IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101215

Docket: M100646

Registry:
New Westminster

Between:

Christopher
Vincent De Gaye

Plaintiff

And

Baljinder
Singh Bhullar and Swarn Kaur Bhullar

Defendants

Before:
The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]            
This is an action for damages arising out of a motor vehicle accident
that occurred on March 16, 2005 in Surrey, B.C. at the intersection of 92nd
Avenue and 132 Street. Liability is admitted by the defendants. The quantum of
damages is the sole issue in dispute.

[2]            
The plaintiff, Mr. De Gaye, claims to have suffered injuries
to his head, neck, back and shoulders as a result of the accident. His claim
includes damages for pain and suffering, past loss of wages and future loss of
earning capacity, and special expenses that he has incurred and will incur in
the future.

SUMMARY OF THE EVIDENCE

A.       Mr. De Gaye’s Background

[3]            
Mr. De Gaye was 24 years old at the time of the accident. He
was working full time for Famous Players at Guildford Mall in Surrey. Mr. De Gaye
started working at the Guildford theatre in 1997 while he was still in high
school. After he graduated from high school, Mr. De Gaye studied for
two years at Tech-BC, which is part of Simon Fraser University. His courses
included computer science, business, and media arts. Mr. De Gaye also
continued to work full time while he went to school.

[4]            
In 1997 Mr. De Gaye started out as a “player” with Famous
Players. A player works at the various concessions operated by the theatre
selling popcorn and other snacks. They also work at other concessions at the
theatre such as Pizza Hut and New York Fries. He worked in the box office and
did clean up duties. The duties of a player involved heavy lifting because each
concession had to be stocked and restocked several times during a shift. Mr. De Gaye
was a good employee and, when he graduated from high school, Famous Players
promoted him to the position of shift supervisor. As a supervisor, he was in
charge of the staff working at the concessions, but also had the same duties as
a player, including stocking the concession stands. A shift supervisor was also
in charge of counting inventory each night and preparing an accounting of the
monies taken in during the shift.

[5]            
Mr. De Gaye continued to be promoted because he was not only a
good worker, but he was also efficient, smart, and enthusiastic about his job.
In 2001, he was promoted to assistant manager and in 2002 he was promoted to
theatre manager. Just prior to the accident Mr. De Gaye’s annual
earnings were between $30,000 and $32,000. He was expected to work 45 to 50
hours per week. While the physical demands of the job lessened with each successive
promotion, it is apparent that Mr. De Gaye was still required to
transfer stock from the loading bays or the stock room to the various
concessions during the busy times, to clean up if it was a busy night or the
theatre was short of staff, to sell product at the concessions, and help the
projectionists move heavy film prints. His job as manager also involved a great
deal of standing and walking; and he was required to constantly be on the
lookout for problems. If there was a problem area, he was required to help out
the players.

[6]            
Prior to the accident Mr. De Gaye was very fit. As a young
person, Mr. De Gaye was overweight and, while still in high school,
he decided to change this situation. Mr. De Gaye began attending the
gym on a regular basis; he did cardiovascular exercise to lose weight and
anaerobic exercise to build muscle mass. After he graduated from high school in
2000, Mr. De Gaye continued with this rigorous exercise regime and
increased his running and gym workouts to one hour cardio and one hour weights
five to six days per week. As a result of this regime, he lost about 30 pounds
and became extremely fit. Being healthy and fit made Mr. De Gaye feel
good about himself and his life. This fitness routine enabled him to work
harder at his job and to consider other jobs for the future that required
physical strength and stamina such as a police officer.  Mr. De Gaye
also participated in recreational sports such as basketball, golf, hockey and
football.

[7]            
Mr. De Gaye called witnesses to corroborate the physical
requirements of his job with Famous Players and his overall state of health
just prior to the accident. Paul Marsden worked for Famous Players from 1997 to
2006. He worked with Mr. De Gaye as a player and later when they were
both promoted to shift supervisor, assistant manager and manager. Mr. Marsden
testified that Mr. De Gaye was always a hard worker; he raced around
the theatre on every shift transferring large loads of stock to the concession
stands without using the dolly which slowed him down. Mr. Marsden observed Mr. De Gaye
regularly carrying three large popcorn bags over his shoulder or three large
cans of canola oil. From the evidence of Mr. De Gaye and Mr.
Paskevich three popcorn bags may be somewhat exaggerated; however, it is apparent
that the job involved heavy lifting and Mr. De Gaye was more than
able to handle such demands due to his fitness level.

[8]            
As a manager, Mr. Marsden continued to do stock transfers, count stock
when it was delivered, and put stock away on the shelves if the other staff
were busy. Stock was usually delivered on days when there were few players
working so the job of shelving it commonly went to the manager. The manager
walked or stood the entire shift, except when doing cash at the end of the
night. Managers rarely took breaks except if the theatre was not busy. It was
also common for the manager to have to fix something in an awkward position or
clean up a spill or broken glass. Although the lifting and carrying
requirements of the job lessened when Mr. De Gaye became a manager,
they remained an ever present part of the workday.

[9]            
Mr. Marsden also socialized with Mr. De Gaye. They played
basketball and went to the gym together. While Mr. Marsden did not always
exercise regularly, Mr. De Gaye worked out at the gym four or five
times per week. Mr. Marsden regarded him as very fit.

[10]        
Martin Paskevich was employed as operations manager for Famous Players
from 1996 to the fall of 2006. He became Mr. De Gaye’s mentor. Mr.
Paskevich took notice of Mr. De Gaye right from the beginning as his
sales record was the highest among the many employees hired by Famous Players.
He was targeted for promotion before many senior employees. Mr. Paskevich
testified that Mr. De Gaye was, in all respects, physically fit for
the job of manager. He regarded Mr. De Gaye as the strongest and most
fit among his staff. While he was slightly overweight when first hired, Mr.
Paskevich noted that Mr. De Gaye’s physical fitness improved
drastically over the years due to his constant exercise regime.

[11]        
Mr. Paskevich characterized Mr. De Gaye as a very dynamic
person with a positive work ethic and a positive attitude generally. He often
had discussions with Mr. De Gaye about his future, including
discussions about becoming a police officer. Because Mr. De Gaye had
high moral standards, a unique ability to multitask in a stressful environment,
and an ability to exercise good judgment on the fly, Mr. Paskevich felt he
would make a fine police officer. Mr. De Gaye became convinced that
he should strive for a job in law enforcement or become a firefighter. Mr. De Gaye
worked out in the gym so that he could achieve the physical standards required
for this type of work. Mr. De Gaye also took first aid training and
became the in-charge first aid officer at the theatre. In March 2005, he was
still trying to decide whether to apply for a job as a police officer or a
firefighter.

[12]        
 Mr. Paskevich testified that because the shift supervisor was a hands-on
position similar to the player job functions, it was the assistant managers and
the managers who commonly transferred stock to the concession stands. All the
employees worked as a team and thus whoever was available first did the job.
All the stock was stored in large containers and the concessions had little
storage room. Thus stock transfers were always heavy and occurred many times
during a shift. Potato sacks weighed 50 kilos and popcorn bags weighed 25 and
40 kilos. Mr. Paskevich also testified that managers have to be physically fit
with good stamina. He once calculated that a manager walks an average of five to
eight kilometres during a shift at a fast pace.

[13]        
Lastly, Mr. De Gaye’s mother testified that her son was a
happy, outgoing man before the accident occurred. He was a focused person who
was very close to his family. He regularly visited with the family and often
talked about his work and his social life. Mr. De Gaye had lots of
friends and regularly socialized with them. He was confident and had good
posture.

B.       The Circumstances Surrounding the Accident on March 16, 2005

[14]        
On the evening of the accident Mr. De Gaye was at Mr.
Marsden’s home in Surrey. They were going out to dinner with friends in Langley
and headed out in separate vehicles. At the intersection of 92nd Avenue and
132nd Street, he was struck by the defendant, Baljinder Bhullar, who ran a red
light. Mr. Bhullar’s vehicle struck Mr. De Gaye’s Mazda Protégé in
the front driver’s side so quickly that he did not have time to brake. Mr. De Gaye’s
vehicle spun clockwise several times and came to rest about 25 feet west of the
point of impact and immediately adjacent to a large brick sign in the parking
lot of a corner store. Mr. Bhullar’s vehicle came to rest several metres south
of the intersection on 132nd Street. Mr. De Gaye did not believe that
he lost consciousness.

[15]        
Mr. De Gaye described the impact as severe; however, the
airbags did not deploy. He was wearing a shoulder strap and seatbelt at the
time. After impact, Mr. De Gaye’s head and left shoulder violently
struck the pillar, where the seatbelt is attached, on the driver’s side of the
vehicle. The plastic cover for this seatbelt was damaged in the collision at
the point of impact. The damage to the Mazda was so severe that it had to be
written off.

[16]        
It took a few minutes for Mr. De Gaye to leave his vehicle. He
felt as if he was in shock. He immediately felt pain in his left shoulder and
there was a painful lump on the left side of his head. Mr. De Gaye
was also feeling stiffness and soreness in his neck and lower back. Although he
approached Mr. Bhullar, they had a language barrier and could not communicate.
Thus Mr. De Gaye returned to his vehicle and waited for the police to
arrive.

