IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Demello v. Chaput, |
| 2013 BCSC 106 |
Date: 20130128
Docket: M106102
Registry: Vancouver
Between:
Michael Louis Demello
Plaintiff
And:
Shawn Rheal Chaput
Defendant
AND:
Docket: M112764
Registry: Vancouver
Between:
Michael Louis Demello
Plaintiff
And:
Hyunjin Han
Defendant
AND:
Docket: M121654
Registry: Vancouver
Between:
Michael Louis Demello
Plaintiff
And:
Diana Marie Simpson and Fariborz Saffari
Defendants
Before: The Honourable Madam Justice Maisonville
Reasons for Judgment
Counsel for the Plaintiff: | Valmon J. LeBlanc |
Counsel for the Defendants: | Christopher York |
Place and Date of Trial: | Vancouver, B.C. October 9, 2012 |
Place and Date of Judgment: | Vancouver, B.C. January 28, 2013 |
A. January 3,
2009 accident (the first accident)
B. September 2,
2010 accident (the second accident)
C. November 5,
2011 accident (the third accident)
IV. Impact
of Accidents on Life of plaintiff
Employment with Shaw Communications
Physical requirements of his job
Previous motor vehicle accident
accidents
Workplace Accident
February 2011
Mr. Demellos current status and
future outlook
Relationship with her Husband:
A. Ted
Bonazew Shaw Cable Foreman
B. Mark
Seymour Service Technician at Shaw Cable
A. Ralph
Cheesman Occupational Therapist
D. Dr. Andrew
Hepburn (orthopedic surgeon)
A. General
Non-pecuniary Damages
C. Past
Loss of Earning Capacity
D. Past
and Future Homemaking Capacity
E. Loss
of Future Earning Capacity
I.
Introduction
[1]
The plaintiff, Michael Demello, seeks damages arising from three
separate motor vehicle accidents which occurred in the Lower Mainland of
British Columbia. Liability for each of the accidents had been admitted.
Outstanding to be determined, are damages to be assessed for non-pecuniary
damages, loss of income, loss of future earning capacity and housekeeping
capacity, as well as certain special damages.
II.
Facts
[2]
The plaintiff lives with his wife, Leslie, in Richmond, British
Columbia. Prior to the first accident in 2009, they had one child, Caitlyn, who
was born in 2003. Their second daughter, Sienna, was born in 2011.
[3]
Mr. Demello was born on October 4, 1980. He was 28 years of
age at the time of the first accident on January 3, 2009, 29 on the date
of the second accident on September 2, 2010, and 31 on the date of the
third accident, November 5, 2011. He was 32 years of age at the time of
the trial.
III.
The Accidents
A.
January 3, 2009 accident (the first accident)
[4]
On January 3, 2009, the first accident occurred. Mr. Demello
was driving his Honda CR-V Wagon vehicle northbound on Cambie Street in
Vancouver at about 6:00 p.m., when he stopped at the intersection of 6th
Avenue. In the car with him were his wife and his daughter, Caitlin. It was
snowing that evening.
[5]
Mr. Demello had stopped for pedestrians and had his foot on the
brake. He turned his head to the right to watch pedestrians crossing the street.
His car was then struck by the defendant Mr. Shawn Chaputs 2004 Chevrolet
motor vehicle. The front of the defendants vehicle hit a spare tire located on
the back of the Honda. Mr. Demellos vehicle was pushed forward one or
two feet.
[6]
The Chaput vehicle sustained $3,700 in damages and the plaintiffs
vehicle sustained $188 in damages.
[7]
Mr. Demello claims injuries to his neck and back as a consequence
of this accident.
B.
September 2, 2010 accident (the second accident)
[8]
The second accident occurred at the intersection of Cambie and Dunsmuir
Street in downtown Vancouver. At 11:50 a.m., Mr. Demello was travelling
southbound on Cambie Street. He was operating a Shaw work vehicle, a Ford
cargo van. Upon approaching Dunsmuir, he observed a car ahead enter the
intersection, even though he still had the green light. While Mr. Demello
had the right of way, he could not stop in time. The other driver, the
defendant Ms. Hyunjin Han, entered the intersection against the red light.
[9]
Mr. Demello described the ensuing impact as hard. He gripped the
steering wheel to brace himself.
[10]
Ms. Hans vehicle, a four-door Honda wagon, sustained $7,000 in
damages and Mr. Demellos work vehicle sustained $1,800 in damages.
[11]
From that injury, the plaintiff claims injuries to his neck, back, wrist
and arms.
C.
November 5, 2011 accident (the third accident)
[12]
The November 5, 2011 accident occurred at the intersection of Cook
Road and Garden City Road in Richmond, B.C. at 1:45 p.m. The defendant, Ms. Diana
Simpson, was stopped behind Mr. Demellos car. She had turned in her seat
to look at her seven-month old child in the back seat when she took her foot
off the brake. The Toyota vehicle she was driving, which was owned by the
defendant Fariborz Saffari, consequently went forward and collided with the
plaintiffs vehicle immediately ahead.
[13]
Mr. Demello, his wife and their newborn daughter, Sienna, were in
their new vehicle, a 2011 Dodge Caravan. His wife was seated in the front, and
their daughter was in the back in a childs seat. On impact, Mr. Demellos
body moved forward and his vehicle moved forward. He was unsure, but his best
guess was the van moved forward a few feet.
[14]
He testified that he saw pictures of the damage to the vehicle. The
pictures had been taken at the repair shop. All the white plastic bumpers
under the cups under the bumper were crushed. The damage to his vehicle was
$1,246.12.
[15]
From this injury, Mr. Demello claims neck and back injuries.
IV.
Impact of Accidents on Life of plaintiff
A.
Michael Demello
Mr. Demellos
credibility
[16]
I find Mr. Demello to be a credible and sincere witness. No issue
was taken by the defendants in respect of Mr. Demellos credibility. I
observed him to be physically uncomfortable in the witness box. He was
shifting occasionally, had to rub his neck and at one time got emotional when
discussing what his future work options were. I find he was an honest witness,
endeavouring to accurately recall the details for the Court.
Background
[17]
He graduated in 1998 from Vancouver College High School. In January 2001,
after receiving a Management Systems Diploma from British Columbia Institute of
Technology (BCIT), he enrolled in BCITs electronic engineering program. He
finished the first year in January 2002, but ultimately did not complete
the program.
[18]
Mr. Demello has a younger brother and an older sister. He is close
to his family.
[19]
In September 2001, after a trip to Asia, Mr. Demello started
his own business with a family member, exporting products involving cell phone
chargers, laptop and other cell phone accessories. It was a very difficult
market to get into, and while they tried it for one year, the business was not
successful.
[20]
In January 2003, Mr. Demello and Leslie moved in together,
living with her parents. Shortly afterwards, they had a very happy surprise
with her pregnancy and the birth of their first daughter, Caitlin.
[21]
Mr. Demello commenced a telecommunications course at Vancouver
Community College and afterwards did a practicum at Bell Mobility. Due to a labour
strike, there were no job opportunities with Bell at that time in the Lower
Mainland, so after his practicum wound up, he took a job with Northwestel in
Yellowknife, Northwest Territories. He enjoyed the job; the pay was good, and
he was working on interesting projects, including doing surveillance work for
the whole of northern Canada. Mrs. Demello and Caitlin joined him. They found
life in Yellowknife to be very difficult, both physically and socially, so, to
keep the family together, he began to search out jobs in the Lower Mainland.
[22]
At the end of 2005, he obtained a job with V-Tech, a Richmond-based
electronics company. The family moved back to the Lower Mainland, first
staying with his in-laws in Vancouver and then, in 2007, moving into a
townhouse in Richmond. He stayed with V-Tech for two years until the company
began downsizing, and he was laid off in October 2007.
Employment with Shaw
Communications
[23]
Mr. Demello found work with Shaw Communications on February 25,
2008. He thought there would be a good chance for promotion if he started in commercial
installation, which was then a new department. His supervisors were Ted Bonazew
and Jade Gee. He stayed in the commercial installations department for approximately
nine to ten months.
[24]
For commercial installations, there are usually two people on the team.
A six-month training period occurs, during which they go on ride-alongs and
learn how to install cable and associated work, necessary in commercial
buildings.
[25]
Shaw is a union shop with a collective agreement in place between Shaw
Cable Systems and the Telecommunications Workers Union. The collective
agreement was entered as an exhibit.
[26]
When he started with Shaw, commencing March 24, 2008, Mr. Demello
worked as an installer. By the terms of the collective agreement, he received $27.55
per hour or 85% of a journeymans rate. This was increased to 90% after
6 months, and his pay rose to $31.61 per hour.
[27]
Mr. Demellos regular week was five days. He would work eight and
a half hours and get paid for eight hours. If he was working a Sunday shift,
he would receive 10% more. The shifts would rotate, starting with Monday to Friday,
then Sunday to Thursday. Each rotation would last for a two-week period.
[28]
After the initial six months, he worked as a commercial installer.
[29]
He never worked the night shift, but on rotation would work the late
shifts, which were 12:00 noon to 8:30 p.m. For overtime work, he would earn double
time. On top of that amount, Shaw would give him 6% vacation pay and RRSP
contributions of approximately 7.1%. After four hours of overtime, a meal allowance
would be given, and after a further 12 to 13 hours, an extra half hour break
was allowed.
[30]
There are two types of overtime at Shaw, scheduled and unscheduled. Mr. Demello
explained that scheduled overtime was on a voluntary basis, and was organized
through a sign-up sheet located in the foremans office. Unscheduled overtime was
when a job would run past the normal quitting time, and the installer would
stay late to complete it. As a commercial installer, he never worked scheduled
overtime and he has not worked unscheduled overtime since the accident.
Physical requirements of
his job
[31]
Mr. Demello explained the physical requirements for his job. It is
very physically demanding. He enjoys his job very much including servicing and
trouble-shooting for clients, stating [y]ou dont know what you are going to
go into. But while this makes his job interesting, it also makes it
challenging. In residential installations where he now works, there is a lot
of cable pulling involved and there is overhead work. In a residential
setting, there is usually existing cable on the site and the employees are
inside of a house. A commercial installation, on the other hand, usually
incorporates new equipment and there is more overhead work, requiring a different
skill set.
Overtime work
[32]
Mr. Demello testified that had he wanted to, from 2009 to 2011, he
could have obtained numerous shifts of overtime work. The sign-up sheet was in
his foremans office, and it was always available.
[33]
He is number 194 on the union seniority scale out of 300. In terms of
selecting individuals for overtime, union seniority, based on when one joined
the union and Shaw seniority have a bearing on the choice. Shaw seniority in
contrast, means the number of years an individual has worked with Shaw and it
is on this basis that it is determined how employees are going to take
vacation. While the company tries to limit overtime, Mr. Demello knew of
individuals who worked twelve days in a row.
[34]
Mr, Demello spoke of the type of overtime he has done this year. It is
unscheduled overtime, but it differs from before early 2012, in that an
installer now has to call the foreman who will determine if another installer,
working the evening shift, could be made available to continue the job if
not, the foreman will authorize the overtime. On those occasions where he called
for permission, he has never been refused the unscheduled overtime.
[35]
Mr. Demellos plans before the first accident were to work as much
overtime as possible. It was a sacrifice he would make in terms of parenting time
with Caitlin but the trade-off, he testified, was that he could also extend his
vacation to five weeks which he could devote to spending time with her. He
could rely on his in-laws to help with the care of Caitlin during the time both
he and Leslie would be working overtime.
Future considerations
[36]
Mr. Demello wanted to move to Vancouver because, he said, everything
is in Vancouver. By this he meant Caitlins French-immersion Catholic school,
located near Vancouver General Hospital. Caitlins violin lessons and orchestra,
and her soccer team are all in Vancouver. Mr. Demellos in-laws are in
Vancouver, his work is in Vancouver, and his reporting station is in
Vancouver. Mr. Demello indicated that he had taken steps to move and had
seen his banker, but he determined they were just not financially ready. In
2008, he had plans to work more overtime. He believed it would take two years
to achieve his goal of amassing $40,000 towards the move to Vancouver.
[37]
There have been several postings at Shaw for foremen, including two
since December 2011. The job posting descriptions for the foreman
position were entered into evidence. Mr. Demello stressed that the
individuals that were successful in those job competitions were hired after
him.
[38]
In order to be a foreman, in addition to knowing all the technical
aspects of the job, one must also be capable of doing all of the physical work
of an installer. He feels he is not in a position to apply because he cannot
do the ladder work necessary and thus is not physically fit for the job.
[39]
Another reason which would stand in his way of being a foreman is that he
has had to call in sick and has missed so much time at work that he would be
viewed as an unreliable employee. He does not see how he could be a
competitive candidate when he is not at work half the time.
[40]
He enjoys his job. In particular, he enjoys its autonomy, meeting and
helping others, and diagnosing, trouble shooting and fixing problems. Now, as
a consequence of the pain resulting from the accidents, he feels he has to be
more guarded in all of his physical movements, avoiding awkward motions and
positions.
Physical limitations
[41]
Mr. Demello is in pain much of the time, even upon awakening. He
does not enjoy working at all when he is in pain.
[42]
In Court, Mr. Demello became overwhelmed when he was asked about
his employment options. When asked why he had an emotional response, he
indicated that the year 2012 has been very hard since he returned to work. He
is working in pain and he has pain in his neck, back and hands. He states that
he is very sad, as his energy level is not what it once was.
[43]
He has contemplated leaving his job as a consequence of being in pain
during and after work but he indicates, I am scared. If I cant do my duties
at work, Im not sure how long Ill last. He notes that he is paid very well,
and he is unsure what type of job he could get to replace it. He has missed
just over 1,200 hours of work so far.
[44]
Were he to apply for another job, Mr. Demello testified he is
afraid they would naturally seek information about his work attendance at his
current employment and learn that he has a lot of absenteeism. He did not have
any physical problems before the accident. His job has a good medical plan.
If he were to change employers, he does not know if he could get a comparable
plan because, he says, he is worried that he would be seen as having a
pre-existing injury which would preclude him from obtaining proper health
benefits.
[45]
While it is possible he could work at a different job within the Shaw
company, for example in the warehouse, he indicated that he would not be happy
in such a position. He likes to be on the road, diagnosing and fixing problems
and meeting people.
Previous motor vehicle
accident accidents
[46]
Mr. Demello had been in earlier motor vehicle accidents between the
years 1997 to 2001 when he was a high school student. He had sustained injuries
in those earlier accidents, including injuries to his neck and back, but he
indicated that they were resolved within a few years. His last treatment in
respect of those accidents was in 2003.
