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Civil law — Soft tissue injury claim.
Plaintiff's vehicle struck from behind. He developed
headaches and pain in left shoulder and neck area.
Treated by family doctor with medication and
physiotherapy over a number of months. Headaches
subsided within a couple of months but pain in neck
and shoulder persisted. Plaintiff had medical
condition restricting use of his right arm. Retired
from occupation as a result of that condition.
Plaintiff claimed damages for pain and suffering and
loss of housekeeping capacity. Defendants contested
causation.
Issue: Did collision with defendants vehicle cause
injury to the plaintiff, and if so, what are his
damages.
Result: Injuries caused by rear-end
collision. Damages for pain and suffering set at
$30,000.00 considering plaintiff's pre-existing
medical condition. Claim for loss of housekeeping
capacity dismissed.
Counsel:
Jamie MacGillivray, for the plaintiff.
John E. MacDonell and Tricia Avery, for the
defendants.
1 MacLELLAN J.:— The plaintiff Mr. P claims
damages against the defendants Roger Allan Irving
and Joy Marie Gower for personal injuries as a
result of a motor vehicle accident on July 19, 2000
in New Glasgow, Nova Scotia.
2 Up to the time of trial, the defendants
contested the issue of negligence, but during the
trial, counsel for the defendants conceded that the
defendant driver, Roger Irving, was negligent and
therefore caused the rear-end collision with the
plaintiff's vehicle. Counsel, however, took the
position that the plaintiff had not suffered any
damages as a result of that collision.
FACTS
3 The plaintiff is 59 years old. He was
driving his 1989 S10 truck on Archimedes Street in
New Glasgow at around 12:45 p.m. on July 19, 2000.
He was using his seat belt and was stopped in
traffic. His truck was struck from behind by a car
driven by the defendant, Roger Irving, and owned by
the defendant Joy Marie Gower. The impact from
behind caused the plaintiff's vehicle to move
forward and his head went backwards. His truck did
not have head rests. The back bumper of his truck
was damaged along with a trailer-hitch installed on
the vehicle.
4 Following the accident, the plaintiff was
able to continue on his way and later after talking
to his insurance company agent was advised that he
should go to the hospital to be checked out. At that
point he had no symptoms of injury. He was seen at
Outpatient's at the Aberdeen Hospital in New Glasgow
and told that he should go to see his family doctor,
Dr. Spencer Barclay. He did that on July 24, 2000
and complained to the doctor of pain in his neck
area and across his shoulders. He was prescribed
Vioxx an anti-inflammatory and was referred to
physiotherapy. He saw Dr. Barclay again in August
and was at that time complaining of headaches along
with neck pain. In September when he again saw Dr.
Barclay his pain was more localized to his left neck
area.
5 Dr. Barclay described the plaintiff's
complaints as typical of what he sees for that kind
of accident. He continued him on Vioxx and continued
the physiotherapy.
6 Alvin Straub is a physiotherapist. He
treated the plaintiff both before and after the
accident. He saw him on July 25th, 2000 on referral
from Dr. Barclay. He testified that the plaintiff
was complaining of discomfort and stiffness in his
neck. He treated the plaintiff during the summer and
fall of 2000. In January 2001, he concluded the
physiotherapy and reported that the plaintiff had 80
percent of normal range of motion in his neck and
left arm and shoulder. That represented about a 10
to 15 percent increase in his range of motion from
July 2000.
7 The plaintiff came back for more
physiotherapy in June 2001 based on a recommendation
from Dr. Thomas Loane whom he had seen in May 2001.
He was discharged from physio in August 2001.
8 In October 2002 Mr. Straub did a functional
abilities evaluation on the plaintiff at the request
of one of the insurance companies involved in his
case. That was to establish an appropriate treatment
regime for the plaintiff and in particular if he
should have massage therapy. Mr. Straubs' report is
in evidence before the Court.
9 The plaintiff testified that he had worked
for many years as a conductor with Canadian National
Railways. He started working for CN in 1966 when he
was 21 years old. He retired from that job in 1995.
His retirement was because of a medical condition he
had which was right arm focal dystonia. It caused
him to lose function in his right arm. That
condition was first treated in 1989 by Dr. David
King, a specialist, and continued to cause him
problems until finally in 1995 resulted in him
taking early retirement. He arranged for a severance
package which provided benefits until he became
eligible for his normal pension.
10 As a result of his right arm dystonia the
plaintiff also had problems with his right shoulder.
He was referred by Dr. Barclay to Alvin Straub for
physio in October 1998. Mr. Straub reported to Dr.
