$90,000 Non-Pecuniary Assessment For Chronic Migraine Headaches

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic migraine headaches along with a low back injury caused by a collision.
In today’s case (MacDonald v. Joseph) the Plaintiff was injured in a 2011 head on collision caused by the Defendant.  The Plaintiff suffered a variety of injuries, some of which recovered but was left with a legacy of chronic migraine headaches and low back pain.  In assessing non-pecuniary damages at $90,000 Madam Justice Dillon provided the following reasons:

[21]         The plaintiff had substantially recovered from the accident after 18 months but he continued to suffer and continues to suffer accident caused symptoms related to migraine headaches, lower back pain and occasional neck pain. The headaches suffered as a result of the accident are of a different nature and consistency than any headaches before the accident which dated back to 2009 and were not medically treated. The treatment for chronic headache related to head and neck trauma is difficult and often unhelpful, according to Dr. Robinson who considered that the plaintiff was not a candidate for preventative medications. He expected the plaintiff to have recurring headaches for the next three to five years with a definite risk for persisting headaches indefinitely. These would not be expected to be a “substantial impediment” in continuing with the plaintiff’s janitorial career.

[22]         Decisions in similar cases presented by counsel suggest a range for the non-pecuniary damages suffered by the plaintiff from $55,000 to $100,000. In my view, the plaintiff here suffers headaches more frequently at present than the plaintiff in Sandhu v. Gabri, 2014 BCSC 2283. The nature of his job doing heavy physical work places him in a more precarious position at work than the plaintiff in Rutledge v. Jimmie, 2014 BCSC 41. The plaintiff was off work for a considerably longer period than the plaintiff in Wepryk v. Juraschka, 2012 BCSC 974. At the same time, the plaintiff is not in constant pain as was the plaintiff in Smith v. Fremlin, 2013 BCSC 800 and has not developed psychological or pain disorders as a result of the accident as the plaintiff did in Roth v. Hes, 2015 BCSC 161. Nonetheless, the plaintiff’s prognosis of persisting debilitative headaches into the future with unresolved low back and neck pain more than four years after the accident place him at the higher end of the range. Non-pecuniary damages are awarded in the amount of $90,000.

$85,000 Non-Pecuniary Assessment For Persistent Soft Tissue Injuries and Headaches

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.
In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC.  The Defendant admitted fault.  The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve.  In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:
[3]             The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder.  She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder.  She has suffered from headaches since the accident, some of which are debilitating…

[131]     The plaintiff is a young woman.  More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches.  Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.

[132]     The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.

[133]     She has become more withdrawn.  Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.

[134]     She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.

[135]     In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.

$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries and Headaches

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for chronic soft tissue injuries.
In this week’s case (Lewis v. Scheer) the plaintiff was involved in a “significant” collision in 2010. The Defendant admitted liability. The collision caused various soft tissue injuries and headaches which lingered at the time of trial.  The Plaintiff had some pre-existing symptoms which left her susceptible  to developing chronic pain.  Her symptoms were expected to carry into the future with optimism that they can be reduced with weight loss and exercise.  In assessing non-pecuniary damages at $70,000 Mr. Justice Funt provided the following reasons:
[9]             In general terms, the plaintiff’s injuries involve her back, spine, shoulders and neck.  She has daily headaches and has chronic pain…
[18]         The three doctors were in general agreement that the plaintiff’s ongoing symptoms of daily headaches and pain affecting her neck, chest, shoulders and spine were caused by the MVA.  Dr. Travlos noted in his November 14, 2011 report that the plaintiff “was likely vulnerable to injury and the development of more chronic symptoms, given some of the pre-accident complaints she had”…
[22]         The medical evidence recognizes that the pain will be ongoing although it may reduce as a result of the recommended steps to be taken.  These steps include losing weight, a focus on functionality and not on pain, a regimen of exercise and activity, and the reduction of the medication the plaintiff is currently taking…
[35]         As noted, the plaintiff will have ongoing pain.  The focus for the future is on improving function.  In particular, the pain has affected and will affect her enjoyment of life, family and social relationships, and lifestyle.  The Court will award $70,000 inclusive of housekeeping capacity.  The plaintiff will be able to perform housekeeping functions, albeit with degrees of pain depending on the particular activity.
 
