IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130903

Docket: S15635

Registry:
Nelson

Between:

Penelope
Stephenson

Plaintiff

And

Shawna Lee

Defendant

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
The plaintiff is a 52 year old woman who was injured in a motor vehicle
accident on June 29, 2008 in Nelson, British Columbia. The accident occurred at
an intersection on a bright clear day. The defendant’s vehicle left a stop sign
and struck the plaintiff’s vehicle on the driver’s side front quarter panel,
near the front wheel. The impact caused a relatively limited amount of damage
to the plaintiff’s vehicle but she suffered a contusion to her face and, in the
aftermath, complained of pain in her wrists, neck, back and shoulder.

[2]            
The defendant has admitted liability for the plaintiff’s injuries.

II

[3]            
The plaintiff described her background in considerable detail. I will
only summarize it briefly. She was born in Ontario but completed her secondary
and post-secondary education in England, where she obtained a Bachelor’s degree
in foreign languages and business.

[4]            
The plaintiff left England in 2001. She had separated from the father of
her two young sons, and embarked for Canada by a roundabout route that included
stops in Singapore, Australia, New Zealand, Fiji and the United States. She
settled in Nelson, where she had a sister, in June 2001.

[5]            
In England the plaintiff owned a house and was employed teaching yoga
and tai chi. She has received faithful payments of child support from her
children’s father. For a time she received rents from the house in England but
she sold it to acquire a house in Blewett, near Nelson, about two years after
she relocated to the Kootenays. The house is large and sits on a tract of 4.5
acres.

[6]            
From 2001 to 2007 the plaintiff had very little income, comprised
principally of the child support payments she received from her sons’ father
and some income related to yoga instruction and a home marketing business.

[7]            
In late 2006 the plaintiff applied for a position as an auxiliary clerk
with the BC Liquor Distribution Branch (the “Liquor Store”). She began work in
early 2007. She suffered a low back strain on the job in December of 2007 and
returned to work in April of 2008. The work of an auxiliary clerk is sporadic.
They are called out on an as needed basis and only get hours after the regular
employees have been given their allotments. The system runs on seniority. It
can take years to achieve a full time position. The physical demands of the
work can also be quite heavy.

[8]            
There is no question that before the accident the plaintiff was living a
very active life. Although her income was very limited, and her employment
sporadic, she operated a household including her two sons, kept a large garden
and lived quite self-sufficiently. She had an active social life and was
engaged in a number of community groups and causes.

III

[9]            
Immediately following the accident, the plaintiff was taken to the
hospital and then to the home of a friend, Donna Ratcliffe. She saw Dr. Martha
Wilson, her family physician complaining of wrist, neck, back and shoulder
pain. She was not noted to have complained of ear and jaw pain before December,
2008.

[10]        
The plaintiff was treated by a chiropractor, Dr. Shane Taylor. She had
been seeing Dr. Taylor since 2004 for neck, hip and back pain going back some
nine years. The plaintiff’s pre-accident history with Dr. Taylor also included
treatment for her December 2007 work related injury, which was ongoing in June of
2008. Dr. Taylor first dealt with complaints of ear and jaw pain in December
2008, as well, and began treatment in February 2009.

[11]        
The plaintiff testified that shortly after the accident she began to
experience symptoms of anxiety and distress. She also began to complain of
cognitive impairment, including decreased ability to concentrate and memory and
reading comprehension difficulties.

[12]        
The plaintiff testified that she managed an extensive garden and did a
remarkable amount of volunteer work in a variety of roles in the community. It
is evident that she was content to live modestly and that until she went to
work for the Liquor Store, she had not placed a high priority on earning money
in the workforce. She submits that when she sought employment with the Liquor
Administration Branch she had reached a point in her life where she was ready
and willing to take on regular employment. In her submission she suggests a
number of factors had brought her to this point:

a.         Her sons were becoming more expensive to feed
as they became older;

b.         Her sons were becoming more independent and
less in need of supervision;

c.         Child support payments of approximately
$500.00 per child per month would cease as each of her sons turned 19 years of
age;

d.         The Liquor Store work could accommodate the
Plaintiff’s yoga and tai chi commitments;

e.         She liked living
in Nelson and had no plans to leave.

[13]        
The plaintiff submits that her lack of a substantial earnings record in
the years before the accident was a matter of choice and not of inability to
secure or maintain employment. She maintains that but for the accident she
would have continued to work all the hours available to her as a casual
employee of the Liquor Store and that she would have built up her seniority
eventually earning about $43,000 per year until age 65.

[14]        
The accident occurred shortly after the plaintiff had returned to work from
her disability period. Her earnings for the year from the Liquor Store were
about $10,500. She earned an additional $1,681 from teaching yoga.

[15]        
In 2011 and 2012 the plaintiff earned a total of about $26,500 preparing
tax returns at H&R Block.

IV

[16]        
The plaintiff’s pre-accident history includes an episode of postpartum
depression in 1989 that involved medical attention, medication and counselling.
The plaintiff says there have been no mental or emotional issues since. She says
she was seeing Dr. Taylor at the time of the accident for “maintenance”.

[17]        
The Workers Compensation claim arose as a result of a back injury
December 4, 2007, in one of the plaintiff’s casual shifts at the Liquor Store.
She was put on a graduated work program. Following a site visit March 11, 2009,
Susan Stryck, nurse advisor to Worksafe B.C., made the following observations:

Background:

Penelope Stephenson is now 11 weeks from a lumbar
sprain/strain. She was identified as a candidate to return to work by myself
and the physiotherapist. Penelope did not attend the initial job site visit to
plan a return to work due to pain. She was then referred to an Occupational
Rehabilitation Program following a discussion with the attending physician. The
Occupational Rehabilitation Program assessed Penelope and determined she was
physically capable but due to a “lot of Emotional overlay” the start of the
program was recommended following one more week of physiotherapy. Following
a team Meeting with the Case Manager and MA, the Occupational Rehabilitation
Program was cancelled and a graduated return to work recommended. This was then
reconsidered by the attending physician and the Occupational Rehabilitation
Program was again recommended. Penelope has attended the Occupational
Rehabilitation Program for one week at this time. The provider recommends a
graduated return to work in conjunction with the Occupational Rehabilitation
Program to start as soon as possible.

Site Visit:

Penelope attended the site visit leaning heavily on a cane
with occasional teary periods. She was warmly greeted by her co-workers
which did appear to cheer her up. We reviewed the JDA provided by the accident
employer and received to the file previously. We reviewed and observed the
cashier job, the litter (sic) tasks, the stocking tasks, and the computer
tasks. We viewed the staff room and possible places to rest as per the
graduated return to work. Please refer to the JDA for specifics.

Penelope indicates her biggest concern is pain which requires
frequent position changes. Of note, she was able to stand and walk for the full
hour of the job site visit with adaptation to position as needed and no sitting
breaks … She has proven a sitting tolerance of 30 minutes during the face to
face meeting with the Case Manager with no standing breaks required. Penelope
indicates she will be successful rotating job tasks every 10-15 minutes at the
start of her graduated return to work program.

Impression:

Penelope Stephenson is ready to begin a graduated return to
work program as created by the Occupational Rehabilitation Program provider.

Jackson has clarified that Penelope should not be using
the cane. If she requires more stability she has been instructed to wear the SI
belt instead.

Jackson indicates he will create an eight week graduated return
to work program starting at two hour shifts in conjunction with the
Occupational Rehabilitation Program. Initially these shifts may be
supernumerary, however, during my earlier discussion with Michele Cathers,
LDB’s Workers’ Compensation Board liaison, she stated her preference to place
Penelope at work during a slower shift with the employer paying for hours
worked. Jackson will discuss this with her.

I am in agreement with this graduated return to work plan.

[emphasis added.]

[18]        
A Discharge Report prepared by Lakeside Physio respecting the
plaintiff’s work related injury included the following observations:

SUBJECTIVE: The worker complained of lower back pain that
started on Tuesday of this week. The worker expressed her frustration at the
improvement and relapse pattern in her lower back. The location was the same as
the original injury on either side of the sacrum and up the left side of the
spine. The worker was unsure as to the cause of the flare up as her last shift,
7 hours on Saturday, was tolerated well. Two five hour shifts on the previous
Tuesday and Friday were not tolerated as well. In conversation with the
employer it was learned that the worker had not performed much lifting for the
first five weeks of her GRTW. According to the worker she had performed one of
the heaviest job demands on at least one occasion. That job demand was lifting
a case of wine weighing approximately 35 pounds from floor to waist height and
from waist to waist height. Regarding the worker’s other job teaching Yoga
classes, the worker reported that she taught 2 classes last week but had to get
another worker to fill in for her this past Wednesday. Aggravating factors
included: lifting, bending, walking, standing, rolling in bed, and getting into
and out of a car or chair. Relief was achieved with using Tylenol, laying supine
with the knees and hips flexed (crook lying), heat, massage, and physiotherapy
treatments. Sleep: this week the worker reported waking 2 to 3 times per night
from pain in the lower back. OBJECTIVE FINDINGS: LUMBAR Arom: Flexion: slow
movement but full ROM available with pain at end range. Extension: sudden and
intense pain at the end range of movement, ROM decreased by ¼. Right side
flexion (measured from the tip of the middle finger to the floor): 51.5 cm.
Left side flexion: 54.5 cm, pain over the left sacro-iliac joint and muscular
tightness at the end ranges. Stress testing: pain with posterior to anterior
stresses over the left transverse processes of L3, L4 and L5. Pelvis
Assessment: Alignment: normal. Gillet’s: painful hip flexion on the right with
click from the right SI on lowering. Mobility bilaterally was normal. Active
straight leg raise: negative. Standing and Sitting Flexion Tests: normal. DURAL
TESTING: Slump test: position on the left and right. Straight Leg Raise:
Reproduction of left lower back pain with raising of the left lower extremity
with adduction and internal rotation at approximately 100 degrees. Range of
motion available on the right was approximately120 degrees. Palpation:
tightness and tenderness over the bilateral glute medius/minimus, quadratus
lumborum, and the left tensor fascia latae and piriformis.

Functional Abilities Related to Job Demands

FUNCTIONAL PERFORMANCE DURING THE GRADUATED RETURN TO WORK:
The worker reported that she was able to lift a case of wine weighing
approximately 35 pounds from waist to waist height with no difficulties on at
least one occasion. The worker reported that lifting the same case of wine from
floor to waist height was difficult but tolerable on at least one occasion.
FUNCTIONAL TESTING: Performed April 25/08: PUSH/PULL: The worker was able to
push/pull 40 pounds at waist height for 88 feet with pain rated as 7/10 using
the Functional Pain Scale (FPS) and exertion rated as 5-6/10 using the
Perceived Exertion Index. Previously on April 8/2008 the worker was able to
push/pull 50 pounds for 88 feet with pain rated as 3-4/10 and exertion as
5-6/10. LIFTING FLOOR TO WAIST HEIGHT: The worker was able to lift 20 pounds
for 5 repetitions with pain rated as 6/10 and exertion as 7/10. Previously on
April 18/08 the worker was able to lift 30 pounds for 5 repetitions with pain
rated as 2-3/10 and exertion as 4/10. LIFTING WAIST TO SHOULDER HEIGHT: The
worker was able to lift 15 pounds for 5 repetitions with pain rated as 5/10 and
exertion as 5-6/10. Previously on April 18/08 the worker was able to lift 20
pounds for 5 repetitions with pain rated as 3/10 and exertion as 4/10.
CARRYING: The worker was able to carry 20 pounds at waist height for 88 feet with
pain rated as 6/10 and exertion as 5/10. Previously on April 8/08 the worker
was able to carry 30 pounds for 88 feet with pain and exertion rated as 3-4/10.
UNILATERAL LIFTING AND REACHING TO SHOULDER HEIGHT: The worker was able to lift
2, 5, 8 and 10 pound dumbbells for 2 repetitions of each weight with pain rated
as 5-6/10 and exertion as 3/10. Previously on April 18/08 the worker performed
the same task with pain rated as 2/10 and exertion as 3/10. ANALYSIS: Although
not as thorough of an assessment tool as a full GRTW plan, the worker’s
performance during the abbreviated GRTW and functional testing satisfied the
heaviest job demands at the Nelson Liquor Distribution Branch. The worker was
discharged from the OR1 program as fit to return to work without limitations.

Injured Worker’s Comments

Regarding her RTW the worker commented that this week she
was not confident returning to full hours and full duties due to the change in
her symptoms. If asked the same question last week the worker said she would have
been confident returning to work without limitations. Regarding the program and
her GRTW the worker stated that the program would have been more beneficial if
she did not have to work during the weeks of the program. When at work rather
than in the program the worker felt that she was missing out on recuperation
time.

Outstanding Barriers

None. Although the GRTW was interrupted by a union grievance
it closely resembled the casual hours of the worker’s pre-injury schedule.

Recommendations Regarding Further Intervention

None

[emphasis added.]

[19]        
In the immediate aftermath of the collision the plaintiff went to the
home of a friend, Donna Ratcliffe, where she remained for two days. Ms.
Ratcliffe was waking the plaintiff up every two hours to be sure there was no
concussion. The plaintiff says she had a bump on her forehead, black eyes, a
swollen nose, pain in her neck and wrists, an earache, ringing in her ears and
pain in her jaw.

[20]        
Once the plaintiff returned home she says she could not lift anything,
and that even to do things like squeeze a shampoo bottle or do up buttons or
zippers was impossible.

[21]        
She says friends helped her with things like walking her dog and garden
maintenance.

[22]        
The plaintiff saw a doctor and her chiropractor in the first week after
the accident. She also arranged to see a physiotherapist and to take massage.
She saw Jodi Dool, a hand therapist who gave her splints to wear. She saw a
hand surgeon in Trail, a Dr. Laverty. She said her wrists hurt all the time and
that she was put back in splints. She said the pain was worse to begin with,
but eventually improved. She said she could not hold a book to read, and that when
she pushed a cart in the supermarket she had to do it with her forearms. She
could not use screw drivers or twist doorknobs. If she walked her dog and the
leash was pulled sharply she was in pain. She could not play guitar or
participate in African drumming.

