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This Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.
Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice. Erik can only provide legal advice to clients. Please click here to arrange a free consultation.
Archive for the ‘ICBC Chronic Pain Cases’ Category
January 5th, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and post traumatic stress disorder caused by two motor vehicle collisions.
In today’s case (Luis v. Marchiori) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2011. ICBC admitted fault for both defendants. The Plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons:
 I would summarize the significant factors as follows:
a) Ms. Luis is 49 years old;
b) In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck and right shoulder and lower back, moderate to severe major depression, PTSD, and significant weakness in her dominant right hand;
c) Ms. Luis’s pain has been severe, particularly since the Second Accident, and it is unlikely that her pain or depression or PTSD or right hand weakness will resolve;
d) As a result of the accidents, Ms. Luis is completely disabled from working and driving and is significantly disabled from personal care, home care, and personal activities; and
e) Ms. Luis has suffered from the loss of her sense of well-being, the impairment of her relationships with her husband and children, and the loss of the social connections from work.
 No two cases are alike. I have considered the cases cited by both counsel and Ms. Luis’s particular circumstances.
 Ms. Luis is entitled to $120,000 for non-pecuniary damages.
December 10th, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault and damages following a series of collisions.
In today’s case (Shinzay v. McKee) the Plaintiff was involved in three collisions. The Defendants were found liable for each of these. The Plaintiff suffered chronic soft tissue injuries which persisted to the time of trial and resulted in chronic pain symptoms which were expected to need continued management. In assessing non-pecuniary damages at $75,000 Madam Justice Sharma provided the following reasons:
 Based on all of the above, I make the following findings on the balance of probabilities:
a. Mr. Shinzay continues to suffer pain that affects, but does not disable him;
b. Mr. Shinzay will more likely than not require physiotherapy, massage therapy, and pain medication in the future to manage flare-ups of his pain;
c. Mr. Shinzay needs to follow a conditioning program which will improve his pain management;
d. Mr. Shinzay had a degenerative spinal condition that pre-existed the First Accident;
e. The accidents caused Mr. Shinzay to suffer soft tissue injuries; and
f. The accidents materially contributed to his pain because it trigged his pre-existing spinal degeneration to become symptomatic.
 As already noted, I find Mr. Shinzay has not exaggerated his symptoms. His resilience for work should not be mistaken for a sign that his injuries were mild. In particular, the Second and Third Accidents required emergency personnel to extract him and he was taken away on a stretcher.
 Overall, I find that Mr. Shinzay’s circumstances justify an award at the moderate level of the appropriate range. Among the cases referred to me, I discuss below the most helpful ones because of the similarity of some of the facts or circumstances to this case. These cases identify a range of $60,000 (the defendants’ assessment) to $90,000 (the plaintiff proposed $100,000)..
 In these circumstances, I find $75,000 to be an appropriate award.
November 25th, 2014
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and largely disabling neck and back injuries.
In this week’s case (Mandra v. Lu) the Plaintiff was involved in a collision that the Defendant was found fully liable for. The Plaintiff suffered chronic neck and back injuries as a result which disabled him from is occupation as a millwright and challenged him in lighter vocational options. In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:
 Mr. Mandra was 53 years of age when the accident occurred. He was transformed from a happy, healthy and hardworking man to one who lives in constant chronic pain. His lower, mid and upper back hurt on an ongoing basis. He has neck pain, headaches and pain in his legs. He is nervous, forgetful, miserable and depressed. Treatment and medication have not helped and there is no prognosis for improvement except as described by Dr. Helper and only in relation to his lumbar pain. Compendiously his pain is severe and chronic and disables him from the type of work he used to do. He was formerly employed as a millwright, a heavy duty job, but now has a hard time sitting or standing for prolonged periods and lacks the necessary physicality to work as he once did. The injuries render him unemployable in his past career as a millwright and only very marginally employable in lighter occupations, particularly given his challenges with English. The injuries have affected his social life and his relationship with his wife. He is not as active as he once was. He has suffered psychologically.
 Balancing all these factors, I award the plaintiff $75,000 for non-pecuniary damages.