Barclay in November 1998 that:
On examination, he had a slight restriction
of his cervical spine range of motion,
particularly in right side bending. His
upper extremity strength was full, but the
range of motion was restricted slightly at
the end range of abduction and flexion of
the right shoulder. The cervical spine was
restricted slightly with passive
intervertebral movement testing. There was
hypomobility noted at the lower levels.
Cervical spine compression and distraction
tests were both slightly uncomfortable.
Palpation over the superior shoulder and
right lateral neck regions were moderately
tender with palpation. |
11 He went back to physio in May 1999 and Mr.
Straub wrote to Dr. Barclay:
The following note is an update regarding
Mr. Donald Mr. P. Mr. P is a 55 year old
male who was seen previously for right neck
and shoulder discomfort secondary to
dystopia. Mr. P returned to physiotherapy as
of April 13th, 1999, with similar symptoms.
Since he had previous success, he was hoping
to have the same form of treatment.
Assessing Mr. P, he had restricted neck
range of motion and discomfort with movement
of his right shoulder. We utilized moist
heat, gentle stretching and range of motion
exercises, as well as ultrasound and
acupuncture.
Mr. P showed excellent recovery again and
was discharged in early May. |
12 In January 2000, Mr. Straub reported
further that:
He had restricted cervical spine range of
motion and slightly restricted right upper
extremity range of motion, but his strength
was within normal limits. There was
hypomobility noted with passive movements of
the cervical spine joints. Palpation
elicited discomfort over the right upper
trapezius and para-cervical muscle groups.
It was my impression that he had discomfort
secondary to his dystopia as well as
muscular irritation in the deltoid and
rotator cuff muscles.
His physiotherapy plan has incorporated pain
relief modalities as were previously
successful, ultrasound and acupuncture as
well as moist heat and range of motion
exercises as well. He showed improvements as
of the last one to two weeks. |
13 In addition to the pre-existing dystopia
problem the plaintiff also had a problem with his
right knee. He had been injured in the 1960's
causing a fracture of the patella which resulted in
a patellectomy. This results in him walking with a
antalgic gait favouring his right knee. [See Exhibit
2, Tab 20, p. 19]. He also developed osteoarthritis
of the right knee and he indicated that he has
recently been scheduled for a total knee
replacement.
14 The plaintiff claims general damages for
his neck and shoulder injury and also for loss of
housekeeping capacity.
15 The defendants argue that the plaintiff's
neck and shoulder problems were not caused by the
collision with the defendant's vehicle and
alternatively if they were that the plaintiff is
exaggerating his present symptoms.
MEDICAL EVIDENCE
16 Dr. David King testified at the trial and
provided the court with a number of reports. He had
been treating the plaintiff for his dystopia prior
to the accident in July of 2000 and saw him in May
2002 on a referral from Dr. Barclay. His report to
Dr. Barclay indicated:
Motor Examination: His motor examination
continues to show his right arm dystopia and
also a dystonic tremor in his right foot as
well as dystonic tremor in the right hand.
He has quite significant spasm of the
trapezius muscle, levator scapulae on the
left and his left shoulder is elevated which
is new. He had not had that prior to the
accident. He does have some discomfort with
left shoulder motion, so that internal
rotation of the left shoulder is
significantly impaired and external rotation
mildly impaired. Abduction is painful and he
is tender over the acromioclavicular process
on the left side. He also has some
tenderness over his neck but far more
tenderness in the muscles on that side, neck
extension and flexion are actually quite
well performed, but turns are associated
with pain on the left side of his neck.
Turning his head to the left and back also
aggravates his discomfort, to some extent.
Lying on the left side aggravates him.
CONCLUSION:
Opinion: He has his on-going right arm
dystopia which has not changed. He has a
significant problem in his neck and left
shoulder with spasm, certainly indicative of
pathology, but the site remains to be
elucidated. It could be a facet problem, but
I wasn't all that impressed with that in the
office, I thought he had acromioclavicular
problem on the left side rather than an
intrinsic problem with the glenohumeral
joint, one might consider doing something
about that left acromioclavicular joint. I
did inject the muscles in his neck on the
left side with Xylocaine and it produced
really very minimal improvements for him. I
think the muscles are probably secondary and
therefore feel that though you can give him
a trial massage therapy, I am not overly
optimistic. |
17 Dr. King was not able to say whether in his
opinion the accident on July 19, 2000 caused the
problem the plaintiff had with his left shoulder and
arm at the time of his examination.
