COURT CASES on BACK INJURIES
ANNULAR TEAR
In Peers v. Bodkin Leasing Corporation, the Plaintiff was injured in a motor vehicle accident when he was involved in a rear end collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as other heads of damages, such as diminished earning capacity, and the cost of future care. Liability was admitted by the Defendant. The Plaintiff suffered an annular tear, which prevented him from continuing to work in his own profession, and which had a profound effect on his life. By the time of trial, he had suffered from the injury for three years, with the pain ongoing. The Court awarded him $85,000 for pain and suffering.
[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.
SACROILIAC JOINT
In Connolly v. Cowie, the Plaintiff was injured in a motor vehicle accident and consequently brought an ICBC claim for damages for pain and suffering, diminished earning capacity, and cost of future care. The accident was a rear-end collision, and liability was admitted by the Defendant. The Plaintiff suffered an injury to her left sacroiliac region for three years by the time of trial, with the pain continuing. The Court rejected ICBC’S lawyer’s argument that the Plaintiff had failed to mitigate her damages, and awarded the Plaintiff $50,000 for pain and suffering.
[40] The defendants’ argument that Ms. Connolly failed to mitigate her loss because she did not take prescription medications is lacking in merit. Ms. Connolly did try most of the medications prescribed to her. However, she did not find relief from the medications. She did not like the sensation she experienced when taking the drugs she tried. She is the only one who can judge if a prescribed medication provides sufficient relief such that she should take it and put up with the side effects. I am not prepared to second guess her assessment of the benefit that the medication provided to her.
[41] In summary, I conclude that Ms. Connolly suffered a significant low back strain as a result of the accident. The accident has caused injury to the myofascial tissues in her left sacroiliac region. The injury has not resolved in spite of her aggressive attempts to continue with exercise and chiropractic treatment and some physiotherapy. She now has chronic pain which is not disabling, but does restrict the type and extent of activities and exercises she can perform. She is still able to do most household tasks, but it is likely she will continue to experience pain with activities. It is unlikely that the pain symptoms will resolve.
[43] Of the cases relied upon by the defendants, the two which are most similar to the present circumstances are Warren v. Ouellette (11 July 1994), Vancouver B924490 (S.C.); and Dutchak v. Fowler, 2010 BCSC 128. In Dutchak, the plaintiff was awarded $45,000 for soft tissue injuries that lasted three and a half years post-accident. At the time of the trial, the plaintiff was able to run 30 to 40 kilometres per week, but did so with pain. She was able to manage the pain by taking a considerable amount of medication. The Court awarded damages at the lower end of the range for cases involving chronic pain.
[44] Warren is an older case and so of more limited use. The plaintiff was awarded $40,000 for non-pecuniary damages. However, the facts in that case as in Dutchak, have some similarity to the present circumstances. The plaintiff was unable to compete in marathons and triathlons as he had done before the accident. He still competed in duathalons. Justice Williamson stated:
… Although he has had to give up marathons and triathalons, remarkably he continues to participate in duathalons (running for up to 3 kilometres, bicycling for up to 20 kilometres, and running again for up to 3 kilometres) using his mountain bike rather than a racing road bicycle. However impressive this may seem to the more sedentary among us, the plaintiff was clear in his testimony this reduced athletic activity means he does not gain the satisfaction which he did previously from participation in such events. I accept this is, to him, a significant loss.
[45] Here, Ms. Connolly is unable to continue with long distance running. She does not take medications like Ms. Dutchak, but has persisted with more restricted activities. In the past, she thrived on the combination of exercise and camaraderie with a group of fellow competitors. Her inability to continue with that is a significant loss to her. She has continued to exercise and is now focusing on cycling as a replacement for her previous passion, but has had to give up her dream of working as a fitness instructor. She put much thought and several years of work into attempting to develop a skill that would provide her with income and help fulfil her desire to do strenuous exercise with like-minded people. She is no longer able to do that and this is a significant loss.
