ICBC Thoracic Outlet Syndrome Cases

$110,000 Non-Pecuniary Assessment For Thoracic Outlet Syndrome and Chronic Pain

Written by ERIK MAGRAKEN on January 8, 2020. Posted in ICBC Thoracic Outlet Syndrome Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in multiple vehicle collisions.

In today’s case (Winick v. Goddard) the Plaintiff was involved in 3 collisions. The Defendants admitted fault for all. The collisions resulted in chronic soft tissue injuries and thoracic outlet syndrome. Her symptoms were found to be likely permanent, partly disabling and not to improve significantly in the future. In assessing non-pecuniary damages at $110,000 Mr. Justice Branch provided the following reasons:

ICBC Expert Opinion “Of Little To No Assistance To the Court”

Written by ERIK MAGRAKEN on November 4, 2019. Posted in ICBC Thoracic Outlet Syndrome Cases.

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, finding that an ICBC hired expert witness’ opinion was “of little to no assistance to the Court“.

In today’s case (Tench v. Van Bugnum) the Plaintiff was injured in two collisions that the Defendants admitted fault for. The Plaintiff presented evidence that the collisions resulted in chronic Thoracic Outlet Syndrome (“TOS”) resulting in significant impairment. The Defendant’s insurer, ICBC, hired a doctor who did not examine the Plaintiff and provided an opinion rejecting the diagnosis. In dismissing this opinion as being of ‘little to no assistance‘ Madam Justice Fleming provided the following reasons:

$170,000 Non-Pecuniary Assessment for Hip Injury, PTSD, TOS and Chronic Pain

Written by admin on March 4, 2019. Posted in ICBC Chronic Pain Cases, ICBC Hip Injury Cases, ICBC PTSD Cases, ICBC Thoracic Outlet Syndrome Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a plaintiff who suffered a host of injuries in a vehicle collision.
In today’s case (Firman v. Asadi) the Plaintiff was involved in a 2013 collision. The Defendant denied fault but was found liable at trial. The collision resulted in multiple injuries including a torn labrum, thoracic outlet syndrome, PTSD and chronic pain. Prognosis for full recovery was poor. In assessing non-pecuniary damages at $170,000 Mr. Justice Verhoeven provided the following reasons:

[145] Based upon the abundant medical evidence as well as the evidence of the plaintiff and other evidence of the lay witnesses, I find that the plaintiff’s injuries that she attributes to the MVA and as reported to the treatment providers and medical experts were caused by the MVA.

[146] As noted, there is much overlap in the specific diagnoses found in the medical evidence. In more general terms, the plaintiff’s injuries sustained in the MVA are: (1) left hip injury, including torn labrum, requiring surgery; (2) TOS or thoracic outlet syndrome, requiring surgery, and with further surgery recommended; (3) whiplash injuries (myofascial pain syndrome, mechanical spine pain) and resultant chronic pain, particularly in her upper back, left shoulder, and arm; (4) left shoulder tendinopathy; (5) chronic headaches; (6) mood or psychological/psychiatric disorders, including depression, somatic symptom disorder, and anxiety.

[147] The defendants dispute the diagnosis of PTSD, made by Dr. Schweighofer. Dr. Iso noted PTSD “symptoms”. In the circumstances of this case, the question of whether the plaintiff fully meets the criteria for this diagnosis is of little practical consequence. Dr. Waraich noted that her symptoms meet the DSM-5 criteria for PTSD, with one exception. He states that, while a diagnosis of delayed onset PTSD could be made, in his view her PTSD symptoms are “better accounted for” by the diagnoses that he makes: depressive disorder, and somatic symptom disorder. However, he added:

…in my opinion, her future course and potential treatment of PTSD symptoms are relevant despite her not meeting full criteria for PTSD in my assessment.

[148] The prognosis for substantial improvement is poor…

[218] The evidence discloses that the plaintiff has suffered a very substantial non-pecuniary loss. She is now only marginally able to continue with her former occupations, and passions in life, fitness training and barbering. Her physical and psychological injuries as outlined previously are substantial, and likely permanent to a large extent at least. She has endured a great deal of pain and suffering, which will continue indefinitely. She has undergone two surgeries and a third surgery is likely, since it is recommended and the plaintiff says she plans to undergo it.

