February 14 2018

Credibility is Key: A Tale of Two Plaintiffs

How trustworthy or credible you appear will almost always have an impact on how an insurance adjuster treats your file and (if your case goes to court) how a judge will assess your damages. Plaintiffs who are honest and forthright about their injuries and follow the recovery treatment plans prescribed by their healthcare providers put themselves in the best possible position.

Factors that Contribute to Credibility

  • Accuracy and honesty. Accurately report your injuries and symptoms to examining doctors and other medical helpers, such as physiotherapists, occupational therapists, and chiropractors, promptly and in a straightforward, non-exaggerated manner. Complete honesty is always the best policy in personal injury cases.
  • Listen to your doctor and follow medical advice. Follow the treatment plan your healthcare providers give you. Attend all medical and rehabilitation appointments.
  • Be cooperative. Cooperate during independent medical examinations and functional capacity evaluations by other doctors and rehab specialists. If you have questions about these processes, ask your lawyer.

If you do these things, not only are you likely to recover faster, you are also more likely to be considered a believable plaintiff. And credible plaintiffs are frequently awarded the maximum damage award achievable in the circumstances.

On the other hand, plaintiffs who exaggerate their injuries or seek to manipulate the process by avoiding appointments and engaging in subjective reporting of their injuries will frequently be punished with lower damage awards. This is why, as experienced personal injury lawyers, we always advise our clients to take every opportunity to protect their credibility in the litigation process.

Two recent Alberta cases where the court assessed damages for chronic pain highlight how a plaintiff’s credibility can affect a damages award.

The Credible Plaintiff

The 2016 Alberta case of Jones v. Stephanenko, 2016 ABQB 295, illustrates hallmarks of a credible plaintiff. In this case, a 19-year-old nursing student was stopped at a red light when the defendant’s vehicle rear-ended her, pushing her into the car ahead of her. Her car was a write–off, with damages totaling almost $12,000. The plaintiff was in shock after the double collision, and her parents came to pick her up. Later that night she suffered a headache, had an abrasion on her nose, and sore knees and a sore wrist from hitting the steering wheel and dash. She went to bed but had trouble sleeping. The next day she went to her doctor and a physiotherapist for help. She was initially assessed as having suffered a whiplash associated disorder “WAD 3” injury, which was outside of the Minor Injury Protocol.

She developed fibromyalgia and chronic pain, with daily headaches. She was examined in an independent medical examination (IME), and the examining physician reported that there was no evidence of an ongoing injury. On the basis of the IME, her insurer cut off her section B benefits. At trial, the insurer argued that she was only entitled to the minimal damages set by Alberta’s minor injury cap. However, the Judge found that her chronic pain clearly fell outside of the definition of a “minor injury” in the Minor Injury Regulation and took the defence experts to task. The Judge held that the plaintiff had followed the advice of her healthcare providers in an exemplary manner, including taking medication, undergoing physiotherapy, and withdrawing from her part-time job so that she could recover. The Judge also commended her for all of the physical activity she had done to help her condition and overall wellbeing. In the end, the court awarded the plaintiff $80,000, an amount at the high-end of the range of general damages, for pain and suffering.

The Uncredible Plaintiff

In contrast is the plaintiff in Petz v. Duguay, 2017 ABQB 90. Here, the plaintiff was a passenger in a vehicle which was struck by the defendant’s vehicle when he made a left turn into oncoming traffic. The vehicle she was in incurred significant damages of approximately $10,000. The plaintiff was 44 at the time of the accident and 57 years old at trial. At the time of the accident, she claimed to have injured her shoulder, neck, lower back, nose, bladder, bowel, and cervix in the accident and also claimed to have suffered a mild traumatic brain injury. Her ongoing complaints at the trial were chronic pain, depression and mild traumatic brain injury.

At trial, the judge observed that she did not bring any physical aids to assist her when she gave testimony and was able to stand for long periods of time without any signs of pain or discomfort. He also observed her shaking her head quickly to reorganize her hair while giving testimony, actions that undermined her claims of a persisting head and neck injury. The defending insurer also introduced surveillance video evidence showing the plaintiff engaging in strenuous moving activities over a period of two days when she moved homes. Further, one of her medical witnesses at trial expressed doubts about the extent of her pain and the court found that other medical witnesses called by the plaintiff based their opinions largely on the subjective complaints by the plaintiff as opposed to objective evidence. A defence medical witness also gave evidence that pain had become part of the plaintiff’s identity and she may have been influenced by the “secondary gain” of an anticipated monetary award at trial. In the end, the trial judge disregarded the plaintiff’s evidence and that of her caregivers because they relied almost entirely on her self-reported complaints. The court found that there was insufficient evidence to support and verify many of her complaints including head, shoulder, nose, bladder/bowel, or cervical injuries. The surveillance video evidence also suggested that the plaintiff had significantly recovered from her injuries from the accident and had a greater physical capacity than she reported to her medical professionals. As a result, although the plaintiff was awarded $50,000 in general damages, nothing was awarded for loss of housekeeping capacity, costs of future care, and future loss of income or income earning capacity.

This “tale of two plaintiffs,” shows how crucial the credibility of a plaintiff is in a personal injury trial. As experienced plaintiff personal injury lawyers, we will assist you in putting your best foot forward, by gathering the appropriate evidence and guiding you towards a realistic assessment of your likely damage award. For a free consultation, please CONTACT the friendly, helpful and knowledgeable lawyers at CAM LLP and we can assist you in assessing your situation.