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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 Shoulder Injury Cases’ Category

$50,000 Non-Pecuniary Assessment for Shoulder Tendinopathy

November 23rd, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a shoulder injury caused by a vehicle collision.

In today’s case (Rogers v. Situ) the Plaintiff was involved in a 2011 rear end collision the Defendant admitted fault for.  The Plaintiff sustained an onset of symptoms related to shoulder tendinopathy as a result of the collision.  In assessing non-pecuniary damages at $50,000 Mr. Justice Butler provided the following reasons:

[21]         I find that the accident did trigger the onset of his symptoms associated with the tendinopathy. There is no basis on which I could conclude that it would have become symptomatic without the accident. As a result, I conclude that the accident caused the injury and that there is no basis to reduce the award on the basis of the prior shoulder injury.

[39]         Dr. Ezekiel summarizes the course of the injury as follows:

…The accident resulted in the onset of pain in the patient’s left shoulder, which was subsequently found to be due to tendinopathy of the supraspinatus muscle. Mr. Rogers was treated initially with anti-inflammatories and physiotherapy but eventually underwent a surgical procedure to decompress the tendon. At the present time, Mr. Rogers has improved considerably but still finds he is unable to do some activities that are more physically demanding.

[40]         In summary, I find that the plaintiff suffered an injury to his left shoulder which has caused pain and has impacted his ability to carry on some of his recreational and daily activities. He will continue to suffer some pain and restriction in his activities. However, the impact of the shoulder injury is much less than the plaintiff contends. He sought little in the way of medical attention for the condition until the end of 2012. I conclude he was more concerned with his other medical difficulties; both the pre-existing chronic pain and the ruptured tendon and pulmonary embolism. His activities were impacted initially and will continue to be impacted by the shoulder injury but not to the extent he alleges.

[45]         I agree that the plaintiff’s pre-accident status is relevant. He was suffering from chronic pain which restricted his activities. His evidence regarding the level of his activities prior to the accident was misleading. He made no mention of his other painful conditions. When I take those into account, along with the other unrelated medical conditions that have impacted his enjoyment of life since the accident, I conclude that a fair award for non-pecuniary damages is $50,000.


$85,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

August 24th, 2016

Adding to this site’s archived ICBC case summaries involving shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, assessing damages for a rotator cuff tear requiring surgical intervention.

In today’s case (Mitchell v. Martin) the Plaintiff was involved in a 2009 motorcycle collision caused by the Defendant where “the plaintiff was thrown from his motorcycle and injured his right shoulder, neck and back and suffered from bruising and road rash“.

The Plaintiff’s most serious injury was a rotator cuff tear which required surgical intervention and the Plaintiff was left with chronic pain in the shoulder.  In assessing non-pecuniary damages at $85,000 Madam Justice Young provided the following reasons:

[41]         I am satisfied on a balance of probabilities that the labral tear and the rotator cuff tear were caused by the Accident and that the majority of the plaintiff’s right shoulder injuries were caused by the Accident. I prefer the evidence of the surgeon, who not only reviewed the MRI and treated the plaintiff, but actually visualized the shoulder joint during surgery…

[61]         The plaintiff suffered considerable pain and instability of his shoulder while waiting for surgery. This was a time period during which he saw no improvement. After 12 months, he then had to undergo the pain of surgery and a six-month recovery period. The surgery distinguishes this case from many of the defendant’s cases that fall in the lower range.

[62]         The plaintiff is a stoic, motivated individual who enjoyed an excellent recovery because of his rehabilitation efforts so that he has a stable, fully mobile shoulder but he is not without chronic pain. There is no indication that this level three out of 10 pain is going to improve and I expect, given that it has not improved in six years, he will continue to experience it.

[63]         His shoulder pain will affect his productivity at work and in his recreational activities, which impact his enjoyment of life. He does not suffer the level of pain that Ms. Cimino does, however, I take into consideration that award is seven years old and may have been higher in 2016.

[64]         I award $85,000 for non-pecuniary damages.


$80,000 Non-Pecuniary Assessment for Permanent, Partially Disabling Shoulder Injury

June 27th, 2016

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $80,000 for a permanent, partially disabling, shoulder injury.

