IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140429

Docket: M120312

Registry:
Vancouver

Between:

Fang-Lan Chiang

Plaintiff

And

Andrew Richard
Medland
and Lang’s Ventures Inc.

Defendants

Before:
The Honourable Mr. Justice McEwan

Reasons for Judgment

I

[1]            
The plaintiff is a 65-year old woman who lives in Surrey. She was
injured in a motor vehicle accident on February 3, 2010 at the intersection of
Fraser Highway and 148th Street. The accident was a low speed rear-ender which
caused minimal damage to the vehicle. The ICBC estimators who assessed the
damage both considered the claims to be “cosmetic.” Photographs in evidence
show some scuffing on the bumpers of the vehicle, with no deformation.

[2]            
From this incident the plaintiff claims near total disability and severe
psychiatric symptoms. These claims are supported by the plaintiff’s family
doctor, Dr. Chen; by a physiatrist, Dr. Koo; and by a very experienced
psychiatrist, Dr. Shaila Misri. The plaintiff has attended numerous
physiotherapy, water therapy and acupuncture treatments with only temporary
relief from pain.

[3]            
The plaintiff’s claims are doubted by Dr. Marc Boyle, an orthopaedic
surgeon who prepared an independent medical examination for the defendants.

[4]            
The plaintiff’s injuries do not, on the limited evidence given in court,
seem to be compounded by social or family stresses. The plaintiff and her
husband live in a large home on a large tract of land which is beautifully landscaped,
reflecting their passion for gardening. They appear to be affluent, and there
was no suggestion of financial stress. The plaintiff and her husband are the
parents of three grown children each of whom attended prestigious universities
and have gone on to professional careers.

[5]            
The plaintiff’s husband, Chao Hsin Lai, testified. He appeared to be
kind and very accommodating of the plaintiff’s condition, which has had a
serious impact on his life as well. The plaintiff no longer cooks and cleans or
gardens as she once did. Mr. Lai has taken up the slack, and has also, at times,
had to assist with the plaintiff’s personal care, even to the extent of helping
her dress and undress.

II

[6]            
The medical record is quite detailed. Dr. Helen Chen, the plaintiff’s
family physician, saw the plaintiff on February 5, 2010, two days after the
accident. At that time she complained of “left sided arm, back and leg pain”.
Dr. Chen described her findings:

On exam, she had tenderness over
C4-6 midline. She had tenderness over her right trapezius, right paracervical
muscles, and right infraspinatus muscle. She also had tenderness over right
lower lumbar region. Neck range of motion showed reduced extension, left
rotation and left lateral flexion. Her back range of motion was normal. I felt
that she had soft tissue injuries of her neck and back region, and recommended
icing, stretching, physiotherapy and massage therapy. She could also take
Tylenol for pain if needed.

[7]            
The plaintiff had a prior medical history which was briefly outlined by
Dr. Chen:

Ms. Chiang was diagnosed with stomach cancer in 2006 and had
her stomach removed in October 2006. She is prone to having stomach discomfort,
poor appetite and bloating since surgery. She also needs to take iron and B12
supplements following her stomach surgery. She has hypothyroidism for many
years for which she takes thyroid replacement medication. She was also treated
for osteoporosis with a medication until summer of 2012. I saw her in May
and July 2009 when she complained about feeling anxious since her
diagnosis of stomach cancer. She was also feeling a bit depressed and having
low energy and poor sleep. She declined medication and wanted to use
meditation [to] manage her symptoms then. There were no other visits between
July 2009 and the time of the accident regarding depression or anxiety. [Emphasis
added.]

She was involved in a motor-vehicle accident in 2000, in
which she was rear-ended and had some neck and back injuries. She had some
physiotherapy and eventually got better after about a year. From November 2008
when I first started seeing her to the time of her motor vehicle accident in
2010, she did not see me regarding any neck and back problems.

Prior to the accident, she lived
with her husband in a house in Surrey. Both of them were retired. She managed
most of the cooking, cleaning, laundry and gardening.

[8]            
The plaintiff did not return to Dr. Chen until April 26, 2010. In the
meantime she had taken chiropractic treatments. Dr. Chen noted:

She continued to have pain in her neck, upper shoulders, left
arm and left leg. She felt her left leg was weak. She had been attending
chiropractic treatment since March. She was going twice a week initially then
down to once a week by the time I saw her. The treatment only provided
temporary relief of her pain for about a day or so each time. On exam, she had
tender bilateral trapezius and bilateral paracervical muscles. She also had
pain in her inside upper left arm and in her left calf. I ordered x-rays of her
cervical and lumbar spines to rule out nerve compression since she complained
about her left arm and left leg discomfort. I also recommended physiotherapy in
addition to chiropractic treatment.

She had the x-rays done on July 9, 2010. There was disc space
narrowing at C3-4 and C6-7 with some marginal spur formation due to
degenerative changes. There was severe disc narrowing at L5-S1 in her lumbar
spines. There was no spondylolisthesis or subluxation.

She returned on July 14, 2010 for
follow-up. She still had low back pain and left leg pain. She still felt her
left leg was weak. She continued with weekly chiropractic treatment which
helped her neck. She could not take any medicine due to her stomach issues. I
discussed the x-ray report with her, and I also requested a CT scan for her
back.

[9]            
The next visit was on October 12, 2010. By this time the plaintiff had
fallen twice, once on September 23, 2010, which the plaintiff attributed to
left side weakness, and again on October 10, 2010 going up some stairs at her
house. The plaintiff’s complaints on October 12 were noted by Dr. Chen:

On exam, she had weakness in her right leg so that she could
not point her toes down. She also had pain on both sides of her back when she
raised her legs up straight. She had no sensory changes in her
legs, and her reflexes were normal. Her appointment for lumbar CT was in two
weeks time. I also ordered knee x-rays due to the falls.

She got the
x-rays done on October 12, 2010. This showed that there was mild narrowing of
the joint space medially in both knees which usually indicated that she had
mild degenerative arthritis.

[10]        
Dr. Chen described the CT scan results:

Ms. Chiang had CT scan of her lumbar spines on October 21,
2010 at Surrey Memorial Hospital. This showed the following abnormalities:

1.     At L3-4 level, there was mild
circumferential disc bulge and mild facet hypertrophy. The thecal sac is
flattened anteriorly.

2.     At L4-5 level, there was
moderate circumferential disc bulge and left paracental disc protrusion. There
was moderate central canal stenosis. There was also mild bilateral fact
hypertrophy. The left traversing L5 nerve root maybe impinged at this level.

3.     At L5-S1 level, there was
circumferential disc osteophyte with central and left paracentral disc
protrusion. There was mild facet hypertrophy. The traversing left S1 nerve root
was contacted by disc material, and may be impinged.

Ms. Chiang came back on November
10, 2010 for follow-up. She saw my locum, Dr. Carolyn Yeung, that day. Dr.
Yeung reviewed the CT scan report with her. The patient still had pain in her
right leg from the back of her thigh to her lower leg, as well as right leg
weakness. She found it hard to get up from a chair. Dr. Yeung made a referral
for her to see Dr. Maziar Badii, a rheumatologist and spine medicine
specialist, regarding nerve impingement causing leg pain.

[11]        
Dr. Chen saw the plaintiff on December 7, 2010. By this time, and in
subsequent visits, the plaintiff’s complaints were primarily of right sided
pain and weakness:

She saw me on December 7, 2010. She had ongoing weakness in
her legs, but worse on the right side. This was initially left-sided following
the accident and became more on the right following her fall on October 10. She
had trouble walking even. She was not getting any therapy at that point. On
exam, she had pain in her right lateral thigh to her knee then to her ankle. I
recommended physiotherapy and massage therapy for her while she was waiting to
see the specialist.

I saw her next on January 12, 2011. She was getting some
physiotherapy, but her right knee was still very sore. She also had ongoing
right leg weakness, and she was fearful of falling again. Her left leg had
improved. On exam, there was no swelling in her right knee. She had normal
movements but she had weakness in her right leg. I prescribed Celebrex (an
anti-inflammatory medication) for six days and Nexium (medication to protect
her stomach while taking Celebrex) for seven days. I also made a referral to
Dr. William Yu, an orthopedic surgeon, to assess her right knee.

