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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

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Archive for the ‘ICBC Dental Injury Cases’ Category

$131,250 Non Pecuniary Assessment for Chronic TMJ Injury

October 2nd, 2015

Reasons for judgement were released today assessing damages for a severe jaw injury sustained in a vehicle collision.

In today’s case (Williams v. Gallagher) the Plaintiff, who was 20 at the time, was involved in a 2010 vehicle collision caused by the Defendant.  The Plaintiff suffered a variety of injuries the most serious of which was an injury to the temporomandibular (TM) joints in his jaw.  This required surgical intervention which did not cure his pain and the Plaintiff  was expected to have chronic lingering problems.  In assessing non-pecuniary damages at just over $130,000 after factoring in some contingencies Madam Justice Warren provided the following reasons:

80]     For the past five years, Mr. Williams has suffered from very severe, debilitating pain. The ongoing neck, back and shoulder pain is significant but the jaw pain is excruciating. He testified that he wakes up in pain every morning. He takes 10 to 12 Percocet each day which reduces the pain but does not eliminate it. The Percocet leaves him feeling foggy and impairs his ability to focus. If he does not take the Percocet, the pain is unbearable. He has attended at the emergency department of the hospital on several occasions because he cannot bear its intensity. He testified that he feels trapped in his jaw pain and it controls his life.

[181]     Dr. Courtemanche explained that facial pain is qualitatively different from pain in other parts of the body. As he put it, people think of themselves as living in their heads. A person may be able to distance or dissociate themselves from pain in an extremity, such as foot, but may find it impossible to do the same with pain in the head or face. Also, unlike an injured knee or hip, it is almost impossible for a patient not to use an injured jaw, which is engaged each time the patient speaks or eats. Dr. Courtemanche explained that injured TM joints often result in severe muscle spasm, which he has observed repeatedly when examining Mr. Williams, and this prevents the joint from finding any comfortable rest place.

[182]     Mr. Williams has undergone extensive, invasive, painful orthodontic treatment including two surgeries. In addition to the neck, back and shoulder pain, which alone is significant, and the excruciating jaw pain, he now suffers from significant psychological conditions that are debilitating.

[183]     Mr. Williams testified that as each jaw treatment failed, he became more anxious and his feelings of hopelessness increased. He has spent his savings on living expenses and medical treatments. He is overwhelmed by worry about his inability to work. On several occasions when his testimony turned to his future, he broke down in sobs.

[184]     Dr. Courtemanche agreed, at trial, that the surgery he is now recommending is rarely indicated but, in the circumstances of this case, he continues to be of the view that it is worth trying. However, he said that, at best, the surgery will temporarily alleviate the pain, that Mr. Williams will likely continue to suffer TMJ pain for the rest of his life, and that his TMJ disorder cannot be cured. He also said that, eventually, Mr. Williams will probably require a TM joint replacement, which is likely to last 15 years, after which the replacement would have to be repeated.

[185]     Mr. Williams testified that the prospect of living with no hope of pain relief causes him such despair that he wishes to end his life. He said he hides the severity of his symptoms from his mother because he does not want her to know that her son would rather die than live with the pain.

[186]     Mr. Williams’ symptoms have very significantly affected all aspects of his life. He can no longer play soccer. He has no interest in going to movies or sporting events. He is restricted in what he can eat. His personality has been affected. He has become isolated and socially withdrawn. He now spends most of his time alone at home or going for drives. He does still go out with friends for meals or drinks, as often as once a week, but sometimes he does not socialize at all for several weeks in a row. Mr. Webber and Mr. Kreklewetz testified that sometimes they go to Mr. Williams’ house and force him to go out.

[187]     The injuries Mr. Williams suffered have prevented him from working. He has suffered financial consequences as a result which will be addressed in the next section of this judgment, but this has affected his enjoyment of life in other ways as well. He has had to live with the likelihood that his injuries will preclude him from working in any physical job, which has caused him to despair about his future. Given his limited academic success to date, and now limited functionality, he fears that his options for more sedentary work are few even if he manages to develop strategies for dealing with the pain. It is apparent that this reality has weighed very heavily on him, and is a significant contributing cause of his psychological conditions.

[188]     Mr. Williams has been transformed from a happy, social young man with an optimistic future, who was focussed on his work and was well on his way to achieving his life goals, into an anxious, fearful and isolated young man who is barely managing to get through each day and who is tormented by virtually constant, intense pain.

