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Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized. 50 Comments on Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Reasons for judgment were released today by the BC Supreme Court dealing with compensation for serious injuries including Mild Traumatic Brain injury and Chronic Pain.
In today’s case (Slocombe v. Wowchuck) the Plaintiff was injured in a 2005 rear-end BC Car Crash.  Liability was admitted so the trial focused solely on quantum of damages.  The Plaintiff suffered serious injuries.   Total damages of over $940,000 were awarded by Madam Justice Morrison including an award of $125,000 for non-pecuniary damages.  In assessing the this head of damage the court summarized the Plaintiff’s injuries and their effect on his life as follows:

[197] This was an accident that has caused serious injuries to the plaintiff.  He suffered a mild traumatic brain injury that he appears to have recovered fully from at this point in time.  Dr. Kaushansky did testify that the plaintiff could be at risk if there were a further blow to his head.

[198] The injury to the plaintiff’s sternum no longer poses problems.  There has been a full recovery.

[199] The plaintiff still experiences headaches following the accident.  However, the serious headaches have been resolved, and the headaches the plaintiff now gets are certainly real, but they are not of the serious and disabling nature that they were initially.

[200] Mr. Slocombe still complains of some neck problems, but these complaints are periodic, and are not the cause of his serious complaints at this time.

[201] The second worst injury was to the thoracic spine area.  This pain continues, and has been referred to as a soft tissue type of injury.  Dr. Rothwell was of the opinion that the degenerative disc disease processes have been generated in the spine, including the thoracic spine area by the motor vehicle accident.  It is unlikely that there will be further recovery in this area.  I accept this opinion.

[202] The most serious area of injury is to the lumbosacral spine area.  This injury began at the instant of the double impact of the accident, and has continued to a painful degree to this day.  I conclude that the chronic pain has had a profound effect on the plaintiff’s life in all areas, and will continue to do so.  I accept the evidence of the plaintiff’s medical experts who find the motor vehicle accident was the cause of this injury.

[203] Mr. Slocombe had a pre-existing asymptomatic spondylolisthesis, and in my view, this became symptomatic as a result of the accident.  That is the only conclusion that can be reached, from all the evidence, on a balance of probabilities.

[204] There was medical evidence at trial that there are other areas of injury in the lumbar spine area in addition to the spondylolisthesis that have now been rendered symptomatic.

[205] When working at his carpentry, Mr. Slocombe is making mistakes that he was not making prior to the accident.  He is experiencing some cognitive difficulties which the doctors, including Dr. van Rijn and Dr. Mok as well as Dr. Kaushansky attribute to the pain and mood difficulties that he has been experiencing since the accident.  These difficulties are particularly apparent the longer Mr. Slocombe works.  They have been confirmed by testing and also by the evidence not only of the plaintiff but also of his father and Mr. Graham, one of his clients.  These cognitive difficulties are continuing…

[229] Tom Slocombe’s life has changed dramatically due to the accident.  He no longer has the high energy, endurance and health to perform the work that he loves, carpentry, or to take part in the social and sporting activities that gave him such pleasure.  He is in constant pain, and will probably be for the rest of his life.  He was an active, fun-loving 25 year old with a good job, good prospects, and a steady girlfriend who became his fiancée.  He had a vehicle that he was making sure he was paying for, and a life that included active sports, travel and social activities with friends and family; he was usually the initiator.

[230] He is no longer able to be independent financially, he has no vehicle, and he has the added difficulty of not being able to sit for any length of time.  His passion for carpentry has been lifelong.  It is apparent he will not be able to earn his living and continue with this line of work.

[231] His family and others testified to his change in disposition and mood, his inability to join their normal activities, and his difficulties in coping with his pain and sleeplessness.  His enjoyment of life has been dramatically altered.  There will be an award for non-pecuniary damages in the amount of $125,000.

$75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 45 Comments on $75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

Reasons for judgement were released today (Testa v. Mallison) by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for injuries and losses suffered as a result of a 2004 BC Car Crash.
The Plaintiff’s vehicle was rear-ended while stopped in traffic.  The issue of fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s claim).  The Plaintiff suffered injuries to her low back, her neck, shoulders, chest and headaches.
Some of the Plaintiff’s injuries fully resolved, others did not.  By the time of trial the Plaintiff complained of the following ongoing problems “constant pain in her neck from the base of her skull up and down the neck to her shoulders and radiating into her head and temple area.  The pain is lowest first thing in the morning but builds up by afternoon and can get quite severe.  She experiences crying from the pain while in her car driving home.  She can’t stand even the sound of having the radio on.  Her sleep is most often disturbed and intermittent.”
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000, Mr. Justice Holmes accepted the following evidence:

[48] I accept Dr. O’Connor’s opinion that the 2004 motor vehicle accident caused the plaintiff:

1.       aggravation of a pre-existing neck condition and aggravation and worsening of her existing cervical spondylosis.

