IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20101020

Docket: M072939

Registry:
Vancouver

Between:

Donald Martin Wahl

Plaintiff

And

Hardeep K. Sidhu

Defendant

Before:
The Honourable Mr. Justice Chamberlist

Reasons for Judgment

INTRODUCTION

[1]            
In this personal injury action the 39 year old plaintiff claims damages
for injuries the he says were sustained on June 22, 2006 when he was driving
his employer’s 1988 Ford Pickup Truck which was loaded with two large tires
weighing approximately 1,200 pounds each.  He was in the process of delivering
them to a destination while carrying out his business duties for his employer,
Midway Tire Limited.

[2]            
Mr. Wahl was travelling in a westbound direction on 72nd Avenue, in
Surry, B.C.  There are two lanes of travel in each direction with an additional
left turn lane.  Mr. Wahl was in the right-hand through lane travelling at
approximately 45 to 50 kph.  As he approached the intersection of 126th Street
he had the green light.  The defendant’s Honda Civic was proceeding northbound
on 126th Street and came out into traffic on 72nd Avenue.  The front part of
the plaintiff’s vehicle struck the Honda Civic.  There was little forewarning
of the accident and the plaintiff had no opportunity to avoid the accident.

[3]            
As a result of the accident, one of the large tires broke through the
back of the cab of the pickup, smashing the window, and probably hitting the plaintiff
in the head.  The plaintiff believes that he lost consciousness for a short
time and was pushed up against the steering wheel because of the tire
location.  There was significant damage to Midway Tire’s vehicle and I
understand it was a complete write-off.  Photographs entered into evidence
disclose the significant damage.

[4]            
 Janessa Ferguson was called by the plaintiff to describe the accident
scene.  She is a transit bus driver who observed the accident while she was standing
beside the driver of a nearby bus.  She described the severity of the accident. 
She exited the bus.  She first went to the car that had been in collision with
Mr. Wahl’s truck and within two minutes came to the Ford vehicle.  Mr. Wahl was
still inside the pickup.  She observed Mr. Wahl to have cuts and blood on his
hands and described him as being in a state of shock and non-coherent.  She
described him as not being able to get out of the vehicle and she called
9-1-1.  She described him as being “glazed over” but she related asking Mr.
Wahl if he was okay and that he responded to her.

[5]            
Liability for the accident has been admitted but the quantum of damages
claimed by the plaintiff is vehemently opposed by the defendant.

OVERVIEW OF THE ACTION

[6]            
The plaintiff alleges that he suffered physical and psychological
injuries as a result of the accident and alleges that as a result of the
accident he is clinically depressed, has chronic pain syndrome with principal
areas of lasting injury being his neck, back, right shoulder and left hip.  The
depression he alleges is emotional upset including major depressive episodes. 
He further alleges a concussion but at trial conceded that the effects of the
concussion had resolved and plaintiff’s counsel did not argue any significant
injuries as a result of it not being a lasting event.

[7]            
In addition, the plaintiff alleges he suffers posttraumatic stress
disorder, cognitive deficits and headaches as a result of the accident.  All
heads of damage are said to be still existing, aside from the direct effects of
the concussion he alleges.

[8]            
As a result of the accident Mr. Wahl, presently aged 39, claims damages
as follows:

[9]            
The defence submits that based on the medical evidence the plaintiff
sustained, at most, grade two soft tissue injuries to his neck and low back
area.  The defendant concedes that the plaintiff may have sustained income loss
ranging from a few weeks to three months and that he likely has some special
damages resulting from physiotherapy visits for a short period after the
accident.  The defence takes issue with some 350 physiotherapy visits which the
defendant has incurred since the accident up to date of trial.  The defence
says that the medical evidence is clear that there is nothing objective to
explain the plaintiff’s level of pain and disability over the 3 ½ years since
the accident.

[10]        
The defendant’s position is that the plaintiff’s medical experts have
all based their opinions on the self-reporting of the plaintiff and as such the
court should be very diligent in reviewing the medical evidence given that,
from their perspective, there is no objective finding that can give rise to the
damages claimed.  The defence is also critical of the plaintiff’s case relative
to the overwhelming evidence that it was the plaintiff’s lawyer who referred
the plaintiff to the medical experts in this case and not the family doctor,
Dr. Hay.  Indeed, it appears that it was the plaintiff’s lawyer who had been
paying for all of the plaintiff’s 350 physiotherapy treatments and, with
respect to the medical experts tendered by the plaintiff in this trial, the
defence contends that the plaintiff was not attending to these medical
examinations to improve medically but for the purposes of this litigation.

[11]        
The defence further contends that it is the role of the general
physician to monitor the medical treatment for a plaintiff and for the general
physician to make referrals that he opines are necessary for the patient to be
able to resolve ongoing medical complaints.  It is obvious, says the defence,
that it is not the plaintiff’s lawyer’s role to monitor the medical treatment a
plaintiff is receiving.  The defendant submits, generally, that our medical
system is designed to make people better and that it works.  The defence
submits that, in this case, the plaintiff attended on his family doctor one day
following the accident and advised him that he was in so much pain that he was
not able to return to his job or function in activities of daily living; but no
follow-up referrals were made by Dr. Hay.

[12]        
 The defence points to the fact that Dr. Hay did not refer the plaintiff
to any medical specialist whatsoever and that, as a result, I should question
the propriety of having all the health care witnesses called by the plaintiff having
being obtained by the plaintiff’s lawyer rather than his family doctor on the
basis that if Dr. Hay felt the plaintiff was disabled and that treatment would
help the plaintiff’s self-reporting symptoms the family doctor should have done
it as he has a wide range of treatments available for referral.

[13]        
In particular, the defence also points to the report of a
neuropsychologist, Dr. Bishop, who saw the plaintiff in February 2008 and
December 2008.  Dr. Bishop was not called by the plaintiff as part of its case
but was called by the defence as part of the defence case.  Although Dr. Bishop
found she was unable to make a full diagnosis as a result of what she found to
be lack of effort by the plaintiff during her observations, she did make
certain recommendations which were not followed up on by the plaintiff although
he did commence seeing a psychologist regularly and increased his medications.

[14]        
The defence points particularly to the plaintiff not attending a chronic
pain clinic as recommended by Dr. Bishop early on in February 2008.

[15]        
The defence is also somewhat critical of the roommates that Mr. Wahl
resides with doing everything required for the plaintiff’s day-to-day living. 
The defence suggests that as these two roommates, being Tammy and Greg Massender,
are included in the plaintiff’s statement of claim seeking money as a result of
the In Trust claims, their evidence should be discounted. The defence says that
it has become their job to say they provide the plaintiff with all the
attention, sympathy and care he claims that he needs and to support the
plaintiff in making his claims for disability.

[16]        
Finally, the defence, in its submissions, say that there is some
evidence that Ms. Massender is, in fact, the plaintiff’s girlfriend, and
suggests that the court may not know the whole story of the relationship
between the plaintiff and Tammy and Greg Massender.

[17]        
While this is my introduction to these reasons, I must say early in
these reasons that there is absolutely no basis for this position.  While it is
true that one of the expert reports refers to her as the plaintiff’s girlfriend
there is absolutely nothing to establish this point.  Ms. Massender was not
questioned regarding this possible relationship and it was not raised at all in
the evidence.

[18]        
The defence also points to the plaintiff’s income tax returns as not
being reliable and that from that I should find that because his evidence about
his income over the years is not reliable I should also find his evidence to
not be reliable.  It is true that the evidence shows that he was obtaining
remuneration from physical work, including landscaping, in March 2003, but that
this income appears not to be reported in his 2003 tax return.

[19]        
Other witnesses called by the plaintiff also show that he did odd jobs
for cash which does not appear to have been declared on tax returns.

[20]        
Having observed the plaintiff in the witness stand for some time during
his evidence in direct and his cross-examination leads me to conclude that his
evidence about his income and the tax returns he filed may not be reliable but
I generally found  much of his evidence about the accident and many of his
post-accident complaints to be reliable and corroborated by medical evidence
and those lay witnesses who testified as to his pre-accident and post-accident
conditions. 

[21]        
Finally, the defence submits that the plaintiff has made absolutely no
effort to return to work or enrol in school to upgrade or retrain or make even some
effort to find more sedentary or appropriate work as contemplated by both the
occupational therapist and vocational consultant called by the plaintiff.  The
defence submits that the fact that Mr. Wahl has done nothing over the past 3 ½
years suggests that the real problem for Mr. Wahl is motivation rather than
real disability on the basis that disabled persons who are motivated at least try
to maximize their abilities.  The defence points to the plaintiff’s position
that when suggestions of school or work are made to the plaintiff Mr. Wahl has
an excuse for why he could not possibly do any of the suggested activities. 
This, the defence submits, is a motivation issue and not a disability issue.

[22]        
With this overview in mind I now turn to a review of the evidence.

EVIDENCE ON BEHALF OF THE PLAINTIFF

[23]        
The lay witnesses called by the plaintiff to establish his pre-accident
condition and his post-accident condition over the past 3 ½ years included his
roommates Tammy Massender and her ex-husband Gregory Massender, his mother
Jillian Wahl, his step-father Richard Osborne, David Doeffin a realtor friend
of his step-father and mother who had hired the plaintiff in or about March
2003 to do some landscaping work, and an uncle, Lorne Sass, who had also hired
the plaintiff to do floor work.

[24]        
In addition the plaintiff called coworkers who had worked with the
plaintiff at Country Tire and Midway Tire Limited, being Glen Anderson and
Douglas Scott.

[25]        
Although I may refer to these witnesses’ evidence in particular later in
these reasons, I would make the following findings with respect to all of their
evidence that deals with the primary issue as to whether or not, as a result of
the accident, the plaintiff presents as being quite different from what he was
immediately preceding the accident.  All witnesses referred to the plaintiff as
being an excellent worker who was in excellent physical condition preceding the
accident and one who exhibited extraordinary strength and exemplary work
habits.  Similarly, those lay witnesses who have had the opportunity to be with
the plaintiff and observe him are all of the view that he was not the same
person following the accident, physically and psychologically, as the person
they knew or worked with prior to the accident.

[26]        
While these are merely general comments with respect to the whole of
their evidence, it is clear that their evidence was generally consistent with
the evidence of the other lay witnesses.

[27]        
I am of the view that there can be no doubt whatsoever that physically
and psychologically there had been a noted change, in the observations of lay
witnesses called who gave evidence, as to the pre-accident condition of the plaintiff
and the post-accident condition of the plaintiff that has existed for, now, 3
½  years post-accident.

[28]        
As stated earlier Donald Wahl is presently 39 years of age, having a
birth date of August 5, 1970.  Mr. Wahl grew up in Prince Rupert, B.C., firstly
with his biological parents and then from when he was 5 with his stepfather
Richard Osborne and his mother Jillian Wahl after his biological father was
brain injured in an accident.  His stepfather described Mr. Wahl as being a
popular normal teenager with no physical ailments.  His mother and stepfather
decided to relocate to the lower mainland but Mr. Wahl remained in Prince
Rupert for some months.  He took room and board at a friend’s home and joined
his stepfather and mother later.  His mother described him as a high energy
person who was very hard working and whose physical fitness she described as
being “amazing”.

[29]        
After joining his family in Vancouver Mr. Wahl left home before he
turned 20.  His employment included work as a cook, work with a moving company,
an apprentice plumber for a number of years, a mechanic and working in the tire
stores.  Ms. Wahl confirmed that he had held no office jobs.  She described him
as a young man having lots of energy, lots of friends, enjoyed fishing,
swimming, crabbing and diving, and was active in soccer.  She recalled a 2001
accident where he suffered injury as a result of a 3-ton truck falling on him,
which I will deal with later in these reasons, but testified that two years
after that accident he suffered no more physical problems and she was not aware
of any emotional problems being experienced.

[30]        
Ms. Wahl specifically recalled her son planting a hedge for her and his
stepfather.  She described her son, relative to his work, as being driven and
wanting to accomplish 100%.  She described how news of the subject accident was
devastating to her and described her son now as being a shadow of his former
self.  She now described him as being an emotional wreck who would get upset
all the time following the accident and that she is afraid to say anything that
may upset him.  She described him as getting loud and agitated which, according
to her, was not the norm for him.  She testified to having seen no improvement
in him and testified to Donald Wahl being very concerned about his future.  To
her knowledge her son has not worked since the accident.  She testified that
she recently saw him over the 2009 Christmas period when he spent time with her
and her family.  She described him not being able to sit for too long and
having to get up and pace.  She also testified to having observed him squirming
in his chair.

[31]        
Under cross-examination Ms. Wahl conceded that she had only seen her son
four to five times in 2009 and had not been out to the home that he shares with
Greg and Tammy Massender.  She testified to having seen her son perspiring when
he complained of headaches.  She was not aware of her son’s circle of friends
other than the fact that he would spend most of his time with his roommates,
the Massenders.

[32]        
Ms. Wahl could not recall when she first saw him after the June 22nd
accident.  She described her son as being intelligent but repeatedly described
him as being unable to think of what he could do following the accident.

[33]        
Kevin Kaulback, of Kevin’s Auto Clinic, was called by the defence.  He
testified regarding the accident of August 2001 as did the plaintiff and his
roommate Greg Massender.  Kaulback and Massender were both present at the time.
While at Kevin’s Auto Clinic the plaintiff did tire and oil changes, brake
work and tune-ups which would be checked over by Kevin Kaulback, a licenced
mechanic.   Mr. Wahl was asked to perform a rear brake job on a cube van.  As
the cube van was too large for the Clinic’s bays it was worked on outside.  The
plaintiff was working under the vehicle when the jack gave way and the vehicle
landed on him.  Thankfully there was no crushing effect of the vehicle.  The
plaintiff was in receipt WCB benefits for some time, until WCB stopped benefits
after approximately 1 or 1 ½ years after the accident.

[34]        
Mr. Wahl described the injuries sustained in that accident as being a
separated right shoulder and an injury to his left hip.  He recalled WCB
benefits having been received for over a year or 1 ½ years.

[35]        
Kevin Kaulback also employed Tammy Massender for office work and related
duties.  Greg Massender would work the odd day in his shop.  The accident
occurred on one of the days Greg Massender was working at the shop.

[36]        
Following his employment related accident in August 2001, Mr. Wahl began
work for Country Tire, in either late 2003 or early 2004.

[37]        
The plaintiff’s work career at Country Tire and Midway Tire Limited was
also covered by the evidence of Douglas Allen Scott.  Mr. Scott, aged 57, has
been in the tire business a few decades.  He had been a co-owner with Country
Tire and hired Mr. Wahl at Country Tire as a tire installer.  He had not known
Mr. Wahl prior to that time.  Mr. Scott described Mr. Wahl as his star employee
during the time that Mr. Wahl was employed by Country Tire, and described him
as being able to work unsupervised and pick up information quickly.  He
described Mr. Wahl as one who never quit working and outworked everybody on the
floor.  He described him as having no limitations and was in very good physical
condition.  He testified to Mr. Wahl having no light duties at Country Tire and
as a tire installer he installed tires that weighed between 40 pounds and over
100 pounds.  Mr. Scott described the work as being very physical.  One thing
that was very interesting was Mr. Scott’s comment that you “don’t see many old
installers”.  He described installing tires as being hard on the back.

[38]        
Mr. Scott also testified to never having seen the plaintiff unable to
work and could not recall any complaints about shoulder or back pain.

[39]        
After a few years, Mr. Scott left Country Tire and joined Midway Tire
Limited where he became lead hand.  He testified that shortly after joining
Midway he wanted the plaintiff to come to work for him.  At the time he described
the plaintiff as working a 4-day week at Country.  He testified to having taken
some three months until he was able to offer comparable wages and hours of work
to Wahl.  Mr. Scott was able to arrange for a 4-day work week which he
testified to being the key component of Mr. Wahl’s request if he was to leave
Country Tire.  From his knowledge he testified to Wahl having other interests
such as mechanical work that he did at home.  He described Mr. Wahl as being a
diligent worker for Midway just as he had been with Country Tire and described
himself having a hard time keeping up with Wahl’s work ethic.  He said that at
that time there were no physical limitations that he observed and heard no
complaints of Mr. Wahl regarding shoulder or hip problems.  He described the
work done by Mr. Wahl as being the same type of work he had been doing at
Country Tire.

[40]        
Mr. Scott did go out to visit the plaintiff two or three times following
the accident.  He testified that a month after the accident Mr. Wahl had
physically disintegrated and he felt that Mr. Wahl had lost some 20 pounds.  He
described Mr. Wahl not being as buff as before the accident and stated that he
was physically not the same guy he had known before and observed Mr. Wahl on
those visits to be seemingly in pain and taking pills.

[41]        
Gregory Massender, one of the plaintiff’s roommates, also gave
evidence.  He is presently 45 years of age and testified to having known the
plaintiff for some 22 years.  His first introduction to him was when they met
while Massender was working for a moving company.  Mutual friends who knew the
plaintiff introduced them and Massender offered employment to him.  He
described the plaintiff as being a “fantastic” employee and being able to work
harder than much bigger guys in that business.  I believe his words were that
he had had much bigger guys do one-half the work that the plaintiff was able to
do.  He said at that time Mr. Wahl had no physical limitations.  He described
how the plaintiff had lived with himself, his ex-wife and their young son on
the mainland and that thereafter the four of them had moved out to their rented
home on Barnston Island approximately 1 ½ years before the accident.

[42]        
The evidence of Greg Massender, Tammy Massender and the plaintiff were
quite consistent with respect to how they shared household duties and expenses
at their home.  All expenses were split three ways and most chores were also equally
split.  Mr. Massender testified how the two of them would cut up to 10 cords of
firewood a year and that before the accident the cutting of firewood was split
50-50 between the plaintiff and himself.  He also testified to the three of
them taking turns cutting the grass, cooking and cleaning of bathrooms.

[43]        
Mr. Massender also testified how he worked with the plaintiff to earn
money doing landscaping work which was done in the spring of 2003 when he and
the plaintiff had to remove several yards of soil, remove trees and shrubs and
redesign the elevation of a yard for a sidewalk.  He described this work in
2003 in terms of physical dexterity as ranking 9 ½ out of 10.  The job,
according to everyone concerned, lasted about 14 or 16 days.  Mr. Massender
described the work as being done by the two of them together and that the
plaintiff worked hand-in-hand with him.  He testified to observing no
limitations in the plaintiff’s ability to work.  He also described helping
moving furniture for family members with the plaintiff during this time frame.

[44]        
Mr. Lorne Sass gave evidence of the work done for him one or two years
after the 2001 WCB accident where the plaintiff and Greg Massender provided the
necessary labour to install a main floor.  Mr. Sass, an uncle of the plaintiff,
also gave evidence with respect to that work.  Mr. Massender also testified that
that job required an 11 out of 10 effort.

[45]        
Suffice it to say Mr. Massender’s evidence was that Mr. Wahl exhibited
no physical limitations in the years leading up to the 2006 accident.  He
further testified to shortly before the subject accident having never seen the
plaintiff unable to do physical work because of any injuries and commented that
the week before the accident the two of them were preparing the plaintiff’s
boat for a fishing trip by washing it and servicing it’s engine.  Mr. Massender
also commented on feeling jealous of Mr. Wahl’s physique and commented that he
was in amazing shape, weighing approximately 150 pounds at the time.

[46]        
Mr. Massender testified as to how, subsequent to the accident, times had
changed.  He testified to him doing all the firewood chopping and 90% of the
remedial work.  He stated that the plaintiff had done no chopping, no mountain
biking as he had done before the accident with Mr. Massender’s son, and that
Mr. Wahl’s boat had not been moved.  He also testified to Tammy taking care of
all the dogs and Mr. Wahl not returning to any of his former pursuits.  He
described observations of the plaintiff limping and literally being “a shadow
of his former self”.  He testified to there having been negligible improvements
since the accident, and described the plaintiff’s only activities as being to
check his e-mail and talk to friends.

[47]        
As with other witnesses called by the plaintiff, Mr. Massender described
the plaintiff pre-accident as being very active, but now described him as being
a “house potato”.  With respect to depression, all that Mr. Massender could say
was that prior to the accident the plaintiff seemed happy and content, whereas
now he described him as being sad and feeling useless.  He described the
plaintiff as being, on the whole, angry that he could not do what he wanted to
do.  He described the plaintiff as rarely going out of the house.

[48]        
With respect to the plaintiff’s commencement of work for Country Tire in
late 2003 or early 2004, Mr. Massender described the plaintiff as having looked
for work, commencing two years after the 2001 accident and said “he was getting
stir crazy”.  He described the Country Tire job as having “fallen into our
lap”.   He described the plaintiff not feeling comfortable going under vehicles
following the 2001 accident.  He testified to having observed the plaintiff
hesitating to even look under a vehicle.

