$60,000 Non-Pecuniary Assessment For Onset of Symptoms in Pre-Existing Degenerative Disc Disease

As previously discussed, a common occurrence following a collision is the onset of symptoms in a pre-existing, but otherwise asymptomatic, conditions.  Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, highlighting and assessing damages for such a scenario.
In this week’s case (Zawislak v. Karbovanec) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the opposing motorist.  The Plaintiff had pre-existing, asymptomatic, degenerative disc disease in his spine.  The collision rendered this condition symptomatic resulting in on-going chronic symptoms.  In assessing non-pecuniary damages at $60,000 Madam Justice Gerow provided the following reasons:

[31] Dr. Cameron, a neurologist, examined Ms. Zawislak on August 24, 2011. He found signs of muscle spasm in her shoulder muscles and neck muscles, left side predominant. In Dr. Cameron’s opinion, Ms. Zawislak suffered a soft tissue injury and musculoskeletal injuries to her neck, shoulders and upper back in the motor vehicle accident. Ms. Zawislak has developed headaches associated with the neck pain as a result of the musculoskeletal injuries to her neck and shoulders that she sustained in the accident. In Dr. Cameron’s opinion, Ms. Zawislak remains partially disabled because of the ongoing upper back pain, headaches and neck pain which had resulted from the soft tissue injuries and musculoskeletal injuries in the form of a whiplash she sustained in the motor vehicle accidents.

[32] According to Dr. Cameron, 80% of the individuals over the age of 40 have degenerative disc disease and most of those individuals go around without pain until a trauma, such as a motor vehicle accident, renders their disc disease symptomatic. Trauma makes the asymptomatic condition symptomatic. Ms. Zawislak’s neck was partially degenerated and, in his opinion, her ongoing pain in her neck, with the attendant headaches, and her back are likely caused by the motor vehicle accident…

[44] In my view, the evidence establishes that the probable cause of Ms. Zawislak’s headaches, neck pain, upper back and shoulder pain is the motor vehicle accident exacerbating the pre?existing asymptomatic degenerative disc disease. While there was some risk of her degenerative disc disease becoming symptomatic, the medical evidence was that it was likely it would not become symptomatic absent a trauma. In my opinion, this case falls within the “thin skull” rule as opposed to the “crumbling skull” rule enunciated in Athey, and the defendants are liable for Ms. Zawislak’s injuries even though they may be more severe than expected due to her pre?existing condition…

[49] Having considered the extent of the injuries, the fact that the symptoms are ongoing three years after the accident with very little improvement, that the prognosis for full recovery is guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non?pecuniary damages is $60,000.

degenerative disc disease, Madam Justice Gerow, onset of symptoms in pre-existing condition, pre-existing asymptomatic conditions, Zawislak v. Karbovanec

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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