Seeking Compensation for a Compression Fracture of the Back
Throughout my years as an Ontario Personal Injury Lawyer, I have represented many clients with injuries that have included a compression fracture of the back (also referred to as a spinal compression fracture). Although this injury often heals with time, clients can claim various pecuniary (monetary) and non-pecuniary (non-monetary, such as pain and suffering) losses, depending on the circumstances of the injury.
How Do Compression Fractures of the Back Typically Happen?
In my experience, compression fractures of the back that are eligible for personal injury cases are typically sustained during the following types of accidents:
Motor vehicle accidents (MVAs) are the most common cause of spinal compression fractures. I have seen with my clients that these injuries are rarely sustained on their own, but rather in conjunction with other MVA injuries such as whiplash, or other upper or lower extremity bone fracture, etc.
MVAs have special rules for seeking compensation, which I will discuss below.
Slip, trip, and fall accidents can cause a compression fracture of the back, most typically in the elderly population who are more susceptible to slipping and falling, and whose bones are more brittle than younger slip and fall victims.
The owner of the property – commercial or residential – where the incident occurred is responsible for your safety. Known as an “Occupiers’ Liability” case, victims can seek compensation if the property has not been properly maintained.
How Severe Are Compression Fractures of the Back?
Compression fractures of the back have a huge range in severity.
Mild Compression Fractures of the Back
Many people with more mild spinal compression fractures are not even aware that they have the injury – particularly in the mid-back “thoracic” area. I have found people notice lower or upper (e.g. neck) back pain more than mid-back pain, as our back is structured with bending points at the top and bottom.
Some of my clients have not realized they have a compression fracture of the back until they undergo a diagnostic tool such as a CT Scan or MRI. Depending on the size and structure of the compression back fracture, an x-ray can miss it.
Fortunately in the majority of cases involving a compression fracture of the back – especially the milder fractures – the injury will heal on its own in time. For patients who follow the recommendations of their healthcare practitioners and are in relatively healthy shape, the healing time is often between three and six months. Younger victims can often return to many or most of the activities they had done before the injury.
Compression fractures that do not heal properly and do not require surgery (either because they are less severe or because the victim is elderly and surgery presents too much risk) can become “kyphotic”. Kyphosis is when a person loses inches in the height of the vertebrae which is untreated or ineffectively treated can result in a “hump” or “hunched” appearance in the back.
Severe Compression Fractures of the Back
Some compression back fractures are apparent immediately; these are generally the more severe and problematic injuries. In these cases, the injured person may require surgery and will have a more serious permanent impairment that they will live with for the rest of their life.
Seeking Compensation for Compression Fractures of the Back
The amount of compensation you can receive for a compression fracture of the back depends a great deal on the severity of the injury. Severity can be impacted by factors such as age, your overall health, the size of the fracture, the complexity of the fracture, whether the fracture requires surgery, and more.
It is also affected by the manner in which you injured it, because, in particular, MVAs have specific rules for damages that can be claimed.
Types of Damages
- Pecuniary Losses: Loss of work (particularly if you have a job that involves lifting and twisting – but sedentary workers can have trouble sitting all day with a back injury also), costs of surgery (if required), housekeeping expenses, attendant care, caregiving/childcare costs, etc.
- Non-pecuniary Losses: Pain and suffering, impact on recreational activities, impact on social relationships, etc.
Motor Vehicle Accidents
Currently in Ontario, there are three classifications of MVA accident injuries when working within the No-Fault Accident Benefit System:
- Catastrophic Injury (CAT)
This involves permanent injuries, and allows lifetime medical and rehabilitation benefits of 1 Million dollars and attendant care benefits coverage of up to 1 million dollars, with certain monthly restrictions. It is important to note that as of June 1, 2016, medical, rehabilitation, and attendant care benefits will continue with a lifetime benefit but only provide coverage of 1 million dollars combined.
- Non-Catastrophic Injuries (Non-Cat)
This involves injuries that are not deemed catastrophic, but are more serious than those that fall into the “Minor Injury Guideline”. Coverage for Non-Cat includes 10 years of medical and rehabilitation benefits of up to $50,000 and $36,000 of attendant care benefits for 2 years with monthly restrictions. It is important to note that as of June 1, 2016, medical, rehabilitation and attendant care benefits will continue for only 5 years and have a combined coverage of $65,000.
- Minor Injury Guideline (MIG)
This involves a defined set of minor injuries including sprains, strains, lacerations, and so on. It provides medical and rehabilitation coverage of up to $3,500 and limits certain types of medical assessments.
It is more likely than not that a compression fracture will not be classified as a MIG. The cases where clients have been “put into MIG” are usually cases where: (i) they have not yet been diagnosed with a compression back fracture; (ii) the diagnostic image suggests it is an old fracture and therefore the insurer takes the position it was not caused by the MVA; or (iii) you are working with an inexperienced medical facility who has submitted your plan for treatment through what is referred to as an OCF-23 – Treatment Confirmation for minor injuries.
Currently in Ontario, if you are injured in a motor vehicle collision and another party is at fault, you may be able to sue, subject to certain conditions, one of which is “threshold”.
Due to the threshold of “permanent serious impairment” in MVA injuries and a high deductible, certain MVA compression back fracture cases may not surpass the permanent and serious threshold to surpass the high deductible when seeking non-pecuniary general damages claims (e.g. pain and suffering). Albeit, pecuniary losses such as loss of work, housekeeping costs, etc. can still be claimed.
In non-MVA accidents, such as slip, trip, and falls, victims have a greater chance of success in claiming non-pecuniary general damages for less serious compression back fractures because they do not have to contend with the threshold for permanent serious impairment or a deductible.
Elderly persons who suffer a compression fracture of the back can typically receive higher settlements than younger victims. This is because they do not have the same ability to heal as their younger counterparts.
Often when an elderly person experiences a compression back fracture, they will require ongoing long-term care for the rest of their life, including attendant care, housekeeping and home maintenance, therapy, and so on. As previously mentioned, in many cases an elderly person also has too many risk factors to undergo surgery.
Regardless of your circumstances and the severity of your compression fracture of the back, a lawyer who takes the time to fully understand your specific situation, including your life and responsibilities before and after your accident, will ensure you do not under-settle your case.
With a thorough lawyer who gives your compression fracture of the back case the time and attention it deserves, you should receive a fair settlement that will help to ease your financial burden during your recovery.
If you have sustained a compression fracture of the back or other personal injury at another party’s fault, please do not hesitate to contact me and my team of experienced personal injury lawyers for a free consultation.
More on Personal Injury from Roger R. Foisy:
- What Is the Settlement Value for My Injury or Illness? [Video]
- When Personal Injury Impacts an Elderly Person’s Mobility
- Seeking Compensation for Coccyx or Sacral Fractures
- Why You Need Optional Benefits in Your Ontario Automobile Insurance Policy - May 17, 2022
- Roger R. Foisy Invited as Panelist on OTLA Long-Term Disability Roundtable - February 24, 2022
- Does Your Union Insurance Policy Cover Long-Term Care? - February 22, 2022