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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

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Posts Tagged ‘TOS’

$100,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

November 23rd, 2017

Adding to this site’s archived damage assessments for thoracic outlet syndrome, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.

In today’s case (Sharma v. MacDonald) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for.  The Plaintiff suffered a variety of injuries the most serious of which was thoracic outlet syndrome.  The symptoms lingered to trial and were expected to cause some ongoing limitations.  In assessing non-pecuniary damages at $100,000 Madam Justice Maisonville provided the following reasons:

[198]     …I find that the defendants are responsible for the plaintiff’s neck, back, and arm issues.  In my view, the plaintiff has established on a balance of probabilities that she suffers from thoracic outlet syndrome, as concluded by Dr. Hawkeswood, and that this injury was caused by the defendants’ negligence.

[199]     With respect to anxiety, I accept that the plaintiff suffers from anxiety in relation to driving…

[203]     Regarding non-pecuniary damages, I find that the plaintiff enjoyed a full life before the Accident and had no issues with respect to her neck and back.  Nor did she have a tingling feeling in her arm or numbness of her right arm.

[204]     I find that, as she testified, the plaintiff did not have to rest after having performed her regular activities. I also find that she did not experience headaches or low mood symptoms prior to the Accident.

[205]     I do find, however, that the plaintiff has been steadily improving.  I note that she enjoys playing basketball.  I note that she now works without significant limitations.  I note that she has gone back to a number of her pre-Accident activities.  She is not as socially isolated now that she has returned home from Edmonton.

[206]     I accept that the plaintiff still suffers from numbness and tingling feelings in her right arm, and from some neck and back pain.  However, the pain she has now is not like the pain immediately following the Accident.  The plaintiff is able to work to the extent she testified to.  While I appreciate that she must rest afterward, she is not disabled from working.

[217]     In all of the circumstances, I award the plaintiff $100,000 in non-pecuniary damages.


$75,000 Non-Pecuniary Assessment for Chronic but Not Disabling Thoracic Outlet Syndrome

September 8th, 2014

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for Thoracic Outlet Syndrome caused and aggravated by a series of collisions.

In today’s case (Griffith v. Larsen) the Plaintiff was involved in three rear end collisions.  The Court found the first collision caused TOS or at least TOS like symptoms and this condition was aggravated by the subsequent collision.  The Court had some concerns about the plaintiff’s credibility noting “there was an element of embellishment” with some of the Plaintiff’s evidence.  The Court accepted the Defendants were responsible for the plaintiff’s injuries but found the condition was not particularly disabling.  In assessing non-pecuniary damages at $75,000 Mr. Justice Affleck provided the following reasons:

[41]         Dr. Salvian has formed his opinions relying heavily on the plaintiff’s self-report of symptoms. This is not a criticism. Nevertheless, my conclusion is that it is appropriate to be cautious when relying on these reports. It is also my conclusion that the plaintiff, whether or not she has TOS, is gradually improving. I do not accept her symptoms are sufficiently severe or her disabilities so pronounced that she is likely to agree to surgery. Her evidence is that she would seek a second opinion from that of Dr. Salvian and in my view she will approach the question of surgery with considerable reluctance. In my view it is more likely that there will be no surgery of the type Dr. Salvian frequently undertakes with his patients.

[42]         As I have mentioned, Dr. McDonald, who knows the plaintiff’s condition, both from before and after the accidents, better than any of the other physicians who have testified, would not restrict the plaintiff’s activities in any way. I accept that evidence and it leads me to conclude the plaintiff has no present significant disabilities. Nevertheless, I find the plaintiff continues to experience symptoms, particularly from the first accident. In my view the second and third accidents were trivial but have had an exacerbating effect on the injuries from the first accident.

[43]         The “common sense” approach recommended by the defendants is that trivial collisions cause trivial injuries. That approach has superficial plausibility but no more. As Mr. Justice Thackray observed in Gordon v. Palmer, [1993] B.C.J. NO. 474 at para. 3:

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court.

[44]         I find the plaintiff will have had about four years of painful but gradually diminishing symptoms since the first accident until she recovers. I do not find that she is feigning her symptoms but that she has overstated them. It is likely that these symptoms will subside over the coming months, particularly if the plaintiff becomes more physically active as Dr. McDonald recommends.

