Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.
Permanent aggravation of pre-existing asymptomatic neck and low back degenerative disc disease requiring three past surgeries plus future expected surgeries and ending business career.
QUANTUM ASSESSMENT
______________________________________________________________________________
QUESTION PRESENTED:
Ms. Client was injured in a 2013 fall inside a store (the “Accident”). Since the Accident, she has been unable to return to work in her consulting business because of disabling pain and difficulty travelling.
Ms. Client stated that after the Accident, her elbow hurt but she left the Store feeling more stunned than anything. When she got home, she took an Aspirin and went to bed. The Accident took place on a Friday evening. Ms. Client states that on the Saturday morning the day after, she woke up and was stiff and sore but tried to go about her normal activities. She got progressively stiffer as the weekend went on. On the Monday after the Accident, Ms. Client woke up in absolute agony, with pain that shot from the bottom of her feet right through to her head and down the side of her legs when she got out of bed. She stated that the pain was extreme and radiating from the bottom of both legs, up the sides of her legs, radiating right through up her buttocks and spasming up her back. She was numb on the right side all the way down her arm and shoulder, and her baby fingers were numb. It took her two hours to get dressed, given her severe right leg spasms and pain.
Ms. Client attended at a Chiropractic office on the Monday after the Accident; she had never been to the clinic before but was in tremendous pain. She was complaining of pain to her right shoulder and right hip area.
Ms. Client underwent an x-ray of her spine. The x-rays showed abnormal findings that indicated multilevel degenerative disc disease and facet disease at cervical spinal levels C4-T1. Lumbar spine disc space narrowing was noted at L4-S1 with multilevel osteophyte or bone spur formation, indicating a degenerative facet and disc process. The cervical spine impression was of cervical spondylosis.
Ms. Client went to her family doctor, and he ordered another x-ray of her spine. This x-ray showed a decompression of her spine and critical stenosis at L4-5 due to the combination of ligamentum flavum hypertrophy, facet hypertrophy, and bilateral synovial cysts. EMG nerve conduction velocity of her upper extremities revealed cervical radiculopathy. Essentially, she had developed foot drop in her left foot. An MRI showed severe central canal stenosis predominantly due to facet arthropathy and facet synovial cyst at the L4-5 level with grade I anterolisthesis and a pseudo bulge that contributed to severe central canal and bilateral left greater than right L4-5 lateral recess stenosis. The MRI also showed a small posterior annular tear at L2-3 with a posterior broad-based disc protrusion not contributing to significant central stenosis and spondylotic disc disease asymmetric to the left at L5-S1 causing a mild amount left L5-S1 foraminal stenosis without central canal compromise. It was determined that Ms. Client required an L4-5 decompression as soon as possible, and she underwent surgery in 2013. The post-operative diagnosis was lumbar spondylosis and degenerative disc disease, severe stenosis at L4-L5 due to ligamentum flavum hypertrophy, facet hypertrophy, and a large epidural cystic mass. After the surgery, Ms. Client was doing somewhat better, but she still had muscle spasms and foot drop that impaired her gait, balance, and community ambulation; she went to physiotherapy.
Ten weeks after her surgery Ms. Client continued to complain of neck pain, pins and needles, and paresthesia in her upper extremities. At a visit to her neurologist, it was noted that Ms. Client had a left foot drop and an MRI showed a right C6 radiculopathy and a left L5 radiculopathy. Ms. Client had significant cervical and lumbar spine disease with associated nerve root impingement. Importantly, all of these issues were noted as being asymptomatic prior to her Accident. Later imaging showed small stable anterolisthesis at L4-5 and retrolisthesis at L2-3. Ms. Client underwent stem cell therapy at her own cost.
Ms. Client continued to suffer pain and setbacks in her recovery. Her psychologist reported that Ms. Client was suffering from a major depressive episode that was severe. She had anxiety with acute stress reaction and panic disorder. Ms. Client was deteriorating and was tearful with low energy, poor concentration, anxiety, poor sleep, poor appetite, panic attacks, hyperventilation, flushing, and dizziness; she was put on anti-depressants. Around this time, her neurologist reported that Ms. Client still had numbness on the last two digits of her right hand. An MRI of her cervical and lumbar spine showed moderate to severe C4-5, moderate C5-6 and C6-7, and mild C3-4 and C7-T1 spinal canal stenoses present due to chronic degenerative change; advanced foraminal narrowing identified due to facet arthropathy; and uncovertebral joint osteophytes extending from C4-C7 which is most conspicuous on the left at C4-5. The impression of her lumbar spine was degenerative-type grade I anterolisthesis at L4-5 and findings consistent for a bilateral L4-5 facet joint diastasis and for right-sided L3-4 facet joint diastasis; bilateral hemilaminotomies identified at L4-5 and extensive reactive facet arthropathy present at L4-5 with interspinous edematous change at L4-5 and to a lesser degree L3-4; intraspinal synovial cysts identified at L4-5 with the larger cyst noted on the right contributing to subarticular zone stenosis; and inflammatory annular fissuring at L1-2, L2-3, L3-4, L4-5, and L5-S1.
A bone density report found that Ms. Client had osteopenia and osteoarthritis. She had an unsteady gait and was a high fall risk, and she was using a cane at this time. Ms. Client had a slightly lower bone density, which may have been a result of significantly decreased mobility as a result of her injury.
At a follow up visit to her neurologist Ms. Client was still symptomatic with neck pain. She was depressed and had lost weight. Ms. Client continued to have low back pain with radiation of the pain to the lateral aspect of the left thigh; numbness and weakness of her left foot; spasm or catch in her left leg; and persistent left foot drop. A surgical consultation diagnosed her with cervical spinal stenosis with mild radiculopathy and lumbar spinal stenosis suggestive of unstable dynamic degenerative spondylolisthesis. An x-ray of her lumbar spine showed interval worsening of anteriolisthesis of L4. A surgical consultation follow-up recommended a posterior spinal instrumentation at L4-5; posterior spinal fusion at L4-5; transfacet decompression at left L4-5; L4 and L5 laminectomy; and prosthetic cage insertion at L4-L5. This second surgery was performed in 2015. A post-operative report found that there was scar tissue over Ms. Client’s old laminectomy sites bilaterally and considerable scarring over the L4-L5 facet joints. Screws had to be inserted into L4 and L5, and there was considerable instability when doing the L4-L5 transfacet decompression. The post-operative diagnosis was lumbago; acquired spondylolisthesis; postlaminectomy syndrome; and spinal stenosis.