[23]        
The plaintiff could not play softball, basketball, chop wood, hammer or
write (or use a keyboard) for any length of time.

[24]        
Vacuuming, lifting dishes out of the dishwasher, or clothes out of the
washer were painful.

[25]        
The plaintiff said her neck pain is constant but has improved. She said
she had jaw pain exacerbated by eating raw vegetables or chewing gum. She had
aches and ringing in the ears that she found very distracting. She said that
the tinnitus had been constant since the accident except for a few brief
periods after treatment when it has gone away. She said that it is worse at
night.

[26]        
The plaintiff said her earaches were infrequent by the time of the
trial, occurring perhaps twice a month for a day. The jaw pain was constant
until six weeks before the trial but abated after chiropractic treatment.

[27]        
The plaintiff said her ankle injury was not as serious as her other complaints.
She said it was sprained and not too painful, but sometimes it gave out. She
said there was an episode of that kind in the summer of 2009. She said she was
on crutches for a week or so. She said the crutches were hard on her wrists.

V

[28]        
The plaintiff says that in addition to her physical injuries she
suffered mental and emotional harm. She said that she woke up at night because
of her pain and has experienced panic attacks. She had fears of someone
breaking into her house or of being attacked on the street. She became afraid
of the dark and found driving very stressful. She says she would drive to town
for therapy but would often feel too “shaky” to go home right away. She sought
treatment from Dr. Wilson and saw Dr. Magee, a psychiatrist. She had counselling
from Mary DeVan in 2010 which she found helpful.

[29]        
The plaintiff says that the emotional effects of the accident were
evident in her social life. She enjoyed her friends and the things they did
together before the accident, but afterward she would make commitments to do
things and, as the time approached, feel overwhelmed with anxiety and refuse to
go. She found herself lying to her friends to excuse herself from going out.
She thinks this improved somewhat because she forced herself to go out when she
could. She finds smaller groups better than large gatherings.

VI

[30]        
Post-accident the plaintiff took a job at H&R Block. She started
training in the fall of 2010 for the tax year 2011. She worked for two seasons
2011 and 2012. She noticed when she started that her math skills had
deteriorated. She found crossword and sudoku puzzles much more challenging, and
noticed she had difficulty with arithmetical tasks like splitting a lunch bill
when she went out with friends.

[31]        
The plaintiff thought that the challenge of having to be somewhere every
day for work would be good for her, although she found the training difficult
and the work physically demanding. She says her wrists hurt more.

[32]        
The plaintiff found training for the second year, when more was expected,
challenging. She felt she got along with the other staff well and felt she did
her best with it. She was nevertheless advised at the end of the second season
that she would not be rehired.

[33]        
The plaintiff’s employer, Ellen Valks, testified. She said that in the
second year the plaintiff simply could not do the work and seemed to be working
at about one third of the speed expected. She measured this against other
employees who were doing similar work. According to Ms. Valks, the plaintiff
was also making an unacceptable number of errors, and was disorganized. She
worked more hours than others and got less done.

[34]        
Recreationally the plaintiff says that she liked to go out dancing, and
could dance all evening but that now she does much less and is in pain when she
does. She does not go to the recreational centre and the pool any more when she
had gone about 3x per week in the past. She misses “movie nights” with her
friends which she used to enjoy. She finds cooking, particularly chopping
things difficult, and she says she drops pans. She does not hike and ski as she
once did. Further examples of her disability were difficulty using chopsticks,
unscrewing jars, and going up and down stairs. She says she cannot carry a tray
of tea upstairs, for example, because her balance is poor.

[35]        
She finds herself unable to perform some of the moves required in yoga.
She does not feel well enough to teach. She says she can’t guide the students
because she can’t trust her hands to support the postures required.

[36]        
In 2010 the plaintiff took a trip to the Folk Fest in Vancouver with a
friend named Sandy Klan. The plaintiff says she pretended to be asleep much of
the way to avoid the anxiety she felt while in a car. Travelling even to Trail
for medical examinations causes her great anxiety.

[37]        
The plaintiff has been able to do a small 5 hour a week job at the
Women’s Centre organizing “community threads”. This involves knitting. She
feels there is not a lot physically that she can do.

VII

[38]        
The plaintiff had a number of supportive friends who testified on her
behalf.

[39]        
Donna Ratcliffe testified that she had known the plaintiff about 8 years
as a result of their children being in school together. She described the
plaintiff as someone who was smart, healthy and energetic before the accident,
involved in a large number of activities and capable of things like helping
with some construction work.

[40]        
Ms. Ratcliffe saw the plaintiff on the day of the accident. She said she
had a “goose egg” on her forehead and seemed to be in shock. Ms. Ratcliffe
assisted the plaintiff for some time with meal preparation and housework. She
also said the plaintiff did not want to go out as much as she used to. She said
for a time the plaintiff’s hands were “useless”. Ms. Ratcliffe’s recalled that
the plaintiff had had a hard time going back to work when she was injured at
the Liquor Store outlet. She thought that this was after the accident.

[41]        
Anne Mackie said she had known the plaintiff for 10 or 11 years, and
that she first saw her dancing at “Starbelly Jam”. She recalled many occasions
when the plaintiff danced all night.

[42]        
Ms. Mackie has worked at the Liquor Store since 1983. She was paid
$22.60 per hour or about $43,000 gross per month. She thought the plaintiff did
well on the job.

[43]        
Ms. Mackie recalled that following the accident the plaintiff could
barely get off the couch. She could not hold a knife. She says the plaintiff
stopped being out and about. She said she had changed from being outgoing and
positive to being anxious and fearful.

[44]        
Ms. Mackie said that a person can wait as long as 5 – 7 years to get a
permanent position with the Liquor Administration Branch. She said that, on the
other hand, sometimes it can unexpectedly open up if several people retire at
about the same time. She recalled the plaintiff going off work due to a back
injury but thought it was for about a month and that it happened after
the accident.

[45]        
Kathryn Reynolds knew the plaintiff for 6 years between 2000 and 2006.
She worked with the plaintiff in a direct marketing of natural health products
venture during that time. She described the plaintiff as her “mentor” and
recalls trips to Salt Lake City with the plaintiff that were busy from morning
to midnight. In that and other ventures she recalls the plaintiff being “always
on the move”. She also had a relationship with the plaintiff outside that
activity. She attended the plaintiff’s yoga classes, and many different
activities together, from cooking to assistance with moving when Ms. Reynolds
left the Nelson area. She said the plaintiff had a lot of energy and could
accomplish a lot in a day. She said she was quick with figures. She said she
was always in her garden in the summer and managed and maintained her house as
well.

[46]        
Ms. Reynolds saw the plaintiff in 2008 and was struck by the changes in
her. She said she was in pain and appeared tired and demoralized in contrast to
the vibrant active person she had been. She appeared to have lost some
cognitive ability and had trouble figuring out a restaurant bill. She complained
of difficulty driving and appeared uncharacteristically behind in her
housework. She described the plaintiff as “in a rage” over ICBC.

[47]        
Ms. Reynolds visited the plaintiff again in 2010 and said the plaintiff
still lacked energy and appeared to become disproportionately angry at things
that did not please her. The plaintiff appeared to be in less physical pain,
however. She was concerned about money. Ms. Reynolds thought the sons were not
very helpful.

[48]        
In 2012 Ms. Reynolds saw the plaintiff again. She said that the
plaintiff was still having trouble sitting and having shoulder and back
problems.

[49]        
Carol Laurie testified to similar effect. She said the plaintiff was an
active person before the accident, a hiker, and a good yoga instructor. She was
active in community events and maintained a large garden. She was a busy single
parent.

[50]        
After the accident Ms. Laurie said the plaintiff was withdrawn and
cancelled out of occasions to get together. The plaintiff was emotional and
tearful when she did see her.

[51]        
The plaintiff is better now than she was immediately after the accident.

[52]        
Sandy Klan testified that the plaintiff was vibrant, good natured,
civic-minded and loved to dance but that after the accident all of these
characteristics were much diminished. She said the plaintiff had been a good
yoga teacher.

VIII

[53]        
The plaintiff’s two sons testified to similar effect. Fred Woodcock is
20 and his brother James is two years older. They generally support the
observations of the other witnesses. Fred suggests that since the accident the
plaintiff has been able to do things like holding drywall into place, however,
and he said that she is now “pretty confident” when she drives. James said that
he had to try not to upset his mother given her emotional state after the
accident.

IX

[54]        
The overall impression left by the evidence is of a woman who was in a
relatively low impact accident and who complains of levels of pain and
disability, physical and mental, that are surprisingly severe. The impact and
the accident dynamics were such that the injuries were not only soft tissue
injuries but there was impact with her head and face. The accident occurred
against a background of ongoing chiropractic treatment.

[55]        
Shayne Taylor, the chiropractor who had treated the plaintiff since
January 10, 2005, described the plaintiff as having chronic back and
neck pain. Episodes requiring treatment are documented periodically up to June
25, 2008. The plaintiff was also receiving chiropractic treatment for the
injury she had suffered at the Liquor Store at that time right up to the month
of the accident.

X

[56]        
On July 4, 2008 Mr. Taylor saw the plaintiff for the first time
post-accident. He noted then and in subsequent visits, that the plaintiff was
complaining of pain throughout her body except for her thighs and legs and that
she was edgy and jumpy.

[57]        
The plaintiff does not appear to have spoken of jaw pain or ringing in
her ears until January 12, 2009.

[58]        
On April 3, 2009 Mr. Taylor noted that the plaintiff had fallen on her
tail bone and on May 22, 2009 that she had sprained her left ankle. There were
no visits between May 22, 2009 and September 11, 2009.

[59]        
On February 2010 the plaintiff appeared to have complained of pain that
may have arisen from the physiotherapy she was also receiving. There were 8
treatments in the span of a month.

[60]        
Visits thereafter were sporadic. There was a gap between October 2010
and May of 2012. From May of 2012 to the last visit in November 2012 the
treatment was for neck and low back pain, similar to the plaintiff’s symptoms
before the accident.

[61]        
The plaintiff did not work very long on a casual basis for the Liquor Store
before she suffered a back problem that kept her off work for several months.
Set against a background of “chronic” back and neck pain, an issue arises as to
the plaintiff’s ability to carry out the duties of that position even before
the accident. Following the work related accident, and before the accident of
June 29, 2008, the assessments respecting the plaintiff’s ability to return to
work, reproduced in paras. 17-18 herein, were performed.

[62]        
There is reason to consider whether the plaintiff was already
manifesting some of the symptoms she complains of after the accident in the
months and weeks leading up to it.

[63]        
The plaintiff’s physician Dr. Martha Wilson saw the plaintiff in 2007
for her work related injury to her lower back. She followed her progress for
several visits.

[64]        
The plaintiff saw a number of medical and therapeutic practitioners for
assessment and treatment of her condition. The most comprehensive evidence
before the court is a report by Dr. David Brooks, a specialist in physical medicine
and rehabilitation and sports medicine.

[65]        
Dr. Wilson saw the plaintiff on February 7, 2008, for “supportive
counselling” for stress.

[66]        
The first time Dr. Wilson saw the plaintiff after the motor vehicle
accident was July 3, 2008. She recommended physio. The plaintiff complained of
neck, shoulder, wrist and right ankle pain, but said she was able to sleep.
Later she complained of difficulty sleeping and feeling “jumpy”.

[67]        
The plaintiff saw Dr. Leanne Laverty, an orthopaedic surgeon in Trail
for treatment of her wrists. There was no objective sign of injury.

[68]        
The plaintiff saw Dr. Peter Gropper, an orthopaedic surgeon specializing
in hand surgery. In a report dated May 21, 2009, he summarized the specific
treatment the plaintiff had received including Dr. Laverty’s involvement
respecting her wrist complaint:

Ms. Penelope Stephenson is a 48-year-old, right-hand dominant
individual who was involved in a motor vehicle accident on June 29, 2008. She
was the belted driver of a car which was T-boned on the driver’s side.

She suffered injury to her head and neck, as well as
bilateral wrist and hand strain, and right ankle strain. She was assessed at
the Kootenay Lake Regional Hospital and discharged with a diagnosis of soft
tissue neck strain. She was advised to apply ice as well as use
anti-inflammatory medication.

Ms. Stephenson was seen by her family physician shortly after
the motor vehicle accident and referred for hand therapy, physical therapy, as
well as occupational therapy services. In addition, she was prescribed
anti-inflammatory and analgesic medication and advised to seek chiropractic
care for her neck symptoms.

She has had continuing hand and wrist symptoms. She was
referred to Dr. Laverty, orthopaedic surgeon, who felt that she had continuing
tendonitis, most localized to the first extensor compartment and advised a
period of rest including splints, with a more graduated program of
rehabilitation.

Ms. Stephenson continues to attend therapy as well as use the
splints both at night and as protective splints. She takes anti-inflammatory
medication as well as analgesic medication, non-prescription.

Ms. Stephenson has continued pain related to her wrist, worse
on the right than the left. The pain in the wrist is constant and localized to
the volar and dorsal midline, and to the radial aspect of the wrist. It is
generally worse with activity and she describes post-activity pain as well. She
has associated weakness, stiffness and mild swelling.

Ms. Stephenson has been unable to return to work or her yoga
instructor activity since the injury. She has limitation related to household
and leisure activity.

Ms. Stephenson has had issues of post-traumatic stress
disorder and depression with anxiety following the motor vehicle accident and
has undertaken psychological counseling, which continues to the present time.
She has no previous history of wrist or hand injury.

Her current examination demonstrates no sign of swelling with
normal posture. She has preserved range of motion but a feeling of stiffness at
the extremes of range. She is tender in the wrist joint in multiple locations,
mainly over the dorsal and volar aspect in the midline, as well as over the
radial aspect of the wrist and the snuffbox area.

