IN THE SUPREME COURT OF
BRITISH COLUMBIA
Citation: | Moukhine v. Collins, |
| 2012 BCSC 118 |
Date: 20120126
Docket: M081051
Registry:
Vancouver
Between:
Serguei Moukhine
Plaintiff
And
Gerard F. Collins
and Michelle C. Collins
Defendants
Before: The Honourable Madam
Justice Watchuk
Reasons for Judgment
Counsel for the Plaintiff: | Y. Gertsoyg |
Counsel for the Defendants: | W.N. Fritz P.R. Simard |
Place and Date of Trial: | Vancouver, B.C. May 2-6, 9-13, and |
Place and Date of Judgment: | Vancouver, B.C. January 26, 2012 |
TABLE
OF CONTENTS
A. Prior
to the motor vehicle accident
C. After
the MVA – Evidence of Mr. Moukhine
D. The
Evidence of the Plaintiffs Family
E. The
Evidence of the Plaintiffs Friends
F. Video Surveillance Evidence
iii. Loss
of Income-Earning Capacity
INTRODUCTION
[1]
This is a claim for damages arising out of a motor vehicle accident which
occurred on April 23, 2007, in Vancouver, British Columbia. The plaintiff Serguei
Moukhine was driving to work when he was rear-ended as he was stopped waiting
to turn left onto Marine Way.
[2]
Liability is admitted and the trial proceeded as an assessment of
damages.
[3]
The major issues are the injuries sustained by Mr. Moukhine and the
damage to his balance system resulting from those injuries. Wage loss, past and
future, is in issue.
FACTUAL BACKGROUND
A.
Prior to the motor vehicle accident
[4]
At the time of the accident Mr. Moukhine was 53 years old. He was
born in 1953 near Moscow and graduated from Moscow State University, Department
of Computers in 1975. He received his Ph.D. in computer science.
[5]
His work history includes working as a computer programmer in physics
near Moscow, in Switzerland, and then in Germany.
[6]
In 1999 Mr. Moukhine immigrated to Canada and became a resident of
Vancouver.
[7]
His first job in Canada was in the IT department of Future Shop which
was later sold to Best Buy. In 2005 that IT department was outsourced to Accenture
Inc. where Mr. Moukhine remains employed as a senior application developer.
[8]
He is married and had two daughters. The younger daughter, Anastasia, is
a math teacher in Vancouver. His older daughter died from cancer in January
2010.
[9]
At Accenture Mr. Moukhine developed a system to help other computer
systems interact with each other. He was also involved in the architectural
part of the work, which includes creating products and setting standards for
the users of the products.
[10]
Mr. Moukhines normal office hours prior to the motor vehicle
accident were eight hours per day when car pooling and ten to twelve hours a
day when he was not car pooling. He also often worked from home on evenings and
weekends. He liked his job.
[11]
Mr. Moukhine enjoyed many outdoor and physical activities
including running almost every morning, hiking, biking, kayaking,
rollerblading, downhill skiing, and ballroom dancing. He participated in a
soccer group once a week with his friends from work. His last
ski trip was a month before his collision, in March of 2007.
[12]
Prior to the accident Mr. Moukhine was in good health. He had had some
problems with cholesterol, lower back pain and his prostate. His regular doctor
was a homeopathic doctor, Dr. Ovodova.
[13]
There was one pre-accident complaint of fog in the head
by Mr. Moukhine to Dr. Ovodova two years before the accident. This
clinical entry was preceded by words to the effect of: Stress at work of wife.
Everything normal. Myocardit in the past. There was no accompanying complaint
of dizziness or imbalance. No work was missed.
B.
The Motor Vehicle Accident
[14]
The motor vehicle accident (the MVA) occurred as Mr. Moukhine was
driving his Honda Accord vehicle, car pooling with two co-workers, on his way
to work on the morning of Monday, April 23, 2007. He was stopped at a
t-intersection at Nelson and Marine waiting for the traffic to clear to make a
left-hand turn from Nelson onto Marine Way. He was leaning forward and looking
left when he saw a gap in the traffic and started to move his foot from the
brake to the gas. At that moment he was struck from the rear by a Ford Ranger pickup
truck operated by the defendant, Gerard Collins. He believes that he probably
hit the headrest with his ear but does not recall. His vehicle was pushed
forward two to three meters.
[15]
After the accident Mr. Moukhine got out of the car,
exchanged information with the other driver, and because his car was drivable
and his work was close, he drove to work. There was $7,500 dollars
worth of damage to his vehicle on the rear left side which was pushed in.
C.
After the MVA – Evidence of Mr. Moukhine
[16]
Mr. Moukhine testified that immediately after the impact he felt
stressed, like he had the flu. That feeling continued throughout the day. He
tried to work but found it pretty much impossible as the screen in front of his
eyes was shaking and it was hard to concentrate or think.
[17]
When he got home that evening he still felt the flu-like symptoms in his
head and a bad headache had started.
[18]
He had not told his wife that he had been in a motor
vehicle accident. His wife gave him some naturopathic medication for the
headache. As the medicine did not help and she noted that he was pale, his wife
had him call their homeopath, Dr. Ovodova. It was on overhearing this
conversation that she learned that Mr. Moukhine was in a collision and that
he was advised to go to hospital.
[19]
The next day he went to the hospital as a result of the headache. At the
hospital he was given Tylenol and told to go to his family doctor if the
symptoms got worse.
[20]
He testified that at work the next day the screen was shaking in front
of his eyes and he could not concentrate. He stayed at work the whole day
because he was car pooling.
[21]
He developed a noise in his ears, or tinnitus.
[22]
He recalls that the date following, or the third day after the accident,
he stayed home because he was feeling very bad. Many things started happening
that day: objects were spinning in front of his eyes, he had a headache, a
pain in his left ear and temple and at the lower left side of his head and neck
and that his spine was painful. He was dizzy and nauseous. As he could only
concentrate for five to ten minutes at a time, he was unable to work from home
and spent most of the day in bed.
[23]
He first saw Dr. Stewart on Monday, May 1, 2007. Dr. Stewart
was Ms. Moukina’s family physician prior to this collision, but had not previously
treated Mr. Moukhine.
[24]
Mr. Moukhine recalls that he took a taxi to the doctor, from
Coquitlam to West Broadway, but the evidence is not clear as there is no taxi
receipt. His symptoms on that visit were objects spinning, nausea, and
headaches as well as a sore neck.
[25]
Early on, Mr. Moukhine had considerable
difficulty driving, and had to take a taxi to several appointments.
[26]
The day after the appointment with Dr. Stewart, objects were again
spinning, and the dizziness and nausea continued. He got tired very easily and
found it difficult to concentrate. As Dr. Stewart had recommended that he
not lay down, he tried to be active as much as he could. The maximum that he
could walk was 30 minutes, then after lying down on the grass he would try to
continue. He attended the hospital again the next week as his headache was very
bad and his wife was concerned that he had lost consciousness. An
ambulance took him to Eagle Ridge Hospital where he reported still having a
headache, nausea, and being unstable and shaky. A CT Scan was done at the
hospital.
[27]
Two days later, Mr. Moukhine felt even
worse. He had a bad headache. His wife thought that he may have passed out and
called an ambulance. He was taken to Eagle Ridge Hospital, where complaints of
headache, nausea and changes in coordination were noted. The diagnosis was
post-concussion symptoms.
[28]
The spinning of objects lasted for about five to ten minutes at a time
for three to four weeks.
[29]
In July 2007, on Dr. Stewarts referral, Mr. Moukhine saw Dr. Longridge,
who is a specialist in otolaryngology. At that time he still had headaches,
dizziness, and had spinning inside of his head, but not objects spinning in
front of him. His main concern was not being able to concentrate or think
through when doing work or anything on the computer. The treatment prescribed
was exercises in order to train the vestibular system.
[30]
Mr. Moukhine was not able to return to work since concentration was
only possible for ten or fifteen minutes. He did work from home over the
internet. He continued to try to advise his colleagues by e-mail.
[31]
As he and his wife had a pre-planned trip to Hawaii, they went to Hawaii
in the summer of 2007. He felt better there, soaking in the warm water and being
more active.
[32]
In August he went to see Dr. Prout, a neurologist. At that time he
had some headaches, dizziness and nausea. His main concern remained that he
could not work on the computer or concentrate or think clearly. His headaches
were better at that point than before. Dr. Prout noted
some improvement, but "a sense of dizziness suggesting a degree of visual
vestibular mismatch". He was the first to offer this diagnosis.
[33]
At Dr. Stewarts recommendation Mr. Moukhine attended a
chiropractor to treat the pain in his neck and upper back. After that
treatment, his headaches became much less frequent and the pain in his neck
stopped.
[34]
As a gradual return to work was suggested by Dr. Stewart, he was
given a schedule of three hours a day, three days a week. On October 29, 2007,
he went back to work but after two hours, he found himself so exhausted that he
could not continue to work, although with people seeking his advice, he stayed
three hours. At the end of that time he had to drive 45 minutes to get home. He
felt it unsafe to drive in that exhausted condition. Although
he was able to drive to work by this point, he found that the drive further
exhausted him and reduced the number of productive hours that he could devote
to work.
[35]
As a result of that experience, his employer accommodated him and
allowed him to work from home on a schedule that he could handle.
[36]
The schedule at home commenced with half an hour of work and then a long
rest of two to three hours. After half an hour of work he found it difficult to
concentrate, had heaviness in his head, found it difficult to remember even
simple things, and felt dizzy and nauseous. Although it was slow at first, he
was eventually able to increase the time that he was able to work.
[37]
On November 8, 2007, Mr. Moukhine attended Dr. Longridges office
for a balance test. The testing included putting cold water in his ear. It
revived a lot of the sensations from after the accident, including objects
spinning and a strange sensation as if wearing glasses that are too strong. The
spinning symptoms lasted for four days.
[38]
When he saw Dr. Stewart on November 15, 2007, it was recommended
that he take some time off work.
[39]
Mr. Moukhine saw the neurologist Dr. Spacey in December. His
main concern was not being able to think through or concentrate for a
significant period of time. He also felt nausea, spinning inside his head and
some headaches.
[40]
Mr. Moukhine attempted to return to work from home in January 2008
again on a schedule of working one half hour and stopping for two to three to
hours before working again for another half hour. His ability gradually
improved so that he could work longer hours, 45 minutes to 60 minutes, with
shorter breaks. He found one hour of work with two hours of a break to be the
best schedule.
[41]
Mr. Moukhine described his symptoms at this time as having a heavy
head, like cotton in his head. He would try to think and could not. He found it
difficult to remember things, to make judgments and to concentrate. He also had
rotations and dizziness and nausea if he pushed himself too much. As a computer
programmer, Mr. Moukhine described that he had to be clear of mind as a
result of the nature of programming because if a mistake is made, it takes days
to find the mistake.
