$100,000 Non-Pecuniary Assessment For Back Pain With Unsuccessful Surgical Intervention

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back injury sustained as a result of a collision.

In today’s case (Gee v. Bock) the Plaintiff was involved in a 2014 collision.  The Defendant admitted fault.  The crash aggravated and worsened pre-existing back pain to the point of the Plaintiff undergoing disc replacement surgery which proved unhelpful.  He was left with chronic symptoms.  In assessing non-pecuniary damages at $100,000 Madam Justice Marzari made the following findings:

[89]         I accept the opinion of Dr. Heran that herniated discs can heal with time and without intervention, and that this appears to have occurred in Mr. Gee’s case by 2005. I accept Dr. Heran’s evidence that Mr. Gee’s lower back surgery after the accident related to a different location on his spine, and was required due to an event that exacerbated his underlying degenerative disc disease. I also accept Dr. Heran’s evidence that in the majority of patients, the pain symptoms experienced by Mr. Gee after the accident would not spontaneously occur as a result of his pre-existing disc problems, and that the accident triggered or caused the more significant pain that required medication, treatment, and ultimately led to the recommendation and performance of disc replacement surgery…

[93]         I accept Drs. Heran and Hawkeswood’s assessments that the accident aggravated or activated underlying degenerative changes in Mr. Gee’s spine that were largely quiescent. This resulted in Mr. Gee being prescribed a more intensive medication regime and being recommended for and accepting disc replacement surgery. I accept that Mr. Gee must have been in sufficient discomfort to accept Dr. Matishak’s recommendation of disc replacement surgery.

[94]         I accept that Mr. Gee’s condition was not improved by the surgery, and was likely worse, and significantly worse for two months after the surgery when he was unable to climb stairs or sleep in his own bed.

[95]         I find that Mr. Gee was largely recovered from the surgery by early 2017, and that his level of function shown in the video footage taken in April 2017 showed that recovery. It also showed a level of function no better, and likely worse, than what he had before the accident and the surgery.

[96]         Mr. Gee continued to require regular prescription pain medications after the surgery, and it is primarily Mr. Gee’s dependence on pain medication that has inhibited him from attempting a return to work…

98]         I also accept Dr. Muir’s assessment that Mr. Gee now, as a result of his increased back pain and failed surgery, has experienced an exacerbation or relapse of his depression symptoms and a worsening of his anxiety, which was manageable with the use of Ativan taken as needed immediately prior to the accident.

[99]         With respect to the impact of these conditions, I find that Mr. Gee is suffering from a dependence on medication, and that his depression and anxiety have increased. With respect to his lower back pain, I find that it was significant enough to warrant a highly invasive surgery, but that his pain is now manageable with the assistance of pain medications. I accept Dr. Hawkeswood’s opinion that Mr. Gee’s dependence on pain medication is something that can likely also now be reviewed and his medications modified…

[176]     I have found that Mr. Gee would not have undergone the surgery but for the additional pain he was in as a result of the accident, and that the surgery caused Mr. Gee considerable additional pain and difficulty. His prognosis is significantly worsened as a result of the accident and resulting failed surgery. He now lives with depression and anxiety that was worsened by the accident. The accident also caused Mr. Gee to go on stronger pain medications and develop a dependency on them.

[177]     Having reviewed all of the above and the comparable cases provided to me, I assess Mr. Gee’s non-pecuniary losses in the amount of $100,000.