[219] Her injuries and their consequences have quite dramatically affected her former lifestyle and her personality. She was previously very physically active. She participated in marathon runs and triathlons, operated a fitness business, and engaged in a number of sporting activities. She was independent and took pride in being able to support herself and her younger daughter, who continues to be a dependant. I referred earlier to the change in her personality noted by the witnesses. She is no longer outgoing, social, energetic and happy, as she was before.

[220] Her homemaking capacity has been impacted. She testified that pre-accident she kept a tidy household. This is corroborated by Mr. MacDonald and her daughter. She no longer has the ability to maintain a tidy household. Now her house is messy.

[221] On the other hand, she is far from completely debilitated, and there is a chance her condition will improve, with appropriate treatment. Her pre-accident condition was not perfect, (in particular, she had symptomatic spinal degeneration, and headaches) and there was some risk that her conditions could have affected her detrimentally in future, as they had pre-accident. They might have worsened. …

[231] Having regard to the case authorities I have referred to, I assess the plaintiff’s non-pecuniary damages in the amount of $170,000.

$100,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

Written by admin on November 23, 2017. Posted in ICBC Thoracic Outlet Syndrome Cases.

Adding to this site’s archived damage assessments for thoracic outlet syndrome, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for such an injury.
In today’s case (Sharma v. MacDonald) the Plaintiff was involved in a 2013 collision that the Defendant accepted fault for. The Plaintiff suffered a variety of injuries the most serious of which was thoracic outlet syndrome. The symptoms lingered to trial and were expected to cause some ongoing limitations. In assessing non-pecuniary damages at $100,000 Madam Justice Maisonville provided the following reasons:

[198] …I find that the defendants are responsible for the plaintiff’s neck, back, and arm issues. In my view, the plaintiff has established on a balance of probabilities that she suffers from thoracic outlet syndrome, as concluded by Dr. Hawkeswood, and that this injury was caused by the defendants’ negligence.

[199] With respect to anxiety, I accept that the plaintiff suffers from anxiety in relation to driving…

[203] Regarding non-pecuniary damages, I find that the plaintiff enjoyed a full life before the Accident and had no issues with respect to her neck and back. Nor did she have a tingling feeling in her arm or numbness of her right arm.

[204] I find that, as she testified, the plaintiff did not have to rest after having performed her regular activities. I also find that she did not experience headaches or low mood symptoms prior to the Accident.

[205] I do find, however, that the plaintiff has been steadily improving. I note that she enjoys playing basketball. I note that she now works without significant limitations. I note that she has gone back to a number of her pre-Accident activities. She is not as socially isolated now that she has returned home from Edmonton.

[206] I accept that the plaintiff still suffers from numbness and tingling feelings in her right arm, and from some neck and back pain. However, the pain she has now is not like the pain immediately following the Accident. The plaintiff is able to work to the extent she testified to. While I appreciate that she must rest afterward, she is not disabled from working.

[217] In all of the circumstances, I award the plaintiff $100,000 in non-pecuniary damages.

$110,000 Non Pecuniary Assessment For Chronic Pain and Major Depressive Disorder

Written by admin on April 3, 2017. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Thoracic Outlet Syndrome Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained in three separate collisions.
In today’s case (Parhar v. Clarke) the Plaintiff was injured in three collisions that the Defendants accepted blame for. She suffered chronic physical and psychological injuries as a result including thoracic outlet syndrome, chronic pain, major depression and anxiety. Her prognosis for further improvement was guarded. In assessing non-pecuniary damages at $110,000 Mr. Justice Pearlman provided the following reasons:

[215] Ms. Parhar was 27 years old at the time of the first accident and 35 at the time of trial.

[216] The injuries she suffered in the accidents include injuries to the muscles of her neck, shoulder girdle and back with attendant muscle spasm, low back pain, thoracic outlet syndrome, persistent headaches, TMJ pain and dysfunction and soft tissue injuries to her knees and right hip.

[217] In addition, as a result of the defendants’ negligence, the plaintiff sustained a chronic pain disorder, a major depressive disorder, a generalized anxiety disorder and PTSD.

[218] Although there has been some improvement in the plaintiff’s condition, Ms. Parhar’s prognosis is guarded in light of the persistence of her symptoms of pain and her psychological conditions.

[219] Further psychological counselling would assist Ms. Parhar in coping with chronic pain and managing the functions of daily living. Exercise and conditioning will probably produce further improvements to her symptoms of neck, shoulder and back pain, and may also alleviate her headaches. However, after eight years of chronic pain, it is unlikely the plaintiff will make a full recovery and probable that she will experience flares of her back and neck pain, anxiety and depressive moods indefinitely.