She has some tenderness in the first extensor compartment but
no specific swelling or sign of nodularity of the extensor tendon at this time.

There is no evidence of clinical carpal instability.

Her x-ray examination has been
reviewed by Dr. Laverty and does not demonstrate any sign of fracture or other
abnormality within the wrist joint.

[69]        
Dr. Gropper described the plaintiff’s functional impairment as follows:

a)         Subjective Limitation

Ms. Stephenson continues to have issues of bilateral wrist
and hand pain, worse on the right than the left. She localized the pain to the midline
and radial aspect of the right wrist. The pain is constant but is increased
with activity and there is associated post-activity pain.

She has feelings of weakness and stiffness, and mild
swelling.

Ms. Stephenson says that her symptoms have improved since
June of 2008.

In addition, it has been recognized that Ms. Stephenson has
issues of anxiety, depression and post-traumatic stress disorder for which she
is requiring continuing psychological counseling.

b.         Objective Impairment

Ms. Stephenson has a feeling of stiffness related to her
shoulder. Her elbow is normal. A similar feeling of stiffness but not a
specific loss of range of motion is present in the wrist. She has
tenderness in multiple locations within the wrist joint including the flexor
carpi radialis tendon at its distal insertion, and the first extensor
compartment.

There are no specific signs of fracture or clinical wrist
instability.

c. Medical Restriction

Medical restriction would refer to those activities that, if
continued, would result in a deterioration of the condition of her hand.

I believe that Ms. Stephenson does have continuing pain
issues that may be magnified to some extent by her anxiety and post-traumatic
stress disorder. At her current level of symptoms, I believe that she would
require restriction related to a return to her work activity pending further
recovery of her symptoms, and that a graduated return to work program will
likely be required.

[emphasis added.]

[70]        
He offered the following prognosis:

Ms. Stephenson does not appear to have any major joint, bone
or ligament injury which would be a barrier to recovery or return to more
functional activity related to her wrist and hand. I believe that her pain
issues are related to soft tissue strain, possibly continuing tendonitis, and
that these symptoms are somewhat magnified by her underlying post-traumatic
stress disorder and associated depression and anxiety.

I would concur with Dr. Laverty that a period of rest, which
has been in place, and a more graduated strengthening and range of motion
program would benefit her. She would need to use her hand splints for
management of her pain and these may also be required on her return to work.

Ms. Stephenson has been advised that MRI examination may be
required. I believe that this would help to clarify the underlying painful
issues. I believe that it is unlikely that a specific occult injury related to
the wrist joint would be demonstrated with MRI. It is important to interpret
the MRI appropriately related to her clinical setting, in that the sensitivity
of the MRI may also identify areas that would be more related to age and wear
of the wrist than related to a specific traumatic event.

I believe that with the appropriate management, including
treatment of her anxiety and depression, Ms. Stephenson will continue to make a
progressive recovery.

I do not believe that Ms. Stephenson is at risk of developing
any signs or symptoms of degenerative arthritis within her wrist or hand as a
result of the injuries sustained in the motor vehicle accident of June 2008.

[emphasis added.]

[71]        
Dr. Gropper appeared for cross-examination by video. He allowed that the
non-specific strain to the plaintiff’s wrists should have healed and that the
persistence of pain may be due to overlay, although it is often not possible to
separate these factors with any precision.

[72]        
Dr. Brook’s report is dated September 5, 2012. He summarized the
plaintiff’s physical and psychological complaints as follows:

Current Physical Complaints

46.       Ms. Stephenson reported the following pain and
related symptoms, along with drawing a pain diagram on the intake documents:

Constant
pain, stiffness in both wrists, especially the right. This pain is described as
being a combination of aching and burning and is rated 3 – 4/10. Additionally
she has pain in both thumbs that is described as constant and at the 3 – 4/10
level also.

Her neck was
described as painful on a level of 4/10 constantly and this pain is described
as being burning but additionally she has sensation of pins and needles in the
occipital region on both sides.

Her right
shoulder has aching pain on level of 3/10 constantly. This pain is described as
constant aching and is located in the anterior shoulder in the region of the
bicipital groove.

Her right
ankle has been troublesome and feels weak since the accident although she has
no recall of the mechanism of injury. Ms. Stevenson feels like the ankle is
less stable than it was previously and as a consequence her balance is reduced.

The right jaw
region is consistently painful at 3/10 on a constant basis. This affects her
ability to eat properly at times.

Ms. Stevenson
also suffers from constant tinnitus [ringing in the ears] since shortly after
the accident.

Headaches
occur once or twice a week and primarily start in the occipital region.

Her sleep is
rated as poor. Ms. Stephenson feels this is partly the result of her tinnitus
and anxiety.

She rates her
current general health as Poor primarily due to constant pain.

Current Psychological Complaints

47.       Ms. Stephenson completed the Pain Disability Index
Questionnaire – her score on this was in the High range indicating that her
symptoms were having significant impact on her life. The Pain Disability Index
(PDI) assesses the degree to which chronic pain interferes with their ability to
engage in seven different areas of daily living (home, social, recreational,
occupational, sexual, self-care and life support). For each area, the
individual is asked to provide a rating of perceived disability along with an
11-point scale (0=no disability, 10=total disability). The PDI has been shown
to be significantly correlated with objective indices of disability.
Individuals within high PDI scores report more psychological distress, more
severe pain characteristics and more restriction of daily activities when
compared to individuals with low PDI scores.

48.       She also completed PHQ-9 (Patient Health
Questionnaire), which is part of a widely used Primary Care Evaluation of
Mental Disorders screening test. Her score on this test was in the Severe risk
range for major depressive disorder. She also completed the BDI-II (Beck
Depression Inventory), a widely used measure of the severity of depression. The
Beck score was in the Very high risk range for depressive disorder.
[Interpretation of the tests can be difficult in the presence of chronic pain
disorders since pain often influences scoring but on review of the results and
interview with Ms. Stephenson I would rate her likelihood of significant
depression being present as very high.]

49.       She also undertook the Tampa Scale for Kinesiophobia,
which scored in the moderate range indicating she has some tendency to fear
pain or further injury. The Tampa scale of Kinesiophobia (TSK) is a 17-item
questionnaire that assesses an individual’s beliefs and fears of pain/re-injury
due to activity. Learning to avoid activities or situations that cause pain can
be a very adaptive manner in responding to pain; however, high levels of
avoidance of activity could lead to an excessive sedentary lifestyle,
deconditioning and disability. The TSK has been shown to be associated with
various levels of activity avoidance and self-reported disability. A low score
on this questionnaire therefore would suggest that the individual is not
limiting their activity because of an anticipation of pain with engaging in the
activity.

50. On the Pain Catastrophizing Scale (PCS) she also
scored in the moderate to high range, indicating some tendency to have fear of
pain. The pain Catastrophizing Scale (PCS) is designed to measure an
individual’s cognitive and affective reaction to their pain experience. It has
been shown to be associated with heightened pain, self-reported disability and
employment status. It consists of 13 items describing thoughts and feelings
that individuals may experience when they are in pain. High scores on this
scale suggest a person in highly focused on their pain and may experience a
heightened disability because of an anticipation of or perception of pain.
Treatment focusing on management of catastrophizing can lead to reductions in
pain and pain-related outcomes.

51. Ms. Stephenson was specifically queried
regarding symptoms of PTSD-like disorders. She did not appear, based on my
interview and review of the files, to have had or currently has classic
features of this disorder although certainly she had some of the criteria.
Specifically she did not have any nightmares related to the accident nor
significant flashbacks. Her primary initial features were anxiety and social
phobia along with depressed mood. Clearly I was not the treating physician so
it is impossible to have the experience of dealing with the patient that the treating
physician and psychologist had and perhaps additional information not shown in
the files was considered in arriving at the diagnosis of PTSD. The DSM IV
criteria are attached in Appendix D and I will detail more thoughts on this
condition in the Discussion of Issues section.

52.       She does have ongoing anxiety related to driving
and for a long time was scared to drive from her house into Nelson. She envisions
all sorts of catastrophes occurring when driving such as a logging truck
dumping its load on her car.

53.       She has more generalized anxiety and a degree of
agoraphobia (fear of leaving the home). The anxiety started within days of the
accident so could have reflected a PTSD-type symptom. Ms. Stephenson stated
that she was very physically incapacitated and was sleeping poorly as a result
and had a hard time getting out of bed due to pain and fatigue.

54.       She has ongoing significant difficulty with task
completion and particularly multitasking.

[emphasis added.]

[73]        
Dr. Brooks came to the following diagnostic conclusions:

61.       Ms. Stephenson is complaining of persistent neck,
right shoulder and bilateral wrist and hand pain along with recurrent
headaches. She has also continuous tinnitus.

62. She had symptoms of a mild traumatic brain
injury (MTBI, concussion) following the accident. There was clearly
evidence of physical impact on her forehead at the time of the accident. There
was also likely a short period of amnesia during the accident followed by
confusion at the scene. No loss on consciousness was identified but this is not
required for diagnosis and is not necessarily predictive of length of symptoms.
Her cognition appeared impaired especially with regards to short-term memory
and concentration for several months. The complexity of this case makes it
difficult to comment on the length of this impairment since Ms. Stephenson also
developed anxiety and depressed mood that may also have impacted her cognitive
abilities.

63.       Post-traumatic headaches tend to be a complex area
and are often resistant to treatment. The exact cause of these headaches is
often difficult to identify. [1] Some authors feel that the injured facet
joints of the neck are a frequent source. [2] Other considerations for
causation include post-concussion headaches, temporomandibular joint (TMJ)
syndrome, and chronic muscle tension. In the case of Ms. Stephenson she appears
to have suffered both a concussion and neck injury. Research has shown that
headaches after closed head injury persist beyond two months in 60% of
patients. [3] The same author comments “rarely does headache occur in
isolation”. Cervical pain is a frequent accompaniment. In addition to the neck
issues though Ms. Stephenson’s headaches by history appear to have a component
of temporomandibular joint pain on the right side. Some authors have postulated
that the occurrence of post-traumatic migraines in the setting of concussion is
associated with increased neurocognitive dysfunction following mild traumatic
brain injury. [4] Fortunately Ms. Stephenson’s headaches have become less
frequent but still occur 1-2 times a week.

[emphasis added.]

[74]        
Dr. Brooks accepted that the plaintiff suffered a whiplash injury, and
that she had developed “chronic myofascial pain syndrome in her neck and
trapezius region”. He observed:

66.       Chronic pain by itself
is felt to be tightly interwoven with mood disorders. [15] Patients with
chronic pain disorders are clearly at higher risk to develop coincidental mood
and anxiety disorders. There is recent evidence also to support genetic factors
as being a further issue in determining which patient will go on to develop
persistent pain syndromes.

[75]        
The most significant issue, in his view, was chronic pain disorder:

67. In my opinion the overall primary issues
impacting Ms. Stephenson is that she has, for a variety of reasons, gone on to
develop a significant chronic pain disorder. I believe that part of the
possible explanation is the presence of an incompletely treated mood disorder.
She may well have had PTSD-type syndrome but also had evidence of significant
depression and based on the current evaluation she still reports high scores
for depression risk on both the PHQ9 and Beck Depression Inventory. Reviewing
the records it is always easier to comment in hindsight but I believe that it
would have been preferable to treat this woman’s mood more aggressively with
specific medications such as specific serotonin reuptake inhibitors (SSRI’s)
which are more efficacious in general than St. John’s Wort in more severe
depressions. Unfortunately the initial treating psychologist was under the
misperception that treatment with medications such as antidepressants was
unnecessary and may affect the efficacy of the Cognitive Behavioural Therapy.
This is not true according to my view of the disorder. I have significant
clinical experience with PTSD and its treatment having dealt with many cases
while working for Veteran’s Affairs Canada and the RCMP. SSRI antidepressant
medications are actually felt to be valuable adjuncts to control mood and
anxiety while treating the patients with other therapies such as cognitive
behavioural therapy, eye movement desensitization therapy and exposure therapy.
In support of my opinion: many experts in this field also advocate the use of
SSRI’s. The following is an excerpt from a textbook entitled Effective
Treatments for PTSD: “SSRIs can be recommended as first-line treatment for
PTSD. They not only reduce PTSD symptoms and produce global improvement but are
also effective against comorbid disorders and associated symptoms” [comment
ie depression and anxiety] (from chapter 6, Psychopharmacotherapy for
Adults, Guideline 6, Effective Treatments for PTSD, Edna Fox Ph.D. Guildford
Press, 2009). The evidence level for this recommendation was “A” which is the
highest level and therefore backed by the most evidence. Research papers for
the past decade have supported the first-line use of SSRI’s for this disorder.

[emphasis added.]

[76]        
He gave the following “Summary and Recommendations”:

91. I am of the opinion, after reviewing all the
available documents, interviewing and examining Ms. Stephenson that she has
chronic back, shoulder, and wrist/hand pain resulting from the soft tissue
injuries suffered in the motor vehicle accident of June 29, 2008. The
primary diagnosis for the neck pain is of chronic myofascial pain syndrome
combined with a postural alignment condition. Her hand and wrist pain appeared
to be primarily a strain but developed into a chronic pain disorder.

92. Ms. Stephenson has evidence of significant
ongoing depression and anxiety. She may have had posttraumatic stress
disorder but I could not be confident from the interview and review of
information that she met full criteria. Certainly though her condition was
PTSD-like. Intertwined with the mood disorder is the presence of a significant
chronic pain syndrome.

93.       Secondary diagnoses are temporomandibular joint
syndrome. weakness of the pelvic stabilizers with resultant tightness of the
iliotibial band and right trochanteric bursitis, posttraumatic headaches and
posttraumatic tinnitus.

