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 ‘shoulder injury’

$75,000 Non-Pecuniary Damages for Chronic Shoulder Injury

April 20th, 2010

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff just over $137,000 in damages as a result of a BC car crash.

In today’s case (Moussa v. Awwad) the Plaintiff was injured in a roll over accident.  She was a passenger at the time.   The driver lost control of the vehicle and “swerved across the two eastbound lanes, then off the highway and into the ditch separating the east and westbound lanes of traffic, flipping at least once, landing on the roof, and flipping back onto its wheels, this time facing west. By the time the defendant’s vehicle came to a rest, the roof was crushed and the car windows were shattered.

ICBC admitted fault on behalf of the driver focusing the trial on the value of the Plaintiff’s claim.

The Plaintiff suffered various soft tissue injuries which improved.  His most serious injury was shoulder pain which caused restrictions and was not expected to recover.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000 Madam Justice Russell provide the following analysis:

I find that the plaintiff sustained injuries to his neck, left shoulder and left arm as a result of the Accident. While most of the injuries have resolved, the plaintiff continues to suffer pain and limitations with respect to his left shoulder. Various areas of the left shoulder have been implicated, including the AC joint, rotator cuff, and coracoid process. Although there was great confusion in the medical evidence about the mechanics of the injury to the plaintiff’s shoulder, whatever the mechanism of the injury, and in light of my finding that there was no intervening event, I am satisfied on a balance of probabilities that the ongoing symptoms in the plaintiff’s left shoulder were caused by the April 2004 Accident.

[154] None of the medical experts gave a positive prognosis of recovery or even improvement, and none could suggest further intervention or treatment that could contribute to a better prognosis for recovery. The plaintiff will, therefore, continue to face limitations and disabling symptoms related to pain in his left shoulder as a result of the Accident…

[160] The purpose of non-pecuniary damages is to compensate the plaintiff for losses such as pain, suffering, disability, inconvenience and loss of enjoyment of life from the time of the Accident for as long as such losses will likely continue. In Stapley v. Hejslet, 2006 BCCA 34 at para. 45, 263 D.L.R. (4th) 19, the majority of the Court of Appeal emphasized that:

… the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. … An award will vary in each case ‘to meet the specific circumstances of the individual case’.

[161] The Accident has impacted the plaintiff’s life profoundly. In the months immediately following the Accident, the plaintiff experienced flashbacks, intense pain and had difficulty sleeping. After the acute pain passed, the plaintiff continued to suffer from increases in pain when working and difficulty sleeping. To try to redress this, he underwent surgery, which was frightening for him, and required further rehabilitation. However, in the long run the surgery was not successful, his pain continued, and his prognosis for recovery is not good.

[162] Aside from pain, the plaintiff has experienced a loss of enjoyment of life. The plaintiff does not travel because it is difficult to carry or manage his luggage, he no longer engages in many of his recreational activities, he has experienced a great deal of emotional difficulty and he continues to restrict situations in which he may find himself a passenger in another vehicle.

[163] The plaintiff’s most significant limitation is related to work because he remains unable to work consistently and for extended periods of time at a computer and his discomfort and disability are directly proportional to the amount of time that he spends at the computer or operating a video camera. The plaintiff enjoyed his work and his career was a source of pride for him. Now his enjoyment of his work is undermined by his ongoing pain and disability…

166] In light of the injuries sustained by the plaintiff in the Accident and the negative prognoses contained in the medical evidence, I find the plaintiff is entitled to an award of $75,000 for general damages.

You can click here to access my archived summary of other recent BC Claims dealing with shoulder injuries.


More on ICBC Injury Claims and Video Surveillance; "Golden Years" Doctrine Discussed

March 26th, 2010

As I’ve previously written, video surveillance in and of itself does not harm a persons ICBC claim, being caught in a lie does.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this fact.

In today’s case (Fata v. Heinonen) the Plaintiff was involved in a 2006 BC collision.  Fault was admitted.  The Plaintiff suffered several injuries including “an obvious impingement syndrome at the shoulder“.  The Defendant disputed the severity of the Plaintiff’s injuries at trial.  Instead of relying on independent medical evidence, the Defendant sought to harm the Plaintiff’s case by relying on video surveillance which was taken the year following the collision.