…

[227] Taking into account the Stapley v. Hejslet factors, all of the authorities cited by counsel, the risk that the plaintiff would have suffered a recurrence of depression in any event of the accidents, and all of Ms. Parhar’s particular circumstances, I would assess her damages for pain and suffering and loss of amenities and enjoyment of life in the amount of $110,000…

$80,000 Non-Pecuniary Assessment for Chronic Myofascial Pain and TOS

Written by admin on February 2, 2017. Posted in ICBC Soft Tissue Injury Cases, ICBC Thoracic Outlet Syndrome Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic myofascial pain and thoracic outlet syndrome following a collision.
In today’s case (Kodelja v. Johal) the Plaintiff was involved in a 2012 collision that the Defendant accepted responsibility for. The Plaintiff suffered chronic injuries which remained symptomatic by the time of trial and were partially limiting but not disabling. In assessing non-pecuniary damages at $80,000 Mr. Justice Masuhara provided the following reasons:

[92] Therefore, my summary of findings regarding the plaintiff’s injuries is:

(a) The Accident caused the plaintiff’s chronic myofascial pain syndrome and post traumatic thoracic outlet syndrome. The pain is in her left neck, left shoulder and upper back. She also has paresthesia in her left arm as a result of the thoracic outlet syndrome.

(b) The Accident caused the plaintiff to suffer headaches which continue. The headache pain ranges from dull, to mild to severe. She gets dull or mild headaches every other day and manages without medication. She has more significant headaches once every two weeks. They can be managed with Tylenol and Advil.

(c) The major areas of the pain are in her left neck, shoulder and upper back. The right hip and groin area pain is minor and was an aggravation of a prior condition.

(d) The pain in her neck, shoulder and back ranges from mild to moderate.

(e) Her overall condition since the Accident has improved at least 50%.

(f) The numbness and tingling in the plaintiff’s left arm is intermittent and infrequent, the last occurrence was, at least over a year ago. It is not disabling.

(g) The plaintiff has normal range of motion of the left shoulder. Her right shoulder movements are full. She has full flexion and extension in her cervical spine.

(h) The plaintiff has some physical limitations, however, she is able to carry out normal day-to-day activities including teaching, with the work support and prep time available to her, and home cleaning and cooking.

(i) The plaintiff is functional for basic handling, reaching, balance, stooping, lifting and carrying for amounts tested, sitting, standing and walking. She is able to do housecleaning though has difficulty with heavier activities for which she requires some assistance.

(j) She is able to participate in social and recreational activities such as camping, holiday travel, and sailing, but is restricted from participation in more rigorous recreational activities such as running and swimming. But for the demands of her work on her time, she is able to maintain a social life.

(k) She is able to perform her teaching duties, including leading or assisting in after school student extra-curricular activities.

…
[102] The ranges the parties rely on are not too far apart. The assessment in this case, while guided by other cases, is tailored to the specifics of the present case. My review of the cases handed up and my findings lead me to assess damages under this head at $80,000.

$87,500 Non-Pecuniary Assessment for Neurogenic Thoracic Outlet Syndrome

Written by admin on July 2, 2015. Posted in ICBC Thoracic Outlet Syndrome Cases.

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In today’s case (Hsu v. Choquette) the Plaintiff was involved in a 2010 collision that the Defendant accepted fault for. The collision caused compression of nerves resulting in Thoracic Outlet Syndrome. In assessing non-pecuniary damages at $87,500 Mr. Justice Schultes provided the following reasons:

[40] The type of TOS that Dr. Salvian diagnosed in Ms. Hsu’s case was neurogenic (nerve-based), caused by compression of nerves in an area known as the brachial plexus.

[41] Through a series of standard physical tests, he was able to provoke the symptoms of tingling in the right arm and all of the fingers and severe pain in the right shoulder and neck. His review of her medical and therapeutic records revealed a post-accident history of pain and tenderness in the right neck and shoulder muscles, right shoulder pain and numbness travelling down that arm to the fingers. He did not find many symptoms on the left side.

[42] His opinion was that Ms. Hsu’s headaches and neck pain were related to injury to the muscles and ligaments of the neck and upper back. He qualified this aspect of his opinion by emphasizing that he is not a specialist in these types of injuries.

