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:
 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.
 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.
 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….
 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.
 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.
 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….
 Having reviewed the cases provided by both parties, I assess Mr. Roy’s non-pecuniary damages at $75,000.
Tag: disc protrusion
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.
Reasons for judgement were released this week with the BC Supreme Court citing Wikipedia when assessing damages following a motor vehicle collision.
In this week’s case (Parker v. Davies) the Plaintiff was injured in a 2009 rear end collision. Fault was admitted by the Defendant. The Plaintiff sustained a disc protrusion in her back and was expected to have long term symptoms as a result of this. The Court assessed non-pecuniary damages of $90,000.
In addition to this the Plaintiff claimed fairly substantial damages for future care costs including over $24,000 for rolfing. Mr. Justice Meiklem rejected this claim finding there was no medical evidence to justify the expense. Prior to doing so the Court took the interesting move of referencing Wikipedia and provided the following reasons:
 I had never heard of Rolfing before this trial and there was no authoritative evidence presented about what Rolfing is, much less any medical evidence that it is medically necessary in Ms. Parker’s case. I note that Ms. Henry adopted Ms. Parker’s description of Rolfing as a form of deep tissue work. Ms. Parker credits it as the most beneficial treatment that she has undergone in relieving the pain that radiates to her leg. Ms. Henry suggested that consideration be given to funding the treatment based on her understanding that it helped Ms. Parker, but would defer to a physician as to the medical benefits.
 My curiosity led me to Wikipedia.org, where the following description appears:
Rolfing is a therapy system created by the Rolf Institute of Structural Integration (also referred to as “RISI”), founded by Ida Pauline Rolf in 1971.The Institute states that Rolfing is a “holistic system of soft tissue manipulation and movement education that organize(s) the whole body in gravity”. Manipulation of the muscle fasciae is believed to yield therapeutic benefits, including that clients stand straighter, gain height and move better, through the correction of soft tissue fixations or dystonia. A review found that evidence for clinical effectiveness and hypothesized mechanisms of Rolfing is severely limited by small sample sizes and absence of control arms, and that further research is needed, though controlled trials found that a single Rolfing session significantly decreases standing pelvic tilt angle, and that Rolfing caused a lasting decrease in state anxiety when compared to the control group. Only practitioners certified by RISI can use the title “Rolfer,” or practice “Rolfing,” due to service mark ownership. The Guild for Structural Integration is the other certifying body, whose graduates use the title “Practitioners of the Rolf Method of Structural Integration.”
 In researching previous decisions of this court, I found two cases where Rolfing treatments were funded as part of special damages awarded, without medical evidence of medical necessity: Price v. Abdul, unreported, Vancouver Registry No B922911, BCSC, January 12, 1994; Schubert v. Knorr, 2008 BCSC 939, and one case, Cryderman v. Giesbrecht and Giesbrecht, 2006 BCSC 798, where the court acknowledged Rolfing costs as part of future care costs on the basis that, although not prescribed by her doctors, the plaintiff said the treatment gave her relief and the court found that the amount ($140 annually out of total annual care costs of $1,060) did not seem excessive.
 The plaintiff in Cryderman sought a total future care costs award of $10,000, but was awarded $4,000, so the amount of the award notionally attributable to future Rolfing treatments would be approximately $550. Of course, assessing future care costs is not a precise accounting exercise, and perhaps the court felt that the very modest cost claimed obviated the need for evidence of medical necessity in that case. However, by comparison, Ms. Parker’s claim is for an award that would include $24,934 as the present value of annual Rolfing costs in the amount of $1,020 for the rest of her life expectancy. In my view, this is not a case where the court should deviate from the established principle that the appropriate award for the cost of future care is an objective one based on medical evidence. Accordingly, I will not consider potential future Rolfing costs in my assessment.
While it is easy to understand the desire to inform oneself by referencing on-line material, the same privilege clearly does not extend to a Jury as evidenced by this 2009 development where the BC Supreme Court discharged a juror for satiating his curiosity by referencing Wikipedia in the course of a trial.
Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $340,000 in total damages as a result of injuries and loss from a BC car crash.
In today’s case (Smusz v. Wolf Chevrolet Ltd.) the Plaintiff was involved in a Highway crash near Kamloops BC in 2006. Fault was admitted by the offending motorist. The trial dealt with the value of the plaintiff’s claim. She suffered various injuries including a disc herniation/protrusion in her neck. In valuing the Plaintiff’s non-pecuniary damages at $100,000 Madam Justice Russell highlighted the following facts:
 The plaintiff was 43 years old at the time of this accident. She suffered injuries which, although not requiring more than a brief visit to the hospital, were nonetheless significant. The medical evidence was mostly consistent: her physical injuries include moderate right paracentral disc herniation at C3-4 on the right side and moderate paracentral disc protrusion at C6-7 on the left causing irritation of the left C7 root; and a bulging lumbar disc irritating the lumbar roots, all of which result in chronic left-sided neck, arm and low back pain, dizziness and headaches. She suffered from PTSD, now substantially resolved, but still suffers from insomnia, occasional nightmares, depression and chronic pain some three years after the accident.
