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$60,000 Non-Pecuniary Assessment For Chronic Pain At Pre-Existing Surgical Site

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, assessing damages for an aggravation of pain at a pre-existing surgical site.

In last week’s case (Hood v. Wrigley) the Plaintiff was involved in a 2010 collision.  The Defendant admitted fault.  Prior to the collision the Plaintiff had a large, cancerous tumor removed from his right thigh.  He was left with a level of nerve damage at the surgical site.  Following the collision this pain was aggravated.  The Court accepted the aggravation was caused by the collision and the prognosis for symptom resolution was poor.  In assessing non-pecuniary damages at $60,000 Mr. Justice Grist provided the following reasons:

[3]             The plaintiff had been off work for approximately five months in the year before the collision, from May to November 2009, after being diagnosed with a large, cancerous tumor located in the muscle tissue of his right thigh. The tumor was surgically removed, following which Mr. Hood was treated with chemotherapy and radiation. After the radiation treatment he was left with a mass of hardened muscle tissue in his right thigh and damaged nerves in his right leg which caused hypersensitivity and a burning sensation.

[4]             Following the motor vehicle collision the plaintiff developed neck pain and increased pain in his right leg, causing a marked limp and loss of his ability to do the physical aspects of his work. Additionally, the effects of his injuries impacted on many of the activities of his daily life…

[22]         There is no evidence that the cancer treatment caused a progressively deteriorating condition in Mr. Hood’s right leg. The medical records suggest he was managing with the residual effects of his cancer treatment. He had returned to full duties at his employment, without any indication of impairment, and the onset of his limp and functional disability closely ties to the collision. On the basis of this evidence, I conclude that Mr. Hood has been disabled from his employment because of the effects of the motor vehicle collision; and although the radiation treatment in his leg left him with residual effects, but for the injury he would not have incurred the disability that makes him unsuitable for his previous employment.

[23]         The prognosis in respect of the injury to the right leg is not hopeful, however, the prognosis for the neck injury is more optimistic. Dr. Grover concluded that while his neck complaints are likely to be long term, they weren’t likely to be permanent. His view was that Mr. Hood should be sent for physiotherapy and acupuncture, which may or may not help, but that in any event, the condition should resolve on its own…

[49]         In my view, the now more painful and disabling condition of the right thigh is an exacerbation of considerably more effect on the plaintiff than the pain and restriction on his mobility originally associated with the results of the radiation therapy. In addition to this, he is coping with the improving but still symptomatic neck condition. In light of these factors, I assess non-pecuniary damages in this case at $60,000.

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