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$120,000 Non Pecuniary Assessment For Chronic Myofacial Pain Syndrome

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which developed into a chronic myofascial pain syndrome.
In today’s case (Kirkham v. Richardson) the Plaintiff was involved in a 2010 collision.  She was 26 years old at the time and was pursuing a PhD and competed as a professional triathlete.  She sustained soft tissue injuries which impacted her education and training.  Her symptoms lingered to the time of trial and were expected to continue.  The injuries were complicated by a subsequent bike collision although the Court was able to divide the injuries from the separate incidents. In assessing the collision related injuries at $120,000 Madam Justice Warren provided the following reasons:
[182]     In summary, and having taken into account all the evidence, I make the following findings:
·       Ms. Kirkham suffered soft tissue injuries to her neck, shoulders and upper back as a result of the car accident.
·       Those injuries have resulted in myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome, all of which continue to affect Ms. Kirkham.
·       Ms. Kirkham suffered a concussion and abrasions in the bike crash which are divisible injuries for which the defendant is not liable.
·       Ms. Kirkham did not exacerbate or aggravate her soft tissue injuries in the bike crash and the bike crash did not contribute to Ms. Kirkham’s myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.
·       Ms. Kirkham’s soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms. Kirkham’s left hip girdle pain, which is an indivisible injury.
·       Ms. Kirkham took a leave of absence that delayed the completion of her PhD studies by a year. The leave was required for Ms. Kirkham to focus on rehabilitation of the injuries caused by the car accident. The concussion did not contribute to Ms. Kirkham’s leave of absence from her PhD studies.
·       As a result of the concussion, Ms. Kirkham did not compete in any triathlons during the summer of 2011. The concussion and the soft tissue injuries both contributed to her decision not to compete in any triathlons over the rest of 2011.
…
[195]     Having regard to the case law cited and the Stapley factors, I assess Ms. Kirkham’s non-pecuniary damages at $130,000, but reduced by $10,000 to reflect the possibility that the deconditioning associated with the concussion would have caused her hip pain in any event.
 

$45,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases. 62 Comments on $45,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Soft Tissue Injuries

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries.
In yesterday’s case (Pichugina v. Matula) the Plaintiff was involved in a T-bone type collision in 2010.  The Defendant admitted fault.  The Plaintiff had pre-existing symptoms in her neck, shoulder and back.  The collision aggravated these and her increased symptoms continued to the time of trial and were expected to linger on for several more years.  In assessing non-pecuniary damages at $45,000 Mr. Justice Cohen provided the following reasons:
[56]         On the totality of the evidence before me, I find that, as a result of the accident, the plaintiff sustained aggravation to her already symptomatic neck, right shoulder, and low back and sustained aggravation to her pre-existing headaches.  In my opinion, there is no evidence to support a conclusion that the accident caused the minimal winging of the plaintiff’s right scapula.  Although the plaintiff returned to work full-time by the end of two months following the accident, and experienced much improvement in her condition by the spring of 2011, she cannot take advantage of a flexible work schedule, and, while she remains physically active, some activities are no longer comfortable for her.
[57]         According to Dr. Vorobeychik, the plaintiff’s symptoms have improved, but she still experiences migraine headaches and problems with her right shoulder, neck, and back when she is active or upon exertion.  The overall medical evidence, and that of the plaintiff, is that there has been gradual improvement in her condition post-accident, and she appears to be handling her headaches better.  According to Dr. Robinson, the plaintiff will probably continue to have gradual improvement over the next three to five years, but she remains at risk for persisting neck and right shoulder pain, which would act as an aggravator to her migraine predisposition.
[58]         Upon my consideration of the whole of the evidence, the parties’ submissions, and the authorities relied upon by them, I find that a fair and reasonable award to the plaintiff for general damages is $45,000.
 

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

Written by admin on . Posted in ICBC Headache Cases, ICBC Soft Tissue Injury Cases.

