Tag: tibial-plateau fracture

$130,000 Non-Pecuniary Assessment For Complex Pelvic and Knee Fractures

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing damages for a complex pelvic and knee fracture.
In this week’s case (Farand v. Seidel) the Plaintiff was struck by the Defendant’s vehicle while she was crossing a street in a marked pedestrian crosswalk.  Although the Defendant disputed liability he was found fully liable for the collision.
The Plaintiff suffered a tibial plateau fracture along with complicated pelvic injuries.  The Plaintiff was left with long term complications which affected her ability to work full time hours on a consistent basis.  In assessing non-pecuniary damages at $130,000 Mr. Justice Savage provided the following reasons:
[46]         Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the road surface in front of Mr. Seidel’s truck. She was not run over by the truck. Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby called 9-11.
[47]         Ms. Farand was taken to the hospital by ambulance. Imaging at the hospital showed a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. Open reduction and internal fixation of the right tibial plateau fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six metal screws. The pelvis fractures were treated conservatively.
[48]         Ms. Farand was hospitalized for 12 days. She was released from hospital, moving with the aid of a wheel chair. She was also provided with crutches. By December 2009 she used crutches without the wheel chair. She was anxious to return to work and worked a few partial days in November and December 2009, although she was able to do this work from home. She was put on a gradual return to work program. Her timesheets indicate the hours she worked.
[49]         Ms. Farand suffered and continues to suffer from ongoing neck and back pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints as well as injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine. These injuries result in chronic pain, which interferes with activities of daily living and is aggravated by her favouring her right leg.
[50]         Ms. Farand has undergone various treatments, including physiotherapy and massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail opines that she is at greater risk for developing osteoarthritis in the right knee and will likely need knee replacement surgery in 15-20 years. He is uncertain whether she has meniscal tear or detached meniscus, which cannot be identified by doing an MRI but could be diagnosed with arthroscopic surgery. If she has these problems with her meniscus, then those time frames may be accelerated…
[76]         In my opinion the appropriate award for non-pecuniary damages in this case is $130,000, which award I so make.
 

UMP Arbitration Caselaw Summary: Non-Pecuniary Damages for Tibial Plateau Fracture

As previously discussed, when catastrophic injuries are sustained through the fault of an under-insured motorist most British Columbians enjoy Underinsured Motorist Protection “UMP”.
Sections 148.1 – 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims.  When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit.   The law requires all UMP decisions from 2007 onward to be published on ICBC’s website.  These cases, unfortunately, are published in PDF Format and they are not search friendly.  To remedy this I’ve decided to include UMP case summaries on this blog.  With that in mind here is the first in a series of UMP cases summaries.
The first UMP judgement published was RAH v. ICBC.  In RAH the Claimant was injured in a 2002 motor vehicle collision.   Fault was admitted.  It was agreed that the value of the claim would exceed the Defendant’s insurance limits and the parties agreed to have the value of the claim adjudicated by way of UMP Arbitration.

The Claimant suffered a comminuted fracture of the left medial and tibial plateaus.  These required surgical correction.   Unfortunately, even with surgical correction, the injury was so severe that the Claimant was left with “a marked disruption of the articular surface which accounted for on-going pain and inability to regain full movement of the left knee“.   The prognosis was for gradual worsening with a likelihood of a total knee replacement.   It was accepted that this injury would seriously impede the Claimant’s ability to earn a living and total damages of $681,000 were awarded.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 the arbitrator (Donald Yule) provided the following reasons:
The Claimant sustained severely comminuted medial and lateral tibial plateau fractures of the left knee.  He has undergone two surgeries, one to reduce the fractures with two plates and 10 screws and a second procedure to remove the hardware.  He faces the prospect of further surgery for a total knee joint replacement with a possible further revision 15 years later.  He has permanent on-going pain which will inevitably worsen over time until the first knee joint replacement surgery is done.  He has permanent loss of flexion of the left knee and knee joint replacement surgery will likely increase the loss of flexion.   He cannot return to his former occupation as industrial nurse/medic.  He cannot walk or sit for prolonged periods of time without causing an increase in left knee pain.   He takes non-morphine analgesics on a daily basis and occasionally Percocet for break-through pain.   He continues to use a cane.  Prolonged standing, walking on uneven surfaces, and going up and down stairs all aggravate his symptoms and will hasten the time when knee joint replacement surgery is required.  The claimant was physically active outdoors, apart from his work, before the Accident, both in the Scouting and Fourth Ranger groups and for recreational hiking, hunting, fishing and camping.  These activities except in a most limited and superficial manner, are now foreclosed to him…
…I assess the non-pecuniary damages at $95,000.
I should point out that this case was decided in 2008 and adjusting for inflation the assessment would be approximately $100,000.

$155,000 Non-Pecuniary Damages Agreement for Serious Knee Injury


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing compensation for a serious knee injury following a motor vehicle collision.
In last week’s case (Stevanovic v. Petrovic) the Plaintiff was struck by a vehicle driven by the Defendant.  The Plaintiff was standing in the middle of a residential road when the Defendant approached in his vehicle.  The Plaintiff was friends with the Defendant and was expecting the Defendant to pick him up.  The Defendant attempted to show off and drive his vehicle dangerously close to the Plaintiff.  He miscalculated and struck the Plaintiff causing injury.  The Defendant denied fault but Mr. Justice Sigurdson found him entirely liable for the collision.
The parties were able to agree on several heads of damages including the claim for non-pecuniary loss (pain and suffering and loss of enjoyment of life).   The balance of the trial focused on the Plaintiff’s damages for cost of future care and diminished earning capacity.
The parties settled the value of the pain and suffering claim at $155,000.   Since the issue was privately settled this case is not a true ‘precedent‘.  Despite this I thought this case would be worth summarizing given the relatively few precedents dealing with unique and complex knee injuries.  The Court made the following findings with respect to the severity and extent of the Plaintiff’s physical injury:

[88]         The purpose of the review of the injuries that the plaintiff suffered is not to revisit the issue of non-pecuniary damages, which was agreed, but for the purpose of the assessment of his loss of earning capacity and cost of future care.

[89]         The injuries suffered by the plaintiff were summarized by Dr. Anton, a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation with a residual osteocondral defect in the articular (joint) surface of the patella;

(b)        an impacted fracture of the lateral femoral condyle;

(c)        evulsion of the anterior cruciatr ligament from the tibial spine;

(d)        a lateral tibial-plateau fracture, and

(e)        a bucket handle tear in the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right leg;

4.         an injury to the left shoulder involving the supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue injuries including a probable soft tissue injury to the cervical spine.

[91]         The plaintiff’s most serious physical injury was the damage to his right knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert, which surgery was successfully completed.  In more recent times, the plaintiff has developed and has complained of hip pain.

[92]         The knee injury was described by the doctors as serious and complex, and is significant for the loss of earning capacity claim, because it affects and continues to affect his ability to bend his knee, go up or down stairs, or crouch, squat, kneel, or run without pain.  As a result of his knee injury, notwithstanding the successful surgeries, it is now apparent, with his knee pain, and difficulty crouching and bending, that he would not be able to continue employment as a copier repair person, which was what he had done at RISO before the accident.

[93] I find that the plaintiff continues to suffer from pain to his knee and that further surgical options are limited until much later.  A total knee replacement at a much later age appears to be the only possible surgical solution to deal with ongoing pain and discomfort.

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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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