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Medical records of pre-existing symptoms may not reduce the value of your claim

If your medical records include pre-crash complaints of neck pain, and your ICBC claim is for a neck injury, will your award be reduced to account for your pre-crash neck pain?

In today’s case of Lemyre v. Stubbert the plaintiff denied pre-crash neck pain. However, her medical records included three references to pre-crash neck pain not long before the crash. In concluding that the neck pain was insignificant and did not justify a reduction in the award, Justice Fleming made the following findings:

[61]         In denying any pre-accident neck pain, the plaintiff was believable and not defensive. Ms. Lemyre’s evidence regarding her pre- and post-accident functioning was confirmed by that of her children and Ms. Smith. They too struck me as credible witnesses who tried their very best to provide accurate testimony. Tyler readily acknowledged a problem with dates and timeframes. Otherwise, I regard each as providing reliable evidence.

 [62]         It is difficult to understand, however, how Dr. Warshawski’s records for three pre-accident visits could be as inaccurate as the plaintiff suggests. I find it simply improbable that Dr. Warshawski could have on three occasions in 2009 and early 2010 recorded the plaintiff reporting neck pain entirely in error.

 [63]         Given my impression the plaintiff was being truthful when she denied reporting neck pain to Dr. Warshawski and given that it was not something she discussed with her friends and family, I conclude that the neck pain she experienced before the accident was not significant. There was no suggestion that it interfered with her level of functioning. I am also satisfied that the references to the neck brace and cortisone shots in Dr. Warshawski’s report are likely not correct, given the combined evidence of the expert witness and the three lay witnesses on this point and a reference to the plaintiff using steroid medication for Crohn’s as opposed to a neck injury while in England.

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