[49]        
Mr. Massender also gave some evidence with respect to the plaintiff’s
time with Country Tire.  He described how the plaintiff had originally worked five
or six days a week, then at his request moved to four days a week by choice so
he could have one day off where he could work on his own truck, restore his
Camaro automobile, talk with friends and spend time on a riding-lawnmower
cutting the lawn.

[50]        
With respect to the subject accident, he described picking up the
plaintiff at hospital at approximately 2:30 p.m. on June 22nd and described the
plaintiff as complaining of general discomfort all over.

[51]        
Under cross-examination Mr. Massender agreed that as he worked 7 a.m. to
3:30 p.m. during the day, he seldom saw the plaintiff during the day and that,
in his words, “Tammy hangs around the house”.  He described Mr. Wahl as being a
person who can’t stand or sit for long periods of time.

[52]        
Donald Wahl testified that he completed grade 10 and was three-quarters
of the way through grade 11 when he quit school.  In February 1989, when he was
19 and still residing in Prince Rupert, he worked as a prep-cook in the fish cannery. 
At the end of 1989 or early 1990 he relocated to the lower mainland.  Not much
evidence of his employment was led for the period 1990 to 2001 when he had his
WCB accident while working for Kevin’s Auto Clinic.

[53]        
Mr. Wahl, in his direct evidence, described the accident in some detail
and described having had a hard time breathing as a result of the presence of
his seatbelt.  He recalled seeing blood on his hands and glass when he, in his
words, “woke up” and was taken to hospital.  He described how his friend Greg Massender
had come to the hospital to pick him up because he wasn’t able to drive his own
truck home.  He described over the next few days his condition of headaches,
dizziness, back pain, shoulder pain, spasms, tingling and elbow pain.  The
following day he attended on his family physician, Dr. Hay, where he testified
to having made complaints of pain in his right shoulder, pain in his right
elbow, pain in his lower back (predominantly his left lower back), spasms
originating in his mid-back and proceeding right through his chest, and
tingling of a general nature in his left leg and hip.

[54]        
With respect to his elbow complaints, Mr. Wahl testified that those
complaints had gotten better but the elbow is not as good now as it was prior
to the accident.  He described the tingling in his left foot as being not so
bad.  He testified to having emotional problems since the accident, and being
very emotional and easy to anger. He says he is subject to headaches, and migraine
headaches, and that a stutter had come back.  He claimed his short term memory
no longer was good and as a result has to concentrate on remembering things.

[55]        
Mr. Wahl testified to having nightmare almost every night and only being
able to sleep four to six hours per night.  He described how he wakes up with
sweats and pain.  He described how it is still hard to be a passenger in a
vehicle.  In particular, in the first month following the accident he described
a lot of soreness, stiffness and the pain getting worse over two months with his
hip continuing to be as bad as it was then.  He stated that his hip and
shoulder continue to be as bad and emphasized that this pain got worse
following the first month after the accident.

[56]        
Within a time frame of six months post-accident, Mr. Wahl described his
hip as not being any better and his headaches getting worse.  He described how
in 2007 he was regularly doing range of motion exercises and stretches but that
his shoulder, neck, back and hip were not advancing in pain reduction.  He
testified that in 2008 he had “tried everything” but the pain seemed to have
plateaued and that his headaches and emotional problems had continued.

[57]        
Again in direct examination, Mr. Wahl described 2009 as being the same
and in his words “nothing helps”.  With respect to the year 2010 he described
how his headaches still continue with no improvements.  In particular, he
complained of dizziness, nausea, and experiencing double vision when he is
watching TV.  He described two types of headaches, one emanating in his head
which he referred to as migraines, and the other emanating in the back of his
head, especially if he over-exercises.  He conceded that the headaches
emanating in the back of his head have not been as frequent as they were
earlier on.

[58]        
With respect his right shoulder, the plaintiff maintained that his right
shoulder was the same as it was in 2008 and that physiotherapy, which he
attends regularly, has not improved his right shoulder pain and referred to
“pinching” on top and in the back.  He stated that the more he does the worse
it gets.

[59]        
Similarly, with respect to his back pain, Mr. Wahl testified that there
had been no improvement and that the pain emanates from the middle of his back
up to his shoulder and down from the small of his back into his left hip or
sacroiliac joint.

[60]        
With respect to spasms, Mr. Wahl testified to suffering spasms almost
daily in his upper and lower back and sacroiliac area.  Mr. Wahl also described
tingling in the toes of his left foot but at the time of trial testified to very
seldom experiencing the tingling now.

[61]        
Mr. Wahl testified that he had sustained neck pain between his shoulder
blades, and described the pain moving up to his head, and that this pain was
present all the time, although he conceded that it had improved following the
first year post-accident, but stated that since that time the pain has
plateaued.

[62]        
Mr. Wahl described his present range of motion as having more range on
the right side of his neck and less on the left side.  He also described now
experiencing chest pains by the end of the day.  With respect to his emotional
complaints he described having nightmares every night, and particularly
nightmares involving seeing blood and glass all over himself.  He testified to
waking up “soaking wet”.  He also described the stuttering that he had as a
young child.  He now described stuttering at least once a day.

[63]        
Mr. Wahl also described himself as a person who would not normally cry
but since the accident being very emotional and finds himself getting angry on
a daily basis.  He also described concentration problems that he experiences
and related how, on two occasions, he had taken his dog for a walk from his
residence and forgetting the dog on his return home.  He described how
following the accident he was unable to drive for approximately one year and
how he did not want to drive at all because of the pain experienced by him when
he was driving a vehicle.  He described how in the first year post-accident his
roommate Tammy Massender had driven him to his appointments with his doctor and
physiotherapist and how he had not gone out socially for approximately a year
following the accident.  He described how he has, since the year following the
accident, driven to his parents’ but generally stays at home and only leaves
his home for his appointments with his physiotherapist and doctors.

[64]        
Mr. Wahl described his activities prior to the subject accident.  He
would go fishing, do mechanical work on his 4×4 truck, restore pinball machines
and generally be a “Mr. Fix It” around the house and for friends.  Since the
accident he testified to not being able to repair vehicles, being unable to do
any heavy lifting, being unable to go fishing and being unable to do any of the
activities he did before the accident.  He also described his work around the
residence which he would share with his roommates but which he has been unable
to do as confirmed by his roommates Greg and Tammy Massender.

[65]        
Finally, Mr. Wahl testified that ultimately his hope for the future is
to be the person he was before the accident, and stated that he hadn’t seen any
light at the end of the tunnel at this time.

[66]        
Under cross-examination Mr. Wahl agreed that he was not sure if he in
fact lost consciousness following the accident and described himself as being
in a “blur” following the impact.  He also agreed that there were no x-rays
taken at the Memorial Hospital when he had been admitted immediately after the
accident, but maintained all he had been given was a brief physical examination
and Tylenol 3 tablets.  He agreed that it was his family doctor, Dr. Hay, who
first recommended x-rays the following day.  Mr. Wahl appeared to be confused
as to exactly who had referred him to various specialists but finally agreed
that it was his lawyer who had referred him to Dr. Bishop, Dr. Chin and Dr.
Shuckett.  He also agreed that it was his lawyer who had referred him for a
private MRI in April 2008.

[67]        
Mr. Wahl was questioned about why he had not applied for a position as a
salesman at Midway, but Mr. Wahl maintained that he was not very good at
speaking and that his stuttering would get worse.  He also maintained that he
could not be on his feet all day.  He agreed that he has not sought employment
through any job agency although Mr. Wahl indicated that he had looked on Craig’s
List for work but has found nothing he felt he would be able to do.

[68]        
Under cross-examination Mr. Wahl maintained that his short term memory
results in him forgetting what he is reading.  With respect to attempts to
obtain work Mr. Wahl merely said that he would attempt to work “as soon as I
can”.  Mr. Wahl maintained that he won’t try to work until he feels that he is
able to offer something.  With respect to the work he used to do restoring
pinball machines, Mr. Wahl maintained that he has not gone back to repairing
pinball machines since the accident and now restricts that work to merely
giving advice on how to fix them.  He agreed that his right hand difficulties
had resolved after two months and that it represented no disability and that
the numbness or tingling which occurred shortly after the accident does not
impact on him.

[69]        
With respect to his 350 physiotherapy attendances up to the time of
trial, he agreed that there has been nothing but minimal results from the
therapy but maintained that he does get some pain relief from the treatments.

[70]        
Mr. Wahl remained consistent in his criticism of his attendance at the
hospital after the accident.  He maintained that they basically looked at him
for five minutes and no x-rays or CT scans were taken.  Under further
cross-examination he advised that his roommate Tammy Massender helped him with
massages when he got spasms and that his physiotherapist had asked if he had
someone who could help him at home.  His response, under cross-examination, was
that he tries not to ask roommates for help and that he does try to do things
around the house such as clean up part of his own room and sweep the odd time.

[71]        
With respect to driving his automobile, he testified that that was
pretty well restricted to attendances for physiotherapy as his right arm and
hip bother him when he is driving.  Mr. Wahl maintained that he had fully
reported all his symptoms to his family physician.  In his words Mr. Wahl
commented that “Dr. Hay is wonderful”.  However, Mr. Wahl could not explain why
Dr. Hay had no reference to his fear of driving in his records but nevertheless
maintained that he did in fact talk to Dr. Hay about everything.  He maintained
that when he did attend on Dr. Hay he would be at Dr. Hay’s office for between
½ hour to 1 hour per visit.

THE MEDICAL EVIDENCE

[72]        
Generally, while the lay witnesses are all generally consistent with
respect to their observations, the medical and psychological evidence presented
by the plaintiff regarding the present circumstances of the plaintiff, post-accident,
are met with opposite views by the medical evidence provided by the defence’s
medical evidence.  The medical and psychological evidence provided by the
plaintiff consisted of the following[1]
–

[73]        
The medical evidence called by the defence consist of the following –

[74]        
In addition to these medical and psychological reports the parties
called the following witnesses with respect to physical capacity evaluations,
cost of future care analysis, and vocational assessments –

[75]        
All of the above witnesses were presented for cross-examination on their
reports.

[76]        
In addition, reports of Darren Benning of PETA Consultants Ltd., dated
February 11, 2009 and December 2, 2009, respectively, dealing with present
value of future care cost and past and future income loss were presented by the
plaintiff without the necessity of Darren Benning being subject to cross-examination.

PHYSICAL CAPACITY EVALUATIONS

[77]        
In the physical capacity evaluation performed by Mary Richardson, on
January 27, 2009, Mary Richardson noted at page 2 of her report:

As part of determining the
reliability of test results, it is important to address whether or not full
effort was given and whether there were any behavioural factors affecting
performance.

On the same page, she said
as follows:

Based on Mr. Wahl’s behavioural
and profiles, it is this evaluator’s opinion that Mr. Wahl presented with pain
behaviour that may interfere with his functional performance.  He sees himself
as significantly limited in his physical capacity and he self-limited his
performance on certain evaluation tasks because of his level of symptoms and
concern about hurting himself.  Based on test results and clinical
observation, Mr. Wahl is considered to have given a variable level of effort during
testing.  That is, he gave full effort on some aspects of testing, but
self-limited his performance in other areas. Thus the test results are felt
to represent his current level of function, but may not represent his maximum
capacity in all areas.

[Emphasis
added.]

[78]        
Based on her assessment at the time, being some 2 years 5 months
post-accident, she concluded, based on the testing and feasibility of different
employment, she said, at page 8:

In my opinion, with
consideration only to his present physical capacity, Mr. Wahl is not employable
at the present time.

[79]        
In addition, at page 9, she said this:

This evaluator recommends
that a reactivation program based on his current functional abilities be
implemented to increase Mr. Wahl’s tolerance to sustained activity in
conjunction with supportive counselling and physiotherapy to address symptom
exacerbations as he attempts to increase his activity levels.

[Emphasis
added.]

She then reviewed his
pre-accident condition as a tire technician and the physical demands required
of that employment and stated, again at page 9:

Based on his performance during testing, Mr. Wahl does not
demonstrate the physical capacity to meet the physical demands of his former
job as a tire technician.

Mr. Wahl’s feasibility for competitive
employability as outlined is based on his present physical capacity.  At the
time of writing this report, no information was available with regard to the
prognosis for Mr. Wahl’s shoulder injury.  However, the medical documentation
did provide insight into Mr. Wahl’s issues with pain, anxiety and depression.

[80]        
The work capacity evaluation tendered by the defence and prepared by
Gerard Kerr of Progressive Rehab, dated January 31, 2009, refers to his
December 12, 2008 assessment of Mr. Wahl.  The report is somewhat very similar
to the findings made by Mary Richardson, especially with respect to effort
testing and consistency of reported pain and disability.

[81]        
At page 3, Mr. Kerr states:

Results of formal effort testing
in combination with clinical observations show Mr. Wahl participated in work
capacity testing with generally high levels of effort. However, there were
occasions when his function improved under distraction including neck range of
motion and spontaneous right hand/arm use.  While the test results are
considered a generally accurate measure of physical capacity it is
recognized that he may be capable of greater function than demonstrated.

[Emphasis
added.]

[82]        
With respect to work endurance, Mr. Kerr said this at page 4:

Mr. Wahl’s ability to tolerate
full time work demands is currently compromised by his psychophysical factors.

[Emphasis
added.]

[83]        
Similarly, with respect to his pre-accident employment, Mr. Kerr reports
as follows on page 5:

The results of work capacity testing indicate that Mr. Wahl
does not presently meet the physical demand requirements for this type
of work.  In particular he does not meet the bilateral strength demands
required to change/handle heavy auto and light truck wheels/tires. He does
however, have potential to work in lighter jobs including counter sales or
similar.

[Emphasis
of not in original.]
[Other emphasis added.]

[84]        
He concluded his report with the following:

Of some concern is Mr. Wahl’s lack of any significant
improvement over the past 2 plus years in spite of continued and fairly
intensive treatments.  Dr. Shuckett in her October 22, 2007 report
suggested that further improvement was possible and encouraged Mr. Wahl to
continue with regular exercise. It is apparent that Mr. Wahl, for whatever
reason, has not pursued this recommendation.  Further, aside from
performing his own basic personal care activities he has withdrawn from
participation in daily living activities (including getting his own
breakfast). He relies largely on his roommates to perform these tasks. 
This level of inactivity is, in my view, also a significant barrier to
achieving any functional improvement.

Mr. Wahl
remains adamant that he is incapable of doing more than he is currently doing. 
Consequently, some attention to his psychological state will likely be
important if he is to realize functional improvements from his therapy regime. 
I would be pleased to provide treatment recommendations at your request.

[Emphasis
added.]

[85]        
These comments obviously relate to the interview findings found at page
14 of his report which includes the Beck Revised Depression Inventory in which
he reported Mr. Wahl scoring 39 out of 63, which he concluded was a score which
rated Mr. Wahl in the severely depressed category of that Inventory.  In his
report Mr. Kerr said this at page 14:

Results of formal effort testing in combination with clinical
observations show Mr. Wahl participated in work capacity testing with generally
high levels of effort.  However, there were occasions when his function
improved under distraction including neck range of motion and spontaneous right
hand/arm use.  While the test results are considered a generally accurate
measure of physical capacity it is recognized that he may be capable of
greater function than demonstrated.

Mr. Wahl’s presents with a
strong focus on his pain and disability. His self reports of function and
pain were not always consistent with demonstrated function and therefore more
weight was given to his demonstrated function.  There were a number of non
organic findings suggestive of a psychological component to his presentation.

[Emphasis
added.]

[86]        
My conclusion with respect to both these reports concerns the lack of
follow-up with the recommendations made by Dr. Bishop with respect to the
obvious psychological problems Mr. Wahl was having as a result of the
accident.  Both the plaintiff’s vocational assessor and the defence assessor
commented on the psychological problems that seem to have interfered with the
plaintiff’s ability to move forward in dealing with his psychological and
physical problems.

REPORT OF DR. BISHOP

[87]        
It is noteworthy that Dr. Bishop assessed the plaintiff, first in
February 2008, some one year and eight months following the accident, and
thereafter on December 20, 2008, some two years six months post-accident. 
While Dr. Bishop was unable to give a medical opinion due to her expertise, she
did, at page 2 of her February 2008 report, say this:

From a neuropsychological
perspective a number of psychological factors preclude interpretation of test
findings at over 20 months post-MVA.  Mr. Wahl has not worked since the MVA. 
He is extremely concerned about his future and ability to work, as his skills,
background and preferences have been for hands-on, practical trades.

[88]        
With respect to his chronic pain, depression and anxiety she said, also
at page 2:

. . . Such pain can be resistant
to spontaneous resolution and can be debilitating without adequate management.

Thereafter, on the same
page, she commented as follows:

The following barriers were identified from my assessment of
this man in relation to the MVA:

1.         Chronic pain of various locations, including
chronic headache pain, R shoulder pain, L hip pain, low back pain and upper
neck and mid-thoracic pain.  Pain is persistent, has been present since the
MVA, pain markedly affects functioning, and is marginally responsive to current
interventions with the exception of temporary relief.

2.         Marked emotional distress.  He fits DSM-IV-TR
criteria for:

 (a)        Major Depressive Episode, Chronic,
moderate severity

(b)        Post
Traumatic Stress Disorder, chronic, with panic attacks as part of that
constellation

(c)        Insomnia, probably related to
post-concussive effects, anxiety and depression, as well as mid-cycle
awakenings associated with pain and anxious nightmares and associated with
chronic low energy and daily fatigue.

[89]        
Thereafter, in her first report, she said this under Recommendations:

Mr. Wahl needs treatment in a number of domains of
psychological and emotional functioning.  No comments about cognition are
possible until adequate resolution of depression, anxiety and sleep, along with
better pain management is realized.  The following is strongly recommended to
assist this man in moving toward return to productive, satisfying social and
vocational roles.

1. Pharmacological
treatment for Depression.  It was strongly recommended to Mr. Wahl that he
sees his GP as soon as possible to discuss this type of treatment.  Such
intervention may also help with his anxiety to some extent given the
appropriate agent.  He is aware that he may need to remain on an
antidepressant, if deemed suitable for a number of months or longer.  Mr. Wahl
was in agreement with this recommendation.

2. Medication
Review:  Mr. Wahl has been on a benzodiazepine, Flexoril, for a
surprisingly lengthy time (since the MVA).  The side effects profile may not be
the best fit for Mr. Wahl given his anxiety.  It is recommended that once he is
stable on an antidepressant, this medication be very slowly weaned and replaced
with an agent for sleep, if needed that also has fewer dependency
complications.

3. Cognitive-Behavioural
Therapy for Anxiety:  Mr. Wahl’s anxiety is multifactorial.  He would be
best treated with evidence-based psychological intervention to provide
practical, functionally-based skills for anxiety management.  Depression
management as well as sleep management skills can readily be part of such
intervention, along with processing of unresolved emotional issues related to
his changed situation.  Mr. Wahl may also benefit from practices that assist in
reducing arousal, such as meditation, for arousal management.  Psychologists
with training in these therapies and who are in close proximity to Mr. Wahl
[names, addresses and telephone numbers omitted.]

4. Pain
Management:  Mr. Wahl has few coping resources for pain and has little
understanding of the factors that affect his pain.  A multidisciplinary,
time-restricted day pain program is strongly recommended to provide him with
the skills to best manage his pain difficulties.  Back in Motion . . . provides
rehabilitation services to this kind and is located in Surrey BC reasonably
close to where he lives.  Psychological services can also be accessed as part
of their programs.

5. Re-Assessment:  I would
be happy to see this man once again for assessment once clinical features of
depression, anxiety and sleep disruption are better managed and stable, and
once his physical condition is resolved and pain is less prominent.  A
reassessment for the late fall or early 2009 is recommended; at this time, I
have reserved Monday December 1, 2009 for reassessment, if needed.

[90]        
This report was dated the same date as the short assessment done by
her.  Her report of December 20 is a full report, made at a time when she also
interviewed the plaintiff’s mother and his roommate Tammy Massender.

[91]        
With respect to her fuller assessment, Dr. Bishop commented negatively
on the plaintiff’s effort during her assessment.  At page 22 of her December
20th report, she noted very poor effort on the part of Mr. Wahl.  She defined
poor effort as being performance either below 50% or lower than expected by
test parameters.   In Mr. Wahl’s case this raised the possibility of poor
effort that could also affect the performance integrity of the test
administered by her.  Her words to that effect are found at page 22 of her
report where she states, particularly with respect to Evaluation of Effort:

Effort testing was applied. 
Although effort testing of itself cannot determine motivation as submaximal
effort may be multifactorial in origin (e.g., fear of pain, anxiety with regard
to performance, perception of dysfunction, need to demonstrate distress, etc)
poor effort as defined by performances either below chance (50th percentile) or
lower than expected by test parameters raises the possibility of poor effort
that could also affect other test performance integrity. Suboptimal
performance on at least three of the measures below, along with feigned
psychological symptoms in concert with deliberately invalidated personality
measures would strongly suggest high levels of calculated negative impression
management scores.  His effort was poor on a standard forced-choice test; both 
low effort and fatigue are probably implicated but in any case question any
lower-than-expected, isolated cognitive findings.

