IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20140404

Docket: 1037867

Registry:
Prince George

Between:

Grace Fancy

Plaintiff

And

Anne M. Gareau and
Marie B. Gareau

Defendants

Before:
The Honourable Mr. Justice Parrett

Reasons for Judgment

INTRODUCTION

[1]            
This action is brought by the plaintiff to recover damages from injuries
she says she suffered as a result of a motor vehicle collision.

[2]            
The defendants, while admitting the details of the collision itself and
their liability arising from the negligence of the driver, Anne M. Gareau, deny
that the plaintiff suffered any injury in the collision or any damages as a
result.

BACKGROUND

[3]            
On September 30, 2008 the plaintiff, Grace Fancy, was driving her
husband’s 2003 Chevrolet Suburban west on North Nechako Road and was about to
make a right hand turn to head north on Foothills Blvd. when she stopped
suddenly for oncoming traffic.  At this point her vehicle was struck from
behind by a 2000 Buick Century owned by the defendant Marie B. Gareau and
driven by the defendant Anne M. Gareau.

[4]            
The collision was a low impact collision which resulted in only minor,
primarily cosmetic damage, to the two vehicles.  Neither of the plaintiff’s
passengers, her 71 year old father-in-law nor her 16 year old son, were
injured.

[5]            
At the time of the motor vehicle collision which is the subject of this
proceeding, the plaintiff was 46 years of age, at trial she was 50 years old.

[6]            
The plaintiff was born on February 19, 1962 and has been married to
Christopher Fancy since 1988.  They have three children, who at the date of
trial were aged 21, 19 and 15 years.

[7]            
In this action the plaintiff seeks to recover non-pecuniary damages, past
wage loss and special damages.  Claims for loss of housekeeping capacity and loss
of earning capacity were abandoned.

[8]            
The central issue at this trial arises from the fact that the plaintiff,
who at all material times was employed as an Administrative Assistant with the
Northern Health Authority, was injured in a workplace incident on July 8, 2008.

[9]            
 At the time of the present motor vehicle collision the plaintiff was
participating in a graduated return to work program and was receiving
WorkSafeBC wage loss and health benefits.

[10]        
On September 30, 2008 at the time of the collision the plaintiff was, in
fact, returning to her home from a physiotherapy appointment.

[11]        
The plaintiff suffered no wage loss while she was receiving WorkSafeBC benefits
and under the collective agreement she received wage loss benefits of 75% of
her regular wage following the motor vehicle accident.  In addition, the
plaintiff received health benefits through her extended health plan which is
administered by Pacific Blue Cross.  These latter two coverages give rise to
subrogation claims.

[12]        
The major issue raised by the defence is, as previously indicated, their
denial that the plaintiff was injured or suffered damages as a result of this
collision.

[13]        
This defence arises in the main from the existence of the previous
injury arising from the workplace incident, and what the defence submits is a
failure of the plaintiff to establish that any injury in fact occurred as a
result of the September 30, 2008 collision.

THE EVIDENCE

[14]        
During the course of this trial four witnesses were called, all on
behalf of the plaintiff.  Three of these witnesses consisted of the plaintiff,
her husband and their 21 year old daughter who resides with them.

[15]        
The only other witness called was a physiotherapist, David Ronald
Fleming, who began seeing the plaintiff in July 2008.  He was neither tendered
nor qualified as an expert witness.

[16]        
In addition to these witnesses, the plaintiff tendered the medical report
of Dr. G.M. McKenzie.

[17]        
The balance of the evidence received in this case consists primarily of documents
received and admitted pursuant to the terms of a Document Agreement reached by
the parties.  This was filed as Exhibit #5.

[18]        
I will set forth in these reasons the body of that Document Agreement:

It is agreed between the parties to the Supreme Court of
British Columbia Action No. 1037867, Prince George Registry, that the use of
clinical medical documents, Northern Health employment records and WorkSafeBC
case management records (collectively the “Documents”) contained in the
Plaintiff’s and Defendant’s Document Briefs shall be as follows:

1.         A
photocopy of any Document will be presumed to be [a] true copy of the original
and is admissible without proof of the original document.

2.         The
Documents are admitted into evidence on the basis that the Documents are
documents made and kept in the usual or ordinary course of business from which
they were originally obtained.  The Documents are admitted as prima facie proof
that any fact personally observed and recorded occurred, or that the statements
personally observed and recorded were made.  Statements recorded in the
Documents are not admitted for their truth.

3.         The
parties reserve the right to challenge the accuracy of any fact or statement
recorded in the Documents.

4.         The
parties reserve the right to submit to the Court that individual statements
recorded in the Documents are admissible for their truth as an exception to the
hearsay rule.

5.         The
Documents are not admitted for the purpose of proving any opinion stated
therein.

6.         Any opinion to be relied upon
must be provided in the ordinary way pursuant to Rule 121 of the Rules of
Court.