[45]         I also believe the plaintiff has become overly absorbed by the effects of the accidents on her life and has erroneously come to believe she is disabled from pursuing many of her former physical recreational pursuits. This belief is not shared by Dr. McDonald, nor is it my assessment of the plaintiff’s condition on all of the evidence…

[50]         I assess the plaintiff’s non-pecuniary general damages at the sum of $75,000.


$85,000 Non-Pecuniary Assessment for Chronic Thoracic Outlet Sydrome Coupled With Mild Brain Injury

July 22nd, 2013

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an injury caused in a vehicle collision.

In last week’s case (Danielson v. Johnson) the Plaintiff was involved in a 2008 collision.  Liability was admitted.  The Plaintiff, who worked installing ceilings, suffered a mild traumatic brain injury and thoracic outlet syndrome in the crash.  The Defendant took a serious run at the plaintiff’s credibility pointing out a history of cocaine use, getting paid under the table, and even lying at his examination for discovery.  Despite this the Court found the plaintiff ‘credible and reliable’.  The Court noted these injuries were caused by the collision and would likely require vocational retraining.  In assessing non-pecuniary damages at $85,000 Mr. Justice Silverman provided the following reasons:

[139]     With respect to both TOS and the MTBI, I reject the inference that prior injuries may have caused his current problems.  To the contrary, the evidence is that it is common for the long-term consequences of prior injuries to sometimes be sitting dormant, and when a newer injury emerges, a MTBI or TOS may result.  I am satisfied that has occurred here…

[146]     I am satisfied of the following: that the plaintiff did suffer a brain injury in the MVA, it was a mild brain injury, he suffers from accompanying emotional difficulties that cause additional impairment, and the consequences of the foregoing are likely to be ongoing…

[147]     The weight of the evidence supports the finding that the plaintiff does suffer from TOS as a result of the MVA and, on a balance of probabilities, I find this to be so.  I note that Dr. Fry devotes much of his medical practice to the management and treatment of TOS, both conservatively and with surgery, and that Dr. Salvian has a special interest in the diagnosis and treatment of TOS.

[148]     More than a decade ago, the plaintiff had a fracture to his neck which eventually healed completely, and he had no problems as a result of it in the five years prior to the MVA.  The research has shown that a majority of people who suffer from TOS have had a prior neck injury, perhaps even years before, which had long healed, but that set them up to be vulnerable to any further injury.  I am satisfied that this is what happened to the plaintiff.

[149]     When the plaintiff raises his right arm to the side or above his head, or in front of him (while driving) as well as into a position where his hands are at the height of his head or slightly higher, TOS symptoms are provoked. Unfortunately, he is required to do these sorts of movements at his work.

[150]     I am satisfied that the plaintiff suffers from TOS as a result of the MVA.  He has been able to function with his pre-MVA activities, including work and recreational activities, although less efficiently and less comfortably than before the MVA.  I am satisfied that the evidence indicates this will not improve; in fact, it will worsen.  Hence, the weight of the medical opinion that the plaintiff must re-train…

[167]     I agree that the plaintiff demonstrates remarkable grit in continuing to work and to be involved in extreme sporting activities, to some extent contrary to the advice he has received from various doctors and to the surprise of those doctors.  Having said that, I am satisfied that the plaintiff does so with much less ease and pleasure than he did prior to the MVA.  He has suffered a loss in that regard, and will continue to do so.

[168]     In view of all the foregoing, I award non-pecuniary damages in the amount of $85,000.


$90,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome With Poor Prognosis

April 8th, 2013

Adding to this site’s archived posts of BC non-pecuniary damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury with a poor prognosis.

In last week’s case (Gillam v. Wiebe) the Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained various injuries including a Thoracic Outlet Syndrome with a poor prognosis for full recovery. In assessing non-pecuniary damages at $90,000 Mr. Justice Verhoeven provided the following reasons:

65]         In summary, I find that the plaintiff suffered the following injuries due to the accident:  chronic right sided neck and shoulder pain, thoracic outlet syndrome, and headaches, all as described above. She has also suffered from deterioration in her mood and disposition, interference with sleep, and significant weight gain.