[42]
Mr. Moukhine described his symptoms as follows in evidence in
chief:
Q Now, if you could describe
how you feel at the time that you you need to stop work?
A Uh, well, my head, it would
become heavy and it was a feeling, like, you have some cotton in your head. Something
like, you know — I don’t know, it’s difficult to explain. Something like you
— you are trying to think through and you cannot really go through this. And
it makes you difficult to remember things and then makes it difficult to make
good judgment of what you are doing again and really difficult to concentrate
is the problem.
Anyways, so when those
this heaviness in the head and inability to think clearly happens, also have
some other symptoms. Those, like — like, could be like dark in the eyes and
feeling again, this, like if you wear strong strong glasses. And, like
feeling of kind of partition inside your head and some type of — well, I don’t
know. It’s much always — also the dizziness. And I figured if I trying to
push myself too much, then after business I would have diarrhea and sometimes
get some headaches, as well.
Q Now, when you talk about
dizziness, what symptoms of dizziness do you mean? Or what forms of dizziness?
A Well,
by dizziness, I mean, well, you have this feeling of heaviness in your head and
the feeling kind of a spinning inside your head. And I might get the feeling of
kind of instability. Well, actually when I was doing some, like, physical
activity it could also be some light light-headedness.
[43]
Mr. Moukhine describes dizziness as a heaviness in his head, a
spinning in his head, instability, and light-headedness when doing physical
activity.
[44]
In cross-examination he gave this description:
Q Okay. I’m going to suggest to
you that it’s not the dizziness
that’s limiting you, is it?
A And what it is?
Q No, I’m just suggesting to
you it’s not just – – it’s not
the dizziness that limits you from working full time, do you agree or disagree?
A Uh, I’m not a doctor
unfortunately.
Q No, but you are an individual
and you do know how you feel?
A I — I — I — know that
what happens is that I’m getting
symptoms of like heaviness in my head and like dark in my head and it’s – – it’s getting more – – more difficult to concentrate, to think
things through and to remember
things. And then it might also
give the nausea. And that – – the thing that at that point I cannot think through properly and I cannot, like, make proper decisions. That’s what stops me from doing my work.
Q Well, I’m just trying to do
it a different —
A Unfortunately, all the
symptoms, they come all together
Q Im trying to do it a
different way.
A Okay.
Q All Im saying to you is the
dizziness is not what limits you from working to full time, is it?
A Uh, this is – – this feeling
of- – of like, heaviness in my
head and feeling the – – the difficulty
[indiscernible/coughing] right and difficulty to – – to think through and
difficulty to remember, which
bothers me that I – – that I have
to stop working. But all this comes together, these difficulties.
Q Okay. You were examined for
discovery on the 21st day of March 2011? Correct?
A Right. I don’t remember the
date.
Q I’m going to show you a
transcript and you can refresh
your memory with that.
A Okay.
Q Did you affirm to tell the
truth in that examination for
discovery?
A Yes.
Q Okay. Sir, if I can take you
to page 181 of the transcript.
A One hundred and?
Q One eight one.
A One eight one. Yes.
Q Question 1145.
A Okay.
Q [As read in]:
Q Okay. Is there no dizziness
involved here when you are working on the computer?
A Well, it is. Well, sorry.
Well, it is. It is also like if other effects is dizziness and nausea but well,
I can somehow live with this. I mean, in the sense that I can still continue
working if I only had dizziness and nausea.
Q Okay. And if I can summarize what I believe you
said in your direct examination, whats limiting you from your work is your
inability to concentrate, your inability to think clearly, a heaviness in the
head which you — at times you have described in direct examination as a like
flu sensation, correct?
A Sorry, sorry, what sensation?
Q Like a flu sensation? Like the flu?
A Yes.
Q Yeah, okay. And at times, Id suggest to you
youve different descriptions for all of this? Youve at times, referred to it
as clouds in your head?
A Yes.
Q Youve referred to it as, cotton in the
brain?
A Yes.
Q Okay.
A. Its hard to describe.
Q Pardon me?
A It is hard to describe.
Q I know. But Im going to suggest to you that
one constant descriptor that youve used many times and again and again is,
Fog in the head?
A Maybe, I –I dont remember that.
Q Okay. Well, you used it with Dr. Beckman
on at least three occasions its in his report?
A Yeah.
[45]
Earlier in the discovery, in answer to question 385,
also read in at this trial, Mr. Moukhine was asked:
385 Q Okay. This heavy
head or fog in the head that you describe, this is what’s keeping
you from working full time?
A Yes.
[46]
In 2008 Mr. Moukhine and his wife travelled to Cuba for a vacation.
While he was there he felt quite a bit better and was able to do some of the
exercises given to him by Dr. Longridge for balance, including being able
to throw and catch small objects.
[47]
In 2009 Dr. Longridge conducted more tests including one involving
a shaking platform. The symptoms during that test were similar to those he
suffered after working on a computer: spinning in the head, heaviness in the
head, nausea and shakiness.
[48]
With regard to work, at that time he was attempting to work for three
hours per day.
[49]
In later 2008 and 2009, he commenced treatment with a physiotherapist,
Nicola Accera at NeuroMotion. His physical condition became better after some
initial set-backs but he still had the same problem with concentration.
[50]
In April and May 2010, Mr. Moukhine went to Hawaii with his wife
after his daughter passed away. He was allowed by his team leader at work to
work from there for a month. As he was in the middle of an important project at
the time, he had to work as much as he could. He started at 7:30 a.m. and would
work until 11:00 p.m. for a total of about four to five hours of work.
[51]
Since the motor vehicle accident. Mr. Moukhine is unable to run or
jog, ski, play soccer, dance, kayak, or rollerblade. He is able to do simple
hikes without much elevation and with rest breaks.
[52]
After the accident, he was able to drive only for 10 to 15 minutes
before needing a rest of 5 or 10 minutes. That gradually improved. He is now
able to drive for an hour. He was unable to do any housework for the first
month or two, then could wash dishes and do minor household repairs. After a
year he could mow the lawn. Now he can do quite a lot at home including cutting
down a tree although it takes longer than it used to before the accident.
D.
The Evidence of the Plaintiffs Family
[53]
The evidence of Marina Moukina, Mr. Moukhines wife, is that she
met her husband in 1980. She is also a computer programmer with a Masters
degree. She worked as a programmer in Russia and in Canada until 2005.
[54]
She describes life with Mr. Moukhine prior to the motor vehicle
accident as his being in perpetual motion and always energetic. He felt that he
was the luckiest person because his job was his hobby as he was so fanatic
about programming.
[55]
He was always an active person who loved car trips, cross-country
skiing, bicycling, hiking, soccer, kayaking, ballroom dancing, and downhill
skiing. He did most of the house renovations after they bought their house in
2000. Prior to the motor vehicle accident, she says he was a person who liked
the active life a lot. His health prior to the motor vehicle accident was mostly
fine although there were minor problems such as myocarditis and a blood
pressure problem at one time.
[56]
Prior to the motor vehicle accident, he had no problems with balance. He
had been a gymnast when younger, and had never reported nausea or dizziness.
[57]
With regard to work, he liked his work so much that he would not stop
working until she reminded him. It was also his hobby. He often got calls at
home at night if other co-workers were having difficulties. Before the accident
he was the architect who designed major projects. Now he is mostly a
consultant.
[58]
Since the accident his personality has changed. He tries to do his best
and remain optimistic.
[59]
Although the ability to watch television was not mentioned by the
doctors, Ms. Moukina noted the difficulties of her husband with television.
It is improved now from after the accident but still creates problems.
[60]
As Ms. Moukina does not drive, she has relied on Mr. Moukhine for the
driving in the family. His ability to drive has improved since the accident but
she still worries about his ability to drive for long distances.
[61]
Ms. Moukina describes her husband before and after the motor
vehicle accident as two different people. Before the accident he was
sharp-minded, quiet, organized, with an incredible ability to work and
socialize and enjoy life. He just could not sit still. Now, for the most part,
his life is sitting still and resting. There is much less socializing. She sees
that there is almost no fun left; although he can enjoy nature and communicate
with their cat, life is not what it was before.
[62]
The evidence of Anastasia Moukina, Mr. Moukhines daughter, who is
29, is that her father was always active: skiing weekly in the winter, hiking,
including the Chief at Squamish, rollerblading, playing tennis and camping. She
describes his personality prior to the motor vehicle accident as being a
healthy, happy guy who loved his job and loved computing. He was a wonderful
skier, able to do the black diamond runs. When camping he would climb trees. On
family motor vehicle trips, her father would drive 99% of the time.
[63]
Since the accident, he is able to walk about half an hour before he
becomes pale and dizzy and has to sit down. On the trip to Fairmont, B.C. in
2009 he relied on her for most of the driving.
E.
The Evidence of the Plaintiffs Friends
[64]
Mr. Moukhines friend Elina Kapoustina has a Masters degree in
computer science. She met Mr. Moukhine in 1999 when they both worked at
Future Shop. They have since kept in touch as family friends.
[65]
She describes Mr. Moukhine before the collision as being active and
happy, skiing or hiking every weekend and running almost every morning before
work. He was a key player on the Future Shop soccer team, practicing and
competing in tournaments. His personality prior to the motor vehicle accident
was happy, open, enthusiastic, and energetic.
[66]
Mr. Moukhine was recognized by his employer for the quality and
complexity of his work. He was named to an elite group of key IT people. He was
passionate about his work.
[67]
Ms. Kapoustina was in the vehicle, carpooling with Mr. Moukhine
as he drove to work on the morning of the collision. She testified that the
collision has had a great impact on his life. At first he found it hard to
walk, but over time that improved so now he can go on longer walks. She does
not see him running or skiing or hiking. He does not dance at their parties. Last
year he missed her wedding in Whistler as a result of not feeling well which
was unusual for him. He has had to hire people to do some of the work on his
house.
[68]
As a general observation, she describes Mr. Moukhine as a
person who was so full of life, but now is like a wilted flower.
[69]
Alexander Khrissanov is a friend of Mr. Moukhine and a
computer programmer. They worked together for five years.
[70]
Mr. Khrissanov described Mr. Moukhine as one of the
best specialists in the field that he has seen. Everyone respects him.
[71]
Before the accident they often spent time together kayaking,
skiing, hiking and rollerblading.
[72]
Since the accident, Mr. Khrissanov understands that Mr. Moukhine
has quit all sports.
F.
Video Surveillance Evidence
[73]
Mr. Moukhine was surveilled on four occasions: November 15, 2007,
May 10, 2009, June 5 to 7, 2009 and March 20, 2011.
