COURT CASES on KNEE INJURIES
In Anderson v. Shepherd, the Plaintiff suffered a major injury to his knee in a motor vehicle accident, and brought an ICBC claim for damages. Surgery was required, and the Plaintiff suffered from chronic pain for more than three years by the time of trial, with the pain expected to last indefinitely. There was also a possibility that he would suffer from Complex Regional Pain Syndrome (CRPS). The Court, in awarding $85,000 for pain and suffering, commented that:
 My consideration of the totality of the evidence in this case leads me to conclude that:
1) Mr. Anderson will have ongoing symptoms with his knee indefinitely which will remain relatively constant at their present level with a tendency to improve over time, rather than worsen.
2) Mr. Anderson is likely to have difficulties with activities requiring a great deal of knee flexion such as kneeling, squatting, climbing stairs and walking up hills.
3) No further surgical intervention will assist in alleviating Mr. Anderson’s existing knee symptoms.
4) Mr. Anderson will not likely develop accelerated osteoarthritis because of the injury to his knee.
5) Mr. Anderson is not disabled from work as a driver if he obtains a Class 1 licence, but will be required to take breaks to rest his knee if he drives for long periods of time.
6) The injury to his left knee will likely require Mr. Anderson to take more pain medication to relieve his pain than he was taking to alleviate the chronic pain associated with his low back pain caused by the 2004 motor vehicle accident.
 Mr. Anderson has suffered a serious and debilitating left knee injury. It was acutely debilitating for approximately six weeks when he could do almost nothing other than rest. While his condition improved thereafter, that improvement was not sufficient to allow him to resume all of his previous activities either at home or outside the home, his home life and relationships with his wife and children suffered badly, and he was unable to work because of his injuries.
 Surgery on his knee in March 2010, more than a year after he was injured, helped to alleviate his difficulties to the extent that by his own assessment his improvement has now approached 70%. The evidence establishes that it is likely that his symptoms have stabilized at that level and are not likely to worsen over time.
 Even at their present recovery level, Mr. Anderson’s injuries require him to endure pain that must be treated with increased levels of medication beyond that which previously alleviated his chronic low back pain that arose from the 2004 motor vehicle accident. His ability to enjoy life because of his compromised physical abilities is seriously diminished. He has now suffered and endured his losses for more than three years. As a young man who is now only 30, Mr. Anderson will suffer them for most of his adult life.
In Dulay v. Lachance, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. The plaintiff suffered soft tissue and whiplash injuries to his neck and back, which primarily resolved within about six months of the accident, however he suffered from chronic knee pain for over four years by the time of trial. The Plaintiff had pre-existing, asymptomatic arthritis in his knee, which he argued was rendered symptomatic by the motor vehicle accident. ICBC’S lawyer argued that the motor vehicle accident was coincidental to the onset of knee pain. Not surprisingly, the Court rejected ICBC’S lawyer’s argument, and awarded the Plaintiff $75,000 for pain and suffering.
 Dr. McLeod stated: “It is impossible to predict whether or not this right knee would have become symptomatic should this accident not have occurred.” I accept his evidence on that issue.
 The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident.
 The plaintiff relies on the report of Dr. Grover who wrote:
It is also my opinion that, but for the motor vehicle accident in question, he would likely have remained pain free and symptom free (as far as the right knee is concerned) for many years to come, on balance of probability.
As noted above Dr. McLeod also found that the osteoarthritis was rendered symptomatic from the accident.
 The defendant says, firstly, that causation has not been proved and that it has not been shown that Mr. Dulay’s injuries resulted from the accident. While he did have other injuries resulting from the accident, these were largely resolved within 8 to 12 months after the accident. Secondly, the defendant submits that the painful osteoarthritis the plaintiff now suffers was a pre-existing condition that would have occurred even without the accident. There was no evidence of muscle wasting in the plaintiff’s left leg in July 2010 indicating he continues to use that leg. Any ongoing pain is simply a consequence of the pre-existing osteoarthritis which was not triggered by the accident.
 There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident.
In RAH v ICBC, the arbitrator awarded $95,000 for a tibial plateau fracture, which required surgical correction.
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…
This matter was dealt with by an arbitrator, as it was an Underinsured Motorist Protection (UMP) matter. Such matters are dealt with through arbitration when there is a dispute as to the availability, or amount, of UMP coverage.
In Peragine v. Serena, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim seeking damages for pain and suffering, as well as other types of damages. Her main injury was patellofemoral knee pain, which had required surgery, and which had lasted for more than three years by the time of trial. Her pain was also expected to continue into the future. The Court awarded $40,000.00 in damages.
 In Dr. Kokan’s opinion, it is likely that Michelle could continue to experience her pain symptoms for between two to three years. He expects that she will continue to experience difficulties with kneeling, walking, standing and negotiating stairs. He recommends that Michelle limit her sports to non-impact activities such as swimming or cycling…
 I accept Dr. Kokan’s description of Michelle’s symptoms as described in his report. I also accept his opinion that the pain in her left knee was caused by a blunt impact during the March 13, 2009 collision and that it is possible for the injury to the knee to have occurred during the accident but the pain associated with that injury not to have manifested itself for three weeks to a month…
 However there is no question that, since the collision, Michelle has experienced and is continuing to experience intense and ongoing pain in her left knee. She is unable to climb or descend stairs or even walk or stand for prolonged periods of time without significant pain and having to sit and rest her knee. She is unable to participate in sporting activities which she has grown up doing and which are her passion.