[43] More significantly, his opinion was that her numbness, tingling and pain radiating into all of her fingers but mainly the thumb, forefinger and middle finger of the right hand was “due to a combination of post traumatic TOS and likely a component of carpal tunnel syndrome.”…

[91] Considering the unique circumstances of this case, but keeping in mind awards made for roughly comparable injuries and levels of pain and suffering, and adding an amount for the insufficiently documented yet legitimate claim for future loss of housekeeping capacity, I will award $87,500 under this heading.

$75,000 Non-Pecuniary Assessment for Chronic but Not Disabling Thoracic Outlet Syndrome

Written by admin on September 8, 2014. Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for Thoracic Outlet Syndrome caused and aggravated by a series of collisions.
In today’s case (Griffith v. Larsen) the Plaintiff was involved in three rear end collisions. The Court found the first collision caused TOS or at least TOS like symptoms and this condition was aggravated by the subsequent collision. The Court had some concerns about the plaintiff’s credibility noting “there was an element of embellishment” with some of the Plaintiff’s evidence. The Court accepted the Defendants were responsible for the plaintiff’s injuries but found the condition was not particularly disabling. In assessing non-pecuniary damages at $75,000 Mr. Justice Affleck provided the following reasons:

[41] Dr. Salvian has formed his opinions relying heavily on the plaintiff’s self-report of symptoms. This is not a criticism. Nevertheless, my conclusion is that it is appropriate to be cautious when relying on these reports. It is also my conclusion that the plaintiff, whether or not she has TOS, is gradually improving. I do not accept her symptoms are sufficiently severe or her disabilities so pronounced that she is likely to agree to surgery. Her evidence is that she would seek a second opinion from that of Dr. Salvian and in my view she will approach the question of surgery with considerable reluctance. In my view it is more likely that there will be no surgery of the type Dr. Salvian frequently undertakes with his patients.

[42] As I have mentioned, Dr. McDonald, who knows the plaintiff’s condition, both from before and after the accidents, better than any of the other physicians who have testified, would not restrict the plaintiff’s activities in any way. I accept that evidence and it leads me to conclude the plaintiff has no present significant disabilities. Nevertheless, I find the plaintiff continues to experience symptoms, particularly from the first accident. In my view the second and third accidents were trivial but have had an exacerbating effect on the injuries from the first accident.

[43] The “common sense” approach recommended by the defendants is that trivial collisions cause trivial injuries. That approach has superficial plausibility but no more. As Mr. Justice Thackray observed in Gordon v. Palmer, [1993] B.C.J. NO. 474 at para. 3:

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court.

[44] I find the plaintiff will have had about four years of painful but gradually diminishing symptoms since the first accident until she recovers. I do not find that she is feigning her symptoms but that she has overstated them. It is likely that these symptoms will subside over the coming months, particularly if the plaintiff becomes more physically active as Dr. McDonald recommends.

[45] I also believe the plaintiff has become overly absorbed by the effects of the accidents on her life and has erroneously come to believe she is disabled from pursuing many of her former physical recreational pursuits. This belief is not shared by Dr. McDonald, nor is it my assessment of the plaintiff’s condition on all of the evidence…

[50] I assess the plaintiff’s non-pecuniary general damages at the sum of $75,000.

$80,000 Non-Pecuniary Assessment For Mild, Chronic Thoracic Outlet Syndrome

Written by admin on April 15, 2014. Posted in ICBC Thoracic Outlet Syndrome Cases.