[189]     I accept the evidence of Dr. Adrian, Dr. Courtemanche and Dr. Smith concerning Mr. Williams’ prognosis. Mr. Williams’ neck, back and shoulder injuries are most likely permanent. The TMJ disorder cannot be cured. Even if Mr. Williams undergoes the surgery recommended by Dr. Courtemanche, the best case scenario is that he will experience some temporary alleviation of the pain. He faces the prospect of more than one jaw replacement surgery in his lifetime and the prospect of many years of ongoing pain and compromised lifestyle. Even if the pain improves, it is unlikely he will experience a full remission of the depressive and anxiety symptoms and he will remain vulnerable to developing those kinds of symptoms in times of stress…

[203]     On balance, I think an appropriate assessment, for non-pecuniary damages is $175,000, less:

·       a reduction of 10%, or $17,500, to account for the contingency that Mr. Williams would have undergone the orthodontic treatment in any event and, as a result, would have suffered some pain associated with the treatment itself;

·       10%, or $17,500, to account for the contingency that if he underwent the orthodontic treatment, it would have triggered chronic TMJ disorder in any event; and

·       5%, or $8,750, to account for the contingency that if he underwent the orthodontic treatment and if that treatment triggered the chronic TMJ disorder, the resulting pain and disability would have in turn triggered the psychological conditions.

After accounting for those contingencies I award non-pecuniary damages to Mr. Williams of $131,250. To be clear, this award reflects the positive contingency that Mr. Williams’ functionality and quality of life may improve, even if his pain does not, if he follows the recommendations of his physicians.


$85,000 Non-Pecuniary Assessment for Dental Misalignment Coupled With Soft Tissue Injuries

October 18th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing damages for dental injuries sustained in a vehicle collision.

In this week’s case (Latek v. Krol) the Plaintiff was involved in a 2011 collision for which the Defendant accepted responsibility.  The Plaintiff suffered a jaw injury resulting in misaligned teeth and various soft tissue injuries.  He was an active individual and suffered a variety of soft tissue injuries which impacted his physical lifestyle.  In assessing non-pecuniary damages at $85,000  Mr. Justice Sewell provided the following reasons:

[6]             Mr. Latek was seen by his family doctor, Dr. Ostapkowicz, on May 25, 2011. At that time he was moving with difficulty and could hardly talk. His jaw was swollen and he was unable to chew. He complained of head and teeth ache, maxilla and jaw pain, difficulty in opening his mouth, neck pain, right and left shoulder pain, right lower back, hip and knee pain, as well as left foot pain.

[7]             Mr. Latek was examined by his family dentist, Dr. Gill, on May 25, 2011. At that time he was able to open his mouth only ten millimetres wide, as compared to a normal opening of 40-45 millimetres. Dr. Gill noted that 16 of Mr. Latek’s front teeth were loosened and significantly mobile. On a later examination on July 25, 2011, Dr. Gill observed that two of Mr. Latek’s teeth were misaligned inwardly.

[8]             Mr. Latek remains under the care of Dr. Gill for treatment of the injuries to his teeth. He currently wears braces to correct the misalignment of his teeth suffered in the accident. Once the orthodontic treatment is completed there is a possibility that Mr. Latek may require further treatment to his jaw but Mr. Latek’s prognosis is generally favourable.

[9]             Over time many of Mr. Latek’s symptoms resolved. His last recorded visit to Dr. Ostapkowicz was on December 11, 2012. On January 31, 2013, Mr. Latek attended an independent medical examination by Dr. Hirsch, a specialist in physical medicine and rehabilitation. By that time, Mr. Latek’s injuries were largely resolved except for pain in the low back, left hip and buttock and left knee. Dr. Hirsch’s opinion was that Mr. Latek’s injuries were soft tissue in nature. He found no evidence of any structural or ligamentous damage or any indication of structural injury to the spine. Dr. Hirsch characterized Mr. Latek’s lower back pain as mechanical, or pain that is exacerbated by activities and postures that stress or load the back…

[27]         Mr. Latek’s injuries, though extensive, were not severe or life threatening. He did not suffer an inordinate amount of pain from them. Most of his injuries resolved within about a year after the accident.

[28]         However, the impact of the injuries on Mr. Latek has been much more serious than they might have been on a more sedentary plaintiff. I am satisfied that much of Mr. Latek’s self-esteem and enjoyment of life were based on his physical prowess and his ability to engage in activities requiring a high level of physical fitness, endurance and strength.  Mr. Latek gave priority to those activities over the pursuit of a career in the two years before the accident.

[29]         I am satisfied that Mr. Latek’s inability to pursue his pre-accident activities is attributable to the injuries he suffered in the accident. In my view that loss has had a profound effect on Mr. Latek’s enjoyment of the amenities of life. While there is no expert medical evidence about the physiological and mental health impact of the loss of the ability to do what he did before the accident, I conclude that that loss together with his pain symptoms caused the personality changes exhibited by Mr. Latek since the accident…

[34]         Taking Mr. Latek’s injuries into account in the context of the authorities, and giving particular weight to the impact the injuries have had on Mr. Latek’s quality of life, I assess non-pecuniary damages at $85,000.


$100,000 Non-Pecuniary Damage Assessment For Bilateral Thoracic Outlet Syndrome

April 18th, 2012

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for bilateral thoracic outlet syndrome and other chronic soft tissue injuries.

