$65,000 Non-Pecuniary Assessment for "Persistent Myofascial Pain"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic back injury.
In today’s case (Cirillo v. Mai) the Plaintiff was involved in a 2012 collision where her vehicle was struck and pushed into oncoming traffic where she was struck a second time.  The Plaintiff suffered a chronic back injury with symptoms continuing at the time of trial and expected to likely persist into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Hinkson provided the following reasons:

[41]         Dr. Khalfan commented in her report of April 20, 2016 that:

a)       The plaintiff’s diagnosis at that time was persistent myofascial pain as a result of the Collision.

b)       The plaintiff’s range of motion in her spine was good, other than her spinal extension, which demonstrated significant impairments.

c)       The plaintiff had first received trigger point injection treatment on January 26, 2016. Other than experiencing some short-term flare-ups in pain for after treatment, the plaintiff responded well to the injections, and reported 50% improvement in her pain by the fifth treatment.

d)       By the sixth trigger point injection on April 12, 2016, the plaintiff had plateaued with that treatment, and decided to pursue ultrasound-guided injection treatment, which would require a series of diagnostic tests.

e)       Because the plaintiff responded well to trigger point injections, Dr. Khalfan was optimistic that the plaintiff would continue to experience improvement with ultrasound-guided injection treatment. Dr. Khalfan expected that the plaintiff would experience appreciable improvement of her symptoms in the future, but was unable to predict with precision the degree to which the plaintiff would recover.

f)        Given the fact that the plaintiff has experienced pain for years after the Collision, it is unlikely that she will experience full recovery of all symptoms. Dr. Khalfan opined that it was likely that the plaintiff would have ongoing pain well into the future and possibly indefinitely.

g)       Dr. Khalfan recommended a focused strengthening and stabilizing exercise program as a possible management tool for mitigating the plaintiff’s limitations and pain…

[92]         The authorities relied upon by the plaintiff are all cases where the injured parties suffered from chronic pain. Although I accept that Ms. Cirillo continues to experience back pain, I am unable to accept that it rises to the level of chronic pain as that term is used in the cases that she relies upon. While she may experience the improvement in her pain that is hoped for by Dr. Khalfan, I do not regard that as likely. I consider that the injuries and ongoing difficulties that she experiences are more consistent with the difficulties described in the awards cited by the defendant, with the exception of the loss of her ability to participate in the sport that she pursued with such devotion and considerable success before the Collisions.

[93]          As I have already found, it is unlikely that she would have been able to continue with her level of activity in the sport for much longer than she did, but the choice to do so was taken from her by her injuries from the Collisions, and this, in my view, elevates her damages from the range that can be derived from the cases relied upon by the defendant. I therefore assess her non-pecuniary damages at $65,000.

bc injury law, Cirillo v. Mai, Mr. Justice Hinkson

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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