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This 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 ‘chronic soft tissue injuries’
September 27th, 2011
Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a shoulder injury caused by a motor vehicle collision and subsequently aggravated by an at-work incident.
In last week’s case (Kaleta v. MacDougall) the Plaintiff was injured in a 2008 collision. ¬†Fault was admitted by the Defendant. ¬†As a consequence the Plaintiff suffered from “chronic neck and left shoulder pain”. ¬†The symptoms were due to soft tissue injury and there was a “moderate probability” for long lasting symptoms.
Prior to trial the Plaintiff aggravated his shoulder in an at-work incident. ¬†He made a WorkSafe Claim as a consequence. ¬†ICBC argued the damages need to be reduced as a result. ¬†Mr. Justice Truscott disagreed relying on the BC Court of Appeal’s decision Bradley v. Groves. ¬†In assessing damages at $80,000 the Court provided the following useful comments:
 In Dr.¬†McAnulty‚Äôs last assessment on March 3, 2011 the plaintiff again reported with chronic neck and left shoulder pain, worse at night. His prior knee and back pain had resolved.
 Dr.¬†McAnulty‚Äôs diagnostic impression at the time was of chronic myofascial pain post motor vehicle accident affecting the left neck and shoulder and the plaintiff was advised to continue with activity as tolerated.
 In his summary and conclusions in his report of March 6, 2011, Dr.¬†McAnulty says that despite the many interventions the plaintiff still remains symptomatic and now has more likely than not reached the point of maximum medical improvement, especially since two and one-half years have elapsed since the motor vehicle accident. He says the plaintiff may well suffer chronic myofascial pain in the future…
 I accept the opinion of Dr.¬†McAnulty that the workplace shoulder injury of June 11, 2009 was an aggravation of the shoulder injury suffered in the motor vehicle accident which remained symptomatic, and was not a new injury unconnected to the previous injury…
 As a matter of law the defendant remains responsible for continuing problems with the left shoulder after June 11, 2009 (Bradley v. Groves, 2010 BCCA 361)…
 It may be concluded from all this that the prospect of a chronic injury in the nature of a permanent or indefinite injury is only a possibility, but in Dr.¬†McAnulty‚Äôs report he also says that the patient has more likely than not reached the point of maximal medical improvement and that statement reflects a standard of probability and not possibility.
 It is my conclusion that Dr.¬†McAnulty considers the shoulder pain to be a chronic or long-lasting pain as a moderate probability, and I will assess the plaintiff‚Äôs damages on that basis…
 I award the plaintiff $80,000 for general damages for pain and suffering and loss of enjoyment of life.
June 2nd, 2010
(Update March 19, 2012 – The Below¬†Decision¬†was modestly¬†modified by the BC Court of Appeal in reasons for¬†judgement¬†released today, reducing the claim for future care by $32,115. ¬†The other trial findings were left intact)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.4 million in total damages for injuries and loss suffered as a result of a BC car crash.
In today’s case (Shapiro v. Dailey) the Plaintiff was involved in a 2005 intersection crash. ¬†The Defendant driver had been drinking earlier in the day and was operating the vehicle without permission of its owner. ¬†Fault was not admitted but the Defendant driver was ultimately found 100% responsible for the crash.