On February 8, 2011, she had ongoing right knee pain and
weakness. After sitting on the toilet, she had trouble standing up. She could
not stand very long either. She also could not fully bend her right knee. She
was attending physiotherapy twice a week for her knee. On
exam, her knee looked normal but she could not fully flex it. I wondered if she
had a knee meniscal tear. I recommended another twelve more physiotherapy
sessions.

On March 2, 2011, she reported that she was
getting physiotherapy for her leg and shoulder. This was helping her. Her back
and left side were getting better, but her right leg was still weak. She could
sit and stand longer without pain.

She saw Dr. William Yu regarding her right
knee on March 11, 2011. Dr. Yu also was suspicious for a medial meniscal tear
in her right knee. He suggested a knee MRI.

The patient went for a private MRI of her
right knee at CMI on March 14, 2011. This showed the following abnormalities:

1.     A thickened or discoid
lateral meniscus which was a congenital abnormality.

2.     She also had
superimposed complex tear of that meniscus involving both the anterior and
posterior horns.

3.     She had a
functionally intact ACL but apparent discontinuity of the lateral bundle suggesting
prior partial injury of ACL.

4. There was small joint effusion and popliteal cyst.

[12]        
Visits on April 15, 2011 to January 10, 2013 relate primarily to the right
knee and shoulder.

[13]        
On January 24, 2012, there was a complaint of pain in both
shoulders.

[14]        
By September 11, 2012 the plaintiff’s pain was again primarily on the
left side:

She came back on September 11, 2012. Her left leg got worse
after August 19. She walked for about 500 meters with her granddaughter then
she had really severe pain in the back of her knee since. She felt weak in that
knee and could not fully weight bear or fully extend her knee. She also had to
cancel her MIBI scan appointment which involved exercising on a treadmill
during the test. She started getting acupuncture again. On exam, her left knee
was not swollen, but she could not fully flex her knee due to pain. She also
had a limping gait. Her knee pain was in the back of her knee but not one
particular area. I rescheduled her MIBI scan to another type so she did not
have to exercise for the test. I suggested ongoing acupuncture to treat her
knee pain. I recommended a cane for her to prevent falls as her legs seem weak.

On October 9, 2012,I saw Ms. Chiang for follow-up. Her MIBI
scan was normal. Her left knee was still weak and painful. She was going back
to Taiwan to visit family, so she wanted me to write a note for her to see a rehabilitation
specialist there.

She then saw me on January 9, 2013. She came back from Taiwan
on Dec 12. She received quite a lot of treatment in Taiwan including water
therapy, and that helped. She complained about left leg weakness and muscle
cramps in her left leg. Her back was also sore and she was not able to bend
pass 90 degrees. She could not sit or stand too long. She started using a cane
when walking as she was afraid of a fall. She continued to have pain in her
left shoulder and left upper back. I recommended more physiotherapy and
acupuncture. I also prescribed a muscle relaxant, Flexeril, and a pain
medication, gabapentin, for her. I also referred her to see Dr. Badii again.

She came back on February 6, 2013. She was still having quite
a lot of pain in the left side of her body including back, arm and leg. She
tried taking gabapentin but she did not notice any improvement, and it caused
some burning in her stomach. She was walking with a cane. She had been feeling
more tired, so she did not go to acupuncture. She also felt more forgetful.

On June 7, 2013, Ms. Chiang saw me and told me that she was
still having almost constant pain in her left shoulder, upper back, left leg
including her knee. She was not able to move her shoulder very much. She did
not attend physiotherapy as ICBC would not pay for her visits. She was doing
exercises at home. She saw Dr. Badii on February 25, but I did not get a copy
of his letter. He recommended a cortisone injection in her shoulder, but the
patient declined. I felt that she had developed frozen shoulder, and felt the
cortisone injection might help. I discussed about the cortisone injection, and
recommended the patient to contact Dr. Badii’s office to arrange for the
injection.

I saw her on July 23, and she was essentially the same. She
could not use her left arm at all, even putting on clothes. She was not getting
any therapy then as ICBC did not cover for her treatment. She could not
tolerate any medication due to her stomach problems. I ordered x-rays of her
left shoulder.

She had the x-rays done on July
31 which showed mild AC joint degeneration and mild AC joint subluxation.

[15]        
By September 10, 2013, there had been significant deterioration, which apparently
persists to the present:

I saw Ms. Chiang on September 10, 2013. Her left shoulder
pain was still really severe, and she could not do many of her chores and
activities including dressing herself. She was going to acupuncture but did not
get much relief, and she was also really scared of the needles. She was
hesitant to get physiotherapy as she felt it made her worse at some point. She
was doing Tai Chi, and using a topical anti-inflammatory medication. She did
not find any of these therapies really helpful. On exam, she was tender over
her left anterior shoulder, the top lateral part of her chest wall, posterior
shoulder and outer subscapularis muscle. She was only able to move her shoulder
about 50% of normal in all directions. She also reported ongoing shortness of
breath. She had no fever, cough or wheezing. We discussed further about trying
cortisone injection to relieve her shoulder pain since nothing had worked so
far. She agreed to proceed, so I gave her a cortisone injection into her
shoulder that day. I also ordered a pulmonary function test and an
echocardiogram to assess her shortness of breath.

Then on October 9, you and I had a telephone conversation
regarding Ms. Chiang’s independent medical assessment with Dr. Shaila Misri, a
psychiatrist, done on September 18. Dr. Misri was concerned that the patient
had become increasingly depressed over time since the motor vehicle accident,
and the patient had disclosed to Dr. Misri that she recently started feeling
suicidal.

I asked her to come in to my office after our conversation,
and I saw her on October 16. She confirmed that she had been feeling
increasingly depressed over the past while after the accident. Her mood got
much worse since September. She felt hopeless as she was in constant pain all
the time and she was not getting better. She had passive suicidal thoughts like
"life was not worth living". She had no plans for actual suicide. She
had lost interest, and did not feel like leaving her house or talk to anyone.
She had become very dependent on her husband for everything, so she felt very
guilty and useless. She had trouble walking and using her arms especially the
left one. The cortisone injection helped the pain around the shoulder but now she
had pain further down her arm. She was not sleeping well, waking up constantly.
She felt tired. She also lost her appetite, and had to force herself to eat.
She also became very scared of driving. She almost stopped driving altogether.
Her husband had been very supportive, but she did not want to tell him about
her feelings so not to make him worried. During the interview, Ms. Chiang was
quite tearful but quite forthcoming with information. She looked quite
depressed, and her speech was very soft. I talked to her about signs and
symptoms of depression, the mind-body connection, and treatment for depression.
Given that she was quite severely depressed, I recommended and prescribed
medications for her. I prescribed Cymbalta (anti-depressant) 30 mg daily for
two weeks and clonazepam (sedative) 0.25 mg at night for two weeks. I also
advised about the possibility of getting some counselling in the future as
well.

She came back on November 19. She started taking medications
at the end of October. She was tolerating them. She noticed her shoulder pain
improved while she was taking medications, and her shortness of breath also
improved. She started getting some water therapy. She looked much better that
day, much less anxious and depressed. Her shoulder movements were better.

CURRENT CONDITION:

We touched base over the
telephone this week, and she confirmed that she still had ongoing pain in her
legs and shoulders. She felt weak, and unable to stand or walk for very long.
She still relied on her husband for help with dressing and many other household
chores. Her mood has slightly improved since starting on medication.

[16]        
Dr. David Koo, a physiatrist, was engaged on behalf of the plaintiff to
provide a medico-legal opinion. The history he took included the following:

She denies prior difficulties with her neck, left hand, low
back, left knee, or right shoulder prior to the accident.

She had been involved in a previous motor vehicle accident in
2000, in which she was rear-ended and recalls having leg, lower back and neck injuries.
She attended physiotherapy and eventually recovered after about a year with no
residual difficulties. She denied previous motor vehicle accidents otherwise.

She underwent stomach surgery for cancer in 2006. She has
been cancer-free since that time.

