BC Injury Law and ICBC Claims Blog

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

$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.


$20,000 Non-Pecuniary Assessment For Minor Yet Lingering Soft Tissue Injuries

September 26th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for minor, chronic soft tissue injuries.

In today’s case (Rosso v. Balubal) the Plaintiff was injured in a 2011 sideswipe collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from a variety of health complaints following the crash and attributed these to the collision although the Court found that the majority of the Plaintiff’s ailments were unrelated to the incident.  The Court did find that the Plaintiff suffered soft tissue injuries which disabled him from work for 9 months and further had some modest lingering limitations.  In assessing non-pecuniary damages at $20,000 Madam Justice Griffin provided the following reasons:

[91]         The overall impression I formed of the plaintiff’s evidence, after considering it in the context of the whole of the evidence and particularly the medical evidence, was that he tended to think very negatively and to have an exaggerated view of his physical limitations and symptoms following the accident. 

[92]         I therefore unfortunately find that Mr. Rosso’s perception of his abilities, or rather disabilities, is unreliable. 

[93]         I agree with the defendants that there is no credible or reliable evidence to support a conclusion that the accident caused the broader range of symptoms reported by Mr. Rosso.

[94]         Despite this, I do accept the plaintiff’s evidence that he has continued to experience some neck and back pain since the accident.  There is abundant medical evidence which supports the conclusion that Mr. Rosso suffered some soft tissue injuries as a result of the accident and I so find.  I accept the conclusion of the majority of the medical experts that if the pain has not gone away by now, it is likely he will continue to experience some ongoing pain in the future. ..

[99]         I am persuaded on the totality of the evidence that the motor vehicle accident caused the plaintiff to suffer ongoing symptoms of mild neck and back pain, which are symptoms likely to continue into the future to some extent but which can be managed with regular exercise.  The evidence also supports the conclusion that immediately after the accident for a short period the plaintiff did have some associated minor headaches and anxiety in relation to driving which was caused by the accident. ..

158]     Here I find that the injuries are minor and have had a minor impact on Mr. Rosso’s life, especially in comparison to other circumstances in his life, such as the death of a close friend and his inability to become a commercially successful rock musician.  I conclude that a fair and reasonable assessment of non-pecuniary damages is $20,000. 


$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries Perpetuated by Stress

July 16th, 2014

Reasons for judgement were released today addressing damages for lingering soft tissue injuries compounded by pre-existing emotional distress.

In today’s case (Adkin v. Grant) the Plaintiff was involved in a 2010 rear end collision.  She was 66 at the time of the crash and 69 at the time of trial.  She suffered a variety of soft tissue injuries and some of her symptoms continued to the time of trial.  A perpetuating factor for this was pre-existing emotional distress which exacerbated her symptoms.  In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:

209]     As mentioned, I find that the motor vehicle accident of September 3, 2010 caused injury to the soft tissues of the plaintiff’s neck and upper back and that the injury was of moderate degree. As a result of this injury, the plaintiff suffered pain in these areas and, for a limited period of time, suffered headaches. I find that the injury did not aggravate or worsen the plaintiff’s pre-existing physical conditions, but was super-imposed over them. There may have been minimal injury to the soft tissues of the plaintiff’s lower back, but if so, that injury had healed within six weeks of the accident…

[212]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff is still suffering some neck, upper back and shoulder pain as a result of the soft tissue injury she received in the car accident. It is implicit in Dr. Salvian’s opinion that he says the accident is still causing all of the pain that the plaintiff continues to experience in the soft tissues of her neck, upper back and shoulders. I have rejected that all-encompassing opinion. Dr. Kemble seems to say that most of the soft tissue pain that the plaintiff continues to experience in her neck, upper back and shoulders is being caused (intensified and perpetuated) by her emotional distress (and he says that the emotional distress was a pre-existing condition and was not caused by the accident). I have not accepted those opinions of Dr. Kemble where they conflict with the opinions of Dr. Allison.

[213]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff will continue to suffer physical symptoms as a result of her injury, for an indefinite period of time into the future (although they differ as to the frequency and intensity of such symptoms).

[214]     I accept Dr. Kemble’s opinions to the extent previously identified. I find that some of the plaintiff’s ongoing symptoms of pain in her neck, upper back and shoulders are being caused by the injury from the accident. And I find that she will continue to experience episodes of increased pain in the future, as a result of her injury on September 3, 2010.

