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Plaintiffs Should Follow Medical Advice

If you’re hurt in an accident, you have a duty to “mitigate” (take reasonable steps to minimize) your losses relating to your injuries. The reason is to prevent you from receiving “damages” (compensation) for any losses caused by your own neglect.

Typically this comes up when the defence (i.e., ICBC) claims that you ignored medical advice. They might argue that you would be much better and have recovered more quickly if you had followed your doctor’s recommendations. If they prove this, your total damages may be reduced.

For example, in one case, the plaintiff chose naturopathic remedies instead of the injections and surgery recommended by three orthopedic surgeons for her injured shoulder. The court reduced her damages by 30% for her failure to mitigate.

But the defence must prove that your failure or refusal to follow the recommended treatment meant you didn’t get better as fully or quickly as you could have.

Take the recent case of a plaintiff who suffered herniated discs in his back when he was rear-ended. The defence argued that he failed to mitigate by not continuing to pursue the physiotherapy, massage therapy, kinesiology or acupuncture three months after the accident, as recommended. They also argued he should have hired a personal trainer or followed a structured exercise program.

But the plaintiff did see a chiropractor regularly, bought a new mattress for his back, purchased a home gym and gravity extension table and followed an exercise program at home, and took prescription and herbal medication.

The BC Court of Appeal decided that the defence hadn’t proved that the plaintiff’s “less than full compliance with medical recommendations would have made any difference to his continuing disability.” Accordingly, the plaintiff’s damages of over $170,000 were not reduced.

What if you stop following the recommended medical treatment because you can’t afford it?

In a recent case, an active 30-year-old apprentice plumber suffered moderate soft tissue injuries to his neck and back when his car was forcefully rear-ended. Four years after the accident, he still took narcotic painkillers for headaches and couldn’t ski, hike, hunt, camp or do yard work as before.

For 18 months after the accident, he regularly saw a physiotherapist, massage therapist and chiropractor and went to the gym almost daily. He was starting to feel stronger and better. But then ICBC stopped paying for his rehabilitation. He only earned about $30,000 a year and couldn’t afford treatment on his own. At trial, ICBC argued he didn’t mitigate his losses and his damages should be reduced.

The BC Supreme Court said, however, that the assessment of whether a plaintiff has taken reasonable steps to minimize their losses depends on all the circumstances. Financial circumstances are one factor to consider. This was not a case where the plaintiff refused to follow medical advice.

Indeed, the plaintiff saved for an annual gym membership and six months later (two years after the accident), returned to the gym and lost weight. When his income increased, he also returned to massage therapy.

The court decided that he didn’t act unreasonably in determining how best to try and pay for the treatments that had helped him, but which were no longer going to be paid for by ICBC. His total damages of over $400,000 weren’t cut as a result.

If you’re injured in an accident and entitled to damages, a lawyer can help protect your rights and obtain the best compensation for you.

Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.

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