Tag: Villing v. Husseni

$85,000 Lumbar Facet Syndrome Non Pecuniary Award Survives Appeal

Reasons for judgement were released today by the BC Court of Appeal dismissing the appeal of an $85,000 non-pecuniary award for a chronic low back injury.
In today’s case (Villing v. Husseni) the Plaintiff was injured in 2010 in a collision caused by the Defendant.  She suffered a low back injury diagnosed as Lumbar Facet Syndrome.  In finding nothing wrong with the trial judge’s $85,000 assessment of non-pecuniary damages the BC Court of Appeal provided the following reasons:

[9]             Both parties commissioned expert reports on the nature of Ms. Villing’s injuries.  Dr. Pankaj Dhawan, a physiatrist, testified at trial for Ms. Villing.  Dr. Robin Rickards, an orthopaedic surgeon, testified for the defendant, Ms. Husseni.  Both experts diagnosed lumbar facet syndrome.  A patient with lumbar facet syndrome will often have pain triggered by rotation, lateral flexion, and extension of the involved spinal segment.  Ms. Villing experiences this type of chronic back pain.

[10]         Dr. Rickards recommended that she try medial branch blocks and radio frequency facet rhizotomy.  Medial branch blocks inject local anesthetic to temporarily freeze the nerve affecting the involved facet.  A rhizotomy involves the insertion of needle-like electrodes into the bases of the nerves of the involved facet, and the application of heat to destroy the subject nerves.  The rhizotomy would be performed if the medial branch blocks were successful.  These procedures would be performed under a local anesthetic in an outpatient department.  These procedures carry a high expectation of success, although success does not entail total and continuing relief.

[11]         A medial branch block requires no time off work.  A rhizotomy can be more uncomfortable and may result in increased back pain for 7‑10 days.  Time off work or work modification may be required.  In most cases, significant relief is experienced four to six weeks following treatment and the patient is expected to then return to full work duties and activities.

[40]         The appellant referred the Court to five decisions in support of its position that the $85,000 award for non‑pecuniary damages should be reduced to $50,000–$60,000.  Those cases were Engqvist v. Doyle, 2011 BCSC 1585 ($70,000 for a 70‑year-old plaintiff with similar injuries); Perry v. Ismail, 2012 BCSC 123 ($42,500 where there was delayed recovery for not following the advice of a physician); Burton v. Insurance Corporation of British Columbia, 2011 BCSC 653 ($35,000 for a moderate soft tissue injury, which after two-and-a-half years was expected to continue to improve); and Sandher v. Hogg, 2010 BCSC 1152 ($40,000 for continued pain of uncertain duration, which was reduced for failure to adhere to a recommended exercise regime).

[41]         The respondent referred the Court to cases where young plaintiffs suffer chronic back pain, such as: Dickenson v. Passero, 2015 BCSC 908 ($100,000); Pett v. Pett, 2009 BCCA 232 ($85,000); Ruscheinski v. BiIn, 2011 BCSC 1263 ($85,000); Doho v. Melnikova, 2011 BCSC 703 ($80,000); Roberts v. Scribner, 2009 BCSC 1761 ($95,000); and Kirkham v. Richardson, 2014 BCSC 1068 ($120,000).  The respondent also referred to Engqvist v. Doyle ($70,000) as a case involving a similar injury, albeit a much older plaintiff.

[42]         An award of damages is a fact-finding exercise and attracts a deferential standard of review:  Ostrikoff v. Oliveira, 2015 BCCA 351 at paras. 2–3.  It is not for this Court to substitute its own opinion for that of the trial judge except where it can be said that the assessment is so inordinately high as to be wholly erroneous: Woelk v. Halvorson at 435–36.  While the award in the present case may be a generous one, I am unable to conclude that it is so inordinately high as to be wholly erroneous.  I would dismiss the second ground of appeal.

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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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