IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Kaleta v. MacDougall, |
| 2011 BCSC 1259 |
Date: 20110922
Docket: M128270
Registry:
New Westminster
Between:
Robert Kaleta
Plaintiff
And
Philip Stewart
MacDougall
Defendant
Before:
The Honourable Mr. Justice Truscott
Reasons for Judgment
Counsel for the Plaintiff: | D.J.M. Kennedy |
Counsel for the Defendant: | R. Pici |
Place and Date of Trial: | New Westminster, B.C. June 7 and 8, 2011 |
Place and Date of Judgment: | New Westminster, B.C. September 22, 2011 |
[1]
The plaintiff sues the defendant for personal injuries he sustained in a
motor vehicle accident that took place on Highway 1 in British Columbia on
October 4, 2008.
[2]
On that date the plaintiff was on his way to work at a time between 6:00
a.m. and 6:30 a.m., westbound on Highway 1, when the defendants vehicle from
his right side forced his vehicle into the centre area of the highway against a
centre median.
[3]
The defendant has admitted liability for the accident but disputes the
extent and effect of the personal injuries sustained by the plaintiff.
[4]
The plaintiff says the left side of his body was forced against the
frame of the drivers door in the impact with the centre median and he had to
exit via the passenger door as his drivers door was pinned up against the
centre median. His vehicle was a total loss.
[5]
The RCMP attended the accident scene and drove the plaintiff to his workplace
but by then he was in significant pain and attended Eagle Ridge Hospital for
two or three hours before returning home to spend the rest of the day resting on
painkillers.
[6]
The plaintiff remained off work attempting to recover from his injuries
for approximately two weeks before returning to light duties. He has remained
at work full-time since then, although he says that he sometimes has to leave
work early or arrive late because of his injuries. He has not lost any income
because he has used banked hours of work from previous overtime.
[7]
The plaintiff sustained soft tissue injuries to the left side of his
body to include his left knee, his low back, left arm, left shoulder and left
side scapular neck region.
[8]
The plaintiffs regular employment was and is as a ready mix cement
truck driver. This required him before the accident to do certain physical work
beyond driving such as cleaning up the chute of cement that had been poured and
cleaning up other parts of the truck after delivery.
[9]
In addition, at the work yard every morning he broke apart concrete
slabs of about 200 pounds, each set in metal forms, with a hammer, that were
then sold by his employer as blocks.
[10]
When he returned to work after the accident he initially did not do any
physical labour at the work yard but says he returned to physical duties about
six months after the accident in April 2009.
[11]
During the period October 2008 to April 2009 he says he continued to
experience pain in his shoulder and neck every day and all day. His low back
pain was constant as well but a little less than in the shoulder and neck.
[12]
He saw his family doctor, Dr. McAnulty for the first time on October
8, 2008 and the doctor confirmed his soft tissue injuries. Physiotherapy was
prescribed for him at that time as well as medicine for pain and inflammation.
[13]
The plaintiffs physiotherapist, Mr. Koretchuk confirms that the
plaintiff presented to him with pain to his head, neck, left shoulder and back
when he saw the plaintiff on October 10, 2008 and his left shoulder movements
were limited and painful and his left shoulder strength test decreased.
[14]
When he saw the plaintiff subsequently on October 15, 2008 the plaintiff
had the greatest degree of increased pain in his low back area which
Mr. Koretchuk concluded was exacerbated by the amount of sitting required
by his work.
[15]
The plaintiffs pain to his back and neck as well as to his shoulder
continued through the early part of 2009 while he continued to work full-time. Prior
to the accident he had been operating a seven axle truck but now moved to a
five axle truck because it was easier for him to physically handle.
[16]
He took physiotherapy treatments from Mr. Koretchuk from October
10, 2008 through to April 1, 2009 when the physiotherapist discharged him.
[17]
On January 12, 2009 the plaintiff reported his low back and neck were
feeling improved but he was still on light duties at work. On examination
Mr. Koretchuk concluded that the plaintiff had sustained trauma to the
joints and muscles of his mid back specifically on the left and the damage was
responsible for the ongoing tightness and pain in his left shoulder and low
back.
[18]
In a report to Dr. McAnulty of January 12, 2009, Mr. Koretchuk
said that the plaintiff had no cervical spine pain, no low back pain and no
headaches but continued stiffness in his mid back and 2/10 pain in his
shoulder.
