Chronic Regional Myofascial Pain Syndrome Leads to $125,000 Non-Pecuniary Assessment

Reasons for judgement were released today assessing damages following chronic injuries sustained in a collision.
In today’s case (Kam v. Van Keith) the Plaintiff was injured in a 2011 rear end collision.  The Defendant admitted fault.  The Plaintiff complained of” injuries to her neck, upper and lower back, shoulders, she suffers from depression, sleep disturbance, fatigue, headaches and has chronic pain”.  These were ultimately diagnoses as a chronic regional myofascial pain syndrome and the Plaintiff’s symptoms were not expected to make meaningful improvement.  In assessing non-pecuniary damages at $125,000 Mr. Justice Cole provided the following reasons:
[15]        Dr. Apel does not state the plaintiff has fibromyalgia but does find she has some symptoms of fibromyalgia. She makes a conclusive diagnosis of chronic regional myofascial pain syndrome which is unchallenged by the other experts…
[24]        I was impressed with Dr. Apel. She saw the plaintiff on two occasions. Her report was thorough and detailed as was her examination. I am satisfied that the kinesiologist that worked with the plaintiff (which I assume was in response to Dr. Piper’s recommendation in his first report) between November 2013 and April 2, 2014 along with her continual rigorous workout program that she had continued to do following his recommendation of a kinesiologist has not improved her condition and I am satisfied that it is unlikely her symptoms will improve in any significant way. In my view she had tried everything possible. She has applied herself in a rigorous discipline fashion and four years after the accident she still has chronic lower back pain…

[25]        Non-pecuniary damages are awarded to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to consider are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal refused, 2006 SCC 100. Any assessment of damages of course must be fair to both parties, and must be decided on the facts of the particular case.

[26]        The plaintiff is still relatively young, being born in November 1975. The nature of her injuries are significant and they have subsisted at least in the lower back for four years. The plaintiff has suffered emotionally and her life has been impaired. It has also adversely affected her family, her marital relationship and her social relationships. She is incapable of doing practically all the sporting activities that was a vital and vibrant part of her personality and her relationship with her husband, her family and friends. Although she only took three days off work purely because she is stoic is not a reason to generally penalize the plaintiff…

[31]        I am satisfied, considering all of the evidence that the proper award is the amount of $125,000.

bc injury law, chronic myofacial pain, Kan v. Van Keith, Mr. Justice Cole

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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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