[19]        
The terms of the Document Agreement are important to a consideration of
this case for the contents of the three binders, filed as Exhibits 1, 2 and 3,
are almost exclusively clinical notes and records of the University Hospital of
Northern British Columbia, the Nechako Medical Clinic, those of various doctors
and other medical professionals as well as some employment records of Northern
Health Authority and the WorkSafeBC records related to their claim #081****5.

[20]        
What is perhaps most notable from this short summary is the complete
absence of any evidence, viva voce or by report, from the plaintiff’s
family doctor, Dr. Burns, who was treating the plaintiff both prior to and
after both the workplace injury and the motor vehicle collision.

[21]        
The absence of the evidence of Dr. Burns either testifying or providing
a report leaves the court without the evidence of the doctor who both assessed
and treated the plaintiff immediately after both events and was most familiar
with the plaintiff’s medical condition before both events.

[22]        
It should also be noted that after the motor vehicle collision on
September 30, 2008 the plaintiff attended a walk-in clinic before seeing her
family doctor.

[23]        
The sequence of these events is of some interest.  Shortly after
reaching her home on September 30, 2008 the plaintiff reported the accident to
ICBC and as well apparently reported the fact she was injured.  She testified
that she “. . . felt sore, that her low back and upper back were sore . . .”

[24]        
At the time of the motor vehicle accident the plaintiff was returning
home from a 2:00 p.m. physiotherapy treatment.  The following day, Wednesday
October 1, 2008, she went to work for the five hour shift she was working under
her graduated return to work program.  The next day she testified she was sorer
but according to her calendar she again worked her five hour shift after
attending a scheduled 8:00 a.m. appointment at the hospital for a CAT scan
procedure.  Later that day, October 2, 2008, she attended at the Nechako
Medical Clinic where she was seen on a walk-in basis by Dr. Murray.

[25]        
The attendance report of this visit is found in Exhibit 1, Tab A (2). 
The report consists of approximately 30 largely illegible handwritten words. 
Under the heading History and Physical there is written “Neck/lower back
stiffness” followed by a series of cryptic notations.  Below that, under the
heading Diagnosis, it appears that the words “muscle spasm” are written.

[26]        
Dr. Murray was, of course, not called to testify and no report from him
was introduced.

[27]        
The evidence is unclear about the events of Friday October 3, 2008.  The
plaintiff’s calendar (Exhibit 6) notes that she apparently worked 5 hours but
then notes beside it that she was apparently “off work” and then attended
physiotherapy.

[28]        
On Monday October 6, 2008 the plaintiff met with an ICBC adjuster,
apparently at 10:00 a.m. while apparently working her 5 hour shift.  She
apparently attended physiotherapy later that day and again on October 8, 2008.

[29]        
It seems clear from the clinical records that she saw her family doctor,
Dr. Burns, on October 6, 2008, one week after the motor vehicle collision.  As
I have previously observed, no evidence was presented from him or Dr. Murray.

SUBMISSIONS

The Plaintiff

[30]        
In their submissions on behalf of the plaintiff counsel conceded that in
this case the court must assess the plaintiff’s credibility.  She went on to
submit that the plaintiff “. . . is not someone who enjoys confrontation”.

[31]        
They went on to submit that the plaintiff’s symptoms are ongoing and
that in pursuing her Workers Compensation claim “. . . they were not seeking
compensation for a neck injury . . .” and that by attempting to parcel her
injuries into two separate claims made it appear that this was the case.

[32]        
The plaintiff submits that her evidence was that she not only suffered
increased or aggravated symptoms as a result of the motor vehicle collision but
also suffered new injuries.

[33]        
In support of this submission, plaintiff’s counsel referred to p. 9,
para. 4, of the opinion of Dr. G. M. McKenzie which reads:

4.         She developed an
increase in her pre-existing symptoms and also developed new complaint of pain
in the left side of her neck.

[34]        
Counsel went on to submit that the evidence of the plaintiff’s daughter
“should be believed” and supported the conclusion that the plaintiff was
injured.

[35]        
The plaintiff submits that her neck injury was entirely from the motor
vehicle collision and that in the collision her upper and lower back injuries
were aggravated.

[36]        
During argument, counsel for the plaintiff advised that the plaintiff
had abandoned (a) her claim for loss of capacity; and (b) her claim for loss of
housekeeping services.

[37]        
The plaintiff seeks an award for general damages of between $45,000 and
$50,000.

[38]        
She also seeks compensation for past wage loss of $19,320.84.  In
advancing this claim she acknowledges that there is no claim for the periods
July 8, 2008 to October 13, 2008 and from March 23, 2009 to April 8, 2009.

[39]        
In addition, the plaintiff seeks full compensation for chiropractic and
massage treatments and an additional $3,464.84 in special damages.

The Defendants

[40]        
The defendants submit that the evidence does not establish that the
plaintiff suffered any injury in the motor vehicle collision, either by way of
aggravating existing injuries or by means of new injury.

