Tag: SI Joint Injury

$40,000 Non-Pecuniary Damages for "Mild" Sacroiliac Joint Injury


Reasons for judgment were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for a long-standing sacroiliac joint injury.
In last week’s case (Madsen v. Bekker) the Plaintiff was injured in a 2006 collision.  He suffered various injuries the most serious of which was a strain to his sacroiliac joint.  His symptoms largely recovered although mildly continued through trial and were expected to linger into the future.  In assessing non-pecuniary damages at $40,000 Mr. Justice Truscott provided the following reasons for judgement:

154] I accept the opinion of Dr. McGraw that the plaintiff sustained a strain of his left sacroiliac joint and I reject the opinion of Dr. Watt that it was rather a soft tissue injury to his left iliopsoas muscle and his left piriformis muscle.

[155] Dr. Watt may not have diagnosed a sacroiliac joint strain but he was not prepared to disagree with Dr. McGraw’s diagnosis of that.

[156] Dr. McGraw proved his diagnosis through the image-guided diagnostic block of the joint on March 3, 2009 and October 22, 2009.

[157] In his report of July 24, 2008 Dr. McGraw diagnosed grade 1 soft tissue injury to the lower back area and Dr. Watt in his report of February 9, 2011 also described complaints of non-radiating low back pain at the time of his assessment of January 17, 2011. To that extent the diagnosis of both doctors is similar…

[159] I am prepared to accept some present minor low back injury related to a strain of the left sacroiliac joint causing mild pain at times of prolonged lifting, bending or crouching but I also do not consider that this pain has been disabling to any of the plaintiff’s activities at all…

[163] Although Dr. McGraw says that consideration could be given to a surgical fusion or arthrodesis of the left sacroiliac joint if the joint pain is not managed in the long-term by conservative treatments such as injections, or doing nothing and becoming fit, he does not recommend surgical intervention.

[164] With this opinion of Dr. McGraw that I accept I do not consider the chance of surgical intervention to be at any level sufficient for an award of compensation.

[165] I am satisfied from all the evidence that the plaintiff’s effort to become more fit through his own exercise routines is working sufficiently to resolve the strain in his left sacroiliac joint and any related low back soft tissue injury.

[166] I decline to apply any adverse inference against the plaintiff for failing to call Dr. Feldman, a physiatrist who attended on him. The plaintiff says he was simply told, as Dr. Parkin had told him, to rest. Even if I were to apply any adverse inference I would not know what that inference would be other than the opinion would be no different than all the evidence I have heard.

[167] I am prepared to accept that the plaintiff’s complaints have continued for over four years, but at a mild level, and I consider an appropriate award of non-pecuniary damages for pain and suffering and loss of enjoyment of life should be in the amount of $40,000.

For other recent BC Caselaw dealing with non-pecuniary damages for sacroiliac joint injuries you can click here to access my archived posts.

1/3 Damage Reduction For Plaintiff's "Failure to Mitigate"


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s damages following a motor vehicle collision for failure to follow medical advice.
In this week’s case (Hsu v. Williams) the Plaintiff was injured in a 2007 rear-end collision.  The Plaintiff suffered from chronic pre-existing pain.  The Court accepted that the collision aggravated this condition and further that the collision caused a sacroiliac joint injury.   Mr. Justice Savage assessed the Plaintiff’s non-pecuniary damages at $30,000 then reduced this award by 1/3 for the Plaintiff’s ‘failure to mitigate’.  In doing so the Court provided the following reasons:

[42] In Graham v. Rogers, 2001 BCCA 432 (application for leave to appeal dismissed, [2001] S.C.C.A. No. 467), Rowles J.A.(Huddart J.A. concurring) said at para. 35:

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.  Red Deer College v. Michaels(1975), [1976] 2 S.C.R. 324 at 331, 57 D.L.R. (3d) 386 at 390, and Asamera Oil Corp. v. Sea Oil & General Corp. (1978), [1979] 1 S.C.R. 633, 89 D.L.R. (3d) 1, provide support for that proposition.  In this case, the appellant argues that the respondent did not meet the onus of proof by showing or establishing that the appellant could reasonably have avoided his income or employment losses.

[43] In his very thorough report, Dr. Armstrong gave treatment recommendations.  Although he applied a caveat, that “my remarks are my opinions and should not be understood as directives for the provisions of Ms. Hsu’s care” as that would be “at the discretion of her treating physicians and other care providers”, his report is the only medical opinion before the court.  Those recommendations included (1) a focused and carefully supervised program of rehabilitative exercise aimed at correcting her sacroiliac joint problem; (2) minimizing passive therapies; (3) supervised stretching and posture improvement under the guidance of a physiotherapist; (4) a progressive program of exercise under the supervision of a physiotherapist to strengthen her core muscles; (5) counselling sessions with a clinical psychologist familiar with chronic pain management; (6) a progressive walking program; and (7) time off work to pursue rehabilitation.

[44] The plaintiff has largely not followed these recommendations.  There is no evidence, for example, that she embarked on a supervised program of rehabilitative exercise, counselling sessions, or has worked on stretching and posture improvement under a professional’s guidance.  She did not embark on a progressive program to strengthen core muscles.  There is no evidence that she has sought out a clinical psychologist to assist her in chronic pain management.  Hsu did not take time off work to pursue rehabilitation.  Hsu also continued with, and seeks compensation for, continuing passive therapies.