 The chronic pain caused by the injuries received in the accident has resulted in depression, no doubt complicated by her difficult financial situation, but the plaintiff was happy and energetic before the accident notwithstanding the fact that she had very little money.
 She was able to work in a job which did not require great skill and which did not pay well but in which she could have continued for the indefinite future. It gave her some income and gave her the sense of participating in her family’s finances.
 The evidence of her friends and family support the substantial change she has undergone as a result of the accident. From a positive, lively person who enjoyed participating in her community, she has become somewhat reclusive and quiet and it appears she may even lose her romantic relationship because her physical limitations interfere with the activities she used to enjoy with her boyfriend.
 While she had suffered brief episodes of depression in the past, I am satisfied they were reactive depressions and were fully resolved at the time of the accident. I have no doubt that because she has suffered depression in the past, she was vulnerable to depression, but she is the thin-skulled plaintiff here rather than a crumbling skull plaintiff. However, I find that the depression which followed the accident and her chronic pain means that she is at risk of developing an even more severe depression in the future.
 Immediately following the accident, the plaintiff also had chest bruising and abrasions which resolved quickly. Her knee injury troubled her for about six months but is now resolved.
 There is a possibility she will require surgery in the future to address the herniation at C6-7 since the conservative treatment measures employed so far have not provided the plaintiff with any relief. She has resisted this surgery because, even if it is successful, she will be left with continuing neck pain so resort to surgery would only be a desperate measure if she begins to suffer nerve damage which follows from the herniation or if her chronic pain worsens.
 The plaintiff’s anxiety is worsened by the possibility she will need surgery in the future.
 The plaintiff is also less able to perform her household work than she was and has received assistance from her children. When she does do her housework, she does it more slowly and with some pain. This is a substantial change from the enthusiastic homemaker she was before the accident.
 I have considered the plaintiff’s loss of housekeeping capacity and the help she has been given and will continue to receive from her children under this head of damages and would assess the loss at $10,000.
 Considering the factors listed above, and upon reviewing the case law provided by both counsel, I find that an appropriate award of non-pecuniary damages is $100,000.00, including the loss of housekeeping capacity.
Another noteworthy aspect of this case was the Court’s discussion of one of the defence experts. Dr. Davis is a psychiatrist who prepared an expert report for the Defendant. His opinion differed from the Plaintiff’s experts with respect to her accident related injuries. He was cross-examined in open court and ultimately his evidence was not accepted. In reaching this decision Madam Justice Russell made the following critical comments:
 Dr. Davis’ report differed substantially from those of all other experts. It is his opinion that none of the plaintiff’s current emotional difficulties stems from the motor vehicle accident. He is firmly of the view that her depression is solely attributable to her financial problems, her lack of a supporting husband and her limited skills in English.
 To support his position, Dr. Davis pointed to the two reactive depressions which had affected the plaintiff before the accident as establishing an “ongoing depression” and therefore her current symptoms were not causally related to the motor vehicle accident of October 2006.
 I note that when he wrote his report, Dr. Davis had not reviewed Dr. Tomaszewski’s notes of appointments with the plaintiff one week following the accident which recorded the occurrence of nightmares and acute anxiety. Dr. Davis stated that these symptoms were important but appeared to minimize them by indicating they would only be a problem caused by the accident in the first six months or so, at the same time as her soft tissue injuries should have been resolving.
 I have reviewed Dr. Davis’ testimony and find it to be argumentative, unyielding and seriously at odds with what I view to be the preponderance of other and more credible medical evidence. I do not accept his findings.
Reasons for judgement were released yesterday by the BC Supreme Court considering whether a pedestrian involved in a collision was at fault for not being visible enough to the motorist.
In yesterday’s case (Smaill v. Williams) the pedestrian was struck by a minivan while he was walking on a dirt road in dusk conditions. When he heard the vehicle approaching he “took a few quick steps to the side out of the travelled path of the road”. Unfortunately he could not get out of the way and was “thrown up onto the hood, striking his back and shoulders, and then was thrown to the ground on his hands and knees“.
