COVID-19 and Injury Claims

The COVID-19 pandemic influenced areas of law such as family, employment, and criminal.  However, one area of law which was also affected, though less considered, is personal injury.  We’ve summarised two cases for a quick snapshot of how the courts have dealt with the effects of COVID-19 on ICBC cases.

The Effect of COVID-19 on Lost Wages

In the case of Mayede v Dominguez, 2020 BCSC 982, counsel for the Defendants, representing the interests of ICBC, alleged that a leave of absence from work due to depression and anxiety from collision-related injuries was actually because Ms. Mayede was stressed about COVID-19.  As such, counsel for the Defendants claimed that ICBC should not have to compensate Ms. Mayede fully for her lost income and time from work resulting from two collisions.

This case involved a 58 year old registered nurse who was in two collisions.  Following the first collision Ms. Mayede was off work for over two months before beginning a graduated return to work.  She continued to have symptoms upon her return to work and required assistance from her co-workers to complete the heavier tasks in her role in the Day Cardiac Intervention Unit.  Despite the support of her co-workers she continued to suffer from symptoms of her injuries.

Following the second collision, Ms. Mayede reduced her hours by approximately 50% to allow her to focus on her recovery and rehabilitation.  She began to incorporate yoga, cardio exercises and stretching into her rehabilitation regime.  She experienced improvements in her physical symptoms, and began seeing a psychologist in March 2020 regarding her low mood.

In March 2020, the COVID-19 pandemic resulted in the closure of all the treatment facilities upon which Ms. Mayede was relying for her rehabilitation.  As a result of her inability to access her treatments, her physical condition deteriorated and she experienced emotional trauma from the feeling that she may never recover from her injuries.  She became extremely sad and her anxiety level increased.  She had problems concentrating at work, became forgetful and emotional, and would cry easily.

Two doctors recommended that, given her mental condition, Mr. Mayede was not fit to respond adequately to the needs of the patients and should go on a leave of absence from work.  She was prescribed anti-depressant medication which improved her mood but made her drowsy and made her mind foggy.  Her anxiety symptoms remained high and her physical symptoms continued.  Ms. Mayede intends to return to work once her anxiety levels decrease and she is able resume her treatments.

At trial, defence counsel claimed that her anxiety was not because of her injuries but was instead because she was stressed by COVID-19 and her ongoing ICBC lawsuit.

However, the trial judge disagreed with many of defence counsel’s submissions.  Contrary to defence counsel’s submissions, the judge determined that Ms. Mayede:

• was a hard-working dedicated and enthusiastic nurse who wanted nothing more than to be able to work in the job she trained for and loved;
• did not go on a leave of absence from her employment because of COVID-19 or trial-induced anxiety.

The judge also concluded that should Ms. Mayede should not receive a reduced award because she did not seek accommodation from her employer for a position in an alternate unit or hospital that would enable her to work full-time.  Instead, he found that there was “no cogent evidence that any such position was available to her on any basis, reasonable or otherwise.  It is nothing other than mere speculation that she would have been able to be accommodated in an alternative full-time position.”

Ultimately, the judge made a favourable ruling for Ms. Mayede.

The Effect of COVID-19 on Pain and Suffering

In the case of Leung v Mok, 2020 BCSC 1456, counsel for the Defendants, representing the interests of ICBC, argued that Mr. Leung had failed to mitigate his damages because he reduced his exercise once the COVID-19 pandemic shut down rehabilitation services.

In this case, Mr. Leung was in two collisions.  He was 32 years old at the time of the first Collision and had been working as an investment advisor for RBC for approximately a decade.

Mr. Leung sustained physical injuries to his neck, shoulder, and back, as well as numbness in his hand.  He also felt sad and fatigued, and feared getting into another collision.  From the time of the first collision to the time of the trial approximately five years later, Mr. Leung attended about 100 physiotherapy treatments, 60 chiropractic treatments, and 30 massages.  Despite improvements, he continued to experience pain from his collision-related injuries.

As was the case with many individuals, the COVID-19 pandemic interrupted Mr. Leung’s recovery.  Mr. Leung’s symptoms worsened as physiotherapy and other treatments became unavailable.  About two weeks after the COVID-19 lock-down began in BC, Mr. Leung started doing yoga, skipping, and push ups at home to help with his symptoms.  However, he was not able to go to the gym or physiotherapy, chiropractic, or massage treatments.  Mr. Leung’s condition worsened because he exercised less at the beginning of the pandemic.  He tried to stay at home as much as possible to respect COVID-19 social distancing rules, and it was not feasible for him to purchase gym equipment for his 750 square foot apartment.

Mr. Leung’s symptoms further worsened because he was working from home.  While he had accommodations at RBC with an ergonomically designed office designed to reduce strain on his back, neck, and shoulders, he did not have an ergonomic desk or chair for his home office.  It was taking a lot of time to accomplish his work at home so eventually Mr. Leung stopped practicing yoga.

Once the restrictions of the pandemic eased, Mr. Leung was once again able to attend treatments and his symptoms improved.

At trial, ICBC argued that Mr. Leung’s inactivity resulting from the COVID-19 lock-down amounted to him failing to mitigate his damages and the awarded damages should be reduced.  ICBC claimed that there was nothing preventing Mr. Leung from following the active exercise regime which had been recommended by his doctors.

In making her decision, the trial judge acknowledged that Mr. Leung decreased his level of exercise during the lock-down.  However, she did not accept defence counsel’s arguments that Mr. Leung’s damages should be reduced and decided that it would not be appropriate to find Mr. Leung accountable for his physical set back in recent months.  The judge stated: “[w]hile he may have made more effort to stay physically fit, I find that he made sufficient effort given the unusual circumstances surrounding the Pandemic.  He reasonably balanced the restrictions imposed by the Pandemic with his recovery efforts.”  In the end, the judge did not reduce Mr. Leung’s damages and made a favourable decision for Mr. Leung.