[74]
The initiation of surveillance by the defendants
on November 15, 2007 was purely coincidental.
[75]
The plaintiff’s evidence was that as a result of
the caloric test of November 8, 2007, he suffered vertigo for a period of four
days. This was a set-back, and led to his seeing Dr. Stewart on November
15, 2007. Dr. Stewart, that day, was of the view that Mr. Moukhine
needed to immediately stop the gradual return to work that he had commenced on
October 29, 2007.
[76]
The defendants investigator, Mr. Palm,
observed Mr. Moukhine and his wife depart their residence at 8:27 a.m. and
arrive at Dr. Stewart’s at 9:33 a.m. after 66 minutes without a rest. Ms. Moukina
said that this exceeded her husband’s capacity to drive on that day. Mr. Moukhine
said that he was not sure if he stopped, and might have driven without
stopping.
[77]
In the video clip when Mr. Moukhine comes
out of Dr. Stewart’s office, he drives to Gastown for another appointment.
He is shown leaving the parkade at the waterfront and walking to the
homeopath’s office.
[78]
The video clip of 1:54 p.m. shows Mr. Moukhine
accurately parallel parking his car across the street from Dr. Stewart’s
office.
[79]
The return trip home commences leaving Dr. Stewart’s
office at 2:11 p.m. They arrive home at 3:34 p.m., or in 84 minutes. Ms. Moukina’s
evidence is that this exceeded Mr. Moukhine’s then limit by 34-44 minutes.
The investigator has no note of a stop.
[80]
The explanation of Mr. Moukhine is that
with the 84 minute trip, they must have stopped along the way since the usual
time is 55-65 minutes and the usual route home is with a stop.
[81]
The abridged video of May 5, 2009 shows Mr. Moukhine
and Ms. Moukina out for the day.
[82]
On June 5, 2009 the plaintiff worked three hours
and then proceeded with a home improvement project, using what is commonly
referred to as a chop saw, squatting, crouching, or bending over.
[83]
On June 6, 2009 Mr. Moukhine is shown as he
hops up onto a chair, motions with his arms, hops down, moves the chair, and
then repeated the process.
[84]
On June 7, 2009 video, Mr. Moukhine stepped
onto a refrigerated display case in a busy store and reached up to locate an
item.
[85]
The last video is of the day of March 20, 2011. Mr. Moukhine
and Ms. Moukina drove from their home in Coquitlam to Mission. After
spending time at their place of worship, they drove east to Harrison, shopped,
and then drove back to Coquitlam. They stopped at a gift shop, a deli, a gas
station, while waiting for a train, and at a market.
MEDICAL REPORTS
A.
Overview
[86]
The plaintiff called as witnesses Dr. Stewart, his general
practitioner, and Dr. Longridge, Mr. Moukhines treating
otolaryngologist. Reports from Dr. Prout and Dr. Spacey, neurologists to
whom Dr. Stewart referred him, were filed.
[87]
Dr. David, an otolaryngologist, was called
as a witness for the defendants. He saw Mr. Moukhine on one occasion and
wrote a full report. In addition Dr. Beckman, a neurologist, testified about
his report. The defendants filed a report from Dr. OShaughnessy, a
forensic psychiatrist.
B. Terminology
[88]
Medical terms are frequently used in the reports and evidence of the
doctors. The descriptions of the terms below are taken primarily from the
evidence of Drs. Longridge and David who are both otolaryngologists. They are
intended as an aid and do not purport to be a medical dictionary.
·
The balance system is comprised of three parts: The skin on
ones feet and joints; vision; and the vestibular system or inner ear.
·
BPPV or Benign Paroxysmal Positioning Vertigo is a disorder of
the inner ear caused by calcium particles becoming detached and floating into
the canal. It is accompanied by a form of eye movement referred to as
positioning nystagmus.
·
Computerized Dynamic Posturography (CDP) test is a six-part test
used to measure the ability to balance. It was developed by Nasa and is used worldwide. It is also
referred to as the SOT or Sensory Organization Test.
·
CVEMP or the Cervical Vestibular Evoked Myogenic Potential is a
balance system test which became available in November of 2010.
·
Hallpike Manoeuvre is a test which assists in identifying Benign
Paroxysmal Positioning Vertigo. It is also referred to as the Dix-Hallpike.
·
Dizziness is a non-specific term which indicates a substantial
incapacity of the balance system. It can be spinning vertigo which is described
by the international sign of a swirling hand. It can be described as
light-headed or heavy-headed and it can be accompanied by vomiting. It
generally is a miserable feeling.
·
Labyrinthe is the balance mechanism inside the inner ear.
·
Nystagmus is an involuntary beating eye movement, either fast or
slow. It has different forms including spontaneous, induced, positional and
positioning.
·
Otolaryngology is a medical specialty concerned with diseases and
disorders of the ear, nose and throat including balance disorders.
·
Tinnitus is a noise heard when there is no sound. It is
significant if it is persistent and intrusive. It is frequent with ear disease,
including trauma.
·
VEMP is Vestibular Evoked Myogenic Potentials, which is an
electrophysiologic test of otolith function.
·
Vertigo indicates spinning or having ones surroundings spin
around them.
·
Video Oculography balance testing includes a caloric component
which can simulate dizziness.
·
VVM or Visual Vestibular Mismatch occurs when dizzy symptoms are
induced by activities around a person such a striped carpet or activity in
shopping malls. It is accompanied by dizziness, imbalance and nausea. One of
the instigators is the use of a computer. Visually induced vertigo and visually
induced dizziness are new terms being used internationally.
C.
Dr. Donald W. Stewart
[89]
Dr. Stewart is Mr. Moukhines general physician. He first saw Mr. Moukhine
eight days after the accident, on May 1, 2007. At that time he reported soft
tissue injuries to the cervical spine, dorsal spine and lumbar spine. He also
reported dizziness and nausea.
[90]
On the first visit, Dr. Stewart noted true vertigo, with the room
spinning around the patient. On neurological examination there was no nystagmus
noted.
[91]
Dr. Stewart diagnosed the dizziness as a likely traumatic injury
to the labyrinth causing dizziness and nausea, so called concussive labyrinthine
injury. With regard to a note of cerebral concussion, Dr. Stewart stated
in his first medical legal report dated January 28, 2008 that:
Although he did not strike his
head and was not unconscious but due to the heavy forces involved in this collision
the brain likely shifted inside the skull, striking the back and the front of
the skull causing edema. Symptoms of concussion.
[92]
From May 25 to June 6, 2007, Dr. Stewart noted that Mr. Moukhine
continued to experience pain in the back of the head and dizziness with all
movements. He also noted:
…great difficulty with balance
and concentration, and memory, difficulty remembering recent events. He had
brain fog and feelings of confusion most of the time. Even after walking for 15
minutes he found it necessary to lie down as he felt weak and dizzy.
[93]
The MRI scan of the head done on July 11, 2007 was normal.
[94]
Dr. Stewart referred Mr. Moukhine to a neurologist, Dr. Prout,
and to Dr. Longridge.
[95]
On October 18, Dr. Stewart discussed with Mr. Moukhine his returning
to work on a graduated schedule starting October 29. Mr. Moukhine was
concerned about returning to work with severe headaches, but planned with Dr. Stewart
a trial on a schedule of three days at three hours per day increasing to five
days at five hours per day by the week of December 10. However when that
schedule was attempted, Mr. Moukhine had great difficulty due to headaches
and lack of mental clarity.
[96]
Dr. Stewart noted that after the caloric testing performed by Dr. Longridge
on November 8, 2007, the dizziness and headaches again became much worse.
[97]
On November 15, 2007, Dr. Stewart recommended that Mr. Moukhine
stay off work completely until the dizziness became less severe. His notes from
that day state:
…Brain fog + lack of mental
clarity from Traumatic Brain injury + concussion as well as labrythine
disturbance…. The prognosis is good for resolution of soft tissue injuries….
The prognosis is guarded for the injury to the labrynth. … It is now 7 month
and the dizziness is still quite severe.
[98]
Although Dr. Stewart stated during cross-examination
that with the plaintiff’s condition on November 15, 2007, he should not have driven
a car that day, there is no mention of driving in his notes.
[99]
In his testimony, Dr. Stewart clarified his statements regarding
driving to mean that he could not drive without rests as his report indicates
that Mr. Moukhine could not drive for six months.
[100] When seen
by Dr. Stewart on January 17, 2008, the dizziness was slightly less but it
increased markedly with intense concentration as required in Mr. Moukhines
computer work. He was still experiencing headaches. Dr. Stewart also noted
that he could not drive his car, do household chores or recreational activities.
He commented that:
The accident had a profound effect
on all aspects of his life reducing it to an extremely poor quality.
[101] By
February 28, 2008, the dizziness had decreased allowing Mr. Moukhine to
work for a total of 3 hours per day. Throughout 2008 Mr. Moukhines
ability to work was limited to 1 hour three times a day with 2 to 3 hours of
rest in between.
[102] In late
2008 and early 2009 Mr. Moukhine began seeing Dr. Nicole Acerra, a
physiotherapist at NeuroMotion Physiotherapy Clinic, who works with head
positioning exercises to improve the functioning of the labyrinth. Exercises
initially made the dizziness worse but by March 5, 2009, the dizziness was
beginning to decrease again and by mid-May his ability to work was back to 1
hour three times a day. It is noted that therapy also assisted his tolerance for
driving.
[103] As of June
25, 2009, Mr. Moukhine had completed the treatment with NeuroMotion and
was able to turn his head from side to side without dizziness. His
capacity to work remained at 1 hour at a time before needing a rest. Work
beyond 1 hour at a time aggravated the dizziness.
[104] By January
2010, Mr. Moukhines working capacity was at 1 hour and 20 minutes three
times a day before the dizziness increased. On March 11, 2010, Dr. Stewart
noted that Mr. Moukhines ability to work was not improving and he felt discouraged
and frustrated. If he worked over 1 hour the dizziness and headache increased. The
limitation again remained at 1 hour three times per day.
[105] In May
2010 when Mr. Moukhine was in Hawaii he worked hard to complete a project
with a deadline. At that date, Dr. Stewart also noted that the soft tissue
injuries were approximately 90% resolved. There was a diagnosis of a cerebral
concussion and post-concussion headaches, a concussive labyrinthine injury and
severe ongoing dizziness.
[106] In his
report dated May 17, 2010, Dr. Stewart noted that the total disability was
from two days after the accident on April 23, 2007 until October 29, 2007 when Mr. Moukhine
returned to work on a reduced work schedule from his home office. The partial
disability continues from October 29, 2007.