[17]        
Shortly after the collision Mr. Marsden arrived on scene. Although Mr. De Gaye
recalled that he telephoned his mother and sister, he had no memory of their
conversation. The police and ambulance attendants arrived on scene and talked
to him briefly; however, he had no recollection of their discussion. It is
apparent that Mr. De Gaye declined an offer to be taken to the
hospital, but he had no recollection of these events. Although in discovery Mr. De Gaye
indicated he did not go with the paramedics because he thought he was “okay”, he
testified that he was in shock and disoriented and did not really know what was
happening to him. Mr. Marsden’s mother arrived on scene and Mr. De Gaye
was invited back to her home, which was only a block away from the collision
site.

[18]        
After a short time at Mr. Marsden’s home, Mr. De Gaye’s
shoulder, neck and back pain became worse; he developed a severe headache, and
became dizzy and lightheaded. Mr. Marsden drove him to the Surrey Memorial Hospital
and he was admitted to the emergency ward. Mr. De Gaye remained at
the hospital for several hours before he was discharged.

[19]        
Mr. Marsden did not witness the collision, but he was only seconds away
when it occurred. He came to the intersection and saw Mr. De Gaye’s
vehicle “sticking out” of the grocery store sign. The Mazda had spun around and
struck a bush before hitting the brick sign, which had one of its bricks
knocked out.  Mr. Marsden took photographs of Mr. De Gaye’s vehicle
and of the accident scene on the evening of the accident and the next day. He
noted that Mr. Bhullar’s vehicle came to rest in the oncoming lane of traffic
on 132nd Street. Mr. De Gaye testified that his vehicle came to rest
beside the brick sign, but did not strike it.

[20]        
When Mr. Marsden first approached Mr. De Gaye, he was getting
out of his vehicle. He asked Mr. De Gaye what happened and if he was
okay. Mr. De Gaye did not know what had happened and seemed confused.
He said he was dizzy and his shoulder hurt. When asked to describe Mr. De Gaye,
Mr. Marsden testified that he was in shock, confused, wide-eyed and surprised.
His adrenaline appeared to be running. Mr. De Gaye said he hit his
shoulder and his head and Mr. Marsden could see a mark on his forehead that
later developed into a bruise above his eyebrows.

[21]        
Mr. Marsden recalled that Mr. De Gaye did not want to go to
the hospital in the ambulance. He still wanted to go to dinner but was clearly
in shock. They went back to Mr. Marsden’s home and he drove Mr. De Gaye
to the hospital after about 30 minutes because the pain in his shoulder
worsened and he continued to be dizzy.

C.       Impact of the Accident on Mr. De Gaye’s Life

[22]        
About a month after the accident, Mr. De Gaye continued to
have a severe headache almost daily and every two days he would get a migraine
headache. His neck was stiff and he had a restricted range of motion on the
left side. The left shoulder was painful and weak. His lower back was sore and
became worse when he sat, stood or walked. The headaches disrupted his sleep.
During the daytime the headaches began with increased pain in his shoulder
which would progress to the left side of his neck and then into his face. The
throbbing pain would incapacitate him. For relief, he had to lie down until the
headache passed. Mr. De Gaye used anti-inflammatory and pain
medication prescribed by his family doctor and used Advil for the migraine
headaches. Mr. De Gaye also became more emotional and often broke
down and cried even when watching television.

[23]        
After about three months, the severe headaches began to lessen and, by
one year after the accident, the severe headaches had disappeared. Mr. De Gaye
continued to have regular headaches daily and migraines two or three times each
month. The migraines continued to disrupt his sleep but the other headaches
could be managed with Advil. Over time the headaches disrupted his sleep
permanently. Mr. De Gaye could no longer get up early to attend the
gym as he had done before the accident. He had difficulty getting out of bed
before 9:00 a.m. Exercise continued to put a strain on his neck and, if he
walked or stood for too long, he would develop a headache. Mr. De Gaye’s
left shoulder was still painful and it felt weaker. He also developed a
tingling sensation in his left arm, hand and fingers. The shoulder became more
painful with activity and the tingling sensation became more noticeable. His
neck continued to be sore with a restricted range of motion. Prolonged sitting,
walking or standing made the neck pain worse and Mr. De Gaye found
his neck injury restricted his weightlifting at the gym, disrupted his sleep,
and interfered with sports he attempted to play. The low back pain continued to
be triggered by prolonged sitting, standing or walking. However, the low back
pain dissipated after a relatively short time.

[24]        
These injuries forced Mr. De Gaye to lead a less active
lifestyle. He stopped going to the gym regularly and restricted his workouts.
For the first three months after the accident he could not go to the gym at
all. Thereafter, the workouts were primarily rehabilitation exercises. When Mr. De Gaye
was able to get back into his regular exercise program, he was forced to use
lower weights and could only do some of the pre-accident exercises. The
cardiovascular exercise hurt his shoulder and he would have to take breaks. He
gained weight. He stayed at home most evenings and his girlfriend left him
because he did not wish to socialize as they did before the accident. He no
longer participated in recreational sports.

[25]        
Two years after the accident, Mr. De Gaye’s headaches came
back every few days and his migraines occurred two or three times in a three
month period. In discovery he said these headaches occurred once or twice every
three months. In 2008 he could go a month without a migraine headache. The
migraines could last up to five hours. While his neck was still sore, it seemed
to be getting better. Mr. De Gaye continued to have some restricted
range of motion on the left side and there was intermittent pain that increased
with prolonged walking, sitting or standing. The left shoulder pain had
improved slightly; it was intermittent and increased with activity. The tingling
sensation down the left arm, hand and fingers also continued to be present. The
low back pain had improved but Mr. De Gaye would notice it with
prolonged sitting, walking or standing. His emotional state had not improved
significantly and he gained more weight. Mr. De Gaye occasionally
shot a few basketball hoops, but he did not return to his other recreational
sports. He continued to attend the gym three or four times per week, but had to
design a workout that avoided the use of the left shoulder.

[26]        
Mr. De Gaye attended for physiotherapy treatments shortly
after the accident and until December 2005. His physiotherapist recommended a
series of back and abdominal exercises that he did regularly. He also did the
recommended stretching exercises. Although Dr. Vaisler, who is an orthopaedic
specialist, advised Mr. De Gaye to attend a shoulder and neck
rehabilitation program, he did not follow this recommendation because at that
time he was attending physiotherapy sessions and doing regular exercises to
strengthen his back and shoulder. He also purchased an Obusforme for driving as
suggested by Dr. Vaisler. Mr. De Gaye discontinued the physiotherapy
sessions when ICBC declined to pay for any further treatments due to the lack
of funds; however, Mr. De Gaye continued to perform the recommended
exercises at home. Mr. De Gaye testified that he discontinued
physiotherapy because it was too expensive and did not appear to be improving
his shoulder pain. Although Mr. De Gaye could have spent less on
recreational activities outside of work to pay for physiotherapy, he believed
that having a social life was important for his wellbeing and happiness
considering the pain and physical discomfort he was dealing with on a regular
basis.

[27]        
Three years after the accident, Mr. De Gaye’s headaches and
migraines were less frequent. His neck was about the same. His left shoulder
was still painful and the pain was aggravated by lifting overhead, reaching
forward or to the side, and when his arms were behind his back. The tingling
sensation continued to be noticeable but not as often. The low back pain was
essentially resolved with only infrequent flare-ups. His weight had come down;
however, he was still more emotional than before the accident. Mr. De Gaye
continued to work out in the gym regularly and his ability to lift weights
improved over the years.

[28]        
At the time of trial, Mr. De Gaye’s headaches and migraines
were reduced in frequency. The regular headaches no longer bothered him. The
migraines occurred once every two months and he had recently received a
prescription medication for them from his family doctor. The neck pain was
better, but the range of motion on the left side was still restricted. Moving
the neck to the left side and holding it or moving it quickly caused discomfort.
The low back pain had disappeared. The shoulder pain was intermittent but still
aggravated by activity. In August 2008, Mr. De Gaye was given a
cortisone injection in his left shoulder by Dr. Vaisler. He testified that to
date the injection had not improved his shoulder pain or the tingling sensation
on the left side. Dr. Vaisler recommended surgery for the shoulder as the next
step in treatment, but Mr. De Gaye was fearful of this option.
Eventually he became convinced that his shoulder was not going to get back to
its pre-accident condition without surgery. As a consequence, effective October
2009 he has been on a two year wait list for the surgery. He has applied for a
consultation with Dr. Moolah and anticipates a one year wait for the
appointment and a further one year wait for the surgery.

[29]        
At present Mr. De Gaye attends the gym three to five times per
week. He is not yet able to do all his pre-accident exercises and still lifts
less weight than he did before the accident. He notices improvement in his strength
each year. What he can lift is, however, quite substantial. Mr. De Gaye
can do lat pulls overhead with 100 to 110 pound weights; 8 to 10 chin ups with
his entire body weight; and shoulder presses with 20 to 45 pound weights on a
good day. By September 2009 he could also do heavier bench presses than before
the accident. He was also able to run on a treadmill for 60 minutes, taking four
to five breaks. Lastly, Mr. De Gaye’s body weight has gone up and
down since the accident and at present he is somewhat heavier than prior to the
accident. To correct this situation, Mr. De Gaye has started to
concentrate on cardiovascular exercise.