Activities
[47]
Mr. Demello had been very active before the accident. He golfed,
went drift fishing on the Vedder River in Chilliwack with his brother, fished
off the Steveston or Jericho piers, took road trips to Seattle, and played
soccer, basketball and field hockey which he had participated in since he was a
child.
[48]
Prior to the accident, Mr. Demello had energy to play enthusiastically
with his daughter. Together they would go into child/parent play facilities
such as Crash Crawlys where they would climb in jungle gyms. He remembers one
time when it was snowing, he took Caitlin tobogganing at Queen Elizabeth Park
prior to school. He had no problem with his daughter jumping on him, and he would
carry her on his shoulders, arms and back.
[49]
Since the accident, Mr. Demello testifies that his recreational
pursuits have been significantly limited. He has difficulty playing full
rounds of golf, and has been to the driving range only a couple of times,
stating that he is unable to use his driver properly because he cannot make a
full swing.
[50]
Basketball is too difficult for him now, even on recreational teams, due
to fatigue and the pain in his back. He has tried to play field hockey with
his daughter, but cannot do even that because he has significant pain in his
lower back when he is holding the stick and crouching over. When he is
fishing, he finds standing in water and holding the rod properly hurts his
lower back.
[51]
Even driving holidays are a strain for him. Once, when travelling back
from the United States, his hands were in such pain that his wife had to drive
back, which was unusual in that normally Mr. Demello drove the family
vehicle.
[52]
The family attends church weekly. His wife plays the organ and Caitlin
plays the violin at mass. Mr. Demello noted that prior to the accident he
was able to hold his baby daughter throughout the church service, even as she
got heavier as she grew older. Now, however, he is unable to stand or kneel properly
and mostly sits with his daughter Sienna on his lap during services.
Therapy treatments
[53]
Since the first accident, Mr. Demello has suffered neck, back and
shoulder pain. He has had numerous treatments, including massage therapy,
chiropractic manipulation and physiotherapy.
[54]
Massage therapy relieved the pain, and he found the exercises given to
him by the massage therapist were helpful to relieve soreness. If he could not
move, he would visit a chiropractor who would perform manipulations on his back.
He eventually stopped seeing the chiropractor, however, as he was unsure if it
was helping and he did not like the treatment.
[55]
In April 2009, Mr. Demello first started therapy at Back In
Motion, a facility that serves persons with back injuries, which, he noted, catered
to his physical requirements for work. They recommended functional activities,
including strengthening, exercises and weight training, as well as overhead
work. By the end of treatment, he was able to return to work. Just before the
second motor vehicle accident, he felt he had improved 80% as compared to
before treatment. In terms of his ability to work, his best guess was that he
was at 60% to 70% of his pre-accident level. Before the second accident, his
energy level had also improved, and he had resumed playing with his daughter to
levels close to those before the accident.
[56]
Following the second accident, however, his symptoms renewed. Again, he
suffered back pain and there was, additionally, a new pain in his arms, as well
as numbness and tingling. He found this new injury to be very scary for [him].
He had neck pain with stiffness, he suffered headaches, and, initially, he had
problems with his shins and knees. The leg problems were resolved. He did,
however, have ongoing problems with his neck, back, shoulders and wrists.
[57]
Mr. Demello started attending physiotherapy at Oakmont near his wifes
parents home in Vancouver. He started physiotherapy in February after the first
accident. He found it was a helpful treatment, and he believed it made him
more mobile and relieved his pain. The physiotherapist showed him how to
stretch and gave him exercises which also helped with the numbness in his
arms. After August 2011, he stopped physiotherapy. He described in
detail his physiotherapy treatments and the assistance they gave him which
would be helpful for the pain. He felt before the third accident that he was
60%-80% recovered.
Workplace Accident February 2011
[58]
He described an incident which occurred in February 2011, when he
was working at Vancouver City Hall. As he was reaching over his head, into a
ceiling, he immediately felt something was not right. He returned to his work van
and was hooking up his tool belt when he felt the muscles in his shoulder
tensing up, and he could not continue. Consequently, he called work and
advised he could not continue. Because this incident occurred at work, his supervisors
indicated that they would have to start a Workers Compensation Board (WCB) claim.
He filled out an injury report, and when WCB called him, he related to them
that he had previously been in a motor vehicle accident. Following that, he again
received therapy from Back In Motion.
[59]
In both August 2011 and May 2012, he received cheques from the
WCB. He has never cashed them and his reason for not doing so is that he
believes his pain and ongoing problems are due to the motor vehicle accidents
and that WCB should not be compensating him for a workplace injury as a result.
While it appears on his income tax return that he received funds from the WCB,
I accept his evidence that his father-in-law had prepared his tax returns and
incorporated those amounts into them, but he never cashed the cheques from WCB.
During the course of trial, two of the cheques, dated August 31, 2011 and
May 24, 2012 respectively, were tendered into evidence intact.
Results of therapy
treatments
[60]
I am satisfied that the treatment he obtained and reviewed with respect
to massage therapy, physiotherapy, acupuncture and his treatment with Back In
Motion, were all appropriate for his recovery from this injury in order to get
him back to work and back to an active lifestyle.
Mr. Demellos current
status and future outlook
[61]
I accept that the accidents have had a devastating impact on Mr. Demellos
personal and work life.
[62]
In respect of his work life, he is deeply concerned that he cannot do
any work that will lead to a further advancement. He is capable of doing
office work but that does not appeal to him. He says he would rather stay on
the road as a cable installer as he enjoys troubleshooting, diagnosing problems
and meeting different people. He enjoys the autonomy of the job.
[63]
In terms of his ability to do housework, prior to the accident, he was
able to assist at least once a day for a full hour and at least three hours on
the weekend. He now finds everyday activities such as washing the dishes
difficult. Certain required manoeuvres cause him pain when doing small
household chores, such as folding the laundry. He testified that what used to
take him three minutes, now takes him ten. At the time of the trial, he was
able to do about 20 minutes per day of housework on good days. On bad
days, he could do none. The witnesses called on his behalf all noted that he now
has a stiffened posture and that he is frequently clutching and rubbing at his
neck.
[64]
Before the second accident, Mr. Demello estimated that he was
functioning at about 80% of his pre-accident level. Then, gradually, he
climbed back to the same recovery level before the third accident. He
indicated in his evidence that he felt about 60%-80% recovered before the third
accident.
[65]
After the third accident on November 5, 2011, his symptoms were
neck pain, back pain and ongoing trouble with his arms. He would schedule physiotherapy,
as well as massage therapy, in an effort to relieve his pain. He also attended
different physiotherapists, usually because of scheduling conflicts, to ensure
that he was seen on days that he was in pain. If one physiotherapist was
unable to treat him, he would see another. He also had acupuncture treatments.
[66]
At the time of trial, Mr. Demello was again attending at Back in
Motion in an effort to restore his strength, with the goal of being able to
handle the ladder weight he must contend with as part of his work. Because the
ladder weighs 80 pounds, he must be able to carry that weight at a minimum. He
had been approved for 30 sessions and had completed 24 at the time of his
testimony. At the time of trial, he was lifting approximately 38 pounds, so he
is approximately halfway to his goal. His workouts focussed on cardiovascular fitness
and strength training. He has also, with the help of his physiotherapist, been
working on the numbness in his arms. To accommodate his treatments, he is
presently working three full-time days and two half days per week.
[67]
Mr. Demello testified that he is simply not as efficient in his
endeavours because of his pain in doing tasks. He does things slower, but this
still results in pain in his hands. His social life, he feels, has diminished
because he has depleted energy and his priorities are work and family. He
finds that if he does not do his exercises, for example when he is on vacation,
he will lose ground.
[68]
He has purchased a gym membership on the advice of his physician.
Special items he has purchased to assist him include a baby carrier which cost $179.18,
and a number of other smaller items. Payment for a number of his medical
treatments has been covered by his insurer, Great West Life. He is, however,
under an obligation to repay them, should he receive anything from the
defendants in respect of his injuries.
B.
Leslie Demello
[69]
Leslie Demello met Michael Demello when they were high school students in
Vancouver when she was in grade 10. He was attending a different, all-boys
school. They are now married and have two daughters, Caitlin and Sienna. The
family resides in a townhouse in Richmond, British Columbia.
Her employment
[70]
She testified that after high school, both Mrs. Demello and Mr. Demello
obtained Management Systems Diplomas from BCIT. She graduated in the spring of
2001, and from 2001 through 2009, she took Human Resources courses and
part-time courses in order to advance her career.
[71]
Mrs. Demello worked at a number of jobs, including for an
accounting firm and for the Insurance Corporation of British Columbia. Since May 2008,
she has worked as an information systems application specialist at the Royal
Canadian Mounted Police, where she is an acting supervisor. In May 2009,
she was sworn in as a civilian member of the RCMP. The projects with which she
has been involved have been as diverse as the Vancouver Winter Olympics and the
Missing Womens Task Force.
[72]
She is presently on a care and nurturing leave, a benefit which can be
taken by RCMP employees after maternity leave. This is an unpaid leave for up
to five years. She plans to return to work beginning in 2013.
[73]
Mrs. Demello is hoping to advance within the RCMP. She could take
overtime if needed because her parents are always available to look after the
children.
Relationship with her
Husband:
[74]
Mr. and Mrs. Demello have been together since high school.
They were married on August 2, 2008. They enjoyed many mutual activities prior
to the accident including field hockey, golfing, biking, tennis, skating. They
like to watch movies and to socialize with friends.
[75]
Mrs. Demello says that Mr. Demello is an amazing father. He
puts a lot of time into looking after his daughters and, before the accident, was
good at picking up the responsibility of their care, helping around the house,
cleaning floors, taking out the garbage and doing the recycling. Mrs. Demello
says that Mr. Demello enjoyed taking Caitlin out, playing tag, skating and
throwing a frisbee. When Caitlin was two, he had her biking with training
wheels.
[76]
Mrs. Demello says that Caitlins birth did not affect Mr. Demellos
activities with his friends. He still went fishing, and played field hockey
and basketball. Together they played tennis. Field hockey was important to
him, and he would play games on weekends and practice once a week.
[77]
The Demellos enjoyed their family vacations and often travelled by car.
In 2006, the family went to California, in 2007 to Florida, and in 2008 to
Nevada. They have been to Disneyland and Disneyworld. They would have
travelled more, but in order to save for a home, they put any travel plans on
hold.
[78]
In terms of childcare for Caitlin, Mrs. Demello testified that her
mother and father, Caitlins grandparents were happy and willing to babysit. The
daily routine was for either Mr. Demello or Mrs. Demello to drop their
daughter off with her grandparents who would in turn take her to school and
pick her up. After work, Mrs. Demello or Mr. Demello would pick up
Caitlin. Sometimes, they would stay at the grandparents house for dinner.
First Accident
[79]
Mrs. Demello was in the car during the first accident on January 3,
2009. She recalls certain details about the accident, for example how she hit
her knee on the glove compartment or how far the car moved. She sustained
upper back and knee pain, and had a bruise on her right knee. She was off work
for a week after the accident. She saw a doctor and made a claim which has
since been resolved. She recalls that for a time she had difficulty getting
out of bed.
[80]
She recalls that Mr. Demello had trouble the next day. The first
month was hard for him, and he had problems with his neck and back. When he
was at home, all he wanted to do was to lie in bed. He would complain about
the pain, headaches, his neck and back, and not being able to move. She
describes his energy level as very low.
[81]
He went to physiotherapy and she encouraged him to do stretches at
home. Before the accident, she never had to encourage him to do exercise.
[82]
Shaw Cable encouraged him to come back for modified duties. He started
off part-time but began to complain about the pain that he endured when having
to do some filing. He was slowly building up his energy.
[83]
It was in 2009 that the Demellos had their Italian honeymoon. Mrs. Demello
recalls that Mr. Demello had to get up and walk during the flight. The
jet lag severely affected them, and they slept for most of the first few days
in Italy. While they were out walking, Caitlin would want to be carried, and Mr. Demello
could not carry her. She was turning six and was about 40 to 50 pounds so Mrs. Demello
would carry her because Mr. Demello was unable to so.
[84]
In the summer of 2009, after rehabilitation at Back In Motion, Mr. Demello
was improving. He was starting to do more, including golfing with friends. He
was involved in a golf tournament with Shaw and was biking with his daughter.
During that summer, he did complain of pain and he had difficulty swinging the
golf club, but he was enjoying his activities nevertheless. He was feeling
better and doing more things. In 2010, he even went white water rafting. His
energy level, however, was still low, although by the summer of 2010, he had gradually
improved, and was at about 78% of his usual energy level. They went to Hawaii
on vacation. On the airplane, as with the trip to Italy, Mr. Demello
would frequently have to stand up and stretch.
Second Accident
[85]
The second accident occurred on September 2, 2010. Mrs. Demello
was working for the RCMP in Surrey. Mr. Demello called her at work to tell
her what had occurred. He was at a parking lot, and he was very emotional; his
voice was cracking. He said to her why did this have to happen to me? I was
feeling better. She has heard him become emotional before, particularly when
his aunt died, and she recognized that he was upset at this time. From the
period of September 2010 to April 2011, he was very upset, wondering
why this had happened to him. She observed his spirits dropped a lot, and he
complained of feeling pain and numbness in his arms.
[86]
She had prepared a surprise birthday party for him on October 4,
2010, and he still seemed low at that time.
[87]
At this time, Mrs. Demello was pregnant with Sienna, who was born
in March 2011. Early on in her pregnancy, Mrs. Demello had
difficulty with hypertension, which was controlled by medication.
Nevertheless, she was counselled to take it easy around the house and to reduce
her stress. She was not placed on bed rest, but was advised to limit her
activities. Her mother would usually come once a week for three or so hours,
bringing food and helping with the cleaning.
[88]
From September 2010 to the next spring, Mrs. Demello does not
recall Mr. Demello doing any work around the house. She estimated that
normal household duties, such as cleaning and meal preparation, would usually take
at least an hour a day. On weekends, a larger and longer effort was required,
usually three hours a day. Mr. Demello would only be able to manage about
50% of that time. When they shopped for groceries, she would lift the heavy
items, even when she was heavily pregnant. She recalled that during this time
a friend of hers gave birth to a son and they went to visit the family at the
hospital. She held the baby and passed the baby to Mr. Demello. He
advised her that he would not be able to hold the baby for long because his
arms were going numb. This scared her that, when the time came, he would not
be able to hold his own new baby for very long.
[89]
Another occasion she found very upsetting was when her daughter Caitlin
wanted to learn how to ride her bicycle without training wheels. Outside the
complex where they lived, there is an area where Caitlin could ride her bike in
safety, going back and forth. Mr. Demello attempted to hold on to her
seat to steady the bike, but he was unable to keep at it. Mrs. Demello
tried, but being well on in her pregnancy, she too could not steady the bike.