[107] In July
2010, Dr. Stewart noted a slight improvement as in hot weather there was a
general feeling of wellbeing and reduced dizziness. In August 2010, the
work schedule was 2 hours work and 2 hours off with that schedule repeated for
a total of 4 hours work per day. There was continuing dizziness.
[108] Dr. Stewart
noted that Mr. Moukhine has a marked[ly] decreased capacity for work due
to his injuries. In noting that he is well motivated to work more, Dr. Stewart
testified that that comment originates in his observations of Mr. Moukhines
frustration as a result of him being a well educated gentleman with a Ph.D. who
had been working for ten years at a high level on stimulating projects. His
observation was that Mr. Moukhine wanted to get back to working on the top
level projects and was frustrated at being stuck.
[109] In October
2010, Dr. Stewart noted that the usual work schedule is 3.5 hours per day
before causing Mr. Moukhine extreme mental fatigue, an inability to focus
and concentrate, and a decrease in memory.
[110] The
prognosis in Dr. Stewarts last report dated January 21, 2011 is that
there has been very little improvement in the dizziness [and] in his capacity
to work. It is likely that there has been a permanent injury to the labyrinth
and it is unlikely to recover.
[111] The conclusion in that report states:
The accident of
April 23rd 2007 is directly responsible for the soft tissue injuries to his
neck as well as the labyrinthine concussive injury and ongoing dizziness. He
has marked decreased capacity for work due to his injuries. This is quite
legitimate. He is well motivated to work more and get back to his previous work
capacity but due to the way the dizziness becomes worse with mental work, he
simply cannot. Working beyond his usual 3-1/2 hours per day causes him extreme
mental fatigue and inability to focus, concentrate and he experiences decreased
memory. He also experiences general malaise and weakness and he must lie down
and rest.
D. Dr. Alister
Prout
[112] Dr. Prout
is a neurologist who saw Mr. Moukhine at the request of Dr. Stewart. He
wrote a report dated August 21, 2007.
[113] The
symptoms noted by Dr. Prout are primarily headaches and dizziness. The
dizziness suggested a degree of Visual Vestibular Mismatch.
[114] As he did not
seem to lose consciousness, it is unlikely that he suffered a concussion. Dr. Prout
stated that he was optimistic that Mr. Moukhine would be returning to work
in six months.
E. Dr. Neil
S. Longridge
[115] Dr. Longridge
is the head of the division of otolaryngology at the University of British
Columbia. He is also a member of the Bàràny Society, which is the premier world
society on investigation of balance disease.
[116] Prior to Dr. Longridges
first report dated September 9, 2009, he saw Mr. Moukhine on July 24,
November 8 and November 22, 2007, February 5, June 24 and September 18, 2008
and February 5, 2009.
[117] On the
first visit Mr. Moukhine reported to Dr. Longridge that he initially
had dizziness in episodes lasting up to an hour with, as Dr. Longridge
noted, an associated vertiginous rotatory spinning sensation. In addition to
this he was aware of a constant, slight, mild rotatory dizziness much of the
day, perhaps eight hours of the day when he was up and about. His balance was
not quite as good as it had been. When working on a computer he would have
trouble looking at it because of the dizziness.
[118] On July
24, 2007, Dr. Longridge formed the impression that he had dizziness which
was a significant and intrusive complaint with a mild persistent ongoing
dizziness much of the day most days with acute episodes of vertigo occurring
once a week lasting about an hour. Some balance rehabilitation exercises were
prescribed to optimize function.
[119] On
November 8, 2007 Mr. Moukhine had Video Oculography balance testing which
includes a caloric sensation which stimulated the dizziness he had experienced the
first few weeks after the accident. The results were normal. Dr. Longridge
concluded that the rotatory nature of his dizziness arose from the balance
system of the inner ear as a result of Mr. Moukhines reaction to the test.
Balance exercises were again encouraged.
[120] In his September 19th report, Dr. Longridge noted
that:
His episodes of
dizziness are rotatory in character and were simulated by the sensation induced
during the caloric part of the Video-Oculography (VOG) test undertaken at my
request on November 8, 2007, in the Neuro-Otology Unit at Vancouver General
Hospital. The similarity of his complaints to the feeling induced by the
caloric part of the Video-Oculography (VOG) test means that it is probably
arising from the balance system, probably of the inner ear. Results on this
test were within the normal range. This is frequently the case in someone who
develops dizziness post trauma
[121] Through
September 18, 2008 Dr. Longridge noted that the symptoms persisted
unchanged. Mr. Moukhine had found some information on the internet on the
use of hyperbaric treatment as a therapy, but Dr. Longridge explained that
there was no easily effective therapy available. Rehabilitation was again encouraged.
[122] When Mr. Moukhine
saw Dr. Longridge on February 5, 2009, he requested and Dr. Longridge
permitted him to undertake the therapy for Benign Paroxysmal Positional Vertigo
or BPPV although Dr. Longridge was of the opinion that was not the
disorder as the duration of the spells were significantly too long. Although he
felt it unlikely that Mr. Moukhine would benefit, the treatment was
harmless and he encouraged him to undertake it.
[123] In his first
report of September 9, 2009, Dr. Longridge was of the opinion that the
dizziness was probably arising from the balance system, probably the inner ear.
As the onset of the complaints was subsequent to the accident and the
complaints were absent prior to the accident and in the absence of any other
satisfactory explanation, his opinion was that the accident is the probable
cause.
[124]
During the period until the first report, Dr. Longridge noted some
improvement in the dizziness symptoms but also noted that there was still difficulty
with dizziness in specific circumstances with rapid close movements such as
cleaning a skillet. The main limitation was the dizziness induced by computer
use. Dr. Longridge wrote:
Frequently
this is seen in people who have Visual Vestibular Mismatch.
Visual Vestibular Mismatch refers to a
condition where the patient develops symptoms which are distressing and
bothersome. Anyone who has been sitting at a traffic light on an incline and
suddenly notices that they are falling back down the incline and rapidly slams
their foot on the brake has experienced a situation where a car next to them is
in fact moving slowly forward and they misinterpret this and think that they
are going backwards. This is a visual vestibular mismatch situation. The
individual has had an awareness of visual information misinterpreted into the
feeling that they are moving. This is a physiological visual vestibular
mismatch. The condition of visual vestibular mismatch which is abnormal or
pathological is of similar distressing symptoms induced by a situation where
normal people do not get symptoms. Where there is a lot of movement around the
individual this causes confusion, distress and dizzy symptoms. The reason for
this dizzy symptomatology is that the information from the balance system of
the ear, as the patient is moving, does not synchronize or mesh with the
information that the patient receives from their own vision resulting in
awareness that there is a difference between the two and a sensation of
dizziness is produced. Particular situations where this occurs are ones with a
lot of movement. Characteristically rippling water and also the standard
situation of a lot of movement in a supermarket or shopping mall produces
awareness of dizziness. The bright light in these circumstances is
frequently complained of. People around the patient are moving relatively
indiscriminately and this results in a dizzy sensation. This patient has
ongoing symptoms of this disorder. They are limiting him and stopping him
returning to normal function. He is managing to work somewhat, but his reduced
duration of computer time is a significant handicap.
Unfortunately,
this patient has ongoing dizzy symptoms subsequent to a motor vehicle accident
in which he was involved. This accident was, by his description, significant,
and the difficulties he has are long-term. My experience with dizziness is that
it can be expected to improve for a period of two years following an accident
and whatever remains at the end of that time is probably going to be present on
a long-term, permanent, basis. These present complaints are long-term.
[125] The
tinnitus was noted to be mild and not a major handicap.
[126] Dr. Longridge
provided four further reports regarding Mr. Moukhine. The report dated
January 14, 2010 describes the CDP test which was undertaken on
December 9, 2009 in the Neuro-Otology Unit at Vancouver General Hospital. The
patient stands with feet slightly apart looking at a visual surround of clouds
and blue sky in increasingly difficult balance circumstances.
[127] The
equipment was developed for NASA and was used to test astronauts after being in
space. The patient is asked to maintain his stance and the amount of swaying
which occurs is measured. Characteristic patterns of abnormality are recognized.
The results of this test were abnormal indicating that Mr. Moukhine has
difficulty maintaining stance particularly in the most difficult condition, but
also with a composite score below the accepted limit for normal. Dr. Longridge
characterized these findings as objective and confirmatory of a measured
abnormality of the balance system which is supportive of Mr. Moukhines
complaints. The test results support Dr. Longridges opinion that Mr. Moukhine
has dysfunction of his balance system.
[128] The report
of Dr. Longridge dated May 5, 2010 responds to the report of Dr. David
dated January 5, 2010. Dr. David stated that there is raw data confirming
a diagnosis of BPPV. Dr. Longridge responds that by definition, Mr. Moukhine
does not have BPPV.
[129] The reason
for the response is that a diagnosis of BPPV requires dizziness when the
nystagmus is visualized in the patient. There was no dizziness at the same time
as the nystagmus, and Dr. Longridge also noted that the dizzy spells of Mr. Moukhine
were too long to be related to BPPV.
[130] Dr. Longridge
also commented on Dr. Davids critique of the CDP test. He stated that
over the last 15 years the knowledge of this technique has expanded and this
testing is now done throughout the world on a standardized system. He quotes an
authoritative 2008 article by Cohen and Kimball which concludes that the CDP is
an effective and informative method of measuring the balance system.
[131] The report
of Dr. Longridge dated February 8, 2011 was written as a result of the
request for a re-evaluation with respect to ongoing symptoms of dizziness and
tinnitus.
[132] The
tinnitus is not intrusive or significant. Mr. Moukhine continues to take
naturopathic therapies to assist with his symptoms.
[133] The
dizziness and some heaviness of the head occurs if he goes for a walk of 45
minutes or more. Nausea and sometimes diarrhea develop if he uses a computer
for more than the present maximum of three hours per day.
[134] The
opinion of Dr. Longridge at this date was:
This patients symptoms persist largely
unchanged now almost four years post accident. It is unlikely that there will
be significant further improvement in the future. His complaints are
significant and intrusive. I stand by the statements made to you in my report
September 9, 2009, with respect to this patients complaints of tinnitus and
dizziness.
[135] The last
report by Dr. Longridge is dated April 19, 2011 was written in response to
a request for him to review the report of Dr. Beckman dated March 1, 2011.
[136] With
regard to Dr. Beckmans statement that there has not been any objective
evidence of vestibulocerebellar disorder, Dr. Longridge responded with reference
to the measured abnormality on the CDP test taken December 9, 2009. That test
was repeated March 31, 2011 and on that date the test was in the normal range. However,
a new test, the CVEMP test, was also undertaken on the same day. The new
balance system test had become available since December 9, 2009. This test was
abnormal which suggests that there is something wrong with the right saccule of
the inner ear. This is an objective test and this measured abnormality
indicates malfunction of the right inner ear.
