$35,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing "Significant" Muskuloskeletal Issues
Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Johal v. Conron) the Plaintiff was involved in a 2009 collision. The Defendant admitted fault. At the time of the accident the plaintiff had significant pre-existing issues including bilateral rotator cuff tendinitis, complex regional pain syndrome and underlying degenerative arthritis. The collision caused soft tissue injuries which aggravated these conditions. In assessing non-pecuniary damages at $35,000 Madam Justice Donegan provided the following reasons:
[79] In his July 26, 2011 report, Dr. Wade opined:
The global clinical picture of Mrs. Surinder Johal is complex. It would be my opinion that she had significant musculoskeletal complaints prior to a motor vehicle accident of June 10, 2009. As a result of the accident of June 10, 2009 she had an aggravation of neck and back complaints likely because of a mild soft tissue injury of the cervical and lumbar spine. Over time she has had persistent and increasing problems in a number of areas.
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It is unclear to me whether her right shoulder pathology [tear] is any way directly related to the motor vehicle accident of June 10, 2009; however her global pre-existing musculoskeletal complaints have been aggravated by the soft tissue injury of the cervical and lumbar spine as a result of the accident of June 10, 2009.
[80] Dr. Wade fairly conceded that it is difficult to sort out the symptoms that pre-dated the accident and those that could be directly attributed to the accident. In this regard, he wrote:
In my opinion it would be a blend of both pre-accident and accident type problems that have resulted in her current state of pain and disability.
[81] He further opined that if she would not have had the accident of June 10, 2009, and had been treated with appropriate aggressive physiotherapy to her right shoulder and upper extremity, that Mrs. Johal would have likely improved over time. I accept this opinion.
[82] Accepting Dr. Wade’s evidence as I do, I am satisfied that Mrs. Johal has proven, on a balance of probabilities, that the defendant’s negligence caused mild to moderate soft tissue injuries to her cervical and lumbar spine. These injuries caused aggravation of her pre-existing conditions and caused new conditions in her lumbar spine and lower body…
[92] I find she would have been disabled to some extent by her right shoulder and upper extremity problems if the accident had not occurred. However, the injuries from the accident have made her symptoms worse, slower to recover and have had a more significant impact on her life. In the unique circumstances of this case, I find that the appropriate award for non-pecuniary damages is $35,000.00.