Skip To Navigation Skip To Content

Even Without Medical Evidence, ICBC Argues Injury Pre-Existing

ICBC is saying that I had preexisting shoulder injuries based on one notation of shoulder pain in a pre crash visit to a massage therapist. I was having treatment for back pain at the time and don’t even remember mentioning shoulder issues to my therapist. How can they say my shoulder issues were preexisting when even their medical specialist failed to mention it in his expert report on my shoulder pain?

In the recent case of Smith v. Wind (2017 BCSC 342) the plaintiff was left with an ongoing shoulder injury after being rear-ended in May, 2016. Mr. Smith argued that his shoulder injury impacted his ability to fully perform his duties as a handyman and also as having been one of the factors leading to an opioid dependency and depression.  A month before the collision, Mr. Smith attended a massage therapist for back pain. During the initial assessment, the therapist noted pain in Mr. Smith’s right shoulder accompanied by a clicking noise. Mr. Smith testified he did not remember telling his therapist he had shoulder pain.  At trial, defence argued that Mr. Smith’s shoulder issue was pre-existing based on the massage therapist’s reporting, however, both the plaintiff and defence orthopaedic experts failed to comment on the pre collision shoulder issues in their respective reports. The plaintiff expert testified he considered the pre collision shoulder issue to be an isolated incident while the defence expert admitted he failed to notice it. Mr. Justice Dley addressed the issue of the report omission in his ruling on causation:

[103]     The defence argues that Mr. Smith “already had a moderate to severe pre-existent degenerative condition in his right shoulder and had exhibited some shoulder symptomology shortly before the MVA”.

[104]     However, that argument fails to take into account the evidence of Drs. Tarazi and Day. Neither physician mentioned the prior shoulder pain, even though both had Ms. Gagnon’s records. Dr. Tarazi chose not to mention the notation because he viewed it as unimportant. Dr. Day saw the written description of the shoulder complaint, but quite remarkably did not see the diagram showing the location of the symptoms. The diagram was immediately adjacent to the written description.

[105]     It would be conjecture for this court to link the prior shoulder pain to the injuries sustained in the collision. In essence, the court would be asked to make its own medical diagnosis.

[106]     In this case, both parties are on an equal footing. Each party has produced expert orthopedic evidence. There is no admissible medical evidence that the defence can rely on to support its argument. If the complaint to Ms. Gagnon was as significant as is now argued, it would be expected that medical evidence would be tendered to address that issue. In the absence of any such evidence, I am left only with the opinion of Dr. Tarazi, who viewed the prior complaint as unimportant. As a result, I decline to make any link between the prior shoulder complaint and the symptoms that arose after the collision.