2.       cervicogenic headaches, with a migrainous component, and most likely triggered by neck pain.

3.       low mood, deconditioning and sleep disturbance.

[49] Dr. O’Connor’s prognosis is that the plaintiff’s ability to function is primarily determined by her ability to cope with her chronic pain.  That pain level has remained constant over a 2 to 3 year period and she rates it as severe.  Dr. O’Connor is of the opinion that the plaintiff’s pain symptoms are going to persist indefinitely.

[50] Treatment options are very limited.  Exercise with emphasis on core conditioning is paramount. A regime of pain and sleep medication is needed.

[51]         Dr. Shuckett examined the plaintiff September 10, 2008 and as with Dr. O’Conner was provided with comprehensive historic health care provider records of the plaintiff’s treatment for neck, shoulder, back and hip pain and headaches.  Dr. Shuckett’s diagnoses of injury in the 2004 accident are:

1.               cerviogenic headaches with migraine features

2.               whiplash injury of the neck mainly left sided neck pain but also with painfull trigger points

3. myofacial pain syndrome of neck and shoulder girdle region with painful trigger points.

[52] Dr. Shuckett considered causation and concluded at page 11 of her report:

Thus, I believe that her current pain in the neck and shoulder girdles and her headaches are predisposed to by her pre-existing history, but it sounds to me like this pre-existing history was not that significant in the three years before the subject motor vehicle accident of March 23, 2004.  She had mainly left hip girdle pain before the subject motor vehicle accident.

[53]         Dr. Shuckett’s opinion is that the plaintiff “…will be dealing with her symptoms in the long term future.

[54]         I prefer the opinions of Drs. Deernsted, O’Connor and Shuckett to that of Dr. Sauvio in regard to the plaintiff’s March 23, 2004 related injuries, their causation and consequence.

[55]         Dr. Deernsted and Dr. O’Connor have a significant advantage of treating the plaintiff over time.  Dr. O’Connor and Dr. Shuckett concluded a careful review of historic medical clinical records and specifically considered causation issues.

[56]         The plaintiff’s neck and shoulder pain and headaches prior to the March 23, 2004 accident were mainly related to her hip problem that occurred in 2001.  The neck and shoulder pain and headaches by the time of the 2004 accident were much diminished.  They had become only intermittent but she was left more susceptible to injury by subsequent trauma.

[57] The accident of March 23, 2004 aggravated those diminished but active symptoms as well as triggering some that were asymptomatic.  The combined injuries to the shoulder and neck are now very severe in their effect and likely permanent.

[58] The plaintiff’s low mood is a consequence of the injuries and their duration.  The plaintiff had a history of migraine headache experience but hey were generally stress related.  The constant migraine type headache she presently experiences is a consequence of her present injuries and triggered by her neck and shoulder pain.

GENERAL DAMAGES

[59]         The plaintiff’s life has been severely impacted by the result of her injuries sustained in the March 23, 2004 accident.  She has constant pain and headaches and suffers from sleep disturbance and altered mood.  She has experienced a substantial quality decline in her ability to work and in both her leisure and social life activities.

[60] The plaintiff is a motivated lady who will persist in using her long standing fitness and running activity to assist in controlling her chronic pain condition.  Unfortunately at most she may only be able to reduce her pain levels to more tolerable or manageable levels and is unlikely to enjoy a full recovery.

[61] I award general damages of $75,000.

The Important Role of Treating Doctors in BC Personal Injury Claims

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.
In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes.  Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).
The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries.   These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett.   Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:

[21]         Dr. Shuckett examined Ms. Deiter in December 2008.  Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:

1.               Cervicogenic headaches.

2.               Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility.  She may very well have zygapophyseal joint capsular injury of the neck.

3a.     Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.

3b.     Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.

There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.

3.               Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).

[22]         Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses.  As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident.  Dr. Shuckett gave the opinion that:

It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain.  I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict.  However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.

And further:

She may not improve from her current status as her pain is chronic by this time.

The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.

The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion.  In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:

[28]         The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization.  I found her to be very clear and objective in her evidence which she was well qualified to give.  I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature.  The defendants stated in written and oral argument:

In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.

[29]         This submission is what is known as a back?handed compliment.  It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence.  It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases.  This cynical submission is outrageous and unduly partisan.

[30]         This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries.  These are persons who are entitled to damages under the common law of this country if their claims are proven.  These are persons who may be suffering greatly from their injuries.  This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.

[31]         Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty.  Coming to court to testify and to face cross?examination may be the last thing a busy physician wants to do, faced with the burdens of practice.  Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim.  This court is extremely appreciative of the role physicians play in giving evidence.  I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases.  It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.

