$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic shoulder injury sustained in a vehicle collision.
In today’s case (Mir Tabatabaei v. Kular) the  Plaintiff was involved in a 2010 collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a chronic shoulder injury which continued to be symptomatic at the time of trial and was expected to pose ongoing difficulties.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[66]         It is undisputed that the accident caused the plaintiff’s injuries. While pain is subjective I do not doubt the plaintiff’s complaints of pain in his neck which disrupts his sleep and pain in his injured right shoulder which interferes with physical activity including his work as a carpet cleaner. The injuries have affected the plaintiff’s ability to work as much as he did before the accident. He works more slowly than before, cannot complete as many jobs and cannot work as many hours in a day due to the pain in his shoulder. I am not persuaded the plaintiff’s drug use had any appreciable impact on his ability to earn a living. The comment recorded by Dr. Tsung about opium disrupting the plaintiff’s life is not tied to anything specific, such as his employment, and I am not convinced on a balance of probabilities the plaintiff complained that opium use was affecting his job.

[67]         Dr. Tarazi’s opinion provides a deeper examination of the benefits and risks of surgery in the plaintiff’s particular case than does Dr. Goel’s opinion. I prefer to rely on Dr. Tarazi’s report concerning the plaintiff’s shoulder injury and his opinion that surgery is not indicated due to the real possibility of a negative outcome. Based on Dr. Tarazi’s opinion I find the plaintiff’s decision not to have surgery is a reasonable one…

[71]         The plaintiff is 53 years of age. He experiences pain in his right shoulder when he exerts himself. He experiences pain in his neck at night which disrupts his sleep. There is no cure for either of these conditions. His shoulder may get worse and require him to undergo surgery which in turn carries risks. Notwithstanding the pain and discomfort, the plaintiff has continued to work to the extent that he is able and to participate in his previous leisure activities, such as biking and swimming, albeit it to a lesser extent than before the accident. I agree with counsel for the plaintiff that Wong is very similar in terms of the type of injury involved; however, the plaintiff in that case had an additional injury to her knee. Nonetheless, it is a helpful benchmark. In all the circumstances I find an award of $75,000 for non-pecuniary damages is appropriate.

$40,000 Non-Pecuniary Assessment For Chronic Neck and Shoulder Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and plateaued soft tissue injuries.
In today’s case (Mothe v. Silva) the Plaintiff was rear-ended by a tractor-trailer operated by the Defendant.  Fault was admitted.  The Plaintiff suffered soft tissue injuries to his neck and shoulder and his symptoms persisted to the time of trial and were expected to continue.  The Plaintiff suffered other symptoms which cased some hardship in his life but the court found these were unrelated to the collision.  In assessing non-pecuniary damages at $40,000 Madam Justice Ross provided the following reasons:

[106]     I agree with the submission of the defendants that the functional limitations described in Mr. Shew’s analysis are either in whole or in large part the consequence of the chronic left wrist problems stemming from the Workplace Injury or the consequence of the C7 radiculopathy. I have found that the motor vehicle accident did not cause or contribute to this condition. However, Mr. Mothe does suffer neck and shoulder pain and headaches as a consequence of the motor vehicle accident. With respect to these injuries, his recovery has plateaued and the condition is chronic. These injuries have not, with the modest exception discussed below, prevented Mr. Mothe from working but he does so in pain. These injuries have contributed to fatigue and a discouraged, pessimistic outlook. They have reduced his enjoyment of recreational activities and his family life.

[107]     In all of the circumstances, I award $40,000 for non-pecuniary loss.

$110,000 Non-Pecunairy Assessment For Chronic Rotator Cuff Injury

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic rotator cuff injury.
In today’s case (Pistruga v. Garcia) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a rotator cuff injury which underwent arthroscopic surgery which did little to improve the plaintiff’s chronic symptoms.  In addition to this the Plaintiff suffered from a major depressive disorder attributed to the consequences of this crash.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyeat provided the following reasons:

[100]     Mr. Pistruga is now 50.  I find that he has suffered and continues to suffer both physically and emotionally as a result of the negligence of Mr. Garcia.  I am also satisfied that his pain and suffering has resulted in an impairment of his family life – a restriction of his household duties and a deterioration of his relationship with his wife and son.  I find that Mr. Pistruga suffered severe pain for about three months after the First Accident and for about four months after the shoulder surgery.  Mr. Pistruga has had and continues to have pain in his shoulder.  As a result of the First Accident and the operation that was necessary as a result of the injuries suffered in the First Accident, he continues to suffer and I find that he will continue to suffer emotionally from the injuries caused by the First Accident and that his symptoms can only be partially lessened by prescription and non-prescription medicine.  While medication appears to have eased his mood swings, I find that he remains suspicious and moody from time to time as well as being subject to panic attacks.