[137] Dr. Longridge
concluded by stating:
The objectively measured findings confirm that the patient
has a measured abnormality of balance function and therefore, the complaints of
difficulties with visually induced symptoms related to computer use have
laboratory support.
This patient’s
symptoms persist largely unchanged now almost four years post accident. It is
unlikely that there will be significant further improvement in the future.
F.
Dr. Roy O’Shaughnessy
[138] Mr. Moukhine was referred to Dr. OShaughnessy by the
defendants for an independent psychiatric assessment to determine if he has
suffered any mental disorder or brain injury as a result of the injuries
sustained in the motor vehicle accident of April 23, 2007.
[139] In his report dated June 21, 2010, Dr. OShaughnessy discussed
the concern as to whether Mr. Moukhine had a concussion as a result of the
accident. He concluded on the basis of Mr. Moukhines report to him that
there was no evidence of any loss of any consciousness, loss of awareness, or
amnesia and his review of other medical records confirmed that there was no
amnesia, but rather simply the reaction to an unexpected event such as this.
[140] With regard to whether there was a concussion based on the symptoms
reported, Dr. OShaughnessy discussed this as a very gray area insofar as
there are multiple different schematas for determining whether a person has had
a concussion. From the doctors review of Mr. Moukhine and the other
material, he did not think that Mr. Moukhine actually had a concussion
although he respects Dr. Stewart and Dr. Spacey, another consulting
neurologist, who thought that he possibly had a concussion because of the other
complaints.
[141] Dr. OShaughnessys evidence was that most of the symptoms, for
example the dizziness, are due to vestibular difficulties. The headaches are
likely cervicogenic and the problems with concentration seem to be related to
the fatigue and dizziness. There is no impairment in cognitive function.
[142] The report of Dr. OShaughnessy concluded that the accident
resulted in soft tissue injuries as well as vestibular difficulties which are
not within the area of psychiatric expertise and do not require treatment
psychiatrically.
G. Dr. Jeff H. Beckman
[143] The report dated March 1, 2011, from Dr. Beckman was written in
order to give a neurologic opinion with regard to injury sustained by Mr. Moukhines
motor vehicle accident on April 23, 2007.
[144] Dr. Beckman commented that both reports at Eagle Ridge Hospital
refer to headaches being the major complaint, and there is no report of vertigo
on review of the hospital records eleven days following the accident. He noted
that Mr. Moukhine still has dizziness and problems with concentration,
memory and fatigue.
[145] The report concluded that there is nothing to suggest that a
concussion was sustained and that the headaches would be compatible with cerviocogenic
headaches also known as a mild whiplash injury. Dr. Beckman understood
that the headaches seemed to have nearly resolved by three months following the
accident and expects that he should have been able to return to part-time work
after those three months. After six months following the accident most likely Mr. Moukhine
should have been able to do his previous job on a fulltime basis.
[146] Dr. Beckman did not feel that the symptoms of subjective memory
and concentration difficulties were a result of a traumatic brain injury. He
stated that there has not been any objective evidence of vestibulocerebellar
disorder, but only subjective complaints.
[147] Dr. Beckman agreed with Dr. OShaughnessys interpretation
that perhaps Mr. Moukhine over-interprets some relatively normal
phenomena.
H. Dr. Eytan David
[148] The objective of the report of Dr. David dated February 5, 2010
was to establish whether there is medical evidence of causal connection between
the motor vehicle accident and the auditory vestibular (hearing/balance)
complaints. Mr. Moukhine attended for one appointment with Dr. David
during which his history was taken and neurotologic testing was conducted. Dr. David
is a specialist in otolaryngology and is a member of the Scientific Review
Board for the Journal of Otolaryngology.
[149]
In his report Dr. David stated his
impressions as follows:
S.M.’s history, medical documentation, clinical examination and objective
examination are suggestive of resolved posttraumatic right benign paroxysmal
positional vertigo (BPPV). S.M. describes onset of episodic rotary
hallucination approximately seventy-two hours post-MVA. He describes duration
on the order of seconds to minutes of each episode, no attendant hearing loss or
change in tinnitus. He describes daily such symptoms mainly on lying back in bed
lasting the order of several weeks. This clinical history is suggestive of BPPV
which he is characterized by discrete episodes of rotary hallucination on
turning the head, classically on lying down and rolling over in bed. The
short duration of symptoms, lack of other focal neurologic symptoms is commonly
associated with BPPV.
[150] He stated that this constellation of symptoms is suggestive of
posttraumatic BPPV in its onset, character, duration and resolution. He went on
to state that Mr. Moukhine described his current balance functioning as
good overall and describes mild symptoms of imbalance. The term suggestive of
is not the same as diagnosis.
[151] There was no evidence of ongoing BPPV at the clinical neurotologic
examination conducted at the appointment with Dr. David. However on
reviewing the raw data from the Dix-Hallpike maneuver conducted by the office
of Dr. Longridge in November 2007, Dr. David concluded that a
diagnosis of right Benign Paroxysmal Positional Vertigo (BPPV) was present at
that time. The basis for his conclusion was the fatiguing nystagmus in the
Hallpike hanging right position. He concluded that this data is sufficient to
diagnose BPPV at the time. There was no vertigo accompanying the nystagmus in
that test.
[152] In his testimony Dr. David stated that it is not necessary to
have the concurrent symptom of rotary hallucination, or vertigo, on turning the
head when lying down during the test at the time that the nystagmus is observed.
He stated that BPPV can be diagnosed without rotary hallucination on turning
the head. He testified that nystagmus in the Hallpike position can only be
caused by BPPV and that nystagmus in the Hallpike position is diagnostic of
BPPV without concurrent rotary hallucination.
[153] In this case Dr. David concluded that the criteria were met
because of the history taken from Mr. Moukhine which stated that the
vertigo in that position lasted minutes. Although in cross-examination Dr. David
agreed that at the time of related head position, rotary hallucination of less
than 1 minute, or measured in seconds, is suggestive of BPPV, there was no
reference in his notes of Mr. Moukhine having reported such symptom
lasting only seconds.
[154] In summary, Dr. David stated that Mr. Moukhine presented
with post-traumatic symptoms suggestive of BPPV which followed expected
clinical course and resolution within several weeks. He describes BPPV as a benign
and self-limiting disorder. He stated that there is documentation of BPPV in
November of 2007 but no further medical documentation of subsequent BPPV
symptoms or physical signs on examination. He concluded that the post-traumatic,
in order words, attributable to the motor vehicle accident, right BPPV has
resolved and there is no evidence of other discrete inner ear dysfunction and
no ongoing auditory vestibular contraindication and to return to full
function.
[155] With regard to the CDP test, Dr. Davids opinion was that it is
not a useful stand alone diagnostic tool although it can be used to follow
improvement over time or detect patterns of malingering.
[156] Although Dr. David took a history including Mr. Moukhines
complaints of a heavy head, it did not form a part of his diagnosis as a
result of his clinical judgment. His report does not address the ongoing
difficulty with computer use.
[157] The report of Dr. David does not contain discussion of the
vestibular mismatch addressed by Dr. Longridge or suggested by Dr. Prout.
He stated that it is not a diagnosis.
[158] Dr. David stated that there are many causes for a label of
dizzy, not just vestibular. Dr. David does not agree with Dr. Longridge
that light-headed is one way of describing dizziness.
[159] Dr. David agreed in cross-examination that vestibular symptoms
can be spinning or non-spinning and that spinning symptoms equate to vertigo.
The definition or understanding of the term dizziness is in its infancy and has
not been adequately addressed. The terminology and vocabulary is problematic
and the inaccuracy of patient self-reports is frequent, with less than 30%
accuracy in this field.
[160] With regard to the usage of the terms dizziness and vertigo, the
doctor was of assistance to the Court. Dizziness is a generalized imbalance or
spatial disorientation, while vertigo includes movement of the visual surround.
He explained that they are tough labels and that the frequent imprecision in
usage can lead to a wrong diagnosis. The words are used by different people in
different ways.
[161] In conclusion of his cross-examination Dr. David agreed if the
symptoms of Mr. Moukhine are permanent, the problem is permanent. He could
not say that the problem is vestibular.
SUBMISSIONS OF THE PARTIES
A. Plaintiff
[162] There is no dispute between Mr. Moukhine’s health care
providers and the medical experts retained by the defendants that Mr. Moukhine
sustained a vestibular injury as a result of this collision. The diagnosis of
the injury is in dispute.
[163] Two objective tests have confirmed Mr. Moukhines vestibular
dysfunction.
[164] Given the objectively measured vestibular abnormality, and the
medical opinion of ongoing partial disability with no likelihood of significant
further improvement, it is evident that Mr. Moukhine will continue to experience
income loss indefinitely into the future.
[165] The undisputed consensus of Mr. Moukhine, his family, friends
and co-workers is that he loved his work, was very good at it, and worked very
hard at it.
[166] In January 2008, Mr. Moukhine returned to work, and has since,
by trial and error, found the optimum work times and the optimum break times
that he can manage with his vestibular dysfunction.
[167] The case closest although not completely on point is the decision in
Edwards v. Marsden, 2004 BCSC 590, where Visual Vestibular Mismatch was
combined with psychological injuries, and non-pecuniary loss was assessed at
$100,000.
[168] The Plaintiff says that he has suffered an injury of significance
that affects his enjoyment of day-to-day life, as well as his ability to earn
income and gain satisfaction from his employment. He attributes all of this to
the motor vehicle accident, and theorizes that he suffers from a complaint
known as Visual Vestibular Mismatch. He says these complaints are permanent,
and there is absolutely no chance of recovery.
[169] For this he seeks a substantial damage award.
B. Defendants
[170] The defendants concede that the plaintiff did suffer an injury for
which he is entitled to damages. They say at best the plaintiff has established
a soft tissue injury to the neck, shoulders, and upper back which in and of
itself was not functionally disabling to any great degree, and headaches which
resolved by June of 2010. The defendants also say that the plaintiff suffered
episodic vertigo which resolved a few weeks after the accident itself.
[171] The defendants
say the plaintiff is deserving of, when compared with the plaintiffs demand, a
modest damage award.
[172] Although the plaintiff presents to Dr. Stewart and Dr. Longridge
as someone with a significant functional disability, when he does not know that
he is being observed, he performs normally.
[173]
On the matter of motivation, Dr. Stewart, in the
conclusion of his most recent reports states: He is well motivated to work
more and get back to his previous work capacity…".
