IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131203

Docket: M131463

Registry:
New Westminster

Between:

Frederic
Ntibarimungu

Plaintiff

And

Insurance
Corporation of British Columbia

Defendant

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

Introduction

[1]            
The plaintiff sustained injuries in a motor-vehicle accident on December
23, 2007 and reported the claim to the defendant, Insurance Corporation of
British Columbia (“ICBC”). Initially, as a result of his injuries, he received
medical rehabilitation and disability benefits under part 7 of the Insurance
(Vehicle) Act and Regulations.

[2]            
Part 7 of the Insurance (Vehicle) Regulation provides in s. 80(1):

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

[3]            
Total disability entitles one to medical and other benefits including
wages up to $300 per week.

[4]            
Essential then to the plaintiff’s case is proof of “total disability”.

[5]            
As Esson J.A. noted in Halbauer v. Insurance Corp. of British
Columbia, (2002), 96 B.C.L.R. (3d) 297, the insured has the onus of making
a prima facie case that he is disabled, and to have payments continue,
establish benefits have been paid and that he continues to be disabled from his
pre-accident employment and occupation. Thus the medical experts must direct
their minds to the specifics of the plaintiff’s work to show an understanding
of the general requirements of the plaintiff’s job and then opine as to the
physical requirements of the job and whether or not as a result of the injuries
sustained in the motor-vehicle accident, the plaintiff cannot do his job.

[6]            
The focus therefore must be on the medical evidence tendered by the
plaintiff’s doctors: see Romilly J. in Bennison v. Insurance Corp. of
British Columbia, 2005 BCSC 1503.

[7]            
 The sequence of the witnesses in these Reasons does not reflect the
sequence at trial as the parties accommodated the witnesses’ availability.

The plaintiff’s evidence

[8]            
Mr. Ntibarimungu (hereafter “the plaintiff”) was his own counsel.
He is an educated man claiming qualifications in accounting, payroll management
and employee relations. He came from Burundi and initially lived in Toronto and
then moved to Vancouver. He is married with five children. In April 2006, he
was designated as a certified payroll manager by the Canadian Payroll
Association. He has a certificate dated December 31, 2004 from Fanshawe College
in London, Ontario as a certified human resources manager.

[9]            
The plaintiff at the time of trial was age 45. He had graduated from the
University of Burundi in Economics and Administration and said his
qualifications were accepted in Toronto. As well as his qualifications as a
human resources manager and as a payroll manager, he had lectured at Vancouver
Community College as a payroll management instructor.

[10]        
In 2007, he obtained qualifications to sell life insurance and passed
the Insurance Council of British Columbia provincial examination and obtained a
license.

[11]        
He said he had been diagnosed with Hepatitis C in 2004 in London,
Ontario but save medication for a blood virus he had little treatment. He moved
with his family to Vancouver in 2005.

[12]        
In 2006, he went to a Richmond clinic to get treatment and was put on
medications which continued and the virus was cleared-up a year before the car
accident of December 2007. He said in 2007 he was in good health.

[13]        
He was married with five boys, age 21 to age 6 and at the time of the
accident, it appears he was separated with the eldest child in his care.

[14]        
His tax return for the year 2007 shows his marital status as separated.
His net income for the year is stated as $5,572.00 and this is made-up of T-4
earnings $20,852; employment insurance benefits $6,311; other income $100;
gross professional income $481 but net professional income of minus $24,172;
social assistance payments of $2481and non-capital losses of $21,906.

[15]        
He had employment with the Career Development Institute from October 10,
2006 to February 9, 2007. His record of employment notes occupation as
instructor-accounting and business.

[16]        
He obtained employment with Vancouver Career College from February
through May 2007 and then from September to December 2007.

[17]        
He obtained employment insurance benefits from May through September
2007.

[18]        
He said he was in good health but for two years thereafter he was
indigent and not dieting or exercising as ICBC prevented him from exercising as
recommended by his doctors, and then he developed diabetes and became
depressed. He said he was still on medications and without benefits save those
granted by the government. He said the diabetes was due to the poor care of the
defendant.

[19]        
The plaintiff said that he taught at the two schools, and sold life
insurance.

The accident December 23, 2007

[20]        
The plaintiff said his eldest son was working at an all-night gas
station and the plaintiff had moved from Richmond to Surrey.

[21]        
Late at night on December 23, 2007, he drove to pick-up his son who was
finishing his shift at the gas station.

[22]        
He drove north on 144th Street which intersects with the Fraser Highway.
He said he was on the Fraser Highway when the defendant Smith’s vehicle tried
to pass him and hit his rear bumper pushing the plaintiff’s van into the ditch.
As the plaintiff noted, it is a park area and it was a large ditch on a dark
and rainy night.

[23]        
The plaintiff exited his vehicle and sat on the side of the ditch in the
bush. He said an ambulance came and took him to the hospital.

[24]        
He said a police officer attended. Hospital personnel took a chest x-ray
and prescribed medications and he went home.

[25]        
He said he had difficulty sleeping due to pain in his back, chest, right
arm and left leg.

[26]        
On December 28, he went to see his family doctor, Dr. Cimolai who
examined him and referred him for physiotherapy treatments.

[27]        
He subsequently went to physiotherapy treatments in Newton but by mid-year
there were differences with the defendant insurer and his treatments were
ended.

[28]        
Dr. Cimolai was the plaintiff’s family doctor and his report dated
February 18, 2011 became Ex. 1. The report conformed the requirements of the
Supreme Court Rules

[29]        
Exhibit 2 was a letter dated March 1, 2011 from Dr. Yoshida regarding
the plaintiff’s chronic hepatitis C. Exhibit 3 was a letter dated 10 March 2011
from Dr. Anderson regarding the plaintiff’s hepatitis C. Exhibit 4 was a
letter from Dr. Nagaria dated March 14, 2011 regarding management of the
plaintiff’s diabetes. While the three letters did not conform to the Rule
requirements for admission, they were admitted as business records in order to
assist the plaintiff.

[30]        
The plaintiff said he had difficulties with his left wrist. As well, he
had problems with his neck and shoulder which required injections. With respect
to his back, he said Dr. Dhawan “froze my back but I suffer all the time”.