The Plaintiff was 23 years old at the time of the crash and 29 by the time of trial. ¬†The Court heard from a variety of expert physicians who all agreed the Plaintiff suffered “serious injuries“. ¬†The Court concluded that the Plaintiff did indeed suffer serious and permanent injureis and would struggle to earn a competitive living throughout her career. ¬†Mr. Justice Grauer awarded $110,000 for non-pecuniary damages and $900,000 for diminished earning capacity. ¬†In reaching the award for non-pecuniary damages the Mr. Justice Grauer made the following findings:
¬†¬†¬†¬†¬†¬†¬†¬†¬†On the whole of the evidence, I am satisfied that, as a result of the motor vehicle collision that is the subject of this action, Ms. Shapiro suffered soft tissue injuries to her cervical, lumbar and sacral spine that, through no fault of her own, have left her with:
¬∑¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†disabling cervicogenic headaches, and periodic headaches of a migraine nature;
¬∑¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†chronic pain disorder, manifesting itself as myofascial pain syndrome and post-traumatic fibromyalgia syndrome;
¬∑¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†depressive symptoms falling short of depressive disorder;
¬∑¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†mood disorder including resolving post-traumatic stress disorder, anxiety disorder and panic attacks;
¬∑¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†mild, but not insignificant, cognitive difficulties in concentration and memory.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Whether some of these diagnoses overlap in terms of their symptomatology matters not.¬† What is clear is that Ms. Shapiro genuinely suffers from the symptoms, and that the whole is greater than the sum of its parts.¬† This has wrought a profound change in every aspect of her life, from interpersonal relationships with her family, friends and partner to her ability to love, work, play, exercise, relax, sleep, and her ability to move forward with her life.¬† I find that her prognosis is not hopeless, but is extremely guarded.¬† Although Ms. Shapiro is the type of person who will work hard to achieve as much improvement as is possible, I am satisfied that, on a balance of probabilities, nothing more than a modest improvement can reasonably be expected.¬† Accordingly, at the age of 29, Ms. Shapiro faces a lifetime of struggling with pain and fatigue in everything she does.
¬†¬†¬†¬†¬†¬†¬†¬†¬†I have considered the authorities to which counsel referred me, including¬†Dikey v. Samieian, 2008 BCSC 604;¬†Alden v. Spooner, 2002 BCCA 592, 6 B.C.L.R. (4th) 308;Prince-Wright v. Copeman, 2005 BCSC 1306;¬†La France v. Natt, 2009 BCSC 1147;¬†Pelkinen v. Unrau, 2008 BCSC 375;¬†Whyte v. Morin, 2007 BCSC 1329;¬†Niloufari v. Coumont, 2008 BCSC 816, varied 2009 BCCA 517; and¬†Unger v. Singh, 2000 BCCA 94.
¬†¬†¬†¬†¬†¬†¬†¬†¬†Each case must, of course, be assessed on its own facts.¬† Considering all of the circumstances, including her age at the time of the accident (23), the toll her injuries have taken on her, and her prospects for the future, I consider Ms. Shapiro’s plight to be considerably worse than that of, for instance, the older plaintiff in the recent decision of¬†La France($80,000) and worse than the older plaintiff in¬†Prince-Wright¬†($100,000).¬† I have considered as well the very recent decision of the Court of Appeal in¬†Poirier v. Aubrey, 2010 BCCA 266, where the 38-year-old plaintiff‚Äôs non-pecuniary damages were increased to $100,000.¬† I assess Ms. Shapiro‚Äôs non-pecuniary damages at $110,000.
This¬†decision¬†also has a useful discussion of the law of ‘diminished earning capacity‘ and ‘failure to mitigate’ and is worth¬†reviewing¬†in full for the Court’s comments on these areas of law.
If you’re researching the non-pecuniary value of post traumatic fibromyalgia cases you can click here to access my recent archived posts.
February 19th, 2010
One set of facts personal injury lawyers frequently encounter are Plaintiffs who sustain injuries in motor vehicle accidents and continue to have chronic pain well beyond the time that the objective injuries have healed.
Pain is an inherently subjective condition and it is well accepted in peer-reviewed medical literature that pain can be present without ongoing objective physical injury. ¬†So how do courts deal with such claims? ¬†Without getting into the many nuances of trial outcomes a general theme in these types of cases is credibility. ¬†If a court accepts that a Plaintiff’s claims are credible then these claims are generally accepted. ¬†Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Sylte v. Rodriguez) the Plaintiff was involved in a 2005 motor vehicle collision in Port Coquitlam, BC. ¬†The Defendant failed to yield the right of way to the Plaintiff when he made a left hand turn in front of her. ¬†The issue of fault was admitted leaving the Court to deal with the value of the Plaintiff’s injury claim.