[Emphasis
added]

[92]        
Various tests were performed by Dr. Bishop and she repeatedly found Mr.
Wahl’s performance on various tests to be very weak.  At page 3 of her December
report she commenced her opinions and commented positively relative to the fact
that he had, by then, started psychological treatment with psychologist Marlo
Gal.  Thereafter her opinions with respect to Mr. Wahl are somewhat guarded. 
At page 4, paragraph 3, she states:

With regard to the validity of
the test results, there was indication of poor effort on a formal forced-choice
test of dissimulation at both assessment dates.  In concert with indications of
poor effort on a similar measure in February 2008 at the first assessment and
along with a marked chronic pain presentation and chronic sleep disruption, the
cognitive findings from this assessment are interpreted with caution.

Thereafter she dealt with
the lack of effort issues she had previously identified when she said at
paragraph 6:

Regardless of effort issues,
it is useful to comment on Mr. Wahl’s intellectual and cognitive functioning in
order to understand his presentation.  Mr. Wahl’s general pre-accident
intellectual capacity and potential for academic achievement was probably average
at best.  He was not academically inclined but had relative strength for
nonverbal or performance abilities.  Testing at both assessment dates
demonstrated stable intellectual functioning consistent with his background,
with stronger (High Average) non-verbal or performance abilities.

[Emphasis
added.]

[93]        
On more than one occasion Dr. Bishop commented on the fact that his test
results could have been affected by chronic pain, sleep disruption, anxiety and
depression, and finally, commencing at paragraph 10 she dealt with Mr. Wahl as
an individual when she said:

10.       The main impression is of a very entrenched,
catastrophic chronic pain profile in a naїve individual who has a highly
pessimistic view about his current and future situation.  He fits the DSM-IV-TR
criteria for Pain Disorder.  Thought processes are concrete.  He is highly
somatically focused, over and above what I understand to be a significant,
persistent right shoulder soft tissue injury. He is remarkably stuck in a
belief about complete incapacity.  He reports no responsibility for any
contribution to the running of his household other than personal care.  He is
adamant that any activity puts him ‘over the edge’ with pain, describing how he
sometimes screams with pain and anger.  He described that even using the TV
remote is very painful for him.  His identity was attached to his ability to
perform physical work and to simply ‘tough it out’ when life was difficult.

11.       I have no doubt that
Mr. Wahl is experiencing considerable pain and emotional distress, and am of
the opinion that his pain, depression and anxiety are associated either
directly or indirectly with the MVA in question. Mr. Wahl is understandably
concerned about his future, but is of the belief that his physical capacity is
diminished to an extent to prevent him from engaging in even regular daily
activities.  Past events continue to have strong emotional impact on Mr.
Wahl: events associated with his father’s brain injury and following life
complications, as well as his work-related accident in 2001 where he was also
trapped, both exert significant emotional impact for fears and worry about his
future.

[Emphasis
added.]

Thereafter, she said this at
paragraph 13:

13.       Resolution of
emotional distress, headache and shoulder pain, sleep disruption, dizziness and
emotional turmoil should be reflected in a much better emotional state for this
man. However, given his entrenched position about pain-related issues, I
very much doubt that much progress will be made unless he is formally treated
in an intensive pain management program, as one strategy.

[Emphasis
added.]

She concluded with the
following Recommendations:

1. Anxiety
Treatment:  Mr. Wahl is counselled to continue with psychological
treatment.  Behavioural activation is recommended as part of this
intervention.  Should further assistance be needed, a referral to the Anxiety
Disorders Clinic at UBC may be useful although their admission criteria are
somewhat narrow and it is geographically distant from Mr. Wahl’s home.

2. Pharmacological
Intervention:  Mr. Wahl is counselled to discuss the need for
pharmacological intervention for depression and anxiety with a treating
psychiatrist.

3. UBC
Sleep Disorders Program Assessment/Intervention:  A referral to the UBC
Sleep Disorders Clinic should be considered; his GP may wish to follow-up in
this regard.  [Address and phone number omitted.]

4. Pain
Management Program – Back in Motion – an intensive, formal pain
intervention program is strongly recommended to help this man better manage his
pain and re-engage in normal activity.

5. Addictions Medicine
Specialist Consultation:  Mr. Wahl is dependent on a number of pain-related
medications, as well as on Flexoril, an agent recognized to be
counterproductive in the longterm.

[94]        
It is noteworthy that in both her recommendations of February and then
in December she repeatedly recommended a pain management program and medication
review given her finding that Mr. Wahl had become dependent on a number of pain
related medications as well as on Flexoril.

REPORT OF DR. MARLO GAL

[95]        
Dr. Marlo Gal is a registered psychologist having obtained her doctoral
degree in 2004 and being a Registered Psychologist in British Columbia since
2006.  Her report is dated November 2, 2009.  She began seeing Mr. Wahl on
August 13, 2008 following the departure of his previous psychologist Dr. Wade. 
Apparently Dr. Wade first saw Mr. Wahl on March 18, 2008 and at the time of
trial had seen him some 50 times.  At page 3 of her report she refers to him
having told her not only of his bodily pain but also problems of concentration,
and also of the following symptoms –

a)    Ringing in his
ears;

b)    A different
sense of smell;

c)     Constant
spasms in his right shoulder;

d)    His right
shoulder “clicks, snaps, and pops” all of the time;

e)    Limited range of
motion in his neck;

f)      Right
side of his neck hurting worse than his left side;

g)    Pain on the
right side of his chest from his clavicle downward;

h)    Upset stomach
all of the time which has resulting in acid reflux for which he takes
Renetidine;

i)       Stabbing-like
pain in his left hip;

j)      Spasms
throughout his back;

k)     Difficulties
with bladder and bowels.

[96]        
He also reported to her that his appetite was diminished and he had to
force himself to eat.  Dr. Gal reports that Mr. Wahl reported to her that he had
been depressed since the accident and reiterated what he said at trial, being
“there is no light at the end of the tunnel”.  In addition, she recites that
Mr. Wahl reported that he has no sex drive and that he experiences suicidal
thoughts, although sometimes they are just fleeting thoughts.

[97]        
With respect to driving Mr. Wahl related to Dr. Gal that he hated
driving and that he panics and he feels closed-in.  He reported that those
symptoms he has with respect to driving are even worse as a passenger.  At page
9 of her report relative to Personality Assessment Inventory (PAI) which she
administered on October 7, 2009, she found that Mr. Wahl was elevated on one of
the clinical scales “. . . indicating some exaggeration or overemphasis of
problems”.  She opines that:

Such an elevation may represent
an overly negative view of self and life in general, a “cry for help”, or
some deliberate distortion of the clinical picture.

[Emphasis
added.]

She did however say that her
interpretation should proceed with caution.  She went on to state, again at
page 9 of her report:

His clinical profile suggests
that he has significant concerns about his health, traumatic related anxiety,
depression and general anxiety.  Such an individual believes that their health
is not as good as similar aged peers and that their health problems are complex
and difficult to treat successfully.  They report functional impairment due to
symptoms associated with sensory or motor dysfunction.  They report frequent
occurrences of various physical symptoms such as headaches, pain or
gastrointestinal problems.  The physical symptoms are often accompanied by some
depression and anxiety.  Such a profile also reflects significant anxiety and
tension.  Such an individual is tense much of the time and ruminates about
anticipated misfortunes.  They report prominent worry and concern about current
issues.  Their worries affect their ability to concentrate.  Their friends are
likely to comment about their over concern regarding issues and events over
which they have no control.  They have difficulty relaxing and are fatigued as
a result of high perceived stress.  They tend to experience and express stress
in somatic forms (e.g. sweating palms, trembling hands).  It is likely that
phobic behaviours are interfering in some significant way in their life.  They
have typically experienced a disturbing traumatic event in the past – an event
which continues to distress them and produce recurrent episodes of anxiety. 
They are socially withdrawn and misunderstood by others.  Typically there is
little energy and motivation to pursue interests.  They report thoughts of
worthlessness, hopelessness and personal failure.  Indecisiveness and difficulties
in concentration are also likely.  They report feeling sad, a loss of interest
in normal activities and a loss of pleasure in things that were previously
enjoyed.  They experience depression in somatic forms.  They report changes in
physical functioning, activity and energy.  They are likely to show a disturbance
in sleep pattern, decreased sexual interest and loss of appetite and/or weight
loss.  They have little hope for the future, are in despair, believe that they
are useless to others and feel unable to help themselves.  They may feel
rejected by people around them and are often bitter about the way that they
have been treated by others.  Such an individual is likely to closely monitor
their environment for evidence that others are trying [to] harm or discredit
them in some devious way.  They are likely to be socially isolated and have few
interpersonal relationships that could be described as close and warm.  Their
social isolation and detachment may serve to decrease the sense of discomfort
that interpersonal contact fosters.  The thought processes of these individuals
are likely to be marked by confusion and difficulties in concentration.  Such
an individual also tends to experience episodes of extreme mood swings.  They
tend to be uncertain about major life issues, have little sense of purpose and
describe themselves as feeling empty, bored or unfulfilled.  They are easily
angered, report having difficulty controlling the expression of their anger and
are likely to be perceived by others as being hostile and readily provoked.

[98]        
In Dr. Gal’s Summary of Psychological Intervention she recites that she
has been seeing Mr. Wahl on a weekly basis since August 13, 2008.  She reports
that although he has come to every session, Mr. Wahl has been resistant to
the therapeutic process and that “historically, he has coped with difficulties
by avoiding dealing with them”.  She went on to state that rapport between
herself and Mr. Wahl was difficult to develop, however, once it was established
some progress was made.  She described the therapy provided over the 50 visits
as being learning self-relaxation techniques, anger management, behavioural
activation to reduce symptoms of depression, identification of PTSD symptoms
and beginning of exposure therapy, pain management, and general support as he
only has his friends Greg and Tammy who provide support and assistance to him.
[Emphasis added.]

[99]        
Dr. Gal then reported with respect to teaching Mr. Wahl how to relax
with deep breathing techniques but only had a small amount of success and was
unable to utilize progressive muscle relaxation with Mr. Wahl in part because
“he is unable to sit still”.  She gave a report on one relaxation technique
that did appear to have success at page 12:

The last relaxation technique
that was tried yielded the greatest success.  We tried a combination of deep
breathing and the use of a stress ball.  When this was tried in the office, Mr.
Wahl reported that it helped.  He reported that he tried it at home and it was
also helpful.  I showed Mr. Wahl pictures of a Ford F150 and using the
combination of the deep breathing and stress ball resulted in a reported
decrease in anxiety from 10/10 to 6.5-7/10.

[100]    
She also reviewed other therapies that she had attempted, including
exposure therapy utilizing a picture of a tractor tire and showing it to him. 
Apparently the preliminary exposure therapy was not successful and it was
delayed for a few months.  When the second attempt was initiated by Dr. Gal she
reports that Mr. Wahl was having difficulty looking at a picture of a white
Ford 150 truck but then brought him a tennis ball to use like a stress ball. 
She reports that Mr. Wahl reported that having the tennis ball to use as a
stress ball helped.  Some time later after using the stress ball and deep
breathing, Mr. Wahl reported that after doing this at home his anxiety had
decreased to a 6 out of 10.  At page 14 of her report, Dr. Gal said:

It is anticipated that as the
depression and PTSD symptoms decrease, there should be a decrease in pain.  At
the time of writing this report, Mr. Wahl was still waiting to see an
orthopaedic specialist about his shoulder and hip.

[101]    
In her summary she reported that her psychological intervention had been
of some benefit.  She concludes, at page 15 by stating:

. . . Mr. Wahl has had difficulty engaging in treatment, but
progress is demonstrated, albeit slow.  He has expressed frustration about his
lack of physical progress and the lack of answers about what is wrong with him
physically.  Mr. Wahl does have a passive-aggressive style of coping, which was
not problematic until this accident.  Prior to this accident, Mr. Wahl had
recovered from serious physical injury in a short period of time.  As such, he
has always avoided coping with the stressor as none of the previous stressors
were prolonged, and he would just “put it behind” him.  As a result of this
recent accident and the persisting nature of his problems, he is not recovering
physically nor psychologically; and his inability to participate in physical
activity and work has resulted in significant psychological problems.

Based on my observations of Mr. Wahl’s behavior in our
sessions and his current psychological difficulties, I am unsure if he will be
able to return to the workforce in any capacity.  To determine his residual
employability, the diagnosis and prognosis of his physical problems would need
to be assessed, an area which is outside of my area of expertise.  Furthermore,
a vocational assessment may be of benefit to determine his residual work
abilities and, if feasible, potential areas of retraining.  I would defer to
the respective specialist to comment on Mr. Wahl’s future employability.

Based on my assessment of Mr.
Wahl, my interview with Ms. Massender, and my treatment of Mr. Wahl, I am of
the opinion that he is still experiencing PTSD, depression and chronic pain due
to psychological factors and a medical condition which are referable to his
motor vehicle accident of June 22, 2006.

DR. DONALD HAY

[102]    
Dr. Hay, Mr. Wahl’s family doctor, gave evidence for the plaintiff.  He
also provided his reports of March 14, 2009 and January 1, 2010.  He had been
the plaintiff’s family physician since October 19, 2005.  With respect to his
first visit on October 19, 2005, Dr. Hay, in his report of March 14, 2009
states:

On history, he incidentally
mentioned that after very heavy work, of over 40 hours per week, he had mild
discomfort in his right shoulder and left hip.  These were thought to be from a
motor vehicle accident sometime before.  He had no disability and only mild
discomfort after prolonged heavy work.  I  x-rayed his right clavicle, right
shoulder and his left hip.  All were reported as completely normal.

[103]     Dr. Hay,
in the same report, references the accident on June 22, 2006 when Dr. Hay
attended on Mr. Wahl on June 23, 2006.  With respect to that examination Dr.
Hay reports that the plaintiff had neck pain and increasing stiffness and pain
with very limited rotation, flexion and extension of his neck.  Dr. Hay also
states that the plaintiff had bilateral peri-scapular muscle pain.  Dr. Hay
prescribed Naproxen, 500 mg B.I.D. and Flexeril.  Dr. Hay then reports seeing
the plaintiff some six days later on June 29, 2006, noting that the plaintiff’s
pain and stiffness had increased with trapezius  pain bilaterally as well as
peri-scapular and upper back pain and also left hip pain.

[104]    
In his report of March 14, 2009 addressed to plaintiff’s counsel, Dr. Hay
provides the following:

He was seen again on July 7 and July 17, 2006.  Initially,
reports were sent to W.C.B. because he was working at the time of the motor
vehicle accident.  He was ordered to have physiotherapy in mid July for his
back (lumbar spine), his peri-scapular muscles and his neck.

By August 3, 2006 he was still in significant pain in his
shoulders, back, peri-scapular and lumbar region.  He was feeling nauseated and
he was having significant neck pain.  He had a CT of his head which was
negative for any acute intracranial injury.  The films were to make certain he
did not have a subdural hematoma.

By August 29, 2006 he had significant right biceps, shoulder
and peri-scapular pain.  He was feeling confused and seemed to stutter, but his
CT was normal.  He continued to take Naproxen but he required Nexium to control
the gastritis from the NSAID.

In late September 23, 2006 he was having physiotherapy twice
weekly but still had considerable pain.  He was slowly improving but his right
shoulder was a major problem and he appeared to have impingement problems.  An
M.R.I. was ordered of his lumbar spine and hip.  The hip part of the M.R.I. was
normal with normal anticular cartilage and the muscles and tendons were
unremarkable.  The lumbar spine part of the M.R.I. shows extensive spondylosis
of L2-3, L4-5 and L5-S1.  This could account for the extensive pain in his
lumbar region and also radiation to his hip and through gait modification from
pain would give hip and leg pain.

He continued to have both hip and right shoulder pain. 
Improvement was very slow and seemed to reach a plateau with only slow forward
progress if any.  It became evident that he could not resume his employment
with the tire company as there is no light duty and with physical work he would
promptly deteriorate.  He continued an exercise program under the direction of
physio.  He continued with right shoulder and left hip pain.  The hip had poor
range of motion and pain.

Through early 2007 his improvement was slow and intermittent
with deterioration with increased activity.  His shoulder continued to be
painful with noise on movement of the joint.  He appeared to have significant
problems with the supraspinatus tendon with partial tear.

By mid July 2007 it became evident that he should find an
alternative vocation.  He remains in that situation still with a plateau in
improvement.

It appears he will have long term or permanent disability
originating from the motor vehicle accident on June 22, 2006.  His shoulder and
hip pain and limitation are still severe and some retraining will be necessary
but with work designed to allow for his physical problems.  He was partially
trained as a plumber but that does not seem to be a possibility with his
limitations.  He has pain with prolonged standing or sitting and these would
have to be considered.  He improves with exercise programs and physio and these
would need to be continued.

PROGNOSIS:

He has significant disability
which will be prolonged or permanent.

[105]    
Finally, in his report of January 1, 2010, written as an addendum to his
report of March 14, 2009, Dr. Hay provides the following:

Another part of his disability following the M.V.A. is
headaches.  He had no headache problem before the M.V.A., then he sustained a
head injury from the M.V.A.  After the accident he was checked and had x-rays
including still films and no fractures were found.  He sustained a concussion,
but there was no evidence of an intracranial bleed or pressure.  I saw Donald
the next day when he had neck pain, shoulder pain and spasms.

These injuries were causing him severe headaches.  Throughout
the course of treatment the headaches have persisted.  He became frustrated
with his slow recovery and this stress has added to the problem.  These
headaches were of mixed injuries, muscula from the neck, stress and migraines. 
The headaches now are often or always migraines.  Some headaches are aggravated
by the analgesics used for the muscle pain as they can cause a rebound.  The
analgesics used are not addictive and he is using them in proper dosage.  Some
Amitryptyline has helped the headaches and other pain.

The headaches are continuing as a significant disability with
no evidence if they will stop in the near future.

His general disability continues as well making work
impossible and severely impacts his daily life.  He is unable to sit for a
short time.  His hip, back and neck pain limit  most activities.  He is only
able to work at a computer for 5 – 10 minutes before pain and spasms force him
to stop.

It is difficult to find
employment which he could perform in his present status and at this point it is
difficult to predict his progress.

[106]     Dr. Hay’s
medical records were provided to the court in the defendant’s brief of
documents marked as Exhibit 5 in these proceedings.  Of some note is the fact
that at Dr. Hay makes the following comments:

[107]    
Notwithstanding those general comments, there are still references to
the plaintiff’s hip and shoulder.

[108]    
On February 15, 2007 Dr. Hay, in his clinical reports, notes:

Shoulder improving slowly –
physio great help

[109]    
Notwithstanding, at that time there were questions noted on the same
entry of February 15, 2007, being

– neck – x-ray normal but some sudden pains & spasms –
facet joint pain?

Lumbar pain – has L5S1 disc
problem – new – certainly symptoms only present since accident – MRI?

[110]    
At that time Dr. Hay noted, with respect to the plaintiff’s hip, that
there was a poor range of motion.  The next date of entry in the record is
February 22, 2007 where he notes “MRI ordered through Lawyer”.  On March 21,
2007 Dr. Hay notes:

Shoulder – snaps & pops & pain – no physio exercises
– physio seems to make it worse, . . .

[111]    
On July 4, 2007, Dr. Hay again reported “slow improvement” in the
plaintiff’s hip and back although on August 22, 2007 he also noted “back hip
& shoulder still major problem”.  On December 11, 2007 Dr. Hay reported
that he discussed the shoulder pain with the plaintiff and noted “numbness
worse” but also reported “slowly improving”.  Finally on April 8, 2008 Dr. Hay
reports in his records:

Is slowly improving but has
plateaued peri-scapula muscles – spasm

[112]     Throughout
the fall of 2008 Dr. Hay’s reports of complaints of spasms indicated by the
plaintiff in his neck and shoulder and that the plaintiff was unchanged.  On
February 9, 2009 Dr. Hay noted “headache shoulder hip back & spasms”. 
Similarly, through the spring to May 26, 2009, Dr. Hay’s clinical notes refer
to medication and subjective complaints from the plaintiff.  During the period
June 23, 2009 through to August 26, 2009, being the last entry in Dr. Hay’s
clinical notes, essentially all entries in the notes are of subjective
complaints by the plaintiff.

[113]     Dr. Hay,
in his direct examination, did state that he okayed recommendations each time
and in particular recommended counselling.  His opinion was that Mr. Wahl
needed support and guidance.  He also confirmed that he himself had noted
spasms and prescribed medication for them, although he agreed that this
medication can make one sleepy.

