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Erik MagrakenThis Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘ICBC Soft Tissue Injury Cases’ Category

$70,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

February 24th, 2015

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

In today’s case (Larsen v. Moffett) the Plaintiff was injured in two collisions, the first in 2010, the second in 2012.  ICBC admitted fault on behalf of the defendants in both cases.  The crashes caused soft tissue injuries to the Plaintiff’s neck and back which continued to the time of trial and interfered with his ability to work as a painter and drywaller.  His symptoms were not expected to improve.   In assessing non-pecuniary damages at $70,000 Mr. Justice Steeves provided the following reasons:

[46]         In summary this 44 year old man has suffered two soft tissue injuries to his neck and back and he has developed related headaches. These injuries cause ongoing and severe pain and they limit his daily activities, including his social life and work. With respect to the former, the plaintiff’s pain contributed significantly to the breakup of a potentially long-term relationship he started with Ms. Briere. Prior to the 2010 and 2012 injuries the plaintiff took over his father’s contracting business and, despite some personal difficulties and problems with record keeping, he was able to feel confident that he had a business that would look after him, as it did his father. That is now in significant doubt.

[47]         All of this has had a negative effect on the plaintiff’s sense of self-worth and emotional well-being. The experts are unanimous that this situation will continue into the future. The defendants’ expert suggests that there may be future improvement but this is put in very guarded terms.

[48]         Taking this into account with the authorities cited to me I assess the non-pecuniary damages in this case to be $70,000.


$80,000 Non-Pecuniary Assessment Following Chronic Injuries from 7 Collisions

February 17th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Plaintiff who had the misfortune of being involved in 7 collisions.

In today’s case (Sediqi v. Simpson) the Plaintiff was involved in seven collisions from 2010-2013.  He was not at fault for any of these.  He suffered a variety of injuries, some of which lingered to the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher made the following findings and provided the below reasons:

[78]         I find that the plaintiff suffered soft tissue injuries in his neck, right upper back and shoulder and lower back as a result of these accidents (with the exception of accident #4, which appears to have been limited to the neck and upper back or shoulder). He had a pre-existing rotator cuff tear in his right shoulder that was aggravated by each successive accident, as well as pre-existing carpal tunnel syndrome (aggravated by accidents #5 and 6) and a degenerative spine condition (aggravated by accidents #6 and 7). He also suffered from headaches from accidents #1, 4, 5 and 7, and the pain resulting from all of these injuries has affected his mood and contributed to his feelings of sadness. He was unable to work for a week after accident #4, for about four weeks after accident #5 as well as a month of reduced hours, for about three weeks after accident #6 as well as further weeks of reduced hours, and for three weeks after the last accident followed by several months of reduced hours.

[79]         The plaintiff is a 51 year old man who prides himself as a person who works hard for his family. He has been the unfortunate victim of seven accidents, which caused injuries that have affected him cumulatively. I consider the cumulative effect of these injuries to be an important factor.

[80]         The plaintiff continues to experience pain symptoms more a year following the last accident, particularly in his right shoulder and the right side of his back. He has problems sleeping and experiences low moods and feelings of sadness. He has changed from a good natured, positive individual to one who is less jovial, less patient of others, and at times argumentative. He has had some limitations in his physical activities at home and at work. Evidence from his wife and from Mr. Poirier and Mr. Murray confirms this. He does little at home and has difficulty carrying heavy objects at work.

[81]         The plaintiff has tried physiotherapy, exercise and various kinds of pain medication but he is not a physically active person. His prognosis is guarded. Considering how long he has been in pain, it is likely to continue. However, his symptoms should improve to some extent with proper management, which includes physical exercise…

[89]         In general, I found the cases cited by Mr. Wilson to involve injuries less severe than those in this case, either due to shorter periods of pain symptoms or reductions due to contingencies that do not apply here. Not surprisingly, none of the cases cited by either counsel involved plaintiffs suffering the cumulative effect of injuries from seven accidents. In my view, general damages appropriate in a case like this range from $50,000 to $90,000. Taking into account the plaintiff’s pre-existing conditions (which as I said before do not require a significant reduction), I would assess a fair award here to be $80,000.