In yesterday’s case (Olson v. Ironside) the Plaintiff was involved in a ‘signigicant collision’ in 2008.  ICBC admitted fault on behalf of the Defendant. The Court heard competing evidence with respect to the extent of the Plaintiff’s injuries and ultimately sided with the Plaintiff’s experts noting ICBC’s expert failed “to consider significant material facts“.

The 19 year old Plaintiff suffered multiple injuries, the most serious of which was bilateral thoracic outlet syndrome.  These were expected to cause a permanent partial disability limiting the Plaintiff for the balance of her working years.  In assessing non-pecuniary damages at $100,000 Mr. Justice Josephson provided the following reasons for judgement:

[60] The plaintiff has proved that, but for the accident, she would have continued her healthy, active and outgoing life style. I accept the plaintiff’s submission that the following injuries were caused by the accident:

1.       chronic soft tissue injuries with myofascial pain in her neck and upper back present on a daily basis;

2.       chronic soft tissue injuries with myofascial pain in her lower back present on an intermittent basis;

3.       chronic cervicogenic headaches present on a daily basis;

4.       exacerbation of her pre-existing migraines;

5.       post-traumatic thoracic outlet syndrome bilaterally;

6.       chronic sleep disruption;

7.       major depressive disorder, presently in remission;

8        post-traumatic stress disorder, presently in partial remission; and

9.       permanent right temporomandibular joint dysfunction.

[61] The accident had a dramatic effect on all aspects of this young plaintiff’s life because of the symptoms listed in the previous paragraph. She has learned to cope as best she can with those symptoms, but is unlikely to fully recover.

[62] Of the several case authorities cited by the plaintiff to assist the Court in determining non-pecuniary damages in the case at bar, the most helpful are Parfitt v. Mayes et al, 2006 BCSC 125; Houston v. Kine, 2010 BCSC 1289; Murphy v. Jagerhofer, 2009 BCSC 335;Prince-Wright v. Copeman, 2005 BCSC 1306; and Ashmore v. Banicevic, 2009 BCSC 211.  The non-pecuniary damages awards in these cases range from $80,000 to $120,000.

[63] After reviewing the authorities cited to me and considering the impact of the proven injuries on the plaintiff’s daily life, I award the plaintiff $100,000 for non-pecuniary damages, which I consider to be a mid-range award for the circumstances of this case.


$60,000 Non-Pecuniary Assessment for Medial Meniscal Tear and TMJ Injury

February 14th, 2012

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic knee and jaw injury sustained in a motor vehicle collision.

In this yesterday’s case (Daitol v. Chan) the Plaintiff was involved in a “serious” collision when the defendant dozed off and crashed into the Plaintiff’s vehicle.  Fault was admitted by the Defendant at the start of trial.

The Plaintiff suffered various injuries, the most serious of which was a meniscal tear in her left knee.  The Plaintiff’s family doctor summarized the following collision related injuries which the Court accepted:

[35] It was Dr. van Eeden’s opinion that the injuries sustained by Ms. Daitol during the motor vehicle accident were:

· New-onset neck-, mid-and-upper back, lower back, right shoulder and right hip area pain: soft tissue (muscular and connective tissue).  Pain in this area is largely resolved with some intermittent neck and back pain.

· Bilateral TMJ (jaw) pain, right side more than left.

· Pre-patellar bursitis of the left knee due to direct trauma to the knee.  This explained the initial swelling of the left knee patellar area, which resolved after a few months.

· Left knee PFS (patellofemoral syndrome) which is a condition of direct damage to the kneecap cartilage, causing pain with squatting, deep knee bending and climbing stairs.

· Left knee medial meniscus tear. This is consistent with the mechanism of injury of the MVA (direct knee impact), supported by direct pain upon palpation of the joint line, the MRI findings and the longstanding duration of symptoms.  This is still symptomatic today.

In assessing non-pecuniary damages at $60,000 Madam Justice Griffin provided the following reasons:

[53] In considering all of the medical evidence, and Ms. Daitol’s testimony, the evidence overwhelmingly supports a conclusion that Ms. Daitol is likely to have long-term continuing TMJ problems and left knee pain problems, as well as some right knee problems well into the future, and that these injuries were caused by the accident. ..

[67] I find as a fact that Ms. Daitol’s greatest discomfort in the years since the accident, and likely in the future, and greatest interference with her enjoyment of life, is due and will continue to be due to the pain in her left knee.  She continuously is required to use a left knee brace.  For a lengthy period of time, she was on crutches.  She limits her physical movements and hence her recreational activities due to the limits of her left knee as she does not want to set herself back…

[69] I find that she has suffered severe restrictions in walking and will continue to do so in the future and likely for the rest of her life.  I conclude that there is no readily apparent alternative exercise for Ms. Daitol at this stage of her life, other than walking.  As a 36 year old woman, the permanent impairment of her ability to walk any measurable distance or for any measureable period of time, without suffering extreme pain, is a significant loss.  While she still will have plenty of enjoyment in life, she will frequently suffer pain, both in her recreational pursuits and at work when she is required to move around to retrieve files or do other light tasks. ..

