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

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized.

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’s 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.

$125,000 Non-Pecuniary Assessment for Chronic Cough

Written by admin on . Posted in ICBC Spine Injury Cases.

In what can be described as a fairly unique injury, reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic cough caused by a motor vehicle collision.
In today’s case (Reilander v. Campbell) the Plaintiff was involved in a 2006 rear-end collision.  The Plaintiff developed a chronic cough following the crash.  The Plaintiff alleged this was caused by a C5/6 disc herniation which interfered with her oesophagus resulting in the chronic cough.

The Plaintiff went on to have surgery to address her disc injury which somewhat improved her chronic cough.  Mr. Justice Leask found that the cough was indeed related to the collision and assessed non-pecuniary damages at $125,000.  In doing so the Court provided the following reasons:

[26] Dr. Matishak’s opinion was that Ms. Reilander:

… suffered the onset of neck pain, persistent and unremitting cough, and left arm pain and weakness following the motor vehicle accident of July 29th, 2006. Radiological investigation revealed a central C5/6 disc herniation. Therefore, I would opine that the C5/6 disc herniation is a direct result of the motor vehicle accident of July 29th, 2006…

[32] Taking into account the facts that I have found based on the evidence given by the Reilander family and the expert opinions of both Dr. Matishak and Dr. Gittens, I am satisfied that the plaintiff has demonstrated on a balance of probabilities that the motor vehicle accident of July 29, 2006 caused a disc herniation at C5/6 on her cervical spine and that disc herniation was the principal cause of her persistent and debilitating cough…

[36] Considering the effect on the plaintiff’s personal life, child-rearing responsibilities, marital relationship and her ability to participate in the exercise of her religion, I am satisfied that the plaintiff’s submission is appropriate. I award the plaintiff $125,000 for non-pecuniary damages.

$100,000 Non-Pecuniary Assessment For S1 and Sciatic Nerve Irritation

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain caused by low back nerve root irritation.
In this week’s case (Stanikzai v. Bola) the Plaintiff was involved in a 2007 motor vehicle collision.  The Plaintiff sustained various soft tissue injuries and in addition the crash caused persistent low back pain involving the Plaintiff’s S1 and sciatic nerves.  The Plaintiff’s symptoms were expected to continue with the prognosis being “quite guarded“.

Mr. Justice Smith assessed non-pecuniary damages at $100,000 although reduced this amount by 15% to account for a “measurable risk” that the Plaintiff would have experienced similar symptoms even without the collision due to pre-existing factors.  In arriving at this assessment Mr. Justice Smith provided the following reasons:
[24] Dr. Yu also believes the accident caused a low back injury that resulted in left sided sciatic pain with “obvious clinical signs of an S1 nerve root irritation.” Like Dr. Caillier, he said the plaintiff had pre-existing degenerative disc disease, but that is a very common condition and does not necessarily cause pain or other symptoms. However, Dr. Yu agreed on cross-examination that the plaintiff’s disc degeneration is severe for a person his age. Dr. Yu and Dr. Caillier also agreed that the disc degeneration put the plaintiff at increased risk for back pain and sciatica and that disc herniation and resulting pain can occur without any significant trauma…

[26] Dr. Caillier said that given the chronic nature of the plaintiff’s symptoms, he is likely to have ongoing low back and radiating leg pain as well as sensory disturbance and weakness in the left leg. Although she says some improvement may be possible with medication and a physical reconditioning program, his prognosis “remains quite guarded.” She said his ability to work will be effected by his low back symptoms and resulting limitations in “sitting, standing, lifting, carrying, bending, twisting, crouching, as well as any other impact activities.” She concludes:

It is my opinion that Mr. Stanikzia’s injuries sustained in the motor vehicle accident of August 25, 2007 have had a significant negative impact upon his future employability as well as lifestyle, and in this regard I am in agreement with Dr. Yu. I am also in agreement that there will be some longterm disability associated with his symptoms, whether he chooses to go forward with surgical or nonsurgical options.

[27] Dr. Yu said the plaintiff’s symptoms will likely “persist for the foreseeable future.” Although surgery could be performed to remove the bulging disc, Dr. Yu said even that is unlikely to provide complete relief.