[174]
Dr. Longridge in his September 9, 2009 report
stated that the plaintiff reported to him: "… he estimates rather than
work a full day now he can work three hours and it has had a significant impact
on his income."
[175] The plaintiff does not, on a cash flow basis, have any financial
motivation to return to work. Since August 2007 his earnings have consisted of
T4 earnings on which he pays tax, and long term disability which comes to him
free of tax.
[176] The analysis set out below demonstrates that after taking into
account T4 income, deducting Federal and Provincial taxes and employment
insurance premiums, and then adding back tax refunds and long-term disability (LTD)
payments, there has been no substantial change in the plaintiff’s financial
position.
| 2005 | 2006 | 2007 | 2008 | 2009 |
T4 Income | $84,205.00 | $93,620.00 | $87,280.00 | $32,527.00 | $41,977.00 |
(Tax) | ($13,329.00) | ($19,196.00) | ($14,199.00) | ($3,600.00) | ($5,766.00) |
(E.I.) | ($949.00) | ($729.00) | ($720.00) | ($562.00) | ($719.00) |
Tax Refund | $9,097.00 | $5,877.00 | $10,791.00 | $5,936.00 | $6,302.00 |
LTD | 0.00 | 0.00 | $12,129.00 | $48,472.00 | $35,073.00 |
| $79,124.00 | $79,572.00 | $95,281.00 | $82,773.00 | $76,867.00 |
[177]
It follows then that the plaintiff is not financially
motivated as he has not been beset by any significant loss of income. It should
be noted that the 2007 income included a vacation payout of approximately
$11,124.
[178] The defendants submit that a fair and reasonable award for
non-pecuniary damages would be akin to a top-end moderate to severe soft tissue
injury with total disability for a period of six to eight months, and residual
complaints continuing for two to three years.
[179] The highest award within the last three years is $70,000; Garcha
v. Duenas, 2011 BCSC 365. The 58-year-old male plaintiff was, prior to the
motor vehicle collision, a very hard working individual both at work and around
the home. He became irritable, antisocial with his own family, and did nothing
inside or outside of the house of significance.
DISCUSSION
A. Diagnosis
[180] The issue regarding the diagnosis of Mr. Moukhines symptoms is
now whether he has VVM as diagnosed by Dr. Longridge or had BPPV which was
Dr. Davids suggested diagnosis. The determination of that issue requires
an analysis of his symptoms and an examination of the medical evidence.
[181] Counsel for the defendants advises that the diagnosis changed as the
case developed and proceeded to trial. At first this was a vestibular injury,
but with the advent of Dr. David’s opinion there was a question of whether
or not it was a psychiatric injury. With Dr. O’Shaughnessy’s opinion one
had to turn to whether or not it was a neurological disorder, a concussion. This
is important to this case, because the plaintiff’s descriptor of "fog in
the head" may be consistent with Post-Concussion Syndrome.
[182] Initially Dr. Stewart
diagnosed his injury as a cerebral concussion. Dr. Spacey, a neurologist,
reported on December 18, 2007 that his symptoms were compatible with a
diagnosis of Post-Concussive Syndrome.
[183] Dr. OShaughnessy,
in a report dated June 21, 2010, was of the opinion that Mr. Moukhine did
not have a concussion or any symptoms of Post-Concussion Syndrome as he did not
have actual impairment in awareness, memory or consciousness. He thought
that most of the symptoms were due to vestibular difficulties, and opined that
the problems with concentration seemed to be related to complaints of fatigue
and dizziness.
[184] Since that
time the evidence has become clearer that there was no loss of consciousness at
the time of the impact. Based on that finding, the neurologist, Dr. Beckman,
stated in a report dated March 1, 2011 that there was not a concussion. Later Dr. Stewart
noted that the initial diagnosis of concussion may have been in error. I do not
find that Mr. Moukhine suffered from a concussion as a result of the
collision.
[185] The symptoms experienced by Mr. Moukhine in the first days,
weeks and months after the MVA on April 23, 2007 are only in issue in limited
respects. There is a question on the evidence as to which days of the first
week he stayed home from work, and on which day in the first week he first felt
that the computer screen was shaking in front of his eyes. It is however
accepted that he had true vertigo which commenced within days of the MVA and
which lasted weeks to two months. For that period of time objects moved in
front of his eyes.
[186] The first symptom was a headache on the evening of the accident, April
23, 2007. When he went to Eagle Ridge Hospital emergency in the early afternoon
of the second day he reported headaches and stiffness in the upper back.
[187] Mr. Moukhine missed at least one day of work in the first week
as a result of dizziness, nausea, headache and objects spinning. His
recollection and the payroll records of the day or days missed is not clear. His
reporting to Dr. Stewart of commencement of the rotational component of
vertigo is different by a day from his evidence at trial. I conclude that by
the third day he had the symptoms of full vertigo.
[188] On his first visit to Dr. Stewart on Tuesday, May 1, 2007, vertigo
was present and the diagnosis was of concussive labyrinthe injury. There were
also symptoms of soft tissue injury.
[189] On the second visit to the hospital on May 2, 2007, the intake
records of the Emergency department noted concerns which included headache
worse, confused, uncoordinated. The diagnosis was post-concussion symptoms.
[190] The vertigo lasted for several weeks as Mr. Moukhine confirmed
to Dr. Longridge on July 31, 2009. It returned for four days after the
caloric test performed by Dr. Longridge on November 8, 2007.
[191] When the vertigo stopped, the shaking of objects including the computer
screen stopped as well. From this point onward to the present the symptoms were
experienced by Mr. Moukhine internally. I conclude that after the vertigo
stopped, the dizziness continued.
[192] Those complaints are often described by Mr. Moukhine as
"fog in the head" or heaviness in the head. The meaning of
heaviness in the head was discussed in his examination in chief, cross
examination and discoveries. The excerpts are set out in paragraphs 42, 44 and
45 above.
[193] Heaviness of the head is how both Mr. Moukhine and Dr. Longridge
have described one of the feelings that Mr. Moukhine experiences in his
dizziness, in addition to spinning, light-headedness or disbalance.
[194] Mr. Moukhine
describes heaviness in the head preventing him from being able to work longer
hours. Dr. Stewart reported dizziness as a symptom of Mr. Moukhine
working too long. Dr. Longridge stated that heavy-headed is one of the
indicators of dizziness and notes that dizziness is a non-specific term.
[195] I find Mr. Moukhine
to be a credible witness. I accept that his descriptions of heaviness or
fog or, sometimes, mist in the head describe what is to the doctors a form of
dizziness. I accept that this feeling and the inability to concentrate or
think through prevents him from working at his job as a computer programmer
for more time than he describes that he is now able to work.
[196] In evaluating the evidence of Mr. Moukhine, I am mindful that English
is not his first language. At times in his testimony he struggled to find the
appropriate words to respond to a question. Prior to his injuries, he did not
know the meaning of the word nausea.
[197] In evaluating the consistency of reporting his symptoms and the
doctors consideration of the symptoms, I am also mindful of the imprecision of
the language and terms used in this area of medicine.
[198] In finding
Mr. Moukhine to be a credible witness I have considered the issue of his
ability to drive and pattern of driving as shown on the surveillance videos,
particularly the video of the drive on November 15, 2007, the day of the
appointment with Dr. Stewart. There are some inconsistencies regarding his
pattern of driving to Dr. Stewarts and the homeopath and his ability to
drive as described by him and his wife.
[199] The investigator’s evidence was largely confined to his notes, which
contain only the departure and arrival times. He stated that he does not have a
recollection of whether they stopped or not, but assumes that they did not
because he would have recorded a stop.
[200] By
November 15 Mr. Moukhine was able to drive a car. He drove to and from
work, a 45-minute drive, on his attempt to return to the office on October 29. It
was only for four days after the caloric test of November 8 that the full
symptoms of vertigo returned. November 15 was one week after that test.
[201] The
evidence of Mr. Moukhine and his wife is that he required rest stops. I
accept the evidence of the surveillance investigator that if there had been a
stop on the drive to Dr. Stewarts office on November 15 he would have
recorded it. He did not record a stop, and I conclude that there was not a stop,
but instead continuous driving which is consistent with the time taken by the
journey. This is somewhat inconsistent with the evidence of Mr. Moukhine
who said that he was not sure if he stopped.
[202] Taking
into account the extra time taken on the return trip and Mr. Moukhine and Ms. Moukinas
usual practice of stopping at a food store on the way home to Coquitlam, it is
likely that he did take a rest break on the way home even though it was not
noted by the investigator. The other videos of him driving clearly show rest
stops in various forms.
[203] In his report of January 28, 2008, Dr. Stewart indicated that Mr. Moukhine’s
ability to drive was limited for six months following the collision of April
23, 2007, which would therefore be from April to October 2007, not to November.
On the witness stand, Dr. Stewart clarified this as meaning the ability to
drive without taking breaks.
[204] The video
of June 2009 which shows Mr. Moukhine doing household and yard work is not
inconsistent with his evidence that he was able to go back to doing home
maintenance projects after a year, and that his ability to do so continuously
improved. As there is not a sufficient evidentiary basis to conclude that his
use of a chop saw at that time is inconsistent, I decline to make any
conclusions in that regard.
[205] The surveillance evidence contradicts the plaintiffs evidence only
to the extent that I have concluded that the drive to Dr. Stewarts office
on November 15, 2007 occurred without a rest stop. This also exceeded his
wifes view of his ability to drive. His actions and appearance in the other
videos are not such that I can, based on my observations, make findings that
his evidence has been contradicted by the videos.
[206] The
symptoms in the first two months were: spinning of objects (or true vertigo),
headaches, dizziness, nausea, lack of balance, inability to concentrate,
tinnitus, sore neck and upper back, problems with ability to drive, and
inability to work due to the headaches, dizziness, nausea and inability to
concentrate.
[207] Mr. Moukhine
frequently described the improvements to his condition. That progress is
reflected in the reports he made to Dr. Stewart and Dr. Longridge.
[208] After two
months at the most, objects ceased spinning and the vertigo did not recur
except with the test of Dr. Longridge in November, 2007 and the initiation
of treatment with NeuroMotion in late 2008 and early 2009. Tinnitus appears to
have minimized within a few months. By June 2010 the headaches were mostly
resolved and now occur rarely and only when Mr. Moukhine works too long. Also
by June 2010 his neck was no longer in pain having been assisted by
chiropractic treatments.
[209] His
balance and dizziness were assisted by the treatment at NeuroMotion. His
balance is now relatively good and has sufficiently improved that he can again
do some yoga balance exercises.
