Non-Pecuniary Damages for Thoracic Outlet Syndrome Assessed at $85,000

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a left sided Thoracic Outlet Syndrome (TOS) which arose after a series of accidents.
In today’s case (Lee v. MacLean) the Plaintiff was involved in two 2003 motor vehicle accidents.  The Defendants were found liable for the collisions focusing the trial on the cause of the Plaintiff’s injuries and their value.
Determining the cause of the Plaintiff’s injuries was no easy task as the Plaintiff was injured in previous motor vehicle collisions and continued to suffer pain from those events.   By the time of his 2003 accidents the Plaintiff still had pain in his neck, right shoulder and lower back as a result of his previous accidents.  The 2003 accidents aggravated these injuries and caused new symptoms.  Specifically the Court found that the 2003 collisions “triggered the onset of the thoracic outlet symptoms on (the Plaintiff’s) left side“.
The Court heard expert evidence from Dr. Peter Fry, a vascular surgeon with expertise in thoracic outlet syndrome.  He provided the following evidence with respect to the cause and severity of the Plaintiff’s left sided TOS:

I think significantly at the present time he shows evidence of more serious compression of the thoracic outlet given that there is clinical evidence that the venous drainage of the arm on the left is impaired compared to the right side.  This is an indication of fairly severe compression in this area, basically involving not only the vein but the artery where you can develop a bruit or turbulence during provocative testing for thoracic outlet syndrome and the reproduction of neurological symptoms that appear to involve both upper and lower plexus.

This being the case, I think it is highly that at some point in time Mr. Lee is going to require definitive surgery for thoracic outlet syndrome on the left.

I would opine that the accident of October 2003 was most likely responsible for provoking or exacerbating symptoms on the left side in a setting where he clearly had previous compression of the thoracic outlet and was therefore somewhat vulnerable to this injury.

Mr. Justice Gaul assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000.  The court then reduced this award by 25% to take into account the Plaintiff’s pre-existing injuries.  Mr. Justice Gaul provided the following reasons:

[118]     Applying the principles enunciated in Filsinger, I am satisfied Mr. Lee is both a “crumbling skull” and “thin skull” plaintiff.  The determination of which depends upon the precise injury.

[119]     The neck, right shoulder and lower back pains Mr. Lee complained of following the 2003 Accidents were quite similar to those he complained of after the 1990s Accidents.  I am satisfied that these symptoms would have continued to manifest themselves even if Mr. Lee had not been involved in the 2003 motor vehicle accidents.

[120]     With respect to the left side of Mr. Lee’s body, the issue is more difficult.  I accept the evidence of Dr. Fry that in 1998 Mr. Lee exhibited signs of thoracic outlet syndrome on the left side of his body, even though Mr. Lee was asymptomatic at the time.  I am persuaded by the evidence of Dr. Fry and Dr. Shuckett that the nature of Accident #1 and Accident #2 were such that they triggered the onset of the thoracic outlet syndrome symptoms on Mr. Lee’s left side and are therefore attributable to those accidents.

[121]     I also find that the concentration problems, headaches and associated vision problems that arose after the 2003 Accidents can at least be partially attributed to those accidents…

[123]     Given the pre-existing condition of Mr. Lee and the fact that the symptoms on the right side of his body were likely to have continued, notwithstanding the 2003 Accidents, I find that it is appropriate to make a 25% reduction in the non-pecuniary damages as well as the award for loss of earning capacity…

[135]     I found Mr. Lee to be a credible witness when he described the timing, nature and extent of his injuries.  In doing so, I accept that he had pre-existing pains prior to the 2003 Accidents, some of which were identical to those which developed after the 1990s Accidents.

[136]     Mr. Lee is entitled to be compensated for his injuries.  I do not find those injuries to have been as trivial or transient as suggested by the defendants.  On the whole I favour Mr. Lee’s description of the injuries and find that an appropriate award for non-pecuniary damages to be $85,000.  There will, however, be a 25% contingency discount to this amount on account of Mr. Lee’s pre-existing physical ailments.

[137]     As a result, the award for non-pecuniary damages is $63,750.

You can click here to read my archived posts of other recent BC Injury Cases awarding damages for accident caused Thoracic Outlet Syndrome.