 The plaintiff is 21 years of age. She continues to have trouble walking and standing without pain. She is in pain every day. Despite the pain, she is living a normal and enjoyable life. The prognosis for a full recovery is good.
In Battagliola v Wal-Mart Canada Corp, the Plaintiff suffered from patellofemoral pain for a period of six years from the date of the accident until trial. The Court had some doubt as to the severity of the injury, and awarded $28,000 for pain and suffering.
 I am satisfied that the medical evidence supports Ms. Battagliola’s evidence that her right knee was injured by the metal shelf hitting her knee and that as a result she suffers from ongoing pain. In this regard, Dr. Pisesky was specifically asked under cross-examination if the shelf presented to him in the courtroom and identified by defence counsel as being similar to the shelf that struck Ms. Battagliola’s knee could have caused her injury. Dr. Pisesky answered in the affirmative. He was not challenged on this answer.
 However, I am of the view that the negative impacts are not quite as debilitating as asserted. The medical evidence, as pointed out by defence counsel, uses descriptors such as “mild”, “mildly”, and “moderately”. I also note that with respect to the visible observations of wasting, Dr. Pisesky agreed that the report of Dr. Werry, who saw the plaintiff in June 2007 and whose report Dr. Pisesky reviewed in preparing his report, stated that the plaintiff’s two thigh circumferences were normal on June 7, 2010 and that the plaintiff had maintained a sufficient level of activity to avoid thigh atrophy. Dr. Pisesky agreed that it was possible that something could have happened after June 7, 2010.
 I also note that while Ms. Battagliola testified that she has significant difficulties with bending her knees, she had the confidence to enrol in a program to become a first-aid attendant. The training and actual work requires considerable physical ability, including bending, as people in need of aid are often prone on the ground. While she says that she experienced difficulty with the cardiopulmonary resuscitation training because of the need for her to kneel and do compressions, she passed the test and testified that she has a desire to continue on with further training and to find full-time employment as a first-aid attendant. Ms. Battagliola is to be commended for her initiative, however this indicates that her current limitations are not as severe as her personal account suggests.
 I also found the absence of witnesses who have had frequent contact with Ms. Battagliola both before and after the incident problematic in terms of gauging the degree of difficulty experienced by the plaintiff; for example her children. The evidence of Mr. Waryk was somewhat helpful. He stated that, prior to the accident, she displayed no physical limitations and was able to “keep up” with him in dancing. His evidence of her ability to dance after the accident related to only one observation after the accident. He provided no real explanation for why Ms. Battagliola did not dance much that evening. He states that she complained that she was tired. There was certainly no reference to her knee. The same goes for Ms. Gibbs, whose observations were of limited usefulness because they were only after the plaintiff’s accident. I also have taken into consideration that the plaintiff sought out and worked as a server for a period of time in Kelowna, which requires a fair amount of standing, bending and walking.
 In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.
In Poulton v Inderbosch, the Plaintiff was awarded $70,000 for patellofemoral pain, which she had endured for over four years by the time of trial.
 I have already indicated that I consider Ms. Poulton to be a credible and reliable witness. I have accepted her evidence that she experiences persistent pain and discomfort in her left knee and that she continues to suffer from periodic headaches. However, I do note the lack of independent corroboration of Ms. Poulton’s evidence with respect to the effect that these complaints have on her overall physical capacity. I am particularly concerned by the failure to present medical evidence from Dr. Dhawan. Ms. Poulton’s evidence is that she has seen Dr. Dhawan more than ten times since November 2006 with the most recent appointment being in February 2010. She also indicates in her evidence that Dr. Dhawan was her primary physician in terms of prescribing and monitoring medications related to her injuries.
 In this case, Ms. Poulton has suffered an injury which continues to trouble her more than four years after the accident. Given the duration of Ms. Poulton’s symptoms and the inability of any of the treating physicians to isolate an organic cause for those symptoms, I agree with Dr. Mackenzie’s opinion that the prognosis for the resolution of Ms. Poulton’s pain is poor. There is evidence that Ms. Poulton’s headaches have significantly improved since the date of the accident and there is therefore some reason to conclude that those headaches will continue to improve. I am also mindful of the evidence that Ms. Poulton seems to be able to function with the assistance of medications. On the other hand, Ms. Poulton has testified that the injuries have had a significant impact on the quality of her life, particularly with respect to her ability to pursue such recreational activities as hiking and aqua size. ..
MULTIPLE INJURIES to KNEE
In Stevanovic v. Petrovic, the parties settled on an amount of $155,000 for a serious knee injury suffered by the Plaintiff in a motor vehicle accident.
 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.
 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.
 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.
 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.
In Haley v Gust, the Plaintiff suffered different injuries, the most serious of which was a posterior cruciate ligament tear to her left knee, of which she was still symptomatic three years post accident by the time of trial. She was awarded $75,000 for damages for pain and suffering.
 In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…
 Ms. Haley answered questions in a straightforward and responsive manner. She did not exaggerate or embellish her evidence. She was forthright when she could not remember details of any particular event. I found her to be a credible witness.
 She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….