September 24th, 2014
Adding to this site’s archived cases addressing damages for knee injuries, reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic knee injury with associated depression.
In today’s case (Cook v. Symons) the Plaintiff was involved in a pedestrian/vehicle accident in 2010. The Defendants were found fully liable. The Plaintiff suffered an injury to his anterior cruciate ligament which underwent three surgeries without successful resolution. He also suffered from chronic depression following his injury and this combination of symptoms permanently disabled him from his trade as an electrician. In assessing non-pecuniary damages at $140,000 Mr. Justice Kent provided the following reasons:
 There is no doubt and, indeed, the defendants concede, that the plaintiff’s knee injury and the chronic pain and physical disability caused by the same was a result of the accident. With respect to the plaintiff’s mental health, it is uncontroverted and I find as a fact that, as set out in the June 5, 2014 report of Dr. Semrau,
· the plaintiff suffers from depression and the depression was caused by the accident and its aftermath;
· despite treatment, the depression has continued such that the plaintiff has been and will continue to be disabled from time to time;
· as a result of the accident, the plaintiff has suffered a loss of sense of purpose, self-esteem, and time structuring, due to a lack of work or other substantially productive activity, as well as a vicious circle reinforcement between lowered activity demands and perceived decreased energy;
· the fatigue experienced by the plaintiff, including the increase in fatigue since January 2014, has been caused not only by sleep apnea (which is yet to be confirmed) but also by the plaintiff’s chronic pain and depression;
· there is a circular interaction between the plaintiff’s functional and physical disabilities on the one hand and his depression on the other, each reinforcing the other in a manner that is likely to continue in the future;
· the plaintiffs depression has impaired, delayed, and interrupted his rehabilitation efforts, including recommended diet and exercise regimens; and
· the plaintiff will encounter significant future functional difficulties and related educational and employment disability.
 I also accept the evidence of Dr. Gouws and Mr. Trainor with respect to the plaintiff’s barriers to rehabilitation and employment, and their assessments respecting the plaintiff’s ability to successfully retrain and find/keep employment in the future. I find as a fact that the plaintiff has chronic knee pain and restricted functional capacity that will permanently preclude him from returning to his previous occupation as an electrician or, indeed, any work that requires prolonged standing or walking. These physical disabilities have combined with the plaintiff’s depression and emotional/mood problems to trigger significant coping difficulties. All of this is attributable to the accident.
 I also accept Dr. Gouws’ assessment that the plaintiff continues to be at risk of worsening depression, and that any meaningful rehabilitation will require a team effort on the part of the plaintiff, his family physician (medication management), vocational consultant (job search coaching/assistance), psychologist (counseling and cognitive behavioral therapy), and kinesiologist (viable exercise programming). While some of the plaintiff’s current medical conditions (diabetes, sleep apnea, low testosterone) may not have been directly caused by the accident, the required team rehabilitation is for the most part necessitated by the combination of chronic pain, restricted functional capacity, and depression, all of which was directly caused by the accident…
 I have read each of these cases and have noted both the similarities and dissimilarities with the present case. Given the severity of the plaintiff’s suffering, loss of amenities, and loss of enjoyment of life in this case, I award the plaintiff non-pecuniary general damages in the amount of $140,000.
August 13th, 2014
Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages and fault following a motor vehicle collision.
In today’s case (Hill v. Murray) the Plaintiff was involved in “a very bad car accident” in 2009. The Defendant was found fully at fault. The Plaintiff’s injuries included chronic soft tissue injury and post concussive symptoms. In assessing non-pecuniary damages at $120,000 Mr. Justice Macaulay provided the following reasons:
196] On balance, I prefer the evidence of the plaintiff’s doctors where it conflicts materially with that of the defendants’ doctors. I find that Ms. Hill received the following injuries as a result of the accident:
1. Soft tissue injuries to the left neck and shoulder, including AC joint, with cervicogenic headaches and some numbness and tingling down her left arm, now plateaued but not symptom free, particularly if she attempts to do too much;
2. Chronic intermittent pain;
3. Migraines (aural), under control;
4. Migraines unresolved and triggered differently than pre-accident migraines associated with pre-menstrual period;
5. PTSD (resolved by the time of trial);
6. Nightmares, transitory and resolved;
7. MTBI or post-concussion syndrome resulting in ongoing fatigue, memory, concentration, and balance problems;
8. Possible overlap of vestibular injury (trauma to utricle) causing or contributing to balance issues; and
9. Adjustment disorder, largely in remission.
I do not accept the sufficiency of the evidence respecting temporo-mandibular joint dysfunction.