The surveillance showed the Plaintiff doing various activities such as grocery shopping and unloading and loading objects into his vehicle.  This video surveillance did not harm the Plaintiff’s claim.  Why?  Because it did not show anything that contradicted the Plaintiff’s evidence at trial.  In explaining why the surveillance did not harm the Plaintiff’s claim Madam Justice Griffin held as follows:

[45] The videotape surveillance was not inconsistent with Mr. Fata’s evidence or that of his physicians.  Mr. Fata’s evidence was that his physicians and physiotherapist had recommended that he continue to use his left arm and shoulder, and that he attempts to do so.  No one has suggested that he has no use of his left arm and shoulder.   Neither Mr. Fata nor the physicians, who gave expert opinions on his behalf, suggested any marked limitation in Mr. Fata’s range of motion.  His primary complaint is that he has pain when he uses his left arm and shoulder.  The videotape did not disprove this evidence, nor did it seriously cast doubt on it.  A videotape cannot capture all pain but may illustrate signs of severe pain, for example, if the person being watched grimaces on doing certain activities.  Mr. Fata was not displaying obvious signs of pain.  The videotape perhaps illustrates that whatever pain Mr. Fata might have with ordinary day-to-day activities is manageable.

[46] I have concluded from reviewing the videotape evidence carefully and considering Mr. Fata’s explanations of it, as well as from my review of the medical evidence and Mr. Fata’s evidence of his ongoing symptoms, that Mr. Fata does continue to suffer ongoing symptoms in his left arm and shoulder that were caused by the motor vehicle accident of November 13, 2006.  Given the passage of time, it is likely these symptoms will continue indefinitely.  These symptoms are not severe, as Mr. Fata still has use of his left arm and can do most activities.  However, the symptoms are such that Mr. Fata does suffer pain with the use of his left arm and particularly with excessive use or lifting his arm over his shoulder.  The pain restricts him from some of these types of activities he might otherwise do.

The Court went on to award the Plaintiff $45,000 in non-pecuniary damages for his soft tissue injuries and shoulder impingement.

This case is also worth also worth reviewing for the Court’s explanation of the “Golden Years” doctrine.

  • The “Golden Years Doctrine” Explained

In personal injury claims BC Courts recognize that no two cases are exactly alike and the assessment of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) depends on the unique facts of any given case.

One principle that is sometimes used in assessing non-pecuniary damages is the “Golden Years” doctrine.  This principle recognizes the fact that the retirement years are particularly special and an injury affecting a person in their golden years may warrant a greater award for non-pecuniary damages.  Madam Justice Griffin succinctly summarized this principle as follows:

[88] The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality.  When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life.  Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age.  The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.).

[89] In short, it is Mr. Fata’s loss of enjoyment of life in recreation, home chores, and work that should be compensated for in an award for non-pecuniary damages…

[91] On the facts of this case, where Mr. Fata has suffered a loss of some enjoyment of life in every aspect of his life, I conclude that an appropriate award for non-pecuniary damages is $45,000.


$45,000 Non-Pecuniary Damages for Soft Tissue Injuries to Back, Neck and Shoulders

February 1st, 2010

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff just over $88,000 in total damages as a result of a 2006 BC car crash.

In today’s case (Dutchak v. Fowler) the Plaintiff was involved in a rear-end collision.  Fault was admitted by the Defence lawyer leaving the Court to deal with the sole issue of quantum of damages (value of the injury claim).  The Plaintiff suffered various soft tissue injuries which continue to bother her by the time of trial and these had a likelihood of continuing indefinitely into the future.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Sewell made the following observations about the severity of the accident related injuries:

22] While I accept that Ms. Dutchak has genuine symptoms, I do have some concerns that she has unrealistic expectations about the consequences of the physical activities in which she engages.  Ms. Dutchak runs 30 to 40 kms a week.  She also regularly exercises vigorously, plays squash three times a week and cycles for long distances on a regular basis.  These activities undoubtedly cause physiological stresses on her anatomy.

[23] It is apparent that engaging in these physical activities is an important part of Ms. Dutchak’s relationship with her husband.  Both Ms. Dutchak and her husband continue to place a high level of importance on physical activity and a good deal of their personal interactions with one another revolves around physical fitness and exercise activities.  In addition Ms. Dutchak’s self esteem is quite dependent on being fit and active.

[24] I have concluded that Ms. Dutchak is now able to engage in almost all of the activities she did before the accident, but at a price.  That price is a much higher level of pain and discomfort than before the accident.

