This is an important decision from the Court of Queen’s Bench of Alberta referenced as Jones v. Stepanenko, 2016 ABQB 295 (CanLII).
The Plaintiff in this case was 19 years of age. She was involved in a serious collision when she was rear-ended by an SUV, causing 12,000 damage to the Defendant vehicle. The Plaintiff’s vehicle was written off. The impact thereafter pushed the Plaintiff’s vehicle into the vehicle ahead causing a second impact which was also significant. At the time of the collision, the Plaintiff was enrolled in nursing school.
We are going to review the following:
“minor injury”
“serious impairment”
“fibromyalgia”
Let’s review the interpretation under the Alberta Minor Injury Regulations of “minor injury” and “serious impairment”:
“minor injury”, in respect of an accident, means
a sprain,
a strain, or
a WAD injury
caused by that accident that does not result in a serious impairment;
“serious impairment”, in respect of a claimant, means an impairment of a physical or cognitive function
(i) that results in a substantial inability to perform the
(A) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,
(B) essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or
(C) normal activities of the claimant’s daily living,
(ii) that has been ongoing since the accident, and
(iii) that is expected not to improve substantially;
In Jones v. Stapenenko, the defence initially argued that the injuries suffered by the Plaintiff were deemed minor injuries and the Plaintiff had not established that the injuries were defined under the serious impairment category. As a result of these findings, the insurer cut off all accident benefits (Section B Benefits).
In reviewing this decision, I will summarize some of the evidence adduced by the defence:
- minor dorso lumbar strain with contusion strain of her left shoulder and right hip area
- no mention of neck pain or headaches noted in one report, although these were present
- no evidence of ongoing injury
- minimal ongoing subjective symptoms
- these injuries would pass with time
- orthopaedic surgeon only opined and commented on “orthopaedic issues”
- ongoing physiotherapy was not needed
- did not have any disability as Plaintiff was able to perform activities of daily living
- did not have any disability as Plaintiff was able to complete her nursing degree
- 3 to 6 months of symptoms by the Plaintiff did not remove her from protocol
- More active therapy was recommended by one expert
- if one suffers from a strain or sprain, this cannot lead to disability and therefore cannot be a “serious impairment”
- “As long as you can do it” is the bar which suggests it is not a “serious impairment”
- Plaintiff had full range of motion, as noted in one report
- tender in most of the Plaintiff’s tender points.
- Opinion: Plaintiff had fibromyalgia.
- WAD II type injury “settled” and classified as minor injury Minor Injury Regulations.
- fibromyalgia cannot be caused by trauma, as opined by one expert
- trauma is not related to fibromyalgia, as opined by one expert
- syndrome was not a direct reflection of the collisions as there was fatigue in the Plaintiff’s pre-existing history
- Plaintiff already had fibromyalgia that was not diagnosed and was only recognised after the accident.
The Plaintiff’s position was noted:
- There was some improvement admitted
- Return to school resulted in increased pain and challenges
- Physiotherapy was initiated due to increased pain
- Symptoms fluctuated with prolonged clinical placement, hours, sitting, studying
- Spinal stiffness and headaches were reported and ongoing
- Plaintiff did perform active treatment and supervised exercise program
- Experts need to understand the proper definitions of minor injury and serious impairment
- Plaintiff suffering from headaches, neck and back pain, numbness in her legs
- Plaintiff had restricted her recreational activities
- Symptoms of neck and back pain increased during nursing clinical work
- Plaintiff suffers from fatigue at end of day
- No exaggeration noted
- Plaintiff’s perception of injury was “severe”
- Diagnosis: post-traumatic sprain/strain injury, cervical spine, cervicogenic headaches, possible zygapophyseal joint injury, cervical spine (micro damage not able to be seen on diagnostic tests), post-traumatic lumbar spine dysfunction and possible discogenic injury to the lumbar spine, not able to be seen on ex-ray.
- Pain was elicited at fibromyalgia tender points – Ms. Jones had 12 of 18 such points
- Diagnosis: fibromyalgia
- Fibromyalgia and chronic pain is not a minor injury
- Nursing career would be impacted by diagnosis of fibromyalgia
- Various forms of treatment was recommended
Fibromyalgia
On the topic of fibromyalgia, let’s learn more about this chronic pain condition. Expert, Dr. Apel, provides an excellent opinion on fibromyalgia and allows us the opportunity to have a clearer understanding of this condition – her testimony was accepted by the court and was not shaken on cross-examination. Although somewhat lengthy, we must read this entire report for a clear understanding of fibromyalgia. The most important finding in this decision which was ultimately accepted by the Court is that fibromyalgia can be caused by trauma. This is a fantastic case, as 20 years ago, it was accepted that trauma is not the cause of fibromyalgia. In the 25 years I have worked in this industry, I can name a number of people I know that settled claims for far less because fibromyalgia was not deemed to be caused by trauma. Its incredible to see the evolution of medicine over time that suggests otherwise.