ICBC Soft Tissue Injury Claims Round-up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

On Friday the  BC Supreme Court released reasons for judgement in 2 cases dealing with soft tissue injuries which I summarize below to continue to grow this free database of ICBC Injury Claims Judgements. Additionally, both of these cases contain a useful analysis of Plaintiff credibiilty and are worth reviewing for anyone interested in this area of the law.
In the first case, Skusek v. Gill, the Plaintiff was injured in 2 BC car crashes, the first in 2000 and the second in 2006.  Liability was admitted in both cases leaving the court to deal with quantum of damages (the value of the plaintiffs injuries and losses).
The Plaintiff was 22 years old by the time of trial.  She suffered various soft tissue injuries in both collisions which did not fully resolve.  Mr. Justice McEwan of the BC Supreme Court largely accepted the evidence of Dr. Ames who summarized the Plaintiff’s injuries as follows:

[20] The plaintiff saw Dr. Janet Ames on August 22, 2007.  Dr. Ames took a history which suggested significant ongoing pain from the first accident which was seriously aggravated by the second:

After the first accident on January 12, 2000 the symptoms included headaches, neck pain, lower back pain, pain between the shoulder blades and bilateral hip pain.  She commented her entire back hurts.  At the time of the second accident she was still going for chiropractor treatment and physiotherapy.  The patient would place her recovery at about 50 percent before the second accident.

After the second accident the patient describes becoming a lot worse in all of the previously symptomatic areas and specifically the right hip became worse.  There were bruises from the seat belt.  The left anterior ribs felt “out of place” (later resolved with chiropractor care).

[21] She note the following symptoms on her examination:

1. There is pain across the low back, left greater the right.  The pain does not consistently radiate down the legs.  There is occasional pain down both anterior thighs not going past mid thigh.  There is no tingling or numbness associated with this.  There is no history of bowel or bladder control problems.  The patient describes pain in the area of the right hip and points to the lateral aspect of the hip.

2. There is pain in the mid back area, left worse than right.  This does not radiate around the chest or through to the front.  There is no history of tingling or numbness.

3. There is a history of headaches described as frontal, temporal and from neck tension.  The frequency and severity varies.  There is no pain down the arms and no tingling or numbness.  Caffeine intake is 1 c. of coffee or tea every two or three weeks and chocolate about twice a week.  The patient will be seeing a Neurologist in February 2009, arranged by Harris Johnsen.

4. The patient comments that she has a lot of stomach aches daily.

5. Sleep varies depending on the pain level.

[22] The prognosis was as follows:

The prognosis for the various injuries is good as there are no clinical findings consistent with a serious injury.  This excludes the problem with the headaches.  The patient will be assessed by a Neurologist who will comment on the diagnosis and prognosis with regards to the headaches.

Determining when the symptoms will come under good control and/or resolve is very difficult.  The patient may benefit considerably from low dose Amitriptyline to improve sleep and a consistent core stability/strengthening program with one or one supervision.  The supervision from a Pilates instructor would continue until she was on a full program and was aware of how to progress the exercises.  This usually takes about eight sessions over eight weeks.  The patient then graduates to doing the exercises on their own or joining a small group.

Damages of $50,000 were awarded for the Plaintiffs non-pecuniary loss (money for pain and suffeirng and loss of enjoyment of life) and $60,000 was awarded for the young Plaintiff’s diminished earning capacity.

Paragraphs 41-48 of this judgement are worth reviewing for anyone interested in some of the factors courts look at when weighing a Plaintiff’s credibility in soft tissue injury cases.

In the second soft tissue injury case released on Friday (Mohamadi v. Tremblay) the Plaintiff was awarded $10,000 for non-pecuniary damages as a result of injuries sustained in a 2006 BC car crash.   In valuing the Plaintiff’s injuries at this modest figure Mr. Justice Truscott of the BC Supreme Court summarized the injuries as follows:

[91] It is extremely difficult to determine the value of the plaintiff’s claims with all of the inconsistent evidence he has given and the lack of supporting evidence from his doctors.

[92] I do accept that in the motor vehicle accident of February 14, 2006 the plaintiff sustained soft tissue injuries to his neck, back and left shoulder, accompanied by headaches.

[93] I am prepared to accept that his soft tissue injuries lingered on for a period in the order of two years on a mild basis but thereafter I conclude that he had recovered with no long term consequences.

[94] I accept that his headaches lasted for a short period of time but thereafter this complaint is not supported by his physicians and I reject his evidence that his headaches continued thereafter.

This case is also worth reviewing for the court’s discussion of plaintiff credibility in soft tissue injury claims.  Many of the Plaintiff’s claims were rejected by the Court.   Specifically in paragraphs 95-113 the court gives reasons for rejecting many of the Plaintiff’s claims and these paragraphs contain a useful discussion for anyone interested in some of the factors courts consider important when weighing credibility in ICBC Injury Claims.