[31]        
The plaintiff said he continues to have neck, back & shoulder pain.

[32]        
He said he continued to go to physiotherapy and he went to a community
centre but he said he was not able to do some of the exercises and took hot
baths. As well, he saw a chiropractor.

[33]        
The plaintiff advised the Court he was now on a government disability
plan. He saw a chiropractor for treatments but the chiropractor, after
communication with the insurer in March 2010 was advised the defendant would
not pay for the treatments.

[34]        
The plaintiff then referred to a large number of documents most of which
were not admissible but at least provided reference points for his evidence.

[35]        
The plaintiff made reference to Dr. Cimolai’s report, which is
largely a repetition of the doctors clinical notes and I have included them in
the doctor’s evidence at paras.143-158.

[36]        
As the plaintiff then went through various other records which were not
admissible for various legal reasons, I observed he had no difficulty sitting
and reading, and from time to time, stood up to speak from the witness box.

[37]        
He continued on in his evidence advising he had obtained government aid
for transportation and a finding of disability.

[38]        
In 2010 the plaintiff saw Dr. Dhawan, an orthopedic surgeon
regarding treatment for his left wrist complaints. His letter to Dr. Mian
did not conform for admission as an expert report, but the defendant agreed
they be entered as a business record and not as proof of the contents.
Accordingly, Dr. Dhawan’s letter to Dr. Mian of November 16, 2010 was
admitted as Ex. 5

[39]        
The plaintiff then referred to correspondence with the defendant, the
insurance payment for his “totalled” vehicle and pictures of the Smith
motor-vehicle i.e. the vehicle that rear-ended him. Given the claim was for no-fault
benefits, the tort aspects were not further pursued.

[40]        
The plaintiff’s MSP record covering the period from June 2008 to
December 2009 was admitted as exhibit 7, and the plaintiff’s Pharmacare record
from January 2005 to December 2012 was admitted as exhibit 8.

[41]        
I noted the plaintiff was moving easily in and out of the witness stand
as he moved from counsel table to witness stand from time-to-time, and had
little difficulty with the heavy exhibit books.

Cross-examination of the plaintiff

[42]        
The plaintiff agreed the accident took place late at night on December
23, 2007. He was not working that night.

[43]        
At Surrey Memorial Hospital, his complaint was of chest pain and a chest
x-ray was taken. He made no complaint of wrist or hand pain but his response
was that “they checked everything and sent me home and I had pain in my
left-wrist, my arm, my back and my neck”.

[44]        
When confronted with the Surrey Memorial records which made no mention
of any arm or wrist pain, he said he was in shock and then said he had been
disturbed by the police attendance.

[45]        
He subsequently reported the accident to ICBC and on January 3, 2008
provided a statement. He agreed the statement was prepared but he refused to
sign it as the adjuster had “bad intentions”.

[46]        
When pointed out there was a signature on the fifth page of the
statement, he said that he later thought he should give a signed statement.

[47]        
Mr. Ntibarimungu then he said he went to see his family doctor the
day after the accident. When it was put to him that it was five days after the
accident he claimed he was in bed and it was impossible for him to move due to
the amount of pain. With respect to his employment, he disagreed that he had
been terminated at VCC, that he had a signed contract and he denied saying he
was on a break and re-starting in January 2008. He said a new director had come
to VCC and he was teaching accounting and payroll, that it was seasonal work
but two students failed and he said he was terminated.

[48]        
He acknowledged he had sued VCC and he had won. He denied knowing he had
been terminated at VCC at the time of his statement to ICBC. He did not recall
the adjuster advising him to apply for Employment Insurance and to bring in
paystubs.

[49]        
He was questioned about various communications with ICBC and various
lawyers that acted for him. There appeared to be some dispute as to whether or
not he provided documents as requested.

[50]        
A note from Dr. Yackel stated February 22, 2010 the plaintiff had
not worked since the car accident in December 2007. The plaintiff denied he
obtained the note to show ICBC he was unemployed. He said he had not worked. He
then said it was “odd jobs” and not “employment”.

[51]        
The plaintiff’s tax returns were reviewed with the plaintiff, beginning
in 2004 when he said he was a student and his income came from Employment
Insurance, Social Assistance and other income.

[52]        
For 2005, he earned $6,239 and claimed a moving expense for to moving to
BC.

[53]        
For 2006, his earnings were $13,475 and Social Assistance $8,509 for a
total of $21,984.

[54]        
The 2007 tax return shows earnings of $20,852 and EI was $6,311.

[55]        
In 2008, his tax return showed $3,317 T4 income, $399 EI, a loss of
$6,525 on professional income, and Social Assistance of $6,742.

[56]        
In 2009, his T4 earnings were $7,460, his net professional income at
$226 and Social Assistance $7,573.

[57]        
In 2010, his T4 income was $5,422, minus $126 professional income and
$7,492 social assistance.

[58]        
In 2011, his income per T4 was $3,047, other $500, net professional
income $2,335 and $6,379 Social Assistance.

[59]        
In 2007 Mr. Ntibarimungu was employed with CDI and VCC, and in
between times got Employment Insurance.

[60]        
Mr. Ntibarimungu sued VCC for his termination and reasons for
judgment were given by the Provincial Court judge and reported at 2009 BCPC
254.

[61]        
The judgment reflected the plaintiff saying he had worked at odd jobs in
2008 and 2009 and that in December 2008, he had applied for a job as a payroll
administrator.

[62]        
The plaintiff was asked if he was capable of working then, but he said
he did not remember and added that to collect Social Assistance, he had to show
he had tried to get a job and that he had tried to go to school and he had
tried various jobs.

[63]        
It was put to him he was alleging in this court case he couldn’t work because
of the car accident with which he agreed.

[64]        
Put that he made no mention of that in the case involving his breach of
contract with VCC, he responded it was a breach of contract case and that was
not the objective of the claim made against VCC.

[65]        
When put the judgment stated he made allegations of depression and
anxiety, he denied making such a statement.

