More than four years after a crash that left him with chronic pain and an inability to work, a former Port Moody city employee was awarded $1.5 million in B.C. Supreme Court – despite some resistance from ICBC.
Neil MacKinnon had recently been promoted in his role as a Port Moody engineering technologist when he was rear-ended while on his way to work in the spring of 2018.
His car, a 2005 Pontiac Vibe, was written off by ICBC.
Agreement and disagreement
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ICBC concurred that the crash was the fault of the driver of the other car, Lois Della Swanson.
However, the insurance provider disputed the nature and extent of MacKinnon’s injuries and the resulting financial loss.
The major point of contention revolved around whether the crash caused MacKinnon’s disabling somatic chronic pain disorder as well as the impact that condition would have on MacKinnon’s life.
Before and after the crash
Prior to the collision, Mackinnon got migraine headaches about four times a year. However, he was “strong, physically fit and keeping active with hockey,” according to the judgment written by B.C. Supreme Court Justice Nigel Kent.
Several witnesses including family members, a lifelong friend and a supervisor at work described MacKinnon as being transformed after the crash.
“He has gone from being a vivacious, high energy and enthusiastic personality who was a formidable recreational hockey player and a loving ‘hands on’ father to his children to being withdrawn, depressed, overwhelmed, prone to panic attacks, and outbursts of anger,” Kent summarized.
While the hurt waxes and wanes, MacKinnon described his neck pain as “24/7.”
Return to work
MacKinnon found himself “unable to cope” when he tried to return to work, according to court documents.
He left work in September 2019. MacKinnon told the court hasn’t returned because of medical problems.
Whiplash
Ordinarily, whiplash injuries cause a few weeks or months of disability “at most,” according to a neurosurgeon who was called as a witness by ICBC.
Dr. Ryan Janicki, a neurosurgeon who specializes in spinal disorders, told the court it would be expected that MacKinnon could return to his full-time work at his old job. Janicki also gave evidence that MacKinnon isn’t restricted from physical activity such as contact sports.
Inaccurate and potentially misleading
When questioned, Janicki stated that his commentary was limited to neurosurgical pathology.
“Regretfully, I am unable to ascribe much, if any, weight to Dr. Janicki’s opinion. On its face, it is inaccurate and potentially misleading,” Kent wrote.
No exaggeration
MacKinnon’s prognosis is “guarded to poor,” according to evidence given by Dr. Mitchell Spivak.
MacKinnon is not exaggerating his symptoms, according to Spivak, who explained that, while MacKinnon’s psychology is amplifying the pain, that amplification is unconscious and unintentional.
Dr. Tony Giantomaso, who specializes in the treatment and management of chronic pain conditions, gave similar evidence.
There was no amplification or exaggeration by MacKinnon nor malingering for financial gain, according to Giantomaso.
Approximately 85 percent of patients tend to recover from whiplash injuries within six to 12 months. However, almost 95 percent of those who don’t recover suffer permanent symptoms, Giantomaso explained.
MacKinnon is “basically in purgatory,” Giantomaso told the court, adding that in an ideal situation there would be a 50 percent chance that MacKinnon could return to some form of sedentary work.
Long-term benefits
After leaving his work and using up his vacation and sick days as well as employment insurance disability benefits, MacKinnon eventually qualified for long-term disability benefits through Pacific Blue Cross as part of the collective bargaining agreement between the city of Port Moody and his union.
The benefits added up to about $4,000 a month or 60 percent of his normal wages and were “critical to our finances,” MacKinnon told the court.
However, Pacific Blue Cross terminated MacKinnon’s benefits in July 2022 when MacKinnon didn’t undergo a capacity assessment scheduled by the insurer.
The assessments – which he had been through twice before – took days to recover from, according to MacKinnon.
Damages
In terms of non-pecuniary damages, MacKinnon was entitled to a “modest award,” given his “significant possibility of improvement,” according to ICBC. The insurance provider submitted that MacKinnon is “not irredeemably doomed to pain and disability for the remainder of his life.”
ICBC submitted that an appropriate award would be around $100,000.
“I find the defendant’s suggestion of an award of general damages in the amount of ‘around $100,000’ to be wholly inadequate,” Kent wrote.
Kent awarded MacKinnon $1,547,817, including more than $1.1 million due to future loss of earning capacity and $180,000 in non-pecuniary damages.
