Tag: Kovac v. Moscone

$75,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for Thoracic Outlet Syndrome caused by a motor vehicle collision.
In last week’s case (Kovac v. Moscone) the Plaintiff was involved in a 2004 collision.  Fault for the incident was admitted by the Defendant.  The Plaintiff claimed that she suffered various injuries in this incident and claimed approximately $3 million in damages at trial.  While much the Plaintiff’s claim was rejected with findings that the Plaintiff’s disability had an origin in events other than the collision, Mr. Justice Harvey found that the collision did cause a Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $75,000 for this injury the Court provided the following reasons:

[490] While I have rejected much of what the plaintiff testified to regarding her post-accident condition, the reference to tingling and numbness is borne out by repeated references to the condition which predate the fall.

[491] Specifically she complained of the phenomena to Dr. McLachlan in May of 2004 and later to her replacements on two separate occasions in 2005. The last appointment, prior to the fall, resulted in a referral to Dr. Mezei.

[492] The question that remains is, what is the cause?..

[501] On balance, I am persuaded that the plaintiff’s symptoms of arm and hand numbness/tingling were likely as a result of the accident. I say this because of the onset of the symptoms proximate to the accident and the absence of another plausible explanation for their appearance.

[502] Whether the diagnosis is TOS or, as described by Dr. Hershler, a “variant” of TOS, I conclude ongoing symptoms of occasional numbness and tingling in the plaintiff’s arms and hands is as a result of the accident.

[503] Save for restrictions on reaching overhead, which may cause an onset of the symptoms and therefore should be avoided, the symptoms I find attributable to the accident in no way impact the plaintiff’s ability to work as an elementary school teacher…

12] The injuries caused by the defendant are moderate soft tissue injuries to the upper and low back area together with TOS. The former injuries were, in the main, resolved by January 2006. I accept the plaintiff had occasional flare-ups as referenced in her medical chart entries. However, the plaintiff had a history of low back pain unrelated to the accident as noted in her original report to the adjuster.

[513] The symptoms of TOS are ongoing but, as earlier noted, are not the source of her inability to work full time. The plaintiff’s chronic pain and depression likely rule out any substantial chance of overall improvement in her TOS symptoms and the assessment of her non-pecuniary loss needs to take into account the chronicity of her symptoms related to the accident.

[514] With the factors from Stapley in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.

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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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