[210] Mr. Moukhine
was able to drive more normally with breaks by October 2007. In 2009 he drove
to Seattle with two stops. However, in 2009 he found the longer drive to
Fairmont Hot Springs, B.C. difficult and relied on his daughters assistance. At
the present time he can drive for about an hour without a break. He is able to
do most of the home maintenance work that he did previously although it takes
him longer.
[211] In May
2010 when he was in Hawaii, Mr. Moukhine was able to work for longer hours.
As he was involved in an urgent project and felt better in the warm weather, he
worked for 74 hours over 14 consecutive days, or an average of 5.25 hours per
day. That schedule was not sustainable when he returned home but gradually,
over the four years, he has been able to work for longer hours at home.
[212] The
remaining symptoms and major concern of Mr. Moukhine throughout the four
years following the accident as relayed by him to the doctors who examined him
and to the Court has been his inability to use his computer for a significant
length of time in order to work at his occupation of computer programmer.
[213] At the
present time the symptoms of headaches, nausea, balance problems and dizziness
recur if he works too long. Mr. Moukhine still works from home. He is able
to work on a schedule that incorporates 60 to 90 minutes of work, a two-hour
rest, 45 to 60 minutes of work, then a rest, followed by another 30 to 45
minutes of work, for a total of 2.25 to 3.25 hours per day. He finds this
restricted ability to work frustrating.
[214] He remains
unable to participate in most physical activity which was previously an
important part of his life. He was an avid outdoorsman who enjoyed and excelled
at outdoor sports. I accept the evidence of the plaintiff, his family and his
friends that his life post-MVA does not include these activities. He is now
able to walk with little elevation change whereas previously he hiked and
climbed more vertical terrain. He no longer skis or kayaks. These activities
require a healthy vestibular system.
[215] I note
that Mr. Moukhine has been reluctant to and has not taken medications
offered to him by some of the doctors to alleviate some symptoms. Dr. Spacey
suggested Amitriptyline for the symptoms of his headaches but he declined as he
takes only homeopathic remedies. He also declined to take anti-depressants.
There is no evidence of a medication that would affect or improve the VVM.
[216] The issue
of the diagnosis of the vestibular injury requires consideration of the
opinions of Dr. Longridge and Dr. David. Each counsel provided
submissions regarding the opinions of these expert witnesses.
[217] It is
submitted by counsel for Mr. Moukhine that the opinion of Dr. Longridge
should be preferred for the following reasons. I summarise as follows:
Dr. Longridge’s opinion is consistent
with the patient’s history, clinical data, objective testing and medical
documentation.
Dr. David’s opinion is inconsistent
with his own history.
– He takes no history of the patient’s
vertigo lasting only seconds, and yet describes it as such in his opinion.
– He takes no history of the patient’s
vertigo occurring on turning the head, and yet describes it as such in his
opinion.
Dr. David’s opinion is also
inconsistent with itself.
– He concludes that BPPV has resolved
within weeks of the accident, and then diagnoses it based on a recording of
nystagmus made long after the BPPV has ostensibly gone away.
Dr. David’s opinion on the relationship
between BPPV and nystagmus, is inconsistent with the Manual of
Electronystagmography.
– He states that nystagmus in BPPV can
occur without vertigo, while the Manual of Electronystagmography states that
for Benign paroxysmal-type positioning nystagmus, the response must be delayed
in onset, transient, fatigable, and accompanied by vertigo
– Dr. David states that this Manual
is authoritative but wrong, without citing what, if anything, has supplanted
it.
Dr. David’s opinion is inconsistent
with the Medical documentation on this patient.
– There is no finding of nystagmus
requisite for BPPV, when the vertigo was most pronounced, and nystagmus
ostensibly most apparent, namely upon the first visit to Dr. Stewart.
– The diagnosis of resolved BPPV does not
account for persistent imbalance with rotary component "for much of the
day, perhaps eight hours", noted by Dr. Longridge upon first
examination.
– The diagnosis of resolved BPPV does not
account for symptoms of light-headedness and also heavy headedness reported to Dr. David
upon his assessment; and
Most importantly, the diagnosis of BPPV does
nothing to address the complaint of restricted computer use, which is Mr. Moukhine’s
main problem.
Dr. David’s opinion of resolved
vestibular injury is inconsistent with the objective findings of ongoing
vestibular damage in this patient.
Dr. Longridge’s last test, the VEMP
test, in his report of April 19, 2011 shows that: [
This test was abnormal
.]
– Dr. David’s VEMP test results
appear to show a significant difference between the performance of the left and
right ears, however, his test protocol is not designed to measure this
difference.
Dr. Longridge has supplied and approved
as authoritative, the Cohen and Kimble study accepted for publication by the
refereed Journal of Vestibular Research in February of 2009, which confirms
that SOT has moderately high specificity and moderate sensitivity. He states
that the test is not a substitute for clinical judgment, but should be used in
conjunction with it.
Dr. Beckman
has confirmed that he refers patients requiring SOT testing to Dr. Longridge
on occasion, and that he defers to Dr. Longridge’s opinion on the
objectivity of this test result.
[218] The following is a summary of the submission of counsel for the defendants
with regard to the evidence of the two medical specialists:
There is no evidence linking fog in the
head to dizziness or nausea.
The observation evidence [in the video
surveillance] does not bear out that which the Plaintiff has told Dr. Longridge.
Dr. Longridge relies, as objective
confirmation, upon the CDP/SOT results of December 2009.
– The fail on the December 2009 test was
borderline at best. In assessing this as a fail Dr. Longridge exercised
clinical judgment which he exercised in a different way in his published study.
The exercise of clinical judgment ought to be consistent.
– Dr. Longridge ignores the pass on
the CDP in March of this year.
– In so doing he ignores the reality that
the first CDP/SOT result may very well have been a false positive.
Dr. Longridge relies upon a 2009 study
which attributes high levels of
sensitivity and specificity to the CDP.
– Dr. Longridge ignores the fact
that the primary purpose of this study was to test the screening test held by
the authors, and that the secondary object of this study was to determine which
test or combination thereof would be best as a pre-screening for people before
in-depth diagnostic testing.
Dr. Longridge rejects the Meta-Analysis
of 1996 as being selective.
Dr. Longridge relies upon the CVEMP
test results as confirmation of a vestibular abnormality.
– The results are borderline at best, not
consistent with observations of the Plaintiff, and not consistent with Dr. David’s
VEMP results which showed normal latency.
Dr. Longridge rejects the diagnosis of
BPPV because the Plaintiff did not complain of dizziness upon administration of
the Dix-Hallpike maneuver.
– Dr. Longridge relies on a report
by another who is not before the Court. He also relies on a recording the first
mention of which was in May of 2010 when he wrote his critique of Dr. David’s
report of February 1, 2010. He also ignores that there is a difference between
vertical and horizontal BPPV.
Dr. Davids
opinion should be preferred because it is based entirely on evidence based medicine.
[219] Having
considered the submissions of counsel and the totality of the evidence, I
prefer the diagnosis of Dr. Longridge. He examined and treated Mr. Moukhine
from three months post MVA until April, 2011 — over the course of almost four
years. He administered a number of tests over this time period. Two of those
tests, in 2009 and 2011, had positive results indicating objective evidence of
the disorder diagnosed. In evaluating those tests he applied his clinical
judgment. The conclusion and diagnosis of Dr. Longridge was that Mr. Moukhine
is suffering from VVM. I accept that conclusion.
[220] Dr. David
states that the symptoms of Mr. Moukhine are suggestive of BPPV which
resolved within weeks or months. In making that diagnosis he relied primarily
on the Hallpike Maneuver test done by Dr. Longridge in November 2007 which
showed nystagmus when Mr. Moukhine turned his head while lying down. There
was no vertigo experienced at the time of the nystagmus. Dr. David was firmly
of the opinion based on his understanding of current diagnostic practices that
vertigo accompanying the nystagmus is not necessary for the diagnosis of BPPV.
[221] Dr. Longridge
disagreed with the suggested diagnosis of Dr. David and states that a
diagnosis of BPPV is not possible without brief periods of vertigo at the same
time as the particular form of nystagmus. Both doctors relied on their
understanding of current diagnostic procedures.
[222] With
regard to the issue of the accompanying rotational component, or vertigo, Dr. David
relied on the history which he took of Mr. Moukhine. There is, however, no
note made by him of Mr. Moukhine experiencing vertigo which lasted seconds
or on turning his head. The factual basis for the diagnosis is not present.
[223] In his
report Dr. David concluded that the BPPV resolved within several weeks,
and in cross-examination responded to a question regarding weeks or months
before resolution. However, Dr. David relied on the results of the test
conducted by Dr. Longridge in November 2007 which he stated were
suggestive of a diagnosis of BPPV. A diagnosis or indication based on a test
which was done more than six months after the accident is a test that was done
at a time which, in Dr. Davids written opinion, is after the BPPV had
resolved. It is inconsistent, and not in accordance with Dr. Davids
evidence, that that test could have indicated a condition which by then had
resolved.
[224] The
examination by and report of Dr. David did not take into consideration the
major complaint of Mr. Moukhine — that he could not work at his computer
for any extended period without exacerbating his symptoms of inability to
concentrate and think. A condition which had resolved within weeks of April
2007 does not adequately explain the continuing symptoms which I accept are
experienced by Mr. Moukhine four years after the MVA.
[225] I conclude
on the evidence as a whole that the Mr. Moukhine has proven that as a
result of the MVA on April 23, 2007, he has Visual Vestibular Mismatch which
has not resolved.
[226] I accept Dr. Longridges
opinion that it is unlikely that there will be further significant improvements
to Mr. Moukhines condition or symptoms.
B. Damages
i.
Non-Pecuniary Damages
[227] As has
been described above, this injury has had a significant effect on Mr.
Moukhine. It has resulted in continuing dizziness, primarily when he works on
the computer. He is now unable to work full-time in his professional capacity
as a computer programmer. He is well-educated; he has been successful and
accomplished at his job and was esteemed by his colleagues. He worked at a job
he loved.
[228] Mr. Moukhine
is no longer able to participate in many outdoor activities that formerly formed
an important part of his life, and he is not now the cheerful, outgoing and
active person that he was before the accident.
[229] The
evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov,
was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhines
evidence was understated and demonstrated an unwillingness to complain or dwell
on his limitations and inabilities. He could accurately be described as stoic.
[230] I conclude
that this motor vehicle accident has had very serious consequences for Mr. Moukhine.
There was a total disability for six months. The soft tissue injuries and
headaches were mostly resolved by June 2010. He is not yet fully recovered and
is unlikely to recover from the Visual Vestibular Mismatch.
[231] At the
present time the symptoms of headaches, nausea, balance problems and dizziness
recur if he works too long. Mr. Moukhine still works from home. He is able
to work on a schedule that incorporates 60 to 90 minutes of work, a two hour
rest, another 45 to 60 minutes of work, then another rest, followed by another
30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds
this restricted ability to work frustrating.