In today’s case (Mocharski v. Ngo) the Plaintiff was involved in a 2011 collision that the Defendant motorist was found fully at fault for.  The Plaintiff suffered a left shoulder injury which, despite surgical intervention, remained problematic and resulted in a permanent partial disability.  In assessing non-pecuniary damages at $80,000 Mr. Justice Abrioux made the following findings:

[105]     When I apply the principles to which I have referred to the evidence in this case, I make the following findings of fact and reach certain conclusions. As a result of the Accident, the plaintiff sustained the following injuries:

(a) a left shoulder glenohumeral Iabral tear and acromioclavicular joint pain,

(b) left shoulder impingement syndrome,

(c) myofascial pain syndrome affecting the neck,

(d) cervicogenic headaches,

(e) myofascial pain syndrome affecting the back.

[106]     I also find that:

(a) the plaintiff sustained moderately severe soft tissue injuries in the Accident as well as an injury to the left shoulder that ultimately required surgical intervention;

(b) he is left with a permanent partial disability to his left shoulder and will continue to suffer from that condition;

(c) while the symptoms arising from the non-shoulder injuries have lessened considerably over time, the plaintiff was essentially totally incapacitated from a physical perspective for a period of approximately one year due to the injuries sustained in the Accident. These symptoms have and will continue to provide him with occasional discomfort in the future depending on the activities he performs…

[115]     Each case turns on its own facts. Taking into account the Stapley v. Hejslet factors, I award the plaintiff $80,000 under this head of damages.


$75,000 Non-Pecuniary Assessment For Grade 2 Soft Tissue Injuries With Unknown Prognosis

April 19th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.

In today’s case (Cyr v. Kopp) the Plaintiff was involved in a rear end collision in 2011.  Fault was admitted on behalf of the rear driver.  The Plaintiff sustained Grade 2 soft tissue injuries to his neck and these also effected a pre-existing shoulder injury caused in an altercation with police.  The prognosis was not known as the Court accepted that the Plaintiff was not compliant with all suggested treatments and accordingly his injury may still be subject to improvement.

In assessing non-pecuniary damages at $75,000 then reducing this figure to $60,000 on account of the Plaintiff’s failure to mitigate Mr. Justice Weatherill provided the following reasons:

 

[119]     The plaintiff is 39 years old. 

[120]     The medical experts are in agreement, and I find, that the plaintiff likely suffered a grade 2 whiplash injury as a result of the MVA.  That injury affected the plaintiff’s right cervicothoracic region, extending to the right shoulder.  He also experienced the onset of migraine headaches.

[121]     I accept the plaintiff’s evidence that these MVA-related injuries continue to persist.  I also accept Dr. Bowlsby’s opinion that, while they should have healed long ago, the pain fibers in some people do not turn off over time and sometimes get worse.  Dr. Bowlsby opined that, in his experience, approximately 10% of people who suffer whiplash injuries prove to be difficult to treat and those injuries can be a source of significant and sometimes permanent disability.

[122]     I am unable to conclude that the plaintiff is one of those 10% because he refused to initiate the physiotherapy treatments that were repeatedly recommended by his medical practitioners.  This is a case of a patient thinking that he knows better than his health practitioners: Middleton v. Morcke, 2007 BCSC 804 at para. 49…

[131]     Here, the plaintiff’s pre-existing right shoulder injury was continuing to cause him pain and discomfort at the time of the MVA.  The MVA caused him to suffer an upper body soft tissue injury which continues to persist.  His prognosis for recovery continues to be unknown.

[132]     After having considered all of the foregoing evidence, the submissions of counsel and the case authorities they have cited, I consider that, subject to an adjustment for his failure to mitigate, which I will deal with in the paragraphs that follow, an award of $75,000 fairly compensates the plaintiff for his pain and suffering and loss of enjoyment of life and amenities…

[139]     The defendants are entitled to an adjustment in the plaintiff’s damages to account for my finding of fact that he would have recovered from his MVA-related injuries sooner if he had implemented and maintained the recommended physiotherapy programs.  I am satisfied that a deduction of 20% is appropriate. 

[140]     Accordingly, the plaintiff is entitled to an award for non-pecuniary damages equal to $75,000 x 80% = $60,000.


$65,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

June 4th, 2015

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $65,000 for a chronic shoulder injury.