 
 

$55,000 Non-Pecuniary Assessment For Chronic Headaches Secondary To Neck Injury

Adding to this site’s archived caselaw addressing damages for headaches, reasons for judgment were released this week by the BC Supreme Court, Prince George Registry, dealing with such an injury.
In this week’s case (Rutledge v. Jimmie) the Plaintiff was involved in a 2011 collision in Quesnel.  The Defendant was found fully at fault.  The Plaintiff suffered a neck injury which caused secondary headaches which continued at the time of trial and were expected to linger into the future.  In assessing non-pecuniary damages at $55,000 Mr. Justice Tindale provided the following reasons:
100]     The plaintiff, based on the preponderance of evidence, has clearly established that the motor vehicle accident caused him to have chronic post- traumatic headaches related to a neck injury.
[101]     This injury has caused significant changes to his lifestyle, particularly to his passion for powerlifting. He has also had to modify his lifestyle with regard to recreational activities, activities at home and some of his activities at work. I am mindful that the plaintiff did not miss any employment as a result of this accident; however, I also accept that he is a stoic individual and persevered in his employment…
[103]     Dr. Robinson opined that despite the success of the Botox treatment, the plaintiff’s headaches may continue to linger for many years to come although at a lower frequency and severity than the plaintiff is experiencing now.
[104]     The majority of the cases relied on by the plaintiff have fact patterns which are far more serious than the case at bar. Likewise, the cases relied on by the third party do not appropriately address the significant lifestyle changes and pain suffered by the plaintiff.
[105]     In my view the appropriate award for non-pecuniary damages is $55,000.

$65,000 Non-Pecuniary Assessment for Chronic Frontal Headaches

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for chronic headaches caused by a motor vehicle collision.
In this week’s case (Murphy v. Obrien) the Plaintiff was involved in a 2007 collision.  The Defendant accepted liability.  The Plaintiff suffered various soft tissue injuries which posed problems but the most debilitating consequence were chronic frontal headaches which were still symptomatic at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Steeves provided the following reasons:
[51]         There is general acceptance among the experts that the plaintiff suffered a soft tissue injury to his neck on May 17, 2007. There was no fracture, dislocation or nerve root injury. There is restricted range of motion in all directions and even simple tasks such as reading bring on headaches and neck pain. The plaintiff testified that, at times, he actually vomits because of the pain from his headaches. He has tried various treatments with some affect. The most recent has been Botox injections which have given him some relief. For example, Dr. Tsui administered the injections and, in a report dated May 10, 2012, he reported that the plaintiff said “the migrainous headaches have abated since the last treatment.” Similarly a report dated August 15, 2012 reported a “good response in terms of the migraines.” Despite this improvement the frontal headaches continue. The plaintiff’s evidence about his headaches is consistent with that of Dr. Tsui.
[52]         Therefore, the current situation is that the severe migrainous headaches have abated but the frontal headaches remain and they are chronic. I conclude that these headaches, and the neck pain, are as a result of the May 2007 motor vehicle accident. Further, these symptoms are independent of any problems with the left knee although, as will be seen, the left knee is certainly a relevant and complicating factor. These headaches are obviously very real for the plaintiff, with the consequences noted, and they are consistent with the medical evidence…
[62]         Overall, I conclude that an amount of $65,000 is an appropriate amount for non-pecuniary damages in this case. That figure recognizes the chronic frontal headaches. It also recognizes the undoubted emotional toll the headaches have had on his life, including his family, friends and the limitations on activities he used to do before the 2007 accident. And, it recognizes that pain medications for the left knee have played a role in the current situation.
For more BC non-pecuniary assessments for headaches you can click here to search this site’s archives.