[215]     I find that the plaintiff had a pre-existing condition of emotional distress which was affecting her to some extent at the time of the accident. I find also that the plaintiff’s experience of being involved in the motor vehicle accident, her physical injury, and her emotional reaction to that injury caused additional emotional distress to her. That emotional distress adversely affected the plaintiff’s powers of concentration and memory for at least a year, and perhaps longer. However, the effects of the plaintiff’s distress on her memory and concentration was minimal (almost non-existent) by the end of May 2011 when she was examined by Dr. Allison. The plaintiff was continuing to feel emotional distress at the time of trial, and I find that some of that ongoing stress is being caused by the accident of September 3, 2010…

[233]     In all of the circumstances, it is my opinion that a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount.

 

 


$65,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries Following Four Collisions

June 27th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries following multiple collisions.

In today’s case (Jiwani v. Borodi) the Plaintiff was involved in four collisions.  He was not at fault for any of these.  The initial collision caused soft tissue injuries to his neck and back.  The back injury was aggravated by some of the subsequent collisions and his symptoms lingered to the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Sigurdson provided the following reasons:

[45]         I conclude that the neck problems and the headaches resolved within about six months of the first accident, and that the back pain continues to some degree now five years after the first and most significant accident. 

[46]         I find that the back pain is soft-tissue related and has affected the plaintiff’s mood, his ability to sleep, and to some degree, his disposition and in turn his relationship with his family and friends, including his nephew.  I think that the accident has had an impact on the plaintiff’s family and social life and restricted the pleasure he had received from his friends and family in the past.  The burden is on the plaintiff to prove the extent of his injuries.  While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[47]         That said, I am not persuaded that the plaintiff is completely pain free.  I think that the plaintiff would benefit, as suggested by Dr. Grypma, from an active rehabilitation program. ..

52]         Given my findings and after considering the authorities relied upon by the parties and the factors mentioned in Stapley, the plaintiff is entitled to the sum of $65,000 for non- pecuniary damages.


$55,000 Non-Pecuniary Assessment for Chronic Bursitis

June 17th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and bursitis following a motor vehicle collision.

In today’s case (MacDonald v. Kemp) the Plaintiff was involved in a serious highway collision in 2010.  Fault was admitted.  She was 25 at the time and suffered a variety of injuries to her neck and shoulder which were not expected to fully heal.  In assessing non-pecuniary damages at $55,000 Mr. Justice Baird provided the following reasons:

[3]             As a result of the accident, the plaintiff suffered a number of soft tissue injuries. To this day she continues to experience pain in her lower back, neck and shoulders, primarily the left shoulder. Following the accident and as a result of her injuries she also developed bursitis in her left shoulder. She experiences a consistent dull pain in these locations throughout the day and finds it is aggravated and flares up following strenuous physical activity, thereby requiring that she take non-prescription pain medication. She has suffered occasionally from headaches and tingling in her arms, and sometimes experiences anxiety when she is in a motor vehicle on a busy highway. She had no pre-existing injuries and enjoyed good health before the accident.

[4]             The plaintiff has taken massage, physiotherapy and acupuncture treatments in an effort to rehabilitate these injuries. These passive interventions have afforded her a measure of relief. She also takes Advil to manage her pain and exercises in a home gym to the increase her strength and fitness. The plaintiff’s consulting orthopedic surgeon, Dr. Markland, recommends that these treatments continue.

[5]             Dr. Markland also recommended that the plaintiff avoid “forceful activities” at or above shoulder level, but observed that she “is fortunate that her work is not physically demanding, and that she finds her workstation well adapted. She is still able to pursue many of her pre-accident activities, although at a lower level than before.” While acknowledging that there is still a chance that the plaintiff’s condition may improve, Dr. Markland indicated that, almost four years after the accident, the likelihood is that her back, neck and shoulder pain and weakness are here to stay…

[22]         In my view, the appropriate award is somewhere in the range delineated by these two cases. I intend to emphasize the upper end of that range, primarily because, as previously mentioned, the plaintiff has been compromised in her physical health during the years of her life when she should be enjoying peak strength and functionality. I award $55,000 under this heading.

 


$120,000 Non Pecuniary Assessment For Chronic Myofacial Pain Syndrome

June 16th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which developed into a chronic myofascial pain syndrome.

In today’s case (Kirkham v. Richardson) the Plaintiff was involved in a 2010 collision.  She was 26 years old at the time and was pursuing a PhD and competed as a professional triathlete.  She sustained soft tissue injuries which impacted her education and training.  Her symptoms lingered to the time of trial and were expected to continue.  The injuries were complicated by a subsequent bike collision although the Court was able to divide the injuries from the separate incidents. In assessing the collision related injuries at $120,000 Madam Justice Warren provided the following reasons:

[182]     In summary, and having taken into account all the evidence, I make the following findings:

·       Ms. Kirkham suffered soft tissue injuries to her neck, shoulders and upper back as a result of the car accident.

