IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20100222

Docket:
39679

Registry: Vernon

Between:

Lillian
Elizabeth Posch

Plaintiff

And:

Steven
Mitchell Roy Davies

and Jevin K. Dhillon

Defendants

Before: The Honourable Mr. Justice N. Brown

Reasons for Judgment

I.                
INTRODUCTION

[1]            
On November 24, 2004, the plaintiff, Lillian
Posch, was involved in a relatively minor rear-end collision that caused her soft
tissue injuries.

[2]            
The plaintiff alleges that the accident caused
the following:

§ 
a temporary aggravation of a pre-existing neck
and shoulder condition;

§ 
soft tissue injuries to her right chest wall;

§ 
a back injury in the lower lumbar and sacroiliac
region radiating into the buttocks, the left lateral thigh and down to the
knee;

§ 
fibromyalgia; and

§ 
right foot pain (plantar fasciitis).

[3]            
The defendants dispute causation of the plantar
fasciitis, aggravation of the pre-existing neck and shoulder condition, the
diagnosis of fibromyalgia and the nature and severity of the back injury.

[4]            
The plaintiff alleges that these injuries resulted
in marked functional limitations not present before the accident, and that because
of these alleged limitations, she can no longer perform some employment tasks and
performs others less ably. Similarly diminished is her capacity to keep house
and participate in recreational activities.

[5]            
The plaintiff admits that she experienced
pre-accident injuries to her neck and shoulders but says these were not
limiting her at the time of the accident and submits that they are not relevant
in this case.

[6]            
The plaintiff seeks damages for pain and
suffering and loss of enjoyment of life; diminishment of her homemaking
capacity; past income loss and loss of earning capacity; and special damages,
which the parties have agreed on.

[7]            
The defendants concede that the plaintiff
injured her low back and right chest wall in the accident. However, they maintain
that these injuries and their functional consequences are less serious than the
plaintiff claims and that she has now largely recovered from any low back
injury the accident caused. As for other claimed injuries, defence counsel submits
that the plaintiff’s right foot pain is unconnected to the accident because those
symptoms did not occur for two and a half years. He further argues that the
plaintiff was already facing significant functional limitations stemming from a
series of pre-accident work related injuries, and that both the sequelae of
these prior injuries and her plantar fasciitis are more debilitating than any remaining
consequences of the right chest wall and low back injuries she sustained in the
accident.

[8]            
The defendants agree that the plaintiff is
entitled to compensation for non-pecuniary damages, but submit that the award should
not include any amounts for past income loss or for diminished earning and homemaking
capacities.

II.              
Background

[9]            
The 53-year-old plaintiff is the general manager
of the Interior Vegetable Marketing Agency (the “Agency”) in Vernon, British Columbia,
where she lives with her husband and son.

[10]        
The plaintiff has worked in some facet of the
food business for most of her working life. She started working in her mother’s
delicatessen in Richmond B.C. in 1982, then opened her own deli quite soon
after. She subsequently sold her deli and started working as a delicatessen manager
for IGA. She worked at various IGA store locations until 1993, when the last of
a succession of work related injuries finally made it impossible for her to
continue working as a deli manager. In 1995, the Workers’ Compensation Board
(the “WCB”) awarded her a partial disability pension of about $500 per month and
an additional amount for about two years so that she could complete a variety
of business and management courses in Vernon, where the family had moved. The plaintiff’s
husband, Mr. Posch, is unable to work and receives a WCB disability pension
because of work related injuries to his back.

[11]        
In April 1997, the Agency hired the plaintiff to
work in a clerical position. The Agency manages and oversees the production,
distribution and marketing of vegetables produced in the various producer
regions of the province. The Agency was so impressed by the plaintiff that by
December 1997 it had elevated her to the position of general manager.

[12]        
I heard detailed evidence about the work of the Agency
and the plaintiff’s managerial responsibilities. In sum, the plaintiff ensures
through inspections and education that growers comply with government
regulations. She inspects produce, oversees distribution from farms through to retail
sellers, oversees marketing, and ensures that proper production and sales records
are kept by the Agency. She attends annual Agency meetings, reports to
directors, confers with district managers in other regions and attends
occasional conferences. Her office administration duties include overseeing the
staff, record keeping, and generally managing the operations of the Agency in
Vernon.

[13]        
There is no question that the plaintiff is a
very capable and competent employee. She has accumulated considerable niche
skill and knowledge in her work, the demands and complexity of which have increased
since she was first hired. Her employer values her services.

III.            
Pre-accident Health and Functioning

[14]        
The plaintiff emphasized how physically capable
she was before the accident, a claim the defendants challenge based on her
statements and medical assessments recorded in various clinical histories. Accordingly,
this history requires review before turning to the evidence of the witnesses
called by the plaintiff.

A.             
WCB Records

[15]        
The plaintiff’s first complaint to the WCB was
in November 1989, when she reported a repetitive work injury involving the
tendons of her right arm and shoulder. The WCB records indicate that the
effects of the injury persisted through to August 1990, and that the plaintiff
was unable to perform certain household chores, such as vacuuming, and had to
take time off work. A WCB memo dated December 8, 1992, approximately three
years after the initial complaint, indicates that she was continuing to have problems
with her right shoulder and difficulty with basic household chores.

[16]        
In June 1990, the plaintiff injured the
left side of her neck and low back when lifting a large quantity of chicken into
a barbeque spit. She injured her left shoulder lifting a heavy pail in December
the following year. In September 1992, the plaintiff filed a new claim for an
injury to her lower back and left leg from lifting a heavy load of chicken. In March
1993, the plaintiff filed her final claim, this time for an injury to her left
neck and left shoulder that resulted from her lifting chickens into a barbeque
spit six months later. A September 1993 memo noted complaints of ongoing pain
in both the left and right shoulder. No concerns about malingering were raised.
The plaintiff is fairly short and it appears that some of her job’s lifting
requirements over-taxed her physical capacity.

[17]        
In May 1994, almost a year after that final injury,
the plaintiff completed a questionnaire indicating that she continued to have
problems in her neck and both shoulders.

[18]        
A January 1995 permanent functional impairment
review noted the plaintiff’s statement that her teenage daughter had to do all
of the vacuuming and other household chores. The plaintiff had difficulty
opening cans and peeling vegetables, as well. Disability awards medical advisor
Dr. F.C. Hartley noted that the plaintiff was still experiencing pain and
limitation in both shoulders and neck. He wrote:

Activity and Recreation:

She has never been involved in any
recreational activities, nor has she had any fine hobbies such as petit point. She
reports at the present time she is only able to write two paragraphs, take a
break and then write two paragraphs later… She is able to eat with a fork in
her right hand and get a cup to her mouth, however in demonstrating she points
out that she doesn’t sit upright but bends forward to meet the fork or cup.

Work:

She left work as
a delicatessen manager and has not worked since. Currently she is in rehab
doing some upgrading of her education and hopes eventually to be in business in
administration.

[19]        
On examination, Dr. Hartley noted:

On examination
today, all movements were restricted due to discomfort. All movements stopped
when she felt pain. All movements were grossly restricted. No specific muscular
weakness, wasting or reflex changes noted. A bizarre sensory pattern with
basically the whole right arm being more sensitive than the left. This report
will be forwarded to Disability Awards.

[20]        
The plaintiff was attending school at that time.

B.              
Neurosurgeons Dr. Faridi and Dr. Lefevre

[21]        
On April 4, 1995, the plaintiff saw Dr. Faridi,
a Kamloops neurosurgeon. By that time, the WCB had decided that the plaintiff was
no longer able to work as a deli manager. The plaintiff complained to Dr.
Faridi of neck pain, left shoulder pain and headaches. He noted that the
plaintiff told him “she wants something done if possible because the pain is
getting to the point where she is not able to function”.