In the recent case (Zhang v. Ghebreanenya) the Plaintiff was injured as a passenger in a taxi which lost control and left the roadway.  The taxi driver was found fully liable.  The collision caused a chronic shoulder injury to the plaintiff with symptoms persisting ot the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Grauer provided the following reasons:

[27]        In his evidence at trial, however, Dr. Masri explained it this way.  Because of the symptoms of pain caused by the effect of the accident on his pre-existing degenerative condition, Mr. Zhang’s shoulder became deconditioned and weak from lack of use.  Normally, the remedy for this, once the pain subsides (as it largely has) is aggressive therapy to recondition the shoulder muscles.  In Mr. Zhang’ case, however, aggressive reconditioning is not possible because of the lack of an intact rotator cuff (the degenerative process).  But for the accident, he would not be in that same state of weakness.  Because of his pre-existing degenerative condition, he is unable to remedy it.

[28]        This explanation is consistent with the evidence of Dr. Kokan, and I accept it.  I find that because of the accident, Mr. Zhang has been left with significant weakness and intermittent pain in his right shoulder.  That a pre-existing degenerative condition contributed to this state of affairs does not interrupt the chain of causation between the accident and Mr. Zhang’s current condition: Athey v Leonati, [1996] 3 SCR 458.

[29]        In assessing Mr. Zhang’s loss, however, I take into account that his original pre-accident condition included arthritis in the right elbow that limited the strength and range of motion in that joint.  I also take into account what I consider to be a real and substantial possibility that the pre-existing rotator cuff tear would have led to symptoms of shoulder weakness and discomfort in the future in any event, albeit to a lesser extent than he now faces.

[30]        With respect to the impact of his injuries, I observe that Mr. Zhang had retired from TCM long before this accident.  The evidence of his daughter and granddaughter did not support the contention that he has been frustrated in attempting to pass on the family skill set.  The evidence does indicate that he stopped driving his youngest granddaughter to school and lessons after the accident, but this coincided with his eldest granddaughter obtaining a motor vehicle.  Nevertheless, I am satisfied on the whole of the evidence that the significant ongoing weakness in Mr. Zhang’s right shoulder and arm has had an impact on his ability to drive.  I also find that he has been impaired in his ability to prepare food (particularly to chop vegetables), to perform at least some aspects of household cleaning, and to lift heavy objects.  Socially, he goes out much less than he used to before the accident…

[54]        The plaintiff particularly commended to my attention the Gaudreault case, which involved a 43-year-old plaintiff who suffered tendon tearing in the shoulder, and had pre-existing but asymptomatic degenerative changes in the shoulder.  Mr. Justice Thompson awarded $75,000.  I note, however, that by the time of trial, the plaintiff’s shoulder continued to trouble him all day, every day, with daily neck pain and low back pain. 

[55]        No two cases, of course, are the same.  In this case, taking into account the plaintiff’s age, his pre-existing condition, the limitations imposed by his injury, the fact that the weakness will be ongoing, the impact on his housekeeping capacity and his ability to participate in family and social life, I assess his damages at $65,000.


$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

April 1st, 2015

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic shoulder injury caused by a collision.

In today’s case (Gaudrealt v. Gobeil) the Plaintiff was involved in a ‘forceful‘ rear-end collision in 2009.  He suffered various injuries the most serious of which was a chronic shoulder pain.  In assessing non-pecuniary damages at $75,000 Mr. Justice Thompson provided the following reasons:

[15]        I find that most of the right shoulder abnormalities shown by the X-ray and MRI imaging pre-date the MVA. I conclude that the superficial tearing of the bursal surface of the supraspinatus tendon and the biceps tendinitis is a direct result of the MVA. The other right shoulder changes were pre-existing, albeit asymptomatic and rendered symptomatic by the MVA.

[16]        The medical evidence firmly supports the conclusion that the MVA has put the plaintiff in a position where he ought not to do physical construction work. However, I do find that if the MVA had not happened, there is a measurable risk that the asymptomatic pre-existing right shoulder abnormalities would have progressed and at some point interfered with the plaintiff’s ability to do this heavy type of work. Doing the best I can with the evidence available, I think this contingency to be on the order of a 50% risk within ten years.

