$110,000 Non-Pecuniary Assessment For Chronic C5/6 Disc Herniation

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic disc injury sustained in a collision.
In today’s case (Arletto v. Kin) the Plaintiff was injured in a 2010 head on collision.  The Defendant admitted fault.  The Plaintiff sustained a variety of injuries the most serous of which was a disc herniation in his neck which caused chronic symptoms which adversely affected his career as a longshoreman.  In assessing non-pecuniary damages at $110,000 Madam Justice Dillon provided the following reasons:

[30]         The overwhelming medical opinions and testimony lead to the conclusion that the plaintiff did not have a pre-existing degenerative condition of the cervical spine. He was very healthy and had not been to a doctor in years.

[31]         Dr. Chin stated that there was a risk of further progression of the disc protrusion resulting in worsening symptoms in the future due to repeat injury or trauma. He considered that Arletto was vulnerable to this risk given the nature of his occupation and the fact of disease progression in the absence of additional trauma. Non-surgical management was recommended for now but the possibility of surgery in the future was not ruled out. Dr. Loomer thought that surgery could be a therapeutic consideration if Arletto’s symptoms became intolerable.

[32]         Dr. Nguyen also thought that there was an increased risk of progression of the disc protrusion with the plaintiff’s work. He recommended on-site ergonomic assessment but did not realize that Arletto changes his lift truck daily such that adaptation for individual ergonomics is not practical. He concluded that repetitive neck movement placed Arletto at risk for progression not only of disc herniation, but also arm weakness and worsening neck pain. In cross-examination, Dr. Nguyen said that Arletto was not a candidate for surgery now but that he could be in the future if the pain symptoms were accompanied by weakness or sensory loss.

[33]         Dr. Stancer said that the whooshing sounds that the plaintiff experiences in his left ear are not treatable. The symptoms had not improved over time and are likely to continue indefinitely. The same was said for the headaches with the expectation that they would continue in the same pattern with resultant sleep disruption…

[35]         It is now over five years since the accident. Only the soft tissue injury to the lower back has healed. The plaintiff has continued to work despite shifting pain and other symptoms. There appears no resolution to symptoms from his ongoing injuries. He has lost whatever enjoyment he had from what had already been a limited social life. He continues to look after his personal needs, in keeping with his non-malingering attitude. He has been perseverant and dedicated. As stated by Dr. Stancer, Arletto has coped surprisingly well in the face of continuing pain and uncertainty about his future…

[44]         The plaintiff’s situation is unique. The comparison cases are helpful but only indicators of how others’ pain and suffering were dealt with.

[45]         Arletto was 47 years old at the time of the accident. He had worked his way up to a full time union job as a longshoreman driving a forklift truck and enjoyed some seniority in that position. He was single but with strong family ties and had looked after his sister. He was driving his nephew to a game when the accident occurred. He was known to be private and reserved but enjoyed the collegiality of the union hall. He was healthy and had never been to a massage or physiotherapist.

[46]         Arletto is now 52 years old. He suffers from permanent pain in his neck and shoulder blade and has numbness and tingling down his left arm and into his fingers. He suffered a left-sided disc protrusion at C5/6 with associated annular tear in the accident. The protrusion has impinged the nerve and spinal cord, causing increased pain. He has undergone trigger point injections and two nerve root blocks to relieve the pain with only temporary relief. He has tinnitus and vertigo as a result of the accident. He suffers headaches about three times per week that interrupt sleep. He takes pain medication as required but not often because it interferes with work. A lower back soft tissue injury resolved after just less than two and a half years. Work aggravates his pain. His work has been permanently affected to the point that he has reduced working hours, given up hope of improving his union rating by becoming a crane operator, and planned for an earlier retirement. His family and other relationships have suffered and he cannot tolerate crowds or a noisy family dinner.

[47]         An appropriate award for non-pecuniary damages in this case is $110,000.