TMJ Muscular Injury and ICBC claims

In reasons for judgement released today the Honourable Mr. Justice Meiklem of the BC Supreme Court awarded a Plaintiff $25,000 for non-pecuniary damages (pain and suffering) as a result of a 2004 BC car accident.
The Plaintiff was 15 years old by the time of trial. He was born with cerebral palsy and is confined to a wheelchair because of that condition.
In 2004 he was in an accident when his mother’s van was struck on the driver’s side by another vehicle in an intersection crash. Liability (fault) was admitted on behalf of the other driver.
The Plaintiff testified that the impact caused his body to move to the left with his head hitting the window and his left leg and hip hitting the inside of the door of the van. He was injured in this crash.
The court heard expert medical evidence from 2 physiatrists (specialists in physical medicine and rehabilitation). While one physiatrist testified on behalf of the Plaintiff and the other on behalf of the defendant, both had largely similar opinions.
After an 18-A trial (a summary trial where witnesses do not testify orally in court, rather evidence is given by way of affidavit’s and medico-legal reports) the court concluded that “both specialists agree that the plaintiff suffered soft tissue injuries to the muscles of the jaw area and the neck and shoulders, and that recovery has been protracted because of his cerebral palsy conditionI find that while the plaintiff has not yet fully recovered from his soft tissue injuries sustained in the accident, because his recovery has been prolonged by his pre-existing cerebral palsy condition, he has suffered no permanent injury or disability, and suffered no period of total disability‘.
In addition to the $25,000 for pain and suffering the court awarded just over $4,000 for special damages (out of pocket expenses as a result of the defendant’s wrong-doing) largely comprising of massage therapy expenses, medications and transportation costs.
I have previously blogged that one of the best ways to get a sense of the pain and suffering value of an ICBC claim is to review BC cases with similar injuries. This case is worthwhile because , while there are many ICBC cases with temporomandibular joint injuries (TMJ injuries), this case involves something slightly less serious. Here the Plaintiff suffered injuries to the ‘major muscles overlying the temporomandibular joints’ as opposed to injury to the actual joint. This case sets a precedent worth reviewing for anyone suffering a similar muscular injury around the TMJ’s in an ICBC claim.

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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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