[22]        
Dr. Faridi noted that degenerative disc disease
at C4-5 could be the cause of her headaches and shoulder pain. He suggested a
referral for a myelogram and CT scan of the cervical spine, and advised the
plaintiff to consider surgery.

[23]        
The plaintiff rejected Dr. Faridi’s surgical option.
However, because she continued to experience problems, on March 13, 2002, she
saw Kelowna neurosurgeon Dr. Lefevre, who she had consulted previously in
October 1997 for neck pain. Dr. Lefevre wrote:

Thank you for
asking me to see Mrs. Posch again. As you know I had seen her previously in
October of 1997 for the same problems. She continues to complain of neck
pain, this is associated with headache and some shoulder discomfort on the left.
She states that she gets temporary benefit from massage and physiotherapy
she also tries ice and heat. She tells me that she doesn’t like to take
medications for her pain. She does not complain of any radiation of pain into
her arms nor does she complain of any paresthesia. Her chief complaint is of
neck pain and of pain that radiates up into the occipital area particularly on
the left. She will also get some pain radiating down the trapezes ridge. She
states that her neck feels stiff and sore all of the time and that she
frequently gets headaches. She has also been having some trouble with shoulder
pain and states that the shoulder will click when she moves it. [Emphasis
added.]

[24]        
On July 9, 2002, Dr. Lefevre reported that CT
imaging did not reveal any abnormalities at any of the levels imaged. Consequently,
he recommended conservative treatment and again suggested the options of a pain
clinic and epidural steroid and facet injections.

C.             
General Practioner Dr. Waldron and Massage
Therapist Norman Ward

[25]        
The plaintiff’s general practitioner, Dr.
Waldron, confirmed that he saw the plaintiff between 1990 and 2004 on multiple
occasions for neck and shoulder symptoms.

[26]        
The plaintiff also received massage therapy for
neck and shoulder pain pre- accident. Mr. Norman Ward, her massage therapist, started
treating her in January 2003 for complaints of chronic neck pain that radiated
into her shoulders, seeing her eight times between then and September 21, 2004,
her last treatment before the accident two months later. During that last
treatment, he massaged the plaintiff’s neck and entire back to “reduce
tension.”

IV.           
the plaintiff’s Evidence

A.             
Pain and Limitation

[27]        
The day after she returned to Vernon following
the accident, the plaintiff testified that she began to notice pain in the
lower right part of her back and her left buttock. These symptoms worsened in
the first week. The area below her collarbone became very sore to touch, and
the middle of her lower back was also very sore. Within the first few months
after the accident, the pain in her left hip and buttock area extended down the
back of her leg into the left knee.

[28]        
The plaintiff testified that over time a pulling
sensation in her back “got really bad, very close to what [she] had when [her]
daughter was born.” That sensation eventually settled into a low back pain that
is not as acute now as it was earlier. The pain in her upper right chest wall
has not changed. She also feels pain radiating from her left buttock down the outer
part of her left leg to the knee. Two and a half years after the accident, she began
to experience pain in her right foot that was later diagnosed as plantar
fasciitis, an inflammation of some of connective tissue in the foot. The
associated pain significantly limits her walking ability.

[29]        
The plaintiff testified that she still finds it
difficult to get in and out of the bathtub or car, to walk longer distances or
to lift things. Walking intensifies the pain in her buttocks.

[30]        
Beginning in 2005, the plaintiff and her husband
began sleeping in separate rooms because her tossing and turning was disturbing
his sleep. She testified that when she lies on her left side, her left hip
hurts more. She acknowledged that she had problems sleeping before the accident
but testified that that the present situation differs since she was previously
able to sleep on her shoulders and her left side.

1.              
Effect on Homemaking and Gardening Activities

[31]        
The plaintiff testified that before the accident,
she shopped for groceries, prepared all the meals, and cleaned up afterwards,
although she still cooks and cleans up sometimes. Clean up bothers her because
it requires standing at the sink, bending, and putting things away. She said
that following the accident, Mr. Posch assumed more responsibility for cooking
and shopping.

[32]        
The plaintiff explained that reaching or lifting
results in a pulling sensation in her lower back and pain along the left side
of her body. As a result, she is unable to lift heavier items from displays or
shelves when shopping. Although it was not clear whether this limitation related
to reaching out with her shoulders, or bending over, or both, I accept that the
plaintiff’s low back pain sometimes makes bending over and lifting more
difficult.

[33]        
The plaintiff testified about her other pre-accident
housekeeping activities, which included caring for the hardwood floors,
dusting, and laundry. Since the accident, she testified that Mr. Posch has had
to take over these activities, presumably able to do so despite his own low
back disability. The plaintiff’s son looks after his living area in the
basement and helps her with housekeeping upstairs.

[34]        
The plaintiff and her husband testified that
when they moved to Vernon in 1996, they undertook major landscaping at their
home on Lakeview Drive (“the Lakeview Drive property”). The plaintiff described
a huge yard with terraces and bare property on which they built retaining
walls, pathways, and installed hundreds of landscaping ties. I had the
impression from the evidence of Mr. Posch and the plaintiff that they both worked
on this project. After the landscaping was completed, the plaintiff maintained
the extensive gardens they planted. However in 2002 the Poschs moved to a new
house in Vernon located on Cascade Crescent. There they installed low
maintenance landscaping “due to Mr. Posch’s limitations”. The plaintiff planted
annuals in flowerpots, but says that after the accident she stopped planting
even these because she was no longer able to lift the pots.

[35]        
I accept that the plaintiff did not have any
lower back limitations when they lived on the Lakeview Drive property. However,
I cannot reconcile Mr. Posch’s incapacities and the descriptions of Mrs.
Posch’s pain and limitations recorded in the clinical records during that
period with the heavy exertions that this landscaping and garden maintenance
would have required. Either way, I do not find the work performed on the
Lakeview property is an accurate representation of the plaintiff’s pre-accident
capacity.

2.              
Effect on Recreation

[36]        
The plaintiff testified that because of back and
hip discomfort she no longer goes on the long drives she and her husband used
to enjoy before the accident. She has attended movies with her husband only once
since the accident because sitting “is a big issue”. Before the accident, they went
to the movies “easily once per month”.

[37]        
Since the accident, the plaintiff has gained 35 lbs.
She acknowledged that her weight fluctuated before the accident. Dr. Waldron,
her general practioner, posits menopause as a factor. However, the plaintiff
has managed to lose 10 to 15 lbs with dieting alone in recent months. None of
the ball exercises that she has performed since the accident involve
cardiovascular work, and she has not undertaken other cardiovascular exercises other
than during the three-month period she attended a gym until it closed.

[38]        
As far as her social life is concerned, the
plaintiff spoke of attending a friend’s wedding reception and being unable to
dance without discomfort due to pain in her foot and problems with her back. At
her daughter’s wedding in July 2006, she tried to dance and as a result
suffered a “two week set back”.

3.              
Effect on Work

[39]        
The plaintiff testified that she has lost some
days off work due to pain and to attendances at therapy treatments, but has
made up this time by working longer on other days. She generally loses an hour
to an hour and a half to physiotherapy or massage therapy. The defendants point
out that pre-accident the plaintiff also made up for lost work time for therapy
treatments.