$90,000 For Lingering Soft Tissue Injuries Leading to Chronic Pain Disorder

February 6th, 2015

Adding to this site’s archived cases addressing non-pecuniary damages for chronic pain, reasons for judgement were released today dealing with such a condition following a motor vehicle collision.

In today’s case (Roth v. Hes) the Plaintiff was involved in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained soft tissue injuries which led to a chronic pain condition.  In assessing non-pecuniary damages at $90,000 Mr. Justice Bowden provided the following reasons:

[82]         The plaintiff is a 40-year-old woman and suffered soft tissue injuries primarily in her back and shoulder area. She continues to suffer from chronic pain disorder and experiences sleeping difficulties. She has a pre-accident history of lower back and right knee pain complaints which would likely have continued even if the accident had not occurred.

[83]         The plaintiff’s lifestyle has suffered as a result of the accident. While I consider her to be far from totally disabled, she has lost the enjoyment of working on her and her husband’s hobby farm and the lifestyle that it provided to her. To some extent, as stated by Dr. Laidlow, this has resulted from the plaintiff becoming overly protective in relation to her injuries. With continuing appropriate rehabilitation and treatment I expect that the plaintiff’s condition will improve and she will gradually return to some of her hobbies around her property.

[84]         I do not accept the plaintiff’s argument that the garden and animals cared for by her and her husband were more than a hobby. It matters not that the garden and animals provided some food for them. The use of their property by the plaintiff and her husband was simply a hobby and I so find.

[85]         Before the accident the plaintiff enjoyed a number of outdoor activities. Since the accident she has not been able to participate in physically demanding activities like motorcycle riding, archery and hiking. There is the prospect that she may find less physically demanding but enjoyable hobbies.

[86]         The plaintiff has been unable to perform a number of household chores that she could before the accident. Her social life has been impacted by the accident as she has been unable to entertain guests for dinner parties as she did in the past. She and her husband have also not enjoyed the intimacy they experienced before the accident.

[87]         Both parties provided me with a number of cases dealing with similar facts that supported the amount of damages that they consider to be appropriate. In the end however, each case must be decided on its own facts.

[88]         Considering the factors enumerated in Stapley, I find $90,000 to be an appropriate award of non-pecuniary damages.


$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.


$90,000 Non-Pecuniary Assessment For Chronic Myofascial Pain

January 30th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic myofascial pain symptoms following a collision.

In today’s case (Camilleri v. Bergen) the Plaintiff was injured in a 2011 collision.  The Defendant admitted fault.  The Plaintiff suffered from chronic myofascial pain symptoms which were not expected to improve.  In assessing non-pecuniary damages at $90,000 Madam Justice Loo provided the following reasons:

[74]        As discussed above, Ms. Camilleri now suffers from chronic myofascial pain as a result of the accident. She is unlikely to recover and, at best, she may mitigate some of her symptoms. I can do no better than to summarize her symptoms as set out in Dr. Dost’s report. She complains of:

1.   Constant cervical or neck pain that radiates to the interscapular region, left shoulder and diffusely down her arm to her third and fifth fingers;

2.   Constant thoracolumbar or back pain, without radicular symptoms, but with numbness and tingling;

3.   Headaches almost daily. About four days a week she has a dull headache, occipital pressure, and some nausea. Three days a week her headaches are quite severe and radiate to her left eye with pressure, pounding, nausea, and light and noise sensitivity;

4.   Sleep disruption secondary to pain;

5.   Altered mood;

6.   Light-headedness (a faint-like sensation that occurs early in the morning);

7.   Increased tinnitus;

8.   Increased blurred vision requiring stronger prescription glasses; and

9.   Difficulties with memory, processing speed, multitasking, attention and recall.

[75]        Her symptoms are not likely to improve. The evidence suggests that she can only learn to cope with her symptoms with psychiatric or psychological counselling, a physiatrist to deal with the physical complaints, and possibly a pain clinic to help her deal with her pain.