[101]     As a result of the First Accident and the necessary operation, Mr. Pistruga has seen an impairment of his recreational activities as well.  Regarding his physical situation, I accept the opinion of Dr. Vorobeychik that the prognosis is “guarded”.  Regarding the emotional health of Mr. Pistruga, I accept the opinion of Dr. Levin that the prognosis for full recovery relating to his chronic major depression disorder “remains guarded and he most likely will require ongoing maintenance psychopharmacological treatment”.

[102]     In the circumstances, I am satisfied that non-pecuniary damages of $110,000 should be awarded.

$100,000 Non-Pecuniary Assessment for Fractured Shoulder and Wrist

Adding to this site’s archived cases addressing non-pecuniary damages for wrist and shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for orthopaedic injuries to these areas.
In today’s case (Azam v. Bilaya) the Plaintiff was involved in two motorcycle collisions.  Fault was admitted in both.  In the first collision the Plaintiff suffered a broken shoulder and various soft tissue injuries.  These were aggravated in the second crash which also caused a broken wrist.  In assessing non-pecuniary damages at $100,000 then modestly reducing these to account for pre-existing conditions Madam Justice Gerow provided the following reasons:
110]     It is clear that Ms. Azam was injured in both motor vehicle accidents. In the first accident, she suffered a broken shoulder and a neck and back injury. In the second accident, she suffered a broken wrist, injury to her knees and an exacerbation of her pre-existing spine condition.
[111]     I accept she does have chronic pain in her back which is exacerbated by activity; however, I do not accept Ms. Azam’s evidence regarding the impact of her injuries. I did not find Ms. Azam a particularly credible witness, and there is evidence that she is able to function at a higher level than she testified to…
[126]     Having considered the extent of the injuries, the fact that she is still having chronic pain after the accident which flares up from time to time, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $100,000, if the accidents were the only cause of Ms. Azam’s ongoing symptoms.
[127]     However, Ms. Azam must be put back in the position she would have been in if the two motor vehicle accidents had not occurred. The evidence establishes that Ms. Azam suffered from a pre-existing symptomatic spine condition which had caused her periodic back pain in the 10 years prior to the first accident. Although it was not symptomatic right before the first accident, is reasonable to infer Ms. Azam would likely continue to suffer from periodic back pain, regardless of the accidents. Having taken that into consideration, I am of the view that the appropriate award for non-pecuniary damages is $85,000.
 

$55,000 Non-Pecuniary Assessment for Chronic Bursitis

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and bursitis following a motor vehicle collision.
In today’s case (MacDonald v. Kemp) the Plaintiff was involved in a serious highway collision in 2010.  Fault was admitted.  She was 25 at the time and suffered a variety of injuries to her neck and shoulder which were not expected to fully heal.  In assessing non-pecuniary damages at $55,000 Mr. Justice Baird provided the following reasons:
[3]             As a result of the accident, the plaintiff suffered a number of soft tissue injuries. To this day she continues to experience pain in her lower back, neck and shoulders, primarily the left shoulder. Following the accident and as a result of her injuries she also developed bursitis in her left shoulder. She experiences a consistent dull pain in these locations throughout the day and finds it is aggravated and flares up following strenuous physical activity, thereby requiring that she take non-prescription pain medication. She has suffered occasionally from headaches and tingling in her arms, and sometimes experiences anxiety when she is in a motor vehicle on a busy highway. She had no pre-existing injuries and enjoyed good health before the accident.
[4]             The plaintiff has taken massage, physiotherapy and acupuncture treatments in an effort to rehabilitate these injuries. These passive interventions have afforded her a measure of relief. She also takes Advil to manage her pain and exercises in a home gym to the increase her strength and fitness. The plaintiff’s consulting orthopedic surgeon, Dr. Markland, recommends that these treatments continue.
[5]             Dr. Markland also recommended that the plaintiff avoid “forceful activities” at or above shoulder level, but observed that she “is fortunate that her work is not physically demanding, and that she finds her workstation well adapted. She is still able to pursue many of her pre-accident activities, although at a lower level than before.” While acknowledging that there is still a chance that the plaintiff’s condition may improve, Dr. Markland indicated that, almost four years after the accident, the likelihood is that her back, neck and shoulder pain and weakness are here to stay…
[22]         In my view, the appropriate award is somewhere in the range delineated by these two cases. I intend to emphasize the upper end of that range, primarily because, as previously mentioned, the plaintiff has been compromised in her physical health during the years of her life when she should be enjoying peak strength and functionality. I award $55,000 under this heading.
 