This second surgery was successful for Ms. Client for some time. Her neurologist noted that the foot drop was resolved, and Ms. Client’s pain had lessened; however, she still had neck pain and intermittent numbness of her right fifth digit and medial aspect of her right hand. Ms. Client felt better for a time, but an MRI of her lumbar spine performed in 2016 showed borderline multifactorial central canal and subarticular recess stenosis without significant interval change at L2-3; moderate to severe stenosis of the central spinal canal and subarticular recesses left greater than right associated with hypertrophic facet arthropathy and left paracentral disc protrusion at L3-4; impingement upon the thecal sac in the region of the traversing L4 nerve rootlets; and reactive facet arthritis/synovitis at the L3-L4 level bilaterally.
In 2016, Ms. Client underwent a third surgery for disc protrusion pressing on L4 nerve root. The procedure performed as a laminectomy of L3; re-exploration of L4; and excision of a facet cyst.
In spite of all her treatments and surgeries, Ms. Client continued to suffer a great deal of pain. In 2016, Ms. Client complained of severe sciatica on the left and right legs; pain and numbness on her right arm resulting in spasms and numbness in her right hand; and stiffness and rotation issues with her neck. Her sciatica pain and back spasm caused her left leg to collapse as she was walking, and she rotated her left foot and broke some bones. She had pain related to L3-L4 and L2-L3. At this point, Ms. Client was undergoing shock wave therapy and massage therapy, and her working hours were greatly reduced. An MRI of her spine performed in 2017 showed mild to moderate chronic degenerative subarticular zone stenoses most conspicuous at L3-4; posterior approach post-surgical changes with large laminectomy defect at L4-5 where bilateral transpedicular screws and vertical uniting rod connectors were present associated with a disc spacer; mild to moderate chronic degenerative neural foraminal narrowing most conspicuous at L3-4; and annular fissuring seen at L1-2, L2-3, and L5-S1. Imaging of Ms. Client’s lumbar spine on in 2017 showed disc bulging at L2-L3, L3-L4, and L5-S1.
Ms. Client participated in an independent medical exam in 2018. At this time, she indicated she was having symptoms in her low back, left leg, right leg, mid back, right shoulder, neck, and arm, along with numbness in the tips of her fingers and toes. Her biggest problem was her low back/left leg sciatica with spasms in her right leg, followed by her mid back, then her right sided neck. The spinal surgeon diagnosed her injuries from the Accident as right elbow sprain/strain; cervical spine sprain/strain with probable right sensory radiculopathy; thoracic sprain/strain; lumbar sprain/strain; bilateral L4/L5 neurological symptoms (motor and sensory radiculopathy) secondary to the aggravation of L4/L5 degenerative spondylolisthesis. His current diagnosis was that Ms. Client continued to suffer from myofascial neck pain with a trigger point in the right trapezius muscle; myofascial thoracic or lumbar spine pain; mechanical thoracic and lumbar pain; adjacent segment degeneration at L3/L4; and residual neurological symptoms. It was the spinae surgeon’s opinion that even though Ms. Client had degenerative changes that pre-existed the injury, she was asymptomatic, and the Accident resulted in the aggravation of the pre-existing underlying condition causing an asymptomatic condition to become clinically symptomatic. It was highly probable that she would require addition surgery and extension of the fusion very likely up to the L2 level.
In terms of Ms. Client’s psychiatric well-being, she continued to have periods of highs and lows. Her psychologist advised her to cease working, as she was working while on pain medication and occasionally “fuzzy”. Ms. Client was advised to retire to reduce the physical and mental demands and associated liability risks on her as a professional. A psychiatric assessment performed on Ms. Client in 2018 found that her pre-Accident mood disorder was a severe and recurrent condition; it was likely she was well and uninjured from a psychiatric perspective at the time of the assessment. There were several stressors unrelated to the Accident at the time she quit working (financial, professional, and marital) and it was more likely than not these factors that were the cause of her mental state. Any mental issues suffered by Ms. Client were likely caused by pain, which can exacerbate or aggravate a person’s mental state.
This psychiatric assessment was corroborated by a later psychiatric independent medical examination conducted by a psychiatrist in 2018. The psychiatrist found that Ms. Client presented with no current psychiatric diagnosis. In his opinion, the major depressive episode suffered by Ms. Client in late 2013 coincided with and was likely precipitated by the breakdown of her marriage: it is unlikely that any psychiatric injury was directly caused by her Accident. However, her depression likely contributed to the breakdown of her marriage and dealing with chronic pain may have made her depression worse, but according to the psychiatrist, there would be no way to reliably demonstrate that.
Ms. Client continued to suffer pain into 2019. An orthopedic surgery assessment independent medical examination performed in 2019 found that Ms. Client had significant pre-existing spinal arthritis without any symptoms, and the Accident caused an aggravation of symptoms. Ms. Client’s whole person impairment attributable to her Accident was 10 percent. She began to suffer left knee pain and was receiving cortisone shot injections to manage this pain. Ms. Client was still having severe pain in her lower back and lower extremities. An MRI done in 2019 showed moderate central stenosis from C3 to C7; starting at C3-C4 there was mild central stenosis with severe left-sided foraminal stenosis at C3-C4; at C4-C5 there was moderate to severe central stenosis and cord compression with bilateral foraminal stenosis left worse than right; at C5-6 there was severe central stenosis with severe bilateral foraminal stenosis; and at C6-C7 there was moderate central stenosis with mild bilateral foraminal stenosis. An MRI of her lumbar spine showed canals patent around L4-L5 after the previous laminectomy and fusion, and the screws were not in good position: Ms. Client would require surgical correction in both her cervical and lumbar spine. Ms. Client began to receive epidural injections in the cervical and lumbar paraspinal muscles in 2019.