94. I feel that she should absolutely be considered
for a more aggressive therapeutic approach to her mental health condition.
Based on examination and intake questionnaires she appears to have a
significantly high risk of a major depressive disorder. She is not currently on
specific medications for this, other than St. John’s Wort, nor has she been so
in the past. Definitive treatment of this condition is necessary in order to
(hopefully) reduce some of her chronic musculoskeletal pain and allow a higher
likelihood of success. I recognize the client has some fear of taking
antidepressants but hopefully with appropriate education the benefits could be
seen to outweigh the risks as far as her mental health and pain levels are
concerned. Her family physician appropriate recognized the issues and attempted
to prescribe this medication but was unsuccessful due to mixed messages being
given to her patient.

95.       Currently popular medications in the pain community
include Cymbalta (duloxetine), which is an antidepressant with approvals also
for treatment of chronic pain. In addition to antidepressant medications the
use of Lyrica (pregabalin) or gabapentin can be used. I understand Ms.
Stephenson may have started Lyrica but had some side effects (I do not know the
dose but careful titration can reduce the side effect problems) but she
primarily indicated that the cost would have been prohibitively expensive for
her at the time. I would strongly suggest that consideration be giving to
funding these medications for at least one year.

96. She may be a candidate for a formal interdisciplinary
pain clinic. [Disclaimer: I consult part-time to one such program at
OrionHealth in Surrey, B.C.] In such programs the various clinicians with
expertise in chronic pain, including occupational and physical therapists,
physicians, kinesiologists, pharmacists and psychologists can assist the
patient with management of their pain disorder through both physical type
therapies and possible modification of medication therapy. This type of program
can cost $10,000-14,000. The goal of such programs is not to resolve the pain
problem completely (usually impossible) but to educate the patient on the
reasons for chronic pain and teach physical exercises and mental skills to
better deal with the pain they have. Dr. Wang et al showed that chronic pain
patients with depression as a comorbidity tended to benefit more from a
chronic pain program than those with chronic pain without depression. This
would indicate that Ms. Stephenson would be well-suited to such a program.

97.       In addition to her mental health conditions the
following suggestions are made:

Her postural abnormality (cervical kyphosis) must be
corrected if at all possible. It is possible that the altered neck mechanics
are also contributing to her tinnitus and temporarmandibular joint symptoms.

Trigger point therapy to her neck/trapezius region –
possible using dry needling (also referred to as IMS/intramuscular
stimulation). This may reduce some of the chronic hyperactivity of her trigger
points and reduce shortening of muscles and allow restoration of more normal
neck movement and reduce pain. This is not the same treatment as acupuncture
and is sometimes confusing – therapists using IMS have specific training in
this technique.

Based on her duration of symptoms and my evaluation it would
likely require at least 16-20 directed sessions with a skilled physiotherapist
to determine if the proposed treatment strategy would show benefit.

98.       Mr. Hosking’s FCE contains several useful
suggestions for her general rehabilitation and I would concur with these. I
would also add that special attention to addressing her pelvic muscle stability
would be an important component too. I would suggest though, as previously,
that her mental health issues and chronic pain better managed prior to
undertaking a concerted rehabilitation strategy.

100. Ms. Stephenson does require home assistance both
with heavier cleaning tasks which aggravate her neck and wrist pain and
seasonal yard work. The need for this is indefinite and likely requires 3-4
hours per week assistance in this area, possibly more due to the type of
property she lives on.

101. In conclusion, as a clinician I would attempt to
improve Ms. Stephenson’s mood, pain and musculoskeletal issues in an aggressive
manner in view of her age, high level of function pre-MVA, and the persistence
of symptoms over four years. Failure to do so will give her a very poor long
term prognosis.

[emphasis added.]

[77]        
The plaintiff was evaluated by Dr. Todd Kettner, a psychologist. His
opinion was as follows:

Summary and Interpretation

Ms. Stephenson currently meets DSM-IV diagnostic criteria for
Generalized Anxiety Disorder with associated depressive features. She is not
continuing to meet full diagnostic criteria for Posttraumatic Stress Disorder
at this time, such that her PTSD can now be considered to be in partial
remission. However, it is clear from Ms. Stephenson’s report during the
assessment and consistent with the records of Ms. DeVan, that she continues to
suffer from some of the anxiety related responses that can be explained as
residual symptoms of that partially resolved PTSD.

Although there is a remote history of post partum depression
and evidence of some emotional distress related to a back injury the year
before the MVA, it is clear that Ms. Stephenson’s current anxiety and
depressive symptoms are primarily the result of the June 29, 2008 MVA along
with the protracted rehabilitation period and extended period of occupational
and social disability. The more severe symptoms (PTSD) that were noted
previously by psychologist Mr. Maunula are also attributable to the 2008 MVA.
Treatment with Mr. Maunula initially and Ms. DeVan more recently have had some
beneficial effect in alleviating the severity of her psychological symptoms
although treatment has not been able to completely ameliorate her distress.

Ms. Stephenson’s prior history of mild psychological distress
related to her previous back injury and the more remote post partum depression
may have predisposed her to the development of the much more serious symptoms
of anxiety and depression that resulted after the June 28, 2008 MVA. Having
said that, however, there was no evidence from records reviewed or the current
assessment that would predict the psychological distress including the
previously diagnosed PTSD that has since gradually resolved to be in partial
remission would have occurred if not for the psychological trauma of the 2008
MVA. That is, my opinion is that she would not have developed PTSD if not for
the 2008 MVA. Furthermore, I consider it unlikely that her current level of
anxiety and depressive symptoms would have re-occurred if not for this same
accident.

In terms of practical impact, Ms. Stephenson’s symptoms
arising from the 2008 MVA have made it difficult for her to sleep, have
resulted in her avoiding people and public places due to significant attacks of
anxiety and the related fear of having these attacks in public places, and
negatively impacted her ability to work. Her participation in leisure and
recreational activities has been limited. She reported that she even feels that
her previously good relationship with her sons has been somewhat strained by
her short-temper since the car accident. Although she has, with treatment, made
progress, she still has difficulty driving in conditions that are less than
ideal.

Ms. Stephenson’s prognosis for further recovery from her
Generalized Anxiety Disorder with depressive features is guarded. Although she
has previously demonstrated her resilience in overcoming challenges in life
prior to the 2008 MVA, the magnitude of this accident’s impact on her and the
slow pace of her psychological recovery suggest that her emotional distress may
continue indefinitely.

Ms. Stephenson’s anxiety, depressive features, difficulty
sleeping, social avoidance and other signs of psychological distress persist in
spite of two reportedly successful courses of treatment with two separate
mental health professionals. It is thus reasonable to conclude that her
remaining symptoms are quite entrenched and will probably persist for the
foreseeable future. Nonetheless, periodic mental health support may be
necessary and is recommended in the following section.

Ms. Stephenson’s level of physical pain is worth noting here,
as pain can have significant psychological, cognitive and social ramifications.
However, I leave the fuller descriptions of her physical injuries and pain, as
well as their impact on her, to her physicians.

In terms of the potential future impact of Ms. Stephenson’s
partially resolved PTSD, ongoing Generalized Anxiety Disorder and residual
depressive symptoms attributable to the 2008 MVA – it is clear that she is at
risk of redeveloping PTSD and associated symptoms of anxiety and depression if
she were to be confronted with another traumatic life event in her future such
as experiencing or witnessing another MVA or other transportation accident,
being involved in a house fire or natural disaster, any physical assault or
robbery, or having someone close to her be the victim of such traumatic
incidents. If this were to occur, she should reconnect with a mental health
professional as quickly as possible to manage the probable symptoms and reduce
the severity and duration of any relapse.

Ms. Stephenson’s ability to
concentrate for sustained periods of time, to comfortably interact with members
of the public and to maintain her energy over the course of a day are currently
limitations in regards to her employability, her active participation in
previously enjoyed leisure activities and particularly in terms of her
socialization.

[78]        
The plaintiff’s functional capacity was assessed by Tatiana Petrov of
Peak Functions Rehab Services, after taking the history there is no need to
repeat, Ms. Petrov noted that the plaintiff was positive except when speaking
of her condition:

Ms. Stephenson arrived on time
and appropriately dressed to her scheduled appointment. She was pleasant and
cooperative throughout the evaluation. Her affect was generally positive
throughout the evaluation (i.e. smiling, good eye contact, spontaneous
conversation), though she was tearful on 2 occasions when discussing her lack
of progress and frustration in relation to her pain and injury.

[79]        
Somewhat surprisingly, in light of the plaintiff’s evidence of
significant weakness (not merely pain), the plaintiff’s grip strengths were
average or better:

Summary: As indicated by the
scores, Ms. Stephenson’s grip strengths were slightly above average when
compared to age and gender norms. This test was carried out in sections over
the 2 days of testing as the repetitive forceful gripping involved provoked
signs and reports of increased thumb and wrist pain bilaterally (right worse
than left). She completed a maximum of 6 grips with each hand at any one time,
displaying signs of pain (i.e. wincing, holding her breath, withdrawing and
massaging her thumb and wrists, attempting to modify the gripping pattern to
avoid use of her thumbs as much as possible, avoidance of spontaneous hand
movements in between trials, guarding hand postures at rest) during almost
every repetition of forceful gripping.

[80]        
Ms. Petrov’s “Summary and Recommendations” included the following:

The results of formal screening procedure in combination with
clinical observations indicate that Ms. Stephenson put forth maximum voluntary
effort during functional capacity testing. In fact, she displayed an unusually
competitive approach towards testing, despite the presence of signs of pain.
Based on her high level of effort, the evaluator therefore has good confidence
that the results reported below represent her current physical capacity.
Overall, Ms. Stephenson’s self-reports of function and pain were consistent
with objective findings of the evaluation and are therefore considered to be
reliable.

The results of this evaluation classify Ms. Stephenson for
the LIGHT Physical Demand Level by NOC standards (i.e. lifting, carrying,
pushing and pulling up to 20 lbs. occasionally during the work day) with the
following restrictions relating to the injuries she sustained in the MVA of
June 29, 2008:

No forceful gripping with either hand

No repetitive (i.e. more than 10 min.
at one time) handling or fine motor pinching with either hand

No frequent or sustained forward reaching with either arm

Comparison of the evaluation results with the physical
demands of her pre-injury job of Liquor Distribution store clerk reveal that
Ms. Stephenson does not meet the strength, manual handling, gripping and
reaching requirements of this job.

[emphasis added.]

[81]        
A further Functional Capacity Evaluation dated August 31, 2012 was
prepared by Andrew Hosking:

1.         In summary, during this Functional Capacity
Evaluation Ms. Stephenson did not meet the physical demands of her job as a
Retail Sales / Cashier (NOC #6421). The specific functional restrictions that
preclude her ability to participate I this occupation include limited capacity
for lifting to shoulder level, limited capacity for carrying, and poor and
unreliable capacity for right hand grasping. She does not meet the job demands
of a Yoga Instructor (NOC #5254), due to inability to weight bear through her
hands and wrists.

2.         Ms. Stephenson demonstrates good facility for fine
dexterity tasks, and brief periods of use of both hands for medium dexterity
tasks. She demonstrates minimal restriction for sustained sitting and standing.
Her rapid fatiguability in right hand grasping however poses a restriction to
use of her right hand in repetitious activity, particularly when required to
lift or carry weight of greater than 10 pounds.

3. Summary of work capacity: Ms. Stephenson demonstrates
the capacity for sedentary level work. Her principle functional limitation is
weakness of grasp accompanied by reports of pain in the thumb and radial aspect
of the wrist. Weakness of grasp limits her capacity for lifting, carrying,
holding and reaching objects, and pushing. More specifically, she is limited to
light capacity lifting to knuckle level, but sedentary level to shoulder level.
She demonstrates compensatory movement patterns which are considered not safe
or sustainable for use in a workplace setting while attempting push/pull,
bilateral carry or lift to shoulder level at greater than sedentary level. With
these restrictions, she is functionally capable of participation in a part time
sedentary level position. She has since her accident worked in such a capacity
at H&R Block. She reports that she tolerated this work, despite aggravation
of symptoms. As she reports improvement in her symptoms since this time, it is
feasible that she would be capable of a similar job with restrictions for
lifting, carrying, and repetitive right or left hand activity. She would
require regular breaks and should be on a part time schedule, to allow her the
capacity to participate more normally in domestic activity and recreational
activity.

4. Comment on Endurance Capacity: Ms.
Stephenson conducted herself with competitive test behaviours throughout the
assessment. She works swiftly in bursts of activity. In the afternoon, she
demonstrated evidence of fatigue with repetitious activity. It is acknowledged
that Ms. Stephenson has been diagnosed by Registered Psychologist Dr. Todd
Ketner with symptoms of Post Traumatic Stress Disorder that is now in partial
remission. Dr. Ketner, in a Medico-Legal report dated January 4, 2011 states:
Ms. Stephenson’s ability to concentrate for sustained periods of time, to
comfortably interact with members of the public and to maintain her energy over
the course of a day are currently limitations in regards to her employability
” Results of this functional capacity assessment are supportive of the
notion of her limited endurance capacity.

5. Comment on Capacity for Employment and
competitive employability: Ms. Stephenson has been at a competitive
disadvantage in the open workplace since her MVA of June 29, 2008 as a result
of the physical injuries sustained in this accident.

6. Comment on Capacity for Domestic Activity:
Ms. Stephenson reports that prior to her accident she was not restricted in her
capacity for normal domestic activity. She also reports that she did regular
gardening and repair work such as repairing fences on her property. She reports
that she is markedly limited in her ability to do this. She states that there
are “lots of DIY things” in the garden that she does not attempt any more due
to limitations from her injuries. Observations in this assessment are
supportive of her reports that she is currently limited in her capacity for
daily domestic activity. She is recommended to have external housekeeping
assistance on a weekly basis. Results of this assessment also determine that
she requires external assistance for occasional or seasonal deeper cleaning and
outdoor domestic tasks such as lawn mowing, raking leaves or home repairs.