$135,000 Non-Pecuniary Damages for Multiple Crush Syndrome, TOS and TMJ Injury

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry that are worth reviewing for anyone involved in an ICBC Claim for damages for accident related Thoracic Outlet Syndrome.
In today’s case (Sauer v. Scales) liability was denied but Mr. Justice Cohen found the defendant 100% at fault for the collision.  In valuing the Plaintiff’s non-pecuniary damages at $135,000 Mr. Justice Cohen found as follows with respect to the severity of the accident related injuries:
I find that the plaintiff’s medical experts not only established the plaintiff’s diagnosis that he suffered from thoracic outlet syndrome, but also that of a multiple crush syndrome… he sustained a serious TMJ injury as a result of the accident, and that he should undertake dental reconstruction to treat this disorder…

[256] In the result, I find, on the whole of the evidence, that the plaintiff has proven to the requisite standard that as a result of the accident he sustained moderate to severe injuries to his eyes, teeth, jaw, neck and back.  I accept Dr. Fry’s opinion, confirmed by the other experts for the plaintiff who opined on this issue, that as a result of the accident the plaintiff has significant musculoskeletal and neurological symptoms with respect to his left arm and that the diagnosis is one of multiple crush syndrome, where he has evidence of cervical spine compression, of neurogenic thoracic outlet syndrome, of cubital tunnel syndrome and of carpal tunnel syndrome.

[257] I also find that the injuries he sustained in the accident and the requirement to take therapy and medication on a continuing basis since the accident to treat those injuries has had a significant impact on the quality of the plaintiff’s life, including sleeping, eating and physical fitness, as well as upon his social and personal relationships.

[258] I am mindful of the evidence that since the accident the plaintiff has experienced varying degrees of improvement in his overall symptoms; that to some limited extent he has been able to return to physical pursuits such as tennis, jogging and skiing; that he has been able to travel on family vacations; and, that during the time he was involved with the affairs of Global Synfrac he frequently commuted to Calgary to attend Board meetings.  I am also mindful of the evidence that his prognosis remains poor with regard to his TMJ disorder and thoracic outlet syndrome, and there remains the possibility of him having to undergo further surgical procedures to address these conditions.  Moreover, he will have to continue taking therapy and medications to treat his ongoing symptoms.

[259] Taking all of the above factors into account, I find that $135,000 is a fair and reasonable sum to award the plaintiff for general damages.

Paragraphs 233-236 of this case will be of particular interest to anyone who has undergone an ‘independent medical exam‘ with Dr. A.I Munro.   Dr. Munro has conducted many of these exams on behalf of ICBC and often disagrees with the diagnosis of Thoracic Outlet Syndrome.  Mr. Justice Cohen held that “no weight should be given to the opinions of Dr. Munro on this issue (the Plaintiff’s Thoracic Outlet Syndrome)”.  In reaching this conclusion extensive portions of Dr. Munro’s cross examination were reproduced which I set out below:

[234] In the report of Dr. A.I. Munro, a specialist in thoracic and cardiac surgery, dated March 9, 2006, he concluded that as a result of the accident the plaintiff sustained a mild soft tissue injury of the neck and that he did not have thoracic outlet syndrome.  He also concluded that the plaintiff had a left ulnar entrapment syndrome which was causing his disability, and that the bilateral carpal tunnel syndrome had recovered, stating that, “only one hand was on the steering wheel so it cannot be due to the MVA.”  He also said that the plaintiff’s disability is associated with numbness and weakness caused by a left ulnar entrapment syndrome plus cervical nerve root pains.  However, despite his experience as a thoracic surgeon, Dr. Munro testified that he may have done one thoracic outlet syndrome surgery between the years 1994 to 2001.  He said that he may have done one at St. Paul’s Hospital, but he was not sure, and otherwise a previous one would have been done at UBC Hospital.  He also testified:

Q         — at VGH?  Mm-hm.  And what type of surgeries were you performing over that period from ’68 to 1990, if I have the years roughly correct.

A          General thoracic surgery and cardiac surgery, both closed and open heart surgery.

Q         Okay.  And of the — I take it there were other surgeons who performed a similar practice to yours?

A          I suppose all the surgeons had slight variations in their practices.

Q         Mm-hm.  Were any of these surgeons –

A          Some of them were purely thoracic, some of them were purely cardiac, and some were mixed.

Q         Okay.  Were any of the ones that were purely thoracic involved with thoracic outlet syndrome and surgeries on that condition?

A          Early on, no.  Probably I saw most of them until probably Dr. Fry, Dr. Nelems came on staff, and they saw most of the thoracic outlet surgery after that.

Q         And when would that be?

A          I’m not sure of the actual dates.