$90,000 Non Pecuniary Assessment for Suprascapular Nerve Injury

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a suprascapular nerve injury caused by a collision.

In this week’s case (Donovan v. Parker) the Plaintiff was involved in a 2009 crash.  The Defendant admitted fault.  The collision caused a nerve injury in the Plaintiff’s shoulder which resulted “in permanent damage to the infraspinatus and supraspinatus muscles of his left rotator cuff“.   In assessing non-pecuniary damages at $90,000 Mr. Justice Baird provided the following reasons:
[40]         The plaintiff is a 39 year old man who has been reduced in his physical abilities because of his injuries. His previous activities such as skiing, camping, hiking, diving, swimming, rock-climbing and water-skiing have been much circumscribed. He has been negatively affected in his ability to engage in physical activities with his children, and he has become less useful around the home that he shares with his wife and family. His mood has been affected by persistent pain. He has been noted to be short-tempered with his wife, children, co-workers and friends. The medical evidence seems clearly to establish that his injuries are permanent and that he will have to be diligent in pursuing a course of exercise and physiotherapy to maintain his present functioning.
[41]         Of the cases relied on by the defendant under this heading of damages I find Langley v. Hepner, 2011 BCSC 179, Jurczak v. Mauro, 2013 BCSC 658, Durand v. Bolt, 2007 BCSC 480 and Cimino v. Kwit,2009 BCSC 912 to be roughly analogous to the present case. The plaintiff relied on Stapley v. Hejslet, 2006 BCCA 34, Power v. White, 2010 BCSC 1084, Dycke v. Nanaimo Paving and Seal Coating Ltd. and Foster, 2007 BCSC 455, Morlan v. Barrett, 2012 BCCA 66, all of which could legitimately be argued to be analogues with the case at bar.
[42]         Based on these authorities, I conclude that an appropriate range for non-pecuniary damages in this case is between $55,000.00 and $140,000.00. Relying especially on Cimino and Stapley, which I consider to be most similar to the present case, I think a fair, just and reasonable award would be $90,000.00.
 

$95,000 Non-Pecuniary Assessment for Meniscal and Labral Tear

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee and shoulder injury.
In today’s case (Hart v. Hansma) the Plaintiff was involved in two collisions.  The Defendants admitted fault for both.  The Plaintiff suffered a variety of injuries including a torn meniscus, a labral tear and a variety of soft tissue injuries.  These continued to post problems at the time of trial with a poor prognosis.
In assessing non-pecuniary damages at $95,000 Mr. Justice Verhoeven provided the following reasons:
[54]         I find that the most significant injuries suffered by the plaintiff in the accidents are as follows:
1.     soft tissue injuries to his neck, particularly the right side, resulting in chronic neck pain;

  1. chronic headaches, associated with the neck pain;

3.     right shoulder injury, including a labral tear and tendonitis with a partial rotator cuff tear; and
4.     left knee injury, including a meniscus tear.
The foregoing injuries continue to cause significant ongoing pain and disability currently.
[55]         I find that the plaintiff also suffered from the following, less serious injuries sustained in the accidents:
1.     right upper limp numbness and pain;
2.     low back injury, and associated pain (that is not presently bothering him) in the right hip and buttock area;
3.     right knee pain (although it is now substantially resolved); and
4.     left hip pain (although it is now substantially resolved)….
[65]         The prognosis for full recovery is negative.  It is unlikely that his neck injury will ever fully recover.  There is a risk that his neck condition will deteriorate to the point where cervical discectomy surgery will be required.  The headaches he suffers from are related to his neck injury.  The plaintiff finds that treatment such as acupuncture, physiotherapy and the prolotherapy provide short term relief for his neck pain and headaches.  He takes a variety of medications in order to allow him to cope.  The planned knee surgery may provide some benefit for his left knee pain, but may have long term negative consequences, such as the risk of osteoarthritis. His shoulder condition is also chronic.  The plaintiff has the choice of enduring the pain and limitation of function in his shoulder, or undergoing surgery which may offer some benefit…
]         Taking into account the factors in Gillam as they apply to Mr. Hart’s circumstances, and the above awards in Prince-Wright, Hanson, Steward, and the cases cited by the defendants, adjusting for inflation, I find that an award of $95,000 is appropriate in this case.
 