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion…

[31] The Defendants agree that the plaintiff suffered some injury, but say his spine was already in a severely degenerated condition and the accident only aggravated or accelerated that pre-existing condition. They also say there was a significant risk that condition would have detrimentally affected the plaintiff in the future even without the accident. Those are issues to be considered on assessment of damages. Based on the only medical evidence that is before me, I find that the plaintiff has a low back injury, with associated nerve root involvement, that was caused or contributed to by the accident.

[32] I also find that the plaintiff has experienced and will continue to experience low back pain. Based on his evidence and that of other witnesses, I find that he remains able to do a variety of day-to-day tasks, but is restricted from more strenuous activities, including his former recreational activities, and that the pain significantly interferes with his quality of life…

[42] Apart from what I have found to be a real possibility of future back problems in any event, I find Majer and Crane to be the most comparable. Both cases involved ongoing and likely permanent back pain that, while not completely disabling, severely limited the plaintiff’s work and recreational activities. Both involved pre-existing conditions that were asymptomatic at the time of the accident, although the plaintiff in Crane had, like this plaintiff, a previous history of back pain. The court awarded non-pecuniary damages of $95,000 in Majer and $100,000 in Crane.

[43] If I had not found the plaintiff to have been at significant risk for back problems, I would have assessed non-pecuniary damages of $100,000. In recognition of that risk, I apply 15 per cent reduction and assess non-pecuniary damages at $85,000.

$65,000 Non-Pecuniary Damage Assessment for Chronic Headaches and Soft Tissue Injuries

Written by admin on . Posted in ICBC Headache Cases, ICBC Spine Injury Cases, Uncategorized. 1 Comment on $65,000 Non-Pecuniary Damage Assessment for Chronic Headaches and Soft Tissue Injuries

Adding to this site’s archived posts of BC non-pecuniary damage assessments for chronic headaches, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In last week’s case (Fell v. Morton) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered from pre-existing neck and upper back pain along with “headaches that were brought on by exertion“.  Following the crash she suffered soft tissue injuries to these regions along with a recurrence of frequent migraine headaches.   These aggravated symptoms continued to the time of trial and the prognosis for full recovery was poor.  In assessing non-pecuniary damages at $65,000 Madam Justice Fenlon provided the following reasons:

[23] Having considered all of the evidence, I find that Ms. Fell suffered soft tissue injuries to her upper neck and back as a result of the accident. I further find that those injuries triggered a recurrence of migraine headaches that had been almost entirely in remission since the birth of her first son.

[24] The migraines initially occurred twice per week, gradually decreasing to about once or twice each month by the time of trial. Ms. Fell’s headaches are debilitating, involving nausea and extreme sensitivity to light and sound. They sometimes last for two or three days, and all Ms. Fell can do is lie in a darkened room. She could not attend her wedding reception in Mexico in April 2010 because of a migraine headache…

[28] I find that prior to the accident Ms. Fell tended to suffer regularly from neck and upper back pain and headaches that were brought on by exertion. She sought regular massage therapy and chiropractic treatment in relation to those symptoms. She also had a proclivity to develop migraine headaches, and that condition meant she was susceptible to something else triggering her headaches in future.

[29] Ms. Fell should not be compensated for her pre?existing condition or the potential for it to reoccur quite apart from the injuries sustained in the motor vehicle accident…

[38] Ms. Fell is a stoic individual whose attitude in the face of life’s difficulties is to get on with it, in her words, “to suck it up”. She should not receive a lower award of non-pecuniary damages because of that stoicism. Indeed, to the contrary, it is appropriate to include under this head the suffering she endured while she pushed herself to keep working after the accident, despite her injuries.

[39] In summary, the injuries from the accident have affected all areas of Ms. Fell’s life. While she has periods of time when she is unaffected by her injuries, in particular when she avoids exertion, she has curtailed her recreational activities, no longer camping, exercising at the same level, or taking her dogs for on-leash walks with her husband. She has found it difficult to pick up her children and cannot interact with them when she has a migraine. However, as I have earlier noted, I must also take into account her pre?existing condition and proclivity to develop migraine headaches.

[40] Taking all of these considerations into account, I set non-pecuniary damages at $65,000.

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

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized. 68 Comments on "Scientific Certainty" Not Necessary to Prove Causation in Disc Injury Claim

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 – no 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 “essentially a practical question of fact which can best be answered by ordinary common sense”. …

[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.

