Tag: rotator cuff injury

$110,000 Non-Pecunairy Assessment For Chronic Rotator Cuff Injury

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic rotator cuff injury.
In today’s case (Pistruga v. Garcia) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a rotator cuff injury which underwent arthroscopic surgery which did little to improve the plaintiff’s chronic symptoms.  In addition to this the Plaintiff suffered from a major depressive disorder attributed to the consequences of this crash.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyeat provided the following reasons:

[100]     Mr. Pistruga is now 50.  I find that he has suffered and continues to suffer both physically and emotionally as a result of the negligence of Mr. Garcia.  I am also satisfied that his pain and suffering has resulted in an impairment of his family life – a restriction of his household duties and a deterioration of his relationship with his wife and son.  I find that Mr. Pistruga suffered severe pain for about three months after the First Accident and for about four months after the shoulder surgery.  Mr. Pistruga has had and continues to have pain in his shoulder.  As a result of the First Accident and the operation that was necessary as a result of the injuries suffered in the First Accident, he continues to suffer and I find that he will continue to suffer emotionally from the injuries caused by the First Accident and that his symptoms can only be partially lessened by prescription and non-prescription medicine.  While medication appears to have eased his mood swings, I find that he remains suspicious and moody from time to time as well as being subject to panic attacks.

[101]     As a result of the First Accident and the necessary operation, Mr. Pistruga has seen an impairment of his recreational activities as well.  Regarding his physical situation, I accept the opinion of Dr. Vorobeychik that the prognosis is “guarded”.  Regarding the emotional health of Mr. Pistruga, I accept the opinion of Dr. Levin that the prognosis for full recovery relating to his chronic major depression disorder “remains guarded and he most likely will require ongoing maintenance psychopharmacological treatment”.

[102]     In the circumstances, I am satisfied that non-pecuniary damages of $110,000 should be awarded.

$60,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury

Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, assessing damages for a rotator cuff injury sustained in a motor vehicle collision.
In the recent decision (Antonishak v. Piebenga) the Plaintiff was injured in a 2008 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff sustained a right shoulder rotator cuff tendinopathy resulting in shoulder instability.

The Plaintiff symptoms lingered to the time of trial and had a “guarded prognosis” for further recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Wong provided the following reasons:
[3] As a result of the accident, Mr. Antonishak sustained the following injuries:  soft tissue strain to neck and arm, right shoulder rotator cuff tendinopathy, anterior and inferior instability of the right glenohumeral joint and right ulnar neuropathy. Mr. Antonishak was then 27 years of age. He is now 32 years. These injuries have affected his employment duties and also interfered with his active recreational pursuits and lifestyle. The plaintiff complains that since the accident he has continued to suffer from right shoulder and arm pain together with fatigue. At the time of the accident, the plaintiff was employed as a waiter at the Hotel Eldorado Restaurant in Kelowna. As a result of his injuries, he claimed he missed seven days from work and, on other occasions, ended his shifts early due to increased pain and fatigue from his injuries. He said there were also a number of employment tasks expected of him that he was unable to perform due to his injuries. The plaintiff also said his injuries continued to interfere with his employment and with his various extracurricular activities. These ongoing functional impairments and limitations cause him concern of what his future holds as it relates to his ability to pursue various careers and occupations…

[7] At trial, Mr. Antonishak projected as an energetic, ambitious, and engaging person. He is certainly not a malingerer nor a layabout. He has plans for a future in the restaurant/hospitality industry as an entrepreneurial owner. When not working, he also likes to engage in active recreational sport pursuits and extensive international travel. He has a natural curiosity about foreign cultures and environments. He enjoys his present occupation as a fine dining server, but encounters pain and fatigue if he overworks his right arm and shoulder. He has curtailed some, but not all of his active recreational activities for fear of aggravating his weakened right shoulder and arm.

[8] For the foreseeable future, Dr. Monteleone has suggested cautious monitoring of Mr. Antonishak’s condition with continued stretching and muscle strengthening program. If his present condition eventually becomes intolerable relative to his future career and lifestyle, then stabilizing shoulder surgery may need to be done. This would involve major surgery with potential six-month recovery time thereafter. In the meantime, the plaintiff lives with a weakened right-hand grip and chronic troubling pain and fatigue if he overtaxes himself in above-shoulder or extensive reaching or pulling activities.

[9] After four years of chronic troubling pain and fatigue with guarded prognosis of future improvement together with curtailed recreational activities, I fix this item of damage at $60,000.

$55,000 Non-Pecuniary Damages for Rotator Cuff Impingement Syndrome


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a rotator cuff injury caused by a motor vehicle collision.
In yesterday’s case (Lim v. Anderson) the Plaintiff was injured in a 2008 collision when the Defendant ran a red light.  Fault was admitted by the Defendant.  The Plaintiff suffered an impingement syndrome in her shoulder due to a rotator cuff injury caused by the crash.  She had some ongoing symptoms of pain and limitation at the time of trial.  In assessing non-pecuniary damages at $55,000 Madam Justice Fenlon provided the following reasons:
[7] There was a difference of opinion between Dr. Christian and the plaintiff’s treating orthopaedic surgeon, Dr. Yu, as to the cause of the plaintiff’s ongoing shoulder pain. Dr. Yu attributes it to calcific tendonitis caused by the soft tissue injuries. In his view, with the injury there was bruising and swelling or hemorrhage into the rotator cuff giving rise to pain or an abduction and impingement syndrome. In this condition the tendon is pinched between the under surface of the acromion and the humeral head, resulting in pain on movement…
[9] While it is not really necessary to choose between the opinions on causation, given the agreement on ongoing residual pain in the shoulder, I prefer Dr. Yu’s diagnosis…
[10] I accept his finding that the plaintiff’s response to an injection into the subacromial space of her right shoulder, (temporary relief from pain), confirmed his diagnosis…