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.
 
 
 

$45,000 Non-Pecuniary Assessment for Lingering but Resolving Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Adding to this site’s archived case summaries addressing soft tissue injury damages, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a lingering whiplash injury.
In this week’s case (Kelly v. Kotz) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.  The Plaintiff suffered a whiplash type injury which caused chronic headaches.  Although there was improvement with time some symptoms still lingered at the time of trial.  In assessing non-pecuniary damages at $45,000 Madam Justice Hyslop provided the following reasons:
[100]     I do find that in the accident the plaintiff suffered neck and upper back injuries, and that headaches are a symptom of those injuries…
[105]     She stated that six months after the accident there were days that she felt normal, though there were times that the headaches got worse as to severity and duration and affected her level of concentration. These descriptions are consistent with her reporting to Sarah Robson and Carey Jones.
[106]     When Dr. Brownlee saw the plaintiff, she had normal range of motion and some pain with flexion, particularly with the extension of her neck. The plaintiff told Dr. Brownlee that her symptoms gradually improved, but never resolved themselves completely…
[122]     I conclude that the plaintiff’s symptoms have improved as she described to Dr. Brownlee and will continue to improve.
[123]     In assessing non-pecuniary damages, I considered the plaintiff’s special circumstances and the case law cited to me by both plaintiff and defendants.
[124]     I award $45,000.00 for non-pecuniary damages.
 

$50,000 Non-Pecuniary Assessment For Chronic Low Back Soft Tissue Injury

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

Reasons for judgement were released earlier this month by the BC Supreme Court,  New Westminster Registry, assessing damages for a chronic low back soft tissue injury.
In the recent case (Hatch v. Kumar) the Plaintiff was involved in a rear end collision in 2010.  She sustained soft tissue injuries to her low back and sacroiliac region.   These continued to pose problems by the time of trial and were expected to last into the future albeit with a chance of improvement. In assessing non-pecuniary damages at $50,000 Mr. Justice Savage provided the following reasons:
[20]         Ms. Hatch continues to have back pain.  She finds it particularly bothersome after physical exercise and towards the end of the work week.  She continues to undergo physiotherapy and take pain medication. She tries to keep active, but is unable to participate in the vigorous activities she used to enjoy.  Rather, she continues with yoga and core strengthening exercises and physical activities on a more limited basis. 
[21]         All of the medical experts agree there is a chance that Ms. Hatch may recover from her symptoms, and it is unlikely that she will get worse.  The experts all agree, however, that a full recovery is not certain, and the longer she continues to have symptoms the less likely it is that they will fully resolve. 
[22]         It is now more than three years since the Accident.  Ms. Hatch has reached a plateau in her recovery.  Both Ms. Hatch and Dr. Van Niekerk testified that her condition has not improved since September 2012.  This lack of improvement is one factor that the physicians agree makes it less likely that her injuries will completely resolve over time.  The fact that her injuries persist today is another factor that makes it less likely that they will completely resolve over time.  The evidence indicates that Ms. Hatch has followed the advice of her physicians at all times.  As such, there is no mitigation issue. 
[23]         In short, Ms. Hatch faces an unknown future with regard to her low back pain and sacroiliac soft tissue injury.  The pain is an ongoing accompaniment to both work and recreational activities, and also limits her ability to do household chores.  The limitation on her recreational activities is particularly significant given her previous history of athletic pursuits. ..
[41]          As I discussed previously, the award of non-pecuniary damages will be assessed based on the unique facts and circumstances of each particular case. However, while each case is different in some respects, I find the authorities cited by Ms. Hatch closer to the facts and circumstances of this case than those comparators cited by Mr. Kumar.
[42]         Taking all of the evidence into account, I award Ms. Hatch $50,000 in non-pecuniary damages. 