[74] In this case, I find it very significant that the one physical activity Ms. Daitol used to enjoy, walking, has essentially been lost to her.  While she can still walk somewhat, it is clear that she is no longer going to enjoy it, it is going to very limited in duration, and she is always going to fear and suffer the aftermath of increased pain.  Walking is essential to most of daily life, and is not a luxury that if lost, will not be missed.  For someone who has never had a natural inclination to pursue a range of physical activities, this is an even more significant loss as she is unlikely to have the natural athletic ability that will allow her to generate some other replacement activity.  While I find that the range suggested by the plaintiff may be high in these circumstances, I find the range suggested by the defendant to be far too low.

[75] I find that an appropriate award for general damages in the circumstances of this case, taking into account the left knee damage, the fact that it is causing some problems with the right knee, and the ongoing TMJ complaints, all caused by the accident, is $60,000.


$70,000 Non-Pecuniary Assessment for Mandibular Fracture

September 30th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mandibular fracture.

In this week’s case (Besic v. Kerenyi) the Plaintiff alleged he was assaulted by the defendant.  After being ‘punched from behind’ the Plaintiff was briefly knocked unconscious.  He suffered a mandibular fracture which needed to be wired shut.  He also lost two teeth.   He went on to suffer permanent nerve damage to his trigeminal nerve which caused numbness and drooling.

In assessing non-pecuniary damages at $70,000 Madam Justice Russell provided the following reasons:

[13] There is no doubt that Mr. Besic’s life has been altered by this incident.  He had to undergo surgery to repair the fracture and his jaw was wired shut for over a month.  He was placed on a liquid-only diet and, consequently, experienced some short-term weight loss.

[14] The long-term consequences have been more severe.  Two of Mr. Besic’s left molars were knocked out.  He has not had the recommended dental repair performed so the gaps in his mouth are still there, eight years later.  He either has to undergo surgery, risking further nerve damage, or live without these two teeth for the remainder of his life.

[15] The mandibular fracture caused permanent damage to the trigeminal nerve. As a result, Mr. Besic experiences numbness in his chin, lips and jaw.  This causes him to drool while he eats and is a source of embarrassment.  He does not notice if food has dripped, or become stuck, on his face because he cannot feel it.  He finds himself constantly wiping his face in an attempt to ensure no food is lingering there.

[16] The nerve damage has caused a prickling pain in his face and jaw.  Both this and the numbness are unlikely to improve.  There is also a possibility that a future facial injury could cause the numbness to worsen.

[17] Since the incident, Mr. Besic finds that he has issues with his speech.  Occasionally, he will slur his words or mumble, particularly when he becomes tired or is out in the cold.  He believes that this is as a result of the numbness, although his neurologist, Dr. Frank Kemble, has questioned whether that is, in fact, the cause.

[18] The mumbling is also a source of social awkwardness, especially at his work at the North Fraser Pre-Trial Center in Surrey, where he is a correctional officer.

[19] Mr. Besic still experiences pain in his jaw joints and muscles, as well as neuropathic pain.  His jaw is often stiff, particularly in the morning.  His temporomandibular joint clicks and pops, especially when he eats.  This results in discomfort and headaches. Mr. Besic also suffers extreme ear pain when he flies…

[34] I find $70,000 to be an appropriate amount for Mr. Besic’s injuries.  While Mr. Besic does not suffer from a deformity of the jaw or dramatic weight loss, like the plaintiff in Pete, he does suffer from some similar injuries, such as numbness in the face and jaw, as well as jaw pain.  He also experiences the resulting social embarrassment these injuries cause.


Non-Pecuniary Damages Update – the Kelowna Road Edition

June 19th, 2010

I’m writing today’s non-pecuniary damages case update in Kelowna, BC where I’m finishing up some work on a handful of ICBC claims.

Reasons for judgement were released earlier this week by the BC Supreme Court awarding non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for headaches and chronic pain following soft tissue and TMJ injuries.

In this week’s case (Ho v. Dosanjh), the Plaintiff was injured in a 2006 BC motor vehicle collision.   It was a rear-end crash and the Plaintiff’s vehicle sustained over $7,000 in damage.   The Plaintiff’s injuries continued to cause him problems by the time of trial (nearly 4 years after the collision).  Mr. Justice Silverman awarded the Plaintiff $75,000 for his non-pecuniary loss and in reaching this figure the Court noted the following about the extent and severity of the Plaintiff’s injuries:

[21]         As a result of the subject MVA, the plaintiff suffered pain in his neck, upper back, shoulder, jaw, numbness down the left arm, headaches, and insomnia.  He was on a variety of medications for a period of time and was unable to work.