The Defendant argued that the Plaintiff was partially at fault for the accident for wearing dark clothing, not having a flashlight and not wearing a reflective traffic vest. Madam Justice Russell rejected this argument and in doing so provided the following reasons:
 I accept the plaintiff’s evidence that it was dusk but not dark enough for him to require a flashlight and therefore the plaintiff was not contributorily negligent and the defendants’ liability should not be reduced as such.
 I note as well, that while carrying a flashlight might be a prudent practice for all pedestrians in dark areas, it is not a universal or even common requirement, no more than it is wise, but not common, for pedestrians to wear reflective traffic vests.
 I note, too, that the plaintiff testified he paid heed to the sound of the oncoming car and took several steps off the roadway to be out of its way.
 I find the plaintiff did take reasonable care for his own safety by trying to stand well out of the roadway and to avoid the oncoming vehicle.
 I find no contributory negligence on the part of the plaintiff.
The Plaintiff suffered some serious injuries to his spine which were expected to cause some permanent restrictions. In valuing the non-pecuniary damages at $100,000 the Court summarized the injuries and their effect on the Plaintiff’s life as follows:
 I accept the evidence of Dr. McKenzie. I found him to be a careful and persuasive witness. I accept his medical finding that the plaintiff suffered a fracture of the tranverse processes at L3 and L4, an injury to the sacroiliac joint and that formerly asymptomatic disc bulges and protrusions became symptomatic as a result of his injuries. I accept that the plaintiff has proved on a balance of probabilities that the symptoms, including non-specific back pain that he currently suffers from, including disc protrusion, were caused by the first accident and the pain from those injuries was aggravated by the second accident.
 While none of the doctors could say with certainty that the disc problems were caused by the accident, this is not the standard required. Dr. McKenzie testified, and I accept, that it is more probable than not that they were caused by the injury. This is supported by the evidence of Dr. Dercksen who noted the injuries were more than normal degeneration for someone of the plaintiff’s age.
 Therefore, I agree with the plaintiff that, on a balance of probabilities, but for the negligence of the defendants, the plaintiff would not have sustained the injuries that he did, and the plaintiff has met the test for causation: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 18-28,  1 S.C.R. 333. ..
 As a result of these accidents, the plaintiff sustained significant injuries and suffered from a great deal of pain, for which he is entitled to recover damages. However, while I have the greatest sympathy for the plaintiff’s emotional suffering, there is evidence before this Court that this is a pre-existing condition from which the plaintiff had already been suffering and therefore this is not a ‘thin-skull’ situation. The defendants are not liable to compensate the plaintiff for a condition which was already manifest at the time of the accident.
 In light of the plaintiff’s suffering, and taking into consideration his pre-exisiting condition and its contribution to his chronic pain, an award of $100,000 for non-pecuniary damages is appropriate.
Reasons for judgment were released today involving a disc injury with 2 potential causes.
The Plaintiff was involved in 3 car accidents. This lawsuit involved the second accident. The Plaintiff was ultimatley diagnosed with a ruptured disc in her back. The issue at trial was whether the ruptured disc was caused by the first or second accident (apparently no-one blamed the third accident as a potential cause).
“Causation” is often a key issue at many ICBC claims and frequently ICBC takes the position at trial that while a Plaintiff is injured the injury would have existed even without the car accident as it was caused by previous or subsequent events.
In this case a physiatrist and a GP testified on behalf of the Plaintiff. No defence medical evidence was called, instead, the defence relied on their lawyer’s cross examination of the Plaintiff experts.
The Plaintiff had an MRI which showed a moderate sized diffuse disc bulge or protrusion at L-4/5 with associated disc desiccation or drying.
The court was not satisfied with the Plaintiff’s experts explanations linking the disc protrusion to the second car accident. The court instead found that it is more likely that the disc injury was caused by the first car accident and the second accident aggravated this injury for a period of time.
For the aggravation of this disc injury the court awarded general damages (pain and suffering and loss of enjoyment of life) of $30,000. The Plaintiff’s claim for loss of earning capacity and cost of future care were dismissed on the basis that the disc injury was not caused by the accident and any exacerbation of the injury caused by the accident ended in 2005.
This case shows that nothing should be taken for granted when taking an ICBC claim to trial. Here both doctors seemed in agreement that the second car accident caused the disc injury and no medical experts disagreed with this finding. After hearing this evidence first hand in court the trial judge did not agree with the Plaintiff’s experts and dismissed the allegation that the second car accident caused the disc injury. Even where the medical evidence is not contradicted you cannot guarantee that a court will accept it! This is the risk of trial and cross-examination. Trial risks need to be accounted for when considering ICBC claim settlement and valuing fair payment for injuries.