ICBC Chronic Pain Cases – Page 14

Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Written by admin on October 19, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized. 54 Comments on Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Reasons for judgement were released today by the BC Supreme Court dealing with a fair range of damages for pain and suffering when an accident victim has a pre-existing condition which likely would have been progressive and painful without the accident.
In today’s case (Kaur v. Bhoey) the Plaintiff was injured in a 2005 BC Car Crash. She was a passenger and her vehicle lost control and she struck a utility pole. She was apparently concussed in this collision and was in and out of consciousness at the scene of the crash.
The Plaintiff had a pre-existing condition (osteoporosis with spinal compression fractures) which may have been progressive and led to chronic back pain even without the crash.
Mr. Justice Truscott found that the crash caused ‘soft tissue injuries‘ which caused a ‘kyphotic condition‘ otherwise known as a humpback. The Court held that, despite the injury, there was “a significant risk that (the plaintiffs) osteoarthritis would have led to more back fractures and more pack pain and kyphosis” He went on to award $50,000 in damages for the plaintiff’s pain and suffering. In arriving at this figure Mr. Justice Truscott summarized the law and the key findings of fact as follows:

[5] The plaintiff had pre-existing medical conditions that may affect the value of her claim from this accident and that require consideration of the legal principles confirmed by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458.

[6] Athey confirms that an injury is caused by the defendant’s negligence as long as that negligence materially contributes to the injury even though there may be other causes that contribute to the injury as well.

[7] However, on the issue of the proper assessment of a plaintiff’s damages, Athey says, commencing at para. 35 on p. 473:

The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage… Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award… This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position…

[137] I accept that the kyphotic condition the plaintiff suffers from was caused by her low back soft tissue injuries sustained in the motor vehicle accident, and not by her pre-existing spinal compression fractures. I accept Dr. Hershler’s opinion in this regard.

[138] I accept Dr. Hershler’s opinion that the two compression fractures the plaintiff had before the accident in her low back were insufficient to cause this kyphotic condition.

[139] Dr. Hershler was able to push the plaintiff’s back to make her stand erect and that is some evidence that the kyphotic condition is being caused by pain and not by the compression fractures in her spine.

[140] This is not to conclude, however, that the plaintiff did not already suffer from some back pain before the accident caused by the compression fractures in her low back, in turn caused by her osteoporosis. Dr. Panesar’s records, and his evidence, as well as Dr. Yorke’s reports, set out previous incidents of back pain.

[141] I do accept, however, that prior to this motor vehicle accident these incidents were being generally controlled by medication.

[142] Still, such a finding does not answer the issue raised in Athey as to whether the plaintiff would have suffered her present state of back pain and accompanying kyphotic condition in any event of the motor vehicle accident, or at least there was a measurable risk of that occurring absent the motor vehicle accident that must be taken into account in reducing the overall award.

[143] With the plaintiff having a history of osteoporosis, with spinal compression fractures and incidents of back pain which Dr. Panesar referred to in 2001 as chronic, and with her advancing age, I am satisfied that the award for general damages must be discounted for the significant risk that her progressive osteoporosis would have led to more back fractures and more back pain and kyphosis, in any event…

[149] Taking into account here that the plaintiff is much older with a shorter life expectancy, and has pre-existing medical issues directly related to her present problem of low back pain, including progressive arthritis, I conclude there is a measurable risk that her pre-existing medical issues would have detrimentally affected her physically in the future regardless of the defendants’ negligence in this motor vehicle accident, and I assess her general damages for pain and suffering from this motor vehicle accident at $50,000.

$80,000 Non-Pecuniary Damages for Onset of Pain in Degenerative Spine

Written by admin on October 14, 2009. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, ICBC Whiplash Cases, Uncategorized.

A common set of facts Courts grapple with in ICBC Injury Claims is when an accident causes a Whiplash Injury and also causes pre-existing but symptom free neck degeneration to become painful. Reasons for judgment were released today by the BC Supreme Court dealing with exactly these facts.
In today’s case (Prednichuk v. Spencer) the Plaintiff was involved in a 2004 BC Car Crash. The Defendant was travelling at about 100 kmph when he lost control and the collision occurred. He was found 100% responsible for the collision. In addressing the Plaintiff’s damages the majority of the medical evidence focused on the extent that this accident was responsible for the Plaintiff’s degenerative neck condition. Dr. Hershler, a specialist in physiatry gave the following opinion evidence which was largely accepted by the court:

[80] In Dr. Hershler’s opinion, the accident caused the following musculoskeletal injuries, which fall into three diagnostic categories:

(1) Musculoligamentous injury to the lower region of her cervical spine (moderate severity);

(2) Musculoligamentous injury at the thoracolumbar junction (moderate severity);

(3) Mild bilateral carpal tunnel syndrome….