[25] The preponderance of evidence before me satisfies me that it is unlikely that Ms. Dutchak’s symptoms will completely disappear.  However, I am also of the view that there is a reasonable possibility that she will experience some continued improvement as she adjusts to her altered circumstances…

[28] In the result, I conclude that Ms. Dutchak has suffered soft-tissue injuries to her upper back, shoulders and neck which have resulted in stiffness, pain and headaches, all of which are significantly aggravated by strenuous physical activity.  She continues to experience those symptoms.  My conclusion is that there is some prospect of continued improvement but that in assessing damages in this case, I should proceed on the basis that Ms. Dutchak will continue to suffer these symptoms indefinitely.  On the other hand, I also conclude that Ms. Dutchak is now able to perform virtually all of the tasks and activities that she did prior to the accident and, in particular, is able to engage in vigorous physical activity.  In carrying out these activities she has no mechanical limitations.  The only restriction on these activities is the pain which they cause.

[29] I have also concluded that Ms. Dutchak is highly motivated to continue with these activities and, in fact, is continuing to perform and engage in them notwithstanding the level of pain and the headaches that she experiences as a result…

In my view, this case is one in which an award of non-pecuniary damages should be at the lower end of the range for cases involving chronic pain.  I say this because Ms. Dutchak is able to engage in all of the activities she formerly did with the assistance of analgesic medicines and in the full knowledge that engaging in activities will often trigger pain for her.  In all the circumstances I award Ms. Dutchak $45,000 for non-pecuniary damages.


Non-Pecuniary Damages for Chronic Soft Tissue Injuries Discussed

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:

[66] 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…

[68] When characterizing the effects of the plaintiff’s injuries for the purposes of non-pecuniary damages, I do not think it is helpful to attempt to choose between the labels of “mild” and “mild to moderate” 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.

[69] In that regard, while there has been some reduction in the frequency of the plaintiff’s headaches, he remains subject to neck and left arm pain whenever he undertakes strenuous physical activity. As Dr. Travlos put it, “he will generally pay the consequences for doing such activities”.

[70] 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.

[71] 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.

[72] 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.

[73] This relates to Dr. Devonshire’s observation that the plaintiff may be over-rating his pain, because he has not required any “significant analgesia” ( by which I think she means prescription- level painkillers) to control it.

[74] 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.

[75] 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…

[79] 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’s 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.


BC Personal Injury Claims Round Up

August 15th, 2009

On Friday two more cases were released by the BC Supreme Court dealing with non-pecuniary damages which  I summarize below to add to this Pain and Suffering database.

The first case (Macki v. Gruber) dealt with a bus accident.   The Plaintiff’s vehicle was struck by a Greyhound bus in Duncan, BC.  Liability was contested but the Greyhound bus driver was found 100% at fault for the accident.  Paragraphs 1-60 of the case deal with the issue of fault and are worth reviewing for Mr. Justice Metzger’s discussion of credibility.  In finding the Defendant at fault the Court found that he was “careless” and that he “lied” and his evidence was rejected in all areas that it was in “conflict with the testimony of any other witness“.

The Plaintiff suffered various injuries, the most serious of which neck pain, headaches and upper back pain.  She was diagnosed with a chronic pain syndrome.  Mr. Justice Metzger assessed her non-pecuniary damages at $75,000 and in doing summarized the Plaintiff’s injuries and their effect on her life as follows:

[144] I find the chronic pain has made Ms. Mackie reclusive and morose. She has gone from a “bubbly, fun-loving, outgoing, social, interesting” person, to someone who is  anti-social, with bouts of depression and sadness. From the evidence of the plaintiff and Ms. Garnett, I find that the plaintiff defines herself as a very hardworking woman, but that the chronic pain prevents her exhibiting her previous commitment to work.

[145] This loss of enjoyment of life and identity is given considerable weight.

[146] I am satisfied the plaintiff is resilient and stoic by nature, and I do not doubt the extent of her pain and suffering. She has endured a regime of injections in order to retain some of her employment capacity. Plaintiffs are not to receive a lesser damage award because of their stoicism.

[147] I am satisfied that the plaintiff’s injuries and ongoing limitations are more like those cited in the plaintiff’s authorities and therefore I award her $75,000 in non-pecuniary damages.

__________________________________________________________________________________________________

In the second case released on Friday (Dhillon v. Ashton) the Plaintiff was involved in 2 separate rear-end collisions.  Both claims were heard at the same time and fault was admitted leaving the court to deal with the sole issue of damages.

Madam Justice Ross found that the Plaintiff suffered various soft tissue injuries in each of the 2 accidents.  She awarded non-pecuniary damages in total of $25,000 for both collisions.

