ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims 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 ICBC injury 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

$135,000 Non-Pecuniary Assessment for Ruptured Breast Implant, Chronic Physical and Psychological Injuries

September 9th, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry assessing damages for numerous injuries sustained by a pedestrian struck by a vehicle.

In today’s case (Starchuk v. Hannig) the Plaintiff was a customer standing in a store “when a vehicle driven by the defendant, Helmutt Hannig, crashed into it. Ms. Starchuk was pushed into the wall of the deli, breaking the drywall.”

The Plaintiff suffered a host of psychological and physical injuries including a breast implant capsular tear requiring surgical repair.  In assessing non-pecuniary damages at $135,000 Mr. Madam Justice Brown made the following findings:

[101]     In summary, I am satisfied that as a result of the motor vehicle accident of May 13, 2013, Ms. Starchuk has suffered soft tissue injury to her neck, shoulders, upper limbs, back, chest, and right foot; a capsular tear of her breast implant which required surgery and has left her with postoperative pain and loss of nipple sensation; chronic mechanical neck and shoulder pain; soft tissue injuries to her arms with persisting forearm and hand pain, numbness and tingling; posttraumatic stress disorder, somatic symptom disorder, chronic pain, and a mild traumatic brain injury. I accept that Ms. Starchuk:

1.       will remain at risk for a potential reduction in capacity due to her psychiatric diagnoses because of exacerbation from stress or other triggers; increased risk of developing another psychiatric diagnosis; and increased risk of developing fibromyalgia and chronic fatigue syndrome;

2.       would likely benefit from further therapy for her soft tissue injuries within the next year, but that she will be left with ongoing pain and activity restrictions related to neck, back, chest, arms and hands which will likely be permanent and enduring; and

3.       has had a good result from her breast revision surgery, but is left with pain and lack of sensation and the result is not aesthetically satisfying to her…

[103]     I have considered the cases provided to me by each of the parties. It is trite to state that no two injuries and no two plaintiffs are the same (Boyd v. Harris, 2004 BCCA 146 at para. 42). Considering the factors set out in Stapley v. Hejslet, 2006 BCCA 34, in my view the appropriate award for damages for Ms. Starchuk’s pain and suffering is $135,000.


Disputed Injury Diagnosis – Six of One, Half a Dozen of the Other…

June 30th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, making the common sense finding that the debate over diagnosis is not nearly as important in a personal injury lawsuit as whether symptoms are tied to the indicent in question.

In today’s case (Tan v. Mintzler) the Plaintiff was injured in a 2012 collision and experienced chronic cognitive symptoms.  At trial a debate arose about whether the symptoms were due to a head injury from the collision or secondary to chronic pain.  The Court found the Plaintiff did indeed suffer a head injury however noted the debate was largely insignificant as whatever the diagnosis the symptoms were linked to the trauma of the collision.  In basically saying ‘six of one, half a dozen of the other’ Mr. Justice Groves provided the following reasons:

[54]         For the plaintiff, Drs. Weiss, Cameron, and Kaushansky gave evidence that they believed Ms. Tan had suffered an MTBI.  Dr. Weiss recommended Ms. Tan be referred to a neurologist to confirm her suspicion, a recommendation that was followed with her visit to Dr. Cameron.

[55]         One of the most significant factors in diagnosing the MTBI was Ms. Tan’s evidence that she has no recall of the Accident after hearing the initial sound of the impact.  The next thing she remembers is the policeman, Cst. Upshall, knocking on her car window.  It was also Ms. Tan’s evidence that she has a spotty memory of the events which transpired after she returned home from the hospital that day.  It was also relevant to the MTBI diagnosis that Ms. Tan was diagnosed as having a concussion at the hospital the day after the Accident and by Dr. Fong for several months after the Accident.  The doctors also relied on an MRI brain scan which showed an abnormality in the plaintiff’s left parietal lobe which Dr. Cameron testified “probably occurred” at the time of the Accident.

[56]         As I have said, Dr. Dost strongly disagreed with the MTBI diagnosis and with the methodology of the other three doctors.