She has been on long-term thyroid replacement. She was on
bisphosphonate therapy weekly for osteoporosis treatment but had no history of
pathologic fractures.

Review of her medical records indicates that her previous
prescriptions have included levothyroxine 75 mg daily, risedronate 35 mg per
weekly, and clonazepam 0.5 mg qhs.

She underwent gastroscopy for
stomach cancer in 2006. This was not followed by chemotherapy. A CT scan of the
abdomen and abdominal ultrasound have subsequently been normal.

[17]        
Dr. Koo summarized the clinical records he considered relevant as
follows:

When seen by her family doctor on February 5, 2010, she
complained of left back and arm pain, and left leg pain. His examination found
tenderness at the midline C4-C6, right paracervical muscles, right trapezius,
right infraspinatus, and right lower lumbar region. Her back range of motion
was okay. She had reduced neck extension and left rotation and lateral flexion.
He assessed her with neck and back pain following the motor vehicle accident
and recommended Tylenol, physiotherapy, massage therapy, ice, and stretching.

April 26, 2010 follow-up by her family doctor noted that her
tongue felt numb sometimes, she had had tingling to the right fingertips for
the last day. She had been attending chiropractic treatments since March
approximately two to three times per week and now once per week, which she felt
helped “a bit”. She had ongoing pain in her neck, upper shoulders, left
arm and left leg, and reported that the left leg felt weaker. She was found to
be tender bilaterally over the paracervical muscles, both trapezii, and had
pain in the medial upper arm and left calf. He arranged x-rays of the cervical
and lumbar spine. Blood work was normal.

On October 12, 2010, she saw her family doctor, reporting
that she had fallen on September 23, 2010, with a feeling of weakness in the
left leg, scabbing her left knee. She also reported that her right knee was
feeling weak. She also reported that on October 10, 2010, she fell again when
going upstairs, scraping her chin, and reported that her right arm had been
sore since that time. Both buttocks were also sore. Examination found that the
right leg was unable to plantar flex. She had normal deep tendon reflexes and
straight leg raising was sore on both sides. There were no sensory changes. He
questioned possible nerve compression and arranged a CT scan of her back.

On December 10, 2010, her CT back was reviewed with the
possibility of an L4-5 or L5-S1 root impingement and referral to orthopaedic
spine was made.

On February 5, 2011, her GP noted right knee pain with the
inability to flex fully and the possibility of a meniscal tear was raised.

She was referred to Dr. William Yu on March 11, 2011, who
found no evidence of lumbar radiculopathy. He opined that she had mechanical
back pain following a relatively minor accident and a right knee meniscal tear
with loss of full extension.

On June 8, 2011, her GP noted right shoulder pain that had
been present since the motor vehicle accident was noted, with reduced internal
rotation and abduction.

She was referred to Dr. Maziar Badii, who saw’ her on August
8, 2011. She indicated to him pain at the L1-2 region. He noted weakness in the
upper and lower extremities, more so on the left, with normal sensation,
proprioception and vibration sense in the lower extremity. A bone scan was
arranged with follow-up for a possible spinal block.

On August 10, 2011, her GP notes
of a possible right frozen shoulder, gastroesophageal reflux, and chest pain.

[18]        
Dr. Koo summarized the plaintiff’s x-rays and scans as follows:

X-rays of the lumbar spine on July 9, 2010 showed no evidence
of fracture, but severe degenerative disc disease at L5-S1 with narrowing of
the disc space.

X-rays of the cervical spine on July 9, 2010 showed C3-4 and C6-7
disc space narrowing with marginal spurs secondary to degenerative disc disease
at both levels. There was no fracture.

X-ray of the knees on October 12, 2010 showed mild medial
joint compartment narrowing, consistent with osteoarthritis.

CT scan of her back on October 21, 2010 showed a bulging disc
with possible nerve root compression/irritation at the left L4-5 (L5 root) and
L5-S1 (S1 root).

MRI scan of the right knee on March 14, 2011 showed a discoid
lateral meniscus with a superimposed complex tear surfacing inferiorly,
involving the anterior horn with an associated probable radial tear of the
posterior horn. There was a prior partial injury of the anterior cruciate
ligament of the lateral bundle; functionally intact. There was a small joint
effusion and popliteal cyst.

Chest and right shoulder x-rays on August 20, 2011 were
normal.

Bone scan on September 26, 2011
showed no metastatic disease. Her shoulders were within normal limits. There
was increased activity at the L5-S1, moderately on the left and mildly on the
right.

[19]        
Dr. Koo’s diagnostic opinion was as follows:

Based on my review of the information provided and my
interview and examination of Ms. Chiang, it is my opinion that the motor
vehicle accident on February 3, 2010 likely resulted in the following injuries
and conditions:

1.     Soft tissue injuries to the
neck, back, right and left shoulders, left arm, and left leg.

2.     Sleep disruption.

3.    Moderate severity depression.

Her accident-related injuries resulted in left-sided pain and
reports of weakness, which are noted both in her family physician and
chiropractic assessments after the accident, and on an ongoing basis.

Her ongoing pain and left-sided weakness likely contributed
significantly to falling twice on her exterior stairs on September 23, 2010
where she scabbed her left knee, and again on October 10, 2010 where she
scraped her chin and injured her right knee, right shoulder and both buttocks.

In my opinion, her falls likely resulted in further injury to
the right shoulder, as well as a probable meniscal tear as subsequently
diagnosed on her MRI scan of her knee, for which she was assessed by Dr. Badii
and received a Depo-Medrol injection.

In 2011, Ms. Chiang recalls further injuring her right arm or
shoulder performing physiotherapy exercises.

In my opinion, the cumulative
effects of her acute soft tissue injuries, sleep deprivation, and depression
from the accident, subsequent further injury arising from two falls and a
physiotherapy session as described, have likely resulted in the evolution of
post-traumatic fibromyalgia, with a chronic, widespread pain condition.

[20]        
He discussed “causality”:

In my opinion, Ms. Chiang was a previously well woman with a
pre-accident history of hypothyroidism, osteoporosis, anxiety, insomnia and
possible mild depression, and a previous motor vehicle accident in 2000, from
which she had made a full symptomatic recovery from injuries to her leg, lower
back and neck. She had had recent surgery for cancer of the stomach in 2006 but
had been cancer-free since that time.

Functionally, she was previously independent, pain-free, and
was not requiring pain medications, physiotherapy, chiropractic treatment or
acupuncture.

She had some mild stiffness with prolonged immobility in her
lower back, but was otherwise asymptomatic as it relates to any lumbar
degenerative disc disease.

She enjoyed gardening for two or three-hour intervals and was
able to volunteer occasionally at the Food Bank and tolerate standing for one
to two hours at a time. In my opinion, she would likely have remained at a
similar functional and pain-free state for the foreseeable future, if not for
the effects of additional injury or trauma.

In my opinion, she would not have been considered to be at
risk for acute or substantial pain or stiffness, affecting her neck, back,
shoulders, upper extremities, or lower extremities based on her aforementioned
history and functional inquiry.

Her pre-accident records indicate possible mild depression,
anxiety and not sleeping well at night. She had been prescribed clonazepam July
10, 2009, presumably for anxiety and sleep. In my opinion, she was likely at
increased risk for further deterioration of her mood, anxiety and sleep on the basis of her accident-related injuries, but that it would have
been unlikely for her to have worsened in the absence of additional medical or
psychosocial stressors. In fact, her recent investigations for kidney problems
and gastric cancer recurrence had been reassuringly unremarkable, and it is
possible that her mood, anxiety and impaired sleep would have improved, if not
for the accident in question.

The accident in question resulted in a
rear-end mechanism of injury with approximately $500 of vehicular damage to her
rear bumper. Upon exiting the vehicle, she noted pain, and this was confirmed
with her initial family physician assessment on February 5, 2010 who assessed
her with soft tissue injuries to the neck, arm and back.

Subsequent follow-up visits to her family
physician have identified ongoing soft tissue complaints of persisting pain and
weakness despite attendance at chiropractic treatment and physiotherapy.