[66]        
An affidavit was then put to the plaintiff. It appeared to be sworn by Mr. Ntibarimungu
May 25, 2009 and filed in Provincial Court litigation with his wife.

[67]        
In the affidavit the plaintiff said he had been enrolled with Social
Services since December 2007 and had not been able to get employment since that
time.

[68]        
Exhibited was a note dated April 27, 2009 made by Dr. Leonid
Vinnitsky deeming him unemployable for one year due to medical reasons of
depression and anxiety noting that he had been on depression medication since
the end of November 2008.

[69]        
He swore he had tried to find work and was keeping on looking but not
finding any. He swore the affidavit in support of an application to the court
to reduce or cancel his child support and cancel the arrears back to December
2007.

[70]        
Mr. Ntibarimungu refused to recognize the affidavit as his document
or his signature. Later it became exhibit 25 at trial: tab 10:41.

[71]        
When questioned as to the failure to mention an injury to his left wrist
to Dr. Cimolai on December 28, 2007, the plaintiff responded by saying he
had a left arm injury and was referred to physiotherapy.

[72]        
When it was pointed out he reported left arm pain in his elbow, he said
it was his wrist including the left arm and it was his wrist, elbow, shoulder
and neck and the physio couldn’t help and he complained to Dr. Cimolai.

[73]        
The plaintiff was then taken through the chronology in Dr. Cimolai’s
reporting letter. I noted the plaintiff was not responsive on many occasions
and prevaricated.

[74]        
A note of 25 January stated the plaintiffs hand was preventing him from
work. The plaintiff said he was referred to Dr. Mian.

[75]        
 The plaintiff denied he told Dr. Cimolai he had not taken any
jobs. He was referred to the doctor’s note of 29 March 2010 that “he was
previously working as an insurance agent and payroll instructor but could not
currently work, and he had not attempted any small jobs or return to work in
any way”. He denied making the statement to Dr. Cimolai.

[76]        
The plaintiff agreed that he was seeing Dr. Vinnitsky and Dr. Cimolai
at the same time. He said he went to a walk in clinic to get treatment as he
was throwing up blood and thus met Dr. Vinnitsky.

[77]        
He agreed he did not tell Dr. Vinnitsky about the car accident. He
saw Dr. Vinnitsky as he was throwing up blood and had been previously
treated for hepatitis in 2006 and he saw Dr. Vinnitsky at a
walk-in-clinic.

[78]        
Reference was made to an application form entitled “Medical
report-persons with persistent multiple barriers” prepared by Dr. Vinnitsky
on 29 April 2009 for the plaintiff (see tab 5, p. 51). In that document,
it is stated the patient, Mr. Ntibarimungu has a primary medical condition
of chronic, recurrent depression and anxiety that has existed for six years and
eight months and under the heading Restrictions: “Feels depressed, unable to
work for now.”

[79]        
The plaintiff spoke at some length saying he had developed depression,
that he had diabetes, that he was within his rights, but he disagreed it was a
primary medical condition or that he was unable to work and eventually said
“he’s lying”.

[80]        
Attention then turned back to the affidavit made in the Family Court
action. The plaintiff again denied his affidavit. I ordered the Provincial
Court file be obtained.

[81]        
Reference was then made Dr. Martin Fishman, a gastroenterologist
who saw Mr. Ntibarimungu September 16, 2008 regarding his hepatitis
C. The doctor noted the plaintiff’s chief complaint was fatigue. The plaintiff
advised he was currently studying to become a certified general accountant but
found his fatigue interfering with his studies, but that he had no other
significant symptoms to suggest advanced liver disease.

[82]        
The plaintiff denied the doctor’s record. The plaintiff agreed he had
been taking medications for hepatitis C prior to the accident of December 2007
but denied he was disabled due to the medications being taken.

[83]        
He was then shown an application for “Persons with Disabilities” to the
BC Income Assistance dated May 1, 2006 where the plaintiff said he had been
disabled during the last few months due to weakness from the hepatitis C, that
he needed to rest and take small breaks, that he couldn’t lift anything heavy,
that he felt lazy and tired and he didn’t have energy to do things and the he
could not work and be independent (tab 8). The plaintiff agreed he was taking
medication at the time and it made him weak.

[84]        
The plaintiff was then referred to notes from Gilwest Clinic beginning
April 24, 2006 regarding his hepatitis C treatments. When it was put to him
that he was complaining of nervousness and depression, he denied that, saying
the note was incorrect, that he finished the treatments by the end of 2006 and
by then he was healthy and working.

[85]        
He was then shown the note of September 16, 2008 where he had advised he
was “doing well”, separated from his wife and teaching courses off and on, he
is financially stable and no other concerns”. The plaintiff did not recall
making this statement nor a need to see the doctor.

[86]        
A letter from Dr. Yoshida (gastroenterologist) to Dr. Vinnitsky
dated August 31, 2010 was then referred to. The doctor noted the plaintiff
complaining of pain in his head as well as memory loss, and tightness in his
chest and wondered about low blood sugar. The plaintiff said he didn’t recall
that complaint, and then said that he told Dr. Yoshida he had a chest
injury in the motor-vehicle accident. He then said he was taking medications
for diabetes and depression and that he had been put on insulin and that he was
getting palpations three years after the accident and he stopped taking the
insulin.

[87]        
A further letter from Dr. Yoshida dated September
30, 2009 to Dr. Thom was referred to. In his report, the doctor noted the
plaintiff’s liver disease remained complicated and that the patient was
complaining of epigastric discomfort.

[88]        
As well, the plaintiff mentioned flank pain which was
significant and he was going to check his urine though previous ultrasounds
revealed no evidence of renal stones. The letter states the plaintiff mentioned
he had been throwing up blood when he was coughing. The patient responded by
saying he had never coughed up blood.

[89]        
The plaintiff denied he had diabetic symptoms in 2010, that that was in
2009 and that he had no symptoms of hepatitis C or diabetes in 2010.

[90]        
Reference was then made to his attendance on Dr. Nagaria who wrote
to Dr. Vinnitsky February 18, 2010. The referral was for newly diagnosed
Type II Diabetes.