Mr. Justice Sewell awarded the Plaintiff just over $114,000 in total damages for her injuries and losses. ¬†The award included $45,000 for non-pecuniary damages. ¬†In arriving at this figure Mr. Justice Sewell discussed the subjective but real nature of the Plaintiff’s ongoing lower back pain due to soft tissue injuries. ¬†The highlights of the Court’s discussion were as follows:
 Ms. Sylte continues to suffer from left side back pain around her sacroiliac joint area.¬† In Dr. Shu‚Äôs opinion this pain is caused by the initial car accident of September 15, 2005, but is definitely aggravated by the second accident.¬† Dr.¬†Shu does not expect a complete recovery as the pain has been on-going since 2005.¬† He thinks that Ms. Sylte will experience on-going back pain for the foreseeable future.
 I also heard evidence and was provided with medical reports from Dr. Stone and Dr. Duncan McPherson.¬† I do not think it is necessary to refer to their evidence in any detail.¬† In this case, the consensus of medical opinion is that Ms. Sylte is suffering from low back pain in the left sacroiliac area.¬† The doctors also all agree that there is no objective evidence of underlying injury causing this pain.¬† They are all of the view that as the pain has persisted since June 2005 it will in all likelihood continue to persist for the foreseeable future.
 Dr. McPherson‚Äôs initial opinion was that there was no objective evidence of disability.¬† However in cross examination at trial he did agree that he thought Ms.¬†Sylte still had back pain as of the date of his examination in 2006.¬† I did not take him to be disagreeing with Dr.¬†Shu‚Äôs opinion that Ms. Sylte will probably continue to suffer from ongoing back pain for the foreseeable future.¬† However, I do not think that Dr. Shu considered that Ms. Sylte suffers from any significant disability as a result of her injuries.
 The conclusion I have reached is that any restriction on Ms. Sylte‚Äôs activities is caused by pain rather than physical limitation.¬† The pain is however very real to Ms Sylte and the functional effect of that pain is that Ms. Sylte no longer feels able to do all the things she did before the accident.
 Based on the evidence before me I conclude that Ms. Sylte suffered a soft-tissue injury to her lower back in the motor vehicle accident which continues to cause her chronic pain in her lower back area.¬† I also conclude that she developed depressive symptoms which she would not have developed had the accident not occurred…
 Ms. Sylte is 51 years old.¬† She testified that prior to the first motor vehicle accident she was an active, energetic individual.¬† She enjoyed playing mixed softball, golf and skiing.¬† She was employed as a nurse‚Äôs aide at the Royal Columbian Hospital in New Westminster.¬† She was a single mother whose adult son, Josh, lived with her.
 Ms. Sylte said that as a result of the pain which she is now experiencing she is no longer able to play softball and can golf only very occasionally.¬† She simply finds these activities too painful to pursue.¬† In addition she no longer skis.¬† She indicated that Josh is now required to do many of the more physically demanding tasks around the house.¬† She also indicated that she finds it difficult to drive long distances and that her general quality of life has deteriorated significantly as a result of her pain.¬† She indicated that this pain is about 4 out of 10, with 10 being the worst pain imaginable.
 Josh gave evidence at the trial.¬† He generally corroborated the drop in Ms.¬†Sylte‚Äôs activity level since the motor vehicle accident.¬† He also indicated that his mother had become much less social after the accident.¬† Josh, who is now 31, does much of the heavy work around the house.
 Ms. Sylte has suffered a significant impact on her social and recreational life as a result of the injuries she suffered in the accident.¬† The evidence before me is that these symptoms will be permanent.¬† I note that Ms. Sylte is no longer able to play softball, participate in golf in any meaningful way or pursue skiing.¬† She is in more or less constant discomfort from the injuries she has suffered.¬† As I have found, she is genuinely experiencing the pain which, I have no doubt, has some psychological component.