[83] Dr. Hershler’s overall view is that while the spinal degenerative changes were probably present before the accident occurred, it is more likely than not that the accident accelerated their development and rendered them symptomatic. Dr. Hershler clarified that, in his view, had the accident not occurred, it is not likely that Ms. Predinchuk would have developed the same degree of cervical degeneration and that, in all probability, her degenerative condition was contributing to her pain.

[84] In Dr. Hershler’s view, the prognosis for Ms. Predinchuk’s complete recovery is guarded. He believes it more likely than not that she will continue to have to deal with some level of symptoms indefinitely. At the same time, however, he stated that he would not rule out completely the prospect of further healing and additional improvement occurring over the next two years.

In assessing the Plaintiff’s non-pecuniary damages at $80,000 Madam Justice Ballance of the BC Supreme Court made the following findings and highlighted the following facts:

[105] Based on the evidence as a whole, I conclude that, in all probability, the accident caused Ms. Predinchuk’s soft tissue injuries to her neck, back and shoulders, her headaches and intermittent arm and hand numbness. I conclude also that the accident caused the formerly dormant degenerative condition throughout Ms. Predinchuk’s spine to become symptomatic, which has added another component to her overall discomfort and pain and the chronicity of her symptoms….

[113] Members of Ms. Predinchuk’s family and her friends testified at trial. Without exception, their evidence was reliable and credible. Their evidence, in conjunction with testimony of Ms. Predinchuk, Ms. Chu, Mr. Mason and Mr. Markus, establishes that before the accident Ms. Predinchuk was a highly industrious, successful businesswoman with many recreational interests and pursuits. She was self-confident and strong with an established social network. She was “house proud” and spent considerable energy maintaining and improving her homes over the years. She kept a garden and did most small household repairs herself. Over the years, Ms. Predinchuk had painted her various homes, removed wall-to-wall carpeting, sanded wood floors, laid ceramic tile and laminate flooring, jack-hammered a wall, installed cupboards, drywalled a play room for her grandchildren, and tiled a fireplace surround. I accept that she had no physical limitations in carrying out those activities and enjoyed performing them.

[114] Ms. Predinchuk’s life at work and outside of work changed dramatically after the accident. Her impairments with respect to work with Crown have already been canvassed. In terms of her non-work activities, I find that she significantly curtailed her participation in the social activities that she had once enjoyed, such as line dancing, playing bingo and cards and dinner parties with friends. She became increasingly reclusive. Her energy levels became markedly depleted after the accident, and have never fully revived.

[115] Ms. Predinchuk’s daughter-in-law, who has known her for 26 years, testified that currently Ms. Predinchuk does not accomplish half or even a quarter of the activities that she previously carried out in a typical day. She routinely complains of a sore neck, back and arm, and avoids driving. I accept that Ms. Predinchuk’s worry over driving has prevented her from driving across town to see her grandchildren and son as much as she would like. She no longer hosts large family dinners on her own, which was a long-standing tradition that she assumed from her mother and which she enjoyed immensely before the accident.

[116] For a self-made and self-sufficient woman like Ms. Predinchuk, her perceived loss of independence due to a weakened body and difficulty performing her work, doing mundane chores and driving is especially distressing, and continues to bother her deeply today.

[117] I find that the physical symptoms caused by the accident have brought about unwelcome and disruptive changes to the enjoyment and quality of Ms. Predinchuk’s life and continue to do so. She is an older plaintiff and has not recovered the way a younger person might have. While her symptoms have clearly improved, the prognosis for a full recovery is poor. Ms. Predinchuk is not the woman that she was a moment before the accident occurred and probably never will be again.

[118] A tragedy occurred in Ms. Predinchuk’s family in 2006. There was a mild suggestion made by counsel for ICBC that certain aspects of Ms. Predinchuk’s apparent unravelling could be attributed to that. The evidence does not support that contention, and I reject it.

[119] Ms. Predinchuk seeks an award for non-pecuniary damages in the range of between $80,000 and $125,000, and has provided case authorities in support. The defendants have provided case authorities favouring significantly smaller awards.

[120] Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to Ms. Predinchuk’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.