[30]        
The injuries Mr. De Gaye received in the accident affected his
work at Famous Players. Mr. De Gaye was on a week’s vacation when the
accident occurred. He returned to work full time after the vacation concluded.
Although he could still do the work, Mr. De Gaye found that he had to
be careful about lifting heavy objects and had to use the dolly and get help
from others when doing stock transfers. Mr. De Gaye also needed to
take more breaks from the walking and standing during a shift. The standing and
walking required during a shift aggravated the pain from his injuries and he
had to leave work early on occasion due to headache pain. Mr. De Gaye
did not take more time off after the accident because he could not afford to
lose his salary and he had no disability insurance.

[31]        
Mr. De Gaye transferred to the Famous Players in Richmond in
August 2005 because it was a larger theatre and there were more employees to
help with the stock transfers. After about a year he transferred to a theatre
in Surrey. Mr. De Gaye left Famous Players altogether in October
2007. He took a job with Starbucks as a manager with an annual salary of
$39,000. In 2008 and 2009, he received salary increases and now earns $42,000
annually. The primary reason for this move was to take advantage of the
increase in salary and the promotional opportunities. He also believed there
would be more flexibility in his work schedule. The work as a manager at
Starbucks involves heavy lifting; however, the distances travelled with the
heavy loads are substantially shorter than at Famous Players. The most
difficult aspects of this job continue to be the physical demands placed on Mr. De Gaye
due to his shoulder injury and the restricted movement in his neck. The more
difficult tasks include lifting heavy coffee urns on a regular basis, taking
out the garbage which can include 50 pounds of coffee grounds, stocking shelves
overhead, and mopping and sweeping floors. Reaching and stretching movements
are the most difficult and he compensates for the right shoulder with his left
shoulder. Mr. De Gaye is permitted to rest during the shift and these
breaks permit him to recover somewhat from the aggravation of his pain,
particularly in the left shoulder area.

[32]        
Mr. De Gaye testified that he does not plan to stay with
Starbucks. If he recovers from his injuries, Mr. De Gaye plans to
apply for a job in law enforcement or may go back to school for a career in
sports medicine. He has wanted to become a police officer since attending
university. His research revealed that police officers start at a salary of
$44,000 to $45,000 per year and, after three years, they earn $72,000. Mr. De Gaye
has investigated the fitness test required for police officers and believes
that he could not complete it successfully. He has not actually attempted the
fitness test. Mr. De Gaye testified that he met the other
prerequisites imposed on new recruits by the police academy; however, he has
not carried out the written requirements, the criminal record check or the lie
detector test.

[33]        
Mr. Marsden also testified about the impact of the accident-related
injuries on Mr. De Gaye’s ability to work and his lifestyle. Mr. De Gaye
did not work as quickly and they no longer had competitions to see who could
carry the most stock by hand. He began using a small cash cart to do stock
transfers instead of carrying the items by hand or pushing the large, heavy
dolly. He had to take rest breaks during shifts and complained about the pain
he was experiencing. While the physiotherapy seemed to help, Mr. Marsden
noticed that he could for the first time lift greater weights at the gym than Mr. De Gaye.
The pre-accident strength was gone. They concentrated on chest and bicep
machines and did not do lat pulls until one or two years after the accident.
Mr. Marsden also noted that Mr. De Gaye did exercises at the gym to
strengthen his shoulder and his back. The weight on his left side was always
less than on the right and he did not push weights over his head. Mr. De Gaye
could not play basketball because he had difficulty lifting his left arm above
shoulder level. Because he could not exercise as before, Mr. Marsden noticed
that Mr. De Gaye gained weight. He was also withdrawn and did not
socialize as much as before the accident and he did not discuss his plans to
become a police officer or a firefighter.

[34]        
As noted, six months after the accident Mr. De Gaye
transferred to a Richmond theatre; however, Mr. Marsden continued to spend time
with him after work. They played video games together. In October 2007, Mr. De Gaye
left Famous Players and went to work for Starbucks. He told Mr. Marsden that he
may have better career prospects with this company and felt the physical
demands may be less in this type of work. The hours were also better. Instead
of working 10 to 12 hours per shift, he could work 9:00 a.m. to 5:00 p.m.
days.

[35]        
Mr. Marsden testified that Mr. De Gaye’s ability to work out
in the gym has improved over time and he currently goes to the gym several
times per week. However, Mr. Marsden does not believe that Mr. De Gaye
has reached his pre-accident fitness level yet.

[36]        
Mr. Paskevich testified that the March 16, 2005 accident was the first
day of Mr. De Gaye’s vacation. When he returned to work, he was in
rough shape and seemed to be an entirely different person. He no longer stood
straight and he was very slow compared to his pre-accident work pace. He had to
take rest breaks whereas before the accident he never took breaks. Mr. De Gaye
was not completing his duties in a timely way and no longer did the extra
things that made the business run smoothly. Mr. Paskevich would step in and do Mr. De Gaye’s
duties or have a supervisor complete them. Often he would send Mr. De Gaye
home early because it was apparent that he was too tired to finish the shift. Mr. De Gaye’s
ability to lift product and push the large dolly was substantially reduced
after the accident. Whereas before the accident Mr. De Gaye could
push a dolly filled with pallets of stock, after the accident he required help
with the dolly and began using the small cart to move even one bag of popcorn.
After the accident, Mr. Paskevich would not permit Mr. De Gaye to put
away films in the projectionist’s room on his own because he could not manage
the weight. He would get someone to help Mr. De Gaye with this
function. Mr. De Gaye was also not actively involved in stocking shelves
after product deliveries due to his injuries.

[37]        
As the months passed, Mr. Paskevich noticed that while Mr. De Gaye
learned to cope with the pain, he became quiet and withdrawn. It did not seem
that he was getting better to any significant degree. He was no longer a
cheerful person and he gained weight.

[38]        
Mr. Paskevich left Famous Players in the fall of 2006 and has not seen Mr. De Gaye
since that time. He testified that when he last saw Mr. De Gaye at
that time, he had not returned to his pre-accident state of health.

[39]        
Victoria Powell works for Starbucks and since July 2008 Mr. De Gaye
has been her manager. She has since been promoted to manager; however, because
their coffee shop is very busy, they still work together. She testified that
the managers at Starbucks do not sit at a desk; they are required to do heavy
lifting, to scrub floors, receive and put away stock deliveries, and clean out
the bathrooms. The managers work alongside of the employees, particularly when
it is busy. Mr. De Gaye has difficulty lifting the heavy garbage cans
full of coffee grounds, coffee urns, syrup containers, and large bags of coffee
beans. It is also difficult and painful for him to scrub floors and he does not
use his left shoulder to lift items over his head or pull them down from a
shelf. He constantly rubs his shoulder because it is painful and brings a
heating pad to work to help relieve the pain. He also regularly uses Tylenol to
mask the pain. Mr. De Gaye is often late for a shift or leaves early
because of the pain and he regularly takes time off for doctors’ appointments.

[40]        
Mr. De Gaye has adapted to these physical restrictions by
delegating the heavier jobs to other employees and by dragging coffee bags or
the garbage bin across the floor. When stocking shelves above his head, Mr. De Gaye
does it slowly with breaks and it is apparent that he struggles with this task.
Throughout the day he takes rest breaks. Ms. Powell testified that she no
longer permits Mr. De Gaye to scrub the floors because the reaching
motion with his arm causes him so much shoulder pain. Ms. Powell feels that Mr. De Gaye’s
ability to do the heavy work has declined since she first began working with
him regularly in August 2008. If he works a particularly long shift, he will be
in too much pain to work the next day.

EXPERT MEDICAL OPINIONS AND MEDICAL EVIDENCE

[41]        
Dr. Cimolai gave evidence as Mr. De Gaye’s family physician
and not as an expert. Mr. De Gaye’s regular family physician retired
and thereafter he went to a local clinic where Dr. Cimolai worked. Mr. De Gaye
saw Dr. Ibrahim in the same clinic on March 17, 2005 and Dr. Cimolai on March
19, 2005. At this time Dr. Cimolai noted that Mr. De Gaye complained
of low back pain and shoulder pain; that his temple and jaw were sore due to
impact with the seatbelt strap.

[42]        
On July 18, 2005, Dr. Cimolai examined Mr. De Gaye and noted a
muscle spasm in his neck; range of motion was fine but there was pain in the
left scapular and shoulder region. He prescribed Flexeril and Naproxen. The
doctor recommended additional physiotherapy and diagnosed a grade one soft
tissue injury. These matters were recorded in a CL-19 form that was forwarded
to ICBC. This CL-19 form did not indicate that Mr. De Gaye was
disabled from working full time according to the patient’s statements. Also,
based on Mr. De Gaye’s advice, Dr. Cimolai recorded that he could do
his non-work activities.