 I have concluded that there should be a substantial award for non-pecuniary damages in this case.¬† I was referred to in a number of cases which seem to establish a range of approximately $35,000 to $125,000 for non-pecuniary damages for plaintiffs who suffer permanent pain symptoms without significant physical disability.¬† In my view, an appropriate amount for non-pecuniary damages in this case is $45,000.
January 27th, 2010
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering the value of chronic soft tissue injuries following a motor vehicle collision.
In today’s case (Harris v. Zabaras) the Plaintiff was injured in a pretty forceful rear-end collision involving two pick up trucks. ¬†Fault for the crash was admitted leaving the Court to focus on the extent and value of injuries and loss.
The Plaintiff suffered from soft tissue injuries to his neck and upper back in the collision. ¬†The injuries, while they improved somewhat by the time of trial, were expected to have some lasting consequences. ¬†In assessing the non-pecuniary damages at $50,000 Madam Justice Schultes provided the following analysis:
 Adjusted to current dollars, a guide to the range of awards for soft tissue injuries accompanied by emotional problems such as sleep disruption, nervousness or depression is approximately $42,000 – $150,000:¬†Unger v. Singh,¬†2000 BCCA 94 at para. 32…
 When characterizing the effects of the plaintiff‚Äôs injuries for the purposes of non-pecuniary damages, I do not think it is helpful to attempt to choose between the labels of ‚Äúmild‚ÄĚ and ‚Äúmild to moderate‚ÄĚ that have been offered by two of the medical witnesses. At the end of the day, what is important is the pain the plaintiff experiences as a result of the injuries and how that impacts his life.
 In that regard, while there has been some reduction in the frequency of the plaintiff‚Äôs headaches, he remains subject to neck and left arm pain whenever he undertakes strenuous physical activity. As Dr. Travlos put it, ‚Äúhe will generally pay the consequences for doing such activities‚ÄĚ.
 The extent of his resulting disability is that he must either avoid strenuous physical activity or divide it into more manageable chunks that will not provoke symptoms. This compromises his ability to engage fully in the recreational building or maintenance activities that have previously been a source of pleasure to him and in turn has led to a level of depression in the face of his more limited prospects.
 Even if he is able to relieve his symptoms somewhat through the steps that have been recommended to him, the consensus of medical opinion is that they will persist.
 However I note that the plaintiff speaks of being unable for the most part to engage in these activities any longer whereas Dr. Travlos has encouraged him to continue to be as active as possible, bearing in mind that his capacity for working continuously will be reduced and that he will experience pain as a result.
 This relates to Dr. Devonshire‚Äôs observation that the plaintiff may be over-rating his pain, because he has not required any ‚Äúsignificant analgesia‚ÄĚ ( by which I think she means prescription- level painkillers) to control it.
 While I am satisfied that the physical symptoms that the plaintiff, his wife and the Grieves have described are genuine, he nevertheless appears to view them as imposing somewhat greater limitations on his physical activities than may actually be the case.
 Perhaps the fairest way to characterize the effect of his symptoms is that they place meaningful restrictions on his ability to pursue strenuous physical activities in the manner and to the extent that he previously did…
 Taking into account all of the circumstances and the authorities, I think that an award of $50,000 for non-pecuniary damages is appropriate in this case. In arriving at this amount I am mindful of the fact that the award in¬†Hanna,¬†when adjusted to current dollars, falls within a similar range, even though it involved a brachial plexus injury. The effect on the plaintiff in that case however, was quite similar to the plaintiff‚Äôs situation, so I do not think that diagnosis in itself limits its applicability.
The Plaintiff’s damages were reduced by 10% for failing to take some steps which could have improved his accident related symptoms. ¬†The court’s discussion of ‘failure to mitigate’ set out at paragraphs 80-88 of the reasons for judgement are worth reviewing for a quick introduction to this area of personal injury law.