18 The plaintiff's family doctor, Dr. Spencer
Barclay testified and provided a report dated March
19, 2002. In that report he said:
In summary, Mr. P seems to have suffered a
cervical extension/flexion type
musculoskeletal injury at the time of his
accident in July 2000. He continues to have
residual pain involving the above areas and
apparently due to injuries suffered in the
motor vehicle incident. In spite of
considerable treatment involving both
physical medicine and medication the pain
has persisted. It is likely that he will
have continuing discomfort in this area for
some time yet to come and perhaps
indefinitely although it is hoped that with
the passage of time some further improvement
in his symptoms will occur. There is
certainly some increased possibility that
over the passage of time as well there may
be some development of osteoarthritis in the
cervical spine at an earlier date than would
otherwise be expected. This is impossible to
state with certainty. His overall progress
has been hampered by his pre-existing
dystopia and neuromuscular problems
involving the right upper extremity, a
condition which is of its own accord
somewhat progressive. It is very difficult
to determine what if any influence this
pre-existing problem may have had on the
development and persistence of symptoms
involving this gentleman's neck and left
upper extremity.> |
19 The defendants offered the testimony and
report of Dr. Virender Bhan to support their
position. Dr. Bhan who was qualified as an expert in
neurology assessed the plaintiff on July 26, 2002.
He wrote to counsel for the defendant on August 9th,
2002. He said:
Impression: Two years ago, this gentleman
was involved in a motor vehicle accident. He
has likely sustained a mild
flexion/extension or whiplash type of
injury. After hiatus of a couple of days, he
went on to develop a regional myofascial
pain syndrome. At first, the problem was
mild to moderate in severity. Currently, the
problem appears to be relatively mild.
Although the problem is mild, the impact on
his functional abilities, is moderately
severe. This is because, he does not have
much use of the right arm (from preceding
focal dystopia) and therefore relies on his
left arm primarily to carry on activities of
daily living. If it were not for the
preceding right arm neurological problem,
the impact of the myofascial pain syndrome
on the functioning of the left arm, would be
rather mild to minimal.
There is also the issue of cervical
spondylosis, i.e. degenerative disc disease
and mild facet joint osteoarthritis. This
has been documented on several occasions in
the past (prior to the accident). After the
accident, I find nothing in the history that
would lead me to believe that he has had a
cervical disc prolapse. His examination does
not reveal any motor, sensory or reflex
alteration to suggest a nerve root deficit
(current or in the past). One could
speculate, that the flexion/extension injury
may have aggravated the facet joint
osteoarthritis, but if so, this would be a
minimal aggravation and would settle down
(with Vioxx and over time).
As far as prognosis goes, his condition is
likely plateaued. However, it is still
possible that there may be further
improvement over time, but it is unlikely
that his symptoms will completely go away
(given that he has pre-existent cervical
spondylosis, and right arm dystopia,
necessitating over-use of the left arm). |
20 After doing that assessment Dr. Bhan was
provided with a number of video surveillance tapes
recorded by an investigator hired by the defendants'
insurance company. These tapes which were introduced
into evidence at trial were recorded in the time
periods of October to November 2000; June 4, 2001 to
June 6, 2001; July 25, 2002 to July 27, 2002.
21 Based on what he saw on these tapes Dr. Bhan
changed somewhat his opinion on the plaintiff's
condition. In a report dated October 3rd, 2002, Dr.
Bhan stated:
In conclusion, there is a marked discrepancy
between Mr. Ps reported symptoms and what is
seen in the video surveillance tapes. This
points to a strong exaggeration component
and perhaps secondary gain. He may still
have some ongoing discomfort, but I feel
this is rather mild and hardly has any
functional impact on activities of daily
living. |
22 In his testimony at trial Dr. Bhan indicated
that he felt that the impact of the plaintiff's left
shoulder problem was less than he had earlier felt
and that the impact was only minimal to mild instead
of mild to moderate as he had earlier indicated. He
said that in his report he said the plaintiff could
move his left arm to only 120 degrees abduction, but
that in the video he felt he was moving it further
than that. He said he found it surprising that the
plaintiff was not showing any signs of discomfort
and that this would be contrary to what he had told
him when he did the examine in that he had indicated
that his general state of pain was about 5 on a
scale of 1 to 10.
23 During the course of the trial, counsel
intended to lead evidence from Dr. Bhan and Dr. King
about their opinion of what they saw on the
surveillance video tapes. I did not permit that as I
felt that the court could observe the tapes and come
to whatever conclusions I felt were appropriate. It
was also agreed that counsel would consolidate all
the tapes into one tape which I have now viewed
following the trial.
24 The evidence before me is that in January
2000, just seven months prior to the accident, the
plaintiff completed an application for Canada
Pension Disability benefits. In that application he
indicated a number of things about his medical
condition. He stated that he had stopped doing a
number of hobbies including skating, hockey and
baseball and that he had trouble sleeping and could
only drive a car for short drives.