Court Considers It "Unsafe" To Rely on Defence Doctor's Opinion In Chronic Headache Case

In my continued efforts to highlight judicial scrutiny of expert testimony in BC injury litigation, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, finding an expert “displayed a somewhat compromised objectivity” and that it was “unsafe” to rely on his opinion.
In this week’s case (Smith v. Moshrefzadeh) the 54 year old plaintiff was injured in a rear end collision in 2008.  As a result she suffered from soft tissue injuries to her neck and shoulders which caused chronic headaches.  At trial the Defendant produced an orthopaedic surgeon who provided opinion evidence that the probability that the crash resulted in the chronic symptoms was “negligible“.  Madam Justice Dardi did not accept this evidence and provided the following critical comments:
[62]         I accept the opinions of Dr. Helper, Dr. Robinson and Dr. Craig and, where they differed, I prefer their opinions to that of Dr. Wahl.  I found each of Dr. Robinson, Dr. Helper, and Dr. Craig, who are very well-qualified and experienced practitioners, to be careful and fair-minded in their testimony.  Their opinions, without exception, were not weakened in cross-examination.  Each of the doctors persuasively discounted Dr. Wahl’s opinion that the degeneration of Ms. Smith’s cervical spine shown on her x-rays is the cause of her current symptoms.  While Dr. Wahl is no doubt a well-qualified orthopaedic surgeon, his practice is focused on the surgical management, not the medical management, of the spine.  Dr. Wahl clearly had not reviewed Ms. Smith’s medical records as carefully as the other expert witnesses and as I mentioned earlier his report was predicated on a misconception as to the timing  of the onset of Ms. Smith’s symptoms.  Given the significant concessions he made in cross-examination and the Court’s impression that he displayed a somewhat compromised objectivity in preparing his report, I consider it unsafe to rely on his opinion.
In assessing non-pecuniary damages at $80,000 the court provided the following reasons:
[65]         In summary on this point, Ms. Smith’s chronic headaches and neck and upper back pain and discomfort which were caused by the accident have persisted for some three and a half years.  She experiences episodic flare-ups.  The pain fluctuates in intensity and is aggravated by physical activity.  Ms. Smith’s symptoms are exacerbated by the physical demands of the commercial salmon and herring fisheries.  She can no longer engage in the prawn fishery.  She has constant and daily headaches which vary in intensity.  The headaches are usually of a mild to moderate severity, but at least a few times per week they become severe enough that she needs to rest in a quiet environment.  For the most part, however, even though she describes feeling like she is “hanging on by a thread”, she forces herself to carry on with her fishing work and with maintaining her household routines and family life.  In order to carry on, she takes prescription medication on a daily basis.
[66]         There is a possibility that, by undertaking the treatments recommended by the specialists who testified at trial, Ms. Smith will experience some improvement in her symptoms and will be able to manage her pain and discomfort more effectively.  However, I find that it is unlikely that she will make a full recovery to her pre-accident status…
[76]         I have reviewed all of the authorities provided by both counsel.  Although the cases are instructive, I do not propose to review them in detail as they only provide general guidelines.  In broad terms, the cases relied upon by the defence involve plaintiffs with symptoms that had significantly improved by trial.  In considering Ms. Smith’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.

$70,000 Non-Pecuniary Assessment for Chronic Headache Disorders

Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a chronic headache disorder caused as a result of a motor vehicle collision.
In this week’s case (Fennell v. Herbert) the Plaintiff was involved in a ‘quite violent’ collision in 1998 when she was 8 years old.  Liability was admitted focussing the trial on an assessment of damages.  The trial proceeded summarily as there were no issues as to the legitimacy of the plaintiff’s symptoms nor to their connection to the collision.  In assessing non-pecuniary damages at $70,000 the court summarized the following medical evidence and provided the following reasons:

[4] As a result of the motor vehicle accident, the plaintiff suffered soft tissue injuries to her neck and lower back and headaches started within days of the collision. The headaches and neck pain have continued ever since and it is the headaches that are the most debilitating and are now considered chronic.

[5] Dr. Robinson, who is a neurologist that specializes in pain disorders stated in his report that:

In all likelihood she will continue to have chronic headache and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize…

[7] Dr. Laidlow, a physical medicine and rehabilitation specialist, in a report dated April 28, 2010, noted that the plaintiff had neck pain, back pain, and two types of headaches. His opinion was that her neck and lower back pain was myofascial pain caused by musculoligamentous strain at the neck and lower back at the time of the accident. Dr. Laidlow recommended that she see a neurologist. Dr. Robinson’s report was dated August 9, 2011. He noted that as a result of the accident she probably sustained soft tissue injury to her neck and shoulders and developed chronic headaches relating to the neck injury:

I believe that she probably did develop chronic headaches relating to neck injury as a result of the January 30, 1998 motor vehicle accident. As a result of that accident, she has ongoing neck and shoulder discomfort present constantly. The pain is aggravated by physical activity whereupon there is an increase in her head pain.