In my opinion, the accident in question was
likely causal to her initial soft tissue injuries, aggravated her
pre-accident insomnia on the basis of pain and difficulty finding a
comfortable position, and significantly increased her risk for falls due to
persisting left-sided pain and weakness.

On September 23 and October 10, 2010, she
fell when ascending her exterior steps, which she attributes to weakness of the
left knee. Her injuries included a scabbed left knee, scraped chin, right knee
weakness, right shoulder pain, and soreness to both buttocks.

Subsequent evaluation of the right knee in
February 2011 showed difficulty flexing fully, and imaging revealed a meniscal
tear.

In my opinion, the onset of knee
difficulties after her falls and subsequent diagnosis of a meniscal tear, with
a previously asymptomatic knee, suggests that her falls were likely causal to
her meniscal injury, which likely resulted from the accident in question due to
her heightened fall risk from her soft tissue injuries.

Her right shoulder was likely injured from
the original accident and further traumatized on the basis of her subsequent
falls. Ms. Chiang recalls further injury from physiotherapy which corresponds
to a May 30, 2011 entry in her physiotherapy treatment notes of right shoulder
and arm pain following arm and leg extension exercises the [preceding] weekend.
By June 2011, it was noted that she had reduced internal rotation and abduction
of the shoulder and by August 10, 2011, the possibility of a right frozen
shoulder was raised. In my opinion, her right shoulder pathology was likely multifactorial,
related to her initial post-accident soft tissue injuries, compounded by her
two falls, and a subsequent physiotherapy injury.

Ultimately, on today’s assessment, however,
she had evidence of generalized widespread pain, more so on the left side,
involving areas previously not reported as painful in her medical
documentation. She currently meets the diagnostic criteria for fibromyalgia
which in my opinion is attributable to the cumulative effects of her initial
soft tissue injuries, subsequent falls, and aggravated depression and sleep
deprivation.

Although not fully elucidated, there are
several postulated mechanisms by which acute soft tissue injuries (and whiplash
cervical injuries in particular) can predispose patients to the development of chronic
pain syndromes. These mechanisms include, but are not limited to, peripheral
nervous system sensitization by elevated levels of substance P, bradykinin,
prostaglandin, and other pain neurotransmitter levels in response to injury;
alterations in spinal cord processing leading to hyperexcitability of pain information
processing pathways; heightened neuronal activity on functional MRI
scans in regions of the brain responsible for pain perceptions that over time
can become chronic and permanent; and disruption of sleep patterns that can be
perpetuating factors for lowered threshold of pain symptoms and feelings of
fatigue and depression.

The combined effects of these aforementioned
changes appears to be the sensitization and altered processing of pain in the
peripheral and central nervous systems of some chronic soft tissue injury
patients.

In my opinion, if not for the accident in
question, it would have been unlikely for Ms. Chiang to have developed acute
soft tissue injuries to her neck, shoulders, back and legs; insomnia;
depression; or to have had two subsequent falls with right meniscal tear and
further shoulder injury; needing physiotherapy treatment with possible shoulder
aggravation; or the current picture of a chronic widespread pain of
fibromyalgia that she currently presents with.

Her radiologic findings of severe L5-S1
degenerative disc disease, bulging L5 disc, and possible nerve root
compression appear to be largely incidental findings. Her pre-accident history do
not support a diagnosis of significant pre-accident lumbar spondylosis that was
clinically apparent, in that she reports only minimal low back stiffness, but
no pain or activity limitation. Her post-accident concerns of pain and weakness
in her back and legs have not been consistent with symptomatic lumbar nerve
root irritation or discogenic pain at L5, based on her localization of pain,
and absence of objective sensory, reflex or nerve root tension signs; nor do
her radiologic findings explain her current presentation with widespread pain,
and non-myotomal or peripheral nerve distribution weakness affecting multiple
extremities.

[Emphasis
added.]

[21]        
Dr. Koo’s prognosis was pessimistic:

It has been almost three years since her motor vehicle
accident. Despite attendance at recommended therapies, she has had limited
symptomatic and functional benefit and continues to report widespread pain and
high levels of disability, with ongoing depression and sleep disruption.

In my opinion, her prognosis for
significant further recovery is poor. Over time, she has developed more
generalized pain in areas that were not previously symptomatic. She appears to
have developed a chronic, post-traumatic lowered functional threshold for pain
on physical examination and has developed a chronic pain disorder, which is
likely a poor prognosis.

[22]        
Dr. Shaila Misri, a psychiatrist, saw the plaintiff at the request of her
counsel. She assessed the plaintiff on September 18, 2013. Dr. Misri
specializes in female patients with mood, anxiety and psychotic disorders. Her
résumé is extensive and
impressive. She is the author of two books. She set out her assumptions as
follows:

1.     Fang-Lan
Chiang’s (Fang-Lan) depression began gradually and insidiously after the MVA of
February 3, 2010.

2.     Ongoing
MSK related pain in the left shoulder, left leg and right knee has caused
severe insomnia which is contributing to her moderate/severe depressive
illness.

3.     Panic
attacks began in the first week of September 2013. This co-morbidity has
further intensified the depression.

4.     Passive
suicidal ideation began during the two weeks prior to my examination.

5.     Dr.
William Yu, orthopedic surgeon, opined that Fang-Lan did not significantly have
radiculopathy. Her main problem was the right knee flexion and mechanical low
back pain post MVA.

6.     Dr.
Badii, rheumatologist, opined in his February 25, 2013 report that Fang-Lan had
L4-L5 disc protrusion with back pain and intermittent radiation.

7.     Dr.
Badii also reported that Fang-Lan’s level of pain was constant at 8/10 which
woke her up from her sleep.

8.     MRI of
the right knee performed on March 16, 2011 showed a right meniscal tear.

9.     Dr.
David Koo, physiatrist, opined that Fang-Lan was pain free pre-accident. She
enjoyed gardening and tolerated prolonged standing. If not for the effects of
this injury she would have remained pain free in the foreseeable future
(February 4, 2013).

10.   Dr. Koo
noted that the weakness in the left calf, left knee and leg caused her to have
two falls in 2010 which led to a meniscal tear in the right knee.

11.   According
to Dr. Koo, she meets the diagnostic criteria for fibromyalgia and he
attributed that to the cumulative effects of initial soft tissue injury with
subsequently aggravated depression and sleep deprivation.

12.   Dr. Koo
opined that it would have been unlikely for Fang-Lan to experience fibromyalgia
had it not been for the MVA of February 3, 2010.

13.   Dr.
Koo’s prognosis was that her symptom recovery was poor in the future. He
suggested a referral to a chronic pain program for multidisciplinary care.

14.   Dr. Koo
felt that Fang-Lan is at a high risk for osteoarthritis, deconditioning and
medical co-morbidities if her symptom reduction is not addressed.

15.   A number
of treatments with physiotherapists and personal trainer have not resolved the
ongoing pain issues due to the soft tissue injuries as well as other related
injuries caused by the MVA of February 2010.

16.   On May
29, 2009, Dr. Helen Chen, GP, noted feelings of anxiety related to the
diagnosis of gastric cancer.

17.  Around this time, Fang-Lan was
going through a number of stressful life situations which included: an upcoming
move to Surrey, chronic anemia, impending gastroscopy, enlarged lymph nodes and
kidney issues.

[23]        
Dr. Misri considered that “subsequent to” the accident the plaintiff has
had two sets of injuries:

Fang-Lan Chiang (Fang-Lan) is a 65-vear old married woman who
was rear-ended on February 3, 2010. Subsequent to the accident, she has had two
sets of injuries that run a parallel course. The physical
symptoms of pain sustained during the accident have subsequently led to
depressive symptomatology as well as anxiety symptoms and panic attacks. Since
the first two weeks of September 2013, Fang-Lan has been battling passive
suicidal ideation; “I’m tired of living this way because of the pain."