[66]         Her headache condition is gradually improving but she continues to suffer from frequent headaches. Her neck and shoulder pain and her TOS symptoms also continue to cause pain and limitation of function. In general, the prognosis for the plaintiff’s conditions is poor. It is likely that she will have a degree of limitation of function and pain permanently…

[85]         Some context is also provided by the video surveillance evidence. Video surveillance was conducted on 3 separate days in April and May, 2012. The video evidence shows the plaintiff carrying out ordinary activities such as pumping gas, entering and exiting her vehicle, driving, and also shopping and eating a picnic lunch with companions. She displays no obvious sign of discomfort or disability and generally looks comfortable and able to carry out such moderate activities.

[86]         Nevertheless, the plaintiff suffers from a limitation of function. She suffers from pain in her neck and shoulder which will likely never completely disappear. She is unlikely ever to be symptom free in relation to her TOS condition. She continues to suffer from frequent headaches for which the prognosis is negative for complete resolution. She is no longer capable of heavy work, and must avoid other activities that could aggravate her neck and shoulder injuries and her TOS. She is restricted in terms of employment, domestic and recreational activities. There has been a very significant change in the plaintiff’s overall lifestyle. There have been emotional consequences to her injuries. Her injuries have also made caring for her daughter much more difficult.

[87]         While of course each case is unique, other court cases provide useful guidance with respect to the proper quantum of the award. Consistency with other decisions of the courts is desirable. The award must be fair to both sides.

[88]         The plaintiff relied upon: Stapley v. Hejslet, 2006 BCCA 34 ($175,000); Hooper v. Nair, 2009 BCSC 862 ($104,500); Cimino v. Kwit, 2009 BCSC 912 ($85,000); Milliken v. Rowe, 2011 BCSC 1458 ($85,000); and Durand v. Bolt, 2007 BCSC 480 ($75,000). The plaintiff submits that the range for non-pecuniary damages in this case is $95,000 to $135,000. The defence also relies upon Cimino, and Durand. Additionally, the defence cites Driscoll v. Desharnais, 2009 BCSC 306 ($55,000)Langley v. Heppner, 2011 BCSC 179 ($55,000), and Verhnjak v. Papa, 2005 BCSC 1129 ($40,000). The defence submits thatDriscoll and Langley most closely equate to this case, and submits that an appropriate award is $60,000.

[89]         Having reviewed these authorities, in my view an appropriate award for non-pecuniary loss in this case is $90,000.


$80,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Thoracic Outlet Syndrome

November 1st, 2012

Adding this this site’s archived cases addressing non-pecuniary damages for thoracic outlet syndrome, reasons for judgement were released last month addressing such an injury.

In last month’s case (Rollheiser v. Rollheiser) the Plaintiff was injured in a 2008 collision.  She suffered from long-standing Thoracic Outlet Syndrome.  The crash caused an aggravation of this condition with the Court accepting the following medical evidence:

[24]         Dr. Flaschner, a specialist in physical medicine and rehabilitation, also provided a report, dated February 2, 2012. Dr. Flaschner initially saw Ms. Rollheiser on December 2, 2009. His diagnosis included exacerbation of pre-existing TOS and musculoligamentous injuries to the cervical and thoracic spine. He states:

Ms. Rollheiser has subsequently been seen on numerous occasions for symptomatic management. She has undergone various trials of medications, local anesthetic trigger point injections botulinum toxin injections and has also been receiving regular IMS therapy from her physical therapist. Her pain has evolved as well and the current diagnoses secondary to the motor vehicle collision would include:

1.   Thoracic outlet syndrome, exacerbation of pre-existing injury.

2.   Cervical WAD II injury with chronic regional myofascial pain syndrome.

3.   Thoracic musculoligamentous injury with chronic regional myofascial pain syndrome.

[25]         Dr. Flaschner considers that Ms. Rollheiser’s symptoms will continue indefinitely.

[26]         Dr. Flaschner’s report continues:

Further symptomatic management options for the chronic regional myofascial pain syndrome would include regular physical activity from a cardiovascular perspective as well as stretching and strengthening of the painful musculature, ensuring adequate restorative sleep, various manual therapies, medications as well as needle based therapies including acupuncture, IMS, local anesthetic  trigger point injections, botulinum toxin injections or potentially fluoroscopically guided facet based procedures. It should be noted that the treatments will be expected to provide some temporary relief and would not be expected to be curative.