$30,000 Non-Pecuniary Assessment for Long Lasting Soft Tissue Injury With "Relatively Minimal" Impact

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for long lasting soft tissue injuries which had minimal impact on the Plaintiff’s daily function.
In this week’s case (Nair v. Cindric) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.   The Plaintiff was 14 at the time and sustained a soft tissue injury to her upper back.  Her symptoms carried on to the time of trial and were expected to continue indefinitely.  Despite this the symptoms had “relatively little” impact on the Plaintiff’s daily function.  In assessing non-pecuniary damages at $30,000 Mr. Justice Skolrood provided the following reasons:
[54]         I find that Ms. Nair suffered a mild to moderate soft tissue injury to her upper back. The evidence establishes that she has suffered pain in her upper back since the date of the accident, which increases with physical activity. Her condition has improved over time although she still experiences pain and stiffness, again particularly when engaged in physical activity. Ms. Nair has also experienced lower back pain, although both the intensity and the frequency of the pain is less than with respect to her upper back pain.
[55]         I also find that her back condition has had a moderate impact on Ms. Nair’s lifestyle and recreational pursuits. The evidence established that Ms. Nair did not miss any school as a result of the accident and that post-accident she continued to participate fully in her primary recreational activities of volleyball and Indian classical dance. Indeed, there was no evidence of a single volleyball practice or game, or any dance rehearsal or performance, missed because of her injuries. Moreover, it is apparent that she continued to excel at these activities as reflected in the fact that she was named most valuable player of her school volleyball team in 2010 and 2012 and that, as confirmed by her dance teacher, she performed extremely well at her graduation dance recital in September 2012.
[56]         With respect to volleyball, it is worth noting that the position of libero normally played by Ms. Nair is physically demanding in that it requires the player to position herself low to the ground, to move laterally and often to dive to retrieve balls spiked by the opposing team.
[57]          However, I accept her evidence that participation in these activities led to an increase in back pain due to the injury suffered in the accident. I also accept that Ms. Nair was required to take steps to alleviate the pain, such as regular stretching and use of over the counter medications like Advil.
[58]         It is apparent from the evidence that Ms. Nair’s personality is such that she “soldiered on” despite the pain because of her passion for her pursuits, in particular, volleyball and dance.
[59]         Going forward, Ms. Nair is likely to experience periodic flare-ups of her upper back pain, particularly when engaged in strenuous physical activities. The expert medical evidence suggests that it is unlikely that her upper back pain will resolve entirely…
[79]         In assessing Ms. Nair’s claim for non-pecuniary damages, the Court must balance two potentially competing factors. On the one hand, as noted in Hejslet, she should not be penalized for her stoicism in continuing to pursue the activities that she is passionate about, albeit with some pain. On the other hand, an award of non-pecuniary damages is intended in part to compensate an injured party for impairment of physical abilities and loss of lifestyle. Here, the evidence is clear that while she continues to experience some pain  four years after the accident, the impact on Ms. Nair’s lifestyle has been relatively minimal, as reflected in the fact that she not only continued in her activities uninterrupted but excelled at them.
[80]         Taking all of the relevant circumstances into account, I find that a fair and reasonable award under this head is $30,000.

$75,000 Non-Pecuniary Asssessment For Onset of Symptoms in Pre-Existing Degenerative Changes