The physical impact of the pain which is well
described by various pain specialists includes left-sided pain along the neck,
shoulder, upper and lower back, arm and leg. This constant pain has led to two
successive falls in September and October of 2010 causing further injury as
outlined by the MSK specialists. This injury has caused right knee meniscal
tear, further aggravating the MSK related symptoms directly caused by the MVA.
In the opinion of the physiatrist, Dr. Koo, cumulative effects of Fang-Lan’s
soft tissue injuries as well as the psychological impact have resulted in
post-traumatic fibromyalgia and ongoing chronic pain condition. It is possible
that she may actually develop a chronic pain syndrome if further intervention
does not happen.

In my opinion, the psychological impact of
the chronicity of the pain has resulted in a major life change for this woman,
who was functioning very well prior to the injury. Now, a sad, depressed woman
who meets the DSM-V criteria for Major Depressive Disorder presents with: sleep
difficulty, fatigue, memory loss, appetite disturbance, and finally, suicidal
ideation. The insomnia consists of difficulty falling asleep, staying asleep,
and waking up earlier than usual. In my opinion, this insomnia is partly due to
the pain symptoms and her inability to find a comfortable position to sleep
with and also partly due to the depressive illness. The fatigue, from my point
of view, also is caused by ongoing chronic pain as well as the chronic
depression. Because of the pain she lacks the desire and the mood is low; thus
a negative cycle has been set up for at least two years. The dependency on
people has increased because of the ongoing fatigue which is at a point now
that she is unable to care for her personal hygiene. This includes her
inability to shower, wash her hair, pull up her pants or tie her shoe laces.
This has led to feelings of hopelessness and worthlessness.

The memory loss at the present time is “very
bad.” She does not remember telephone numbers of her own children and any
attempts to try and remember things frustrates her even further. The appetite
disturbance has also been constant. Although even at the best of times she
hasn’t been able to eat a large meal because of the resection of her stomach
due to cancer a few years ago, whatever appetite she had before the accident is
no longer existent. This concerns her husband in a major way; he is anxious
about her nutrition and makes the meals in order to meet those nutritional
needs.

The anxiety episodes which meet the DSM-V
criteria for panic attacks are characterized by a choking sensation,
breathlessness, heart palpitations, restlessness and numbness in her hands and
feet with occasional nausea. These episodes are beginning to be quite frequent;
often they start in the morning and last all day, at times right up until the
time she goes to bed. When they occur severely she is miserable for about 45
minutes to an hour. She tries to distract herself, concentrates on her
breathing and gets through the day. When the anxiety attacks cause discomfort
in her stomach, she gets even more anxious because of her previous history of
cancer.

In her own words, “I am confused why I have
so much pain. Am I really depressed?” She has not been able to make the
connection between her affective symptomatology, her anxious feelings and her
pain. For her, the only way she can understand why she is dysfunctional is
because of the ongoing pain.

She is unable to connect with her emotional
suffering. Part of her is ashamed of having this pain because she has not been
able to share the symptoms in their entirety with any of her children, two of
them being dentists and one being a physician. The issue of talking about her
mood symptoms with her children is, at this point, out of the question. She is
anguished in the privacy of her home every single day, all day at present.
Because she is not linking the emotional symptoms with the pain, the current
symptoms of anxiety have scared her immensely because she thinks there is
something wrong with her heart and/or her chest and she is now waiting
for further investigations. She really thinks that something is terribly wrong
with her heart. She no longer bothers about her appearance and she wears a wig
at the present time so that she doesn’t have to bother with her hair or spend
money on going to a hair salon.

The functional impairment caused by the
injuries sustained in the accident resulting in the MSK symptoms and the
subsequent psychological symptoms has affected every aspect of her life. She is
no longer interested in socializing with her children or grandchildren, she has
no interest in gardening and even if she wants to garden, she is frustrated
because she cannot lift or bend. She cannot cook. She can barely travel and
feels safer being in her own home.

Her pre-accident
history shows that in May of 2009 on one occasion the family doctor reported
that she was "slightly depressed” and anxious. In my opinion, these
symptoms did not meet the DSM-V criteria for Major Depressive Disorder or for
Anxiety Disorder. Many psychosocial changes and stresses happening at that time
in her life explain these symptoms. Specifically, she was waiting for a repeat
gastroscopy after a gastric cancer and she has been anxious each time this
procedure has to be repeated. In addition, the fatigue and anxiety could
also partly be assigned to many of her other medical conditions, including the
anemia, thyroid issues, and also being an early diabetic at that point.
Therefore, in my opinion she does not have a prior history that points towards
major psychiatric disorder. It appears that her present Major Depressive
Disorder and panic attacks are more likely than not caused by the MVA of
February 3, 2010.

[24]        
Dr. Misri offered the following prognosis:

Her prognosis is guarded. She has
had three years of physical pain with very little change and her mood is
entrenched with this ongoing pain issue. Any spontaneous recovery of her
psychiatric symptoms is highly unlikely. In fact, even with treatment I am
concerned that she may never go into full remission. Her suicidal ideation is
of concern at the present time.

III

[25]        
Dr. Marc Boyle, an orthopaedic surgeon, tendered a report at the request
of the defence. He accepts that the accident may have caused the plaintiff some
injury:

The patient may have sustained a
myofascial strain. This is a soft tissue injury involving muscles, tendons and
ligaments. As regards these soft tissues per se, it would be a grade 1 strain
at most, without loss of continuity of the tissues. There would not be any
likelihood of early or late instability.

[26]        
Dr. Boyle doubted that the plaintiff’s pre-existing degeneration
condition would have been caused or worsened by the accident:

The patient had pre-existing degenerative changes noted on
her plain films with some disc space narrowing at two levels and osteophyte
formation. These would have antedated the motor vehicle accident. They would
not have caused or worsened by the events surrounding the motor vehicle
accident.

There is little, if any,
likelihood of late degenerative changes arising in the cervical spine as a
result of the events surrounding the motor vehicle accident.

[27]        
Dr. Boyle noted that a Dr. Bandii (also noted in Dr. Koo’s review of
medical records) had noted “a full range of motion in the plaintiff’s cervical
spine in 2011,” while she had a “markedly restricted range of motion” when he
examined her on October 11, 2013. Dr. Boyle suggested “there is no anatomical
or pathological explanation for this dichotomy.”

[28]        
Dr. Boyle doubted that the plaintiff injured her lumbar spine in the
accident. He observed:

The reader should be reminded
that the lumbar spine, in a rear-end collision, is protected against flexion
and extension stresses and it is unlikely that any stress of significance was
applied and hence unlikely that any strain of note ensued.

[29]        
With respect to the plaintiff’s complaint of shoulder pain, Dr. Boyle
noted:

For the most part, the notes indicate that this patient had
difficulties with her right shoulder post-MVA. Mention was made of difficulties
with the left shoulder as well but to a much lesser degree. On review of the
records, the range of motion was well-maintained in both shoulders with perhaps
some slight loss on the right. Most of the patient’s complaints in the
physicians’ records and the physiotherapists’ records deal
with the right shoulder.

It is noted that, at most, slight
restriction of range of motion was noted in the right shoulder with normal
range on the left. This was as recent as January 10, 2012, in Dr. Badii’s
last note.

The right shoulder was investigated with
plain films which were normal. The bone scan in 2011 was normal for both
shoulders. The shoulder did not have any radiological investigations that this
writer is aware of.

Physical examination of the right shoulder
was unrewarding on this date. It was felt that there was no pathology noted
clinically.

By contrast, the left shoulder showed
evidence of an adhesive capsulitis with restriction of range of motion. There
was no evidence of arthrosis or internal derangement. There was likely a degree
of impingement syndrome associated with the adhesive capsulitis. There was no
evidence of instability. There were no changes in the sternoclavicular,
acromioclavicular or scapulothoracic joints.

It is impossible to date the onset of this
clinical picture, i.e. restriction of range of motion consistent with an
adhesive capsulitis when records reviewed, as late as 2012, indicate that the
left shoulder had no clinical evidence of pathology.

It makes it
difficult, therefore, to relate the findings of the left shoulder to the events
surrounding the motor vehicle accident.

[30]        
Dr. Boyle discussed the plaintiff’s complaints of knee pain:

The patient indicated that, after two falls in September and
October 2010, her right knee became symptomatic. It cannot, therefore, be
directly related to the events surrounding the motor vehicle accident.

