ICBC Law

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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

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.

Posts Tagged ‘aggravation of fibromyalgia’

$50,000 Assessment for 6 Years of Back Pain

February 27th, 2017

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

In today’s case (Harder v. Poettcker) the Plaintiff was involved in a 2009 collision.  The matter proceeded to jury trial where a jury found the Plaintiff 85% at fault for the crash with the Defendant shouldering the rest of the blame.

The Plaintiff suffered a back injury.  He suffered from pre-existing back problems and fibromyalgia.  The court found that while the Plaintiff’s symptoms lingered at the time of trial after the 6 year mark these symptoms were due to the pre-existing issues.  In assessing non-pecuniary damages at $50,000 Mr. Justice Sigurdson provided the following reasons:

[77]         The plaintiff suffered a moderate soft tissue injury to his lower back and neck in the motor vehicle accident. Those soft tissue injuries were more painful and discomforting to the plaintiff than they otherwise would have been because he has a troublesome back that had in the past required surgery on two occasions.

[78]         However, the evidence does not disclose that the accident caused the need for the plaintiff’s back surgery. In that respect I prefer the evidence of the surgeon Dr. Splawinski to the evidence of the rheumatologist.

[79]         I expect that Mr. Harder became more uncomfortable as a result of the accident and decided to have the surgery privately. I think that he had the surgery more quickly than he otherwise would have had it because of the soft tissue injuries he suffered. That finding is relevant to whether the cost of the private surgery with a shorter waiting list is recoverable.

[80]         I have also concluded that on the evidence the plaintiff has not demonstrated that his fibromyalgia was brought on by the trauma in the motor vehicle accident. However, like his pre-existing back condition, it was an aspect of his pre-existing condition that on the evidence waxed and waned in any event and I think was an aspect of his condition that probably made his injuries from the accident more uncomfortable and debilitating when he had fibromyalgia.

[81]         How long did the injuries from the accident to his lower back and his neck persist?

[82]         Dr. Shuckett thought (as she described in 2015) that they probably continued as he had probably achieved maximum medical improvement. Dr. Splawinski thought that he suffered a soft tissue injury to his neck and lower back and that the symptoms of neck and lower back pain settled down relatively quickly. Dr. Wade described his injury as a mild to moderate soft tissue injury.

[83]         I find that the injuries were soft tissue injuries suffered by the plaintiff that largely resolved by trial more than six years after the accident and any continuing discomfort that Mr. Harder suffers is largely related to his pre-existing back problem or his fibromyalgia which I find was not caused by the accident. The discomfort and pain suffered by Mr. Harder during the recovery period was however more significant than otherwise because they occurred to a man with a troublesome back and waxing and waning fibromyalgia. The defendant concedes that there was at least an acute period of discomfort and restricted activity.

[90]         Considering all of the evidence, I assess the plaintiff’s non-pecuniary damages at $50,000.


$50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

June 24th, 2011

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing an assessment of damages for an aggravation of pre-existing injuries.

In today’s case (Iwanik v. Hayes) the Plaintiff was involved in a 2008 intersection collision.  She was 61 years old at the time.   Fault for the crash was admitted by the opposing motorist.  The trial focused on the quantum of damages (value of the claim).

Prior to the collision the Plaintiff had various health concerns including fibromyalgia. The collision caused, among other injuries, a “sustained and prolonged” exacerbation of her pre-existing condition.  In valuing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Gray provided the following reasons:

[132] As a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches. If the accident had not occurred, her fibromyalgia would have flared up periodically, but not enough to have restricted her from her from work or her other activities.

[133] As a result of the accident, Ms. Iwanik also suffered an injury to her left knee, which caused patellofemoral pain syndrome. It may have caused other problems in her knee, but the evidence at trial did not establish anything further. Although there is no record of Ms. Iwanik reporting the knee pain to treatment providers until August, 2008, I accept her evidence that she was initially more focussed on her other pain, and thought that the knee pain would resolve.

[134] I accept Dr. Bridger’s opinion that Ms. Iwanik also suffered a probable minor compression fracture of her T12 vertebra, and that she suffered a minor head injury with a probable minor concussion which has resolved. However, both of those injuries resolved so quickly that they do not affect the assessment of damages in this case.

[135] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to work at a physically demanding job, and is not capable of working in a 7-Eleven store. Fortunately, Ms. Iwanik found work at a Husky gas station which can accommodate her abilities. However, the job is not as well-paid as her work as a manager at 7-Eleven, and does not offer opportunities for advancement.

[136] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to engage in hour-long walks, or to carry heavy items such as laundry and groceries, or to garden for more than 20 minutes at a time in an elevated garden bed. She is no longer able to contribute to her family and community to the extent she previously did….

[142] In all the circumstances, an appropriate award is $50,000.