[114]     Under
cross-examination Dr. Hay agreed that he had a vast array of resources to
assist patients and agreed that he carefully and accurately records his
appointments with his patients in his clinical notes.  He agreed that his notes
of O/E refers to ‘on examination’ and S refers to ‘subjective’.  He also agreed
that he encourages patients to get back to work and it is best to get back to
work to avoid depression.

[115]     Dr. Hay also
agreed that the plaintiff had advised him that x-rays had been taken of his neck
at the hospital, but conceded that that advice was erroneous.  He also agreed
that an x-ray was done on the plaintiff in December 2006 which proved to be
normal.  With respect to physiotherapy, he agreed that the plaintiff had
indicated to him that physio was not helping but Dr. Hay felt that the
plaintiff may need physio for a long time and that medically he did not know if
the plaintiff would get worse without it.  He agreed that he only thought that
he had referred the plaintiff to an orthopaedic surgeon but conceded that Dr.
Chin was a referral from the plaintiff’s lawyer.

[116]     Dr. Hay
also agreed under cross-examination that in neither of his medical/legal
reports was there any mention of anxiety or emotional symptoms mentioned.  He
also agreed with respect to the January 1, 2010 report that no physical
examination was performed at that time specifically for the report.  With
respect to Dr. Hay’s statement that it is difficult for the plaintiff to find
employment as contained in his January 1, 2001 report, he agreed that the
plaintiff had not told him that he was indeed trying to find employment.

[117]     Under
further cross-examination Dr. Hay agreed that he had not physically examined
the plaintiff for the preparation of either of his reports and they were solely
based on subjective reports to Dr. Hay from the plaintiff. Dr. Hay indicated
that he prefers to trust and believe his patients.  Dr. Hay also opined that
the plaintiff was taking his medication quite religiously and the medication
seemed to be working, although he agreed that his opinion was again based on
the subjective reporting by the plaintiff.

[118]     With
respect to x-rays taken of the plaintiff since the accident, Dr. Hay agreed
that there is no evidence of joint or objective findings on the x-rays.

[119]     Under
re-examination with respect to objective findings, Dr. Hay was asked by defence
counsel of any objective signs he had observed in the plaintiff.  His answer
was simply that he notes the limitation of movement.  With respect to the one
reference in his notes to anxiety, Dr. Hay agreed that anxiety was the
frustration of not getting better and that anxiety presents as a problem when
there was no improvement over time.

[120]     With
respect to the MRI conducted of the plaintiff on April 10, 2008 and the
impression of the MRI that lumbar spondylosis was evidenced, Dr. Hay agreed
that this can be wear and tear but opined that Mr. Wahl was fairly young to
have this although it is not uncommon in most 50 year olds and construction
workers.

[121]     Dr. Hay,
being the plaintiff’s family physician, is an important witness for the
plaintiff.  I did, however, come to the conclusion after listening to Dr. Hay
in both direct and cross-examination that he came across as being rather
defensive and close to being an advocate for the plaintiff when he stated that
he felt sorry for Mr. Wahl.  It is noteworthy that Dr. Hay agreed that there
were no signs of an objective injury having been sustained by the plaintiff and
that the plaintiff’s complaints after the accident were, according to him as
evidenced by his clinical notes, very general with respect to any particular
location in the plaintiff’s upper back and shoulder area rather than being
specifically localized on the right shoulder tip where Dr. Chin had reasoned
specific pain would be.  It is also noteworthy that Dr. Hay agreed that Mr.
Wahl did not complain of symptoms of concussion to him.  As previously
indicated, while Dr. Hay may have initially referred the plaintiff for some
physiotherapy shortly after the accident, there is nothing to indicate ongoing
rapport between the physiotherapist and Dr. Hay regarding the treatment by the
physiotherapist or the progress being made by the plaintiff as a result of
physiotherapy which reporting one regularly sees where the general practitioner
is the “gate keeper” with respect to his or her patient.

DR. PHILIP TEAL

[122]     The
plaintiff was assessed by Dr. Teal at the request of the defence on September
18, 2009, and his report of November 2, 2009 is part of Exhibit 5. 
Dr. Teal is a neurologist and he conducted a mental status examination and
an assessment of Mr. Wahl’s cognitive functions.  He provided the following
information with respect to the current medications Mr. Wahl was taking as at
the date of examination:

[123]    
With respect to his physical examination of the plaintiff, Dr. Teal
stated, at page 7, as follows:

Mr. Wahl initially demonstrated pain behaviour with
sighing and some grimacing and appearances of discomfort.  This behaviour,
however, was not sustained throughout the course of the interview and
examination, and he subsequently became more animated, relaxed, and smiled, and
did not continue to demonstrate pain behaviour.

He was able to get in and out of chairs and on and off the
stretcher without any discomfort.  He was able to take his shirt and shoes off
and put them back on without any limitations or apparent restrictions.

Romberg’s was negative.  Toe-walking and heel-walking were
normal.  His natural gait was stable and narrow-based with symmetric arm swing.

There was no evidence of nerve root irritation of his lumbar
spine.  Tripod manoeuvre was negative.  Trendelenburg sign was negative. 
Straight leg raising was negative to 90 degrees.

There was preservation of lumbar lordosis.  Forward flexion
was full.  He was able to touch his toes with his legs straight.  Lateral
rotation and lateral flexion were normal.  Back extension was normal.

Throughout the course of the interview and examination
spontaneous neck movements were full and natural with no apparent limitations
or restrictions.  Compression tests, Spurling’s manoeuvres, and cervical grind
testing were all negative for signs of nerve root irritation.  There was no
bony tenderness and no paracervical muscle spasm.

Tests for thoracic outlet manoeuvre were negative.  Upper
Limb Tension Test was negative.  Adson’s manoeuvre was negative.  On sustained
Elevated Arm Stress Test, he reported right shoulder pain and muscle spasms
spreading into the neck.  There were no complaints of hand or arm numbness or
tingling.

There were no changes in skin colour or temperature in the
hands or arms.  Radial pulses were symmetric.  There were no subclavian bruits
heard.  Abduction manoeuvres of the shoulder were negative for signs of radial
pulse deficit or subclavian bruits.

Olfaction was present bilaterally.  Visual fields were full
to confrontational testing.  Funduscopic examination was normal.  Ocular
movements were full and smooth with no nystagmus.  Facial sensation and
movement were normal.  Hearing was intact to routine bedside testing.  The
lower cranial nerves were intact.

Tone was normal in the upper and lower extremities.  There
was no drift.  Rapid hand pats and fine finger movements were normal.  Rapid
alternating movements were normal.  Power was full both proximally and distally
in the arms and legs in all muscle groups.

Deep tendon reflexes were 2/4 (normal), present and symmetric
throughout.  Plantar reflexes were flexor bilaterally (normal).

There was subjective decrease to pinprick in the left 4th and
5th finger and medial aspect of the forearm which was inconsistent.  There was
no splitting of the 4th finger.  There was no aggravation or reported worsening
of sensory symptoms in various positions or with provocative manoeuvres.

Cerebellar testing was normal.  Tandem gait was normal.

During the initial portion of
the examination Mr. Wahl would occasionally move or rub his shoulder and
grimace in discomfort.  This behaviour was not sustained and was very
inconsistent throughout the examination.  Spontaneous movements observed
throughout the remainder of the interview and examination did not reveal any
apparent limitations or restrictions of shoulder movement.  On formal testing,
forward flexion, internal and external rotation, and abduction of the right
shoulder showed normal range of motion.  The Apley “Scratch” Test was normal. 
There was no wasting or loss of muscle bulk in the deltoid, supra- and
infraspinatus muscles.  There was no evidence of weakness in the shoulder
girdle.

[Emphasis
added.]

[124]    
Dr. Teal provides the following opinion with respect to potential
injuries and possible neurological sequelae sustained by the plaintiff in the
subject motor vehicle accident:

2.         It is
my opinion that it is very unlikely that Mr. Wahl sustained any clinically
significant Mild Traumatic Brain Injury (MTBI) or concussion as a result of the
motor vehicle accident, and any possible head injury sustained was trivial in
nature.  I base this opinion on the following facts, assumptions, and
reasoning:

2.1       A number
of definitions and grading systems are applied to the term “Mild Traumatic
Brian Injury”, and also to “concussion”.  I generally use the classification
for Mild Traumatic Brain Injury (MTBI) defined by the World Health Organization
(WHO) Collaborating Centre for Neuro-Trauma Task Force on Mild Traumatic Brain
Injury.  This task force recommends the following operational definition: MTBI
is an acute brain injury resulting from mechanical energy to the head from
external physical forces.  Operational criteria for clinical identification
include: (i) One or more of the following: Confusion or disorientation, loss of
consciousness for 30 minutes or less, posttraumatic amnesia for less than 24
hours, and/or other transient neurologic abnormalities such as focal signs,
seizures, and intracranial lesion not requiring surgery; (ii) Glasgow Coma
Score of 13-15 after 30 minutes post-injury or later upon presentation for
health care.  These manifestations of MTBI must not be due to drugs, alcohol,
medication, caused by other injuries or treatment for other injuries, or caused
by other problems.

Additionally, in the assessment of
the severity of brain injury, I take into consideration the depth and duration
of both anterograde and retrograde amnesia, the duration of loss of
consciousness, the injury mechanism, the presence or absence of focal
neurologic signs or symptoms, and the results of neuroimaging studies including
CCT and MRI brain scans.

2.2       The ambulance
crew arrived at the accident scene within four minutes of receipt of the call. 
He was reported to be alert.  Initial Glasgow Coma Scores were 15/15 on two
occasions.

2.3       The
ambulance crew reported that the patient denied loss of consciousness.  The
medical and nursing staff at Surrey Memorial Hospital both recorded that there
was no loss of consciousness.

2.4.      There
is no report of confused behaviour or posttraumatic disorientation.

2.5       Mr.
Wahl did not report any history or symptoms of a head injury when evaluated by
his family physician on June 23, 2006, one day following the motor vehicle
accident or during subsequent frequent evaluations.

2.6       At the
time of my evaluation, Mr. Wahl reported that he may have been transiently
unconscious and states he woke up with broken glass around him and blood.  This
is inconsistent with the medical records and reports obtained on the day of
accident and immediately following the accident.  Mr. Wahl reported clear and
vivid memories of events immediately after the accident including his initial
verbal response to a bus driver who came up to the window of his vehicle.  Mr.
Wahl recalls the arrival of ambulance and the fire department and recalls
immediate events following the accident.  His vivid memory for these details is
inconsistent with postconcussional confusion.

2.7       Mr. Wahl has no retrograde
amnesia for events immediately preceding the impact, in fact, he remembers the
actual impact.

[125]     In his
summary Dr. Teal opined that the plaintiff does not fulfill even the minimal
criteria for a mild traumatic brain injury.  His opinion was that the plaintiff
had not sustained persisting cognitive or neurobehavioural sequelae as a result
of the subject accident.

[126]     Further,
based in part on the fact that the plaintiff did not report any complaints of
cognitive problems to his family physician in the months following the motor
vehicle accident and the results of the neuropsychological assessments
conducted by Dr. Bishop and other facts and assumptions, Dr. Teal concluded
that it was most likely that the plaintiff’s subjective cognitive complaints
were due primarily to issues of sleep disturbance and the use of sedating
medications.

[127]     Dr. Teal
further opined that what had been suffered was a Grade II cervical strain
(whiplash) as Mr. Wahl had not indicated any symptoms to support a diagnosis of
cervical nerve root injury or irritation.

[128]     Dr. Teal
also found that at the time of his evaluation of Mr. Wahl in 2009 that the
plaintiff had a completely normal cervical spine examination and that his
spontaneous neck movements were full and natural.  Formal neck evaluation
showed  full range of motion and no paracervical muscle spasm or tenderness.

[129]    
With respect to Mr. Wahl’s reports to Dr. Teal respecting chronic
headaches, neck pain, right shoulder pain and left hip pain, Dr. Teal observed,
at page 11 of his report:

At the time of my evaluation, Mr. Wahl initially
demonstrated pain behaviour with grimacing, rubbing of his shoulder, and
sighing.  This behaviour resolved quite quickly.  He subsequently appeared to
be comfortable and had no apparent restrictions or limitations.

[Emphasis
added.]

[130]    
Given the proximity of time to trial of Dr. Teal’s report, I would set
out the following closing opinions made by Dr. Teal, at page 12, in his report
of November 2, 2009:

6.         Mr.
Wahl has a prior history of right shoulder injury and a left hip injury.  These
have been the subject of previous WCB claims and work loss.  It is possible
that the motor vehicle accident of June 22, 2006 aggravated pre-existing
problems with his right shoulder and left hip.  I would defer to an orthopedic
opinion as to whether or not Mr. Wahl has any objective evidence for persisting
recurrent injuries to his hip or shoulder arising from the motor vehicle
accident of June 22, 2006.

7. It
is my opinion that it is highly unlikely that Mr. Wahl will develop progressive
degeneration the cervical or lumbar spine as a result of injuries sustained in
the motor vehicle accident of June 22, 2006.  Mr. Wahl will not require
future surgery to the neck or back as a result of any injuries arising from the
motor vehicle accident in question.  I find no evidence for any limitations of
recreational or vocational activities with regard to his neck or back.

8.         Mr.
Wahl does report recurrent headaches since the motor vehicle accident.  At the
time of my evaluation, he stated the headaches were occurring on a daily
basis.  A review of the medical records of his family physician does not reveal
recurrent complaints of headaches.  He did report headaches on September 23,
2006, but there are no recurrent complaints of headaches in the year following
the motor vehicle accident.

 It is
my opinion that Mr. Wahl’s headaches are not due to persisting posttraumatic
mechanisms.  There is no evidence for a postconcussional syndrome.  He does not
have a history or clinical findings to suggest that his headaches are due to
chronic cervicogenic mechanisms.  It is likely that his headaches are
tension-type headaches.

9.         Mr.
Wahl has rather extraordinary complaints of pain in multiple areas including
headache, neck pain, shoulder pain, low back pain, and hip pain.  The reported
severity and persistence of his pain greatly exceeds any objective evidence of
injury.  The injuries sustained by Mr. Wahl in the motor vehicle accident of
June 22, 2006 are essentially soft tissue injuries which, for the most part,
should have resolved within 6-12 weeks.

  I
am concerned about the polypharmacy and daily use of multiple medications. 
As far as I can determine, the use of gabapentin, Tramacet, and
anti-inflammatories has not significantly improved Mr. Wahl’s pain. 
Additionally, Mr. Wahl does not seem to have significantly benefited from
frequent and repetitive physiotherapy.

  It
is my opinion that Mr. Wahl’s complaints of pain far exceed evidence of organic
pathology.  Potential explanations for his persistent subjective complaints
of pain include mood disturbance, a chronic pain disorder, or malingering.  I
would defer to a psychiatric opinion regarding the presence, causation, and
contribution of any depression or mood disturbance on Mr. Wahl’s pain symptoms.

10.       Mr. Wahl does not require any
further neurological investigations.  I would recommend a progressive reduction
and subsequent discontinuation of potent analgesics such as Tramacet, the use
of gabapentin, or the long term use of an anti-inflammatory.  Amitriptyline may
continue to serve a useful purpose with respect to sleep regulation.  I would
defer to a psychiatric opinion regarding the need and ongoing role of
antidepressant medication.

11.       Based
on the nature and mechanism of injury, I would have anticipated that Mr. Wahl
would have been off work for 6-12 weeks.

[Emphasis added.]

[131]     Under
cross-examination Dr. Teal agreed that he had not had the opportunity to see
Dr. Hay’s latest report of January 1, 2010 and he also confirmed that he had
not been provided with any counselling records, Dr. Gal’s reports, his
physiotherapist’s reports and had not spoken to collateral witnesses.  Dr. Teal
was cross-examined at some length but maintained that he was confident in his
findings.

REZA  HORMOZI – PHYSIOTHERAPIST

[132]     Reza
Hormozi, physiotherapist, gave evidence with respect to 350 physiotherapy
treatments he had provided to the plaintiff up to December 9, 2009.  Mr. Wahl
had originally been referred by Dr. Hay.  He gave evidence that when he first
started treating the plaintiff, the plaintiff had very restricted range of
motion.  He testified that he had observed positive signs of pain although
conceding that there had been some improvement in the first month of treatment
and then no improvement following that time.  He testified that in October 2006
the plaintiff had up to 50% mobility in his shoulder and approximately 50%
mobility in his lower back.  Since October 27, 2006 he testified that the
plaintiff’s range of motion had not changed much and that the range of motion
was probably only approximately 10% although his posture at the present time
was much better.  As of December 2009 he testified to the plaintiff still
feeling pain and the objective sign he relied on was that the plaintiff’s shoulders
are rounded.

[133]     The
treatment consisted of ultrasonic therapy to Mr. Wahl’s right side and massage
for his neck and right shoulder.  Other therapy included a heat pad, and
traction to the plaintiff’s lower back and neck.  With respect to compliance, the
therapist testified that the plaintiff attends regularly although the plaintiff
may have missed a couple of times because of influenza.

[134]     Under
cross-examination the physiotherapist agreed that he sees various clients, some
of who are partially covered by MSP, but with respect to the plaintiff he
confirmed that he had seen him as a private patient for which he charged $45
per hour.  He also agreed that based on his records there were no copies
forwarded to the family physician, Dr. Hay, and any extension requests were
therefore made by someone other than Dr. Hay.  He also agreed that according to
his own clinical records there was no referral indicated from Dr. Hay except
for December ’09.  He agreed that the plaintiff had reported improvement for
the first three months and then no indication of improvement beyond that. 
Although the physiotherapist maintained that Dr. Hay had said to continue the
physiotherapy treatments, he was unable to point to any indications in his
records of Dr. Hay advising him to continue, and finally agreed that he had
relied on what the patient told him Dr. Hay had said.

[135]     Under
further cross-examination the physiotherapist admitted that he had not sent a
progress report to Dr. Hay and that the only letter contained in his records
was the letter sent to the plaintiff’s lawyer in October of 2006.  With respect
to the continuation of treatments after October 27, 2006, the physiotherapist
agreed that it was only the plaintiff who wished to continue with the
treatment.

[136]     On the
initial assessment, Reza Hormozi found that the objective evidence of the
plaintiff was as follows:

a)    Clutching,
slouching;

b)    Right shoulder
point tenderness;

c)     Right shoulder
reduced range of motion;

d)    Neck range of
motion 50% of normal;

e)    Back range of
motion 90% of normal.

[137]     By October
2006 the objective signs that were observed by Mr. Hormozi included:

a)    Poor posture;

b)    Neck range of
motion 90% of normal;

c)     Right
shoulder range of motion 50%;

d)    Lower back range
of motion 50%.

[138]    
Mr. Hormozi gave evidence that essentially demonstrated that the tests
he had administered to the plaintiff over 350 visits were primarily based on
subjective complaints by Mr. Wahl even though according to him objective signs
of restricted range in motion and shoulder impingement and tenderness were
present.  Most important is the fact that his evidence was that although Dr.
Hay initially recommended physiotherapy treatment he referred to “the lawyer”
paying for the treatment.  While he could find no more than two referral notes
from Dr. Hay in his records, he also agreed that not one of the 350
physiotherapy visits was contained in the MSP printout from the date of the
accident to the date of trial.  While agreeing that the plaintiff had stopped
improvement and his condition had plateaued within a few months, Mr. Hormozi
maintained that his physiotherapy treatments should continue.

ORTHOPAEDIC EXPERT EVIDENCE

[139]     Assessments
by the orthopaedic experts differ significantly.  The plaintiff was first
assessed by orthopaedic surgeon Dr. Jordan Leith on July 15, 2008 as a result
of the defence request for a medical/legal evaluation regarding the plaintiff. 
His report is dated June 10, 2008.  Thereafter he was assessed by orthopaedic
surgeon Dr. Patrick Y.K. Chin on November 6, 2008 at the request of plaintiff’s
counsel.  It is interesting to note that at the time, both orthopaedic surgeons
practised out of the Specialist Referral Clinic in Vancouver, and I also note
that although Dr. Leith’s report is dated June 10, 2008, either the date on the
letter or the date of the evaluation must be incorrect.

[140]     Orthopaedic
surgeon, Dr. Jordan Leith, provided his opinion that Mr. Wahl did not sustain
any major structural injuries to his extremities or spine in the subject motor
vehicle accident.  He did however opine that it appeared to him that Mr. Wahl
had sustained minor soft tissue injuries to his neck, back and shoulder regions
as a result of the accident.  He also opined that the right shoulder symptoms
were most likely an aggravation of the previous right shoulder symptoms
encountered by Mr. Wahl.  I take it that this is reference to the 2001
accident.