$80,000 Non-Pecuniary Damages for Chronic Pain and PTSD

Written by admin on October 13, 2009. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding damages for injuries and loss as a result of a 2007 BC Car Crash to a previously disabled Plaintiff.
In today’s case (Viner-Smith v. Kiing) the Plaintiff was previously disabled with depression and other medical issues. In 2007 he was involved in a rear-end car crash. The Crash caused various physical injuries and exacerbated his pre-existing depression.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $80,000 Mr. Justice Holmes summarized the accident related injuries as follows:

[51] The plaintiff now suffers from the complex interaction of a combination of chronic pain, major depressive disorder, and PTSD. The chronic pain syndrome and PTSD are a result of the motor vehicle accident. A depressive disorder was present before the accident but in my view was increased or exacerbated from the effect of the accident. The combination of conditions can have the effect that a worsening of the symptoms of any one may cause another to worsen.

[52] The combination of these disorders is notoriously difficult to treat pharmacologically. Dr. Passey’s prognosis for the plaintiff “…remains poor for a full recovery and I am pessimistic about any future significant improvements” and “even with further treatment it is most likely that he will have a restricted lifestyle, diminished ability to enjoy life and a restricted capacity for any type of competitive employability for the foreseeable future.”

[53] The plaintiff therefore sustained soft tissue injury in the accident and he suffered significantly in the immediate post accident period with diminishing pain over three or four months. He also suffered an increase or exacerbation of the psychological symptoms of anxiety, depression and agoraphobia which he had experienced pre-accident but to a lesser degree.

[54] The plaintiff’s pre-accident depression involved passive thoughts of suicide but post accident they escalated to active ideation, with the plaintiff researching methods to commit suicide although not following through because of the effect he believed it would have on his family. The symptoms of agoraphobia in not leaving his home, answering the phone, getting the mail, and becoming isolated and reclusive, appear to have increased from sporadic and partial pre-accident to the plaintiff tending toward being totally reclusive and isolated after the accident. The plaintiff even stopped filling out the monthly forms required to receive the funding for his son’s autism program and the government cut off payment.

[55] There is a good deal of evidence in the Odyssey documentation, the records of Dr. Applegarth, and the testimony of his wife and friends, that the plaintiffs depression and anxiety conditions existed prior to the accident. The accident injuries ended the ability of the plaintiff to continue with the Odyssey program, however it may well not have succeeded in any event and the plaintiff was very unhappy with Odyssey before the accident and on the verge of withdrawing.

[56] The surgery for the CSDC has not occurred although available since 2004. There was no firm commitment made to undergo the surgery and until it was successfully completed the plaintiff would not be returning to work.

[57] The plaintiff had not worked for 6 years at the time of the accident, including an unsuccessful attempt in 2003 doing only non-driving dispatch work. Statistically persons who have not worked for two years are unlikely to return to employment.

[58] The health of the plaintiff prior to the motor vehicle accident was certainly impaired and he had significant disability. The plaintiff was particularly vulnerable to both psychological and physical injury and both were caused by the defendant. The plaintiff at the time of the accident was engaged in a tangible program directed toward an ultimate return to employment, however the result was problematical and uncertain. There is no doubt however the effect of injuries the plaintiff sustained in the accident did interfere with his ability to rehabilitate himself and did constitute a set back to him.

[59] I agree with the assessment of Dr. Pullyblank that the prospects for the plaintiff’s return to work as a bus driver were low before the accident but lower still after. The major effect of PTSD is that the plaintiff is eliminated from employment driving a bus or related occupations as that might trigger his fear of driving, accidents, injury and death.

[60] The plaintiff, because of the increased level of his depression and anxiety post accident, and his chronic pain and PTSD, has suffered a further impact on his already impaired quality of life. The loss of hope of returning to employment as a bus driver, which he loved, and the lessening of his chances generally for remunerative employment, will impact his enjoyment of life…

[65] I assess the plaintiff’s non-pecuniary general damages for pain and suffering, loss of enjoyment of life and loss of amenities at $80,000.

In addition to assessment for pain and suffering for chronic pain and PTSD imposed on pre-existing depression this case is also worth reviewing for the court’s award of damages for wage loss for a previously disabled plaintiff. In today’s case it was accepted that the accident caused no past wage loss and that given the Plaintiff’s pre-accident absence from the workforce it was ‘statistically unlikely’ that he would return to the work force even if the accident did not happen. Despite this, Mr. Justice Holmes awarded the Plaintiff $50,000 for diminished earning capacity. The court’s key discussion in coming to this figure is reproduced below:

[67] The plaintiff does not seek past income loss and that is because there has been none. He remains on disability insurance from his original employment. Regardless of the motor vehicle accident it was problematic whether the plaintiff would have completed his rehabilitation program with Odyssey, pursued conditioning, lost weight, underwent successful surgery for his ear problem and hernia, and been successful in dealing with his depression, agoraphobia, gout and other health problems.

