Court Awards $140,000.00 In Non-Pecuniary Damages For L5-S1 Back Injury

In Bellaisac v. Mara, the Plaintiff was injured in a car accident when he was rear ended, and consequently brought an ICBC claim for damages for pain and suffering, wage loss, diminished earning capacity, out of pocket expenses, and the cost of future care. ICBC’S lawyer admitted liability and that the injuries were caused by the accident, but challenged the severity of the injuries. The Plaintiff’s primary injury was a low back injury to the L5 – S1 joint, which caused him ongoing difficulties at the time of trial, approximately five years after the accident. The pain in his back was expected to be permanent. The Court awarded $140,000 in non-pecuniary damages, as well as a very substantial award for diminished earning capacity.

 

[30] The plaintiff’s most predominant injury is to his lower back. The plaintiff has difficulty sitting, walking, standing and lifting. His condition has worsened since the collision. He has pain down his legs, especially his left leg, and also experiences numbness, tingling and cramping.

 

[31] As a result of his pain, the plaintiff has sleeping difficulties and has developed depression and chronic pain syndrome.

 

[32] The plaintiff is not a malingerer. He has worked hard to get better. He has diligently followed the recommended exercises designed to alleviate his pain. Ms. L. Craig, who was qualified at trial to provide expert evidence as a functional capacity evaluator, testified that the plaintiff gave “full effort”. Ms. T. Berry, an occupational therapist, found the plaintiff knowledgeable with the exercises he performed at home (some of the exercises the plaintiff obtained from the internet).

 

[33] The plaintiff has been prescribed many drugs in an effort to address his physical pain and his depression. He has received injections to his lower back area in order to address his lower back pain (with, at best, only temporary relief).

 

[34] The plaintiff is resolute. He has worked part time as a demolition worker since the accident, but with difficulty, and often is forced to leave work or work shorter hours because of his pain. At trial, he was on employment insurance (medical leave).

 

[36] Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key opinions with respect to the plaintiff’s back are set forth in paragraphs 41 and 43 of his March 18, 2014 report:

 

41. With reference to the low back, the primary finding remains a significant L5-S1 disc protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22nd and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7, 2012. He also presents with a further CT scan of the lumbosacral spine taken at Jim Pattison Outpatient Clinic October 17, 2012. These further investigations merely confirmed the presence of the L5-S1 disc with probable compromise to the S1 roots. His clinical presentation at this juncture is more suggestive of compromise to the left S1 root in that he presents with weakness of calf musculature. He demonstrates at this juncture a degree of root tension on the left, probably involving the left S1 root. There is the probable hyperactivity of the left ankle reflex. There is also numbness of the sole of the left foot and weakness of plantar flexion/pointing the foot downward. All these signs involve the S1 root. There therefore appears to be little reasonable discussion as to the cause of his persistent symptoms.

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