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Despite facing tough case, lawyers prevail for injured client

I don’t know if I’ve ever heard of a worse “dog’s breakfast” of a personal injury claim. There are straight forward claims with perfectly healthy, gainfully employed victims who have obvious injuries arising from horrific crashes, and then there are the much more challenging cases like this one.

Neither of the two collisions, one in April and the other in July 2006, resulted in much vehicle damage. It was less than $1,000 in the first collision and less than $1,500 in the other.

Low vehicle damage cases are always risky. Try as they might, insurance companies have never been able to use science to prove the notion that vehicle damage determines injury severity.

They always come up against some simple truths.

One is that damage to the outside of a car is a horrible indicator of the forces inflicted on an occupant inside the car.

Another is that the same set of forces might cause permanent injury to one human being but

leave another unharmed. That doesn’t stop some insurance company lawyers from bringing the photographs of the minimal damage to court, hoping that their visual impact will do the trick when the science fails.

The regretful reality is that those minimal damage photographs are often successful.

But back to the case. One of the issues was the lady’s medical condition before the collisions occurred. She had quit working because of cancer a year before the first collision. Her cancer treatment included surgery and radiation, leaving her with a frozen right shoulder. She was right handed.

Depression also entered into the picture before the collisions occurred. She had not returned to work before the collisions occurred.

It doesn’t stop there.

Completely unrelated medical issues also arose after the collisions. She developed plantar fasciitis, pain behind both knee-caps, pain in the wrist, hand and fingers, and pain at the back of her elbows.

None of this had anything to do with the injuries sustained in the collisions but rather was explained as relating to osteoarthritis.

The insurance company had lots of unrelated medical problems and symptoms to point to and blame for the fact that this lady has not yet returned to gainful employment, and to blame for her ongoing chronic pain condition.

To top it off, the injuries she did sustain in the collisions were the worst kinds of injuries to prove —the dreaded “soft tissue” injuries that don’t show up on x-rays, CT scans or MRIs, which the insurance companies like to dismiss as minor.

In reality, they are the worst kinds of injuries to sustain, and in a small but very real percentage of our population will result in chronic pain, loss of mobility, fatigue, and depression.

That reality, however, doesn’t stop some insurance companies from using every trick in the book to try to convince courts that these invisible injuries are not real. It is the kind of case that most personal injury lawyers would run away from.

Every card in the deck is stacked against being able to achieve a fair and just result for the client. It happened, though, to be exactly the kind of case for two courageous lawyers who practice in the Lower Mainland: David Kolb and John Cameron.

The trial was last month and the judge’s decision was rendered last week. The losses assessed by the judge, as having been caused by the collisions, totalled more than $230,000. (You can read the judgment on the Supreme Court of British Columbia web site. The citation is Hemel v. Kugathasan. If you have any difficulty finding it, please e-mail me and I will forward a copy to you.)

Congratulations to Ms. Hemel, on finding two of the finest personal injury lawyers in the province.

Thank you, Mr. Kolb and Mr. Cameron, for going to the wall on a very challenging case and reminding the rest of us that justice can be achieved for our clients even with the deck stacked against us.

Published September 12, 2010 in the Kelowna Capital News

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