[22]         The most serious and ongoing consequences of the MVA are the TMJ and the headaches, which leave him in constant pain.

[23]         Dr. Mehta confirmed that the plaintiff suffers from pain in his jaw, teeth, and  related areas, and that he suffers from headaches as a result of the MVA.

[24]         He testified that these areas of concern had not improved significantly in the four years since the MVA and further recovery was unlikely; that the plaintiff will suffer long-term symptoms that impact on all aspects of his functioning; and that he should avoid any activities that involve jumping or jarring.  Dr. Mehta recommended conservative care, including continuation of various treatments which were already ongoing, such as physiotherapy and massage.

[25]         Dr. le Nobel diagnosed the plaintiff with diffuse myofascial pain syndrome, TMJ, and chronic headaches.  He testified that the plaintiff’s capacity for recreational pursuits has been compromised and that this will continue for the foreseeable future.  He testified that, given the amount of time that has passed since the MVA, there is unlikely to be any further improvement.

[26]         Dr. Weiss confirmed that the plaintiff has chronic neck, back, and TMJ pain and that, in his opinion, “they will remain a long term issue.”  He noted that the plaintiff had a pre-existing degenerative condition, which made him more susceptible to injury from the MVA.

[27]         Dr. Gilbart provided an independent medical report and was called as a witness for the defence.  He confirmed that the MVA aggravated the plaintiff’s pre-existing degenerative condition in his neck.  He opined that the “prognosis for significant further improvement in his symptoms at this point is guarded.”  He noted that the plaintiff was asymptomatic prior to the MVA and was functioning at a very high level in all aspects of his life.  Dr. Gilbart also noted that, despite the post-MVA pain complained of by the plaintiff, he still appeared to be functioning at a very high level.  Finally, he opined that, given the pre-existing condition of the plaintiff as well as his prior history, he likely would have had flare-ups in the future even if the MVA had not occurred.

[28]          With respect to the jaw pain and headaches, Dr. Gilbart deferred to the expertise of Dr. Mehta.

[29]         Presently, the plaintiff has not returned to most of his pre-MVA athletic activities.  He no longer is involved in volleyball, softball, aggressive hiking, or skiing.  He does still rollerblade, although not as aggressively as before, and he has recently begun to swim with the encouragement of his girlfriend, who is a physiotherapist’s assistant.

[30]         Various friends testified that the plaintiff’s personality has changed.  He is moody, irritable, withdrawn, quiet, rarely socializes, and not as pleasant to spend time with as he used to be.  It was clear to me, when watching the plaintiff in the gallery of the courtroom that he was distressed when he heard this testimony.  He subsequently testified that he had not actually heard these witnesses say this before…

76]         I am satisfied that the plaintiff has suffered neck, back, jaw, and shoulder pain, and that he continues to suffer on a daily basis, particularly from TMJ and headaches.

[77]         I am satisfied that it has affected his recreational and athletic activities, which were an important part of his life.

[78]         I am satisfied that there is unlikely to be much further improvement.

[79]         I am also satisfied that, while he is suffering pain, he is nevertheless able to function in a reasonably normal way.  He certainly appeared to be reasonably comfortable when giving evidence.  He also continued to work full-time after a period of months during which he was unable to work, although I accept that work is much less physically comfortable for him than it used to be.

[80]         While I accept the evidence that he might have suffered another flare-up even in the absence of the MVA, I am satisfied that the MVA was, and is, the primary cause of his current difficulties.

[81]         With respect to ongoing treatments for the rest of his life, I am satisfied that, while these might provide him with some periodic temporary relief, they are not likely to result in any improvement.  Consequently, what the plaintiff might perceive as the “need” for such ongoing treatments, will be reflected as an aspect of the non-pecuniary award.

[82]         In all the circumstances, I award $75,000 for non-pecuniary damages.


Can You Successfully Sue For Injuries in a "No Impact" Collision?

May 26th, 2010

Further to my previous post on this topic, the law is clear that a Plaintiff can successfully sue a Defendant for physical injuries even if the Defendant never makes contact with a Plaintiff.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Bern v. Jung) the Plaintiff was injured in 2 separate incidents.  In the first incident the Plaintiff was riding a bike down a ramp into a parkade.  At the same time the Defendant was leaving the parkade and drove his vehicle ‘in the wrong direction in the entrance lane towards the ramp area‘.  The Plaintiff “immediately applied his brakes, losing control of his bicycle and falling over the handlebars.  He fell out into the roadway.   Fortunately (the Defendant) was able to avoid striking (the Plaintiff)”.