[45] For example, Hsu claims as special damages acupuncture treatments covering a period from March 2007 to June 5, 2011 ($1,050); massage therapy treatments from 2008-2010 ($1,419); massage treatments in Taiwan ($13,150); massage treatments and a one year gym pass paid for in 2010 ($1,800); acupressure and acupuncture treatments in 2011 ($670.24); undescribed “rehabilitation treatments” ($760); and various prescription medications ($194.72).

[46] Dr. Armstrong’s report was introduced in evidence by the plaintiff.  Although Dr. Armstrong says that the opinions are not directives for future care, and that future care should be at the discretion of her treating physicians and other care providers, there are no opinions of those treating physicians or care providers in evidence.  So there is no evidence that those treatment recommendations should not have been carried out.

[47] The importance of carrying out those recommendations is significant.  Dr. Armstrong opined that the longer chronic sacroiliac joint dysfunction persists, the less favourable is the chance for significant improvement.  Although his prognosis if the recommendations were carried out was guarded, in my view the plaintiff should have undertaken the recommendations by the witness she called to give evidence.  In the circumstances, the plaintiff has failed to mitigate her damages.  I would reduce the general damages award by one-third to account for this factor.

For more recent BC case summaries addressing failure to mitigate you can click here to access my archived posts and here for more recent case summaries addressing pain and suffering awards for sacroiliac joint injuries.

$60,000 Non-Pecuniary Damage Assessment for SI Joint Ligament Injury


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic Sacroiliac Joint Ligament Injury as a result of two motor vehicle collisions.
In today’s case (Keenan v. Fletcher) the Plaintiff was involved in 4 separate collisions.  She sued for damages and all four claims were heard together.  The Court found that the Plaintiff suffered no injuries in the first two crashes and dismissed those lawsuits.
The Court did, however, find that the Plaintiff suffered injuries in the third and fourth collision, most notably a chronic ligamentous injury to the right sacroiliac joint.  Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $60,000 although this assessment was then reduced by 20% to take into account various other factors which contributed to the Plaintiff’s difficulties.  In assessing damages Mr. Justice Gaul provided the following reasons:

[98] Under the heading “Diagnosis”, Dr. Hershler opined:

The history and physical findings are consistent with an injury to the right sacroiliac joint. The injury is probably primarily ligamentous, however there is evidence of mechanical malalignment and increased tightness and tenderness in the right paraspinal, as well as increased tightness in the right leg secondary to this injury….

[119] The injuries to Ms. Keenan’s neck and shoulder have resolved themselves to a considerable degree. To a lesser extent, the injury to Ms. Keenan’s lower back has also improved. I find that the improvement in Ms. Keenan’s physical condition is directly attributable to her intense drive and will to get better. I also find that it was though this sheer determination that Ms. Keenan has been able to manage and limit the impact of these injuries on her life.

[120] Given the passage of time since the injuries developed and the fact that Ms. Keenan continues to experience low level pain and discomfort in her back on a reasonably regular basis and the occasional episode of intense pain, I am persuaded the injury to Ms. Keenan’s back is the key and principal injury that has resulted from MVA #3 and MVA #4. As I have noted, Ms. Keenan is a determined person and I have no doubt that her strength of character has been and will continue to be one of the reasons why she manages so well in spite of the discomfort she experiences in her back.

[121] In my opinion, the evidence supports the conclusion that Ms. Keenan will most likely experience the occasional severe flare-up of her back pain which will likely have a negative impact upon her ability to perform her police duties, including voluntary overtime….

[148] I am satisfied that this pain has on occasion had a reasonably pronounced impact upon Ms. Keenan’s ability to enjoy all facets of her life. In the period of time immediately after MVA #4, the pain was practically constant and debilitating. Over time the pain has become more tolerable and manageable. The medical evidence points to the fact that this back pain has decreased with the passage of time; however, there is a real possibility that it will continue to flare-up and cause Ms. Keenan significant difficulties for her at work as well as at home…

[151] I am satisfied that an award of $60,000 appropriately compensates Ms. Keenan for the non-pecuniary damages she has suffered as a result of MVA #3 and MVA #4. Applying the 20% discount for the contingencies I have previously noted, I award Ms. Keenan $48,000 for her non -pecuniary damages.

$50,000 Non-Pecuniary Damage Assessment for Sacroiliac Joint Injury


Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Sacroiliac Joint injury following a motor vehicle collision.
In today’s case (Day v. Nicolau) the Plaintiff was injured in two separate collisions.  Fault for the crashes was admitted.  She suffered various soft tissue injuries the most serious of which was a sacroiliac joint injury.  By the time of trial her symptoms of pain persisted and were not expected to have further meaningful improvement.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Wong provided the following reasons:

[34] From the evidence Ms. Day sustained a soft tissue injury in the two motor vehicle accidents.  She has not maintained the exercise and core strengthening regimen recommended by her treating doctors.  Without proper back care, the potential for flare ups and complications exist.

[35] It is unclear what state of recovery function Ms. Day could have obtained with proper back care and exercise.  All doctors indicate in their reports the importance of back care exercise.  Though their prognosis is guarded they seem to imply that with proper care there is still potential for return to functionality with only intermittent flare ups. ..

[46] Ms. Day is a 28 year old woman who has a chronic injury to her lower back and related sacroiliac joint injury and a less serious lasting injury to her neck and right shoulder.  She has experienced pain, discomfort and some limitations to enjoyment of her previous active life for almost five years and her future condition is guarded.

[47] I fix the non-pecuniary award at $50,000.

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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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