[40]        
The nature of the plaintiff’s work allows her to
move around and avoid the prolonged sitting that aggravates her lower back
pain. She explained how before the accident she was often involved in breaking
down and building up new order pallets (i.e. separating out the produce
received and reorganizing it on new pallets for shipping). She estimated that
some of the empty pallets weighed 100 lbs or more. She explained that in
between her management office duties and depending on the season, she performed
these pallet-building duties three times per week. The plaintiff’s evidence
left the impression that she did this mostly on her own. However, according to
Sheryl Lynne Peacock, who worked at the Agency from September 2005 until April
2008, no one person could make up an order themselves and more than one staff
member was always involved in breaking down and making up pallets.

[41]        
The plaintiff testified that she found it
difficult to build up pallet orders after the accident because of her low back
pain. She further testified that her husband sometimes had to come to the
warehouse and assist truck drivers who did not know how to operate the
motorized pallet jack. Ms. Peacock could not recall ever seeing Mr. Posch at
the Agency any of the days that she worked at there, although this may be
attributable to the fact that the plaintiff arrived at work earlier than other
staff.

[42]        
I accept that the plaintiff, along with other
staff, was involved in breaking down and building up new order pallets, that
she was able to operate the motorized pallet jack, and that she has found these
activities more difficult since the accident. However, I also take into account
evidence that comparatively few transfers now take place at the Vernon
warehouse. Towards the end of 2004, the distribution of produce shifted from
Vernon to various other regional centres, such as Grand Forks. After 2005,
comparatively little produce transited through the Vernon and most of what did
was transferred trailer to trailer, where two trailers are backed end to end.

[43]        
Ms. Peacock said that she worked shoulder to shoulder
with the plaintiff and found her “fun to work with, always with a smile on her
face, happy go lucky”. She knew the plaintiff had been involved in an accident
that had occurred just before she started working with her but said the
plaintiff did not complain; although she qualified this comment by pointing out
that “you could sometimes tell that she was in pain by facial expressions and
the way that she moved”.

[44]        
The plaintiff testified that since she is always
the first to arrive at work she used to sweep snow off the apron where the
trucks docked, and even, on occasion, the lot where the trucks backed into the
dock. She said that now her husband comes in the morning to sweep off the apron
when necessary. As for the truck loading lot, several years ago the Agency
retained a bobcat service to clear off snow. Given the plaintiff’s pre-existing
problems with her neck and shoulders, I find it difficult to understand how she
would have been able to shovel a lot of snow pre-accident, even allowing for
the drier variety that often falls on the interior plateau. However, I accept there
were occasions when she did this, and that she formerly had a greater capacity
for shovelling snow than she does now because she didn’t have the back symptoms
then that she does now.

[45]        
The plaintiff explained that with her job comes a
lot of pressure and high expectations because “farming families depend on her
sales ability for their livelihood”. Still, she enjoys her work immensely and
is very good at it. She explained to Dr. Vallentyne, a physiatrist she saw in
January 2009 at her counsel’s request, that she does not think about pain when
she is working because she is so involved in her work, although I took from her
testimony that she does sometimes notice pain in her low back, but “works
through it”. On cross-examination, the plaintiff acknowledged that moving
around helps her low back pain, so presumably being mobile and active at work
helps as well.

[46]        
The plaintiff described having problems accessing
invoices stored in a high storage area, and said that her husband was taking care
of this for her. However, on cross-examination, she acknowledged that this only
occurs about once per year. I also note that other people in the office could
do this.

[47]        
The plaintiff testified that she is tired when
she gets home, as “the pain tires [her] out”. However, even at home, she is not
away from work and has her cell phone on at all times, except on weekends. She makes
conference calls when possible but misses the personal contact. She sometimes
attends other agencies. Her employers have never discussed her limitations with
her “because she does not like to mix her personal and private life together”. She
mentioned the accident to one of the directors, Mr. Jessie Sandhu in Osoyoos,
who confirmed in a short testimony agreement between counsel that her job is
secure as long as she able to continue performing her duties.

[48]        
The plaintiff acknowledged that her salary has
steadily increased since the accident, as have the Agency’s sales. She also acknowledges
that she has taken on more responsibility and that her work is more complicated
than it was at the time of the accident. She has gained experience and
expertise, and has made valuable business contacts. Her employer has not
expressed concern about the motor vehicle accident interfering with her doing a
good job. The plaintiff confirmed that she enjoys her work and intends to work
until retirement age.

B.       Michael Posch, Plaintiff’s Husband

[49]        
Mr. Posch described his wife as honest, loving,
meticulous, very well organized with a good work ethic, and a private person
who is dependable. He said that he has seen a 360-degree change in her
functioning following the accident.

[50]        
He made it clear that his wife never complained
about pain during the period from 1996 to 2003 when they lived on the Lakeview
Drive property in Vernon. On cross-examination, Mr. Posch denied that his wife
ever faced any housework restrictions prior to the accident. Defence counsel
reviewed much of the WCB clinical records with him, pointing out certain
statements his wife had made to adjusters and examiners, including these: that
in January 1995 she could not carry objects in her left hand because “she had
problems dropping them”; “palms asleep”; “inability to write more than two
paragraphs”; “inability to raise a cup to mouth”; that their daughter had to do
the vacuuming and driving was a problem; and, a reference on April 4, 1995 that
she had deteriorated to the point where she could not function. Mr. Posch
recalled little or none of this.

[51]        
Counsel also put some of the more recent examples
of the plaintiff’s complaints of pain to Mr. Posch. One example was her visit
with Dr. Lefevre on March 13, 2002, when she complained of neck pain, headaches
and pain in her left shoulder (part of the history that had led to Dr.
Lefevre’s recommendation that she attend a chronic pain clinic.) Mr. Posch
could not recall discussing this with his wife.

[52]        
I do not find Mr. Posch to be a reliable witness
when it comes to questions relating to the plaintiff’s homemaking capacity
prior to the accident. He was vague, unsure about timelines, and unable to
confirm limitations that the plaintiff was clearly experiencing and which he
should have been able to recall unless he had a marked memory problem.
Accordingly, I give his evidence little weight on that subject.

[53]        
Mr. Posch testified that since his wife’s accident,
he has had to help her move pallets around at work, and, at times, assist
truckers with the forklift. He confirmed his wife’s testimony that he has also
cleaned snow off the deck and hauled out garbage, activities he said that his
wife used to perform. As mentioned already though, Ms. Peacock testified that
one of the staff members usually did this. I accept that Mr. Posch might have
done these activities a couple of times and occasionally helped since the
accident, although I am not satisfied that this is attributable to the
accident. Given the operational changes at the Agency and the evidence of Ms.
Peacock, I find that he did so only to this limited extent, in any event.

[54]        
I accept Mr. Posch’s evidence that he
accompanied his wife on a trip to Calgary because she needed help with luggage;
that they do not go on pleasure drives, go to movies or walk as they used to;
and that the plaintiff was the driving force in the family, a more energetic
person before the accident. I accept, as well, his evidence that the plaintiff
has difficulty sitting in the car for prolonged periods and needs to take
breaks because of low back and leg pain; and that she
cannot walk long distances.

C.       Lillian Helm

[55]        
Lillian Helm is the plaintiff’s daughter. Between
1999 and 2004, she had less contact with her mother because she attended
university in Vernon and Kelowna, driving back and forth. When asked on
cross-examination about any restrictions her mother might have had at home, Ms.
Helm could not recall any periods when her mother had physical limitations. For
instance, she could not recall having to take over all of the vacuuming the
problems her mother was experiencing with her neck and shoulders before or
after the accident. On the other hand, Ms. Helm testified about all manner of
pre-accident activities her mother could do without difficulty, such as
walking, taking long drives, and gardening. She said that she would go shopping
with her mother in Kelowna for a whole day and her mother had no difficulties keeping
up with her. After the accident, however, she explained that her mother’s shopping
tolerance was limited and she was unable to lift certain things or bend over.
She said her brother does most of the chores that her mother used to do,
although she agreed that her mother still cooks on occasion.

