$40,000 Non-Pecuniary Assessment for "Stabalized and Static" Soft Tissue Injuries

A not uncommon pattern for many people who experience soft tissue injuries following a motor vehicle collision is an acute phase of injury followed by a gradual period of improvement where the injuries, while largely recovered, do flare with heavier activity.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, assessing damages for such an injury.
In last week’s case (Stein v. Kline) the Plaintiff was involved in a 2008 rear-end collision.  ICBC admitted fault on behalf of the rear driver.   The collision resulted in little vehicle damage but the Plaintiff nonetheless sustained injuries.   After a short period of disability the Plaintiff was able to resume work and over a period of several months was able to resume recreational activities.  Despite this his injuries remained vulnerable to aggravation with physical activity.  In assessing non-pecuniary damages Mr. Justice Bracken provided the following reasons:

[31] The only medical evidence is contained in the report of Dr. Smith.  His report of July 28, 2011 states:

In summary, it is my opinion that Mr. Stein suffered injuries as a result of the motor vehicle accident of June 19, 2008.  It is my opinion that he suffered a musculoligamentous strain of the neck, scapular area and low back.  The strain of the scapular area and low back were mainly on the right hand side.  After the accident he was not fit to work until July 30, 2008 and he was then on light duty for the next several weeks.  Mr. Stein was treated with physiotherapy.  He was treated with anti-inflammatory drugs and occasionally a muscle relaxant.  He was shown a stretching program for his neck and lower back and has been able to control his symptoms with these stretching exercises since stopping physiotherapy in late 2008.  Mr. Stein still gets flares of scapular area pain and low back pain if he is overly active.  He is able to participate in his work on a regular basis and does virtually all the work he did before although he tries to avoid heavy lifting.  He is fit to participate in hockey, golf and other sports although he does these less frequently than in the past.  Any overuse causes him to have some flare up of pain in the scapular area or the lower back which usually settles within a few days.  He has intermittent spasm in the neck and lower back on examinations depending on his activities in the previous few days.

It is my opinion that Mr. Ron Stein’s injuries are soft tissue in nature.  His injuries have stabilized and have been quite static for the past year with only occasional flare-ups related to overuse.  He may require some intermittent physiotherapy or massage therapy in the future if he has increased pain or spasm but generally he is managing this well with a home exercise program.  It is now more than three years since the initial injury and it is my opinion that Mr. Ronald Stein is likely to have some ongoing muscle tenderness and occasional flare-ups as he has been doing for the last several months.  His injuries are not in any bone or joint and he is not going to be subject to an increased risk of osteoarthritis.

[32] In these circumstances, it is my view that the cases of Reyes v. Pascual and Schulmeister v. Furmanak are the most comparable.  The cases referred to by the plaintiff are in my view cases where the injuries were more serious.

[33] Based on the evidence presented and a review of the applicable case law, I find an appropriate award for non-pecuniary damages in this case is $40,000.  This award is perhaps somewhat generous given the evidence, but it reflects the fact that the plaintiff is still experiencing some pain more than three years post-accident.  While he is able to continue with these activities, he has occasional limitations that are attributable to his injuries from the accident and he still experiences some activity-induced pain.