7. Comment on Capacity
for Recreational Activity: Ms. Stephenson states that prior to the accident
she was actively involved in the practice and teaching of yoga. She states that
her bilateral hand and wrist injuries have restricted her form participating in
this activity. Observed performance in this function capacity is supportive of
these reports. She also reports that she has experienced panic attacks while
being involved in various outdoor activities such as walking the dog. She
reports that she feels that this is a limiting factor in her return to
pre-accident activities.

[82]        
Dr. Gordon Wallace, a rehabilitation psychologist gave the following advice:

Occupation Options Open to Ms. Stephenson:

It is my opinion from rehabilitation psychology perspective
that the range of occupational options open to Ms. Stephenson as a result of
her decreased physical functioning limitations has been significantly decreased.
With the recent functional capacity evaluation conclusions from Mr. Hosling
(August 31, 2012) as well as Dr. Brooks’ (September 5, 2012) medical
assessment, it is my opinion that not only would she be unable to return to her
Liquor Store Clerk position but she would also be excluded from many
alternative direct entry positions. Examples of direct entry occupational
options which would no longer be compatible with Ms. Stephenson’s residual
physical capabilities include Supermarket Clerk, Retail Shelf Stocker, Janitor,
Chambermaid, Animal Care Worker, File Clerk, Mailroom Clerk, Fast Food
Preparer, Laundry Worker, etc. The strength required in these positions and/or
need to use bilateral upper extremities on a repetitive basis throughout the
workday would not be compatible with Mr. Hosking’s findings.

Examples of direct entry occupational options more within Ms.
Stephenson’s residual physical capabilities include Self-Serve Storage
Facilities Attendant, Car Rental Clerk, Customer Service Representative, Call
Centre Agent, Self-Serve Gas Bar Attendant, etc. While these positions would
still require the use of an individual’s upper extremities to complete job
tasks, this would not be on as repetitive a basis as other excluded ones noted
above. However, Mr. Hosking’s conclusion that Ms. Stephenson is functionally
capable of participation is only a part-time position would not only reduce her
residual earning capacity but also reduce the range of available direct entry
jobs open to her.

While it is my opinion from a rehabilitation psychology
perspective that the above noted direct entry residual occupational options
would be more compatible with Ms. Stephenson’s physical capacity. I do have
concerns about her psychological capacity to work in some of them. Specifically,
the anxiety that she reports experiencing (especially with the need to leave
situations when she feels unsafe) would likely make it difficult if not
impossible for her to function in a busy work setting such as required in many
of these direct entry sales and service occupations. In addition, her anxiety
and feelings of being overwhelmed with multiple tasks would also likely detract
from her ability to succeed in such positions. Therefore, she would need a very
select work setting of low interactions with the public, low stimulus work
environment, ability to take breaks when needed as well as limited multitasking
demands in order to realistically be considered for competitive employment (to
be further discussed under Ability to Obtain and Maintain Competitive
Employment section).

In terms of transferable work skills, Ms. Stephenson
completed a university baccalaureate degree in Languages and Business Studies
in 1982. Her work history includes managerial positions in retail and wholesale
settings. From a rehabilitation psychology perspective, it is my opinion that
while more responsible positions within the business management area would
likely provide a better work setting for her from a physical perspective, I am
not confident that her psychological and cognitive abilities would meet the
demands of such employment. For example, her self-report of experiencing
increased anxiety through even attempting to make travel arrangements to this
appointment in Kelowna would certainly not provide confidence that she would be
able to succeed in decision making and/or planning tasks required in managerial
positions. Therefore, with Ms. Stephenson’s present psychological dysfunction
and pain, it is my opinion that occupational options of a more responsible as well
as cognitively and psychologically challenging nature utilizing her
transferable education and work skills would not be realistic options for her.

Consideration was then given to alternative occupational
options through Ms. Stephenson acquiring additional education and training. As
noted earlier, my psychological and vocational test battery results found that
Ms. Stephenson is an exceptionally bright woman with her overall intellectual
abilities being within the superior range. Her aptitude profile was also found
to be strong with most areas being within the above average or well above
average ranges. Her academic skills are also strong being within the
postsecondary range. However, it was noted that her Reading Comprehension
skills are weak compared to her stronger Vocabulary skills as well as education
level. Her measured vocational interests found that she would likely find the
most satisfaction working in occupational options encompassed by the Artistic,
Investigative, Conventional, Social, Methodical, and Innovative general themes.

Ms. Stephenson’s educational history coupled with assessment
results would indicate that she has the ability to complete up to and including
university graduate and/or professional degree programs of study. However, I do
not believe that with her present psychological dysfunction and pain experience
that she would be able to utilize her strong intellectual abilities to complete
cognitively challenging formal educational training programs. It is my opinion
that she would need to experience a significant improvement in her
psychological and cognitive functioning before being able to succeed at these
lengthier and more cognitively challenging training programs.

I am cognizant that Ms. Stephenson was able to complete tax
preparation training courses through H&R Block and from her self-report,
did well in them. However, the cognitive demands of a Tax Preparer position are
certainly less than Ms. Stephenson’s intellectual capabilities and therefore,
it is my opinion that it is not surprising that she was able to successfully
complete her training programs. That is, her intellectual abilities, even with
decreased cognitive efficiency, were robust enough to successfully complete the
less challenging training programs. It is therefore likely that from a
cognitive perspective, she could consider completing alternative certificate
level programs of study such as within the Bookkeeping, Medical Office
Assistant, or Special Education Assistant areas. These programs would generally
take up to one year of full-time attendance at either private or public
institutions. While many of these programs are offered at schools outside of
Selkirk College in Nelson, BC, some of them do offer online courses which she
could complete from her home. Costs for tuition, books and supplies for these
programs would range from approximately $4,000 to $15,000 depending on specific
program of study as well as whether it is offered in a public or private post
secondary institution (not including any additional travel/living costs).

However, it is my opinion
that Ms. Stephenson’s significant psychological dysfunction and/or pain
experience would likely make it more difficult for her to succeed in such
programs and therefore it could take her longer than the average student in
order to successfully complete one of these certificate level programs. In
addition, she would then need to very selective in obtaining jobs that did not
tax or exceed her pain tolerances for computer data entry tasks.

[emphasis added.]

XI

[83]        
The defence offered a report prepared by Dr. Duncan Laidlow, a
specialist in physical medicine and rehabilitation conducted November 25, 2011.
Dr. Laidlow made some attempt to find corroboration in the medical record for
the plaintiff’s evidence respecting her past history which, he suggested, she
told him was that she had “no significant pain problems”:

I asked Penelope whether she had any history of any of the
above problems prior to being involved in the motor vehicle accident of June
29, 2008. She indicated that she had no significant prior problems. She did
outline that about nine months prior to the accident she had hurt her lower
back at work and that this was painful to her for about two to three months
before settling. She indicated that she was back to work, doing all of her
tasks.

She also indicated to me that many years ago she had hurt her
neck, lower down, but was unsure as to how long this bothered her for. She
indicated that she had no problems in this area prior to the accident. She did
indicate that she had some left knee problems, which had settled.

I did have an opportunity to review the records made
available to me. There is an indication from the Kootenay Lake Hospital
Emergency Room records, dated January 3, 2002, that she had injured her left
knee in a snowboard incident. Apparently, she twisted her left knee getting off
a ski tow.

There is a record from the MacLean and Taylor Chiropractic
clinic, dated December 29, 2004, that indicates that Penelope had a fall onto
her coccyx about nine years previously. In the notes it indicates that she had
nine years of chronic back and neck ache and hip problems. She seems to have
been receiving treatment through the chiropractors over the years following
this and as of June 2, 2008 they noted that she had aching across her lower
back. I asked her about this particular entry on December 29, 2004 and indeed
showed her the chiropractic record. She could not recall having these issues in
2004.

There is a report from Kootenay Lake Medical, dated January 12,
2006, that indicated that Penelope seemed to have had a fall while skating and
had pain, in what seems to be, the subscapular area, although this record is
difficult to read.

Medical Services Plan records would indicate that she saw Mr.
Michael Kirby, a massage therapist, starting on November 6, 2006 and carried on
this until November 7, 2007. There is also an indication that Michael Kirby saw
her on January 24, 2008. She does not remember what she was seeing him about.

On December 6, 2007 a report from the Kootenay Lake Hospital
Emergency Room indicated that Penelope had back pain after a heavy day of
lifting at work. Dr. Wilson, in a note dated December 10, 2007, indicated that
Penelope needed to be off work for a month. Reports from Dr. Wilson, dated December
20, 2007, January 22, 2008, February 21, 2008 and March 10, 2008 all indicate
that she had ongoing lower back pain.

A discharge report from the
Lakeside Conditioning Program, dated April 25, 2008, indicated that she was
expressing frustration at the improvement and relapse pattern in her lower
back. Nevertheless, they cleared her to return to work at that time, without
limitations.

[84]        
Having reviewed the plaintiff’s symptoms, Dr. Laidlow commented on the
material before him:

Penelope Stephenson’s chief complaints relate to neck pain,
ear pain, headaches, bilateral wrist pain, right shoulder and shoulder blade
pain, jaw pain and right ear tinnitus.

Her pre-existing status is a little bit difficult to be sure
of. According to Penelope, she had no significant problems, in any of the areas
of current complaint, prior to being involved in the motor vehicle accident of
June 29, 2008. She did indicate that she had a previous lower back injury,
which was work related and that this had occurred nine months before the
accident and settled within two to three months. She also remembered a remote
injury to the neck, years earlier, which has settled. She indicated no previous
fractures or motor vehicle accidents.

The medical records indicate that she did have a left knee
strain in 2002, but there is no indication of ongoing problems afterwards.
There is, however, a note from the MacLean and Taylor Chiropractic clinic that
seemed to indicate that Penelope had been prone to chronic back and neck ache
and hip problems, as of December 29, 2004. There is evidence that she had
ongoing chiropractic treatments through 2005, 2006, 2007 and 2008, but the
chiropractic notes are in short form and it is very difficult to be certain of
the complaints being raised at the time. There is an indication that as of June
2, 2008 she was having pain across the lower back.

There is an indication that she did injure her lower back on
December 6, 2007, but there is also an indication that she was seeing Michael
Kirby, a massage therapist, from 2006 on. The records of Michael Kirby do
indicate that Penelope was being seen for back pain and shoulder pain. There is
also an indication, in January 2007, that she was having neck pain. In 2008
there is an indication she had back and shoulder pains.

The injury of the lower back seems to have been an ongoing
issue from December 2007 to, at least, all of April 2008 and as of April 2008
she was still having problems with intermittent pain in the lower back and she
indicated that she was not confident that she was going to be able to return to
full duties at her work.

She has been investigated with
plain x-rays of the neck on July 7, 2008 and these showed some mild reversal of
the normal lordosis, which usually goes with muscular spasm and some
degenerative changes in the neck. The degenerative changes would have been
present prior to the accident. There is an indication that she also had x-rays
taken of the left ankle, which were normal and that she also had an MRI of the
wrists, which really showed no significant abnormalities. Further x-rays of the
wrists and hands were done in February 2010 and were normal.

[85]        
Dr. Laidlow’s view of the plaintiff’s condition was as follows:

With regard to her complaints of neck pain, headaches and
right shoulder pain, I do feel that she suffered a musculoligamentous strain of
the cervical spine that was superimposed on, at least, a tendency toward
myofascial pain in the neck and lower back prior to the accident. There is
no evidence of any significant bony injury and no evidence of any neurologic
abnormality. This injury has resulted in additional tightening of the soft
tissues in the neck and upper shoulder area, which has in turn made her more
prone to mechanical pain in the neck and upper shoulder areas than it seems she
was prior to the accident itself. She requires no further investigation of the
neck, but does need some direction with respect to her rehabilitation. The main
focus of the rehabilitation should be on trying to improve the range of motion
that she lacks at this point in time. I think she needs to be given some
additional direction on stretching activities. She has a long background in
yoga, but really has not been doing any of these types of stretches, to a large
extent, as she is unable to do the complex poses that she was doing beforehand.
I think she needs to simplify those types of exercises to controlled simple
straightforward exercises to the tightened areas, particularly the paraspinals,
trapezius muscles, scalenes and pectoral musculature and the posterior shoulder
girdle musculature, in general. She should aim at the stretching on a daily
basis. I think she would benefit from a review with a trainer and then should
be able to carry out these activities on her own. She would need to apply
herself on a daily basis to her stretching for a period of six months to year
to get maximum benefit.

The headaches that she experiences are likely cervicogenic in
nature. The pain in the right shoulder and shoulder blade area is, again,
referred pain from the musculoligamentous strain and mechanical neck pain at
present.

The pain that she experiences in the ear areas is likely
myofascial pain from the masseter muscles. I do not see any restriction in the
temporamandibular joints.

I would leave the discussion of her right ear tinnitus to an
Ear, Nose and Throat Specialist, who I believe she has seen at one point or
another.

When it comes to the pain in the wrists and thumbs, this has
been extensively investigated and to date very little has really turned up
abnormal on the examination findings. She has seen more than one Orthopedic
Surgeon. Overall, I think it is likely that she did have a soft tissue strain
to the wrist area, but there is no evidence of any bony injury. I do note that
she does complain of some numbness in the right thumb area and has some
numbness in some of the other fingers with holding her in a Phalen’s maneuver.
Given the fact that she does have numbness there, I would suggest that nerve
conduction studies be done on the nerves of the arms to rule out the small
possibility that she has a carpal tunnel syndrome. The odds are at this time
that she does not, but if she does she might need to have a release of the
median nerve undertaken to lessen her wrist pain. Fortunately, her wrist pain
is improving significantly and indeed I do not see any restriction in the
movement of the wrists at all now. I do not think she requires further
treatment in this regard.