[46] In addition to these significant losses, she has to put up with continuing pain and it is likely this will not abate in the future. Considering all of the circumstances, I find that $50,000 is an appropriate award for non-pecuniary loss.
In Keenan v Fletcher, the Plaintiff was involved in four motor vehicle accidents, and brought ICBC claims for all four, which were consolidated and heard at the same trial. The Court did not award any damages for the first two accidents, and apportioned the award for pain and suffering between the third and fourth accidents. The Plaintiff was awarded $60,000 for a sacroiliac joint injury that she had endured for three and a half years prior to trial. The amount was reduced to $48,000 after factoring in other issues.
[117] To summarize, I am not satisfied that Ms. Keenan suffered any injuries resulting from MVA #1 or MVA #2. The nature of the accidents, the force of the collisions and Ms. Keenan’s ability to carry on with her work on those days without any difficulty, convinces me that she suffered no injuries from these accidents.
[118] The situation is different with respect to MVA #3 and MVA #4. I accept Ms. Keenan’s description of the pain and discomfort she experienced after each of these two accidents. Her description of her symptoms was, to a great degree, corroborated by the evidence of Mr. Dorish, Susan Keenan and Detective Constable Machesney
[119] The injuries to Ms. Keenan’s neck and shoulder have resolved themselves to a considerable degree. To a lesser extent, the injury to Ms. Keenan’s lower back has also improved. I find that the improvement in Ms. Keenan’s physical condition is directly attributable to her intense drive and will to get better. I also find that it was though this sheer determination that Ms. Keenan has been able to manage and limit the impact of these injuries on her life.
[120] Given the passage of time since the injuries developed and the fact that Ms. Keenan continues to experience low level pain and discomfort in her back on a reasonably regular basis and the occasional episode of intense pain, I am persuaded the injury to Ms. Keenan’s back is the key and principal injury that has resulted from MVA #3 and MVA #4. As I have noted, Ms. Keenan is a determined person and I have no doubt that her strength of character has been and will continue to be one of the reasons why she manages so well in spite of the discomfort she experiences in her back.
[121] In my opinion, the evidence supports the conclusion that Ms. Keenan will most likely experience the occasional severe flare-up of her back pain which will likely have a negative impact upon her ability to perform her police duties, including voluntary overtime….
In Day v Nicolau, the Plaintiff was involved in two motor vehicle accidents, and brought an ICBC claim for her injuries. Both matters were heard together, and there was no dispute as to liability. The Defendants agreed not to have damages apportioned, but rather would accept a global amount. The Plaintiff was awarded $50,000 for a sacroiliac joint injury that she had endured for almost five years. The Court noted her lack of mitigation in some respects. Although this was not specifically addressed with respect to any deduction, it seems implicit that the Court took this into consideration in what seems like a low award of damages, given the duration of the injury.
[34] From the evidence Ms. Day sustained a soft tissue injury in the two motor vehicle accidents. She has not maintained the exercise and core strengthening regimen recommended by her treating doctors. Without proper back care, the potential for flare ups and complications exist.
[35] It is unclear what state of recovery function Ms. Day could have obtained with proper back care and exercise. All doctors indicate in their reports the importance of back care exercise. Though their prognosis is guarded they seem to imply that with proper care there is still potential for return to functionality with only intermittent flare ups. ..
[46] Ms. Day is a 28 year old woman who has a chronic injury to her lower back and related sacroiliac joint injury and a less serious lasting injury to her neck and right shoulder. She has experienced pain, discomfort and some limitations to enjoyment of her previous active life for almost five years and her future condition is guarded.
[47] I fix the non-pecuniary award at $50,000.
LUMBAR DISC PROTRUSION
In Peso v. Holloway, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for damages. The Plaintiff had minor, pre-existing back pain, however this did not interfere with the ability to enjoy his life. As a result of the accident, the Plaintiff required surgery in the form of a discectomy, which occurred approximately one year after the accident. The Court ruled that the Plaintiff had suffered chronic pain up to this point, and that his future recreational activities would be curtailed. Future surgery was also very likely. The Court awarded $100,000 for pain and suffering.