Ms. Client continues to suffer pain. In 2019 she reported a spontaneous onset of acute neck pain and bilateral arm pain, as well as continuing pain in her neck, shoulder, arm, mid and low back, and legs including sciatica. She had a flare-up of cervical degeneration with neck pain and radicular symptoms and is a likely candidate for surgery for the degenerative changes in her cervical spine. A virtual follow up independent medical examination with the spine surgeon performed in 2020 found Ms. Client continuing to be troubled by her neck and arm symptoms; she felt her symptoms had progressively worsened.
In total, the Accident caused Ms. Client to sustain the following injuries:
- Severe injury to the back of her head;
- Intermittent vertigo;
- Depression, anxiety, panic attacks, and stress;
- Impairment of memory and concentration;
- Severe injury to her neck resulting in pain, spasms, numbness, and tingling down her right arm to her fingers;
- Right arm weakness and injury to her right shoulder, right elbow, and right arm;
- Severe injury to her low back requiring multiple surgeries, with the prospect of future surgery likely;
- Numbness and tingling with burning sensation down both legs;
- Weakness in both legs along with loss of feeling in left leg and left foot;
- Development of bilateral partial foot drop, greater on the left;
- Swollen left ankle and impaired gait and balance with limping;
- Sleep disturbance and fatigue;
- Bladder incontinence; and
- Continuous pain.
Ms. Client reported that she was in good health prior to the Accident, but there are some medical issues in her history. She had been seeing her chiropractor for sporadic care since 2004 for neck symptoms and occasional low back care. The low back issues were a result of falls. However, the chiropractor stated that Ms. Client was in a relatively healthy state, and she was physically fit. Ms. Client had some treatment for menopause; she has had multiple cosmetic surgeries. A massage intake form from 2012 lists tension in her hips and gluteal area to her right shoulder. After the Accident, x-rays showed a host of degenerative changes that predated the Accident throughout her spine, as described above. However, all of Ms. Client’s back and neck issues were largely asymptomatic at the time of the Accident.
Ms. Client had a significant pre-existing condition related to her mental health: she had several major depressive episodes. In 2006, Ms. Client’s psychiatrist reported that she was suffering a major depressive episode with generalized anxiety disorder, adjustment disorder, and obsessive traits; she was reactive, irritable, and had difficulty concentrating and emotional lability. In 2007, it was reported that Ms. Client’s toxic marriage led to a major depressive episode and anxiety. In both of these depressions, Ms. Client had difficulty working. However, her psychiatrist attributed Ms. Client’s mental issues to marital problems including a marital breakdown and financial and professional stress. By late 2007, Ms. Client’s major depressive episode was resolving, and her outlook and general mood state were described as good. However, her psychologist stated that Ms. Client had a biological predisposition towards depression and anxiety. Ms. Client was prescribed anti-depressant medication for all of these incidents.
CONCLUSION:
It may prove difficult to predict Ms. Client’s general damage award with accuracy. Much will depend on how the court views her pre-existing degenerative spine problems. However, the majority of the evidence indicates that the medical professionals feel that Ms. Client’s back problems were asymptomatic prior to the Accident. She arguably should be considered to be a thin skull plaintiff, as opposed to a crumbling skull plaintiff. In this regard, there are several cases that are analogous to Ms. Client’s situation.
The most analogous Alberta case is Do (Next Friend of) v. Sheffer, 2010 ABQB 86, additional reasons in 2010 ABQB 422. In this case, the male plaintiff was in a motor vehicle accident that resulted in multiple soft tissue injuries that led to lasting pain in his neck, shoulder, and lower back. While the plaintiff had some pre-existing injuries, these were mostly asymptomatic at the time of trial, rendering him a thin skull and not a crumbling skull plaintiff. The plaintiff’s x-rays showed moderately severe degenerative disc disease at L5-S1 but no other abnormalities, while the x-ray of the cervical spine showed mild degenerative disease. The Do plaintiff continued to have pain in his lower back that was caused by the accident, and he was awarded $96,135 in general damages (inflation adjusted).
Another very similar Alberta case is Sorochan v. Bouchier, 2014 ABQB 37, varied on other grounds in 2015 ABCA 212. The plaintiff in this case was in a motor vehicle accident and suffered from ongoing neck pain and lower back pain. In terms of mitigation, the Sorochan plaintiff underwent numerous physiotherapy sessions and cortisone spine injections; she was awaiting surgery in the form of an L3/5 instrumentation and decompression with interbody cages. The plaintiff denied any pre-existing conditions, but a CT scan revealed pre-existing bulging lumbar discs. Belzil J awarded $78,975 in general damages (inflation adjusted).
A very analogous case to Ms. Client’s situation is Graham v. Rogers, 2000 BCSC 605, varied on other grounds in 2001 BCCA 432, and leave to appeal refused in 2002 CarswellBC 76. The 54-year old male plaintiff was injured in a motor vehicle accident. It was revealed that the plaintiff had a severe cervical spondylosis or degenerative condition and a large cervical disc herniation. He underwent surgery to remove the protruded disc fragment six months later. Since then, his condition improved. Lowry J held that the accident rendered the plaintiff’s pre-existing cervical spondylosis symptomatic, and this was the cause of his pain. As a consequence of the accident, the plaintiff was permanently injured, and it was an injury that deprived him of his ability to pursue the only employment he had ever known. Lowry J awarded the plaintiff $103,575 in general damages (inflation adjusted).
Another very analogous case is Beardwood v. Sheppard, 2016 BCSC 100. The plaintiff was injured in a motor vehicle accident. The plaintiff had a moderate pre-existing degenerative condition in his neck at C3-4, C5-6, and C6-7, including central canal stenosis at C3-4 and C6-7. He also had abnormal disc herniation at C3-4 and C6-7 that predated the accident. In the accident, he complained of pain to his neck, right shoulder, back, shooting pains down his arms, numbness in his fingers, and weak and clumsy hands. The plaintiff underwent a neck surgery which involved the removal of a disc, the fusion of a vertebra, and the insertion of a plate. The surgery did not decrease the plaintiff’s pain. He had surgery approximately one year later on his right shoulder. About six months after this, the plaintiff had neck surgery for a second time: a second disc was removed, along with the plate that was inserted in the first surgery, and a second vertebra was fused, and a new plate was inserted to immobilize the two fused vertebrae. The plaintiff still had significant neck pain and shooting pains down both arms. Weatherill J awarded the plaintiff $200,000 in general damages, but reduced this amount by 40 percent to reflect the measurable risk that his pre-existing degenerative spinal condition would likely have affected him detrimentally in the future. The general damage award in this case was $123,120 (inflation adjusted).