[91]        
The doctor noted the plaintiff had said “subjectively, he has bilateral
leg pain with neuropathy but…no other cardiac symptoms”. The plaintiff
responded he had Type II Diabetes. The plaintiff said the doctor prescribed
medications and the tingling disappeared and he went off the insulin himself.

[92]        
It was then put to the plaintiff he had applied in 2009 for Social
Assistance on the basis of having hepatitis C and depression to which he
answered he already had Social Assistance. It was put to him that in April 2009,
he complained of hepatitis C and depression and therefore couldn’t work which
he denied.

[93]        
Reference was then made to the Ministry record, tab 10, p. 4, of a
meeting with social worker Karen Mulcaster, 3:14 p.m., April 29, 2009. The note
reflects the plaintiff seeking bus tickets to get to the doctor’s as” he had no
means to get to his doctor: Hep C and depression causing severe fatigue; client
asking if Ministry can assist with ongoing transport needs “.

[94]        
Further on, the note reads:

Client describes severe medical
conditions: depression and Hep C which have lasted at least two years…mood
fluctuations, severe fatigue, difficulty motivating/can stay in bed for three
or more days at a time, difficulties with memory, comprehension, attention and
recall.

[95]        
The plaintiff denied complaining, that he wouldn’t make such a complaint
to a social worker and that “if she didn’t give it to me”, he would complain.

[96]        
Another Ministry note of July 6, 2011 notes approval of PPMB (Person
with Persistent Multiple Barriers) for the plaintiff. Conditions are diabetes:
moderate to severe onset years. Restrictions are unable to work due to diabetes
complications. Conditions and degree of restrictions seriously impede
employment. The plaintiff responded saying “ICBC made me like this” and he was
approved for disability payments on August 1, 2011.

[97]        
It was put to him he applied for assistance due to complications of
diabetes and the plaintiff said he took the documents to the social worker and
she wrote the note.

[98]        
The plaintiff agreed he enrolled at BCIT in 2011 in the Business
Information Technology and Management Course but that he did not finish, that
he failed to attend the exams, that he tried to study and he failed due to a
disability and that was his effort to retrain.

[99]        
The plaintiff was then referred to the student medical certificate
completed by Dr. Leslie Brown November 16, 2011 which noted a “new acute
problem with onset” October 8, 2011 and described as:

“he began feeling unwell and
spending more and more time in bed. He has missed classes, not had energy or
concentration to do assignment and delayed saying anything as he felt it would
get better, investigation pending”.

[100]     The
plaintiff responded saying it was his back, that he couldn’t attend school and
failed to write his mid-term exam. He then read the document again and agreed
that he had been spending time in bed and that was the doctor’s way of
explaining, that he didn’t write the notes, that he had tried to retrain and he
had failed.

[101]     It was put
that it was described as a new, acute problem and the plaintiff disagreed,
saying that it was not new, that it was the car injury and diabetes and he had
medications for depression and diabetes.

[102]     When asked
to agree there was no reference to the car accident in the report, he said Dr. Cimolai
was handling the car accident. It was put that Dr. Brown didn’t know about
the car accident and the plaintiff said he had told her but she made no note of
it. The medical certificate was marked exhibit 20.

[103]     The plaintiff
was then asked if he had a work-related injury after 2007 and he said no.
Reference was then made to Mr. Ntibarimungu’s appeal from an Umpire’s
decision under the Employment Insurance Act, dated September 2, 2010
(tab 19). Mr. Ntibarimungu agreed his handwriting disclosed “I have been
disabled by unfortunate accident while working.” The plaintiff said the
accident wasn’t at work but he was working then and this was a “reach back” to
get a benefit that he had been denied.

[104]     The
plaintiff agreed ICBC adjusters had advised him to get Employment Insurance
with which he agreed and he agreed he applied but he was denied several times.

[105]     Reference
was then made to tab 11, pp. 30-53 (part of records kept by Human
Resources and Skills Development Canada) a form completed by the plaintiff 3
October 2009, which records the first day worked as March 7, 2009 and last day
worked September 25, 2009, the employment being with Adecco Employment Services
Limited and that he was no longer working due to shortage of work. Illness was
not given as a reason for no longer working.

[106]     Under
“Other Employers” was listed Surrey College, District #36 with employment from
September 22, 2008 to November 14, 2008. The plaintiff had said he signed a
contract but he was late all the time and not prepared due to his injuries and
that he only taught 35 hours. When asked if he was terminated from Surrey
College, he said he was replaced due to being late to class.

[107]     Reference
was also made to employment with Labour Ready from May 12, 2008 to April 16,
2009 and the plaintiff said he shouldn’t have tried, that he had to wear a
waist support when he did labour work. He agreed he checked shortage of work as
the reason he was no longer working.

[108]     Under the
heading “Availability Information”, he indicated he was available for work but
then said he didn’t remember that.

[109]     The
attestation page states that the information given is true to the best of his
knowledge and he agreed he checked it.

[110]     When asked
if he had difficulty keeping work, the plaintiff said “No.”

[111]     Reference
was then made to a later application for Employment Insurance benefits May 18,
2010 (tab 11, p. 62). He said he had more hours but that he was always
being denied EI benefits.

[112]     The last
employer was described as Express Employment Professionals with the first day
worked April 20, 2010 and last day worked May 7, 2010 and the reason given for
no longer working was shortage of work.

[113]     As well,
the plaintiff had filled in information regarding self-employment as an
insurance agent which began August 2007, that he was the sole owner, working 54
hours per week on the business activity with annual revenue of $1,450.

[114]     Again, he
indicated he was available for work immediately and that the information was
true.

[115]     The
document pp. 62-82 became exhibit 22.

[116]     His EI
application was denied and he appealed the decision.

[117]     When asked
if he provided a profile at LinkedIn on the internet, he agreed. When asked he
described his current employment as being with Canadian Financial, he said he
had never been terminated, that he was an independent worker but he couldn’t
work due to his injuries and stopped working due to his disabilities and the
Insurance Council of British Columbia had terminated his licence.

[118]    
Under tab 18, there is a document entitled “Representations of the
Commission to the Board of Referees” which noted the issue under appeal was:

whether the claimant (the
plaintiff) has sufficient hours of insured employment to qualify for employment
insurance benefits pursuant to section 7 of the Employment Insurance Act.

