Tag: annular tear

$75,000 Non-Pecuniary Assessment for Low Back Disc Protrusions With Chronic Symptoms

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury caused as a result of a motor vehicle collision.
In this week’s case (Roy v. Storvick) the Plaintiff was involved in a 2009 T-bone collision.  The Defendant admitted fault “just before the trial commenced“.  The Plaintiff, a 27 year old carpenter at the time of the crash, suffered various injuries the most serious of which involved disc injuries in his low back.  He was expected to have long term issues associated with these affecting his vocational abilities.  In assessing non-pecuniary damages at $75,000 Madam Justice Gropper made the following findings and provided the following reasons:
[50]         With respect to Mr. Roy’s lumbar spine, Dr. Murray comments:
As a direct result of [this motor vehicle accident], this 30-year-old carpenter sustained myofascial injuries to his cervical spine and a severe injury to his lumbar region where both clinically and radiologically he has evidence of lower lumbar disc protrusions principally at the L3/L4 level where there was an associated annular tear and also at the L4/L5 level where there was a moderate midline focal disc protrusion.
[51]         Dr. Murray says that lumbar disc protrusions usually run a protracted course of recovery: a three year duration is not unusual. He expects that Mr. Roy will eventually become pain free.
[52]         In regard to Mr. Roy’s tear of the annulus fibrosus at the L3/L4 level, it can never heal as it does not have a blood supply. Dr. Murray considers that Mr. Roy will always be at risk for further episodes of lumbar disc protrusion pain. Dr. Murray continues:
… he will not be able to continue with his career as a carpenter and will need to be retrained for a less physically demanding alternate occupation. It may be difficult to find such an occupation for this man as he is very much “the sporting type”, who prior to the [motor vehicle accident] three years ago attended the gym six times a week and also played soccer twice a week….
[105]     At the time of the injury, Mr. Roy enjoyed an active lifestyle. He was engaged in work as a carpenter and participated regularly and enthusiastically in many sporting activities. While he is able to continue his employment, the remaining aspects of his physical activities have come to an end. In reconciling the prognosis of Drs. Craig and Murray, I consider that Dr. Craig has an unduly optimistic view of Mr. Roy’s prospective recovery. I note that Dr. Craig had a more limited opportunity to observe Mr. Roy. He was also apparently unclear on the degree to which Mr. Roy was engaging in exercise.
[106]     I further note that Dr. Craig dismissed Dr. Murray’s treatment of Mr. Roy and recommended that Mr. Roy be assessed by a kinesiologist. Mr. Roy was assessed by Mr. Hunt, a kinesiologist, who put him through testing and concluded that Mr. Roy’s functioning is compromised and that he will likely have increased rather than reduced pain.
[107]     I find that Dr. Murray’s prognosis is more accurate and that his opinion Mr. Roy suffered a severe injury to his lumbar spine and a moderate to severe injury to his cervical spine is accurate. While Dr. Murray suggests that there may be some improvement, Mr. Roy is at risk of re-injury. He will also suffer from continuing pain and discomfort….
[109]     Having reviewed the cases provided by both parties, I assess Mr. Roy’s non-pecuniary damages at $75,000.

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

(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.

Disc Herniation, Nerve Damage and ICBC Claims

Reasons for judgement were released today compensating a Plaintiff injured in three separate BC car accidents, the first in August, 2002, the second in December, 2002 and the third in June 2003. At trial the issues were the extent of the plaintiff’s injuries and whether these were caused by the car accidents or other life events.
A frequent tactic of ICBC defence lawyers is to call evidence to cast doubt on the connection between motor vehicle accidents and trauma and find other explanations for injuries. In this case the defence lawyer pointed to a car accident that the plaintiff was at fault for and a work incident where the plaintiff aggravated his back as potential causes for the Plaintiff’s problems.
In ICBC claims a Plaintiff has the burden of proving the extent of his injuries and their connection to the car accident. If defence evidence can effectively point to another explanation an ICBC claim can be dismissed.
In this case the injuries were fairly serious. An MRI revealed a ‘tear in the annulus at L5/Ss and a disc bulge at L4/5 wit impingement of the L5 nerve root‘.
The court found that in cases where there are multiple potential causes of injury ‘it is most helpful to have the opinion of (the Plaintiff’s family doctor) who treated the plaintiff throughout and has a long history and detailed knowledge of the Plaintiff as a patient.’ The court found the GP’s findings of objective injury persuasive including ‘muscle spasm, reduced range of motion, and visible hypertonicity of the musculature following each of the three motor vehicle accidents’.
The court assessed damages for all three accidents globally. The court concluded that “the Plaintiff has, since December 7, 2002, experienced functional limitations due to his low, mid back, and neck pain with referral pain from the low back to his leg. The Plaintiff is unlikely to achieve a substantial improvement in future, but exercises and care will assist in controlling pain and flare-ups‘. As a result of this finding the court awarded $70,000 for non-pecuniary damages (pain and suffering).
Addressing past wage the court found that there was some failure of mitigation on the Plaintiff’s part. The Plaintiff’s claim for past wage loss exceeded 5 years. The court found that he could have returned to work in some capacity during this time. In all $50,000 was awarded for this loss.
The court also awarded $75,000 in damages for ‘loss of future earning capacity’ finding that

[50] There is no doubt that the plaintiff’s income earning capacity is affected by his chronic pain and physical limitations and disabilities. The plaintiff is by education and experience limited to low income, minimum wage types of employment, although that is reflective of his actual earnings history prior to his injury and disability.

[51] The pool of low income jobs available to the plaintiff is however much diminished as he can no longer work at jobs with a physical component which he can no longer meet. The plaintiff is 49 years old and increasing age will combine to impede access to the work for which he remains qualified.

[52] The plaintiff’s health may be stressed more than the average person requiring that he take more time off work. He may in future be more suited to only part time or work of a sporadic nature.

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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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