[68] I am of the view that on the whole of the evidence there was only a minimal chance, absent the motor vehicle accident, that the plaintiff would have successfully achieved rehabilitation through the Odyssey program, successfully resolved his ear problem with surgery, and overcome his other medical and psychological conditions that would perhaps then have allowed him to attempt a return to his job as a bus driver after a six year absence.

[69] On the evidence, I accept the injuries resulting from the motor vehicle accident give rise to only a minimal change from the plaintiff’s pre-accident earning capacity. That change is that as a result of the effects of PTSD he will no longer be capable of employment as a bus driver or in any related work which will trigger his PTSD symptoms.

[70] The reality however is that both prior to, and after, the motor vehicle accident the plaintiff presented to any prospective employer as a person:

· who had not worked for six years

· that was physically deconditioned

· who could not sustain physical activity for prolonged periods

· who suffered SCDS which triggered dizziness, balance problems, and headaches at random and on physical activity

· suffered episodic bouts of depression and suicidal ideation

· suffered diverse anxiety and agoraphobia feelings

· and personally doubted his own ability to return to work.

[71] The plaintiff pre-accident did not pursue any job opportunity although with training or further education had many options open to him, most of which still remain after the motor vehicle accident.

[72] The PTSD has however further reduced the plaintiff’s pre accident ability to earn income and I assess the further diminution in the plaintiffs earning capacity attributable to the effect of the injury from the motor vehicle accident at $50,000.

More on Facebook and BC Injury Claims

Written by admin on September 28, 2009. Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Further to my previous posts on the subject, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, showing that the use of Facebook photos by Defence Lawyers is a trend that is becoming well entrenched in ICBC and other BC Injury Claims.
In today’s case (Mayenburg v. Yu) the Plaintiff was injured in a 2006 BC Car Crash. Liability (fault) for the crash was admitted by the Defendant. The Plaintiff’s non-pecuniary damages were valued at $50,000. In arriving at this figure Mr. Justice Myers accepted the evidence of Dr. Apel, an expert in physical and rehabilitation medicine. Dr. Apel opined that the accident caused a soft tissue injury to the Plaintiff’s upper trapezius muscles described as a “myofascial pain of mild severity“. Additionally the Plaintiff was found to have “myofascial chronic regional pain syndrome of the gluteus medius” and “mechanical back pain“.
The court accepted that the Plaintiff’s injuries were likely permanent, specifically noting that her “prognosis for complete symptom resolution is guarded“.
At trial the Defence Lawyer challenged the credibility of the Plaintiff and to this end tried to introduce 273 photos from the Plaintiff’s Facebook wall.
Mr. Justice Myers noted that “the bulk of these photos showed no more than (the Plaintiff) enjoying herself with her friends“. He ruled that over 200 of these photos were inadmissible only permitting the photos that showed the plaintiff “doing a specific activity which she said she had difficulty performing”, he did not let the other photos in because they “had no probative value“.
Mr. Justice Myers did not agree with the Defendant’s challenges to the Plaintiff’s credibility noting that the admissible photos did not contradict the Plaintiff’s evidence, specifically he stated as follows:

[40] This left a subset of approximately 69 photographs. These showed Ms. Mayenburg doing things such as hiking, dancing, or bending. However, even these photos do not serve to undercut Ms. Mayenburg’s credibility, because she did not say that she could not do these activities or did not enjoy them. Rather, she said she would feel the consequences afterwards.

[41] In effect, the defendants sought to set up a straw person who said that she could not enjoy life at all subsequent to the accident. That was not the evidence of Ms. Mayenburg.

[42] As indicated above, I accept the conclusions of Dr. Apel. That said, Ms. Mayenburg’s injuries have had minimal effect on her lifestyle or her ability to carry on with the activities that she enjoyed beforehand. Her damages must be assessed on that basis.

[43] In terms of the facts relevant to assessing non-pecuniary damages (as opposed to loss of capacity) this case is remarkably similar to Henri v. Seo, 2009 BCSC 76, in which Boyd J. awarded the plaintiff $50,000. I find that to be a suitable award in this case.