[43]        
Dr. Cimolai again saw Mr. De Gaye on August 12, 2005 and on
this occasion he reported dizziness but the neurological examination results
were normal. On July 10, 2006, Dr. Cimolai referred Mr. De Gaye to a
physiatrist, Dr. Jaworski, because of the ongoing pain due to the accident and,
in particular, to investigate thoracic outlet syndrome. This referral was based
on a recommendation by Dr. Hunt. On July 19, 2007, Dr. Cimolai noted that Mr. De Gaye
was still having headaches that were not relieved with Advil. He was no longer
doing physiotherapy. Again Mr. De Gaye saw Dr. Cimolai on May 16,
2008 and he complained of neck and shoulder pain off and on and increased pain
with gym activity. At this time Mr. De Gaye was receiving shoulder
cortisone injections from Dr. Vaisler. On September 29, 2009, Dr. Cimolai
prescribed a new drug for Mr. De Gaye’s migraine headaches. Dr.
Cimolai believed these headaches were due to tension from the neck and shoulder
pain. He referred Mr. De Gaye to Dr. Telfer, who is an orthopaedic
surgeon, for the shoulder pain.

[44]        
In cross-examination, Dr. Cimolai outlined a number of reasons why he
may not record all of a patient’s complaints during a visit. Even serious
complaints may not be recorded if there were multiple injuries. Dr. Cimolai did
not necessarily record all of his examination findings but would usually record
his treatment recommendation and prescriptions.

[45]        
Dr. Ibrahim testified that his first visit with Mr. De Gaye
was on March 17, 2005. He reported feeling dizzy, with a tingling in the left
hand and weakness. There was pain in the upper left arm and a stiff neck. On
examination, he found a normal range of motion with a neck muscle spasm
posterior to the left side. There were no neurological deficits, contusions or
bruises and no tenderness at the neck, arm or shoulder. He diagnosed a whiplash
injury and soft tissue injury to the left upper arm and lower arm. In November
2005, Mr. De Gaye was not examined; he attended for pain relief and
the doctor’s impression was muscle strain left trapezius. He prescribed
Naproxin and Flexeril. Dr. Ibrahim had no independent recollection of his
sessions with Mr. De Gaye and acknowledged that while he attempts to
record the major complaints, he could have omitted to record some symptoms
relayed by Mr. De Gaye. He had a very busy practice and normally saw
up to 40 patients in a day.

[46]        
Dr. Hunt, who is a neurological surgeon, conducted an independent
medical examination of Mr. De Gaye on May 16, 2006 to determine if he
had suffered a head injury during the accident. After taking a history and
conducting a physical examination, Dr. Hunt concluded that Mr. De Gaye
suffered a cerebral concussion during the accident despite not recalling a period
of unconsciousness. In Dr. Hunt’s opinion, this diagnosis is supported by the
fact that Mr. De Gaye struck his head during the collision and
subsequently developed a significant headache which was very severe in nature,
coupled with dizziness, light-headedness, memory disturbances, personality
changes, and altered sleep patterns. Dr. Hunt was also of the opinion that Mr. De Gaye
suffered a substantial muscle and ligamentous injury to his entire spine with
the primary area of injury being the cervical spine as well as his left
shoulder girdle.

[47]        
Dr. Hunt recommended that Mr. De Gaye moderate his physical
activities and reduce his mental stress to resolve the headaches and the
vertigo he was experiencing. The sleep disturbance was expected to resolve with
time. He also ordered an MRI of the brain which was normal. Dr. Hunt testified
that the injury caused by a concussion is not normally seen in an MRI unless it
is severe. When people have successive concussions, their symptoms are worse
and last longer. It was his opinion that people like Mr. De Gaye, who
are very active and conscious of their fitness level, are more affected by
disabling injuries. They need the exercise that is now foreclosed to them to
help them concentrate at work and calm their nerves. In cross-examination, Dr.
Hunt agreed that it was likely Mr. De Gaye’s concussion was mild in
nature unless his residual headaches were related to the head injury. These
headaches could also be related to his neck, back and shoulder injuries.

[48]        
Dr. Hunt’s report illustrates some inconsistencies in Mr. De Gaye’s
history since the accident. It was his impression that Mr. De Gaye
had not been able to go back to the gym until about two months prior to the
examination in May 2006. However, Dr. Hunt disagreed with a suggestion that by
the time he examined Mr. De Gaye, all the headaches had disappeared.
It was only the severe, left side facial pain that had gone at that point.

[49]        
Dr. Vaisler, who is an orthopaedic surgeon, saw Mr. De Gaye on
November 26, 2006. After reviewing Mr. De Gaye’s history and
conducting a physical examination, he concluded that Mr. De Gaye
suffered a soft tissue muscular-ligamentous injury to his neck and low back,
along with post traumatic sub-acromial impingement of his left shoulder as a
result of the motor vehicle accident. Dr. Vaisler opined that Mr. De Gaye’s
neck injury had improved since the accident; however, he still had pain in the
extremes of movements and an objective spasm in the left trapezius muscle
belly. He recommended strengthening and posture exercises and an Obusforme to
minimize the pain. He also recommended an education program to teach Mr. De Gaye
how to minimize the pain and reduce exacerbations. Dr. Vaisler believed that
the neck pain and stiffness would likely resolve over the next six to nine
months; however, there was also a definite possibility that he could experience
intermittent annoying and sometimes disabling pain into the foreseeable future.

[50]        
In respect of the low back, Dr. Vaisler opined that Mr. De Gaye’s
soft tissue injury would likely be triggered by prolonged sitting and standing,
repetitive bending, heavy lifting, fatigue and psychological tension. He was of
the opinion that this injury would eventually heal without permanent
disability. With a proper exercise program, the back symptoms would likely
resolve over the next six months.

[51]        
In regard to the left shoulder, Dr. Vaisler says at page 6 of his report
dated January 26, 2007:

He most probably sustained a blow
to the left shoulder against the seat belt. This most probably resulted in
swelling and thickening of the subacromial bursa of his left shoulder. As a
result, the thickened subacromial bursa and the insertion of the rotator cuff
becomes subject to entrapment or impingement between the greater tuberosity of
the humerus and the overlying acromion with reaching activities. Typically
shoulder symptoms are present with sustained or repetitive reaching at and
above the shoulder level, sudden reaching, lying on either shoulder at night,
and dressing. He has had very little if any treatment directed to his left
shoulder since the motor vehicle accident, other than the use of
anti-inflammatory medications.

[52]        
Dr. Vaisler recommended a regular program of rotator cuff and scapular
stabilization exercises and a course of physiotherapy for instruction in these
exercises. If Mr. De Gaye did not improve in six to eight weeks, Dr.
Vaisler recommended cortisone injections to reduce the swelling. If the
injections were unsuccessful, surgery was recommended after the nature of the
injury was confirmed by an arthroscopy. Mr. De Gaye did not engage in
further physiotherapy as suggested by Dr. Vaisler.

[53]        
Lastly, Dr. Vaisler concluded that while Mr. De Gaye could
continue working for Famous Players, he was disabled from any heavy lifting,
repetitive reaching and prolonged standing because of his symptoms. At this
time Dr. Vaisler believed there would be no permanent significant work
disabilities. If the shoulder symptoms did not resolve, he would be restricted
permanently from jobs involving sustained or repetitive reaching at and above
shoulder level or heavy lifting above waist level, including any sports
requiring overhead movements. Dr. Vaisler testified that because he was only
doing an independent medical examination, he was unsure if any of his
recommendations were passed on to Mr. De Gaye.

[54]        
Dr. Vaisler saw Mr. De Gaye again on August 28, 2008, as a
result of a request by his family doctor, to assess the shoulder injury. He did
not assess the neck or back injuries and did not explore Mr. De Gaye’s
symptoms in this regard. On examination Mr. De Gaye had full,
painless range of motion in his cervical spine. In regard to the left shoulder,
however, there was only fair scapular control (which indicates muscle weakness)
and tenderness in the subacromial space. There was also mild pain on the
extremes of motion. The impingement findings were moderate with abduction and
internal rotation. There was normal strength and no instability. Based on these
findings, Dr. Vaisler concluded that the subacromial impingement of the left
shoulder continued to be present and he treated Mr. De Gaye with a
steroid injection. In regard to the prognosis for recovery, Dr. Vaisler says at
page 3 of his report dated October 10, 2008:

At this point in time, it is more
likely than not that his left shoulder symptoms are going to persist in spite
of one or two steroid and local anaesthetic injections and in view of that the
next step is proceeding with a diagnostic arthroscopy of his left shoulder and
if the diagnosis of subacromial decompression is confirmed, as I expect it will
be, an arthroscopic subacromial decompression would be carried out.

[55]        
Dr. Vaisler ordered an ultrasound to rule out a tear to the rotator cuff
that could not be trimmed with arthroscopic surgery. The ultrasound report
indicated a “very tiny partial thickness bursal surface tear involving the
supraspinatus tendon laterally.” This tear only involved a small portion of the
tendon. Dr. Vaisler testified that in his opinion, surgery is likely to be
necessary to trim the tear. Mr. De Gaye will require a course of
physiotherapy treatments after the surgery and will have his shoulder in a
sling for three to six weeks to permit the tissue to heal.

