$90,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in two collisions.

In today’s case (Niijar v. Hill) the Plaintiff was involved in two collisions, the first in 2010 the second in 2012.  The Defendants admitted fault for both.  As a result she suffered from chronic neck and back soft tissue injuries which lingered to the time of trial and were expected to continue into the future.  The Court assessed non-pecuniary damages at $90,000 but reduced this number by 15% finding the Plaintiff failed to mitigate her damages by following some of her physicians advice.  In reaching this assessment Madam Justice Baker provided the following reasons:

[147]     I conclude that Ms. Nijjar suffered soft tissue injuries to the muscles of her neck and back in both the first and the second accident.  The injuries caused by the second accident were more significant and Ms. Nijjar experienced more intensive pain and discomfort of longer duration following the second accident.  She also had pain on the left side of her face, jaw and some left arm pain caused by the inflation of the air bag on her left side and also reported some hip pain.  These complaints resolved within a short time.  Her most significant ongoing symptoms were pain in her neck and upper back; and in her lower back.

[148]     I conclude that Ms. Nijjar made a good recovery following the first accident, although she continued to experience mild symptoms of discomfort, aggravated by certain activities, up to the time of the second accident.   She did not miss work as a security guard after the first accident.  She did take time off from a job with Sears for a period of about two months and did not do any janitorial work for a period of about three months.  She was sufficiently recovered to travel to India three months after the accident and remained there for about two months.  On her return from India she resumed working as a security guard and doing janitorial work.  She attempted to return to the Sears job but was not re-hired.

[149]     Ms. Nijjar had more severe symptoms following the second accident and continued to be symptomatic at time of trial.  Dr. Hershler opined that she suffered soft tissue injuries involving both muscles and ligaments; and a right-sided small cervical disc protrusion caused by the accident that may be contributing to her symptoms; although this remains a matter of uncertainty.  Ms. Nijjar also continues to experience periodic headache which Dr. Hershler believes is cervicogenic.

[150]     The symptoms Ms. Nijjar experienced were not severe enough to cause her to seek relief from prescription medications for more than a couple of months following the May 23, 2012 accident and at times she has not required the use of even non-prescription medication to manage her symptoms.

[151]     I accept that Ms. Nijjar continued to experience neck and lower back pain at time of trial.  Although I have concluded that she exaggerated the severity of her symptoms when testifying at trial, I accept that she continues to have symptoms from time to time.  I accept that she will continue to experience symptoms in future, although I accept Dr. Arthur’s opinion that there will be further improvement with the passage of time; and that the symptoms will also lessen if Ms. Nijjar engages in a regular exercise program designed to improve her back and core body strength.  I conclude that the symptoms in future will generally be mild and episodic and that Ms. Nijjar will be able to alleviate most or all of the symptoms with use of non-prescription analgesic medications…

[194]     Having considered all of the evidence and the range of damages suggested by these authorities, I conclude that an award of $90,000, before deduction for a failure to mitigate, is warranted.  I reduce that award by 15% for the failure to mitigate, and award the sum of $76,500. 

Arbitration Clause Derails CFL Concussion Lawsuit

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a CFL concussion lawsuit on the basis of wording in the league and player’s collective bargaining agreement.

In today’s case (Bruce v. Cohon) the Plaintiff, who played professional football with the CFL from 2001 – 2014, sued the league and its individual teams alleging that his career led to multiple concussions and sub-concussive injuries and he was negligently allowed to continue playing while displaying these symptoms.

The Defendants argued the Court had no jurisdiction to resolve the dispute as the league’s collective bargaining agreement required the complained to be dealt with via private arbitration.  In siding with the CFL and dismissing the lawsuit Mr. Justice Hinkson provided the following reasons:

[86]        Ultimately, the 2014 Collective Agreement allows for effective redress for any workplace injuries that Mr. Bruce may have sustained and thus is consistent with the policies of the Workers Compensation Board.

[87]        It is clear that at the time that he filed his notice of civil claim in these proceedings, Mr. Bruce, as a former player, could have filed a grievance under the 2014 Collective Agreement for compensation arising from the injuries for which he seeks compensation and based upon the duties he asserts in these proceedings.