[41]        
In the alternative they submit that, at best, the evidence establishes a
minor injury of no lasting significance.

[42]        
The defence points to the plaintiff’s evidence, in both direct and in
cross-examination, that she was sore from physiotherapy and that she suffered
significant severe flare-ups of her symptoms as a result of the physiotherapy.

[43]        
The defence submits that either these complaints are genuine and
constituted real pain and problems caused by the physiotherapy or it was contrived
as a pretext for a higher level of symptoms.

[44]        
This, the defence suggests, touches on the central issue of credibility
which arises both from the evidence of the plaintiff and that of her husband. 
The plaintiff, he submits, was malleable at the hands of her husband in an
attempt to seek financial compensation and that her evidence is replete with
contradictions and evidence that is demonstrably untrue.

[45]        
Mr. Fancy, the defence submits, is a witness who is entirely unreliable
and whose primary interest is in material gain.

[46]        
The defence submits that the plaintiff has failed to prove to the civil
standard that the defendant either caused or contributed to her injuries.

[47]        
The defence submits that –

1.       Neither the plaintiff nor her husband was candid or
truthful in their evidence;

2.       There is
no report from her family doctor, Dr. Burns, which could presumably directly
address the causation issue.  He submits that it is possible to draw an adverse
inference from Dr. Burns’ absence; and

3.       If there
was any injury, it was minor and of limited duration.

[48]        
The defence submits that if there is any injury at all it would be
compensated for by an award of $3,000 to $5,000.

[49]        
He further submits that chiropractic and massage therapy treatments are
not compensable in the current circumstances and should draw no award.

DISCUSSION

[50]        
Counsel are in agreement that credibility in this case is an important
issue.  This is particularly important in the circumstances of this case
because of the absence from the evidence of the family doctor, Dr. Burns, and
the doctor who first saw the plaintiff at the walk-in clinic two days after the
accident on October 2, 2008.  The plaintiff then saw her family doctor four
days after that on October 6, 2008.

[51]        
The absence of evidence from these two treating medical professionals
leaves the court, with one exception, without any medical opinion on
causation.  The exception is the opinion letter of Dr. McKenzie produced on
behalf of the plaintiff.

[52]        
I will deal with this letter from Dr. McKenzie later in these reasons.

CREDIBILITY OF THE PLAINTIFF, GRACE FANCY

[53]        
The plaintiff was employed as an Administrative Assistant for the
Northern Health Authority.  On July 8, 2008, while at work, she was helping to
move a shelving unit weighing 50 to 60 pounds when “she felt a tightness in her
back . . .”  She finished her day at work but at home that night she began
having what she described as low back spasms with tingling in her left arm and
left leg.

[54]        
The plaintiff returned to work the next day but testified that she was
only able to work for an hour and a half.  She reported the injury to her
supervisor and left.  She saw Dr. Burns that same day.  His clinical note for
the visit on July 9, 2008 says, in part:

. . . moderate muscle spasm upper
back and bilateral L-spine paraspinal muscles.  RADICULOPATHY
c spine / l.
spine . . .
c spine film ordered

It is notable that from this first clinical record the
assessment involves the cervical spine.

[55]        
Ms. Fancy was directed to begin physiotherapy and attended her first
session the next day on July 10, 2008.  The Physiotherapy Initial Notification
form provided to WorkSafeBC by Accelerated Sport and Spine Physiotherapy
reports the plaintiff’s personal particulars, her date of injury as July 8,
2008, and the date of treatment as July 10, 2008.

[56]        
The form from the physiotherapist (Exhibit 10) records under the heading
Injury Recorded on Claim (Area of Injury and Diagnosis) only a single word and
this is: “Neck”.

[57]        
Throughout her direct examination the plaintiff testified in various
ways that her workplace injury was to her back, saying at various times:

–         twisted my back

–         felt a twinge in back

–         had lower and upper back
pain

–         pain in lower and upper
back prevented me from working full time

–         could
not sit for long, upper back very painful and had to stretch lower back

–         he was treating my
shoulder and using traction on my lower back

[58]        
Throughout this portion of the plaintiff’s evidence the only mention of
her neck came in the context of a statement that ‘he [the physiotherapist] was
stretching my neck as well because it tightened up with the pain’.

[59]        
When the plaintiff began describing her injuries and symptoms following
the motor vehicle collision there were essentially three components –

1.       she described her symptoms from the workplace
accident as being “exacerbated” with pain in her lower and upper back and
tingling in her legs;

2.       her neck
was tight; and

3.       the
onset of headaches.

[60]        
The plaintiff in initially describing her symptoms did not mention her
neck, except in passing. Towards the end of her direct evidence, this changed quite
dramatically from the initial description of the neck as being tight a day or
two after the collision, to describing it in these terms –

1.       in the past 6 months I still have lower back pain, upper
back pain and constant neck pain;

2.       neck is
chronic, always tight.