The Defendant argued that the Plaintiff should bear some responsibility.  Mr. Justice Powers disagreed and found that the Defendant was 100% responsible for the incident despite not striking the Plaintiff.  In reaching this decision Mr. Justice Powers noted as follows:

[13]        I find that the defendant has not proven that Mr. Bern was contributorily negligent.  Mr. Bern was entitled to assume that other people would be acting properly.  The evidence does not establish that his speed was excessive to the extent that it was negligent.  I find that the sole cause of the accident was Mr. Jung’s decision to take a shortcut and travel against the direction in which traffic was supposed to flow and could reasonably be expected to flow.

[14]        Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction.  Mr. Bern was forced to act quickly and to apply his brakes forcefully.  He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.

[15]        I find that Mr. Jung is 100% liable for the accident on June 21, 2007.

The Plaintiff suffered various injuries including pain in his clavicle, one or two fractured ribs, a fractured right triquetrum (a small bone on the outside portion of the back of the hand) and broken teeth which required dental work and root canals.

Some of the injuries were aggravated in a subsequent rear end accident.  The Court went on to award the Plaintiff $50,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of both accidents.  In reaching this figure Mr. Justice Powers summarized the effect of the Plaintiff’s injuries as follows:

[36] I find that Mr. Bern indeed was a physically active and motivated individual before the first accident.  He made an honest effort to attempt to return to his prior physical active state, but is continuing to have some difficulty because of the soft tissue injuries, leaving him with lingering symptoms.  The second accident aggravated those injuries and probably extended the time in which they will affect Mr. Bern.  The second accident aggravated the problems he had with his shoulder, neck and back.  The aggravation of his pain and problems he is suffering in attempting to exercise also added to his depression and anxiety.  I accept that on occasion he is anxious about driving and that this results from the second motor vehicle accident, but that it does not prevent him from driving…

[40] I do find, however, that on the balance of probabilities, in other words that it is more likely than not, that those symptoms will be reduced over time…

[44] I find that general damages should be $50,000.00.  I apportion $15,000.00 of that amount to the second accident.  I am satisfied that the second accident aggravated the existing injuries and contributed to some additional injuries.  However, the significant injuries and pain and suffering arise from the first accident.


$135,000 Non-Pecuniary Damages for Multiple Crush Syndrome, TOS and TMJ Injury

September 15th, 2009

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry that are worth reviewing for anyone involved in an ICBC Claim for damages for accident related Thoracic Outlet Syndrome.

In today’s case (Sauer v. Scales) liability was denied but Mr. Justice Cohen found the defendant 100% at fault for the collision.  In valuing the Plaintiff’s non-pecuniary damages at $135,000 Mr. Justice Cohen found as follows with respect to the severity of the accident related injuries:

I find that the plaintiff’s medical experts not only established the plaintiff’s diagnosis that he suffered from thoracic outlet syndrome, but also that of a multiple crush syndrome… he sustained a serious TMJ injury as a result of the accident, and that he should undertake dental reconstruction to treat this disorder…

[256] In the result, I find, on the whole of the evidence, that the plaintiff has proven to the requisite standard that as a result of the accident he sustained moderate to severe injuries to his eyes, teeth, jaw, neck and back.  I accept Dr. Fry’s opinion, confirmed by the other experts for the plaintiff who opined on this issue, that as a result of the accident the plaintiff has significant musculoskeletal and neurological symptoms with respect to his left arm and that the diagnosis is one of multiple crush syndrome, where he has evidence of cervical spine compression, of neurogenic thoracic outlet syndrome, of cubital tunnel syndrome and of carpal tunnel syndrome.

[257] I also find that the injuries he sustained in the accident and the requirement to take therapy and medication on a continuing basis since the accident to treat those injuries has had a significant impact on the quality of the plaintiff’s life, including sleeping, eating and physical fitness, as well as upon his social and personal relationships.

[258] I am mindful of the evidence that since the accident the plaintiff has experienced varying degrees of improvement in his overall symptoms; that to some limited extent he has been able to return to physical pursuits such as tennis, jogging and skiing; that he has been able to travel on family vacations; and, that during the time he was involved with the affairs of Global Synfrac he frequently commuted to Calgary to attend Board meetings.  I am also mindful of the evidence that his prognosis remains poor with regard to his TMJ disorder and thoracic outlet syndrome, and there remains the possibility of him having to undergo further surgical procedures to address these conditions.  Moreover, he will have to continue taking therapy and medications to treat his ongoing symptoms.

[259] Taking all of the above factors into account, I find that $135,000 is a fair and reasonable sum to award the plaintiff for general damages.