The Defence also tried to minimize the extent of the Plaintiff’s injuries by pointing out that there was a “limited number of times she visited physicians to complain about her pain” Mr. Justice Myers quickly disposed of this argument noting

[37] I do not accept those submissions, which have been made and rejected in several other cases: see Myers v. Leng, 2006 BCSC 1582 and Travis v. Kwon, 2009 BCSC 63. Ms. Mayenburg is to be commended for getting on with her life, rather than seeing physicians in an attempt to build a record for this litigation. Furthermore, I fail to see how a plaintiff-patient who sees a doctor for something unrelated to an accident can be faulted for not complaining about the accident-related injuries at the same time. Dr. Ducholke testified how her time with patients was limited.

[38] In summary, Ms. Mayenburg’s complaints to her doctors were not so minimal as to cast doubt on her credibility.

Lastly, this case is also worth reviewing as it contains a useful discussion of ‘rebuttal’ expert medical evidence at paragraphs 29-35.

$90,000 Non-Pecuniary Damages for PTSD and Chronic Pain

Written by admin on September 22, 2009. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $142,000 in total damages as a result of a 2005 BC Car Crash.
In today’s case (Quinlan v. Quaiscer) the Plaintiff suffered various injuries including PTSD and a Chronic Pain Disorder. In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000 Mr. Justice Cole summarized the Plaintiff’s injuries and their effect on her life as follows:

[61] There is evidence that the plaintiff has suffered from depression off and on since 1994, including post-partum depression after the births of her children. Additionally, the plaintiff has had a tumultuous relationship with her now ex-husband, which has certainly affected her emotional state. There is evidence, however, that the plaintiff’s prescription for depression medication a few months prior to the Accident was not filled. Dr. Pirolli stated in her report that the plaintiff’s current emotional problems include PTSD and low mood. The PTSD, as I have stated above, is a consequence of the Accident. Regarding the plaintiff’s low mood, Dr. Pirolli stated that it could not “be directly attributed to the accident itself. There is the possibility, however, that any psychological issues present at the time of the accident may have been exacerbated by the accident and its sequelae”. In my view, the plaintiff’s depression prior to the Accident was not significant, and I find that the plaintiff was not suffering from debilitating depression at the time of the Accident.

[62] As mentioned above, the plaintiff’s cuts and bruises resolved within three to six months after the Accident. She is left with a permanent one-inch scar on her elbow, a three and a half inch c-shaped scar on her left knee, and a dark scar on her left shin. Her nose was broken and she had dizziness and headaches. As described in the medical evidence above, the plaintiff’s right wrist pain, right shoulder and right chest area injuries have persisted. Though Dr. Travlos was of the view that the plaintiff would continue to improve over the next 18 months (from his report of April 2007), he stated: “To what extent she recovers is difficult to say at this time and a definitive prognosis cannot be made”. The plaintiff’s problems have not improved to any great extent over the course of the 18 months following that report.

[63] Dr. Travlos was of the view that the plaintiff’s problems of chronic pain syndrome related to the diffused soft-tissue pain that the plaintiff suffered in the right arm and shoulder. In cross-examination he stated that it was unlikely that the plaintiff will fully recover and there is no guarantee that participation in treatment recommendations will result in improvements of those symptoms. The plaintiff’s injuries restrict her ability to participate in physical activities that she formerly enjoyed, such as skiing and baseball. I believe, however, that part of the reason the plaintiff does not participate in these sports is because of a lack of financial resources.

[64] I am satisfied that taking into consideration the plaintiff’s PTSD and her multiple injuries, an appropriate award for non-pecuniary general damages would be $90,000.

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

Written by admin on September 15, 2009. Posted in ICBC Chronic Pain Cases, ICBC Dental Injury Cases, ICBC Thoracic Outlet Syndrome Cases, Uncategorized. 110 Comments on $135,000 Non-Pecuniary Damages for Multiple Crush Syndrome, TOS and TMJ Injury

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.

"Moderate to Severe" Soft Tissue Injury Non-Pecuniary Damages Assessed at $55,000