[61]        
At approximately 2:30 p.m. on the first day of this trial the plaintiff
began her cross-examination.

[62]        
During the initial series of questions the plaintiff was asked about the
cervical spine and her neck.  In her responses she gave what, in my view,
became a significant answer:

. . . by upper back I mean thoracic and when I say upper
back I do not mean my neck . . .

[Emphasis added.]

[63]        
The plaintiff went on during this series of responses to describe in
more detail what she meant, saying that at the time of her workplace accident
she had pain in her lower back on the left side with tingling and numbness in
her left leg.  She went on to say that the pain in her upper back was
‘between my shoulder blades’ and there was ‘no pain in my neck at the time
of the workplace accident’.

[64]        
As the cross-examination continued a different story began to emerge –

1.       the plaintiff first acknowledged that between July
8, 2008, the date of the workplace accident, and the date of the motor vehicle
collision she had ‘. . . pain and stiffness in her neck but went on to say that
she didn’t recall seeking treatment for neck pain;

2.       the plaintiff acknowledged that in mid-August 2008,
more than a month before the motor vehicle collision, she was unable to work
because of neck pain.

[65]        
In response to this cross-examination the plaintiff retreated to the
proposition that:

I say the motor vehicle accident
injured these same areas.

[66]        
The plaintiff discussed the status of her symptoms with a WorkSafeBC
case manager on August 5, 2008.  The WorkSafeBC log notes of that discussion
reads as follows:

Her back was fine prior to the date of injury.  She hadn’t
had to see her GP due to back problems prior to this incident.  She wasn’t
aware of pre-existing DDD, the doctor told her during her visit on July 16,
2008, when he reviewed the x-ray report.  She went back to the doctor on July
30, 2008.  He recommended a graduated return to work over a three week period. 
She has been in contact with Northern Health.  She started work August 1,
2008.  She only lasted two hours on August 1^st 2008.  She went back
for two hours again today.  Her pain keeps increasing since her return to work. 
She went to physiotherapy after the two hours today and is very sore.  She’s
meeting again with Stephanie next Monday, August 11, 2008 the original plan was
for four hour shifts, five days per week, she feels the graduated return to
work plan needs to be adjusted.  She’s being paid for her hours worked…Current
condition: She’s still sore between her shoulder blade area, her neck and her
left arm.  She does not know whether this is from physiotherapy treatments or
her symptoms have flared up

[Emphasis added.]

[67]        
In a series of questions the defence raised the fact that the plaintiff
had complained at various times that her physiotherapy had caused flare-ups of
her symptoms and had on one occasion left her bed ridden for two weeks or more.

[68]        
During this portion of her evidence the plaintiff acknowledged that the
symptoms she described on October 2 and 3, 2008 could have been either from her
physiotherapy treatment or the motor vehicle collision.

[69]        
Perhaps the most startling reversal in her evidence was the cross-examination
of the plaintiff about a portion of Exhibit 8.

[70]        
This document was a spreadsheet prepared by the plaintiff and her
husband as a part of their submission to the Workers Compensation Board to help
establish that she had suffered “an upper back injury”.  In item 11 on page 2
of the spreadsheet the plaintiff specifically refers to the August 5, 2008
Physiotherapy Initial Notification (Exhibit 10) referred to above.  The excerpt
contained in item 11 specifically notes that the “Injury Recorded on Claim:
Neck” and then records the following submission regarding the document:

Corroborating Documentation of
stiff neck from workplace injury (July 8, 2008) – this injury is NOT from the
MVA as suggested by CD in Item 32.

[71]        
The last column of this spreadsheet is entitled “Proof of:” and is
divided into two columns, the first of which is “Upper back/left arm injury”.

[72]        
The plaintiff entered “Yes” in this column with respect to Item 11.

[73]        
When confronted with this document the plaintiff conceded that when the
Workers Compensation Board case manager said that the neck injury was not as a
result of the workplace injury but from the motor vehicle accident she
disagreed and said ‘no, I injured my neck in the workplace accident’.

[74]        
When pressed on this point she advised the court that:

The upper back, to me, includes
the neck.

[75]        
This evidence was given without the faintest embarrassment or apparent
realization that the previous day she had testified that:

When I say upper back I do not
mean my neck.

[76]        
One of the final points raised by the defence in their cross-examination
of the plaintiff was the fact that neither she nor her husband had filed tax
returns since 2005.

[77]        
The plaintiff’s explanation was the remarkable statement that:

She did not provide or file tax
returns for 7 years because of a home based business.

[78]        
Although the full documents and decisions of the Workers Compensation
Board are not before the court, it is clear from the evidence and the limited
documents before the court that the plaintiff pursued a claim as a result of
the workplace injury on July 8, 2008.

