IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110117

Docket: M129760

Registry:
New Westminster

Between:

Sheryl Derbyshire

Plaintiff

And:

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice A. Saunders

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The claimant seeks declarations against the
defendant, Insurance Corporation of British Columbia, of her entitlement to
reinstatement of temporary total disability benefits and to ongoing physiotherapy
and massage therapy benefits as afforded by Part 7 of the Regulations to the Insurance
(Motor Vehicle) Act.  The claimant has complained since her accident of
significant neck discomfort and also numbness in her left thumb, symptoms which
she says now disable her and have continued since the accident to disable her
from her employment.  ICBC opposes the application on the grounds that the
claimant is not totally disabled from her employment and, alternatively, that
her present injury was directly or indirectly caused by a pre-existing, albeit,
at least in part, asymptomatic condition, specifically pre-existing
degenerative changes in the cervical spine, bringing the claimant within the
exclusion under s. 96(f) of the Regulations.

[2]            
The claimant is employed as a commercial painter, a job which requires
lifting, carrying, climbing, and reaching.  It is not a sedentary occupation.  She
was injured in a motor vehicle accident on March 24, 2010.  Her claim for TTD
benefits was initially allowed for one week, until her medical employment
insurance kicked in.  Those employment insurance benefits were exhausted by
August 2010, and, at that point, ICBC refused to reinstate the no-fault benefits.

[3]            
On August 16, 2010, an ICBC claims representative wrote to the plaintiff’s
counsel enclosing a copy of an independent medical examination report,
conducted for ICBC by an orthopaedic surgeon, Dr. Maloon.  That letter
reads, in part:

You will note Dr. Maloon did
a thorough examination of your client and feels that much of her complaints may
relate to a pre-existing degenerative condition.  It is Dr. Maloon’s
medical opinion that there is no further disability relating to this accident. 
He also feels that your client would be best served by a home-based exercise
program.

[4]            
Dr. Maloon had examined the claimant on July 5, 2010.  On his examination, he found a slight restriction in cervical range of motion.  There
were no other objective findings except for imaging which did show degenerative
changes in the cervical spine.  Dr. Maloon, in his report, describes the
claimant’s symptoms as vague and non-specific.  He says those symptoms are
common in the general population and are usually the result of wear-and-tear
changes in the neck and back joints.  He does note certain non-organic findings
including "a good deal of symptom magnification."  He says there is
no objective evidence of injury.  Specifically, he comments:

On evaluation today, I could find
no evidence to suggest that Mrs. Dobson

Here he is using her middle
name; it is Sheryl Dobson Derbyshire; that she:

…has been in any way physically
impaired by musculoskeletal injuries that she may have sustained in the March 24, 2010, motor vehicle accident.  I would have expected her to have been partially
disabled for six to eight weeks while acute soft tissue symptoms settled.  She
should then have been able to have resumed her previous level of activity with
no ongoing physical disability that may be attributable to musculoskeletal
injuries that she may have sustained in the March 24, 2010, motor vehicle accident.

[5]            
The claimant counters this report with an independent medical report of
a rheumatologist, Dr. Wade, who examined the claimant on August 17, 2010.  Dr. Wade concluded that, and I quote:

As the direct result of a motor
vehicle accident on March 24, 2010, it is my opinion that Sheryl Derbyshire
sustained a moderate musculoligamentous injury of the cervical spine.

[6]            
Dr. Wade also concluded, among other things, that there was, as a
result of the motor vehicle accident, a probable mild complex regional pain
syndrome involving the left thumb and hand which had been further aggravated by
the cervical spine soft tissue injury.  Dr. Wade also noted symptoms of
mild mechanical low back pain.  He noted that a pre-existing condition, scoliosis,
likely contributed to the claimant’s complaints of her having had low back pain
while climbing scaffolding.  Dr. Wade noted the degenerative changes of
the cervical spine shown on x-rays and MRI studies.  In his report, he does not
relate these findings to the diagnosed musculoligamentous injury to the
cervical spine.  Interestingly, he does raise the possibility that what he
refers to as the disk component was a direct result of the trauma of the motor
vehicle accident.