[56]        
Ms. Helm was a teenager when her mother was
experiencing the consequences of her various work injuries, so it is understandable
that her recollection of them would be limited. However, given the fact that the
limitations appear to have extended more or less over a 15 year period, it is
difficult to understand why she would not have recalled more than she did,
assuming that the WCB records fairly describe the nature and extent of her
mother’s disabilities during those years.

[57]        
I accept Ms. Helm’s evidence that the plaintiff
had no difficulties walking and was more actively involved in housekeeping
prior to the accident. I also accept her evidence that the plaintiff has
difficulty lifting certain things because of low back pain. I accept that the
plaintiff was previously more energetic and able to be on her feet shopping in
a way that she cannot tolerate now.

D.       Cheryl Doyle

[58]        
Ms. Doyle lives in Vernon and works at the
Jubilee Hospital where she is the housekeeping manager as she has been for 22
years. She met the plaintiff in 1994 and they became more social over the years.
She said that in April 2004 the plaintiff started walking with her but
discontinued at the time of the accident because she was “suffering too much
discomfort”. Ms. Doyle and the plaintiff did not discuss any of the plaintiff’s
pre-accident problems.

V.             
Medical Legal Opinions and Post Accident Treatment

[59]        
Plaintiff’s counsel submits that the
observations and diagnoses contained in the medical legal reports, combined
with the plaintiff’s record of treatments, support the conclusion that the
accident is responsible for all of her claimed injuries.

[60]        
The defendants make a number of submissions in
response. They refer to physiotherapist notes confirming that for considerable
periods the plaintiff’s treatment focused on her neck and shoulder symptoms, with
neither lower back nor leg pain mentioned for lengthy periods. With respect to
the plaintiff’s foot pain, the defendants say that the plaintiff did not
complain of any pain in her right foot until about two and a half years after
the accident, with the first clinical note of foot pain appearing in the spring
of 2007. They also dispute the plaintiff’s medical theory that this condition indirectly
resulted from an altered gait, since the first note of limping appears in
physiatrist Dr. O. Maryniak’s record for September 19, 2006, almost two years
later. Dr. Maryniak had seen the plaintiff on referral from Dr. Waldron, who
similarly first recorded limping on November 15, 2006. Defence counsel further points
out that reports of limping were preceded by a post-accident workplace injury
that could have caused the plaintiff to limp. That injury occurred mid-summer 2005,
when the plaintiff banged her left knee on the corner of her desk at work. Counsel
points out that the plaintiff was still reporting left knee problems four
months later to Dr. Waldron’s colleague Dr. Butters on November 16, 2005 and
posits this as a plausible explanation for the limping. The significance of any
limping lies in the fact that two of the plaintiff’s medical experts posit a
change in gait as an indirect result of the accident that in turn could have
given rise to the plantar fasciitis pain in her right foot. I will discuss this
further below.

[61]        
The plaintiff was assessed and treated after the
accident by her family physician, Dr. R. Waldron; a massage therapist, Norman
Ward; and by physiotherapists Paul Makse and J. Fullerton. She also saw
physiatrists Dr. Maryniak, who wrote a consultation report, and Dr. S.
Vallentyne, who wrote a medical legal report, and also rheumatologist Dr. R.
Shuckett, both of the latter two physicians at the request of her counsel. At
the request of defence counsel she saw orthopaedic surgeon Dr. D. Laidlaw.

A.             
Norman Ward, Massage Therapist

[62]        
Massage therapist Mr. Ward explained his
clinical records. He saw the plaintiff on November 30, 2004, six days after the
accident. He noted and treated her right shoulder symptoms, which he had also
treated prior to the accident. He additionally noted new complaints of right
chest and upper back pain. After two treatments earlier in December, on
December 8 he referred for the first time to low back pain, noting low right
back pain. On December 10, he massaged the low back, again noting right sided
pain. On December 17, he noted improvement in pain on the entire right side of
the lower thoracic spine. On December 28, he referred for the first time to “left
acute low back” pain that had become progressively worse over two days. Then
followed five further treatments of the plaintiff’s back, up to and including
March 1, 2005, with no mention of leg pain. The plaintiff mentioned this to Mr.
Ward for the first time on October 27, 2005, although I note that she had
mentioned this symptom to her physiotherapist Mr. Makse as early as April,
2005. On November 9, 2005, he treated the plaintiff’s left hamstring. The
plaintiff’s last treatment was on November 24, 2005.

B.             
Paul Makse, Treating Physiotherapist

[63]        
Mr. Makse first saw the plaintiff on March 24,
2005, when he noted a general history of chronic neck pain that was still
bothering her, aggravated by waking in the morning. He was not aware of the
plaintiff’s past neck and shoulder problems. The plaintiff reported that her
low back pain had started “later”, by which she meant after the accident. On
March 31, 2005, the first treatment date, the plaintiff reported that she had
been “walking 35 minutes a day.” Mr. Makse thought that she was deconditioned
at the time.

[64]        
Overall, both Mr. Makse’s records and his testimony
confirm that during the initial treatment period, which started on March 31,
2005, he treated the plaintiff for lower back and “mild” hip pain that did not
interfere with her daily living activities and that exhibited an overall pattern
of improvement.

[65]        
On the March 31, 2005 visit, the plaintiff reported
that she was performing the exercises that Mr. Makse had prescribed and was
feeling “slightly better.” On April 5, 2005, she reported left side posterior
hip pain for three days, with occasional sharp radiating pain to the left knee.
On April 7, 2005, she reported left hip pain and “mild soreness in mid and
lower back”. On April 12, 2005, she reported left hip pain that was not
interfering with daily living activities. Left hip pain was her only complaint
on April 14, 2005. On April 19, 2005, the plaintiff reported a low back ache that
had started up “last Thursday”. On April 26, she reported no pain in the left
leg and that she was better overall. She advised Mr. Makse likewise on April
28, 2005, and again on May 5, when she indicated she was slightly better and
experienced lumbar spine pain “at times”.

[66]        
On May 10, 2005, the plaintiff reported a “quite
significant” increase in right shoulder pain lately” that was slightly better
on May 12, 2005. On May 17, 2005, the plaintiff reported that her right
shoulder pain was much improved, and the left side posterior hip pain had “resolved”,
though she continued to complain of central low back pain. On May 19, 2005, the
plaintiff reported that her lower back pain was “occasional and not constant”.
On June 2, 9, 14, 16 and through to July 19, 2005, the focus was on the
plaintiff’s right shoulder, with the plaintiff reporting improvement there as
well. Accordingly, between May 5, 2005 and July 19, 2005, when the plaintiff
reported that she was doing well overall but was careful with the use of her
right shoulder, the records make no mention of low back pain or treatment of it,
with the exception of the plaintiff’s May 19, 2005 report that her low back
pain was “occasional and not constant”.

[67]        
Although the plaintiff testified that she had left
Mr. Makse because she preferred hands on treatment and “his primary treatment
was exercise”, Mr. Makse testified that in fact his treatment was hands on, although
it did involve a lot of exercise therapy targeting affected areas. He explained
that the plaintiff learned how to manage the pain, to use heat and ice, to
employ positional changes and how to exercise. He said that although the lumbar
spine never completely resolved during the time he treated the plaintiff, it
appeared to have “settled down”, and the plaintiff’s right shoulder had become
the primary complaint.