[141]     Dr. Leith
further opined that there was nothing to suggest any acute left hip injury
because the clinical record did not indicate any sign of immediate pain or
disability to the left hip.  With respect to the right shoulder symptoms
complained of by Mr. Wahl, Dr. Leith concluded that the pre-existing right
shoulder symptoms were most likely aggravated by the subject accident.  As for
the complaints from Mr. Wahl regarding his left hip, Dr. Leith opined that he
could not find any clear objective evidence within the clinical record that any
injury actually occurred to the left hip.  He further opined that the clinical
symptoms and his evaluation were not consistent and did not indicate to him that
there was a problem with the left hip joint itself.  He concluded that the
clinical symptoms with respect to the left hip were primarily subjective in
nature given that there was no sign of any physical disability.

[142]    
Dr. Leith also opined that his assessment of the plaintiff’s right
shoulder was also normal, and:

The MRI’s of the right shoulder
do not indicate that any acute injury has ever occurred to the shoulder.  The
findings are consistent with minor age related changes and changes seen often
in labourers without any injury.  I would not consider the MRI reports as
relevant to the symptoms exhibited following the subject MVA.  There was no
correlation to what was reported anatomically and the clinical presentation
following the subject MVA.

[143]    
Of note are the latter conclusions contained at page 3 of his report:

It is my opinion that there was no objective medical
Orthopaedic findings that would preclude Mr. Wahl from being able to carry out
his duties of employment or any recreational activities. His limitations
are not anatomically based as there were no findings of any structural injury
or joint disability noted.  I would expect a reasonable amount of time for
recovery and time off work from such soft tissue injuries to be on the order of
6-12 weeks.

There was nothing to indicate during this evaluation and
within the clinical record that Mr. Wahl will ever require surgery for any of
these symptoms now or in the future.  He may require an assessment and
management from a Pain Specialist and associated program as he did exhibit pain
amplification behaviour during this evaluation.

The history provided by Mr. Wahl does not correlate with the
objective examination findings or the documented medical record.  The
documented medical record and the examination findings would indicate that
there were minimal injuries at the time of the subject MVA and that there was
minimal disability.  Mr. Wahl however presents with a more significant history
of injury and disability.

[Emphasis
added.]

[144]    
In the appendix to his report are found the results of the physical
examination conducted by Dr. Leith with the following observations and
diagnosis:

Physical Examination:   His examination revealed him to be a
fit 37-year-old gentleman who is lean and muscular.  He stood with level pelvis
and level shoulders and midline spine.  He was able to toe walk and heel walk
without a limp and without any weakness.  He did walk with a limp at the
conclusion of the evaluation.

His cervical spine range of motion revealed about 10 to 15°
loss of neck extension.  His forward flexion was full.  Rotation to the left
was full.  Rotation to the right lacked about 10 to 20° as did lateral bending
to the right.  He had pain to very light pinching of the cutaneous structures
about the right side of the neck and the right shoulder area that were
nonanatomic in distribution.  He had pain to light tapping over the acromion
and the spine of the scapula.  There was no atrophy noted about the shoulder girdles. 
His shoulder range of motion was full except for mild loss of forward elevation
of about 5°.  He had pain at the extreme of forward elevation and external
rotation with the arm at the side.  There was no sign of instability in either
shoulder.  His rotator cuff power was well maintained at 5/5 for all muscles
tested.  He was acutely tender over the biceps tendon proximally and no other
abnormalities were noted with the upper extremity examination bilaterally.

His thoracic and lumbar spine were midline.  He had
tenderness to light palpation along the left lumbar region.  His lumbar spine
range of motion was full as he was able to nearly touch his fingertips to the
floor.  Lateral bending right and left was to the knee joint line.  Rotation
right and left did not cause any significant pain.  His straight leg raise was
normal.  Trendelenburg was normal as well as his lower extremity motor power
and reflexes were all full and normal.

His hip examination did not reveal any crepitus, but there
was a snapping when bringing the left hip from a 90° flexed position down to
the extended position.  I was unable to determine where this was coming from. 
His range of motion measured 60° of external rotation bilaterally.  Internal
rotation with the knee flexed 90° was 10 to 20° on the left and 30° on the
right.  This was the only asymmetry noted with the hip examination.  He had
tenderness about the buttock on the left side to light palpation.  His greater
trochanters were nontender and the rem[a]inder of the examination was otherwise
unremarkable.

Diagnosis: There were no
findings suggestive of any Orthopaedic diagnosis for either the right shoulder
or the left hip.  I can characterize the findings of this evaluation as a
diffuse soft tissue pain disorder with features of pain amplification.

[Emphasis
added.]

[145]     Under
cross-examination Dr. Leith conceded that he deals primarily with higher level
problems such as failed surgeries, and in that role does not deal primarily
with complaints of chronic pain.  With respect to the MRI findings relating to
the plaintiff, Dr. Leith opined that an MRI is just a picture and that MRI’s do
not necessarily signal anything.  He went on to say that he sees patients,
operates and actually sees the inside of the patient.  He preferred the observations
that he himself makes.  With respect to his note on page 4 that pain
amplification was present he again confirmed his conclusion that the
presentation of the plaintiff is related to non-physical issues.

[146]     Under
further cross-examination Dr. Leith stated that his opinions were based on his
objective analysis of what the problem is and maintained his position that
there was no physical basis for the complaints.  With respect to Dr. Chin’s
report, which had obviously been provided to Dr. Leith, he again confirmed his
position that there was no physical reason for Mr. Wahl’s complaints.  He, by
way of example, said that during his examination of Mr. Wahl he barely touched
his skin and Mr. Wahl complained.  It was his conclusion that Mr. Wahl was either
embellishing or was amplifying his pain.  Based on his conclusions Mr. Wahl did
not need an operation, or he was either exaggerating or embellishing.  Dr.
Leith confirmed that he had not seen any reports from the treating psychiatrist
and had only reviewed the records which he had been provided with for his
assessment of Mr. Wahl.

[147]     Of
interest relative to a March 13, 2007 MRI which had been taken of Mr. Wahl’s
right shoulder, and the accompanying report of the radiologist, Dr. Leith only
referred to the report as being the opinion of the radiologist and advised that
a bursal tear to the tendon is not a true tear but only a disruption.  He explained
how the bursal is located on the top of the tendon covering the shoulder.  He
noted a 2002 MRI was not reported as a tear and therefore he did not know when
it happened.  He opined that if it did in fact occur at the time of the
accident there must be something to correlate the tear with the accident.

[148]     Dr. Leith further
opined that based on his review of the plaintiff’s records, Mr. Wahl did not
have those symptoms following the accident.  In this case he felt that the MRI
referring to a bursal tear did not correlate with the plaintiff’s symptoms and
that he found inconsistencies in that the plaintiff’s complaints were more than
his objective findings.  When asked if spasms and lack of range of motion were
considered objective findings he agreed that range of motion would be an
objective finding if the victim was credible but maintained that there is still
a subjective element with respect to range of motion.  Ultimately Dr. Leith
testified that he would defer to a psychiatrist regarding pain and what was
causative of the pain.

[149]    
Dr. Chin assessed Mr. Wahl, at the request of plaintiff’s counsel, some
six months after having been assessed by Dr. Leith.  From the documents
reviewed, Dr. Chin did have available to him additional material including MRI
examinations of March 13, 2008 and April 27, 2008, but apparently not the
clinical records of Dr. Cecil E.G. Caines, Orthopaedic Surgeon, December 4,
2002 to March 11, 2005, nor those of Dr. T.E. Hicks, Orthopaedic Surgeon,
clinical records of October 23, 2001 to January 21, 2002 (no doubt related to
the 2001 WCB accident).  It is also important to note that Dr. Chin admitted
under cross-examination that he had not seen the March 18, 2007 MRI scan of the
plaintiff’s right shoulder and relied entirely on the report of the
radiologist.  His physical examination results are found at page 5 of his
report:

This is a health-appearing Caucasian male.  He is physically
fit.  He weighs only 135 lb and stands 5’ 10” tall.  There are no disconcerting
behaviours noted throughout the interview. He did not exhibit any
exaggerated pain response throughout my assessment today.

Examination of his cervical spine confirms close to full
range of motion of his cervical motion, except for a 20% decrease in cervical
extension and 5-10% decrease in right-sided lateral flexion.  There was
tenderness over the right trapezius area and paraspinal muscles.  Spurling’s
test was negative for radicular symptoms.  There was no evidence of obvious
scapular shrug sign or external signs of cuff atrophy about the shoulder
girdle.  Neurovascular examination of both upper extremities revealed intact
motor and sensory function with only a slight decrease in light touch over the
C8 dermatomal level in his right hand.

Range of motion of both
shoulders was measured as follows: passive external rotation 70°, forward
elevation 170°, and internal rotation to the T4 level. He had positive
impingement signs in his right shoulder with moderate subacromial crepitus that
was painful.  He had mild scapulothoracic crepitus, right worse than left. 
His right AC joint was tender to palpation but cross-body adduction test was negative. 
Labral testing with O’Brien’s and labral shear test was negative.  The proximal
biceps was neither tender nor torn.  The deltoid muscle was intact.  The belly
press test for subscapularis deficiency was negative.  Both shoulders were
stable.  He was tender mainly on the anterolateral acromial portion of the
right shoulder, which was significantly worse than the AC joint tenderness. 
The empty milk can sign was negative for weakness. The hip was not assessed
today given the pending assessment by a hip surgeon.

[Emphasis
added.]

[150]    
With respect to the March 13, 2007 MRI and other post-accident reports,
Dr. Chin said this:

MRI scan, March 13, 2007 of the right shoulder, read: 
“Partial articular-sided and bursal tears of the supraspinatus tendon with supraspinatus
tendonopathy”.

“Mild hypertrophy is demonstrated of the acromioclavicular
joint without convincing subacromial impingement.  The acromion demonstrates
normal position, morphology and angulation. The bursal-sided supraspinatus
tear was small, measuring approximately 15 mm from the insertion on the greater
tuberosity”.

In the x-ray of December 8, 2006 of the right shoulder, there
was no fracture dislocation.  There was no bony or joint abnormality.  In the
left hip x-ray, there is no bony or joint abnormality and no fracture.

Cervical spine x-ray on November 14, 2006 read:  “The
alignment and height of the vertebrae are normal.  Normal disc spaces.  Normal
upper cervical junction.  No evidence of degenerative disc disease.  No
evidence of cervical ribs”.

MR lumbar spine, April 10, 2008 read:  “Impression: lumbar
spondylosis which is more severe at L2-3, L4-5 and L5-S1”.  MR left hip
reported:  “No abnormality identified”, read by Dr. David Fenton.

X-ray, February 6, 2007, read: 
“Lumbar spine: L5-S1 disc space is somewhat narrowed with lipping about it. 
Sacroiliac joints appear normal”.

[Emphasis
added.]

[151]    
It is noteworthy that Dr. Chin’s diagnosis is as follows:

1.         Chronic
RIGHT shoulder pain, secondary to chronic impingement syndrome, post-traumatic
with underlying partial bursal-sided supraspinatus tendon tear, with an
underlying component of myofascial pain syndrome.

2.         Chronic neck pain, secondary to
musculoligamentous injury, i.e. soft tissue injury.

[152]     With
respect to his evaluation and review of the material that was provided to him
Dr. Chin formed the opinion that Mr. Wahl had sustained an aggravation of
his pre-existing injuries to his right shoulder as a result of the accident of
June 22, 2006.  He based the aggravation conclusion on the basis of the
2001 work related accident because the MRI scan performed in 2002 confirmed the
diagnosis of rotator cuff tendonitis in Mr. Wahl’s right shoulder.  While only
saying it was probable that Mr. Wahl had an underlying chronic rotator
cuff tendonitis and impingement syndrome prior to the motor vehicle accident of
June 2006 he also went on to say that this accident probably aggravated
the pre-existing condition which resulted in a symptomatic small bursal-sided
surface tear of the supraspinatus tendon as shown on the recent MRI scan since
the subject accident.

[153]    
As with the evidence of Dr. Leith, while not discounting the fact that
he may have a partial rotator cuff tendon tear he found Mr. Wahl’s pain level
and disability to be out of proportion to what he would expect from a partial
tear of one of the rotator cuff tendons.  At page 7 of his report, Dr. Chin
states:

In my opinion, Mr. Wahl would
benefit from a referral to a neurologist and a chronic pain clinic, so that a
multi-disciplinary approach to his chronic pain would be helpful.  I am not
discounting the fact that he does have a partial rotator cuff tendon tear, but
his pain level and disability are substantially way out of proportion to what I
would expect from a small partial tear of one of the rotator cuff tendons.

[Emphasis
added.]

[154]    
With respect to future assessments of him, Dr. Chin said this:

It would be helpful for Mr. Wahl to undergo an impingement
test, i.e. a subacromial injection into his right shoulder to confirm the
origin of the amount of pain that he is currently experiencing from the
subacromial space (of the shoulder) or from another location besides his
shoulder.  It seems that a component of his pain syndrome pertains to his
right shoulder. Hence, the next prudent step to offer this gentleman would
be a diagnostic/therapeutic subacromial injection.  However, given his needle
phobia, I am hesitant to offer him this option at this juncture.

I am opined that given his symptoms have improved by only 30%
over the last two years, his prognosis is guarded to good. I would expect that
over the last two years, the majority of his symptoms should have improved by
now, but he has only made limited gains.  He obviously feels that he is not
able to return to his previous occupation as a tire technician.  Given this
knowledge and following my assessment and review of Mr. Wahl, I am opined that
it is highly unlikely that he would ever be able to return to his current
employment.  He is likely at high risk of a permanent disability following this
MVA in terms of returning to his previous occupation.

At this juncture, I do not think
Mr. Wahl is a surgical candidate.  I think that if there is a way that we are
able to perform “the impingement test” on his shoulder, and the test showed a
decrease or abatement of his pain symptoms about his shoulder girdle, one could
be convinced that perhaps an arthroscopic subacromial decompression plus or
minus rotator cuff surgery may be beneficial for this gentleman.

[Emphasis added.]

[155]     As can be
seen, Dr. Chin (as did Dr. Leith opine) concluded that he did not believe Mr.
Wahl to be a surgical candidate but if the impingement test on his shoulder was
done “ and the test showed a decrease or abatement of his pain symptoms about
his shoulder girdle, one could be convinced that perhaps an arthroscopic
subacromial decompression plus or minus rotator cuff surgery may be beneficial
for this gentleman”.

[156]     It is
noteworthy that Dr. Chin opines probabilities notwithstanding his inability to
make definite conclusions without conducting an impingement test which Mr. Wahl
did not have done because of his needle phobia.

DR. RHONDA SHUCKETT – RHEUMATOLOGIST

[157]     Dr. Rhonda
Shuckett, rheumatologist, assessed the plaintiff on September 26, 2007.  Her
report of October 22, 2007 was presented in evidence.  She was the first
assessor with a medical background to see the plaintiff other than the
plaintiff’s family doctor.  She noted at that time, being approximately 15
months post-accident, that Mr. Wahl described to her having experienced
headaches which began in his upper thoracic spine at about T-1 and radiated out
on both sides on the back of his neck and into his head.  She notes him saying
that since the motor vehicle accident he has had a headache every day and
continues to have these.  At that time he rated his headaches as being in the
range of 5 to 6 out of a magnitude of 10.  He also described his headaches being
daily occurrences and occurring five out of seven days of the week, and lasting
all day.

[158]     Mr. Wahl
also described to her that following the 2001 WCB injury his right shoulder
range of motion was not decreased but that since the accident he had lost about
10% to 15% of his mobility of his right shoulder at the time of assessment.  He
reported to her that since the subject MVA his shoulder pain had been a lot
worse and comes on more readily and that his shoulder cracks and makes noises. 
He described his shoulder pain as keeping him up at night with headaches, back
pain and the hip pain he complained of.  He also volunteered to her that he had
numbness and tingling in his right underarm and also volunteered that his right
ring and pinkie fingers go numb, soon after the MVA, and also advised that he
has symptoms to his right elbow that have occurred since the accident.

[159]     With
respect to his lower lumbar area of pain Mr. Wahl advised Dr. Shuckett that his
sacroiliac joints do not move properly and that he could not lie down for more
than two hours at a time, would not sleep and toss from side-to-side at night. 
He described his low back pain being usually in the 4 to 5 out of 10 range and sometimes
going up to an 8 out of 10.   With respect to his left area pain he described
pain in his groin and lateral hip region in the range of 5 to 6 out of 10 and
sometimes it would go up to a 7 out of 10 ranking.

[160]     Mr. Wahl
furthered described to Dr. Shuckett that if he flexed his hip the pain would
increase and would also increase with walking and weight bearing.  With respect
to physical treatment he confirmed that at that time he was going to
physiotherapy about twice a week, including ultrasound stretches and exercise
and inferential therapy.  With respect to exercise he advised her that he was
limited in what exercise he can do as he is unable to tolerate much walking
because of his left hip area pain.

[161]     On
examination Dr. Shuckett found the plaintiff to be “a very pleasant man of lean
build and very cooperative in answering her questions”.  She found the
plaintiff to be tender over the right trapezius with the notation “although
this was quite mild”.  She further noted that he was tender over the C7-T1
spinous processes and tender over the right bicipital tendon and the right
supraspinatus tendon.

[162]     With
respect to active range of motion of the neck assessment, Dr. Shuckett found
the plaintiff’s lateral flexion in both directions to be full, although lateral
flexion to the left was associated with some pulling in his right shoulder
girdle.  She also found the rotation of the plaintiff’s neck in both directions
to be full, without pain.  In addition she found forward flexion to be full
without pain although the plaintiff’s extension of his neck was 45° (with
normal being 60°) with a pinching pain in the C7 to T1 region.   With respect
to thoracolumbar rotation she found it to be quite full although there was some
right shoulder girdle pain.

[163]    
At page 8 of her report, Dr. Shuckett stated:

Active abduction of the shoulders was fine with a little bit
of discomfort in the right shoulder.  Anterior flexion of the right shoulder
was just about 10 degrees to 15 degrees less than that of the left shoulder
with some pain.  Active internal rotation and external rotation were quite full
and were well tolerated.  Passive internal rotation and external rotation of
the right shoulder was also quite full with some mild stress pain.  The
Hawkin’s test of the right shoulder for impingement syndrome led to pain. 
External rotation of the right shoulder against resistance was painful. The
Hawkin’s test suggested some impingement syndrome and pain on external rotation
against resistance suggests some rotator cuff pain.

His hand grip of the right hand was only 180/20 compared to a
hand grip of 320+/20 on the left side.  This indicates some weakness of his
dominant right hand.

When he held his right arm held at 90 degrees of abduction
and external rotation, he had numbness in the right ring and pinky finger and
in the ulnar half of the right middle finger.  Compression of the ulnar nerve
at the elbow with the Tinel’s test did not lead to any symptoms.

He was tender over the left upper sacroiliac region and the
left iliolumbar ligament but this was quite mild.  He was tender over the left
greater trochanter.  He had pain with left hip flexion and this was felt in the
groin.  With the hip flexed and externally rotated, he had left groin pain. 
With the hip flexed and internally rotated, he did not have pain.  With log
rolling, internal rotation was associated with some groin pain.

Gaenslen’s test, to ostensibly stress the sacroiliac joints,
led to severe groin pain, but not pain in the sacroiliac region.

Forward flexion of the lumbar
spine was quite good but there were abnormal dynamics of straightening up. 
Extension of the low back was a very full range of motion with some
discomfort.  Lateral flexion of the lumbar spine to the right hurt in the left
hip region.

[Emphasis
added.]

[164]    
At page 10 of her report, Dr. Shuckett gave her impression as follows:

His current symptoms include right shoulder pain in the right
supraspinatus region.  He says the shoulder pain is about 6-8 out of 10 in
severity.  He has left hip pain felt in the left groin and this pain is about
5-7 out of 10.  These pains are constant but worse when he is active.  He has
some headaches which are 5-6 out of 10 and which occur daily.  He has not
worked since the 2006 MVA.  He also has pain in the upper thoracic spine/lower
neck area and some low back pain as well.  The low back is his least area of
pain as it fluctuates and is not constant.  He has neck pain which runs about
4-5/10 mainly in the C7/T1 region of the neck/upper back.

On examination, he was not overly tender and he did
not have fibromyalgia syndrome.  He was tender over the right shoulder
supraspinatus tendon and the bicipital tendon. His range of motion of the
right shoulder was quite full with some pain.  He had pain with the
Hawkins’ test of the right shoulder, suggesting some impingement syndrome. 
He had some pain with external rotation of the right shoulder against
resistance, suggestive of rotator cuff tendonitis.

His left hip was painful
mostly in a non capsular pattern and his range of motion was quite good.

[Emphasis
added.]

[165]    
Under Diagnoses Dr. Shuckett said this:

1.         Cervicothoracic
junction region pain (lower neck/upper back region) most likely due to musculo ligamentous
injury.  Zygapophyseal joint capsular injury is also likely.

2.         Cervicogenic
headaches with some vascular or migraine features.

3.         Right
shoulder impingent syndrome and rotator cuff tendonitis.

4.         Left
hip pain in the groin is likely tendonitis.

5.         Low
back pain of a mechanical nature, relatively mild.

6.         Suspected mild degree of
thoracic outlet syndrome of right side with numbness in the ring and pinky
fingers simulated with the right arm held at 90 degrees of abduction and
external rotation.