[119]     The
qualification period was from May 10, 2009 to May 8, 2010.

[120]     The
requirement was 910 hours of insurable employment but the decision had been
that the plaintiff had only accumulated 646 insured hours. On reconsideration,
the plaintiff’s claim was recalculated and found to be 744 insured hours but
still not the 910 insured hours necessary to qualify.

[121]     Reference
was made to the plaintiff’s claim for expenses related to the car accident, which
included physiotherapy clinics, chiropractic clinic and medical/legal costs as
well a Surrey Park’s and Recreation Pass. The total including transport was
$16,990.

[122]     Taxi
expenses totalled $8,212 and a three-zone bus pass $6,256 for a four-year
period, December 23, 2007-October 31, 2011. No taxi receipts were appended or
offered to the court. The physiotherapy and other office charges appeared to be
user fees charged by the clinics over and above payments by ICBC or MSP.

[123]     A receipt
of $300 from the Guilford Town Centre Medical Clinic dated February 16, 2011
could not be explained. A $55 charge dated February 20, 2008, he believed was
for a back brace.

[124]     As to the
taxi logs, when asked if someone had instructed him to take a taxi, his
response was he needed a car and “you broke my car”. When asked if any doctor
had said to take a taxi, the plaintiff responded “It was commanded by my
health” and he couldn’t wait at a bus stop.

[125]     My notes
during the morning indicated that at times Mr. Ntibarimungu was able to
stand and sit in the witness stand without any assistance while looking at the
large book of documents, and near lunchtime, lifted a six-inch binder and
easily leaned over the edge of the witness box and laid it down on the
barrister’s table which was at a substantially lower level.

[126]     In
re-examination, the plaintiff stood. I noted he was using a large brief, that
he was dextrous with both hands in handling it, in spite of it a splint
attached on his lower-left arm.

[127]     He made
reference to an application for disabilities filled in by Dr. Cimolai on
December 17, 2012. I ruled that was not admissible without it being put through
the doctor. The plaintiff closed his case.

[128]     Discussion
then took place regarding the intention to play the video deposition of Dr. Vinnitsky.

[129]     I was
informed there had been discussion about the process i.e. that the Doctor
anticipated being out of the country and a video deposition could be taken and
that the plaintiff could cross-examine Dr. Vinnitsky. Mr. Ntibarimungu
had responded that he didn’t want to cross-examine the doctor and accordingly,
the defendant went ahead with video deposition.

[130]     Mr. Ntibarimungu
conceded his affidavit of May 25, 2009 was prepared by his counsel and admitted
in the Provincial Court proceedings, and a copy became an exhibit at trial.

Dr. Shahid

[131]     The
plaintiff called Dr. Shahid. The orthopedic surgeon’s qualifications were
not contested. He has been in practice since 1972.

[132]     Dr. Shahid’s
letter of June 9, 2008 to Dr. Cimolai noted he had seen the plaintiff at that
time regarding a motor-vehicle accident of December 2007. He noted the
plaintiff was not on medications, that his occupation was an insurance agent
and payroll instructor i.e. a desk job.

[133]     He noted
the plaintiff had good posture and did not use a cane. His lumbosacral curve
was well preserved and there were no leg length discrepancy or pelvis issues or
any wasting of muscle. With respect to touching his toes, he noted the
plaintiff could move to two inches from his toes but with some pain.

[134]     However,
tilting left and right seemed minimal and when he exhibited some downward
pressure on the plaintiff’s head, there was complaint of back pain. Dr. Shahid
said this was not normal, not organic but a “functional” response with no
physical explanation.

[135]     On supine
leg-raising, the plaintiff was pain-free.

[136]     Dr. Shahid
agreed he did not tell the plaintiff that he could not work but told him to get
active and that appropriate rehabilitation be sought through the Canadian Back
Institute and a return to work program.

[137]     The
plaintiff made no complaint to him of arm or wrist injury.

[138]     Dr. Shahid
noted the plaintiff attended him again over a year later on September 29, 2009,
complaining of left-wrist pain close to the base of his thumb. He noted a
complaint of pain by the patient when ripping or lifting, and transient
“clicking”. The plaintiff was not on any medications.

[139]     He noted
mild swelling of the base of the thumb and tender radial styloid but normal
movement of the thumb. He was not able to palpate the extensor longus tendon.
He said the plaintiff told him this complaint came from the motor-vehicle
accident of December 2007 which he accepted as a possible cause or mechanism of
injury.

[140]     In cross
examination, the doctor did not know if there had been any immediate complaint
of pain at the time of the car accident.

[141]     The wrist
complaint was not an area of his expertise, and he referred the plaintiff to a
plastic surgeon. Dr. Shahid’s letter of June 9, 2008 became exhibit 9 and
his letter of September 29, 2009, exhibit 10.

Dr. Cimolai

[142]     Dr. Cimolali
was called by the plaintiff. He is a family doctor and has been in general
practice since 2001 as a general family practitioner.

[143]     His
medical legal letter is in large part a summary of his notes of the plaintiff’s
attendances at his office.

[144]     For
December 28, 2007, his note is of complaints to the neck, chest, back but a
chest x-ray showed no bone injury.

[145]     The next
attendance was January 28 when Mr. Ntibarimungu was off his medications
and continuing physiotherapy.

[146]     On
February 5, 2008, the complaints were pain in the elbow though the left arm
range of motion was appropriate, and pain in the low back when sleeping.

[147]     On April 2^nd
complaints of left arm and low back pain were noted but again a regular range
of movement and back pain only at extreme range of motion.

[148]     On May 12,
there was a complaint of low back pain when sitting and physiotherapy being
continued. On June 11, 2008 continuing physiotherapy was noted.

[149]     The doctor
had no note of an office visit for over a year until August 19, 2009 regarding
a burn injury.

[150]     On August
31, 2009 however, the plaintiff complained of left wrist pain to the attending
doctor and on September 10, the plaintiff was sent for x-ray. The doctor had no
recollection of a prior left wrist complaint.