Other analogous cases set the damage award for plaintiffs with similar injuries to Ms. Client’s, inflation adjusted, from a high of $181,050 to a low of $73,710, with an overall average amount of general damages awarded of $112,200. The average amount of general damages awarded in similar Alberta cases was $115,865, inflation adjusted. Therefore, it seems likely that Ms. Client’s general damage award will range around $110,00 – $120,000.
The following cases are inflation-adjusted using the Economica index.
DISCUSSION:
Al-Hendawi v. Sidhu, 2006 BCSC 522, additional reasons in 2008 BCSC 35 $150,000 $181,050
The plaintiff in this case was rear-ended in a motor vehicle accident. He was an obstetrician from Jordan and was in the process of moving to Canada shortly before the accident. Immediately after the accident, the plaintiff claimed he had pain in his lower back and in his left knee; he went to hospital and was discharged with a diagnosis of soft tissue injury to left knee and back. Prior to the accident, the plaintiff had been healthy and was a physically active man. Approximately a week after the accident, the pain in his knee subsided but the pain in his lower back worsened. The plaintiff’s family doctor noted muscle spasm on his left side in the lumbar spine area, restriction on the left side in lateral flexion, and pain with forward flexion; he was diagnosed with a left lumbar sprain. The pain continued and sometimes radiated into his buttocks. A CT scan of his lumbar spine later showed a left lumbar 4-5 posterolateral disc herniation, more on the left than on the right. The pain persisted and caused him trouble sleeping. An MRI later showed signs of degeneration and dehydration of the L4-L5 and L5-S1 discs, straightening of the lumbar spine due to muscle spasm, moderate left paracentral disc protrusion at the L5-S1 level, abutting the thecal sac but not causing significant thecal sac or nerve root compression. There were also degenerative changes involving the cervical spine manifested by disc dehydration, degenerative bulging and posterior osteophytes, none of which were causing spinal cord or nerve root compression. The plaintiff’s condition worsened, and the pain was shooting down his leg to his left foot. He began to experience foot drop; surgery was performed to alleviate the pressure on the nerve. After the surgery, the pain radiating into his leg stopped completely and the only pain he experienced was in his lower back at the site of the surgery. This pain was a constant burning in the whole of his lower back that became intolerable. The plaintiff got another MRI that showed discitis, a condition of inflammation likely due to bacterial infection. Due to his ongoing pain, the plaintiff became ineligible to practice medicine in Canada, and he became depressed. Baker J held that in the accident the plaintiff suffered pain radiating into his left buttock and down the left leg; nerve impingement on the L5 nerve that caused a condition of near paralysis of his left foot that necessitated surgery; the infection in the disc space caused by the surgery; and depression. The plaintiff would continue to have chronic lower back pain into the future, and he was awarded $150,000 in general damages.
Although Ms. Client is not likely to receive a general damage award this high, there are parallels between her case and this one. Both plaintiffs suffered a foot drop that required surgery to correct, and both were left with near constant back pain and depression issues after their accidents. However, the Al-Hendawi plaintiff was healthy prior to his accident, whereas Ms. Client’s back issues pre-dated her Accident (although they were asymptomatic). The general damage award in this case may provide a good benchmark as to the upper range of damages that she can expect to be awarded.
Robinson v. Fiesta Hotel Group Resorts, 2008 ABQB 311, additional reasons at 2008 ABQB 457 $150,000 $173,250
In this case, the 51-year old male plaintiff was injured during his stay at the defendants’ hotel in the Dominican Republic, when he fell while feeding some fish. Immediately after the accident, the plaintiff had difficulty walking and was experiencing increasing pain, along with suffering some paralysis; he was transported by air ambulance back to Canada. The plaintiff was diagnosed as having crushed C6 and C7 vertebrae. He was admitted to hospital for approximately one and a half months, and then was a patient at a rehabilitation hospital for approximately three months. He continues to suffer pain and a partial paralysis of his lower extremities. The plaintiff had a discectomy surgery with cord decompression and strut graft with allograft placement at C6-7. He used crutches for a lengthy amount of time and then developed an unusual gait that would allow him to walk. The plaintiff suffered numbness from his mid-sternum down; reduced sensation in his upper limbs; general weakness; impaired fine and gross motor dexterity; impaired balance; and limited activity tolerance. Based on the plaintiff’s partial quadriplegia and the apparent permanence of the damage flowing from this, Yamauchi J awarded $150,000 in general damages.
While Ms. Client did not have any quadriplegia, there are similarities between her case and this plaintiff. The Robinson plaintiff suffered a back injury that required surgery; he had residual damage flowing from his accident. Ms. Client has had continuous pain and difficulty following her Accident, and she too required the use of walking aids for mobility. While there are connotations associated with the phrase “quadriplegia,” Ms. Client’s lasting pain and medical problems, not to mention her multiple surgeries, may convince the court that her general damage award should approximate what was awarded in this case.
Latta v. Ontario, 2004 CarswellOnt 3770, affirmed by 2005 CarswellOnt 6042 $120,000 $151,080
The plaintiff in this case brought an action pursuant to occupiers’ liability against the defendant Province of Ontario. The plaintiff was a 35-year old male who fell down several stairs leading from a landing outside the door of a school building at a reformatory where he was an inmate. Prior to the fall, he rushed out of the building to see if the way was clear and tripped over a plastic bucket that the Province used to hold sand and silt. The bucket had been improperly placed. The plaintiff alleged he suffered a ruptured disc, described as a “huge central and right sided disc herniation occupying the majority of the spinal canal at L3-L4 level with compression of the subarachnoid sac at the L5 level. The fracture was unstable and in the middle of his spine; there were risks that included damage to the nerve controlling the bladder and the bowel. He eventually required surgery. Kennedy J held that the plaintiff was not credible for multiple reasons; however, the defendant was in breach of its duty under occupiers’ liability legislation. The plaintiff was healthy and had no pre-existing medical problems, but since his accident, he continued to suffer from chronic pain of a relatively severe nature. The pain was described as a constant deep aching in his bones, starting in the low back, radiating to the hips, down the posterior thigh and into his heels. Kennedy J assessed the plaintiff’s general damages at $120,000.