[19]
The plaintiffs symptoms of back, shoulder and lateral arm stiffness and
pain continued to fluctuate but gradually improved through February to April 1,
2009.
[20]
On April 1, 2009 the plaintiff reported morning stiffness to his mid
back area and objectively there was still some restricted motion in his mid
back but Mr. Koretchuk discharged him at that time with instructions to
continue on with his home exercise program.
[21]
The plaintiff was again assessed by Dr. McAnulty on April 16, 2009,
complaining of neck and back stiffness but with no complaint at that time of pain
in those areas or shoulder pain.
[22]
The plaintiff returned to Mr. Koretchuk on June 18, 2009 after
injuring what he described to Mr. Koretchuk as his left mid back when
lifting a concrete pallet at work. On examination his mid back had decreased
movement and increased pain. His left shoulder showed weakness with resistance
testing and Mr. Koretchuk concluded that the movement restriction and
weakness presented were similar to the signs and symptoms presented to him on
January 12, 2009, the difference being the greater intensity of these acute
symptoms.
[23]
When Dr. McAnulty saw the plaintiff again on July 29, 2009 the
plaintiff reported the injury that he had sustained at work on June 11, 2009 as
occurring while lifting a 100-pound form – as he was picking up the form he
reported feeling a pulling sensation in the left shoulder.
[24]
Dr. McAnulty says he made findings at that time similar to the
motor vehicle accident-related findings suggesting a re-injury to this area of
the left shoulder.
[25]
The plaintiff confirms that on June 11, 2009 he injured himself at work
lifting one of the forms and he says he aggravated his left shoulder at that
time.
[26]
When Dr. McAnulty did a WorkSafe BC report subsequently on July 29,
2009 for the June 11, 2009 injury, he reported the injury as a strained left shoulder
and he repeated that diagnosis in following WorkSafe BC reports of August 19,
2009 and October 1, 2009. In these reports he indicated that there were no
prior or other problems affecting the injury, recovery and disability.
[27]
Dr. McAnulty says that through 2009 the plaintiff exhibited
progressive gradual improvement but with no complete resolution of symptoms.
[28]
Mr. Koretchuk also says the plaintiff gradually improved through
the period of time June to September 2009 as his symptom intensity had again decreased
to episodic stiffness.
[29]
When Dr. McAnulty assessed the plaintiff on October 25, 2009 he
complained of persistent pain in the left shoulder and the doctor made findings
of impingement, being a painful condition where previously injured tendon/soft tissue
of the shoulder rotator cuff get caught and squeezed under bony structures of
the shoulder with extremes of restriction of motion.
[30]
The plaintiff reported back to Mr. Koretchuk once in November 2009,
once in April 2010 and once on September 2, 2010 with similar episodes of mid
back, left shoulder and neck stiffness and pain. He was treated with manual
therapy and exercise, as on previous visits.
[31]
Mr. Koretchuk says there is a repeating pattern of increased mid
back, neck and left shoulder pain and stiffness and in his view the problem
will continue indefinitely and the nature of the plaintiffs work will continue
to exacerbate the injuries that occurred in the motor vehicle accident.
[32]
In order to help manage these episodes of increased pain and stiffness
and help prevent further degeneration of these areas he recommends continued
physiotherapy once every one or two months on an ongoing basis at a cost of
approximately $60 per month but his professional opinion is that the plaintiff
will continue to have episodes of stiffness and pain in his mid back, neck and
shoulder which will continue to be precipitated by prolonged sitting and/or
heavy lifting.
[33]
In Dr. McAnultys last assessment on March 3, 2011 the plaintiff
again reported with chronic neck and left shoulder pain, worse at night. His
prior knee and back pain had resolved.
[34]
Dr. McAnultys diagnostic impression at the time was of chronic myofascial
pain post motor vehicle accident affecting the left neck and shoulder and the
plaintiff was advised to continue with activity as tolerated.
[35]
In his summary and conclusions in his report of March 6, 2011, Dr. McAnulty
says that despite the many interventions the plaintiff still remains
symptomatic and now has more likely than not reached the point of maximum
medical improvement, especially since two and one-half years have elapsed since
the motor vehicle accident. He says the plaintiff may well suffer chronic
myofascial pain in the future.