$45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Dental Injury Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 109 Comments on $45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

Reasons for judgement were released today (Romanchych v. Vallianatos) by the BC Supreme Court, Vancouver Registry, awarding just over $132,000 in total damages to a Plaintiff injured in a 2006 BC Motor Vehicle Collision.  
The collision was a rear-ender on the Alex Fraser Bridge in Delta, BC.  The crash was forceful enough to write off the 24 year old Plaintiff’s vehicle.
Madam Justice MacKenzie of the BC Supreme Court summarized the Plaintiff’s injuries as follows:  
I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms improved over time, they have not resolved.   She currently suffers chronic neck and shoulder pain. She can manage her pain  level if she avoids aggravating her injuries by limiting her activities. The plaintiff is  also vulnerable to future episodes of jaw pain. I find in favour of the plaintiff’s  submission, except for small adjustments to the quantum of damages claimed. 
In awarding $45,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court engaged in the following analysis:
Conclusion on Non-Pecuniary Damages 
[71] On the whole, the expert opinions support a strong inference that the plaintiff’s injuries are chronic and that they will continue to affect her permanently. Given that she must limit her activities to minimize and manage her pain, the  evidence shows that it is probable that her pain and resulting limitations will continue  indefinitely. 
[72] I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms have improved over time, they have not resolved.   
[73] I also find that the jaw symptoms which arose in August 2007 were indeed caused by the accident of July 4, 2006. I also observe that the jaw symptoms experienced in December 2006 may have been related to the accident as well.    
[74] Both counsel rely on the non exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at paras. 45-46. The award for general damages, will of course, vary according to the specific circumstances of the individual case, but the factors include:   
(a) age of the plaintiff;  
(b) nature of the injury;   
(c) severity and duration of pain;   
(d) disability;    
(e) emotional suffering; and   
(f) loss or impairment of life;    
(g) impairment of family, marital and social relationships;   
(h) impairment of physical and mental abilities;   
(i) loss of lifestyle; and   
(j) the plaintiff’s stoicism (as a factor that should not, generally speaking,   penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).   
[75] The defendant relies upon the following cases as being reasonably analogous to this case and as supporting an award in the range of $15,000 to $22,500 for general damages: Kain v. Kirkman, 2006 BCSC 1770; Nickerson v. Allen Estate, 2006 BCSC 562; Aulakh v. Poirier, 2006 BCSC 2027, and my own decision in Moore v. Cabral, 2006 BCSC 920. However, those cases are all distinguishable from this case.   
[76] The plaintiff relies upon the following cases as supporting an award of $50,000 for general damages in this case: Henri v. Seo, 2009 BCSC 76; Chin v. McCabe, 2006 BCSC 1589; and Pavlovic v. Shields, 2009 BCSC 345. In my view, these cases are reasonably similar to this case and reflect analogous general damages.    
[77] Therefore, an appropriate award of non-pecuniary damages in this case is $45,000. 
One of the points of interest in this case was the courts comments on Dr. Goldstein. an oral medicine specialist, who ICBC often retains in jaw injury cases.  His evidence was rejected over the Plaintiff’s treating oral medicine specialist Dr. Gardner.  
Specifically, in finding bias in doctor Goldstein’s evidence, Madam Justice MacKenzie commented as follows:
[66] Dr. Goldstein’s bias in favour of the defendant’s case became evident during cross-examination. His attempt under cross-examination to distance himself from the meaning of the phrase emphasized in the above quote damaged his reliability as a witness. 
[67] I also view Dr. Goldstein’s opinion with scepticism because he was not forthright in his report about the fact that flexion extension injury from motor vehicle accident trauma could cause jaw symptoms. Under cross-examination, counsel for the plaintiff put one of Dr. Goldstein’s own articles to him in which he noted the close correlation between TMD and motor vehicle accident trauma. 

ICBC Pain and Suffering Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized.

With the Canucks losing game 6 and the series to the Blackhawks I figured its a fitting time to write about Pain and Suffering Claims in BC.
In the first case, Chan v. Kao, the Plaintiff suffered a left shoulder injury as a result of a 2006 motor vehicle collision.   Mr. Justice Verhoeven had credibility concerns with respect to some aspects of the Plaintiff’s testimony.  Despite this he concluded that “I have no difficulty in finding that Mr. Chan did in fact injure his left shoulder in the motor vehicle accident“.
In assessing the Plaintiff’s non-pecuniary loss (damages for pain and suffering) at $22,000 the court summarized his injuries and prognosis as follows:
[65]            I accept that Mr. Chan has continued to have shoulder problems and pain since the accident.  The extent to which this has affected his work is impossible to gauge, in view of the unreliability of his evidence.  It seems likely that Mr. Chan has worked at various times and places since the accident, but has chosen not to testify about that work…

72]            In summary, I accept that the plaintiff’s left shoulder was injured in the motor vehicle accident, and that he continues to suffer, to some extent, from shoulder difficulties initially caused by the accident.  The evidence as to the extent to which the ongoing shoulder problem causes the plaintiff ongoing difficulty and disability with respect to his ability to work is subject to considerable doubt, due to the unreliability of the plaintiff’s evidence in this respect, and the lack of corroborating evidence.

