IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140425

Docket: M114437

Registry:
Vancouver

Between:

Anna
Carreon-Rivera

Plaintiff

And

Guo Qing Zhang

Defendant

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
The plaintiff, Anna Carreon-Rivera, was involved in a collision on
October 16, 2009 when the vehicle she was driving was struck by the vehicle
driven by the defendant Guo Qing Zhang. Ms. Carreon-Rivera was proceeding
westbound in the curb lane on 41st Avenue in Vancouver, British Columbia, when
the defendant, who was in a vehicle in the adjacent lane, made a sudden lane
change and collided with her vehicle. The collision pushed Ms. Carreon-Rivera’s
vehicle up onto the right hand curb. The vehicle was then dragged along by the
defendant’s vehicle for half a block before coming to a rest.

[2]            
Liability was not at issue. Ms. Carreon-Rivera alleges that she suffered
soft tissue injuries to her neck, back and right shoulder and headaches caused by
the accident. In addition, she alleges that the accident caused an aggravation
of what had been asymptomatic cervical spondylitis, that she continues to
suffer from chronic pain, and that she has developed depression.

[3]            
Net past wage loss has been agreed at $27,000. Special damages have been
agreed at $16,189.18. What remains to be determined are Ms. Carreon-Rivera’s claims
for non-pecuniary loss, loss of future earning capacity, past diminished
housekeeping capacity and future care costs.

Pre-Accident

[4]            
Ms. Carreon-Rivera is presently 50 years old. She is married to John Carreon-Rivera
and is the mother of two children, Nicole, aged 19, and Natasha, aged 16. It is
clear that before the accident Ms. Carreon-Rivera had an active and fulfilling
life.

[5]            
Ms. Carreon-Rivera was born in Hong Kong and came to Canada at age ten. Ms.
Carreon-Rivera has six siblings. They are a close knit family. She was an
enthusiastic participant in regular family gatherings including dinners, celebrations
at special holidays and participation as a family in the annual Relay for Life in
memory of their mother.

[6]            
Ms. Carreon-Rivera graduated from high school in 1980 and then completed
two years at Langara College. She was working while attending school. She then
took a marketing program at BCIT between 1987 and 1989.

[7]            
Ms. Carreon-Rivera started work very early in her life and, except for
maternity leaves, has worked steadily. It is clear that her work has been an
important part of her life and her sense of self-worth. She has consistently
been a high performer. She has been employed at Telus since 1989. Prior to the
accident, she was employed as an Executive Assistant with Telus. This is a
demanding position for which she has received consistently positive
evaluations.

[8]            
Ms. Carreon-Rivera had been fit and very active. She enjoyed a variety
of sports and activities including tennis, hiking, skiing, swimming, badminton
and skating. Before they had children, these were activities that she enjoyed
with her husband. After the children were born they included the children in
the activities and participated in many of these sports and activities as a
family.

[9]            
Prior to the accident, Ms. Carreon-Rivera was very involved in the
children’s care and schooling. Because of her husband’s work schedule, she did
most of the planning, organizing and driving of the girls to and from school
and activities. She participated in the Parental Advisory Committee at the
girls’ school. In addition, she was responsible for most of the cleaning and
cooking at home.

[10]        
Ms. Carreon-Rivera’s involvement with karate demonstrates the high
standards she set for herself. John and the girls took up karate in 2005 and
although she did not have much personal interest in the activity, she took it
up so that this could be a family activity. By 2007, Ms. Carreon-Rivera was
competing in an international competition, taking home a bronze medal in the
2007 World Championships at Lake Placid, New York. In 2008, her club named her
the most inspirational member.

[11]        
On October 26, 2008, Ms. Carreon-Rivera dislocated and fractured her
right hip during a karate training exercise. She required surgery and was off
work until she started a graduated return to work on April 20, 2009. When she
started back to work she walked with the assistance of a cane. By June 2009 she
had returned to work full time and by the end of that month she no longer
needed the cane.

[12]        
In the summer of 2009 she had returned to her usual routine. She was
driving the girls to their summer programs, participating in yoga to assist her
rehabilitation, and going for walks and hikes. She resumed playing tennis with
her husband.

[13]        
By September, Ms. Carreon-Rivera was working full time and arranging the
girls’ school day. She would drive them to school and pick them up at the end
of her workday. She would cook dinner and then clean up, after which she would
assist the girls with their homework. She would then spend some time with the
family and do household tasks until she went to bed between 11:00 p.m. and
midnight. She would rise between 5:30 and 6:00 a.m., make breakfast, and
organize the girls for the day before leaving to drive them to school and
heading to work herself. Her regular shift at Telus was 8:00 to 4:00, but she
often worked extended hours.

[14]        
Donna Wong and Irene Halko, who are co-workers of Ms. Carreon-Rivera at
Telus, described her prior to the accident as active and energetic, very
positive and sociable, and stated she was well regarded at work.

Post-Accident

[15]        
Ms. Carreon-Rivera testified that her immediate reaction after the
accident was that she was shaken. That evening she experienced pain in her
neck, right shoulder and mid-back. The next day her neck was stiff and painful,
her right shoulder and forearm were painful, she had pain in her chest and a
headache.

[16]        
She attended Dr. Kee Leong-Sit, her family doctor, on October 19, 2009.
He noted a painful neck with diminished rotation. Her back was normal on
examination. She was taught stretch exercises to do at home and advised to take
medication for pain.

[17]        
Ms. Carreon-Rivera did not take time off work immediately following the
accident. She had just returned from sick leave arising from the karate
accident and was just starting to assist a new executive. She said she did not
want to get the reputation of someone who needed frequent time off work.

[18]        
She saw Dr. Leong-Sit on October 28, 2009, at which time he referred her
to a physiotherapist, Kam Yan. Ms. Carreon-Rivera started seeing Kam Yan twice
a week. She was taking Advil every four hours and using a heating pad at work
to cope with pain. She stated that she experienced problems when watching
presentations at work because the position of her neck caused pain.

[19]        
It was her evidence that instead of improving, the pain got worse in
November and December. Fatigue was a major problem. She began to cut back on
her activities at home, resting when she got home from work, taking a nap after
dinner and then going to bed after the nap. She tried to go back to karate, but
the pain was too intense for her to continue.

[20]        
Ms. Carreon-Rivera attended at her family physician for two visits in
January 2010 and one in March. She complained of a sore neck and shooting pain
in her right shoulder. She mentioned that driving would trigger neck pain that
would result in a headache. At this time she was doing some yoga and walking while
still attending physiotherapy. She started receiving acupuncture.

[21]        
Ms. Carreon-Rivera was still attending work every day. She stated that
she cut back on attendance at meetings where she was not required. However, she
said that before the accident she found such attendances to be a helpful
component of her proactive approach to her work.

[22]        
The notes of the physiotherapist during this period reflect that she was
still complaining of pain but there was some improvement and an improved range
of motion.

[23]        
Mr. Carreon-Rivera testified that about this time he became concerned
that his wife was not improving. He noticed that she was having difficulties
with certain household tasks such as preparing prawns or stooping over the
sink. He changed his shift so that he could take over more of the
responsibilities at home, driving the children and assisting with the household
tasks.

[24]        
Ms. Carreon-Rivera saw Dr. Leong-Sit on April 28, 2010, at which time he
referred her to a different physiotherapist, Darren Chang. She attended
physiotherapy twice a week and continued with yoga. Mr. Chang’s notes for this
period reflect continuing intermittent problems, some complaints of headaches, though
also some improvement. Ms. Carreon-Rivera stated that she was doing less and
less at home. She was not as involved with her children, took less of an
interest in their activities, and did not attend their games as frequently as
before. In addition, Ms. Carreon-Rivera stated that she felt she was starting
to be forgetful at work.

