COURT CASES on THORACIC OUTLET SYNDROME
In Bransford v Yilmazcan, the Plaintiff suffered from post-traumatic Thoracic Outlet Syndrome. By the time of the original trial, she had endured about four and a half years of pain, and had undergone surgery. She was ultimately awarded $225,000 for pain and suffering, after the Court of Appeal reduced the original trial amount.
[20] In the present case, the award did exceed the rough upper limit and the view the jury took could be said to be one wholly disproportionate calling for some appellate intervention. If one were to compare this case to another jury award, in the case of Bob v. Bellerose, 2003 BCCA 371 (CanLII), 2003 BCCA 371, the ultimate award there ordered by this Court was $275,000, comprising $200,000 in general damages plus $75,000 in aggravated damages because of the intentional conduct of the defendant. That case in my view disclosed more serious injuries than the plaintiff suffered in the present case.
[21] In a case relied upon by the appellants, Knauf, referred to supra, this Court recently altered a jury award from $235,000.00 to $135,000.00 because the Court viewed the award as wholly disproportionate in relation to other comparable awards. In that case, the plaintiff was less severely affected by her injuries than the present plaintiff.
[22] It seems to me that this award of non-pecuniary damages is sufficiently anomalous that it calls for intervention by this Court and I therefore see this as an appropriate case for appellate intervention. One significant difference I have noted between this case and Moskaleva is that the award of the jury was beyond the rough upper limit in this case. Having regard to similar cases and accepting that the jury took a very favourable view of this young woman, it seems to me that an award of $225,000 under this head would be appropriate. I consider a generous award is indicated in this case, both because of the view the jury took of the matter and because of the dramatic consequences her injury has had on the life of this young respondent. I would allow the appeal under this head and alter the award ordered by the judge of $327,350.00 to an award of $225,000.00 under this head of damages.
In Cimino v Kwit, the Plaintiff suffered from traumatic Thoracic Outlet Syndrome for about three years by the time of trial, and was awarded $85,000 for pain and suffering in this regard, including pain in her right arm and hand that was related to the Thoracic Outlet Syndrome.
[42] I accept that the plaintiff has and continues to suffer from thoracic outlet syndrome as a result of the accident and that the plaintiff’s ongoing symptoms related to pain in the right arm and hand relate to this syndrome. Whether the effect of this condition is small, as concluded by Dr. Keyes, or so significant as to disable the plaintiff from work as a certified dental assistant, as stated by Dr. Salvian, can best be determined by inclusion of considerations of the plaintiff’s daily need for significant pain medication, her work history since the accident, and the opinion of the vocation consultant that the plaintiff is competitively employable as a dental assistant, with subtle relatively mild limitations. On balance, I conclude that the plaintiff has permanent ongoing disability of such a significant degree as to require her to take daily multiple pain medications in order to achieve personal and work functionality. Surgery for her condition is not an option. The plaintiff has difficulty sleeping after a bad day, a situation that accumulates as the work days progress with continued use of the plaintiff’s dominant right arm and hand.
[43] The defendant’s submissions on quantum of non-pecuniary damage was based upon a finding that the plaintiff’s soft tissue injuries resolved completely within 6 months and that the plaintiff did not suffer thoracic outlet syndrome as a result of the accident. Since this does not concur with the finding of this court, I have considered the cases referred by the plaintiff.
[44] In Stapley v. Hejslet, 2006 BCCA 34 (CanLII), 2006 BCCA 34, 263 D.L.R. (4th) 19, 221 B.C.A.C. 272, the plaintiff was diagnosed with thoracic outlet syndrome as a result of the accident and had surgery to relieve the pressure. This resulted in an eighty percent improvement in symptoms but left the plaintiff with residual complaints of pain in his mid-back, right side neck pain, a constant burning between the shoulder blades, stiff neck and back, and a constant headache. The plaintiff continued to take a great amount of pain medication. Significantly, he lost the enjoyment of life on his ranch with its employment, home and community. Without this latter factor, the court, having summarized comparative cases, concluded that the range of damage for this type of injury was $66,000 to $100,000. Mr. Stapley was awarded $175,000.
[45] The plaintiff in Maillet v. Rosenau, 2006 BCSC 10 (CanLII), 2006 BCSC 10, had also suffered some degree of thoracic outlet syndrome, along with other injuries that were continuing. Powers J. reviewed many cases including Potrie v. Langdown, [1996] B.C.J. No. 318 (S.C.) in which the plaintiff received $140,000 for severe injuries including thoracic outlet syndrome which had changed her whole life and vocation. Mr. Maillet received damages of $110,000.
[46] In this case, the plaintiff has demonstrated that she is able to work and participate is some recreational activities and family life. However, the culture within the family changed dramatically after the accident as the plaintiff could no longer perform all of the household activities and her sons and husband took on new roles. She suffers from thoracic outlet syndrome as a result of the accident, but does not have other recurring problems from the accident. This distinguishes her from cases where the gravamen of multiple injuries along with the syndrome results in the highest awards. While the plaintiff has certainly suffered loss of enjoyment of life, emotional suffering, and must face the daunting prospect of permanent daily pain, she has not lost the ability to work or her basic lifestyle.
In Hooper v Nair, the Plaintiff suffered from Thoracic Outlet Syndrome for about six years by the time of trial, and was awarded $104,500 for pain and suffering.
[50] There are a number of factors that affect the plaintiff’s entitlement to non-pecuniary damages. With respect to the duration of the pain, the plaintiff’s pain has become chronic in nature. She continues to experience pain particularly in her neck, left shoulder and arm nearly six years since the onset of symptoms. The chronic nature of her pain means that she will have to deal with and manage the pain from her underlying TOS for the foreseeable future. She has tried many different modalities of treatment with limited success. There is some improvement but the pain is still present. Further, the injuries led to the development of sleeping problems which cause the plaintiff to feel tired in the morning. She can hope for some improvement over time with a regular exercise programme. But overall, the prognosis for a full recovery is unclear and it appears that she will continue to be affected by the injuries indefinitely and will likely have to live, at a minimum, with background pain.
[51] The plaintiff’s lifestyle has been adversely affected in a number of ways. She is determined to resume her jogging programme and to re-enter the Sun Run with her husband. However, her early attempts to run resulted in a flare-up of neck and back pain. Drs. Travlos and Salvian suggest that jogging may not be an activity she can do. Dr. Travlos states she will have to pre-medicate for any activity which causes an exacerbation of her back pain. Certainly golfing, an activity she enjoyed, will not be an activity she can participate in without pain.
[52] Both doctors also point out that the plaintiff is susceptible to further episodes of TOS should she have any increased neck injury or strain. Dr. Salvian says that such increased neck strain could be caused by something as simple as “sleeping in a poor position or driving for long periods”.
[53] The plaintiff’s professional life was impacted by the Accident. She has been able to cope fairly well with the duties of her job by minimizing the use of her left arm. Luckily, she is right hand dominant. But her evidence was clear that she maintained the earnings she had only by pushing through the pain and carrying on as best she could. She gave evidence of struggling to carry on, taking her work home because she could not sit any longer in her office, and feeling tired and overwhelmed. Because of her pain and fatigue, she believes she could not “court” clients as effectively at a time in her career when she was in a start-up mode and needed to do so.