[36]
With respect to the injury to his left shoulder at work in June 2009 Dr. McAnulty
says that he reinjured his left shoulder as the motor vehicle injury likely
predisposed him to the work injury.
[37]
Dr. McAnulty at trial refers to this as a new injury on top of an
old injury and while he recognizes that the plaintiff made no complaint of the
left shoulder on his visit of April 16, 2009 and there was no other visit to
his office prior to the work injury of June 11, 2009, he maintains the view
that the plaintiffs left shoulder was still symptomatic from his previous
assessment of February 16, 2009 when he found myofascial neck, back and left
shoulder pain.
[38]
He agrees that the shoulder could have been newly damaged on June 11,
2009 without any prior injury having occurred but in his opinion the plaintiff already
had this injury from the motor vehicle accident.
[39]
He says that occasionally patients with impingement syndrome may
progress to the point where decompressive surgery may be required and says that
the possibility of surgery for the impingement is significant. Although he is not
an expert he says recovery time is usually six weeks followed by
rehabilitation.
[40]
The plaintiff says that his neck and shoulder problems have continued
every day to the present time, intensifying during the work day and getting
stiff and painful by the end of the day.
[41]
He says that his pre-accident activities of doing yard work around the
house, swimming and walking his dog have all been seriously curtailed or ceased.
He says his social life with his wife has been curtailed and their intimate
relationship has suffered. He is unable to sit for three or four hours at a
time so his wife and he do not go out much and have generally reduced their
time socializing with their friends. He does not bowl any longer.
[42]
He finds his work more difficult now and worries about being able to
continue it and has no idea what he would do if he lost his job. He has a grade
12 education but has been driving a cement truck since 1997.
[43]
The plaintiff seeks special damages itemized in an amount of $3,309.22
including a car rental expense for $800, physiotherapy costs of $860 and
mileage costs of $1,392.25 charged out at 41¢ per kilometre. In addition there
are other minor expenses included.
[44]
$500 of the $860 for physiotherapy costs is said to be a subrogated
claim on behalf of the plaintiffs insurer Pacific Blue Cross.
[45]
The plaintiffs wife confirms her husbands pre-accident activities and
the changes to those activities since the accident.
[46]
She says that since the accident he returns home from work in a lot of
pain at the end of the day and tired, irritable, moody and a little depressed.
[47]
She gives massages to his left shoulder and neck every day upon his
return from work and it is her evidence that he has aged at least ten years in
the last two years.
[48]
The major source of contention between the parties is over the significance
of the left shoulder injury to the plaintiff in the workplace accident of June
11, 2009.
[49]
Counsel for the defendant points out that Dr. McAnulty at trial
said this was a new injury on top of an old injury and submits that because
there was no complaint of left shoulder pain or disability in the previous
examination by Dr. McAnulty on April 16, 2009 but only neck and back
stiffness, and the plaintiff had been discharged by Mr. Koretchuk on April
1, 2009 when he only reported morning stiffness to his mid back area, that this
was a new unconnected injury to his left shoulder for which the defendant can
have no responsibility.
[50]
It is submitted by defence counsel that this should be treated as a
six-month soft tissue injury having resolved by April 2009 and having a value
for general damages of between $15,000-$20,000. There should be no award for
loss of income-earning capacity because Mr. Kaleta has returned to work
and continues to work overtime shifts when called upon to do so and has expressed
no intention of leaving his job. There is also no medical evidence suggesting
any restriction on his ability to do his work.
[51]
With respect to Dr. McAnultys suggestion that decompressive
surgery may be required, Dr. McAnulty admits he is not an expert and it is
submitted his comments amount to nothing more than speculation. Dr. McAnulty
has never referred the plaintiff to any specialist to review that condition.
[52]
Past wage loss is submitted to be equal to two weeks worth of work or
$2,231.20 gross and special damages should be limited to $1,981.41 on the basis
that there is no proof of subrogation for his physiotherapy claim and his claim
for mileage is inflated because the physiotherapists office was en route to
his workplace. The claim should end at April 1, 2009 in any event for a total loss
of no more than $64.44 for mileage.
[53]
Plaintiffs counsel submits that this is a very serious injury his
client has suffered and it is of a permanent nature unlikely to get better and
at age 38 he will suffer from his soft tissue injuries for the rest of his
life.
