the plaintiff alleged.
As noted from the motion decision:
Mr. R is an unreliable historian. When impeached on cross-examination, he blamed others such as interpreters, doctors and other health care providers. Comments about exaggeration, psychogenic pain and illness behaviour are contained in numerous medical reports.
I concur with the comment expressed by Dr. F, that the Plaintiff’s self-report cannot be used as a basis for a diagnosis because of the many inconsistencies and statements that are clearly not accurate. The opinions of Dr. S and, more importantly, Dr. A, rely to a great extent on the truthfulness of what Mr. R reported to them and consequently, I do not attach significant weight to their opinions. I accept the evidence of Dr. G in terms of the nature of the injury to the Plaintiff’s back that is attributable to the car accident. However, he conceded that there is no orthopaedic basis for the types of pain complaints and disability made by Mr. R and if there is a psychological component to his problems that is outside the range of Dr. G’s expertise. Casting the Plaintiff’s case in its best light, the motor vehicle accident caused an exacerbation of the mechanical low back pain that was initiated by the WSIB incident in January 2002.
When a person makes numerous complaints that are not worthy of belief, how does one determine what is legitimate? I am quite certain that Mr. R has some pain complaints that relate to injuries from the June 2003 accident. His sworn evidence at trial concerning his pain and limitations are inconsistent with the level of function demonstrated on the surveillance tapes. I am not persuaded that they are as disabling as he alleges or that they have required him to cease participation in activities that he formerly enjoyed, including his employment.
|Posted under Personal Injury, Car Accidents, Disability Insurance, Pain and Suffering, Physical Therapy, Treatment
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.
The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.