[25]        
She returned to Dr. Leong-Sit in July. He notes that there was
improvement in the neck and shoulder with occasional tingling and pinching in
the mid-back. He recommended that she continue with physiotherapy twice a week.
It appears that she continued with physiotherapy until the end of July 2010.

[26]        
At some point Dr. Leong-Sit had recommended tai chi and Ms.
Carreon-Rivera took up this activity. However, because of a combination of pain
and fatigue, Ms. Carreon-Rivera was becoming less and less active.

[27]        
She returned to Dr. Leong-Sit in November 2010. His notes reflect that
she complained of constant pain in the neck and right shoulder especially when
driving and doing housework. At Dr. Leong-Sit’s recommendation, Ms. Carreon-Rivera
resumed physiotherapy with Darren Chang which continued until December 8, 2010.

[28]        
In early 2011, the family started to see a family therapist. Nicole was
experiencing difficulties at school that included being bullied. Ms.
Carreon-Rivera stated that she felt overwhelmed. It took all her energy to get
through the workday. She could not deal with anything else and asked for more
assistance from her husband.

[29]        
The family went to Hawaii during spring break in March 2011. The trip
was not a success for Ms. Carreon-Rivera. She had difficulty on the flight.
After a snorkeling trip she had to rest in the hotel for the whole next day.
She tried to surf with the family but had to go in. She spent the rest of the
trip lying on the beach. She said that she felt guilty, and felt like an
outsider who was a burden ruining the family’s vacation.

[30]        
She returned to Dr. Leong-Sit in April 2011 complaining about her neck
and headaches. Dr. Leong-Sit referred her to Dr. Spenser Lui, an orthopedic
surgeon. Ms. Carreon-Rivera returned to Dr. Leong-Sit in May, at which time he
recommended massage therapy, physiotherapy and anti-inflammatory gel. Ms.
Carreon-Rivera followed these recommendations, resumed physiotherapy with
Darren Chang and started massage therapy with Edwin Shi.

[31]        
Ms. Carreon-Rivera saw Dr. Lui in August 2011. He noted neck and right
shoulder pain that had not responded to treatment, guarded and decreased range
of motion in the right cervical spine and right shoulder tenderness. He
suggested that an MRI would be appropriate.

[32]        
Ms. Carreon-Rivera stated that she was still working full time but
taking more breaks at work. She did not attend as many meetings. Her boss was,
nonetheless, accommodating. She said that she was not being as proactive at
work; her mind was not as clear. She felt that her performance was slipping and
she was losing confidence.

[33]        
Ms. Carreon-Rivera saw Dr. Leong-Sit in September 2011. His notes report
that physiotherapy had helped and that the combination with massage had been
beneficial. However, he also noted that she was still experiencing pain. He
advised that she do core strengthening and stretching regularly.

[34]        
In September, the girls changed schools at the recommendation of the
family therapist. Nicole was being bullied again. Ms. Carreon-Rivera stated
that she felt overwhelmed and did not have the energy to deal with the issue.
She left it to her husband to meet with the counsellor and school principal.

[35]        
Ms. Carreon-Rivera started working part time from home to lessen driving,
which she stated exacerbated her symptoms. Her employer accommodated the
request. She worked one to two days at home per week as needed.

[36]        
Ms. Carreon-Rivera returned to Dr. Leong-Sit in December of 2011. She
came into his office crying and complaining of her ongoing pain. His notes
reflect that Dr. Liu had prescribed Lyrica but she felt it made her feel “spaced
out”. He encouraged her to do daily stretching and exercise. His notes state “crying
and depressed”. He noted the word “depression” in the margin. Dr. Leong-Sit
felt that he might have made that note after the visit. He felt that it was
possible that Ms. Carreon-Rivera’s depression was not discussed in subsequent
visits.

[37]        
Ms. Carreon-Rivera stated that during this period she was struggling to
get through the day at work. She would go home, rest on the couch, eat dinner
and then fall asleep on the couch until bedtime. She had no energy for anything
other than struggling through her workday. Her visits with her extended family
dwindled to next to nothing. On the occasions when it was their turn to host
dinners at her home, her husband did virtually everything. She would rest for
the whole day to be ready for company.

[38]        
In February 2012, Ms. Carreon-Rivera saw Dr. Leong-Sit. His notes
reflect some improvement, that she was continuing with yoga and tai chi, and that
she had good days and bad days.

[39]        
In March 2012, the family travelled to Seattle and Ms. Carreon-Rivera experienced
considerable pain on the drive. She returned to Dr. Leong-Sit on March 22, at
which time he made a diagnosis of migraine and prescribed Amitriptyline. Then
at a visit in April, Dr. Leong-Sit made a referral to Dr. Dilli, a neurologist.

[40]        
Ms. Carreon-Rivera saw Dr. Lui in May 2012, at which time he recommended
that she take time off work. His notes suggest six weeks of rest treatment and
exercise to bring better control of pain and to allow better function. Ms.
Carreon-Rivera followed this suggestion and took time off work.

[41]        
Ms. Carreon-Rivera was continuing with physiotherapy and massage
therapy. In June 2012, she started receiving active release therapy from Dr.
Colin McKay, a chiropractor.

[42]        
The family took a second trip to Hawaii in July 2012 to attend a
nephew’s wedding. Ms. Carreon-Rivera spent most of the trip on the beach unable
to participate in activities. She testified that she wondered if her family
would miss her if she was not there.

[43]        
Ms. Carreon-Rivera saw Dr. Dilli in July 2012. Dr. Dilli’s consult
report stated that her impression was that Ms. Carreon-Rivera suffered from chronic
migraine without aura, with possible links to her caffeine use and analgesic medication
overuse. She recommended reduced use of analgesics and caffeine and an increased
dose of Amitriptyline. She also advised Ms. Carreon-Rivera to consider Botox if
the Amitriptyline proved ineffective.

[44]        
Ms. Carreon-Rivera testified that she did reduce caffeine and analgesics
and did increase Amitriptyline. This did not prove to be effective; however,
she did not try Botox. Ms. Carreon-Rivera stated that she was concerned about
the cost of Botox and also that the injections would need to be repeated every three
to four months. Ms. Carreon-Rivera said that she discussed the matter with Dr.
Leone-Sit and they agreed to try an increase of Amitriptyline first. However, while
the headaches continued to be a significant problem, Ms. Carreon-Rivera never
tried the Botox treatment.

[45]        
In August 2012, Dr. Leong-Sit wrote his medical legal report which
addresses depression. In addition, Ms. Carreon-Rivera saw Dr. William Craig, a
physical medicine and rehabilitation specialist, who also addressed her mood
issues. Ms. Carreon-Rivera understood that Dr. Craig recommended that she
receive treatment for depression; however it was her view that if she had
depression it was because of the pain and she wanted to make the pain go away.
She said that she felt that the suggestion she was depressed implied that her
pain was not real, that she was imagining the pain.

[46]        
Ms. Carreon-Rivera had a visit with Dr. Leone-Sit on August 29, 2012.
His notes do not refer to depression. He stated that it was possible that this
was not discussed in the meeting. However, he also stated that he believed that
he did discuss her depression with her on that date. He stated that he
suggested that she should get counselling, as it was his opinion that Ms.
Carreon-Rivera was suffering from depression in August 2012 and that she would
benefit from treatment. He stated that the reason he did not make a referral
was that she indicated that she did not want to see a psychiatrist.

[47]        
Ms. Carreon-Rivera started a gradual return to work in September 2012. She
was continuing to attend with Mr. Chang for physiotherapy and Dr. McKay for
active release.