She told her daughter not to worry, that her grandfather would teach her, and
indeed Mrs. Demellos father did teach Caitlin in March of 2011. Mr. Demello
was very disappointed about this as he had understandably wanted to be the one
to teach his daughter how to ride a bike and take part in one of the cardinal
moments of her life.
[90]
I found Mrs. Demello to be a credible and straightforward witness.
She was quite emotional while recounting Mr. Demellos distress when he
was unable to teach his daughter how to ride a bike without training wheels.
[91]
Mrs. Demellos second pregnancy had been difficult for her, and she
was hospitalized for a week to bring her blood pressure under control.
[92]
In March 2011, when Sienna was born, Mr. Demello was very
excited. He would stay the nights with Mrs. Demello at the BC Womens
Hospital, although he had to lie on the hospital bed with her as the chairs
made him very uncomfortable. During that summer, and right up to the third
accident, which occurred on November 5, 2011, Mr. Demello was
starting to return to helping. He was doing special projects in the back yard
including, with his brothers help, laying paving stones. His tolerance for holding
Sienna was improving as was his energy level.
Third Accident
[93]
Mrs. Demello was with her husband in the vehicle when the third
accident happened. They were in the intersection of Cook Road and Garden City Way
in Richmond, and were travelling in the right lane. She believes they were the
second car stopped at the light when they got hit from behind. She remembers
being pushed forward. She testified that she believed the 2009 impact was more
severe. She too sustained injuries from the accident and went to the doctor.
[94]
From the third accident to the present, Mr. Demello has tried to do
activities, but he is not at the same level as he was before the first and
second accidents. She testified she feels he is now at 70% of his capacity.
There has been improvement but it is not a constant improvement. He tries to
help out, but it depends on the week. They had been planning to sell their
house in 2011, but Mr. Demello has not been able to clean or sort the
clothes. Some projects, such as cleaning an accumulation of boxes in the
garage, are beyond his present capabilities.
[95]
As a father, Mrs. Demello feels that Mr. Demello does not have
the same energy level with Sienna as he had with Caitlin. He would sometimes lie
down on the floor and ask Caitlin to watch her little sister.
[96]
While Mr. Demello is now attending a rehabilitation program at Back
In Motion, Mrs. Demello does not feel that there has been the same level
of improvement as there had been in 2009. She feels that this time he is not
getting better. She describes him as being exhausted at the end of the day.
[97]
They have been struggling financially, to the point that he had to sell his
gold necklaces for a few hundred dollars. Mrs. Demello feels upset and
resentful at Mr. Demello, because he cannot assist but she knows that that
is not right. She feels that he is irritable, bringing negative energy into
the house. He snaps at their daughter and he swears, actions he never took
before the accidents. He seems to her to be uninterested in activities. For
example, a trip to the beach over the summer lasted only an hour. While he is
not good at expressing his emotions, this past spring she saw him breaking down
in frustration. Until then, she had not seen him cry since his aunt died in
2003.
[98]
In cross-examination, Mrs. Demello agreed that their parents are
not paid for babysitting or childcare or assistance, but they used to try to give
$200 to $300 a month.
[99]
As well in cross-examination, she agreed that Mr. Demello had
sustained an injury while at work and was on modified duties from February 2011
to August 2011. This was primarily related to his shoulder injury arising
from what occurred when he was pulling cable overhead at City Hall.
C.
Vincent Mariano
[100] Mr. Mariano
was a long-time friend of Mr. Demello, having known him since high school.
He is employed as a mortgage specialist at TD Canada Trust.
[101] I find Mr. Mariano
to be a credible and honest witness.
[102] Mr. Mariano
and Mr. Demello would often play golf. During the period of 2006 to
before the accident, they would golf once a week, doing a full course of eighteen
holes. They have not played golf since Mr. Demellos first car accident.
Mr. Mariano has invited Mr. Demello many times to play golf since,
but Mr. Demello has demurred, saying he cant.
[103] They still
socialize together, including attending childrens birthday parties in each
others houses. At social events, he observed that Mr. Demello lacks the
sense of energy he had in the past. He sees Mr. Demello is a bit stiff in
his back and in his movements. Mr. Mariano notices that Mr. Demello
has a hard time standing up quickly. Mr. Mariano has observed Mr. Demello
hold and rub his neck and shoulder area.
D.
James Demello
[104] James
Demello, Mr. Demellos brother, was called as a witness. He is presently
an articling student with a chartered accountant firm. He is five years
younger than Mr. Demello. Together they used to fish, camp and play field
hockey. Their father was also an avid golfer and bought them clubs when they
were young. James received his clubs when he was in Grade 8. Often, the
brothers would golf at various courses in Richmond and Surrey, playing a full eighteen holes.
His brother was not a very good golfer, but it was a matter of his poor technique
and not his ability.
[105] James
Demello testified their father had played field hockey, and when they came of
age, the brothers played with their father on a team in Richmond. Mr. Demello
and his brother played on the premier team. They also played on the B team
which was comprised of many older men in a less competitive atmosphere.
[106] Field
hockey is a very active sport with much running required. It was described by
James Demello as being like ice hockey on land. There is incidental physical
contact, but not extensive. Because their team did not have many players, they
were required to play about 90% of the game. They would play two games on the
weekend and one practice. When James went to the University of Victoria, he
played on their field hockey team and because they did not have a field on
which to play, they would come to Vancouver and play on the same field where he
would see his brother playing. The last time he saw his brother playing field
hockey was in 2005.
[107] Since the
accidents, James has asked his brother to join in activities with him on at
least three separate occasions but has been turned down every time.
[108] James assisted
his brother with improvements in Mr. Demellos back yard, which were very
labour-intensive. At the landscaping store, it was James who loaded the truck
with paving slabs and he who transferred all the slabs onto the wheelbarrow. Mr. Demello
did nothing but assist James and describe where the slabs were to go. It was
James who would push the wheelbarrow and align the slabs. Similarly, when the
Demellos were trying to sell their house in 2011, James assisted with moving
furniture and heavy boxes into storage. In March 2012, Mr. Demello had
to rely on James to help move things and set up for Siennas birthday party. Mr. Demello
did not move any of the chairs or tables.
[109] His brothers
energy level, James testified, is not the same. He is not physically active; he
does not golf or fish. He interacts differently with his children. He does
not carry his daughter for longer than ten minutes.
E.
Vilma Quintia
[110] I find Ms. Quintia
to be a credible witness. She is Mr. Demellos mother-in-law and a
retired registered nurse. Her husband was an accountant controller before his
retirement. English is her second language.
[111] Ms. Quintia
had known Mr. Demello for five years before Caitlin was born. In 2007,
the Demellos moved into the Quintias basement suite. She cared for Caitlin
and testified about her routine, taking her to school and picking her up. She
does not expect pay and she recalls one time that Mr. Demello left some
money in a drawer, and he told her to check the drawer. Since the accident,
she has provided substantially more child care and still babysits for Caitlin.
She is aware of all of the accidents Mr. Demello has been involved in.
She knows Mr. Demello is unable to do housework because he is incapable of
doing so. She testified to the help that her husband would do, such as moving
the boxes out of her son-in-laws garage.
[112] She
recalled Mr. Demello in 2008 as being very different. He was cheerful and
active. From 2008 to now, she has noticed that he lies down when his back is
hurting. He cannot have Caitlin jumping on him. When Caitlin wants to play
badminton or soccer, it is Ms. Quintias husband who will play with her. She
testified that she would care for Caitlin whenever necessary. She stated that
she loves her son-in-law.
V.
Employment
A.
Ted Bonazew Shaw Cable Foreman
[113] Mr. Bonazew
commenced his employment with Shaw Cable at the end of 2000. He is in his seventh
year of being a foreman at Shaw Cable in the Service and Installation
Department.
[114] Shaw
provides broadband and TV services to residences and businesses. It has a head
office in Vancouver and also several reporting stations for those employed in
the Lower Mainland, including Richmond, North Vancouver, Surrey, White Rock and
Abbotsford. Mr. Bonazew estimated that approximately 60 to 80 people work
out of Vancouver as commercial and residential installers. There are separate
communication departments. Mr. Bonazew supervises 15-20 installers. There
are six foremen, himself included, for all the individuals in Vancouver.
[115] Mr. Bonazew
first met Mr. Demello in 2008 when he interviewed him. He was asked for
input on whether to hire Mr. Demello and he gave a good review of his interview.
[116] Mr. Bonazew
took the Court through an installers day. The typical day shift starts at 8 oclock
in the morning. The foreman hands out routes to the workers. After reviewing
the jobs and determining what equipment will be needed, the installers then
load up their truck and go to the jobs. Shaw has full-sized vans for the
installers to use. The average number of calls a day is three to seven,
depending on the scope of the job.
[117] A
commercial installer differs from a residential installer because they are
required to do far more ladder and overheard work, such as pulling cables
through ceilings when doing the commercial work. In contrast, residential work
involves more wall plate work and having to climb poles. For a commercial
installer, the typical locations are restaurants, buildings, office towers,
small buildings and supermarkets. Residential work in contrast, is outside more
often and there will be tall ladders required to hang up cable feed, which then
must be pulled to the house. In order to climb the exteriors, they must carry
a ladder to the house. Mr. Bonazew noted that the use of a ladder will
occur every day in residential installations.
[118] Mr. Bonazew
first started working with Mr. Demello before the accident. He described
a happy and hard-working employee. He noted that he could tell if a technician
is a good worker by how frequently the employee has to contact the supervisor
for assistance. If they are having problems on the job, they will frequently
call in with physical or technical questions. He received few questions from
Michael Demello. He had no physical limitations. Mr. Bonazew was aware
that Mr. Demellos technical knowledge was very good. He had no questions
other than procedural ones.
[119] Mr. Bonazew
was asked whether, for a young worker, there is opportunity for promotion at
Shaw. He replied that there was. He thought Michael Demello had good
technical skills, good people skills and he would have been able to take the
next step. The physical requirements for promotion to foreman would involve physical
work identical to what an installer does. The foreman must be able to show the
installer the correct procedures. People skills are required as well. In
addition, they must be able to handle what Mr. Bonazew referred to as escalation
calls, which means calls where a customer is upset, for instance having made
five complaint calls in one month. The Shaw employee has to be able to handle
those persons with diplomacy. While Mr. Bonazew believed Mr. Demello
has good technical skills and people skills, he could not comment as to
physical skills, because Mr. Demello was on modified duties.
[120] Foreman
positions become available often, and in fact he testified there have been
three new positions available in the last few weeks before the trial; at least
eight positions have become open in recent years.
[121] Respecting
the availability of overtime work, Mr. Bonazew testified about the sign-up
sheet that he would have in his office. It was not uncommon for someone to be
able to work six days a week. The work was given out on a seniority basis.
Many overtime shifts existed in 2009 and 2010, he testified.
[122] Mr. Bonazew
explained in detail the two types of overtime. Respecting unscheduled
overtime, he agreed with the suggestion that it is completely unpredictable.
He did not agree that scheduled overtime is no longer available, although the
company has set a course to reduce overtime wages being paid commencing in
March 2012. For instance, Mr. Bonazew cited the example that overtime
will be required for every single statutory holiday. That type of overtime is scheduled
and is based on seniority.
[123] As well,
overtime will occur when there are emergencies. A further example of unscheduled
overtime is when a call extends beyond the end of the shift.
[124] Mr. Bonazew
testified that modified duties can be arranged for a person who is returning
from an injury or illness. Often this will involve no ladder work. Usually,
physical capabilities are determined by the individuals doctors. Routes will
be tailored so that the person involved is not carrying or lifting ladders.
The route is set out by the supervisor.
[125] Mr. Bonazew
had to observe Michael Demello working when he supervised his gradual return to
work. He would assist him with the ladder work, particularly for hanging a
drop, which is where the installer, from the ladder, hangs the cable line
which is dropped from that point.
[126] At Shaw,
overtime is not available to employees until they have passed the six month
mark with the company, at which time they would have gained exposure to all
aspects of work.
[127] Mr. Bonazew
has noted since the first accident that Mr. Demellos demeanor at work is
not the same he appears down. Mr. Demello is not the same happy and
jovial individual he interviewed in 2008. Mr. Bonazew hastened to add
that it is not that he has not seen him smile, but he just overall seems not be
the same.
[128] Mr. Bonazew
indicated that Mr. Demello could not be considered now for a supervisor
position, because one must be able to do all aspects of the work, including
ladder use, in order to qualify for overtime.
[129] Mr. Bonazew
has not had much contact with Mr. Demello at work because he was a
technically sound installer. Usually, he only hears from installers if they
are having problems technically or otherwise, and he did not indicate any time
that he was contacted by Mr. Demello.
[130] Mr. Bonazew
was a straightforward and credible witness. I accept his evidence.
B.
Mark Seymour Service Technician at Shaw Cable
[131] Mark Seymour
is a co-worker of Mr. Demello. He works as an installer. He was hired in
March 2008 as a commercial installer, and he continues to work as such.
[132] Mr. Seymour
learned the job doing ride-alongs and working on digital cable box
installations. During that period, he had a regular route. He would do drop,
which is hanging lines, digital boxes and phone installations. At the end of
the six-month probation period, Shaw employees are given their own route. Mr. Seymour
obtained his own route at the end of 2008, and he was then able to do unscheduled
and scheduled overtime. In 2008, he earned approximately $8,000 to $9,000 in overtime.
[133] In 2010,
he referred to overtime with Shaw as being readily available as it was ridiculously
busy. There were restrictions however on overtime, as the company did not
want an individual to not have scheduled breaks or to be working too many days
in a row. However, despite those restrictions, in 2010 Mr. Seymours $90,000
to $95,000 salary, consisted of 65% regular time, and the remainder was
overtime.
[134] In 2011,
his overtime was $15,000 to $16,000. As well, he banked overtime, which one
can do at Shaw. He took some banked time as holiday.
[135] In 2012,
he confirmed that there was a decrease in overtime. Since March, the Shaw
Corporation has cut off all overtime, except as had been described earlier by Mr. Bonazew.
He has, however, earned $6,800 this year in overtime.
[136] On
cross-examination, Mr. Seymour was asked if was married or had children or
had other reasons impacting on his ability to take overtime. While he is not
married, he nonetheless, did want to have a life and not take all of the overtime
that was offered to him. He did not agree that he was an anomaly by picking
up many overtime shifts.
[137] He outlined
the process for overtime. He testified that one signs up for scheduled
overtime on the sheet in his former office. He indicated that over 90% of the
time one asks for overtime, they will get it. He also summarized Shaws policy
of banking overtime wherein if one works overtime, it can be taken as vacation
time, instead of being paid out. Up to five weeks can be taken in this way.