Written by admin on September 4, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgment were released earlier this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff approximately $85,000 in total damages from a 2004 BC Car Crash.
This case (BMM v. MLV) contains lengthy reasons that largely deal with the Plaintiff’s pre and post accident psychological difficulties. Ultimately the Court rejected the Plaintiff’s claim that her pre-existing depression was affected by the accident. Madam Justice Ballance concluded that “the evidence does not show that the Plaintiff’s pain and discomfort from her physical injuries caused by the Accident, exacerbated, compounded or intensified her Depression.” Paragraphs 159-190 contain the Court’s reasoning behind this conclusion and are worth reviewing for anyone interested in seeing how BC Courts can deal with a claim that pre-existing psychological injuries are aggravated by a collision.
The Court did find, however, that the Plaintiff suffered “moderate to severe” soft tissue injuries and assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000. In reaching this figure Madam Justice Ballance summarized her findings and engaged in the following analysis:
[199] The plaintiff experienced moderate to severe soft tissue injuries to her neck and back as a result of the Accident. Although her shoulders were also implicated and she had initial sleep disturbance and was plagued with low-grade headaches that occasionally developed into migraine-like discomfort, the primary area of injury was her low back and her related left hip discomfort. I accept that during their acute phase, these injuries caused persistent and sometimes severe discomfort and pain to the plaintiff, and disabled her from attending work. Following her leave from work in 2005 and her intensive physiotherapy program, her symptoms improved significantly. She continued to be susceptible to flare-ups of her symptoms throughout the summer of 2005. Her discomfort prompted the plaintiff to attend a program at the CBI which she found considerably beneficial in improving her soft tissue injuries.
[200] I find that by the end of 2005, the plaintiff’s physical symptoms had largely settled, but had not resolved entirely. She was not restored to her pre-Accident condition at that time. I am satisfied that after that stage, the plaintiff experienced intermittent low back symptoms and associated pain throughout 2006 and continuing forward. Those episodes were infrequent but sufficiently bothersome to prompt her to obtain treatment from Dr. Weiss in late 2007 and endure two excruciating injections. I think that the plaintiff will probably experience intermittent bouts of low back discomfort caused by the Accident into the foreseeable future. The evidence indicates that those episodes will continue to be infrequent and rather mild in nature.
[201] I accept that the physical symptoms caused by the Accident brought about unwelcome and disruptive changes to the plaintiff’s enjoyment and quality of her life, especially during the first twelve months after the Accident. She was no longer the fun-loving and enthusiastic person familiar to her son, sister and co-workers. In time, she was able to gradually reintroduce and enjoy certain pursuits such as walking and some gardening, and bike-riding using her electric bike. I have found it challenging to attempt to parse out the changes in the plaintiff’s personality and life which can be said to be attributable to her physical injuries from the Accident, from those associated with her ongoing and severe bouts of Depression, which adversely affected her life but are unconnected to the Accident. I conclude that the enjoyment of certain of her activities was negatively affected at times by her low mood. Even the plaintiff agreed that her gardening could be affected by her mood. While I accept that in the first year or so following the Accident, the plaintiff’s physical symptoms made it uncomfortable for her to attend the usual family functions and pursue her normal community and political interests, I find that her sustained withdrawal from those endeavours and detachment from her sister and other extended family, are due to the plaintiff’s psychological state unrelated to the Accident….
204] Having reviewed the authorities provided by the parties, and considered the totality of the evidence pertaining to the plaintiff’s specific circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $55,000. A deduction of 5% is to be taken to reflect the measurable risk that her low back symptoms would have manifested without the Accident.

$45,000 Non-Pecuniary Damages for Aggravation of Chronic Pain

Written by admin on August 27, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accident related injuries.
In today’s case (Cheng v. Kamboz) the Plaintiff was involved in a 2005 BC Car Crash. The other motorist admitted fault. The issue the court dealt with was quantum of damages (value of the Plaintiff’s claim).
Mr. Justice Myers found that the Plaintiff suffered from pre-existing chronic pain at the time of the crash. Specifically he found that the Plaintiff suffered from headaches, neck pain, shoulder pain, hip pain and low back pain. Notwithstanding these pre-accident complaints the Court found that the Plaintiff’s pre-existing “chronic pain” was transformed into a “chronic pain syndrome” as a result of the collision. In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 for this aggravation Mr. Justice Myers reasoned as follows:

[39] I find that before the accident Ms. Cheng was suffering – to a lesser extent – from all the pain of which she now complains. Ms. Cheng says that she had no hip pain before the accident; however, that is not what she told Dr. Feldman when she mentioned what she referred to as being symptomatic of myasthenia gravis, to which I referred above at para. 29. Whether it was caused by the myasthenia gravis is, in this context, beside the point.

[40] Ms. Cheng was suffering from headaches prior to the accident in question. While she says they are more frequent now, the difference is minimal. Further, they are often brought on by stress at work and that is a variable which has nothing to do with the accident.

[41] That said, the accident exacerbated the injuries and escalated chronic pain into chronic pain syndrome. Causation for the exacerbation and chronic pain syndrome has been shown. The harm caused by the defendant is divisible from the harm caused by the prior accidents and the plaintiff’s pre-existing condition. To be clear, this is not the type of case, as was Athey v. Leonati, [1996] 3 S.C.R. 458, in which a pre-existing condition of the plaintiff made him more amenable to a specific injury (a disc herniation).

