ICBC Law

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$85,000 Non-Pecuniary Assessment for Chronic Thoracic Outlet Sydrome Coupled With Mild Brain Injury

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an injury caused in a vehicle collision.

In last week’s case (Danielson v. Johnson) the Plaintiff was involved in a 2008 collision.  Liability was admitted.  The Plaintiff, who worked installing ceilings, suffered a mild traumatic brain injury and thoracic outlet syndrome in the crash.  The Defendant took a serious run at the plaintiff’s credibility pointing out a history of cocaine use, getting paid under the table, and even lying at his examination for discovery.  Despite this the Court found the plaintiff ‘credible and reliable’.  The Court noted these injuries were caused by the collision and would likely require vocational retraining.  In assessing non-pecuniary damages at $85,000 Mr. Justice Silverman provided the following reasons:

[139]     With respect to both TOS and the MTBI, I reject the inference that prior injuries may have caused his current problems.  To the contrary, the evidence is that it is common for the long-term consequences of prior injuries to sometimes be sitting dormant, and when a newer injury emerges, a MTBI or TOS may result.  I am satisfied that has occurred here…

[146]     I am satisfied of the following: that the plaintiff did suffer a brain injury in the MVA, it was a mild brain injury, he suffers from accompanying emotional difficulties that cause additional impairment, and the consequences of the foregoing are likely to be ongoing…

[147]     The weight of the evidence supports the finding that the plaintiff does suffer from TOS as a result of the MVA and, on a balance of probabilities, I find this to be so.  I note that Dr. Fry devotes much of his medical practice to the management and treatment of TOS, both conservatively and with surgery, and that Dr. Salvian has a special interest in the diagnosis and treatment of TOS.

[148]     More than a decade ago, the plaintiff had a fracture to his neck which eventually healed completely, and he had no problems as a result of it in the five years prior to the MVA.  The research has shown that a majority of people who suffer from TOS have had a prior neck injury, perhaps even years before, which had long healed, but that set them up to be vulnerable to any further injury.  I am satisfied that this is what happened to the plaintiff.

[149]     When the plaintiff raises his right arm to the side or above his head, or in front of him (while driving) as well as into a position where his hands are at the height of his head or slightly higher, TOS symptoms are provoked. Unfortunately, he is required to do these sorts of movements at his work.

[150]     I am satisfied that the plaintiff suffers from TOS as a result of the MVA.  He has been able to function with his pre-MVA activities, including work and recreational activities, although less efficiently and less comfortably than before the MVA.  I am satisfied that the evidence indicates this will not improve; in fact, it will worsen.  Hence, the weight of the medical opinion that the plaintiff must re-train…

[167]     I agree that the plaintiff demonstrates remarkable grit in continuing to work and to be involved in extreme sporting activities, to some extent contrary to the advice he has received from various doctors and to the surprise of those doctors.  Having said that, I am satisfied that the plaintiff does so with much less ease and pleasure than he did prior to the MVA.  He has suffered a loss in that regard, and will continue to do so.

[168]     In view of all the foregoing, I award non-pecuniary damages in the amount of $85,000.

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