In assessing an award of $15,000 for non-pecuniary damages for the first accident the Court summarized the Plaintiff’s injuries as follows:

[60]         I find that Mr. Dhillon suffered soft tissue injury to his neck, right shoulder and low back in the First MVA. He suffered from headaches arising from this injury, but these resolved in a relatively short period of time. The injury to the right shoulder had essentially resolved by mid-May 2005. I find, consistent with Dr. Sandhu’s report that Mr. Dhillon was unable to work as a result of his injuries from the time of the First MVA to mid-May 2005 and then continued to suffer partial disability at work until July 2005. By July 2005 he was able to return to work without limitation. I find that his injuries from the First MVA were essentially resolved by October 2005, except for intermittent pain, consistent with Dr. Sandhu’s report. From October 2005 until the time of the First Workplace Accident, Mr. Dhillon required the use of pain medication for low back pain that was the consequence of both his prior condition and lingering consequences of the First MVA.

[61]         In the result, I find that Mr. Dhillon suffered mild to moderate soft tissue injury from the First MVA with the symptoms most significant in the first three months following the injury; with some ongoing problems for the next five months and intermittent pain thereafter. I find the appropriate amount for non-pecuniary damages for the First MVA to be $15,000.00.

In assessing non-pecuniary damages of $10,000 for the second accident Madam Justice Ross summarized the injuries it caused as follows:

[64]         I find that Mr. Dhillon suffered soft tissue injuries in the Second MVA that resulted in an exacerbation of his injuries to his neck, shoulder, and low back. He had returned to work following the Second Workplace Accident before the Second MVA, but was not able to work after this accident. He required physiotherapy, chiropractic treatment and pain medication for both the continuing injuries from the Workplace Accidents, an apparent recurrence or continuation of the right side back problem first noted in 2000, and the Second MVA. Mr. Dhillon was able to return to work part-time in November 2006 and full-time in January 2007. He requires some accommodation from his employer in terms of his duties. He continues to experience pain and requires medication to control his pain. I find that the Second MVA plays some role, albeit a minimal one, in Mr. Dhillon’s continuing symptoms, the other more significant contributors being the original complaint of low back pain, and the two Workplace Accidents.

[65]         In the circumstances, I find that $10,000.00 is an appropriate award for non-pecuniary loss for the Second MVA


$45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

May 20th, 2009

Reasons for judgement were released today (Romanchych v. Vallianatos) by the BC Supreme Court, Vancouver Registry, awarding just over $132,000 in total damages to a Plaintiff injured in a 2006 BC Motor Vehicle Collision.  

The collision was a rear-ender on the Alex Fraser Bridge in Delta, BC.  The crash was forceful enough to write off the 24 year old Plaintiff’s vehicle.

Madam Justice MacKenzie of the BC Supreme Court summarized the Plaintiff’s injuries as follows:  

I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms improved over time, they have not resolved.   She currently suffers chronic neck and shoulder pain. She can manage her pain  level if she avoids aggravating her injuries by limiting her activities. The plaintiff is  also vulnerable to future episodes of jaw pain. I find in favour of the plaintiff’s  submission, except for small adjustments to the quantum of damages claimed. 

In awarding $45,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court engaged in the following analysis:

Conclusion on Non-Pecuniary Damages 

[71] On the whole, the expert opinions support a strong inference that the plaintiff’s injuries are chronic and that they will continue to affect her permanently. Given that she must limit her activities to minimize and manage her pain, the  evidence shows that it is probable that her pain and resulting limitations will continue  indefinitely. 

[72] I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms have improved over time, they have not resolved.   

[73] I also find that the jaw symptoms which arose in August 2007 were indeed caused by the accident of July 4, 2006. I also observe that the jaw symptoms experienced in December 2006 may have been related to the accident as well.    

[74] Both counsel rely on the non exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at paras. 45-46. The award for general damages, will of course, vary according to the specific circumstances of the individual case, but the factors include:   

(a) age of the plaintiff;  

(b) nature of the injury;   

(c) severity and duration of pain;   

(d) disability;    

(e) emotional suffering; and   

(f) loss or impairment of life;    

(g) impairment of family, marital and social relationships;   

(h) impairment of physical and mental abilities;   

(i) loss of lifestyle; and   

(j) the plaintiff’s stoicism (as a factor that should not, generally speaking,   penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).   