[42] Damages are to be assessed on the basis that Ms. Cheng is to be put in the position she was before the accident, but not in a better position.

[43] Ms. Cheng referred me to cases in which the damage range was between $80,000 and $100,000. The defendants’ cases ranged from $35,000 to $60,000.

[44] The injuries will not result in a drastic change of lifestyle for Ms. Cheng. As I have noted, she was not physically active before the accident. None of the doctors have opined that she will not be able to resume the limited walking she was doing before the accident. The same can be said with respect to going to the theatre. The migraines were present before the accident and her reduced playing of video games because of the migraines cannot be blamed to any substantial degree on the accident.

[45] On the other hand it must be recognised that the accident did cause her chronic pain syndrome and that it is likely to continue for some time.

[46] In my view, the proper assessment of damages for the exacerbation of Ms. Cheng’s prior injuries and the addition of the chronic pain syndrome is $45,000.

$60,000 Non-Pecuniary Damages Awarded for Chronic STI's and an Anxiety Disorder

Written by admin on August 25, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff close to $120,000 in total damages as a result of motor vehicle related injuries and losses.
In today’s case (LaFarge v. Natt) the Plaintiff was involved in 3 BC motor vehicle accidents. The Plaintiff was not at fault for any of the crashes. The lawyer representing the defendants admitted the issue of liability so the trial focused on the sole issue of damages.
Since all 3 defendants were represented by the same lawyer and fault was admitted for each of the crashes the court did not attribute damages to each specific crash rather damages were assessed globally. This is not uncommon in BC Injury Claims were ICBC is the insurer for multiple at fault defendants.
Mr. Justice Truscott found that the Plaintiff suffered chronic soft tissue injuries and an anxiety disorder as a consequence of these collisions. In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $60,000 he summarized the Plaintiff’s injuries and their effect on her life as follows:

[165] I accept that the plaintiff is continuing to suffer from physical injuries sustained in the first accident of March 1, 2002 and aggravated slightly in the following two accidents of October 5, 2002 and May 1, 2003.

[166] I accept that her injuries are now chronic as it is over seven years after the first accident when these injuries were first sustained.

[167] I do conclude that she has developed a restriction of movement as a pain avoidance technique as Dr. Feldman says. As he states her chronic pain is clouded by her pain focused behaviour without any real pain behaviour being identified…

[169] The critical issue on the plaintiff’s claim for damages for pain and suffering and loss of enjoyment of life is whether her anxiety issues constitute a psychological disorder or something less, and whether they are caused by the injuries she sustained in the motor vehicle accidents…

[180] I conclude that the initial attack in August 2004 has not been proven to be causally related to her motor vehicle injuries, and some attacks since, as Dr. Buch says, are possibly caused by unrelated aversive social transactions or other stresses in her life. In fact on consideration of all the evidence of the other stresses in her life I find it just as likely that some of her anxiety attacks are not related to her motor vehicle injuries.

[181] Whether or not her anxiety attacks have reached the level of a psychological disorder, I also conclude the plaintiff has satisfied the onus of proving that at least some of her anxiety attacks are causally related to the injuries in her motor vehicle accidents.

[182] Accordingly, with some of these anxiety attacks caused by injuries in the motor vehicle accidents and some by other stresses in her life, the issue becomes what the defendants should be responsible for…

[185] My conclusion that some of the anxiety attacks are causally connected to the plaintiff’s motor vehicle injuries while the initial anxiety attack of August 2004 is not proven to be so causally connected, and other unidentified anxiety attacks thereafter are likely not causally connected appears to fit the legal doctrine described in Athey as the “crumbling skull” doctrine which recognizes a pre-existing condition inherent in the plaintiff’s original position. The defendants are not obliged to compensate the plaintiff for any disability effects of the pre-existing condition which the plaintiff would have experienced anyway or did in fact experience.

[186] Here it is my conclusion that the plaintiff’s damages throughout should be discounted by 25 percent to reflect my finding that the first anxiety attack in August 2004 was not causally connected to her injuries and also to take into account the likelihood that other identified anxiety attacks since are unrelated to her injuries and are therefore unproven to be causally connected to her injuries.

[190] I consider the plaintiff’s cases to be more appropriate to consider, particularly Pelkinen v. Unrau where the injuries and psychological consequences to the plaintiff there were somewhat similar and the award for non-pecuniary damages was $90,000 less ten percent for failure to mitigate for a net award of $81,000.