[48]        
On September 24, 2012, Ms. Carreon-Rivera saw Dr. Leone-Sit. By this
time she had read the medical legal report of Dr. Craig who recommended
treatment for depression. She had started back to work. She was taking 10 mg of
Amitriptyline three times a day and reported receiving some relief. Counselling
for depression was discussed and Ms. Carreon-Rivera told Dr. Leone-Sit she did not
feel she needed it. Ms. Carreon-Rivera testified that Dr. Leone-Sit raised it
as a question not a recommendation. She felt that she had good family support. She
said that she read on the internet that Amitriptyline was an anti-depressant. While
at one time this was regarded as true, the drug is no longer used for that
purpose and had not been recommended by her physicians for treatment of
depression. Moreover, the dose she was taking was too low for there to have
been any ameliorative effect on her depression.

[49]        
Dr. Leone-Sit stated that when he discussed depression with Ms.
Carreon-Rivera, she was not keen on seeing a psychiatrist and did not want to
take anti-depressants.

[50]        
In cross-examination, she stated that she did not agree to treatment for
depression at that time because she did not know what depression was. She said
that she was focused on dealing with her pain. She also said that she had not
been specifically assessed for depression at that time. Later, she stated that
she trusted her family physician and he was not recommending treatment for her
mood. Of course, Dr. Leone-Sit was in fact recommending treatment for
depression, at least in his medical legal report. Ms. Carreon-Rivera stated
that she never saw this report, although she agreed that she reviewed the other
reports.

[51]        
Dr. Craig had also recommended a variety of medications for Ms.
Carreon-Rivera. She did not take any of these, nor did she discuss them with
Dr. Leone-Sit. When asked why not, she said that she trusted her doctor and she
had not taken an active role in her treatment because it took all of her energy
just to get through the day.

[52]        
Dr. Craig has also suggested injections into the facet joint. Ms.
Carreon-Rivera stated that she had discussed this with her doctor but decided
not to pursue it. She said she recalled someone saying that it addresses the
symptoms rather than the root of the problem, and that she was only interested
in dealing with the cause of her symptoms.

[53]        
In October, Ms. Carreon-Rivera started a new course of physiotherapy
with Patrick Embley and Kadi Nicholson on a referral from her chiropractor.

[54]        
Ms. Carreon-Rivera received a performance review in October 2012. In the
past her reviews had typically been exemplary; however, this time her score,
while still positive, was somewhat reduced to reflect her absences. Ms.
Carreon-Rivera testified that she was very concerned and felt that senior
management had come to view her as an unreliable employee.

[55]        
Ms. Carreon-Rivera saw Dr. Leone-Sit in November and reported some
progress. She had been to see Dr. Lui, who was retiring.

[56]        
In 2012, it was their family’s turn to host the Christmas dinner for the
extended family. Mr. Carreon-Rivera did all the work for the dinner. Ms.
Carreon-Rivera stated that she felt exhausted and did not really participate.

[57]        
In January 2013, Ms. Carreon-Rivera began to see Brenda Colaire, a
massage therapist. She was continuing with Dr. McKay, the chiropractor and the
physiotherapists he had recommended.

[58]        
In March 2013, Dr. Leone-Sit made another referral for massage therapy
and physiotherapy.

[59]        
In April 2013, Ms. Carreon-Rivera’s executive left Telus and she had to
find a new posting. She stated that in the past when this had happened,
colleagues would be seeking her out and recommending her. This time, however, the
search proved more difficult and she had to go through an application process. Nonetheless,
she was successful in finding a new executive.

[60]        
In May 2013, Ms. Carreon-Rivera began attending on Dr. John Davis, a
chiropractor. At the end of the month, she visited Dr. Leong-Sit and reported a
50% improvement. Dr. Davis had told her to stop yoga and tai chi. She had
stopped physiotherapy, was no longer taking Lyrica and had cut back on Amitriptyline.

[61]        
In July 2013, Ms. Carreon-Rivera started working with her new executive,
Andrew Turner.

[62]        
In general during this period, Ms. Carreon-Rivera stated that she was
experiencing more relief than at any time since the accident. However, she
continued to have problems with her neck and shoulder, still had headaches and
was still mentally foggy. She still needed naps after work each day.

[63]        
In August 2013, Ms. Carreon-Rivera saw Dr. Leone-Sit and complained of
fogginess and headache. She reported being unable to take part in physical
activities such as vacuuming and that her relationship with her husband was
being affected. She was taking Lyrica, Amitriptyline, Aleve and still seeing
the massage therapist and chiropractor.

[64]        
In September, Ms. Carreon-Rivera was assessed by Dr. Miller, a
psychiatrist, who diagnosed a major depression and recommended counselling. Ms.
Carreon-Rivera’s evidence was that because she had now been diagnosed by a
psychiatrist, she accepted the diagnosis and was prepared to accept
counselling. However, her actions do not completely bear this out since she did
not take steps to implement Dr. Miller’s recommendations at that time.

[65]        
In November, she saw Dr. Leone-Sit complaining about severe headaches.
She mentioned that she had seen a psychiatrist and Dr. Leong-Sit requested
recent reports.

[66]        
While Dr. Miller had recommended a number of medications for Ms.
Carreon-Rivera’s depression, she has not taken any of them. She stated that she
did not want to take more medications, noting the concern that Dr. Dilli had
expressed concerning over-the-counter analgesics. It was her evidence that Dr.
Leone-Sit told her that the medications Dr. Miller recommended were more suited
to other kinds of depression.

[67]        
Dr. Leone-Sit testified that after reviewing Dr. Miller’s report, he
told Ms. Carreon-Rivera that she should try anti-depressants. However, she did not
want to. He stated that the reason he ultimately referred her to a psychologist
rather than a psychiatrist was because the psychologist would not prescribe
medication.

[68]        
On December 6, 2013, Dr. Leone-Sit referred Ms. Carreon-Rivera to Back
in Motion for structured rehabilitation and strengthening, and to Dr. Terry
Estrin, a registered psychologist.

[69]        
Ms. Carreon-Rivera spoke with Dr. Estrin, who recommended that she
consult with the chronic pain clinic. This has not occurred.

[70]        
As at the date of trial, Ms. Carreon-Rivera was still seeing Dr. Davis on
a weekly basis. She was receiving massage therapy at least bi-weekly.

[71]        
Ms. Wong and Ms. Halko described the changes they observed in Ms.
Carreon-Rivera after the accident. Ms. Wong stated that Ms. Carreon-Rivera seemed
to be in discomfort. She was quieter, and less vivacious. Ms. Wong thought that
she was depressed. Ms. Halko observed that Ms. Carreon-Rivera became quieter,
and did not socialize with her co-workers as she had before. She was not
animated as before. She did not join the group for walks at noon.

Expert Reports

Dr. Kee Sheen Leong-Sit

[72]        
As noted above, Dr. Leone-Sit is Ms. Carreon-Rivera’s family physician.
She has been a patient since February 1999. Dr. Leong-Sit wrote a first opinion
dated August 16, 2012 in which he expressed the following opinions:

Diagnosis/Comments:

Anna Carreon-Rivera suffered moderately severe soft tissue
injuries affecting her neck and shoulders. As a result of these injuries, she
has also been having more frequent migraine headaches as described above.

Anna did not have persistent neck or shoulder symptoms prior
to the motor vehicle accident.

It is my opinion that the accident caused the soft tissue
injuries as mentioned above. I based this conclusion on the fact that she had
no ongoing problems in her neck or shoulders prior to the accident.

Anna had migraine headaches prior to the motor vehicle
accident. Her complaint of migraine headache dated June 21, 2003. I did not
treat her for any further migraine complaints until after the motor vehicle
accident.