[73]            While Dr. Lui’s prognosis of permanent disability is overly pessimistic, both orthopaedic surgeons are of the view that there are ongoing problems in the shoulder which require treatment.  In my view, treatment options have not been adequately explored.

In addition to referencing several cases dealing with pain and suffering values in BC for shoulder injuries this claim is worth reviewing to see how Mr. Justice Verhoeven dealt with his concerns regarding the credibility of certain aspects of the Plaintiff’s evidence.

The second ICBC Pain and Suffering Claim released today (Mattu v. Fust) involved a 2004 collision.  The Plaintiff was 39 years old at the time.  His vehicle was rear-ended with enough force to push it into the vehicle ahead of him.

The Plaintiff suffered various soft tissue injuries leading to chronic pain and headaches.  The court found that the effects of these would likely be permanent.  Madam Justice Brown summarized the medical evidence of the Plaintiff’s treating family physician as follows:

 

[31]            Dr. Parhar has been Mr. Mattu’s family physician since April 2004. He provided three reports to the court. In his first report of November 1, 2004, he diagnosed Mr. Mattu with paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches.  He had received ice, heat, rest, exercises, massage therapy, kinesiology, acupuncture, herbal medicine and medications: anti-inflamatories, analgesics and muscle relaxants.  With respect to prognosis and recommendations, Dr. Parhar was impressed by Mr. Mattu’s motivation to recover and try different treatments, but was concerned that he may be trying too many modalities.  He recommended limiting treatment to massage and physiotherapy and increasing active modalities such as swimming and exercises.  He anticipated further treatment and improvement.

[32]            In his report of May 26, 2006, Dr. Parhar found that Mr. Mattu continued to have decreased range of motion in the cervical spine, tenderness in the paracervical and paralumbar regions.  He found muscle spasm in the paracervical and paralumbar regions.  His diagnosis remained the same.  His prognosis for full recovery had worsened.  Mr. Mattu had tried a variety of treatments with minimal success.  Dr. Parhar’s recommendations were unchanged, but he thought that Mr. Mattu’s condition had plateaued.

[33]            In his final report of September 16, 2008, Dr. Parhar considered the MRIs of Mr. Mattu’s spine taken September 19, 2006, and July 28, 2008, and concluded that Mr. Mattu’s injuries included cervical and thoracic disc herniations.  He said: “… it is unclear if the cervical and thoracic disc herniations were caused by the motor vehicle accident … but certainly, this motor vehicle accident made these spinal lesions symptomatic.”  He commented on Mr. Mattu’s efforts to recover: “… pursued many more modalities of treatment than most patients would have. Despite all of these modalities his pain symptoms persist.”  He concluded that the prognosis for a full recovery was poor, that Mr. Mattu’s condition had plateaued and further improvement in his functioning or symptomatology was unlikely  

In awarding $60,000 for the Plaintiff’s non-pecuniary loss injuries and their effect on the Plaintiff’s life the court accepted the family physicians evidence and stated as follows  

[60]            I found the evidence of Dr. Parhar to be very helpful.  Dr. Parhar has seen Mr. Mattu regularly since shortly after the accident.  I accept his opinion that Mr. Mattu suffered paracervical, parathoracic and paralumbar muscle strain, left shoulder strain and muscle tension headaches from the accident; that his condition has plateaued; and that it is unlikely there will be further improvement.  I also accept the opinions of Drs. Parhar, Hershler and Hunt that the accident likely caused the disc herniations in Mr. Mattu’s back to become symptomatic.  Mr. Mattu will continue to need chiropractic treatment from time to time and would benefit from a personal trainer.

[61]            I have considered the cases which counsel have provided to me.  In my view, an appropriate award for non-pecuniary loss is $60,000.

$115,000 Pain and Suffering Awarded for Mild Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized.

In reasons for judgement released yesterday (Williamson v. Suna) by the BC Supreme Court, Victoria Registry, damages of just over $266,000 were awarded for injuries and losses as a result of a 2004 motor vehicle collision.
The Plaintiff was a 38 year old member of the Canadian Armed Forces at the time of the car crash.  The crash was a significant head on collision.  The issue of fault was admitted focusing the trial solely on damages.
The Plaintiff suffered various injuries and symptoms as a result of this crash including a mild traumatic brain injury, headaches, poor sleep, irritability and difficulties with memory.  While the medical evidence did not rule out further possible recovery the testifying physcians stated that the plaintiff would probably suffer from headaches, neck pain and consequences of the mild traumatic brain injury for many years to come.
In awarding $115,000 for the plaintiffs non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Mr. Justice Goepel summarized the consequences of the injuries on the Plaintiff as follows:

[41]            Prior to the accident, Mr. Williamson was in good health.  He was physically active, and enjoyed activities such as fly fishing, scuba diving, sky diving, and competitive target shooting.  He was a former member of the Canadian national shooting team. 