[56]        
In cross-examination, Dr. Vaisler testified that when he first saw Mr. De Gaye
in 2006, he expected his neck and back pain to resolve with exercise and physiotherapy;
however, 15% of patients have residual neck and back pain stemming from soft
tissue injuries that does not resolve regardless of the therapies and exercise
they do. An education program can help these patients to deal with the pain and
improve their functioning. He also agreed there was a 60 to 70% chance that Mr. De Gaye’s
shoulder pain would resolve with a proper exercise program. Had Mr. De Gaye
followed such a program, it may have improved his work functioning. However,
Dr. Vaisler also testified that during an examination in October 2008, Mr. De Gaye
described the physiotherapy he had already received and the exercises he had
been doing since the accident. Given this information, and the time that had
elapsed since the accident, Dr. Vaisler opined that it was unlikely exercise
alone would repair the shoulder injury. On the other hand, Dr. Vaisler
testified that if Mr. De Gaye elects to have the shoulder surgery,
there is an 85 to 90% success rate for relieving daily pain and an 80% success
rate for relieving pain with sustained overhead movement and weightlifting.

[57]        
Dr. Vaisler acknowledged that Dr. Regan, who examined Mr. De Gaye
in June 2008, concluded there was no left shoulder impingement; however, Mr. De Gaye’s
symptoms were intermittent and this might explain the different findings upon
examination. Lastly, he agreed that weightlifters can develop shoulder
impingements if they lift too much weight or lift weights using improper
techniques.

[58]        
Dr. Stewart-Patterson conducted an occupational health assessment for Mr. De Gaye
on September 2, 2009. He is an expert in occupational medicine. Dr.
Stewart-Patterson found clinical evidence of impingement syndrome of the left
shoulder and a chronic soft tissue injury to the neck. While the ultrasound
indicated there may be a tear, Dr. Stewart-Patterson testified that the
existence of a tear in the suprasinatus muscle was consistent with his clinical
observations. It was his opinion that these injuries were likely caused by the
accident. Dr. Stewart-Patterson also diagnosed post-traumatic migraines or
cervicogenic headaches as also directly related to the accident. Dr.
Stewart-Patterson found Mr. De Gaye currently had impairment of the
cervical spine and the left shoulder. He also diagnosed transient impairment
from headache pain. In terms of signs or symptoms of impairment, Dr.
Stewart-Patterson found chronic left shoulder pain and chronic left neck pain;
recurrent severe headaches, disrupted sleep secondary to pain and headaches;
symptoms of depressed mood and anxiety; and decreased range of motion in the
left shoulder and neck along with tenderness in the neck, trapezius, and upper
back.

[59]        
Based upon Mr. De Gaye’s self report, Dr. Stewart-Patterson
identified his physical capacity at page 19 of his report dated September 4,
2009:

… his capacity for lifting is likely around 60 pounds as he
is lifting 30 pounds with each arm in bicep curls (elbow flexion), up to 8 reps
and for 2 to 3 sets in his weight training program.

He is capable of all limb
coordination and work related body positions such as bending, stooping and
crouching.

[60]        
Based on Mr. De Gaye’s diagnosis and current degree of
impairment, Dr. Stewart-Patterson found that he required the following
workplace restrictions:

1.   He should lift no more than 30 lbs regularly but he can
rarely and briefly lift up to 60 lbs.

2.   He is generally restricted from using the left upper
extremity for above shoulder or overhead work. He may rarely do this work up to
5 minutes per shift.

3.   His is restricted from prolonged repetitive reaching
with the left arm and sustained left arm reaching from the body.

4.   Keyboarding may exacerbate
trapezius muscle pain. He reported left shoulder pain after 30 to 45 minutes of
keyboarding. Likely then his keyboarding restrictions are to occasional (25% of
the shift) and to having short breaks every 45 minutes. Ergonomic adjustments
to his chair and desk are also recommended.

[61]        
Dr. Stewart-Patterson opined that Mr. De Gaye could work full
time hours; however, he also concluded that the work-related restrictions would
be permanent if Mr. De Gaye did not have shoulder surgery. If Mr. De Gaye
chose not to have the surgery, Dr. Stewart-Patterson is of the opinion that he
is likely at maximum medical improvement regarding the left shoulder based on
his current weight training program and the chronic nature of the injury. He
also felt that Mr. De Gaye was at maximum medical improvement in
regard to his cervical spine.

[62]        
In regard to current employability, Dr. Stewart-Patterson concluded that
Mr. De Gaye was not likely capable of the full duties of a theatre
manager. He is able to do his current job at Starbucks with weightlifting
accommodations and short breaks when experiencing shoulder pain. As a result, Mr. De Gaye
is less capable overall of earning income from all types of employment due to
his neck and shoulder injuries. In regard to his future employment prospects,
Dr. Stewart-Patterson concluded that Mr. De Gaye was not capable of
police work or employment with Sheriff Services because he cannot engage in
forceful restraint or control tactics due to his shoulder injury.

[63]        
Jess Padvaiskas, who is an occupational therapist, prepared a work
capacity evaluation for Mr. De Gaye dated May 28, 2008. Mr.
Padvaiskas found that Mr. De Gaye showed high levels of effort during
physical capacity testing and his self reports in respect of functional ability
were consistent with the clinical findings. In regard to functional
restrictions, he found Mr. De Gaye had reduced grip strength
bilaterally but could manage up to medium strength level. He was not suited to
prolonged repetitive reaching with the left arm away from the body and equal to
or above chest level. He was not well suited to resisted left arm activity and
demonstrated a reduced ability to sustain right arm mild forward flexion in
stooped postures. He was not suited to crawling and vertical ladder climbing.
His strength for lifting, carrying, pushing and pulling was limited to the
sedentary, light and select lower strength categories in the DOT index and
under the NOC criteria he was able to perform limited, light and select lower
to medium strength tasks. He had a sitting tolerance of 1.5 to 2 hours; a
standing tolerance of 2 hours, which lessens with concurrent left shoulder
activity. His performance improved with short rest and stretching breaks. He
was able to do full time work with accommodations.

[64]        
While the physical test results (Valpar 9, Perdue and MRMT) showed that Mr. De Gaye
was capable of greater weights levels, Mr. Padvaiskas testified that these
tests were only one factor in the overall assessment of a patient’s physical
capacity. It is also important to consider how the person performs the test;
whether there is a reduction in capacity over the course of the test and if the
person uses physical accommodations to perform the exercise. Mr. De Gaye
demonstrated a significant reduction in his left arm reaching and lifting
capacity over the course of the testing. He also demonstrated accommodations
such as pulling the weight closer into the torso for support and his lifting
posture deteriorated. Mr. Padvaiskas also compared Mr. De Gaye’s
right side performance with his left side performance to determine the
difference in capacities. Lastly, Mr. Padvaiskas testified that while Mr. De Gaye
performed the tests well in the short term, the deterioration in his
performance pattern during the exercise shows that he is restricted in his
ability to doing certain tasks on a continuous basis at work.

[65]        
Although he was not entirely suited to the Starbucks job, Mr. Padvaiskas
testified that Mr. De Gaye was able to function in this position with
accommodations, including the flexibility to delegate tasks and take rest
breaks. Mr. Padvaiskas came to the same conclusions about Mr. De Gaye’s
job as a theatre manager. Mr. De Gaye was not found to be suitable
for law enforcement jobs due to his physical limitations. His restrictions
primarily relate to a reduced tolerance for left arm reaching and strength
applications, particularly with outstretched left arm positions (at page 5).

[66]        
Dr. Regan, who is an orthopaedic surgeon, conducted an independent
medical examination of Mr. De Gaye on June 11, 2008. After reviewing Mr. De Gaye’s
medical history since the accident, and conducting a physical examination, Dr.
Regan concluded that Mr. De Gaye suffered a muscular-ligamentous soft
tissue strain of the left cervical paraspinal muscles and a left trapezial
muscle sprain/strain as a result of the accident. It was not his opinion that Mr. De Gaye
suffered a left shoulder impingement injury. Dr. Regan’s conclusions are
summarized in the following passages from his report dated June 18, 2008:

Opinion as to Etiology: It is clear that this gentleman
sustained a lateral acceleration/deceleration injury to his cervical spine
accompanied by a direct blow to his head and left shoulder against the inside
of the vehicle. This resulted in a soft tissue strain pattern in the paraspinal
muscles of the cervical spine and left trapezius plus a contusion to his cranium.
The burden of responsibility for these complaints lies with the motor vehicle
accident of March 16, 2005.

Prognosis: He has a very favourable prognosis although he has
been three years since his accident, his symptoms are slowing settling over
time. I continue to feel that they will improve, although he will be slow in
complete recovery. He would benefit from another course of physiotherapy with
introduction of acupuncture to manage soft tissue complaints of pain affecting
the trapezius muscle which is the complaint limiting him performing
recreational activities.

A course of massage therapy may also help the trapezial
muscle complaints. He does not have any sign of rotator cuff disease or
impingement syndrome and I would favour against any further investigations or
treatment of the left shoulder.

He most likely did have spasm and irritability of the scalene
muscles, which produced some irritability of the brachial plexus resulting in
numbness into his ipsilateral left hand. These are slowly settling and will
completely resolve as the muscle tension and spasm settles in his neck. I do
not believe he has further investigation or management of thoracic outlet or
brachial plexus irritability.