[166]     In her
evidence Dr. Shuckett opined that Mr. Wahl’s right shoulder was at significant
increased risk of injury following the 2001 WCB accident but based on the
plaintiff’s advice as to his working after this injury she concludes that she
believed his right shoulder injury to have been caused by the subject motor
vehicle accident.  With respect to the plaintiff’s neck and upper back pain,
she believed that they were causally connected to the subject MVA.  With
respect to the plaintiff’s left hip she opined that the left hip pain is likely
a combination of his pre-MVA injury and the subject injury though she opined
that his low back pain appears to be a new complaint since the subject MVA.

[167]    
It is noteworthy that Dr. Shuckett also opined that having more records,
including the WCB records relative to the 2001 injury, would have been useful
to her.  In particular, with respect to more information that she would have
liked to have been provided with she would have liked to have seen the MRI
report of the shoulder taken before the subject MVA but she did comment,
notwithstanding not having that MRI report, as follows:

. . . I do note that, in the records which I have, that
October 2005, eight months before the subject MVA, he and the doctor had a
discussion about his right shoulder and left hip injury from the WCB injury. 
X-rays of these areas were done November 2005.  Then the next visit was not
until after the subject MVA of June 2006.  Thus the shoulder and hip appeared
to be of some ongoing issue at that point some eight months before the subject
MVA, but did not lead to any visits between October 2005 and June 2006.  Also,
these symptoms did not appear to interfere with his work.

The prior right shoulder/left
hip injury in 2002 when the truck fell on him would have rendered him at
greater risk of re-injury of these areas with the subject MVA.  However, if not
for the subject MVA, I do not expect he would be in his current unemployed
disabled status.  It is in keeping with his injuries, especially his right
shoulder injury, that he cannot work.  Ongoing disability and need for
vocational retraining is likely in this young man.  His right hand grip is
measurably weak and I believe this reflects his right shoulder condition.  His
lifting capacity is decreased.  He cannot do a manual physical type of work. 
He even depicts difficulty using the computer mouse with his dominant right
hand.  A functional capacity evaluation and vocational assessment are likely
warranted.

[168]    
Under Prognosis, Dr. Shuckett concluded as follows:

It is still early to prognosticate as it is just one year and
3 months since the subject MVA. There is room for improvement in the next
year.  Still, he does fall into that subset of patients who does not resolve at
the one year plus mark after the injury.  I understand he is going to see a
shoulder orthopaedic specialist.  This has been a referral made by his family
doctor from what I gather.  I would be interested in a copy of that consult
when it comes through.

As far as medication the Naprosyn can be continued or it
could be replaced by another NSAID such as Diclofenac (Voltaren) 75 mg BID or
Tiaprofenic Acid 300 mg BID or Fluorbiprofen 100 mg BID with the warning of
gastrointestinal (GI) irritation and GI bleeding from such agents.  He may need
Pariet 20 mg po OD with any of these.

Regular exercise is to be encouraged although most
modalities of exercise are probably going to be challenging with his left hip
pain.

An MRI arthrogram of the right
shoulder to rule out a SLAP lesion, (ie. a glenoid labral tear), is indicated. 
A MRI can/arthrogram of the left hip to rule out an acetabular labral tear is
also likely warranted.  Please fax me requisitions if you wish for me to order
these.  I realize his is awaiting an appointment to see a shoulder surgeon and
surgery may indeed be a future issue for his right shoulder supraspinatus tear.

[Emphasis
added.]

[169]     Under
cross-examination Dr. Shuckett agreed that it is the general practitioner or
family physician who is the gate keeper and who decides what expert should be
seen.  Dr. Shuckett confirmed that her assessment of the plaintiff took
approximately 1 ½ hours with two-thirds of that time, or one hour, being the
time required to take his history and one-third or one-half hour being the time
she took to do the physical examination of the plaintiff.  She further agreed
that her recollection of his history included the plaintiff telling her that
Tammy Massender was his girlfriend.

[170]     She also
agreed under cross-examination that there were inconsistencies in the plaintiff’s
history that he had provided to her including his advice to her that an x-ray
had been taken of him at the hospital immediately following the accident when
in fact one was not done until requested by his family doctor, Dr. Hay.  In
addition, with respect to symptoms, Dr. Shuckett noted that the plaintiff
pointed to a very specific area of his shoulder and that she made no notes of
him having to stand or squirm, or that he was squirming while being seated. 
She agreed that if she had noted the plaintiff grimacing she would have made a
note of it.  Similarly, with respect to the pain complained of by the plaintiff
in the lumbar area she did note that the plaintiff had a good range of motion
but remained adamant that when the plaintiff straightened up he did show signs
of pain.

[171]     Some time
was spent on the tests conducted by her to ascertain if there was a possibility
of false reporting obtained by the plaintiff, and defence counsel spent
particular time and effort in attempting to elicit from Dr. Shuckett that a
possibility existed with the plaintiff’s complaints.  Much time was also spent
on the fact that Dr. Shuckett is a rheumatologist.

[172]     Dr.
Shuckett, being a rheumatologist, agreed that she would defer mechanical
problems to the opinion of an orthopaedic surgeon and was cross-examined with
respect to the possibility existing of secondary pain.  Dr. Shuckett, a
rheumatologist of many years’ experience, had concluded that the plaintiff did
not appear anxious or depressed, and did not exhibit anything that would make
her feel that he was embellishing.  She did however agree that Mr. Wahl’s
complaints of numbness in his right arm pit and the third finger on his right
hand and in his little toes made no anatomical sense.

PSYCHIATRIC/PSYCHOLOGICAL REPORTS

[173]     Dr.
Elisabeth Zoffmann, forensic psychiatrist, assessed the plaintiff on November
19, 2008 and provided her report on January 9, 2009.  She described the
plaintiff’s appearance that day as including having quite sweaty hands and
appearing pale and sweaty.  She was with him some 3 ½ hours to perform her
assessment.  She did not note any pain behaviour and did not make a note of any
fidgeting by the plaintiff.  She did however note that he was restless and had
low sitting tolerance although that recollection was not included in her
written report.  She noted him to have problems with his attention level in
that he would lose his train of thought during the assessment, but overall she
found him to be as cooperative as she thought he could be.  Although she did
not notice any grimacing she testified to him looking uncomfortable although
there was no moaning or grunting.

[174]     Dr.
Zoffmann also noticed that Mr. Wahl became very agitated when he was asked
specifically about the subject accident and noted him turning pale and his
pupils becoming dilated when the accident was mentioned.  She concluded that he
showed marked distress at the time.  From her observations at the time she
concluded that his employment is a form of pride to him. She also concluded
that the plaintiff’s perception of pain would exacerbate the pain that he felt.

[175]    
After reviewing Mr. Wahl’s current complaints and current functioning,
she described him as having catastrophic thinking and, in particular, with
respect to the accident itself states this:

Mr. Wahl describes panic attacks
in response to recollections of the accident.  He states that he will
occasionally see certain things that look like some aspect of the events.  He
states that this “rolls me right back to what happened”.  He suffers a
panic attack and notes symptoms of heavy sweating, tears, tightening of his
chest, shortness of breath, rage, feelings of being trapped and palpitations. 
Examples of cues that remind him of the accident are intersections; the smell
of tires; seeing a bus come towards him; hearing sirens and hearing tires
squealing or metal crunching.  These sounds may occur in real life or they may
be present on television or in movies and he finds that he cannot watch action
movies anymore.

[176]     Under the
heading Past Psychiatric History she recounts Mr. Wahl describing the occasion
when his parents left him in Prince Rupert and that he felt like “an
unwanted animal”.  Thereafter she refers to him giving his account of the
2001 WCB injury and the fact that his biological father suffered from two head
injuries.

[177]     Of
particular note she commented that when he was describing the subject accident
she noted him to become sweaty and agitated and that during the recitation of
the accident “his voice got louder and louder and he appeared angry”.

[178]    
Under the heading Mental Status Evaluation, Dr. Zoffmann said this at
page 9 of her report:

His affect was labile and intensively overreactive.  He was
frequently irritable and his voice tended to escalate in volume.  There was
constant psychomotor agitation and fidgeting.  When he touched the top of the
interview desk he left wet palm prints.  His pupils were dilated and his skin
was pale.  As set out earlier, he described multiple symptoms of posttraumatic
stress disorder as well as symptoms of depression with anhedonia, feelings of
hopelessness and suicidality and intrusive suicidal thoughts, poor
concentration, poor appetite, weight loss, loss of pleasure in usual
activities, and constant low mood.  Further, he described continuous pain and
during the interview there was apparent discomfort evidenced by constant
fidgeting and stretching.

Mr. Wahl was difficult to
interview due to his poor concentration and fluctuating levels of arousal.  He
was fully oriented to time, place and person and there was no evidence of
paranoia, hallucinations or delusions.

[179]    
Under the heading Testing, Dr. Zoffmann commented at page 11:

. . . When his spontaneous
interview answers are organized with this instrument, he shows definite
evidence of posttraumatic stress disorder with a high degree of severity and
chronicity.

[180]    
Under the heading of Diagnosis, Dr. Zoffmann offered the following
opinions at page 11:

[181]    
With respect to the diagnosis of posttraumatic stress disorder, Dr.
Zoffmann noted that Mr. Wahl had experienced two events that threatened death
that caused feelings of helplessness and intense fear with the WCB injury not
appearing to cause significant posttraumatic symptoms, however, she concluded
that after the subject accident the plaintiff had consistently and persistently
re-experienced the events of both incidents in one or more of the following
ways:

a)         Recurrent
and intrusive distressing recollections of the event including images or
thoughts or perceptions that the process is recurring.

b)         Recurrent
distressing dreams of the events.

c)         Times
when he acts or feels as though the traumatic event were recurring or reliving
the experience.

d)         He has
had intense psychological distress and physiological reactivity to remembering
the incidents or experiencing cues that remind him of the incidents.

e)         Mr.
Wahl has developed a pattern of avoiding stimuli that are associated with the
trauma and this is evident in his efforts to avoid thoughts or feelings,
conversations, activities, places, or people that are associated with the
trauma or arouse recollections of the trauma.  He describes some inability to
recall some aspects of the post-accident events.

f)          He
has experienced a marked decrease in his interests and his participation in
previously pleasurable activities.

g)         He
describes feeling detached and estranged from others.

h)         He has
a restricted range of affect in that he is unable to experience warm or
friendly feelings and is constantly enraged.

i)          He
has a constant sense of doom and a foreshortened view of his future.

j)          He
has persistent symptoms of increased arousal in the form of insomnia,
irritability and outbursts of anger, difficulty concentrating, hypervigilance,
and exaggerated startle response.

k)         He has associated features of
guilt that are not associated with the trauma per se.  He has a number of
dissociative symptoms of derealization, depersonalization, and feeling dazed.

[182]     With
respect to the diagnosis of Chronic Pain Disorder Dr. Zoffmann opined that that
diagnosis was met by the presentation of pain in one or more anatomical sites
that is the predominant focus of clinical presentation and clinical treatment,
and  concluded that the experienced pain has caused significant distress and
impairment in Mr. Wahl’s social, occupational, and recreational functioning.

[183]     She also
concluded that the psychological factors she found present in Mr. Wahl have had
an important role to play in the severity and maintenance of his pain.  She
further stated that “. . . these symptoms are not intentionally produced or
feigned and this pain experience is not better accounted for by a mood or
anxiety disorder”.

[184]    
Based on the history of the accident she further concluded:

There were initial soft tissue
injuries experienced at the time of the June 22, 2006 accident which had a role
in the triggering or onset of this chronic pain disorder.  In my opinion the
presence of severe anxiety symptoms related to PTSD and chronic depression play
a major role in the continued experience of pain which is much more severe than
would be warranted by the apparent anatomical problems (rotator cuff
inflammation, lumbar spondylosis, etc.).

[185]    
With respect to pre-existing conditions Dr. Zoffmann stated:

I am of the opinion that Mr.
Wahl’s prior experience, personality characteristics, and coping mechanisms
left him vulnerable to developing the posttraumatic stress disorder in response
to the events of the motor vehicle accident of June 22, 2006.  I do not believe
that he would have developed these symptoms in the absence of a further significant
stressor and I can find no information that suggests that he had problems with
social and occupational functioning in the year before June 22, 2006 that could
be attributed to a psychiatric disorder.

[186]     With
respect to disability, Dr. Zoffmann concluded that the time off from work taken
by the plaintiff was warranted due to soft tissue injuries and pain
complaints.  Her conclusion was that the physiotherapy records and Dr. Hay’s
records supported the presence of observable physical limitations which would
prevent him from engaging in his previous occupation, and she also suggested
that detailed discussion of his physical capacity should be determined by a
physical capacity evaluation and assessment, which of course, was undertaken by
Mary Richardson, Derek Nordin and Gerard Kerr.

[187]    
The next consideration by Dr. Zoffmann was under the heading Treatment
Considerations.  She opined that the past treatment received by the plaintiff
for his physical injuries had been appropriate and necessary and, in particular,
she made this finding:

. . . He has likely not
experienced full benefit from physical therapy due to constant
psychological/physiological reactivation and muscle tension with subsequent
muscle spasm and headaches.

[188]    
With respect to treatment for posttraumatic stress disorder, Dr.
Zoffmann concluded:

The best evidence for PTSD
treatment is in combining medications (to reduce chronic anxiety and
depression) with re-exposure therapy provided in a cognitive behavioural
format.  The re-exposure treatment is preceded by intensive training in
relaxation techniques; (Mr. Wahl demonstrates that he has little idea of how to
use relaxation techniques in spite of receiving counselling re same).  I
recommend that Mr. Wahl be referred to Dr. Mary Ross at the Copeman
Neurosciences Centre (it is important to ask to speak with Dr. Ross Directly).

[189]    
Under the heading Future Disability and Prognosis, Dr. Zoffmann stated:

The prognosis for future
functioning at work and in social and recreational activities is difficult to
estimate at this point because Mr. Wahl could benefit significantly from
further treatment.  . . .

[190]     Under
cross-examination it became readily observable that aside from self-reporting
from the plaintiff and the reports of Tammy Massender, Dr. Zoffmann did not
know a great deal about the plaintiff or his life.  Dr. Zoffmann admitted that
she did not know much about Mr. Wahl’s home life or whether he was undergoing
new job training or attempting to work.  Her evidence was that she thought he
might have seen a psychologist but she was not sure.

[191]     Some ten
months later the plaintiff was assessed by the defendant’s psychiatrist, Dr.
Kevin Solomons.  Dr. Solomons assessed the plaintiff on July 30, 2009 and made
his report August 21, 2009.  Dr. Solomons noted in his report that neither Dr.
Zoffmann nor Dr. Bishop had addressed the questions or the possibility that his
symptoms were being intentionally produced.  He made various comments with
respect to Dr. Bishop and Dr. Zoffmann.  With respect to Dr. Bishop’s reports
he noted that Dr. Bishop had expressed concern regarding Mr. Wahl’s unreliable
effort at the two assessments and the fact that there was increasing reliance
on narcotics and sedating medications.  With respect to the findings made by
Dr. Zoffmann, Dr. Solomons commented that none of the symptoms recorded by Dr.
Zoffmann had been recorded in Dr. Hays’ records or any other physician’s
records over the years since the accident, and that no diagnosis or treatment
had been initiated for these reports of severe psychiatric symptoms as set out
by Dr. Zoffmann.  He was also critical of Dr. Zoffmann having not addressed the
diagnostic criteria for chronic pain disorder in the same manner that she had
for her diagnosis of depressive disorder and posttraumatic stress disorder.

[192]     I note
that Dr. Solomons did not comment on Dr. Zoffmann’s consideration that Mr. Wahl
had a dysfunctional personality style.

[193]     Dr.
Solomons also made note of the fact that it was notable that Mr. Wahl’s
complaints of memory loss and inability to concentrate were not recorded in Dr.
Hays’ records, and the fact that Dr. Hay had noted that the plaintiff was
improving by October of 2006.  Dr. Solomons spent some time noting that
exaggerated pain behaviour was observed and documented by Dr. Leith, Dr. Bishop
and Mr. Kerr and Ms. Richardson.

[194]     Dr.
Solomons also observed that both of the occupational therapists had concluded
that formal examinations and evaluations of the plaintiff revealed greater
functional ability than Mr. Wahl reported.

[195]    
From a review of Dr. Solomons lengthy report, he said this at paragraphs
37 to 40, at page 9 of his report:

37.       There
were marked discrepancies between his reports of severe disability and the
actual results of functional testing, which were at a higher level than his
reports of disability.  There was also an absence of any significant abnormal
clinical findings on repeated physical examination.  His investigational
findings were all essentially normal, in contrast to his reports of disabling
physical symptoms.

38.       The
diagnosis of a pain disorder requires that, in the physician’s judgment,
psychological factors play an important role in the onset, persistence or
maintenance of pain.  There is no requirement to specify which psychological
factor may have this effect or by what mechanism they may do so.  There is no
actual scientific basis for the presumed relationship between psychological
factors and pain production or exacerbation.

39.       An
additional requirement for the diagnosis of pain disorder is that the symptoms
are not deliberately produced for secondary gain purposes.

40.       Neither Dr. Zoffmann nor Dr.
Bishop addressed the questions of the possibility that his symptoms may be
intentionally produced.

[196]    
Finally, with respect to psychiatric complications, Dr. Solomons said
this:

It is my opinion that he did not
develop psychiatric complications or disorders as a result of this accident. 
This opinion is based on the absence of any record or documentation in his
family doctor’s records of psychiatric symptoms in the 17 months following the
accident.  There was a single reference to anxiety three months after the
accident.  This reference was not elaborated upon, with no details of either
the nature or source of the anxiety and whether it was even clinically relevant
anxiety.  There was no indication that whatever it was that was being referred
to as anxiety at this time persisted or was a focus of treatment.

[197]     Dr.
Solomons further found that the preconditions required for a diagnosis of
posttraumatic stress disorder were so clearly documented by Dr. Zoffmann 2 ½
years after the accident but had not been recorded by Dr. Hay at a time closer
in time to the accident.  He further commented that as there was no
documentation of the emotional effect of the accident which he now complains of
having been noted by Dr. Hay and those complaints should be discounted.

[198]    
For the reasons given, Dr. Solomons formed the opinion that the
plaintiff did not develop a psychiatric disorder as a result of the motor
vehicle accident and that there is no disability arising from any psychiatric
state following the accident.  Of more import, he comments on Dr. Zoffmann’s
diagnosis with respect to chronic pain disorder as follows:

Dr. Zoffmann diagnosed him with
chronic pain disorder.  The DSM-IV diagnosis of a pain disorder requires that
psychological factors are judged to play a significant role in the onset,
severity, exacerbation or maintenance of the pain.  In his specific
circumstances the psychological factors that are alleged to have played a role
in the persistence of his soft tissue pain symptoms would necessarily be
expected to perpetuate and exacerbate the pain symptoms he experienced as  a
result of fracturing a metacarpal bone in his hand, which he did a year after
the accident in 2007.  I note that Dr. Zoffmann does not address this
circumstance.  There is no medical basis for long-term persistence of pain from
one site but not contemporaneously from a different site if the pain is judged
to be based on psychological factors.

[199]    
In particular, Dr. Solomons commented at length on DSM-IV definition of
malingering and the four identifiers set out in DSM-IV:

1.         medicolegal context of presentation;

2.         marked
discrepancy between the person’s claimed stress or disability and the objective
findings;

3.         lack
of cooperation during the diagnostic evaluation and in complying with
prescribed treatment regimen;

4.         the presence of antisocial
personality disorder.

Based on those criteria, Dr.
Solomons found that the first two criteria applied to Mr. Wahl, and that there
was evidence from both the psychologist as well as the occupational therapist
that Mr. Wahl’s level of cooperation and effort in the assessments were
suboptimal.  He also commented that there was no evidence that Mr. Wahl had an
anti-social personality disorder.  On this point I do not believe that Mr.
Kerr, the defence occupational therapist, made any comment that there was a
negative comment on the level of cooperation exhibited.

[200]    
Finally, Dr. Solomons found that because he was unable to exclude a particular
criteria he opined that it was not possible to make a diagnosis of pain
disorder and it was not possible to exclude the intentional production of the
pain symptoms.

[201]    
With respect to the physical injuries, he questioned, based on the
opinions of Dr. Leith and Dr. Chin and Dr. Hay’s records, whether symptoms of
low back pain that did not arise until apparently four months after the
accident were related to the accident, although he conceded that those issues
are best addressed by the relevant physical medicine experts.