January 21st, 2010
(Please note the case discussed here was overturned by the BC Court of Appeal in May, 2010)
Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry, (Poirier v. Aubrey) awarding a Plaintiff just over $220,000 in total damages as a result of a BC Car Crash.
The Collision occurred in 2006 and was a rear-end crash. ¬†The Plaintiff suffered from some pre-existing injuries but the trial judge found that the Plaintiff did not have a ‘relevant’ pre-existing condition. ¬†Mr. Justice Stewart concluded that the accident caused fibromyalgia and awarded $60,000 non-pecuniary damages. ¬†In arriving at this figure Mr. Justice Stewart noted the following:
there was no relevant significant pre-existing condition and the doctors may differ as to what label should be applied to the plaintiff‚Äôs condition¬†‚Äď fibromyalgia, fibromyalgia-like syndrome, chronic pain condition¬†‚Äď but the fact is that she suffers from chronic widespread pain that is, for her, debilitating and with respect to which the prognosis is guarded.¬† An ‚Äúoptimal fibromyalgia based treatment protocol‚ÄĚ, including biofeedback, is recommended and there is a real and substantial possibility, bordering on likelihood, that her pain and discomfort will be relieved and her functioning improved.¬† (Exhibit 5 Tab B Page 6).¬† But no ‚Äúcure‚ÄĚ is in prospect…
I find as a fact that the plaintiff‚Äôs persistent, consistent and, ultimately, chronic pain and suffering arose only immediately after the September 5, 2006 motor vehicle accident.¬† The schism in the expert medical evidence placed before me was not as to whether the September 5, 2006 trauma was a materially contributing cause of the plaintiff‚Äôs ongoing chronic pain condition but as to whether it so contributed by exacerbating a pre-existing chronic pain condition or by simply triggering a chronic pain condition.¬† It is now a fact that there was no significant pre-existing condition.¬† The only available conclusion in the case at bar is that but for the defendant‚Äôs negligence on September 5, 2006 the plaintiff would not be burdened with the chronic pain condition that has been her lot since September 5, 2006.
 Soft tissue damage is the source of her problems.¬† I have kept Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) in mind.¬† I find that the plaintiff is one of that small percentage of people, well known to the law, whose pain and suffering continues long after science would say that the injured tissue must have healed.¬† I have cautioned myself about the need to be slow to rely on what are uncorroborated reports of long-standing pain and discomfort.¬† But, on the whole of the evidence I have decided that her complaints of pain are true reflections of a continuing injury and are not a product of desire by the plaintiff for things such as care, sympathy, relaxation or compensation and that she has used every ounce of willpower she has to overcome her problems and could not reasonably be expected to have achieved more by her own inherent resources or willpower.¬† (Maslen v. Rubenstein,supra, paragraphs 8 and 15).
 I turn to the future.
 To use language employed by Dr. Jaworski, the prognosis is ‚Äúguarded‚ÄĚ.¬† Taken together, the evidence of Dr. Hyams, Dr. Shuckett and Dr. Jaworski bottoms the conclusion that what is now in place¬†‚Äď an ongoing, positive, pro-active approach, to echo Dr. Shuckett¬†‚Äď means that there is a real and substantial possibility that significant improvement is in the offing.¬† To date, the plaintiff has sought help in such things as prescription drugs, chiropractic treatments, physiotherapy, massage, acupuncture and trigger point injections.¬† Only now is the plaintiff in the course of an organized effort to both alleviate her pain and discomfort to the extent possible and teach her techniques and methods of dealing with and surmounting her pain and discomfort.