[42]            After the accident, Mr. Williamson stopped skydiving and scuba diving.  While he still participates in target shooting, the enjoyment that he derives from that activity has decreased.  He explained that the noise from the rifle aggravates his headache, and the kick from the rifle aggravates his neck pain. 

[43]            Before the accident, Mr. Williamson was an active photographer.  He had taken a number of photography courses.  Since the accident, the enjoyment he derives from photography has decreased.  He has difficulty maintaining the static neck positions required to take quality photographs. 

[44]            Mr. Williamson testified that as a result of the accident and his headaches, he now seldom goes out in the evenings.  His irritability has obviously impacted on his family life.  Because of his headaches, he is unable to enjoy his young child as much as he should.

[45]            Mr. Williamson realizes that his injuries, particularly his difficulties with memory and concentration may eventually curtail his military career.  That possibility has caused him considerable anguish and diminished his enjoyment of life.

In addition to non-pecuniary damages, $150,000 was awarded for the Plaintiff’s diminished earning capacity.  Although he missed little time from work in the Canadian Armed Forces and in fact was promoted in the years after the car crash the court found that there was a possibility that the Plaintiff would not be able to continue in his current position or perhaps in the military  altogether as a result of his injuries.  Paragraphs 52-62 are worth reviewing for a discussion demonstrating how damages for future wage loss / diminished earning capacity can be made in an ICBC Injury Claim even where there is no wage loss from the time of the crash to the time of trial.

More on Pain and Suffering Awards for Plaintiff's with Pre-Existing Disabilities

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Whiplash Cases, Uncategorized.

Earlier this week I posted about pain and suffering awards in BC for Plaintiff’s with pre-existing severe injuries, today, further reasons for judgment were released by the BC Supreme Court, Vancouver Registry, dealing with this topic. In today’s case (Winkelmans v. Stoffels) the Plaintiff was injured in a rear end car crash in Richmond BC on January 29, 2000.  The Defendants admitted fault for the accident.  
Shortly after the accident the Plaintiff was diagnosed with Multiple Sclerosis.  The Plaintiff did not claim that her MS was caused by the car crash at trial.   The Plaintiff’s MS caused troubling symptoms including “hearing loss, vision problems, fatigue, vertigo, balance difficulties, headaches, problems with memory, speech coordination, weakness, dizziness and stiffness.”. 
The main focus of this trial was whether the Plaintiff had any ongoing symptoms from her car crash by the time of trial or whether her ongoing symptoms were related to other causes such as the MS.  The court found that the Plaintiff indeed was injured in the car crash and continued to suffer from injuries by the time of trial.  In valuing the Plaintiff’s pain and suffering at $60,000 Mr. Justice Curtis made the following comments about her MVA related injuries imposed on her symptoms of MS:

[32]            Having MS has made it difficult for Ms. Winkelmans to recover from her car accident injuries as is recorded in the medical reports.  There are times when she cannot exercise and stretch as she should because of her MS symptoms.  The defendant, through negligence, having injured someone who cannot recover as quickly or as fully as a normal person remains in law on the “thin skull” principle liable to pay compensation for the problems caused by the accident injury, even although they are greater because the plaintiff’s recovery is impaired by her health.  The consequences of the accident injuries to Ms. Winkelmans are, because of her MS, more severe than they would be to a person not burdened with her health issues.  On the other hand, the defendants are not liable to compensate her for what she would have experienced from her previous neck and back problems or for what her MS would have brought on without the intervention of the car accident.

[33]            In summary, I accept that Ms. Winkelmans’ neck and back, including her lumbar spine suffered injury caused by the January 2000 collision and that she suffers a degree of continuing headaches, neck pain and back pain to the present time because of her injuries.  While the extent to which her accident injuries has contributed to her overall condition has not prevented her from working or doing her normal activities, it has introduced continuing pain into her life which will continue in the future – which is particularly difficult for a person who already suffers from MS.  On this basis, I assess Ms. Winkelmans’ claim for general damages for pain and suffering and loss of the amenities of life at $60,000.