At this point in time I really cannot feel that ongoing
passive treatments are likely to be of assistance to her. I feel that she
should be weaned off these treatments quite quickly, although it is going to be
a bit difficult to do that, as she has become somewhat dependent on them. The
main thrust should be involving her in a community based exercise program, as
outlined.

[emphasis added.]

[86]        
Dr. Laidlow commented on the plaintiff’s complaint of anxiety:

I think there is no question that she has had significant
issues associated with anxiety since the time of the accident and these have
greatly hampered efforts to involve her in activities and in her return to work.
They are showing signs of improvement, but at this point in time still remain
one of the main problems in getting her back involved in her life as it was. I
would recommend a psychiatry assessment be carried out to see if there are any
other options open to her in the management of this particular problem, as it
limits her in her ability to interact in any kind of social sphere and
certainly limits her in her abilities to look at various vocational options.

[emphasis added.]

[87]        
He commented as follows on her functional capacity:

Given the fact that I cannot find any serious mechanical
issues related to the neck or wrists, I do feel that her prognosis should be
good. I do not see that this will be the forerunner of further problems for
her in the future nor do I feel that she is at any greater risk to develop
osteoarthritis then the general population.

Given the fact that she has continued to be symptomatic to
this point, she would seem to be very ill-suited to going back to heavy work,
such as her work at the liquor store. I think she would be capable, at the
very least, of doing some basic yoga-type classes, but as mentioned, one of the
biggest obstacles here is her fear of trying to hold the attention of a class
in a public space, which seems to be related to her issues with anxiety.

I do feel that she is capable of doing office-type work
set up in a good ergonomic position. Again, one of her biggest obstacles
here is that she finds the work for the tax company to be fine because she can
do it with little overall public exposure, whereas a more open office would
challenge her more from an anxiety point of view.

I do not feel that this would stop her from doing office-type
work at a greater level then she is at present, if that were open to her and
available to her.

I do feel that she should be capable of doing the activities
around her home, from a physical point of view, as I do not see any evidence of
abnormalities here that would put her at risk in doing tasks. Naturally, as she
tries to exercise more she can experience some increased discomfort, but this
is quite different from causing her harm. If she involves herself in more and
more tasks I think she will find that she can carry out more and more. She has
certainly found this to be the case already in taking on the job at H & R
Block and this has given her confidence to try more things, whereas before she
was very reluctant.

[emphasis added.]

[88]        
The defence tendered a report dated April 22, 2012, from Dr. Kevin
Solomons, a psychiatrist. After recounting the plaintiff’s history he noted:

It is unclear as to whether or not she sustained a head
injury in this accident. She told me that her forehead was immediately painful
and that she subsequently developed bruising around her eyes. She complained to
the ambulance crew of a “goose egg” on her forehead. It is not clear from the
records whether her complaints of injury to her face or forehead were
corroborated by physical examination. She did not lose consciousness in the
accident, and her Glasgow Scale scores after the accident were all 15 out of
15, indicating normal consciousness.

She did not experience retrograde or post-traumatic amnesia,
and she had a clear and detailed account of the circumstances immediately
preceding and following the accident. She had good recall for the collision as
well. Her account of cognitive symptoms was that they were delayed by several
weeks following the accident. After this initial notation there were two
further references to cognitive symptoms in the subsequent two years of medical
records. No screening or formal neurocognitive testing was done to demonstrate
objective signs of cognitive impairment. She showed no indications of cognitive
difficulties at this assessment. Since the accident she has retrained to do tax
returns and as of early 2011 has worked in this capacity.

It remains unclear whether or not she sustained a head injury
in this accident in that her account of striking her head and having a bruise
and swelling on her forehead and around her eyes was not clearly corroborated
in the medical records.

In the event that she did suffer
a head injury, it is my opinion that she did not sustain a traumatic brain
injury, that she did not develop neurocognitive impairments or disabilities and
that there is no prospect that she will develop neurocognitive impairments or
disabilities in the future as a result of this accident. While it is possible
that she sustained a head injury, my view that this was not accompanied by a
brain injury is based on the fact that she had no loss or alteration of
consciousness, no post-traumatic amnesia and no immediate onset of cognitive or
other post-concussive symptoms. Post-concussive symptoms are non-specific and
may arise in the context of a variety of different circumstances. Unless they
arise in the immediate aftermath of trauma to the head, they cannot be
manifestations of a brain injury.

[89]        
I pause to note that I am satisfied on the evidence of the plaintiff and
of the witnesses who saw her in the immediately aftermath of the accident that
she did strike her head and that she was showing some effect which Ms.
Ratcliffe, for one, described as “shock”.

[90]        
Dr. Solomons was of the view that the psychiatric symptoms the plaintiff
reports were not related to the accident:

The first psychiatric symptoms that arose after the accident
were fear of the dark and of being attacked. These fears have persisted. They
have no causal connection with the motor vehicle accident. Her fear of or
reluctance to socialize even with her friends also has no causal connection
with the motor vehicle accident.

The specific psychiatric complications of a motor vehicle
accident, namely reliving the traumatic event in the form of flashbacks or
nightmares and phobically avoiding circumstances that might trigger such
flashbacks, namely driving, were not reported or documented in the aftermath of
this accident. She did not meet other diagnostic criteria for Post-Traumatic
Stress Disorder, namely experiencing a life or limb threatening event in the
context of intense fear, helplessness or horror. There is no indication in any
of her accounts of the accident either at this assessment or in the available
medical records that she experienced the accident as significantly life
threatening or that she experienced it in a state of intense fear, helplessness
or horror. The accounts of her suffering with PTSD are not corroborated by
reference to clinical characteristics or the requirements for the diagnosis as
set out in the Diagnostic and Statistical Manual 4^th Edition Text
Revision (DSM-IV-TR). The circumstances of the accident are incompatible with
the development of Post-Traumatic Stress Disorder in that it was a relatively
minor accident in which she was able to get out of the motor vehicle on her
own, and it was immediately apparent to her that she had not suffered serious injuries.

While the reports of her fears of the dark, walking her dog
anywhere off her property and socializing with her friends were somewhat
ongoing in her clinical records, it is not clear whether these fears amounted
to a diagnosable psychiatric condition or disorder. In the event that they did,
they were not causally related to the motor vehicle accident. Although there is
some reference to her being depressed, there is no documentation of the
characteristic clinical features of a depressive illness. Her account of her
mood following the accident at this assessment is not compatible with the
diagnosis of a Major Depressive Disorder in that she reported short-lasting
sadness but not a sustained low mood that persisted for two or more weeks. Her
account of other potential depressive symptoms is mild and probably
subsyndromal.

Taking all of these factors into account, it is my opinion
that she did not develop psychiatric complications as a result of this motor
vehicle accident and did not develop a psychiatric disability as a result of
this accident. She did not require psychiatric intervention or treatment as a
result of this accident.

There is no prospect that she will develop psychiatric
complications or disabilities in the future as a result of this accident.

She does appear to have developed unrelated, acute fears
following the accident. These fears are of various things such as being
attacked, walking her dog off her property, being in the dark and socializing
with friends. The only connection between these fears and the accident is the
timing, but there are no causal or other associations between the accident and
these anxieties and fears. She has received counselling for these complaints,
and the records from Dr. Maunula indicate that in certain regards she was
improving and benefitting from counselling, particularly in terms of her
socialization, where she was attending social functions with friends and
co-workers. Given the lack of causal connection between her fears and the
accident, it is likely that these fears would have emerged even had the
accident not occurred.

It is my opinion that there was no loss or work time on
psychiatric or cognitive grounds as a result of the accident.

[emphasis added.]

[91]        
The defence also tendered a report from Dr. Eytan A. David, an
Otolaryngologist, dated March 30, 2012. He addressed the question of the
plaintiff’s hearing and balance complaints. Dr. David said the plaintiff made
the following report to him:

At the IME, P.S. stated that on June 29, 2008 she was the
sole belted driver of a Subaru vehicle, hit in perpendicular fashion onto the
driver’s side. She stated that she was driving straight through an intersection
and another vehicle proceeded to impact her. She recalls details of impact and
describes hitting her head against the steering wheel. She describes injuring
her wrists and thumbs. No airbags deployed. There was no loss of consciousness.
There was no bleeding. She describes being able to exit the vehicle with
assistance and being taken to local emergency room by emergency medical
services with primary complaint of headache; “I had a goosebump on my
forehead”. She describes being discharged home the same day and being
driven to a friend’s home by her son. She describes chief complaints over the
first several days following MVA as generalized aches and pains; “my hands
hurt, headache, neck ache”. She describes poor sleep due to this. She
describes seeing family practitioner who prescribed chiropractic and
physiotherapeutic treatment.

P.S. describes noticing ringing in the ears (tinnitus) “almost
immediately”. She describes “intense” high pitched binaural constant
sensation with no significant change over the first several months. She
describes tinnitus as delaying onset of sleep but not awakening her from sleep.
She describes improvement at twenty-four months post MVA; “it went quieter”.
She describes decrease in sensation of tinnitus between 2010 to the present as
gradually improving with occasional exacerbation. She describes exacerbations
in symptoms of tinnitus in response to loud noises. She describes avoiding loud
noises and describes refraining from live music events due to this. She
describes tinnitus as noticeable in the evenings but tinnitus does not delay
onset of sleep nor awaken her from sleep. Tinnitus does not intrude into her
day-to-day activities. She describes “I have difficulty falling asleep, I
don’t know if it’s due to ringing or discomfort”. She describes no past
history of tinnitus predating MVA. She describes no further tinnitus improvement
or deterioration over the past six months.

P.S. did not volunteer symptom or hearing loss. When prompted
in this regard, she denied symptom of hearing loss; “I don’t think so”.

P.S. described symptom of bilateral ear discomfort (otalgia).
This is subjectively worse on the right, this was noticed within twenty-four to
forty-eight hours of MVA. She had no history of ear drainage (otorrhea). She
describes a fullness and pressure sensation to both ears. This sensation is
described as intermittent. She describes cold wind as exacerbating symptoms of
otalgia.

P.S. describes jaw pain following MVA; “I thought it was
an ear ache”. She describes occasional clicking and grinding of the jaw
joint, worse on right. There have been no episodes of locking of the jaws in
the open position. Day-to-day effects of temporomandibular (TMJ) symptoms
include I don’t eat hard food or stuff I need to chew long”.

P.S. did not volunteer symptom of imbalance. When prompted in
this regard, she replied in the negative; I don’t’ think so”. She
described “I hurt my ankle in the accident so I have problems standing on my
right foot”. She has no day-to-day concerns regarding balance.

P.S. describes opening her jaw and yawning as relieving
symptoms of otalgia and ear fullness. She describes improvement in otalgia and
TMJ discomfort with acupuncture and massage to the area.

She denies past ear or hearing
(otologic) history. She has never sustained injury to her head prior to MVA.
She is not currently on any medication and has no known drug allergies. She
smokes four cigarettes per day. She describes less than one glass of wine per
day and less than one cup of coffee per day.

[92]        
Dr. David’s “Impressions” were as follows:

Impressions:

Mechanism of injury, onset and progression of symptoms,
and medical documentation of symptoms over time is not suggestive of post
traumatic inner ear dysfunction. P.S. describes perpendicular impact to her
vehicle and contusion to her forehead with no loss of consciousness and no
alteration in memory. She was assessed at the scene by EMS and then by local
emergency room physician with no documented complaint of tinnitus or imbalance.
She was seen within days by family practitioner with no documented complaint of
tinnitus or imbalance. First documented complain of tinnitus occurs six months
following MVA in family physician hand written note December 22, 2008. There is
inconsistent documentation thereafter of complaints of tinnitus and otalgia
with notation that tinnitus improved over time. There is no medical documentation
of complaint of imbalance.

Post traumatic inner ear injury typically manifests
immediately or soon after injury with rapid onset, severe and often
debilitating symptoms of hearing loss, tinnitus and/or imbalance. P.S. denies
history of hearing loss. Tinnitus within the context of traumatic etiology is
most commonly a manifestation of inner ear damage induced by the trauma. The
absence of symptoms of hearing loss and imbalance suggest that the MVA did not
incur an injury to the inner ear hearing or balance mechanism. The symptom of
tinnitus in isolation, of delayed onset in medical documentation, is not
typical for post traumatic inner ear injury. P.S. was seen by an
Otolaryngologist with primary complaint of tinnitus. History of present illness
contained in that report documents no complaint of vertigo. Consultation
documents normal physical examination and audiometric examination supported by
additional outside audiometric testing (Island Hearing). This constellation of
symptoms, physical and objective examination is not suggestive of post
traumatic tinnitus. Tinnitus induced by trauma is usually secondary to inner
ear injury. There is insufficient medical evidence to suggest inner ear injury
characterized by onset and progression of symptoms, physical and objective
examinations over time.

There is complaint of TMJ dysfunction manifest as jaw pain.
P.S. describes otalgia and sensation of aural fullness. She describes
improvement in these symptoms during acupuncture and soft tissue massage to the
area. This is suggestive of primary complaint of referred otalgia. This is ear
pain that is referred from an adjacent anatomic structure such as the
temporamandibular joint. The temporamandibular joint forms the anterior wall of
the external auditory canal, and injury trauma, or inflammation to the area can
be manifest as symptoms of ear disease such as ear pain, ear fullness and
tinnitus. There is dental documentation that symptoms improved with dental
therapy which may have included a night time bit guard. There is notation of
frequent clenching of the jaws (bruxism) in medical documentation which can
coexist or give rise to TMJ dysfunction. History, symptoms and medical
documentation are suggestive of a component of post traumatic TMJ dysfunction
with referred otologic symptoms including otalgia and tinnitus. The medical
evidence is not suggestive of a primary otologic cause for these symptoms.

There is documentation of post VMA diagnosis of depression
and post traumatic stress disorder. There is documentation of anxiety and
fatigue in the post MVA period. Mood, anxiety and fatigue are major variables
in tinnitus onset, duration and severity. Some amount of tinnitus should be
considered normal. The variables of fatigue, anxiety and decreased mood can
directly influence tinnitus perception. The role of the MVA in establishing,
inciting or prolonging symptoms of fatigue, anxiety and decreased mood would be
appropriately addressed by experts in these fields.