I believe that it is possible that she did develop an increased predisposition to headache reflecting migraine in her early teenage years. However, I doubt that she would have developed a constant headache or as frequent severe episodes had the lingering effects motor vehicle accident not been present.

In essence, I believe that her current headache difficulties are primarily related to chronic pain involving her neck secondary to the motor vehicle accident of January 30, 1998, superimposed upon which is a predisposition to headaches. Although it is impossible to be definitive I believe that she probably would not have developed any substantial problems with headaches if the accident had not occurred.

In all likelihood she will continue to have chronic headaches and neck pain indefinitely. This will have a negative impact on her quality of life, as well as occasionally resulting in an inability to work, attend school, or socialize. I doubt that her headache disorder will worsen or that it will have a negative impact upon her post-secondary education or for that matter her career potential.

[8] Dr. Laidlow also stated:

I do feel that she should be able to go to school and do any work activities. I think she will also be able to do any recreational activities that she chooses…

[15] I accept the evidence of the plaintiff. I find that under the heading of general damages for loss of enjoyment of life, given her young age and the severity of pain and discomfort she has suffered, she is entitled to general damages in the amount of $70,000. Also included is a component for loss of housekeeping capacity.

$60,000 Non-Pecuniary Assessment For Onset of Symptoms in Pre-Existing Degenerative Disc Disease

As previously discussed, a common occurrence following a collision is the onset of symptoms in a pre-existing, but otherwise asymptomatic, conditions.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, highlighting and assessing damages for such a scenario.
In this week’s case (Zawislak v. Karbovanec) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the opposing motorist.  The Plaintiff had pre-existing, asymptomatic, degenerative disc disease in his spine.  The collision rendered this condition symptomatic resulting in on-going chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Gerow provided the following reasons:

[31] Dr. Cameron, a neurologist, examined Ms. Zawislak on August 24, 2011. He found signs of muscle spasm in her shoulder muscles and neck muscles, left side predominant. In Dr. Cameron’s opinion, Ms. Zawislak suffered a soft tissue injury and musculoskeletal injuries to her neck, shoulders and upper back in the motor vehicle accident. Ms. Zawislak has developed headaches associated with the neck pain as a result of the musculoskeletal injuries to her neck and shoulders that she sustained in the accident. In Dr. Cameron’s opinion, Ms. Zawislak remains partially disabled because of the ongoing upper back pain, headaches and neck pain which had resulted from the soft tissue injuries and musculoskeletal injuries in the form of a whiplash she sustained in the motor vehicle accidents.

[32] According to Dr. Cameron, 80% of the individuals over the age of 40 have degenerative disc disease and most of those individuals go around without pain until a trauma, such as a motor vehicle accident, renders their disc disease symptomatic. Trauma makes the asymptomatic condition symptomatic. Ms. Zawislak’s neck was partially degenerated and, in his opinion, her ongoing pain in her neck, with the attendant headaches, and her back are likely caused by the motor vehicle accident…

[44] In my view, the evidence establishes that the probable cause of Ms. Zawislak’s headaches, neck pain, upper back and shoulder pain is the motor vehicle accident exacerbating the pre?existing asymptomatic degenerative disc disease. While there was some risk of her degenerative disc disease becoming symptomatic, the medical evidence was that it was likely it would not become symptomatic absent a trauma. In my opinion, this case falls within the “thin skull” rule as opposed to the “crumbling skull” rule enunciated in Athey, and the defendants are liable for Ms. Zawislak’s injuries even though they may be more severe than expected due to her pre?existing condition…

[49] Having considered the extent of the injuries, the fact that the symptoms are ongoing three years after the accident with very little improvement, that the prognosis for full recovery is guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non?pecuniary damages is $60,000.