In the latest addition to this site’s Thoracic Outlet Syndrome caselaw database, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for mild but chronic TOS.
In this week’s case (Minenko v. Minenko) the Plaintiff was injured in a 2009 intersection collision. The at fault driver admitted responsibility. The Plaintiff developed a mild but persistent Thoracic Outlet Syndrome which remained symptomatic at the time of trial. In assessing non-pecuniary damages at $80,000 Mr. Justice Truscott provided the following reasons:
[27]         Dr. Shuckett saw the plaintiff on August 2, 2013 and says that the plaintiff has probably achieved maximum medical recovery and will be left with her current symptoms.
[28]         She says the plaintiff is not disabled from work although it may be more difficult for her and she should do regular walking and some regular aerobic exercises that do not over-use her upper body and arms.
[29]         Dr. Shuckett also suggests flexeril pills to decrease muscle spasm and assist the plaintiff in sleep, along with local trigger point injections and/or Botox injections into the area of muscle spasms in the right neck and shoulder girdle region could be considered.
[30]         Injection therapy, if it works, in her opinion has to be repeated every six months or so which applies to any Botox injections as well…
[38]         At trial, she says she believes she is qualified to diagnose thoracic outlet syndrome but defers to Dr. Salvian for the ultimate opinion on this as he is the primary expert on it.
[39]         At trial, she strengthens her opinion somewhat by saying she believes the plaintiff has mild thoracic outlet syndrome.
[40]         The plaintiff says she also initially suffered from anxiety attacks in the night, but only occasionally does so now. Currently, she says she has headaches and constant dull pain in her right arm, as well as the right shoulder and right upper back area. Any physical activities cause her pain in her right arm and this increases over a busy day.
[41]         She takes Advil during working hours but continues working…
[81]         There is no evidence her injuries can be alleviated through surgery but some of the pain may be ameliorated through the use of Botox…
[100]     I have reviewed all of the cases cited to me by both counsel on the issue of non-pecuniary damages and in my view, the sum of $80,000 is an appropriate amount to award the plaintiff for her pain and suffering and loss of enjoyment of life and as well for her loss of housekeeping ability.

$85,000 Non-Pecuniary Assessment for Chronic Thoracic Outlet Sydrome Coupled With Mild Brain Injury

Written by admin on July 22, 2013. Posted in ICBC Brain Injury Cases, ICBC Thoracic Outlet Syndrome Cases. 45 Comments on $85,000 Non-Pecuniary Assessment for Chronic Thoracic Outlet Sydrome Coupled With Mild Brain Injury

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an injury caused in a vehicle collision.
In last week’s case (Danielson v. Johnson) the Plaintiff was involved in a 2008 collision. Liability was admitted. The Plaintiff, who worked installing ceilings, suffered a mild traumatic brain injury and thoracic outlet syndrome in the crash. The Defendant took a serious run at the plaintiff’s credibility pointing out a history of cocaine use, getting paid under the table, and even lying at his examination for discovery. Despite this the Court found the plaintiff ‘credible and reliable’. The Court noted these injuries were caused by the collision and would likely require vocational retraining. In assessing non-pecuniary damages at $85,000 Mr. Justice Silverman provided the following reasons:
[139]     With respect to both TOS and the MTBI, I reject the inference that prior injuries may have caused his current problems. To the contrary, the evidence is that it is common for the long-term consequences of prior injuries to sometimes be sitting dormant, and when a newer injury emerges, a MTBI or TOS may result. I am satisfied that has occurred here…
[146]     I am satisfied of the following: that the plaintiff did suffer a brain injury in the MVA, it was a mild brain injury, he suffers from accompanying emotional difficulties that cause additional impairment, and the consequences of the foregoing are likely to be ongoing…
[147]     The weight of the evidence supports the finding that the plaintiff does suffer from TOS as a result of the MVA and, on a balance of probabilities, I find this to be so. I note that Dr. Fry devotes much of his medical practice to the management and treatment of TOS, both conservatively and with surgery, and that Dr. Salvian has a special interest in the diagnosis and treatment of TOS.
[148]     More than a decade ago, the plaintiff had a fracture to his neck which eventually healed completely, and he had no problems as a result of it in the five years prior to the MVA. The research has shown that a majority of people who suffer from TOS have had a prior neck injury, perhaps even years before, which had long healed, but that set them up to be vulnerable to any further injury. I am satisfied that this is what happened to the plaintiff.
[149]     When the plaintiff raises his right arm to the side or above his head, or in front of him (while driving) as well as into a position where his hands are at the height of his head or slightly higher, TOS symptoms are provoked. Unfortunately, he is required to do these sorts of movements at his work.
[150]     I am satisfied that the plaintiff suffers from TOS as a result of the MVA. He has been able to function with his pre-MVA activities, including work and recreational activities, although less efficiently and less comfortably than before the MVA. I am satisfied that the evidence indicates this will not improve; in fact, it will worsen. Hence, the weight of the medical opinion that the plaintiff must re-train…
[167]     I agree that the plaintiff demonstrates remarkable grit in continuing to work and to be involved in extreme sporting activities, to some extent contrary to the advice he has received from various doctors and to the surprise of those doctors. Having said that, I am satisfied that the plaintiff does so with much less ease and pleasure than he did prior to the MVA. He has suffered a loss in that regard, and will continue to do so.
[168]     In view of all the foregoing, I award non-pecuniary damages in the amount of $85,000.