Surgical intervention will not
help this young man but additional time, massage and/or acupuncture treatments
will benefit him over the next two or three months and I believe his condition
will slowly resolve over the passage of time with no permanence of his pain
pattern.

[67]        
At the conclusion of the trial in October 2010, I permitted the
defendants to call Dr. Regan in rebuttal to Dr. Vaisler’s opinion that Mr. De Gaye
suffered from a shoulder impingement injury. Dr. Regan confirmed his opinion
that Mr. De Gaye’s shoulder injury was soft tissue in nature and that
the signs of a shoulder impingement were not present. In particular, Mr. De Gaye
exhibited negative signs in response to two well recognized tests for a
shoulder impingement; the Hawkins test and the Neer test. Dr. Regan did not
administer a third test (O’Brien’s) that can also indicate an impingement. In
addition, Dr. Regan testified that the location of the pain in the back of the
shoulder was not consistent with an impingement. The absence of any instability
in the shoulder or any laxity in the ligaments of the upper arm also supported
his opinion that Mr. De Gaye did not have a shoulder impingement.

[68]        
Dr. Regan did not consider the ultrasound report showing a tiny partial
tear of the bursal supraspinatus tendon altered his opinion. It was only one
factor in the diagnosis and did not in this case show fluid thickening in the
bursa. A more conclusive result could be obtained with an MRI. Further, Dr.
Regan opined that the fact Mr. De Gaye did not respond at all to the
steroid injections was a clear indication that there was no shoulder
impingement. For these reasons he believed that surgery would not assist Mr. De Gaye
to recover. In cross-examination, Dr. Regan acknowledged that in 20 to 30% of
the cases, the physician does not hit the targeted area when injecting cortisone
and this error margin may explain why Mr. De Gaye did not have any
pain reduction. He also agreed that Dr. Vaisler and Dr. Stewart-Patterson
detected positive results in response to the Hawkins and the Neer tests.
Lastly, Dr. Regan agreed that a patient’s symptoms can change over time and
that it may be possible that a second examination of Mr. De Gaye
would produce evidence of an impingement syndrome in his left shoulder.

[69]        
Dr. Tessler, who is a neurologist, performed an independent examination
on Mr. De Gaye on September 28, 2008. His opinion is summarized on page
6 of a report dated October 14, 2008:

As a result of the MVA on March 16, 2005 the patient suffered
the following injuries:

1.   Mild closed head injury which is not synonymous with a
brain injury. There is no indication that the patient sustained a significant
concussion. There is no reported loss of consciousness nor was there any
amnesia. The patient had headaches which were mild but became more accentuated
as time went on. These are post traumatic headaches but not due to a concussive
injury of the brain. He had cervical pain and some mild light headedness which
developed subsequently but mainly with exercise.

2.   Cervical strain injury with persistent pain and
tenderness in the left trapezius muscle. There is no evidence of nerve root
compression or irritation. He had some intermittent numbness in his left hand
involving four digits and this is likely due to some mild irritation of the
brachial plexus in the thoracic outlet. The symptoms are intermittent and there
is no definite weakness or neurological abnormality. These symptoms are not
constant and not disabling.

3.   The patient sustained a left
shoulder injury of soft tissue type. This is his most disabling symptom. It
limits him in his ability to exercise with consequent weight gain and not being
able to work out in the gym.

[70]        
In regard to the nature of his continuing disability, Dr. Tessler says
at page 6 of his report dated October 14, 2008:

The patient is not disabled from work but his recreational
activities have been curtailed because of the pain in his left shoulder and not
being able to work out in the gym and run as he was accustomed to prior to the
MVA.

The shoulder is his most problematic symptom and this is best
addressed by orthopaedic surgery. The pain in the left shoulder is not related
to a nerve or nerve root injury.

His complaint of not being
mentally sharp could in part be related to pain and some interference with his
sleep. There is no indication that the patient sustained any significant brain
injury.

[71]        
Dr. Jaworski, who is a physiatrist, saw Mr. De Gaye at the
request of Dr. Cimolai based on Dr. Hunt’s recommendation. His report dated
November 1, 2006, indicates the following impression:

Chronic myofascial pain syndrome
affecting primarily his left trapezius muscle… I encouraged him to stay as
physically active as tolerated. For pain he can use regular analgesics such as
Tylenol 8-hour pm. There are no contraindications for him to return to his gym
workout routine. Passive physical modalities are not likely to give him any
significant/lasting benefits. Consideration for tender point injection
therapy with the use of local anaesthetic can be given.

ARGUMENT

[72]        
Mr. De Gaye argues that as a result of the accident he
suffered injuries to his head, neck, left shoulder, and lower back. While the
lower back complaints resolved fairly quickly, Mr. De Gaye says that
he continued to experience neck pain, headaches, shoulder pain, left arm
weakness, tingling in his left hand and fingers, and dizziness a year after the
accident. When Mr. De Gaye saw Dr. Hunt in May 2006, he diagnosed a
cerebral concussion, a substantial muscle and ligamentous injury to the entire
spine with the primary injury to the cervical spine, and a significant muscle
injury to the left shoulder girdle. Dr. Hunt opined there was a brachial plexus
irritation in the thoracic outlet region. Two years after the accident, Mr. De Gaye
continued to suffer these severe symptoms from his injuries and Dr. Vaisler
diagnosed a soft tissue injury of the neck and back along with a subacromial
impingement of the left shoulder. Although the medical evidence to date
suggests the neck symptoms will resolve in the coming months, it also possible Mr. De Gaye
will continue to have re-occurring bouts of neck pain.

[73]        
Most significantly, Mr. De Gaye argues the medical evidence
establishes that he has a subacromial impingement secondary to the blow to the
left shoulder during the accident. This injury continues to cause Mr. De Gaye
pain and disability five years after the accident and, even with surgery, there
is only an 80% chance of complete recovery.

[74]        
Mr. De Gaye submits that an award of $80,000 for general
damages arising out of the accident is appropriate in all of the circumstances.
In support of this argument, he relies upon: Grant v. Diels, [1996]
B.C.J. No. 1765 (S.C.); Chong v. Tran, 2001 BCSC 1417; Heyes v.
Lanphier, 2003 BCSC 1126, Steward v. Berezan, 2005 BCSC 1812; and John
v. Landry, 2006 BCSC 1767.

[75]        
Mr. De Gaye argues that he suffered a loss of vacation days as
a result of the accident and that he should be compensated for the four to five
days he missed due to the injuries received. More significantly, Mr. De Gaye
argues he suffered a loss of earning capacity as a result of the accident. Mr. De Gaye
submits that the injuries he suffered adversely affected not only his
recreational activities, but they also affected his ability to work at the
Famous Players job and at the subsequent Starbucks job. Further, Mr. De Gaye
argues the medical evidence supports a conclusion that he is disabled from
heavy lifting, repetitive reaching, and prolonged standing due to his back and
shoulder injury. He has also lost his pre-accident capacity for recreational
weightlifting and fitness. While Mr. De Gaye can manage his job at
Starbucks, he depends on compensatory strategies, assistance from coworkers,
rest breaks, and a restricted scope of duties. Not only do Mr. De Gaye’s
injuries render him less capable for the job he now has, but his long term
desire to become a police officer can no longer be fulfilled due to the
injuries suffered in the accident.

[76]        
In support of his position, Mr. De Gaye says the real
possibility approach to the quantification of the loss of capacity should be
adopted: Pallos v. Insurance Corporation of British Columbia (1995), 100
B.C.L.R. (2d) 260 (C.A.); Miscisco v. Small, 2001 BCCA 576, aff’g [1999]
B.C.J. No. 1105 (S.C.); Bains v. Prasad, 2005 BCSC 1694; and Cipriano
v. Cipriano (1996), 22 B.C.L.R. (3d) 148 (C.A.).

[77]        
In regard to the cost of future care, Mr. De Gaye submits that
after the shoulder injury he will require three months of physiotherapy at a
cost of $1,800.

[78]        
Special damages, argues Mr. De Gaye, should be fully
reimbursed based on the receipts filed in the amount of $445.29.

[79]        
The defendants argue that Mr. De Gaye is entitled to $30,000
to $40,000 in general damages and provable special damages of $410.20. The
defendants submit that Mr. De Gaye suffered a mild concussion without
a loss of consciousness or disabling symptoms, headaches stemming from the neck
injury, a soft tissue strain to the left cervical paraspinal muscles, and a
left trapezius strain. The defendants argue the medical evidence does not
establish a shoulder impingement on the balance of probabilities given the
cogent opinion of Dr. Regan.

[80]        
The defendants argue that Mr. De Gaye has failed to prove a
past loss of employment earnings and there is no real and substantial
possibility of a future event leading to an income loss justifying an award for
loss of capacity. In the alternative, the defendants argue that at most an
award of less than one year’s salary would be appropriate in the circumstances.