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s archives addressing damages for collisions triggering symptoms in pre-existing degenerative changes, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with such an injury.
In last week’s case (Savoie v. Williams) the Plaintiff was injured in a collision when the Defendant ran a stop sign.  Although fault was not admitted the Defendant was found fully at fault.  The 53 year old plaintiff, who was fit and active, suffered soft tissue injuries.  She also had degenerative changes in her neck which pre-existed the collision.  Following the crash these became symptomatic and the symptoms were expected to linger into the future.  In assessing non-pecuniary damages at$75,000 Mr. Justice Johnston provided the following reasons:
[34]         Dr. Maloon agreed that there was no indication that the plaintiff had any complaints arising from these areas of her body prior to the accident, and described as a “million dollar question” the reason some people with similar wear and tear will have pain or other symptoms from the wear and tear, whereas others will not.
[35]         Dr. Maloon also said that once there are wear and tear changes to the neck, nothing can be done to change the natural course of that condition; it is a mechanical problem and treatment is largely symptomatic.
[36]         At page 6 of his written opinion Dr. Maloon says:
It is possible that the soft tissue strain that she sustained initiated the symptoms of degenerative changes that have persisted to date.
[37]         I conclude that Ms. Savoie’s initial soft tissue injuries, which I consider moderate to severe, have plagued her from the time of the accident until the date of trial. I also find that these injuries precipitated symptoms from the pre-existing (but asymptomatic) degenerative state of her neck and upper back, that the combination of the injury and the degeneration has created more discomfort than either would alone, and that to the extent that the continuing symptoms come from the degenerative neck condition, it is unlikely they will ever completely go away.
[38]         I have reviewed the authorities tendered by each counsel and consider that the facts of this case more nearly approximate the facts in Ortega v. Pena, 2012 BCSC 1884, and Thomas v. Wormsley, 2009 BCSC 919.
[39]         In personal injury litigation there never are identical plaintiffs, circumstances or injuries and consequently authorities are, at the best, guidance on the question of damages.
[40]         On the evidence before me, I assess Ms. Savoie’s non-pecuniary damages at $75,000.

$45,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s archived case summaries addressing soft tissue injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering soft tissue injuries.
In last week’s case (Smith v. Both) the Plaintiff was injured in a “not particularly severe” collision in 2009.  She sustained soft tissue injuries which remained symptomatic at the time of trial and were expected to have some lingering consequences.  In assessing non-pecuniary damages at $45,000 Madam Justice Russell provided the following reasons:
[99]         It is clear from the evidence that the impact in the Accident was not particularly severe. In coming to this conclusion, I have considered the fact that the damage to the vehicles was negligible, neither vehicles’ airbags deployed, the defendant’s seatbelt did not lock, and the plaintiff’s car did not move forward far enough to hit the car in front of it.
[100]     However, on the basis of the evidence before me I find that the plaintiff has demonstrated that the pain in her neck, shoulders, and lower back, as well as headaches, were caused by the Accident. These symptoms emerged after the Accident, and according to both the plaintiff’s and the defendant’s medical experts, these pain symptoms are consistent with soft tissue injuries…
104]     I find it is likely she will continue to have some pain resulting from the soft tissue injuries she suffered in the Accident.
[105]     However, I am not satisfied the plaintiff has demonstrated that this pain will not improve or that the residual pain will be severe…
[131]     In the circumstances of this case, considering Ms. Smith’s age, pre-Accident activity level, injuries, severity and duration of pain, interference with lifestyle, and impairment of life and of social relationships, I award the plaintiff $45,000 in non-pecuniary damages.