More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Wage Loss, ICBC Whiplash Cases. 54 Comments on More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Runghen v. Elkhalil) awarding a Plaintiff just over $147,000 in total damages as a result of injuries and damages sustained in a BC car crash.
The collision occurred in 2004 when the Plaintiff’s vehicle was rear-ended.  The issue of fault was admitted leaving only an assessment of damages at issue at trial.
In awarding $40,000 for pain and suffering (non-pecuniary damages) Madam Justice Fenlon made the following findings with respect to the Plaintiff’s injuries:
[16]            Based on the evidence of the experts, which is largely consistent, I find that Ms. Runghen suffered mild soft tissue injuries to her cervical and lumbar spine as a result of the accident; I further find that due to those injuries, she has headaches and chronic pain that has affected her ability to function both at home and at work.  I also find that Ms. Runghen’s pain and related incapacity are likely to markedly improve once an appropriate treatment plan is put in place.
Madam Justice Fenlon engaged in a thoughful discussion at paragraphs 17-34 of the judgement which is worth reviewing for anyone ingterested in seeing some of the factors courts take into consideration when valuing pain and suffering in ICBC soft tissue injury claims.
The balance of the judgement deals largely with claims for past wage loss and diminished earning capacity.   Awards were made under both of these heads of damages.  The court found that the Plaintiff’s ability to work was diminished as a result of chronic pain and that this would likely continue for at least some time after the trial.  In awarding $35,000 for diminished earning capacity the court engaged in the following analysis:

[50]            As noted earlier in these reasons, I accept that the chronic pain experienced by Ms. Runghen to date has been a limiting factor in her ability to take on longer hours at work.  I expect that limitation will continue to some extent over the next year, as she engages in a rehabilitation exercise program.  After that time, it is probable that she will be able to increase the amount of time she works to be more in keeping with what she would have been doing prior to the accident.  In coming to this conclusion, I recognize that Ms. Runghen had not established her career as a massage therapist and that we do not have a solid base line from which to work.

[51]            I am mindful that there is no certainty possible in terms of predicting what will occur in the future; there is a possibility, even with the correct treatment for her injuries, that Ms. Runghen may still experience some limitations.

[52]            Applying the considerations identified in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), I find that Ms. Runghen is likely to be somewhat less capable, overall, of earning income from all types of employment and that, in particular, she is likely to be less capable of earning incoming from her chosen field of massage therapy.  Ms. Runghen may have to consider retraining in another field or another area of specialization within massage therapy if she wishes to work full-time.

[53]            In my view, given the potential for marked improvement in Ms. Runghen’s condition that both Dr. Cameron and Dr. McGraw identified in their reports, and based on Ms. Runghen’s own experience with a similar but truncated rehabilitation program with Karp, it would not be appropriate to apply the precise mathematical calculation of future income loss used by Ms. Runghen.  Rather, this is an appropriate case to award a sum that takes into account the various contingencies and possibilities, without overcompensating Ms. Runghen by assuming the status quo and calculating a set wage shortfall over the next 36 year’s of her working life.  I set that sum at $25,000. 

[54]            I find that Ms. Runghen will need approximately six months to put in place and complete a four-month exercise rehabilitation program.  During that time, she will continue to work at her current level.  I therefore award damages of $10,000 to cover loss of income during this period.  

[55]            In summary, I award Ms. Runghen  a total of $35,000 for loss of future income and loss of earning capacity

 

BC Personal Injury Claims Round-Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 55 Comments on BC Personal Injury Claims Round-Up

On Friday the BC Supreme Court released reasons for judgement dealing with awards for pain and suffering in 3 separate motor vehicle accident cases.
In my continued efforts to create an easy to access data-base of ICBC related claims for pain and suffering here are the highlights of these cases:
In the first case (Driscoll v. Desharnais) the Plaintiff suffered soft tissue injuries to his neck, back and shoulder in a 2003 BC motor vehicle collision.  In justifying an award for non-pecuniary damages (pain and suffering) of $55,000 the court summarized the injuries and their effect on the Plaintiff’s life as follows:

[101]        The trial occurred about five years following the accident.  Mr. Driscoll continues to suffer pain, significant sleep disturbance, and restrictions on his activities.  He is stoic and is inclined to push through pain until it becomes intolerable.  He has a reduced capacity to work, and despite his preference for working alone, he cannot operate his business without hiring other workers.  He is no longer able to participate in some of the activities he enjoyed, such as motorcycle riding, full-contact ball hockey, golf, and rough-housing with his children.  

[102]        The evidence demonstrated on a balance of probabilities that these problems were caused by the accident.  Although Mr. Driscoll had received physiotherapy prior to the accident, the treatments were all at least 18 months prior to the accident, and were for short periods.  All the problems had resolved prior to the accident.  The injury he suffered on the toboggan appeared to be a brief flare-up of his back symptoms, rather than a new injury.

A highlight of this decision for me was the court’s discussion of credibility.  One of the tricks of the trade for ICBC defence lawyers in ICBC Soft Tissue Injury Claims is to challenge the credibility of the Plaintiff.   That appeared to be a tactic employed in this case and the Defendant asked the court to consider the following well-known principle often cited in ICBC Soft Tissue Injury Cases:

[6]                The case of Price v. Kostryba (1982), 70 B.C.L.R. 397 (S.C.), is often cited as a reminder of the approach the court must take to assessing injuries which depend on subjective reports of pain.  I quote portions of pages 397-399 of those reasons for judgment:

The assessment of damages in a moderate or moderately severe whiplash injury is always difficult because plaintiffs, as in this case, are usually genuine, decent people who honestly try to be as objective and as factual as they can. Unfortunately, every injured person has a different understanding of his own complaints and injuries, and it falls to judges to translate injuries to damages.