[79]        
A decision was reached on June 14, 2011.  This was followed by a Review
Board decision on November 7, 2011.  This in turn resulted in a decision of a
case manager on March 6, 2012.  The case manager, Mr. Paul Loog, notes in his
decision that there has been a further appeal Review Board Decision on February
6, 2012 that dealt with a claim for chronic pain in her low back.

[80]        
Mr. Loog’s decision (Exhibit 7) sets out on the first page the issues
returned to him by the Review Board for further investigation and a new
decision.  The issues were:

1.         The
Board’s decision to accept the worker’s claim for an aggravation of
pre-existing DDD at C5-6 resulting in radiculopathy.

2. The
Board’s decision that the worker does not have compensable chronic pain as a
result of the aggravation of pre-existing DDD at C5-6.

3.         The
Board’s decision that the worker is not entitled to any further temporary
disability benefits as a result of the acceptance of an aggravation of
pre-existing DDD at C5-6.

4.         The
Board’s decision that the worker is not entitled to a referral to Disability
Awards for the aggravation of pre-existing DDD at C5-6.

5.         The
Board’s decision that the worker is not entitled to coverage for certain
health care items for her aggravation of pre-existing DDD at C5-6.

[Emphasis added.]

[81]        
I note that each of the five issues referred back for decision relate to
the existence of an injury to C5-C6 in the workplace accident.

[82]        
Mr. Loog’s decision as to each issue is set out on page 2 of his
decision:

The following are answers to the questions as set out by the
review board decision dated November 7, 2011.

1.         The
Board’s decision to accept the worker’s claim for an aggravation of
pre-existing DDD at C5-6 resulting in radiculopathy.

  There
is no change in the prior decision regarding this matter.  The worker’s claim
has been accepted for a mild exacerbation of pre-existing condition
(degenerative disk disease at C5-6) and resulting radiculopathy.

2.         The
Board’s decision that the worker does not have compensable chronic pain as a
result of the aggravation of pre-existing DDD at C5-6.

  I
will be accepting that the worker has chronic pain associated to her
pre-existing DDD at C5-6.  I do not accept any restrictions or limitations
associated to this.

3.         The
Board’s decision that the worker is not entitled to any further temporary
disability benefits as a result of the acceptance of an aggravation of
pre-existing DDD at C5-6.

  There
is no change in the prior decision in that the worker is not entitled to
further wage loss benefits as the expected recovery timelines for such an
injury is at most 7 months post date of injury.  The worker was paid till she
was involved in an MVA at which point benefits were stopped till such time she
could participate in the gradual return to work.  Benefits were then started
again till the end of the gradual return to work.  Which was far past 7 months
from date of injury.

4.         The
Board’s decision that the worker is not entitled to a referral to Disability
Awards for the aggravation of pre-existing DDD at C5-6.

  The
worker’s claim will be referred to Disability Awards for a permanent functional
impairment assessment associated to chronic pain in her neck only as there is
no indication that she has sustained a permanent injury to her neck as a result
of this injury.

5.         The
Board’s decision that the worker is not entitled to coverage for certain health
care items for her aggravation of pre-existing DDD at C5-6.

  I
will be accepting health care benefits only up to 7 months from the date of
injury associated to the worker’s neck and low back.

In summary with
regards to changed decisions:

1. I
have accepted the worker’s claim for chronic neck pain.

2. I
have referred the claim to Disability Awards for a permanent functional impairment
associated to this chronic neck pain.

3. There
are no restrictions or limitations associated to the worker’s chronic neck pain.

4. I
will be accepting health care benefits for 7 months post date of injury
associated to the worker’s low back and neck as it relates to her compensable
injury.

[Emphasis in original;
underlining added.]

[83]        
I am unable to accept that the plaintiff’s version of events and, in
particular, that her description of her symptoms and their cause are accurate
and candid.

[84]        
At the very least her evidence as to her symptoms and when they arose
are unreliable but, in my view, they are calculated to advance the financial
interests of herself and her husband.

[85]        
The most revealing summary of her evidence is found in her own words:

I just feel I hurt a lot more after the car accident.

I don’t know which it was.

[86]        
The last of these refers to the flare-ups following her physiotherapy
treatments but her pursuit of this claim remained unencumbered by either truth
or accuracy.

REPORT OF DR. G. M. MCKENZIE

[87]        
At this point it is necessary to turn to the expert report on which the
plaintiff relies for it touches directly on the issue of the plaintiff’s
credibility.

[88]        
Dr. G. M. McKenzie is an orthopaedic surgeon who works with the
Vancouver Bone and Joint Clinic.  He has specialities in the areas of sports
medicine, and arthroscopic surgery of the shoulder and knee.

[89]        
Dr. McKenzie was asked to provide a medical legal report on the clinical
status of the plaintiff on January 17, 2011 and saw her for the first time in
his Vancouver office on February 1, 2011.  This examination was conducted some
28 months after the motor vehicle collision and some 31 months after the work
place injury.

