Court Awards $25,000 Pain and Suffering for Shoulder Injury

In reasons for judgement released today from a Rule 66 “fast-track” trial, Mr. Justice Masuhara awarded a Plaintiff a total of $27,427.67 in compensation as a result of a September, 2004 rear-end accident which occurred in Coquitlam, BC.
The Plaintiff, a 33 year old female at the time of the accident, suffered soft tissue injuries including headaches, dizziness, nausea, sleep disturbance, and various soft tissue injuries.
The majority of the Plaintiff’s pain resolved by the time of trial with the exception of pain in her shoulder girdle and mid back.
The Plaintiff’s family physician testified that she suffered from “soft tissue injuries to her neck and upper back as a result of the accident.” Treatments included trigger-point injections to the Plaintiff’s right shoulder blade muscles.
A physiatrist also gave expert opinion evidence that the accident caused neck injuries that had resolved and further had caused “injuries to her right posterior shoulder girdle region and mid back”. He expected the Plaintiff to make a good or very good recovery but his prognosis of a complete resolution was guarded.
The ICBC lawyer defending the case called an orthopaedic surgeon who had examined the Plaintiff on behalf of the defence. He testified that the Plainitff “suffered a mild to moderate soft tissue injury to her neck and upper back areas“, that he “would have expected the soft tissue symptoms to have resolved over the first 6-12 weeks following the accident ” and that the “ongoing musculoskeletal complaints are due to physical deconditioning that result from factors unrelated, or having little relationship to the accident“.
The court accepted the evidence of the Plaintiff’s physicians and found that the Plaintiff’s “persisting symptoms in the area of her right shoulder blade are as result of the accident”.
Damages were awarded as follows:
1. Non-pecuniary (pain and suffering): $25,000
2. Past Wage Loss: $974.67
3. Special Damages (out of pocket expenses) $1,453
Mr. Justice Masuhara deals with some common arguments often advanced by ICBC lawyers defending these types of claims including attacks on the Plaintiff’s credibility. His findings were favourable to the Plaintiff and a quick read of this judgement reveals some of the accusations Plaintiff’s often face whem advancing ICBC claims.

Plaintiff Awarded $96,970 For a Disc Herniation

In a case that can be characterized as “the straw the broke the camel’s back”, a Plaintiff was awarded over $90,000 soft-tissue injuries and a L5-S1 disc herniation which were caused (at least in part) as a result of a 2003 car accident.
The Plaintiff was a 47 year old with a long history of back injuries. She had pre-exsting low back pain, neck pain and a bilateral facet-joint arthropathy.
She was involved in a fairly serious car accident in 2003. Her vehicle sustained damage which took close to $5,000 to repair.
At trial both a neurosurgeon and an physiatrist testified on behalf of the Plaintiff. The neurosurgeon’s opinion was that “(the Plaintiff’s) disk herniation was caused by small tears to the annular fibres surrounding the disc which eventually ruptured due to the ongoing stresses from day to day living” and that “(since the car accident) was the last major trauma before (the Plaintiff) experienced the disc herniation, it was a significant contributor to the problem.” The Plaintiff’s physiatrist largely shared this opinion.
ICBC lawyers defending claims often retain orthopaedic surgeons who disagree with treating physicians. This common insurance defence step was followed in this case as the defence lawyers retained an orthopaedic surgeon who testified there was “no objective evidence of ongoing injury to explain the Plaintiff’s ongoing pain“.
The Defence also showed video surveillance of the Plaintiff doing various activities including getting in and out of her car on many occasions with minimal difficulty. I have previously blogged about surveillance evidence and ICBC claims and don’t intend to re-visit this subject at length but will point out that this is a common tactic ICBC lawyers take when defending injury claims and Justice Fenton, at paragraph 10 and 11 of the judgement canvasses the position that many ICBC lawyers take at trial when they have surveillance evidence which shows a Plaintiff potentially overstating injuries.
After hearing all the medical evidence the court accepted the opinions of the Plaintiff’s physiatrist and neurologist and stated that “(the Plaintiff’s) earlier accidents, along with degenerative changes to her spine, made her more vulnerable to lower back injury. Accordingly, while I cannot find the defendant’s negligence was the only cause of the Plaintiff’s problems after February 13, 2003, on a balance of probabilities, I find that the defendant’s negligence materially contributed to the occurrence of those injuries
The court assessed the Plaintiff’s damages as follows:
1. Pain and Suffering: $65,000
2. Special Damages (out of pocket expenses): $3,118
3. Past Wage Loss: $88,000
4. Cost of Future Care: $5,000
Justice Fenlon then reduced the total award by 40% to account for the risk that the Plaintiff’s pre-existing condition in her spine and her psychological fragility would have detrimentally affected her in the future, regardless of the car accident.
Justice Fenlon did a great job in canvassing the applicable law in determining whether the car accident caused the Plaintiff injury. This case is worth reading to get insight into the factors courts consider when addressing pre-existing injuries that were aggravated by a car accident, and further to see the “thin-skull” legal principle in action which is well canvassed at paragraphs 42-44 of the judgement.