Q         Was it shortly after –

A          Probably in the — my guess would be the early ’80s, —

Q         And prior to 2001 when you were at VGH after Dr. Fry and the other physician you mentioned began to specialize, those cases would be — TOS cases would be sent to them for –

A          Yes.

Q         — assessment at surgery; correct?

A          Yes.

Q         Yeah.

A          The second aspect is looking at a specific five-year period and analyzing what cases I had seen during that five-year period.

Q         And what five-year period is this?

A          That was 2002, 3, 4, 5 and 6.

Q         Mm-hm.  Mm-hm.  And — and that — that is where you were giving me these approximate numbers?

A          Correct.

Q         Okay.  So during that period, there were somewhere between 25 to 30 per cent that were involving non-severe neck injuries that — where — that could have been, in your opinion, thoracic outlet syndrome issues?

A          No.  There was a fair percentage of people who had such bizarre symptoms and signs that you couldn’t fit them into any logical medical diagnosis, —

Q         Mm-hm.

A          — often associated with psychiatric disease.

Q         Mm-hm.  But other specialists had assessed them as thoracic outlet syndromes?

A          Yes.

Q         Mm-hm.

A          These were all people who had been sent to me to consider this diagnosis.

Q         Mm-hm.  Now, going back to my question in terms of your — oh, maybe I’ll finish.  In that five-year period, I take it, Doctor, there were people who you did concur with the other physician that the diagnosis was thoracic –

A          In that particular –

Q         — outlet syndrome?

A          — five-year period, no.  In the previous five years, yes.

Q         Okay.  And how many occasions was that, do you recall?

A          In the previous five years, —

Q         Mm-hm.

A          — I think it was two, but I cannot tell you for sure.

Q         Two of approximately 30 per year?  Thirty reports a year?

A          Probably at that time I was seeing less than 30 per year.

Q         Mm-hm.

A          I do not have the exact figures –

Q         Sure.

A          — for that previous –

Q         Okay.

A          — five-year period.

Q         So — but in the last 10 years it would be reports in the order of several hundred reports, and of those several hundred reports you concurred with the other specialists on two occasions that you can recall?

A          Yes.

$85,000 Non-Pecuniary Damages Awarded in TOS Case

Reasons for judgement were released today (Cimino v. Kwit) by the BC Supreme Court, New Westminster Registry, awarding damages for injuries and loss as a result of a 2006 BC rear end car crash.
One of the main issues at trial was whether the Plaintiff suffered from Thoracic Outlet Syndrome (TOS) as a result of the crash.  Madam Justice Dillon found that the Plaintiff indeed suffered a traumatic TOS as a result of this crash and in assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) summarized the Plaintiff’s injuries and effects on her life as follows:
[42] I accept that the plaintiff has and continues to suffer from thoracic outlet syndrome as a result of the accident and that the plaintiff’s ongoing symptoms related to pain in the right arm and hand relate to this syndrome. Whether the effect of this condition is small, as concluded by Dr. Keyes, or so significant as to disable the plaintiff from work as a certified dental assistant, as stated by Dr. Salvian, can best be determined by inclusion of considerations of the plaintiff’s daily need for significant pain medication, her work history since the accident, and the opinion of the vocation consultant that the plaintiff is competitively employable as a dental assistant, with subtle relatively mild limitations. On balance, I conclude that the plaintiff has permanent ongoing disability of such a significant degree as to require her to take daily multiple pain medications in order to achieve personal and work functionality. Surgery for her condition is not an option. The plaintiff has difficulty sleeping after a bad day, a situation that accumulates as the work days progress with continued use of the plaintiff’s dominant right arm and hand…

[46]         In this case, the plaintiff has demonstrated that she is able to work and participate is some recreational activities and family life. However, the culture within the family changed dramatically after the accident as the plaintiff could no longer perform all of the household activities and her sons and husband took on new roles. She suffers from thoracic outlet syndrome as a result of the accident, but does not have other recurring problems from the accident. This distinguishes her from cases where the gravamen of multiple injuries along with the syndrome results in the highest awards. While the plaintiff has certainly suffered loss of enjoyment of life, emotional suffering, and must face the daunting prospect of permanent daily pain, she has not lost the ability to work or her basic lifestyle.

[47]         Non-pecuniary damages are awarded in the amount of $85,000.