This case is similar to Ms. Client’s in that it involved a back injury that required surgery, and the injury was the result of a breach of duty by an occupier to a visitor. Like the Latta plaintiff, Ms. Client required back surgery and has been left in chronic pain since her injury. However, Ms. Client had a serious pre-existing (although asymptomatic) condition. Even though she has had multiple surgeries, it is not likely that Ms. Client will receive a general damage award this high. This case could be used to push up the upper range of general damages that she can seek.
Beardwood v. Sheppard, 2016 BCSC 100 $120,000 $123,120
The 36-year old male plaintiff in this case was injured in a motor vehicle accident. Prior to the MVA, he was in good physical health and participated in many activities. He worked in the window glazing and installation industry; in 2009 he suffered a workplace lower back injury. This resolved after approximately six months. Immediately after the collision, the plaintiff was taken to hospital and was discharged after receiving x-rays and a neck brace. Within a few days, his neck, right shoulder, and back were extremely painful; he had shooting pains down his arms, his fingers became numb, and his hands were weak and clumsy. The plaintiff underwent a neck surgery which involved the removal of a disc, the fusion of a vertebra, and the insertion of a plate. The surgery did not decrease the plaintiff’s pain. He had surgery approximately one year later on his right shoulder. About six months after this, the plaintiff had neck surgery for a second time: a second disc was removed, along with the plate that was inserted in the first surgery, and a second vertebra was fused and a new plate was inserted to immobilize the two fused vertebrae. The plaintiff still has significant neck pain and shooting pains down both arms. Physicians later discovered that prior to the accident, the plaintiff had a moderate pre-existing degenerative condition in his neck at C3-4, C5-6, and C6-7, including central canal stenosis at C3-4 and C6-7. He also had abnormal disc herniation at C3-4 and C6-7 that predated the accident. These issues all predated the accident. The plaintiff also suffered a right shoulder labral tear and hypersensitivity and numbness/tingling over the ulnar aspect of both forearms and hands that was likely to persist indefinitely. Weatherill J held that while the plaintiff’s low back problem pre-dated the accident and was not caused by it, the accident exacerbated his low back pain. Weatherill J awarded the plaintiff $200,000 in general damages but reduced this amount by 40 percent to reflect the measurable risk that his pre-existing degenerative spinal condition would likely have affected him detrimentally in the future. The general damage award in this case was $120,000.
This case likely represents an accurate benchmark as to the amount of general damages that Ms. Client can expect to receive, as the medical situations of the plaintiffs is fairly analogous. The Beardwood plaintiff had three surgeries to his neck; Ms. Client has had four surgeries to her back. Both plaintiffs have been left in pain and have seen their former lives significantly altered in terms of their careers and activities. Like this plaintiff, the court may find that there is a measurable risk that her pre-existing degenerative back issues would have troubled her regardless of the Accident. Ms. Client should receive a similar general damage award to what was awarded in this case.
Prosser v. 20 Vic Management Inc., 2009 ABQB 177, affirmed by 2010 ABCA 57 $100,000 $115,100
The 39-year old female plaintiff in this case was injured when she fell at a shopping mall. The plaintiff visited the mall for a chiropractic appointment, after which she exited the mall through a construction zone. She tripped and fell over the leg of a temporary orange construction fence just beyond two garbage receptacles. The evidence showed that the plaintiff was only somewhat cautious in walking through the construction zone. Cairns J held that there was a duty on the construction company to make some attempt to warn of the increased risk due to construction or to mitigate the risk in some way: there were no signs and the fence leg was not sandbagged down or made clearly visible. However, the plaintiff was not being sufficiently cautious as she left the mall and walked towards her car. Cairns J apportioned liability at 50/50. Prior to the accident, the plaintiff’s health was generally good, although she had some incidents of back pain in the past; she was at her chiropractor to deal with neck and shoulder pain that was causing her headaches. Immediately after the fall, the plaintiff went to work because she had a meeting but then went home. She had pain in her right arm and low back, and then down the back of both of her legs, that eventually worsened. Her chiropractor diagnosed her with right and left sciatica down to the calf. Several months after the accident, the plaintiff experienced a major flare-up in her condition, with significantly increased low back pain and pain radiating down both legs. An x-ray revealed degenerative changes bilaterally in the inferior aspects of her SI joints. Her low back continued to bother her, along with her sacroiliac joint. The plaintiff underwent physiotherapy, personal training, massage, acupuncture, biofeedback, prolotherapy, and injections to manage her pain. An MRI showed mild degenerative disc disease at the L3-L4 region. Cairns J held that the plaintiff’s fall either caused or materially contributed to her current physical condition. Cairns J awarded the plaintiff general damages of $100,000.
There are some similarities between this plaintiff and Ms. Client. Both were women of a similar age who were injured in trip and fall incidents. Both had some pre-existing degenerative back issues. However, Ms. Client’s pre-existing problems are seemingly more severe than the Prosser plaintiff. Ms. Client has undergone numerous surgeries, while this plaintiff has had no surgical intervention. Both are similar in terms of the numerous and extensive treatments they have had to manage their symptoms. Ms. Client’s general damage award should be somewhat similar to what this plaintiff received.
Pham-Fraser v. Smith, 2010 BCSC 322, additional reasons in 2010 BCSC 694 $95,000 $107,445
In this case, the 36-year old female plaintiff was struck by the defendant’s vehicle in an intersection. The plaintiff worked as an elementary school teacher and lived an active lifestyle. Immediately after the accident, the plaintiff was taken to the hospital by ambulance, where she was examined and released. In the accident, she suffered soft tissue injuries to her neck, back, and lumbar spine area; aggravation of a TMJ dysfunction problem; aggravation of a pre-existing carpal tunnel syndrome; mild traumatic brain injury; headaches; vertigo; and psychological injuries including depression, PTSD, and anxiety. She said she suffers from continuous ongoing lower back pain with pain and numbness into her leg and foot from stenosis or narrowing of her spinal canal, likely the result of a burst fracture at her L5 vertebrae level caused by the accident. She still suffers from headaches, jaw pain, neck pain, and near constant low back pain. The plaintiff had surgery to correct her carpal tunnel syndrome.