 I turn to the assessing of non-pecuniary damages.¬† The plaintiff has been burdened thus far for 39 months.¬† Her prospects are not bleak, but guarded.¬† The level of the pain and discomfort she has endured was such that her life apart from work has been turned from one full of activity to one devoted to rest and recovery.¬† She is not housebound.¬† She drives a car for up to 20 hours a week and makes herself useful in the lives of her children.¬† The level of her pain and discomfort resulted in this woman¬†‚Äď whom I am convinced is not a slacker and enjoyed her job in the world of insurance adjusting¬†‚Äď being off work for six weeks, returning to work at half-time for two months and, ultimately, stopping work after having her employer cooperate in every way possible to reduce the demands of the job so that she could continue working.¬† That speaks volumes about her condition.¬† Additionally, the fact she actually enjoyed her work and has had it curtailed as a result of the defendant‚Äôs negligence must weigh heavily in the assessment of non-pecuniary damages.¬† I have considered the cases placed before me by counsel.¬† To track some of the language used in Knauf v. Chao, 2009 BCCA 605, I classify this as a case in which there is a real and substantial possibility that the plaintiff‚Äôs soft tissue injury will prove to be ‚Äúpermanent‚ÄĚ but the degree of pain and discomfort cannot be considered to be ‚Äúthe most severe in nature‚ÄĚ when compared with that of plaintiffs in other such cases.¬† Taking into account not just what I have said here but the whole of the evidence and all I have said thus far in these reasons for judgment, I award the plaintiff $60,000 by way of non-pecuniary damages.
This case was interesting for Mr. Justice Stewart’s very specific reasons setting out why he rejected many of the defence positions advanced at trial and also for the Court’s discussion of the law of adverse inference for failing to call a treating physician in an injury claim.
December 30th, 2009
Reasons for Judgement were released today by the BC Supreme Court, Vernon Registry, (Donnelly v. Durham) awarding a Plaintiff just over $67,000 in total damages as a result of a BC Car Crash.
The Plaintiff’s collision occurred in 2005 and was a significant rear end impact that resulted in $10,000 of damage to her vehicle. ¬†The issue of fault was admitted by ICBC’s lawyer leaving the court to deal with the issue of quantum of damages.
The Court found that the 52 year old plaintiff was “healthy and active with no history of musculoskeletal injuries” before the crash. ¬†Mr. Justice Cole found that the Plaintiff suffered various injuries as a result of the crash which continued to limit her by the time of trial. ¬† ¬†The Court accepted the evidence of Dr. Apel, a specialist in physical medicine. ¬†Mr. Justice Cole summarized her evidence as follows:
 Dr.¬†Apel, a specialist in physical medicine and rehabilitation, in a report dated February 8, 2008, diagnosed the plaintiff with mechanical lower back pain, pain in the buttocks, mechanical pain of the thoracic back, pain in the back of the thigh and in the area of the inside of the knee.
 In regards to the plaintiff not recalling hitting her knee in the accident, Dr.¬†Apel explained that the knee is connected to the hip and buttock by way of the IT band and the tension in the plaintiff‚Äôs hip and lower back could cause malalignment of the thigh which can then cause pain to the inside of the right knee.
 Dr.¬†Apel was of the view that the plaintiff‚Äôs injuries and symptoms are due to the collision and considering the negative prognostic factors, her age, chronicity of symptoms, and lack of improvement to date, that the prognosis for complete symptom resolution is guarded.
In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Cole stated as follows:
 I am satisfied that the plaintiff was a credible witness, that she had no pre-existing injuries that were ongoing at the time of the motor vehicle accident. I also accept her evidence with respect to her current symptoms, and more particularly with respect to her right knee and I am satisfied that her right knee was injured in the motor vehicle accident and therefore, but for the defendant‚Äôs negligence, her injuries would not have occurred.
 As a result of the motor vehicle accident, the plaintiff sustained soft tissue injuries to her neck, back, right hip and right knee with radiating pain into her foot. She has also suffered from persistent painful headaches. Her symptoms, besides the radiating pain, have plateaued and her prognosis for any further recovery is guarded.
 I am satisfied that the plaintiff is a stoic individual who has done her best to work through her pain and that due to the length of time that she has had difficulties with her back and headaches, a long term prognosis is guarded…
 I find that the appropriate award for non-pecuniary damages is $55,000. This includes compensation for the plaintiff‚Äôs loss of future housekeeping capacity, which I found to be significant. Entertaining, cooking and keeping a clean house were some of the plaintiff‚Äôs priorities and activities that she derived a great deal of pleasure from.