[151]     On
September 15, 2009, the plaintiff’s x-ray was normal and he was referred to Dr. Shahid,
an orthopedic surgeon for a second opinion.

[152]     On
September 22, 2009, it was noted Mr. Ntibarimungu was wearing an arm
brace.

[153]     On October
30, 2009, the plaintiff said he had back pain and couldn’t work.

[154]     The doctor
agreed he had no note between May 2008 and October 30, 2009 of any complaint of
back pain. The doctor further agreed it was the patient saying he couldn’t
work, not the doctor telling the patient he could not work.

[155]     A note
from a colleague to the file on February 22, 2010 recorded Mr. Ntibarimungu’s
“need for a note for ICBC-has been off work since accident December 2007.” When
asked if the plaintiff had told the doctor he had been off work since the
accident, Dr. Cimolai replied that had been discussed several times.

[156]     The note
of March 29, 2010 recorded the plaintiff saying ICBC was not covering his
physiotherapy but he was attending chiropractic treatment and seeing a
specialist and was advised to continue wearing a left arm splint. The doctor
noted he had previously been an insurance agent and payroll instructor but not
currently working and “he had not attempted any small jobs or returned to work
in any way”.

[157]     On May 31,
2010, the plaintiff complained of left shoulder pain. The doctor agreed there
had been no previous mention of such complaint that might have been related to
the left neck complaint at the time of the accident but there had been no
complaint since that time.

[158]    
At p. 6 of his letter, the doctor concluded Mr. Ntibarimungu:

had suffered apparent soft tissue
injuries arising from an MVA of December 27, 2007. Initially involving several
areas of the body, the longer term problems thereafter being proved to be
mainly the back and the left distal arm.

[159]     For the
longer term, he believed the plaintiff would return to work but it was unclear
when that would happen and the greatest uncertainty related to his left wrist
injury.

[160]     The doctor
agreed generally soft tissue injuries resolve and see the patient back to work.

[161]     He had
become aware after writing the report that the plaintiff was being treated at
other clinics.

[162]     He was not
aware that the plaintiff had fallen in September 2008 and injured his left
elbow and wrist, (there is a clinical note of Dr. Johnson of 9 September
2008 and resultant x-ray showing no fracture or dislocation, however I do not
recall this being put to the plaintiff). Nor was Dr. Cimolai aware that the
plaintiff was seeing another doctor complaining he was disabled due to hepatitis
C and diabetes though he did become aware of that later. He was aware the
plaintiff was claiming disability benefits but he did not know that at the time
he wrote the report.

[163]     He
subsequently became aware of the plaintiff’s claim he was disabled due to
depression and anxiety which was diagnosed at another clinic.

[164]     After
discussion, an MRI of the plaintiff’s left shoulder taken July 15, 2011 was
admitted showing “some tendonitis on the top of the shoulder”. MSP records and
medication history were admitted which show anti-depression and anxiety
medications in December 2008 and diabetes medications in November 2009. The
doctor confirmed various referrals had been made regarding Mr. Ntibarimungu’s
complaints regarding his left arm and hand.

The Defence witnesses

[165]     Karen
Mulcaster, an employee of the Ministry of Housing and Social Development then
gave evidence regarding the Ministry file documents of the plaintiff.

[166]     She spoke
to the note entered by herself on April 29, 2009. She explained that PPMB meant
that the person had multiple illnesses. She said the notes reflected the
plaintiff’s wish to obtain bus tickets to obtain medical treatment for hepatitis
C, depression and fatigue, as well as attend an ESL upgrade and work program.
The various forms regarding housing, transport, health and disability were
completed and the plaintiff was requested to obtain a medical report.

[167]     There was
no reference to injuries caused by a motor-vehicle accident. The page of her
note (tab 10, p. 4) was marked exhibit 26.

[168]     In
cross-examination, she advised of the location of the Ministry office, that she
was the social worker who met with Mr. Ntibarimungu, and that he had
provided a medical report.

[169]     The PPMB
status was approved July 6, 2011.

[170]     When asked
if there was any reference in the file to ICBC or the motor-vehicle accident,
she said she did not know. She did not have the whole file.

Terry Stewart

[171]     Mr. Terry
Stewart is an employment professional and runs a staffing agency. He said the
plaintiff came into his office March 18, 2010 and worked in the months of April
and May 2010.

[172]     When asked
if there was any indication of work limitations, he said they always ask there
are concerns about heavy lifting and there was nothing on the plaintiff’s file.

[173]     The
plaintiff worked for the Salvation Army Recycling Depot unloading clothing for
donations and then at a Napa Distribution Centre working on the weekend
inventories. The Record of Employment notes employment from April 20-May7, 2010
and May 28 and 29, 2010. The plaintiff was described as a good worker and no
issues were reported.

[174]     However,
after May 2010, he noted a lot of Olympic workers were available and no work
was available. The plaintiff did call for work until the end of June.

[175]     In
cross-examination, Mr. Stewart said the hours of work in the first week
were nine hours, the second week 35 hours, the third week 35 hours and the last
week 15-and-a-half hours.

Colin Cook

[176]     Mr. Cook
is a claims manager with ICBC, who provided information from the defendant’s
records. He noted difficulties in obtaining documents from the plaintiff at the
outset of the file. Initially, there were some lawyers involved but after that
the contacts were directly with the plaintiff and the request for documents
continued into the spring of 2008.

[177]     22 physiotherapy
treatments were paid for until June 9, 2008.

[178]     The file
reflects no activity from September 2008 until September 2009 when a physiotherapist
telephoned regarding treatments for the plaintiff’s left wrist. As there was no
indication of a left wrist injury, clarification was sought but no payment
made.

[179]     Documents
of the plaintiff were eventually received in December 2009 but nothing in that
documentation referred to the plaintiff being off work or claiming EI.
Eventually, an independent medical examination was arranged with Dr. Grypma
for April 18, 2011. The doctor’s assessment indicated some four-six weeks of
disability and two to four weeks partial disability and $3,200 was paid i.e.
the equivalent of ten weeks disability as well the 22 physiotherapy treatments
and transportation charges of $700.

