$80,000 Non-Pecuniary Assessment For Mild, Chronic Thoracic Outlet Syndrome

In the latest addition to this site’s Thoracic Outlet Syndrome caselaw database, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for mild but chronic TOS.
In this week’s case (Minenko v. Minenko) the Plaintiff was injured in a 2009 intersection collision.  The at fault driver admitted responsibility.  The Plaintiff developed a mild but persistent Thoracic Outlet Syndrome which remained symptomatic at the time of trial.  In assessing non-pecuniary damages at $80,000 Mr. Justice Truscott provided the following reasons:
[27]         Dr. Shuckett saw the plaintiff on August 2, 2013 and says that the plaintiff has probably achieved maximum medical recovery and will be left with her current symptoms.
[28]         She says the plaintiff is not disabled from work although it may be more difficult for her and she should do regular walking and some regular aerobic exercises that do not over-use her upper body and arms.
[29]         Dr. Shuckett also suggests flexeril pills to decrease muscle spasm and assist the plaintiff in sleep, along with local trigger point injections and/or Botox injections into the area of muscle spasms in the right neck and shoulder girdle region could be considered.
[30]         Injection therapy, if it works, in her opinion has to be repeated every six months or so which applies to any Botox injections as well…
[38]         At trial, she says she believes she is qualified to diagnose thoracic outlet syndrome but defers to Dr. Salvian for the ultimate opinion on this as he is the primary expert on it.
[39]         At trial, she strengthens her opinion somewhat by saying she believes the plaintiff has mild thoracic outlet syndrome.
[40]         The plaintiff says she also initially suffered from anxiety attacks in the night, but only occasionally does so now. Currently, she says she has headaches and constant dull pain in her right arm, as well as the right shoulder and right upper back area. Any physical activities cause her pain in her right arm and this increases over a busy day.
[41]         She takes Advil during working hours but continues working…
[81]         There is no evidence her injuries can be alleviated through surgery but some of the pain may be ameliorated through the use of Botox…
[100]     I have reviewed all of the cases cited to me by both counsel on the issue of non-pecuniary damages and in my view, the sum of $80,000 is an appropriate amount to award the plaintiff for her pain and suffering and loss of enjoyment of life and as well for her loss of housekeeping ability.
 

bc injury law, Minenko v. Minenko, Mr. Justice Truscott

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ERIK
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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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