December 12th, 2009
If you are involved in an ICBC Injury Claim and have significant gaps in your medical treatment will that reduce the value of compensation you are entitled to? ¬†The answer is not necessarily. ¬†If the gaps in medical treatment are unreasonable and the evidence demonstrates that more frequent medical intervention would have improved the course of recovery then the claim can be reduced for “failure to mitigate“. ¬†However, a gap in medical treatment in and of itself will not reduce a claim for damages and reasons for judgement were released yesterday by the BC Supreme Court demonstrating this.
In yesterday’s case (Sidhu v. Liang) the Plaintiff was injured in 2 BC Car Crashes, the first in 2004 and the second in 2008. ¬†He was not at fault for either crash. ¬†He sued as a result of both accidents and the trials were heard at the same time. ¬†The Court was asked to deal with the value of these ICBC Claims. ¬†In the years from the first collision to the time of trial there were some significant gaps in accident related medical appointments. ¬†One such gap was over 25 months. ¬†The Defence Lawyer argued that the Plaintiff’s injuries were minor and healed quickly as evidenced by the significant gap in treatments.
Madam Justice Russell rejected this argument and held “I am prepared to conclude on the balance of probabilities of the evidence, that the current soft tissue injuries the plaintiff exhibits and the continuing pain that he has suffered are a result of the first accident which have continued to date, and have been aggravated by the second accident and therefore would not have occurred but for the defendants‚Äô negligence.¬† I believe the plaintiff has continued to experience this pain despite the gap in his treatment, and while work has aggravated it, there is no evidence of an intervening event that could be attributed as the cause.”
The Court went on to award the Plaintiff $36,000 in Non-Pecuniary Damages. ¬† In doing so Madam Justice Russell summarized the accident related injuries and their effect on the Plaintiff as follows:
67] The plaintiff‚Äôs position, which I accept, is that the medical evidence establishes that the first accident caused musculoligamentous injuries to his neck, back, hips, and elbows, resulting in chronic, persistent pain which continues to restrict his vocational, social and recreational activities. ¬†Furthermore, the second accident caused a minor aggravation of the musculoligamentous injury to his neck.
 As a result of the injuries he sustained, the plaintiff has experienced functional limitations due to ongoing symptoms in his neck and left upper back, as well as residual symptoms in the elbows, and mid to low back.¬† These injuries interfere with his work ability as well as his ability to do chores and participate in his family construction project.¬† His wife and father have had to take on the physical household chores. ¬†His wife testified that he became less physically active and has decreased his participation in family activities. ¬†The plaintiff‚Äôs wife also testified that his pain has caused him to be moody and he also claims to have experienced emotional difficulties in the form of increased stress as a result of the accident.¬† Because of his modified work ability, the jobs he can take require him to work longer hours for less money and therefore he is facing increasing financial pressures, has less free time and therefore has decreased his social activities, all of which he asserts leads to his stress…
 While I have concluded that, according to the medical evidence, the accidents were the cause of the injuries, these injuries are improving, albeit slowly.¬† Dr.¬†Gandham has estimated that the plaintiff will recover within two years and Dr.¬†Heshler gives a similar guarded prognosis. ¬†Dr. Connell is also optimistic.¬† Given that the plaintiff is young and healthy with a good prognosis for recovery, I am convinced that he will make a full recovery and thus assess his damages at 80% of the amount put forward by counsel, as I note the amount suggested is the upper range for these types of injuries.
July 30th, 2008
Reasons for judgement were released today awarding an ‘ideal Plaintiff’ just over $100,000 in total damages as a result of a 2006 BC Car Crash which occurred near Kelowna, BC.
