James H. Brown and Associates, Alberta Injury Lawyers, is here to ensure you get the settlement you deserve. Our website features many articles about personal injury law. We hope that each of these articles helps you further understand an element of personal injury law. Personal injury law is complex, and if you have suffered an injury as a result of a motor vehicle collision, do not hesitate to contact us. We offer free injury claim evaluations, and you don’t pay unless you win. This article features a summary of a trial that significantly impacted injury law in Alberta. Read on below about this case.
Facts of the Case
The Plaintiff (the person bringing an action against another party), Jessica Jones, was a 19-year old nursing student who was involved in a severe rear and front end motor vehicle collision on August 18, 2009. Ms. Jones was at a complete stop behind a red light when she was suddenly rear-ended by the Defendant (the person who is being sued) driver, Jelena Stepaneko. The force of the impact was enough to push Ms. Jones’ vehicle into the car ahead of her, causing a second collision. Ms. Jones had an abrasion on her nose and sore knees and wrists from hitting the steering wheel and dash.
When emergency personnel arrived on scene, Ms. Jones was not in immediate pain due to shock and declined help from EMS because of concern over the cost of transportation. Instead, she called her parents to come and pick her up and take her home. At home, Ms. Jones began experiencing headaches and had difficulty sleeping that night. The following day, Ms. Jones visited her doctor and a physiotherapist.
The Effect of the Injuries
As a result of the accident, Ms. Jones suffered a serious injury to the soft tissue of her body, which was accompanied by bruises, cuts, and severe headaches. She also developed chronic pain conditions, including fibromyalgia and myofascial pain disorder. Over the years leading up to trial, she required a significant amount of treatment in the form of physiotherapy, massage, various medications, and an exercise program.
Due to her injuries, Ms. Jones’ intended career path in nursing was in jeopardy and her recreational lifestyle was seriously impacted. To reduce the impact the injuries had on her life, Ms. Jones did everything that could reasonably be expected of her to return to her pre-injury state but, unfortunately, she developed a chronic pain condition and fibromyalgia; a condition she will have to manage for the rest of her life. In a display of resilience, she pushed forward and was able to continue to develop her career as a result.
The Courts Analysis of the Medical Evidence
In this case, Justice Eidsvik discusses the role and obligations of the medical profession in the context of personal injury law. She is critical of the failures and shortcomings of the doctors who have examined and reported on Ms. Jones’ injuries and specifically mentions a doctor who testified that he based his decision on the medical model, not the definitions in the regulations. She also appears skeptical of the doctor and notes that in his 15 years of assessing strains and sprains, he has never found someone who has suffered a “serious impairment”.
Justice Eidsvik reminds medical professionals to be mindful of legal definitions rather than medical definitions when participating in the medical-legal arena. She criticizes the doctor for being aware of the legal interpretation of the regulation definition but not changing the way he does his “certified medical examination”.
Justice Eidsvik suggests that doctors who are certified to perform “Certified Medical Examinations” under the regulations should have the law explained to them on the point of providing accurate opinions in their medical-legal reports. She emphasizes the financial significance of these reports and stresses the importance of using definitions and tests of disability that align with those set out by the legislature in the regulations.
She also highlights the critical role that medical professionals play in the early stages of treatment and assessment when it comes to coverage of treatment expenses through Section B accident benefits. Justice Eidsvik believes that Ms. Jones’ doctor should have been clearer in his report and suggested assessments by other medical professionals outside his field when he was not qualified to provide an opinion on certain issues.
She also emphasizes the importance of taking loss of income and earning capacity claims seriously and not downplaying them, as they can be significant in the long term; It was noted that Justice Eidsvik believed that Ms. Jones was entitled to more than what was requested by her counsel regarding her loss of capacity reward and writes: “the claim made by the Plaintiff in the amount of $125,000 is conservative in my view, and accordingly I award the full amount as claimed” (para 128).
The Court’s Decision
Initially, Ms. Jones was seeking damages for pain and suffering, loss of pre-trial income, loss of earning capacity, special damages, loss of housekeeping capacity and cost of future care in the ranges of $272,683.65 – $302,683.65.
The Defendants initially argued for an award between $66,000 – $96,000. After the trial evidence was closed, the Defendants amended their argument and proposed a total award between $70,856.65 – $125,856.65.
After Justice Eidsvik assessment of the evidence, the injuries Ms. Jones sustained and the impact it has had on her personal and professional career (past and into the future), Justice Eidsvik handed Ms. Jones a total damage award of $282,683.65, in addition to prejudgment interest based on the Judgement Interest Act and its regulations on the pain and suffering, past loss of income, past housekeeping, and the special damages awards.
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