Her headaches after the motor vehicle accident [were] severe
and recurrent and Dr. Dilli diagnosed chronic migraine headaches without aura.

It is my medical opinion that her recurrent headaches are
related to the motor vehicle accident. It is my observation that the accident
had caused a lot of stress, chronic lack of sleep, frustration and distress in
her life. All of the above are triggers for migraine headaches and hence, my
conclusion that the accident is responsible for her headaches.

She is also depressed and has not had such symptom prior to
the accident. It is my opinion that her depression is a result of the motor
vehicle accident.

Prognosis and Comments:

Anna has had musculo skeletal symptoms of persistent neck and
shoulder pain and intermittent headaches for the past two years and ten months.

She continues to have significant symptoms. Her headaches
have improved since she saw Dr. Dilli and she says that on a scale of 10, her
headache is now down to about three or four (10 being worse and one being
normal).

Her neck and shoulder symptoms remain significant. Her
frustration and depression remain significant.

It is my opinion that she will benefit from counseling to
manage her frustrations, stresses and depression. She will also likely benefit
from core strengthening exercises to prevent spasm.

Prognosis is guarded at present.

[73]        
He also prepared a second report dated September 1, 2013 in which he
expressed the following opinions:

My diagnosis as stated in my last report dated August 16,
2012 has not changed.

I wish to add that Anna does have symptoms of depression. She
recently completed a patient health questionnaire (PHQ 9) which is used by physicians
to assess the degree of depression and she had a score of 12. The score puts
her in the category of moderate depression. A score of 1-4 means minimal
depression; 5-9 mild; 10-14 moderate; 15-19 moderately severe; 20-27 severe
depression.

In my opinion, her depression is related to the accident….

Prognosis

With psychiatric help to treat her depression and with the
help of a rehabilitation program to do proper stretching and strengthening
exercises, it is my opinion that there is still room for further improvement of
her symptoms. I am also of the opinion that she does not need to keep on
seeking passive treatment with massage therapist, chiropractic treatment and
physiotherapy treatment for now.

She needs to concentrate on doing all exercises taught to her
by the therapists. Referring her back for a structured rehabilitation program
such as that provided by “Back in Motion” or the “Canadian Back Institute” or
“KARP Rehabilitation” will be an option for future management.

She still has significant symptoms as noted above. Prognosis
remains guarded. Future re-assessment will be needed after she has had
psychiatric help and core rehabilitation and strengthening exercises through a
structured program.

In my opinion, I feel that there
is still room for improvement and progress. I also feel that she will be able
to continue working full-time at Telus as an administrative assistant.

[74]        
He stated that, in his opinion, if Ms. Carreon-Rivera takes medication
for depression, and receives cognitive behavioral therapy, she could improve.

Dr. William Craig

[75]        
Dr. Craig was qualified in the area of physical medicine and
rehabilitation. He examined Ms. Carreon-Rivera on August 17, 2012 and provided
a report dated September 7, 2012 in which he expressed the following opinions:

  Neck – It is my opinion that Ms. Carreon-Rivera
had a moderate soft tissue injury to her neck and right shoulder with possible
cervical facet injury, as a result of the October 16, 2009 accident. Based on
exam and the primarily right-sided symptoms, I do not think that the disc
bulges noted on the MRI are significant contributors to her symptoms. She may
have injured a right-sided cervical facet joint.

  Right Shoulder – I do not think that she had a
significant injury to the rotator cuff, as a result of this accident.

  Headaches – It is my opinion that her headaches
likely related to ongoing issues with her neck, due to injuries from the
October 16, 2009 accident.

  Mood – I would defer comments on diagnosis to a
psychologist or a psychiatrist.

Prognosis: Ms. Carreon-Rivera is almost three years
out from the October 16, 2009 accident. I suspect that there are some
concurrent mood issues which are a major barrier to further improvement. Her
mood and sleep issues need to be addressed in addition to her pain.

I feel that there is moderate room for improvement with the
treatment options outlined in the assessment section of this report. She should
be capable of starting a graduated return to work in the next few months, with
further treatment. I am concerned that a prolonged period of time off would be
a poor prognostic factor for return to full-time employment. I would expect
that with further treatment, she should be capable of all aspects of her
sedentary job.

I would encourage her to return to regular recreation. At
present, it is too early to say whether she could return to doing karate but I
would expect that she should be able to participate in other exercise such as
Tai Chi, yoga, or Pilates. At present, I suspect that these activities would
aggravate her symptoms but with further treatment she should be able to return
to them.

With further treatment, I would expect that she should be
able to do all of her activities of daily living without significant symptoms.
She should be capable of returning to all of her prior household tasks,
although she may have some initial flare in her symptoms as she increases the
amount she is doing around her house.

Ms. Carreon-Rivera was able to
return to work shortly after the October 16, 2009 accident and was able to
continue working for most of the following 2½ years. She reported that she was
working with significant discomfort at that time. The fact that she was able to
return to work and continue working is a favorable prognostic factor for her
being able to return to full-time work, after further treatment.

[76]        
Dr. Craig recommended referral for six to eight sessions of active
release therapy. Another option would be trigger point injections. He suggested
medication options including duloxetine gabapentin, baclofen, tapentadol and tramadol.
He stated that if she did not respond to these interventions, he would
recommend assessment of the cervical facets.

[77]        
With respect to her headaches, there were several additional treatment
options if addressing the neck symptoms did not resolve the headaches. These
included subcapital blocks or occipital nerve blocks and Botox injections as
well as medications including a beta blocker, calcium channel blockers and
topiramate.

[78]        
Dr. Craig stated that it was his opinion that Ms. Carreon-Rivera’s mood
issues are a barrier to improvement. His expectation is that her condition
would improve if she were to receive treatment for her mood issues.

[79]        
Dr. Craig stated that the fact that Ms. Carreon-Rivera was working was a
good diagnostic indicator that she would be able to continue in her employment
in the long term. His opinion was that if Ms. Carreon-Rivera followed the
treatment recommendations in his report, she should be able to continue working
full time at her present employment without impairment. It was his opinion that
Ms. Carreon-Rivera should be able to return to all of her activities of daily
living with the possible exception of heavy tasks such as moving furniture. She
should be capable of performing her prior household tasks.

[80]        
He did not recommend that Ms. Carreon-Rivera continue with passive
therapies such as physiotherapy and massage therapy except for a session or two
in the event of an acute flare-up of her symptoms.

Dr. Fadi Tarazi

[81]        
Dr. Tarazi was qualified as an orthopaedic surgeon. He examined Ms.
Carreon-Rivera on September 5, 2013 and prepared a report dated that same day
in which he expressed the following opinions:

OPINION:

In my opinion, the motor vehicle accident of October 16, 2009
has most likely caused cervical and lumbar myofascial soft tissue injuries.
This has affected the muscles and ligaments around the neck and back. This has
resulted in pain. With conservative therapy, her back pain has significantly
improved. However, she still has residual neck pain on the right side, which is
aggravated by physical activity. The cervical spondylosis consisting of disc
desiccation and disc protrusion/osteophyte complex likely pre-dated the motor
vehicle accident of October 16, 2009. However, this condition was asymptomatic.
The motor vehicle accident likely aggravated this spondylosis, which has
contributed to the pain. Treatment of Ms Carreon-Rivera’s neck injury should
continue to be conservative in nature. I recommend for her to continue with her
chiropractic treatments as well as a rehabilitation program, best directed by a
physiotherapist or kinesiologist. Such rehabilitation should focus on improving
her posture as well as strengthen her paraspinal, core and abdominal muscles.
She should also do the exercises that she has learned from these trained
professionals on an ongoing basis in a gymnasium setting. Even though these
exercises may not improve her pain or function significantly over time, they
will at least prevent any flare-ups of pain with physical activity. I would
recommend for her to take anti-inflammatory medications such as Celebrex 200 mg
daily, on an ongoing basis to control her pain. Short courses of narcotic
medications such as Tylenol #3 can be used for acute flare-ups of pain.