[76]        Ms. Camilleri’s life has been affected dramatically and profoundly by the accident. Her symptoms have been a tremendous challenge for her both emotionally and physically. She was a very high energy person who was fully committed to her family and to her work. She was a leader in her field. I could not help but have the impression that Ms. Camilleri was so committed to her work and patients at the eating disorder clinic that she was more concerned about helping the patients and the community rather than making money. She could easily have made more money in private practice but she was committed to helping those who could not afford private care. She was so committed to her work that she increased her hours of work after the accident so that her patients would continue to have treatment despite the toll it has taken on her physical and emotional health.

[77]        Ms. Camilleri said that it has been emotionally challenging for her to be forced to step back into what she considers a lesser role in the treatment of the eating disordered. She enjoyed her volunteer positions, she enjoyed teaching, she enjoyed the continuing education opportunities with other health professionals, and she enjoyed research. Those are things she can no longer enjoy.

[78]        She was also a physically active person who enjoying skiing with her family, running, cycling, water-skiing, gardening, and she enjoyed sharing many of those activities with her husband and daughters. Those are things she can no longer enjoy. She no longer even travels.

[79]        I have no reason to doubt Ms. Camilleri’s evidence. There is no suggestion that she is anything other than a credible, straightforward witness who keeps doing her best in situations where others likely would have given up. But she has been forced to give up many of the things in life that she enjoyed…

[88]        I conclude that an appropriate award in this case for non-pecuniary damages is $90,000.


$120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

January 5th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and post traumatic stress disorder caused by two motor vehicle collisions.

In today’s case (Luis v. Marchiori) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2011.  ICBC admitted fault for both defendants. The Plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons:

[178]     I would summarize the significant factors as follows:

a)    Ms. Luis is 49 years old;

b)    In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck and right shoulder and lower back, moderate to severe major depression, PTSD, and significant weakness in her dominant right hand;

c)     Ms. Luis’s pain has been severe, particularly since the Second Accident, and it is unlikely that her pain or depression or PTSD or right hand weakness will resolve;

d)    As a result of the accidents, Ms. Luis is completely disabled from working and driving and is significantly disabled from personal care, home care, and personal activities; and

e)    Ms. Luis has suffered from the loss of her sense of well-being, the impairment of her relationships with her husband and children, and the loss of the social connections from work.

[179]     No two cases are alike. I have considered the cases cited by both counsel and Ms. Luis’s particular circumstances.

[180]     Ms. Luis is entitled to $120,000 for non-pecuniary damages.

 


$75,000 Non-Pecuniary Damages For Chronic Pain Following Three Collisions

December 10th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault and damages following a series of collisions.

In today’s case (Shinzay v. McKee) the Plaintiff was involved in three collisions.   The Defendants were found liable for each of these.  The Plaintiff suffered chronic soft tissue injuries which persisted to the time of trial and resulted in chronic pain symptoms which were expected to need continued management.  In assessing non-pecuniary damages at $75,000 Madam Justice Sharma provided the following reasons:

[93]         Based on all of the above, I make the following findings on the balance of probabilities:

a.               Mr. Shinzay continues to suffer pain that affects, but does not disable him;

b.               Mr. Shinzay will more likely than not require physiotherapy, massage therapy, and pain medication in the future to manage flare-ups of his pain;

c.               Mr. Shinzay needs to follow a conditioning program which will improve his pain management;

d.               Mr. Shinzay had a degenerative spinal condition that pre-existed the First Accident;

e.               The accidents caused Mr. Shinzay to suffer soft tissue injuries; and

f.                The accidents materially contributed to his pain because it trigged his pre-existing spinal degeneration to become symptomatic.

[98]         As already noted, I find Mr. Shinzay has not exaggerated his symptoms. His resilience for work should not be mistaken for a sign that his injuries were mild. In particular, the Second and Third Accidents required emergency personnel to extract him and he was taken away on a stretcher.