Conclusions

1.         Insufficient medical evidence of post MVA
inner ear dysfunction causing tinnitus.

2.         Medical documentation of post MVA anxiety,
fatigue and decreased mood which can incite, prolong or aggravate tinnitus.

3.         Post MVA symptomatology suggestive of TMJ
dysfunction.

4.         Referred otalgia and tinnitus due to TMJ
dysfunction.

In Summary

There is no medical evidence of discreet inner ear injury
due to MVA. Onset and documentation of symptoms, progression of symptoms over
time is not suggestive of post traumatic inner ear disorder. Clinical and
objective examinations in medical documentation are not suggestive of post
traumatic inner ear disorder. Clinical and objective examination at IME today
is not suggestive of post traumatic inner ear dysfunction. This is medical
documentation suggestive of post MVA anxiety, fatigue and mood disorders which
can incite, aggravate, or prolong symptoms of tinnitus. There is post MVA
suggestion of TMJ dysfunction, evaluation by specialist in the field of TMJ
dysfunction would be appropriate. TMJ dysfunction can be associated with
symptoms of ear fullness and tinnitus.

[emphasis added.]

XII

[93]        
What the court is left with is the problem of fairly assessing the
evidence to arrive at the probable relationship between the motor vehicle
accident of June 29, 2008, as the cause, and a multitude of complaints the
plaintiff submits are the effects of the accident. The question is complicated
somewhat by a relevant past history of injury as well as of some unusual
lifestyle factors, and of some, albeit limited, evidence of pre accident emotional
fragility.

[94]        
The problem is further complicated by questions about which of the
plaintiff’s post-accident complaints are attributable to the accident at
all, or only in part. Some of these questions are determinable on the
medical evidence. The seriousness and extent of the injuries found to be
attributable to the accident is not entirely obvious, since there is
controversy as to the efficacy of the therapies that have been employed to
date.

[95]        
In summarizing the case, although I have quoted extensively from the
various reports, I have not attempted to be exhaustive, or to include every
witness who testified or every report submitted. I have attempted to
demonstrate enough of the material as is necessary to show the basis for the conclusions
I have reached.

[96]        
There are two issues I think can be dealt with briefly. Based on the
evidence tendered by the defence, which I prefer in this respect, I accept that
the plaintiff does not suffer from post-traumatic stress disorder, which
properly arises in the context of near death experiences, and is not a proper
description of the plaintiff’s more generalized anxiety.

[97]        
I also accept that although the plaintiff has at various times suggested
that she suffered from ear complaints from the outset, the record is against that
inference. I recognize that there are circumstances, particularly involving
multiple injuries where an omission of one symptom in the early going might not
be of particular moment, but in the present case the temporal connection is
very remote and strongly suggests that the accident cannot be considered the
cause of those symptoms.

[98]        
There is no question that the plaintiff was physically injured. There
was visible proof of the injuries to the plaintiff’s head and given the
plaintiff’s past history of ongoing neck and back pain, it would be very
surprising if those problems were not exacerbated in the aftermath of the
accident. I accept the plaintiff’s evidence and that of the lay witnesses,
particularly Ms. Ratcliffe, that the plaintiff was in a condition like shock
after the accident occurred. Contrary to Dr. Solomons’ observation, I think it
clear that the plaintiff suffered a head injury in the accident.

XIII

[99]        
The accident occurred at a complex juncture in the plaintiff’s life. She
had, by investing in a small parcel of land, and by means of a frugal and
self-sufficient way of life, managed to raise her two sons on the money she was
receiving from the boys’ father for child support, supplemented by occasional
earnings of her own. She had managed, however, to live for many years without
regular full or part time employment until the year before the accident, when
she had taken the Liquor Store job. It seems clear that taking this job had
been precipitated by the fact that as the plaintiff’s sons reached the age of
19, respectively, the child support was going to end and something would have
to be done.

[100]     It is not
particularly surprising given the plaintiff’s history of chronic neck and back
problems, that she suffered an injury while doing the heavier aspects of the
Liquor Store job. I do not consider the plaintiff’s past medical history to be
irrelevant to her prospects in this case. The plaintiff has suggested that her
attendances were for “maintenance” rather than for specific injuries, but I
think there is strong documentary evidence to suggest that the plaintiff was
periodically bothered by neck and back pain that stress on that area could
exacerbate. This would suggest that some impairment of her ability to work in heavier
physical occupations was already manifest.

[101]     Given the
plaintiff’s background, it is also not particularly surprising that the
plaintiff found the work she was doing at H&R Block difficult. She had been
out of the traditional workforce for a long time, living independently and
moving at her own pace. Ms. Valk’s principal concern with the plaintiff’s work
was that she was slow and unable to produce the expected amount of work in the
time available. Given the rather extensive evidence I have heard on the
plaintiff’s way of life, I would not suggest that she was not industrious –
quite the contrary – but she had lived for a long time without marching to
anyone else’s tune. I do not think her difficulty in the circumstances in
adjusting to a time-sensitive working environment should be considered unusual.

XIV

[102]    
Turning to the evidence, post-accident, the plaintiff’s description of
the effects of her injuries is, in some ways, difficult to square with what is
known of the accident, and what the medical evidence suggests. While it is
important, always, to note that there is not necessarily a direct connection
between the seriousness of the motor vehicle accident and the seriousness of
the harm, and that each case depends on its facts, the admonition of McEachern
C.J.S.C. (as he then was) in Price v. Kostryba (1982), 70 B.C.L.R. 397
must also be considered:

1 The assessment of damages [in a moderate or
moderately severe whiplash injury] is always difficult because plaintiffs, as
in this case, are usually genuine, decent people who honestly try to be as
objective and as factual as they can. Unfortunately, every injured person has a
different understanding of his own complaints and injuries, and it falls to
judges to translate injuries to damages.

2 In this endeavour, we attempt to apply legal
principles; otherwise every damage award would stand alone in isolation from
other cases, depending largely upon how each individual plaintiff reacts and
responds to his injuries and how he or she describes them. This question was
discussed in Andrews v. Grand & Toy Alta. Ltd., [1978] 2 S.C.R. 229 at
243-44, where Dickson J., speaking for the court, said:

The focus should be on the injuries of the innocent party.
Fairness to the other party is achieved by assuring that the claims raised
against him are legitimate and justifiable.

[103]     The Chief
Justice was speaking of cases where the severity of injury is largely a matter
of assessing subjective complaints. In the present case there were some
objective injuries, but the assessment of damages depends considerably on what
the court makes of the testimony of the plaintiff and the friends,
acquaintances and family members who testified.

[104]     I do not
hesitate to say that they all struck me as genuine, decent people as did the
plaintiff. I think the plaintiff’s understanding of [her] own complaints
reflects a degree of physical awareness that is not surprising in a yoga
instructor, and that it seems likely that the plaintiff’s paradigm of good
health is rather refined. To the extent the plaintiff’s chiropractic attendances
were for “maintenance”, this would tend to be confirmed. I do not think she is
particularly fragile, but it seems clear that her perception of pain is acute.
Her evidence was replete with examples of small tasks she considered impossible
after the accident.

[105]     It is
clear that the plaintiff has a number of loyal friends who admire her spirit
and her ability to make a life for herself and her sons out of the means
available. I accept the changes they saw in the plaintiff and, for the most
part, their observations of the plaintiff’s difficulties after the accident. As
each gave his or her evidence there was no hint of skepticism or doubt on their
part that the plaintiff’s complaints were genuine, particularly in the early
going.

[106]     While the
before-and-after witnesses clearly like the plaintiff they did not appear to be
over-doing their support, or to have become advocates beyond what is to be
expected in the circumstances. To the extent that this was apparent I have
taken it into account. They have helped satisfy me that the plaintiff was more
injured than might ordinarily have been expected, given the nature of the
accident.

[107]     Respecting
the plaintiff’s future prospects, I accept the evidence of Dr. Laidlow. I think
the plaintiff has been surrounded by solicitous friends and therapists and has
taken a great many passive treatments that may not have been in her best
interests. I think, in the plaintiff’s particular economic circumstances, this
case and its potential consequences has loomed over the plaintiff for far too
long, and that an end to these proceedings may be somewhat liberating to her.

XV

[108]    
The plaintiff submits that her pain and suffering including her mood
disorder and cognitive dysfunction is unlikely to improve and that general damages
should be assessed at $150,000. The plaintiff relies particularly on Stapley
v. Hejslet, 2006 BCCA 34 at paras. 45-46 where the court said the
following:

45 Before embarking on that task, I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following
passage from Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in
considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s loss
is the key and the "need for solace will not necessarily correlate with
the seriousness of the injury" (Cooper-Stephenson and Saunders,
Personal Injury Damages in Canada (1981), at p. 373). In dealing with an award
of this nature it will be impossible to develop a "tariff". An
award will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).  [emphasis added.]

46 The inexhaustive list of common factors cited in
Boyd that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No.
163, 2005 BCCA 54).

[109]     The
plaintiff then cited a number of cases as examples of relevant damage
assessments. I have reviewed them, although I do not find it necessary to
discuss them in detail. They include: Marois v. Pelech, 2007 BCSC 1969; Felix
v. Hearne, 2011 BCSC 1236; Chowdhry v. Burnaby (City of) 2008 BCSC
1337; Zawadzki v. Calimoso 2011 BCSC 45; Eccleston v. Dresen,
2009 BCSC 332; Lawin v. Jones (May 12, 1993) New Westminster Registry
No. C903596 (BCSC); Murphy v. Jagerhofer 2009 BCSC 335; Foran v.
Nguyen, 2006 BCSC 605; and Quinlan v. Quaiscer, 2009 BCSC 1288.

[110]     The
plaintiff’s submission is that she continues to suffer wrist pain, neck pain
and headaches, jaw pain and ringing in the ears. She submits that she has
suffered psychological damages, including anxiety, depression and social
withdrawal. She submits that she has lost her career as a yoga instructor, and
the “financial stability” of the Liquor Store job.

[111]    
The plaintiff submits that she requires ongoing treatment. She
calculates this as follows:

88.       With respect to the likelihood of the plaintiff
actually incurring these costs of future care, it is submitted that the
plaintiff has demonstrated a pro-active approach to seeking treatment in the
past.

89.       Looking at the schedule of special damages, the
plaintiff has spent approximately $6,000.00 per year on treatment, medication
and gym passes over the past 4 ½ years.

90.       Although the expert evidence suggests that
treatment is not likely to return the plaintiff to her pre-accident condition,
we submit it will be reasonably necessary to preserve and promote the
plaintiff’s mental and physical health.

91.       Taking the above amounts into consideration along
with contingencies for the vicissitudes of life, the plaintiff seeks $15,000.00
for the cost of a pain clinic and an additional $2,500.00 per year for
treatment and medication over the next 20 years.

92.       Using the 3.5% rate of interest as stipulated by
Practice Direction PD-7 Discount Rate Pursuant to the Law and Equity Act,
the present value multiplier for 20 years is 14.2124.

93.       Using this multiplier for a loss of $2,500 per year
equates to $35,531.00, plus $15,000.00 for the pain clinic equals $50,531.00.

94.       It is submitted that an assessment of $50,000.00
would be appropriate for an award of damages for cost of future care.

[from the plaintiff’s submission]

[112]    
The plaintiff submits that she will need an allowance for past and
future housekeeping expenses. The past loss claim is advanced, despite the fact
that the assistance the plaintiff has received was given gratuitously by
friends, on the theory articulated in Campbell v. Banman, 2009 BCCA 484,
at para. 13:

This Court addressed the issue of loss of housekeeping
capacity again in McTavish v. MacGillvray 2000 BCCA 1645, 74 B.C.L.R.
(3d) 281. In McTavish the trial judge had awarded $20,000 for past loss
of housekeeping capacity and $43,170 for future loss of housekeeping capacity,
sums arrived at by reference to the cost of replacement services for 10 hours
each week until age 60, at an hourly cost of $10 an hour. This Court dismissed
the appeal, finding there was evidence family members replaced the housework
Ms. McTavish formerly had performed, and she was not required to prove she
would hire someone to perform the duties in order to be fully compensated for
the loss of her ability to perform the tasks herself. In the majority reasons
for judgment I observed as to Kroeker:

[73]      This Court in Kroeker v. Jansen (1995), 123
D.L.R. (4^th) 652; (1995) 4 B.C.L.R. (3d) 178; [1995] 6 W.W.R. 5
(C.A.) recognized that damages for past and future loss of housekeeping
capacity may be awarded by a trial judge, even though housekeeping services
were gratuitously replaced by a family member. Further, it recognized that,
depending on the facts, this compensation may be by pecuniary or non-pecuniary
damages, and if non-pecuniary, that there was no reason these damages could not
be segregated.

[from the plaintiff’s submission]

[113]    
She submits that $15 per hour (as used in Campbell) is
reasonable. Her calculation is as follows:

107.     The plaintiff claims $15/hour on the authority of Campbell.
This equates to a calculation of $14,040.00 for past loss.

108.     With respect to future loss, this equates to
$2,340.00 per year. The present value multiplier for 3.5% interest rate over 15
years is 11.5174. This equates to a calculation of $26,950.72.

109.     It is submitted that a fair assessment of loss under
these heads of damage is $12,500.00 and $25,000.00 respectively.

[from the plaintiff’s submission]

[114]     The
plaintiff submits that she has suffered a past wage loss. She earned $10,500 at
the Liquor Administration Branch in 2008 and $1,681 in the same period of time
for yoga instructions. In 2007 she had earned about $3,000. Comparing her
earnings at the Liquor Administration Branch to those of Charlene Dumont, the
plaintiff submits that she would have earned $13,000 in 2008, and a little less
than $30,000 per year through 2012, for a total of $127,000. From this the
plaintiff deducts the $26,500 she made at H&R Block, for a rounded claim of
$100,000.