The patient states that she was weakened by the events
surrounding the motor vehicle accident and, as a result, fell on 2 occasions,
injuring her right knee. Dr. Koo felt that there was a causal relationship
between the MVA and the right knee complaints in that the patient had been
weakened by the events surrounding the motor vehicle accident, and had fallen
with the resultant right knee injury.

Repeat neurological examinations by various physicians has
not revealed any evidence of radiculitis, radiculopathy, myelopathy or
peripheral nerve deficit in the lower extremities. There was no evidence of
weakness that would have been brought on by lumbosacral injury at the time of
the motor vehicle accident (that issue was discussed above).

This writer, therefore, sees no
causal relationship between the knee complaints and the motor vehicle accident.

[31]        
Dr. Boyle noted behaviour that he felt cast doubt on the validity of the
plaintiff’s complaints:

The patient fidgeted about
continuously. She displayed pain behaviour with moaning and groaning, and
withdrawal to minimal tactile stimuli. She displayed a clasp-knife weakness
pattern repeatedly. She had some sensory deficits that were not consistent with
any anatomical distribution. She displayed a range of motion of the cervical
spine and lumbar spine that were not in keeping with any pathology noted. They
also were in contrast to previously reported range of motion of both cervical
and lumbar spines. The presence of these nonorganic signs can call into
question the validity of her complaints.

[32]        
Dr. Boyle noted some inconsistencies in the history taken by Dr. Koo as
compared to the history the plaintiff gave him:

[Dr. Koo] notes on page 3 the patient was “a reasonable and
accurate historian” but states in the following paragraph that she “presented
as a somewhat vague historian”.

On page 4, at the middle of the page, i.e. paragraph 5, he
indicates that “she volunteered at the food bank occasionally a few times per
year, and was able to manage standing for the 1 to 2-hour shifts”. The patient
related to this interviewer that she was to meet with her friend who managed
the food bank but that she had not done any work at the food bank prior to the
MVA.

He notes that she had an MVA in 2000 with leg or back and
neck injury.

The patient indicated to this
interviewer that she only had a minor MVA that she had caused, and did not have
any injuries.

[33]        
He noted a number of things in Dr. Chen’s records:

A number of entries indicate difficulty with the right arm,
shoulder, weakness in the right leg with shooting pains from the back into the
thigh, down the leg (CT scan showed left-sided nerve root contact).

Entries deal with right shoulder difficulties in June 2011
and August 2011: “Now right shoulder really bad, very limited range of motion.”
In the knee assessment, one diagnosis is “right frozen shoulder.”

Entry of January 24, 2012: “Has complaints in both
shoulders.”

Orion Health report.

Consultation of 08/08/2011, is again reviewed, in which is
stated: “Apparently, she has had an accident in February 2010 (motor vehicle
collision) which resulted in left-sided deficits, particularly the left
shoulder and left leg with pain and weakness. While undergoing physiotherapy,
she had unfortunately developed right shoulder pain as well.”

He discusses September and October 2010 falls.

Again reviewing the November 8, 2011, note from Dr. Badii, he
indicates again a full range of movement of the cervical spine. He also
indicates reduced passive external rotation of the right shoulder. From that,
it is assumed that the left shoulder had a full range of motion.

This patient presented on this day with a limited range of
motion of the cervical spine: this is very inconsistent. It is difficult to
explain such a difference in findings over time.

Similarly, the issue regarding shoulders is difficult to
reconcile. Considering the findings in the left shoulder on examination of this
day, it is very difficult to ascribe the difficulties encountered to the events
surrounding the motor vehicle accident of February 2010.

Again in January 2012, Dr. Badii saw her and indicated that
the shoulder pain had improved quite a bit. He notes “still some restriction in
movements of her right shoulder but the pain is not as bad as before.” This is
some 15 months post the falls of 2010. It is again difficult to reconcile
the findings on examination of the left shoulder on this day with either the
events of the MVA or the events of the falls.

Various medical notes from Dr. Chen, i.e. referrals to
Physiotherapy, Massage Therapy, etc.

Orion Health records.

A December 7, 2010, note for physiotherapy indicates “patient
has L4-5 and L5-S1 nerve root compression due to MVA. Left leg weakness. She
fell in October, which caused right leg pain. She needs physiotherapy to treat
both.”

It is this writer’s opinion that the CT changes antedated
the motor vehicle accident. They are consistent with the clinical findings,
i.e. loss of lumbar lordosis and plain films showing advanced L5-S1
spondylosis. I agree with Dr. Yu that there is no evidence of radiculitis or
radiculopathy.

These changes were not brought on by the motor vehicle
accident. They were not worsened by the motor vehicle accident.

?lncident at Physio in January 2011, i.e. right wrist and
hand discomfort. The patient was pushing on the hand to get up from the mat.

Entry of January 31, 2011, deals with the right shoulder and
right knee difficulties, similarly in early January.

Entry note of December 10, 2010, indicates some left
shoulder, upper back pain and tightness.

The major complaint is low back pain with radiation to lower
extremities with weakness. It is noted that range of motion of the shoulders
was within normal limits, decreased slightly bilaterally, more so right than
left.

Entry of April 20, 2011, indicating right shoulder aggravated
by taking off jacket the wrong way.

Last entry is May 11, 2011, when she was “graduated to a
community program”.

There are very few entries, if any, dealing with neck
complaints or significant left shoulder complaints.

[Emphasis added.]

IV

[34]        
Dr. Koo was asked to review Dr. Boyle’s report and Dr. Misri’s report.
He differs from Dr. Boyle on Dr. Boyle’s use of a statistical source. I do not
propose to address this controversy, except to say that a statistical analysis
that shows that a large majority of people injured in a certain way are over
their symptoms within a particular period of time is of limited use in any
specific case, which must be decided on its facts. In this respect I think Dr.
Koo’s caution that it is faulty to reason from statistics to the outcome of a
given case is well-taken.

[35]        
Dr. Koo then goes on, however, in the following vein:

Dr. Boyle and I both agree that Ms. Chiang’s lumbar
degenerative changes likely pre-dated the accident and are unlikely to have
been caused or made worse by the MVA. However, he then goes on to state “the
lumbar spine, in a rear-end collision, is protected against flexion and
extension stresses and it is unlikely that any stress of significance was
applied and hence unlikely that any strained of note ensued” (Page 3, paragraph
8).

Dr. Helen Chen’s records clearly document a significant
injury to Ms. Chiang’s low back, consistent with a Grade 1 strain
following the accident [emphasis added by Dr. Koo]:

a)    February 5, 2010: She reported
left-sided back and arm pain, and left leg pain. She was found to have
tenderness at the C4-6 midline, right paracervical muscle and right trapezius,
and right infraspinatus; tenderness in the right lower lumbar region; neck
range of motion had reduced extension, left rotation and lateral flexion. Her
back range of motion was okay.

b)    July 14, 2010: Ongoing back and
left leg discomfort were noted with the left leg feeling weaker. She was tender
to both trapezii and rhomboids and had low back pain.

The likelihood of low back injury following rear-end
collisions is also supported in studies of occupant kinematics that demonstrate
complex biomechanics of the lumbar spine in rear-end collisions, which
likely include a flattening of the lumbar spine, followed by compression, ramping,
then tension. Given that Ms. Chiang had pre-existing lumbar degenerative
changes (although minimally symptomatic pre-MVA) her susceptibility to these
injurious forces would have been increased to a greater degree than a
non-injured person.

Also omitted in his reasoning is the clinical and
epidemiologic literature that shows low back complaints occur in a significant
percentage of whiplash cases. Reports of low back pain following whiplash
go back in the literature as far as the 1950’s and continues to the present,
with an incidence of low back pain in a significant percentage of individuals
with whiplash injury, ranging from 4% to over 50% in some studies. This
includes the same study Dr. Boyle cited in his report, where Bannister et al.
2009 found that 42% and 48% of their whiplash study patients also reported low
back pain at 10 and 15 year follow-up, respectively.

[Emphasis added.]

