CHRONIC FIBROMYALGIA

 

In S.R. v. Trasolini, the Plaintiff was injured in a rear end motor vehicle accident, and subsequently brought an ICBC claim seeking damages for pain and suffering, income loss, future income loss, loss of housekeeping capacity, and cost of future care. Liability was not contested by ICBC’S lawyer. By the time of trial, approximately five years after the accident, the Plaintiff continued to endure fibromyalgia, and was expected to continue to do so into the future. The Court awarded $130,000 for pain and suffering.

 

[169]      The injuries sustained by Ms. R. have caused her years of suffering, fluctuating degrees of chronic pain all over her body that is sometimes quite severe, and the concomitant diminution of joy and pleasure to most aspects of her life.  Although her symptoms have gradually improved, particularly in the year or so leading up to trial, they remain sufficiently significant to continue to meet the diagnosis of fibromyalgia.  The expert opinion evidence that I accept is skeptical that Ms. R. will ever fully recover to her former self despite her completion of the Pain Program, commitment to physiotherapy and other treatment modalities and reasonable exercise when she is able.

[170]     A formerly outgoing, sociable and highly energized and engaged woman, Ms. R. is now more reclusive and has had to lean heavily on her aging mother to perform her share of household chores and, for about a six-month period, to assume most of her personal grooming.  She worries about her future, including how she will be able to care for her elderly mother in the passing years.

[171]     The Accident has left Ms. R. to confront the grim reality that she has an incurable and complex syndrome that manifests as chronic pain and an array of other unwelcome physical, psychological and cognitive impairments.  For years to come, possibly indefinitely, she will be vulnerable to episodic aggravation of her physical symptoms, which in turn, will disrupt her sleep and produce an adverse effect on her overall emotional and cognitive well-being.  The person she was before the Accident has been forever altered.

 

AGGRAVATION of PRE-EXISTING FIBROMYALGIA

 

In Paradis v. Gill, the Plaintiff endured an aggravation of pre-existing fibromyalgia for a period of about 3 1/2 years before trial. The Court awarded $40,000 for pain and suffering.

 

[73]         Applying the principles of causation as set out in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458; and most recently in Farrant v. Laktin, 2011 BCCA 336, as well as recognizing the comment that courts should exercise caution when there is little objective evidence of continuing complaints of pain persisting beyond what the defence asserts is the normal recovery period, I find that the Accident aggravated Ms. Paradis’ condition of fibromyalgia.  My view is that Ms. Paradis’ pain is predominantly in the mild to moderate range (though it can increase) and relates to her lower back; that she suffered from back and neck pain as well as headaches prior to the Accident but not as great; that she is able to stand far longer than she says; that she has the capacity to lift more than she asserts; and can engage in more activities than the physical capacity concludes.  The plaintiff also has full range of motion at her neck, shoulders, elbows, forearms, wrists, lower back, hips, knees, ankles and feet.  A significant part of her physical restrictions are not substantially related to aggravation from the Accident but rather to the unrepaired injury to her left knee, the osteoarthritis found in her knees, as well as her weight.  However, I find that she has suffered some loss of capacity.

 

In Iwanik v Hayes, the Plaintiff suffered an exacerbation of her pre-existing fibromyalgia for a period of three years up to the point of trial. She was awarded $50,000 for pain and suffering for a prolonged and sustained exacerbation of her fibromyalgia.

 

[128]      Ms. Iwanik’s complaints are substantially subjective complaints of pain.

 

[129]      Ms. Iwanik’s evidence about the extent of her injuries was reliable. She tended to be stoic, and to minimize her reports of pain. Her memory of her symptoms at particular points in time and of the therapy she underwent was sometimes poor, but she did not exaggerate her symptoms. The clinical records provided helpful records of her condition from time to time.

 

[130]      Before the accident, Ms. Iwanik was a dedicated worker. She had a long history of working more than full-time hours. She had a history of neck and back pain, fibromyalgia, and COPD. Hey fibromyalgia would flare up periodically, particularly in the period when her daughter was undergoing cancer treatment. She did not have any complaints of problems with her knees. She suffered enough pain in her neck and back that she underwent treatments relatively regularly from a chiropractor and massage therapist, but she did not take time off from work as a result of any of these complaints. She performed physically demanding work at 7-Eleven for long hours, took hour-long walks most days, gardened, and looked after herself and her home without difficulty.

 

[131]      The defendant is only responsible for any increased aggravation of Ms. Iwanik’s pre-existing problems. That is because Ms. Iwanik is only entitled to an award of damages which will theoretically restore her to her pre-accident condition. She is not entitled to recover a sum which represents a complete recovery, because she was not a completely healthy person at the time of the accident.