Assessing Damages for an "Old School" Plaintiff with Soft Tissue Injuries

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries sustained by a Plaintiff who sought very little medical treatment.
In this week’s case (Baker v. Clark) the Plaintiff was injured in a collision for which the Defendant was at fault.  He suffered soft tissue injuries and was assessed by his family physician.  By the time of trial the Plaintiff still had symptoms but had not seen his physician for over two years.  The Court accepted that this was due to the plaintiff’s stoic ‘old school’ attitude.  In assessing non-pecuniary damages at $30,000 Mr. Justice Crawford provided the following reasons:
[59]         I am satisfied Mr. Baker sustained soft-tissue injuries to his neck and upper-back. He attended physiotherapy, but no report was tendered from the physiotherapist. That treatment evidently was for his neck and upper-back. Mr. Baker made no complaint of headaches. He was off work for three months and returned in late July 2011. After experiencing difficulty with both his neck and his low-back that became evident with the hours of sitting required of a taxi driver, he purchased an ObusForme to help his seated posture. He found that getting in and out of the cab regularly when he would stand-up and stretch eased his neck and back pain.
[60]         Dr. McKenzie’s independent assessment confirmed the neck injury though the doctor was somewhat guarded in his ongoing opinion. However, regarding Mr. Baker’s low-back pain, the doctor concluded the pain was due to de-conditioning and not because of the car accident. I am driven to an opposite conclusion for it seems equally sensible, if not more sensible, that Mr. Baker’s de-conditioning was because of the car accident…
[64]         A fair conclusion is that Mr. Baker is a “old-school” man: he is robustly built and of few words; he does not complain, and indeed, he rarely saw a doctor before the accident and then only to get his health check as the taxi company requires.
[65]         He also has not seen his family doctor about his injuries for some two years. Dr. Jones, his family doctor, wrote his letter of opinion in December 2011, some eight months after the accident. Both Dr. Jones and Dr. McKenzie were guarded about the long-term prognosis for complete recovery of Mr. Baker’s soft-tissue injuries. I conclude they were guarded due to Mr. Baker’s age and the likelihood that patients in their sixties are not going to recover from soft-tissue injuries as they might have in their earlier decades…
[67]         Counsel provided a number of cases, and of course, none are precisely alike. But I do find the defendant’s cases more on point or more similar to Mr. Baker’s situation. On the other hand, Mr. Baker’s leisure activities in his retirement are being substantially affected. I accordingly award him $30,000 general damages.

$30,000 Non-Pecuniary Assessment For Two Year Soft Tissue Injury

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for a soft tissue injury of two year’s duration.
In this week’s case (Visona v. Stewart) the Plaintiff was injured in a 2009 collision.  The Defendant admitted fault.  The Court accepted that the collision, despite being relatively minor, caused soft tissue injuries which lasted for up to two years.  The Plaintiff’s most serious concern was chronic tailbone pain although the Court rejected the submission that this was caused by the collision.  In assessing non-pecuniary damages at $30,000 for the soft tissue injuries Mr. Justice Jenkins provided the following reasons:
[32]         Based on the statements above and Ms. Visona’s evidence at trial, her suffering and the effects of the soft tissue injuries likely lasted no longer than two years from the date of the accident. In making this determination, I am not taking into account the “tailbone” injury which Ms. Visona claims was caused by the November 23, 2009 accident. The evidence supports a finding that Ms. Visona continued suffering from her tailbone injury long after the soft-tissue injuries appear to have healed. I am considering the tailbone injury separately because on the evidence of the nature and severity of the accident, all of the medical practitioners’ evidence and Ms. Visona’s evidence, I find it unlikely that her tailbone injury was caused by the accident.,,
[38]         As a result of the November 23, 2009 accident, Ms. Visona suffered soft-tissue injuries to her neck, back and left hip, and a bruise to the left side of her knee. Based on my finding above that Ms. Visona suffered from these injuries for a period of at most two years, the authorities quoted by the defence are more applicable in assessing damages for pain and suffering. In contrast, the submissions from counsel for Ms. Visona took into account ongoing low back pain almost four years after the accident, and emotional considerations such as the breakup of Ms. Visona’s marriage and difficulties in her relationship with her daughter, neither of which can be related to the November 23, 2009 accident.
[39]         Awards of damages for pain and suffering from other cases act as a guide but are not determinative as to appropriate compensation for the injuries. I agree that each case must be considered on its own merits, and consideration of an individual’s situation makes the assessment of damages a very subjective task. The decisions referred to which are of some assistance are Mr. Justice Verhoeven’s decision in Carter v. Zhan,2012 BCSC 595, and Madam Justice Maisonville’s decision in Vela v. MacKenzie, 2012 BCSC 438. In those cases, the learned judges awarded non-pecuniary damages of $35,000 and $27,000, respectively.
[40]         I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary damages of $30,000.