[17]        There is a chance that Mr. Gaudreault will need rotator cuff surgery to repair MVA-related damage, but I think this is unlikely. He seems disinclined to that alternative. If he continues to stay away from heavy physical work, I think it is highly likely that he will avoid surgery…

[22]        The proper approach to the assessment of non-pecuniary damages is well-settled and is encapsulated in the often-cited passage at paras. 45-46 in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46. The plaintiff urges an award of $125,000, emphasizing the expected permanency of his partial disability, the chance that shoulder surgery will be necessary, the interruption of his ability to work without restriction, and the impact on his enjoyment of golf and tennis. The defendants submit that $40,000 would be proper compensation. They emphasize that shoulder problems may have emerged in any event of the MVA. They submit that the plaintiff has taken no therapy treatment in the past two years, he has taken no pain medications since the year following the MVA, and he no longer sees his family doctor for his MVA-related complaints — all of which indicate that the plaintiff is not in a great deal of pain. They contend that there has been little in the way of lifestyle interruption, pointing to the plaintiff’s ability to continue to referee soccer and the plaintiff’s admission that it is unlikely that he would have spent much time golfing or playing tennis in the busy years since the accident.

[23]        The plaintiff cites White v. Wiens, 2015 BCSC 188 ($100,000); Ostrikoff v. Oliveira, 2014 BCSC 531 ($105,000); Morlan v. Barrett, 2012 BCCA 66 ($125,000); Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455 ($125,000); and Power v. White, 2010 BCSC 1084 ($135,000). The defendants cite Jordan v. Lowe, 2012 BCSC 1482 ($35,000); McKenzie v. Mills, 2013 BCSC 1505 ($40,000); Bissonnette v. Horn, 2012 BCSC 518 ($50,000); Jorgensen v. Coonce, 2013 BCSC 158 ($60,000); and Bansi v. Pye, 2012 BCSC 556 ($75,000).

[24]        There is no question that Mr. Gaudreault has suffered a permanent partial disability that interferes with his work capacity, but he is not experiencing the degree of pain, emotional disturbance and interference with his lifestyle featured in the cases cited by his counsel. I fix the plaintiff’s non-pecuniary damages at $75,000.


$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

February 27th, 2015

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury sustained in a vehicle collision.

In today’s case (Mir Tabatabaei v. Kular) the  Plaintiff was involved in a 2010 collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[66]         It is undisputed that the accident caused the plaintiff’s injuries. While pain is subjective I do not doubt the plaintiff’s complaints of pain in his neck which disrupts his sleep and pain in his injured right shoulder which interferes with physical activity including his work as a carpet cleaner. The injuries have affected the plaintiff’s ability to work as much as he did before the accident. He works more slowly than before, cannot complete as many jobs and cannot work as many hours in a day due to the pain in his shoulder. I am not persuaded the plaintiff’s drug use had any appreciable impact on his ability to earn a living. The comment recorded by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to anything specific, such as his employment, and I am not convinced on a balance of probabilities the plaintiff complained that opium use was affecting his job.

[67]         Dr. Tarazi’s opinion provides a deeper examination of the benefits and risks of surgery in the plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury and his opinion that surgery is not indicated due to the real possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find the plaintiff’s decision not to have surgery is a reasonable one…

[71]         The plaintiff is 53 years of age. He experiences pain in his right shoulder when he exerts himself. He experiences pain in his neck at night which disrupts his sleep. There is no cure for either of these conditions. His shoulder may get worse and require him to undergo surgery which in turn carries risks. Notwithstanding the pain and discomfort, the plaintiff has continued to work to the extent that he is able and to participate in his previous leisure activities, such as biking and swimming, albeit it to a lesser extent than before the accident. I agree with counsel for the plaintiff that Wong is very similar in terms of the type of injury involved; however, the plaintiff in that case had an additional injury to her knee. Nonetheless, it is a helpful benchmark. In all the circumstances I find an award of $75,000 for non-pecuniary damages is appropriate.


$40,000 Non-Pecuniary Assessment For Chronic Neck and Shoulder Soft Tissue Injuries

February 2nd, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and plateaued soft tissue injuries.

In today’s case (Mothe v. Silva) the Plaintiff was rear-ended by a tractor-trailer operated by the Defendant.  Fault was admitted.  The Plaintiff suffered soft tissue injuries to his neck and shoulder and his symptoms persisted to the time of trial and were expected to continue.  The Plaintiff suffered other symptoms which cased some hardship in his life but the court found these were unrelated to the collision.  In assessing non-pecuniary damages at $40,000 Madam Justice Ross provided the following reasons:

[106]     I agree with the submission of the defendants that the functional limitations described in Mr. Shew’s analysis are either in whole or in large part the consequence of the chronic left wrist problems stemming from the Workplace Injury or the consequence of the C7 radiculopathy. I have found that the motor vehicle accident did not cause or contribute to this condition. However, Mr. Mothe does suffer neck and shoulder pain and headaches as a consequence of the motor vehicle accident. With respect to these injuries, his recovery has plateaued and the condition is chronic. These injuries have not, with the modest exception discussed below, prevented Mr. Mothe from working but he does so in pain. These injuries have contributed to fatigue and a discouraged, pessimistic outlook. They have reduced his enjoyment of recreational activities and his family life.