[88]        He is still arguably eligible to file a grievance, although he would apparently require a ruling from an arbitrator to do so, as grievances under the 2014 Collective Agreement must be initiated within one year from the latter of the date of occurrence or non-occurrence upon which the grievance is based, or within one year from the date upon which the facts of the matter became known or reasonably should have been known to him.

[89]        There are no monetary limits to the compensation that a player can seek pursuant to the 2014 Collective Agreement.

[90]        Even if Mr. Bruce is not now permitted an extension of time to file a grievance, I accept the view of Mr. Justice Oland in Gillian at para. 46 that:

[46]      As stated in St. Anne Nackawic at p. 729 and in Weber at para. 54 and para. 57, the courts possess limited residual jurisdiction in certain situations involving labour relations. In this situation, where the appellant could have sought effective remedies under the Collective Agreement, there is no need for the exercise of that residual jurisdiction.

[Emphasis added.]

[91]        As Mr. Justice Joyce stated in Moznik v. Richmond (City), 2006 BCSC 1848 at para. 81:

The question is not whether the plaintiff can obtain the precise remedy she seeks through the court; it is whether she can obtain effective redress of the alleged harm through the mandatory arbitration provisions of the collective agreement and the Code.

[92]        I therefore find that Mr. Bruce was entitled to seek compensation by way of grievance and arbitration under the 2014 Collective Agreement for the matters raised in his notice of civil claim in these proceedings and had he done so, could have obtained a meaningful remedy for those complaints.

[93]        I find that the disputes raised by Mr. Bruce arise from the 2014 Collective Agreement and can only be resolved through the grievance and arbitration process.

[94]        In the result, I find that this Court lacks the jurisdiction to entertain Mr. Bruce’s claim and order that his notice of civil claim be struck in its entirety.

$30,000 Non-Pecuniary Assessment for Aggravation of Chronic Pain

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of a long standing chronic pain disorder.

In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.  In assessing non-pecuniary damages at $30,000 Mr. Justice Bowden provided the following reasons:

[52]        I am not prepared to attach much weight to the plaintiff’s description of the change in his condition following the 2011 accident without corroboration from someone other than Ms. Ben-Yosef and their son.

[53]        The evidence shows that the majority of the symptoms that the plaintiff attributes to injuries from the 2011 accident probably were present before that accident. The expert evidence is that the plaintiff was suffering from chronic pain syndrome before the 2011 accident. It appears that he was taking anti-inflammatory drugs before that accident as well as medication for hypertension and pain.

[54]        The 2011 accident was not significant. While the plaintiff was knocked down in a cross walk, he described the event to his family doctor as being “bumped”. He said that he got up, exchanged information with the defendant and then continued on his way to do some shopping before going home.

[55]        Nevertheless, I accept that the plaintiff suffered some soft tissue injuries to his lower back and left hip and that the 2011 accident caused some aggravation to his pre-existing chronic pain…

[60]        While I accept that the plaintiff’s pre-existing condition was somewhat aggravated by the 2011 accident, he had developed chronic pain syndrome before that accident presumably following his injuries in the 1998 accident. Some of his continuing symptoms also appear to be related to the degeneration which has occurred in his spine which is unrelated to the 2011 accident.

[61]        It is difficult to differentiate the impact of the 1998 accident and the 2011 accident on the plaintiff’s quality and enjoyment of life. It appears that the 1998 accident left him unable to work, caused him intermittent pain that ultimately became chronic and limited his activities. The 2011 accident aggravated his condition somewhat but the degree of aggravation cannot be determined with any certainty.

[62]        I have concluded that in the circumstances of this case and considering the factors in Athey, an award of $30,000 is appropriate.

$60,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Adding to this site’s archived soft tissue injury database, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, assessing non-pecuniary damages of $60,000 for lingering upper body soft tissue injuries.