Both fault and quantum (value of the injuries) were at issue at trial. The collision happened when the Plaintiff’s vehicle, which was stationary, was hit by the Defendant’s tractor trailer unit. The evidence that was accepted was that the tractor trailer, while passing the stationary vehicle, jackknifed to its right. The collision was significant causing about $12,000 in vehicle damage.
The Defendant gave a different version of what happened saying that the Plaintiff vehicle ‘suddenly and without warning turning into his vehicle’. This was rejected.
This case is worth reviewing for Mr. Justice Josephson’s findings of credibility. In rejecting the defendant’s evidence he noted that the defence theory ‘is contrary to locig and common sense‘ and that the defendant’s testimony was ‘impatient, dogmatic and almost haughty‘.
As is often the case in ICBC claims the court heard from competing medical expert who disagreed as to the extent of the injuries sustained. Here the court preferred the evidence of the Plaintiff’s expert, a highly regarded rheumatologist who is no stranger to severe soft tissue injuries.
The court accepted the Plaintiff’s doctors evidence of injury which is summarized at paragraph 23 of the judgement reading as follows:
 She diagnosed the problem as being with the sacroiliac joint, a joint located between the tail bone and the hip. Ligaments cross over the sacroiliac and can be stretched in a motor vehicle accident, particularly if a foot is pressed on a brake pedal at the time, which can cause the symptoms of pain experienced by the plaintiff. While not certain, Dr. Shuckett was of the opinion that the plaintiff‚Äôs hyper-mobility may have exacerbated the injury. This type of injury is difficult to treat when, as in this case, recovery has not occurred. Medicines are not effective as the sacroiliac area does not have a rich blood supply.
In explaining why he preferred Dr. Shuckett’s evidence to the defence doctor’s evidence the court noted that:
 I do not place great weight on the evidence of Dr. Schwiegel, a neurosurgeon retained by the defence for an independent medical examination. Dr. Schwiegel does not possess the same degree of expertise as does Dr. Shuckett in this type of injury. He did not diagnose the involvement of the sacroiliac joint in the symptoms, though now agrees that may be the case. Put simply, I prefer the expert opinion evidence of Dr. Shuckett where it conflicts with that of Dr. Schwiegel.
The court found that the effects of these injuries were significant, summarizing them as follows:
 In summary, as a result of these soft tissue injuries, the plaintiff has gone from a gifted and active athlete to a person unable to engage in sports and other activities that were a large and important part of her life. It has affected her personal relationships. For example, family and friends now see her retreat to the sofa in pain after a family dinner. Only her strong will and determination has led to some improvement in her symptoms with aggressive physiotherapy. Her future remains ‚Äúuncertain‚ÄĚ. After the expiration of this much time and effort with only modest improvement, it may well be that significant symptoms will continue in the foreseeable future.
$48,500 was awarded for pain and suffering.
Also of interest is the judges awards for past and future wage loss. Here the Plaintiff was a commisioned sales person whose past income loss could not be caluclaed with real precision. Nonetheless compelling evidence was awarded that a loss occurred and an award was made. Simialry, it was found that the injuries may have an impact on future earnings and an award was made for loss of earning capacity.
In making an award for loss of earning capacity the court noted that:
 In this case, the plaintiff‚Äôs ability to perform at the high level she would have been performing but for the accident will be compromised by her injuries to some degree, though that degree is difficult to measure. Her determination and outstanding personal qualities will diminish that loss. Regular weekly appointments and daily multiple sessions of recommended exercises diminish her ability to perform to the same high level that she would have been able to perform but for the accident.
 Her physical limitations, as well, render her less marketable to potential employers in future. Employment requiring even temporary physical stress will not be available to her.
 The period of time that the plaintiff will be so affected is also difficult to measure. The best medical evidence is that her future is ‚Äúuncertain‚ÄĚ. That there has been so little improvement over the long period of time since the accident leads to the conclusion that recovery will more likely be long term than short.
 The plaintiff seeks a not unreasonable $20,000 for loss of earning capacity. I award the plaintiff $18,000.