Tag: c5/6 disc injury

$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.

$225,000 Non-Pecuniary Assessment for Chronic and Disabling Conversion Disorder

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a disabling conversion disorder following a motor vehicle collision.
In this week’s case (Best v. Thomas) the Plaintiff was operating a motorcycle when he was rear-ended by a van.  The Plaintiff suffered a spine injury at C-5 which required surgical correction.  He went on to suffer from a variety of disabling ailments.  Ultimately the Court found these were due to a conversion disorder.  The prognosis for recovery was poor.  In assessing non-pecuniary damages at $225,000 Madam Justice Duncan provided the following reasons:
[139]     I find on a balance of probabilities that the main cause of the plaintiff’s current condition, including the myoclonus, is conversion disorder. I come to this conclusion because of the relative rarity of propriospinal myoclonus and how it can be mistaken for psychiatric problems. The non-anatomical presentation was also persuasive. As early as Dr. Ho’s involvement, a strange kicking motion was noted, which was inconsistent with a neurological cause. Some of the plaintiff’s pain may well be as a result of the surgery on his C5/6 disc; however, the vast majority of his symptoms, in my view, are not organic or structural in cause.
[140]     Diagnosis of cause aside, what I glean from the experts is that nobody predicts anything close to a full recovery for the plaintiff. Dr. Hurwitz posited a 14% possibility of some recovery, though in light of the fact that the plaintiff has already been treated with a wide variety of anti-depressant drugs, this is a very optimistic prognosis. The other experts recommended various interventions in an effort to assist the plaintiff…
[161]     The plaintiff was almost 32 when the accident happened. The original injury was to his C5-6 disc. I find the following facts about the plaintiff’s condition have been established on a balance of probabilities.
[162]     Since the accident, the plaintiff has been in constant pain, notwithstanding an aggressive regime of pain treatment through medication and other therapies. He is disabled from competitive employment. While he can drive and walk, with some difficulty and with the assistance of a cane, he cannot engage in the activities he enjoyed before the accident. In terms of physical activity, he can do little more than walk very short distances and swim. He can no longer work at a job he enjoyed. His emotional suffering is extreme. He has given up hope of being a father and had a vasectomy as he would be unable to engage in play or chase a child. His enjoyment of sexual activity is significantly diminished as he has lost sensation in his penis during intercourse. His family and friends attest to the fact that he is not the same person as before the accident. He no longer laughs and jokes around. He is constantly fatigued. His family and two close friends remain engaged with him but his world has shrunk considerably from his pre-accident social activities and he has essentially lost a healthy, active, social lifestyle. He is not as mentally sharp as he was, whether by virtue of the injury or the associated medications he takes to manage his condition. None of the experts predicted anything remotely approaching a full recovery.
[163]     Taking into account all of the foregoing, as well as the range of cases provided by counsel, I award the plaintiff $225,000 in non-pecuniary damages.
 

$48,000 Non-Pecuniary Assessment for C5-6 Disc Herniation


Adding to this site’s archived case summaries addressing C5/6 disc injuries, reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Levens v. Lehman) the Plaintiff was injured in a rear end collision.  She had pre-existing neck and back pain.  The collision caused a herniated disc which remained symptomatic at the time of trial and had a 50% likelihood of needing future surgical intervention.  In assessing non-pecuniary damages at $48,000 Madam Justice Hyslop provided the following reasons:
[105]     I have concluded, based on all of the medical evidence and the evidence of Ms. Levens, that as a result of the accident Ms. Levens suffered a herniated disk as seen in the MRI ordered by Dr. Singh in 2011.
[106]     I also conclude that Ms. Levens, due to her pre-existing condition, was more susceptible to a disk herniation as a result of the degenerative changes in her cervical spine.
[107]     I further conclude that Ms. Levens’ back injury was due to myofascial pain which put her into the hospital in November of 2009. Ms. Levens has spinal stenosis in her back unrelated to the accident which was aggravated by the accident. As a result of the accident, I conclude, for about a year, Ms. Levens had additional pain that she would not have had but for the accident…
[144]     At the time of the accident, Ms. Levens was 65 years old and at the time of the trial was age 69. Her most significant injury is the disc herniation in her neck. The pain has been severe. The myofascial pain and arthritis in her back would have been ongoing and not related to the accident. The motor vehicle accident caused increased pain which landed her in the hospital.
[145]     She is disabled as she does not always have a full ROM in her neck. She has been unable to engage in some of her recreational and sporting activities that she engaged in prior to the accident.
[146]     In coming to the amount of her non-pecuniary damages, I take into consideration that Ms. Levens had a pre-existing condition in her neck which was described by Dr. Singh as “the car accident did cause the final blow to the patient’s disc bulging at a spot that was already weak and had some problems previously.”
[147]     I award the plaintiff $48,000.00 in non-pecuniary damages.