Police Officer Awarded $87,231.53 for Back and Neck Injuries

In reasons for judgement released by the BC Supreme Court today, The Honourable Madam Justice Griffin awarded a police officer, who was 26 at the time, a total of $87,231.53 as compensation for her injuries from a 2004 rear end motor vehicle accident.
The Plaintiff was diagnosed with back and neck soft tissue injuries.
The trial judge found that “it is now unlikely that (the Plaintiff) will recover completely from her injuries. She has recovered considerably….however, she is likely to have flare-ups of her symptoms from time to time“.
The Plaintiff called a total of 5 medical witnesses in support of her claim. The medical evidence in support of the claim included:
1. The Plaintiff’s former GP who testified that the Plaintiff did not complain of back or neck pain prior to the car accident.
2. The Plaintiff’s current family physician who testified that the Plaintiff’s injuries cause her to remain vulnerable to aggravated symptoms with physical activity
3. A chiropractor
4. An occupational and sports medicine physician who testified that the Plaintiff had Post Trauamtic Myofascial Pain Syndrome and Mechanical Low Back Pain. He went on to state that “it is my opinion that (the Plaintiff) now has a permanent impairment of her mid back and low back.”
5. A specialist in physical medicine and rehabilitiation (commonly referred to as a physiatrist). He diagnosed the Plaintiff with mechanical low back pain and mechanical neck pain.
The Defense hired an orthapoedic surgeon to assess the Plaintiff. (This is a common step taken by ICBC lawyers in defending soft tissue injury claims). He testified that the Plaintiff had a resolving cervical sprain, that her complaints were minimal and that they would resolve with the passage of time and a continuing exercise program.
The defence doctor’s evidence was challenged in cross-examination and he made some useful admissions including that “the chance of spontaneous recovery is less with the passage of time“.
The trial judge assessed damages as follows:
1. $30,000 for pain and suffering
2. $5,112.60 for past loss of income
3. $2,391 for cost of future care
4. $5,227.93 for special damages (out of pocket expenses incurred as a result of the accident)
5. $70,000 for loss of earning capacity (future wage loss).
The damages awarded for pain and suffering and future wage loss were then reduced by 25% by the trial judge. The reasons provided for this were that “because (the Plaintiff) had a vulnerability to back injury due to her earlier accidents, there was a measurable risk prior to the July 2004 accident that if (the Plaintiff) was to suffer a work injury in her position as a police officer the effects would be serious.”
This reduction of damages is an example of a basic legal principle (that a Plaintiff is not to be over-compensated) in action. The court heard evidence that the Plaintiff suffered previous injuries and the Plaintiff’s own physician testified that “(a previous accident) directly caused her complaints of mid and low back pain and that July 2004 accident aggravted her symptoms”.
This case is a great illustration of the fact that previous injuries do not disentitle a person for compensation if these injuries are aggravated in a later accident.  The extent of the pre-existing injuries simply have to be taken into account when properly valuing the damages of the subsequent accident.
Are you looking for an ICBC Lawyer to discuss a similar ICBC injury claim? If so feel free to contact the author for a free consultation.

$50,000 Awarded for Pain and Suffering in Neck Injury Case

On February 21, 2008, the Honourable Mr. Justice Wong awarded $50,000 for pain and suffering for a neck injury.
The Plaintiff was involved in a forceful collision on June 2, 2004. She sustained various injuries including headaches, back pain and neck pain. By the time of trial some of the injuries improved, however the Plaintiff continued to suffer from back pain and neck pain. Evidence was presented that she likely had damage to the facet joints in the upper cervical spine and that the prognosis for resolution of her pain was poor.
In addition to compensation for pain and suffering, the Plaintiff was awarded damages for past income loss, loss of general earning capacity, special damages, and cost of future care.

BC Court Awards $102,680 for Soft Tissue Injuries and Chronic Pain

In a judgement released on March 19, 2008, The BC Supreme Court awarded a Plaintiff a total of $102,680 for various soft tissue injuries that resulted in chronic pain.
The Plaintiff was a passenger in a mini-van that was involved in a relatively severe collision on January 11, 2004.
As is often the case in ICBC injury claims, competing medical evidence was presented at trial. The trial judge accepted the opinions of the Plaintiff’s treating GP and her physiatrist. It was accepted that the Plaintiff sustained significant soft tissue injuries in the collision. As a result of these, the judge concluded that the Plaintiff will be left with chronic pain that will affect her future employability, the number of hours she will be able to work, and the duration of her working years.
The Plaintiff’s damages included $50,000 for pain and suffering.
The case includes an interesting analysis as to whether a subsequent accident was to blame for the Plaintiff’s injuries and whether or not the Plaintiff did a reasonable job in mitigating her injuries.

Contact

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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