In September 2011, a 52 year old woman suffered seemingly minor injuries in a low-velocity collision, when she was a passenger in a car that was rear ended while stopped at an intersection. The woman experienced headaches and dizziness immediately after the accident, and then neck and back pain in the days following. She returned to her job as a care aide worker a few days later, but soon found herself unable to move her left shoulder, which meant that she could no longer help lift her patient and consequently, she had to discontinue working. In early 2013, she felt well enough to return to work but was initially only able to work part-time due to pain and limited mobility. The plaintiff returned to full-time employment in mid-2013 despite continuing pain. However, she found herself no longer able to complete chores at home because all her physical energy is needed simply to do her job. Her social life also became extremely restricted.
The defendant driver admitted liability for the rear end collision, but contested the extent of the woman’s injuries and losses attributable to the accident. In a 2016 trial, Dabu v. Schwab, the accident victim sought compensatory damages resulting from her neck, back and shoulder pain: for loss of income, cost of future care, loss of earning capacity, housekeeping costs, and non-pecuniary damages for her pain and suffering. Loss of income damages reflect her inability to work full-time from the date of the accident for 1 ½ years, followed by reduced earnings for part-time employment, and lost wages for additional days off work which exceed her allotted employee sick days.
The plaintiff’s damages include consideration of her psychological symptoms, including major depressive disorder, panic attacks, PTSD symptoms, adjustment disorder (in remission) and somatic symptom disorder. Since the accident, the woman has visited her family doctor 68 times, and has also sought considerable treatment for physiotherapy, massage therapy, chiropractic and psychological counselling.
At trial, a physician and expert on physical medicine and rehabilitation, testified that the plaintiff suffered soft tissue musculoligamentous injuries to her neck, upper back, the posterior shoulder girdle region and her lower back. She also has sensory complaints for her left leg and radiating arm pain, which is likely due to her soft tissue injuries.
The trial judge accepted that the plaintiff has a complex set of symptoms. However, he noted that her reports of pain were inconsistent and thus, not entirely reliable; she testified that her symptoms had not improved, but then later said they had. Also, she presented herself as substantially disabled, despite the fact that she is employed in a job that requires some degree of physical activity. The judge did not believe that she was attempting to deceive the court; rather, it was concluded that the inconsistency in the plaintiff’s complaints of physical problems could be explained by her psychological injuries.
The psychiatrists testifying on behalf of the opposing parties, the plaintiff and defendant, disagreed on the nature of the plaintiff’s psychological disorder(s). However, the judge concluded that an understanding of her specific disorders is helpful for diagnosis and treatment, but his assessment of how the accident has affected her life is more useful in deciding on damages. Specifically, she has chronic pain and mood disorders, and worries about being unable to work. Her self-image and enjoyment in life are heavily tied to her work and interacting with co-workers. When she returned to work immediately following the accident, her pain and the lack of mobility in her shoulder caused her to drop a patient who then broke his hip, and this incident had a profound effect on her self-confidence. She was house-bound and lonely while unable to work. The symptoms of depression, difficulty sleeping, anger, severe panic attacks and a lack of joy in life began in the months after the car accident.
The trial judge awarded the plaintiff in excess of $305,000 in damages, which includes $95,000 in non-pecuniary damages for her loss of enjoyment in life, and pain and suffering. She was awarded $64,000 for past income loss and almost 90,000 for future loss of earning capacity. Also, the plaintiff will receive over $40,000 for future care for rehabilitative treatments including psychological counselling, as well as almost $4,000 in special damages. Due to her diminished ability to perform chores, she received $12,500 for past and future housekeeping services.
The plaintiff in this case certainly did not anticipate how much the 2011 accident would affect her ability to function and enjoy her life. She returned to work within a week of her accident, believing that the pain in her neck and back would heal and she would soon be back to normal. Instead, chronic pain and subsequent psychological injuries resulted in significant losses, including loss of joy in life, for which she was entitled to be compensated.
When you are injured in a motor vehicle accident, you have two years from the date of the accident (or from the date you realized the extent of your injury) to file an injury claim against the ‘at fault’ driver. However, it is to your advantage to seek legal counsel much sooner, to ensure that you are taking the right steps to substantiate your claim, for example, in terms of documenting medical treatments and the effects on your life. If you or a loved one were injured, the experienced car accident lawyers at Kotak Law can provide authoritative counsel on the strength of your case and what’s involved in filing a successful claim for compensation. Call Kotak Law today for a free, no-obligation consultation.
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