Hergott: No shortcuts for recovery from car crash injuries

A failure to follow through with medical care could result in a reduction of your compensation recovery.

Paul HergottIn a recent court decision, Cyr v. Kopp, 2016 BCSC 679, the compensation award for the victim of a distracted driver was stripped by over $60,000 because of his failure to follow through with medical recommendations.

The heavy-duty mechanic was sitting at a red light when a 10-ton flat-bed truck rear-ended his vehicle.

The senseless crash left him with a permanent injury that has, and will continue to, impact his income.

The mechanic’s doctor prescribed physiotherapy.  In the more than four-year period from the crash to the trial, he had seen a physiotherapist only twice. Instead, he opted for a self-prescribed exercise program.

A failure to follow through with medical care recommendations does not automatically result in a reduction of your compensation recovery.

Justice G.C. Weatherill reviewed the legal test, noting that there is a legal onus on the defending insurance company to prove two things to succeed with this “failure to mitigate” defence.

One thing that must be proven by the defence is that a reasonable person in the injured victim’s shoes, having all the information at hand that the plaintiff had, ought reasonably to have undergone the recommended treatment.

The other thing that must be proven is that had the injured victim followed through with the recommended treatment, the treatment would have had a positive impact in the injured victim’s recovery, thereby reducing his losses.

Not surprisingly, the defending insurance company was able to prove both.

The judge was satisfied that the mechanic ought to have followed the medical recommendation of physiotherapy.

It was unreasonable for him not to have done so, noted the judge, ruling that “if he had done so, it is more probable than not that there would have been some significant recovery from his MVA-related injuries within 12 months of the MVA.” The judge assessed the mechanic’s full losses arising from the crash, but then reduced his compensation for aspects of those losses by 20 per cent, which resulted in the over $60,000 reduction.

Avoiding this “failure to mitigate” defence is a “fringe benefit” to simply acting reasonably to recover from your injuries as quickly and fully as possible.

I say fringe benefit because the primary benefit of doing so, obviously, is keeping your injuries and losses to a minimum.

I am like a broken record in providing legal advice along these lines.

Here is a direct quote from a standard e-mail I send to those who consult with me after a crash: “It is critical that you assertively and diligently obtain your doctor’s care recommendations, follow them to the fullest, and return to your doctor as directed to ensure your care continues on the right track.

“I also recommend pushing your therapists (physio/massage/chiro/etc.) for any recommendations they might have for stretching/strengthening or other steps you can take in between treatment sessions to accelerate your recovery.

“If you are given exercises to do, ensure you inquire about (and follow through with) the recommended duration and frequency.”

By following my “legal advice” (which is more like medical advice), you will have the obvious benefit of enjoying as full and speedy a recovery as possible.

Yes, that will reduce your losses and, correspondingly, the value of your claim. But that’s a good thing! The very best claim is no claim at all, but distracted drivers aren’t going anywhere fast. The next best claim is a very, very small one.

Just Posted

UPDATED: Mount Eneas fire grows to 1,374 hectares

Regional District Okanagan-Similkameen issues evac alerts for properties in Area F.

UPDATED: Okanagan Mountain Park wildfire evacuation alert lifted

An evacuation alert remains in effect for those on Lakeshore Road

Mount Conkle fire near Summerland 90 per cent guarded

This fire has several good water sources and has good road access which have contributed to the success

Law Creek wildfire still out-of-control

A blaze in West Kelowna still has 129 properties on an evacuation alert

BC Wildfire update on Okanagan blazes

Watch the media briefing on the current fire situation in the Okanagan.

Wildfires near Vernon extinguished

BX, Dee Lake and Irish Creek fires all out

What’s happening this weekend

Follow Social Squad memeber Matthew Abrey to find out what’s happeing this weekend

RCMP help to save goats from wildfire

The fast-approaching wildfire, sparked Thursday, forced the evacuation of five homes

Vernon’s Sparrow signs with Wichita

Vernon product headed to ECHL for pro hockey

VIDEO: Near drowning captured on popular B.C. river

Search and Rescue manager says the popular pastime of floating in the summer is inherently dangerous

Matjicka pulls trick for Silver Stars

Capri Insurance Men’s 55+ Soccer League roundup

Crosswalk vandalism leaves black mark for Cowichan as B.C. Games begin

Rainbow crosswalk defaced just days after being painted

Photo gallery: BC Games Day 1

A brief look at action from the 2018 BC Summer Games in the Cowichan Valley

Most Read