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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
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‚Äôs myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.
¬∑¬†¬†¬†¬†¬†¬†¬†Ms.¬†Kirkham‚Äôs soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms.¬†Kirkham‚Äôs 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‚Äôs 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‚Äôs 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‚Äôs drug addiction was caused by the Accident.
¬†¬†¬†¬†¬†¬†¬†¬†¬†ICBC argues that a causal connection between the Accident and the plaintiff‚Äôs addiction can be shown only if the plaintiff‚Äôs 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‚Äôs addiction.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Accordingly, I find that the plaintiff‚Äôs 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‚Äôs 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‚Äôs 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‚Äôs 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‚Äô 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‚Äô negligence:
1)¬†¬†¬†¬†Musculoligamentous strain to the cervical spine;
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‚Äôs losses to be more significant than the plaintiff‚Äôs 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‚Äôs 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 ‚Äúbiomechanically correct posture‚ÄĚ, 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‚Äôs daily routine does not require either. She works from home and is quite free to move about.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr. Surgenor, the plaintiff‚Äôs 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‚Äôs 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‚Äôs condition. I largely accept what he had to say about the plaintiff‚Äôs 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‚Äôs 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‚Äôs analysis as descriptive of the plaintiff‚Äôs psychological condition, and think it may account, in part, for the plaintiff‚Äôs 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.
October 28th, 2013
Reasons for judgement were released this week demonstrating that not only is an at-fault motorist responsible for the injuries they cause but also for any complications that result in the course of the Plaintiff’s reasonable treatment of these.
In this week’s case (Cebula v. Smith) the Plaintiff was involved in a head on collision. ¬†Despite denying fault the Court found there was “overwhelming and uncontradicted” evidence that the Defendant was to blame. ¬†The crash caused multiple injuries including a fractured neck which required the removal of two discs and a fusion from C5-C7. ¬†Following this surgery the Plaintiff experienced a bone infection in her hip and further experienced long term difficulty swallowing as a complication of the surgery. ¬†In finding the Defendant at fault for all of these consequences and assessing non-pecuniary damages at $150,000 Mr. Justice Weatherill provided the following reasons:
¬†¬†¬†¬†¬†On the basis of the evidence before me, I find that the plaintiff has established that the injuries she sustained to her neck, shoulders and upper back, right knee and right ankle, as well as her PTSD, sleep disturbances and anxiety were caused by the Accident.¬† I also find that the plaintiff‚Äôs swallowing difficulties, dizziness and voice problems were the result of her neck surgery that was itself necessitated by the Accident.¬† The infection in her hip at the site of her bone graft was also the result of her neck surgery.¬† Her headaches have been aggravated by the Accident.¬† It is more probable than not that these injuries and other conditions would not have occurred but for the Accident….
¬†¬†¬†¬†¬†As a result of the Accident, the plaintiff‚Äôs life changed permanently and dramatically.¬† The various surgeries she underwent, the chronic pain and headaches, the long period of only partial recovery, the limitations on her mobility and her inability to continue in her teaching position has had a significant effect on both her physical and psychological wellbeing.¬† She has withdrawn from her social network and previous social activities.¬† She is short-tempered and not as much fun to be around.¬† Driving has become stressful and anxious for her.¬† It is worse when she is a passenger.¬† The dizziness and choking that began after her November 2007 neck surgery continue to this day.¬† She is unable to take care of her home and garden except for minor housekeeping tasks.
¬†¬†¬†¬†¬†The plaintiff has become anxious and has lost confidence in her ability to be an effective teacher.¬† Teaching is no longer the joy that it was for her prior to the Accident.¬† Although psychological treatment and other encouragement enabled her to gradually return to work, she is only able to teach in the classroom one day per week.¬† That one day takes a toll on her such that she requires the remainder of the week to recuperate and prepare for the next work day.
¬†¬†¬†¬†¬†The plaintiff was in obvious pain and discomfort while she was testifying.¬† It is clear to me that the Accident has caused her significant stress and anxiety and significantly affected her ability to function and cope with daily life, a marked change from her life prior to the Accident…
¬†¬†¬†¬†¬†¬†Having considered the principles set out in¬†Stapley¬†and the cases relied upon by counsel, I find that an award of $150,000 for non-pecuniary damages is appropriate.
October 9th, 2013
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4-5 disc herniation.
In this week’s case (Bains v. Brar) the Plaintiff was injured in a 2008 collision. ¬†The Defendant admitted fault for the collision. ¬†The crash caused a disc herniation which required a bilateral disectomy. ¬†The Plaintiff was left with chronic pain accompanied with depressive symptoms. ¬† In assessing non-pecuniary damages at $130,000 Mr. Justice Cohen provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†Before the accident the plaintiff was a happy, healthy, socially and physically active person who enjoyed his work as a machinist and looked forward to one day establishing his own machine shop. ¬†Following the accident, he was a very different person.