[57]         The reality is that there is little disagreement regarding the symptoms Ms. Tan experiences and the psychological difficulties she is struggling with.  The distinction between whether Ms. Tan’s psychological injuries and cognitive difficulties were caused by an MTBI or by Ms. Tan’s chronic pain and sleep disturbances is relevant only to the quantum of general damages and to Ms. Tan’s prognosis going forward.

In going on to assess non-pecuniary damages at $210,000 the Court provided the following reasons:

[73]         Ms. Tan is 56 years of age.  I have found that she suffered an MTBI during the accident and that she suffers from depression, anxiety, and mild PTSD.  She has no residual capacity to work and is unemployable due to the cognitive issues caused by the accident, including her mood swings, poor stamina, and memory issues.  I have also found that Ms. Tan suffers from chronic pain on her left hand side and in her face and jaw.  The prognoses for Ms. Tan’s physical and psychological conditions were generally guarded or poor with the exception of the pain in her face and jaw, which may lessen with treatment.  I do note that several experts indicated that Ms. Tan may see some improvement with psychological treatment.

[74]         I also accept that the plaintiff’s personal and intimate relationships have been affected.  She now socializes very little and her relationship with her husband has deteriorated as a result of the injuries caused by the accident.  She is fearful of travel by car and has not driven since the accident.

[75]         Finally, I accept that the plaintiff’s ability to maintain her home, including her ability to cook, garden, and do laundry, has been impaired as a result of the accident.  She has and will continue to suffer some loss of housekeeping capacity.  However, Ms. Tan continues to be able to do some light housekeeping and has been able to manage the family home while her husband has been away for extended periods with only minimal assistance from her daughter.  I have therefore chosen to address this head of loss as part of the plaintiff’s non-pecuniary damages, rather than as a separate claim; Johal v. Radek, 2016 BCSC 454 at paras. 59-60….

[89]         Having regard to the findings I made and the authorities reviewed, I consider that an award of $210,000 properly compensates Ms. Tan for her non-pecuniary losses.  This award also includes and recognizes that Ms. Tan has and will continue to suffer some diminution in her housekeeping capacity.


$90,000 Non-Pecuniary Assessment for Chronic Neck and Back Injuries

June 23rd, 2016

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $90,000 for chronic injuries sustained in a vehicle collision.

In today’s case (Lu v. Huang) the Plaintiff was injured in a 2011 rear-end collision.  The Defendant admitted fault.  The Plaintiff’s injuries included chronic back and neck pain, headaches with psychological consequences.  The prognosis was poor with symptoms expected to continue into the future and remain partially disabling.

In assessing non-pecuniary damages at $90,000 Mr. Justice Blok provided the following reasons:

[156]     I found Ms. Lu to be a credible witness who did not exaggerate her symptoms.  The symptoms she reported in her testimony were consistent with the findings and observations of her physicians as well as the observations of her co-workers and husband.

[157]     The car accident was one of considerable force.  The damage to the defendants’ vehicle, as shown in the photographs, was considerable.  Although the evidence was that the defendants’ vehicle was subsequently written off, as I have observed before in other cases this in itself does not really convey much in the way of helpful information without also knowing the value of the car or the estimated value of the repairs.  Having said that, however, I am satisfied that the crumpled front end and hood of the defendants’ car, as shown in the photographs, is strongly suggestive of an impact of considerable force.

[158]     The plaintiff’s injuries were not really disputed.  I find them to be as follows:

a)    injuries to the cervical, thoracic and lumbar areas of her spine;

b)    a disc protrusion in her lumbar spine; and

c)     bruising to her upper chest.

[159]     I find that those injuries were caused by the accident.

[160]     I also find that as a result of those injuries the plaintiff has suffered:

a)    debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;

b)    ongoing constant cervical and lumbar pain from the time of the accident to the present;

c)     occasional numbness in her fingers and legs;

d)    constant or near-constant headaches; and

e)    problems with mood, including depression, irritability and shortness of temper.

[161]     Ms. Lu’s injuries left her unable to work for about two weeks, and after that limited her to part-time work (three days a week) for over a year.  They have also left her unable to sit for longer than about 45 minutes.  She is less productive at work and feels exhausted after a work day.  Her injuries have also affected other areas of her life in that her sleep is less restful, she cannot do household work, her relationship with her husband has been adversely affected and she cannot participate in family or social activities that involve any amount of physical activity.