 

[132]      As a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches. If the accident had not occurred, her fibromyalgia would have flared up periodically, but not enough to have restricted her from her from work or her other activities.

 

POST-TRAUMATIC FIBROMYALGIA SYNDROME

 

In Shapiro v Dailey, the Plaintiff received $110,000 for pain and suffering for many injuries, the most noteworthy of which was post-traumatic fibromyalgia syndrome. She also received $900,000 for diminished earning capacity.

 

[58]         On the whole of the evidence, I am satisfied that, as a result of the motor vehicle collision that is the subject of this action, Ms. Shapiro suffered soft tissue injuries to her cervical, lumbar and sacral spine that, through no fault of her own, have left her with:

 

·                 disabling cervicogenic headaches, and periodic headaches of a migraine nature;

·                 chronic pain disorder, manifesting itself as myofascial pain syndrome and post-traumatic fibromyalgia syndrome;

·                 depressive symptoms falling short of depressive disorder;

·                 mood disorder including resolving post-traumatic stress disorder, anxiety disorder and panic attacks;

·                 mild, but not insignificant, cognitive difficulties in concentration and memory.

 

[59]         Whether some of these diagnoses overlap in terms of their symptomatology matters not.  What is clear is that Ms. Shapiro genuinely suffers from the symptoms, and that the whole is greater than the sum of its parts.  This has wrought a profound change in every aspect of her life, from interpersonal relationships with her family, friends and partner to her ability to love, work, play, exercise, relax, sleep, and her ability to move forward with her life.  I find that her prognosis is not hopeless, but is extremely guarded.  Although Ms. Shapiro is the type of person who will work hard to achieve as much improvement as is possible, I am satisfied that, on a balance of probabilities, nothing more than a modest improvement can reasonably be expected.  Accordingly, at the age of 29, Ms. Shapiro faces a lifetime of struggling with pain and fatigue in everything she does.

 

In Poirier v Aubrey, the British Columbia Court of Appeal increased the trial judge’s award of $60,000 for pain and suffering for fibromyalgia to $100,000. At the time of the original trial, the Plaintiff had endured over three years of fibromyalgia symptoms.

 

[23]           Dr. Hyams’ report was the most recent available to the judge.  It was made in October 2009.  The essence of his opinion is as quoted at the outset.  Most significantly, he says Ms. Poirier has been on the appropriate treatment protocols involving medication for her condition as well as various rehabilitation interventions, but her condition was not improving; it was actually deteriorating.  In fact, he said it was his opinion the prognosis was “not good” due to the progression of Ms. Poirier’s symptoms despite the treatment she had received.  He put the prospect of a complete recovery at “highly unlikely”.  He explained the objective of his proposed course of treatment was to reduce Ms. Poirier’s pain and increase her functioning and concluded that “if” that was possible she might be able to consider some part time work sometime in the future.  After then explaining the proposed treatment, he expressed the “hope and expectation” of some measure of success. 

 

[24]           There is, in my respectful view, nothing in what Dr. Hyams or the other two physicians said, either in their reports or in their testimony at trial, that amounts to an opinion there is a real and substantial possibility her pain and discomfort will be relieved and her functioning improved.  I do not see how it could be said that, on Dr. Hyams’ evidence in particular, that possibility was “bordering on likelihood” as the judge suggested.

 

[25]              I consider the evidence establishes that, as the judge said, there is a “real and substantial possibility” Ms. Poirier’s injury will prove to be permanent.  There is no cure.  There is treatment for her condition, but the prospect of her pain being relieved to a significant degree is indeed guarded.  She is unlikely to ever be pain free and can at best hope that, with continued treatment, she may in time achieve a sufficient reduction in her pain and increase in her functioning that would permit her to regain some of the enjoyment of her life she has lost and to undertake part time employment.

 

[26]             Ms. Poirier cites three awards in particular that she says reflect what plaintiffs who have suffered somewhat comparable non-pecuniary losses to hers have been awarded: Hooper v. Nair, 2009 BCSC 862; Barnes v. Richardson, 2008 BCSC 1349, aff’d 2010 BCCA 116; and Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203.  The respondents cite Heartt v. Royal, 2000 BCSC 1122; Mowat v. Orza, 2003 BCSC 373; and Esau v. Myles, 2010 BCSC 43.  These awards reflect a broad range: those cited by the respondents are $50,000 to $70,000; those cited by Ms. Poirier are $85,000 to $125,000.  I consider Ms. Poirier’s loss to be more consistent with the losses in the awards she cites.  Of particular significance is the permanent nature of her injury that causes her ongoing debilitating pain, the effect it has had and will continue to have on the enjoyment of her life, and the uncertainty there is that her condition will in time improve even to the point of permitting her to return to work part time.