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Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘L4-5 disc injury’

$85,000 Non-Pecuniary Assessment For L3-4, L4-5 Disc Injuries

February 12th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages following a disc injury caused by a collision.

In this week’s case (Shipley v. Bye) the Plaintiff was involved in a 2010 rear end collision. The Defendant was found at fault.  The Plaintiff suffered multilevel disc issues following the crash which continued to pose some problems at the time of trial.  The Plaintiff worked at a warehouse and “was limited to unskilled or semi-skilled work“.  While he was able to eventually return to his occupation the injuries were expected to limit his ability to engage in heavy physical demands.  In assessing non-pecuniary damages at $85,000 Madam Justice Kloegman provided the following reasons:

[19]         In his report of September 17, 2013, Dr. Weiss concluded that:

1.     The motor vehicle accident produced an acute discogenic injury at the L4-5 level with possible L5 nerve root irritation. The plaintiff’s radicular symptoms had resolved and the disc prolapse had retracted.

2.     The current pain that the plaintiff was feeling was multi-factorial from a discogenic lesion at the L4-5 level, a pre-existing but a symptomatic dysplastic L3‑4 facet joint which had become inflamed from the accident, and soft tissue/ligamentous pain at the ilio-lumbar region which Dr. Weiss could not say was caused by the accident.

[20]         Dr. Weiss also opined in his report of September 2013 that the plaintiff had lost the physical capacity and functionality to perform heavier forms of work related activity. He stated that it is also likely that the plaintiff will remain compromised in his ability to perform heavy physical work due to persistent back pain, some of which was directly attributable to the accident. Dr. Weiss could not say that the accident had caused any acceleration in degenerative disc disease of the plaintiff’s lower back.

[21]         With the exception of the cause of the possible nerve root involvement at L5, Dr. Weiss’ conclusions were not challenged or contradicted and I accept them as accurate. I find that an L4-5 discogenic injury and an aggravation of a previously asymptomatic congenital dysplastic L3-4 facet joint were caused by the motor vehicle accident. Any other injuries or pain complained of by the plaintiff during the material time have not been proved, on a balance of probabilities, to have been caused by the subject accident…

[25]         I have reviewed the authorities provided to me by both counsel, some of which were the same. The most factually similar cases are Esau v. Myles, 2010 BCSC 43; Roy v. Storvick, 2013 BCSC 1198; Peso v. Hollaway, 2012 BCSC 1763; and Jackson v. Jeffries, 2012 BCSC 814. It appears from these cases that the plaintiff’s damages are in the range of $70,000 to $100,000. In my view, the plaintiff here should be awarded the sum of $85,000 for non-pecuniary damages.

 


Physician’s Evidence Rejeced for Lack of “An Open Mind” Regarding Collision Related Injury

August 8th, 2013

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.

In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.

The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:

[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:

1.     He took what can only be described as a cursory history from Ms. Sekihara;

2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;

3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;

4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and

5.     he was evasive at times in his oral testimony.

[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.

[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 

[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 

[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 

[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.


$95,000 Non-Pecuniary Assessment For Chronic L4/5 Disc Herniation With Liklihood of Surgery

March 27th, 2013

Adding to this site’s archived cases addressing non-pecuniary damages for spine injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a low back disc injury.

In this week’s case (Muhammedi v. Ogloff) the Plaintiff was involved in a 2009 rear-end collision.  Liability was admitted.  The Plaintiff suffered various soft tissue injuries and also an L4/5 lateral disc herniation.

This injury remained symptomatic at the time of trial and there was a greater than 50% chance that the injury would eventually require surgical intervention.  In assessing non-pecuniary damages at $95,000 the Court provided the following reasons:

[88]         Dr. Kokan was of the opinion that, from the accident, she had right side L4/5 far lateral disc herniation and persistent cervical myofascial pain.  He concluded:  “The motor vehicle [accident] as described, in my opinion, is most responsible for the onset of symptoms.”  While this aspect of his report was not clarified, it was clear from his testimony that the cause of her injuries was the car accident.

[89]         He felt her prognosis to be uncertain, and stated as follows:

Generally, I expect at least the current level of symptoms.  Far lateral disc herniations are typically more problematic with respect to symptoms.  Usually they can produce significant nerve root compromise given that they are located lateral to the foramen and pedicles, thereby there is less room for the exiting nerve root, thereby physical compression and symptoms are common.

I would expect usually that Mrs. Muhammedi would have at least the current level of symptoms in her back and that she would experience aggravations brought on in proportion to future activities.  Heavier activities would go on to produce potentially more troubling symptoms.

In the event that she should have ongoing and disabling neurological symptoms, she would probably have to consider surgical treatment.  The orthopaedic literature varies with respect to the need for surgery.  The possibility that she could require surgical treatment in the future is probably greater than 50%.  I say this because of her relatively young age and the associated presence of this type of disc protrusion…

[117]     The physicians all agree, and there is no issue in this regard, that the plaintiff sustained a far lateral disc protrusion.  All similarly agreed that the cause of the disc protrusion was the accident….

[157]     I find that it is clear from the expert reports tendered and the plaintiff’s evidence that she continues to sustain ongoing problems from this accident.  I find that this brings this case beyond the nature of the type of injuries in the cases cited by the defendants. It is more severe, more akin to the plaintiffs’ injuries in the cases cited by the plaintiff.

[158]     In all the circumstances, I award Ms. Muhammedi $95,000 for her non-pecuniary damages.  This recognizes the ongoing difficulties that she has and the possibility, which was deemed by the physicians, indeed by Dr. Kokan to be greater than 50%, that the plaintiff will require surgery at some time in the future.


$80,000 Non-Pecuniary Damages Assessment for L4-5 Disc Injury

June 3rd, 2011

Reasons for judgement were released yesterday by the BC Supreme Court, assessing damges for non-pecuniary loss (pain and suffering and loss of enjoyment of life) for an L4-5 disk herniation.

In yesterday’s case (Doho v. Melnikova) the Plaintiff was involved in two seperate collisions.  Fault was admitted in both actions leaving the Court to assess damages.  The first collision caused a disk injury at the 4-5 level of the Plaintiff’s lower spine.  The second collision resulted in a minor aggravation of this.

The prognosis for recovery was poor and the Plaintiff was expected to experience ongoing pain and discomfort in his lower back as a result of the first collision.  In assessing non-pecuniary damages at $80,000 for the first collision Mr. Justice Rogers provided the following reasons:

[38] The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.

[39] I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.

This case is also worth reviewing for the Court’s discussion of the principle of ‘failure to mitigate‘ at 49-53.