[75] The defendant relies upon the following cases as being reasonably analogous to this case and as supporting an award in the range of $15,000 to $22,500 for general damages: Kain v. Kirkman, 2006 BCSC 1770; Nickerson v. Allen Estate, 2006 BCSC 562; Aulakh v. Poirier, 2006 BCSC 2027, and my own decision in Moore v. Cabral, 2006 BCSC 920. However, those cases are all distinguishable from this case.   

[76] The plaintiff relies upon the following cases as supporting an award of $50,000 for general damages in this case: Henri v. Seo, 2009 BCSC 76; Chin v. McCabe, 2006 BCSC 1589; and Pavlovic v. Shields, 2009 BCSC 345. In my view, these cases are reasonably similar to this case and reflect analogous general damages.    

[77] Therefore, an appropriate award of non-pecuniary damages in this case is $45,000

One of the points of interest in this case was the courts comments on Dr. Goldstein. an oral medicine specialist, who ICBC often retains in jaw injury cases.  His evidence was rejected over the Plaintiff’s treating oral medicine specialist Dr. Gardner.  

Specifically, in finding bias in doctor Goldstein’s evidence, Madam Justice MacKenzie commented as follows:

[66] Dr. Goldstein’s bias in favour of the defendant’s case became evident during cross-examination. His attempt under cross-examination to distance himself from the meaning of the phrase emphasized in the above quote damaged his reliability as a witness. 

[67] I also view Dr. Goldstein’s opinion with scepticism because he was not forthright in his report about the fact that flexion extension injury from motor vehicle accident trauma could cause jaw symptoms. Under cross-examination, counsel for the plaintiff put one of Dr. Goldstein’s own articles to him in which he noted the close correlation between TMD and motor vehicle accident trauma. 


ICBC Pain and Suffering Round-Up

May 11th, 2009

With the Canucks losing game 6 and the series to the Blackhawks I figured its a fitting time to write about Pain and Suffering Claims in BC.

In the first case, Chan v. Kao, the Plaintiff suffered a left shoulder injury as a result of a 2006 motor vehicle collision.   Mr. Justice Verhoeven had credibility concerns with respect to some aspects of the Plaintiff’s testimony.  Despite this he concluded that “I have no difficulty in finding that Mr. Chan did in fact injure his left shoulder in the motor vehicle accident“.

In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering) at $22,000 the court summarized his injuries and prognosis as follows:

[65]            I accept that Mr. Chan has continued to have shoulder problems and pain since the accident.  The extent to which this has affected his work is impossible to gauge, in view of the unreliability of his evidence.  It seems likely that Mr. Chan has worked at various times and places since the accident, but has chosen not to testify about that work…

72]            In summary, I accept that the plaintiff’s left shoulder was injured in the motor vehicle accident, and that he continues to suffer, to some extent, from shoulder difficulties initially caused by the accident.  The evidence as to the extent to which the ongoing shoulder problem causes the plaintiff ongoing difficulty and disability with respect to his ability to work is subject to considerable doubt, due to the unreliability of the plaintiff’s evidence in this respect, and the lack of corroborating evidence.

[73]            While Dr. Lui’s prognosis of permanent disability is overly pessimistic, both orthopaedic surgeons are of the view that there are ongoing problems in the shoulder which require treatment.  In my view, treatment options have not been adequately explored.

In addition to referencing several cases dealing with pain and suffering values in BC for shoulder injuries this claim is worth reviewing to see how Mr. Justice Verhoeven dealt with his concerns regarding the credibility of certain aspects of the Plaintiff’s evidence.

The second ICBC Pain and Suffering Claim released today (Mattu v. Fust) involved a 2004 collision.  The Plaintiff was 39 years old at the time.  His vehicle was rear-ended with enough force to push it into the vehicle ahead of him.

The Plaintiff suffered various soft tissue injuries leading to chronic pain and headaches.  The court found that the effects of these would likely be permanent.  Madam Justice Brown summarized the medical evidence of the Plaintiff’s treating family physician as follows:

 

[31]            Dr. Parhar has been Mr. Mattu’s family physician since April 2004. He provided three reports to the court. In his first report of November 1, 2004, he diagnosed Mr. Mattu with paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches.  He had received ice, heat, rest, exercises, massage therapy, kinesiology, acupuncture, herbal medicine and medications: anti-inflamatories, analgesics and muscle relaxants.  With respect to prognosis and recommendations, Dr. Parhar was impressed by Mr. Mattu’s motivation to recover and try different treatments, but was concerned that he may be trying too many modalities.  He recommended limiting treatment to massage and physiotherapy and increasing active modalities such as swimming and exercises.  He anticipated further treatment and improvement.