[232] In
considering the appropriate amount to award to Mr. Moukhine for non-pecuniary
damages, I have considered all of the cases submitted by counsel. The cases
which are most relevant are Edwards, and Garcha, submitted by the
plaintiff and defendants respectively. In Edwards, the plaintiff
suffered neurological damage and was awarded non-pecuniary damages of $100,000.
In Garcha, the plaintiff suffered soft-tissue injuries and was awarded
$70,000 in non-pecuniary damages. I find the injuries suffered by Mr. Moukhine
to be more serious than those in Garcha, but not as serious as those in Edwards.
[233] Each case
is to be assessed on its particular facts. Considering all of the circumstances
in this case including Mr. Moukhines age, the effects of the injuries
sustained in the accident and Dr. Longridges opinion that the vestibular
injury is likely permanent, I assess non-pecuniary damages at $90,000.
ii.
Past Wage Loss
[234] Mr. Moukhine
has been unable to return to full-time work at Accenture since the accident in
April, 2007. He continues to work part-time from home for the same employer.
[235] The income loss began at the time that his Short Term Disability or
Sick Pay Plan expired on August 6, 2007.
[236] His income
was largely protected in 2007 by sick pay, bonuses and vacation pay, but
dropped to $32,000 in 2008. It increased to $42,000 in 2009 and to $47,000 in
2010. It has never reached more than half of what he used to earn. He has not
received any further pay raises or promotions.
[237] The defendants raise the issue of what is the best source of
evidence on which to assess the Plaintiffs loss. They submit that there
is no reliable evidence in respect to the past loss of income because the
evidence of the representative of the employer demonstrates that their books
and records are in complete disarray.
[238] The defendants submit that the best source of evidence can be found
in the payroll statements and in particular the Plaintiff’s payroll statement
for the 31st day of March, 2007. The Plaintiff’s then current rate
of pay was $3,741.66 per pay period which equates to $7,483.32 per month. There
are approximately 4.75 months between the 7th of August, 2007 and
the 31st day of December, 2007. With that applied to the monthly
rate, the gross loss is $35,545.77.
[239] I prefer the submissions of the Plaintiff who relies upon the
evidence of an economist, Robert Carson. In his report of May
18, 2011, addresses the entire period of loss. He calculated inflation-indexed
gross past wage loss as being between $193,878 and $237,077, depending on
whether Mr. Moukhine would have received the promotion that Adam Edwards
was preparing for him, and whether he would have continued to receive larger
bonuses.
[240] With regard to the question of the amount of earnings, although the
time records of the employer have errors, I accept that Mr. Carsons calculation
of earnings with the combined use of the pay statements, T4 earnings and income
tax returns is the proper basis.
[241] With regard to the issues of the raise and promotion, Mr. Moukhine’s
former team lead, Adam Edwards, testified that Mr. Moukhine’s pay was
approaching the maximum of his pay scale at level D in Accenture, and that in
the spring of 2007, shortly prior to the collision, he was planning to start
the process of applying for a promotion of Mr. Moukhine from level D to
level C at Accenture.
[242] The process would usually take an average of three to six months but
could take longer. If successful, it would have resulted in a pay raise of approximately
$10,000 for Mr. Moukhine. Although
Mr. Edwards was unable to guarantee the promotion, he felt that he would be
able to get it approved for Mr. Moukhine, given Mr. Moukhine’s work
ethic and quality of work.
[243] Mr. Moukhine was very well regarded at work. His former team
lead, Adam Edwards, has described him as still the best programmer that he has
ever worked with. His co-workers, Alex Khrissanov and Elena Kapoustina, have
expressed high praise for his ability and contribution to the company.
[244] His salary rose from $57,000 to $93,000 in six years.
[245] The software, Event Handler, that he has designed, has stood the
test of time, and still plays an important part in the company, lasting far
beyond the average lifespan of company software.
[246] I conclude on the evidence of Mr. Edwards and Mr. Moukhines
co-workers, that he has proven that he would have received the promotion and
raise. However, given that the promotion may have taken some time and that the
economic situation in the year following the accident declined, I am not
satisfied that the raise would have been immediate, or in 2008. Thus, the
projection of Mr. Carson will be adjusted downward to allow for a raise in
2009 rather than in 2007.
[247] I agree with the Defendants submissions there is only one bonus
identifiable as being personal to the Plaintiff, the sum of $1,800.00 in 2007.
The balance of the bonuses fall into two categories.
[248] The first is the group bonuses. The Plaintiff is still a member of
the group. He has continued to receive group bonuses. There is no evidence that
what he has received is anything less than what he would have received
"but for" the motor vehicle accident. It cannot be assumed that these
bonuses have diminished.
[249] The other bonus is a retention bonus and there is no evidence establishing
its likelihood for Mr. Moukhine.
[250] In order to assess past wage loss, Mr. Carsons calculations
are a helpful starting point. However, he did not include calculations for past
wage loss taking into account that Mr. Moukhine would receive the raise
but not the bonuses. In addition, he testified regarding an error in Table 3 in
the revised tables.
[251] Taking into account all of these factors, I assess past wage loss at
$218,000 from August 2007 to trial.
iii.
Loss of Income-Earning Capacity
[252] Given the objectively measured vestibular abnormality, and the
medical opinion of ongoing partial disability with no likelihood of significant
further improvement, there is a real and substantial possibility that Mr. Moukhine
will continue to experience income loss indefinitely into the future.
[253]
In Perren v. Lalari, 2010 BCCA 140, Madam
Justice Garson reviewed the law regarding the methods of assessment of the loss
of future income and loss of future income earning capacity. In her review she
states:
[12] These cases, Steenblok
[v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)], Brown [v.
Golaiy (1985), 26 B.C.L.R. (3d) 353], and Kwei [v. Boisclair
(1991), 60 B.C.L.R. (2d) 393], illustrate the two (both correct) approaches to
the assessment of future loss of earning capacity. One is what was later called
by Finch J.A. in Pallos [v. Insurance Corp. of British Columbia (1995),
100 B.C.L.R. (2d) 260] the ‘real possibility’ approach. Such an approach may be
appropriate where a demonstrated pecuniary loss is quantifiable in a measurable
way; however, even where the loss is assessable in a measurable way (as it was
in Steenblok), it remains a loss of capacity that is being compensated. The
other approach is more appropriate where the loss, although proven, is not
measurable in a pecuniary way. An obvious example of the Brown approach
is a young person whose career path is uncertain.
[254]
The conclusion of her analysis is as follows:
[32] A plaintiff must always prove … 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 [v. Vallianatos, 2010 BCCA
20].
(Emphasis in original.)
[255] The defendant submits that the real possibility approach is not
going to be of assistance in this case. That is so because Mr. Carson was
asked to assume the 2006 and 2007 bonuses were indicative of future years. He
has taken them into account when averaging out income in 2011 dollars of
$102,247.
[256] The defendants submit that a better approach is the capital asset
approach as set out in Pallos, because of the Plaintiff’s capacity to
work, for example in Hawaii in 2010.
[257] I agree with plaintiffs counsel that the work accomplished during
the trip to Hawaii is evidence of his motivation to work. I find that despite
what is an objectively measured vestibular abnormality, Mr. Moukhine is
motivated to continue working to the best of his ability. The evidence of Dr. Stewart
is also of assistance in describing the motivation, and the frustration when he
was not able to work.
[258] The considerations regarding the raise and the bonus have been
addressed in the section above and apply equally to the loss of future income
earning capacity.
[259] In this case I find that Mr. Moukhines loss is a demonstrated
pecuniary loss [which] is quantifiable in a measurable way. (Perren para. 12)
He had steady, predictable employment in his field as a computer programmer. Thus
the earnings approach is appropriate for use in the quantification of that
loss.
[260] The plaintiff also relies on the actuarial tools supplied by Mr. Carson
in assessing this loss.
[261] Given that Mr. Moukhine is now earning essentially half of what
he used to, the plaintiff submits that the 50% loss rate in Mr. Carsons
example at Table 7 on page 10 of his report of February 4, 2011 is a useful
starting point in the assessment of the impairment of the future income-earning
capacity. I agree.
[262] That table provides example calculations of future loss at 60% or
50% to ages 62.5, 65 and 70 with three absent accident current rates of pay
used. The calculations most useful are for a 50% loss rate with work to age
65. The range given, depending on the rate of pay, is between $326,580 and
$359,559.
[263]
In all of the circumstances, I assess the value of Mr. Moukhines
loss of income earning capacity at $335,000.
iv.
Special Damages
[264] The claim
for special damages is comprised primarily of claims for Manulife Financial and
mileage charges, which are the largest part of the claim for transportation
costs.
[265] Mr. Moukhine is not seeking reimbursement for the cost of his
homeopathic expenses.
[266] The Defendants take issue only with the claim for mileage. They
submit that there is no proper evidentiary foundation in respect to the
distance and the per kilometer charge of 44 cents per kilometer. In addition,
there is no consideration of mileage incurred in combined trips such as the
Plaintiff going to Dr. Prout and Dr. Stewart in the same day, or to Dr. Stewart
and the homeopath in the same day or any other joint trips to caregivers. There
is no consideration of trips the Plaintiff would have had to make to Dr. Stewart’s
"but for" the accident for the benefit of his wife. Further, there is
no consideration for the cost that the Plaintiff would have had to incur to
drive to and from work five days a week had this accident not occurred.
[267] The balance of the special damages, $1290.85 is not in issue.
[268] The Plaintiff revised his claim for mileage and now accepts 30 cents
per kilometer, which is the rate paid to witnesses under the rules of Court.
This results in a total amount claimed for mileage and other special damages of
$2714.09.
[269] I am satisfied that each of the claims for mileage is appropriate
with regard to the destination and purpose of the trip.
[270] Special damages in the revised amount claimed, $2714.09, are
awarded.
CONCLUSION
[271] In summary, the damages of the plaintiff are assessed as follows:
-Non-pecuniary damages $
90,000.00
-Past loss of income $218,000.00
-Loss of income earning capacity $335,000.00
-Special damages $
2,714.09
[272] As Mr. Moukhine is only entitled to recover his net income
loss, I direct counsel to carry out the necessary calculations, with such
expert assistance as may be required, in order to determine the appropriate net
loss. They may apply if they are unable to agree.
[273]
With regard to the matter of costs, my tentative
conclusion is that Mr. Moukhine is entitled to his costs. If either side
seeks a different result they should make submissions in writing within 21
days. Any responsive submissions should be filed within 15 days thereafter.
The Honourable Madam Justice J. Watchuk