[162]     I accept the evidence of Dr. Robinson that Ms. Lu will probably continue to suffer from headaches indefinitely.  As for her cervical and lumbar spine pain, I note that it has already continued years beyond the time Dr. Murray felt Ms. Lu would start to see some improvement.  Even the defence specialist, Dr. Lapp, said the Ms. Lu’s prognosis was guarded, though he felt she would experience “very slow further improvement”.  Dr. Frobb was less positive; he felt her present condition likely “represents a status of maximal medical improvement”.  From all of the medical evidence I conclude that Ms. Lu’s symptoms are likely to continue in the long term and there is only a small prospect that her symptoms will improve to any substantial degree.

[163]     Finally, I accept the opinion of Dr. Murray that Ms. Lu’s lumbar disc protrusion puts her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending…

[171]     I assess non-pecuniary damages in the amount of $90,000.


$95,000 Non-Pecuniary Assessment for Chronic Pain and Somatic Symptom Disorder

April 11th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $95,000 for a plaintiff suffering from chronic pain and a somatic symptom disorder following a vehicle collision.

In today’s case (Dabu v. Schwab) the Plaintiff was involved in a 2011 collision the Defendant admitted fault for.  The Plaintiff injured her neck back and shoulder and developed chronic pain syndrome along with a somatic symptom disorder with a relatively poor prognosis.  In assessing non-pecuniary damages at $95,000 Mr. Justice Steeves provided the following reasons:

[51]         Overall, there are findings of physical limitations and an undisputed psychological disorder that are related to the 2011 accident. These continue and they affect the life and work of the plaintiff. I note that Dr. Shane opines that the prognosis is that the plaintiff’s psychological functioning will remain stable. From his previous comments about the persistence of somatic symptom disorder and chronic pain syndrome I take his meaning to be that these conditions will continue. This is generally consistent with the prognosis given by Dr. Misri that the prognosis is poor, if not guarded (based on different diagnoses). There is also evidence that the plaintiff’s symptoms are slowly improving and her specialist in physical medicine and rehabilitation believes she can increase her activities and she should do so…

[53]         In the subject case the plaintiff has managed to work full time and this brings her considerable satisfaction and contributes positively to her emotional well-being. However, she is not able to work at the same level as before the accident and her home life has become reduced in a significant way so she can recover from and rest for work. She also has limitations in what she can now do at work. This is discussed in more detail below under loss of future earning capacity. As a matter of non-pecuniary damages it is enough to say that the plaintiff has not lost the enjoyment that her work gives to her but there has been a related loss because of the limitations her pain and suffering have placed on her home life.

[54]         As above, the defendant relies on prior decisions for her position that the range for non-pecuniary damages in this case is $40-50,000. For example, in the Matias decision non-pecuniary damages were assessed at $50,000. However, in that case bilateral frozen shoulders were found to be very significant for the plaintiff’s disability but they were found to be unrelated to the accident in dispute. In Chen, a decision from 2004 where non-pecuniary damages of $35,000 were awarded, there were soft tissue injuries somewhat similar analogous to the ones in the subject case but the psychological diagnoses related to pain were absent. The Rabiee judgment can be similarly distinguished.

[55]         With respect to the authorities relied on by the plaintiff for her range of $128,000 to $135,000, in Poirier an award of $100,000 for non-pecuniary damages was given but the plaintiff’s condition was likely permanent and the prospect for improvement was guarded. In Hosseinzadeh there was significant pain to the point of rendering the plaintiff immobile for days at a time (at para. 103) and damages of $125,000 were awarded. Damages of $130,000 were given for non-pecuniary damages in S.R., where the trial judge accepted an expert opinion that the plaintiff would not fully recover to her former self despite completion of a pain program (at para. 169) and her ability to participate in one of her most passionate goals in life, her faith, was limited (at para. 172). Finally, in Morlan, the plaintiff could no longer work in her pre-accident work which brought her considerable satisfaction. The Court of Appeal considered non-pecuniary damages of $125,000 to be generous but not excessive.

[56]         In the subject case the plaintiff’s own expert believes she can increase her activities at home and at work and she continues in her work which brings her considerable satisfaction and enjoyment.