[138] I find Mr. Seymour
to have been a credible and honest witness. I accept his evidence.
VI.
Medical Reports
A.
Ralph Cheesman Occupational Therapist
[139] Ralph
Cheesman was tendered as an expert witness and occupational therapist able to
give evidence in the area of the physical demands of Mr. Demellos
employment. He reviewed Mr. Demellos employment at Shaw.
[140] Mr. Cheesman
obtained a degree from University of British Columbia in Occupational Therapy
from the Faculty of Medicine, and a Bachelor of Science in Occupational
Therapy. He has been involved in rehabilitation and health care around
restoration for daily living following accidents.
[141] His work
is to examine and analyse the job that an individual does and assess its physical
demands. In order to do that, he goes to the job site and measures the persons
actual movements at work. He assessed Mr. Demello and catalogued his jobs
demands. In order to do that, he meets the worker, observes their work, and
takes brief functional measures. He noted that Mr. Demello, as a cable
installer, works both indoors and outdoors. Where Mr. Demello works is unpredictable.
He will go out to residences. He definitely has to have a good ability to get
around. Mr. Cheesman has seen him on roofs. He has to be able to deploy
weighty objects, and handle matter like spools of wire.
[142] A more
problematic piece of equipment in cable installation work are ladders. Those
are stored above the vehicle and they have to be taken down and balanced. They
have awkward aluminum-cast extension feet on the bottom of the ladder. The
movements of the ladder require different movements from the worker. Carrying
the ladder is not the same as carrying an inert 78-lb. object, as the ladder;
being lengthy, it involves different torquing movements of the body.
[143] When Mr. Cheesman
assesses an individual, he does so for the frequency of the types of demands
and assesses them as infrequent, occasional, frequent or constant.
[144] Mr. Cheesman
prepared a report for the Court and looked at the Shaw works requirements of Mr. Demello.
He observed him going to a condo at English Bay where they went to the top
floor. He has seen him on poles. He uses a laptop in the truck. He has to
move furniture to access service wires. At one job location, he observed that
the wires were located in a bookcase so he had to get into an awkward position
as he could not move it. He observed him having to climb onto a roof from a
stairway. In fact he observed quite a few different postures.
[145] He noted
that the job requires much flex forward posture, meaning a bent forward
position. Mr. Demello also has to kneel a great deal, because of the
location of the entries of wires into homes and businesses. Mr. Cheesman
found in his functional assessment that Mr. Demello is one standard
deviation below the mean, meaning there is significance in his inability to
move his thoracic and lumbar spine. He moves in a segmental rather than fluid
fashion.
[146] Mr. Cheesman
works out at the same location where Mr. Demello is taking
rehabilitation. While he is not supervising him in that rehabilitation, from
time to time he observes Mr. Demello and sees him grimacing and moving in a
not fluid fashion. He stops frequently and then continues the movement.
[147] He also
assessed Mr. Demello for his grip strength, and he is below the normative
value for a man his age. In his report, Mr. Cheesman states:
…. Mr. Demellos grip
strengths were lower than norms for his age and gender. In fact, grip strength
dominant hand was 24% lower and non-dominant hand 29% lower than normative
data. Scores within one standard deviation of norms are considered to be
within normal capacity. Consequently, Mr. Demello demonstrates weakened
grip strength in both hands.
[148] Mr. Demello
is presently in the treatment program at Back In Motion, the facility where Mr. Cheesman
works and at the time of trial, he had two more weeks to complete his program.
Mr. Cheesmans sense of how things are going is still guarded. Usually,
there are three types of progress: one, no problems; two, two steps forward and
a step back and then some loss; and three, absolutely no progress. Here, a
priority is to get Mr. Demellos strength up to lifting 80 lbs. in
order to handle the ladders that he must use for commercial installation. At trial,
Mr. Demello was only at the half-way mark and, accordingly, able to work only
residential locations where the use of ladders is restricted.
[149] In his
report, Mr. Cheesman set out his recommendations:
Mr. Demello continues to experience spinal pain and low
grade sensory symptoms in his arms when engaged in light duty work functions.
Given the observed work demands of his job in relation to ongoing spinal
impairments (diagnosed with WAD 2 soft tissue injuries in spinal and other
body regions as per Dr. Koss), it is not surprising Mr. Demello
continues to encounter low grade symptom reactivity and intermittent symptom
aggravations while working. His work, inclusive of light duties, requires
regular exposure to sustained task intensive (flexed) posturing when kneeling
and tooling. At times his work requires awkward posturing in confined space
that can serve to tweak spinal impairments. The resulting cascade of symptom
irritability to a spinal pain generator can be muscular spasm, reactivity,
which will result in a stark loss of spinal mobility, and set back his baseline
symptom improvements made over time. As such, it is not surprising Mr. Demello
continues to work with a degree of spinal pain and he encounters setbacks of
his symptom improvements from time to time. Given regular exposure to his job
demands it is likely his potential resolution of symptoms will be a slow
process if realized at all.
My recommendation would be to
involve Mr. Demello in a functional restoration therapy program structured
in the manner that assisted him previously in an effort to optimally assist him
to return to his work in a regular capacity. I suggest he organize with his
employer to spend a 6‑week period working 4 hour shifts, while
attending a therapy program for 4 hours per day as well. During the
therapy periods, I suggest his strength be measured and progressed to the point
he can manage 80 lbs loads. Further, I suggest Mr. Demello have
graded exposure to working with Shaw ladders either at the work site or at the rehabilitation
site. At the end of this duration his ability to return to full time work in a
regular capacity can be assessed via a graduated return to work process
supervised and assessed by an occupational therapist. This should be graded in
terms of hours and task activity exposures. Should Mr. Demello be unable
to successfully re-engage his regular work via this process then I suggest a
functional capacity evaluation occur to examine his residual abilities and
limitations and offer opinions regarding future work functions modified or
alternate. It is clear that Mr. Demello values his current work with his
employer and should he have some residual limitations a functional capacity
evaluation report will be helpful to both parties to iterate safe and durable
future working conditions/demands. At that juncture impairment prognosis from Dr. Koss
will be helpful as well.
[150] Mr. Demello
would prefer to be satisfied that he is fit, so that while he is at a work site,
he can do all work necessary. He would like to have an occupational therapist
involved in his rehabilitation, to set a return to regular duties and to have a
schedule agreed between them on how long the return to regular work should take.
[151] In respect
of the cost, Mr. Cheesman testified that Mr. Demellos physical
rehabilitation is a flat rate. If Mr. Demello did a functional
rehabilitation gradual return to work, two to three or a maximum of four weeks
would be required. If he was really struggling, the program could be extended
to six weeks.
[152] The Back In
Motion program, for a cost of $3,100, would include Mr. Demellos exercises
being closely observed by Mr. Cheesman.
[153] Mr. Cheesman
agreed that he had never met Mr. Demello prior to the accidents or
assessed Mr. Demello in order to record his baseline norms.
[154] Mr. Cheesman
nonetheless cautioned Mr. Demello should be on a graduated return to work
program.
[155] Some of
the exercises he would do, he agreed, are not part of Mr. Demellos job,
but Mr. Cheesman cautioned that he hopes that after six weeks, which he
believes would be a reasonable time estimate, Mr. Demello would achieve
the progression that would enable him to start a graduated return to work.
There are two aspects that he is concerned about. There is capacity and
sustainability or durability, as he called it. Capacity is the ability to do a
task and sustainability is the ability to do so on a continuing day-to-day
basis. He is aware that when Mr. Demello started, he was working three
days fulltime, two days halftime and during that time he would do back to work
exercises.
[156] I find Mr. Cheesman
to be a credible witness. I accept his evidence.
B.
Dr. Koss
[157] Dr. Koss
provided two reports that were tendered in evidence. One is dated May 22,
2012 and a subsequent report is dated June 20, 2012. He has been Mr. Demellos
family physician since October 1982, when Mr. Demello would have been
two years old. Dr. Koss was tendered as an expert in the areas of
diagnosing and treating soft tissue injuries and musculoskeletal injuries,
including to the back, neck, and shoulders, and diagnosing and treating headaches.
He was also tendered in respect of treating neurological damage and nerve
irritation.
[158] He sees
soft tissue injuries every day of his practice. He has a full-service family
practice, excluding obstetrics. He has treated thousands of patients in the
course of his career. He graduated from the University of Calgary in 1980,
completed his residency in family practice at the University of British
Columbia in 1982 and commenced practice in July of that year.
[159] Following
the accident, he treated Mr. Demello on January 5, 2009. On that
date, Mr. Demello complained to Dr. Koss of left shoulder, upper
back, neck and shoulder pain. On examination, Dr. Koss found evidence of spasm
and tenderness of the lumbosacral paraspinous and mid-back muscles. He noted
spasm of the paraspinous cervical muscles and trapezius muscles. He found the
range of motion of his back was near normal (there was pain at the extremes
of movement) and the neck range of motion was about 50% of normal in all
directions. He diagnosed strain to the neck, upper back and lower back and the
left shoulder, and advised Mr. Demello to apply alternating ice and heat
to the affected areas and to go to massage. Mr. Demello was to use 200 mg
of Advil or Celebrex daily, which are both anti-inflammatories, for his pain. At
that time, he was unable to work for Shaw cable.
[160] Dr. Koss
next saw Mr. Demello on January 12, 2009. His range of motion in his
back was 50% of normal, and the range of motion in his neck was 30% of normal.
On examination, there was evidence of spasm and tenderness of his paraspinous
muscles from the neck down to the lower back. He noted that Mr. Demello
was still limited in his activities as a consequence of the accident. He was
going to massage therapy and was going to continue with that.
[161] Dr. Koss
continued to see Mr. Demello throughout January 2009. There was
improvement in the range of motion in his back to 75% normal, and his neck
continued to improve. By late January, it was 75% to 80% normal. He
would, however, have some advancement and some improvement, but then a
regression. He was still suffering general pain and stiffness. His shoulder,
in particular was painful.
[162] Mr. Demello
returned to work on modified duties in February 2009, and was working at
increasing hours. He worked light duties.
[163] When he saw
Mr. Demello in February 2009, Dr. Koss noted that, associated
with the pain he had since being back to work, Mr. Demello had left arm
pain in his biceps and forearm region, and a numbness that would last about one
minute and occur three to four times a week. He again had spasms and
tenderness of the paraspinous muscles. The range of motion of his neck was
about 80% normal.
[164] Throughout
February, Dr. Koss noted that Mr. Demello was continuing to do more
at work, including, by the end of February, ladder work. He was assessed at
the Canadian Back Institute in March 2009, where it was hoped that they
would be able to work with him to be able to lift weights over his head.
[165] By March 2009,
he could only lift 40 pounds over his head. Large ladders can weigh up to 150
pounds, although the ladders he uses primarily weigh approximately 80 pounds.
[166] By May, Mr. Demello
was doing exercises in which he would find that there was more pain between the
shoulders. He continued to have some evidence of spasm on examination. The
back range of motion, however, was getting to be near normal, and he was going
to try more activities at work.
[167] By May 28,
2009, Mr. Demello was back to work full-time. While doing well in the
summer, he still had episodes of back and neck pain occurring approximately every
two weeks. Often, these episodes were associated with working in an awkward
position. He was advised to continue with his back exercise and use Advil as
needed. He was seen on August 25, 2010 by Dr. Koss in order to fill
out the CL-19 form for ICBC. At that time, he was having occasional neck and
back pain that would make it difficult to do his regular job. There was some
evidence of spasm in the paraspinous muscles from the neck to the lumbosacral
region. The range of motion in his back was near normal, but his neck had
decreased lateral and rotational range of motion. He was not back to all of
his leisure activities, but he was exercising three times a week. Dr. Koss
encouraged and advised him to continue with that.
[168] Dr. Koss
noted that Mr. Demello was then involved in another accident on September 2,
2010. When seen after the accident, there was spasm and tenderness over the
paraspinous muscles of the neck. The range of motion was 50% of normal. The
mid-back was tender when palpated. The right wrist had tenderness. The range
of motion of his back, however, was near normal. He was advised to use
Celebrex once a day and to continue physiotherapy. He had irritated his neck
and back pain and had a soft tissue injury to the right wrist and contusions
over the anterior of the tibia bilaterally. Dr. Koss told Mr. Demello
to stay off work. The pain continued in both Mr. Demellos hands. When
he was seen by Dr. Koss on September 7, he still had spasm and
tenderness of his neck and lower back. The neck range of motion had decreased
flexion at about 25% of normal, but the balance of range of motion was 75%
normal. The range of motion in his back was about 75% normal in all
directions. There was a switch of his medications on his visit in September from
Celebrex to Naprosyn, a different anti-inflammatory, because it didnt seem to
be working. Dr. Koss noted that he was still not ready to make a return to
work.
[169] On September 20,
2010, he was again seen by Dr. Koss. Examination of his neck revealed
spasm and tenderness, extending all the way to his lower back. While the back range
of motion was near normal, the neck range of motion had minimal flexion and
extension to about 50% of normal. Mr. Demello was unable to return to
work during the period from September until October 12, 2012. The
plan was for Mr. Demello to commence work for four hours a days,
commencing October 12, 2012. Dr. Koss was concerned that there might be
some nerve damage to Mr. Demello given the numbness problem, so Mr. Demello
was referred to Dr. Varelas to allow a nerve conduction abnormality. Dr. Varelas
confirmed to Dr. Koss that Mr. Demello had only soft tissue pain.
[170] By mid-October 2010,
Mr. Demello started back at work four hours a day. He had developed wrist
pain he attributed to having gripped the wheel before impact, which was worse
on his left than the right wrist. He also had weakness in his left hand. He
is left-handed. Dr. Koss noted he was limited in terms of the hours he
could stay at work. At that time, he could only work four hours a day. Evidence
of spasm and tenderness over his lumbosacral paraspinous muscles remained. Based
on a weeks Tinels Sign test, which assesses nerve irritation and in order to
address Mr. Demellos wrist and hand pain, Dr. Koss prescribed
resting wrist splints to Mr. Demello. By late October, Dr. Koss
saw him again and advised him to continue wearing the left wrist splint. He
was still only working four hours a day. When he was seen on October 22,
2010, he had evidence of spasm and tenderness of the paraspinous muscles from his
neck down to the back and his neck range of motion was decreased. He had pain.
There was a positive Tinels Sign in his left wrist.
[171] By early November, Mr. Demello
had returned to see Dr. Koss, stating that he was improving. He found
that the massage therapy had helped him very much. He was doing four hours of paid
work a day. When doing more work at home, however, he still had headaches
associated with neck pain and decreased range of motion. There was some spasm
of the paraspinous muscles of the neck. He had decreased range of motion to
his neck to about 50% of normal in all directions.