[7]            
Dr. Wade concludes as follows:

If I was making recommendations to her primary care
physician, I would suggest that Sheryl Derbyshire continue to embark upon a
rehabilitation program.  Such a program would focus on gentle range and
strengthening of the neck, upper extremity, and low back.  She should further
embark upon a global cardiopulmonary fitness exercise program that would
include walking, cycling, a water gym, or gym exercise program.

I would hope that with a conservative rehabilitation program,
Sheryl Derbyshire would improve in the months ahead.  If she were to have
increasing focal problems with left side of neck pain or neurological problems,
she may require further imaging and an assessment by a spinal surgeon.  I would
hope that the likelihood of this in the future is low.

At the present time, Sheryl
Derbyshire is not competitive to returning to part-time or full-time work as a
commercial painter.  If she shows ongoing improvement in the weeks and months
ahead, it is conceivable that she might be able to return to her former type of
work with some limitation.  If she is unable to return to her previous work,
then she could look towards obtaining possible part-time or full-time work
doing light physical work.  At the present time, I would focus on further
rehabilitation and the passage of time and would not make definite comment on
her return to work as a commercial painter at this time.

[8]            
Now, I should add that the claimant’s general practitioner has also
assessed the claimant throughout as not being fit to return to work and in need
of treatment modalities, such as physiotherapy.  There is formal written
opinion from the GP in evidence before me, although there are brief letters from
him to that effect.  I am told that what has prevented the GP from issuing a
formal opinion is that he has been awaiting reports from consulting
specialists.

[9]            
Since then, the plaintiff, having been cut off TTD benefits by ICBC, has had limited financial means and her ability to undertake a course of therapy
recommended by her GP has been limited.  I am told that there has been no
significant improvement in her injuries.  This is borne out by her affidavit
sworn November 17, 2010, in which she states that she believes she has
regressed since she stopped therapy.

[10]        
ICBC, on this application, relies wholly on the report of Dr. Maloon. 
It is argued that the rheumatologist relied upon by the claimant, Dr. Wade,
made findings that are purely based on subjective reports, and it is further
argued that there is in Dr. Wade’s report no clear articulation of exactly
how his findings limit the claimant in her occupation.

[11]        
I cannot accept ICBC’s position.  An absence of findings to support a
diagnosis of musculoskeletal injury or impairment is not necessarily
inconsistent with a diagnosis of a musculoligamentous injury. What I have
before me, in Dr. Wade’s report, are his clear, unequivocal diagnosis and
recommendations.  Dr. Wade is a specialist in rheumatology.  I have no
competing rheumatologist’s opinion from ICBC.  I have no comment from Dr. Maloon
on Dr. Wade’s opinion.  I do not know if Dr. Maloon would feel himself
able to comment on the opinion of Dr. Wade, someone who is from outside
his field.  There is no opinion expressed by Dr. Maloon as to whether it
is possible, in his mind, for there to be a musculoligamentous injury given the
findings that were made by Dr. Wade and Dr. Maloon on their
examinations.  In short, on the evidence neither the findings of Dr. Wade,
nor those of Dr. Maloon, appear to be inconsistent with the opinion that
has been expressed by Dr. Wade. I have no reason to conclude that the
diagnosis of a musculoligamentous injury made by Dr. Wade is incorrect.  ICBC
further says that Dr. Wade’s report does not relate exactly how his findings
are standing in the way of employment, but a claimant is not under a burden to
provide medical evidence with that level of specificity.

[12]        
I find that Dr. Wade’s opinion meets the test of proving a total
disability.  To borrow the phrase used by Holmes J. in Kenni v. ICBC (1993), 14 C.C.L.I. (2nd) 62, the "contextually reasonable meaning" of the
phrase "total disability" is, in my view, consistent with the finding
of the plaintiff not being competitively able to return to work and possibly
able to return to either full or modified duties should she show improvement
following the course of therapy recommended.  The plaintiff, therefore, in my
view, has established entitlement to temporary total disability benefits
retroactive to August 2010.

