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.

Posts Tagged ‘Aggravation of pre-existing arthritis’

Private MRI Cost Recovered as Special Damages in Injury Claim

February 22nd, 2012

Further to my recent post on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the recovery of private MRI costs in a personal injury lawsuit.

In last week’s case (Piper v. Hassan) the Plaintiff was injured in a 2006 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff suffered soft tissue injuries and an aggravation of pre-existing back pain and depression.  The Plaintiff sought substantial damages at trial although much of the claim was not accepted with the Court finding that much of the Plaintiff’s symptoms would have occurred absent the collision due to pre-existing degenerative changes in the plaintiff’s back.

In the course of the lawsuit the Plaintiff obtained a private MRI.  At trial the Plaintiff sought to recover the cost associated with this.  The Defendant opposed this arguing it was not a reasonable expense.  Mr. Justice Pearlman disagreed and allowed recovery of this item.  In doing so the Court provided the following reasons:

[172] Mr. Piper also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant submits this was an unnecessary expense. I disagree.  Dr. McGrath had recommended an MRI study. At a time when the plaintiff was experiencing increased back pain and sought medical advice to determine its cause and possible treatment, it was not unreasonable for him to pay for a private MRI, rather than wait in line for publicly funded radiology. The full spine MRI assisted both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the plaintiff’s injuries attributable to the motor vehicle accident, showed the progression of degenerative changes to the plaintiff’s spine, and aided Dr. McGraw in forming his opinion that the plaintiff had not suffered a disc herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI study.


$75,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Knee Arthritis

February 2nd, 2010

A common issue courts have to address in injury litigation is the effect of trauma on pre-existing asymptomatic arthritis.  Often times after people are injured X-rays and other diagnostic tests reveal arthritic changes in joints which produced no pain prior to the trauma.  Often times accidents cause these pre-existing conditions to become painful.  A theme which usually comes up in these types of cases is whether the degeneration would have become painful at some point in time without the trauma.  Reasons for judgement were released today by the BC Supreme Court dealing with such an injury to the knees.

In today’s case (Michal v. Begg) the Plaintiff was injured in a 2003 motor vehicle accident.  The driver of the Plaintiff’s vehicle lost control and hit a concrete highway divider.  The crash was significant destroying the vehicle on impact.

The plaintiff sustained various injuries including the onset of pain in his knees.  The Plaintiff did not have pre-existing knee pain but on examination arthritic changes which would have pre-dated the accident were noted.  The accepted medical evidence was that even if the Plaintiff did not have the accident he would have likely eventually experienced pain in his knees but the trauma accelerated this.  Mr. Justice Curtis assessed the Plaintiff’s non-pecuniary damages at $75,000.  In arriving at this figure the court noted the following about the extent and effect of the accident related injuries:

[26] In summary, I find it proven on the balance of probabilities that as a result of the December 18, 2003 collision, Miroslav Michal suffered a whiplash injury aggravating a pre-existent mild recurrent neck pain, which is now continuing on about the same course as it would have had the 2003 accident not occurred, injuries to his head, right shoulder, right and left wrists, fingers and elbow strains, rib injury and a buttock contusion, all of which has resolved fairly quickly, and injuries which have produced symptoms persisting to the present time, namely to his right ankle, right foot and left and right knees.

[27] The right knee was clearly injured in the collision as is demonstrated by the immediate appearance of pain, swelling and stiffness.  That knee had pre-existing degenerative changes which were not symptomatic prior to the collision, but were clearly made symptomatic following it.

[28] There is no immediate medical record of Mr. Michal complaining about left knee problems.  That knee also had pre-existing degenerative changes which were not symptomatic prior to the accident.  I am satisfied, however, that the collision did aggravate the condition of the left knee and caused it to become symptomatic afterwards.  Mr. Michal has testified that was the case and his testimony is supported by the observations of Mr. Begg and his Aikido instructor.  Mr. Michal is clearly not a complainer and I accept that early left knee symptoms were simply overlooked in dealing with more urgent matters.

[29] Both knees were showing pre-existing signs of degeneration in all three compartments.  The outlook for his knees was that the degeneration could continue and would have at some point become symptomatic even if there had not been any December 18 injuries.  It is likely his knees would have got bad enough to affect his function even if he had not been injured.  How long that would have taken is not clear – Dr. Anton offers the opinion that “The pre-existing changes would probably have become symptomatic absent the accident but that could have taken five years or longer.”  Dr. Sovio in his report of March 6, 2006 was of the opinion that:

He, in all likelihood, had pre-existent degeneration which predisposed him to this problem and regardless he would have had some difficulties with his knees in the future. It is difficult to say when this would have shown up but it would likely have presented itself in the relative near future.

[30] On the evidence, I find it reasonable to attribute Mr. Michal’s knee symptoms to the date of his surgery in January and April of 2007 to the collision, but I find that, while the collision injuries remained a contributing factor, his failure to recover as expected from his knee surgery and his worsening condition from September 2007 onward was attributable to the fact that he had degenerative knees as well as the fact that they had been made worse by the collision induced injuries.  It is probable that Mr. Michal would have ended up having arthroscopic surgery to his knees even without his 2003 injuries but that surgery was probably significantly sooner because of the December 2003 injuries.

[31] The plantar fasciitis in his right foot has become chronic but the medical opinion is that it should be cured.  His right ankle does not show evidence of significant injury.  I accept that these have troubled him as he has described to the date of his trial, but I find that they remain treatable and should not pose a significant problem for him in the future.

[32] Considering the pain and suffering Mr. Michal has had from his injuries, and the significant loss of enjoyment of life they have caused him, in particular forcing him to forego his long time interest in martial arts, I assess Mr. Michal’s claim for general damages at $75,000.


 

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