[191] Here the plaintiff submits that an appropriate award to her would be $80,000 and I am prepared to accept this figure for general damages subject to a reduction by 25 percent to allow for the unrelated anxiety attacks to include the August 2004 attack. The award for non-pecuniary damages will therefore be in the amount of $60,000.

More on ICBC Claims: Chronic Pain, Surveillance and Credibility

Written by admin on August 18, 2009. Posted in ICBC Chronic Pain Cases, ICBC Privacy Issues, ICBC Soft Tissue Injury Cases, Uncategorized.

(Update: December 14, 2011 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
I’ve written on this topic a few times in the past. Surveillance in and of itself does not harm a Plaintiff’s ICBC Injury Claim. It’s when surveillance contradicts a Plaintiff’s testimony that the damage is done. Reasons for judgment were released today by the BC Supreme Court demonstrating this in action.
In today’s case (Fan v. Chana) the Plaintiff was injured as a passenger in a rear-end collision in Vancouver BC. The crash happened in 2000 and the Plaintiff was 9 years old at the time.
At trial the Plaintiff testified that she suffered various injuries in this collision and that these continued to affect her at the time of trial some 9 years later. Mr. Justice McEwan noted that the Plaintiff “twisted, turned, stretched and pushed herself against the edge of the (witness) box almost constantly” while testifying.
The Court concluded that the Plaintiff’s injuries were not as severe as presented and instead found that this crash caused “soft tissue injuries of an immediate duration of less than two years” and awarded $25,000 for the Plaintiff’s non-pecuniary damages.
In coming to his conclusions about the extent and severity of the Plaintiff’s injuries the Court noted the following about video surveillance evidence that was gathered on behalf of the defendant:

[50] The plaintiff was shown a surveillance video taken March 18 and 19, 2009, apparently showing her going about without any apparent pain. After spending four hours at a wave pool she went to a very long movie without the sort of getting up and walking around that she suggested she needed. In redirect she identified a few occasions on the video where she appeared to “crack” her neck…

[74] The plaintiff’s case is somewhat unusual in that there appear to be two quite different dimensions in which she moves. The first is her ordinary, public life. This is the world of school and teachers and social friends. In the aftermath of the accident, the plaintiff’s physical education teachers noted no change. The plaintiff’s marks were those of a diligent, hard working student. Her social activities are in all respects normal. The plaintiff’s friends consider her an outgoing, lively companion. Significantly, the most obvious sign of pain they were able to remark upon was her habit of “cracking” her neck and back, something that is medically of no import according to those who have treated her, including Dr. Hahn.

[75] The surveillance video and the plaintiff’s observed behaviour do not show anything like the pattern demonstrated in court. There may be a few occasions when the plaintiff “cracked” her neck, but it is very difficult to say. The observations made by the surveillance operators specifically do not bear out the plaintiff’s suggestions that she is a drag on her friends, frequently holding them up to take rest breaks and unable to sit through movies. She was observed to sit through a very long film with no trouble. I recognize the caution with which surveillance of a brief sample of a person’s life must be approached, but I also note that the observers managed to spend a number of hours watching the plaintiff doing things she specifically cited as current examples of her disability, without noting any of the overt signs her evidence would suggest.

In addition to a useful and lengthy discussion on credibility in chronic pain cases Mr. Justice McEwan had the following statement of interest when it comes to doctor’s opinions regarding the severity of Chronic Pain in Subjective Injury Cases:

[72] The balance of the medical opinion divides along lines that depend on the degree of scepticism the doctors bring to the description of symptoms with which they were presented. These range from very strong endorsements of the plaintiff’s claims (Dr. Kuttner, as reported by Dr. Hahn) to the blunt, contrary opinions offered by Dr. Weeks.

[73] I see very little purpose in parsing the medical reports to sort out who has the greater credibility based on their qualifications (i.e. “paediatric” physiatrists v. “adult” physiatrists). As courts have observed on any number of occasions, the approach taken by medical professionals is not forensic: they assume that the patient is accurately reporting to them and then set about a diagnosis that plausibly fits the pattern of the complaint. In the absence of objective signs of injury, the court’s reliance on the medical profession must, however, proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries.

When prosecuting a Chronic Pain claim the above quote is important to keep in mind. Just because a physician accepts that a Plaintiff suffers from Chronic Pain as a consequence of a car accident and makes a diagnosis accordingly does not mean a Court has to accept the diagnosis. The Court can and will make an independent finding of credibility and decide if the pain a Plaintiff complains of is sincere.