As noted by Dr. Apel:
“…fibromyalgia is a chronic pain condition which initially was designated by different names such as fibrositis, myositis and myofascial pain. Eventually certain criteria were established by the American College of Rheumatology to provide physicians with consistent tools to diagnose the condition. The criteria developed in 1993 had objective and subjective criteria – the objective being the tender points and the subjective being the experience of pain for more than 6 months and a certain element of fatigue, tiredness and unrestorative sleep.
In 2010, an easier to use, but perhaps not as robust criteria was developed by having a patient fill out a questionnaire and then determine if the criteria is fulfilled.
Dr. Apel uses both types of criteria.”
“…fibromyalgia can exist in conjunction with myofascial pain – which has a different set of criteria and is diagnosed by muscular trigger points. Many patients, like Ms. Jones, can have both.
Dr. Apel opined that there is no longer any controversy over the fact that fibromyalgia can be caused by trauma. It can also be idiopathic (no particular cause) or secondary to other disease processes like MS or Parkinson’s disease. The key to determining if it is post-traumatic is to rule out any pre-existing red flags like fatigue or pain.
Dr. Apel noted that there was controversy surrounding the possibility that fibromyalgia could be caused by trauma over 20 years ago but that debate is over. Even the WCB accepts that it can be post-traumatic. She also relies on the literature in the area and her 20 year personal experience treating fibromyalgia patients.
In her view, fibromyalgia or chronic pain does not fit the criteria of “minor injury” under the Regulations. It is not a “strain or sprain” and interestingly she pointed out that Alberta Health Services has different codes with different prognosis for fibromyalgia and myofascial pain compared to strain and sprain.
Dr. Apel noted that fibromyalgia can be “controlled” but not cured. It waxes and wanes in intensity. She noted that according to the Quebec Task Force, the majority of people with whiplash recover, 80% within 1 year and 90% within 2 years. If the patient doesn’t recover the pain may actually get worse and more widespread. A patient will perceive pain all of the time.
Dr. Apel explained that from a scientific point of view, fibromyalgia is not a disease of the muscle, but a disease of how the brain processes pain. If someone has chronic pain from trauma, and it doesn’t get better, it’s conceivable, in Dr. Apel’s view, that the brain will start to feel and let through more responses to sensations as pain.
In Ms. Jones situation, Dr. Apel noted that she had initial pain in a number of areas (left upper arm, left knee and shin, wrist, neck headache and back) which has become more confluent and chronic. She had improved from her initial injuries but was not maximally improved in 2012 when Dr. Apel saw her.
Dr. Apel opined that Ms. Jones had fibromyalgia caused by the accident after reviewing her pre-accident history very carefully. She noted that sometimes patients can already have many symptoms of fibromyalgia pre-trauma that are not diagnosed. However, in Ms. Jones case there was nothing in her view that could have supported a diagnosis of fibromyalgia pre- accident. In that regard she noted that had some emotional problems for a while and some fatigue but neither were long lasting and had been controlled well before the accident. There was no history of pain complaints, other trauma or other red flags. Ms. Jones had been healthy both physically and emotionally and was carrying on an active life. She also relied heavily on the opinion of Dr. Graham who confirmed no pre-existing issues of note.”
Conclusion and summary of quantum of damages
In summary, Ms. Jones suffered from a serious soft tissue injury accompanied by various contusions, lacerations and resultant severe headaches and resultant chronic pain condition which includes fibromyalgia and myofascial pain disorder. She has required a significant amount of treatment in the form of aggressive physiotherapy, massage, various medications, and an exercise program. Ms. Jones’ career path in nursing was altered and her recreational lifestyle diminished. She did all that could reasonably have been contemplated for her and yet unfortunately she developed a chronic pain condition and fibromyalgia which she will have to manage for the rest of her life. She has fought through her issues and as a result will be able to continue to develop her career. Through her perseverance she also maintains healthy relationships with the people who have stood by her, including her parents and boyfriend.
The collisions caused all of her injuries and conditions. She had no pre or post-accident events that account for any of these issues. She was a credible witness and made reasonable claims for her injuries. As a result, as discussed above, I award her the following in damages:
- Pain and suffering : $80,000
- Past loss of income: $18,403.79
- Loss of earning capacity: $125,000
- Loss of housekeeping capacity: $15,000
- Cost of future care: $36,500
- Special damages: $7,779.86
The total award is $282,683.65. In addition, she is awarded pre-judgement interest based on the Judgement Interest Act and its regulations on the pain and suffering, past loss of income, past housekeeping, and the special damages awards. Costs can be spoken to.
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Please review this decision for completeness and accuracy: Jones v. Stepanenko, 2016 ABQB 295 (CanLII)