Tag: labral tear

$95,000 Non-Pecuniary Assessment for Meniscal and Labral Tear

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee and shoulder injury.
In today’s case (Hart v. Hansma) the Plaintiff was involved in two collisions.  The Defendants admitted fault for both.  The Plaintiff suffered a variety of injuries including a torn meniscus, a labral tear and a variety of soft tissue injuries.  These continued to post problems at the time of trial with a poor prognosis.
In assessing non-pecuniary damages at $95,000 Mr. Justice Verhoeven provided the following reasons:
[54]         I find that the most significant injuries suffered by the plaintiff in the accidents are as follows:
1.     soft tissue injuries to his neck, particularly the right side, resulting in chronic neck pain;

  1. chronic headaches, associated with the neck pain;

3.     right shoulder injury, including a labral tear and tendonitis with a partial rotator cuff tear; and
4.     left knee injury, including a meniscus tear.
The foregoing injuries continue to cause significant ongoing pain and disability currently.
[55]         I find that the plaintiff also suffered from the following, less serious injuries sustained in the accidents:
1.     right upper limp numbness and pain;
2.     low back injury, and associated pain (that is not presently bothering him) in the right hip and buttock area;
3.     right knee pain (although it is now substantially resolved); and
4.     left hip pain (although it is now substantially resolved)….
[65]         The prognosis for full recovery is negative.  It is unlikely that his neck injury will ever fully recover.  There is a risk that his neck condition will deteriorate to the point where cervical discectomy surgery will be required.  The headaches he suffers from are related to his neck injury.  The plaintiff finds that treatment such as acupuncture, physiotherapy and the prolotherapy provide short term relief for his neck pain and headaches.  He takes a variety of medications in order to allow him to cope.  The planned knee surgery may provide some benefit for his left knee pain, but may have long term negative consequences, such as the risk of osteoarthritis. His shoulder condition is also chronic.  The plaintiff has the choice of enduring the pain and limitation of function in his shoulder, or undergoing surgery which may offer some benefit…
]         Taking into account the factors in Gillam as they apply to Mr. Hart’s circumstances, and the above awards in Prince-Wright, Hanson, Steward, and the cases cited by the defendants, adjusting for inflation, I find that an award of $95,000 is appropriate in this case.
 

The Death of the LVI Program?

I have it on good authority that ICBC’s Low Velocity Impact Program is being largely scrapped.  Instead of the conventional LVI denials for collisions with under $2,000 of vehicle damage, I am informed that ICBC will now only deny claims under the LVI policy in cases where vehicle damage is limited to “scuffs, scrapes or scratches“.  Anything beyond this minimal paint damage will be adjusted on overall merits.  I have not yet seen a written copy of this shift in policy but if I do I will be sure to share it here.
With this introduction out of the way, the latest judicial nail in the LVI coffin was released this week.  In this week’s case (Midgley v. Nguyen) the Plaintiff was involved in a 2004 collision.  He suffered various injuries and sued for damages. ICBC argued this was a Low Velocity Impact and that the plaintiff was not injured.  Madam Justice Dardi soundly rejected this argument finding the Plaintiff suffered from a torn labru in his right hip along with psychological injuries.  She assessed non-pecuniary damages at $110,000.  In dismissing the LVI Defence the Court provided the following critical comments:
[174]     The overarching submission of the defence was that “this was a nothing accident”. The tenor of the defence submission was that, since there was no damage to Mr. Midgley’s motor vehicle, he could not have sustained the damage he alleges in the 2004 Accident.
[175]     There is no legal principle that holds that if a collision is not severely violent or if there is no significant damage to a motor vehicle, the individual seated within that vehicle at the time of the impact cannot have sustained injuries. The authorities clearly establish that, while the lack of vehicle damage may be a relevant consideration, the extent of the injuries suffered by a plaintiff is not to be measured by the severity of the force in a collision or the degree of the vehicle’s damage. Rather, the existence and extent of a plaintiff’s injuries is to be determined on the basis of the evidentiary record at trial: see Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236.
[176]     As I referred to earlier, the defence led no opinion evidence to support the assertion that the force of the impact in this case was incapable of producing the injury alleged by Mr. Midgley. I accept Mr. Midgley’s evidence regarding his body position at the time of impact and that, as far as he was concerned, the collision was jarring. In any case, there is expert medical evidence, which I find persuasive, that supports the relationship between the 2004 Accident – and, in particular, Mr. Midgley’s body position at the time of impact – and the existence of his injuries.
[177]     On the totality of the evidence, I am persuaded that Mr. Midgley sustained an injury in the 2004 Accident, in spite of the fact that his vehicle apparently was not damaged.

