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Dance Like Nobody’s Watching

If I have an ICBC claim, I should be careful about what I’m seen doing… right?

There seems to be a common thread in thinking about personal injury claims that a person couldn’t possibly be hurt if they dare to do anything physical.  This line of thinking assumes that the truly injured are laid up in bed with ice packs and Tylenol, while everyone else who might be trying to get back to Zumba class or cycling is simply a fraud (or at the very least exaggerating).  This often plays out with ICBC adjusters alluding to photographs from social media of the plaintiff at the beach or playing a soccer game with friends, usually while ominously hinting to me over the phone that they have some “serious concerns…”

What are those serious concerns based on, though?  A misunderstanding of chronic pain, surely. Many injured people do their very best to continue to engage in physical activities, despite any additional pain it might cause.  When so much has already been taken from you, you try to hang on to those little bits of normalcy – whether that be your Tuesday night women’s league game or your standing date with the elliptical machine.  Further to that, while those of us lucky enough not to deal with chronic pain might assume that riding a horse or going for a hike would cause greatly increased pain, many injured people report that it’s actually static postures (ie. extended periods of sitting) that aggravate their symptoms the most.

This misguided sentiment was addressed in a judgment recently released by the British Columbia Supreme Court (Senger v. Graham 2018 BCSC 257).  Justice Murray quickly shut down the ICBC defendant’s attempt to discredit the plaintiff by showing photographs of her engaged in physical activities:

[18]   While defendant’s counsel tried to discredit her evidence by introducing photos that have been posted on the internet of Ms. Senger engaging in physical activities, I do not find that the fact that she has tried doing physical activities or travelled detracts from her evidence in the least. In fact, it makes her evidence more compelling.

[19]    Prior to the accident the plaintiff was an active young woman. She has always participated in sports. She is trying to keep active and in shape. As the majority of the activities she enjoyed prior to the accident now cause her pain she is trying others. She is to be commended for that.

[20]    Plaintiffs cannot be expected to cease living once they commence a lawsuit.

Justice Murray’s analysis is in line with the advice we always give to our clients: live your life.  As long as a plaintiff is 100% honest, engaging in physical activities (and being photographed doing so with a smile on their face) will not affect their entitlement to fair compensation.

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