November 5, 2009

Mild Traumatic Brain Injury

Schmolzer v. Higenbottam, 2009 ABQB 522.  [B.E. Romaine] The 35 year old male Plaintiff suffered soft tissue injuries and a mild traumatic brain injury or concussion. The soft tissue injuries resolved within 12 months. The court accepted the evidence of both plaintiff and defendant expert that the head injury was fairly classified as a mild traumatic brain injury or alternatively, a concussion.  It should be noted that there was only a brief loss of consciousness, a GCS of 15 at the scene and no diagnosis of head injury made. The court awarded general damages of $75,000. Egglestone v. Cox, 2009 ABQB 584.  [L.D. Wilkins] The male plaintiff was involved in a t-bone collision on July 1, 2004. The plaintiff suffered from a non displaced fractured vertebra in his neck resulting in an 8% impairment. The plaintiff also suffered soft tissue injuries to his neck, upper back and shoulders as well as headaches. These were acute for approximately 15 moths with ongoing residual chronic pain.  It was also alleged that the plaintiff suffered a head injury. It was noted that there was likely no loss of consciousness and only minor issues with memory around the time of the Collision. The plaintiff was noted to have an underlying history of depression. The plaintiff was diagnosed by a neurologist and a number of IME’s as having a concussion and post-concussion syndrome. The court rejected the diagnosis and held:
For these reasons, I accept the opinions of Dr. King and Dr. Levin that the symptoms of neurological or psychological difficulties disclosed by the Plaintiff were not proven, on a balance of probabilities to have been caused by the accident. They would have occurred in any event “but for” the accident due to his untreated depressive illness or his adjustment disorders.
The court awarded general damages of $75,000. Park v. Jordan and Jordan ABQB No. 0801-00138 [Mr. Justice Mahoney]. The 41 year old male Plaintiff was a passenger in a pick-up truck that went over a 20 to 30-foot cliff into a riverbank.  The Defendant was the driver.  The Plaintiff suffered the following injuries: spiral fracture of his right humeral shaft, decreased sensation in his arm due to a crushed radial nerve, aggravation of a pre-existing back condition, and restricted range of motion in his shoulder.  Two years after the incident, the Plaintiff continued to experience episodes of chronic pain in his cervical, upper thoracic and lumbar spine, for which no future relief was predicted.  The Plaintiff sustained a permanent arm impairment of 10%, representing 6% whole person impairment. In determining damages for the soft tissue injuries, the Court held that the aggravated back injury and minor neck injury were at the low end of the moderate soft tissue injury.  The damages would be worth $7,500 under the old regime and were therefore capped at $4,000 pursuant to the proper meaning of the Minor Injury Regulation, Alberta Regulation 123/2004. Mr. Justice Mahoney discussed how the cap should be applied to the determination of damages, indicating that:
The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000.  If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000.  If general damages are assessed any higher, they are all reduced to $4,000. All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury.
The Court awarded the cap of $4,000 plus $75,000 in general damages, subject to a 10% deduction for contributory negligence on the basis that the Plaintiff failed to wear a seatbelt. Relevant Quoted Passage from Park v. Jordan and Jordan
…I am told some insurance companies take the position that the cap is similar to the cap in the trilogy cases.  In other words, the $4,000 cap is a maximum that can be achieved for the most seriously injured person sustaining minor injuries as defined in the regulation.  Therefore, so the argument goes, the $4,000 cap is not always awarded in each case. In reading the legislation I do not find any language that would have the cap work that way.  The cap works on the basis that if general damages under the old regime would have been assessed at $4,001 based on decided law, then that amount of damages is reduced to $4,000.  If general damages for a minor injury would have been assessed at $10,000, that amount is reduced to $4,000.  If general damages are assessed any higher, they are all reduced to $4,000.
All damages for minor injury above $4,000 are reduced to $4,000, but any claim that previously would have been worth $4,000 or more is not somehow assessed and prorated on the basis of how it measures against the worst possible minor injury.  If the legislature wanted that approach, it would have made its intention unambiguously clear.

Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie Lawyers 403-571-0555 [email protected]


This entry was posted on November 5, 2009


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