[57]         With the above in mind I conclude that an appropriate amount of non-pecuniary damages in this case is $95,000.00.


$90,000 Non-Pecuniary Assessment for Partially Disabling Chronic Pain

March 9th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain following a motor vehicle collision.

In today’s case (Swieczko v. Nehme) the Plaintiff was involved in an intersection collision in 2011.  The Plaintiff committed to the intersection on a green light but could not turn due to oncoming traffic.  The Plaintiff waited until the light turned a stale yellow and began the turn.  The Defendant, who was in the oncoming curb lane, came through on what was likely a red light and the vehicles collided.  The Court found the Defendant fully liable for the collision.

The Plaintiff sustained  soft tissue injuries which resulted in chronic symptoms.  In assessing non-pecuniary damages at $90,000 Madam Justice Koenigsberg provided the following reasons:

[40]         Mr. Swieczko suffered significant soft tissue injuries as a result of the accident.  The clear medical evidence from the plaintiff’s orthopedic surgeon, Dr. G.M. McKensie, is that Mr. Swieczko’s soft tissue injuries are now chronic and permanent, presenting as moderate to severe pain in the neck, mid-back and lower back with persistent flare-ups as a result of overtime work, attempts at physically interacting with his growing one-year-old daughter and attempts to reintegrate previously enjoyed recreational activities.  His prognosis is poor.  Dr. McKensie testified that while there are some positive prognostic indicators, such as the likelihood that his function will improve with an appropriate pain/activity program; these are outweighed by the negative indicators, such as length of time Mr. Swieczko has experienced pain and the fact that his body has become sensitized to it.

[41]         Dr. Ashleigh Stelzer-Chilton, Mr. Swieczko’s general practitioner, testified that Mr. Swieczko will never return to his pre-accident baseline.  She believes he can improve his function and in that sense she hopes for a decrease in his pain with some activities.

[42]         Mr. Swieczko was 27 years old at the time of the Accident.  He is now 31.  He has been engaged in the video game industry for close to nine years.  He began as a “quality assurance” tester.  This is a sedentary job, essentially playing games to ferret out problems before the games are released to the public.  It requires concentration and repetitive tasks.  It was described as being a form of detective work.  The work often requires overtime as projects reach launching time; that is, 10-to 16-hour days.  This career is generally somewhat insecure, as most of the employment is on contract.  Mr. Swieczko has been laid off and re-hired several times.

[43]         Mr. Swieczko’s ambition has been to be a game designer and currently he has landed his dream job.  Mr. Swieczko is obviously a talented, hard-working, ambitious young man.  He appears to have an above average ability to get re-hired as needed at his places of employment and lately has been promoted.  However, all of the medical evidence indicates that he will have difficulty maintaining and progressing in his career to the extent that it relies on individuals having the stamina to intermittently work long days.  Mr. Swieczko has on occasion been unable to work the required overtime and when he has done so, he can only do it for a day or so without resorting to strong pain medication such as Tylenol 3s.  Further, Mr. Swieczko has been at risk in the past of medicating himself with alcohol, although he appears at this point to have that risk under control.

[44]         Mr. Swieczko and his partner, Ms. Philips, have a child who is just over one year old now.  While providing both of them a great deal of joy, this has resulted in two complicating factors because each is suffering from chronic pain from the Accident.  The first is that, given Mr. Swieczko’s demanding career, which requires that he must utilize (at this point) all of his stamina to maintain, he has become more limited in what time and activity he can devote to his daughter.  However, the evidence is clear that Ms. Philips has been and still is unable to do several necessary tasks associated with housekeeping and child care – such as physically lifting and holding their child.  Thus, up to now Mr. Swieczko has shouldered more of those tasks than he would have, which apparently limits the downtime his neck and back need to recover from strain.  This in turn has required more pain medication and led to frustration.