[107]     In all of the circumstances, I award $40,000 for non-pecuniary loss.


$110,000 Non-Pecunairy Assessment For Chronic Rotator Cuff Injury

September 29th, 2014

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic rotator cuff injury.

In today’s case (Pistruga v. Garcia) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a rotator cuff injury which underwent arthroscopic surgery which did little to improve the plaintiff’s chronic symptoms.  In addition to this the Plaintiff suffered from a major depressive disorder attributed to the consequences of this crash.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyeat provided the following reasons:

[100]     Mr. Pistruga is now 50.  I find that he has suffered and continues to suffer both physically and emotionally as a result of the negligence of Mr. Garcia.  I am also satisfied that his pain and suffering has resulted in an impairment of his family life – a restriction of his household duties and a deterioration of his relationship with his wife and son.  I find that Mr. Pistruga suffered severe pain for about three months after the First Accident and for about four months after the shoulder surgery.  Mr. Pistruga has had and continues to have pain in his shoulder.  As a result of the First Accident and the operation that was necessary as a result of the injuries suffered in the First Accident, he continues to suffer and I find that he will continue to suffer emotionally from the injuries caused by the First Accident and that his symptoms can only be partially lessened by prescription and non-prescription medicine.  While medication appears to have eased his mood swings, I find that he remains suspicious and moody from time to time as well as being subject to panic attacks.

[101]     As a result of the First Accident and the necessary operation, Mr. Pistruga has seen an impairment of his recreational activities as well.  Regarding his physical situation, I accept the opinion of Dr. Vorobeychik that the prognosis is “guarded”.  Regarding the emotional health of Mr. Pistruga, I accept the opinion of Dr. Levin that the prognosis for full recovery relating to his chronic major depression disorder “remains guarded and he most likely will require ongoing maintenance psychopharmacological treatment”.

[102]     In the circumstances, I am satisfied that non-pecuniary damages of $110,000 should be awarded.


$100,000 Non-Pecuniary Assessment for Fractured Shoulder and Wrist

August 26th, 2014

Adding to this site’s archived cases addressing non-pecuniary damages for wrist and shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for orthopaedic injuries to these areas.

In today’s case (Azam v. Bilaya) the Plaintiff was involved in two motorcycle collisions.  Fault was admitted in both.  In the first collision the Plaintiff suffered a broken shoulder and various soft tissue injuries.  These were aggravated in the second crash which also caused a broken wrist.  In assessing non-pecuniary damages at $100,000 then modestly reducing these to account for pre-existing conditions Madam Justice Gerow provided the following reasons:

110]     It is clear that Ms. Azam was injured in both motor vehicle accidents. In the first accident, she suffered a broken shoulder and a neck and back injury. In the second accident, she suffered a broken wrist, injury to her knees and an exacerbation of her pre-existing spine condition.

[111]     I accept she does have chronic pain in her back which is exacerbated by activity; however, I do not accept Ms. Azam’s evidence regarding the impact of her injuries. I did not find Ms. Azam a particularly credible witness, and there is evidence that she is able to function at a higher level than she testified to…

[126]     Having considered the extent of the injuries, the fact that she is still having chronic pain after the accident which flares up from time to time, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $100,000, if the accidents were the only cause of Ms. Azam’s ongoing symptoms.

[127]     However, Ms. Azam must be put back in the position she would have been in if the two motor vehicle accidents had not occurred. The evidence establishes that Ms. Azam suffered from a pre-existing symptomatic spine condition which had caused her periodic back pain in the 10 years prior to the first accident. Although it was not symptomatic right before the first accident, is reasonable to infer Ms. Azam would likely continue to suffer from periodic back pain, regardless of the accidents. Having taken that into consideration, I am of the view that the appropriate award for non-pecuniary damages is $85,000.