The injured party was a construction worker and father of 4 children. His work primarily focused on residential renovations and building and servicing green houses at big box stores. The plaintiff was fifty years old at the time of trial and had been injured in what the courts described as a “violent” rear end type motor vehicle accident. Although the plaintiff continued to work after the accident, he was limited in what roles he could perform and how long he could work for, largely due to ongoing neck and chronic neck pain after the accident.
In this case the lawyers for the defence tried to make the argument that since the plaintiff had been to acupuncture treatments for neck and shoulder issues prior to the accident, he must have been suffering from soft-tissue injuries before the accident that were not caused by the accident. Fortunately, the judge found the plaintiff to be credible and dismissed the defence’s argument, stating:
“Receiving an acupuncture treatment (or a massage) for the relief of soreness or temporary muscle pain arising from long hours of driving or physically demanding activities is qualitatively different from attending an acupuncturist as a result of an injury on the recommendation of one’s general practitioner.”
This was a very astute observation by the judge and was based on medical expert evidence from an expert in occupational medicine who stated “people go for massages all the time when they are working at physical jobs or go to their gardens and they do a bunch of digging”, but it “does not mean they have an ongoing back pain disability”.