[54]
It is submitted the workplace shoulder injury of June 11, 2009 was an
aggravation of the motor vehicle shoulder injury and a natural consequence and
by law is not to be considered a separate injury for which the defendant does
not bear the responsibility. Dr. McAnultys opinion should be accepted.
[55]
It is submitted there is a significant possibility of decompression
surgery followed by six weeks of recovery and then rehabilitation and there is
a continuing concern over the ongoing effect of his job on his injuries supporting
a claim for loss of future income-earning capacity.
[56]
It is submitted that non-pecuniary damages should be awarded in the range
of $80,000-$90,000, loss of income-earning capacity should be awarded in the
range of $175,000, the special damage claim should be accepted as presented and
there should also be an award for further physiotherapy recommended by Mr. Koretchuk
for two or three years approximately.
Analysis and Decision
[57]
I accept the opinion of Dr. McAnulty that the workplace shoulder
injury of June 11, 2009 was an aggravation of the shoulder injury suffered in
the motor vehicle accident which remained symptomatic, and was not a new injury
unconnected to the previous injury.
[58]
I recognize that Dr. McAnulty said in his evidence at trial that it
was a new injury on top of the old injury but I am satisfied he did not mean it
was a new unconnected injury. He clarified that further in his report and at
trial.
[59]
I also recognize that in his WorkSafe BC reports Dr. McAnulty said
there were no other prior or other problems affecting the June 11, 2009 workplace
injury, disability and recovery, but he was not asked at trial if this
constituted a contradiction to his opinion that the June 11, 2009 shoulder
injury is connected to the previous motor vehicle injury.
[60]
Absent Dr. McAnulty being asked about this at trial I am not
prepared to conclude it constitutes a contradiction that he would not be able
to explain as consistent with his diagnosis, if he had been asked.
[61]
As a matter of law the defendant remains responsible for continuing
problems with the left shoulder after June 11, 2009 (Bradley v. Groves,
2010 BCCA 361).
[62]
Dr. McAnulty says in his report that the patient may well suffer chronic
myofascial pain in the future. This statement does not raise the prospect from
a possibility to a probability. Dr. McAnulty does offer future treatment
options such as physiotherapy treatments and steroid injections and says that
occasionally patients with impingement syndrome may progress to the point where
decompression surgery may be required. At trial he says this is a possibility,
a significant possibility.
[63]
It may be concluded from all this that the prospect of a chronic injury
in the nature of a permanent or indefinite injury is only a possibility, but in
Dr. McAnultys report he also says that the patient has more likely than
not reached the point of maximal medical improvement and that statement
reflects a standard of probability and not possibility.
[64]
It is my conclusion that Dr. McAnulty considers the shoulder pain
to be a chronic or long-lasting pain as a moderate probability, and I will
assess the plaintiffs damages on that basis.
[65]
I have reviewed the cases cited by plaintiffs counsel, including: Deglow v. Uffelman,
2001 BCCA 652; Gojevic v. Philpott, 2002 BCCA 483; Cam v. Hood,
2006 BCSC 1561; Whyte v. Morin, 2007 BCSC 1329; Hosking v. Mahoney,
2009 BCSC 803; and Raun v. Suran, 2010 BCSC 793.
[66]
The defendants cases are all based upon a conclusion that this was only
a six-month soft tissue injury ending with the work injury of April 11, 2009. I
have found that not to be the case and accordingly I do not consider the
defendants cases to be relevant.
[67]
I find the injuries in plaintiffs counsels cases and their
consequences to be somewhat similar to the injuries and consequences for the
plaintiff here.
[68]
The plaintiff has ongoing pain and he has had to work through that pain
to maintain his employment and provide an income for his family.
[69]
His recreational activities and family life have also been adversely
affected.
[70]
I award the plaintiff $80,000 for general damages for pain and suffering
and loss of enjoyment of life.
Past Wage Loss
[71]
I accept a past wage loss of two weeks for the plaintiff. His hourly
rate was $27.89 and he worked a steady 40 hours per week. Over two weeks that
would produce a gross loss of $2,231.20.
[72]
In addition the plaintiff may have lost some overtime hours as well but
there is no evidence of what that number might have been and as a consequence I
decline to award any extra for loss of overtime.