$85,000 Non-Pecuniary Damage Assessment For Annular Tear

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized.

(Disk Herniation Image via Wikipedia)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a vocationally disabling spine injury.
In last week’s case (Peers v. Bodkin Leasing Corporation) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist focusing the trial on the extent of the Plaintiff’s injuries.
The Plaintiff worked his whole life in the forest industry as a boom boat operator.  The collision caused a spine injury (an annular tear which left him vulnerable to disk herniation) which fully disabled the Plaintiff from his own profession and largely disabled him from other professions.  In assessing non-pecuniary damages at $85,000 Madam Justice Humphries provided the following reasons:
[45] Dr. Kokan was of the view that the shocks experienced by Mr. Peers this past spring indicated an annular tear as a result of the accident that may be progressing into a herniated disk.  That could lead to neurological changes including numbness to his lower extremities and even weakness with loss of bowel and bladder control.  Mr. Peers would likely need surgery which could reduce but not necessarily eliminate the pain…
[53] I am satisfied that Mr. Peers made a determined effort not to let the pain interfere with the work he loved, but it eventually proved too much for him, and he was force to quit.  It may be that the shocks should be further investigated, and that Mr. Peers should not be as frightened of the potential for disk herniation as Dr. Kokan suggests.  Nevertheless, I accept that pain from the accident was the eventual cause of Mr. Peers’ inability to continue to work as a boom boat operator and at physical jobs in general…

[59] Mr. Peers must cope with a life that is very different from the one he led previously, and at the age of 53, he is unlikely to return to the activities he loved, even at a reduced level.  He has lost the ability to rely on his great strength and agility, which sustained his confidence and self-esteem, and although he can still participate in some activities, he is simply not the person he was.  He has tried, since the accident, to stay in the working world which defined him, and to remain active and replace the sports he loved and excelled at with others that he could at least participate in.  Since he quit work in March of this year when his symptoms became too much to handle and moved to Powell River, he describes a life which is reclusive and lonely.

[60] However, the future is not, in my view, completely bleak.  While testifying, Mr. Peers displayed stoicism and a sense of humour, underneath his evident uncertainty about the turn his life has taken.  Having only recently quit work, he is obviously still coming to terms with the need to find a different lifestyle to fulfil himself.  He has a number of concerned friends and family members who worry about him and want to assist him in improving his life and increasing his social contacts.  He has moved away from his long time home in the Gibsons/Roberts Creek area, but now lives near his son and grandchild.  This should provide him with opportunities to join in community activities if he will avail himself of them.

[61] Nevertheless, the loss of his former work and lifestyle is profound.  The cases cited by the defendants do not deal with such substantial loss.  I accept the plaintiff’s position that non-pecuniary damages should be $85,000.

Relationship Breakup Following Collision "Too Remote To Create Liability"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, finding that a claim for damages for a break-up of a relationship following a collision is too remote for liability.
In last week’s case (Shinkaruk v. Crouch) the Plaintiff was involved in a 2006 collision.  He was found 20% at fault for the crash with the Defendant shouldering 80% of the blame.  The Plaintiff had “a significant history of low back pain” and this pre-existing injury was aggravated by the collision.  He was awarded damages for this aggravation.
During the period of aggravation the Plaintiff experienced difficulties with his partner and eventually she asked the Plaintiff to leave.  The Court found that this event was too remote to attract damages and in doing so Madam Justice Saunders provided the following reasons:

[59] It was apparent from Ms. Wahlwroth’s description of their interaction with each other, during the period in which Mr. Shinkaruk was convalescing from the accident, that their disagreements were largely a function of the two of them having very different visions of their roles and responsibilities within their relationship. It may be that these differences did not become manifest when the two of them had different working schedules. But with Mr. Shinkaruk at home in the evenings, she testified that she found it difficult to have him there without him making any contributions to the housework, making meals, cleaning up dishes, and doing other tasks which she felt he was physically capable of. She contrasted his lack of contribution with efforts made by husbands of friends of hers, when the couples had dinner together. Their differences were compounded by their poor communication skills, and they became trapped in a cycle of angry arguments, sniping and a lack of mutual respect. This climaxed during the December 2006 family vacation, when they spent little time in each other’s company, and had heated arguments when they did. She did not want her 13 year-old son exposed to that kind of behaviour, and that was a key consideration in her asking Mr. Shinkaruk to leave. These communication problems are issues which, she testified, they have both done a lot of work on recently and now that they are seeing each other again, there is a greater deal of emotional maturity being exhibited by both of them.