[115]    
The plaintiff claims future loss of earning capacity assuming she would
attain full time status and earn $43,000 as Anne Mackie testified she did. The
plaintiff submits that she has a residual earning capacity of about $10,000 per
year, which must be deducted from her future loss. This is calculated as
follows:

154.     In summary, the plaintiff submits she would have
been earning $30,000.00 increasing to $40,000.00 gross per year.

155.     Factoring in a residual earning capacity of
$10,000.00 per year, this equates to a future loss of earnings of $20,000.00
increasing to $30,000.00.

156.     Using the present value interest rate of 2.5% for
loss of future earnings, the multiplier for 14 years is 11.6909. With a loss of
$20,000.00 per year this equates to a total present value loss of $233,818.00.
With a loss of $30,000.00 per year this equates to a total present value loss
of $350,727.00

157.     It is submitted that further positive contingencies
to be considered by the Court include Ms. Stephenson’s loss of pension and
benefits with her liquor store job, as well as the likelihood that her yoga
instruction practice would have continued to grow in clientele, obviously
limited to a point by her work commitments at the liquor store.

158.     After assessing these contingencies, the plaintiff seeks
$300,000.00 for loss of future earning capacity.

[from the plaintiff’s submission]

[116]    
The plaintiff claims special damages of $27,655.26. She summarized her
total claim as follows:

Non-pecuniary damages                              $150,000.00

Special damages                                           $27,655.26

Cost of future care                                         $50,000.00

Loss of past housekeeping capacity              $12,500.00

Loss of future housekeeping capacity            $25,000.00

Past wage loss                                             $100,000.00

Future loss of capacity $300,000.00

TOTAL:                                                        $655,155.26

XVI

[117]     The
defendant submits that the range of general damages is between $45,000 and
$70,000. In arriving at this range the defence has asked the court to consider Miller
v. Fraumeni, 2005 BCSC 1231; Prempeh v. Boisvert, 2012 BCSC 304, Wernicke
v. Logan 2007 BCSC 1899; and Cimino v. Kwit, 2009 BCSC 912.

[118]    
The defendant accepts the witness Charlene Dumont as a reasonable guide
to what the plaintiff might have made had she remained at the Liquor Store
between the date of the accident and the end of 2012. Their calculation is as
follows:

37.       Ms. Dumont provided documentation from the Liquor
Distribution Branch that indicated that she earned a net pay of $18,022 in
2008; $20,543.72 in 2009; $17,223.22 in 2010; $20,784.93 in 2011; and, $22,000
in 2012. This is a total of $83,072 since 2008.

38.       The plaintiff worked a partial year in 2008 and her
tax records indicate an income of $12,321 in 2008. The records from H&R
Block indicate that the plaintiff earned an income of $10,839.66 in 2011 and
$15,777.58 in 2012.

39.       The difference between Ms. Dumont’s income in the
period from 2008 to 2012 is $44,000.

40.       It is important to bear in mind that, unlike Ms.
Dumont, the Plaintiff has a history of back pain and suffered an on the job
back injury after only a year on the job. The plaintiff expressed concern in April
2008 before the accident about the prospect of returning to full time and full
duties at work. Ms. Dumont observed the plaintiff to be slow and in pain on the
job.

41.       Taking into account these factors it is submitted
that a reasonable award for past wage loss is between $40,000 and $44,000.

[from the defendant’s submission]

[119]    
The defendant submits that the range for future care $2,500 – $15,000 on
the following basis:

54.       Dr. Laidlow was again clear in this evidence that
the passive modalities of treatment which the plaintiff has been using have
been ineffective and are actually a reason for the plaintiff’s ongoing
difficulties because they reinforce the plaintiff’s disability in her mind and
discourage her from following an active treatment regime, such as the community
based exercise program that he recommends as the optimal approach for the
resolution of the plaintiff’s medical situation.

55.       Even without the benefit of the recommended
community based exercise program, Dr. Laidlow was of the opinion that there was
little physically wrong with the plaintiff and that she was capable of regular
household duties as well as medium level work, being capable of occasional
lifting of 40 pounds.

56.       Dr. Laidlow is of the opinion that as the plaintiff
becomes more functional, that she will become more confident and her anxiety
issues will subside. Engaging in the community based exercise program as
recommended would likely obviate the need for extensive psychological
treatments or interventions. Moreover, the medical evidence does not support a
finding of PTSD in the plaintiff and Dr. Solomons is of the opinion that the
anxiety exhibited by the plaintiff is unconnected as it involves fears for
things that are completely unconnected to the circumstances of the accident.

57.       It is submitted that an award of between $2,500 to
$15,000 would be appropriate under this head. The lower end to cover the costs
associated with a community based exercise program. The higher end of the range
intended to include the costs, discounted for the reduced likelihood of having
such expenses as a result of expected improvements from following the suggested
community exercise program, of any assistance the plaintiff may need with
heavier work around her home or to address whatever psychological problems the
court finds are associated with the accident.

[from the defendant’s submission]

[120]    
The defendant submits that ongoing treatment, housekeeping expenses,
loss of income earning capacity should be assessed at between $30,000 and
$60,000 The defendant submits that the legal basis for such an award is
articulated in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158 at
paras. 8-10, per Huddart J.A.:

An award for loss of earning capacity is based on the
recognition that a plaintiff’s capacity to earn income is an asset which has
been taken away: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC),
[1978] 2 S.C.R. 229; Parypa v. Wickware 1999 BCCA 88 (CanLII), (1999), 65
B.C.L.R. (3d) 155 (C.A.) Where a plaintiff’s permanent injury limits him in his
capacity to perform certain activities and consequently impairs his income
earning capacity, he is entitled to compensation. What is being compensated is
not lost projected future earnings but the loss or impairment of earning
capacity as a capital asset. In some cases, projections from past earnings may
be a useful factor to consider in valuing the loss but past earnings are not
the only factor to consider.

Because damage awards are made
as lump sums, an award for loss of future earning capacity must deal to some
extent with the unknowable. The standard of proof to be applied when evaluating
hypothetical events that may affect an award is simple probability, not the
balance of probabilities: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R.
458. Possibilities and probabilities, chances, opportunities, and risks must
all be considered, so long as they are real and substantial possibility and not
mere speculation. These possibilities are to be given weight according to the
percentage chance they would have happened or will happen.

[121]    
The defendant notes the plaintiff’s sparse work history and the fact
that she was not focussed on making money while she had the child support
payments coming in as factors to be considered. The defendant notes, as well
that the plaintiff’s first foray into the working world, the Liquor Store job,
resulted in an extended period off work due to an on the job injury only months
after it had begun on a limited part-time basis. The defence further submits:

47.       In Dufault v. Kathed Holdings Ltd. et. al., 2007 BCSC
186, in circumstances where a 35 year old female plaintiff similar to the
instant plaintiff in that she too had been sporadically employed and content to
get by on minimal income had been injured and was subsequently restricted to
light employment, she was awarded $100,000 for future earning capacity.

48.       The plaintiff in this case is much older than the
plaintiff in Dufault and her remaining working life is much shorter. The
vocational expert evidence was that the plaintiff retains a residual employability
and has open to her jobs in customer service, such as bank teller, insurance
sales, payroll clerk and car rental customer clerk on a part time basis. The
evidence was also that statistics Canada information indicated that part time
salaries in these occupations would be roughly equivalent to the plaintiff’s
historical income pattern.

49.       Furthermore, while employment for life used to be a
given, such is no longer certain and the vagaries of business must be
considered in assessing what the future holds for the plaintiff. Also, as the
plaintiff, already 51, with a history of back complaints and one on the job
back injury in her first year of work, would be less likely to continue with a
job which entailed heavy lifting to the end of her working life.

50.       Given the plaintiff is older than the plaintiff in
Dufault, and remains capable of work that would provide her with an income at a
similar lever to that which she had prior to the accident and given the
plaintiff’s duty to work and mitigate her losses, it is submitted that the
$100,000 award would represent the top-dollar figure for the plaintiff in this
case. An award of between $30,000 and $60,000, representing approximately one
to two years’ salary for the plaintiff working at the liquor store and as a yoga
instructor would be fair compensation for this head of damage.

[from the defendant’s
submission]

[122]    
The defence lastly submits that the special damages submitted by the
plaintiff at $27,655.26 should be reduced to between $20,000 and $24,000 to
reflect Dr. Laidlow’s view that some of these expenditures were for therapies
of dubious value. The defendant’s over-all assessment is:

General Damages:                 $45,000
– $70,000

Past Income Loss:                 $40,000
– $44,000

Loss of Capacity:                   $30,000
– $60,000

Cost of Future Care:                $2,500
– $15,000

Special Damages $20,000
– $24,000

 $137,000
-$213,000

XVII

[123]    
In assessing the plaintiff’s claims I accept the observations in Butler
v. Blaylock, [1983] B.C.J. No. 1490 (B.C.C.A.) at para.13:

13 There are three basic
reasons which, in my view, support the conclusion that the plaintiff continued
to suffer pain as of the date of trial. Firstly, the plaintiff testified that
he continued to suffer pain. His wife corroborated this evidence. The learned
trial judge accepted this evidence but held that there was no objective
evidence of continuing injury. It is not the law that if a plaintiff cannot
show objective evidence of continuing injury that he cannot recover. If the
pain suffered by the plaintiff is real and continuing and resulted from the
injuries suffered in the accident, the plaintiff is entitled to recover
damages. There is no suggestion in this case that the pain suffered by the
plaintiff did not result from the accident. I would add that a plaintiff is
entitled to be compensated for pain, even though the pain results in part from
the plaintiff’s emotional or psychological makeup and does not result directly
from objective symptoms.  [emphasis added.]

[124]    
The plaintiff has suffered and continues to suffer from pain for which
there is very little objective evidence. I think a considerable part of the
pain results from the plaintiff’s emotional or psychological make-up. I think
it is evident from her pain behaviour related to the Liquor Store injury that
the plaintiff would not be particularly eager to work if she could attain a
modest income stream (such as she had when she was receiving child support),
that would permit her to stay on her property and carry on as before. I think a
good part of the plaintiff’s anxiety relates to the insecurity that has
accompanied the cessation of the child support and the fact that an alternative
source of income needed to be found.

[125]     By reason
of her past chronic neck and back condition, I do not think the plaintiff was,
in any event – that is before the accident – a likely candidate for full
time occasionally heavy work, such as the work at the Liquor Store.
Concomitantly, I do not think the plaintiff was likely to thrive in a
time-pressured work environment, after so long out of the workforce living at
her own measured pace. I am sure that before the accident the plaintiff was
capable of periods of significant labour (canning, for example) but there is a
difference between self-imposed labours and those dictated externally. I think
the plaintiff had been so long away from the latter that she was not, in any
case, well adapted to the kind of work she tried to do at H&R Block. I
accept that the injuries she suffered in the accident have further diminished
her income earning capacity, but to a modest degree.

[126]     I accept
that the plaintiff was injured in the motor vehicle accident to a degree that
is unusual, but that is compensable on the basis that she was rather vulnerable
emotionally and psychologically in the sense referred to in Butler v.
Blaylock.

[127]     In
arriving at a reasonable assessment of the plaintiff’s damages I have
considered the evidence of the several witnesses who observed the plaintiff,
and whose evidence, properly discounted for sympathy, bespeak serious effects
arising out of the accident. I have considered the cases submitted by the
parties, although I do not consider it useful to cite them more particularly
than I have. I assess the plaintiff’s damages for pain and suffering and loss
of enjoyment of life at $80,000.

[128]     I think it
doubtful that the plaintiff would have worked for the Liquor Store on the pace
exemplified by Ms. Dumont. The injuries she suffered in the accident did, for a
time, prevent the plaintiff from working at that, or comparably paid employment.
Although I do not arrive at the figure in quite the way the defendant does, I
accept that a post income loss of $40,000 is reasonable and I allow that amount.

[129]     I think
the plaintiff’s future income earning capacity was already limited before the
accident due to her chronic pain condition. The Liquor Store episode is
illustrative. I think for practical purposes the plaintiff’s range of options
was limited to the sorts of less demanding work identified by the Functional
Capacity evaluators. The injuries sustained in the accident obviously did not
improve the plaintiff’s prospects. I think, however, that the end to these
proceedings, and the anxiety attendant in them, together with a more active
therapeutic regime, as recommended by Dr. Laidlow will limit the extent to
which the injuries suffered in the accident have an effect on the plaintiff’s
future earning capacity, viewed as a capital asset. On the basis that there is
some limitation and perhaps some further vulnerability to re-injury that will
foreclose a fraction of the employment options open to the plaintiff in the
future, I fix loss of future income earning capacity at $80,000.

[130]     I agree
with Dr. Laidlow that the plaintiff ought to try more active therapies, since
it does not appear that those she has so far pursued have done her much good.
In this respect the evidence is of the paradoxical kind not infrequent in this
kind of case. The plaintiff appears to be ever-improving but never resolving.
On the basis that I accept that the plaintiff’s past expenditures on therapies
were undertaken in good faith, I accept the special damages as presented
without the discount proposed by the defendant.

[131]     I do not
think the plaintiff will require treatment for the next 20 years as submitted
by the plaintiff. I think the costs of the pain clinic together with a modest
allowance for other incidental expenses, including housekeeping, past and
future, will suffice. I allow $30,000 under these heads of damage.

XVIII

Summary

[132]    
The plaintiff is entitled to the following damages:

1. General damages:                         $80,000.00

2. Special damages:                          $27,655.56

3. Past income loss:                           $40,000.00

4. Future income loss:                        $80,000.00

5. Cost of future care: $30,000.00

 $257,655.56

[133]    
The plaintiff is entitled to costs, unless there are circumstances that
counsel wish to speak to.

“The Honourable Mr. Justice McEwan”