In summary, Ms Carreon-Rivera has
suffered significant soft tissue injuries to her neck and back as well as her
right shoulder. This is in addition to the aggravation of the pre-existing
cervical spondylosis. She still has ongoing pain in her neck and right
shoulder, which are affecting her physical activities. She will have to make
modifications to her activities to accommodate her symptoms. Her prognosis, for
a complete recovery, is quite guarded. In my experience, patients with
significant mood abnormalities, such as anxiety, depression or [difficulty] with
concentration and lack of focus, commonly have chronic pain from
musculoskeletal injuries. It would be best for her to be evaluated by a
psychologist or neurologist, who could hopefully treat these symptoms.

[82]        
Dr. Tarazi stated that Ms. Carreon-Rivera’s work station should be
adjusted. Telus has a group that performs such assessments and adjustments;
however Ms. Carreon-Rivera has not pursued that with her employer.

[83]        
Dr. Tarazi agreed with Dr. Craig’s suggestion of facet block injections
as a reasonable course for diagnostic purposes and then to address flare-ups.

[84]        
Dr. Tarazi stated that Ms. Carreon-Rivera’s mood is very relevant
because soft tissue injury symptoms become much more prolonged when there are
mood issues. It was his opinion that if Ms. Carreon-Rivera’s mood issues were
treated she would experience improvement but would likely have some level of
residual pain.

Dr. Robert Miller

[85]        
Dr. Miller was qualified as a psychiatrist. He examined Ms.
Carreon-Rivera on September 27, 2013 and prepared a report dated October 2,
2013 in which he expressed the following opinions:

2.   Has Ms.
Carreon-Rivera had any previous disabilities or conditions that have been
affected by this accident?

There is no evidence that suggests
Ms. Carreon-Rivera has had any pre-existing psychiatric conditions that
pre-disposed her to her current psychiatric symptoms or which have been
aggravated by the accident of October 2009.

3.   Your
opinion regarding the likely cause of Ms. Carreon-Rivera’s injuries and
conditions, including whether any pre-accident disabilities or conditions made
her more susceptible to the resulting injury.

Ms. Carreon-Rivera has developed
symptoms of depression since the 2009 accident. These symptoms did not come on
immediately but appeared to progress through 2010. [Their] progress was
associated with Ms. Carreon-Rivera feeling that she was unable to do many of
the things that she ought to be able to do within her family. She continued
working but believed that her performance at work had declined. The symptoms of
depression included, tiredness, problems with concentration, low mood,
decreased appetite, weight loss, guilt, passive suicidal ideation, and sleep
disturbance. These symptoms were, in my opinion, sufficient for a diagnosis of
a major depression disorder. These symptoms appeared to have onset in 2010,
although the first documentation of the symptoms in the collateral records was
in 2011. Ms. Carreon-Rivera’s symptoms of depression are related to her
experience of pain. It is beyond my expertise to say whether or not the pain
that Ms. Carreon- Rivera has experienced was caused by injury sustained in the
accident of October 2009. I do note, however, that the collateral information
that I have been provided states that this is the case. I would make a diagnosis
of a somatic symptom disorder with predominant pain.

It seems likely to me under those
circumstances that Ms. Carreon-Rivera’s symptoms of depression would not have
occurred but for the motor vehicle accident.

There are references to Ms.
Carreon-Rivera having sustained previous injuries in motor vehicle accidents.
It is beyond my expertise to say whether or not these contributed towards her
physical condition. There is no history to suggest that Ms. Carreon-Rivera had
a psychiatric condition prior to the accident that made her more susceptible to
the development of a psychiatric condition following the development of the
pain which she experienced in 2009/2010.

4.   Your
opinion regarding any vocational disability following the accident and how the
injuries may have affected Ms. Carreon-Rivera’s ability to look after her
personal care and any household duties or activities of daily living.

Ms. Carreon-Rivera’s abilities to
function seem to have been initially affected by her experience of pain. She
and her family had been active in karate and had also been active in other
sports, including tennis. I think it likely that Ms. Carreon-Rivera’s
participation in these activities was mentally beneficial for her and I think
it likely that her decision/need to withdraw from these activities was
detrimental towards her mood state.

Ms. Carreon-Rivera’s depressed mood
has likely contributed towards her having a pessimistic outlook with regard to
her possibilities for rehabilitation and her capabilities.

5.   Your
opinion regarding any future treatment recommendations or investigations.

Ms. Carreon-Rivera needs treatment
for depression. I would recommend that she is treated with antidepressant
medications, starting with an SSRI in a relatively low dosage but increasing as
required. If this were not to be successful in improving her mood state, I
would add in a medication such as Bupropion.

Ms. Carreon-Rivera requires
psychological treatment, including best practice cognitive behavioral
psychotherapy. I would initially recommend 12 – 16 sessions.

I would also recommend that Ms.
Carreon-Rivera is referred to a multidisciplinary pain clinic.

Ms. Carreon-Rivera requires
physical rehabilitation, as is recommended by the physical medicine specialist.

6.   Your prognosis including whether a complete recovery
is likely.

Ms. Carreon-Rivera has a major depressive disorder and a
chronic pain disorder. She has not thus far been afforded the opportunity for
comprehensive treatment for depression, nor has she been afforded the
opportunity for treatment in a pain clinic. I think that there is a reason to
hope that her state will improve with treatment. In my opinion, one would need
to see evidence of failure of response to several months of treatment for
depression, as well as multidisciplinary pain clinic management, before one would
be able to make statements as to whether or not complete recovery is likely. At
this time, I would remain hopeful.

[86]        
Dr. Miller testified that the recommended treatment for depression is
medication and counselling, in particular cognitive behavioral psychotherapy (“CBT”).
He stated that there was a 45-50% chance that medication will assist and a
60-70% chance that CBT will benefit the patient. He explained that benefit does
not necessarily mean removal of all symptoms, but rather improvement. With
respect to Ms. Carreon-Rivera, he stated that he believed that she had a good
chance of improvement with treatment for her depression, in the range of
50-70%. It was his opinion that with treatment Ms. Carreon-Rivera would become
more functional.

[87]        
Dr. Miller noted that Ms. Carreon-Rivera’s main vocational difficulty
appeared to relate to problems with concentration. He stated that such problems
can be a manifestation of depression.

[88]        
Dr. Miller stated that Amitriptyline is not part of his recommended
protocol for treatment for depression.

Dr. Terrance O’Farrell

[89]        
Dr. O’Farrell was qualified as an orthopedic surgeon. He did not examine
Ms. Carreon-Rivera, but prepared a report based upon his review of her records
in which he expressed the following opinions:

Impression: It is my
impression that this patient has not suffered a substantial organic injury that
she has some mild degenerative changes in her neck that may have possibly been
aggravated by the accident, but nothing more. It is my opinion that she will
have no significant long-term sequelae as a result of her accident of an
organic nature, that she will not be a surgical candidate as a result of her
accident, and that she should be fit physically to be able to return to her
normal duties.

[90]        
It was Dr. O’Farrell’s opinion that the mild degenerative changes were
not having any effect on the spinal cord or the nerves coming from it. He
agreed that it was possible that the spondylosis was accelerated by the
accident and would defer to Dr. Tarazi’s opinion regarding the aggravation
effect of the injury.