[45]         It must be recognized that this state of affairs is costing Mr. Swieczko psychologically.  He is far less able to socialize and enjoy family get-togethers – or physical activity that he enjoyed before the Accident.  Thus, Mr. Swieczko is struggling with frustration and emotional despondency from time to time as he contemplates the immediate future, wherein he may not be able to be an active participant in his daughter’s physical recreational life.  It was clear from Mr. Swieczko’s evidence that he was taken aback by receiving his poor prognosis in relation to living relatively pain-free and being able to do what he did before.  In particular, he had ambitions of participating in such physical activities as karate with his daughter as she matures.  He is now very unlikely to be able to do this…

The most significant factor in this case making the assessment of general damages suggested by the plaintiff more appropriate than that suggested by the defendant is the severity and chronicity of pain, which combines with Mr. Swieczko’s increasing emotional struggle over the impairments to his family, marital and social relationships.  Adding to this is Mr. Swieczko’s stoicism, which, in this case, has meant he has and continues to work longer and harder to achieve his career goals, but at a significant cost in pain and resort to strong medications.

[52]         I assess his non-pecuniary damages at $90,000.


$110,000 Non-Pecuniary Assessment For Chronic C5/6 Disc Herniation

January 21st, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.

In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision.  The Defendant admitted fault.  The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman.  In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:

[30]         The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.

[31]         Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.

[32]         Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.

[33]         Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…

[35]         It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…

[44]         The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.

[45]         Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.

[46]         Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.

[47]         An appropriate award for non-pecuniary damages in this case is $110,000.


$120,000 Non-Pecuniary Assessment for Soft Tissue Injuries with Disabling “Pain Disorder”

November 30th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain disorder caused by two vehicle collisions.

In today’s case (Litt v. Guo) the Plaintiff was involved in two collisions, the first in 2003, the second in 2010.  The Plaintiff was not at fault for either.  The Court found both collisions caused various soft tissue injuries which went on to form a chronic pain disorder which was largely disabling for the Plaintiff.  In assessing non-pecuniary damages at $120,000 Mr. Justice Schultes provided the following reasons:

[371]     In summary, I will make the following findings on causation and the current state of Ms. Litt’s injuries:

·                 Ms. Litt suffered moderate soft tissue injuries to her neck, shoulders and back in the 2003 and 2010 accidents, which would not have been significantly disabling in themselves.

·                 Her physical injuries from the 2003 accident had receded to a manageable level by the time of the 2010 accident, but those injuries were aggravated by the 2010 accident.

·                 Ms. Litt developed a pain disorder as a result of the 2010 accident.

·                 Ms. Litt’s pre-existing anorexia nervosa and depression made her more vulnerable to developing depression and other psychological difficulties after the 2003 accident and to developing a pain disorder after the 2010 accident.

·                 Despite the other stressors in her life, Ms. Litt would not have suffered any disabling reappearance of her pre-existing conditions if the accidents had not occurred.

·                 There is a possibility of a continued improvement to her functioning and her capacity for employment, based on her self-described improvements to her outlook after beginning to follow a regime of healthy diet, exercise and counselling…

[378]     Keeping in mind the need to tailor the award to the particular circumstances of the case, but to consider outcomes in similar cases to ensure the overall fairness of the amount, I conclude that damages of $120,000 are appropriate under this heading.

Also of note are the Court’s critical comments of two defence expert witnesses in the case.

The first, a defence expert in ‘spine pain’ testified that soft tissue injuries would certainly have healed within 12-16 weeks of each accident and that this was “scientific fact”.  In rejecting this assertion the Court commented as follows -

[349]     Turning to the evidence dealing with the extent of Ms. Litt’s physical injuries, I find first of all that I am unable to accept Dr. Bishop’s categorical assertion that the outside limit of the duration of her actual physical injuries is 16 weeks. A comprehensive study that he accepted as authoritative shows that there is a greater variation in that recovery period, before even considering the influence of any psychological problems on the experience of pain. In addition, though through no fault of his own, he has no records and therefore no real evidentiary basis to critique the medical findings that were made by others in relation to Ms. Litt’s 2010 accident. While, as I will discuss, there is a good argument that Ms. Litt’s psychological condition has overtaken any physical causes of her pain, I am not convinced that any contribution by her physical injuries ended as quickly as he contends.