[38] The biggest impact on Ms. Lim in terms of loss of enjoyment of life is her inability to cook using a wok, to do the vacuuming and heavy housework she used to do to keep her home in the meticulous order she enjoyed and to do her own gardening and yard work. Her co-workers describe a woman who is less cheerful than she used to be and is often sore and uncomfortable at work. She can no longer pour tea when they go for dim sum together, something she always did before the accident.

[39] There is medical evidence that suggests that the plaintiff’s soft tissue injuries may further improve with exercise over time, although the evidence supports a finding that her shoulders will not likely improve in future.

[40] Taking into account all of the Stapley factors, I find that an award of $55,000 for pain, suffering and loss of enjoyment of life is appropriate.

Damages Reduced by 30% for Preferring Naturopathic Remedies Over Surgery in Shoulder Injury Claim


Reasons for judgement were released today discussing two ares of interest in the context of an ICBC injury claim; the non-pecuniary value of a shoulder injury and “failure to mitigate” for following naturopathic remedies instead of recommended surgery.
In today’s case (Hauer v. Clendenning) the Plaintiff was injured in a 2006 BC vehicle collision.  The Plaintiff was a passenger in a vehicle involved in an intersection crash.  The crash was “significant, causing extensive damage to both vehicles“.   Fault was admitted by the Defendant focusing the trial on the value of the case.

  • Discussion of Non-Pecuniary Damages for Plaintiff’s Shoulder Injury

The Plaintiff suffered various soft tissue injuries which improved by the time of trial.  The Plaintiff’s most serious injury was a right shoulder injury which remained symptomatic by the time of trial.
The Court heard evidence from a number of expert physicians including orthopaedic surgeon Dr. Richardson who gave evidence that the Plaintiff has a rotator cuff injury to her right shoulder resulting in tendonitis and impingement.  Her prognosis for full recover was “guarded“.
Mr. Justice Slade assessed the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000.  In arriving at this figure the Court made the following findings and provided the following analysis:
[72] It is not a matter of contention among the medical experts that the plaintiff sustained soft tissue injuries in the August 6, 2006 accident.  These injuries were to the neck, shoulder, and back. ..
[75] The medical experts are all of the view that the plaintiff will benefit from injections in the shoulder area, that being the most problematic of the plaintiff’s injuries.  Dr. Aitken and Dr. Richardson say that she may benefit from arthroscopic surgery on the shoulder…

[78] I accept the evidence of the lay witnesses that the plaintiff was active and fully able to perform the physical demands of her employment before the accident, and after the accident, is no longer as active or able to perform to the pre-accident level.  The evidence of the plaintiff, the lay witnesses, and Dr. Richardson, establish a causal connection between the accident and the plaintiff’s ongoing shoulder pain, and establish, as fact, the contribution of injuries sustained in the accident to the present condition of her shoulder.

[79] The plaintiff’s shoulder pain has persisted, largely undiminished, from the time of the accident. ..

[82] I find that the accident is a significant contributing factor to her shoulder injury, and that the plaintiff has established causation on the “but for” test described in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333…

[85] Considering these authorities and the factors set out by Kirkpatrick J.A. in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46, 263 D.L.R. (4th) 19, leave to appeal ref’d [2006] S.C.C.A. No. 100, I award the plaintiff $50,000 in non-pecuniary damages.

  • Failure to Mitigate:

Further to my previous articles on the subject, it is well established that the Court can reduce a Plaintiff’s award in a personal injury claim if a Plaintiff unreasonably fails to follow medical advice where the medical would have likely improved the injuries.

In today’s case the Defendant argued that the Plaintiff failed to mitigate her damages by not having injections and/or surgery on her shoulder injury.  Mr. Justice Slade agreed with this submission and found that the Plaintiff failed to mitigate her damages by not following the advice of the orthopaedic surgeons and instead choosing naturopathic remedies.  The Court reduced the Plaintiff’s damages by 30% as a result.  Specifically Mr. Justice Slade held as follows:

[105] The defendant bears the burden of establishing that the plaintiff has failed to mitigate her loss, in this case that she failed to follow medical direction, and that had she followed that advice, she would have recovered further or faster: Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[106] The plaintiff prefers naturopathic remedies.  She was influenced by advice given by a friend on the effect of injections.  A physician advised her, informally, that she may not benefit from surgery.  On these bases, she declined to act on the recommendations of three well-qualified orthopaedic surgeons to take injections into the shoulder area, and to consider arthroscopic surgery.  Dr. Richardson puts the percentage chance of improvement from arthroscopic surgery at between 70-80%.

[107] There are, of course, risks associated with surgery, though these seem minimal.  If the plaintiff underwent surgery, there may be some losses during the recovery period.

[108] There will be a reduction of 30% of the amounts awarded for general damages, loss of income earning capacity, and cost of care due to the plaintiff’s failure to mitigate.

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If you would like further information or require assistance, please get in touch.

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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