[32]            In his report of May 26, 2006, Dr. Parhar found that Mr. Mattu continued to have decreased range of motion in the cervical spine, tenderness in the paracervical and paralumbar regions.  He found muscle spasm in the paracervical and paralumbar regions.  His diagnosis remained the same.  His prognosis for full recovery had worsened.  Mr. Mattu had tried a variety of treatments with minimal success.  Dr. Parhar’s recommendations were unchanged, but he thought that Mr. Mattu’s condition had plateaued.

[33]            In his final report of September 16, 2008, Dr. Parhar considered the MRIs of Mr. Mattu’s spine taken September 19, 2006, and July 28, 2008, and concluded that Mr. Mattu’s injuries included cervical and thoracic disc herniations.  He said: “… it is unclear if the cervical and thoracic disc herniations were caused by the motor vehicle accident … but certainly, this motor vehicle accident made these spinal lesions symptomatic.”  He commented on Mr. Mattu’s efforts to recover: “… pursued many more modalities of treatment than most patients would have. Despite all of these modalities his pain symptoms persist.”  He concluded that the prognosis for a full recovery was poor, that Mr. Mattu’s condition had plateaued and further improvement in his functioning or symptomatology was unlikely  

In awarding $60,000 for the Plaintiff’s non-pecuniary loss injuries and their effect on the Plaintiff’s life the court accepted the family physicians evidence and stated as follows  

[60]            I found the evidence of Dr. Parhar to be very helpful.  Dr. Parhar has seen Mr. Mattu regularly since shortly after the accident.  I accept his opinion that Mr. Mattu suffered paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches from the accident; that his condition has plateaued; and that it is unlikely there will be further improvement.  I also accept the opinions of Drs. Parhar, Hershler and Hunt that the accident likely caused the disc herniations in Mr. Mattu’s back to become symptomatic.  Mr. Mattu will continue to need chiropractic treatment from time to time and would benefit from a personal trainer.

[61]            I have considered the cases which counsel have provided to me.  In my view, an appropriate award for non-pecuniary loss is $60,000.


$70,000 Non-Pecuniary Damages Awarded for Back and Knee Injuries

April 29th, 2009

(Please note the past wage loss award in the case discussed below was varied slightly on appeal.  The BC Court of Appeal Judgement can be found here)

Here is the latest in my effort to continue to grow this online database of ICBC and other BC Personal Injury Cases addressing damages for pain and suffering.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Bradshaw v. Matwick) awarding a Plaintiff $268,389 in total damages as a result of injuries and losses suffered in a 2006 motor vehicle collision.

The crash was a rear end collision which occurred in Port Coquitlam.  Liability (fault) was admitted focusing the trial on quantum of damages (value of the injuries).

The Plaintiff was a 41 year old metal fabricator.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000  Mr. Justice Groves summarized the Plaintiff’s injuries as follows:

[32] By the time of trial, the plaintiff’s injuries were close to three years old.  I accept the plaintiff’s evidence that he continues to suffer from some level of disability resulting from the accident—he continues to suffer pain and he continues to have a disability which prohibits heavy lifting, prolonged standing, neck flexion, and sustained and repetitive reaching.  I accept the plaintiff’s evidence that at present, he continues to put all of his physical energies towards his work.  When he is not at work, he is resting and preparing for the next day of work.  The effect of the injuries caused by the accident have created a significantly lower quality of life for the plaintiff.

[33] As for the knee injury, the plaintiff continued to walk with a significant limp in court.  This is consistent with what is reported by:  his spouse, Sandra Bennett; his co-workers Rune Akerbakk and Ron Philbrook; and by his less than sympathetic employer, Rob Charland.  The evidence is suggestive that the medial tear may be repairable by surgery.  Of note, it took considerable time, despite the plaintiff’s desire early on for a MRI, to have the MRI performed.  There is no evidence before me as to when or if surgery to repair this knee is possible or scheduled…

[43] The plaintiff suffered injuries to his back, neck, shoulder and left knee.  He was unable to return to work for over three months after the April 26, 2006 accident, and then only with difficulty and on reduced hours.  Close to three years after the accident, the plaintiff continues to experience considerable pain in his neck and shoulder, back and knee.  The evidence is clear that his job as a metal fabricator involves physically demanding tasks which exacerbate these injuries.  He has not been able to return to his pre-accident performance levels at work.