In this week’s case (Olson v. Yelland) the plaintiff was involved in a 2012 rear end collision.  The Defendant admitted fault.  The Plaintiff sustained soft tissue injuries to her neck, mid back and shoulders which continued to pose problems at the time of trial.  In assessing non-pecuniary damages at $60,000 Mr. Justice Weatherill provided the following reasons:

[117]     On the whole of the evidence, I accept that the plaintiff received soft tissue injuries to her neck, trapezius muscles and mid-back and headaches that continue to negatively affect her function to some degree.

[118]     I find that her pre-Accident lower back and left knee conditions would have significantly affected her ability to function at home and at work in any event of the Accident.

[119]     I find that prior to the Accident and in any event of the Accident, her competitive employability and ability to perform homemaking tasks had already been significantly compromised. The soft tissue injuries she received from the Accident were superimposed on her Original Position and made it more difficult for her to manage her day-to-day activities.

[120]     I find that the plaintiff has made significant recovery from the effects of the Accident within the past three years, but has been left with ongoing neck, mid-back, trapezius pain and related headaches.

[121]     The injuries the plaintiff is left with, and that I accept, are soft tissue injuries to her neck, mid-back and trapezius muscles. They have caused increased frequency and intensity of headaches.

[122]     I accept that these issues continue to affect her, and likely will continue for two to three more years. However, I find that the Accident related injuries pale in comparison to the unrelated issues she has with her low back and left knee…

[132]     In the circumstances, and following the principles set out in Stapley, I find that a reasonable award for general damages is $60,000. As will be seen below, within this sum I have included the plaintiff’s claim for reduced homemaking abilities.

Defence Expert Criticized for Becoming “an Advocate for the Defence”

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Kamloops Registry with critical comments about an expert witness.

In today’s case (Odian v. Carriere) the Plaintiff sustained a chronic neck injury as a result of a collision.  Her symptoms impacted her vocational functioning.  In the course of the lawsuit the Defendant had the Plaintiff assessed by an occupational therapist who conducted a functional capacity evaluation and provided the Court with opinion evidence expressing optimism that a kinesiology program “will likely improve” the Plaintiff’s condition.  In criticizing this opinion as “not well based” and expressing concern that the opinion strayed into prohibited advocacy Mr. Justice Dley provided the following comments

[48]         Ms. Phillips’ optimism that the new kinesiology program will likely improve Ms. Odian’s condition is not well based. There is no history or details that would justify her opinion. Ms. Phillips’ initial opinion as set out above was far less certain than what she said at trial.

[49]         I am concerned about the objectivity of Ms. Phillips’ opinion.

[50]         Ms. Phillips’ testimony was challenged particularly in light of a rebuttal report she had prepared. During her cross examination, Ms. Phillips was at times evasive and non-responsive. The tenor of the rebuttal report, coupled with her testimony and demeanor in court, was indicative of a witness who had become an advocate for the defence.

[51]         Putting Ms. Phillips in the most favourable light to the defence, the best that can be said about her opinion is that Ms. Odian may receive some benefit from new programs, but they will not cure her symptoms. Ms. Odian will still have discomfort.

[52]         I prefer the opinions of the medical experts who agree that Ms. Odian’s condition is chronic. Dr. Robinson summarized it best:

The treatment of chronic headache related to head and neck trauma is usually difficult. Research is limited despite the frequency and burden of these injuries to individuals and society. As yet there is no physical therapy that has been found to be curative. At most patients will experience temporary benefit and on occasion the headaches may be more severe following such therapy. I do not believe that there is any further advice to be given other than to maintain an active lifestyle. Regular exercise directed to improving general fitness may increase the sense of well-being and ability to cope with pain.

Dr. Robinson: February 13, 2015 at page 8.

[53]         Dr. Robinson’s opinion is consistent with the views of Drs. Laidlow and Hirsch.

[54]         I also accept the evidence of Ms. Odian. She was truthful and reliable with respect to her injuries and the ongoing symptoms.

$110,000 Non-Pecuniary Assessment For Chronic C5/6 Disc Herniation

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.

In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision.  The Defendant admitted fault.  The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman.  In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:

[30]         The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.

[31]         Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.

[32]         Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.

[33]         Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…

[35]         It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…

[44]         The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.

[45]         Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.

[46]         Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.

[47]         An appropriate award for non-pecuniary damages in this case is $110,000.

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