[13]        
The alternative ground put forward by ICBC, that of s. 96(f)
regarding the contribution which it is said has been played indirectly or
directly by the pre-existing degenerative changes, also does not succeed, and I
say so whether we regard s. 96(f) as an exclusion on coverage in respect
of which the onus of proof would be on ICBC, or whether we regard it simply as
a limitation on the scope of coverages available, in which case the onus would
be on the plaintiff.  Whichever is the case, while both Dr. Wade and Dr. Maloon
did find pre-existing degenerative changes, neither of them in their respective
reports connect those changes to the plaintiff’s symptoms of neck pain nor to
her arm issues.  A connection is established, as I have previously noted,
however, with respect to the low back issues and that is in light of Dr. Wade’s
comment regarding the scoliosis.

[14]        
I, therefore, further declare that the plaintiff will be entitled to
ongoing physiotherapy and massage therapy benefits as prescribed by her
physicians for treatment of her neck and left arm and hand symptoms.

[15]        
I close by noting, once again, the grounds on which ICBC terminated benefits.  The claims representative did fairly describe Dr. Maloon as
finding that there was no further disability, and that may very well have been
the case within Dr. Maloon’s limited field as a specialist in orthopaedic
medicine opining only on musculoskeletal as opposed to musculoligamentous
injuries.  That was all fair on the part of ICBC.  However, the claims representative,
in his denial letter, also stated that Dr. Maloon felt that much of the
claimant’s complaints may relate to a pre-existing degenerative condition.  As
I have noted, that is not what Dr. Maloon’s report says.  Claims
representatives should read their independent medical reports carefully before
citing them as grounds for denying coverage.

 [SUBMISSIONS ON COSTS]

[16]        
THE COURT:  I accept what Mr. Cabanos says regarding the apparent,
at this point, potentially limited monetary value of the claim being within the
jurisdiction of the Provincial Court, but Mr. Milne is quite correct that
the test for costs is whether it was appropriate to bring this action and this
application in Supreme Court.  In my view, it was appropriate given the
indeterminate size of the total benefits that could be granted to the claimant
over the entire course of her disability and it was further appropriate with
respect to the summary disposition mechanisms that are available in this court,
the alternative in Provincial Court only being a full trial.

[17]        
So on that basis, I will grant the claimant her costs of this
application.

[18]        
MS. MILNE:  And, My Lord, are those costs payable forthwith or —

[19]        
THE COURT:  Yes, costs payable forthwith.

[20]        
MS. MILNE:  In any event of the cause?

[21]        
THE COURT:  Well, this is the cause, is it not?

[22]        
MS. MILNE:  Well, I suppose, it is a summary trial, so I mean we —
if for instance they were to decline her again or something was to happen, we
would have the right to come back?

[23]        
THE COURT:  Yes, Mr. Cabanos.

[24]        
MR. CABANOS:  I think this is a peculiar situation in that it is
party final judgment, but it is also partly interlocutory, and it is not really
either/or in the sense that the statute provides for regular review by the
Corporation —

[25]        
THE COURT:  Yes.

[26]        
MR. CABANOS:  — and so as a result, it is kind of one of those
in-between both the —

[27]        
THE COURT:  Yes.  Well, it is a final judgment of the entitlement at
this point in time and so, on that basis, the costs will be payable forthwith
and that is the cause in success.  So it is not simply limited to the — I
am looking here at the entire notice of civil claim.  Yes, there is no relief
sought in the notice of claim beyond the relief that was sought in this
application; is that correct, Ms. Milne?

[28]        
MS. MILNE:  That is correct.

[29]        
THE COURT:  All right, then.  So the plaintiff’s entitlement will be to
the entirety of the costs of the action.

“A.
Saunders J.”