[44] Two of the expert witnesses, Dr. Spooner and Dr. Vaisler, testified that the plaintiff may have a permanent disability as a result of the accident injuries.  The injuries and the corresponding pain levels have significantly affected the plaintiff’s quality of life and his relationship with his family, as he has little energy or ability to remain active outside of work hours and is frequently irritable and short-tempered as a result of the pain.

[45] The plaintiff’s lifestyle has been dramatically affected by the injuries he suffered in the accident.  The plaintiff, prior to the accident, was an active outdoorsman who regularly went fly fishing with his daughter at remote locations around the Lower Mainland and in southern British Columbia.  Since the accident he has completely curtailed this activity and his relationship with his daughter has suffered.  Prior to the accident, he was an active father with his young son, enjoying activities with his son in the yard, and in the home.  Since the accident his relationship with his son has resorted to playing video games or other activities which involved sitting and lying down, with no physical exertion.

[46] Ms. Bennett describes the plaintiff, prior to the accident, as a “fabulous 100% dad”.  She described that her daughter viewed him as “her god”.  Now the daughter does not want to hang around with her father any longer.

[47] The evidence suggests yard work and snow removal is simply left undone, as the plaintiff can no longer do it.

[48] Ms. Bennett describes her relationship with the plaintiff as “hell”.  She says that when the plaintiff is at home, the family is “walking on eggshells”.  The plaintiff is in near constant pain.  He has to immediately lie down after work.  His interaction with the family is minimal.  He is completed affected by the pain.

[49] His relationship with his wife, Ms. Bennett, who testified, has become tenuous at best.  Prior to the accident they enjoyed an active sex life—they no longer do.  For close to 2½ years, because of his injuries, the plaintiff slept on the living room floor rather than with his wife.  Prior to the accident, the plaintiff vacuumed, did dishes, and cleaned up around the house and was completely responsible for outside yard activities.  The plaintiff and his wife purchased a home on a quarter acre lot.  The home was, to use the vernacular, a “fixer upper”.  The home was repaired by considerable efforts of the plaintiff and the quarter-acre yard was completely landscaped by the efforts of the plaintiff.  Since the accident he has been unable to participate in home repairs or landscaping work.


BC Personal Injury Claims Round-Up

March 14th, 2009

On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.

In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:

In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision.  In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:

[101]        The trial occurred about five years following the accident.  Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities.  He is stoic and is inclined to push through pain until it becomes intolerable.  He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers.  He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.  

[102]        The evidence demonstrated on a balance of probabilities that these problems were caused by the accident.  Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods.  All the problems had resolved prior to the accident.  The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.

A highlight of this decision for me was the court’s discussion of credibility.  One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff.   That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:

[6]                The case of Price v. Kostryba (1982)70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain.  I quote portions of pages 397-399 of those reasons for judgment:

The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.

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The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC.  The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome.  Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue.   The Plaintiff was found 60% at fault for the collision.

In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:

[127]        I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back.  Further, I am satisfied that she developed and continues to suffer chronic pain as a result.  I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.

[128]        I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:

…her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

[129]        Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail.  He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.

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The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC.   The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches.  In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:

[112]        The issue of causation in this case is determined by applying the factors in Athey.  Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event.  I disagree.  I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident.  Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35. 

[113]        Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation.  In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch.  The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future.  The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication.  Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004.  I accept that he has tried every mode in an effort to alleviate his symptoms.  In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help.  I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.

[114]        Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness.  These are frustrating and to some extent debilitating.  He also has jaw, or temporal mandibular joint arthralgia and myofascial pain.  He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue. 

[115]        It is understandable that these conditions have affected him emotionally.  The opinion of Mr. Koch corroborates the plaintiff’s evidence.  I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms. 

I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims.  As always, I welcome any feedback from all my visitors.


$75,000 Pain and Suffering Awarded for Frozen Shoulder, STI's and Headaches

March 3rd, 2009

In lengthy reasons for judgement released today by the BC Supreme Court (Peake v. Higo) Mr. Justicer Brown awarded a 52 year old Plaintiff approximately $170,000 in total damages as a result of a 2003 motor vehicle collision.

The Plaintiff had pre-existing pain in her neck and back and these were aggravated as a result of this collision.  Additionally, the Plaintiff suffered a frozen left and right shoulder as a result of this collision.