$90,000 Non-Pecuniary Assessment for Labral Tear Requiring Surgery

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a hip injury sustained in a vehicle collision.
In yesterday’s case (Combs v. Moorman) the Plaintiff was involved in an “extensive” rear end collision in 2007.   The Defendant was found wholly at fault for the crash.  The Plaintiff, a 38 year old massage therapist, suffered a labral tear (a tear of the cartilage cushioning the hip socket).

This injury caused ongoing problems and needed future surgical intervention.  It caused limits in the Plaintiff’s domestic and vocational abilities.  In assessing non-pecuniary damages at $90,000 Madam Justice Humphries provided the following reasons:

[19] Pain in her left hip is her primary concern presently.  She says it is very painful and affects every treatment she gives.  The pain makes her put her weight on her right leg, and consequently her right leg has begun to hurt as well.  After an MRI, it was determined that she has a labral tear, that is a tear in the material cushioning her hip socket.  A bone scan showed some tenderness on the left trochanter, that is the top of the femur.

[20] Dr. Smit, Ms. Combs’ treating orthopaedic surgeon, recommended freezing injections into the hip and the trochanter respectively as a diagnostic device to determine where the pain was coming from.  That is, if one area were frozen and the pain continued, it would show that the source was the other area.  Dr. Smit said the injections give temporary relief, but symptoms would return in 6 – 8 weeks.  He said in “a distinct minority” of cases the pain does not return.  Ms. Combs declined this procedure…

[27] Ms. Combs was a straightforward witness.  She is obviously used to coping with life in a businesslike manner and does what she has to do.  She works hard, runs a successful clinic, and looks after two children and the home with the help of her mother, her mother-in-law, and her husband.

[28] Ms. Combs suffered fairly extensive injuries in this accident, some of which are permanent.  The hematoma in her knee and the damage to her finger, though not interfering with her activities, will not improve.  She deals with daily neck, back and hip pain and has done so for four years.  While surgery will likely improve her hip pain, it is not likely that her neck and back pain will resolve.  Her prognosis is poor.

[29] She still works long hours, but only with pain, and foregoes activities she used to enjoy in order to work those hours.  Her social life has been impacted because she is too tired to participate.  She cannot sit up on the bed and read to her daughter because of her back pain…

[33] I am of the view that it would have been helpful for Ms. Combs to have the injections for diagnostic purposes and for temporary relief.  Her failure to do so was unreasonable, but although some of her pain may have been relieved temporarily by this procedure and diagnosis of the source of the pain would likely have been facilitated, failure to undergo this procedure does not affect any long term outcome.  Dr. Smit said the cases in which pain does not return after the injections are “a distinct minority”.  In any event, Ms. Combs must still face hip surgery, and according to the medical evidence, delay in having the surgery does not affect its success rate.  Her refusal to undergo months of recovery from surgery while running a busy practice and taking care of young children is simply a matter of weighing how much pain she could cope with and still carry on.  I cannot see her refusal to have the surgery until now as unreasonable.

[34] Obviously each case has distinctive facts, and it is often difficult to reconcile them as awards for pain and suffering are inherently individual.  The cases cited by the plaintiff involve considerably more severe and wide ranging symptoms that Ms. Combs has.  The cases cited by the Third Party involve symptoms that resolved faster than Ms. Combs’ have.  She is not a complainer, but four years post accident, she is still coping daily with its effects and now has to undergo the surgery and recovery time.  The effect of the chance of the early onset of arthritis in the distant future is not great, given the scant evidence that it is likely to occur.

[35] Considering the evidence and the cases cited to me, I set non-pecuniary loss at $90,000.

