B.C.’s Civil Resolution Tribunal has ruled that a woman’s whiplash-associated disorder (WAD) with chronic neck, shoulder, upper back, and low back pain is not a minor injury.
Tribunal member Christopher Rivers said in his Dec. 23 decision that Francesca Loredana Margit Brind-Boronkay, on Nov. 2, 2019, was in a motor vehicle accident with a vehicle leased and insured by Ellen Jane McIntosh. Richard John Amann was a listed driver on the insurance policy, and Toyota Credit Canada Inc. owned the leased vehicle.
Brind-Boronkay said Amann was driving.
The respondents to the claim were Amann, Toyota Credit Canada Inc. and McIntosh.
The respondents said it was McIntosh who was driving.
What happened?
Rivers said the vehicles collided, resulting in Brind-Boronkay’s vehicle leaving the road and crashing into a fence.
He said clinical records over the following period show the development of Brind-Boronkay’s reported symptoms with pain in her neck, both shoulders, and her back within three days of the accident. She continued to report that pain over the following months, he said.
Physiotherapy records showed she consistently attended treatment beginning shortly after the accident in 2019 and continuing into the summer of 2024. She also attended numerous massage, chiropractic, and rehabilitation treatments throughout 2020 and 2021.
Rivers said Brind-Boronkay sought 150-plus different chiropractic, massage, rehabilitation, and kinesiology treatments from 2019 to 2024.
On July 4, 2023, Dr. Kshitij Chawla diagnosed Brind-Boronkay with a WAD injury with chronic axial/mechanical neck, shoulder, upper back, and low back pain.
“The applicant argues this WAD injury, and the associated chronic pain, is not minor,” Rivers said.
The decision
Rivers said the tribunal must only consider the cause of the impairment to a person when determining whether an impairment is caused by an accident.
Chawla gave the opinion that the symptoms’ timing, the mechanism of injury, and the lack of pre-existing pain meant it was more likely than not that Brind-Boronkay’s injury was caused by the accident.
“Since Dr. Chawla says the WAD injury was a result of the accident, I find it follows that (Brind-Boronkay’s) impairment was caused by the accident,” Rivers wrote.
And, Rivers heard, the injury has led to Brind-Boronkay being unable to fully perform full-time work functions, despite her wishing to do so.
“I find (Brind-Boronkay) is substantially unable to perform the essential tasks of their regular employment, occupation, or profession,” Rivers said. “As a result, I find (Brind-Boronkay’s) WAD injury with chronic axial/mechanical neck and upper back pain results in a serious impairment, and accordingly, is not a minor injury.”
Rivers ordered the respondents to pay $4,000 in dispute-related expenses (for Chawla’s and a physiotherapist’s reports) and $175 in tribunal fees.