In assessing non-pecuniary damages at $80,000 Madam Justice Gropper provided the following reasons:

[35]         In sum, Ms. Rollheiser’s injuries have reduced her enjoyment of life. There has been impairment of family, marital and social relationships as well as physical abilities.

[36]         As noted, the case authorities provide guidance only; no two cases are exactly alike.

[37]         I agree with the defendant that not all of Ms. Rollheiser’s symptoms are attributable to the accident. It appears that some of the plaintiff’s limitations are due to the rotator cuff as opposed to injuries from the accident.

[38]         Of the authorities provided, I find Kaleta v. MacDougall, 2011 BCSC 1259 (Kaleta) to be most instructive. Justice Truscott awarded a 28 year-old male plaintiff non-pecuniary damages of $80,000 for soft tissue injuries to the knee, back, arm, shoulder and neck. Like Ms. Rollheiser, Mr. Kaleta only missed a brief period from work, although he found it to be more difficult to resume work upon his return. Again, like Ms. Rollheiser, his moderate ongoing pain was probably chronic.

[39]         Accordingly, I assess Ms. Rollheiser’s non-pecuniary damages at $80,000.


$65,000 Non-Pecuniary Damages For Thoracic Outlet Syndrome With "Mixed" Prognosis

September 1st, 2011

Adding to this site’s public database of BC Thoracic Outlet Syndrome cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TOS Injury with a “mixed” prognosis.

In this week’s case (Singh v. Clay) the Plaintiff was involved in a total of 5 collisions.  He alleged 4 of these caused or aggravated a Thoracic Outlet Injury and sued for damages.  Fault was admitted in all actions.

Mr. Justice Greyell concluded that the Plaintiff did in fact suffer from Thoracic Outlet Syndrome and that the injury was caused, on an indivisible basis, from the collisions.  Damages were assessed on a global basis.  In awarding $65,000 for the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court made the following findings:

[81] Based on the medical reports and testimony of Drs. Keyes and Travlos, I am satisfied the plaintiff suffers from thoracic outlet syndrome which causes him difficulty holding his hands above his head, causes his left arm and shoulder to go numb such that he must lower his arm and “shake” the tingling and numbness out, and that this injury affects him both at work and in his home life as described earlier in this decision.

[82] He is also affected because his injury wakes him several times each night, causing him to be tired the following day.

[83] The plaintiff also suffered low back pain and persistent headaches which lasted for several years after the second accident but which have now cleared up…

[88] I find the prognosis for Mr. Singh is a mixed one.  Dr. Keyes’ diagnosis is a difficult one to understand.  On the one hand he has opined that there is likely some permanent injury to the plaintiff’s neurovascular bundle in the left thoracic outlet space.  On the other hand, he has opined there is no permanent injury or damage of the neurovascular bundle in the left thoracic anatomic space.  Dr. Keyes was clear however Mr. Singh would “almost certainly respond” without surgical intervention and expected that his symptoms would improve “and probably resolve over time”.  Dr. Keyes’ prognosis for the plaintiff’s injuries is “very good to excellent” and he says that his recreational and employment activities would “not be significantly affected over the long term”.  The caveat Dr. Keyes offered to this opinion in the penultimate paragraph was that “repeated injuries to the same areas… would be expected to result in similar symptoms and a more prolonged recovery…”  Mr. Singh was involved in motor vehicle accidents on September 18, 2007 (which he did not tell Dr. Keyes about) and November 1, 2008, and the at-fault accident on March 19, 2007.

[89] At the time of trial Dr. Keyes had not seen the plaintiff for some four years.

[90] Dr. Travlos’s prognosis, based on an assessment made in April 2009 was much more guarded.  As noted above he was of the opinion “there is no real expectation that further treatment is going to magically cure his symptoms.”  Dr. Travlos recommended Mr. Singh commence a structured conditioning program outside the home.  There was no evidence to suggest Mr. Singh has followed Dr. Travlos’s recommendation to engage in a conditioning program outside his home or that he take medication to help relieve his sleeping problems.  Had he done so it is possible these problems would have resolved more quickly than they have.

