Tag: mechanical neck pain

$65,000 Non-Pecuniary Assessment for Partly Disabling Mechanical Neck and Back Pain

Update September 28, 2018Today the BC Court of Appeal published reasons re-assessing the non-pecuniary award in the below case at $85,000.
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Reasons for judgement were published today by the BC Supreme Court, New Westminster registry, assessing damages for partly disabling injuries sustained in a collision.
In today’s case (Riley v. Ritsco) the Plaintiff was involved in a 2011 collision.  The Defendant was found fully liable.  Following the collision the plaintiff suffered from chronic neck and back pain with associated symptoms and a poor prognosis for full recovery.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bowden provided the following reasons:

[42]         In summary, Dr. Adrian opined as follows:

1.     The mechanical neck, mid and lower back pain experienced by the plaintiff are consistent with suffering an injury to the spinal tissue and are causally related to the motor vehicle accident.

2.     The headaches experienced by the plaintiff are triggered by neck pain and related to his neck injury.

3.     The plaintiff’s left shoulder pain symptoms are causally related to the accident.

4.     The plaintiff’s left knee pain symptoms are causally related to the accident.

5.     While the plaintiff experiences psychological and cognitive symptoms, Dr. Adrian deferred to specialists in psychiatry to comment on the nature of those symptoms.

6.     As several years have passed since the accident, the prognosis for further recovery from the injuries suffered in the accident into the future is poor.

7.     The plaintiff will probably continue to experience difficulty performing activities that place physical forces onto his neck, back, left shoulder and left knee. He will probably continue to experience difficulty performing employment, recreational and household activities involving prolonged sitting, standing or walking, awkward spinal positioning, heavy or repetitive lifting, stooping, repetitive neck motion, repetitive reaching, climbing or jarring activities.

8.     The plaintiff’s physical limitations are unlikely to improve into the future and he is permanently partially disabled due to injuries suffered in the accident.

[43]         The plaintiff has undergone a variety of treatments for his injuries following the accident including 134 physiotherapy treatments, 64 massages, acupuncture and chiropractic treatments. This has given him some relief but the pain symptoms referred to by Dr. Adrian continue.

[57]         I accept Dr. Adrian’s description of the injuries suffered by the plaintiff as a result of the collision. It appears that the plaintiff has endured pain of different levels and at different times during the years following the accident. He was totally disabled from work for about 14 months and he will likely continue to experience some pain in the areas of his body where he was injured for the remainder of his life. He is described by Dr. Adrian as suffering a permanent partial disability as a result of the accident. His injuries have negatively affected his ability to work as a millwright as well as a number of his recreational activities…

[62]         While Dr. Adrian opines that the plaintiff would find certain functions at work to be difficult he did not say that the plaintiff was unemployable. There is also insufficient evidence, and none from an expert, to establish that the plaintiff suffered psychological damage from the accident. Indeed, Dr. Adrian defers to specialists such as a psychiatrist regarding the nature of the plaintiff’s psychological state.

[63]         Unlike Mr. Mandra, the plaintiff in the case at bar did not present evidence from an occupational therapist or a psychiatrist.

[64]         Considering the factors referred to in Stapley v. Hejslet and the particular circumstances of the plaintiff I have concluded that an award of $65,000 is appropriate for non-pecuniary damages.

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.

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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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