[202]    
Dr. Solomons finally concluded that there was no psychiatric basis for
any past, present or future loss of work as a result of the subject accident
and made the following comments at the end of his report:

I have elaborated in the foregoing sections of this report on
the areas of disagreement between my opinion and that off Dr. Zoffmann with
regard to his diagnosis.  I am in agreement with Dr. Bishop’s view that there
is no evidence of a brain injury arising from this accident.  It is not clear
to me what Dr. Bishop’s psychological or psychiatric opinions were at the time
of the December 2008 report.  Insofar as her view was that he suffered PTSD and
major depression in her February 2008 report, my views differ on the same
grounds that they do with Dr. Zoffmann’s opinion.

In agreeing with Dr. Bishop
regarding the absence of any brain injury arising from this accident, my view
is that there are no neurocognitive deficits or impediments arising from this
accident, no neurocognitive diagnoses, disabilities or impact on his past,
present or future ability to work as a result of this accident, and in my view
he has no requirement for neurocognitive treatment.

ANALYSIS

[203]     This is a
case where the anticipated recovery time for the plaintiff following the
accident of June 22, 2006 has not been met with the passage of time.  Some
3 ½ years post-accident the plaintiff still complains of physical
discomfort and psychological discomfort as a result of the accident in which
liability has been admitted by the defendant.  As can be seen from the medical
evidence there is disagreement between the plaintiff’s experts and the
defendant’s experts as to the present circumstances of the plaintiff regarding
his ongoing complaints.

[204]     At the
beginning of these lengthy reasons I stated that I was of the view that there
could be no doubt whatsoever that physically and psychologically there has been
a noted change in the observations of lay witnesses who gave evidence as to the
pre-accident condition of the plaintiff and the post-accident condition of the
plaintiff that has now existed for 3 ½ years post-accident.

[205]     Those
observations, of course, in this case, must meet the fundamental legal
principles that are applicable to this type of case where the plaintiff alleges
soft tissue injuries that have continued beyond the normal range of resolution,
and also alleges that he is suffering ongoing psychological symptoms since the
accident of June 22, 2006.

[206]     In Maslen
v. Rubenstein, 83 B.C.L.R. (2d) 131, [1994] 1 W.W.R. 53, 33 B.C.C.A. 182,
54 W.A.C. 182 (B.C.C.A.), the plaintiff suffered soft tissue injuries to his
neck and shoulder in a rear-end motor vehicle accident.  That case is somewhat
similar to the case at bar as in that case the plaintiff, aged 51, shortly
after the accident developed numbness and tingling in her left arm and hand and
received over 300 physiotherapy treatments and multiple referrals to different
specialists.  At her trial, some 3 ½ years post-accident, the plaintiff still
claimed to be unable to return to her work or her recreational and domestic
activities in spite of various doctors expressing their opinions the year
following the accident that she was able to return to work.

[207]     In that
case the physicians who had examined and treated her were unable to give any
physical explanation for her symptoms but none suggested that she was
malingering.  The trial judge, Spencer J., found that the psychological
mechanism which gave rise to the plaintiff’s condition was beyond the
plaintiff’s control and had been set in motion by the defendant’s conduct.  The
trial judge rejected the possibility that the plaintiff was deliberately
exaggerating her injuries and awarded non-pecuniary damages, damages for past
wage loss, damages for loss of future earning capacity and costs of future care. 
The trial judge awarded future damages based on the premise that the plaintiff
would recover within 18 months.  Both the plaintiff and the defendant appealed
the amounts assessed under each of the heads of damages where the plaintiff
sought increases in all the awards except that for past wage loss.

[208]    
On appeal, Taylor J.A., speaking for the Court, stated this at paragraph
16:

16        With respect to the
evidence required in order to meet the onus lying on a plaintiff in such cases,
Chief Justice McEachern (then sitting as a trial judge) in Price v. Kostryba
(1982), 70 B.C.L.R. 397 (S.C.), repeating his observations in Butler v. Blaylock
(October 7, 1981) Doc. Vancouver B781505 (B.C.S.C.) put it thus:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly
compensated for any injury or disability caused by a wrongdoer.  But no one can
expect his fellow citizen or citizens to compensate him in the absence of
convincing evidence – which could be just his own evidence if the surrounding
circumstances are consistent – that his complaints of pain are true reflections
of a continuing injury.

So, there must be evidence of a
“convincing” nature to overcome the improbability that pain will continue, in
the absence of objective symptoms, well beyond the normal recovery period, but
the plaintiff’s own evidence, if consistent with the surrounding circumstances,
may nevertheless suffice for the purpose.

[209]    
Some two years later, in Yoshikawa v. Yu (1996), 21 B.C.L.R. (3d)
318 (C.A.), the Court of Appeal determined that it was important to understand
what was established and what was not established by the Court’s decision in Maslen
v. Rubenstein, supra.  Commencing at paragraph 12 of that decision,
the Court of Appeal set out a number of principles derived from Maslen v.
Rubenstein in determining a claim for inquiries such as in the present
case.  The Court stated:

12        It is important to
understand what is established and what is not established by the decision in Maslen
v. Rubenstein.  I propose to set out a number of principles extracted from
the reasons of Mr. Justice Taylor, for the Court, in the Maslen case. 
The first point is a preliminary point and appears in Maslen at p. 133
under the heading “(a) The Background”:

1.         The plaintiff must establish
that the pain, discomfort or weakness is “real” in the sense that the victim
genuinely experiences it.

The remaining ten points are
drawn from the part of the reasons headed “(b) The Basic Principles” at pp. 134
to 137:

2.         The plaintiff must establish
that his or her psychological problems have their cause in the defendant’s
unlawful act.

3.         The plaintiff’s psychological
problems do not have their cause in the defendant’s unlawful act if they arise
from a desire on the plaintiff’s part for such things as care, sympathy,
relaxation or compensation.

4.         The plaintiff’s psychological
problems do not have their cause in the defendant’s wrongful act if the plaintiff
could be expected to overcome them by his or her own inherent resources, or
“will-power”.

5.         If psychological problems
exist, or continue, because the plaintiff for some reason wishes to have them,
or does not wish them to end, their existence or continuation must be said to
have a subjective, or internal, cause.  (NOTE: I consider that this proposition
must deal with the conscious mind, otherwise it seems to me to beg the
question, see my first observation, later in this Part of these reasons.)

6.         If a court could not say
whether the plaintiff really desired to be free of the psychological problems,
the plaintiff would not have established his or her case on the critical issue
of causation.

7.         Any question of mitigation, or
failure to mitigate, arises only after causation has been established.

8.         It is not sufficient to ask
whether a psychological condition such as “chronic, benign pain syndrome” is
“compensable”.  Such a psychological condition may be compensable or it may
not.  The identification of the symptoms as “chronic benign pain syndrome” does
not resolve the questions of legal liability or the question of assessment of
damages.

9.         It is unlikely that medical
practitioners can answer, as matters of expert opinion, the ultimate questions
on which these cases often turn.

10.       Mr. Justice Spencer, at trial in
the Maslen case, put the overall test quite correctly in these words:

[C]hronic benign pain syndrome will attract damages . . .
where the plaintiff’s condition is caused by the defendant and is not something
within her control to prevent.  If it is true of a chronic benign pain
syndrome, then it will be true also of other psychologically-caused suffering
where the psychological mechanism, whatever it is, is beyond the plaintiff’s
power to control and was set in motion by the defendant’s fault.

11.       There must be evidence of a
“convincing” nature to overcome the improbability that pain will continue, in
the absence of objective symptoms, well beyond the recovery period, but the
plaintiff’s own evidence, if consistent with the surrounding circumstances, may
nevertheless suffice for the purpose.

[210]    
Thereafter, commencing at paragraph 18 through 19, the Court went on to
say as follows:

18.       Some principles have
emerged to help in dealing with questions of proximate cause.

19.       One of the most
important principles, for the purposes of this case, is the principle that, for
the purposes of assessing damages, a tortfeasor must take the person injured by
the tort in the actual condition of that person at that time.  This has been
called the “thin skull” principle.  In its application to psychological
problems it has been called the “egg shell personality” application of the
principle.  In my opinion there is no basis for giving a more restrictive
application to this principle in cases where psychological injuries are
suffered than would be given in cases where only physical injuries are
suffered.  A predisposition to suffer psychological injury in circumstances
such as those brought about in a particular case by a defendant’s wrongful act
does not relieve the defendant of the liability to compensate the plaintiff for
the injuries represented by those psychological symptoms.  Such relief could
only occur, as I have said, if the psychological symptoms would have occurred
in any event, even without the defendant’s wrongful act, through an application
of the cause-in-fact test.  Examples of the application of the “thin skull”
principle to the award of damages for psychological symptoms in circumstances
where there was an existing predisposition include Enge v. Trerise
(1960), 26 D.L.R. (2d) 529 (B.C.C.A.), Cotic v. Gray (1981), 17 C.C.L.T.
138 (Ont.C.A.), Elloway v. Boomars (1968), 69 D.L.R. (2d) 605
(B.C.S.C.), and Marconato v. Franklin, [1974] 6 W.W.R. 676 (B.C.S.C.).

[211]    
Thereafter, at paragraph 24, the Court stated:

[24]      . . . I think it is
correct to treat a plaintiff’s own conscious wish to receive care, comfort and
attention, or the plaintiff’s own conscious failure to exercise his or her
willpower to bring about a healing of the symptoms, as coming within the
principle of new intervening acts, and to treat those occurrences as giving
such a sufficient new impetus or deflection to the chain of causation as to render
the original wrongful act no longer a proximate cause.  But if the plaintiff’s
wish to receive care, comfort and attention is accepted as being entirely
unconscious and contrary to the plaintiff’s own apparent efforts to attain a
healing of the symptoms, or if the plaintiff’s own failure to exercise his or
her own willpower is unconscious and contrary to the plaintiff’s own apparent
efforts to attain a healing of the symptoms, then I would not be prepared to
say that the plaintiff is still excluded from compensation for the
psychological symptoms.  In short, I think that the word “conscious” is
implicit in points 3, 4, 5, and 6 that I have extracted from Mr. Justice
Taylor’s reasons in Maslen.

[212]    
Finally, at paragraph 32 Mr. Justice Lambert said this:

[32]      It seems to me that
there are two different types of psychological symptoms that may be covered by
the principles that are here being discussed.  There are those where the
psychological symptoms have their origin entirely in the defendant’s wrongful
act.  Clearly they are compensable.  And there are those psychological symptoms
where the defendant’s wrongful act triggers a pre-existing psychological
condition so that both the defendant’s wrongful act and the pre-existing
condition are causes-in-fact of the psychological injury.  In the latter cases
the psychological injury will be compensable on the basis of a pre-existing
thin skull, except only in cases where the psychological problem is so dominant
as a pre-existing condition and the injuries sustained in the accident are so
trivial that the accident can no longer be said to be a sufficient cause in law
to support an award of damages on the basis of proximate cause.

[213]    
Before dealing with the considerations I must deal with in accordance
with the dicta of the Court of Appeal in Yoshikawa v. Yu, supra,
I wish to comment on what occurred and what did not occur with respect to the
evidence of Mr. Wahl at trial.  My notes of his evidence, particularly his
evidence given under cross-examination, indicate that negative comments made by
the various treators and Mary Richardson and Gerard Kerr were not put to him
under cross-examination so that he would have an ability to deal with that
evidence.  It is my view that the witness must be confronted with these opinions
before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6
R. 67 (H.L.)).  This is especially required in a case such as this where the
defence submits that the plaintiff, in this case, is not motivated to get
better and that the credibility of the plaintiff is at issue.

[214]    
With respect to the issue of credibility, the defence submits that the
plaintiff is not at all credible and in that light refers to incidents in the
plaintiff’s past to sustain that argument.  I have already commented on the
fact that I do not find the fact that the plaintiff did not report income for
landscaping work, moving work and construction work that he did some years
before the accident materially affects his credibility.  In addition the
defence relies to some extent on the reporting by the plaintiff that he lost
consciousness shortly after the accident.  I accept that the ambulance report
and the Surrey Memorial Hospital record do not note a loss of consciousness. 
It is noteworthy that the independent witness to the accident, Janessa
Ferguson, by her own evidence, indicated that she attended on the plaintiff’s
vehicle only after attending at the defendant’s motor vehicle, a passage of
some minutes.  In any event, embellishment or exaggeration do not go to the
core of credibility.

[215]    
The defence also relies on what appears to be incorrect reporting by the
plaintiff to Dr. Zoffmann’s report, at page 7, where she mentions that the
plaintiff told her that he had “intense fear” of travelling in a vehicle when
his roommate Greg drove him home from the hospital on the date of the
accident.  However, Greg Massender did not give any indication of such
problems.  Similarly, the plaintiff relies on the fact that Dr. Zoffmann noted
from her interview with the plaintiff that he had told her that x-rays were
done at the hospital which is not confirmed by the Surrey Memorial Hospital
records or Dr. Hay’s records.  I do not believe the credibility of the
plaintiff  turns on this misinformation or embellishment  to Dr. Zoffmann some
years post-accident.

[216]    
The defence also relies on the fact that the various expert medical
reports in evidence show that the plaintiff exhibited a significant amount of
pain behaviours during medical assessments and demonstrated some poor levels of
effort on his testing with Ms. Richardson and Mr. Kerr.  As I have already
indicated, this evidence was not put to the plaintiff when he was on the
stand.  As such, I am not able to conclude that the plaintiff’s presentation is
unreliable as urged by the defendant.  I accept that in a chronic pain case the
plaintiff’s credibility must be the cornerstone of the claim but surely he must
be given the opportunity to answer to the assertion that he is not credible
when he is in the witness box.

[217]    
The defence, in this case, called Dr. Bishop as a witness. 
Interestingly enough, the plaintiff in his closing submissions also referred at
length to Dr. Bishop’s evidence and report.  The defence, in its submissions,
referred to the clearest and most telling of the lack of credibility of the
plaintiff coming from Dr. Bishop’s report.  As indicated earlier Dr. Bishop was
originally retained by the plaintiff but did not call Dr. Bishop at trial.  The
defence made a point of filing Dr. Bishop’s reports and defence called her
evidence as part of its case.  In the defence written submissions, the defence
maintains that “her evidence makes it clear that she is of the opinion that the
plaintiff is intentionally faking symptoms”.  The defence then went on to say
in those written submissions that at page 23 of Dr. Bishop’s medical/legal
report of December 20, 2008 she stated in her own words that:

. . . Suboptimal performance on
at least three of the measures below, along with feigned [or fake as she said
in her testimony] psychological symptoms in concert with deliberately
invalidated personality measures would strongly suggest high levels of
calculated negative impression management scores.

[218]    
To fully understand what Dr. Bishop was saying by these comments, I find
that reference must be made to Appendix 6 of her December report under the
heading Assessment Procedure and Baseline Functioning, commencing at page 22. 
Item iii of that Appendix reads as follows:

Effort testing was applied. 
Although effort testing of itself cannot determine motivation as submaximal
effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard
to performance, perception of dysfunction, need to demonstrate distress, etc)
poor effort as defined by performances either below chance (50th percentile) or
lower than expected by test parameters raises the possibility of poor effort
that could also affect other test performance integrity. Suboptimal performance
on at least three of the measures below, along with feigned psychological symptoms
in concert with deliberately invalidated personality measures would strongly
suggest high levels of calculated negative impression management scores. His
effort was poor on a standard forced-choice test; both low effort and fatigue
are probably implicated but in any case question any lower-than-expected,
isolated cognitive findings.

[Emphasis
added.]

[219]    
It is important to note the first lines of the evaluation of effort
where Dr. Bishop said, and I repeat:

. . . Although effort testing of
itself cannot determine motivation as submaximal effort may be
multifactorial in origin (e.g. fear of pain, anxiety with regard to
performance, perception of dysfunction, need to demonstrate distress, etc)
. . .

[Emphasis
added.]

That finding cannot be
relied upon, in my opinion, by the defence when the particulars of those
conclusions were not put to the plaintiff when he was on the stand.  What is
more important, in my view, are her conclusions contained in her report of
December 20, 2008 and what she said in paragraphs 10 and 11, which I have
already referred to at paragraph 93 of these reasons.  It should also be noted
that at paragraph 6 of that report she concluded by stating:

Regardless of effort issues,
it is useful to comment on Mr. Wahl’s intellectual and cognitive functioning in
order to understand his presentation.  Mr. Wahl’s general pre-accident
intellectual capacity and potential for academic achievement was probably
average at best.  He was not academically inclined but had relative strength
for nonverbal or performance abilities.  Testing at both assessment dates
demonstrated stable intellectual functioning consistent with his background,
with stronger (High Average) non-verbal or performance abilities.

[Emphasis added.]

It is also important to note
what she said at paragraph 9 where she concluded that Mr. Wahl fit the criteria
for Post Traumatic Stress Syndrome:

At my first meeting with Mr.
Wahl, he fit criteria for Post Traumatic Stress Syndrome.  Concurrently, he
also presents with persistent symptoms that may or may not be associated with
post-concussion complications, although he does not strictly fit diagnostic
criteria for Post Concussion Syndrome.  From what I understand, psychological
difficulties in the form of depression and anxiety marked by post-trauma
symptoms, probable anxiety and panic and general difficulty managing autonomic
arousal first presented following the MVA and have resulted in functional
limitations for this man, including the ability to return to productive
employment.  He continues to experience symptoms of depression as well as what
appears to be panic episodes and increasing difficulty with claustrophobia, but
it was difficult to determine whether mood or anxiety issues were prominent
over a psychologically-related pain presentation.  Driving-related anxiety is
less prominent but still problematic at times.

[220]     Although
Mr. Wahl, in his evidence, indicated that he had never not followed recommendations
made to him, he did agree that he had not taken a strengthening program based
on, as he put it, some discussions with his physiotherapist.

[221]     It is
noteworthy that the recommendations of Dr. Bishop for the plaintiff to attend
an anxiety disorder clinic, the UBC sleep disorder clinic and a pain management
program do not appear to have been followed up but those recommendations made
by Dr. Bishop were not dealt with by the defence in any confrontational way to
ascertain why.  It appears those recommendations were not followed.  That, of
course, is a mitigation defence which the defendant must establish on a balance
of probabilities.  In any event, when dealing with causation that is not a
matter to be dealt with by the court.

[222]     It is
also important to point out that Dr. Bishop also testified that she sees
emotional or psychological problems as complicating factors to testing in about
one-fifth of the cases that she is called upon to assess.  Dealing specifically
with the plaintiff, she did comment that her opinion of Mr. Wahl was that he
has naive and concrete thinking with the naive aspect making him want to “tough
it out” and be “proud”.  She indicated this is common amongst labourers and
that his personality creates a situation where stress turns into pain, anxiety
and depression.  Dr. Bishop was also of the view that Mr. Wahl was not making a
conscious attempt to mislead and she did not allocate his presentation to her
as one of malingering.

[223]     While Dr.
Bishop expressed concern regarding Mr. Wahl’s increasing reliance on narcotics
and/or other sedating medications to manage his distress and pain, her concerns
must be taken in the context that these medications were being prescribed by
his family physician, Dr. Hay.

[224]     With
respect to the conclusions by both Ms. Richardson and Mr. Kerr that they had
concluded a lack of full effort by him on their testing I have concluded that
Mr. Wahl was self-limiting in nature because he was indeed afraid of getting
worse pain and that was due to his perception of himself that he was in pain
and disabled and his own voluntary embellishment of his circumstances.   Both
Mr. Kerr and Ms. Richardson concluded that there was a reduced range of motion
in the plaintiff’s neck, together with a reduced range of motion of Mr. Wahl’s
right shoulder.

[225]     With
respect to the contradictory physical findings of orthopaedic surgeons Dr. Chin
and Dr. Leith, I would say that Dr. Leith’s evidence is based primarily on his
physical findings.  Based on those physical findings he gave evidence that
short of clear objective signs of injury then there should be no ongoing
problems whatsoever, but that is obviously inconsistent with the findings of
Dr. Chin who did note a series of objective signs of injury including possible
impingement signs of the right shoulder and the same reduced range of motion in
Mr. Wahl’s neck which had been also found by his physiotherapist, Reza Hormozi,
who gave evidence of right shoulder reduced range of motion and right shoulder
tenderness as well as range of motion deficiency.

[226]     On a
preponderance of all of the evidence I have concluded that Mr. Wahl, after the
accident, was experiencing pain and emotional distress including depression and
anxiety that are associated either directly or indirectly with the motor
vehicle accident of June 22, 2006, liability for which has been accepted by the
defence.

[227]     From the
evidence before me I also conclude Mr. Wahl is highly somatically  focused over
his persistent right shoulder soft tissue injury which I believe to be based on
a psychological impact brought about by the accident.

