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Erik MagrakenThis Blog is authored by British Columbia personal injury 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 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 ‘L5-S1 Disc Herniation’

$100,000 Non-Pecuniary Assessment For Multi Level Disc Herniations

July 16th, 2013

Adding to this site’s archives addressing non-pecuniary damages for spine injury cases, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with such an injury.

In the recent case (Tabet v. Hatzis) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk. ¬†He suffered a variety of injuries the most serious being multi level disc herniations in his low back which went on to cause chronic symptoms. ¬†In assessing non-pecuniary damages at $100,000 Madam Justice Dickson provided the following reasons:

[47]         The defence does not challenge most of the expert evidence presented by Mr. Tabet regarding his accident-related injuries.  In summary, he has been diagnosed by Dr. Sahjpaul, a neurosurgeon, as suffering from low back pain; myofascial and discogenic neck pain; myofascial left leg symptoms, radicular and discogenic; and concussion, resolved.  Dr. Sahjpaul also diagnosed left arm symptoms, but the etiology of those symptoms is uncertain.  In addition, Mr. Tabet has been diagnosed by Dr. Chernick, a psychiatrist, as suffering from depression.  Other than the left arm symptoms, I accept that these conditions are causally connected with the accident.

[48]¬†¬†¬†¬†¬†¬†¬†¬†¬†According to Dr.¬†Sahjpaul, a September, 2007 post-accident CT scan demonstrated a left L4-5 disc herniation and a broad based L5-S1 disc bulge.¬† Subsequent investigations demonstrated the L5-S1 disc bulge has also become herniated.¬† Unfortunately, Mr.¬†Tabet’s prognosis for complete recovery from associated symptoms is not favourable.¬† While it is possible that his left leg symptoms will improve somewhat it is unlikely that his back pain and neck pain will improve substantially, even with surgery…

[76]¬†¬†¬†¬†¬†¬†¬†¬†¬†There is merit in both submissions made by counsel.¬† Mr.¬†Tabet’s physical and emotional suffering is significant and his overall enjoyment of life has been seriously compromised.¬† Nevertheless, he has pushed himself hard and his work regimen reflects both a choice on his part and stoicism. ¬†Taking into account all of the facts summarised above, I conclude that an award of $100,000 in non-pecuniary damages is appropriate in all of the circumstances of the case.


$40,000 Non-Pecuniary Assessment for L5-S1 Disc Herniation

July 4th, 2012

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for injuries, including a symptomatic L5/S1 disc herniation sustained in a motor vehicle collision.

In the recent case (Pataria v. Bertrand) the Plaintiff was involved in a collision when he was 12.  Fault was admitted by the offending motorist.  Although the Court heard competing evidence about the cause of a low back disc injury Mr. Justice Truscott ultimately found this was caused by the trauma in the collision.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[171] I accept that the plaintiff sustained soft tissue injuries to his neck and back area, with accompanying headaches, in the motor vehicle accident. I also accept that initially he had symptoms of post-traumatic stress, difficulty falling asleep and hypervigilance, although those problems quickly resolved.

[172] I conclude however that physically the plaintiff is not as injured as counsel makes out. He is able to swim regularly and work out with weights in the gym.

[173] After the accident he was able to return to his sports of soccer, basketball and volleyball, albeit not at the same level of performance.

[174] At his examination for discovery on July 22, 2010 he said he was only feeling back symptoms once or twice a week.

[175] It is also a fact that initially he did not accept the recommendations of Dr. Low that he work harder at recovery although he has improved his effort as time has gone on.

[176] I accept the opinions of Dr. Purtzki that the plaintiff has evidence of allodynia and hyperalgesia and seems to experience non-painful stimuli as painful and mildly painful stimuli as more painful, as a generalization to the area of pain. This is commonly seen with ongoing chronic pain complaints. At the same time she says he may experience gradual improvement of pain in the next few years.

[177] I also accept her opinion that it is more likely than not that the motor vehicle accident is the cause of the disc protrusion which is most symptomatic at L5/S1. Her analysis of the medical literature indicates that in a young man such as the plaintiff disc herniation is much less likely to occur without trauma and the plaintiff‚Äôs low back complaints here arose following the motor vehicle accident…

[191] I consider an appropriate figure for general damages for this plaintiff, in the absence of any evidence from a spine surgeon and any prognosis for the psychological problems, to be $40,000.


"Scientific Certainty" Not Necessary to Prove Causation in Disc Injury Claim

March 7th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, discussing the issue of causation in a disc injury claim.

