Tag: patellofemoral pain

Can Injuries in an ICBC Claim be Worth Less for Failing to Lose Weight?

The short answer is yes.  In BC, if a Defendant who negligently injures you can prove that the extent of your injuries would have been less if you took reasonable steps to ‘mitigate’ your loss then the value of your damages can be reduced accordingly.  This principle of law is called ‘failure to mitigate’.
Failure to mitigate can include failing to follow a reasonable treatment or rehabilitation program such as a weight loss program.  Reasons for judgment were released today by the BC Supreme Court demonstrating the ‘failure to mitigate’ principle in action.
In today’s case (Rindero v. Nicholson) the Plaintiff was injured when seated as a rear-seat passenger in a pick up truck which struck a vehicle that ran a red light.  Fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and loss). In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $36,000 Mr. Justice Meiklem found that the Plaintiff suffered from Patellofemoral pain (knee pain), a slight exacerbation of pre-existing post traumatic stress disorder and recovered soft tissue injuries to the neck and shoulders with accompanying headaches.
The Court found that the Plaintiff’s knee injury was the most serious of the injuries and summarized its effect on the Plaintiff’s life as follows:
The plaintiff’s knee injury is probably chronic and not likely to fully resolve. It is troublesome and painful when he stands for long periods, sits for long periods, or overextends any vigorous physical activity….The most significant limiting effect on his activities that he mentioned in relation to his knee pain was restriction on his style of big game hunting, and fishing. He hunts only from roads as opposed to hiking off into the bush as he sometimes did, and he avoids fishing areas that involve difficult access.
In arriving at the $36,000 figure the court reduced the damages by 20% for the plaintiff’s failure to mitigate, specifically the failure to lose weight which would have reduced the extent of the knee pain.  Mr. Justice Meiklem summarized and applied the law of failure to mitigate as follows:

[30] The defendants argue that the plaintiff’s failure to significantly reduce his weight has contributed to the severity and persistence of his knee pain and amounts to a failure to mitigate, which should reduce his award. There can be no doubt that the plaintiff would suffer less with knee pain that is increased with physical activity if he lost weight. The medical evidence confirms this elementary physical principle. At an estimated 265 pounds at trial he was about 25 pounds heavier than he was when examined by Dr. McKenzie in July 2008. I note that in July 2008 his left knee pain, which is his primary injury, was less prominent than his right knee pain. I appreciate that sore knees would probably make it more difficult to engage in the vigorous exercise that is usually part of a weight loss program, but the plaintiff has demonstrated that he can lose a considerable amount of weight when he changes diet and lifestyle, and that his left knee pain was lessened when he weighed less.

[31] I note that the plaintiff told Dr. McKenzie that he experienced knee pain when riding his mountain bike more than an hour as soon after the accident as June 2005, which, apart from showing that his knee injury was not very disabling,  shows that exercise is not out of the question for him. I find that the defendant has established a failure on the part of the plaintiff to mitigate his damages.

[32] The extent to which damages should be reduced is obviously not amenable to any precise calculation on these facts, but I note that in the Collyer case cited by the plaintiff, an award of $80,000 was reduced by $10,000 for a comparable failure. In the Crichton case cited by the defendants a 30% discount was applied for failure to participate in group psychotherapy sessions recommended by a psychiatrist and a family doctor, which would address an anxiety disorder and thereby assist in dealing with chronic pain. I find that a discount of 20% to the award I would otherwise make to account for failure to mitigate is appropriate.

On another note, this case contains a useful discussion of plaintiff credibility and some of the factors courts look at when gauging this.  Additionally, this case contains a very useful discussion of the law of ‘diminished earning capacity’ (future wage loss) at paragraphs 35-39.