[71] According to Dr. Street, in the absence of the collision Mr. Peso would have likely continued to experience mild, non-disabling symptoms in his low back. As a result of the collision, Mr. Peso required surgery and faces a significant risk of additional surgery at some point in the future. He is limited in his capacity to perform some aspects of his work. His left leg is weaker than the right and his capacity to lift is diminished. Mr. Peso, a gifted athlete before the collision, is unlikely to return to anything close to his pre-collision level of activity.
[72] Non-pecuniary damages ought to be assessed in the context of a young man who has sustained a permanent, life changing injury. It was clear from Mr. Peso’s testimony that he has not let his injuries stop him. He has persevered with school and actively hid his symptoms from his employer. He has tried all of his former activities but he has only been able to tolerate some successfully. It is clear that despite Mr. Peso’s determination he has real fears about his future. He worries about recurrence of pain and he worries he will be expected to perform tasks that he cannot do.
In Ng v. Sarkaria, the Plaintiff was injured in a motor vehicle accident when struck by a vehicle that turned left in front of him. The Defendant admitted liability. The Plaintiff brought an ICBC for damages for pain and suffering, as well as other heads of damages, such as income loss, diminished earning capacity, and cost of future care. The Plaintiff suffered neck pain and knee pain, which had resolved, however he had a large focal disc protrusion at L4-L5, and he had required a partial discectomy. The trial occurred 4 1/2 years after the accident, and the Plaintiff was awarded $95,000 for pain and suffering. He did not suffer from chronic pain.
[40] He did not describe his current limitations in terms of pain. Rather, he says that he is reluctant to push himself because he does not want to trigger a relapse. He experienced a recurrence of significant pain in August 2011, as a result of which he took two weeks off of work. He says that he tries to limit the amount of lifting he does, including the lifting of his young daughter, in order to avoid initiating another bout of limiting pain. He is very cautious about his activities.
[41] His lifestyle has changed significantly as a result of his injuries. Previously he did not have to be cautious. Now, he limits his activities in all aspects of his life; his work, his leisure and his activities with his young family. He is, however, able to carry out most of the activities he was formerly able to do. The limitation he has suffered is that he cannot do as much as he was able to do in the past. He does not take on the yard work he used to do alone but looks to friends and family for assistance. He does not play the occasional game of basketball that he used to play. He does maintain a light weightlifting and exercise routine which he finds helpful. He actively participates in activities with his young daughter.
[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.
In Doho v Melnikova, the Plaintiff was injured in two motor vehicle accidents. The key issues were the Plaintiff’s loss of opportunity to earn past income, and diminished earning capacity. ICBC’S lawyer claimed the Plaintiff failed to mitigate, and that the injuries sustained by the Plaintiff were not as serious as what the Plaintiff claimed. The Plaintiff was awarded $80,000 for a lumbar disc injury that he had suffered from for four and a half years by the time of the trial, and which condition was permanent. The Court commented that :
[38] The first accident caused a significant injury to Mr. Doho’s lower back. He sustained a disk hernia at the L4-5 level of his spine. That hernia impinged on his spinal nerves and caused him severe pain for the first three or four months after the accident. He also suffered from headaches and a sore neck. Those latter symptoms resolved by three months after the accident. Mr. Doho’s leg pains dissipated by approximately four months after the accident, but he was left with ongoing low back discomfort. His pain is increased by lifting, playing sports such as golf, standing or sitting for lengthy periods of time. Because surgery is not an option at this point, I have concluded that Mr. Doho’s condition is permanent.
[39] I find that Mr. Doho’s non-pecuniary damages arising out of the November 2006 accident should be assessed at $80,000.
[40] The second accident caused Mr. Doho to suffer a significant increase in his pain. The acute phase of that increase lasted about two days, and was resolved within a week. After that, Mr.Doho’s pain and limitation of function returned to its pre-second-accident level. I assess his non-pecuniary damages arising out of the March 2009 accident at $5,000.