[60] It appears from the evidence that the most that could be said is that the motor vehicle accident contributed to the breakup in that it created a living situation, with Mr. Shinkaruk at home convalescing, in which fundamental and deep-seated issues between this couple became manifest. To the extent that Mr. Shinkaruk may have suffered emotionally or psychologically due to their breakup in December 2006, the defendant’s negligence is too remote to create liability.

$70,000 Non-Pecuniary Damage Assessment for Subligamentous Disc Herniation

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing fault and damages stemming from a 2006 motor vehicle collision.
In last week’s case (Power v. Carswell) the Plaintiff was involved in a two vehicle collision in Kamloops, BC.   The Defendant blew a red light while attempting a left hand turn and collided with the Plaintiff’s vehicle.  Although he denied liability the Court found him fully at fault.
The Plaintiff suffered various injuries in this collision the most serious of which was a subligamentous disc herniation at L4-L5.

She was expected to have chronic lower back pain as a result of this injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $70,000 Madam Justice Gray provided the following reasons:

[178] Ms. Power suffered moderate soft tissue injuries to her chest, left neck, left shoulder, and lower back in the Accident. The Accident caused a subligamentous disc herniation at L4-L5 which has caused her significant pain in her lower back. Despite painful treatment by cortisone injections into her hips and epidurally, her pain persists.

[179] Ms. Power now experiences hip and lower back pain which limits her ability to sit, stand, walk, and bend. She also experiences shoulder pain which limits her ability to hold her hands near or above shoulder level. As a result of these limitations, she can no longer work as a hairstyling teacher. Ms. Power made significant efforts following the Accident to continue in that line of work, but even with significant modifications, she was not able to do so on a prolonged basis. She has made the reasonable decision to pursue a different career which will more likely suit her physical capacity.

[180] As a result of her injuries, Ms. Power is also less able to care for herself and her family. For example, she has difficulty styling her own hair and doing laundry and other chores.

[181] As a further result of her injuries, Ms. Power suffers pain and is less able to enjoy recreational activities. For example, she is less able to go on long walks, to dance, and to sit for long drives or movies…

[188] In all the circumstances, an appropriate award for Ms. Power’s non-pecuniary losses is $70,000.

$95,000 Non-Pecuniary Damages For Disc Protrusions Requiring Discectomy; Dr. Dommisse Criticized

Written by admin on . Posted in ICBC Spine Injury Cases, Uncategorized.

(Image via Wikipedia)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries caused by a motor vehicle collision.
In last week’s case (Ng v. Sarkaria) the Plaintiff was injured in a 2007 collision.  The Defendant admitted fault for the crash.  The 31 year old Plaintiff suffered “a large focal disc protrusion at L4-5 and a less significant protrusion at L5-S1“.  As a result the Plaintiff went on to have a partial discectomy.
In assessing non-pecuniary damages at $95,000 Mr. Justice Butler provided the following reasons:
[43] In summary, Mr. Ng has been left with a limitation in the amount of activities he can do.  He has also suffered some restriction in the nature of the activities he can do because he is focused on staying healthy.  He is determined to continue his work as a TFR.  He is not disabled by pain and there is no suggestion that he suffers from chronic pain.  Rather, he has episodic pain when he overexerts himself…

[46] I have found the decisions referred to by the plaintiff to be helpful to my decision.  Of course, each assessment depends on the unique facts of the case.  Here, Mr. Ng’s injury was significant; however, he has had a very positive result from the surgery.  He continues to be able to do all of the activities of his job.  His income has increased to a level greater than it was before the accident.  He must be careful to avoid excessive stress on his back and must carefully balance his work and home life.  However, when I compare his situation to that of the plaintiffs in the cases he relies upon, he is in a better position because he does not experience ongoing chronic pain and is able to continue to carry out most of the activities he could before the accident.  However, I must also take into account the possibility that he will not be able to continue to perform at his current level as a result of the injuries suffered in the accident.  There is a possibility that his pain and restriction of activities will increase in the future.