Greyell J accepted the plaintiff’s evidence that she experienced significant low back pain from the date of the accident and that it continues to bother her daily. The plaintiff had degeneration in her spine, but the experts could not say what amount of degenerative change was caused by the accident as opposed to being pre-existing damage. The plaintiff may need decompression surgery in the future, with the potential for a spinal fusion.
Greyell J held that the injuries that were sustained in the accident had a significant impact on the plaintiff physically, mentally, and socially; she had a partial disability that was not likely to resolve over time. Her headaches were recurring; she had to change her diet. The pain in her neck and shoulders had improved, but she still suffers shoulder pain; her carpal tunnel syndrome in both arms bothered her until she had an operation. The plaintiff had lower back pain that radiated into her right buttock area, leg, and foot with numbness. Greyell J awarded $95,000 in general damages.
The plaintiff in this case is analogous to Ms. Client. Ms. Client had an active, rewarding life prior to her Accident, similar to this plaintiff. Both plaintiffs were females who suffered injuries in their accidents including pain in their necks and shoulders and low back pain that radiated into their legs and caused numbness. Significantly, both plaintiffs had pre-existing degenerative changes in their spines. The Pham-Fraser plaintiff needed surgery on her carpal tunnel syndrome and would likely need decompression surgery on her spine; Ms. Client has had numerous spinal surgeries and has the prospect of more spinal surgery in the future. The general damage award in this case likely represents a good benchmark for the amount of general damages that Ms. Client will receive.
Allen v. Wal-Mart Canada Inc., 2009 NLTD 79 $90,000 $103,590
In this case, the 45-year old female plaintiff was injured when she fell using a conveyor belt that transported shoppers through the store; she became trapped between the belt and her shopping cart. The defendant admitted liability. After the accident, the plaintiff was able to walk away, but she went to her family doctor the next day. Th plaintiff had some pre-existing conditions including a congenital condition that affected the muscles of her eyes. The plaintiff testified that the morning after the accident, she woke up and her whole body was aching; she went to her family doctor complaining of pain to her head, neck, shoulder, lower back, left hip, ring finger, and right knee. An x-ray ordered that day showed that her cervical spine had a narrowing of the disc space between the fourth and seventh vertebrae, and her lumbar spine had a narrowing between the last vertebrae and the first part of the sacral spine. The plaintiff continued to see her family doctor who advocated on her behalf; he reported that the plaintiff’s injuries were debilitating and not likely to resolve. Faour J held that the narrowing of the disc spaces in the plaintiff’s back and the presence of scoliosis were brought on by the accident. The plaintiff had developed chronic pain from the accident. Faour J held that the symptoms the plaintiff complained of were present within hours of the accident; the degenerative changes were not the cause. However, at some time in her life, the plaintiff’s degenerative changes would have resulted in the onset of some of her symptoms. The plaintiff had no history of lower back pain, so whatever degenerative changes were present they were so mild that they caused her no ill effects. Faour J held that the plaintiff suffered a moderate soft tissue injury from the accident that caused significant and lasting effects to her cervical and lumbar spine; the accident triggered a chronic pain syndrome. Faour J awarded the plaintiff $90,000 in general damages.
Ms. Client bears some similarities to this plaintiff in that they were both women of similar ages who sustained injury in an occupiers’ liability mishap. Both had some pre-existing degenerative changes in their spines that was asymptomatic and rendered symptomatic. Ms. Client has had to undergo multiple back surgeries; like the Allen plaintiff, she has experienced lasting pain. Ms. Client should expect to receive a general damage award on par with or slightly higher than what was awarded in this case.
Graham v. Rogers, 2000 BCSC 605, varied on other grounds in 2001 BCCA 432, and leave to appeal refused in 2002 CarswellBC 76 $75,000 $103,575
In this case, the 54-year old male plaintiff was injured in a motor vehicle accident. He had worked his whole life as a shingle sawyer, a profession which involved repetitive heavy lifting. He had a pre-existing spine condition, which he claimed was accelerated by the accident. After the accident, he attempted to return to work but was unable to do so. He had a previous serious work injury to his left foot and was unable to work for nearly ten years after; he was working on a part-time basis at the time of the accident. The accident involved a severe impact. The plaintiff sustained a bruise to the left side of his head where it struck the frame of the vehicle, and he injured his right knee. He went home but went to his family doctor a couple of days later. The plaintiff attempted to return to work, but his injuries prevented him from doing so; in particular, his knee was troubling him. The plaintiff found that working in the mill made his neck, shoulders, and back very sore; he stopped working when the pain became too much for him. The pain was managed with medication and chiropractic treatment. While working out at a gym, the plaintiff experienced a significant increase in the pain in his neck. It was revealed that the plaintiff had a severe cervical spondylosis or degenerative condition and a large cervical disc herniation. He underwent surgery to remove the protruded disc fragment six months later. Since then, his condition improved. The medical experts all agreed that the plaintiff’s degenerative condition was sufficiently advanced and severe before the accident that it would probably, at some time, become symptomatic. Lowry J held:
While I recognize that there are aspects of the onset of Mr. Graham’s symptoms that are not easily explained, I consider the preponderance of the evidence supports the view that his is a “thin skull” case. I say that not because of the number of experts aligned on one side of the issue but because of the circumstances. When a person, who has for all intents and purposes been wholly symptom free, is rendered substantially disabled by a pre-existing condition that could have been rendered symptomatic by what happened, it must take evidence that is very compelling indeed to defeat the contention that, on the balance of probabilities, the accident caused or hastened the onset of the disabling symptoms [emphasis added] (para. 17).
Lowry J held that the accident rendered the plaintiff’s pre-existing cervical spondylosis symptomatic, and this was the cause of his pain. As a consequence of the accident, the plaintiff was permanently injured, and it was an injury that deprived him of his ability to pursue the only employment he had ever known. Lowry J awarded the plaintiff $75,000 in general damages.
Like Ms. Client, this plaintiff made attempts to return to work but was unable to do so due to the pain caused by an accident. Like Ms. Client, the Graham plaintiff had a pre-existing back condition that was asymptomatic at the time of his accident and was rendered symptomatic. This plaintiff was more fortunate than Ms. Client in that he only needed one surgery to alleviate his pain: Ms. Client has had four and will likely need more. This case may represent an accurate benchmark as to the amount of general damages that Ms. Client can expect to be awarded.