Dr.
Ross Waldron, General Practioner, August 10, 2008
Report

[68]        
The records of Dr. Waldron, the plaintiff’s
general practitioner, similarly indicate that although the plaintiff complained
of low back pain, this complaint was neither predominant nor consistently reported.

[69]        
When Dr. Waldron saw the plaintiff on January
17, 2005, approximately two months after the accident, she advised him that she
had been using Voltaren for back symptoms for four to five days. On her next
visit on April 10, 2005, a locum diagnosed mechanical low back pain, prescribed
an anti-inflammatory, and advised the plaintiff to continue with physiotherapy.
Dr. Waldron saw the plaintiff twice in June 2005 for right shoulder complaints.
On both the June 7, 2005 and the June 14, 2005 visits, which had been arranged
to review the plaintiff’s treatment program, Dr. Waldron referred to right
shoulder discomfort and stiffness. He did not note complaints of low back pain.

[70]        
On the next visit on August 24, 2005, the
plaintiff saw Dr. Butters, Dr. Waldron’s colleague, and mentioned that she had
been suffering some left knee pain, the first reference to knee pain since the
accident. On September 15, 2005, the plaintiff again reported knee pain again
to Dr. Butters. She described a blow to the knee sustained about two months earlier,
which would have been about mid-July. Dr. Butters sent the plaintiff for
x-rays.

[71]        
On November 16, 2005, the plaintiff saw Dr.
Butters once again about her ongoing left knee pain. Dr. Waldron interpreted
Dr. Butter’s clinic notes for that date at page 4 of his report: He said the
plaintiff had reported to Dr. Butters that her left knee pain was “ongoing”. Dr.
Walton also noted that when the plaintiff saw Dr. Butters on that same visit,
she had “attributed her left knee pain to the motor vehicle accident and
the ongoing back pain.” The plaintiff made this attribution despite the fact that
specific complaints of left knee pain began after she had banged it against the
corner of her desk at work. In her testimony she explained that she had seen her
doctors about it because it was “causing more problems than it should have”.

[72]        
The plaintiff saw Dr. Waldron on December 8,
2005. He noted the following about that visit at p. 4 of his report:

… The patient stated that her lower back
pain had been persistent since the motor vehicle accident. She stated that the
lower and middle back pain had radiated into her right lower limb rarely and
that she had rare right lower limb pain.

However, more recently, since the summer of
2005, she had developed left lower limb pain, which had been documented by Dr.
Butters. The patient said that she had hit her knee during the Summer of 2005,
but she had no significant injury and she felt that this was unrelated to her
current symptoms which seemed to radiate from her left lower back.

[73]        
In my view, the plaintiff’s statement to Dr.
Butters, where she incorrectly attributed the cause of her knee pain, and her statement
to Dr. Waldron, where she minimized the significance of the blow to her left
knee, a blow that had been significant enough for her to schedule three visits
and for Dr. Butters to order x-rays, raises concern about the reliability of some
of the clinical histories the plaintiff gave to her physicians. Because the
plaintiff had complained as early as April 2005 of left leg pain, it is possible
that she was conflating this with pain associated with the bang to her left
knee when reporting to her physicians. But in any case, she had no basis for
attributing specific knee pain to the accident, or for minimizing the significance
of the desk-bang injury.

[74]        
As a further concerning example of inconsistent
reporting, the plaintiff gave difference histories about the effect of the
accident on her pre-existing neck and shoulder condition. Dr. Waldron notes at p.
4 of his report that the plaintiff advised him on her November 16, 2005 visit, that
her neck and right shoulder complaints had reduced to pre-accident levels. However,
she reported to Dr. Vallentyne, Dr. Shuckett and Dr. Laidlow, whose reports I
will review briefly below, that the accident caused no problems in those areas.

[75]        
Turning now to the opinions of Dr. Waldron and
Dr. Vallentyne about causation of the plaintiff’s right foot pain: Dr. Waldron opined
that the plaintiff’s left lower limb symptoms, from her buttock to her knee, were
possibly related to mechanical strain caused by lower back induced pain
affecting her gait. However, Dr. Waldron notes right foot pain for the first
time on March 27, 2007, when the plaintiff reported that she had experienced two
weeks of right foot pain, which was ongoing.

[76]        
I have already mentioned that Dr. Waldron did
not observe changes in the plaintiff’s gait until he saw her on November 15,
2006, two years after the accident, when he noted she was limping; and that
this was preceded by complaints of left knee pain starting in the summer of
2005 when she banged her left knee. In his report, Dr. Waldron offered this
theory and causation opinion with respect to the plaintiff’s right foot pain:

It is certainly possible that, due to her
altered gait caused by left lower back pain, there had been an increase in
mechanical forces on the left SI joint area and left lower back and gluteal
area soft tissue, leading to thigh pain.

Mrs. Posch has
gone on to develop right plantar fasciitis symptoms and discomfort in her right
lateral lower leg and heel area. These soft tissue strain areas also could be
related to altered gait caused by left lower back pain. Because she favours her
left side, she may possibly be putting increased weight on her right foot and
these altered mechanical forces could be causing these symptoms. Thus, it
appears her left lower limb and thigh, right foot/lower leg symptoms are
possibly attributable, in part, to the injuries she sustained in her 24
November 2004 motor vehicle accident. On review of her chart, she has had no
previous symptoms involving her right foot or left thigh.

[77]        
After the plaintiff last saw Dr. Waldron on July
8, 2008, he summarized his diagnoses at page 7 as follows:

At this time, Mrs. Posch’s diagnoses include
the following:

·       
Right anterior chest wall soft tissue injury.

·       
Left lower back and SI joint areas soft tissue
injury with radiation of discomfort into her left lateral thigh to knee area.

·       
Right plantar fasciitis.

·       
Right lateral lower leg/heel soft tissue strain
with possible nerve impingement.

·       
Exacerbation of pre-existing right shoulder and
neck symptoms after her motor vehicle accident in November 2004. As of December
2005, she noted that her right neck and shoulder symptoms were diminished to
the point of her pre-accident level.

C.             
J. Fullerton, Physiotherapist

[78]        
Ms. Fullerton saw the plaintiff on a referral
from Dr. Waldron given to her several months earlier before her first visit on
December 5, 2005. She was unaware of the plaintiff’s history of chronic neck
pain or any of her other pre-accident history. Ms. Fullerton treated the plaintiff
until June 18, 2008, providing 48 physiotherapy treatments, ending them with the
emphasis on left low back pain radiating into the buttocks with left leg pain, noted
to be “intermittently experienced”. On April 4, 2007, Ms. Fullerton noted that
the plaintiff was for the first time reporting pain in the right heel (plantar
fasciitis). The plaintiff’s symptoms appeared to fluctuate, and on June 18,
2008, the last treatment was reportedly for mild heel pain.

D.             
Dr. S.W. Vallentyne, Physiatrist

[79]        
Dr. Vallentyne prepared a report dated March 9,
2009. The plaintiff saw him at her counsel’s request on January 13, 2009.

[80]        
The plaintiff advised Dr. Vallentyne that following
the accident she had had no aggravation of pre-existing neck or shoulder pain, that
her low back pain had developed within one to two weeks, and that her right
foot pain had developed within the first couple of months.