[172] By mid-November 2010,
he was working six hours shifts. At an examination on November 16, Mr. Demello
was experiencing spasms and tenderness of the paraspinous muscles from the neck
to the lower back. He had to be careful doing things at home not to increase
his arm pain. He had continued with physiotherapy. By the end of November,
when attended by Dr. Koss, he was still having pain in his neck, back and
arms. He was working six-hour shifts; he was working on stepladders, but not
longer ladders. He still had spasms and tenderness of his paraspinous muscles
and a reduced range of motion in his back at 50% normal on some normal
extension; his lateral rotational movement was at 50% to 75% normal. Range of
motion of the neck had flexion at 25% normal, extension 50% normal, and lateral
and rotational movements at about 75% of normal.
[173] Mr. Demello
was advised by Dr. Koss to keep up his exercise and massage therapy, but
he was approved to increase his work hours to eight-hour shifts without any
ladder work.
[174] By
mid-December, Mr. Demello was doing more work and using a 12-foot ladder,
but not the 40-foot ladder. He still had spasms and tenderness, but he had an
increased range of motion. His back range of motion was near normal and his
neck was 80% to 90% normal. Dr. Koss noted that while he would still
occasionally suffer weakness in his arms, it was not as often.
[175] By January 2011,
Dr. Koss noted that Mr. Demello was definitely improving. Certain
activities would aggravate his back, such as washing dishes, but other home
activities did not seem to aggravate his pain. At work, he was using the
longer ladder. There was some weakness in his arm and flexion extension. Dr. Koss
advised Mr. Demello to continue with stretching exercises and then gave Mr. Demello
a note advising that he could return to regular duties at work.
[176] Mr. Demello
was seen again on February 4 and still suffered some spasms. He was
advised to continue strengthening exercises and attend physiotherapy as
needed. On February 21 and 28, Dr. Koss noted that Mr. Demello attended
the office as he had strained his left shoulder at work. This injury was not
related to the accident and he returned to work on February 24 on light
duties.
[177] On March 28,
2011, Dr. Koss prepared a CL-19 report and assessed Mr. Demello for
that purpose. Mr. Demello was still having neck and upper back pain, and
pain was still present in his shoulders. When he was seen on April 20,
2011 for his WCB shoulder injury, Dr. Koss noted there was a Workers
Compensation Board claim commenced. This was in relation to the incident which
occurred while Mr. Demello was working at City Hall. By that time, he was
back at work and doing all duties except for ladder work. Again, he was seen
for WCB visits through May, June and August of 2011. When he was
seen on August 29, he was back to regular duties at work, however,
including ladder work. He was still having problems with his back, Dr. Koss
indicated. He still suffered some spasms on examination but his range of
motion was near normal. He was advised by Dr. Koss to continue with his
exercises.
[178] In a visit
in September, Mr. Demello related to Dr. Koss an incident when he was
trying to lay paving stones in his back yard, which had caused him to
experience pain in his arms and hands. He experienced a decrease in his grip
strength.
[179] Following
the third accident on November 5, 2011, on November 7, Mr. Demello
attended Dr. Koss office. He took a history from Mr. Demello in
which Mr. Demello indicated he had a pinch feeling in the lower back and
an hour later developed pain in his left elbow and pain which went from his
lower back to his neck. He applied ice at home, but he awoke the next day with
a stiff neck. On the office visit of November 7, 2011, he was experiencing
upper back pain and heaviness in his left arm, with tingling and numbness in
his left forearm and pain in his right wrist. While his back range of motion
was near normal, the neck range of motion was remarkably decreased. Normal
household activities were bothering him. On the November 14, 2011 visit,
he noted that just picking up a small bag of garbage caused low back pain.
[180] While
sitting at a hockey game, he experienced tingling in his arms. Dr. Koss
noted that he had been attending physiotherapy, but still had muscle spasms as
well as decreased back range of motion and neck flexion. He was advised to
stay off work and continue with physiotherapy and Celebrex. Dr. Koss
recommended that Mr. Demello take Lyrica twice a day for his arm pain.
Lyrica is used to treat neuropathy pain, and it would assist him with his arm
and hand pain, Dr. Koss explained in his testimony, adding to his written
report.
[181] When Mr. Demello
was seen in November 2011, he continued to have spasms, tenderness and
reduced range of motion in his neck and back pain. Dr. Koss opined his
range of motion was decreased to about 80% of normal. He continued to have low
back pain and headaches and continued to have massage therapy to help relieve those
headaches. By late November, Dr. Koss noted that the pain in Mr. Demellos
arm was helped by Lyrica, but he was limited to lifting 20 pounds. He had
difficulty lifting his children. He was wearing the wrist splint for help with
carrying his youngest daughter. He was going to start back at work at four
hours a day. Dr. Koss filled out a form for him, outlining the duties
that he believed he could do.
[182] By December 6,
2011, Mr. Demello was still having neck and back pain. He was working
four hours a day, and in early December was unable to work because of his ongoing
pain for a number of days. He was continuing with physiotherapy and was going
to undergo no changes to his work duties.
[183] By January 2012,
Mr. Demello attended at Dr. Koss office still experiencing lower
back pain, which was affecting his ability to engage in activities. He
continued to attend physiotherapy, but he was not taking Celebrex. He had
spasms, tenderness and a decreased range of motion to 75% of normal. To
investigate his complaints of numbness in his arms, a CT scan was performed
under Dr. Varelas direction, but there was no nerve damage noted.
[184] By January 20,
Mr. Demello was indicating to Dr. Koss that he was able to do more. He
had gone back to using Celebrex which was helping him. In early, 2012, he
continued, however, to have neck and back pain, which was slowly improving.
The pain from his neck would radiate down into his arms, and he would have
associated numbness, but it was less frequent than before. By March 21,
2012, he was managing at work and was slowly improving. There was decreased
range of motion to 80%, however, of his neck to 75% of normal and spasm of the
lumbosacral region and of the paraspinous muscles. Mr. Demello was going
to return to eight-hour shifts with modified duties by late March of 2012.
[185] By April,
while he was working full-time, he still felt quite achy at the end of the
day. When that occurred, he felt uncomfortable lifting his daughter. He
continued to show spasms of his paraspinous muscles and decreased range of
motion.
[186] Dr. Koss
wrote that prior to the 2009 MVA, Mr. Demello had no pre-accident
problems. He was aware that Mr. Demello had been involved in motor
vehicle accidents before the 2009 motor vehicle accident, but those were not an
issue, in his opinion, as Mr. Demello was recovered.
[187] At the
time of trial, Mr. Demello felt he was about 50 to 55% improved. He was
exercising twice a day and was doing full-time work. Dr. Koss noted that
he was still not doing normal ladder work and that he continued to take
Celebrex, but was undergoing and suffering daily headaches, one to two a day,
which lasted about 50 minutes. While he could use his hands, he suffered
numbness for about two minutes afterwards and he indicated to Dr. Koss
that would happen frequently at work.
[188] On May 14,
2012, he was again seen by Dr. Koss. Mr. Demello was still complaining
of ongoing pain from his neck to his lower back. The low back pain radiated to
his thighs and there was also mid-upper back and neck pain which would
transform into stiffness. He indicated to Dr. Koss that he would suffer
these pains particularly since going back to work full-time. By that time, he
was working full days on Monday, Wednesday and Friday, and half days on Tuesday
and Thursday. This was to enable him to attend exercise treatments, as well as
accommodate his inability to work full-time. By May of 2012, he was still
doing modified duties with no ladder work. He had ceased doing massage therapy
as it did not help, but he was trying acupuncture.
[189] By May, he
still suffered spasms and tenderness to the paraspinous muscles and his neck
range of motion was less than 50% of normal in all directions. There was
tenderness over his bicep muscles and Dr. Koss wrote that he believed Mr. Demellos
pain was related as well to his muscle weakness, although he continued with an
exercise program and worked with a kinesiologist to strengthen his muscle in
his neck and back.
[190] In
summary, Dr. Koss wrote that in relation to the first accident which was
sustained on January 3, 2009, Mr. Demello was back to full duties at
work by May 28, 2009. Then, on September 2, 2010, he was involved in
a second accident. It caused a re-injury of his neck and back, together with wrist
pain of both wrists. There was a contusion to his knees, while the wrist pain
caused numbness in his upper extremities. He was back to work full-time in
August 2011, after a graduated return to work program.
[191] The
diagnosis for each accident was soft tissue injuries to Mr. Demellos
neck, upper and lower back and left shoulder. There were headaches associated
with the neck and upper back pain from the first accident. For the second
accident, there was an irritation of the neck, upper and lower back. He also
had a soft tissue injury to his right wrist, bilateral knee pain and pain on
the anterior surface of both tibia, but this only lasted for a short time after
this accident. The pain to his neck and back caused difficulty for Mr. Demello
lifting objects. He had mild median nerve irritation.
[192] With
respect to the third motor vehicle accident, Mr. Demello again had
irritation of the soft tissue injuries of his neck, upper and lower back and
his shoulders. He had some irritation of the median nerve and there was
concern about his C6 nerve route because of arm pain and weakness, but there
was nothing showing on the CT scan. He noted that Mr. Demello had been
attending physiotherapy and massage therapy at the Canadian Back Institute for
a graduated return to work treatment program. He noted that Mr. Demello
was also seeing an acupuncturist and that he had been complying with his
exercise program. He was using wrist splints for wrist pain and was taking
Celebrex, Naprosyn, Flexeril, which is a muscle relaxant, and Lyrica, as well
as Tylenol and Advil on occasion.
[193] After the
third accident, he was on a graduated return-to-work program, not returning to
an eight-hour day until April 2012. His work hours are now altered however by
his treatment.
[194] Mr. Demello
was having no light problems prior to the accident of 2009. Prior to the
second accident, Dr. Koss wrote that he was 75% to 85% recovered from the
first accident and prior to the third accident, he was about 80% better from
both the first and the second accident. He noted that Mr. Demello self-reported
being at 50 to 55% better from the accident, but there was no question than the
third motor vehicle accident had aggravated his arm pain and numbness. After
the third accident, Dr. Koss wrote that he was not totally recovered
between the accidents, and is now only about 50% to 55% recovered, each
accident causing him to go backwards in his recovery with the resulting
exacerbations being cumulative. While he did work hard on rehabilitation with
his exercise programs, he would take a backward step with each consequent
accident, with the result being that after [motor vehicle accident] 3, he still
has a lot of rehabilitation to do.
[195]
Dr. Koss noted the negative impact the motor vehicle accidents have
had on Mr. Demellos personal life and his work as a Shaw cable installer
and technician. After each accident, he will have to do a graduated return to
work.
[196]
At trial, he was still not back to work on a full-time basis. He works
only half days on Tuesdays and Thursdays, enabling him to go to physiotherapy
and other treatments. Dr. Koss stated in his report:
At this time, I would put the
prognosis of Mr. Demello as guarded. He still has daily pain and he is
not back to his regular work duties and is nowhere near to being back to his
leisure activities and his activities for home life. The accidents have
cumulatively created more muscle weakness. The muscle pain has caused some
myofascial pain (its original soft tissue pain syndrome arising from the
muscles). This pain has caused the muscles to get weak. As Mr. Demello
tries to do things, the muscles are further irritated as they are weak. He
needs to work with his kinesiologist to get good exercising strengthening
program. To get his muscle strength back will take years (up to five and
possibly more).
He indicated that Mr. Demello has not stabilized
and will need two to five years to reach what he referred to as maximum
medical improvement, meaning a return to Mr. Demellos pre-accident state.
He noted that in the future, Mr. Demello will require physiotherapy,
massage therapy, kinesiology, and a gym membership to help him get his muscle
strength back. Anti-inflammatories will likely be required. Dr. Koss
indicated that the accidents were the cause of Mr. Demellos injuries, but
it was not possible to allocate a percentage of the amount of injury each motor
vehicle accident caused, and he could only indicate that the problems were
cumulative.
[197] In a
report dated June 20, 2012, Dr. Koss clarified that the work incident
was not related to the accident, meaning that it was a normal movement which exacerbated
the earlier injury that stemmed from his motor vehicle accidents of January 3,
2009 and September 2, 2010. In his evidence, he noted while Lyrica had
helped Mr. Demello, drowsiness is a side effect of Lyrica.
[198] Dr. Koss
testified that Mr. Demello is not yet stabilized. While he is improving,
he is still having a lot of pain, and is not yet at the stage where he could
classify it as being minimal pain. He felt that the prognosis was guarded as
there is too much fluctuation and does not know when Mr. Demello is going
to get better.
[199] In terms
of Mr. Demellos physiotherapy and massage therapy, Dr. Koss felt
that, potentially, these modalities of treatment would have to be extended to a
five-year period. Although he had trouble putting a quantity on the need of
treatments, as he doesnt know many variables, he notes that Mr. Demello definitely
will require some assistance.
[200] Dr. Koss
was cross-examined on his clinical notes and it was noted that on the visit of February 28,
2011, he had written, inter alia, other problems; nil. Had previous
injuries from MVA [motor vehicle accident] from which he had recovered. As to
whether this signifies Mr. Demello had recovered from his injuries, he
disagreed, stating that he only meant the notes with respect to his shoulder
and referred to it as an inappropriate way to describe that.
[201] When asked
if he understood that he was giving the impression that he had found Mr. Demello
was recovered, he indicated yes, it was not written down properly. I accept
that evidence. The report of Dr. Hepburn was put to Dr. Koss. He
agreed with the diagnosis of Dr. Hepburn on the injuries of soft tissue
strains or sprains of the muscles and joints of the cervical and thoracic area
and possibly to some extent to the lumbar spine also. He agreed that there
should not be any major disc or neurological damage in the area of the spine
that should cause Mr. Demellos prognosis to be poor in the long-term. He
also agreed that it is not likely his injuries are permanent, there should be
further gradual improvement, and Mr. Demello would not be permanently
disabled, although temporary disability would likely extend for several months
following each of the collisions. He also agreed that Mr. Demello should
work on the strengthening and the stretching aspects of the program in which he
is currently enrolled. Overall, while Mr. Demello has not sustained
serious axial spine trauma or neurological damage, he should improve over the
passage of time and he should complete the exercise program and aggressively
pursue his own personal fitness.
[202] He agreed
with Dr. Hepburns statement that Mr. Demello should increase his
aerobic activity and use time stretching and doing strengthening activities. Dr. Koss
indicated he hopes Mr. Demello will have a guided recovery and encouraged
him with his active rehabilitation treatment. He noted that it was the opinion
of Dr. Steven Helper that Mr. Demello should have returned to full
functional capacity in one-years time, and he commented in a perfect world,
there should be that, however thats not the way that things happen in reality
and with Mr. Demello there has been improvement, then regression.