[91] In my view the injuries suffered by Mr. Singh are more significant than those suffered by the plaintiff in Langley but less serious than those suffered by the plaintiffs in Cimino and Durand.  I assess the plaintiff’s non-pecuniary damages at $65,000.


Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce

October 30th, 2010

Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.

When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.

The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.

The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.

Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.


BC Court of Appeal Discusses Pain and Suffering Awards for Thoracic Outlet Syndrome

June 16th, 2010

Reasons for Judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair award for pain and suffering for accident related Thoracic Outlet Syndrome.

In today’s case (Bransford v. Yilmazcan) the Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection crash involving a taxi and the issue of fault was admitted.  The matter went to trial before a Jury and they were asked to decide the value of her claim.

The evidence showed that the Plaintiff suffered from post traumatic Thoracic Outlet Syndrome.   The Plaintiff had various therapies including surgical intervention but nothing provided long term relief.  By the time of trial her symptoms kept her from competitive employment.  The Jury ultimately awarded over $1million in total compensation for her injuries and losses.  This award included $385,000 for her non-pecuniary damages.

The non-pecuniary damages award was then reduced to $327,350 to bring it in line with the general Canadian cap on non-pecuniary damages in negligence cases.  The Defendant then appealed seeking a new trial.  The BC High Court largely dismissed the appeal but did reduce the non-pecuniary damages to $225,000 which is one of the highest valuations for pain and suffering in BC for Thoracic Outlet Syndrome that I’m aware of.  In doing so the Court provided the following reasons:

[22] It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.


Non-Pecuniary Damages for Thoracic Outlet Syndrome Assessed at $85,000

May 25th, 2010

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a left sided Thoracic Outlet Syndrome (TOS) which arose after a series of accidents.

In today’s case (Lee v. MacLean) the Plaintiff was involved in two 2003 motor vehicle accidents.  The Defendants were found liable for the collisions focusing the trial on the cause of the Plaintiff’s injuries and their value.

Determining the cause of the Plaintiff’s injuries was no easy task as the Plaintiff was injured in previous motor vehicle collisions and continued to suffer pain from those events.   By the time of his 2003 accidents the Plaintiff still had pain in his neck, right shoulder and lower back as a result of his previous accidents.  The 2003 accidents aggravated these injuries and caused new symptoms.  Specifically the Court found that the 2003 collisions “triggered the onset of the thoracic outlet symptoms on (the Plaintiff’s) left side“.

The Court heard expert evidence from Dr. Peter Fry, a vascular surgeon with expertise in thoracic outlet syndrome.  He provided the following evidence with respect to the cause and severity of the Plaintiff’s left sided TOS:

I think significantly at the present time he shows evidence of more serious compression of the thoracic outlet given that there is clinical evidence that the venous drainage of the arm on the left is impaired compared to the right side.  This is an indication of fairly severe compression in this area, basically involving not only the vein but the artery where you can develop a bruit or turbulence during provocative testing for thoracic outlet syndrome and the reproduction of neurological symptoms that appear to involve both upper and lower plexus.

This being the case, I think it is highly that at some point in time Mr. Lee is going to require definitive surgery for thoracic outlet syndrome on the left.

I would opine that the accident of October 2003 was most likely responsible for provoking or exacerbating symptoms on the left side in a setting where he clearly had previous compression of the thoracic outlet and was therefore somewhat vulnerable to this injury.

Mr. Justice Gaul assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000.  The court then reduced this award by 25% to take into account the Plaintiff’s pre-existing injuries.  Mr. Justice Gaul provided the following reasons:

[118]     Applying the principles enunciated in Filsinger, I am satisfied Mr. Lee is both a “crumbling skull” and “thin skull” plaintiff.  The determination of which depends upon the precise injury.

[119]     The neck, right shoulder and lower back pains Mr. Lee complained of following the 2003 Accidents were quite similar to those he complained of after the 1990s Accidents.  I am satisfied that these symptoms would have continued to manifest themselves even if Mr. Lee had not been involved in the 2003 motor vehicle accidents.