[91]        
He did not disagree with the conclusion that Ms. Carreon-Rivera had
chronic pain syndrome which required treatment.

Michael Smith

[92]        
Mr. Smith is an occupational therapist. He provided an opinion with
respect to Ms. Carreon-Rivera’s functional abilities and limitations related to
injuries incurred in the accident.

[93]        
Mr. Smith performed a functional capacity assessment and concluded that
in his opinion Ms. Carreon-Rivera demonstrates the requisite functional
capacity to manage the demands of her position as an Executive Assistant.

Credibility

[94]        
With two qualifications I found Ms. Carreon-Rivera’s evidence to be both
a credible and reliable account. Her evidence of her situation before and after
the accident was consistent with the evidence of her husband and two
co-workers. She gave her evidence in a careful fashion. For the most part, her
evidence was consistent with the record of the progress of her symptoms as
recorded in the clinical records.

[95]        
The first qualification is that I believe that Ms. Carreon-Rivera’s account
of the degree of her disability and the course of her symptoms is somewhat more
pessimistic and negative than is warranted. I think that this feature of her
evidence is consistent with her depression. As Dr. Miller noted, her “depressed
mood has likely contributed towards her having a pessimistic outlook with
regard to her possibilities for rehabilitation and her capabilities”.

[96]        
The second qualification is in relation to Ms. Carreon-Rivera’s evidence
concerning treatment for depression. In this area I felt that Ms.
Carreon-Rivera was attempting to argue her case as opposed to providing
evidence and I did not find her account in this area to be particularly credible.

Non-Pecuniary Loss

[97]        
Ms. Carreon-Rivera submits that the appropriate range for non-pecuniary
loss is $90,000 to $110,000, citing the following cases: Foran v. Nguyen,
2006 BCSC 605; Testa v. Mallison, 2009 BCSC 957; Tabet v. Hatzis,
2013 BCSC 1167; Ahonen v. Thauli, 2013 BCSC 1607; MacKenzie v. Rogalasky,
2011 BCSC 54; Prince-Wright v. Copeman, 2005 BCSC 1306; Neumann v.
Eskoy, 2010 BCSC 1275; and Verge v. Chan, 2012 BCSC 876.

[98]        
The defendant submits that the appropriate award for non-pecuniary loss
is $55,000, citing Sharifi v. Chaklader, 2012 BCSC 685; Middleton v.
Morcke and Lee, 2007 BCSC 804; and Naidu v. Mann, 2007 BCSC 1313.

[99]        
The approach to be taken by the court in the assessment of damages for
non-pecuniary loss was summarized by Madam Justice Wedge as follows in O’Rourke
v. Kenworthy, 2009 BCSC 1277 at paras. 84 and 85:

[84]      An award of damages for non-pecuniary loss must
address the specific circumstances of the individual case. It is not possible
to develop or point to a tariff to set the award: Stapley v. Hejslet,
2006 BCCA 34 at para. 45, 263 D.L.R. (4th) 19.

[85]      Various factors have
been considered by the courts when assessing a claim for non-pecuniary loss. In
Stapley, Kirkpatrick J.A., writing for the majority of the Court of
Appeal, identified the following factors at para. 46:  the age of the
plaintiff; the nature of the injury; the severity and duration of pain; ongoing
disability; emotional suffering; loss or impairment of enjoyment of life;
impairment of family, marital and social relationships; impairment of physical
and mental abilities; and loss of lifestyle. The Court also observed that the
plaintiff should not be penalized for his or her stoicism.

[100]     I am
satisfied that, as a result of the accident, Ms. Carreon-Rivera has suffered
soft tissue injuries to her neck, right shoulder and back. In addition, she
suffered an aggravation of cervical spondylosis that, but for the accident, would
have remained asymptomatic for at least another 10 to 20 years. I am satisfied
further that Ms. Carreon-Rivera suffers from recurrent headaches that are
related to the accident. In addition, her pain has become chronic, or, as Dr.
Miller states, she has a somatic symptom disorder with predominant pain.
Finally, Ms. Carreon-Rivera suffers from a major depression disorder that I
find is related to her pain and is the result of the accident.

[101]     These
injuries have had a negative impact on Ms. Carreon-Rivera’s life, particularly
in her social and recreational activities and family life. Prior to the
accident, she was active and animated, very involved in her home and with her
family, and active in many sports. Since the accident she has withdrawn from
social and family life. Her husband has taken over much of her role in the home
with respect to the cooking, cleaning and organizing the children. While before
the accident Ms. Carreon-Rivera was very involved with her children, since the
accident she has withdrawn, feeling too overwhelmed to deal with issues that
have arisen. This has been a source of great distress for her.

[102]     Ms.
Carreon-Rivera continued to work except for one period off at the
recommendation of Dr. Lui. She has continued to receive strong performance
appraisals and has secured a new executive to report to in the period since the
accident. However, her impression is that her abilities at work have been
impaired; and this impression has contributed to her distress. While it is
clear from her appraisals that she remains a capable employee, her performance
is accomplished at a great cost in terms of fatigue and lack of energy for
other activities.

[103]     The
defendant argues that the headaches have both a cervicogenic and a migrainous
component and that since the migraine-like symptoms only appeared in 2012, they
are not related to the accident. However, Dr. Craig stated that Ms.
Carreon-Rivera had many of the features he sees typically in people with
cervicogenic headaches. He stated that headaches are often multifactorial and
that if there is a predisposition to migraine, the accident will make the
patient more susceptible so that they would have more difficulties after.

[104]     Ms.
Carreon-Rivera had a minor history of migraines before the accident. She had
been treated for migraine in 2003 but had no further treatment for migraine
until after the motor vehicle accident.

[105]     I have
concluded that the headaches Ms. Carreon-Rivera experienced are related to the
accident and that it is not appropriate to treat them as somehow divisible.

[106]     In my view
the real issue here is the question of Ms. Carreon-Rivera’s prognosis. The
clear consensus of the medical opinion is that Ms. Carreon-Rivera’s present
condition is strongly influenced by her depression. The depression and the pain
are interrelated. There is also evidence, which I accept, that appropriate
treatment for depression will improve her condition. In addition, recommendations
have been made for treatments for headache and neck pain that she has not
undertaken. In these circumstances it is not appropriate to conclude that Ms.
Carreon-Rivera’s circumstances have plateaued and that her condition is likely
to continue largely unchanged. In this respect her condition is not as serious
as that in the cases cited by plaintiff’s counsel.

[107]     Having
considered the specific circumstances of Ms. Carreon-Rivera and the factors
identified in the case law as relevant, together with the authorities cited by
counsel, I award $80,000 for non-pecuniary loss.

Mitigation

[108]    
A plaintiff in a personal injury action has a positive duty to mitigate
her loss. This duty includes an obligation to undertake reasonably available
treatment that would assist in alleviating or curing her injuries: see Gilbert
v. Bottle, 2011 BCSC 1389 at para. 201.

[109]     The onus
is on the defendant to prove that the plaintiff could have avoided all or a
portion of her loss. In a personal injury case in which the plaintiff has not
pursued a course of medical treatment recommended to her by doctors, the
defendant must prove two things: (1) that the plaintiff acted unreasonably
in eschewing the recommended treatment, and (2) the extent, if any, to
which the plaintiff’s damages would have been reduced had she acted reasonably.
See: Chiu v. Chiu, 2002 BCCA 618 at para. 57, citing Janiak v.
Ippolito, [1985] 1 S.C.R. 146.