[81]        
Dr. Vallentyne’s diagnoses and prognoses are set
out at p. 4 of his report:

(Low Back)

The clinical examination showed
evidence of soft tissue tenderness and stiffness without evidence of any
neurological orthopaedic abnormalities. This is consistent with a grade II
whiplash-associated disorder of the low back indicated [sic] of a musculoligamentous
sprain/train [sic] injury. Over time, this has developed into a chronic soft
tissue pain disorder… Given that her symptoms have persisted for more than
four years post injury, it is likely that her low back pain and stiffness will
be permanent.

(Right Plantar
Fasciitis)

Given that Ms. Posch developed back pain
radiating to the left leg. She developed an antalgic gait disturbance favoring
the left leg. Consequently, she shifted her weight bearing to the right lower
limb. He subsequently developed plantar fasciitis of the right foot as a result
of this increased weight- bearing… Thus, the right plantar fasciitis is an
indirect result of the 2004 MVC…

(Right Chest Wall)

… Mrs.Posch is
suffering from a myofascial pain syndrome of the right-sided anterior chest
muscles. There is also an element of right-sided costochondritis, or
inflammation/irritation of the connections between the ribs and the breastbone…

[82]        
Dr. Vallentyne also opined that the plaintiff
suffers from fibromyalgia, which he described as a syndrome consisting of
diffuse four-quadrant pain and multifocal tenderness. However, Dr. Shuckett, a
rheumatologist who saw the plaintiff on the referral of counsel, did not
diagnose fibromyalgia.

[83]        
Dr. Vallentyne opined that the plaintiff was
able to perform light housekeeping but would benefit from assistance with
regular vacuuming and cleaning, heavy seasonal cleaning and snow shovelling. He
attributed 60% of this functional limitation to the 2004 accident, the balance
to the plaintiff’s pre-accident neck and shoulder limitations. He also
recommended antidepressant medications, counselling, and equipment and office adaptive
aids to minimize lumbar strain.

E.              
Dr. R. Shuckett, Rheumatologist

[84]        
Dr. Shuckett prepared a report dated April 4,
2009. She saw the plaintiff on February 25, 2009, at the request of her
counsel.

[85]        
The plaintiff told Dr. Shuckett that her neck
and shoulders were "quite fine" and not areas of pain in the period
leading up to the accident. The plaintiff also told her, as she had Dr.
Vallentyne, that she did not feel that her neck and right shoulder had been
injured in the accident. But she described constant low back pain. With respect
to her limping and plantar fasciitis, the plaintiff told Dr. Shuckett that she
could not say when the plantar fasciitis began but that it was closer to the
time of the accident.

[86]        
Dr. Shuckett found it difficult to tell whether
the plaintiff’s plantar fasciitis was “tied in with the accident”. As for the
plaintiff’s other conditions, Dr. Shuckett diagnosed costochondritis in the upper
right area, possibly referred from the neck, and low back pain on a
musculo-ligamentous basis. She expressed her opinion that the plaintiff has
some left sacroiliac ligament dysfunction, as well as some left trochanteric
bursitis and a myofascial pain syndrome in the left girdle region. Dr. Shuckett
attributed these symptoms to the accident, and opined that since they have
lasted for more than four years, the plaintiff was going to have to live with
her symptoms in the longer term. Dr. Shuckett noted that the plaintiff’s pain
is not disabling but it does affect her sleep and quality of life.

F.              
Dr. Duncan M. Laidlaw

[87]        
Dr. Laidlaw prepared a report dated July 3, 2009.
He saw the plaintiff on June 26, 2009, at the request of defence counsel.

[88]        
In his report, Dr. Laidlaw noted the plaintiff’s
comments to him that her neck and shoulder symptoms had settled over a few
years after she left her delicatessen job. However, he stated that his review
of her pre-accident clinical records (discussed earlier) had led him to
conclude that she was continuing to have ongoing problems with neck and
shoulder discomfort and had experienced this discomfort for many years
preceding the motor vehicle accident. At p. 10 of his report, he wrote:

Given the
ongoing nature of this neck and upper shoulder pain, it seems likely to me that
had the accident not occurred she would have continued to have problems in this
area. It would also seem that given the ongoing nature of these problems, she would
have had difficulty in doing any kind of heavier task at her work or indeed
even in her home and garden.

[89]        
Dr. Laidlaw commented on the plaintiff’s
treatment and response to treatment. He indicated that the plaintiff had told
him that her physiotherapist, Mr. Makse, had wanted her to do exercises but
that she did not find these helpful. Both the evidence of Mr. Makse and the
plaintiff’s reports to him during treatment do not support her statement to Dr.
Laidlow about the efficacy of Mr. Makse’s treatment.

[90]        
Dr. Laidlaw described the plaintiff’s treatment
as passive and he commented that the exercises she described for him were
low-level strengthening activities that did not emphasize range of motion or work
flexibility. Some of the exercises involved the use of a ball. He also noted
the plaintiff’s comments to him that she does some walking and is able to walk
for a period of "at least 30 minutes." Dr. Laidlaw noted that since
the plaintiff’s last appointment with the physiotherapist Ms. Fullerton, she had
gone two years without any further treatment.

[91]        
The plaintiff told Dr. Laidlaw that her right
foot pain came on a year after the accident. However, Dr. Laidlaw noted that according
to the records of Dr. Waldron it had started in March 2007.

[92]        
As for functional limitations at home, the
plaintiff told Dr. Laidlaw that she avoided making flower gardens, tended to
avoid vacuuming and mopping, which she had her husband and son do for the most
part, and required help with the groceries. She also told Dr. Laidlaw that she did
carry out the cooking. She is able to sit for a fair time, but does have to
shift frequently.

[93]        
On examination, Dr. Laidlaw noted tenderness in
the same areas noted by other physicians but otherwise found the plaintiff’s power,
range of motion and reflexes normal.

[94]        
Dr. Laidlaw opined that the plaintiff’s chest
pain is a myofascial pain syndrome of the right anterior chest muscles with no
evidence of any bony injury, and that it relates to the accident. With respect
to the plaintiff’s lower back injury, he opined that she sustained a “musculoligamentous
strain (Type II as characterized by the Québec Task Force)” and that she has
ongoing mechanical lower back discomfort in the lumbar and gluteal regions,
with some radiation of pain into the lateral thigh. He found no evidence for
any neurological injury. Dr. Laidlaw concluded that the plantar fasciitis is
unrelated to the accident since it was remote in time, and is more likely
related to obesity noted at the time of examination.

[95]        
Dr. Laidlaw did not agree that the psychologist
recommended by Dr. Vallentyne was likely to be of assistance. He recommended
instead that the plaintiff involve herself in a community-based program that
would realistically improve her general fitness, help her lose weight and
improve her flexibility. Even so, he also expected that she would be:

…prone to
mechanical lower back pain and also some tissue discomfort in the chest area in
the years to come. I think that with exercise and stretching the level of that
discomfort will lessened, but I do expect her to continue to have some degree
of symptoms, on an ongoing basis.[p. 14]

G.             
Dr. D. G. Connell, Radiologist

[96]        
Dr. D. G. Connell is head of the musculoskeletal
and general radiology unit at Vancouver General Hospital. He reviewed the
plaintiff’s CT scan of May 11, 2006. He concluded that although there was a
mild disc bulge at L5-S1, there was no significant degenerative change present
in the facet joints, no traumatic bony or soft tissue injury, and no significant
abnormality in the lower lumbar region. I accept Dr. Connell’s opinion.

VI.           
Discussion and findings

[97]        
Because several aspects of the plaintiff’s testimony
and statements she made to various caregivers about her history are
inconsistent or irreconcilable, opinions that rely on them must be cautiously
considered.

