What if my doctor does not record every symptom that I am experiencing in his clinical notes? Further, how will my claim be impacted if I say I am experiencing symptoms that have not been consistently recorded in the clinical records?
In the decision of Chappelle v Loyie (2016 BCSC 1722), Madam Justice Fisher was asked to assess the reliability and credibility of the Plaintiff, a full time firefighter who operated a small construction business on the side. The Defendant asserted that the Plaintiff’s evidence concerning his injuries should be deemed unreliable due to apparent inconsistencies found in the Plaintiff’s evidence about his injuries and the contents of the of the medical records. Further, the Defendant claimed that the Plaintiff’s credibility should be scrutinized given the Plaintiff’s reluctance to report the income from his side construction business to Canada Revenue Agency for a period of many years prior to trial.
After reviewing the evidence and evaluating the delivery of the Plaintiff’s testimony, Madam Justice Fisher found the Plaintiff to be a credible witness despite the issues raised by the Defendant. Further, Madam Justice Fisher offered the following comments regarding the absence of symptoms in clinical records:
65 The defendant has raised issues regarding the reliability and credibility of Mr. Chappell’s evidence. The reliability issues stem from inconsistencies between Mr. Chappell’s evidence about his injuries and the contents of the medical records, as well as what Mr. Chappell reported to the expert witnesses. The credibility issues arise from Mr. Chappell’s failure to report for many years the income he earned from his construction side business.
66 In personal injury cases, there is often little to no objective medical evidence supporting a plaintiff’s self-reported symptoms. In such circumstances, judges must examine the plaintiff’s evidence carefully and sometimes skeptically: Price v. Kostryba (1982), 70 B.C.L.R. 397 (B.C. S.C.); Dhaliwal v. Greyhound Canada Transportation Corp., 2015 BCSC 2147 (B.C. S.C.), aff’d 2012 BCCA 114 (B.C. C.A.) at para. 280.
67 This is not a case where there is little to no objective evidence of injury, as all of Mr. Chappell’s conditions are clearly supported by medical evidence. This is a case where the causation issues depend in large part on the plaintiff’s evidence about the onset of symptoms. The defendant says that Mr. Chappell’s evidence must be scrutinized with care because it is inconsistent with his reporting of symptoms as reflected in the medical records and expert reports.
68 I agree that the court must scrutinize Mr. Chappell’s evidence given the apparent inconsistencies in his reporting of symptoms. However, much of the defendant’s challenge to Mr. Chappell’s credibility was based on what was contained (or not contained) in the clinical records. In this regard, I agree with the comments of N. Smith J. in Edmondson v. Payer, 2011 BCSC 118 (B.C. S.C.) at para. 36, that the absence of a record is not, in itself, evidence of anything:
. . . For example, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom. At most, it indicates only that it was not the focus of discussion on that occasion.
69 Mr. Chappell testified that he did not remember what he told various medical professionals, particularly in the immediate aftermath of the accident and in the initial months following. He explained that he was first aware of his most immediate problems, which were focussed on his back and lower extremities, and although he noticed symptoms in his left knee and right shoulder, they did not become a focus until some of the other symptoms improved and he was able to be more active. He said that he knew within a couple of days that his body hurt “from top to bottom”, he dealt with his immediate issues first, and he was not sure when his knee and shoulder became a problem.
70 Given Mr. Chappell’s multiple injuries and conditions, and the length of time since the accident, I found his explanation credible. This man is clearly suffering and his pain – both physical and psychological – is palpably real. That said, it is difficult for him to differentiate between conditions that may have been caused by the accident and those that may not have been caused by the accident, and this is something that I have carefully considered in assessing the reliability of his evidence.
71 Overall, I found Mr. Chappell to be a credible witness. Initially, he diminished to some extent the symptoms he was having before the accident due to his pre-existing conditions, but in cross-examination he acknowledged these conditions and their effect on him. He was at times reactive and unresponsive to questions, but more often he appeared exhausted and quite overwhelmed. The issue with respect to his non-reporting of income is certainly a concern that will affect his ability to prove damages for this loss of income, but it does not change my general assessment of his credibility as a witness.