[47] When I take all of these factors into account, I conclude that the appropriate award for non-pecuniary damages is $95,000.

Prior to reaching this decision the Court heard from competing medical evidence about the connection between the collision to the disc protrusions.  The physician retained by the defence (Dr. Dommisse) provided evidence minimizing this connection arguing the injury was perhaps more likely connected to a work related incident.  In rejecting this opinion Mr. Justice Butler provided the following criticism:
[30] The defence was critical of Dr. Aitken’s alleged failure to fully inquire into the work activities undertaken by Mr. Ng after he went back to work.  However, I am of the view that it is Dr. Dommisse who can be criticized for failing to back up his opinion by pointing to evidence that would connect the Herniations to a particular injury or incident at work.  All of the doctors were aware in general terms of the nature of Mr. Ng’s work.  They all agreed that it is possible for such work to cause a tortional injury to the spine.  However, there was no evidence that Mr. Ng suffered such an injury or insult at work between June 2008 and November 2008.  Indeed, he deliberately avoided the more onerous work tasks including those jobs requiring the use of the large ladder.  He does not recall using the ladder in that timeframe.  During much of that period he was off work, on light duties or avoiding heavy tasks.  The evidence established that there was only one significant injury or insult to Mr. Ng’s spine:  the injury that was suffered in the accident.

$140,000 Non-Pecuniary Assessment for "Partial Spinal Cord Injury" and Knee Injury

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC Spine Injury Cases, ICBC UMP Cases. 52 Comments on $140,000 Non-Pecuniary Assessment for "Partial Spinal Cord Injury" and Knee Injury

In my ongoing effort to create a searchable UMP Claims database, I summarize a 2009 UMP Decision dealing with an assessment of damages for serious injuries, including a partial spinal cord injury leading to temporary paralysis, following a head on crash.
In the 2009 decision (EH v. ICBC) the 10 year old Claimant sustained serious injuries when she was involved in a head-on collision on the Malahat Highway.  The Claimant’s injuries were severe and her right leg was completely paralyzed following the collision.  She fortunately went on to make an “excellent” recovery, however was expected to suffer from long term problems as a result of her injuries.
The at-fault driver was an “underinsured” motorist and the parties agreed to have the quantum of the claim assessed via UMP arbitration.  Arbitrator Yule assessed the Claimant’s non-pecuniary damages at $140,000 and in doing so provided the following reasons:
76.  At age 10 the Claimant sustained serious, multiple injuries in the Accident.  The three most serious injuries were:
a.  A Brown-Sequard partial cervical spinal cord injury
b.  Bony cervical spine injuries including compression fractures at C-7, T-1 amd T-2, facet subluxation at C-7 – T-1 and avulsion of the C-7 spinous process; and
c.  an anterior tibial spine avulsion injury in her right knee (anterior cruciate ligament avulsion and grade 2 medial collateral ligament strain)
77.  At the outset, her right leg was completely paralyzed.  She:
a.  spent 50 days in three different hospitals
b.  experienced neuropathic pain (excruciating pain to mere touch) for 20 days;
c.  required her neck immobilized in sandbags when in bed;
d.  at all other times wore a Minerva brace for 60 days;
e.  wore an extreme right knee brace for 75 days; and
f.  wore a plastic boot on her right foot for foot drop for approximately 5 weeks.
As of August, 2006, approximately five months post-accident she:
a.  had received 70 physiotherapy treatments; and
b.  40 occupational therapy treatments.
The Accident and the acute treatment phase was a wholly frightening experience for a young child.  For par of her hospitalization she was in isolation.
78.  The Claimant sustained a number of permanent disabilities as follows:
a.  right leg limp
b.  weakness, fatigue and reduced endurance in the right leg;
c.  loss of sensitivity of the left leg exposing her to the risk of burns or frostbite
…
87.  …having in mind the Claimant’s initial complete right leg paraplegia, the extreme neuropathic pain which lasted for 20 days, the significant permanent restrictions resulting from weakness, fatigue and decreased endurance of the right leg, the impending surgical repair of right knee ligament damage and the early onset of symptomatic degenerative spinal arthritis I assess damages at $140,000.