$150,000 Non-Pecuniary Assessment For Spine Fusion Leading To Chronic Complications

Reasons for judgement were released this week demonstrating that not only is an at-fault motorist responsible for the injuries they cause but also for any complications that result in the course of the Plaintiff’s reasonable treatment of these.
In this week’s case (Cebula v. Smith) the Plaintiff was involved in a head on collision.  Despite denying fault the Court found there was “overwhelming and uncontradicted” evidence that the Defendant was to blame.  The crash caused multiple injuries including a fractured neck which required the removal of two discs and a fusion from C5-C7.  Following this surgery the Plaintiff experienced a bone infection in her hip and further experienced long term difficulty swallowing as a complication of the surgery.  In finding the Defendant at fault for all of these consequences and assessing non-pecuniary damages at $150,000 Mr. Justice Weatherill provided the following reasons:
[297]     On the basis of the evidence before me, I find that the plaintiff has established that the injuries she sustained to her neck, shoulders and upper back, right knee and right ankle, as well as her PTSD, sleep disturbances and anxiety were caused by the Accident.  I also find that the plaintiff’s swallowing difficulties, dizziness and voice problems were the result of her neck surgery that was itself necessitated by the Accident.  The infection in her hip at the site of her bone graft was also the result of her neck surgery.  Her headaches have been aggravated by the Accident.  It is more probable than not that these injuries and other conditions would not have occurred but for the Accident….
[301]     As a result of the Accident, the plaintiff’s life changed permanently and dramatically.  The various surgeries she underwent, the chronic pain and headaches, the long period of only partial recovery, the limitations on her mobility and her inability to continue in her teaching position has had a significant effect on both her physical and psychological wellbeing.  She has withdrawn from her social network and previous social activities.  She is short-tempered and not as much fun to be around.  Driving has become stressful and anxious for her.  It is worse when she is a passenger.  The dizziness and choking that began after her November 2007 neck surgery continue to this day.  She is unable to take care of her home and garden except for minor housekeeping tasks.
[302]     The plaintiff has become anxious and has lost confidence in her ability to be an effective teacher.  Teaching is no longer the joy that it was for her prior to the Accident.  Although psychological treatment and other encouragement enabled her to gradually return to work, she is only able to teach in the classroom one day per week.  That one day takes a toll on her such that she requires the remainder of the week to recuperate and prepare for the next work day.
[303]     The plaintiff was in obvious pain and discomfort while she was testifying.  It is clear to me that the Accident has caused her significant stress and anxiety and significantly affected her ability to function and cope with daily life, a marked change from her life prior to the Accident…

 [321]     Having considered the principles set out in Stapley and the cases relied upon by counsel, I find that an award of $150,000 for non-pecuniary damages is appropriate.

$90,000 Non-Pecuniary Assessment for Neck Injury Requiring Surgical Fusion

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a neck injury requiring surgical intervention.
In this week’s case (Gormick v. Amenta) the Plaintiff, a “young, athletic police officer” was injured in a 2008 collision.  Liability was admitted by the Defendant.  The Plaintiff suffered a neck injury which required disc removal and fusion at the C5-C6 level.  The Plaintiff had pre-existing issues to her neck and the Court found that there was a 10% chance surgery would be required even absent the collision.  The Plaintiff was left with some residual symptoms but the Court found her residual earning capacity was not impacted.  In assessing non-pecuniary damages at $90,000 Mr. Justice Sigurdson provided the following reasons:
[71]         In sum, the plaintiff had some neck pain and restricted motion prior to the accident that did not impair her work or ability to enjoy life to any measurable degree.  Because of her underlying condition, which was largely asymptomatic, she suffered injuries in the accident that were extremely painful and required surgery.  The surgery, though successful, has resulted in stiffness and restricted motion that appear to have affected the strength of her throwing arm and her ability to lift.  Although surgery was not a likely option for her pre-existing condition, now that she has had it she is at 25% risk of suffering adjacent segment disc disease within 10-15 years.
[72]         In all the circumstances, I assess general damages at $90,000.  In doing so, I also take into consideration the pain and suffering that she will suffer in the future as a result of her injuries that were caused by the accident. …
116]     The plaintiff is a very capable police officer.  She has done well in her career and I expect, given the evidence of Sergeant Arruda, that she will continue to do well.  She has had two children and has maintained an active busy life.  I recognize that she appears to have some symptoms that persist, but to the extent they were caused by the motor vehicle accident, I have included that in my assessment of general damages.  I expect that her patrol work may make her uncomfortable due to stiffness or lack of range of motion, but I am not satisfied that the plaintiff has demonstrated that the injuries in the accident have given rise to a real and substantial possibility of a loss of income or capacity in the future, and as such, I make no award under this head. 

$100,000 Non-Pecuniary Assessment for C6-C7 Disc Herniation Requiring Surgery

Following a fairly unique collision involving a downed utility pole, reasons for judgement were published last week by the BC Supreme Court, Kamloops Registry, assessing damages for a C5-C6 disc injury requiring surgical intervention.

In last week’s case (Baxter v. Morrison) the Defendant tractor trailer operator struck overhead power lines with his vehicle causing the power pole attached to the wires to break into pieces falling on the plaintiff’s vehicle causing a severe neck injury.
Although fault was disputed Mr. Justice Ehrcke found the defendant fully liable for the incident.  The plaintiff’s neck injury required surgery which largely, but not entirely, improved his symptoms leaving the plaintiff with some permanent symptoms.  In assessing non-pecuniary damages at $100,000 the Court provided the following reasons:

[55] Here, the plaintiff, who was 47 at the time of the accident and who enjoyed an active lifestyle both at home and at work, suffered injuries to his neck, right shoulder, and arm. Dr. Brownlee found that his right arm pain was caused by a disc herniation resulting from the accident. He performed an operation on his neck to remove the disc, and this relieved about 70% of the pain. Dr. Brownlee’s opinion is that following the operation, Mr. Baxter has a “mild degree of permanent disability as a result of his ongoing neck pain.” This discomfort continues to affect Mr. Baxter both at home and at work.

[56] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Taking account of all of the factors mentioned in Stapley v. Hejslet, I would assess general damages in this case at $100,000.

$125,000 Non-Pecuniary Assessment for Chronic Cough

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.

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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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