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at a fair and reasonable compensation. Previously decided cases are some help (but not much, because obviously every case is different). …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

Fortunately for the Plaintiff a positive finding was made as to his reliability and damages were assessed accordingly.

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The second case released on Friday (Eccleston v. Dresen) involved a 2002 collision which took place in Salmon Arm, BC.  The injuries included chronic soft tissue injuries of moderate severity and a chronic pain syndrome.  Both liability and quantum of damages (value of the ICBC Injury Claim) were at issue.   The Plaintiff was found 60% at fault for the collision.

In assessing the Plaintiff’s non-pecuniary damages at $108,000 Mr. Justice Barrow made the following findings:

[127]        I am satisfied that the plaintiff suffered a moderate soft tissue injury to her neck and upper back.  Further, I am satisfied that she developed and continues to suffer chronic pain as a result.  I am also satisfied that she is depressed and that the proximate cause of her depression is the pain she experiences.

[128]        I am not satisfied that her complaints of pain are motivated by any secondary gain; rather, I am satisfied that she has met the onus of establishing that, as Taylor J.A. in Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131, 33 B.C.A.C. 182, at para. 8 put it:

…her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

[129]        Further, I am satisfied that the plaintiff’s condition is likely permanent; although it is more likely than not that it will moderate if she follows the advice of Dr. O’Breasail.  He is of the view that with intensive psychotherapy for at least a year, followed by two further years of less intensive therapy coupled with a review of her medications and particularly anti-depressant medication, there is some hope that she will either experience less pain or be better able to cope with the pain she does experience, or both.

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The final motor vehicle accident case addressing pain and suffering released on Friday (Murphy v. Jagerhofer) involved a Plaintiff who was injured in a 2004 rear end collision in Chilliwack, BC.   The injuries included a moderate to severe whiplash injury with associated chronic pain, disturbed sleep and headaches.  In justifying a non-pecuniary damages award of $100,000 Mr. Justice Warren made the following factual findings after a summary trial pursuant to Rule 18-A:

[112]        The issue of causation in this case is determined by applying the factors in Athey.  Here the defendants argue that there were pre-existing conditions that would have affected the plaintiff in any event.  I disagree.  I find on the evidence of both Dr. Porter and Dr. Bishop that the plaintiff was asymptomatic of the complaints he now has which have arisen from the injuries he suffered in this accident.  Using the rather macabre terms found in other cases, this plaintiff had a “thin skull” rather than a “crumbling skull” and on my reading of those medical opinions I prefer, I find there was no “measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future. . . .” Athey, per Major, J. at para. 35. 

[113]        Accordingly, I find that the presenting complaints of the plaintiff were caused by the negligence of the defendant driver and I turn to address the issue of appropriate compensation.  In this, I am strongly influenced by the opinions of Drs. Porter and Longridge and the opinion of Mr. Koch.  The plaintiff suffered a moderate to severe whiplash type injury which had a significant physical and emotional effect upon him some of which have persisted to the day of trial and will continue into the future.  The back and neck pain caused him considerable pain and caused sleeplessness, headaches and general body pain for which he was prescribed pain medication.  Many of these symptoms continued well into 2005 despite his participation in a Work Hardening Programme in the fall of 2004.  I accept that he has tried every mode in an effort to alleviate his symptoms.  In his opinion, Dr. Bishop dismissed passive therapies, but I conclude it was understandable that the plaintiff would follow other professional advice and give these therapies every chance to help.  I say that with the exception of the later cortisone injections, which are painful and of very limited result, and also the later chiropractic attention.

[114]        Added to his back and neck pain, the plaintiff has experienced some hearing loss, tinnitus and episodes of dizziness.  These are frustrating and to some extent debilitating.  He also has jaw, or temporal mandibular joint arthralgia and myofascial pain.  He was given an oral appliance which he is to wear on a daily basis yet he continues to experience jaw stiffness and fatigue. 

[115]        It is understandable that these conditions have affected him emotionally.  The opinion of Mr. Koch corroborates the plaintiff’s evidence.  I accept the opinion of Mr. Koch that the plaintiff “downplays” the difficulties in his life and that the plaintiff has a phobia of motor vehicle travel, post-traumatic stress disorder and related repressive symptoms. 

I hope these case highlights continue to be a useful resource for my readers in helping learn about the value of non-pecuniary damages in ICBC Injury Claims.  As always, I welcome any feedback from all my visitors.