[120]     With respect to the left side of Mr. Lee’s body, the issue is more difficult.  I accept the evidence of Dr. Fry that in 1998 Mr. Lee exhibited signs of thoracic outlet syndrome on the left side of his body, even though Mr. Lee was asymptomatic at the time.  I am persuaded by the evidence of Dr. Fry and Dr. Shuckett that the nature of Accident #1 and Accident #2 were such that they triggered the onset of the thoracic outlet syndrome symptoms on Mr. Lee’s left side and are therefore attributable to those accidents.

[121]     I also find that the concentration problems, headaches and associated vision problems that arose after the 2003 Accidents can at least be partially attributed to those accidents…

[123]     Given the pre-existing condition of Mr. Lee and the fact that the symptoms on the right side of his body were likely to have continued, notwithstanding the 2003 Accidents, I find that it is appropriate to make a 25% reduction in the non-pecuniary damages as well as the award for loss of earning capacity…

[135]     I found Mr. Lee to be a credible witness when he described the timing, nature and extent of his injuries.  In doing so, I accept that he had pre-existing pains prior to the 2003 Accidents, some of which were identical to those which developed after the 1990s Accidents.

[136]     Mr. Lee is entitled to be compensated for his injuries.  I do not find those injuries to have been as trivial or transient as suggested by the defendants.  On the whole I favour Mr. Lee’s description of the injuries and find that an appropriate award for non-pecuniary damages to be $85,000.  There will, however, be a 25% contingency discount to this amount on account of Mr. Lee’s pre-existing physical ailments.

[137]     As a result, the award for non-pecuniary damages is $63,750.

You can click here to read my archived posts of other recent BC Injury Cases awarding damages for accident caused Thoracic Outlet Syndrome.


$135,000 Non-Pecuniary Damages for Multiple Crush Syndrome, TOS and TMJ Injury

September 15th, 2009

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry that are worth reviewing for anyone involved in an ICBC Claim for damages for accident related Thoracic Outlet Syndrome.

In today’s case (Sauer v. Scales) liability was denied but Mr. Justice Cohen found the defendant 100% at fault for the collision.  In valuing the Plaintiff’s non-pecuniary damages at $135,000 Mr. Justice Cohen found as follows with respect to the severity of the accident related injuries:

I find that the plaintiff’s medical experts not only established the plaintiff’s diagnosis that he suffered from thoracic outlet syndrome, but also that of a multiple crush syndrome… he sustained a serious TMJ injury as a result of the accident, and that he should undertake dental reconstruction to treat this disorder…

[256] In the result, I find, on the whole of the evidence, that the plaintiff has proven to the requisite standard that as a result of the accident he sustained moderate to severe injuries to his eyes, teeth, jaw, neck and back.  I accept Dr. Fry’s opinion, confirmed by the other experts for the plaintiff who opined on this issue, that as a result of the accident the plaintiff has significant musculoskeletal and neurological symptoms with respect to his left arm and that the diagnosis is one of multiple crush syndrome, where he has evidence of cervical spine compression, of neurogenic thoracic outlet syndrome, of cubital tunnel syndrome and of carpal tunnel syndrome.

[257] I also find that the injuries he sustained in the accident and the requirement to take therapy and medication on a continuing basis since the accident to treat those injuries has had a significant impact on the quality of the plaintiff’s life, including sleeping, eating and physical fitness, as well as upon his social and personal relationships.

[258] I am mindful of the evidence that since the accident the plaintiff has experienced varying degrees of improvement in his overall symptoms; that to some limited extent he has been able to return to physical pursuits such as tennis, jogging and skiing; that he has been able to travel on family vacations; and, that during the time he was involved with the affairs of Global Synfrac he frequently commuted to Calgary to attend Board meetings.  I am also mindful of the evidence that his prognosis remains poor with regard to his TMJ disorder and thoracic outlet syndrome, and there remains the possibility of him having to undergo further surgical procedures to address these conditions.  Moreover, he will have to continue taking therapy and medications to treat his ongoing symptoms.

[259] Taking all of the above factors into account, I find that $135,000 is a fair and reasonable sum to award the plaintiff for general damages.