¬†¬†¬†¬†¬†¬†¬†¬†¬†There is a consensus among all of the medical experts that the plaintiff has suffered serious debilitating injuries as a result of the accident and that the chronic pain from his physical injuries has led to him suffering from a major depressive disorder.
¬†¬†¬†¬†¬†¬†¬†¬†¬†In his September 18, 2012 report, Dr. Sahjpaul stated that the plaintiff will have ongoing symptoms on a permanent basis and that he did not anticipate any resolution or improvement. ¬†He opined that the plaintiff would not return to his pre-accident occupation as a machinist, or be able to work in any vocation that required prolonged sitting, prolonged use of a computer or one that required heavy lifting.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr. L. Caillier, a Physical Medicine and Rehabilitation expert, who saw the plaintiff on November 4, 2010, and in follow-up on January 24, April 8, June 17, August 18, and October 20, 2011, opined in her report dated December 1, 2011, that the plaintiff has chronic pain that is soft tissue in nature, involving the neck, upper back, and lower back regions, as well as his posterior shoulder girdle regions. ¬†She also opined that he has mechanical lower back pain. ¬†She reported, ‚ÄúUnless there is a significant improvement in his emotional and psychological wellbeing as well as his sleep and improved management of his physical symptoms, I do not see Mr. Bains working in any occupation, let alone his prior occupation as a machinist.‚ÄĚ ¬†She also concluded in her prognosis, ‚ÄúIt is my opinion that given the chronicity of his physical symptoms, coupled with his ongoing psychological and emotional symptoms and poor sleep, the likelihood of Mr. Bains achieving a pain-free state is very poor. ¬†It is my opinion that he is likely to have ongoing pain now and into the future and beyond that of the next 12 months.‚ÄĚ
¬†¬†¬†¬†¬†¬†¬†¬†¬†Dr. Lu, whose opinion I accept, stated in his May 31, 2012 report that the plaintiff‚Äôs major depressive disorder, though in partial remission, has long term impact on his future risk of relapse and that even with complete relief of pain and return to his previous level of function, the plaintiff has a prolonged episode of major depression. ¬†Dr. Lu opined that the plaintiff now has at least a 30% chance of a relapse over the next 5 years with similar functional impairment strictly from a mental health standpoint…
¬†¬†¬†¬†¬†¬†¬†¬†¬†When I consider the nature and extent of the injuries suffered by the plaintiffs in the cited authorities, when compared to those suffered by the plaintiff in the case at bar, I find that a reasonable and fair award to the plaintiff for non-pecuniary damages is $130,000.
October 1st, 2013
Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registy, addressing non-pecuniary damages for injuries imposed on a plaintiff with significant pre-existing difficulties.
In last week’s case (Campbell v. Van Den Broek) the Plaintiff was injured in a 2010 collision. ¬†The Defendant admitted fault. ¬†The court was presented with competing and “not reconcilable” medical opinions about the extent of the collision related injuries. ¬†Ultimately the Court accepted the collision caused some new injuries and exacerbated long standing pre-existing problems. ¬†In assessing non-pecuniary damages at$90,000 Mr. Justice McEwan recognized that “for a person with serious limitations a relatively small change may have significant practical consequences.“. ¬†The Court provided the following reasons:
¬†¬†¬†¬†¬†The plaintiff has dealt with many tribulations in her life. The over-all impression she gives is of a person who simply kept going despite these difficulties and who had some entrepreneurial initiative. Despite a tendency to depression she appears to have been, in the past, fun and amusing with her friends, and although her marriage was nearly over before the accident, Mr. Campbell‚Äôs departure and the disruptions that followed, selling the family home, and finding a new place to live, would have been upsetting to anyone. The accident did not cause these problems but it certainly made the plaintiff‚Äôs situation more difficult to deal with, and exacerbated her pre-existent tendency to depression and anxiety.
¬†¬†¬†¬†¬†The differences between the medical reports are not reconcilable, but offer the court a range of perspectives. The court must avoid visiting damages upon the defendant that load pre-and co-existing difficulties unfairly on the accident. On the other hand, it must also recognize that for a person with serious limitations, a relatively small change may have significant practical consequences…
¬†¬†¬†¬†¬†I do not accept the range to be as high as the plaintiff has submitted. Rather, taking account of the degree to which the cases cited are comparable, and the plaintiff‚Äôs unique combination of injuries: those from which she suffered for a time but has recovered (bruising, neck pain); those from which she always suffered but which have been exacerbated by the accident (anxiety); and those which are attributable to the accident (knee pain becoming symptomatic, the vestibular issues), allowing for the possibility that the latter might have become symptomatic in any event, and assessing the credibility of the plaintiff‚Äôs complains in light of the medical evidence and what the lay witnesses had to say, and the effects of inflation on comparable decisions, I am of the view that the plaintiff‚Äôs damages for pain and suffering and loss of enjoyment of life should be assessed at $90,000.