[98]        
However, the plaintiff’s testimony, the medical
evidence and medical opinion do support a foundational finding that the
plaintiff suffered a right chest wall injury in the accident. Likewise
supportable is a finding that the plaintiff sustained a low back injury
resulting in pain that over time became more focused on the left side, radiating
at times into the left buttock and over the lateral aspect of the thigh to the
left knee. On rare occasion the pain radiates into the right buttock and right
leg.

[99]        
However, a number of other questions remain,
such as the extent and functional consequences of the plaintiff’s low back pain
and whether the defendants bear responsibility for her right foot pain. The medical
records provide some answers to these and other aspects of the plaintiff’s
injury claims.

[100]     Turning first to the plaintiff’s pre-accident functioning, it is
clear that the plaintiff experienced ongoing neck and shoulder problems between
1989 and 1995 that eventually led her to leave her work as a deli manager and
retrain. I am satisfied that after the plaintiff moved to Vernon in 1996, she
was continuing to experience neck and shoulder problems that were ongoing at
the time of the accident. Even so, I accept that the plaintiff was busy,
hardworking and active before the accident, and not a complainer. She did not
suffer from lower back pain. She enjoyed long walks with her husband and
activities such as long drives and movies.

[101]     Not all of the post-accident pain and limitations that the plaintiff
claims she has experienced were the result of the accident. Following a
traumatic event, a person may conclude that all the problems they have
experienced since then are the result of it. Similarly, people can sometimes
idealize their functioning before trauma they have experienced. However, when a
person claims a defendant’s negligence is responsible for their symptoms and
functional limitations, they bear the burden of proving that on a balance of
probabilities. Mrs. Posch would strike anyone as an honest, productive and hardworking
person who since the accident has continued to work and to look after her home.
However, judges must make findings of fact based on objectively reliable
evidence, not on supposition, or on testimony about significant matters that is
inconsistent or improbable.

[102]     I did not find the plaintiff, Mr. Posch or Ms. Helm to be completely
reliable witnesses when it came to the question of the plaintiff’s pre-accident
functioning, which I found they idealized to some extent. I am unable to
reconcile some of their evidence on this issue with the clinical records as
they relate to the plaintiff’s recorded pre-accident pain and limitations and I
place greater weight on the records.

[103]     I find that the plaintiff minimized her pre-accident problems relating
to her right shoulder and neck. Dr. Laidlaw considered her pre-accident
clinical history and I accept his characterization of and conclusions about
them. As for the plaintiff’s post-accident symptoms, she has given assessing
physicians inaccurate histories about the time of the onset of her plantar
fasciitis; on the nature and extent of the injury to her left knee when she
banged it on her work desk; on the effectiveness of her physiotherapy
treatments and on her overall level of improvement when under Mr. Makse’s care;
and on other significant matters, such as the level of her functioning.

[104]     But the evidence does sufficiently establish that both the
plaintiff’s right chest wall and lower back injuries continue to cause some
pain and disability. With respect to the plaintiff’s low back injury, I accept and
prefer the opinion of Dr. Laidlaw that the plaintiff suffered a low back injury
with ongoing mechanical low back discomfort. This opinion harmonizes with Dr.
Shuckett’s opinion, to which she added the opinion that the plaintiff has some myofascial
pain syndrome in the left girdle region. I reject Dr.
Waldron’s opinion of a temporary exacerbation of the plaintiff’s pre-existing
right shoulder and neck symptoms after the motor vehicle accident, given the plaintiff’s
statements to Dr. Vallentyne, Dr. Shuckette and Dr. Laidlaw that the accident
did not cause any increase in symptoms in these areas. I also reject Dr. Vallentyne’s
opinion that the plaintiff suffers from fibromyalgia.

[105]     I am not satisfied on the balance of probabilities that the
plaintiff’s plantar fasciitis relates to the accident. Dr. Waldron expressed
his opinion that there could be a possible relationship, but that
language does not meet the requisite standard of proof. Dr. Vallentyne thought that
the time of onset of foot pain was soon after the accident, as did Dr. Shuckett,
who nonetheless remained doubtful about any connection. The facts as to the time
of onset of the plaintiff’s right foot pain do not support Dr. Vallentyne’s assumption,
and the plaintiff offered no evidence to show that the correct facts would not
have altered his opinion. Accordingly, I reject his opinion, as well as that of
Dr. Waldron, regarding the cause of the plantar fasciitis. I prefer the opinion
of Dr. Laidlaw that the plantar fasciitis is not attributable to the accident
and that its onset is more likely the result of other causes.

[106]     The clinical records suggest that the plaintiff’s back pain has
improved. She has some good days. It is noteworthy that pain has never
prevented the plaintiff from performing her work, which suggests that the pain
is not so intrusive that it cannot be ignored. I note that Dr. Makse’s evidence
and records support a finding that the plaintiff’s low back pain improved
considerably under his care until she left. It appears that her ball exercises,
which do not appear to be the same as the exercises that Mr. Makse provided the
plaintiff, are insufficient for her needs. I accept Dr. Laidlaw’s opinion that the
plaintiff is capable of further improvement, particularly if she continues to
lose significant weight and involves herself in a program that will
realistically improve her flexibility. This opinion gains further credence from
the improvements the plaintiff experienced while working with Mr. Makse.

[107]     However, I accept Dr. Laidlaw’s opinion, and prefer it to others
expressed on the question of prognosis, that the plaintiff will be prone to
mechanical low back pain as well as some discomfort in the chest area in the
years to come, with some degree of symptoms on an ongoing basis, despite the
diminishment that exercise and range of motion exercises will likely bring.

VII.          
DAMAGES

A.             
Cost of Future Care

[108]     The plaintiff relies on a report prepared by Ms. Dianne Robertson,
an occupational therapist. Ms. Robertson did not conduct a functional capacity assessment
of the plaintiff. She made the following recommendations:

COST SUMMARY

[109]     Ms. Robertson met with the plaintiff on August 26, 2009, about five
years after the accident. She did not have the plaintiff’s WCB records or any of
her pre-accident medical history at the time of the interview. Consequently,
Ms. Robertson did not allocate costs and her recommendations for home
assistance between pre- and post-accident symptoms.

[110]     I agree with much of the defendants’ criticism of the plaintiff’s
claim in this area. There is no medical support for Ms. Robertson’s
recommendations for counselling and psychotherapy, likewise with respect to cortisone
injections. The recommendations for the orthotics and footwear relate to the
plantar fasciitis, which I have found unrelated to the accident. There is also no
medical support for the home equipment purchase or the yoga membership. There
should be some specific equipment referenced and specific costs, together with a
rationale for requiring them. Further, with respect to the yoga classes, the
plaintiff testified that she did not find yoga helpful. As for medication and
the yearly allowance of $550, the plaintiff takes Advil, extra strength Tylenol
and Voltaren, as set out at p. 12 of Ms. Robertson’s report. Dr. Laidlaw thought
Voltaren was appropriate. Some medications would likely be required for the
plaintiff’s neck and shoulder complaints in any event.

[111]     With respect to equipment and adaptive aides, Ms. Robertson
recommended an ergonomic assessment and follow-up consultation at a cost of
between $1,000 and $1,500 as well as an allowance of between $1,000 and $1,500
for the purchase of equipment items that an occupational therapist was to specify
following the consultation. This never took place. At the time of the initial
assessment, Ms. Robertson was not aware that the plaintiff had been provided
with a new chair. Ms. Robertson’s recommendation for equipment does not relate
to a specific disability or need. I do not think it reasonable to award damages
for equipment and adaptive aides in these circumstances.