[90]        
On page one of his report Dr. McKenzie notes:

I assume she is making no
attempt to omit or change any of the pertinent details of the accident or her
condition.

[91]        
On page 2 of his report Dr. McKenzie, under the heading Status Prior to
the Accident, writes in part:

. . . March 1, 2004 there is an entry regarding neck pain. 
The diagnosis was torticollis. Grace recalls that she “woke up funny”.  Her
neck pain resolved within a day or two and did not recur.

Just prior to this accident she had a Workers’ Compensation
Board claim.  July 8, 2008 she was moving furniture at Northern Health.  She
developed pain in the lower part of the scapula.  She also had some pain just
below the beltline and into the left side going into the left leg.  It involved
the whole leg to the toes and her whole foot.  She had parasthesias in the
whole foot and some numbness. She had no neck pain with that event.

[Emphasis added.]

[92]        
At page 3 under the same heading Dr. McKenzie summarizes the history
provided to him by the plaintiff:

In essence then prior to this accident this lady had some
left arm tingling and numbness.  She had some pain in the mid to lower
interscapular area.  She had lower back pain going into the left leg with
tingling and numbness. She had no complaints of neck pain.  She tells
me she was getting better.  Prior to the accident the left arm tingling was
approximately once a week.  There was no numbness.  The tingling involved the
whole arm and would last a few minutes.

[Emphasis added.]

[93]        
On page 4 under the heading History of the Motor Vehicle Accident two
passages are of interest:

She did not go to the Emergency Room.  She went home. She
noted that she now had some neck pain which she did not have prior to the
accident.  She also noted that the remainder of her spine was more
painful. Over the next day she developed neck pain and headaches.  The
tingling in the left arm got worse.  The pain between the shoulder blades and
the lower back pain as well as the left leg pain and tingling got worse as
well.

. . .

She recalls being treated with physiotherapy.  She had
ongoing pain.  She was referred to Dr. Janet Ames.  Dr. Ames saw her on a
number of occasions.  The initial visit was January 8, 2009 (incorrectly dated
2008).  In this record it states that “there was a flare up of all the original
symptoms plus more left sided neck pain and also headaches”. Grace again
told me that she had no pre-existing left sided neck pain before this accident
but does agree that she had a flare up of her other pains with this accident.

[Emphasis added.]

[94]        
Near the conclusion of this section of his report giving the History of
the Motor Vehicle Accident Dr. McKenzie writes at the top of page 5:

She had treatment with massage. She does recall a major
flare up in December 2009 and January 2010.  That is when she started going to
the chiropractor Dr. Morgan.

[Emphasis added.]

[95]        
What is notable about this portion of Dr. McKenzie’s report is that
throughout the entire history to this point, despite the frequent mention of
the various medical professionals who had treated the plaintiff, there is no
mention of David Fleming or of his physiotherapy treatments of the plaintiff
which began in July 2008 after the workplace accident and continued until early
January of 2010 covering the time from immediately after the workplace injury
on July 8, 2008 until well after the motor vehicle collision.

[96]        
The Index appended to Dr. McKenzie’s report notes that among the
clinical records he was provided with, reviewed and based his report and
opinion on, was:

3.  Accelerated Sport and Spine Physiotherapy records from
June 15, 2009

[Emphasis added.]

[97]        
On page 5 of his report under the general heading Current Situation and
the further heading 1. Neck Pain, Dr. McKenzie writes the following:

She has pain in the whole left side of the neck going into
the left trapezius muscle area.  She also has pain in the left interscapular
area.  Her pain goes into the left arm “a bit”.  The left arm symptoms are
mainly parasthesias, not pain.  The parasthesias involve the whole left arm and
all of her fingers.  That however is intermittent.  It occurs multiple times a
day in 30 second increments over about half her day.

Her major complaint is pain in the neck.  It is on the left
side as noted above.  It is aggravated by holding her head in one position or
looking to the left.  Any use of her neck aggravates it.  Prolonged sitting
aggravates it.

She grades per pain as a 5 to 9/10.  Her typical pain is an
8/10.  She gets associated headaches.  Headaches are not an area of my
expertise and I will not opine on that issue.  She thinks it is slowly
improving. She again told me that she had no pain in the neck prior to this
accident.

[Emphasis added.]

[98]        
On page 8 of his report Dr. McKenzie sets out under the heading Facts
and Assumptions the assumptions on which his opinion is based.  The first five
of these are material to this aspect of this decision:

1. This lady was not normal prior to her motor
vehicle accident.  She had no complaints of neck pain but did have some
radicular symptoms in the form of tingling and numbness in the left arm.  She
also had some lower back pain and left leg pain with tingling and numbness. 
These were due to a Workers’ Compensation Board claim from July 8, 2008 when
she was moving furniture.