 It is now more than four years post-accident. Ms. Hill is unlikely to see further improvement. Instead, ongoing therapies will aim at pain management, assisting with balance issues and any further adaptions required respecting the effects of the MTBI or post-concussion syndrome. As she ages, the balance issues will likely elevate her risk of falling.
 Ms. Hill’s injuries have significantly impacted her life and will continue to do so. She has lost the ability to participate in many of the sport and recreational activities that she enjoyed before the accident. Her physical interactions with the children are more limited than before. In social interactions, Ms. Hill is now easily overwhelmed or cannot recall the conversation thread. Her personality now appears different and less attractive to her family, friends and associates.
 While Ms. Hill has been able to return to work at Butchart Gardens, she no longer takes the same degree of pleasure in her work and requires employer accommodations in order to do her job. It is unlikely that she will be able to fulfill the specific career aspirations that she had in mind before the accident and accordingly, she must adjust to that loss as well…
 I reiterate that no two cases are truly alike when assessing non-pecuniary damages. I assess non-pecuniary damages at $120,000.
June 16th, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which developed into a chronic myofascial pain syndrome.
In today’s case (Kirkham v. Richardson) the Plaintiff was involved in a 2010 collision. She was 26 years old at the time and was pursuing a PhD and competed as a professional triathlete. She sustained soft tissue injuries which impacted her education and training. Her symptoms lingered to the time of trial and were expected to continue. The injuries were complicated by a subsequent bike collision although the Court was able to divide the injuries from the separate incidents. In assessing the collision related injuries at $120,000 Madam Justice Warren provided the following reasons:
 In summary, and having taken into account all the evidence, I make the following findings:
· Ms. Kirkham suffered soft tissue injuries to her neck, shoulders and upper back as a result of the car accident.
· Those injuries have resulted in myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome, all of which continue to affect Ms. Kirkham.
· Ms. Kirkham suffered a concussion and abrasions in the bike crash which are divisible injuries for which the defendant is not liable.
· Ms. Kirkham did not exacerbate or aggravate her soft tissue injuries in the bike crash and the bike crash did not contribute to Ms. Kirkham’s myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.
· Ms. Kirkham’s soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms. Kirkham’s left hip girdle pain, which is an indivisible injury.
· Ms. Kirkham took a leave of absence that delayed the completion of her PhD studies by a year. The leave was required for Ms. Kirkham to focus on rehabilitation of the injuries caused by the car accident. The concussion did not contribute to Ms. Kirkham’s leave of absence from her PhD studies.
· As a result of the concussion, Ms. Kirkham did not compete in any triathlons during the summer of 2011. The concussion and the soft tissue injuries both contributed to her decision not to compete in any triathlons over the rest of 2011.
 Having regard to the case law cited and the Stapley factors, I assess Ms. Kirkham’s non-pecuniary damages at $130,000, but reduced by $10,000 to reflect the possibility that the deconditioning associated with the concussion would have caused her hip pain in any event.
May 23rd, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s drug abuse problems were caused by collision related injuries.
In today’s case (Fabretti v. Gill) the Plaintiff was 12 years old when involved in a serious head on collision which killed the occupants in the at fault vehicle. The Plaintiff suffered a mild brain injury, a variety of soft tissue injuries and chronic, but not disabling, pain. Subsequent to this the Plaintiff started abusing drugs which negatively impacted his life. At trial the Court found that the Plaintiff’s substance abuse difficulties were linked to the collision related injuries. In assessing non-pecuniary damages at $100,000 Madam Justice Kloegman provided the following reasons:
 Dr. Lu stated that it was impossible to know whether or not the plaintiff would have developed an addiction in the absence of the 2005 Accident. Once again, the plaintiff does not have to prove to a scientific certainty that he would not have developed a drug addiction but for the Accident, only that it is more likely than not it was caused by the Accident. On the totality of the evidence, I find on a balance of probabilities that the plaintiff’s drug addiction was caused by the Accident.