[81]        
In regard to the symptoms suffered by Mr. De Gaye, the
defendants say the majority of the headaches experienced after the accident
disappeared a year after the accident and two years after the accident the
regular headaches were not bothering him. The neck symptoms gradually subsided
and full range of motion was seen by Dr. Vaisler in August 2008. Mr. De Gaye’s
low back pain resolved quickly and between January 2007 and January 2008, the
discomfort occurred only a few times each week. By August 2008, Dr. Vaisler
noted that Mr. De Gaye was at that time experiencing minimal pain in
his low back after prolonged standing. Mr. De Gaye admitted that by
the spring of 2008 his low back pain was not bothering him much and it was
fully resolved by November 2009. While the defendants acknowledge that Mr. De Gaye
has had ongoing shoulder pain since the accident, they argue the pain has not
been as severe or as disabling as claimed.

[82]        
The defendants submit that over time Mr. De Gaye’s physical
fitness level improved to the point where in September 2009 he could perform
all of the pre-accident weightlifting activities. While he gained weight, over
time Mr. De Gaye also lost the weight he gained. While there is some
evidence of difficulties in carrying out his job functions, overall Mr. De Gaye
was able to do the job at both Famous Players and Starbucks. He is currently
earning more than he earned prior to the accident. The defendants argue the
medical evidence, on balance, supports their argument that Mr. De Gaye
suffered no loss of functional or occupational capacity. The defendants also
argue that the medical evidence does not support any permanent disability.
Lastly, the defendants argue that there is insufficient evidence to prove that Mr. De Gaye
is not capable of passing the requisite police officers’ fitness test or that
he would otherwise qualify for this job. If Mr. De Gaye requires
surgery, the defendants say the evidence establishes an 85 to 90% success rate
in relieving shoulder pain with regular activities and an 80% success rate in
alleviating pain associated with heavy lifting above the shoulder.

[83]        
In regard to general damages, the defendants rely on: Chan v. Kao,
2009 BCSC 626; Chu v. Ponsford, 2008 BCSC 429; MacLaren v. Kucharek,
2008 BCSC 673; and Palmer v. Blake, 2003 BCSC 1219. In regard to loss of
capacity, the defendants rely upon Perren v. Lalari, 2010 BCCA 140 [Perren].

[84]        
The defendants also argue that Mr. De Gaye failed to take
reasonable steps to mitigate his loss. In particular, the defendants say that Mr. De Gaye
failed to take the remedial measures suggested by Dr. Vaisler and Dr.
Stewart-Patterson such as strengthening exercises, acupuncture and
physiotherapy. The defendants argue it is not reasonable to forego these
measures for financial reasons if Mr. De Gaye had discretionary
spending monies. In regard to loss of capacity, the defendants argue that Mr. De Gaye
has failed to mitigate by not taking more positive steps towards becoming a
police officer and by failing to agree to surgery at an earlier date. In
support of these arguments, the defendants rely upon Middleton v. Morcke,
2007 BCSC 804 and Antoniali v. Massey, 2008 BCSC 1085.

[85]        
In regard to future care costs, the defendants argue that because Mr. De Gaye
has been resistant to physiotherapy in the past, an award for the cost of this
treatment should not be made: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 (S.C.) and Izony v. Weidlich, 2006 BCSC 1315.

DECISION

A.       General Damages

[86]        
I am satisfied on the balance of probabilities that Mr. De Gaye
suffered moderately severe and disabling injuries as a result of the accident.
The injuries caused by the accident include: a mild concussion from striking
his head against the seatbelt shoulder strap harness; a moderately severe
whiplash injury to his cervical spine as a result of the force of the collision
and this injury caused headaches of varying severity and intensity, pain,
restricted movements, and disrupted sleep; and a low back soft tissue injury as
a result of the collision that caused pain and a restriction in movement. The
expert medical evidence relied upon by the defendants and Mr. De Gaye
unanimously agree that these injuries were caused by the accident.

[87]        
While the expert medical opinions are unanimous that Mr. De Gaye
also suffered a left shoulder injury during the accident when he struck the
seatbelt harness, there is a dispute as to whether the muscle and ligament
damage included thoracic outlet syndrome. Dr. Vaisler and Dr. Stewart-Patterson
believe that Mr. De Gaye has a shoulder impingement that would be
best managed by arthroscopic surgery followed by a three month recovery period
with physiotherapy. Their clinical observations and physical examinations
support this opinion. Dr. Vaisler and Dr. Stewart-Patterson also believe that
the findings in the ultrasound report are consistent with a shoulder
impingement and that this test corroborates their clinical observations. Dr.
Regan’s opinion was that Mr. De Gaye suffered a soft tissue injury to
his left shoulder; however, there was no evidence of an impingement based on
his clinical observations and physical testing. In his view, the ultrasound did
not conclusively evidence a thoracic outlet syndrome. Dr. Jaworski’s opinion
was that Mr. De Gaye had chronic myofascial pain affecting his left
trapezius muscle and his examination did not produce evidence of thoracic
outlet syndrome.

[88]        
These expert medical opinions are difficult to reconcile particularly
because the symptoms of the injury, as in this case, are not stable and vary
over time. All of the medical experts involved with Mr. De Gaye are
well qualified by their experience, education and training to give opinion
evidence in this field of medicine. Dr. Regan’s opinion is very persuasive;
however, he saw Mr. De Gaye only once in 2008 while Dr. Vaisler
continued to treat Mr. De Gaye after concluding an independent
medical examination in early 2007. Dr. Regan also acknowledged that Mr. De Gaye’s
symptoms could have changed since his examination in 2008 such that a subsequent
medical examination may possibly reveal new evidence to support a diagnosis of
thoracic outlet syndrome. Dr. Jaworski also examined Mr. De Gaye
early on and he did not have the benefit of the ultrasound report.

[89]        
On balance, I prefer the opinions of Dr. Stewart-Patterson and Dr.
Vaisler. Their opinions are supported by physical tests and clinical
observations over a combined period of almost three years between January 2007
and September 2009. While the cortisone injections have not relieved Mr. De Gaye’s
pain, there is a significant failure rate in the accuracy of such injections
and the ultrasound report suggests there is a mild shoulder impingement
according to the opinions of Dr. Vaisler and Dr. Stewart-Patterson.

[90]        
Although there are some minor inconsistencies in the evidence likely due
to fading memories, it is apparent that Mr. De Gaye’s recreational
activities and his ability to carry out his job have been significantly
affected due to the injuries caused by the accident. All of the injuries have
improved over time and, as a result, Mr. De Gaye has been able to
resume most of his pre-accident recreational activities. However, it is clear
that this has been a long and arduous struggle for Mr. De Gaye. He
has experienced the pain of severe headaches, neck pain and stiffness, lower
back pain and consequential sleep disruption. Mr. De Gaye also
experienced emotional sadness and stress due to a loss of physical capacity and
an inability to be socially active. He gained weight after struggling for years
to lose weight and achieve a high level of physical fitness. Lastly, to relieve
the pain symptoms in his left shoulder Mr. De Gaye must undergo
arthroscopic surgery and a three month recovery period.

[91]        
It is also apparent that Mr. De Gaye’s work performance was
adversely affected by his injuries. He could not do the job at Famous Players
with the same effort and enthusiasm as he had dedicated to this work before the
accident. Mr. De Gaye worked more slowly and was less capable of
lifting heavy loads, standing and sitting for long periods, and managing the
fatigue of long work shifts. While Mr. De Gaye was able to adapt
better to his job at Starbucks, his shoulder injury has limited the type of
work he can regularly perform and has necessitated accommodations and assistance
from other staff members. I was particularly impressed with the cogent evidence
of Ms. Powell concerning the difficulties Mr. De Gaye regularly
experiences in his attempts to carry out the work required of a manager at
Starbucks.

[92]        
While it is apparent that Mr. De Gaye’s loss of enjoyment of
life, physical pain, and emotional suffering has continued for over five years
since the accident, it is undeniable that the symptoms have drastically
improved since March 2005. The back and neck pain reoccur infrequently with
extended use or exercise. The primary injury remains the shoulder impingement;
however, there is an 80% chance that arthroscopic surgery will relieve the pain
symptoms even with repetitive use. The migraine headaches remain problematic
but controllable with prescription medication.

[93]        
The cases cited by the parties are helpful because they show the range
of possible damages for pain and suffering; however, each case must be decided
on its own particular facts. In light of the length of time Mr. De Gaye
has suffered from his injuries, the serious nature of those injuries and their
significant impact on his recreational and work life, balanced against the
improvements he has had over time and the high probability of successful
surgery for his left shoulder, I find that an award of $70, 000 is appropriate
in all the circumstances.

B.       Loss of Future Earning Capacity

[94]        
The nature of the court’s inquiry into future loss of earning capacity
was recently analyzed by our Court of Appeal in Perren. After reviewing
the different lines of authority addressing the issue, Garson J.A. concluded at
para. 30 that the basic principles established in Athey v. Leonati,
[1996] 3 S.C.R. 458 and Andrews v. Grand & Toy Alberta Ltd., [1978]
2 S.C.R. 229 remain valid; that is:

1.  A future
or hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation; and

2.  It is not a loss of earnings but
a loss of earning capacity for which compensation must be made.

[95]        
As Garson J.A. says in Perren at para. 32 of the judgment:

A plaintiff must always prove, as was
noted by Donald J.A. in Steward, by Bauman J. in Chang, and
by Tysoe J.A. in Romanchych, that there is a real and substantial
possibility of a future event leading to an income loss.  If the plaintiff
discharges that burden of proof, then depending upon the facts of the case, the
plaintiff may prove the quantification of that loss of earning capacity, either
on an earnings approach, as in Steenblok, or a capital asset approach,
as in Brown.  The former approach will be more useful when the loss is
more easily measurable, as it was in Steenblok.  The latter approach
will be more useful when the loss is not as easily measurable, as in Pallos and
Romanchych.  A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment.  That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[Emphasis
in original.]