[110]     The
defendant seeks a reduction of 40% from the claim for non-pecuniary general
damages due to Ms. Carreon-Rivera’s failure to mitigate. Counsel submits that Ms.
Carreon-Rivera’s principal failure to mitigate stems from her refusal to follow
the advice of her treating and consulting physicians to seek treatment for
depression. Drs. Miller, Tarazi and Craig all discussed Ms. Carreon-Rivera’s pain
being interrelated with her depression. Those doctors and her family physician
all recommended that Ms. Carreon-Rivera receive treatment for depression.

[111]     Counsel
notes that Dr. Leong-Sit recommended counselling in September 2012. In
September 2012, Dr. Craig recommended further assessment of her depression,
noting that this can be a major barrier to recovery and can also impact pain
threshold and perceived capacity. Ms. Carreon-Rivera did not seek either
further assessment or treatment. Dr. Miller recommended a combination of CBT
and medication at the end of September 2013. However, Ms. Carreon-Rivera rejected
medication and did nothing to even inquire about treatment until the week
before trial.

[112]     In
addition, counsel notes that Ms. Carreon-Rivera has also disregarded the advice
of Dr. Craig with respect to recommended medications and the combined facet
block and rhizotomy treatment. Both Dr. Craig and Dr. Dilli suggested Botox
treatments which Ms. Carreon-Rivera has not undertaken.

[113]     Ms.
Carreon-Rivera submits that she acted reasonably having regard to the
information in her possession and when it came into her possession. Counsel
states that her depression did not become real for Ms. Carreon-Rivera until
after Dr. Miller’s examination, at which time she sought a referral from Dr.
Leone-Sit.

[114]     I do not
agree with the plaintiff’s characterization of the facts. As noted earlier, I
am satisfied that Dr. Leone-Sit did recommend that she seek counselling for
depression. Ms. Carreon-Rivera rejected the recommendation. Ms. Carreon-Rivera stated
that it was only after she had been assessed by the psychiatrist that the
diagnosis became real for her. However, Dr. Craig, while not a psychiatrist, is
a specialist in the area of physical medicine and rehabilitation; Dr. Craig also
stressed the importance of addressing her mood issues and recommended that she
receive further assessment in September 2012, yet she did not seek out such an
assessment.

[115]     Moreover,
Dr. Miller’s examination was in September 2013. It is not accurate to state
that she then sought a referral. She did nothing to act upon this
recommendation until Dr. Leone-Sit ordered all the reports in November. She
took no action until shortly before trial. In addition, she did not follow Dr.
Miller’s recommendations regarding medication. Ms. Carreon-Rivera stated that
Dr. Leone-Sit told her that Dr. Miller had recommended inappropriate
medications. I find that no such conversation occurred. Rather, Ms.
Carreon-Rivera indicated to Dr. Leone-Sit that she was not prepared to take
anti-depressant medication.

[116]     Counsel
submits, in addition, that the defendant has failed to show the extent to which
the damages would have been reduced by that treatment as required by the second
part of the test. Counsel submits that the defendant has not demonstrated that Ms.
Carreon-Rivera‘s damages would have been reduced had she sought treatment
earlier.

[117]     Dr. Miller
stated that with appropriate treatment he believed that Ms. Carreon-Rivera had
a good chance of improvement, in the range of 50-70%. However, improvement is
not to be taken as an elimination of her symptoms. I am satisfied that the
defendant has established that Ms. Carreon-Rivera’s refusal to seek appropriate
treatment for depression was unreasonable and that there was at least a 50%
chance that she would have experienced a substantial improvement in her
symptoms and functioning had she done so. I find that Ms. Carreon-Rivera failed
in her duty to mitigate her loss. Because appropriate treatment would not
likely have eliminated Ms. Carreon-Rivera’s symptoms entirely, I reduce the
award for non-pecuniary loss by 10% to account for this failure to mitigate.
The plaintiff is therefore entitled to receive $72,000 in non-pecuniary damages
after the appropriate deduction for her failure to mitigate is made.

Past Wage Loss

[118]     As noted
above, by agreement the award for past wage loss is $27,000.

Special Damages

[119]     Also as
noted above, the parties have agreed that the plaintiff should be awarded
$16,189.18 for special damages.

Loss of Future Earning Capacity

[120]     The
threshold question to be determined by the court in relation to a claim for
loss of future earning capacity is whether there is a real and substantial
possibility of a future event leading to an income loss: see Perren v.
Lalari, 2010 BCCA 140 at para. 32.

[121]     Ms.
Carreon-Rivera seeks an award of $100,000 for loss of future earning capacity.
Counsel submits that Ms. Carreon-Rivera remains impaired and that she will need
to take time off work to attend to her rehabilitation and as necessary should
her symptoms flare up in the future. It was submitted that Ms. Carreon-Rivera requires
accommodations from her employer that she did not require before the accident.
She requires time off work to attend treatment and the ability to work from
home.

[122]     In
addition, counsel submits she is not the employee that she once was. Her memory
and concentration have been impaired, and her attendance is no longer reliable.
Further, she has lost confidence in herself as an employee.

[123]    
Counsel submits that:

…[Ms. Carreon-Rivera] cannot continue in the manner she has
since the accident. Something has to give in order to balance her professional
and home life. She needs:

(1)  counseling;

(2)  a
structured rehabilitation program for her chronic neck and shoulder pain;

(3)  continued
accommodation in the work place which would include flexible hours and time off
work to deal with flare-ups and headaches; and

(4)  continued passive treatment (ie:
physiotherapy, chiropractor, and massage) to deal with flare-ups and address
her discomfort.

[124]     Finally, counsel
submits that before the accident, Ms. Carreon-Rivera planned to work to age 65
and it was probable that she would have done so given her good health and
commitment to work. However, there is now a substantial possibility that
because of her chronic mental and physical condition she will not be able to
work to age 65.

[125]     The
defendant submits that the plaintiff has failed to prove that there is a real
and substantial possibility that she will suffer a loss of future earning
capacity as a result of the accident in that:

(a)      there
is general agreement as between her medical experts that she is not restricted
by her injuries in performing her duties of employment;

(b)      her
occupational therapist performed extensive functional testing and determined
that she was restricted with respect to looking up, overhead reaching and far
extended reaching, none of which are required for her work. He concluded that
the plaintiff is not restricted in her current position as an executive
assistant;

(c)      she
has continued to work full time as an executive assistant since the accident,
save for a four-month absence recommended only by Dr. Lui. Although Dr. Tarazi
effectively ratified Dr. Lui’s advice after the fact, Dr. Craig stated in
cross-examination that he did not consider such a lengthy absence from work as
a suitable therapeutic tool;

(d)      her
performance reviews since the accident have been favourable; and

(e)      as evidence
that she is somehow diminished in her ability to perform her duties of
employment and maintain her position as an executive assistant, she cites only
her own feeling of a reduction in her level of confidence and perceived but
unsubstantiated diminution of her corporate reputation.

[126]     I have
concluded that Ms. Carreon-Rivera has not established that there is a real and
substantial possibility that she will sustain a future loss of income. I note
that Ms. Carreon-Rivera has continued to work full time since the accident
except for the four-month absence recommended by Dr. Lui. I agree with the
submission of the defendant that there is general agreement among the medical
experts that Ms. Carreon-Rivera is not restricted by her injuries in performing
her duties. In particular, it was Dr. Craig’s opinion that in the long term she
will be able to continue working full time at her occupation without
impairment. This was also the conclusion reached by the occupational therapist.

[127]     In
addition, as noted above, Ms. Carreon-Rivera has not received treatment for
depression. As I have concluded earlier, such treatment is likely to have a
positive effect on her pain and mood symptoms. In addition, there are a number
of treatment modalities recommended by Drs. Dilli and Craig that have not been
explored to deal with Ms. Carreon-Rivera’s headaches and neck pain. Thus, at
present, Ms. Carreon-Rivera’s injuries do not prevent her from performing her
work functions and with appropriate treatment her condition is likely to
improve.