 ICBC argues that a causal connection between the Accident and the plaintiff’s addiction can be shown only if the plaintiff’s alleged reason for the drug use as a coping mechanism or reaction to the chaos that followed the Accident is found to be true. ICBC submits that this allegation can only hold true if the plaintiff and his family were found to be credible. I do find the evidence of the Fabrettis to be credible and consistent with the clinical records, so this submission fails.
 ICBC points to evidence that the plaintiff might have started drugs before the Accident, and in response to peer pressure to which he would have been exposed in any event.
 This proposition of ICBC was put to Dr. Lu during cross-examination. He explained that although prior use may increase risk, many people experiment with recreational drug use but only a small percentage go on to develop an addiction. By age 15, 60% of people living on the west coast in Canada have tried marihuana. More than 80% of people experiment with drugs, but less than 10% become regular users. Dr. Lu had no doubt that the Accident caused the plaintiff’s addiction.
 Accordingly, I find that the plaintiff’s drug addiction was more likely than not caused by the Accident…
 On a balance of probabilities, I find that the plaintiff has no permanent physical disability arising from his injuries. He has no lasting cognitive effects from the Accident. The impact of his chronic pain on his function does not amount to an impairment and should not disable him from employment, although his capacity to perform all forms of employment to the same degree as before the Accident may have been realistically affected. At present his marihuana consumption is a negative factor in his full functional recovery, and must be brought under control. From the evidence, the success of the plaintiff’s future is highly dependent on eradicating his excessive drug use. The plaintiff had the wherewithal to stop his cocaine and MDMI use in high school without assistance. I believe the plaintiff, with the help of his family and professional addiction treatment, has the fortitude to overcome his dependency on marihuana. Nonetheless, I am aware that like any other addict, he will always be at risk of relapse…
 From the cases cited to me, I found the decisions of Houston v. Kine, 2010 BCSC 1289 and Parfitt v. Mayes et al, 2006 BCSC 125 to be the most helpful. In Parfitt, the court accepted that the plaintiff did not have a permanent disability. In Houston, the court found that the prognosis was favourable with appropriate treatment. I find the impact of the plaintiff’s injuries to be slightly less than both the plaintiffs in Parfittand Houston. Accordingly I award the plaintiff the sum of $100,000 for pain and suffering.
May 14th, 2014
Adding to this site’ archived chronic pain damage assessments, reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, assessing damages for a low back injury which required surgery along with ‘widespread’ chronic pain symptoms.
In today’s case (McLeod v. Goodman) the Plaintiff was injured in a 2008 collision. Liability was admitted by the Defendant. The collision caused a wide variety of injuries which impacted the Plaintiff to the time of trial and were expected to continue indefinitely. In assessing non-pecuniary damages at $130,000 Madam Justice Donegan provided the following reasons:
 In this case, temporal reasoning is very compelling. I have found Mrs. McLeod’s lower back injury required surgery as a direct result of injuries she suffered in the accident. She had normal bladder sensation and function before the surgery and a loss of it nearly immediately thereafter. With no prior problems in this area, as a matter of common sense, I conclude that the low back surgery is more likely than not to have caused the bladder problems. As the surgery would not have been required if not for the defendants’ tortious act, the plaintiff has established a substantial connection between her bladder condition and the negligence beyond the de minimus range.
 In summary, I am satisfied Mrs. McLeod has established that the following injuries were caused by the defendants’ negligence:
1) Musculoligamentous strain to the cervical spine;
2) Chronic headaches;
3) Shoulder pain;
4) Musculoligamentous strain to the lumbar spine and lumbar radiculopathy causing pain to her lower back, hips, groin and right leg, resulting in surgical intervention;
5) Partial loss of bladder sensation and functionality;
6) Widespread chronic pain syndrome; and
7) Emotional pain in the form of low mood and feelings of low self-worth.