In justifying a non-pecuniary damages award (pain and suffering) of $75,000 the court summarized the Plaintiff’s injuries as follows:

[145]        Considering all the pertinent evidence before me, I find that the plaintiff suffered an aggravation of pre-existing neck and low back pain that she had been experiencing at the time of the accident, together with the imposition of some new soft tissue injuries in those areas.  I find that when she was experiencing neck and back pain in the month or so preceding the accident, she was in a highly emotional psychological state that was magnifying her perception of pain at that time.  To take her symptoms at this time as representative of her physical health would be inaccurate and unfair, given her medical history as a whole and the accepted evidence of witnesses who testified about her pre-accident functioning and activities.  The plaintiff herself acknowledges that 90% would be a fair representation of her pre-accident health.  The evidence of Dr. Regan, which I have accepted with some minor qualification, is clear that the 2003 accident cannot be burdened with all of Mrs. Peake’s on-going post accident neck and back symptoms and headaches.

[146]        Mrs. Peake exhibited pre-accident degenerative changes in her cervical spine.  Dr. Webb commented that Mrs. Peake’s degenerative cervical spine, exhibited by x-ray and MRI imaging, pre-disposes her to more intense symptoms and prolonged recovery.  Just the same, she had already experienced symptoms in the neck (and low back) together with headaches pre-accident, with no recent physical trauma and only a heightened emotional state to partly explain the intensity of her symptoms at that time.

[147]        Further, the effect of Mrs. Peake’s emotional state in May 2003 on her symptoms, and the fact that, as Dr. Webb comments, Mrs. Peake has suffered depressed mood, anxiety and frustration in relation to her symptoms since the accident, is a factor that I should take into account in assessing the extent to which her symptoms have been influenced by her emotional state post accident—and that this bodes positively for further future improvement as her emotional state continues to improve.

[148]        Both Dr. Regan and Dr. Sovio’s opinions negate a direct relationship between Mrs. Peake’s lower back flare-ups and the accident.  This is a mechanical condition and the plaintiff has not established that her ongoing back flare-ups, certainly past the summer of 2006, are attributable to the accident.  At the same time, Mrs. Peake testified that her low back symptoms are different and more intense then those experienced pre-accident.  I find that some small portion of Mrs. Peake’s ongoing lower back symptoms relate to the 2003 accident.

[149]        There is little question that the 2003 accident caused Mrs. Peake’s left shoulder injury and frozen shoulder.  I accept Mrs. Peake’s sworn testimony that she continues to experience mild periodic situational discomfort and some functional limitation in the use of her left shoulder.

[150]        With respect to the more problematic question of the causation of Mrs. Peake’s right frozen shoulder, with recovery from that predicted to extend to some time in 2010, albeit in a less problematic way then was the case for the left shoulder, I find that the plaintiff has proven that her right shoulder injury and eventually frozen state was caused by the accident….

[154]        Turning to Mrs. Peake’s neck symptoms and headaches, and Mr. Pankratz’ submission that “but for the subsequent traumatic events of 2006, this condition “would have” resolved completely,” Dr. Regan did not testify that the condition “would” resolve; but “should” resolve.  I note that when he wrote his second report, he was aware of ongoing neck complaints and headaches; but made no skeptical comments about their having continued her he last saw Mrs. Peake.  Mrs. Peake continues to experience neck pain and headaches that frequently cause her to awaken in the middle of the night with a “terrible headache” that can last for a few days – bearing in mind that Mrs. Peake has a history of pre-accident headaches.  Further, Mrs. Peake confirms ongoing improvement; and indeed in the summer of 2006 experienced extended pain-free periods, as stated earlier.  I bear in mind as well that she has suffered a right frozen shoulder, but  that continues to improve and should resolve completely by 2010; and with improvement in that condition she should see further relief in her neck, noting that she saw considerable improvement when her left shoulder pain and limitation more or less resolved.

[155]        The evidence does not support the gloomier aspects of Dr. Webb’s prognosis considering Dr. Regan’s expectations that Mrs. Peake’s neck pain and accompanying headaches, should eventually recover and Dr. Regan’s opinion that negates a continuing connection between her lower back symptoms and the accident.  In my assessment of non-pecuniary damages, and considering Mrs. Peake’s pre-accident condition, I see the medical and other evidence going so far as to support a finding of a possibility that Mrs. Peake will in future continue to suffer some minor residual neck sequelae and headaches that are attachable to the accident, although the most likely outcome is complete recovery from those within two years, insofar as the effects of the 2003 accident are concerned.