Paragraphs 233-236 of this case will be of particular interest to anyone who has undergone an ‘independent medical exam‘ with Dr. A.I Munro.   Dr. Munro has conducted many of these exams on behalf of ICBC and often disagrees with the diagnosis of Thoracic Outlet Syndrome.  Mr. Justice Cohen held that “no weight should be given to the opinions of Dr. Munro on this issue (the Plaintiff’s Thoracic Outlet Syndrome)”.  In reaching this conclusion extensive portions of Dr. Munro’s cross examination were reproduced which I set out below:

[234] In the report of Dr. A.I. Munro, a specialist in thoracic and cardiac surgery, dated March 9, 2006, he concluded that as a result of the accident the plaintiff sustained a mild soft tissue injury of the neck and that he did not have thoracic outlet syndrome.  He also concluded that the plaintiff had a left ulnar entrapment syndrome which was causing his disability, and that the bilateral carpal tunnel syndrome had recovered, stating that, “only one hand was on the steering wheel so it cannot be due to the MVA.”  He also said that the plaintiff’s disability is associated with numbness and weakness caused by a left ulnar entrapment syndrome plus cervical nerve root pains.  However, despite his experience as a thoracic surgeon, Dr. Munro testified that he may have done one thoracic outlet syndrome surgery between the years 1994 to 2001.  He said that he may have done one at St. Paul’s Hospital, but he was not sure, and otherwise a previous one would have been done at UBC Hospital.  He also testified:

Q         — at VGH?  Mm-hm.  And what type of surgeries were you performing over that period from ’68 to 1990, if I have the years roughly correct.

A          General thoracic surgery and cardiac surgery, both closed and open heart surgery.

Q         Okay.  And of the — I take it there were other surgeons who performed a similar practice to yours?

A          I suppose all the surgeons had slight variations in their practices.

Q         Mm-hm.  Were any of these surgeons –

A          Some of them were purely thoracic, some of them were purely cardiac, and some were mixed.

Q         Okay.  Were any of the ones that were purely thoracic involved with thoracic outlet syndrome and surgeries on that condition?

A          Early on, no.  Probably I saw most of them until probably Dr. Fry, Dr. Nelems came on staff, and they saw most of the thoracic outlet surgery after that.

Q         And when would that be?

A          I’m not sure of the actual dates.

Q         Was it shortly after –

A          Probably in the — my guess would be the early ’80s, –

Q         And prior to 2001 when you were at VGH after Dr. Fry and the other physician you mentioned began to specialize, those cases would be — TOS cases would be sent to them for –

A          Yes.

Q         — assessment at surgery; correct?

A          Yes.

Q         Yeah.

A          The second aspect is looking at a specific five-year period and analyzing what cases I had seen during that five-year period.

Q         And what five-year period is this?

A          That was 2002, 3, 4, 5 and 6.

Q         Mm-hm.  Mm-hm.  And — and that — that is where you were giving me these approximate numbers?

A          Correct.

Q         Okay.  So during that period, there were somewhere between 25 to 30 per cent that were involving non-severe neck injuries that — where — that could have been, in your opinion, thoracic outlet syndrome issues?

A          No.  There was a fair percentage of people who had such bizarre symptoms and signs that you couldn’t fit them into any logical medical diagnosis, –

Q         Mm-hm.

A          — often associated with psychiatric disease.

Q         Mm-hm.  But other specialists had assessed them as thoracic outlet syndromes?

A          Yes.

Q         Mm-hm.

A          These were all people who had been sent to me to consider this diagnosis.

Q         Mm-hm.  Now, going back to my question in terms of your — oh, maybe I’ll finish.  In that five-year period, I take it, Doctor, there were people who you did concur with the other physician that the diagnosis was thoracic –

A          In that particular –

Q         — outlet syndrome?

A          — five-year period, no.  In the previous five years, yes.

Q         Okay.  And how many occasions was that, do you recall?

A          In the previous five years, –

Q         Mm-hm.

A          — I think it was two, but I cannot tell you for sure.

Q         Two of approximately 30 per year?  Thirty reports a year?

A          Probably at that time I was seeing less than 30 per year.

Q         Mm-hm.

A          I do not have the exact figures –

Q         Sure.

A          — for that previous –

Q         Okay.

A          — five-year period.

Q         So — but in the last 10 years it would be reports in the order of several hundred reports, and of those several hundred reports you concurred with the other specialists on two occasions that you can recall?

A          Yes.


$45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

May 20th, 2009

Reasons for judgement were released today (Romanchych v. Vallianatos) by the BC Supreme Court, Vancouver Registry, awarding just over $132,000 in total damages to a Plaintiff injured in a 2006 BC Motor Vehicle Collision.  

The collision was a rear-ender on the Alex Fraser Bridge in Delta, BC.  The crash was forceful enough to write off the 24 year old Plaintiff’s vehicle.

Madam Justice MacKenzie of the BC Supreme Court summarized the Plaintiff’s injuries as follows:  

I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms improved over time, they have not resolved.   She currently suffers chronic neck and shoulder pain. She can manage her pain  level if she avoids aggravating her injuries by limiting her activities. The plaintiff is  also vulnerable to future episodes of jaw pain. I find in favour of the plaintiff’s  submission, except for small adjustments to the quantum of damages claimed. 