[73]
I add to the award the plaintiffs loss of work hours in attending
physiotherapy sessions and I accept his counsels calculation of 52 hours for a
loss of $1,450.28 gross.
[74]
The past wage loss is therefore awarded in the amount of $3,681.48
gross.
Loss of Future Earning Capacity
[75]
The plaintiff seeks an award on the basis of a loss of capital asset
approach and not a loss of earnings approach.
[76]
He relies on the case of Garcha v. Duenas, 2011 BCSC 365, as well
as on Raun v. Suran.
[77]
Raun was a case where the plaintiff was a young man who was in
high school when he was injured and it was not possible to know what career
path he would have followed but for the accident nor what his probable earnings
would have been. However it was accepted that his focus to date had been
physical in nature and that he in the future would face a real and substantial
possibility of not being able to take employment involving physical exertion
because of chronic neck and back pain. The award on that basis was
$75,000.
[78]
In Garcha the award for loss of earning capacity was set at
$175,000. In doing so Madam Justice Boyd said that whether adopting the
earnings approach or the capital asset approach she was satisfied there would
be some financial harms occurring to the plaintiff over the course of his
working life.
[79]
However before arriving at her assessment she had calculated what the
loss would have been on the earnings approach and had arrived at a future loss
of earning capacity on that basis of $187,000-$280,000 and that may have
affected her assessment.
[80]
The plaintiff in that case had returned to his former employment when he
was permanently partially disabled, but was only able to remain at that
employment with accommodation for his physical impairments.
[81]
It was stated in the judgment that if the employer:
… is no longer able to accommodate his physical
restrictions and requires that he perform a full range of machinists duties,
he may well lose this employment. Even if he does not lose this employment, if
there are periods when there will be opportunities for significant overtime
work, it is unlikely he will be able to work those longer hours. If he loses
his employment at Avcorp, or if there are layoffs at Avcorp and he looks for
alternative or supplementary work pending a resumption of work at Avcorp, then
I expect he will very likely have difficulty finding alternative employment or
supplementary employment as a machinist. …
(para. 82)
[82]
In that case there were functional work capacity evaluation tests
conducted of the plaintiff.
[83]
Here the plaintiff has returned to his employment after two weeks and
continues on a full-time basis at that employment for close to three years
since the accident. While he does say he doesnt work as much overtime since
the accident he also says that he takes overtime work on Saturdays if and when
offered.
[84]
Apart from perhaps less overtime the plaintiff puts in a full day of
work and there is no evidence that he has to be accommodated for his injuries. While
he is concerned about being able to continue at his job there is no medical evidence
suggesting that he will or might have to quit his job or should quit his job.
[85]
At Dr. McAnultys last assessment of the plaintiff on March 3, 2011
he advised the plaintiff to continue activity as tolerated. The plaintiff does
not say that he intends to quit his job.
[86]
I do not find the decisions in Raun and Garcha to be
particularly helpful. Unlike the plaintiff in Raun the plaintiff here
has a track record of employment that he has continued since the accident and
unlike the plaintiff in Garcha he has not had to be accommodated in his
employment for his injuries with the threat the accommodation might end.
[87]
Nevertheless I accept that the plaintiffs injuries may affect his
ability in the future to continue at his present employment or at any other
employment which involves physical activity and it must be accepted that this
is a real and substantial possibility especially in view of Mr. Koretchuks
statement that the plaintiffs work will continue to exacerbate his injuries.
[88]
The difficulty in this case is that there is no medical evidence supporting
a risk that the plaintiffs employment might be interfered with nor any
functional work capacity evaluation and both Dr. McAnulty and Mr. Koretchuk
advocate further physiotherapy treatments or other modalities to assist the
plaintiff.
[89]
Mr. Koretchuk suggests further physiotherapy of once every one or
two months at $60 per month as an investment in the plaintiffs future ability
to work and play with minimal pain and discomfort.
[90]
Considering all of the evidence I assess the plaintiffs impaired
earning capacity on a capital asset loss basis at $60,000.
Future Care Costs
[91]
I am prepared to award the plaintiff $60 per month for three years for a
total of $2,160 for the cost of future physiotherapy sessions.
The Honourable Mr.
Justice Truscott