[96]        
On the facts of this case, Mr. De Gaye returned to his
pre-accident job at Famous Players immediately after the accident. While the
injuries adversely affected his ability to perform all of the duties of a
manager, Mr. De Gaye did not leave this job to look for a less
physically demanding position. Instead, it was promotional opportunities and a
higher salary that led Mr. De Gaye to take a job with Starbucks. The
income Mr. De Gaye earns at Starbucks is greater than his
pre-accident income. Thus to date there is no evidence of an income loss.

[97]        
As noted above, it is not actual income loss that is important at the
first stage of the inquiry. Instead, the court looks for a real and substantial
possibility of a future event leading to an income loss. Mr. De Gaye
argues that his injuries preclude him from becoming a police officer, which was
a long standing future career goal. In my view, however, the possibility of Mr. De Gaye
becoming a police officer prior to the accident is only speculative; the
evidence does not support a conclusion that achieving this career objective was
a real and substantial possibility for him. Mr. De Gaye’s desire to
become a police officer did not go beyond casual conversations with his coworkers
at Famous Players prior to the March 2005 accident. Mr. De Gaye was
24 years old at the time and he had taken no positive steps toward achieving
this goal. Nor had he researched the prerequisites for this position. Indeed,
at that time Mr. De Gaye was considering other options such as
returning to school to train in sports medicine.

[98]        
It is also important to consider that Mr. De Gaye’s only long
term significant injury is his left shoulder. In this regard, Dr. Vaisler
testified that the surgery designed to correct Mr. De Gaye’s thoracic
outlet syndrome is successful at relieving the pain associated with continuous
activity in 80% of the cases. Thus it is difficult to conclude that Mr. De Gaye’s
current disability will be permanent or that it will in the future preclude him
from meeting the police recruitment standards.

[99]        
Lastly, regardless of the injuries caused by the accident, there is no
evidence that Mr. De Gaye could have met the other standards set for
police officer candidates. Mr. De Gaye has never taken any of the
courses offered by the Justice Institute for police officer candidates and has
not completed the online aptitude tests. He has not participated in any “ride alongs”
with the police and has not attended any career presentations offered by the
RCMP. It is also apparent that Mr. De Gaye’s vision may not meet the
standards imposed by the RCMP for new recruits.

[100]     On the
other hand, there is evidence to support a conclusion that Mr. De Gaye
has a great deal of difficulty performing the duties of a manager at Starbucks
due to the current state of his shoulder injury. In the two years since taking
this job, Mr. De Gaye has had to depend on other employees to help
with the heavier and more strenuous tasks, as well as the reaching functions.
He has to take additional breaks and often misses work because of doctors’
appointments related to the shoulder symptoms; and he regularly uses a heating
pad for pain. How long Mr. De Gaye can continue to work in this
manner without jeopardizing his position or without experiencing a reduction in
salary is relevant to the assessment of loss of future capacity.

[101]     Of course,
whether these future events demonstrate a real and substantial possibility must
be analyzed in light of the strong likelihood that surgery will entirely
relieve the pain Mr. De Gaye experiences in his shoulder. An 80%
success rate renders it far less likely that Mr. De Gaye will at some
point be forced to quit his job with Starbucks and find a less strenuous
position. After due consideration Mr. De Gaye has decided to have the
surgery recommended by Dr. Vaisler and now only a wait list stands in the way
of his likely eventual full recovery.

[102]     On
balance, I am not satisfied that Mr. De Gaye has proven a real and
substantial possibility of a future event leading to an income loss. Although
he currently is disabled from performing many of his job functions, there is
cogent evidence that the shoulder injury will not result in a permanent
disability. Arthroscopic surgery will more than likely relieve his pain
symptoms even with prolonged activity. The lack of capacity to perform his job
at the present time, and the pain and suffering Mr. De Gaye will have
to endure after surgery, is adequately compensated by an award for general
damages.

C.       Past Loss of Wages

[103]     Mr. De Gaye
did not suffer a past loss of wages. However, he claims reimbursement for the
days remaining in his vacation after the accident. There is insufficient
evidence of the number of days he was incapacitated from work to make an award
under this heading. Mr. De Gaye’s evidence on this point was vague
and no employment records were produced. There is also only an estimate of Mr. De Gaye’s
salary at Famous Players in evidence. Accordingly, no award can be made under
this heading.

D.       Cost of Future Care

[104]     In my
view, the costs associated with future care, as argued by Mr. De Gaye,
are reasonable in the circumstances. While the defendants argue Mr. De Gaye
has shown a reluctance to engage in physiotherapy in the past, I am satisfied
that the cost of physiotherapy after the arthroscopic surgery is both
reasonable and medically justified. Dr. Vaisler’s evidence supports Mr. De Gaye’s
position that he will require a course of physiotherapy treatments to fully
recover from the surgery. Mr. De Gaye’s reluctance to continue with
physiotherapy in the past is explained not only by the prohibitive cost, but by
the conflicting medical opinions. I note that although Dr. Vaisler was in
favour of more physiotherapy, Dr. Jaworski was of the view that passive
modalities would not improve Mr. De Gaye’s injuries or shorten his
recovery time. The divergent medical opinions about the underlying causes of Mr. De Gaye’s
shoulder pain also render his decision to continue exercising on his own a
reasonable alternative in the circumstances.

[105]     I thus
award $1,800 for the cost of future care.

E.       Special Damages

[106]     Mr. De Gaye
claims reimbursement for physiotherapy in the amount of $225; cortisone
injections by Dr. Vaisler at a cost of $25; mileage to attend physicians’
offices in the amount of $160.20; and prescription costs of $35.09. The
defendants say only $410.20 in special damages have been proven. The
prescriptions are not clearly identified as related to the accident-related
injuries.

[107]     I am
satisfied that Mr. De Gaye’s special damages are adequately
established by the documents entered as Exhibit 3 in these proceedings. I thus
award him $445.29 under this head of damages.

F.       Mitigation

[108]     I agree
with the defendants’ statement of the law in regard to the duty to mitigate. A
plaintiff is required to act reasonably to mitigate his loss and the onus of
proof rests with the defendants to prove he has failed to take the steps a
reasonable person would take in the circumstances.

[109]     The
defendants argue that Mr. De Gaye failed to mitigate because he did
not follow the advice of his physicians with respect to physiotherapy and
acupuncture. Further, the defendants argue Mr. De Gaye has delayed
his eventual recovery by not agreeing to surgery at the earliest opportunity.

[110]     I am not
satisfied that the defendants have proven on the balance of probabilities that Mr. De Gaye
failed to mitigate his loss. Mr. De Gaye attended physiotherapy
sessions for three months after the accident and thereafter regularly performed
rehabilitative exercises on his own at the gym. He saw Dr. Jaworski in November
2006 and this specialist recommended that he continue to stay physically active
by working out in the gym. Dr. Jaworski felt that passive modalities, which
include physiotherapy, would not be of any further assistance to Mr. De Gaye.

[111]     Although
Dr. Vaisler recommended additional physiotherapy in January 2007, it was only
to ensure the regular strengthening exercises that Mr. De Gaye was
doing on his own were being done correctly. At that time, Dr. Vaisler believed
that there was a 60 to 70% chance that Mr. De Gaye’s shoulder pain
would resolve with a proper exercise program. However, Dr. Vaisler also
testified that during an examination in October 2008, Mr. De Gaye
described the physiotherapy he had already received and the exercises he had
been doing since the accident. Given this information, and the time that had
elapsed since the accident, Dr. Vaisler opined that it was unlikely exercise
alone would repair the shoulder injury.

[112]     Thus I am
not satisfied that additional physiotherapy would have made a significant
difference to Mr. De Gaye’s recovery.

[113]     Surgery
was recommended to Mr. De Gaye in August 2008 and it was not until
late 2009 that he committed to this option. While it is apparent that Mr. De Gaye
took a considerable amount of time to decide in favour of shoulder surgery, I
find this was a difficult decision for a young man to make in the
circumstances. A full recovery could not be guaranteed and substantial recovery
time after surgery would be required. While his shoulder symptoms were painful
in August 2008, Mr. De Gaye’s physical condition was improving and he
had started a new job at Starbucks. In these circumstances, it was reasonable
to spend additional time considering the options.

[114]     For these
reasons I dismiss the defendants’ argument concerning Mr. De Gaye’s
failure to mitigate.

SUMMARY

[115]     Mr. De Gaye
is awarded $70, 000 for general damages, $1,800 for costs of future care, and
$445.29 for special damages.

[116]     Mr. De Gaye
is entitled to his costs at Scale B.

[117]    
I retain jurisdiction to resolve any issues arising out of this order.

“Bruce J.”