This is to argue statistics from the other end. Dr. Boyle’s
observations reflect a consideration of the specific dynamics of the accident
itself. The studies referred to in Dr. Koo’s report are, in my view, vulnerable
to the same criticism he levels at Dr. Boyle for his use of statistical
materials. Some people involved in rear-end accidents, even minor ones, sometimes
complain of pain and serious consequences years after most people get over the
effects of their injuries. The task of a trial court is not to assess
probabilities with reference to statistics, but to assess the case at hand,
allowing that it is an error to draw a straight line from the apparent
seriousness (or lack of seriousness), of the accident to a range of damages,
but that a proper analysis takes account of all the factors at play in a given
situation. This may include, apart from an assessment of the plaintiff herself,
an assessment of the objectivity of the medical evidence.

[36]        
I have observed in the past that medical professionals do not subject
their patients to forensic tests of credibility: they take the patient’s
complaints at face value and attempt to treat them. They do not generally
subject patients to a close examination of their accounts of the origins of
those complaints unless there are therapeutic reasons to do so.

[37]        
In this case, Dr. Koo has taken issue with Dr. Boyle’s concerns about
the extent of the plaintiff’s complaints. In the excerpt above, he noted that
both he and Dr. Boyle agree that the plaintiff’s lumbar degenerative changes
likely “pre-dated the accident and are unlikely to have been caused or made worse
by the MVA.” He also observes, in the same passage that, “given that [the plaintiff]
had pre-existing lumbar degenerative changes (although minimally symptomatic
pre-MVA) her susceptibility to these injurious forces would have been increased
to a greater degree than a non-injured person.” This was in answer to Dr.
Boyle’s observation that because the lumbar spine is protected in a rear-end
collision against flexion and extension stresses “it is unlikely that any
stress of significance was applied and hence unlikely that any strain of note
ensued.”

[38]        
It takes some parsing to see a distinction rather than a contradiction
in that part of Dr. Koo’s report. He seems to agree with Dr. Boyle that
the accident was irrelevant to whatever degenerative changes were present, but
that, without precipitating anything related to the degenerative changes, the
plaintiff was somehow more vulnerable to injury. If this is not inconsistent,
it remains unclear to me how it is possible to be more vulnerable to injury due
to an underlying condition without disturbing that underlying condition.

[39]        
I think it also must be noted that the plaintiff had been symptomatic in
the past in relation to those degenerative changes, which suggests that she may
have become symptomatic again, regardless of whether the accident “aggravated”
those symptoms. Dr. Koo does allow, as well, that the plaintiff’s insomnia, a
significant factor in her present condition, was “aggravated” (i.e. not wholly
caused) by the accident.

[40]        
Dr. Boyle made a series of observations that he considered anomalous
when he reviewed the plaintiff’s medical records. He found:

In his note of 2011, Dr. Badii indicated: “The patient had a
full range of motion of the cervical spine.” This contrasted dramatically with
the findings noted on physical examination today in that she had markedly
restricted range of motion.

Physical examination of the right shoulder was unrewarding on
this date. It was felt that there was no pathology noted clinically.

By contrast, the left shoulder showed evidence of an adhesive
capsulitis with restriction of range of motion. There was no evidence of
arthrosis or internal derangement. There was likely a degree of impingement
syndrome associated with the adhesive capsulitis. There was no evidence of
instability. There were no changes in the sternoclavicular, acromioclavicular
or scapulothoracic joints.

It is impossible to date the onset of this clinical picture,
i.e. restriction of range of motion consistent with an adhesive capsulitis when
records reviewed, as late as 2012, indicate that the left shoulder had no
clinical evidence of pathology.

Again, the writer stresses that, in his opinion, there is no
causal relationship between the MVA and the right knee complaints.

Psychological Support
There is an important role for Dr. Chen to pay in this in that the patient’s
complaints seem out of proportion to the history to the physical findings.

There may be significant stressors in her life.

The latter is outside of my area
of expertise but I feel that a significant amount of her difficulties resides
there.

[41]        
Dr. Koo’s critique of Dr. Boyle’s report is very strongly premised on a
belief that the plaintiff’s injuries in the motor vehicle accident are at the
root of her subsequent troubles. He resorted, as I have said, to statistics and
studies to show how lumbar strains may arise in rear-end accidents.

[42]        
Dr. Koo was critical of Dr. Boyle’s observation that it was impossible
to date the left shoulder injury to the accident because the records he
reviewed suggested that in 2012, the left shoulder did not seem to be a
problem. Dr. Koo suggests that studies show that the occurrence of right
shoulder adhesive capsulitis may increase the risk of this development in the
opposite shoulder. He opines that the right adhesive capsulitis was
“post-traumatic…from the MVA in question” on what appears to be the relatively
slender foundation of Dr. Chen’s record that when the plaintiff saw her on June
8, 2011, she was “noticing more pain in her right shoulder. She said she had
right shoulder pain since the accident but did not pay much attention to it
until now.” This also follows the two falls the plaintiff said occurred on
September 23, and October 10, 2010.

[43]        
Dr. Koo notes that Dr. Boyle doubted that the plaintiff’s lower
extremities or knees were symptomatic as a result of the accident. Dr. Boyle
had said:

[R]epeat neurological
examinations by various physicians has not revealed any evidence of radiculitis
(nerve root inflammation), radiculopathy (nerve root dysfunction), myelopathy
(spinal cord dysfunction) or peripheral nerve deficit in the lower extremities.
There was no evidence of weakness that would have been brought on by
lumbosacral injury at the time of the motor vehicle accident…this writer,
therefore, sees no causal relationship between the knee complaints and the
motor vehicle accident.

[44]        
Dr. Koo’s response is to suggest that the plaintiff had an increased
risk of falling as a result of what he reads as a medical record without a
history of such falls before the accident, followed by complaints of weakness
and two events where the plaintiff actually fell after the accident.

[45]        
This appears to be a difference between a doctor (Dr. Boyle) who is
focussed on the objective evidence (which may be an incomplete way of looking
at a patient) and one (Dr. Koo) who accepts the subjective complaints and
history of the plaintiff and attributes them all, rather willingly, to the
accident:

In my opinion, Ms. Chiang clearly had ongoing pain and
weakness complaints affecting her neck, back and left leg from the accident in
question. Pain and sleep deprivation are both known to affect concentration and
her reduced attention may have contributed to risk of fall. She reports that
her left leg gave way during the first fall; there are many reasons for such
weakness in the absence of neurological injury, including pain inhibition and
deconditioning. Furthermore, ongoing tightness and restriction in her neck,
back and left leg likely slowed the normal postural reflexes that occur during
a fall, limiting her ability to catch herself and limit the severity of injury
from such a fall.

Therefore, as I previously opined, the onset of knee
difficulties after her falls and subsequent diagnosis of a meniscal tear, with
a previously asymptomatic knee, suggests that her falls were likely causal to
her meniscal injury, which likely resulted from the accident in question due to
her heightened fall risk from her soft tissue injuries.

I agree with Dr. Boyle as stated on page 5, paragraph 6 of
his report that “the patient did relate some falls post MVA which could have
led to injury to the (left) shoulder".

In my opinion her right shoulder
pathology was likely multifactorial, related to her initial post-accident soft
tissue injuries, compounded by her two falls, and a subsequent physiotherapy
injury.

[46]        
Dr. Koo reconciled his view of the plaintiff’s non-organic signs and
that of Dr. Boyle as follows:

In my opinion, much of the nonorganic signs that Dr. Boyle
and myself identified can be explained on the basis of her diagnosis of
post-traumatic fibromyalgia, which Dr. Boyle did not consider in his diagnosis,
leaving him to observe that “the patient’s complaints seem out of proportion
to the history and to the physical findings” and to presume “there may
be significant stressors in her life” (page 6, paragraph 2 & 3).

It is important to note that
nonorganic signs do not invalidate the experience of a patient’s pain and
disability, and that such findings have been controversial in their
interpretation, and have been found to be subject to cultural and gender bias,
poor inter-rater reliability, and do not exclude an organic cause for pain.