·       Those injuries have resulted in myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome, all of which continue to affect Ms. Kirkham.

·       Ms. Kirkham suffered a concussion and abrasions in the bike crash which are divisible injuries for which the defendant is not liable.

·       Ms. Kirkham did not exacerbate or aggravate her soft tissue injuries in the bike crash and the bike crash did not contribute to Ms. Kirkham’s myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.

·       Ms. Kirkham’s soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms. Kirkham’s left hip girdle pain, which is an indivisible injury.

·       Ms. Kirkham took a leave of absence that delayed the completion of her PhD studies by a year. The leave was required for Ms. Kirkham to focus on rehabilitation of the injuries caused by the car accident. The concussion did not contribute to Ms. Kirkham’s leave of absence from her PhD studies.

·       As a result of the concussion, Ms. Kirkham did not compete in any triathlons during the summer of 2011. The concussion and the soft tissue injuries both contributed to her decision not to compete in any triathlons over the rest of 2011.

[195]     Having regard to the case law cited and the Stapley factors, I assess Ms. Kirkham’s non-pecuniary damages at $130,000, but reduced by $10,000 to reflect the possibility that the deconditioning associated with the concussion would have caused her hip pain in any event.

 


$45,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Soft Tissue Injuries

June 10th, 2014

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries.

In yesterday’s case (Pichugina v. Matula) the Plaintiff was involved in a T-bone type collision in 2010.  The Defendant admitted fault.  The Plaintiff had pre-existing symptoms in her neck, shoulder and back.  The collision aggravated these and her increased symptoms continued to the time of trial and were expected to linger on for several more years.  In assessing non-pecuniary damages at $45,000 Mr. Justice Cohen provided the following reasons:

[56]         On the totality of the evidence before me, I find that, as a result of the accident, the plaintiff sustained aggravation to her already symptomatic neck, right shoulder, and low back and sustained aggravation to her pre-existing headaches.  In my opinion, there is no evidence to support a conclusion that the accident caused the minimal winging of the plaintiff’s right scapula.  Although the plaintiff returned to work full-time by the end of two months following the accident, and experienced much improvement in her condition by the spring of 2011, she cannot take advantage of a flexible work schedule, and, while she remains physically active, some activities are no longer comfortable for her.

[57]         According to Dr. Vorobeychik, the plaintiff’s symptoms have improved, but she still experiences migraine headaches and problems with her right shoulder, neck, and back when she is active or upon exertion.  The overall medical evidence, and that of the plaintiff, is that there has been gradual improvement in her condition post-accident, and she appears to be handling her headaches better.  According to Dr. Robinson, the plaintiff will probably continue to have gradual improvement over the next three to five years, but she remains at risk for persisting neck and right shoulder pain, which would act as an aggravator to her migraine predisposition.

[58]         Upon my consideration of the whole of the evidence, the parties’ submissions, and the authorities relied upon by them, I find that a fair and reasonable award to the plaintiff for general damages is $45,000.

 


$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

April 4th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for chronic soft tissue injuries.

In this week’s case (Lewis v. Scheer) the plaintiff was involved in a “significant” collision in 2010. The Defendant admitted liability. The collision caused various soft tissue injuries and headaches which lingered at the time of trial.  The Plaintiff had some pre-existing symptoms which left her susceptible  to developing chronic pain.  Her symptoms were expected to carry into the future with optimism that they can be reduced with weight loss and exercise.  In assessing non-pecuniary damages at $70,000 Mr. Justice Funt provided the following reasons:

[9]             In general terms, the plaintiff’s injuries involve her back, spine, shoulders and neck.  She has daily headaches and has chronic pain…

[18]         The three doctors were in general agreement that the plaintiff’s ongoing symptoms of daily headaches and pain affecting her neck, chest, shoulders and spine were caused by the MVA.  Dr. Travlos noted in his November 14, 2011 report that the plaintiff “was likely vulnerable to injury and the development of more chronic symptoms, given some of the pre-accident complaints she had”…

[22]         The medical evidence recognizes that the pain will be ongoing although it may reduce as a result of the recommended steps to be taken.  These steps include losing weight, a focus on functionality and not on pain, a regimen of exercise and activity, and the reduction of the medication the plaintiff is currently taking…

[35]         As noted, the plaintiff will have ongoing pain.  The focus for the future is on improving function.  In particular, the pain has affected and will affect her enjoyment of life, family and social relationships, and lifestyle.  The Court will award $70,000 inclusive of housekeeping capacity.  The plaintiff will be able to perform housekeeping functions, albeit with degrees of pain depending on the particular activity.

 

 

 


 

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