$75,000 Non-Pecuniary Assessment For Labral Tear


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for various soft tissue injuries and a labral tear caused by a motor vehicle collision.
In this week’s case (Foster v. Kindlan and Pineau) the Plaintiff claimed damages from two motor vehicle collisions, the first in 2007, the second in 2009.  Fault was not at issue in either claim.  These collisions caused various soft tissue injuries and a labral tear which continued to pose difficulties for the plaintiff at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $75,000 Mr. Justice Savage provided the following reasons:

[64] In this case the Plaintiff suffered soft tissue injuries to the neck, back, knee, and shoulder and a labral tear to her left hip.  Prior to the 2007 Accidents she led a physically demanding lifestyle working as a fitness instructor, and had a high level of physical fitness.  She was, however, transitioning out of this employment at the time of the 2007 Accident, by training for career as an LPN that would not involve fitness as part of her daily employment activity.

[65] Ms. Foster was not entirely asymptomatic from her 2005 Accident at the time of the 2007 Accident.  It is also apparent that she has had ongoing back issues that required periodic chiropractic treatment unrelated to the 2007 Accident and 2009 Accident.  She also had an earlier knee injury that required surgery.  These factors affect the “original position” to which Ms. Foster must be returned by the award of damages.

[66] I find it unlikely that Ms. Foster will have surgery to the labral tear, based on the opinions of Dr. O’Connor and Dr. Gilbart, whose opinions are to be preferred over that of Dr. Sam.  Dr. O’Connor and Dr. Gilbart have more specialized experience in this area than Dr. Sam, who is a general family physician.  While Ms. Foster experiences pain during her physically demanding employment activities, she is able to take extended (one week or longer) motorcycle trips without any impairment that is apparent to her companions.  The videotape evidence shows a cautious rider but not one prevented from enjoying this pursuit.

[67] Ms. Foster has suffered emotionally during periods where she has not been able to work.  However, her emotional state has not prevented her from taking foreign holidays and motorcycle trips to the Sunshine Coast, Tofino, the East Kootenays and Idaho, and local trips to Chilliwack, Harrison Hot Springs and the Tri-cities area.  Moreover, her emotional issues have had a variety of causes, including relationship issues which are admittedly unrelated to the two accidents.

[68] I have reviewed the cases provided by counsel.  There are aspects of those cases that are helpful, but there are also differences that prevent direct application.  The Defendants’ cases generally involve less seriously injured persons.  Many of the cases submitted by the Plaintiff involve a prognosis for chronic daily pain.  That is not the prognosis for Ms. Foster.  In the circumstances, I award $75,000 in non-pecuniary damages.

$70,000 Non Pecuniary Damages for Disc Herniation and Labral Tear

Reasons for judgement were released today awarding a Plaintiff close to $120,000 in damages as a result of a 2006 BC car accident.
The accident occurred when the Defendant failed to see the Plaintiff’s vehicle and struck the driver’s side door of the Plaintiff’s vehicle.
All the doctors who gave evidence at trial agreed that the Plaintiff ‘suffered a slight tear to the cartilage of her left hip (a labral tear) and a disc bulge in the lumbar spine, and that these two conditions contribute to her ongoing pain…’
The issue at trial was one of causation, that is, did this accident (which apparently did not cause a lot of vehicle damage) cause the Labral tear?  After hearing from several medical witnesses Madam Justice Gerow concluded that there was a causal connection, finding that ‘I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that the accident either caused the disc herniation and the labral tear, or caused those asymptomatic conditions to become symptomatic, and that (the Plaintiff’s) degenerative disease is minimal at this point.’
Dealing with the argument ICBC often makes at LVI trials (low velocity impact) that ‘the force of the accident was not such that it could have caused the injuries to the lumbar spine’ Madam Justice Gerow stated as follows:

35]            The evidence is that the defendants’ vehicle struck the driver’s side of Ms. Grant’s vehicle.  The defendants argue that the cost of repair of approximately $1200 indicates that this was a relatively minor accident and, therefore, unlikely to have caused the plaintiff’s ongoing injuries. 

[36]            Although the force of the impact is a factor to be considered in assessing the injuries sustained in an accident, it is only one factor to be considered.  The nature and extent of the injuries suffered by a plaintiff should be assessed on the basis of all of the evidence.

[37]            As noted by Thackray J. (as he then was) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.):

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.

In the end, damages were assessed as follows:

Non Pecuniary Damages: $70,000

Past Wage Loss: $13,452

Loss of Earning Capacity: $30,000

Special Damages: $1,498

Cost of Future Care: $5,000

This case is worth reading for anyone advancing an ICBC claim where the issue of causation of a disc bulge is at issue to see the types of competing positions that can be advanced by the doctors at trial along with the analysis that a court can engage in to navigate the waters of expert opinions.

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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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