[99]         Overall, I find that Mr. Shinzay’s circumstances justify an award at the moderate level of the appropriate range. Among the cases referred to me, I discuss below the most helpful ones because of the similarity of some of the facts or circumstances to this case. These cases identify a range of $60,000 (the defendants’ assessment) to $90,000 (the plaintiff proposed $100,000)..

[100]     In these circumstances, I find $75,000 to be an appropriate award.


$75,000 Non-Pecuniary Assessment for Chronic Aggravation of Pre-Existing Neck Symptoms

November 20th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic aggravation of a pre-existing neck injury.

In today’s case (McCartney v. McArthur) the Plaintiff was involved in a 2010 rear end collision.  The Defendant admitted fault for the crash.  The 62 year old Plaintiff had a 20 year history of occasional neck complaints.  The collision aggravated these and led to chronic symptoms which impacted the Plaintiff’s functioning.  In assessing non-pecuniary damages at $75,000 Mr. Justice Bowden provided the following reasons:

69]         I am satisfied that the defendant’s negligence, which has been admitted, contributed to the injuries complained of by the plaintiff. While the plaintiff’s pre-existing condition resulted in symptoms in his neck area that had some similarity to those he experienced after the accident, the degree of pain experienced by him clearly increased after the accident and, I find, became chronic in nature. In particular, Dr. Gittens testified that the plaintiff’s pre-existing condition, involving some degenerative changes in his spine, was aggravated by the accident. He said that his pain, which he described as neuropathic, occurs after the underlying trauma has resolved and is extremely difficult to resolve. He said it may be a permanent condition. In my view the evidence establishes that the symptoms suffered by the plaintiff after the accident were different and worse than before the accident. His neck condition was significantly aggravated by the accident…

[76]         I have concluded that the plaintiff suffered aggravation to his neck pain as a result of the accident and his pain has become chronic in nature. For the first time, the pain that the plaintiff suffers imposes some functional limitations on him.

[77]         The evidence also establishes that the plaintiff went from an outgoing pleasant person to someone who was easily irritated by other people. This has interfered with his ability to work effectively as a cabinet salesman.

[78]         I am satisfied that the accident has negatively affected the quality and enjoyment of the plaintiff’s life and that may continue indefinitely. He will likely continue to suffer pain, together with the associated deleterious effects on his enjoyment of life.

[79]         After considering the relevant case law referred to by counsel and keeping in mind that the award in each case is very dependent upon the unique facts of the case, I award the plaintiff $75,000 in non-pecuniary damages.


$60,000 Non-Pecuniary Assessment for “Moderate To Severe” Soft Tissue Injuries

October 8th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries from a motor vehicle collision.

In today’s case (Farbatuk v. Lagrimas) the Plaintiff was rear-ended in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained moderate to severe soft tissue injuries to his neck and back.  The Plaintiff’s physician gave evidence that the prognosis for recovery was extremely guarded although the Court rejected this finding that any lingering symptoms did not “debilitate or impair” the Plaintiff in any meaningful way.  In assessing non-pecuniary damages at $60,000 Madam Justice Kloegman provided the following reasons:

[22]         It appears from the medical evidence that all three expert witnesses agreed that the plaintiff suffered a moderate to severe whiplash to his neck and back in the accident. It also appears that the medical experts agree there is evidence of a pre-existing degenerative condition in the plaintiff’s back and neck, whether D.I.S.H. or something else.

[23]         Dr. Miki described the plaintiff’s prognosis as “extremely guarded”, particularly in relation to the work the plaintiff has done for the previous 25 years. Dr. Richardson’s prognosis for the plaintiff’s neck and back was moderate, with no increasing risk of developing osteoarthritis. Dr. Werry stated in his report that the plaintiff will probably continue indefinitely to experience variable neck and low back pain and stiffness, but that he probably has not reached maximum medical improvement.