Paragraphs 233-236 of this case will be of particular interest to anyone who has undergone an ‘independent medical exam‘ with Dr. A.I Munro.   Dr. Munro has conducted many of these exams on behalf of ICBC and often disagrees with the diagnosis of Thoracic Outlet Syndrome.  Mr. Justice Cohen held that “no weight should be given to the opinions of Dr. Munro on this issue (the Plaintiff’s Thoracic Outlet Syndrome)”.  In reaching this conclusion extensive portions of Dr. Munro’s cross examination were reproduced which I set out below:

[234] In the report of Dr. A.I. Munro, a specialist in thoracic and cardiac surgery, dated March 9, 2006, he concluded that as a result of the accident the plaintiff sustained a mild soft tissue injury of the neck and that he did not have thoracic outlet syndrome.  He also concluded that the plaintiff had a left ulnar entrapment syndrome which was causing his disability, and that the bilateral carpal tunnel syndrome had recovered, stating that, “only one hand was on the steering wheel so it cannot be due to the MVA.”  He also said that the plaintiff’s disability is associated with numbness and weakness caused by a left ulnar entrapment syndrome plus cervical nerve root pains.  However, despite his experience as a thoracic surgeon, Dr. Munro testified that he may have done one thoracic outlet syndrome surgery between the years 1994 to 2001.  He said that he may have done one at St. Paul’s Hospital, but he was not sure, and otherwise a previous one would have been done at UBC Hospital.  He also testified:

Q         — at VGH?  Mm-hm.  And what type of surgeries were you performing over that period from ’68 to 1990, if I have the years roughly correct.

A          General thoracic surgery and cardiac surgery, both closed and open heart surgery.

Q         Okay.  And of the — I take it there were other surgeons who performed a similar practice to yours?

A          I suppose all the surgeons had slight variations in their practices.

Q         Mm-hm.  Were any of these surgeons –

A          Some of them were purely thoracic, some of them were purely cardiac, and some were mixed.

Q         Okay.  Were any of the ones that were purely thoracic involved with thoracic outlet syndrome and surgeries on that condition?

A          Early on, no.  Probably I saw most of them until probably Dr. Fry, Dr. Nelems came on staff, and they saw most of the thoracic outlet surgery after that.

Q         And when would that be?

A          I’m not sure of the actual dates.

Q         Was it shortly after –

A          Probably in the — my guess would be the early ’80s, –

Q         And prior to 2001 when you were at VGH after Dr. Fry and the other physician you mentioned began to specialize, those cases would be — TOS cases would be sent to them for –

A          Yes.

Q         — assessment at surgery; correct?

A          Yes.

Q         Yeah.

A          The second aspect is looking at a specific five-year period and analyzing what cases I had seen during that five-year period.

Q         And what five-year period is this?

A          That was 2002, 3, 4, 5 and 6.

Q         Mm-hm.  Mm-hm.  And — and that — that is where you were giving me these approximate numbers?

A          Correct.

Q         Okay.  So during that period, there were somewhere between 25 to 30 per cent that were involving non-severe neck injuries that — where — that could have been, in your opinion, thoracic outlet syndrome issues?

A          No.  There was a fair percentage of people who had such bizarre symptoms and signs that you couldn’t fit them into any logical medical diagnosis, –

Q         Mm-hm.

A          — often associated with psychiatric disease.

Q         Mm-hm.  But other specialists had assessed them as thoracic outlet syndromes?

A          Yes.

Q         Mm-hm.

A          These were all people who had been sent to me to consider this diagnosis.

Q         Mm-hm.  Now, going back to my question in terms of your — oh, maybe I’ll finish.  In that five-year period, I take it, Doctor, there were people who you did concur with the other physician that the diagnosis was thoracic –

A          In that particular –

Q         — outlet syndrome?

A          — five-year period, no.  In the previous five years, yes.

Q         Okay.  And how many occasions was that, do you recall?

A          In the previous five years, –

Q         Mm-hm.

A          — I think it was two, but I cannot tell you for sure.

Q         Two of approximately 30 per year?  Thirty reports a year?

A          Probably at that time I was seeing less than 30 per year.

Q         Mm-hm.

A          I do not have the exact figures –

Q         Sure.

A          — for that previous –

Q         Okay.

A          — five-year period.

Q         So — but in the last 10 years it would be reports in the order of several hundred reports, and of those several hundred reports you concurred with the other specialists on two occasions that you can recall?

A          Yes.