$120,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury


Adding to this site’s database of cases dealing with ICBC shoulder injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such an injury.
In this week’s case (Hanson v. Yu) the Plaintiff was involved in a 2010 intersection collision which the Defendant was found 100% responsible for.  The Plaintiff was 43 years old and worked as a contract sales representative.  The collision caused a chronic rotator cuff injury which required two surgeries at the time of trial and was expected to have long term and deteriorating function in the future.  In assessing non-pecuniary damages at $120,000 Mr. Justice G.P. Weatherill provided the following reasons:
[4]             The plaintiff’s neck, upper back and headache symptoms settled in approximately four months. The most significant and far more serious injury was to his right shoulder, his dominant arm.
[5]             The plaintiff underwent two surgeries to correct the shoulder injury. Neither surgery was effective. He also had approximately six cortisone injections that provided some temporary relief, and he underwent nearly two years of physiotherapy treatments.
[6]             He has permanent pain and restricted function in his right shoulder. His ability to do physical tasks at work and at home is limited, and he relies on prescription pain medication to manage…
[170]     In this case, the plaintiff has a permanent and progressively deteriorating injury to the shoulder of his dominant arm. He is likely to face surgeries in the future that will have an uncertain outcome. Has chronic pain and is managing to function through the use of pain medication that he is now addicted to. Having considered the cases, counsel have referred to, the evidence , the permanent nature of the plaintiff right shoulder injury and the possibility that it will deteriorate in the future and require shoulder replacement and considering the principles that must be considered in awarding of general damages, I award $120,000 under this head.

$60,000 Non-Pecuniary Assessment for Chronic Shoulder Injury With Favourable Prognosis

Adding to this site’s database of cases dealing with ICBC shoulder injury cases, reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, addressing such an injury.
In this week’s case (Proctor-McLeod v. Clarke) the Plaintiff was injured in a 2008 rear end collision.  The 51 year old plaintiff suffered a variety of soft tissue injury including a chronic shoulder injury which continued to pose problems at the time of trial.  Despite the chronic nature of her symptoms the ultimate prognosis was a favourable recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Armstrong provided the following reasons:
[67]         The onset of the plaintiff’s shoulder symptoms was brought on by the defendant’s negligence. The medical opinions suggest that these symptoms may have never appeared if the plaintiff was not injured in the accident. Dr. Hawkins did not explain to my satisfaction why he believed that the shoulder pain would have become symptomatic if the plaintiff had not been injured. In my view, the accident was part of the cause of the plaintiff’s ongoing complaints. Common sense dictates that there is a causal connection due to the uninterrupted continuation of these symptoms, albeit on an intermittent basis.
[68]         I accept Dr. Hawkins’ opinion that further treatments might result in a resolution of her shoulder symptoms and that her soft tissues have improved significantly. The plaintiff has been suffering from the after effects of the calcium deposits and friction in the coracoacromial arch in her shoulder. The plaintiff’s continued pain from flare ups would not have happened but for the accident. Although she made a good recovery from her other injuries, there is persisting pain developing intermittently in her neck and radiating to her left arm. This causes her pain levels to rise from a daily level of three out ten to six or seven out of ten. These estimates are of limited use; however they do give a subjective measure of the plaintiff’s perception of her condition during flare ups of symptoms.
[69]         I conclude that the plaintiff’s symptoms will likely resolve over time….
[93]         … I have assessed the plaintiff’s loss at $60,000 for non-pecuniary damages.

