ICBC Law

(photo depicting muscle deformity from ruptured distal bicep tendon)

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for a rather unique injury, a ruptured bicep tendon.

In this week’s case (Taylor v. Grundholm) the Plaintiff was involved in motor vehicle collision.  His vehicle was struck by the Defendant’s as the Plaintiff “opened the driver’s side door to reach into the back to retrieve a box of soap….His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred.”

The Plaintiff’s vehicle sustained significant damage and was written off.  Fault for the collision was admitted.

The Plaintiff sustained a variety of soft tissue injuries.  The Plaintiff also tore his bicep tendon which caused a muscle deformity.  The most contentious issue was whether the tendon was torn as a result of the collision.  Ultimately the Court concluded that it was and went on to assess the non-pecuniary loss for this injury at $90,000.  In reaching this decision Madam Justice Maisonville noted as follows:

[42]         I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury — now described by Dr. Leith as a “noticeable deformity” — prior to the accident. The evidence from the physicians was that there would have to have been a significant event to cause this type of injury.

[43]         The biceps tendons are attached to the bone, which anchors the muscle.  When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye’s arm. This is a noticeable deformity…

49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength.  Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength…

[60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88:

The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.)…

[67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages..

The Court went on to reduce this award by 10% finding that the Plaintiff failed to mitigate his damages by not attending physiotherapy which was recommended by his treating physicians.

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• Video Surveillance

This case is also worth reviewing for the Court’s discussion of the impact of video surveillance in injury litigation.

As I’ve previously posted, video surveillance can and does occur and it can be intrusive.  However, video surveillance in and of itself does not harm a person’s injury claim.  Damage is only done if the video demonstrates that the Plaintiff has not been truthful about their injuries / limitations.   In today’s case Madam Justice Maisonville was quick to dismiss the impact of video that did not contradict the Plaintiff’s evidence as can be seen from the following passage:

[50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver’s seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.

Reasons for judgement were released today awarding damages as a result of injuries and loss from a 2002 BC motor vehicle collision.

The Plaintiff was a passenger.  He was involved in a single vehicle accident.  The collision was significant and is described at paragraph 2 of the reasons for judgment as follows:

                The thirty-two year old plaintiff was travelling from Prince Rupert to Terrace as passenger with three children in a car driven by the defendant, Crystal Caroline Bird (“Bird”), when Bird lost control of the vehicle after encountering ice on the highway.  The vehicle, a 1998 Toyota van owned by Bird, crossed the centre line of the highway and rolled twenty feet down an embankment, flipping over before it landed.  According to Wilson, he lost consciousness briefly in the accident and felt pain in his shoulder, elbow and left knee immediately.  He bled from his head, having hit the window.  His back hurt.  A passing driver was hailed and managed to open the passenger door.  Wilson got out of the vehicle and sat, waiting for the ambulance.  The vehicle was very significantly damaged.

The Plaintiff sustained some fairly serious injuries and these, along with their recovery, are summarized well at paragraph 31 of the judgement which I reproduce below:

The plaintiff suffered a dislocated right shoulder, dislocated left elbow, contusion and sprain of the left knee, mild sprain of the cervical spine, and multiple contusions and bruises in the motor vehicle accident of November 30, 2002.  I accept Dr. Kokan’s assessment that the plaintiff’s left knee was not dislocated in the accident but was probably sprained and has fully recovered.  The right shoulder had largely resolved by August 2003 but remains vulnerable to re-injury.  The left elbow has been the greatest problem, heightened by the lengthy wait for surgery.  The plaintiff has lost about ten percent of the movement in this elbow and has residual tenderness.  The incapacity is, however, mild and the plaintiff still has a good range of motion in the elbow.  The left knee had largely resolved to its pre-accident state by June 2005.  It is difficult to ascribe continuing lower back pain to the accident.  I conclude that there was some accerbation of the historical back pain in the accident but do not find that continuing problems can be attributed to the accident.  The plaintiff’s scalp laceration and facial abrasions have healed.

In awarding $85,000 for the Plaintiff’s Pain and Suffering the court made the following observations:

[34]            Wilson’s injuries here are more significant that in either Thorp or Foreman.  The plaintiff required two surgeries for the left elbow dislocation (including a closed reduction) and a closed reduction of the dislocated right shoulder, among other injuries described above.  Wilson has greater permanent restriction in movement of the left elbow than did the plaintiff in Thorp and still has nagging pain.  He is stoical about the continuing pain and discomfort.  Although I do not find that the permanent elbow restriction hinders recreational activity, the plaintiff’s right shoulder injury caused pain when swimming until June 2005.  The plaintiff suffered while he waited for surgery between 2003-2006.  I assess non-pecuniary damages at $85,000.

In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.

The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.

The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:

[26] In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.

The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement.  This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury.  The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss.  After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.

Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.

This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow.  The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement.  If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.

Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.