In Datoc v. Raj, the Plaintiff was injured in t-bone collision when struck by the Defendant. Both sides denied liability, claiming they each had a green light. The Plaintiff pursued an ICBC claim for several heads of damages, including pain and suffering, wage loss, and diminished earning capacity. The Court eventually ruled in favor of the Plaintiff with respect to liability, however had some harsh words for the Plaintiff with respect to the number of his doctor visits, which totaled 128, which the Court found unnecessary.

 

[65]         Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries.  From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion.  Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made.

 

[107]     It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit.  He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes.  The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor.  Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.

If you have been injured in a motor vehicle accident, but have not attended for regular medical treatment, this will not necessarily lead to a reduction in the value of your claim for a failure to mitigate your damages.

 

In Noon v. Lawlor, the Plaintiff suffered injuries in a motor vehicle accident, yet at some point there was a large gap in treatment. ICBC’S lawyer argued that this large gap was evidence that the Plaintiff was not that injured, however the Court rejected this line of argument.

 

[193]     There was a large time gap in which the plaintiff did not seek any medical treatment or physiotherapy. He was discharged from physiotherapy for the second time on June 9, 2009. He saw Dr. Lisinski on June 23, 2009, a month before leaving for Norway. He did not seek any medical treatment or physiotherapy while in Norway for six months. He next visited Dr. Lisinski on March 15, 2010, about six weeks after returning from Norway, and again a week later on March 22, 2010. The plaintiff saw Dr. Lisinski twice in February 2011, but for reasons unrelated to the motor vehicle accident. The plaintiff’s next visits to Dr. Lisinski relating to the accident were on June 6, 2011, and September 7, 2011. The gap between March 22, 2010, and June 6, 2011, is about 14.5 months.

 

[194]     A plaintiff’s failure to seek medical attention for relatively long periods of time cannot, by itself, justify the inference that the plaintiff was not experiencing the symptoms which he or she describes at trial. This is particularly so where exercise is the only “treatment” being advised by the plaintiff’s doctor. However, the circumstances in a particular case may warrant the inference that any pain symptoms that were experienced by the plaintiff during these time gaps were not continuous or frequent or alternatively, if they were, then such symptoms of pain were at a low level of intensity, perhaps not much more than discomfort. If one or other of these inferences is drawn, and if that inference is inconsistent with the plaintiff’s description of his or her symptoms at trial, then such inconsistency may adversely affect the plaintiff’s credibility.

 

[195]     In my opinion, the evidence in this case does support the second of the two possible inferences I have just described. I find that this inference is inconsistent to some extent with the plaintiff’s trial description of the degree of pain that he was experiencing on an ongoing basis and with the extent to which his pain impaired his physical capacities

 

When you have been injured in a motor vehicle accident, it is important to attend to your doctor regularly for the purposes of mitigation, however only if you actually need to go to the doctor. Our Courts have recognized that going to the doctor simply for the sake of saying that you went to the doctor will not enhance the value of your claim. On the other hand, a regular, documented list of doctor visits when you are in need of treatment goes a long ways to enhancing the value of your claim.

 

In Tarzwell v. Ewashina, the Court commented on the issue of number of doctor visits.

 

[62]           Ms. Tarzwell finds herself in the unenviable position of trying to satisfy her onus on the burden of proof without much documentary evidence. She finds herself under attack for failing to regularly consult with doctors or therapists.

 

[63]           Ms. Tarzwell saw her doctor in Merritt over the course of the summer. She also saw a doctor when she returned to university. Ms. Tarzwell received advice to take pain medication, attend physiotherapy, stretch and exercise.

 

[64]           Ms. Tarzwell did not want to mask her pain through medication. She could not afford ongoing physiotherapy treatments. She could stretch and exercise, and she did so.

 

[65]           Ms. Tarzwell did what was reasonably necessary to try to rehabilitate her injuries. She was diligent in her exercises and stretching regimen. She cannot be penalized for failing to attend therapy treatments when she was unable to afford the cost.

 

[66]           Ms. Tarzwell did not continually return for medical advice, since she knew what was expected of her. Ms. Tarzwell did not let the injuries become all-consuming. She tried to carry on with her normal activities as best she could. Her efforts to resume her recreational and employment activities, albeit with pain, do not indicate that she was not injured or had recovered.

 

[67]           If a plaintiff’s claim was to be measured by the number of doctors seen or by the number of medical consultations attended, then that would unjustly marginalize victims such as Ms. Tarzwell. She has chosen not to burden the medical system with unnecessary visits to physicians who would give her no further advice than what she had already been provided and followed. She should not be penalized for that.

In Hough v Wyatt, the Court also commented on the issue of frequency of doctor visits.

 

[9] Mr. Hough was a very difficult witness. He is a poor historian, which is understandable given his extensive medical history. However, he bears the burden of proof. He was argumentative, abrasive, sometimes rude, often unresponsive, and many times inconsistent in his evidence. Mr. Hough clearly demonstrates an attitude of entitlement to insurance benefits, at one point indicating he doesn’t understand the problem here, it is only insurance money. He reports everything, no matter how inconsequential, even a broken fingernail, so if there is a problem in the future, he can get compensation. The trouble for Mr. Hough is he was a medical disaster before the accident, and the defendant is not obliged to pay for all that ails him or ailed him. Mr. Hough’s pre-existing medical condition, his original position, as outlined in the evidence of Dr. Waiz, and what Mr. Hough can recall, would have manifested debilitating effects in any event, regardless of the accident. His original condition would have detrimentally affected him even absent the defendant’s negligence. The defendant is not required to compensate him for debilitating effects not caused by the accident….

In Co v Watson, the lawyer for ICBC attempted to argue that the Court should be leery of the Plaintiff’s credibility because she did not seek regular medical treatment. The Court, however, rejected this line of argument.

 

[26]         Ms. Co did not regularly attend to be treated by Dr. Porten.  The credibility of Ms. Co was put in questions by Mr. Watson as a result.  In this regard, I adopt the following statement made in Mayenburg, supra, where Myers J. stated:

 

The defendants challenge the credibility of Ms. Mayenburg. They point to the limited number of times she visited physicians to complain about her pain. They also refer to the fact that she did not raise the issue of her injuries when she visited Dr. Ducholke on several occasions for other unrelated matters.

 

I do not accept those submissions, which have been made and rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63. Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time. Dr. Ducholke testified how her time with patients was limited.

 

In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

 

(at paras. 36-38).

 

In Sidhu v. Liang, the Plaintiff had several gaps in treatment, including one over two years. ICBC’S lawyer argued that this was evidence that the Plaintiff’s injuries had healed quickly. The Court rejected this line of argument, commenting that:

 

[64]         While I did not find the plaintiff’s evidence to be particularly useful or credible, I do give considerable weight to the evidence given by his wife and his general practitioner, Dr. Gandham.  While there is evidence of a pre-existing condition which caused him to have pain before when he looked over his shoulder while backing up, that condition did resolve and it appears that although he has a vulnerability to this kind of injury, it was not symptomatic at the time of the accident. 

 

[65]         I am prepared to conclude on the balance of probabilities of the evidence, that the current soft tissue injuries the plaintiff exhibits and the continuing pain that he has suffered are a result of the first accident which have continued to date, and have been aggravated by the second accident and therefore would not have occurred but for the defendants’ negligence.  I believe the plaintiff has continued to experience this pain despite the gap in his treatment, and while work has aggravated it, there is no evidence of an intervening event that could be attributed as the cause.