C.
Dr. Steven Helper
[203] Dr. Steven
Helper was called as a witness by the plaintiff. Dr. Helper received his
medical training at the University of Manitoba and his specialty training in
physical medicine at the University of Pennsylvania. He is an author in his
field and has been a clinical instructor at the University of British Columbia
medical faculty.
[204] Dr. Helper
was tendered to give evidence as a medical doctor with expertise in physical
medicine and rehabilitation, with a subspecialty in the intervention of spine
pain management. He was additionally qualified to give evidence on the
diagnosis, treatment and prognosis of neck and back pain and how it may affect
the plaintiffs ability to work in his current employment and the physical
components of other forms of the return to employment.
[205] Dr. Helper
prepared a report. He saw Mr. Demello on June 29, 2012 and performed
an extensive and comprehensive physical examination of Mr. Demello. He
also took a detailed and comprehensive history of Mr. Demello. He
demonstrated in court numerous of the tests that he performed, which assisted
in his determination of the diagnosis of Mr. Demellos injuries as being
soft tissue, as opposed to mechanical or neurological. He reviewed the three
accidents and where Mr. Demello had achieved some recovery prior to the
second accident and prior to the third.
[206] Dr. Helper
expected Mr. Demello, given his complaints and the clinical findings, to
be able to tolerate the majority of daily housework. In terms of Mr. Demellos
time off work, he believed the time off work during the periods of his recovery
from the accident was appropriate. In his report, Dr. Helper wrote:
In patients who have developed
chronic soft tissue pain, describing a decreased capacity to participate in
daily housework activities is common. However, from a pure anatomical
perspective, there is no reason why such individuals should not be able to complete
90% of their daily housework tasks. The description of pay for it later is a
common use of wording and a regular complaint in my office. It typically
reflects the patients chronic pain syndrome rather than the injury itself.
[207] At
present, Mr. Demello is working three full days and two half days in order
to attend rehabilitation and physiotherapy, and Dr. Helper stated that he
believed that his current participation at work is appropriate. Dr. Helper
expects Mr. Demellos clinical course to gradually improve as he
participates full-time and complies with any further rehabilitation. He notes
however that patients such as Mr. Demello require a strong degree of
compliance with the physical rehabilitation therapy.
[208]
Dr. Helpers comments in respect of Mr. Demellos loss of earning
capacity were as follows:
Mr. Demellos time off from work along his clinical
course appears to be appropriate. There is a wide range of tolerance from
patient to patient when it comes to soft tissue injuries. I will not begin to
attempt to dissect Mr. Demellos clinical course to suggest how many days
or weeks off of work would have been appropriate after each incident in
question. …
Mr. Demello would be most limited in his competiveness
for future job opportunities with a physical labour component.
Along Mr. Demellos clinical course, I agree that he
likely lost the ability to take advantage of all job opportunities that may
otherwise have been open to him had he not been injured. …
It would be difficult to predict exactly what residual
physical limitations Mr. Demello may have once he completes his recovery.
At present, he has the following limitations: [repeated bending; squatting;
reaching; prolonged overhead activities; repeated overhead activities]
If Mr. Demello does not
achieve satisfactory physical recovery through his active rehabilitation over
the next year, he will remain limited from such activities. He will remain
limited from participation in vocational activities that demand such activities
on a regular basis.
He concluded:
It is my expectation that Mr. Demello
will be able to return to full functional capacity in one years time. Along
his clinical course, he will continue to have difficulties with these physical
tasks to one degree or another.
[209] Mr. Demello
will continue to have difficulties with his physical tasks to one degree or
another. Dr. Helper recommended treatment. While he did not know the
details of the active rehabilitation through Back In Motion program, from what
he had discussed with Mr. Demello, that training, in the words of Dr. Helper,
sounds ideal. He also recommended the following additional options: personal
training, yoga, Pilates and gym-based training with frequent follow-ups with
his original active rehabilitation therapist. He suggested this treatment for
the reason that individuals regress, in his opinion, and find it difficult to
work through the pain. These treatment modalities would assist that. In
cross-examination, he agreed there were no neurological deficits. There was no
mechanical or neurological damage, and Dr. Helper was strongly of the
opinion that active rehabilitation will assist with Mr. Demellos
improvement. He had testified that he believes Mr. Demello would
ultimately be able to perform tasks as he did before.
[210]
Regarding chronic pain syndrome, Dr. Helper wrote in his report:
The chronic pain syndrome
represents the prolonged symptoms combined with maladaptive functioning within
the individuals daily life. The chronic pain syndrome is often
multifactoral. It often represents the combination of the patients physical
limitations and psychological disturbance from their experience of chronic
pain.
[211]
In his report, Dr. Helper sets out his prognosis regarding Mr. Demellos
situation:
Greater than 50% of individuals will experience a full
resolution of their clinical complaints in the first six months following an
acceleration-deceleration event. There remain a large subsection of patients
who will go on to have prolonged symptoms that may last up to five years
following the inciting event. There exist a small subsection of patients who
will be left with permanent symptoms.
In Mr. Demellos case, it would be my expectation that
he will achieve a significant (80-90%) recovery in his cervical and lumbar soft
tissue complaints over the next two years.
a. He has
a guarded to poor prognosis for a full resolution of his cervical and lumbar
pain complaints.
b. At the
same time, it is unlikely that he will experience a marked deterioration in his
pain and function.
I explained to Mr. Demello that his negative prognostic
factors include the following:
a. Mr. Demello
has a history of approximately six previous motor vehicle collisions. He had
symptoms of neck and back pain after his most recent collision in 2001. By
2004, his residual complaints occurred only intermittently and were overall not
functionally limiting in his daily life.
i. However,
it is possible that his previous neck and back injuries lower his threshold for
the development of pain and dysfunction following his more recent events.
ii. At the
same time, his pre-existing cervical and lumbar condition is a possible small
contributing factor affecting his prognosis for a full recovery from subsequent
(current) events.
b. Mr. Demello
was involved in three motor vehicle collisions in 2009, 2010, and 2011,
respectively. He did not recover completely from his potential injuries
following each of the two initial (2009 and 2010) motor vehicle collisions
before being involved in the subsequent motor vehicle collisions (2010 and
2011).
c. It was
my impression, through further discussion with Mr. Demello, that his 2008
musculoskeletal status was that of a gentleman that was not physically fit.
Further discussion revealed that some of his deficits of posture were likely
pre-existing.
i. These
factors do not imply that Mr. Demello would have inevitably developed
spontaneous neck or back pain. However, it is my experience that
de-conditioned individuals with poor premorbid posture have a decreased
resilience to bouncing back from traumatic injuries such as motor vehicle
collisions.
ii. This group of patients still
has the opportunity to achieve a significant degree of recovery through their
rehabilitation. However, the rehabilitation is often prolonged. The final
outcome is less optimistic relative to the average individual who is displaying
more optimal biomechanics premorbidly.
[212] Dr. Helper
agreed that Mr. Demello was young and had recovered from previous
accidents. He also agreed that, ultimately, the recovery will depend on active
rehabilitation. He did not believe, however, that Mr. Demello would be
entirely free from the residual problems from the accident. In summary, Dr. Helper
stated he will likely experience an 80% to 90% recovery from the symptoms.
[213]
Dr. Helper advised in his report that:
[Mr. Demello] will need to
participate in fitness training with an emphasis on posture and core stability
for the foreseeable future; even once he experiences maximum recovery. He will
need to commit to a lifestyle of fitness in order to maintain his results.
[214] I accept
the evidence of Dr. Helper. I found he was a careful and thoughtful
witness who was not shaken in cross-examination. He was prepared and gave his
evidence in a forthright manner.
D.
Dr. Andrew Hepburn (orthopedic surgeon)
[215] Dr. Andrew
Hepburn was called by the defence. Dr. Hepburn is an orthopaedic surgeon
who was qualified in his training in Ontario in 1972. He was licensed to
practice orthopedic surgery in British Columbia in 1981. He prepared a report
after seeing Mr. Demello, dated July 9, 2012. He had seen the plaintiff
on one occasion and reviewed medical reports of Dr. Koss and Dr. Helper.
He came to the opinion that there was no mechanical or neurological reason for
Mr. Demellos inability to achieve a full recovery. He admitted candidly
that he has not stayed current with soft tissue injury literature.
[216] While
there was some clarification in re-examination as to when he had received
certain materials necessary for him to review in preparation of his report, it
became clear that Dr. Hepburn had not reviewed in detail the particulars
of the documents he indicated he had relied upon. Nor did he seek details from
the plaintiff about certain matters relating to the accident, including his
treatment. For example, he indicated in part of his report that the treatment Mr. Demello
is undergoing appears to be appropriate. However, he agreed in
cross-examination that he had taken no written history and has no independent
recollection of discussing with Mr. Demello exactly what treatment he was
taking in terms of the physical activities presently being undertaken at Back In
Motion.
[217] In
summary, because Mr. Demello had earlier soft tissue injuries, Dr. Hepburn
was of the opinion that he will likely have a full recovery of the three
injuries before the Court.
[218] I find it
difficult to accept Dr. Hepburns conclusions respecting Mr. Demellos
complaints, in which he says the injuries have been appropriately investigated
and treated. At this time, he is undergoing some further physical exercise,
which I think is appropriate, when he admitted that he had no idea of what Mr. Demello
is doing.
[219] He did not
make a note of the physical tests that he had Mr. Demello undergo. However,
he testified that in his practice, as an experienced orthopedic surgeon, it was
likely that he did perform the tests, although he did not note whether they
were positive or negative.
[220] He
additionally had indicated in his report, that Mr. Demellos shoulder
injury was work-related, and, he had difficulty with his hands and arms. However,
Dr. Hepburn never spoke to Mr. Demello about that and admitted so in
cross-examination. He felt that he had a soft tissue injury with what he
referred to as creaking gate symptoms, meaning mild symptoms that would come
and go, although he could see that while most people do get better, there is
always a certain percentage that will not.
[221] In all the
circumstances, where Dr. Hepburns evidence disagrees with Dr. Helper,
I prefer the evidence of Dr. Helper, particularly where Dr. Hepburn
indicates that he does not think that Mr. Demellos injuries are
permanent. I prefer the evidence of Dr. Helper, who indicated that he is
likely to achieve 80% to 90% recovery, with some residual symptoms that will be
mild, but he will never feel that he has not been in these accidents, to
paraphrase his testimony.
VII.
Causation
[222] It is
settled law that the plaintiff must establish on a balance of probabilities
that a defendants negligence caused or materially contributed to an injury. Causation
is not to be determined by scientific precision, nor does the defendants
negligence need to be the sole cause of the injury, so long as it is part of
the cause and beyond the range of de minimus; see Athey v.
Leonati, [1996] 3 S.C.R. 458 at paras. 13-17.
[223] There must
be a substantial connection between the injury and the defendants conduct. This
is known as the but for test, in which it is recognized that compensation
must occur for negligent conduct, if there is a connection between the injury
and the conduct; see Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.
[224] The onus
of proving causation rests with the plaintiff on a balance of probabilities: see
Blackwater v. Plint, 2005 SCC 58, per McLachlin, C.J.C., at para. 78:
…Even though there may be
several tortious and non-tortious causes of injury, so long as the defendants
act is a cause of the plaintiffs damage, the defendant is fully liable for
that damage. The rules of damages then consider what the original position of
the plaintiff would have been. The governing principle is that the defendant
need not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway: Athey. Mr. Barneys submissions that injury from traumas
other than the sexual assault should not be excluded amount to the contention
that once a tortious act has been found to be a material cause of injury, the defendant
becomes liable for all damages complained of after, whether or not the defendant
was responsible for those damages.
[225] Accordingly,
the plaintiff must be placed in the position that he would have been but for
the tortious conduct of the defendants.
[226] I find
that the plaintiff has proven that the injuries he sustained were caused by the
negligence of the three driver defendants.
[227] In respect
of the shoulder injury, which occurred when the plaintiff was performing his
work at the City Hall, I find that incident was part of the ongoing injury originally
caused by the accidents and was not a separate workplace injury caused by the
action of pulling cable. I find that this was an aggravation of his existing
injury and, consequently, the plaintiff has proven on a balance of probabilities
that all of his injuries were a consequence of the accidents.
VIII.
Damages
A.
General Non-pecuniary Damages
[228] The plaintiffs
counsel submits that, in respect to general damages, the plaintiff should be
compensated for the soft tissue injuries he has sustained to his neck and back,
as well as the difficulty that he has with his hands and arms. While there was
some physical recovery after each of the January 3, 2009 and September 2,
2010 accidents, it is best estimated by the plaintiff to be 80%. Since the
third accident of November 5, 2011, he has not made a similar recovery to
80%. He has lost significant ability to interact with his family, including
the loss of moments to interact physically with his children, particularly
teaching his daughter to ride a bicycle. He has lost the ability to assist his
wife in housework around the home to the extent that he did before.
[229] The plaintiff
has lost the ability to enjoy all of the activities, such as field hockey and
golf that he enjoyed before the accident. His priorities, as described above,
now are work, physiotherapy treatment for his accident injuries, housekeeping
matters and time with his family.
[230] On behalf
of the plaintiff, counsel submits that the assessment of Dr. Helper is the
most realistic with respect to his injuries. Dr. Helper has a guarded
prognosis that the plaintiff will ultimately recover and be able to do all
activities, but he will never feel as if he has not been in an accident.
[231] Non-pecuniary
damages should be assessed as set out in the Court of Appeal decision Stapley
v. Hejslet, 2006 BCCA 34. The factors for the Court to consider include
the plaintiffs age, the nature of the injury, the severity and duration of the
pain, the plaintiffs disability, emotional suffering and impairment of relationships,
losses, lifestyle and stoicism.
[232] Each of
those factors is present in this case and, while Mr. Demellos life has
not been impaired in the sense that he is able to continue generally with all
of his prioritized activities, he has been unable to continue with any of his
preferred leisure activities and almost anything he does is accompanied by some
level of pain.
[233] It is
important to stress that counsel for the defendants did not submit there was an
issue with respect to the credibility of the lay witnesses called on Mr. Demellos
behalf. It was submitted that the Court must consider reliability, given the
witnesses opportunity to observe and recall. I have done so. I accept the
testimony in relation to the change Mr. Demellos life has taken as a
consequence of this accident.
[234] The plaintiffs
position is based in part upon Unger v. Singh, 2000 BCCA 94, which Proudfoot, J.A.
for the BC Court of Appeal set out at para. 32:
After analyzing the many cases
cited by both counsel I find that the range of damages is indeed wide. Cases
involving primarily soft-tissue injury with some emotional problems including
sleep disruption, nervousness, depression, seem to be from a low $35,000 to a
high of $125,000. However, I caution though that these numbers are only guides.