[24]         As stated earlier, Dr. Miki’s evidence was given in an advocational manner and he relied heavily on the plaintiff’s self-reporting. His prognosis of “extremely guarded” was not consistent with some of his clinical notes that had been omitted from his report. These showed steady and continuous improvement in the plaintiff’s position. His prognosis was also not consistent with the evidence of Louise Craig, functional capacity evaluator, who opined that the plaintiff’s main limitation is in his range of motion in his neck. She reported that the plaintiff felt an increase in symptoms from sustained sitting and stooping, but that he showed a tolerance for exertion of low to upper range of heavy physical strength, very good core strength and aerobic fitness, no limitation in standing, walking, crawling, kneeling, crouching, managing stairs, balancing, reaching, gripping and most importantly; he was able to carry a medium load of 50 lbs on a frequent basis which placed his ability to work in the Heavy category of occupations.

[25]         In my view, the plaintiff’s prognosis is more optimistic than either Dr. Miki or he would admit. Although 2½ years have passed since the accident and the plaintiff still complains about neck pain, back pain and limited range of motion, I am not satisfied, on a balance of probabilities, that these subjective complaints are sufficiently supported by any objective evidence of continuing injury. Simply put, he has not established that his ongoing complaints are serious enough to debilitate or impair him in any way…’

[46]         I find that the plaintiff’s situation is closer to those of the plaintiffs in the above cases cited by defence. In my view, an award of $60,000 is fair compensation for the plaintiff’s non-pecuniary losses.


$13,500 Assessment For Soft Tissue Injury Aggravation Of “a Number of Months”

September 30th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of a pre-existing soft tissue injury.

In today’s case (Bains v. Park) the Plaintiff was involved in a relatively modest collision caused by the Defendant.  The Plaintiff had pre-existing injuries and the  Court found that these were aggravated for ‘a number of months’ following the collision.  In assessing non-pecuniary damages at $13,500 Mr. Justice Joyce provided the following reasons:

[35]         It is Dr. Choo’s opinion that Ms. Bains suffered an aggravation of pre-existing injuries and that her pre-existing condition likely made her recovery from this collision slower than it would otherwise have been.

[36]         It is my opinion that there was a real risk that even if she had not been involved in the collision on May 18, 2010, Ms. Bains would have experienced some neck and pain discomfort from time to time. I am satisfied that the collision aggravated her condition and resulted in persistent pain and discomfort for a number of months, beyond the period of time that one might normally expect given the circumstances of the collision.

[37]         As a result of the injuries, Ms. Bains’ ability to perform her usual household chores was curtailed for a few months and her ability to fully enjoy time with her children and other leisure activities was curtailed for five or six months. She was off work until about mid-June 2010, then was able to return on a graduated return to work program that was supported by her employer.

[38]         I am satisfied that Ms. Bains had likely recovered to her pre-accident state by the fall 2010 or by February 2011, at the latest…

[41]         As the plaintiff recognizes, each case must be decided on its own particular facts and other cases can, at best, provide general assistance in determining what is just and fair compensation for this plaintiff, given her injuries and the manner in which they have affected her enjoyment of life. It appears to me that each of the cases cited by the plaintiff involve somewhat more serious injury and loss than the present case.

[42]         In addition, as I have found, the plaintiff’s pre-accident condition was such that there was a risk that she would have experienced some neck and back pain, on-and-off, even if she had not been involved in the collision on May 18, 2010, in the same way she had experienced on-and-off pain prior to that collision.

[43]         Having read and considered the cases referred to by counsel and having regard to the nature of the injuries, their duration and their effect on the plaintiff’s day-to-day activities, I am of the opinion that an award of $15,000 would be appropriate, but for her pre-existing condition and the risk that she would have experienced on-and-off symptoms even without the aggravating injuries. I will reduce that amount by10% on account of the plaintiff’s pre-existing condition.

[44]         In conclusion with regard to this head of damages, I am of the opinion that an award of $13,500 will provide Ms. Bains with fair and reasonable compensation for her pain, suffering and loss of amenities, as a result of the collision of May 18, 2010.


 

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