In this week’s case (Valuck v. Challandes) the Plaintiff was injured in a 2007 head-on collision. ¬†Fault was admitted by the offending motorist. ¬†The Plaintiff was ultimately diagnosed with a disc protrusion at the L5-S1 Joint.

ICBC argued the disc protrusion was not caused by the crash or if it was it would have occurred even in the absence of the collision.  Mr. Justice Rogers disagreed and found that while it was not scientifically possible to say with certainty that the disc injury was caused by the crash, it certainly was an event that materially contributed to the injury.

Mr. Justice Rogers assessed non-pecuniary damages at $100,000 but then reduced this award by 40% to take into account the fact that the injury may have occurred even without the crash.  In discussing causation the Court provided the following reasons:

[59] There is a conflict in the evidence concerning the cause of the herniation of the plaintiff’s lumbar disc at the L5-S1 joint. According to Dr. Laidlow, the plaintiff’s disc was probably not injured in the collision. He bases his opinion primarily on the fact that the plaintiff’s complaints of low back symptoms did not start until several weeks after the accident. According to Dr. Laidlow, if the disc had been damaged in the accident then the plaintiff would have had symptoms in that area right after the event and that she would not have been able to ignore those symptoms. According to Drs. Shuckett and Craig, the impact likely caused some damage to the plaintiff’s lumbar disc and that damage materially contributed to the herniation that the plaintiff subsequently experienced a year and a half later.

[60] I found Dr. Laidlow’s evidence to be particularly useful here. Dr. Laidlow said, and I accept, that a spinal disc comprises a containment vessel made up of fifteen to twenty layers of fibrous material and of viscous disc material lying within the containment vessel. The fibrous layers of the wall can, over time, suffer tears. The tears can be spontaneous or, rarely, they can be caused by trauma. The tears may heal over time, or they may not. Tears may occur without causing any symptoms at all. Enough tears may, at some point, be present in the disc wall so that the wall begins to fail. If that happens then the disc might bulge out. The bulging can intrude on pain sensitive tissues and pain may result.

[61] At some further point, enough tears may be present in the fibrous layers to compromise the wall itself and the wall breaks. In that event, the viscous inner disc material will escape from the disc. The escaped material is termed a protrusion and the condition is known as a herniated disc. The protrusion may impinge on surrounding tissues, causing local pain. The protrusion may also impinge on the nerve roots that exit the spine at the site of the hernia. In that case, symptoms usually include pain radiating along the area enervated by that particular nerve.

[62] Dr. Laidlow testified that an accident such as the one in which the plaintiff was involved would likely have caused damage of some kind to her spine. Dr. Laidlow was not willing to say for sure such damage included tears in the wall of the plaintiff’s lumbar disc. In his view, such damage was possible, but that he could not say for sure one way or the other. Given the several weeks’ delay between the trauma of the accident and the onset of the plaintiff’s low back pain, and the year and half that passed between the accident and the herniation, Dr. Laidlow felt that the accident could not be said to be a material contributing factor in the herniation.

[63] Although Drs. Schuckett and Craig did not say so in so many words, the gist of their evidence was that they thought that the accident probably did weaken the disc and thus materially contributed to the herniation that occurred on the Labour Day weekend of 2008.

[64] Dr. Laidlow cannot be faulted for testifying that there is no way to know if the accident in fact caused one or more tears to the wall of the plaintiff’s lumbar disc Рno images exist to show the state of her disc in intimate detail immediately before or immediately after the accident, and no physical examination short of a biopsy could have illuminated that issue for him.

[65] I have concluded that the evidence in this case does not admit a scientifically certain answer to the herniation question. Scientific certainty is not necessary, however. As the Supreme Court of Canada said in Athey v. Leonati, [1996] 3 S.C.R. 458 at paragraph 16:

…Causation need not be determined by scientific precision; as Lord Salmon stated in¬†Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p.¬†490, and as was quoted by Sopinka J. at p.¬†328, it is ‚Äúessentially a practical question of fact which can best be answered by ordinary common sense‚ÄĚ. …

[66] After taking into account all of the medical evidence and the all of evidence of the plaintiff and her witnesses, and after applying a soupcon of common sense to the mix, I have concluded that the accident did cause some damage to the containment wall of the plaintiff’s L5-S1 disc and that that damage was a material contributing factor in the herniation that occurred at the end of August 2008. It follows that I find that the defendant is liable for damages caused by that herniation.


 

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