$104,500 Non-Pecuniary Damages Awarded for TOS

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry (Hooper v. Nair) awarding damages for a 2003 motor vehicle collision.
The Plaintiff was struck while walking lawfully in a marked crosswalk in Burnaby, BC.  She suffered various injuries including Thoracic Outlet Syndrome (TOS).
Madam Justice Russell awarded the Plaintiff $104,500 for her non-pecuniary damages.  In valuing the plaintiffs pain and suffering the Court summarized the Plaintiff’s injuries and their effects on her life as follows:

[50] There are a number of factors that affect the plaintiff’s entitlement to non-pecuniary damages.  With respect to the duration of the pain, the plaintiff’s pain has become chronic in nature.  She continues to experience pain particularly in her neck, left shoulder and arm nearly six years since the onset of symptoms. The chronic nature of her pain means that she will have to deal with and manage the pain from her underlying TOS for the foreseeable future.  She has tried many different modalities of treatment with limited success.  There is some improvement but the pain is still present.  Further, the injuries led to the development of sleeping problems which cause the plaintiff to feel tired in the morning.   She can hope for some improvement over time with a regular exercise programme.  But overall, the prognosis for a full recovery is unclear and it appears that she will continue to be affected by the injuries indefinitely and will likely have to live, at a minimum, with background pain.

[51] The plaintiff’s lifestyle has been adversely affected in a number of ways.  She is determined to resume her jogging programme and to re-enter the Sun Run with her husband.  However, her early attempts to run resulted in a flare-up of neck and back pain.  Drs. Travlos and Salvian suggest that jogging may not be an activity she can do.  Dr. Travlos states she will have to pre-medicate for any activity which causes an exacerbation of her back pain.  Certainly golfing, an activity she enjoyed, will not be an activity she can participate in without pain.

[52] Both doctors also point out that the plaintiff is susceptible to further episodes of TOS should she have any increased neck injury or strain.  Dr. Salvian says that such increased neck strain could be caused by something as simple as “sleeping in a poor position or driving for long periods”.

[53] The plaintiff’s professional life was impacted by the Accident.  She has been able to cope fairly well with the duties of her job by minimizing the use of her left arm.  Luckily, she is right hand dominant.  But her evidence was clear that she maintained the earnings she had only by pushing through the pain and carrying on as best she could.  She gave evidence of struggling to carry on, taking her work home because she could not sit any longer in her office, and feeling tired and overwhelmed.  Because of her pain and fatigue, she believes she could not “court” clients as effectively at a time in her career when she was in a start-up mode and needed to do so.

[54] The Accident also caused emotional difficulties for the plaintiff which were no doubt situational and due to the chronic pain and resulting fatigue.  Fortunately, these problems have not continued and she appears to be coping well at this point.

[55] The plaintiff’s relationship with her husband was in some difficulty due to his business problems and their financial crises prior to the Accident but had improved by October 2005.  Mr. Hooper stated that her sleep difficulties meant she would often leave the marital bed and their relationship was negatively affected.  However, the plaintiff’s evidence about the effect of her injuries on her marital relations with her husband was not as clear.  But I accept his evidence that the plaintiff was irritable, fatigued and distant after the Accident and that her frustration with the slow progress of her recovery affected the happiness of the household.

[56] At the time of the Accident in December 2003, the plaintiff’s son was six years old.  She enjoyed skating with him.  She was not able to take part in active sports with him after the Accident and even cuddling him was painful for her for some time following the Accident.

[57] The plaintiff faced the difficulty of juggling many activities in her busy life:  she had a job which required time and concentration and some extra activities she needed to do as part of her marketing, she was the chief breadwinner for the family, and she had a young son at home and a house to care for.  Even before the Accident she was very busy but with the overlay of pain caused by the Accident, the plaintiff could not keep up her usual standard of housekeeping.  She relied on her older son and her husband to help but this was not always successful and caused friction in the family.  Vacuuming caused her intense pain as did reaching up to dust or clean above her shoulder.  This remains the case today.  She cannot vacuum, wash windows, or dust high corners.

[58] While Dr. Travlos suggests she use Noritryptiline to pre-medicate if she wants to do housework which would otherwise cause her pain, this is not always a practical solution and I accept that her inability to do housework has an impact on her life.

In addition to this case’s value as a precedent in Thoracic Outlet Syndrome cases the court discusses the thin skull and crumbling skull legal principles at paragraphs 59-66 and contains a very useful discussion of claims for past wage loss for commissioned sales-persons who are injured but not totally disabled as a result of accident related injuries.

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

ERIK
MAGRAKEN

Personal Injury Lawyer

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

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