Next, the Court heard from a defence hired psychiatrist who minimized the connection between the Plaintiff’s chronic pain condition and the collisions.  In rejecting this evidence Mr. Justice Shultz provided the following critical comments-

[355]     I will start by saying that I find I cannot attach any weight to Dr. Levin’s opinion. He conflates the routine nature of the accidents with the requirement for a diagnosis of pain disorder under the DSM-V that the patient experiences the injuries as “significant, catastrophic or life threatening”. Their objective severity aside, Ms. Litt certainly perceives her injuries as being significant. His assertion that there can be no PTSD here because the accidents were not traumatic also ignores that fact that Dr. Lu does not rely on PTSD to support his diagnosis of pain disorder. PTSD is most prominent in Dr. Lee’s records, and I would not give as much weight to his diagnoses in psychiatric matters in any event.

[356]     More importantly, Dr. Levin made assumptions that are not borne out by the evidence, such as that Ms. Litt’s function was “seemingly unimpaired” in the years following the accidents, which he seems to have based largely on her continuing ability to take family vacations that involved air travel.

[357]     Worst of all in my view, he overlooked or ignored numerous entries in Dr. Lee’s clinical records that had the potential to undermine his opinions. My overall impression was that the primary purpose of his report was to counteract Dr. Lu’s opinion, rather than to address the evidence objectively, and that it was not prepared carefully.


$100,000 Non-Pecuniary Assessment for Chronic Back and Neck Pain

November 26th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for chronic neck and back pain caused by a vehicle collision.

In today’s case (Tourand v. Charette) the Plaintiff was injured in a 2009 rear end collision that the Defendant accepted responsibility for.

The Plaintiff suffered chronic neck and back pain as a result with symptoms lingering at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $100,000 Mr. Justice Joyce provided the following reasons:

[119]     It is true that there were occasions in the past when the plaintiff experienced episodes of neck, shoulder and back pain, for which she received chiropractic treatments. Some of these episodes were associated with prior motor vehicle accidents and others appear to have been brought on by the physical activities in which she engaged, including her participation in karate. However, I am satisfied, on the whole of the evidence, that prior to the Accident the plaintiff was not experiencing the kind of chronic pain and symptomology in her neck and low back that she has experienced since the Accident in question. I am satisfied that the causal connection between her present symptomology neck and low back and the Accident has been established. In short, but for the Accident the plaintiff would not be in the physical condition that she now finds herself.

[120]     Ms. Tourand plaintiff had some pre-existing degenerative changes in her neck and low back, but I am satisfied that her current symptoms are not due simply to the progression of that degeneration. Rather they are due to either an aggravation of a pre-existing condition or to trauma that has made symptomatic that which was not previously symptomatic.

[121]     I accept that in the years before the Accident, the plaintiff was a physically active, social person, who enjoyed life and was enjoyable to live with and be around. I find on the basis of the evidence of her husband and friends that she is now a very different person. The Accident has negatively impacted her ability to enjoy physical activity and perform former household management tasks to the same extent as before. It has led to difficulty sleeping, depression and has affected her marital relationship.

[122]     On the other hand, I also find that the other life events that the plaintiff has endured since the Accident, in particular, the difficulties that her children experienced and with which she has been integrally involved, have probably contributed to the severity and prolongation of her symptoms.

[123]     Ms. Tourand is not, however, incapacitated. She can still manage most of her household chores, with moderation and careful sequencing of the tasks. There seems to be consensus among the experts that Ms. Tourand is capable of some employment, provided it does not involve heavy physical tasks and provided she is not required to either sit or stand in one position for a prolonged period of time.

[124]     I am also of the view that it is probable that the plaintiff’s physical capacity and general well-being will improve if she becomes more active, including: engaging in a program involving further physiotherapy under the direction of a kinesiologist or physiotherapist, swimming and psychotherapy to deal with the emotional affects of her symptoms. In my view, based upon a consideration of all of the evidence, it is still open to the plaintiff to accept that advice and follow that treatment path; and that, if she does so, she can expect to achieve some further reduction in her symptomology and improvement in her functioning and enjoyment of life…

[128]     Considering the nature of the chronic pain caused by the motor vehicle Accident; the poor prognosis for anything like a full recovery; the relatively young age of the plaintiff; and the effects that the symptoms have had and will likely continue to have on the quality of her life in the future, I assess non-pecuniary damages at $100,000.


Chronic Regional Myofascial Pain Syndrome Leads to $125,000 Non-Pecuniary Assessment

August 28th, 2015

Reasons for judgement were released today assessing damages following chronic injuries sustained in a collision.