[112]     With respect to home services, Dr. Laidlaw concluded:

As far as her
household activities are concerned, I do think it is possible for her to do
basic household tasks, bearing in mind that it might take her a little longer
to do them, or she may have to do them in more of a piecemeal fashion than
before. She does not require any kind of home assistance.

[113]     However, Dr. Vallentyne proposed:

I believe that
she is able to perform light housekeeping but merits assistance with regular
vacuuming and cleaning. I attribute 60% of this functional limitation to the
2004 MVC. Ms. Posch merits assistance with gardening and snow shovelling.

[114]     Ms. Robertson divided her recommendations for home cleaning between two
hours per week for the heavier aspects of house cleaning, and eight hours,
twice per year, for heavy seasonal cleaning (for interior tasks such as
cleaning of windows, blinds, appliances and cupboards, and exterior tasks such
as shrub pruning, clearing patios, and raking leaves). She divided the eight
hours into four hours for interior and four hours for exterior seasonal
cleaning, at the rate of $25 per hour and $35 per hour respectively.

[115]     In my view, Dr. Laidlow’s opinion that the plaintiff does not
require any kind of home assistance has considerable merit. The evidence viewed
as a whole persuades that the plaintiff is able to cook and does cook, and is
able to perform basic housekeeping duties, albeit more slowly and sometimes
with discomfort. However, the evidence also justifies a conclusion that the plaintiff‘s
low back symptoms have rendered her less able than before to perform some
housekeeping tasks, especially heavier ones that require her to bend or lift
things from lower levels. While the plaintiff is capable of doing basic housework
she did before, though at a slower rate and in a piecemeal fashion, as Dr.
Laidlow suggested, she is entitled to some compensation for this reduced
capacity. While it is true that she faced some limitations relating to her
shoulder and neck condition, this does not detract from the fact that she now
has some limitations specifically related to her low back.

[116]     The authorities explain that an award for interference with
homemaking capacity is a personal one. There is no obligation on family members
to perform those tasks that the plaintiff can no longer perform and family
assistance, past or future, does not interfere with a plaintiff’s ability to recover
damages for the loss of housekeeping capacity: see McTavish v. MacGillivray,
2000 BCCA 164, [2000] 5 W.W.R. 554 and Kroeker v. Jansen, 123 D.L.R.
(4th) 652, 58 B.C.A.C. 1. Furthermore, a factual assumption that able-bodied
family members will take on responsibility for the housekeeping may be wrong,
since they may refuse or leave, leaving the plaintiff then both uncompensated
and unable to pay for help.

[117]     In assessing an award for diminished homemaking capacity, I have
considered the fact that before the accident family members assisted with
housekeeping; that housekeeping activities will not worsen the plaintiff’s low
back or right chest wall injury; that the her symptoms are intermittent, with
good days and bad days; and that her condition should improve, as noted above. Even
so, the evidence justifies an award for modest assistance for heavier housekeeping
tasks or those that require repetitive bending and lifting and for heavy
seasonal cleaning. I have considered Ms. Robertson’s recommendations but not
followed them; likewise the assumptions and calculations based on them that the
economist Mr. R. Carson provided. Considering all the evidence, I award $8,000
for loss of homemaking capacity. I also award $1,500 for Voltaren, bearing in
mind that the plaintiff’s symptoms are intermittent. Mr. Carson noted that Pharmacare
might cover the plaintiff’s prescription medicine costs, though he was unsure
about this. The plaintiff has prescription coverage through work.

[118]    
Dr. Laidlaw opined that the plaintiff required no
more physiotherapy. However, given the progress she made with Mr. Makse, and
the fact that I have found that she would see greater improvement in her low
back symptoms if she followed a supervised exercise program for a limited
period, fairness requires that I allow for the cost of about 10 physiotherapy
treatments, and a one year gym membership with two supervised workout sessions to
ensure the plaintiff is performing the exercises properly and deriving maximum
benefit. I allow $1,200 under this heading.

B.             
Non-Pecuniary Damages

[119]     The plaintiff relies on the following authorities in arguing that
she is entitled to non-pecuniary damages in the range of up to $95,000: Schnare
v. Roberts, 2009 BCSC 397 ($85,000); Kasic v. Leyh, 2009 BCSC 649 ($70,000);
Demedeiros v. Heinrichs, 2001 BCSC 1475, 110 A.C.W.S. (3d) 291 ($70,000);
and, Thiessen v. Bissenden, 2007 BCSC 1809, 163 A.C.W.S. (3d) 245 ($95,000).

[120]     The defendants counter with the following authorities in submitting
that an award in the range of $35,000 accords with the evidence: Lindsay v.
Laminski, [1991] B.C.J. No. 799 (S.C.) ($25,000); Farewell v. Cook (1999),
90 A.C.W.S. (3d) 69, [1999] B.C.J. No. 1801 (S.C.) ($25,000); Lo v. Chow, 2009
BCSC 817 ($35,000); and Olshanoski v. Clemenson, 2006 BCSC 483, 148
A.C.W.S. (3d) 401 ($35,000).

[121]     I am not satisfied that an award in the range submitted by the
plaintiff is justified in this case. The plaintiff had a significant
pre-accident condition that limited her to some extent. She can expect to see
some improvement if she continues to lose weight and improves her conditioning
as recommended. Moreover, I am not satisfied that the nature and severity of
her pain and limitations are as constant or as limiting as argued. The evidence
does not justify that conclusion; rather, it justifies a finding of
intermittent and activity-related symptoms, albeit the plaintiff will have to
live with residual symptoms. It is important to note that the plaintiff is able
to work full time at her demanding job and continues to enjoy it. I have
rejected the submission that the plaintiff has fibromyalgia, and that her
plantar fasciitis is accident related. I have commented in these reasons on
elements of minimization and inconsistent statements regarding symptoms and
functional limitations. In all the circumstances, I award $35,000 for pain,
suffering, and loss of enjoyment of the amenities of life.

[122]     In order to attend physiotherapy treatments, the plaintiff took time
off work and made up that time by working longer on other days. Within this
award for non-pecuniary damages I have considered the plaintiff’s inconvenience
in relation to this, though only for those treatments specifically for the
plaintiff’s accident related injuries.

C.             
Loss of Earning Capacity

[123]     With respect to loss of earning capacity, the plaintiff’s job is not
in jeopardy. She enjoys her work, excels at it and earns a high income that she
can expect to receive until retirement. Nevertheless, inspections and travel
are more difficult for her and this limits networking, attendance at conferences,
keeping in contact with producers, and conducting inspections. It also limits
her ability to participate in and enjoy management getaways. While the
plaintiff is able to keep in touch with her supervisors and regional offices through
telephone conferences, there are benefits attached to face-to-face meetings and
regular farm visitations, which allow her to keep in close contact with
producers and observe problems. In my opinion, a modest economic value attaches
to this significant aspect of her employment capacity. While it is true that
the plaintiff has some difficulty with lifting, I agree with Dr. Laidlow’s
observation that she likely should not be engaging in heavy lifting at work
because of her pre-accident neck and shoulder condition. Moreover, the nature
of her work has changed, with less physical involvement now than previously. Nonetheless,
the plaintiff is somewhat less capable overall of performing the physical
requirements of her job because of her lower back limitations, and this is compensable,
albeit in an amount commensurate with the evidence. I award $5,000 for loss of
earning capacity.

D.             
Special Damages

[124]     With respect to special damages, I understand that the plaintiff’s claims
for special damages are agreed to, except for the cost of orthotics. Given my
findings as to the plaintiff’s foot injuries, the defendant is not responsible
for paying for the cost of the orthotics.

VIII.        
Summary of Damages

“N.
Brown J.”