$70,000 Non-Pecuniary Damages Awarded for Patellafemoral Pain Syndrome

Reasons for judgment were released yesterday (Fortin v. Cousins) by the BC Supreme Court awarding a Plaintiff just over $300,000 in damages as a result of a 2004 BC Car Crash.
The Plaintiff’s main injury involved his knees and was described by his orthopaedic surgeon as follows:
In the motor vehicle accident of March 28, 2004, Mr. Fortin’s principal injury for which there are ongoing symptoms is contusion of the right and left knees.  It is the writer’s opinion that Mr. Fortin must have sustained anterior blunt trauma to the right and left knees.  He presents with ongoing symptoms consistent with patellofemoral degeneration.

Currently, the discomfort in the right and left knees related to presumed chondromalacia patellae (post traumatic), is not impairing Mr. Fortin in his work.  He obviously is very happy about his present employment.  He has aspirations to, at some time, own his own company and not have to do hands on work.  It is the writer’s opinion that if Mr. Fortin continues in his current occupation long term as a pipefitter, he will experience progressive problems with the right and left knee.

I reviewed with Mr. Fortin the job requirements of a pipefitter in stainless steel.  The requirements are obviously quite rigorous and all his co-workers have musculoskeletal complaints related to the occupation.

The writer does not anticipate there will be spontaneous improvement in the complaints referable to the right and left knee.  Currently, Mr. Fortin is following instructions with regard to the protection of his knees throughout the course of his activities as a pipefitter.

The long term prognosis is guarded if Mr. Fortin remains in precisely his current role as a pipefitter.  One could anticipate that in 10 to 20 years in this particular occupation, he might become disabled for (sic) continuing on.  At the present time there are no operative interventions which would prolong the life of either the right or the left knee.  Mr. Fortin is already making plans to attempt to advance to a supervisory position and eventually, to be an independent contractor of a pipefitting company.  Were Mr. Fortin to follow this career path, it is in the writer’s opinion that his knees would not be a barrier to his future employment.

In valuing the Plaintiff’s non-pecuniary damages (pain and suffering) at $70,000 Mr. Justice Harvey noted the following:

49] The purpose of non-pecuniary damage awards is “to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at ¶134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 260-265; and Kuskis v. Hon Tin, 2008 BCSC 862 at ¶135.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as guides to assist the court in arriving at an award that is just and fair to both parties: Kuskis at ¶136.

[50] Russell J. discussed this process in Hoang v. Smith Industries Ltd. et al., 2009 BCSC 275 at ¶33:

There are a number of factors that courts must take into account when assessing this type of claim.  Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)        loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.))

[51] Here, Mr. Fortin has suffered significant injuries as a result of a horrific accident.  Happily, with the exception of the problem with his knees, which is permanent, his other complaints resolved over time.  Approximately one year following the accident, Mr. Fortin’s other injuries had resolved and no longer were interfering with either his employment or his enjoyment of life.

[52] His knee symptoms, although mild at present, will create ongoing problems for him both in his vocational and recreational pursuits.  The more he is obliged to work “on the tools”, the greater the interference with both.

[53] Counsel for the plaintiff suggests an award of $90,000 to $100,000 for non-pecuniary loss.  Counsel for the defendant distinguishes the authorities relied upon for the plaintiff and suggests, instead, a range of $30,000 to $45,000, noting, amongst other things, that there has been no surgery to the plaintiff’s knees nor is it anticipated that such will occur in the future.

[54] Both counsel cited Gernitz v. Mowat, 1992 CarswellBC 2460 (S.C.) [Gernitz], presumably because the facts there were remarkably similar to the facts in this case but for the plaintiff’s age.  In Gernitz, the award for non-pecuniary loss was $35,000.  Counsel agreed that grossing up the award from 1992 to present day value results in an award of approximately $47,000.

[55] The major distinguishing factor in Gernitz was the age of the plaintiff who was 56 at the time of trial.  Here the plaintiff is 27 and will be subject to a much longer period of pain and restriction in his social pursuits.  Accordingly, having regard to all of the authorities cited by counsel on the question of non-pecuniary damages, I award the sum of $70,000 under this heading of loss.

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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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