Dr. Grypma

[180]     Dr. Grypma
conducted an independent medical examination on the plaintiff in April 2011. He
attended court to be cross-examined on his report. Dr. Grypma’s report
became exhibit 9. No objection was taken to his qualifications. As to the
disability of the plaintiff, his impression was the plaintiff had been likely
totally disabled for approximately four-six weeks followed by two-four weeks of
partial disability.

[181]     He found
the plaintiff’s subjective complaints were not supported by physical findings.
On examination, he found a significant number of non-organic signs which
suggested a functional overlay and he could not find any objective findings to
support enduring disability.

[182]     The
particular matters he noted were a large number of Waddell signs i.e. symptoms
not consistent with physical disability.

[183]     Particularly,
neck rotation initially was 20% but when he checked his ears, the plaintiff
turned his head to 60%; while he complained of back problems, he showed good
flexion and bending over and opening a bag on the floor; there was indication
of some submaximal effort on a number of tests.

[184]     There was
cog wheeling when his left arm was examined but no anatomical explanation and
there was inconsistent tenderness of the left wrist i.e. when the focus was on
the wrist, there was a complaint but when inquiring about his back, and firm
pressure was applied to his wrist, there was no response.

[185]     He noted
there was no evidence of an acute injury to the wrist and the specialist
couldn’t find any evidence of injury. He noted the first complaint to the
family doctor was a year after the accident and could not be related to the car
accident.

[186]     He felt
with a regular exercise program, the plaintiff would recover and it was
unlikely he had any permanent disability. He felt the plaintiff’s
immobilization was due to the lack of exercise. In his opinion, the nature of
the injuries was such that Mr. Ntibarimungu had recovered after a month,
there was no use of medications after five weeks and no physical basis for the
current complaints.

[187]     In
cross-examination, the doctor agreed he took a 40 minute history and spent a further
40 minutes in physical examination and then some two-three hours reviewing
records before providing his report.

[188]     The doctor
agreed he was no longer in clinical practice. The doctor disagreed that he
suggested an MRI be taken, as he did not consider it necessary.

Mr. Atwal

[189]      Mr. Atwal
is the owner of Adecco Employment. He operates a staffing agency and finds work
for the “associates” who seek work.

[190]     He spoke
to the office records showing the plaintiff had worked from March 7- September
25, 2009 on four locations for three clients, namely Suzuki Canada for parts
counting and light work; Lululemon on two occasions doing clothing inventory,
again light work; and Domino’s pizza where he worked in a distribution hub as a
production line worker and washing trays at a fast pace. The Record of
Employment became exhibit 24.

[191]     The file
notes showed no limitations of work for the plaintiff. It was the company
practice to ask if there were any limitations and none were noted.

[192]     There were
no complaints of employers but the file noted the plaintiff had contacted
Domino’s Pizza directly and they then stopped providing their service to the
plaintiff.

[193]     Cross-examination
highlighted Mr. Atwal’s background.

[194]     When asked
if a person had a background in payroll and human resources or insurance, Mr. Atwal
said depending on his qualifications that would result in a different placement
in management or accounting, that the job’s given were explained to an
associate and the plaintiff had taken them in temporary work and general
labour. Had he sought more permanent jobs, there would have been a different
interview process.

The video deposition of Dr. Vinnitsky

[195]     The
Doctor’s video deposition taken March 14, 2013 was then shown.

[196]     Dr. Vinnitsky
obtained his medical degree in the Soviet Union in 1982 and specialized in
cardiology to 1988 then moved to Canada, completing his Canadian residency in
1995, and had been in general practice since that time.

[197]     He first
met the plaintiff July 12, 2009 and his note reflects blood tests and possible hepatitis
C.

[198]     On
February 3, 2009, fatigue and liver abnormalities were noted.

[199]     On April
27, 2009, a history of depression led to filling in a form for Social Services
noting the plaintiff was temporarily unemployable.

[200]     On April
30, 2009, the plaintiff bought in the Ministry form and he completed it,
stating there was chronic depression and the plaintiff was temporarily
unemployable. File documents indicating blood testing in June 2009 (tab 5, p. 47),
and the Ministry medical report for persons with persistent multiple barriers
(tab 5, p. 51-52) dated April 29, 2009 were then referred to.

[201]     The doctor
confirmed the chronic recurrent depression and anxiety had existed six years
eight months, based on the plaintiff’s history.

[202]     The doctor
was not aware that the plaintiff had been in a motor-vehicle accident.

[203]     References
were then made to office attendances in 2009, July 4, August 7, September 29
and December 18 noting abnormal function from Hepatitis C, a small abrasion on
his forehead due to a fall, prescription of medications for depression which
worked well, and diabetes blood work. In 2010, the attendances were February 6,
March 15, April 24, June 28, July 31, September 13, October 14 referencing
diabetes, the referral to Dr. Nagaria regarding diabetes, the referral to Dr. Yoshida
for the hepatitis C, and a referral to the psychologist Dr. Smith but no
attendance reported from Dr. Smith.

[204]     Attendances
in 2011 were January 14, April 1, May 4, and September 27 regarding a
respiratory infection, a request for a letter that a motor vehicle accident was
causing disability and diabetes which the doctor declined to do, a Ministry
form regarding diabetes causing temporary disability and on the last occasion,
the plaintiff attending his office denying problems with diabetes, that his
problems were due to the motor-vehicle accident i.e. the motor-vehicle accident
caused diabetes. The doctor said he wouldn’t provide such an opinion.

[205]     The doctor
said there had been no previous mention of a motor-vehicle accident and that in
his opinion if the plaintiff was not able to work, it was due to diabetes. The
doctor’s documents were marked as exhibits 28 and 29.

Reply

[206]     Mr. Ntibarimungu
then took the stand in reply after being advised he could speak to matters that
had been raised by defence and not previously put in issue.

[207]     He said he
was depressed at the end of 2009 and then had diabetes. He made references to
the health records as to when he had started the medications.

[208]     Mr. Ntibarmungu
declined the offer to call Dr. Vinnitsky to court to be cross-examined.

Argument

[209]     Submissions
were then provided by the plaintiff, by the defendant and subsequently by the
plaintiff in reply on September 6, 2013.