[128]     Ms.
Carreon-Rivera has stated that she requires flexible hours to accommodate treatment
and the ability to work from home. However, the treatment she refers to are
passive treatments. With respect to those therapies, Dr. Craig stated that he
would not recommend that they continue except for perhaps a session or two in
the event of an acute flare-up. Dr. Leone-Sit stated that she does not need to
keep seeking passive treatment through massage, chiropractic treatment and
physiotherapy.

[129]     Ms.
Carreon-Rivera has suggested that she requires time off work to undertake
treatment. While it is the case that various treatments have been recommended,
there is no evidence that she would require a leave of absence from work to
undertake any or all of these interventions. While Ms. Carreon-Rivera has in
the past worked from home, there is no medical evidence that this is an
accommodation that she requires. In addition, since she has started work with
her new executive she has not been working from home, suggesting that this is
not an accommodation that she requires.

[130]     I make no
award under this head of damages.

Past Diminished Housekeeping Capacity

[131]    
As noted in Foran v. Nguyen et al, 2006 BCSC 605 at paras. 115
and 116:

[115]    An award for loss of housekeeping capacity is
designed to compensate a plaintiff for his/her loss of ability, or diminished
capacity, to do regular housekeeping tasks.  Depending on the circumstances,
loss of housekeeping capacity may fall under any of five heads of damages
(non-pecuniary damages, special damages, past loss of income, cost of future
care or loss of future earning capacity) – or it may constitute its own
separate head of damages: McTavish v.
MacGillivray, 74 B.C.L.R. (3d) 281, 2000
BCCA 164; Kroeker v. Jansen (1995), 4 B.C.L.R. (3d) 178, 123 D.L.R. (4^th)
652 (C.A.).

[116]    Where family members
have provided replacement services, the scope of that assistance may help the
Court determine what services were reasonably necessary: Sorenson v. Muker,
2002 BCSC 204 at para. 50

[132]     Prior to
the accident, Ms. Carreon-Rivera did the majority of the cooking and indoor
housework. Since the accident, Ms. Carreon-Rivera cooks only on occasion. She
does laundry with some assistance from the children. Her husband and the
children have assumed the other household chores.

[133]     Ms.
Carreon-Rivera seeks an award of $10,000 under this category. The defendant
submits that no award should be made in this category, relying on the opinion
of Dr. Craig that if Ms. Carreon-Rivera followed his recommended treatment, she
would be able to resume all of her usual activities including regular
housework. In addition, counsel submits that Ms. Carreon-Rivera had a very busy
life before the accident and likely spent little time on household matters. There
is only vague evidence with respect to the extent of her loss.

[134]     I am
satisfied that housekeeping activities and cooking formed a significant part of
Ms. Carreon-Rivera’s busy life before the accident and that as a result of her
injuries, including her fatigue, other members of the family have had to
perform tasks she has been unable to do. I agree that it is likely that had she
followed Dr. Craig’s recommendations, she would have been able to resume her
duties at home either in full or to a great extent. However, in my view there
has nonetheless been a compensable loss and I award $8,000 for this head of
damages.

Cost of Future Care

[135]     The legal
principles governing an award for cost of future care were recently summarized
by Mr. Justice Wong in Campbell v. Swetland, 2012 BCSC 423 at para. 198.
The summary included the following:

(a)      there
must be a medical justification for claims of cost of future care;

(b)      the
expense should not be a squandering of money. In considering any particular
item of future care, the test is whether a reasonably minded person of ample
means would incur the expense;

(c)      the
weight to be given to an opinion on future care will depend on the extent to
which recommendations for things like psychological counseling and
physiotherapy are supported by the evidence of experts within the relevant
field of expertise; and

(d)      awards
for cost of future care must be reasonable, both in the sense of being
medically required and in the sense of being costs that, on the evidence, the
plaintiff will be likely to incur.

Passive Therapies

[136]     Ms.
Carreon-Rivera seeks 12 treatments per year for life at a cost of $26,802.36.
Counsel notes that Ms. Carreon-Rivera has been going to physiotherapy since the
accident and currently receives chiropractic treatment once a week and massage
therapy twice a month.

[137]     The
defendant notes that Drs. Craig and Leone-Sit are not recommending passive
therapies, except on occasion in response to acute symptom flare-ups. I
conclude that the appropriate award is for the lower end recommended by Mr.
Smith, the plaintiff’s consultant occupational therapist, that is $480 annually
for 19.422 years, totalling $9,323.

Gym and Pool Fees

[138]     Ms.
Carreon-Rivera seeks $8,526.26 as the present value of a gym pass and $420 as a
one-time cost of four to six sessions of instruction on a proper exercise program.
The defendant accepts that these have merit and they are consistent with Dr. Craig’s
recommendations. I therefore award $8,946.

Counselling

[139]     Ms.
Carreon-Rivera seeks the costs of a multidisciplinary pain program, being
$2,720 for the initial review and $13,560 for the program, together with $2,720
for ongoing psychotherapy to address depression after the initial treatment.
These are all consistent with Dr. Miller’s recommendations.

[140]     The
defendant submits that Ms. Carreon-Rivera has demonstrated through her actions
that she is not likely to follow Dr. Miller’s recommendations.

[141]     I think
there is reason to believe that Ms. Carreon-Rivera will finally address her
depression and follow Dr. Miller’s recommendations. She did at least follow up
on the referral to a psychologist before trial.

[142]     I therefore
award $2,720 for the initial assessment, $13,560 for the pain clinic and $2,720
for further psychotherapy for a total of $19,000.

Housecleaning

[143]     Ms.
Carreon-Rivera seeks $2,600 annually for the first 10 years and then $3,120 for
the next 15 years for housecleaning assistance, amounting to a present day
total of $21,710 and $28,282.80 respectively.

[144]     The
defendant submits that no award should be made in this category on the basis of
Dr. Craig’s opinion that, with appropriate treatment, Ms. Carreon-Rivera should
be able to do all of her normal household duties.

[145]     I agree
with the submission of the defendant and make no award under this category.

Medication

[146]     Ms.
Carreon-Rivera seeks $5,588.49 for medications. This is the present value of
the medications that she currently takes to control her symptoms. The defendant
submits that the Amitriptyline was prescribed to treat an unrelated condition
and notes Dr. Dilli’s comments regarding overuse of analgesic medications.
However, I have concluded that the Amitriptyline was not prescribed for an
unrelated condition. Ms. Carreon-Rivera currently only takes over-the-counter
medication on an occasional basis to control her pain on bad days.

[147]     I have
concluded that an award of $5,589 is appropriate.

Assessments

[148]     Ms.
Carreon-Rivera seeks a home-based ergonomic assessment together with ergonomic
equipment – a chair tray and monitor mount. These items total $3,669. When
Ms. Carreon-Rivera works from home or uses her computer at home, at present she
sits on the couch with her laptop on her lap. That cannot be doing her neck any
good and this is a relatively modest expenditure which I find to be
appropriate. I award $3,669.

Total

[149]     In the
result I have made the following awards for the cost of future care:

Conclusion

[150]     It is
clear that Ms. Carreon-Rivera has suffered both emotional and physical injuries
as a result of the accident. Taking into account her failure to mitigate some
of her non-pecuniary losses, I award the plaintiff the following:

[151]     I have
made no award for a loss of future earning capacity. Absent any facts of which
I am unaware, the plaintiff is entitled to her costs.

“Ross J.”