Do (Next Friend of) v. Sheffer, 2010 ABQB 86, additional reasons in 2010 ABQB 422 $85,000 $96,135
In this case, the plaintiff was injured in a motor vehicle accident and claimed he became totally disabled as a result. Prior to the accident, the plaintiff worked in medium to heavy labour and had a history of intermittent back pain with occasional flare-ups. He had been diagnosed with low back strain and associated pain and numbness in his leg and foot. The plaintiff had a left L5-S1 laminectomy and discectomy in 2002, after which he had a program of therapy and rehabilitation. After the accident, the plaintiff was taken to the hospital where x-rays showed moderately severe degenerative disc disease at L5-S1 but no other abnormalities, while the x-ray of the cervical spine showed mild degenerative disease. The plaintiff was diagnosed with multiple soft tissue injuries and painkillers and physiotherapy were prescribed. Lee J held that the plaintiff suffered an exacerbation of his prior back issues in the accident; these issues had generally resolved by the time of the accident. He also suffered an injury to his neck and shoulder. Although the neck and shoulder injury largely resolved, the plaintiff continued to have pain in his lower back that was caused by the accident. Lee J held that the plaintiff’s injuries were permanent and resulted in clinical impairment of his cervical spine. Further, the plaintiff was a thin skull, not a crumbling skull, plaintiff as his prior medical problems were asymptomatic. Lee J awarded the plaintiff $85,000 in general damages.
Like Ms. Client, this plaintiff had a pre-existing spinal condition that was asymptomatic and was rendered symptomatic by an accident. Ms. Client’s lasting pain and multiple surgeries likely means that her general damage award will be higher than what the Do plaintiff received. However, there are many similarities between this plaintiff and Ms. Client: she may receive a general damage award on par with what was awarded in this case.
Chenier v. Szili, 2015 BCSC 675 $90,000 $93,690
In this case, the 61-year old male plaintiff was injured in a motor vehicle accident. Prior to the accident, he was very physically active and had his own demolition business. He had occasionally gone to a chiropractor for shoulder pain, and eventually had shoulder surgery. In the accident, the plaintiff was rear ended by the defendant’s vehicle; the impact pushed his car into the car in front of him. The plaintiff was able to drive away from the accident, but later that day he began to feel pain in his upper and lower back and across his shoulder. He went to a walk-in clinic that evening and to his family doctor three days later complaining of pain in his upper back, across the shoulders, lower back pain, and neck pain. He went to physiotherapy and massage but continued to have pain. The pain in his lower back became constant; there was severe pain in his right hip that radiated to his right knee. A sports medicine physician testified that the plaintiff had post-traumatic myofascial pain syndrome; mechanical low back pain; multilevel cervical and lumbar degenerative disc disease with moderate to severe levels of facet arthropathy; and spinal stenosis involving both cervical and lumbar levels. This physician was of the opinion that the accident aggravated the plaintiff’s pre-existing low back impairment and that there was a rapid acceleration-deceleration of his spine capable of injuring his neck and back. The plaintiff had developed daily continuous and persistent chronic pain in his low back. An MRI taken of the plaintiff’s spine in 2014 revealed a small L4/5 disc bulge with right side lateral recess narrowing but without compression of the L5 nerve root; cervical stenosis from disc herniations at C5/6 and C6/7; and a left-sided foraminal stenosis of moderate severity. Armstrong J agreed that these were likely pre-existing and rendered symptomatic by the accident or caused by the accident and likely resulted in the numbness and tingling in the plaintiff’s arms and right leg. It was likely that the plaintiff would require surgery at C5/6 and C6/7. Armstrong J held that the plaintiff’s low back myofascial/mechanical pain Is moderate to severe, continuing, and not likely to improve; however, the spinal cord compression at C5/6 and C6/7 currently did not seriously impact his daily function or his pain. Surgery was not an option at L4/55 because of a bulging disc. Armstrong J awarded the plaintiff $90,000 in general damages.
Ms. Client and the Chenier plaintiff are similar because both had pre-existing degenerative back issues and lasting pain. However, Ms. Client has had multiple surgeries, whereas this plaintiff has not. A significant difference between Ms. Client and the Chenier plaintiff is that Armstrong J was not satisfied that there was a measurable risk that this plaintiff’s pre-existing condition would have detrimentally affected him if the accident had not happened. Ms. Client’s general damage award may be on par with what was awarded in this case.
Tomashewsky v. Linnebank, 2013 BCSC 814 $85,000 $91,205
In this case, the 48-year old male plaintiff was injured when his vehicle was rear-ended by the defendant’s vehicle; liability was admitted. The plaintiff went to his family doctor a few days after the accident complaining of pain to his neck and right shoulder blade; he had right-sided lumbar muscle tenderness. He later complained of pain to his upper and lower back. The plaintiff’s doctor sent him to physiotherapy. The plaintiff began to complain of jaw pain and clicking, but a TMJ x-ray was normal. His back continued to be stiff and sore, and a lumbar spine x-ray indicated severe L5-S1 degenerative disc disease that predated the accident. The plaintiff continued to have back and neck pain. Truscott J held that the plaintiff suffered from a combination of mechanical back pain and soft tissue mediated pain from the accident. Truscott J held that the plaintiff had degenerative disc changes in his back that were the source of his back pain, but these changes were asymptomatic prior to the accident and would not likely have become symptomatic if the accident had not occurred. Truscott J concluded that the plaintiff was a classic “thin skull” plaintiff. His back injury had caused him pain for three and a half years and was unlikely to improve in the future; Truscott J awarded the plaintiff $85,000 in general damages.
Ms. Client should receive a higher general damage award than what was awarded in this case. Like the Tomashewsky plaintiff, Ms. Client had pre-existing degenerative disc disease that predated the accident and was rendered symptomatic; both plaintiffs suffered pain that was unlikely to improve. However, Ms. Client’s degenerative spine issues were more extensive and severe than this plaintiff’s, and she has undergone multiple surgeries. Her general damage award should be greater than what was awarded to this plaintiff.
