11 Jun Rotator Cuff Injury

In the case of Ross v. Dupuis, 2017 BCSC 2159, the Plaintiff was driving on the highway with her two-year old son in a car seat in the rear seat of the vehicle.  The Defendant was driving in the opposite direction at high speed in the Plaintiff’s lane passing other vehicles.  The Plaintiff was forced to brake sharply and swerve into a ditch in order to avoid a head-on collision. As she swerved off the highway and into the ditch, she instinctively reached behind her to brace her two-year-old son by fully extending her right arm out and back towards him.

Although the Defendant admitted liability, ICBC disputed that the accident had caused the Plaintiff’s right shoulder injury.  ICBC pointed out that the Plaintiff only reported that she had extended her right arm to protect her son to one medical practitioner.  Also, the Plaintiff did not report having pain in her right shoulder to any of the medical practitioners in the first month, with one exception.  Most of the records indicated her right shoulder pain did not develop until about three weeks after the accident. The Court agreed that these irregularities required a careful review of the evidence.

The Court dealt with the Defendant’s arguments as follows:

1. Although the Plaintiff complained of shoulder and lower back pain prior to the MVA, her present shoulder pain was between her shoulder blades, a different area than where her post-accident shoulder pain was.  Moreover none of the Plaintiff’s pre-accident pain symptoms limited her ability to function in her activities of daily living or her work as a lifeguard.
2. Much of the Defendant’s challenge to the Plaintiff’s credibility was based on what was contained (or not contained) in the clinical records.  However, the absence of reference to a symptom in a doctor’s notes of a particular visit cannot be the sole basis for any inference about the existence or non-existence of that symptom.  At most, it indicates only that it was not the focus of discussion on that occasion.
3. The medical evidence confirmed that pain from a torn rotator cuff could have been masked by the pain the Plaintiff was feeling in her neck and back for some time.  The evidence was that it was common for trauma patients to complain only of generalized pain at the time of the trauma and not to complain of specific pain until sometime later.
4. Plaintiff did complain to her massage therapist of significant right shoulder pain which radiated up to her neck and down her right arm.  This evidence was compelling.
5. All but one doctor agreed that such tears are caused by trauma.  In this case, there was no evidence of any event that could explain the trauma to the Plaintiff’s shoulder other than the accident.  She had no pre-accident functional issues.  She was working as a lifeguard, playing softball, and lifting and carrying her young children.  Her pain and loss of function coincided with the accident.

The Court confirmed that causation need not be determined by scientific precision.  It is a practical question of fact that can often be answered by ordinary common sense.  However, there still has to be some evidence supporting a finding of causation.

On the evidence as a whole, the Court found it more probable than not that the Plaintiff stretching her right arm back to brace her child during the accident caused her shoulder injury.  The resulting pain was immediate but masked by her other injuries such that she did not discern specific pain from her rotator cuff injury for several days.

The Court found on the whole of the evidence that the Plaintiff suffered a moderate tear to her rotator cuff, a superior labral tear, significant biceps tendinitis, and myofascial soft tissue injuries to her shoulder, neck and lower back during the accident.  She also suffered significant psychological injury and emotional distress, including depression and anxiety as a result of the accident.

The Court ordered the Defendant to pay the Plaintiff $120,000 in non-pecuniary damages.