I agree with the appellant that an award in the magnitude of $187,000 for
non-pecuniary damages is usually reserved for cases involving serious head
injuries, permanent cognitive damage, and paralysis. In other words, awards of
that magnitude are made if there are near catastrophic injuries.
[235] The Court in
Unger noted that, in 2000, in cases involving emotional problems in
addition to soft tissue injuries, the award ranged from $35,000 to $125,000. In
that case, the plaintiffs injuries were to the neck, shoulder and lower back.
The plaintiff in that case also had difficulties coping and sleeping, although
the injuries were largely resolved at the time of trial. The Court of Appeal
reduced the award to $90,000.
[236] The plaintiff
additionally cited the case: Deglow v. Uffelman, 2001 BCCA 652. In that
case, the plaintiff had a soft tissue injury that had lasted to the time of
trial, some three and a half years following the accident. It was an appeal
from a jury award of $100,000 for non-pecuniary damages. The Court reduced the
award to $75,000 on the basis that it was a moderate soft tissue injury.
[237] The plaintiff
also relied upon the case of Gold v. Joe, 2008 BCSC 865.
Dillon, J. awarded the amount of $80,000 in non-pecuniary damages in
respect of an accident where the plaintiff was still suffering the effects at
the time of trial, including a limited range of motion, pain and headaches. The
trial had been over three and a half years from the accident.
[238] The plaintiff
also relied upon Gosal v. Singh, 2009 BCSC 1471. Loo, J. awarded
non-pecuniary damages of $95,000. This case involved two accidents: the first
occurred in January 2003 and the second in June 2005. At the time of
trial in June 2009, the plaintiff was still improving from her soft tissue
injuries she sustained in the accidents. The Court found that it was
anticipated she would improve with an exercise program. Her physical pain and
depression would continue to improve, but possibly would not resolve
completely.
[239] Also
relied upon by the plaintiff was the decision of the Court in Trites v.
Penner, 2010 BCSC 882. Ker, J. awarded $75,000 in damages, reasoning
at para. 198:
[198] An award of $75,000 for
non-pecuniary damages in the present case takes into account the significant
pain, suffering and disability experienced by Mr. Trites throughout the
first several months after the accident. It also takes into account the
pain, discomfort and loss of enjoyment of life that he has suffered thereafter,
in terms of his being able to fully carry out his duties in his chosen
profession as a plumber, including having to rely upon prescription painkiller
medication to get himself through the day at work, and in terms of being unable
to pursue his former pre-accident recreational and sporting activities such as
skiing, hiking, and camping. This amount also takes into account that Mr. Trites
still continues to suffer neck pain and lower back pain on an ongoing basis, as
well as headaches from time to time and experiences physical limitations
depending on his activity.
[240] Lastly,
the plaintiff relies upon the decision of MacKenzie v. Rogalasky, 2011
BCSC 54. The circumstances set out involved an individual who was stoic and
determined. The injuries were described by Ker, J. at paras. 255-256
as follows:
[255] I accept the evidence adduced by the plaintiff that Mr. MacKenzie
sustained soft tissue injuries to his neck, shoulder and back as a result of
the accident. The symptoms of chronic pain have continued to bother Mr. MacKenzie,
and nearly seven years post-accident, he still experiences pain in his neck,
shoulder and back, although primarily in the lower back area. While the
injuries can be described as moderate soft tissue injuries, I accept the
diagnosis and opinion of Dr. Hunt that Mr. MacKenzie has developed
chronic myofascial pain syndrome and experiences chronic pain to this
day. Thus, the injuries and pain symptoms continue to affect most every
facet of Mr. MacKenzies work and non-work life. The pain is most
significant when Mr. MacKenzie works and overloads his physical tolerance
capacity. He has had to leave his chosen profession as a chef due to the
increasing pain and difficulty he was experiencing and the failure to see any
significant improvement in his condition.
[256] I have
concluded that as a result of the accident, Mr. MacKenzie has suffered pain
and loss of enjoyment of life, and he will continue to do so for an indefinite
period of time.
[241] In the
circumstances, Ker, J. awarded $100,000 in injuries.
[242] The plaintiffs
submission in this case is that a non-pecuniary award should be in the $95,000
to $105,000 range.
[243] The defendants
position is that the plaintiff suffered mild to moderate soft tissue injuries
to the neck and back and that after each injury, he took a graduated return-to-work
program, made a substantial recovery and ultimately returned to full duties.
[244] Following
the third accident, the defendant submits that the plaintiff, who again took
time off, is undergoing his active re-rotation program and should be able to
return full-time to his regular duties, resolving any complaints of pain over
the course of the next few months.
[245] The defence
also submits that, in respect to the workplace injury, it is a separate injury
for which the defendants should not be held responsible.
[246] The defendants
submit that each case is unique and is to be assessed on some special
circumstances. The defendants submit an appropriate amount to be awarded to Mr. Demello
in respect of his non-pecuniary damages is $50,000.
[247] The defendants
rely upon the decision of Humphries, J. in Demidas v. Poinen, 2012
BCSC 416. In that case, Humphries, J. awarded general damages of $45,000.
The difficulty using that case as a comparison to the case at bar was that,
while the plaintiff in that instance had three accidents, for the last accident,
he was held at fault. That accident aggravated his earlier injuries and
required knee surgery to be performed.
[248] The defendants
also rely upon the decision of Tait v. Dumansky, 2012 BCSC 332. The plaintiff
sustained injuries in three motor vehicle accidents. In the first, they were
described as moderate soft tissue injuries to his neck and back, with
significant muscle spasm and associated headaches, which were exacerbated in
two rear-end accidents which occurred in October 2009 and May 2010. The
first accident occurred in October 2007. At the time of trial, which was
one and a half years following the last accident, the plaintiffs prognosis was
considered guarded and questionable. The court found there was a real and
substantial possibility that the plaintiff might not be able to continue to work
full-time or at all. Gerow, J. awarded the plaintiff $60,000 in non-pecuniary
damages, $50,000 in loss of earning capacity and $10,000 in future care.
[249] The defendants
submit that while this case is somewhat like the one before Gerow J, unlike the
plaintiff, Mr. Demello continues to steadily recover. The defendants also
submit there is no indication or suggestion that the plaintiffs work will be
permanently impacted by his injuries.
[250]
Indeed, none of the experts have said that Mr. Demello has
permanent injuries, in the sense that he will never achieve physical recovery.
He will, it is believed, recover physically, but with pain. I accept,
however, the evidence of Dr. Steven Helper that Mr. Demello has a
guarded prognosis. If he meets expectations and achieves full functional
capacity, he will still be left with some intermittent pain. Activities that
are involved in his job, such as repeated bending, squatting, reaching,
prolonged overhead activities and repeated overhead activities will trouble him.
Dr. Helper felt Mr. Demello would continue to improve and he
explained to him that he had a positive outlook for his prognosis for
substantial recovery of 80% to 90% over the course of the next one to two
years, if he continues with his active rehabilitation program.
[251] I also
accept Dr. Steven Helpers opinion that the left shoulder strain incident
that occurred in February of 2011 is not responsible for Mr. Demellos
current ongoing complaints in that regard respecting his shoulder.
[252] While the
chief complaints described are neck and back pain, as explained by Dr. Helper,
they involve all the muscles that are attached to the neck, including the
shoulders. Dr. Helper was of the opinion that 1) the duration of symptoms
and degree of recovery in the average patient with soft tissue mediated pain
following a motor vehicle collision is difficult to predict, 2) greater than
50% of individuals will experience a full resolution of their clinical
complaints in the first six months following an acceleration-deceleration
event. He testified that while a large subsection of patients will go on to have
prolonged symptoms that may last up to five years following the inciting event,
they will not recover. There exists a small subsection of patients, however,
who will be left with permanent symptoms.
[253] In his
evidence, Dr. Helper explained that 20% of patients or less will be left
with permanent symptoms. It is of note that Dr. Hepburn did not disagree
with the proposition that some patients will have permanent symptoms, although
he estimated that number to be considerably lower than 20%.
[254] I do not
find it likely that Mr. Demello will be recovered and pain free in a few
months time.
[255]
I accept Dr. Helpers diagnosis that Mr. Demello will continue
to recover and he is optimistic, but I also accept that it is more likely than
not, that he will not experience 100% recovery from his symptoms. As Dr. Helper
found:
He will likely experience an
80-90% recovery from his symptoms once he has reached maximum medical
management. He will need to participate in fitness training, with an emphasis
on posture and core stability for the foreseeable future; even once he experiences
maximum recovery. He will need to commit to a lifestyle of fitness in order to
maintain his results.
[256] The defendants
also cited the decision of Salvatierra v. Vancouver (City), 2008 BCSC
537. The plaintiff in that case had testified that she sustained injuries to
her neck, back, associated headaches and injuries to her left shoulder blade,
arm and wrist in a motor vehicle accident which had occurred in November 2003,
some five years prior to the accident. She was experiencing ongoing neck and
back pain. Although she had enjoyed significant improvement in the first two
years, she continued to suffer ongoing pain. It is important to note that in
that case, Sigurdson, J., who awarded the plaintiff $45,000 in non-pecuniary
damages, found the evidence of the plaintiff to be unreliable. It is on this
basis the defendants submit that the plaintiff is entitled only to an award of
$50,000.
[257] I find in
all of the circumstances, that this case is distinguishable from the cases
cited by the defendants. The plaintiff has endeavoured to do everything he can
to get better from these accidents. There is no evidence to suggest he was not
suffering these injuries. Even during the course of his giving evidence and
during the trial, he appeared to be in pain, in one case testifying that he was
experiencing numbness in his hands. I accept that evidence and consequently
find that this case is more similar to the cases cited by the plaintiff,
particularly Gosal v. Singh, in which an award of $95,000 was made.
[258] In all of
the circumstances, including the evidence of the lay witnesses,
Mr. Demellos evidence, that of his family, the fact of this being three
accidents, and his sincere determined efforts to get well, I am awarding the plaintiff
$100,000 in non-pecuniary damages.
B.
Special Damages
[259] As a
consequence of these accidents, Mr. Demello had to incur the costs of buying
new items, including heat and ice bags, medicines and physiotherapy. I award
Mr. Demello the cost of the items that he purchased as a consequence of
these injuries.
[260] An injured
person is entitled to recover from the defendant the reasonable out-of-pocket
expenses incurred as a consequence of the accident. To the extent possible, an
individual is to be put in the position he or she would have been in had the accident
not occurred; see X. v. Y. 2011 BCSC 944 at para. 281. All of the
medical witnesses called by the plaintiff, including Dr. Koss and Dr. Steven
Helper, testified it was necessary for the plaintiff to have an active
rehabilitation program. Similarly, a detailed explanation of what that would
entail included an entire change to a lifestyle of fitness, incorporating
regular attendance at a gym, as well as managing the immediate concerns of the
motor vehicle accident, medical management, chiropractic physiotherapy and
active rehabilitation through the Back In Motion rehabilitation group.
[261] The only
matter that was in issue was the baby carrier, which cost $179.18. In this
regard, I accept the evidence of Mr. Demello that he was advised by Dr. Koss
to make this purchase. He had never had a baby carrier with his first daughter
and I accept that, in an effort to assist carrying her for longer periods
of time, he was using the baby carrier and that was a consequence of this
accident.
[262] I also
award Mr. Demello the fitness memberships in the amount of $2,102.17.
[263] In respect
to the treatment for massage therapy, I award Mr. Demello $612 for Minoru Massage
Therapy, $95 for Steveston Massage Therapy, and $400 for further massage
therapy.
[264] For
physiotherapy, I award the plaintiff the amount of $480 plus the $4,020 which was
paid by his insurance, Great West Life. He is under an obligation to repay
that amount.
[265] In respect
of Peter Lansdowne Physio, I award the plaintiff special damages of $160.00. In
respect of Treloar Physiotherapy, I award him $330.00, as well as the amount
paid by Great West Life of $676.00. In respect of the acupuncture, I award
$345.00, a portion of which is to be paid back to Great West Life.
[266] For
medications, I award $395.80.
[267] For
treatment expenses, I award those for which the parties are in agreement of
$17.00.
[268] In total,
therefore, for all forms of medical therapies and medications, fitness
memberships and for the baby carrier, I award the plaintiff $9,202.15.
C.
Past Loss of Earning Capacity
[269] The
parties are in agreement with respect to much of the past loss of income. They
differ with regard to the ongoing loss of income being incurred by Mr. Demello
resulting from his working three full days a week and two half days.
[270] As noted by
the courts in Rowe v. Bobell Express Ltd., 2005 BCCA 141 and M.B. v.
British Columbia, 2003 SCC 53, an award to compensate for past loss of
earning capacity is to be based upon what the plaintiff could have earned but
for the injuries sustained.
[271] Section 98
of the Insurance (Vehicle) Act, R.S.B.C. 1996, c 231 states that a plaintiff
is entitled to recover damages only for his past net income loss. Accordingly,
the Court must deduct an amount of income tax payable from the loss; see Hudniuk
v. Warkentin, 2003 BCSC 62.
[272] Here, the
parties agree that the amount of income tax to be deducted is 22% of earnings. In
order to consider the plaintiffs submission that he be awarded past loss of
income on a basis that he would have obtained the foreman position, the court
must consider whether the plaintiff has proved that these are not unproven
hypothetical events and rather that he has proven the future or hypothetical
possibility is a real and substantial possibility and not mere speculation; see
Athey, at para. 27.
[273] I accept
that Mr. Demello, who at the time was employed by Shaw Cable, took the
time away from work as a consequence of his physicians advice.
[274] I also
accept the evidence of Mr. Ted Bonazew who is Mr. Demellos
supervisor in respect of Mr. Demellos employment. Mr. Demello gave
evidence that several foreman jobs have become available at Shaw Cable during
the course of time of the accidents, two of which were successfully secured by
individuals who have joined the Shaw Company some considerable time after Mr. Demello
commenced work with Shaw.
[275] Mr. Demellos
supervisor was questioned on the ability and requirements that comprise a
successful foreman candidate. While he conceded that he does not do the
hiring, he is part of the team that conducts the interviews of the candidates
for the position. A foreman must be able to do all of the physical labour that
a cable installer would do, which includes ladder work. This is in order for
the supervisor to assist and train an individual, should that be necessary, on
the job. With respect to the technical components, Mr. Bonazew testified,
and I accept his evidence, that Mr. Demello rarely called him with
difficulties concerning his interaction with customers of Shaw or technical
problems. To Mr. Bonazew, that indicated Mr. Demello was an
independent installer and able to trouble-shoot and problem-solve on his own.
[276] I accept
that Mr. Demello is a hard worker, gets along with others and is able to
trouble-shoot for Shaw successfully. I assess his chances of having
successfully obtained a foreman position but for this accident are greater than
as what he could have earned as a foreman been paid at $37.61 an hour, according
to the Collective Agreement that was tendered in evidence. He would have
earned $37.61 being a foreman, as opposed to $32.24 an hour.
[277] I
considered the principles outlined in Smith v. Knudsen, 2004 BCCA 613 at
paras. 23-37 to apply in these circumstances, and I find it would be
reasonable to assess his chances of achieving a promotion to foreman by January 2012
at greater than 50%. His injuries prevented him from applying. As he
testified, he is still unable to do the ladder work, and his is actively
working on that.
[278] I find
that but for the injuries from the accidents, Mr. Demello would have been
in a position to apply and be successful.
[279] At Shaw,
overtime is classified in two categories: there is unscheduled overtime, which
is the result of not having completed a call at the time that one would
ordinarily finish ones work and, consequently, one must continue to complete
the job. The other type of overtime which occurs at Shaw is that of scheduled
overtime. For instance, if there is a statutory holiday or other
opportunities, there is a sign-up sheet in the foremans office. It was the
evidence of Mr. Demello, Mr. Seymour and Mr. Bonazew that it was
probable that one would achieve overtime, if one signed up for it until March 2012.
[280] Following March 2012,
it is now the case that scheduled overtime is only given for statutory
holidays. Similarly, unscheduled overtime can only occur following calls to a supervisor
to see if there is an individual scheduled for the night shift to take over and
complete the call. Only then, if there is no one available, is the individual
Shaw cable installer permitted to proceed to complete the job and thereby incur
unscheduled overtime.
[281] As a
consequence, I accept that Mr. Demello would have been able to earn the
overtime he claims he would have in 2009, 2010 and 2011. I accept that
evidence and I accept that he had a goal to earn as much as possible, in an
effort to move to Vancouver, to be closer to his daughters school and to his
in-laws who assist with the child care when Mr. Demello and his wife are
working.
[282] I find a
reasonable award under loss of income to be in the amount of $72,000. The
amount awarded takes into account the overtime and missed opportunity of that. I
find that, given the evidence of both Mr. Bonazew and his co-worker, Mark
Seymour, that overtime was plentiful and available from the date of the first
accident until March 2012. Applying a rate of 22%, I award $56,160.
D.
Past and Future Homemaking Capacity
[283] The plaintiff
claims an amount of $9,168.64 for his loss of housekeeping abilities. This sum
is arrived at on an assessment of the cost based on 3 hours lost per week at
$16.64 an hour, commencing from January 2009 to May 2009 for a period
of 20 weeks, resulting in a total loss of $998.40. The claim for this amount
is based upon the Court of Appeal decision in McTavish v. MacGillivray,
2000 BCCA 164, at paras. 8, 48-49 and 68, in which it was established that
damages are still owed even if tasks have been performed gratuitously by a
family member and may be assessed on a replacement cost or opportunity cost basis.
[284] In the Saskatchewan
Court of Appeal decision of Fobel v. Dean (1991), 83 D.L.R. (4th) 385, the
court suggested that damages be set out separately in order that they are
ascertainable, but they can form the basis for general damages as established
in McTavish. Fobel as well states that it is not necessary for
the plaintiff to establish someone else will be employed to do that work to
entitle an award for pecuniary loss of future homemaking capacity.
[285] In the McTavish
decision, Huddart, J.A. noted that this was an aspect of the general,
rather than special damages in pecuniary terms.
[286] The plaintiff
submits it is reasonable, as occurred in Foran v. Nguyen et al, 2006
BCSC 605, to set the payment for loss of housekeeping at $15.00 an hour.
[287] I accept
that the plaintiff has been unable to perform much of the household activities.
He has returned to doing some, but he feels he is inefficient. I do not find,
however, that it is likely he would have been able to maintain all of the hours
he has set forward, given his additional consideration that he would have been
working more overtime. I consider a reasonable award in this regard, in all of
the circumstances, including the submissions of the defendants, is $5,000.
E.
Loss of Future Earning Capacity
[288] The
plaintiff submitted it was expected that he would be at his functional capacity
and endurance levels more or less pre-accident, by 18 months after the
accident if he completes his medical therapies, Dr. Helper put his
potential physical recovery as close as one year. I also accept that it has
been proven on a balance of probabilities that Mr. Demello, but for the
accident, given his work habits and strengths, would have been successful in
obtaining a foremans position.
[289] It was the
defendants position that there was no loss of future earning capacity proven.
Mr. Demello has never indicated that he was anything but happy in his
present employment at Shaw. A claim for loss of future earning capacity must
consider whether his earning capacity has been impaired by his injuries and if
so, what compensation should be awarded for harm that will accrue over time.
[290]
I accept Dr. Steven Helpers evidence that Mr. Demello is not likely
to achieve a full recovery. In this regard, in respect of loss of earning capacity,
Dr. Helper was clear on Mr. Demellos ability to continue to work in
physical labour, given his injuries. Dr. Helper stated:
[I]f Mr. Demello meets
expectations for achievements in active rehabilitation and further natural
recovery, he will be fully functional at his previous job position in
approximately one years time. However, he may be limited from future job
opportunities that place an even greater demand on him physically relative to
his current position. I could only speak to this upon re-evaluation.
[291] Accordingly,
Dr. Helper is of the opinion that, following a year, it is more probable
than not, that Mr. Demello will not be sustaining ongoing difficulty but
that he will be able to be fully functional, i.e., back at work.
[292] Dr. Helper
felt that Mr. Demello will be most limited in competitiveness for a future
job opportunity with a physical component. Dr. Helper felt that if Mr. Demello
has achieved satisfactory physical recovery over the one year, which he
anticipates he will, Mr. Demello will be able to do repeated bending,
squatting, reaching and prolonged overhead activities, all of which are
necessary to do his job and to do the job of a foreman.
[293] Dr. Helper
concluded it is my expectation that Mr. Demello will be able to return to
full functional capacity in one years time. Along his clinical course, he
will continue to have difficulties with this physical task to one degree or
another.
[294]
The defendants submit that the guiding case for proof of future losses
in the standard of real and substantial possibility; Perren v. Lalari,
2010 BCCA 140. In that case, Garson, J.A. stated at para. 32:
A plaintiff must always prove, as was noted by Donald J.A.
in Steward, by Bauman J. in Chang, and by Tysoe J.A. in
Romanchych, that there is a real and substantial possibility of a future
event leading to an income loss. If the plaintiff discharges that burden of
proof, then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and Romanchych.
A plaintiff may indeed be able to prove that there is a substantial possibility
of a future loss of income despite having returned to his or her usual
employment. That was the case in both Pallos and Parypa. But, as Donald J.A.
said in Steward, an inability to perform an occupation that is not a
realistic alternative occupation is not proof of a future loss.
[Emphasis in Original]
[295] Once that
burden of proof is discharged, as noted by Garson, J.A., the court can
then use either of two approaches to quantify future losses. At para. 12,
she held:
These cases, Steenblok, Brown,
and Kwei, 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 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, though proven, is not
measurable in a pecuniary way. An obvious example of the Brown approach
is a young person whose career path is uncertain. In my view, the cases that
follow do not alter these basic propositions I have mentioned. Nor do I
consider that these cases illustrate an inconsistency in the jurisprudence on
the question of proof of future loss of earning capacity.
[296] The defendants
submit that the plaintiff is making progress in his active rehabilitation
program and will likely return to full-time working duties over the next few
weeks and, as a consequence, no award should be made under this head of damage.
[297] The plaintiff
submits that an appropriate award, considering all contingencies under this
heading, would be $50,000. He cited the decision of Brown v. Golaiy (1985),
26 B.C.L.R. (3d) 353 (S.C.), where now Chief Justice Finch held that
considerations in assessing the loss of future earning capacity are whether the
plaintiff has been rendered less capable overall from earning an income from
all types of employment, is less marketable or attractive an employee, has lost
the ability to take advantage of all job opportunities or is less valuable to himself
or herself as a person, and is capable of earning income in a competitive way on
the market.
[298] The Court
is additionally to be guided by the decision in Reilly v. Lynn, 2003
BCCA 49 at para. 101:
The relevant principles may be briefly summarized. The
standard of proof in relation to future events is simple probability, not the
balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 27. A plaintiff is entitled to compensation for real
and substantial possibilities of loss, which are to be quantified by estimating
the chance of the loss occurring: Athey v. Leonati, supra, at para. 27,
Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The
valuation of the loss of earning capacity may involve a comparison of what the plaintiff
would probably have earned but for the accident with what he will probably earn
in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33
at 93 (S.C.). However, that is not the end of the inquiry; the overall fairness
and reasonableness of the award must be considered: Rosvold v. Dunlop
(2001), 84 B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette,
[1995] B.C.J. No. 644 (C.A.) (Q.L.). Moreover, the task of the Court is to
assess the losses, not to calculate them mathematically: Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.).
Finally, since the course of future events is unknown, allowance must be made
for the contingency that the assumptions upon which the award is based may
prove to be wrong: Milina v. Bartsch, supra, at 79. In adjusting
for contingencies, the remarks of Dickson J. in Andrews v. Grand &
Toy Alberta Ltd., supra, at 253, are a useful guide:
First, in many respects, these contingencies implicitly are
already contained in an assessment of the projected average level of earnings
of the injured person, for one must assume that this figure is a projection
with respect to the real world of work, vicissitudes and all. Second, not all
contingencies are adverse … Finally, in modern society there are many public
and private schemes which cushion the individual against adverse contingencies.
Clearly, the percentage deduction which is proper will depend on the facts
of the individual case, particularly the nature of the plaintiffs occupation,
but generally it will be small … [Emphasis in Original]
[299] Sinnott
v. Boggs, 2007 BCCA 267 at para. 15 is also relevant, in which Mackenzie, J.A.
states:
The line between non-pecuniary
damages and damages for loss of earning capacity is between losses that sound
in pain and suffering and loss of non-remunerative amenities on the one hand,
and pecuniary losses in the form of a reduced ability to earn income on the
other. There is no reason why an injury which permits a plaintiff to continue
in a particular occupation but at a reduced level of performance and income
should not be compensated for that pecuniary loss through damages for loss of
earning capacity.
[300] I am
satisfied that Mr. Demello has been impaired from earning income as a
foreman over the course of the next few years. However, I do not find, given all
the contingencies, negative and positive, the evidence of Dr. Helper and
the plaintiffs own submission that functionally he will be much recovered in
18 months time, that an amount of $50,000, as submitted by the plaintiff is
appropriate. I award $20,000.
F.
Cost of Future Care
[301] The plaintiff
here has demonstrated that he is endeavouring to do everything possible to
relieve his pain to carry on with his work, including taking the Back In Motion
active rehabilitation program, which was assessed by Dr. Steven Helper as
appropriate. It is clear, even by Dr. Hepburns evidence, that the plaintiff
has to engage in some kind of active rehabilitation program, although Dr. Hepburn
did not detail exactly what that would be.
[302]
The award for cost of future care must be based on what is
reasonably necessary on the medical evidence to preserve and promote the plaintiffs
health: see Milina
v. Bartsch (1985),
49 B.C.L.R. (2d) 33 (S.C.); A.L. v. D.K., 2000 BCSC 480; Spehar v. Beazley, 2002 BCSC 1104.
[303]
To make an award under this heading, there must be:
● medical
justification for claims for the cost of future care; and
● the claim must be reasonable; see Milina, supra.
[304] Further, costs
must be likely to be incurred by the plaintiff. Accordingly, I must, to
some extent, predict what will happen in the future in order to determine an
award in this regard. Additionally, the Court must consider the contingencies
which depend upon the specific care needs of the plaintiff. In some instances,
negative contingencies will reduce the award. The award is offset by positive
contingencies. For example, an award can be reduced based on the prospect of
improvement of the plaintiffs condition. As noted by both parties, each case
will be determined on these particular facts: Gilbert v. Bottle, 2011
BCSC 1389 at para. 253.
[305] It is
settled law that an assessment of damages for cost of future care is not a precise
accounting; see Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21.
[306] I conclude
on the evidence before the Court, that Mr. Demello will continue with his
Back In Motion treatment as this is medically indicated in Dr. Helpers
report, as well as in the evidence of Dr. Koss. There is no question that
Mr. Demello is receiving a benefit from it and that, in accordance with Dr. Koss
instructions, he is not working full-time in order to carry on with that
treatment.
[307] At the
time of trial, Mr. Demello had completed 26 sessions of treatment at Back
in Motion (see also for medical justification Jacobsen v. Nike Canada Ltd.
(1996), 19 B.C.L.R. (3d) 63 (S.C.) at paras. 175-181; Aberdeen v. Township
of Langley, 2007 BCSC 993 at para. 120, affd (on this issue) Aberdeen
v. Zanatta, 2008 BCCA 420 at paras. 41-42 and 62). I am mindful that Mr. Demello
is working on his Back In Motion program, and I am also mindful of the cost to
complete the program of $3,100. I am also mindful that he will require some
additional physiotherapy and that he, on occasion, requires massage and
medications to reduce his pain.
[308] The
evidence of Dr. Steven Helper was that Mr. Demello must undergo a
course of rehabilitation for the remainder of his life, in terms of being
physically active. In this regard, I find that it will be likely and it is
medically indicated, that Mr. Demello will continue, even following completion
of his physiotherapy and other treatments, to carry on at the gym to assist
with any lingering injuries. Consequently, taking into account that Mr. Demello
may require additional Back In Motion therapy beyond what he has, as he has not
yet achieved the full ability to carry 80 pounds which is the requisite amount
for a ladder, I award $15,000.
[309] No doctor,
including Dr. Helper, however, testified that kinesiology and
physiotherapy treatments would be indicated to the extent claimed by the
plaintiff. I find, additionally, to award for medication for the next 35
years would not be in accord with the medical evidence.
[310] I am
mindful of Dr. Helpers conclusion, but the main goal is to get Mr. Demello
into active rehabilitation, right now, and to maintain his fitness.
IX.
Summary of Awards
[311]
I have awarded the following:
(a) Non-pecuniary
damages $100,000.00
(b) Special
damages 9,202.15
(c) Past
loss earning capacity 56,160.00
(d) Loss of home
making capacity 5,000.00
(e) Loss of future
earning capacity 20,000.00
(f) Cost of
future care 15,000.00
TOTAL
AWARD: $205,362.15
X.
Costs
[312] In the
event that counsel is unable to reach an agreement respecting costs, counsel
may within 30 days of the release of this judgment, speak to costs by advising
the Registry.
____________ Maisonville J.____________
Maisonville J.