In today’s case (Kam v. Van Keith) the Plaintiff was injured in a 2011 rear end collision.  The Defendant admitted fault.  The Plaintiff complained of” injuries to her neck, upper and lower back, shoulders, she suffers from depression, sleep disturbance, fatigue, headaches and has chronic pain”.  These were ultimately diagnoses as a chronic regional myofascial pain syndrome and the Plaintiff’s symptoms were not expected to make meaningful improvement.  In assessing non-pecuniary damages at $125,000 Mr. Justice Cole provided the following reasons:

[15]        Dr. Apel does not state the plaintiff has fibromyalgia but does find she has some symptoms of fibromyalgia. She makes a conclusive diagnosis of chronic regional myofascial pain syndrome which is unchallenged by the other experts…

[24]        I was impressed with Dr. Apel. She saw the plaintiff on two occasions. Her report was thorough and detailed as was her examination. I am satisfied that the kinesiologist that worked with the plaintiff (which I assume was in response to Dr. Piper’s recommendation in his first report) between November 2013 and April 2, 2014 along with her continual rigorous workout program that she had continued to do following his recommendation of a kinesiologist has not improved her condition and I am satisfied that it is unlikely her symptoms will improve in any significant way. In my view she had tried everything possible. She has applied herself in a rigorous discipline fashion and four years after the accident she still has chronic lower back pain…

[25]        Non-pecuniary damages are awarded to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to consider are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal refused, 2006 SCC 100. Any assessment of damages of course must be fair to both parties, and must be decided on the facts of the particular case.

[26]        The plaintiff is still relatively young, being born in November 1975. The nature of her injuries are significant and they have subsisted at least in the lower back for four years. The plaintiff has suffered emotionally and her life has been impaired. It has also adversely affected her family, her marital relationship and her social relationships. She is incapable of doing practically all the sporting activities that was a vital and vibrant part of her personality and her relationship with her husband, her family and friends. Although she only took three days off work purely because she is stoic is not a reason to generally penalize the plaintiff…

[31]        I am satisfied, considering all of the evidence that the proper award is the amount of $125,000.


$140,000 Non-Pecuniary Assessment For Permanent Low Back Nerve Injury

July 20th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages for a permanent low back nerve injury with accompanying depression.

In today’s case (Bellaisac v. Mara) the Plaintiff, who was described by the Court as “an uncomplicated man who enjoys life’s simple pleasures, including those of hard physical labour” was injured in a 2009 rear end collision.  The crash caused L5-S1 Disc Injury which impacted and permanently injured the S1 nerve root.  In describing the injury and prognosis the Court accepted the following medical evidence –

[36]         Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key opinions with respect to the plaintiff’s back are set forth in paragraphs 41 and 43 of his March 18, 2014 report:

41. With reference to the low back, the primary finding remains a significant L5-S1 disc protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22nd and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7, 2012. He also presents with a further CT scan of the lumbosacral spine taken at Jim Pattison Outpatient Clinic October 17, 2012. These further investigations merely confirmed the presence of the L5-S1 disc with probable compromise to the S1 roots. His clinical presentation at this juncture is more suggestive of compromise to the left S1 root in that he presents with weakness of calf musculature. He demonstrates at this juncture a degree of root tension on the left, probably involving the left S1 root. There is the probable hyperactivity of the left ankle reflex. There is also numbness of the sole of the left foot and weakness of plantar flexion/pointing the foot downward. All these signs involve the S1 root. There therefore appears to be little reasonable discussion as to the cause of his persistent symptoms.

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

In assessing non-pecuniary damages at $140,000 Mr. Justice Funt provided the following reasons:

[71]         The Court will award the plaintiff $140,000 in non-pecuniary damages. In considering the various factors, the Court has placed particular weight on the plaintiff’s age, which favours an award larger than if he were much older. He will be living with chronic back pain and fluctuating chronic depression for the rest of his life.

[72]         In making the award, the Court considered the fact that Dr. Fisher, in his March 12, 2014 report, mentions the possibility of surgery. As noted, in his April 13, 2012 report Dr. Fuller states:

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

[73]         With Dr. Fuller’s opinion in mind the Court finds that the future possibility of lower back surgery is not a real and substantial possibility.