Defense Expert Witness Receives Judicial Drubbing

It seems there has been a lot of judicial scrutiny as of late of expert witnesses crossing the line into client advocacy.   Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, providing the latest example of this.
In last week’s case (Thibeault v. MacGregor) the Plaintiff was injured in a 2010 collision.  It was a so-called ‘low velocity impact’ but the Court rejected this defence and found the Plaintiff did sustain a moderate whiplash injury.  Non-pecuniary damage were assessed at $35,000.  In the course of the lawsuit the Defendant arranged for an independent medical exam of the Plaintiff.  This physician provided opinion evidence which the Court largely rejected.  In doing so Mr. Justice Weatherill provided the following criticism:
[95]         Counsel provided detailed written submissions on the issue of the Vondette Report’s admissibility.  I agree generally with the submissions of plaintiff’s counsel.  Dr. Vondette’s report is prolix in the extreme.  Dr. Vondette’s review of the plaintiff’s background was beyond thorough and comprehensive – it reported the minutia of the plaintiff’s social, family, psychological and medical history.  He opines on matters that have no relevance to the plaintiff’s claim in this proceeding: He overreaches into the areas reserved for the trier of fact.  He makes remarks that go solely to the plaintiff’s credibility.  His report in many places is argument in the guise of opinion.  Much of the report purports to be opinion when what is written is not an opinion at all but rather a regurgitation of the plaintiff’s complaints. ..
97]         After hearing counsel’s submissions, I concluded that Dr. Vondette was probably an expert whose opinions, properly articulated, could be of benefit to the Court.  Although I found the vast majority of the Vondette Report to be inadmissible, I decided that it was in the interest of justice to grant leave allowing Dr. Vondette, with counsel’s assistance, to produce a summary of those portions of the Vondette Report that are properly admissible.
[98]         Dr. Vondette did so.  His summary (“Summary”) is two pages in length and captures succinctly and helpfully the opinions he was attempting to express in his report.  The Summary, together with counsel’s letter of instruction and appendices “A” and “E” from the Vondette Report were collectively marked as Exhibit 7.
[99]         Unfortunately, Dr. Vondette’s oral testimony was not as helpful as was the Summary.  He returned to the prolix method of communicating that he suffered from when writing his report.  He sought to justify this communication method on the basis that “I am a competent and thorough physician” and that any review of the plaintiff’s circumstances that was less than comprehensive and itemized is “rubbish”.
[100]     Dr. Vondette pontificated throughout his testimony regarding the virtues of his specialty and his experience within it.  In addition to the field of physiatry, he apparently views himself as having bountiful knowledge in other specialties in which he has no formal training, including psychiatry, psychology gynecology, physiotherapy, family medicine, social work and occupational therapy.  He testified that his expertise is such that he tells physiotherapists “exactly what I want done”…
[103]     Dr. Vondette was argumentative and condescending throughout his cross-examination.  Virtually all of his answers were lengthy monologues.  He was critical of Dr. MacKean’s March 5, 2012 report because it was only two pages in length.  He was critical of her December 5, 2012 report because, in forming her opinion, she reviewed and relied upon only her March 5, 2012 report and Dr. Salmaniw’s two July 2012 reports. 
[104]     Dr. Vondette refused to agree that Dr. Salmaniw, as the plaintiff’s family doctor for more than 20 years, knew more about the plaintiff and what was best medically for her than he did after a three hour consultation.  In Dr. Vondette’s words: “I think I can reasonably size up what’s going on here”.
[105]     Finally, Dr. Vondette described Mr. Harvie’s physiotherapy methods as “strange off-shore theories followed by a bunch of over-excited disciples”.  In his view, the plaintiff needed to be taken out of the hands of Mr. Harvie and sent to a physiotherapist who is more orthodox and who performs scientifically validated forms of treatment.
[106]     Needless to say, the approach to the role of an expert witness in the context of court proceedings that Dr. Vondette followed is unhelpful, counterproductive and is to be discouraged.  It is not within the purview of an expert witness to determine facts or issues of credibility and reliability: Brough v. Richmond, 2003 BCSC 512 at paras. 14 – 17.  Unfortunately, Dr. Vondette allowed his subjective views of the plaintiff formed from his review of her medical and personal history to overwhelm whatever impartiality he may initially have had.  I have been unable to take meaningful guidance from his opinions and testimony.  To the extent that his opinions conflict with those of Drs. Salmaniw, MacKean and Reeves, I accept the opinions of the latter experts and reject those of Dr. Vondette.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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

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