Sorochan v. Bouchier, 2014 ABQB 37, varied on other grounds in 2015 ABCA 212 $75,000 $78,975
In this case, the 65-year old female plaintiff was stopped at a red light when the defendant rear-ended her vehicle; the defendant admitted liability. She did not feel any immediate pain and did not seek medical attention that day. The plaintiff described her injuries as headaches (resolved); neck pain (still bothers her occasionally); shoulder pain (resolved); pain at the top of her spine (resolved); and lumbar back pain (ongoing). The plaintiff had a dull aching pain in her lower back that became quite pronounced by the day following the accident; she underwent a total of 40 physiotherapy sessions. The plaintiff said she developed radiating pain down her legs that was ongoing; she had a nerve root injection in her lower spine that was extremely painful but of no help. She had cortisone spine injections and she was awaiting surgery in the form of an L3/5 instrumentation and decompression with interbody cages. The plaintiff denied any pre-existing conditions. A CT scan revealed bulging lumbar discs. She still had back pain and pain radiating down her legs. Belzil J concluded that the plaintiff was left with a 10.5 percent permanent partial disability as a result of the accident; he awarded general damages of $75,000.
The plaintiff appealed in Sorochan v. Bouchier, 2015 ABCA 212, arguing that the trial judge misapplied the principles of causation and that the trial judge failed to consider the effect that the injuries from the accident had on her life. The Court of Appeal allowed the appeal with respect to the plaintiff’s loss of future income and housekeeping damages but dismissed the appeal as to general damages.
There are many similarities between the Sorochan plaintiff and Ms. Client. Both plaintiffs were females of similar age who had serious low back pain. Their back pain radiated down their legs and required injections to manage. However, unlike this plaintiff who was waiting for surgery, Ms. Client has undergone several surgeries since her Accident. The general damage award in this case is at the low end of the range of general damages that she can expect to receive.
Preece v. Leonaard, 2014 BCSC 173 $75,000 $78,975
In this case, the 35-year old male plaintiff was injured in a motor vehicle accident and brought an action for damages. He had been in a minor car accident three weeks prior, but the evidence did not suggest he was injured. Prior to the accident, the plaintiff had worked doing sandblasting and painting and enjoyed outdoor activities. He was unable to continue at his former job and he now worked as an oil trucker. The collision was not at a high speed and the plaintiff went home, although he notified the police about the accident when he got there. The plaintiff began to experience pain in his back, so he went to the hospital complaining of pain to his low back and numbness in his right leg. He began to have more pain in the sacroiliac joints of his back and minor numbness in his leg. Approximately 10 days after the accident, the plaintiff described his pain as severe. He suffered a hernia that required surgery. X-rays taken of the plaintiff’s back revealed moderate disc space narrowing at L4-5 and L5-S1 with mild narrowing at L3-4. Leading his doctor to conclude that he had chronic degenerative arthritis and disc space narrowing in his lumbar spine. Barrow J held that he accepted that the plaintiff was in constant pain in his back. Barrow J held that the plaintiff suffered a moderate strain to the lumbar and sacroiliac area of his spine that triggered a previously asymptomatic but chronic degenerative arthritic condition. The plaintiff would continue to suffer generally chronic levels of moderate pain, but there was a measurable risk that he would experience some of these symptoms as a result of his pre-existing degenerative condition. Barrow J awarded the plaintiff general damages of $75,000.
Ms. Client had a similarly chronic but asymptomatic degenerative back condition. However, her pain and suffering is more severe than what the Preece plaintiff endured. She has had multiple surgeries and has the additional issues of numbness, tingling, and neck pain. Ms. Client will likely receive a higher general damage award than what this plaintiff received.
Munoz v. Singh, 2014 BCSC 567 $70,000 $73,710
In this case, the plaintiff was involved in three separate motor vehicle accidents that took place on September 9, 2007; June 15, 2009; and June 21, 2011. Prior to the accidents, the plaintiff’s health was excellent. In the first accident, the plaintiff was 7 months pregnant when the vehicle she was driving was rear-ended; the collision was relatively minor. She had a headache and began to feel low back pain, along with more frequent headaches. After the birth of her daughter, she began to have more intense back pain that travelled upward into her shoulders and neck, along with more frequent and severe headaches. The plaintiff also had some fleeting numbness and tingling sensations in her right leg. She attended physiotherapy and an active rehabilitation program. None of her symptoms had resolved by the time of the second accident. The second accident was also a rear-end collision. The plaintiff sustained a terrible headache and went to her family doctor the next day complaining of neck soreness, right shoulder and arm pain, and upper and lower back pain. This back pain was more intense than that of the first accident. She also felt increased numbness, tingling, and pain radiating down her right leg and eventually down her left leg. An MRI performed in July 30, 2010 that reported mild narrowing and desiccation of the L4-5 disc and a broad-based disc bulge at the L4-5 level, extending to a greater extent on the right with displacement and compression of the right L5 nerve root. There was a disc bulge in her thoracic spine at T4-5. She had been gradually improving through massage at the time of the third accident. In this accident, the defendant reversed her van into the front end of the plaintiff’s stationary vehicle. The plaintiff went to her family doctor the next day complaining of a sore neck and ongoing low back pain; the numbness and tingling in her legs became more frequent and generally appeared worse in intensity and duration. A second MRI on July 7, 2011 showed that the disc bulge at L4-5 was slightly more pronounced and had slight contact with the traversing L5 nerve roots. The plaintiff complained of sciatica pain. A third MRI on August 29, 2012 reported L5-5 disc narrowing and mild bilateral facet arthropathy and ligamentum flavum hypertrophy. Ballance J held that it was more probable than not that all of the plaintiff’s injuries were caused by the trauma of the first accident; this accident also activated her asymptomatic disc desiccation/ spondylosis in her thoracic and lumbar spine. She suffered back pain, headaches, and soft tissue injuries to her neck, shoulders, and along her spine; she may require surgery in the future. Ballance J awarded the plaintiff $70,000 in general damages.
Ms. Client is similar to this plaintiff in that they both had pre-existing back problems that were asymptomatic at the time of their accidents and then rendered symptomatic. In addition, both suffered sciatica pain as well as neck pain and numbness and tingling in the legs. However, whereas Ms. Client has had several back surgeries, this plaintiff had not yet undergone surgery. Ms. Client will likely receive a higher general damage award than the Munoz plaintiff.