August 8th, 2013
Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision. ¬†Although liability was denied the Defendant was found 100% responsible for the crash. ¬† In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000. ¬†In rejecting the defence medical evidence the Court provided the following criticism:
¬†¬†¬†¬†¬†On behalf of the plaintiff, it is submitted that Dr.¬†Grypma‚Äôs opinion should be given no weight for the following reasons:
1.¬†¬†¬†¬†¬†He took what can only be described as a cursory history from Ms.¬†Sekihara;
2.¬†¬†¬†¬†¬†he made a number of editorial comments in the section titled ‚Äúmedical records review‚ÄĚ which were not identified as being his own comments;
3.¬†¬†¬†¬†¬†in that same section he left out salient facts which tended to support Ms.¬†Sekihara‚Äôs complaints;
4.¬†¬†¬†¬†¬†also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and
5.¬†¬†¬†¬†¬†he was evasive at times in his oral testimony.
¬†¬†¬†¬†¬†I agree with the plaintiff‚Äôs submissions regarding Dr.¬†Grypma.¬† In his evidence, Dr.¬†Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms.¬†Sekihara or to have taken into account the complete medical history.
¬†¬†¬†¬†¬†Most importantly, Dr.¬†Grypma‚Äôs opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms.¬†Sekihara and of the objective evidence of the tear of the annulus fibrosis.¬†
¬†¬†¬†¬†¬†Ms.¬†Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.¬† I do not accept Dr.¬†Grypma‚Äôs evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect.¬†
¬†¬†¬†¬†¬†¬†It was Ms.¬†Sekihara‚Äôs inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.¬† Ms.¬†Sekihara had ongoing low back pain long before she became pregnant.¬† The pars defect was congenital and the degenerative changes longstanding.¬†
¬†¬†¬†¬†¬†The characterisation of the low back injury is the major issue.¬† I prefer the evidence of Dr.¬†Hershler who diagnosed it as a disc injury at L4/5.¬† His conclusions are based on his interpretation of the imaging, his examinations, and on Ms.¬†Sekihara‚Äôs reporting of her symptoms, both pre and post-accident.
July 2nd, 2013
Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry dealing with such an injury.
In last week’s case (SR v. Trasolini) the Plaintiff was involved in a 2007 rear end collision. ¬†Fault was admitted by the Defendant. ¬†Although causation was vigorously contested, the Court conclude the collision caused a fibromyalgia condition which left the plaintiff partially disabled with chronic symptoms. ¬†In assessing non-pecuniary damages at $130,000 Madam Justice Ballance provided the following reasons:
¬†¬†¬†¬†¬†¬†The injuries sustained by Ms.¬†R. have caused her years of suffering, fluctuating degrees of chronic pain all over her body that is sometimes quite severe, and the concomitant diminution of joy and pleasure to most aspects of her life.¬† Although her symptoms have gradually improved, particularly in the year or so leading up to trial, they remain sufficiently significant to continue to meet the diagnosis of fibromyalgia.¬† The expert opinion evidence that I¬†accept is skeptical that Ms.¬†R. will ever fully recover to her former self despite her completion of the Pain Program, commitment to physiotherapy and other treatment modalities and reasonable exercise when she is able.
¬†¬†¬†¬†¬†A formerly outgoing, sociable and highly energized and engaged woman, Ms.¬†R. is now more reclusive and has had to lean heavily on her aging mother to perform her share of household chores and, for about a six-month period, to assume most of her personal grooming.¬† She worries about her future, including how she will be able to care for her elderly mother in the passing years.
¬†¬†¬†¬†¬†The Accident has left Ms.¬†R. to confront the grim reality that she has an incurable and complex syndrome that manifests as chronic pain and an array of other unwelcome physical, psychological and cognitive impairments.¬† For years to come, possibly indefinitely, she will be vulnerable to episodic aggravation of her physical symptoms, which in turn, will disrupt her sleep and produce an adverse effect on her overall emotional and cognitive well-being.¬† The person she was before the Accident has been forever altered.
¬†¬†¬†¬†¬†While the toll taken on Ms.¬†R. by the ill-effects of the Accident have been life- altering domestically, emotionally, recreationally, socially and vocationally, the most deleterious consequence for her is that it has limited her ability to fully realize her most passionate of life‚Äôs goals, namely to serve her faith.
¬†¬†¬†¬†¬†I¬†have reviewed all of the cases placed before me by counsel. ¬†I¬†do not propose to review them in detail as they provide general guidelines only, other than to say that only one of the authorities relied on by the defendants involved a plaintiff afflicted with fibromyalgia or a chronic pain syndrome.¬† Ms.¬†R.‚Äôs authorities are far more instructive in light of their factual similarities to her circumstances; even still, they are not determinative.
¬†¬†¬†¬†¬†Having considered the evidence as a whole and the application of the governing principles, it is my opinion that a fair and reasonable award for Ms.¬†R.‚Äôs non-pecuniary damages is $130,000.