2.         She did have improvement in these symptoms. She
continued to have no neck pain.  By the time of her motor vehicle accident she
reports that her left arm tingling was intermittent and occurring about once a
week.  She still had some ongoing lower back pain which was constant and
some tingling and numbness which was constant.  She had returned to work and
was working approximately five hours a day.

3.         She was then involved in a motor vehicle accident
September 30, 2008.

4. She developed an increase in her pre-existing
symptoms and also developed new complaint of pain in the left side of her neck.

5.         She has had extensive investigations since then
which have shown some degenerative changes in her neck and in the lower back.

[Emphasis added.]

[99]        
The central factual assumption underlying Dr. McKenzie’s opinions is
found in points 1 and 2.  The assumption based on the information provided by
the plaintiff was that prior to the motor vehicle accident the plaintiff had no
complaints of neck pain and that this continued to be the case after her
workplace injury on July 8, 2008.

[100]     The importance
of the plaintiff ‘not omitting or changing any of the pertinent facts’ is made
apparent on the first page of the medical report.

[101]     The
importance of the absence of prior existing neck pain at the time of the motor
vehicle collision is made apparent in the four separate passages of the report
quoted above.

[102]    
Its significance is made even clearer in the portion of the opinion
found on page 10:

With regard to the neck pain, she had no pre-existing neck
pain but she did have radicular symptoms.  Currently her radicular symptoms are
relatively mild occurring about once a week.  Her major complaint is her
headaches and her neck pain.  In my opinion her diagnosis is an activation of
pre-existing but asymptomatic degenerative changes in her neck and also
myofascial pain.  In my opinion the causation of her pain is the motor
vehicle accident.  She did not have this pain prior to the accident even though
she did have the radicular symptoms [in] her left arm.

[Emphasis added.]

[103]     The
evidence before the court is clear that prior to the motor vehicle collision
her neck was far from asymptomatic and that on at least one occasion in
mid-August of 2008 she was unable to work because of neck pain.

[104]     The
information provided by the plaintiff to Dr. McKenzie about the absence of
complaints of neck pain prior to the motor vehicle collision was completely
untrue.

[105]     It is
impossible, in my view, to conclude that this was other than deliberate in this
case.  Throughout the period during 2010 leading up to the appointment she had
with Dr. McKenzie, the plaintiff and her husband were heavily engaged in
advancing her various appeals concerning her Workers Compensation claims. 
During this process spreadsheets were created along with detailed written
submissions touching on most, if not all, aspects of her medical assessment and
treatment.

[106]     Two things
result from this –

1.       the factual assumptions and underpinning of Dr.
McKenzie’s opinion are false and untrue; and

2.       this results in the opinion being of no assistance
in determining a causal connection between the motor vehicle accident and the
neck injury.

CREDIBILITY OF CHRISTOPHER JOHN FANCY

[107]     The
defence submits that the plaintiff’s husband is “an entirely unreliable
witness”.  They submit that the relationship between these two was such that
Mr. Fancy dominated the relationship and the plaintiff was “malleable and
complicit” in his plans.  Those plans are the pursuit of financial gain he
submits.

[108]     Mr. Fancy
was in my view a problematic witness.  He gave evidence with a level of
confidence and assurance yet did not seem to grasp some difficulties that
emerged in his evidence.

[109]     He
described his educational achievements in some detail completing a Bachelor of
Science degree in Forestry and what he described as three years of the CGA
program.

[110]     During
cross-examination Mr. Fancy acknowledged that he had business administration
training and that he understood financial documents and balance sheets.

[111]     When asked
why he had not prepared and filed tax returns for either of them since 2005 he
responded ‘I have not filed them because I haven’t completed the bookkeeping’. 
When pressed he explained this further by saying that he had done “a quick
trial run, found that it wasn’t profitable and that they were owed a $4,000 or
$5,000 refund”.

[112]     Mr. Fancy
appeared to believe that those were reasonable explanations for his failure to
file tax returns for 6 or 7 years.

[113]     Mr. Fancy
described himself in his direct evidence as being “intimately familiar” with his
wife’s WCB claims and went on to advise that “at Grace’s request” he attended
WorkSafeBC meetings with her.

[114]     In the
course of his cross-examination he acknowledged that he was designated and
authorized in writing to act as his wife’s representative in advancing her WCB
claim and that the same occurred with respect to the claim following the motor
vehicle collision.

[115]     Although
he was “intimately familiar” with his wife’s WCB claim and heavily involved in
presenting her evidence and submissions throughout the appeal process, he
seemed unable or unwilling to accurately characterize the claims.  In direct
examination he described there being claims for two workplace injuries – (a)
her lower back/left leg which was accepted; and (b) her upper back/left arm
which was missed.

[116]     He went on
in a particularly confusing portion of his evidence to say that a neck claim
was denied “because there was clearly no neck claim”.

[117]     He then
testified that he was very clear that there were two injuries including the
upper back/left arm but that “in the last few months” there was an error made
and it was called a neck injury.