[210]     Judgment
was reserved.

Observations

[211]     The
plaintiff used a walking stick, wore a wrist brace, and said he could not stand
during the trial. He complained about ongoing neck problems and that he could
not drive. At no time during several days of trial did I see any difficulty
with the plaintiff moving his neck. Although he employed a walking stick he did
not seem to use that consistently. Notably, there were several large three-ring
binders full of documents and other briefs or documents that had to be moved
and on many occasions; he seemed to be able to move both of his hands quite
easily in spite of his expressed concerns about a left-wrist injury.

Discussion

[212]     The
evidence before me was wide ranging. I note the plaintiff is an educated man,
once married but now separated, and the father of five children.

[213]     His
evidence was not satisfactory and often contradictory. Much of the
cross-examination was plainly made to highlight the contradictions to be found
in his medical history, to note the varied employment he had obtained in 2009
and 2010, and his multiple medical conditions.

[214]     However,
the narrow issue for decision, and therefore for Mr. Ntibarimungu to prove,
is whether the injuries he sustained in the motor-vehicle accident of December
23, 2007 totally disabled him from employment for which he is reasonably
suited.

[215]     That
requires proof of the employment for which he is suited, the nature and extent
of the injuries sustained in the car accident, a finding of total disability
related to his employment and if so, the time period of such total disability.

[216]     The
plaintiff has qualifications in payroll management, human resources, life
insurance and teaching, all sedentary occupations.

[217]     The
evidence of his injuries caused in the motor-vehicle accident lies in his own
evidence, in the hospital record, and the family doctor, Dr. Cimolai.

[218]     The
emergency records are brief stating the reason for visit being left chest pain.
A chest x-ray was ordered and came back as normal with no fracture visible in
the sternum nor any soft tissue swelling visible around the sternum.

[219]     Dr. Cimolai
noted on December 28, 2007, complaints of pain in the neck, chest, back and
left arm with tenderness on the left-side of the back of the neck and decreased
range of motion, and limited motion in the back with associated pain.

[220]     The left
arm pain was noted to be in the elbow. Medication ended by January 28, 2008 but
physiotherapy continued. Mr. Ntibarimungu complained he could not teach
due to pain or travel over prolonged periods on February 5, 2008.

[221]     By April
2, 2008, the plaintiff was no longer attending physiotherapy. Continued
examinations by x-ray as well as the renewal of physiotherapy in May and a
referral to Dr. Shahid occurred May 12, 2008.

[222]     On June
11, it was noted physiotherapy was renewed.

[223]     The
plaintiff saw Dr. Shahid June 9, 2008. The focus appeared to be a
complaint of low back pain. No reference was made to the left arm and Dr. Shahid
advised the plaintiff as to the principles of back care and strongly encouraged
him to get into brisk activity such as walking or cycling and attend the
Canadian Back Institute for generalized conditioning and return to work
programs.

[224]     I am
unable to find any convincing medical evidence of other injuries being
sustained in the motor vehicle accident, for it is not until a year later that Mr. Ntibarimungu
complains of a problem with his left wrist.

[225]     On April
18, 2011, the plaintiff attended an independent medical examination conducted
by Dr. Grypma.

[226]     On
presentation, the plaintiff complained of symptoms in his neck, back, left
shoulder and left wrist.

[227]     I have already
summarized the doctor’s evidence where he concluded it was likely Mr. Ntibarimungu
sustained soft injury to his neck secondary to the motor-vehicle accident with
a mild soft-tissue injury of his back.

[228]     Given the
lack of symptomology recorded by Dr. Cimolai after May 2008, it was likely
other symptoms had resolved vis-à-vis the motor-vehicle accident.

[229]     Nor did
the doctor find any record of left wrist pain post-accident in the first year
of records nor any objective evidence of left wrist pathology on his
examination.

[230]     The doctor
concluded in terms of total disability that was some four-six weeks followed by
two-four weeks of partial disability.

[231]     Like Dr. Shahid,
Dr. Grypma recommended a regular exercise program in that Mr. Ntibarimungu’s
complaints of immobilization were due to his lack of exercise.

[232]     That is as
close as any medical opinion comes to relating the motor-vehicle injuries
sustained by Mr. Ntibarimungu to his employment.

[233]     Dr. Cimolai
fails to consider the issue at all.

[234]     The
evidence indicated ICBC paid-out ten weeks of wage disability and related
benefits which would reflect the opinion of Dr. Grypma.

[235]     I conclude
that from the evidence before me, the plaintiff has not proven he was totally
disabled by injuries sustained in the car accident of December 23, 2007 for
more than ten weeks.

[236]    
In Sheflo v. Insurance Corp. of British Columbia, 2002 BCSC 536,
Burnyeat J said at para. 28:

I am satisfied that the law in British Columbia regarding
Part VII benefits is not as set out by Taylor J.A. in Rose, supra, but
is as set out by Esson, J.A. in Halbauer, supra. That law can be
summarized as follows:

(a) the initial onus is on the
plaintiff to show that he or she is disabled;

(b) a plaintiff can make out a prima
facie case that payments should be continued by establishing that benefits
have been paid and that he or she continues to be disabled from his or her
pre-accident employment and occupation;

(c) if that can be shown, the onus then switches to I.C.B.C.
to prove on a balance of probabilities that there is employment or an
occupation reasonably suited to the plaintiff by education, training or
experience.

[237]     With
respect to Dr. Cimolai’s report and his evidence at trial, there was no
categorical statement of total disability, nor was there any consideration of
how the alleged injuries might disable the plaintiff from his sedentary
employment. His comments about the left-wrist injury had no factual
relationship to the motor-vehicle accident.

Conclusion

[238]    
I find the initial onus on the plaintiff to show he or she was disabled
was established on the evidence and from the independent medical examination,
but that is restricted to some ten weeks. However, the plaintiff is then required
to make-out a prima facie case that he continues to be disabled from his
pre-accident employment and occupation and in that, he has failed.

[239]     Accordingly,
the action is dismissed, with costs.

“The Honourable Mr. Justice Crawford”