ICBC Law

BC Injury Law and ICBC Claims Blog

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 ‘dislocated elbow’

Pain and Suffering for Dislocated Shoulder / Elbow and Soft Tissue Injuries

November 20th, 2008

Reasons for judgement were released today awarding damages as a result of injuries and loss from a 2002 BC motor vehicle collision.

The Plaintiff was a passenger.  He was involved in a single vehicle accident.  The collision was significant and is described at paragraph 2 of the reasons for judgment as follows:

                The thirty-two year old plaintiff was travelling from Prince Rupert to Terrace as passenger with three children in a car driven by the defendant, Crystal Caroline Bird (“Bird”), when Bird lost control of the vehicle after encountering ice on the highway.  The vehicle, a 1998 Toyota van owned by Bird, crossed the centre line of the highway and rolled twenty feet down an embankment, flipping over before it landed.  According to Wilson, he lost consciousness briefly in the accident and felt pain in his shoulder, elbow and left knee immediately.  He bled from his head, having hit the window.  His back hurt.  A passing driver was hailed and managed to open the passenger door.  Wilson got out of the vehicle and sat, waiting for the ambulance.  The vehicle was very significantly damaged.

The Plaintiff sustained some fairly serious injuries and these, along with their recovery, are summarized well at paragraph 31 of the judgement which I reproduce below:

The plaintiff suffered a dislocated right shoulder, dislocated left elbow, contusion and sprain of the left knee, mild sprain of the cervical spine, and multiple contusions and bruises in the motor vehicle accident of November 30, 2002.  I accept Dr. Kokan’s assessment that the plaintiff’s left knee was not dislocated in the accident but was probably sprained and has fully recovered.  The right shoulder had largely resolved by August 2003 but remains vulnerable to re-injury.  The left elbow has been the greatest problem, heightened by the lengthy wait for surgery.  The plaintiff has lost about ten percent of the movement in this elbow and has residual tenderness.  The incapacity is, however, mild and the plaintiff still has a good range of motion in the elbow.  The left knee had largely resolved to its pre-accident state by June 2005.  It is difficult to ascribe continuing lower back pain to the accident.  I conclude that there was some accerbation of the historical back pain in the accident but do not find that continuing problems can be attributed to the accident.  The plaintiff’s scalp laceration and facial abrasions have healed.

In awarding $85,000 for the Plaintiff’s Pain and Suffering the court made the following observations:

[34]            Wilson’s injuries here are more significant that in either Thorp or Foreman.  The plaintiff required two surgeries for the left elbow dislocation (including a closed reduction) and a closed reduction of the dislocated right shoulder, among other injuries described above.  Wilson has greater permanent restriction in movement of the left elbow than did the plaintiff in Thorp and still has nagging pain.  He is stoical about the continuing pain and discomfort.  Although I do not find that the permanent elbow restriction hinders recreational activity, the plaintiff’s right shoulder injury caused pain when swimming until June 2005.  The plaintiff suffered while he waited for surgery between 2003-2006.  I assess non-pecuniary damages at $85,000.


BC Supreme Court Awards $50,000 Non-Pecuniary Damages for Dislocated Elbow

May 20th, 2008

In reasons for judgement released today, Mr. Justice Wilson awarded a total of $180,995.90 plus Court Costs in compensation to a young man who was injured as a passenger in a 2004 motor vehicle collision in Ucluelet, BC.

The Plaintiff was a back seat passenger. His vehicle left the road and hit a tree.

The court made its findings of fact addressing injuries at Paragraph 26 of the judgement where the court held that:

[26] In the result, then, I conclude that Mr. Thorp sustained a minor injury to his wrist which had cleared up within two weeks. I also conclude that he sustained a posterolateral dislocation of the right elbow. Although Mr. Thorp did well in his recovery in the initial period, he continues to have some restriction on range of motion and ongoing discomfort, particularly in performing physical activities. Although the pain may be due to the calcification in the elbow which might go away over time, he can expect to have that for a considerable period of time. I accept the opinion of Mr. Vanderboer that Mr. Thorp does have pain-related limitations in the strength of his right arm, and his endurance and tolerance for activity. I thus accept Mr. Vanderboer’s opinion that he is not physically capable of manual labour-type occupations, and the opinion of Dr. Gutmanis that if he chose to pursue more physical work, he would have greater likelihood of the development of post traumatic arthritis. I also accept Mr. Thorp’s evidence that, as a result of the ongoing pain, he has restricted many of his previous physical activities.

The court did a great job reviewing applicable case law addressing loss of future earning capacity at paragraphs 53-68 of the reasons for judgement.  This was necessary because the Plaintiff was a young man with a potentially permanent elbow injury.  The effects of this closed the door to certain employmnet opportunities thus giving rise to a claim for future wage loss.  After applying the facts to the law Mr. Justice Wilson awarded a total of $50,000 for Loss of Future Earning Capacity.

Damages of $50,000 were awarded for Pain and Suffering and a further $80,000 was awarded for past wage loss.

This is one of the few recent BC court cases addressing fair compensation for non-pecuniary loss (pain and suffering) for a dislocated elbow.  The difficulty the lawyers had finding similar elbow injury cases to help guide the court is acknowledged at paragraph 29 of the judgement.  If you are engaged in settlement negotiations with ICBC for pain and suffering for an elbow injury this case is worth a quick read.

Do you have questions you would like answerd by an ICBC Claims Lawyer regarding an elbow injury? Click here to contact Erik Magraken for a free consultation to discuss your claim.