 These injuries are permanent in nature and expected to worsen over time, although there is some hope treatment may reduce pain or increase her ability to cope with it…
 Prior to the accident, Mrs. McLeod was an energetic, hardworking, 43-year-old, single mother of two. She could handle any challenge life presented her. She had no physical or emotional limitations preventing her from working in her chosen field, from maintaining a nice home and yard, from supporting and spending time with family and friends and engaging in a variety of recreational pursuits.
 The accident has taken much from Mrs. McLeod. As a result of her injuries and their aftermath, she can, I think, be best described as a shell of her former self. She suffers severe, daily pain throughout her body for which she is only granted temporary reprieve when she endures painful injections. She requires constant pain medication. Mrs. McLeod must adjust her life to deal with this pain, frequent headaches, fatigue, occasional incontinence and weakness in her leg. Her emotional suffering is due to her inability to no longer contribute to her family, to the workforce and to society. Her relationships with her family are negatively affected. Her social and recreational life is non-existent. In short, her enjoyment of all aspects of her life has been significantly reduced.
 Considering all of the case authorities provided, I find the Fox decision the most useful, although I do find Mrs. McLeod’s losses to be more significant than the plaintiff’s in that case. Ms. Fox did not require surgery and was able to work at least part-time.
 I find the appropriate award for non-pecuniary damages in this case is $130,000.00.
January 31st, 2014
It what is a fairly unusual symptom following motor vehicle related injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with associated heart palpitations. In this week’s case (Morena v. Dhillon) the Plaintiff was involved in a 2008 collision. The Defendant admitted fault. The Plaintiff suffered a variety of injuries which remained symptomatic at the time of trial and were expected to linger into the future, the most unusual of which were heart palpitations. In assessing non-pecuniary damages at $130,000 Madam Justice Arnold-Bailey provided the following reasons:
 The evidence establishes that she was injured in the accident and as a result developed of the following injuries and conditions as listed by to Dr. Koo:
1. Soft tissue injuries to the neck, shoulders, arms, lower back and legs with chronic residual sequelae of:
a) Chronic whiplash injury with mechanical neck pain, myofascial origin, involving the right scalenes, trapezius, supraspinatus, infraspinatus and rhomboids, and left trapezius, levator scapula, rhomboids, supraspinatus, and infraspinatus muscles.
b) Mechanical low back pain.
2. Chronic sleep disruption.
3. Posttraumatic stress disorder.
4. Severe depression.
5. Heart palpitations.
 In the present case, prior to the accident, the plaintiff was a vital, energetic 43-year-old wife and mother of two. The extent of her injuries and the ensuing conditions is clearly set out above. She is likely to continue to suffer from pain, depression, PTSD, sleep disruption and potentially heart palpitations in to the future. Her depression is severe and seems to be entrenched. Her pain is severe at times and she requires constant pain medication. Her emotional suffering is great due to her great sadness and regret that she is not able to make the contributions to her family life that she did prior to the accident. Her relationships with family and friends have been negatively affected although her family remains intact. The best evidence is that she is fully disabled from work except for the one hour a day as a lunch supervisor she currently performs during the school year. She remains partially disabled from housework and other physical activities. Her enjoyment of all aspects of her life is significantly reduced. She is prevented by the injuries and their aftermath from living what otherwise was likely to have been a very happy, productive and fulfilling life. She has lost much.
 Considering the range of awards in the authorities provided on behalf of the plaintiff, I find the decisions of Marois and Morlan to be of the most assistance. I award non-pecuniary damages in this case in the amount of $130,000.
November 4th, 2013
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009. The Defendant admitted fault. The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain. The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived. In reaching this decision the Court was influenced by video surveillance evidence. In commenting on this Mr. Justice McEwan provided the following reasons:
 The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.
 Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
 Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
 The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff’s condition. I largely accept what he had to say about the plaintiff’s reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
 The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff’s evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
 As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.