25 It is suggested, therefore, by the
defendants that his condition has not really
worsened as a result of the accident.
26 I am satisfied that the plaintiff has proven
on a balance of probabilities that the problems he
has had since July 2000 with his left shoulder and
neck were caused by the accident involving the
defendant's vehicle. The symptoms showed up shortly
after the accident and it is reasonable to conclude
that they were caused by the impact from behind when
the defendant's vehicle struck the plaintiff's
vehicle. I accept Dr. Barclay's opinion about
causation.
27 I do to some extent discount some of the
plaintiff's evidence about his condition since the
accident. He did testify on discovery that he did
not have headaches prior to the accident. The
medical records indicate that he did complain of
headaches. His application for Canada Pension
Disability benefits records headaches as a medical
problem. He testified at discovery about trips he
took prior to the accident when he would drive his
vehicle. However, he indicated in his CPP
application that he could only drive for short
distances.
28 I conclude that the plaintiff has suffered a
whiplash type injury which initially caused him to
have headaches for a number of months. He took
physiotherapy which improved his left shoulder and
neck but he continues to have some discomfort for
that. His situation is complicated by the fact that
he has other physical problems not caused by the
accident. The dystopia in his right arm makes him
rely on his left arm more than a normal person,
however, the defendants must take the plaintiff as
he was prior to the accident. His knee problem
causes him to have trouble walking. That condition
would have continued to deteriorate despite the
accident.
29 The plaintiff in his pre-trial brief
suggests that the plaintiff's injury should result
in an award of damages for pain and suffering in an
amount of $39,000.00. A number of cases were offered
in support of that position.
30 In Landry v. McCormick Estate (1997), 158 N.S.R. (2d) 97, the court awarded $38,000.00
for a moderate strain of the plaintiff's thoracic
spine which resulted in chronic pain.
31 In Berry v. Poteri [1997] N.S.J. No. 247, Boudreau, J. of this court
awarded the plaintiff $30,000.00 for a mild soft
tissue injury.
32 In Lamont v. Moxon [2000] N.S.J. No. 325, the Nova Scotia Court of Appeal
confirmed an award of $25,000.00 where the plaintiff
there had a mild aggravation of a pre-existing and
major back problem.
33 The plaintiff requests the sum of $15,000.00
to compensate him for loss of housekeeping capacity
in the past and into the future.
34 The plaintiff testified that following the
accident he had to arrange to have his daughter
Nicole come to live with him because he could not do
the normal housekeeping chores he used to do prior
to the accident. The plaintiff's wife is not able
because of a disability to do regular housework. The
plaintiff said that he used to do vacuuming and
cleaning. He said he was having a hard time doing
these things after the accident and therefore made
the arrangement with his daughter. His daughter
Nicole testified that she does most of the housework
for her father and stepmother since January 2001
when she moved in with them.
35 Based on my viewing of the video tapes
introduced into evidence, and in particular the
portion showing the plaintiff on July 25th, 2002
when he spent about 40 minutes raking gravel with
another person, I am not convinced that his injury
has interfered with his ability to do normal
housework. The activity he is shown doing on the
video tape would, I find, be similar to what would
be required for normal housekeeping chores. I
conclude that he could if he wished do the
housekeeping he used to do prior to the accident. I
would therefore dismiss the claim for loss of
housekeeping capacity.
36 The defendants
argue that any award for pain and suffering should
be in the range of $2,000.00-$6,000.00. They have
provided me with a number of cases where awards were
made in that range. These cases are as follows:
Sparks v. Boivin (1988), 83 N.S.R. (2d) 412 (S.C.T.D.);
Linegar v. Dominix (1992, unreported, Richard J.);
Bajwa v. Ellington (1999, B.C.C.A.); Smith v. Singh
(1998, B.C.S.C.); MacLean v. Stewart [1995] N.B.J. No. 485 (Q.B);
Ouellet v. Leveille, [1994] N.B.J. No. 381 (Q.B.); Druet v. Woodward [1993] N.B.J. No. 379.
37 I conclude in this case that the effect the
injury had on the plaintiff was more significant to
him because of his pre-existing medical condition.
His right arm dystonia made him more dependent on
the use of his left arm. The injury to his left
shoulder therefore interfered more in his daily
living than would normally be the case.
38 I conclude that the type of injury suffered
by the plaintiff here would normally result in an
award of $25,000.00, however, considering the
plaintiff's special circumstances, I would award him
the sum of $30,000.00 as general damages for pain
and suffering. He will be entitled to 2.5 percent
pre-judgment interest and costs on that amount on
Scale 3. He is also entitled to his reasonable
disbursements.
MacLELLAN J.
QL UPDATE: 20030528
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