[118]     He then
testified that a June 14, 2011 letter “sort of recognized it” and that when it
was appealed the review said the neck.

[119]     He
concluded this review by advising the court that this wasn’t the outcome that
was sought and then saying that he was not aware of his wife ever making a
claim for her neck arising from a workplace accident.

[120]    
When the entry from the spreadsheet, Exhibit 9, Page 2, Item 11, was put
to him in cross-examination he acknowledged that he had prepared the document
but went on to say:

I am not sure why I wrote this as
it is contrary to the claim which is very clear.

[121]     In
summary, Mr. Fancy’s evidence was that although his wife never advanced a claim
for a neck injury as a result of the workplace accident, he, for some unknown
and unexplained reasons in Exhibit 9, Item 11, referred to the Physiotherapy
Initial Notification and quoted the portion of that form that noted “Injury
Recorded on Claim: Neck” and provided as his written comments on that document
“Corroborating Documentation of stiff neck from workplace injury (July 8, 2008)
– this injury is NOT from the MVA as suggested by CD in Item 31”.

[122]     A Review
Board Decision then referred the matter back to the board for reconsideration
of a number of issues, all of which are related to “aggravation of DDD
(Degenerative disk disease) at C5-6”.  This referral resulted in Mr. Loog’s
decision of March 6, 2012.  This decision accepted “the worker’s claim . . .
for a mild exacerbation of pre-existing condition (degenerative disk disease at
C5-6) and referred the matter “. . . to Disability Awards for a permanent
functional impairment assessment associated to chronic pain in her neck . . .”

[123]     All of
these findings and decisions by the Board, according to Mr. Fancy, occurred in
error, in the absence of any claim of neck injury by the plaintiff.

[124]     To be
blunt, I do not believe Mr. Fancy’s evidence which I found to be contrived and
self-serving.  I agree with the defence submission that he was an entirely
unreliable witness seeking to advance the financial interest of him and his
wife.

CONCLUSION

[125]     This is a
personal injury action in which the issue is causation.  Simply put the
question amounts to this – Was the plaintiff injured or did she have existing
injuries or conditions aggravated by the motor vehicle collision on September
30, 2008?

[126]     The
evidence presented to the court by the plaintiff is devoid of medical evidence
and opinion touching on the issue of causation.

[127]     The only
expert opinion placed before the court is that of Dr. McKenzie who first saw
the plaintiff some 28 months after the motor vehicle collision.  In providing
Dr. McKenzie with the history he used as the foundation of his opinion the
plaintiff misrepresented and altered the facts and withheld critical
information about her physiotherapy treatments and pre-existing symptomology.

[128]     The effect
of her actions destroyed any value of Dr. McKenzie’s opinion.

[129]     The
absence of her family doctor, Dr. Burns, was explained in the evidence by one
in passing comment, he moved.

[130]     No other
explanation was offered for the absence of his evidence either written or oral.

[131]     The value
and use of the documents presented and admitted, in particular, the clinical
medical records, Northern Health employment records and the WorkSafeBC case
management records are circumscribed and restricted by the terms of the
document agreement reached between the parties.  Of particular importance are paras.
5 and 6 of that agreement which stipulates that none of the documents are
admitted for the purpose of proving any opinion stated in them which must be
proved in the ordinary way under Rule 11.

[132]     David
Fleming, one of the plaintiff’s physiotherapists, was called as a witness but
was neither qualified nor tendered as an expert.

[133]     Mr.
Fleming’s treatments of the plaintiff were responsible, according to Mrs.
Fancy, for severe flare-ups of the plaintiff’s symptoms.  He administered one
session of his physiotherapy treatments immediately prior to the motor vehicle
collision.

[134]     The
evidence of the plaintiff’s daughter Michelle was helpful but reflects the
perspective of a young person living in the presence and subject to that
presence and discussions of her parents.  It did not assist or address the
issue of causation.

[135]     After
reviewing and considering the whole of the evidence, the plaintiff has failed
to meet the burden of proof in this action.

[136]     I am
wholly unable to conclude that the plaintiff suffered injury or aggravation of
her existing condition as a result of the low velocity collision of September
30, 2008.

[137]     The
uncertainty created by the flare ups described by the plaintiff in relation to
her physiotherapy treatments and the regrettable state of the medical evidence
compound and add to the strength of that conclusion.

[138]     The
defence has submitted that the court should draw an adverse inference from the
absence of Dr. Burns.  In my view it is not necessary to draw an adverse
inference in this case for Dr. Burns’ absence leaves his apparent referral to
physiotherapy as a result of neck injury as reflected in Exhibit 10
unexplained.  That, together with the credibility findings with respect to the
plaintiff and her husband, and the causation findings, arises in part from the
absence of Dr. Burns’ evidence.

[139]     The
plaintiff’s action is dismissed.

[140]     If costs
cannot be agreed upon between the parties they may be spoken to.

“W. G. Parrett, J.”