[228]    
A review of the totality of the medical evidence does not indicate any objective
conclusions that any further improvement in his present condition would be
unlikely, although Dr. Chin, in his report of November 6, 2008 opined that it
was highly unlikely that Mr. Wahl would ever be able to return to his current
position and was likely at high risk of a permanent disability following the
motor vehicle accident in terms of returning to his previous occupation.   That,
of course, was stated by Dr. Chin after he had opined that he felt Mr. Wahl’s
symptoms had improved by only 30% over the two years preceding his report, but
he did also add “his prognosis is guarded to good”.  He also stated, in the
same paragraph “he obviously feels that he is not able to return to his
previous occupation as a tire technician”.

[229]    
Of some import, Gerard Kerr, in his December 12, 2008 report, stated
this:

From a physical perspective Mr.
Wahl showed consistent difficulties using the right arm for any extended or
overhead reaching, or for tasks involving repetitive movements of the right
shoulder.  He was considered highly guarded in using the right hand/arm and in
general, simply tended to avoid using it though he was clearly able to use
it in certain circumstances.  He presents with reduced right grip strength
(compared to the left).  Right hand dexterity was entirely intact and as noted
he spontaneously engaged the right hand/arm on occasions at least for short
duration activities . . .

[Emphasis
added.]

[230]     It is
important to note that both Mary Richardson and Derek Nordin in their reports
refer to Mr. Wahl’s then current conditions and both comment negatively on Mr.
Wahl’s having self-limited his performance on certain kinds of tasks.

[231]     Dr.
Shuckett’s diagnoses (paragraph 165 of these reasons) confirm the summary of
physical injuries she identified on her assessment of the plaintiff some 15
months post-accident.

[232]     In this
case the objective evidence of physical injury is contradictory, especially
with respect to the evidence of the orthopaedic surgeons.  It is noteworthy
however that Dr. Shuckett, in 2007, refers to impingement and Dr. Chin, in
November 2008, was also of the opinion that there probably is impingement
although he would have preferred to do further testing which he was not allowed
to do because of the plaintiff’s needle phobia.

[233]     I am
satisfied that where there is a psychological overlap, as I find there is here,
a straight line observation that where there appears to be no musculoskeletal
reason for pain there can be no pain is not acceptable.  The evidence is
overwhelming that there is a probability that impingement is the problem with
the plaintiff’s right shoulder and I repeat Dr. Chin’s opinion that Mr. Wahl
sustained an aggravation of his pre-existing injury to his right shoulder
following the subject motor vehicle accident and that it is probable that Mr.
Wahl had underlying chronic rotator cuff tendonitis and impingement syndrome
prior to the subject motor vehicle accident which chronic condition was
aggravated by the accident.

[234]     I accept
Dr. Bishop’s conclusions at paragraphs 10 and 11 of her report that Mr. Wahl
suffered from a very entrenched catastrophic pain profile and continued for
some time into the future because of his highly pessimistic view about his
current and future situation thus fitting the DSM-IV-TR criteria for pain
disorder.

[235]     The same
conclusion was reached by Dr. Gal where she opined that the plaintiff suffered
from post-traumatic stress disorder, major depressive disorder and pain
disorder associated with the accident of June 22, 2006.

[236]     A somewhat
different conclusion was reached by Dr. Teal when he assessed the plaintiff and
ruled out any traumatic brain injury or concussion.  He noted that although Mr.
Wahl, on September 18, 2009, demonstrated pain behaviour and sighing, and some
grimacing and the appearance of discomfort, this behaviour was not sustained
throughout the course of the interview and noted that Mr. Wahl was able to get
in and out of chairs without discomfort, and was able to take his shirt and
shoes off and put them back on without any limitations or apparent
restrictions.

[237]     This
observation was made some four months pre-trial.

[238]     Again,
during Mr. Wahl’s attendance on the witness stand I did not note any grimacing
or any noticeable attempts by the plaintiff to change his seating position, nor
were there any requests by Mr. Wahl for a break from his providing evidence,
which is so often the case in continuing physical complaints.

[239]     It is
somewhat noteworthy that Dr. Teal, in his evidence under cross-examination,
backed off his opinion at trial conceding that the plaintiff’s time off of work
could be up to six months.  It must also be remembered that Dr. Teal’s overall
opinion was simply that there was no organic basis for the pain claimed by the
plaintiff but he did not rule out psychiatric/psychological issues.  My notes
also indicate that he would defer to a psychologist or psychiatrist with
respect to any mood disorders related to medication, sleep deprivation and mood
disturbance, including depression, although he noted in his evidence that those
issues had not been recorded in Dr. Hay’s clinical notes which he relied on. 
Also, when confronted with the fact that he had not seen Dr. Hay’s report he
again reiterated that his report was based in part on Dr. Hay’s medical records
that he had received.

[240]     I do note
at this time that, notwithstanding Dr. Shuckett’s assessment of the injuries
she relates to the plaintiff suffering as a result of the subject accident, her
conclusions at the time of her assessment was that it was still early to
predict the future for the plaintiff given that it was just 1 year 3 months
since the motor vehicle accident when she did her assessment.  She did state
that there was room for improvement in the next year although the plaintiff did
fall into “that subset of patients who does not resolve at the one year plus
mark after the injury”.  At the time of her report she had stated that she
understood that the plaintiff was going to see a shoulder orthopaedic surgeon
and she did comment that “regular exercise was to be encouraged although most
modalities of exercise are probably going to be challenging with his left hip
pain”.

[241]     With
respect to the report of Dr. Zoffmann, she reported on January 9, 2009 that,
again, the prognosis for future functioning of the plaintiff at work and in
social and recreational activities was difficult to estimate at the point of
her assessment “because Mr. Wahl could benefit significantly from further
treatment”.

[242]     In this
case plaintiff’s counsel has been adamant that I should reject the psychiatric
evidence offered by Dr. Solomons and the neurological evidence offered by Dr.
Teal.  I have spent, perhaps, an inordinate amount of time in these reasons and
in my deliberations of attempting to reconcile their evidence with the evidence
tendered by the plaintiff.

[243]     On a
review of all the evidence I am satisfied that there were physical injuries and
psychological injuries sustained by the plaintiff which are directly
attributable to the negligence of the defendant but that there has been
improvement in the plaintiff’s physical injuries over the time that has elapsed
since the accident and that, at the present time, namely the time of trial, the
plaintiff should have made far better recovery than he has made had he followed
the recommendations of his treators.

[244]     In this
case I find that the recommendations of his treator, Dr. Bishop, were not
followed, in particular, the attendance by the plaintiff for anxiety treatment,
sleep disorder, and a pain management program.

[245]     There was
some time spent by the defence on its position that it was not for plaintiff’s counsel
to make the referrals to treators as was done in this case.

[246]     With
reluctance I have accepted that criticism as I am of the view that had the
treators recommendations been referred to the treating family physician there
would have been appropriate steps taken to ensure such attendance at a pain
clinic.  In this case there was a lack of follow-up with respect to the
attendance at the pain clinic which I find was particularly required in Mr.
Wahl’s case.

[247]     The duty
at law on Mr. Wahl to take reasonable steps to minimize his loss was not met by
the plaintiff when such early treators as Dr. Bishop and Dr. Zoffmann either
made the recommendation or were cognizant of the fact that Mr. Wahl’s psyche
had taken over his physical recovery to such an extent that the attendance at a
pain clinic was absolutely necessary.

[248]     I am
unable to be critical of Dr. Solomons’ findings when he examined the plaintiff
some months before the trial of this action.

[249]     The most
rational conclusion I can come to in balancing all the psychiatric and
psychological evidence presented to me is that over a period of time the
plaintiff’s post traumatic stress syndrome and other psychological problems had
essentially resolved.  Similarly, I have also come to the conclusion that I am
unable to rationalize the evidence of Dr. Leith and Dr. Chin although I have
concluded, based on Dr. Shuckett’s initial conclusions and Dr. Chin’s
conclusions, that there was an impingement problem in the right shoulder which
has not been properly addressed due to the plaintiff’s own reluctance to have
further testing done by way of the needle therapy desired to be undertaken by
Dr. Chin.

[250]     A plaintiff
shares the same responsibilities as a person who is first diagnosed with
diabetes.  He must be willing to take needles notwithstanding any phobia with
respect to needles if he truly desires to maintain his health.  Similarly, a
person diagnosed with cancer will be motivated to take such treatment as is
necessary to eradicate the cancer and prolong his life.  In this case the only
rational conclusion I have been able to come to is that the plaintiff has
failed to mitigate his losses because of lack of motivation and his pre-existing
psychological state.  This state includes his needle phobia which should have
been overcome by him by his own motivation to improve following the accident. 
This is in part a thin skull finding but I am of the opinion that, in keeping
with the dicta I have reproduced from Yoshikawa v. Yu, supra,
which I have set out at paragraphs 209-212 of these reasons, that there was
ample time by the third anniversary of the motor vehicle accident to have
motivated the plaintiff to attend a pain clinic, which was recommended some
twenty months post-accident, and the needle test which Dr. Chin wanted to
administer in late 2008.

[251]     I am
fortified in this view, notwithstanding the evidence of Dr. Hay and his very
general medical report on January 1, 2010 which was done without a medical
assessment at the time.  I also note my earlier comment that Dr. Hay came
across as an advocate on behalf of Mr. Wahl and one whose clinical reports
appeared to be inconsistent with his testimony and medical reports.

[252]     I am
unable to accept the evidence of the plaintiff and Dr. Hay regarding permanence
when viewed in light of the observations of not only the plaintiff’s own
experts but also the defence experts.   The totality of the evidence amounts to
evidence that is not of a convincing nature to overcome the improbability that
Mr. Wahl’s psychological complaints and physical complaints will continue into
the future on a permanent basis.

[253]     While
causally I am of the opinion that Mr. Wahl’s early physical and psychological
problems have their cause in the defendant’s wrongful act and that his pain and
discomfort was real, I simply find that his pain and discomfort could have been
resolved earlier by his own motivation on or about the third anniversary of the
accident, being June 2009.

[254]     In coming
to this conclusion I have reluctantly come to the conclusion that Mr. Wahl’s  evidence
at trial regarding his present symptomology cannot be accepted, but I have
picked the third anniversary of the accident as a date that must come close to
the opinions of Doctors Solomons and Teal, who assessed and observed him in the
latter months of 2009.

[255]    
While this observation and conclusion obviously relates to the
credibility of Mr. Wahl, I have in mind the following comments of Southin J.,
as she then was, in Le v. Milburn, [1987] B.C.J. No. 2690 (15 December
1987) Vancouver Registry No. B81193 (B.C.S.C.), where, at page 1, Her Ladyship
said:

When a litigant practises to
deceive, whether by deliberate falsehood or gross exaggeration, the court has
much difficulty in disentangling the truth from the web of deceit and
exaggeration.  If, in the course of the disentangling of the web, the court
casts aside as untrue something that was indeed true, the litigant has only
himself or herself to blame.

[256]     Based on
these findings I therefore now turn to the damages sought by the plaintiff with
respect to this accident.

NON-PECUNIARY DAMAGES

[257]     I find
that the plaintiff suffered medium tissue injuries to his neck and back.  Dr.
Hay’s clinical records and the records of his physiotherapist both indicate
that his symptoms were improving consistently up to six months post-accident
when they appeared to plateau due to psychological symptoms which were first
indicated approximately one year post-accident, and which were confirmed on
assessment by Doctors Bishop and Zoffmann.  I find that the psychological
overlay prolonged the plaintiff’s recovery, in part due to his failing to
attend a pain clinic as first recommended by Dr. Bishop in February 2008, some
18 months post-accident.  In short, the plaintiff did not prioritize his
recovery over the three years that I have indicated.  I am satisfied that on a
balance of probabilities there is more than modest improvement to reasonably be
expected in the plaintiff’s recovery, and I find that by June 2009 he should
have made a full recovery had he followed his treators’ advice, especially that
of Dr. Bishop.

[258]     The
defence has pled that the plaintiff has failed to mitigate his damages.  At
first blush the failure of the plaintiff to follow Dr. Bishop’s recommendation
regarding future steps related to his recovery might be some evidence of his
failure in this regard.  I have considered this but given the psychological
overlay which I have found directly related to the accident I would not reduce
the amount of damages under this head.  I award the plaintiff $65,000
non-pecuniary damages.

PAST WAGE LOSS

[259]     For the
full year of 2005 Mr. Wahl had gross income of $30,092.44, and net income of
approximately $25,000.  For 2006, up to the date of the accident, his total
gross earnings were some $15,893 with some $13,000 net income.  In the
plaintiff’s brief of income loss (Exhibit 4), there is correspondence from his
employer at the time of the accident that the then $18 per hour pay had the
possibility of a raise to $20 per hour depending on ability.

[260]    
I cannot accept that possibility as being something that would have
occurred on a balance of probabilities without more.  I calculate his past wage
loss claim in accordance with s. 95 of the Insurance (Vehicle) Act as
follows:

2006             $13,000

2007               26,000

2008              26,000

2009  13,000

 $78,000

I therefore award the plaintiff $78,000 for his past
wage loss claim from the time of the accident to June 2009.

FUTURE LOSS OF CAPACITY

[261]    
The factors the court is required to consider in assessing the loss of
capacity claim were set out by this court in Brown v. Golaiy (1985), 26
B.C.L.R. (3d) 353 (B.C.S.C.) as follows:

1)         whether
the plaintiff has been rendered less capable overall from earning income from
any types of employment;

2)         whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

3)         whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him, had he not been injured; and

4)         whether the plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[262]     As I have
indicated in these reasons, based on the medical evidence I have accepted, as
of June 2009 the plaintiff should have been capable of returning to work and I
reject the evidence of the experts Mr. Kerr, Ms. Richardson and Dr. Chin that
the plaintiff likely could not return to the same type of physical work he
performed in June 2006.

[263]     I am not
in a position to prefer the plaintiff’s evidence at trial regarding his current
physical and psychological condition over the totality of the evidence which I
accept regarding his current physical abilities.

[264]     This claim
is dismissed.

IN TRUST CLAIM

[265]     The
plaintiff’s evidence, along with the evidence of Tammy and Greg Massender,
demonstrate that the Massenders have both provided significant support to Mr.
Wahl since the accident.  The plaintiff relies on the decision of our Court of
Appeal in Ellis v. Star, 2008 BCCA 164 for the proposition that the
additional yard work, house work and assistance primarily provided by Ms.
Massender should result in an in trust award for the extra effort done by them
as a result of the injuries sustained by the plaintiff in the June 2006
accident.

[266]     After the
conclusion of this trial the Court of Appeal released its reasons in Dykeman
v. Porohowski, 2010 BCCA 36.  In that case the Court dealt rather extensively
with in trust claims.

[267]    
At paragraphs 27 through 29 the Court of Appeal dealt with this issue as
follows:

[27]        
On appeal, counsel for the plaintiff contends that the trial judge was
wrong to suggest that an in-trust award may be made only where the plaintiff’s
injuries are particularly “grievous”.  He relies on this court’s more
recent judgment in Ellis v. Star, 2008 BCCA 164, in which the plaintiff
was a police officer whose wrist had been injured. At trial, he received an
in-trust award of $3,500 as compensation for household services (which he would
otherwise have performed) carried out by his wife.  Mackenzie J.A. noted
the defendant’s submission that the cases in which awards for gratuitous
personal services have been made had involved “seriously injured plaintiffs or
other support services beyond those normally expected in a marital relationship
for minimal debilitating injuries.”  (Para. 18; my emphasis.) 
The Court found that yard maintenance services undertaken by Ms. Starr were not
“sufficiently extensive or related to the injury” to support an in-trust
award.  The appeal was allowed to the extent of deleting the in-trust
award.

[28]        
Since Kroeker, it has been settled law in this province that
“housekeeping and other spousal services have economic value for which a claim
by an injured party will lie even where those services are replaced
gratuitously from within the family.”  In Kroeker, such recovery
was allowed under the heading of ‘loss of future ability to perform household
tasks’, but obviously, damages for loss of such ability prior to trial
may also be properly claimed and recovered: see, e.g., McTavish
v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, per Huddart
J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell
v. Banman 2009 BCCA 484.  The reasoning in Kroeker has been
extended beyond “spousal” services to services rendered by other members of a
family: see Boren v. Vancouver Resource Society, Dufault, McTavish v.
MacGillivray; Bystedt v. Hay, all supra.  Such
awards are colloquially referred to as “in trust” even though it is the
plaintiff who recovers them, and British Columbia courts do not generally
impose trust terms in their orders, regarding the loss as that of the
plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10;
McTavish, supra.

[29]        
The majority in Kroeker was alive to the possibility that awards
for gratuitous services by family members of plaintiffs could “unleash a flood
of excessive claims” (supra, at para. 29) and for that reason, urged
courts to be cautious in making such awards.  In the words of Gibbs, J.A.:

… as the law has developed it
would not be appropriate to deny to plaintiffs in this province a common law
remedy available to plaintiffs in other provinces and in other common law
jurisdictions. It will be the duty of trial judges and this Court to
restrain awards for this type of claim to an amount of compensation
commensurate with the loss. With respect to other heads of loss which are predicated
upon the uncertain happening of future events measures have been devised to
prevent the awards from being excessive. It would be reasonable to expect
that a similar regime of reasonableness will develop in respect of the kind of
claim at issue in this case.  [At para. 19; emphasis added.]

I do not read Kroeker or Ellis,
however, as establishing a threshold of “grievousness” in terms of the injuries
which may necessitate such services.  A plaintiff who has a broken arm,
for example – presumably not a “grievous” injury – and who is obliged to seek
assistance in performing various household tasks should not be foreclosed from
recovery on this basis.  This was recognized in Ellis in the
quotation reproduced above.  Thus I disagree with the trial judge’s reference
to grievous injury as a threshold that the plaintiff was required to surmount
if her claim was to go to the jury.  Instead, claims for gratuitous
services must be carefully scrutinized, both with respect to the nature of the services
– were they simply part of the usual ‘give and take’ between family members, or
did they go ‘above and beyond’ that level? – and with respect to causation –
were the services necessitated by the plaintiff’s injuries or would they have
been provided in any event?  Finally, if these questions – which I would
have thought are appropriate for determination by a jury – are answered
affirmatively, the amount of compensation must be commensurate with the
plaintiff’s loss.  The assessment of such loss has been the subject of several
considered judgments in this province, most notably McTavish and Bystedt,
both supra.

[Emphasis in original.]

[268]     Applying
the law as set out by the Court of Appeal I have looked at the nature of the
services performed by his roommates of many years.  I have posed myself the following
two questions –

1. Was the yard work and house work and personal assistance
provided by Ms. Massender shortly after the accident helping the plaintiff
dress simply part of the usual “give and take” between family members, or did
they go “above and beyond” that level? and

2. With respect to causation, were the services necessitated
by the plaintiff’s injuries or would they have been provided in any event?

[269]     Both
questions must be answered in the affirmative to give rise to an in trust
award.  In this case, the Massenders and the plaintiff are not “family
members”,  but they have been roommates and part of an extended family for many
years.  I am of the opinion that the taking on of the duties normally performed
by the plaintiff around the home were “give and take” activities that occur
between family members and long time roommates and nothing more.

[270]     As a
result I dismiss the plaintiff’s in trust claim.

SPECIAL DAMAGES

[271]     The
plaintiff claims physiotherapy costs to November 30, 2009 in the amount of
$14,175.  The evidence is that the plaintiff had plateaued within a very few
months and no improvement was noted past that time.  Physiotherapy was,
however, continued for some 350 visits.  They appear to have been continued on
the basis that they made the plaintiff feel good notwithstanding any
improvement in his physical condition.  The physiotherapy treatments continued
solely because plaintiff’s counsel was paying for them without reference to Dr.
Hay.  I would allow the 23 sessions at $45 per session up to January 11, 2007
under this head, for an award of $1,035.  The plaintiff claims for
prescriptions in the amount of $101.26.  They are allowed.  Under the heading
of psychology visits the plaintiff is claiming $10,800 from April 2008 to
November 2009.  In keeping with my decision I would subtract from that amount
claimed all claims subsequent to June 30, 2009, for a total deduction of $2,700,
for an award of $8,100.  Under ‘miscellaneous’ the plaintiff claims $2,997.01,
which sum includes expenses for parking, BC Ambulance Service, three MRI
examinations of the right shoulder, and an MRI of the lumbar spine and left
hip.  Those claims are also allowed at $2,997.01  The total award for special
damages is therefore $12,233.27.

FUTURE CARE

[272]     The only
future care I envision for the plaintiff is the care I have repeatedly stated
that he should have received following Dr. Bishop’s assessment.  That would
have included the pain program which Mary Richardson, in her report, indicated
a present day cost of $8,500 – $14,098.  Under this head I allow $10,000.

SUMMARY

[273]     The
plaintiff is therefore awarded the following –

COSTS

[274]    
On the issue of costs, the plaintiff is entitled to costs on Scale B
provided that if there were any offers to settle that should be taken into
account counsel are at liberty to make further submissions.  Counsel may apply
to the Chief Justice for a justice to hear any further submissions with respect
to the issue of costs.

“Chamberlist J.”