$75,000 Non-Pecuniary Assessment for Chronic Injuries Caused by Two Collisions

Reasons for judgemet were released last week by the BC Supreme Court, New Westminster Registry, assessing damags for injuries sustained in multiple collisions.
In last week’s case (Bansi v. Pye) the Plaintiff was involved in two collisions, the first in 2005, the second in 2008.  The Plaintiff was faultless for both collisions focussing the trial on an assessment of damages.  The Plaintiff suffered varoius injuries which were recovering when they were aggravated by the secod crash.  These included various soft tissue injuries and headaches which were expected to last indefinatly and to limit the Plaintiff in his trade in construction management.  In assessing non-pecuniary damages at $75,000 Mr. Justice Jenkins provided the following reasons:

[33] Also at page 7 of her report of January 11, 2011, Dr. Caillier listed “The Injuries of Issues Related to the MVA No. 2 dated April 25, 2008” as follows:

1.         Cervicogenic headaches

2.         Cervicogenic dizziness

3.         Left hearing complaints. . .

4.         Exacerbation of pre-existing symptoms involving the neck, upper back, and lower back regions.

5.         Soft tissue musculoligamentous injury involving the neck, upper back, and posterior shoulder girdle and lower back region.

6.         Further aggravation of degenerative changes within the lumbar spine.

7.         Altered mood and anxiety.

8.         Worsening of sleep disturbance.

9.         Further decrease in ability to participate in the functional, recreational, and vocational activities of his choosing.

[34] Further at page 9, Dr. Caillier stated:

It is my opinion, given the chronicity of Mr. Bansi’s physical symptoms, both following that of the first motor vehicle accident as well as ongoing since the time of the second motor vehicle accident, the likelihood of him becoming pain-free is very poor…

[42] The two MVAs have had a significant negative impact on Mr. Bansi’s lifestyle and quality of life. Mr. Bansi had previously been very active and energetic whether in working on home renovations, exercising at the gym, cycling, washing family vehicles, participating in family events, services and prayers at the temple, working at household chores including maintenance of the gardens and yard, driving family members for appointments, shopping and much more.

[43] Since the MVAs, he has had considerable difficulty driving for any significant time, he no longer looks after the family gardens and yard, rarely socializes with family or at the temple, lacks motivation, spends more time alone in his suite at the family home, rarely takes care of his young niece and nephew, no longer goes on bike rides with his sister and has clearly had significant problems in carrying out his duties on construction sites. Not only has he had difficulty performing the work, his productivity is considerably impaired and what were simple physical tasks now take much longer. His employers have also noted his decrease in production and energy on the work site which I will address further in his claim for past loss of income and diminished earning capacity…

[52]Considering that the injuries sustained by Mr. Bansi are not seriously challenged, his lower back injury is likely permanent, having to start his rehabilitation over again after the 2008 MVA will have an impact on his psyche, the difficulties he is having in performing previously simple tasks which were part of his job as a construction manager, the likelihood of him having to persevere with chronic pain in the future, and the resulting loss of enjoyment of life, I find an appropriate award of non-pecuniary damages to be $75,000.

$40,000 Non-Pecuniary Damage Assessment For Chronic Soft Tissue Injuries

Adding to this site’s archived BC soft tissue injury cases, reasons for judgement were released earlier this year by the BC Supreme Court, Victoria Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In the recent decision (Hammond v. Meeker) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.   The Plaintiff was 7 months pregnant at the time and the impact was “substantial“.
The Plaintiff suffered from soft tissue injuries to her neck and upper back which continued to produce symptoms including headaches and pain at the time of trial.  The symptoms were expected to continue “for an indefinite period of time“.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Mr. Justice Curtis provided the following reasons:
[20] I find on the evidence that the sum of $40,000 is reasonable and fair compensation to Ms. Hammond for the pain and suffering and loss of enjoyment of life inflicted upon her by the February 9, 2008 collision.  She has suffered a soft tissue injury to her neck and upper back, the significant symptoms of which, particularly headaches and pain and stiffness in the neck, have not resolved in the four years since the collision, and will likely continue for an indefinite period of time in the future.  While the injury and symptoms do not actually prevent any particular activity, they make many activities painful and not enjoyable to the extent that she does not do them.  This has been particularly difficult for her given her position as a home maker with two small children and for a while three with B.T. as a foster child.  On the other hand, I accept Dr. Christie’s opinion that her injury will not require surgery, nor will it make osteoarthritis more likely.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer