IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130813

Docket: M128534

Registry:
New Westminster

Between:

Carrie Fedyk

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

Table of Contents

I.  INTRODUCTION. 3

II.  PLAINTIFF’S
EVIDENCE ON NATURE AND EXTENT OF INJURIES AND DISABILITY. 5

III.  MEDICAL EVIDENCE ON
NATURE AND EXTENT OF THE DISABILITY. 8

A.  Dr. Best,
plaintiff’s family doctor, May 5, 2011. 9

B.  Dr. Salvian,
September 21, 2011. 10

C.  Dr. Dommisse’s
January 20, 2012 report 12

D.  Dr. Salvian’s
May 3, 2013 critique of Dr. Dommisse’s report 14

E.  Dr. Salvian’s
updated report, August 1, 2012. 17

F.  Dr. Dommisse’s
July 30, 2012 responding report and Dr. Salvian’s response, March 13, 2013. 18

G.  Findings
on nature and extent of the plaintiff’s injuries. 22

IV.  EMPLOYMENT SUITABLE BY
EDUCATION, TRAINING OR EXPERIENCE. 22

A.  Ms. Fedyk. 22

B.  Summary
of medical evidence on functional limitations. 24

1.  Dr. Best 24

2.  Dr. Dommisse. 24

V.  PRINCIPLES GOVERNING TTD
BENEFITS. 26

A.  Sections
80 and 86 of the Regulations. 26

B.  The
onus and burden of proof 26

C.  Meaning
of total disability. 28

1.  Claim
for massage therapy treatments. 32

I.       INTRODUCTION

[1]            
The plaintiff has asked the Court to order the defendant, the
Insurance Corporation of British Columbia (“ICBC”) to reinstate temporary total
disability benefits (“TTD’s”) ICBC had been paying her until the adjuster ended
them on April 19, 2012. ICBC has refused to pay any further amounts since then.

[2]            
She
also asks the Court to order ICBC to pay amounts she has paid for massage
therapy, coupled with an order that ICBC continue to pay for treatments until
further order.

[3]            
The
following facts are not in dispute:

1.       The plaintiff
was injured in a motor vehicle accident on August 10, 2009.

2.       She held a valid
policy of insurance with the defendants.

3.       She was employed
at the time by a company called Sodexo Canada (“Sodexo”), where she earned
$13.05 hourly working cleaning medical facilities.

4.       She attempted to
return to work and lasted one day, but has since returned.

5. ICBC paid her the
following TTD benefits:

(Therefore, ICBC has paid Ms. Fedyk TTD
benefits up to and including April 19, 2012.)

6.       The plaintiff
worked part-time for her uncle at MF Music–X–Cetra Ltd. from October 15, 2012
to March 19, 2011, where she earned $1186.75.

[4]            
ICBC advised Ms. Fedyk it would no longer pay TTD benefits after
April 19, 2012; and that the decision was based on Dr. I.G. Dommisse’s
January 20, 2012 report, received by ICBC March 8, 2012. The adjuster pointed
out that Dr. Dommisse had advised that “he does not feel it is necessary
for [her] to undergo any further treatment; therefore, [ICBC] will no longer be
funding any future care.”

[5]            
I note in passing that neither the TTD benefits nor the cost of
massage therapy are costs of future care. Ms. Fedyk was an insured and the
TTD benefits constituted benefits she was entitled to receive, if qualified, as
an insured. The cost of massage therapy treatments constituted rehabilitation
benefits she was entitled to receive if they were medically necessary and reasonable.

[6]            
Further,
in my view, the evidence suggests that adjuster read too narrowly Dr. Dommisse’s
advice (at p. 8 of Dr. Dommisse’s January 20, 2012 report):

4.         … Ms. Fedyk is
deconditioned and has decreased muscle tone within the rhomboid muscles. In my
opinion, adequate and appropriate rehabilitation would likely have facilitated
her convalescence.

[7]            
Dr. Dommisse further stated in his report that, “Ms. Fedyk did
not attend physiotherapy for 17 to 18 months following the [a]ccident”; and
then, “she continued with these physiotherapy treatments for 3-4 months”
thereafter. The reason she did not commence physiotherapy until March 2011, was
because ICBC had refused to pay them, at least initially, and Ms. Fedyk
could not afford to pay them. Ms. Fedyk’s parents paid for some treatments
expecting ICBC would repay them.

[8]            
Dr. Dommisse’s first letter could be interpreted in various ways,
but all lean to the view that rehabilitation at some juncture would help her convalesce
and that she would benefit from further therapy, as Dr. Dommisse noted in
his second report.

II.   
PLAINTIFF’S EVIDENCE ON NATURE AND
EXTENT OF INJURIES AND DISABILITY

[9]            
As the nature and extent of Ms. Fedyk’s injuries and the
disabilities are well described in the medical reports of Dr. C.D. Best,
her family physician; and, between them, the six reports authored by Dr. A.J.
Salvian, called by the plaintiff; and Dr. I.G. Dommisse, whose opinion the
defendant relies on, my discussion of Ms. Fedyk’s evidence on the nature
and extent of her injuries will be brief. In sum, I find Ms. Fedyk’s
symptoms now mainly consist of:

• pain in the
  neck, radiating pin into the left shoulder, soft tissues the neck and
  upper back including insertion of the trapezius, rhomboids and small facet
  joints of the neck and upper back;
• numbness in the
  left arm and tingling in the fingers of the left hand as a result of
  injury to the brachial plexus leading to Thoracic Outlet Syndrome (“TOS”);
• some irritation
  of the nerves around the left elbow, which, accepting Dr. Salvian’s view,
  caused by the injury to the brachial plexus;
• headaches and
  occasional dizziness; and
• a possible
  chronic pain syndrome related to Ms. Fedyk’s myofascial neck and
  shoulder injuries, as opined by Dr. Salvian.

[10]        
Ms. Fedyk is 25 years of age. She is a student in the four-year
music program offered at Douglas College, focused on vocals. She has been
attending since the fall of 2012.

[11]        
She presented as a pleasant straight-forward person. Her answers tended
to stray from the questions, as anxious witnesses sometimes do. Although her
evidence was occasionally inaccurate, I attribute this to the usual frailties
of human memory and perception.

[12]        
She was a passenger in a vehicle struck in an intersection on Lougheed
Highway, in Coquitlam, B.C. The force of the collision on her side jolted her
forward and backwards and spun her vehicle counter-clockwise. I understand the
collision was quite significant. I find the force of it caused her significant
soft tissue injuries.

[13]        
The next day, Ms. Fedyk noticed a bruise on her right shoulder
where the seat belt contacted her. When the next week she saw Dr. C.D. Best,
her family doctor, she said she felt neck pain, headaches, dizziness, right
shoulder pain and left shoulder pain, with tingling into her arm. As discussed
later, Dr. Best did not specifically note left-sided pain in his clinical
notes.

[14]        
By Ms. Fedyk’s next visit, she said her symptoms had worsened in the
left shoulder and extended from her elbow to her forearm. Her requests for
physiotherapy treatments were initially refused by ICBC; and, as she could not
afford to pay for them, she could not start treatments right away. Her parents
eventually paid for a few treatments. Beginning March 2011, however, ICBC
funded treatments for about four months, two to three times a week.

[15]        
ICBC covered the following physiotherapy treatments under Part 7. She
found these treatments helpful as they decreased her stiffness and made it
easier for her to breathe. Muscle pain in her chest muscles made breathing difficult.

[16]        
Asked to describe how symptoms progressed from the day of the accident
over the next few months, she said that her headaches became intermittent after
about two weeks following the accident. However, in the last six months to
year, they have actually worsened. She now experiences dizziness only if she
has a bad headache. She recalls that her right shoulder resolved within three
months. As for her chest, she said it “frightens her the most” with pain
extending from under her arms and the chest, between her ribs. This creates a
constant crunching sensation in the left upper area of her chest.

[17]        
Ms. Fedyk’s left shoulder symptoms extend into the area of her
shoulder blades and upper back. She feels these have worsened, as has tingling
in her left arm over time. She does not feel that the tingling, in and of
itself, is debilitating when it occurs: I understand it is the muscle pain and
the spasms that produce the tingling, numbness and other features of her myofascial
TOS that she finds debilitating. She says her neck feels like a rubber band.
She feels constant discomfort at the back of her neck.

[18]        
As
for recreational activities, her symptoms have forced her to give up baseball
and off-road quad biking. She explained she cannot take the jostling.
Similarly, trial hiking aggravates her symptoms, so she has given that up.

[19]        
As
for household activities, she cannot take out the garbage, take the laundry up
or down the stairs, or do any yard-work. She has difficulty cooking, washing
the bathtub and she cannot mop or sweep, or wash windows. Vacuuming is hard and
she minimizes this.

[20]        
Ms. Fedyk’s
disability has limited her educational options. About one month before the
accident, she had enrolled at Douglas College to complete course work required
before she could enter the Registered Nursing Program. Eventually concluding
she could not manage the physical aspects of nursing, she decided to change
direction. After taking time away to recover, she took two courses that
qualified for admission into the four-year music program, which she eventually entered
in the fall of 2012.

[21]        
She
majors in singing. Piano studies form an integral part of her music program. She
feels her academic and musical performance has suffered. Supported by Dr. Best,
she successfully applied for status as a permanently disabled student, based on
chronic neck, back, shoulder pain, left-sided TOS, and chronic pain. In the
application, Ms. Fedyk described the impact as: “cannot sit for long
periods of time or play instruments easily or sustain deep breathing.” I
understand her status entitled her to accommodations, but did not entail
regular financial aid.

[22]        
She
treats her pain with Tylenol 3, taken only when the pain is really bad;
Tramacet four times a week; anti-inflammatories seven days a week; and
Gabapentin for nerve pain daily.

[23]        
Ms. Fedyk
finds massage therapy helps her function better. Although it does not provide
lasting relief, it alleviates her pain well and long enough to make it possible
to continue her music studies. She feels better and can do more while its
effects last. Without massage treatments, she doubts she could complete her program.
Ms. Fedyk has had 37 treatments and has paid $1,450 for some of them. The Registered
Massage Therapist carries the balance pursuant to a ‘direction to pay’. She has
received 73 physiotherapy treatments. ICBC has paid for all for all but four of
them.

III.   MEDICAL EVIDENCE ON NATURE AND EXTENT OF THE
DISABILITY

[24]        
Since her August 9, 2009 accident, Ms. Fedyk has been seen by her
family physician, Dr. C.D. Best, and by various specialists; Dr. P.A.
Kokan, an orthopaedic surgeon in February 2011; Dr. A.B. Chancey in April
2009; Dr. J.P. Wade, a rheumatologist, at the request of ICBC; and Dr. M.M.
Sudol, another physiatrist, I believe on request of Dr. Best. Copies of
these reports were not provided, so their findings and recommendations can be
gleaned only from comments contained in the reports of Dr. A.J. Salvian, a
vascular surgeon, and Ms. Fedyk’s family physician, Dr. Best. Dr. Best’s
May 5, 2011 report is before the court.

[25]        
Dr. I.G.
Dommisse, an orthopaedic surgeon, saw Ms. Fedyk once at ICBC’s request.
His two medical legal reports, January 20, 2012 and July 30, 2012, are in
evidence, as are four reports prepared by Dr. Salvian, a vascular surgeon,
dated September 21, 2011, May 3, 2012, August 1, 2012, and March 13, 2013. Dr. Salvian’s
May 3, 2012 and March 13, 2013 reports are largely critiques of the opinions
contained in Dr. Dommisse’s two reports.

[26]        
The main medical issue in this case centres on the diagnoses of Dr. A.
Salvian, who I find is a pre-eminent authority on the diagnosis and treatment
of TOS.

[27]        
ICBC
attacked Dr. Salvian’s opinions based mainly on the assertion that the
evidence shows Ms. Fedyk failed to report TOS symptoms soon enough after
the accident to justify attributing them to it. ICBC also relies on the
opinions of Dr. Dommisse, contained in the said reports and in his
testimony. ICBC says these confirm Ms. Fedyk is not totally disabled from
any employment to which she is suited by education, training and experience.

[28]        
As
for reimbursement for massage therapy treatment and coverage of future massage
therapy treatments, ICBC says they are not medically necessary; furthermore,
they argue Dr. Dommisse advised them that she has recovered from the
injuries she sustained in her August 2009 accident and required no further
treatment.

[29]        
Combined, it is the six medical reports and the exchanges between Dr. Salvian
and Dr. Dommisse contained in them that embody the core medical legal
issues. Therefore, these reasons focus mostly on those reports.

A.    Dr. Best, plaintiff’s family doctor, May 5, 2011

[30]        
Dr. Best saw Ms. Fedyk on occasion before the accident and
regularly after it. He graduated with a Doctor of Medicine at University of
Saskatchewan in 1983, and received a certificate from the College of Family
Physicians in August 1985. He has practiced as a family physician from 1986 to
the present, and currently serves as a family physician at Simon Fraser
University. At pp. 4 and 5 of his May 5, 2011 report, he summarizes most
of his findings:

…Carrie Fedyk did sustain
significant injuries as a result of the MVA of August 10, 2009. These included
soft tissue injuries to her neck, trapezius and chest wall muscles. She also
had some soft tissue injuries to her mid back. When last assessed on March 23,
2011 Carrie was still having ongoing symptomology of neck pain and also
significantly of ongoing left shoulder pain and discomfort with sensation of
numbness into her left hand. This is most likely due to an ulnar nerve issue or
perhaps even thoracic outlet syndrome. … [An] independent legal report carried
out by Dr. Peter A. Kokan … brings up concern of possible thoracic outlet
syndrome as a cause for some of Carrie’s ongoing symptomatology. He made a
recommendation that Carrie be referred to a thoracic surgeon, such as Dr. Anthony
Salvian. … As per Dr. Kokan’s recommendation a referral will be made to Dr. Anthony
Salvian to further assess the possibility of thoracic outlet syndrome in Carrie
Fedyk.

B.    Dr. Salvian, September 21, 2011

[31]        
At Dr. Best’s request, Dr. Salvian first saw Ms. Fedyk on
September 21, 2011, roughly 25 months after the accident. Dr. Salvian
assessed her for headaches, neck pain; and most significantly, for complaints
of “numbness and tingling in the left fourth and fifth fingers and occasionally
the third finger”, as these could have been signs of TOS.

[32]        
After Dr. Salvian’s review of Ms. Fedyk’s clinical history and
his physical examination, he concluded, among other things, she suffered from a
brachial plexus injury on the left side that produced symptoms commonly
referred to as TOS. At p. 20 of his September 21, 2011 medical legal
report he diagnosed:

1.         … [L]eft-sided
neck, radiating to the left shoulder, pain; This is soft tissue “myofascial”
pain related to injury to the soft tissues of the neck and upper back including
the insertions of the trapezius, rhomboids and small facet joints of the neck
and cervical spine. This type of myofascial injury is a common sequela of flexion
extension trauma.

2.         … The
neurological distribution of the [plaintiffs] pain; that is, the medial arm and
the fourth and fifth fingers of the hand, is “C8-T1”. The C8-T1 nerve roots
coalesce to become of the ulnar nerve which passes behind the medial trochanter
of the elbow in the “cubital tunnel” as the ulnar nerve.

The combination of irritation of the brachial plexus at the
level of the thoracic outlet in combination with irritation of the nerves at
the elbow results in a “double crush syndrome”.

[33]        
At margin number 30 of his report, still on page 20, he explains:

Thoracic outlet syndrome is that
condition where one, two or all three of these structures can be compressed and
injured as they pass through this area of the “thoracic outlet”. We tend to believe
that most patients who develop thoracic outlet syndrome after trauma have an
“anatomical propensity” to develop the condition.

[34]        
In that same report, which he amplified somewhat at trial, Dr. Salvian
then explained how TOS produces the plaintiff’s symptoms and how the subclavian
artery can become compressed by muscle spasm and produce symptoms of pallor,
coldness, and numbness of the whole hand and arm, which Ms. Fedyk
sometimes experiences.

[35]        
Dr. Salvian referred to medical literature which indicated a close
link between tingling in the hands and rear end collisions. At p. 27 of
his report, he includes an excerpt of a current standard textbook: “Vascular
Surgery” (5^th ed., Rutherford / Saunders, 2000) entitled “Neurogenic
Thoracic Outlet Syndrome.” by Dr. R.J. Saunders. He refers to p. 1186 and quotes the following
excerpts from the text:

…Neurogenic thoracic outlet syndrome is caused by a
combination of (1) predisposing anatomic factors that narrow the thoracic outlet
area, and (2) neck trauma.

Neck trauma is the most common predisposing factor for
neurogenic TOS with an incidence of close to 80%. The two most common
mechanisms of neck injury are automobile accidents, which result in
hyperextension neck injuries, and repetitive stress injuries.

…Most patients with neurogenic TOS report a history of neck
trauma. In patients, who have had acute injuries, neck pain usually appears
within a few days; shoulder, chest wall and arm pain, along with hand
paresthesia and occipital headaches, develop in the next few days to weeks.

[Emphasis removed.]

[36]        
On predisposing anatomic factors, Dr. Salvian opined that Ms. Fedyk
may have one of the underlying anatomic variants found in 35% of the general
population; but he believed she would not have developed post traumatic TOS had
she not been involved in the motor vehicle accident of August 10, 2009. He also
ruled out other prior possible causes of the plaintiff’s TOS condition not
related to the accident, and concluded at p. 30:

It is my opinion that [the
plaintiff] would not have developed the symptoms of numbness and tingling and
pain radiating down the left arm and the fourth and fifth fingers of the left
hand had she not been involved in the motor vehicle accident of August 10,
2009.

[37]        
In a later report, dated May 3, 2012, Dr. Salvian noted at p. 4
the two basic types of “neurologic” TOS. I will touch on Dr. Salvian’s
explanation of these two types because differences between them explain why some
symptoms associated with TOS were not found on medical examinations. The first
type is a rare version that causes the patient to experience relentless
compression of the lower nerves of the brachial plexus (C8 – T1). This causes
paralysis of the hand and wasting of the small muscles of the hand in the C-8
and T-1 nerve distribution. Ms. Fedyk does not have that type; rather, she
has the second type, usually referred to as “myogenic” or “Post Traumatic Thoracic
Outlet Syndrome”. Dr. Salvian explains at p. 5 of his May 3, 2012
report:

…In this condition there is
injury and spasm to the scalene muscles resulting in intermittent compression
of the nerves of the brachial plexus. These patients generally only get
compression or irritation of the nerve when there is increased spasm of the muscles
due to repetitive motion, or, with elevation of the arm which further closes
the thoracic outlet space resulting in irritation of the lower nerves of the
brachial plexus. Therefore, since there is intermittent compression of the
nerve, the nerve is allowed to recover so the patients generally have negative
nerve conduction studies (indicating no evidence of permanent nerve damage) and
present with intermittent symptoms of numbness, tingling and pain as opposed to
paralysis and wasting of the musculature.

[38]        
As for Ms. Fedyk’s prognosis, he concluded (at p. 26 of his
September 21, 2011 report):

Ms. Fedyk is only 24 years
of age and she has well established thoracic outlet syndrome of the left arm.
This is concerning, and in my experience patients with well established
thoracic outlet syndrome are never “cured” by conservative therapy.

[39]        
Dr. Salvian recommended further possible investigations and
treatment that I will not set out here. He further opined at p. 26 that the
plaintiff’s limitations are “significant and severe and thoracic outlet surgery
may be indicated.”

C.    Dr. Dommisse’s January 20, 2012 report

[40]        
ICBC terminated Ms. Fedyk’s TTD benefits and funding for massage
therapy based on Dr. Dommisse’s findings set out in his January 20, 2012
report.

[41]        
He
practiced as an orthopaedic surgeon for many years, having completed his
residency training in June 1978; and in 1982, received certification from the
American Academy of Neurological and Orthopedic Surgeons. He is now retired
from active practise and confines his activities to independent medical
assessments. Roughly, 80% of his reports are prepared for the defence and 20%
for plaintiffs. He first saw Ms. Fedyk on January 11, 2012.

[42]        
Ms. Fedyk told Dr. Dommisse she experienced onset of her left
shoulder symptoms two to six months post-accident and had not experienced much
improvement since. She also told Dr. Dommisse that six months post-accident,
she experienced pain with “clicking over the anterior aspect of her left chest
radiating to her back”. (Dr. Dommisse’s January 20, 2012 report, at
p. 4.)

[43]        
With respect to the plaintiff’s employment duties, Dr. Dommisse
recounted, at pp. 4 and 5 of his report, this brief history:

Ms. Fedyk previously worked for a cleaning company in
Maple Ridge for approximately three years prior to the Accident. She stated
that she did try to return to work at this company but, when she did so, she
was only able to manage approximately one day. She had increased pain and
muscle spasms in her left pectoral muscles.

Ms. Fedyk stated that
previously she did cleaning at Maple Ridge Hospital with Sodexo Cleaning
Company for 2-3 years. She did OR preps which included washing the ceilings and
walls.

[44]        
At p. 8 of his January 20, 2012 report, Dr. Dommisse opined
that Ms. Fedyk sustained a Grade II strain of her cervical thoracolumbar
spine. On cross-examination, he agreed that while this diagnosis indicated no
structural injury had occurred symptoms could persist.

[45]        
As for causation, Dr. Dommisse stated he was uncertain whether Ms. Fedyk’s
shoulder could be related to the accident because they began “approximately 2-6
months following the accident”.

[46]        
He also opined: Ms. Fedyk had recovered from her injuries; her
prognosis was good; was deconditioned; would benefit from appropriate
rehabilitation; was not disabled from work or recreational activities; did not
require further care for any accident related injuries; and he did not foresee
any future sequela or future work disability from the accident.

D.    Dr. Salvian’s May 3, 2013 critique of Dr. Dommisse’s
report

[47]        
Dr. Salvian critiqued these opinions in a responsive medical legal
report dated May 3, 2012.

[48]        
Regarding Dr. Dommisse’s doubts about the TOS diagnosis, Dr. Salvian
noted Dr. Dommisse had performed an Adson’s Maneuver when he examined Ms. Fedyk
on January 11, 2012. This produced numbness into Ms. Fedyk’s left little
and ring fingers, but not on the right. At p. 6 of his May 3, 2012 report,
Dr. Salvian pointed out that the Adson’s Maneuver is one of four tests
typically performed to diagnose TOS

[49]        
In response to Dr. Dommisse’s statement at p. 8 of his first
report that he was uncertain whether Ms. Fedyk’s left shoulder symptoms
were related to the accident because they arose about two to six months
following it, Dr. Salvian stated:

I am neither an orthopedic surgeon nor a shoulder specialist
but, I have seen hundreds of patients with this type of injury to the neck and
upper back and I would defer to Dr. Dommisse’s opinion as to whether or
not there is an intrinsic shoulder joint problem. However, it is my experience
that in this type of patient, more often than not, that the pain that patients
describe in the shoulder and scapular regions and chest region, is not related
to primary shoulder joint problems. This discomfort is related to
musculoligamentous injury or “myofascial” pain often with spasm and referral to
the muscles around the shoulder, particularly the rhomboids in the scapular
region and pectoralis minor anteriorly.

This type of “myofascial” pain
commonly involves following flexion extension injury of the neck. In Ms. Fedyk’s
case she began to develop the numbness and tingling radiating into the fingers
at around the same time she began to describe this increased muscular pain in
the area of the shoulder and scapular region.

[50]        
Turning his mind to the question of delay, noted by Dr. Dommisse, Dr. Salvian
stated in his report:

This is the typical time of onset
of post traumatic thoracic outlet syndrome following flexion and extension
injury to the neck. This apparent “delay” is often related to the fact that the
muscles are injured and are beginning to scar and go into spasm and setting up
a more significant pain cycle. This is compounded by the fact that following
the initial injury, patients start to become more mobile and expect to be able
to use the arm more and it is then, as they begin to elevate the arm or
physiotherapy begins to manipulate the arm, that they begin to notice the
shoulder and arm symptoms and the numbness and tingling radiating into the
hand.

[51]        
Regarding Dr. Dommisse’s opinion that Ms. Fedyk had recovered
from her injuries, Dr. Salvian pointed out Dr. Dommisse failed to
provide a diagnosis or to explain what he thinks causes Ms. Fedyk
symptoms. He points out Dr. Dommisse had noted the presence of ongoing
neck pain, left anterior chest wall pain, numbness in the left arm, and
tingling in the fourth and fifth fingers of the left hand; as well as other
noted symptoms, as noted by Dr. Salvian at p. 7 of his May 3, 2012
report.

[52]        
Dr. Salvian also points out that Dr. Dommisse acknowledged Ms. Fedyk
had sustained a Grade II strain of her cervical and thoracolumbar spine. But he
did not state whether any of her present symptoms relate to that acknowledged
injury. At p. 8 of his May 3, 2012 report, Dr. Salvian states:

It is my experience, and the
experience in the literature that, although, most soft tissue injuries of the
neck and back do recover, that 10 – 15% patients do not. Those patients may
have chronic myofascial pain of the neck and upper back. This is particularly
true in patients who also develop irritation of the brachial plexus related to
that injury.

[53]        
Dr. Salvian also criticized Dr. Dommisse’s prognosis. He
states at p. 8:

…[I]t is difficult to know how
to respond to this statement since Ms. Fedyk has had ongoing symptoms for
about 16 months following the motor vehicle accident which continue to be
significant and for which Dr. Dommisse has not provided a diagnosis.

[54]        
He also pointed out that, “Dr. Dommisse has not commented as to the
cause of the numbness, tingling and paresthesias in her hand.”

[55]        
With respect to Dr. Dommisse’s comment that Ms. Fedyk was
deconditioned and would benefit from physiotherapy, Dr. Salvian pointed
out at p. 9 that Ms. Fedyk had undergone at least two extended
comprehensive sessions of physiotherapy, when ICBC declined to cover further
treatments. He also pointed out that she had already tried to go to the gym and
had changed her vocation in response to the ongoing symptoms.

[56]        
Dr. Salvian also criticized Dr. Dommisse’s opinion that Ms. Fedyk’s
injuries did not disable her from work or recreational activities. He pointed
out that she was unable to return to work at Sodexo, and had experienced pain
from recreational activities.

[57]        
In sum, Dr. Salvian opines that Dr. Dommisse had effectively
diagnosed, in so many words, TOS: at pp. 9 and 10 of his May 3, 2012
report, he states:

With the utmost respect for Dr. Dommisse, it seems to me
that he took the history from Ms. Fedyk, he examined her and found
residual tenderness along the cervical spine and paravertebral muscles,
positive testing for thoracic outlet syndrome, and despite these findings and
acknowledging that Ms. Fedyk did suffer a strain to the cervical spine and
thoracolumbar spine at the time of the accident, he has stated that she is not
in any way disabled with respect to work or recreational activities.

Frankly I cannot see on what basis Dr. Dommisse has
discounted Ms. Fedyk’s symptoms or why he has ignored the findings on his
own physical examination.

He does not describe Ms. Fedyk
as having any “non-organic” findings nor have I found any suggestion that her
symptoms are other than she has stated, nor has he given any reason why a
24-year-old woman who was working for a cleaning company and going to school
part time taking music, would suddenly stop working and contemplate changing
her career plans.

[58]        
As for benefits further physiotherapy treatments would produce, Dr. Salvian
pointed out that Ms. Fedyk attended as much physiotherapy as ICBC had
allowed and could not afford to pay for more. He also pointed out at p. 10
of his report:

…‘[R]ange of motion’ ‘strengthening’ exercises are
“extremely difficult in patients with thoracic outlet syndrome since they
cannot elevate or repetitively use the arm. Activities such as this exacerbate
their pain and the irritation of the nerves of the brachial plexus.

…[I]t is my opinion that he is not addressed the symptoms
that he elicited from Ms. Fedyk. He did a physical examination showing
evidence of thoracic outlet syndrome but he does not address that diagnosis or
even commented on the cause of the pain and paresthesias in her left arm nor
has he even acknowledge the fact that some patients following thoracolumbar
spine injuries do not recover as “typical soft tissue injuries” but a few have
persistent symptoms and a percentage of those develop symptoms of thoracic
outlet syndrome.

Frankly it would seem to me,
having reviewed the history taken by Dr. Dommisse, and the physical
examination carried out by Dr. Dommisse, that he was describing just that
patient who has ongoing myofascial pain and symptoms of thoracic outlet
syndrome.

E.    Dr. Salvian’s updated report, August 1, 2012

[59]        
To enable preparation of an updated medical legal report, Dr. Salvian
saw Ms. Fedyk for a second time on August 1, 2012. He noted that since he
had last seen Ms. Fedyk, ICBC had approved more physiotherapy. I assume
physiotherapy was approved on the recommendations of Dr. Dommisse, or
perhaps Dr. Wade. Dr. Salvian points out Ms. Fedyk told Dr. Dommisse
that her neck, shoulder and anterior chest pain did not really improve,
although recent massage had helped a little. Symptoms of numbness and tingling
and pain in her left hand had not improved. She was reportedly taking Flexeril,
Trazodone and Tylenol 3 for her left arm and neck and chest discomfort. She
also reported that she had been unable to work because of her neck and arm
symptoms. She was returning to school and had been taking two English classes.
She had qualified for a music course and was planning to start classes at
Douglas College in the fall.

[60]        
Ms. Fedyk also told Dr. Salvian that her symptoms were getting
worse, although she had transient periods when, after therapy, the numbness
seemed to be better; but she then experienced reappearance of symptoms.

[61]        
At p. 8 of his report, Dr. Salvian confirms his previous
opinion, “that Ms. Fedyk’s complaints of numbness, tingling and
paresthesias radiating down the medial forearm and into the fourth and fifth
fingers of the hand, and her feelings of fatigue and weakness, with activity,
in the left arm, are related to intermittent compression of the lower nerves of
the brachial plexus, in the thoracic outlet.”

[62]        
He noted that the nerve conduction studies that had been conducted
showed no evidence of an ulnar nerve injury at the level of the elbow, such as
would explain the tingling experienced by Ms. Fedyk in the fingers of the
left hand.

[63]        
Dr. Salvian further stated at p. 8:

It is my opinion that Ms. Fedyk
likely has significant injury and spasm of the pectoralis minor muscle on the
left as well as the left sided scalene muscles and it is this combination of
muscle tension, in combination with an underlying anatomic variant in the
thoracic outlet, that has resulted in the post traumatic or myogenic thoracic
outlet syndrome.

[64]        
Dr. Salvian further noted that despite medication and further
physiotherapy coupled with an active exercise program at the pool, Ms. Fedyk
remained “significantly symptomatic”. At p. 9, Dr. Salvian states he
believes that she “needs to be reviewed by Dr. Sudol with a view to
injections of either Lidocaine or Botox (or both).” He thought, however, that Botox
or Lidocaine injections likely would not be curative in the long term. He
opined that Ms. Fedyk’s ongoing pain and muscle tension in the region of
pectoralis minor and pectoralis major caused her chest pain, and further complicated
her case.

F.    Dr. Dommisse’s July 30, 2012 responding report
and Dr. Salvian’s response, March 13, 2013

[65]        
In his second report, dated July 30, 2012, Dr. Dommisse responded
to the opinions set out in Dr. Salvian’s first three reports. In a report
dated March 13, 2013, Dr. Salvian then responded to Dr. Dommisse’s
July 30, 2012 critique of his comments.

[66]        
In Dr. Dommisse’s July 30, 2012 report, he noted that when he
performed the Adson’s Maneuver on Ms. Fedyk, numbness was produced only on
the left side. Dr. Salvian explained however, that testing on the right
side can cause symptoms on the left side. He pointed out that reproduction of
the left arm symptoms with turning overhead to the right “indicated a very
sensitive and delicate balance of the muscles of the left-sided thoracic
outlet, particularly the scalene muscles, which are put on stretch with that
particular maneuver.

[67]        
Dr. Salvian also saw no significance in the fact that Dr. Dommisse
found that Adson’s Maneuver did not obliterate Ms. Fedyk’s pulse as well
as numbness and tingling in the affected extremity. Dr. Salvian explained
that the obliteration of the radial pulse indicates only that the subclavian
artery is also being compressed at the time of the testing and that its absence
does not negate the significance of the neurological symptoms.

[68]        
Dr. Dommisse discussed other thoracic outlet tests and suggested
that one of the tests used by Dr. Salvian, the “elevated arm stress test”
is “of little value”.

[69]        
Dr. Salvian stated at p. 5 of his March 13, 2013 report that
this is “frankly an incorrect statement,” and he explained in considerable
detail why that is so. He also referred to a leading textbook of vascular
surgery to refute Dr. Dommisse’s comments on the probative value of a loss
of the radial pulse.

[70]        
Dr. Dommisse also commented on Dr. Salvian’s comment, made at
p. 5 of his May 3, 2012 report that intermittent compression of the
brachial plexus may occur with injury and spasm of the scalene injuries. Dr. Dommisse
stated he did not detect spasm or tenderness in the scalene muscles when he
examined Ms. Fedyk.

[71]        
Responding to this finding, at p. 8 of his March 13, 2013 report, Dr. Salvian
notes numerous instances, beginning August 19, 2009, for example, when Dr. Best
clinically noted marked tenderness on palpitation, marked spasm and tenderness
of cervical spine muscles, in the clinical records. He noted, as well, comments
made by Dr. John Wade, a rheumatologist who saw Ms. Fedyk at ICBC’s
request, and who diagnosed probable mild neurogenic TOS. Dr. Salvian
referred, as well, to his own examination of Ms. Fedyk, on August 1, 2012;
and the observations of a treating physiatrist, Dr. Sudol, who noted
tenderness to the left pectoralis major and minor muscles, and his agreement
with Dr. Salvian that Ms. Fedyk’s history and examination consisted
with functional TOS.

[72]        
Considering all the clinical history, Dr. Salvian concluded (at
p. 9 of his March 13, 2012 report):

[N]otwithstanding Dr. Dommisse’s
findings, increased muscle tension and spasm in the left paraspinal muscles
including the scalene muscles has been a consistent and ongoing complaint when
examined by the family doctor and every other physician.

[73]        
On p. 2 of his July 30, 2012 report, Dr. Dommisse did state
that it was possible Ms. Fedyk had a degree of perineural fibrosis in the
lower portion of her brachial plexus on the left due to the accident,
effectively describing Dr. Salvian’s diagnosis of TOS.

[74]        
Dr. Dommisse further opined however, that the fact Ms. Fedyk
did not complain of symptoms of left-sided neck pain within a few days of the
accident does not consist with a diagnosis of TOS. Dr. Salvian disagreed
with this assumption and pointed to various clinical records, including Dr. Best’s
clinical notes on August 19, 2009. Dr. Salvian interpreted these as a
record of immediate shoulder and arm tenderness with bilateral symptoms and
numbness in the arm. He also noted references to neck pain, etc.

[75]        
Dr. Salvian may have read too much into Dr. Best’s August 19,
2009 clinical note. Dr. Best testified at trial, partly to clear up some
entries counsel found ambiguous. August 19, 2009 was his first entry. He noted
“numbness in the arm”, as well as neck pain and right shoulder pain; but he did
not write down which arm produced the numbness.

[76]        
Ms. Fedyk’s August 19, 2009 visit was preceded, however, by a ”Guided
Initial Whiplash Assessment” form Dr. Best completed eight days earlier,
on August 11, 2009, the day after the accident. The form does mention right
shoulder symptoms. But Dr. Best had marked a schematic on the form that
shows the posterior aspect of a human form, with marked “x’s” to show where Ms. Fedyk
was experiencing pain and numbness. He located these all on the left side, with
symptoms extending into the left shoulder and arm only. I note Ms. Fedyk
did experience pain on the right side. She also testified she experienced pain
and numbness on the left side. In any case, the form Dr. Best completed
consists with the presence of early complaints on the left side.

[77]        
Other entries include: August 22, 2009, when Dr. Best recorded
marked neck and trapezius muscle pain. On September 26, 2009, he noted
left-sided chest wall pain. October 17, 2009, he recorded neck and back pain
and right shoulder pain. October 24, 2009, he recorded tenderness in the neck
and pain and diagnosed Flexeril, typically prescribed for pain associated with
muscle spasm. (I note that Ms. Fedyk was receiving massage therapy treatments
at that time). November 7, 2009, Dr. Best noted tight firm contracting
irritated muscle with spasm. January 23, 2010, he noted left-sided shoulder
clicking and pain. March 13, 2010, he noted left shoulder pain and less scapula
pain. September 2, 2010, he noted left shoulder pain and pain from the
whiplash, as well as left anterior chest wall pain.

[78]        
An Initial Assessment Report dated March 3, 2011, prepared by Golden
Ears Orthopaedic and Sports Physiotherapist Corporation noted that Ms. Fedyk
had “report[ed] ongoing left sided shoulder, scapula, chest, and auxilla pains”
since a car accident in August 2009; and six to eight months earlier had
developed paresthesia distributed into the forearm and the fourth and fifth
left digits.

[79]        
Dr. Salvian testified that an absence of left-sided paresthesia in
August 2009 would not change his opinion. He explained TOS often comes on
gradually, and that it can take up to one year for it to become noticeable. He
also differentiated Ms. Fedyk’s TOS from those where the trauma directly
traumatizes the brachial plexus. This often produces symptoms in the first week.
In cases where gradual scarring of the scalene muscle developed over a period
of months produces the TOS however, all its symptoms might not present for some
months. He agreed Ms. Fedyk’s presentation is not a “classical”
presentation, but neither is it an uncommon one.

[80]        
Some uncertainty has settled on the question of whether Ms. Fedyk
reported disabling symptoms from her brachial plexus injury within the first
twenty days. But allowing somewhat for the more relaxed standard of proof
required of an insured person claiming a benefit under Part 7 of the Regulations,
compared to the tort trial, I find Ms. Fedyk did report sufficiently
material symptoms in her left shoulder and arm within two weeks of the
accident. (See Tangaro v. Riley, [1995] B.C.J. 588 (S.C.) [Tangaro],
at para. 12.)

[81]        
If in that finding I err, I have accepted Dr. Salvian’s opinion
that Ms. Fedyk’s disabling symptoms fall within the range of a clinically
expected progression. I will expand on this further, later on in these reasons.

G.   Findings on nature and extent of the plaintiff’s
injuries

[82]        
I prefer Dr. Salvian’s opinion over Dr. Dommisse’s opinion on
the nature and extent of Ms. Fedyk’s injuries and the functional
limitations they produce. I find compelling Dr. Salvian’s critique of the flaws
in Dr. Dommisse’s report. The evidence carries with it no convincing
reason to conclude other than that Ms. Fedyk suffered soft tissue injuries
to her neck, the left brachial plexus in particular, and her left shoulder.
This led to TOS. It has not responded to treatment so far, and it has become a disabling
chronic condition.

[83]        
In sum, I find Ms. Fedyk’s soft tissue injuries continue to cause:

·       left-sided neck pain that radiates
into her left shoulder;

·      
pain
in her upper back, including at the point of insertion of the trapeziums, the
rhomboids and the small facet joints of the cervical spine and upper back.
These injuries have become chronic;

·      
pain
and crunching sensation in the chest wall;

·      
I
note Dr. Salvian’s opinion that Ms. Fedyk has developed a chronic
pain syndrome related to her myofascial injuries. (As it is not necessary for
me to make findings on that distinct issue, I leave that aside to further
possible investigations and the tort hearing); and

·      
headaches
and occasional dizziness.

IV.  EMPLOYMENT SUITABLE BY EDUCATION, TRAINING OR
EXPERIENCE

A.  Ms. Fedyk

[84]        
Ms. Fedyk explained her duties at Sodexo, a company that
specializes in cleaning hospitals. There, she cleaned various locations in the
hospital, mostly in surgical operating rooms and rooms attached to them. She
worked between 3:00 p.m. and 11:00 p.m. Between surgeries, she stripped linens,
took away cleaned utensils and prepared for the next surgery. She had to wipe
down equipment, and mop blood. She washed ceilings and walls. She then cleaned
the beds and moved them to another part of the hospital. This description of
her duties is partial, enough, though, to show she clearly cannot perform the
duties usually expected of an employee in that position. She tried
unsuccessfully to return to work within a year of the accident. She lasted only
one day and could not continue because her injuries flared up. She could not
wipe surfaces, push carts, mop floors or clean with chemicals.

[85]        
I accept Ms. Fedyk liked her work with Sodexo. She had worked there
just a month when the accident occurred, but it did consist with her planned
career in nursing. She had already registered for two courses at Douglas
College to satisfy two Math and English prerequisites for the nursing program
she hoped eventually to qualify for. As Ms. Fedyk had just two courses to
attend, she intended to continue part-time work at Sodexo: her position was
flexible enough to allow for it. As mentioned earlier, she came to realize her
injuries ill-suited her for a nursing career, and she did not attend school in
2010 and 2011.

[86]        
She entered the nursing program at Douglas College in the fall of
2012.

[87]        
In
October 2010, her uncle offered her work 10 hours a week in a music store he
owned and he managed. He gave music lessons and sold a few musical trinkets and
guitars at the front of the store. She greeted customers, watched over the
front of the store when her uncle gave lessons and booked lessons for him. She
did not work at a desk, except when she booked lessons. She found it hard to
sit on a stool. She could not pull-down guitars hanging on the wall. Her uncle
was flexible and allowed her to go home when she felt unwell. That position
ended five months later as her uncle could not afford to pay her anymore.

[88]        
Asked about positions she held before she worked at Sodexo, Ms. Fedyk
mentioned positions at Multiple Listing Service (“MLS”), at a skip trace
company, at a collection agency, at HomeSense, and at McDonald’s.

[89]        
At Sodexo, she worked at the so-called “fax desk.” When real estate
documents came in on the fax machine, she filed and faxed them as necessary. She
answered phones and gave out faxes throughout the office.

[90]        
Before her MLS position, Ms. Fedyk worked for a skip trace company.
This was essentially a ‘desk job’. A client asked the company to find a person.
With the information they gave, based on search tools they had to find where
people have gone, she sought them out. Although the evidence on this position
was sparse, I assume she used the telephone, the Internet, kept records and prepared
reports on a typewriter.

[91]        
She also worked at a collections agency for a time. Her duties were
similar to those she engaged in when she worked at the skip trace company,
except that she contacted people and tried to collect debts owed.

[92]        
She also worked at HomeSense during the holiday season. She stocked
shelves and worked as a cashier. She also worked at McDonald’s hosting birthday
parties and cashiering.

B.  Summary of medical
evidence on functional limitations

1.    
Dr. Best

[93]        
At p. 5 of his 2011 report, Dr. Best commented on. Ms. Fedyk’s
work related limits:

Today Carrie Fedyk cannot carry
out her regular work related activities because of her ongoing shoulder symptoms.
In addition, she is also limited because of ongoing neck and back pain. It is
hoped that with time and ongoing physiotherapy and exercise that that Carrie’s
soft tissue injuries to the neck, back and chest wall area will resolve.
However, at this point in time, they would certainly be aggravated by her
present employment, and therefore, she is not capable of carrying out her
normal work related duties. If her left shoulder symptoms do not respond to
steroid injections or orthopedic surgical treatments and if in fact there is a
thoracic outlet syndrome that does not respond to appropriate treatment, then
the prognosis for Kerry to return to her regular job related activities would
be quite poor.

2.    
Dr. Dommisse

[94]        
At p. 3 of his July 30, 2012 report, Dr. Dommisse states Ms. Fedyk
was not disabled from working in an office setting. He had no specific
information about the nature of the duties Ms. Fedyk performed in any of
those positions, but I assume he thought of them as clerical positions.

[95]        
At p. 9 of Dr. Salvian’s August 1, 2012 report, he stated that
conservative therapy is unlikely to result in a “complete cure”; and added:

In general, [TOS] patients require long term assistance with
any activities that cause further nerve irritation, i.e. repetitive use of the
arm, overhead use of the arm (particularly with the arm away from the chest and
above chest level), heavy lifting, or activities that result in prolonged neck
strain, i.e. prolonged driving or typing or heavy repetitive manual use.

Ms. Fedyk’s case is complicated further by the ongoing
pain and presumably muscle tension in the region of pectoralis minor and
pectoralis major causing the chest pain.

It remains to be seen how well she responds to the massage
and physiotherapy and muscle relaxants and presumably eventual injections with
Lidocaine and Botox. Presently this is a major complaint and, although I
believe that the myofascial injury and muscle spasm is contributing to both the
thoracic outlet syndrome and this chest pain, it does not necessarily follow
that resolution of the chest pain will significantly benefit the thoracic
outlet syndrome.

Ms. Fedyk suffers with a
chronic pain syndrome affecting her left upper extremity and she needs to be
reviewed by a pain service for management of this ongoing problem.

[96]        
Referring more specifically to Ms. Fedyk’s employment activities,
at p. 11, Dr. Salvian opined:

It is my opinion that the ongoing symptoms in the left arm
have been severely limiting her from any repetitive work, overhead work or
heavy lifting, and as such it is my opinion that they have limited her from
doing her job as a cleaner at Sedexco.

Furthermore, it is my opinion
that Ms. Fedyk will continue to remain limited from doing any activities
requiring heavy lifting, overhead use or repetitive activities with the left
arm, particularly prolonged typing, driving, and writing. I think she will have
difficulty doing prolonged piano playing … [I]t is my opinion that Ms. Fedyk
will not be able to go back to any job which requires heavy physical work,
particularly with the left arm and particularly in any of the positions
outlined. I would recommend vocational assessment and occupational assessment
for this.

V.    PRINCIPLES GOVERNING TTD BENEFITS

A.  Sections 80 and 86 of
the Regulations

[97]        
Section 80(1) of Part 7 of the Insurance (Vehicle) Regulations,
B.C. Reg. 447/83 [the Regulations] provides:

(1)        Where, within 20 days
after an accident for which benefits are provided under this Part, an injury
sustained in the accident totally disables an insured who is an employed person
from engaging in employment or an occupation for which the insured is
reasonably suited by education, training or experience, the corporation shall,
subject to section 85, pay to the insured for the duration of the total
disability or 104 weeks, whichever is shorter, the lesser of the amounts
determined under paragraphs (a) and (b).

[98]        
Section 86(1) deals with a disability that extends beyond 104 weeks. It
provides that where ICBC is paying an insured TTD benefits for an injury under
section 80 that continues to disable them, as described in section 80, ICBC
shall, subject to subsections (1.1) and (2) and sections 87 to 90, pay the
insured the applicable amount of disability benefits described in section 80.

[99]        
I find the accident caused all the physical symptoms from which she
currently suffers, including TOS, and these totally disabled her within twenty
days of the accident. The symptoms that disabled her then have not
significantly abated.

B.  The onus and burden of
proof

[100]     To
establish her entitlement to benefits under s. 80(1), which governs
disability benefits for employed persons, Ms. Fedyk must prove on the
balance of probabilities:

1.    
she
was an “employed person” at the time of the accident;

2.    
she
sustained an injury in it;

3.    
she
became totally disabled from her injuries; and

4.    
this
occurred within 20 days after the accident.

(Rashella
v. Insurance Corporation of British Columbia, [1997] B.C.J. No. 689
(S.C.) [Rashella], at para. 20.)

[101]    
As for the second and third conditions, the court in Tangaro (previously
mentioned), at para. 12 of the decision, pointed out that the Legislature
intended Part 7 claims to provide insured claimants:

[12]      … summary and
relatively quick and inexpensive access to, amongst other relief, nominal
compensation to offset some portion at least of income loss resulting from the
accident. … [T]his legislation was not intended to put a plaintiff to the same
test for proving injury as he must meet in the tort claim.

[102]     I find Ms. Fedyk
clearly satisfies the first three conditions. As for the fourth condition,
which is that the totally disabling condition must arise within twenty days of
the accident, after considering all the medical evidence and the testimony of Ms. Fedyk,
I find the accident caused her to suffer soft tissue injuries that encompassed
the soft tissues around the brachial plexus, which in turn produced TOS.
Although all of its typical expressions, such as tingling in the fourth and fifth
digits, did not become fully manifest within twenty days, the soft tissue
injuries that produced the condition in the first instance formed an integral
part of Ms. Fedyk’s soft tissue injuries, which combined, totally disabled
her from her employment at Sodexo, within the meaning of s. 80 of the Regulations.
I accept Dr. Salvian’s medical legal opinion regarding this.

[103]     Whether a
claimant is “totally disabled” is a question which the facts of each case
determine. If an insured claimant experiences enough temporary relief to allow
their return to work for a time, and if the disability alleged is the same
disability for which benefits were originally paid, that is a factor to
consider, not a bar to their claim. (Brewer v. Insurance Corporation of
British Columbia, [1999] B.C.J. No. 2031 (S.C.), at para. 14.) Ms. Fedyk’s
temporary return to employment at her uncle’s music store does not
automatically disentitle her to receive benefits. But depending on the
evidence, including the generous accommodations her uncle afforded her, this
may, or might not, constitute an occupation to which she is reasonably suited. (Halbauer v Insurance
Corp. of British Columbia, 2002 BCCA 5 [Halbauer]).

[104]     In Rashella
(as previously mentioned), Justice Satanove concluded that sections
80, 81.1 and 86 of the Regulations do not apply to cases where the claimant
had gone from a partial disability to a total disability – had regressed, in
other words. So an injury that was not totally disabling within 20 days of the
accident, and does not become so months afterwards, would not qualify for Part
7 benefits.

[105]     This
pattern is clearly distinguishable from the present case, where Ms. Fedyk’s
injuries disabled her from employment right away and then unfolded to later
display other by-products of that same injury, as stated earlier. (I also note
the earlier finding that with two weeks of the accident, Ms. Fedyk likely
did experience symptoms on her left side; but even if that were not so, the
essential finding stands.)

[106]     Ms. Fedyk
carries an initial burden to show she is totally disabled; but as ICBC paid Ms. Fedyk
TTD benefits between August 26, 2009 and April 19, 2012, and she continues to
be disabled from her pre-accident occupation at Sodexo, she has established a prima
facie case that she is entitled to receive TTD benefits.

[107]     ICBC then,
must show that Ms. Fedyk is totally disabled from any employment or
occupation to which she is reasonably suited by her education, training, or
experience. Halbauer (as previously mentioned) and Sheflo v.
Insurance Corporation of British Columbia, 2002 BCSC 536 at para 28.

C.  Meaning of total
disability

[108]     A finding
of “total disability” within the meaning of s. 80 does not require a judge
to find the claimant is unable to do any of the acts or duties that their
employment or occupation requires of them. An applicant is totally disabled
when they are unable to do substantially all the material acts of their
occupation in substantially their usual and customary manner, (Kenni v.
Insurance Corp. of British Columbia, [1993] B.C.J. No. 2904 (S.C.)).
[Emphasis added.]

[109]     Therefore,
when determining whether an insured is totally disabled, the nature and extent
of the functional limitations their injuries created, and which significantly
hinder their ability to perform substantially all the material acts of the
proposed occupation or employment should be considered.

[110]     At this
hearing, counsel for ICBC did not much press the position that Ms. Fedyk
is capable of resuming her position at Sodexo, although that conclusion flows
quite naturally from Dr. Dommisse’s reports, the deficiencies of which Dr. Salvian,
in my view, has fairly noted. An adjuster reading Dr. Dommisse’s letter
could understandably be led to think that there was nothing significantly
physically wrong with Ms. Fedyk, despite the fact she continued to
experience considerable disabling symptoms.

[111]     Adjusters
are not bound to accept a medical opinion that leaves unanswered significant questions;
and at minimum, invites further investigation before benefits are terminated. I
note that earlier ICBC had referred Ms. Fedyk earlier to Dr. Wade, a
physiatrist. Physiatrists specialize in physical medicine, treatment of
functional limitations and rehabilitation. As Dr. Dommisse acknowledged on
cross-examination, absence of a structural injury to a joint, for example,
which Dr. Dommisse ruled out, does not negate the presence of disabling
symptoms that totally disable an insured from employment.

[112]     Considering
all the circumstances, and for the reasons discussed, I strongly prefer the
opinion of Dr. Salvian over that of Dr. Dommisse.

[113]     As just
noted, counsel for ICBC did not press the position that Ms. Fedyk was
capable of resuming her work at Sodexo; rather, emphasized Ms. Fedyk’s
previous training and experience.

[114]     I find Ms. Fedyk’s
injuries prevent her from full-time employment that requires her to:

• keep her arms above her head for more than sixty
  seconds or repetitively;
• use her arm away from her and above her chest;
• work without
  frequent breaks from repetitive activities involving her left arm or
  prolonged sitting.
• engage in any
  activity that results in neck strain such as prolonged typing, writing, or
  driving without frequent breaks, change of position or task;
• play the piano
  for prolonged periods; and
• sit for
  prolonged periods without breaks and changes of position.

[115]     I note, as
well, the limitations Ms. Fedyk has with respect to housekeeping, as
discussed earlier. These are relevant to the extent they are analogous to
physical activities required by occupations or employments ICBC says she is
reasonably suited to.

[116]     The extent
of these limitations cannot be precisely measured and analyzed at this point because
Ms. Fedyk has not undergone the kind of functional evaluations a
physiatrist or occupational therapist typically carry out to measure the nature
and extent of a person’s physical incapacity. These may show links between the incapacity
and the work the proposed employment would require of the subject person.

[117]     Even so,
the evidence of Ms. Fedyk and Dr. Salvian, in combination, provide
evidence sufficient to determine if Ms. Fedyk is capable of performing, in
substantially their usual and customary manner, clerical duties to which she is
suited by education, experience, or training; allowing for ergonomic
modifications and such accommodations, such as breaks more often than usual, which
a reasonable employer would be willing to accommodate.

[118]     ICBC points
the court to employments, besides Sodexo, Ms. Fedyk held before the
accident: at MLS; at a skip trace company; at a collection agency; at a
HomeSense store, and a McDonald’s restaurant; and post-accident, at her uncle’s
music store.

[119]     Although Ms. Fedyk
is obviously qualified by training and experience to carry out the work at her
uncle’s music store, the demands are too limited, the hours too limited, and her
relationship with the employer too close to qualify that as a useful comparator.

[120]     The skip-trace
and debt collection work that Ms. Fedyk mentioned required no heaving
lifting and a limited amount of reaching out with her arms. Although the
details were somewhat unclear, I understand she had some periods of prolonged
sitting between her telephone and computer use. Her position at the debt
collection company was similar. She could take desk breaks, change tasks and
walk around sometimes. Overhead work was limited and not repetitive.

[121]     The MLS
position entailed desk breaks and office walk-arounds because Ms. Fedyk
had to get up from time to time to distribute incoming faxes around the office.

[122]     On
redirect, Ms. Fedyk confirmed that her previous positions allowed her to
take frequent breaks, move around and change positions frequently. It was not
made clear whether her disability would require more frequent breaks and change
of position now than her duties in those intrinsically gave her, but I accept
that in any clerical position that involves prolonged repetitive activities
such as typing, siting or reaching, Ms. Fedyk will require breaks, changes
of tasks and the opportunity to move about more frequently than an average
employee in that position. I also find Ms. Fedyk cannot work full-time
hours.

[123]     Considering
the evidence as a whole, particularly that of Ms. Fedyk and Dr. Salvian,
I find Ms. Fedyk currently capable of employment in a clerical position,
such as those she previously held, up to a maximum of 25 hours a week. I find
she is capable of performing sedentary clerical duties to which she is suited
by education, training or experience in their usual and customary manner. I
find a reasonable employer would accommodate the limitations Dr. Salvian
has identified and Ms. Fedyk’s need for frequent breaks, change of tasks,
and opportunities to move about.

[124]     Although the
evidence does not solidify around a precise date, I find that notwithstanding Ms. Fedyk’s
disabilities, by September 1, 2012, when she entered into full-time studies at
Douglas College 17 to 20 hours a week, she had become capable of part-time
employment of up to a maximum of 25 hours a week in any of her previous
clerical positions.

[125]     Judgment
accordingly.

1.  Claim for massage
therapy treatments

[126]     Ms. Fedyk
also asks the court to order ICBC to reimburse massage therapy costs she has
incurred, and to direct that ICBC pay for the cost of future treatments.

[127]     Disagreement
between insured claimants and adjusters over coverage for treatments that are
not curative, but which the claimant finds beneficial, are not uncommon. Section 88(1) of the Regulations
requires the corporation to pay, subject to the limitations set out in
subsections (5) and (6), “all reasonable expenses incurred by the insured as a
result of the injury for necessary medical, surgical, dental, hospital,
ambulance or professional nursing services, or for necessary physical therapy,
chiropractic treatment, occupational therapy or speech therapy or for
prosthesis or orthosis.”

[128]     The
plaintiff does not have to prove the particular treatment will succeed or that
it will provide a long-term cure. If it provides significant short-term pain
relief, depending on the circumstances, that may suffice. (Tiessen vs.
Insurance Corporation of British Columbia, 2008 BCSC 1822 [Tiessen]).

[129]     “Necessary”
connotes a need that is essential for some purpose, Merriam-Webster
unabridged dictionary (11^th ed., 2013). The facts in their totality
determine whether the physical therapy serves an essential purpose. If the
evidence shows the treatment will cure a condition, it can be presumed
necessary. Where the evidence shows it is an adjunct to other therapies that
renders them more effective, or in some way facilitates an insured’s recovery, this
should satisfy the test. And, as noted in Tiessen, if the therapy allows
the insured to engage in more activities of work or daily living than otherwise
would be the case that may be sufficient.

[130]     In the
present case, Ms. Fedyk testified that without the relief she found from
massage therapy treatments, she could not have attended school full-time; and,
as I understood her evidence, she would have curtailed her activities more than
they already are.

[131]     I agree
with ICBC that the fact that massage therapy treatments make an insured feel
better for a while is not enough to render them necessary, especially in those
instances where the insured appears to be substituting it for other therapies
which the evidence shows are curative. But where the evidence shows the short-term
pain relief the massage therapy significantly contributes to the insured’s
rehabilitation by enabling them to be more active and effectively engaged in
it, that should suffice to show it is a necessary therapy.

[132]     Considering
all the evidence, I find the massage therapy treatments were a necessary and
reasonable form of physical therapy, to the date of this hearing. With massage
therapy, she was able to persist in her schooling.

[133]     Judgment accordingly.

[134]     As for
costs, the parties divided success between them.

[135]     Ms. Fedyk
won on the rather intricate and time-consuming task of proving medical legal
causation (on a Part 7 claim). She was a few months successful on the question
of whether she remains totally disabled from any employment for which she is
suited by education, experience or training.

[136]     Ms. Fedyk
succeeded on the massage therapy issue. I find costs are best left to the trial
judge. But if no trial comes, I would not wish to see the parties in suspension
on costs; in that case, they are liberty to return. In all the events, the
plaintiff should have all her taxable disbursements, payable now in any event
of the case, as I expect the greater part of them link to the causation issue:
on that issue, the plaintiff met with complete success.

“N.
Brown J.”