In awarding $45,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court engaged in the following analysis:

Conclusion on Non-Pecuniary Damages 

[71] On the whole, the expert opinions support a strong inference that the plaintiff’s injuries are chronic and that they will continue to affect her permanently. Given that she must limit her activities to minimize and manage her pain, the  evidence shows that it is probable that her pain and resulting limitations will continue  indefinitely. 

[72] I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms have improved over time, they have not resolved.   

[73] I also find that the jaw symptoms which arose in August 2007 were indeed caused by the accident of July 4, 2006. I also observe that the jaw symptoms experienced in December 2006 may have been related to the accident as well.    

[74] Both counsel rely on the non exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at paras. 45-46. The award for general damages, will of course, vary according to the specific circumstances of the individual case, but the factors include:   

(a) age of the plaintiff;  

(b) nature of the injury;   

(c) severity and duration of pain;   

(d) disability;    

(e) emotional suffering; and   

(f) loss or impairment of life;    

(g) impairment of family, marital and social relationships;   

(h) impairment of physical and mental abilities;   

(i) loss of lifestyle; and   

(j) the plaintiff’s stoicism (as a factor that should not, generally speaking,   penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).   

[75] The defendant relies upon the following cases as being reasonably analogous to this case and as supporting an award in the range of $15,000 to $22,500 for general damages: Kain v. Kirkman, 2006 BCSC 1770; Nickerson v. Allen Estate, 2006 BCSC 562; Aulakh v. Poirier, 2006 BCSC 2027, and my own decision in Moore v. Cabral, 2006 BCSC 920. However, those cases are all distinguishable from this case.   

[76] The plaintiff relies upon the following cases as supporting an award of $50,000 for general damages in this case: Henri v. Seo, 2009 BCSC 76; Chin v. McCabe, 2006 BCSC 1589; and Pavlovic v. Shields, 2009 BCSC 345. In my view, these cases are reasonably similar to this case and reflect analogous general damages.    

[77] Therefore, an appropriate award of non-pecuniary damages in this case is $45,000

One of the points of interest in this case was the courts comments on Dr. Goldstein. an oral medicine specialist, who ICBC often retains in jaw injury cases.  His evidence was rejected over the Plaintiff’s treating oral medicine specialist Dr. Gardner.  

Specifically, in finding bias in doctor Goldstein’s evidence, Madam Justice MacKenzie commented as follows:

[66] Dr. Goldstein’s bias in favour of the defendant’s case became evident during cross-examination. His attempt under cross-examination to distance himself from the meaning of the phrase emphasized in the above quote damaged his reliability as a witness. 

[67] I also view Dr. Goldstein’s opinion with scepticism because he was not forthright in his report about the fact that flexion extension injury from motor vehicle accident trauma could cause jaw symptoms. Under cross-examination, counsel for the plaintiff put one of Dr. Goldstein’s own articles to him in which he noted the close correlation between TMD and motor vehicle accident trauma. 


Car Accidents, Post Trauma Headaches and ICBC Claims

July 1st, 2008

Short clear reasons for judgment were released by Mr. Justice Savage of the BC Supreme Court yesterday awarding a Plaintiff compensation for car accident related headaches.

This is one of the crispest judgements I have read in quite some time.  I recommend reading the full judgment for anyone advancing an ICBC pain and suffering claim for headaches as the issues are succinct in this case and it does not get bogged down in legalese.

The Plaintiff was injured when she was 4 years old.    She was in a proper infant car seat in her family van when it was broadsided by the defendant who failed to stop at a stop sign.  The accident was in 2002 and the claim finally went to trial in 2008.  For those of you not well versed in ICBC injury claims I should point out that there is nothing unusual about this timeline.  In infant injury claims in BC, most limitation periods are delayed until the infant’s 19th birthday.  One of the reasons for this is because doctors often can’t give a prognosis for an infant’s injuries until they reach adulthood.

In this case most of the Plaintiff’s injuries were not disputed.  She suffered from a broken tooth, some injury to her legs which healed in a few months, soft tissue injuries to her neck and back which took about one year to heal.

What was at issue was headaches.  The Plaintiff claimed that she had on-going headaches over 5 years after the accident and that these were caused by the accident.  The defendant said there are other potential causes for the headaches such as migraines or other trauma.  It is worth pointing out that such a ‘causation’ argument is typical in most ICBC injury claims that go to trial.  Usually the court hears competing theories about the extent of injury and the cause of injury.  (click here to see an example of just how far apart 2 sides can be in an ICBC injury case involving headaches)

The court accpeted that the ongoing headaches were indeed caused by the accident and summarized the accident related injuries as follows: “very mild injuries post-accident that have completely resolved with ongoing significant but somewhat sporadic headaches continuing requiring the occasional use of Tylenol.”

Mr. Justice Savage noted that the headaches have persisted for some six years althogh there has been some improvement.  He went on to value the non-pecuniary loss (pain and suffering) for these headaches at $35,000.