[47]        
It is difficult to reconcile Dr. Koo’s diagnosis of fibromyalgia:

Fibromyalgia tender points were
notable for pain and flinching in a total of 14/18 points, as follows: right
anterior cervical; left suboccipital, medial knee and infraspinatus; and
bilaterally in the trapezii, second sternocostal, lateral epicondyle, greater
trochanters, and gluteals

with the “pain behaviour” Dr. Boyle noted.

[48]        
In court, the plaintiff sometimes rocked back and forth in the witness
box, gave her evidence with her eyes closed much of the time, and appeared to
be grimacing in pain, while at other times she appeared to be comfortable.

V

[49]        
I do not think there is any reason to doubt Dr. Misri’s diagnosis of the
plaintiff’s current mental status as a major depressive disorder brought
on my pain symptoms and depressive illness. I do not fault Dr. Misri’s
observations about the origins of the plaintiff’s difficulties, but, as with
the evidence of all doctors about causation, they must not be given more
authority than they warrant. Medical opinions on such matters are not expert:
they are inferences from the coincidence of pain and an event that might
explain it. This is not to say that they are necessarily unreliable, but to say
that, where complex consequences are being attributed to a normally minor
event, the court must recognize an independent responsibility to take a more
critical view.

VI

[50]        
It is obviously not possible to reconcile the medical opinions
respecting causation. Dr. Boyle’s approach is to concentrate on what he thinks
can be attributed to the accident while opining that the plaintiff exhibited
“pain behaviour” in his presence, while the other doctors uncritically assign
every complaint made by the plaintiff post-accident to the accident.

[51]        
Working from what is known, the plaintiff’s pre-accident condition
included various physical complaints as well as anxiety and depression. She had
been injured in a motor vehicle accident in 2000. She had had stomach cancer in
2006 which has caused her discomfort, bloating and poor appetite ever since.
She has hypothyroidism. She had ongoing treatment for osteoporosis before and
after the accident (until the summer of 2012). It is not clear from the medical
record why treatment stopped at that time. The “summer” entries in Dr. Chen’s
medical record show attendances in July and September:

She returned to see me on July 10, 2012 regarding her
injuries. Her right knee was still sore and she felt a bit weak, but overall
she had improved. She was getting acupuncture every two weeks. Her back was a
bit sore and she was getting massage therapy for her back. A stress test done
on June 19, 2012 was abnormal, which meant there might be coronary artery dieses.
I therefore referred her to get a MIBI scan which is a more detailed and
definitive test for coronary heart disease.

She came back on September 11,
2012. Her left leg got worse after August 19. She walked for about 500 meters
with her granddaughter then she had really severe pain in the back of her knee
since. She felt weak in that knee and could not fully weight bear or fully
extend her knee. She also had to cancel her MIBI scan appointment which
involved exercising on a treadmill during the test. She started getting
acupuncture again. On exam, her left knee was not swollen, but she could not
fully flex her knee due to pain. She also had a limping gait. Her knee pain was
in the back of her knee but not one particular area. I rescheduled her MIBI
scan to another type so she did not have to exercise for the test. I suggested
ongoing acupuncture to treat her knee pain. I recommended a cane for her to
prevent falls as her legs seem weak.

[52]        
The plaintiff had understandable anxiety as a result of her cancer treatments
and was symptomatic in 2009 for depression, low energy, and poor sleep.

[53]        
I do not think it unreasonable to assume that this complex of symptoms,
some of which were presenting at the time of the accident and some of which
were not, forms a baseline to the accident and negates any notion that the
plaintiff was in perfect health before the accident. I accept that she was generally
functional, although I think it is also reasonable to assume that when the
plaintiff was symptomatic for her pre-existing conditions, including periods of
low energy, her activities were reduced to some extent.

[54]        
Both Doctors Boyle and Koo suggest, as I have already outlined, that the
injuries sustained in the accident do not intersect with these pre-existing
conditions; Dr. Boyle, on the basis that the injuries were relatively innocuous
and time limited; Dr. Koo, on the basis that, somehow, while the pre-existing
injuries were not aggravated, they nevertheless made the plaintiff more
vulnerable.

[55]        
I think I must take more account of the subjective factors than Dr.
Boyle does, and more account of the plaintiff’s pre-existing complex of
problems than Drs. Chen and Koo do, not as a matter of expediency, but of
common sense. I think it clear that the plaintiff was going to have ongoing medical
issues in the future, including physical complaints and complaints related to
anxiety and depression in reaction to the ordinary challenges of life,
particularly as age became a factor. The question is the degree to which the
issues arising out the single incident of the motor vehicle accident changed
that profile, temporarily or long-term.

VII

[56]        
There is, on the facts, another question of causation. This is whether
the September 23, 2010 and October 10, 2010 falls were related to the
accident as Dr. Koo advocates, or whether they are an intervening cause.

[57]        
Going back for a moment, the plaintiff’s initial complaints were of
“left-sided arm back and leg pain.” On examination, Dr. Chen did not opine that
the plaintiff had suffered a leg injury. In April, the plaintiff complained of
weakness in her leg.

[58]        
As noted by both Dr. Boyle and Dr. Koo, however, tests did not reveal
any weakness. Dr. Boyle said:

Repeat neurological examinations by various physicians has
not revealed any evidence of radiculitis, radiculophathy, myelopathy or
peripheral nerve deficit in the lower extremities. There was no evidence of
weakness that would have been brought on by lumbrosacral injury at the time of
the motor vehicle accident (that issue was discussed above).

The writer, therefore, sees no
causal relationship between the knee complaints and the motor vehicle accident.

[59]        
Dr. Koo noted:

Her post accident concerns of
pain and weakness in her back and legs have not been consistent with
symptomatic lumbar nerve root irritation or discogenic pain at L5, based on her
localization of pain and absence of objective sensory, reflex or nerve root
tension signs; nor do her radiologic findings explain her current presentation
with widespread pain, and non-myotomal or peripheral nerve distribution
weakness affecting multiple extremities.

[60]        
The defendants submit that in the absence of evidence of a pathological
cause, the plaintiff’s falls cannot be attributed to the accident. They cite Barnes
v. Richardson et al., 2008 BCSC 1349, at para. 96:

[26]      Deductions may also be
made for independent intervening events. If an independent intervening event
occurs, the assessment of the plaintiff’s position is affected and the net loss
experienced by the plaintiff is reduced. However, if the event is a product of
the accident, it does not affect the assessment of the plaintiff’s original
position: Athey [Athey v. Leonati, [1996] 3 S.C.R. 458] at
para. 33. Unrelated intervening events are taken into account in the same way
as pre-existing conditions. If such an event would have affected the
plaintiff’s original position adversely, in any event, the net loss
attributable to the tort will not be as great and damages will be reduced
proportionately: A. (T. W. N.) [A. (T. W. N.) v. Clarke, 2003
BCCA 670] at para. 36.

[61]        
In Dudek v. Li, 2000 BCCA 321, at para. 11, the Court of Appeal
outlined the law regarding intervening acts:

The Law Regarding “Intervening Acts”

[11]      These types of cases are discussed in the House of
Lords decision of McKew v. Holland & Hannen & Cubitts (Scotland)
Ltd., [1969] 3 All E.R. 1621. In McKew, the appellant sustained an
injury for which the tortfeasors were liable, in consequence of which he would
unexpectedly lose control of his left leg, which would then collapse. It was
expected that he would have recovered within a week or two but for a second
injury which he suffered. The second injury, in which he severely fractured his
ankle, occurred when he descended steep steps without a handrail. Lord Reid
stated at p. 1623:

In my view the law is clear. If a man is injured in such a
way that his leg may give way at any moment he must act reasonably and
carefully. It is quite possible that in spite of all reasonable care his leg
may give way in circumstances such that as a result he sustains further injury.
Then that second injury was caused by his disability which in turn was caused
by the defender’s fault. But if the injured man acts unreasonably he cannot
hold the defender liable for injury caused by his own unreasonable conduct. His
unreasonable conduct is novus actus interveniens. The chain of causation
has been broken and what follows must be regarded as caused by his own conduct
and not by the defender’s fault or the disability caused by it. … For it
is not at all unlikely or unforeseeable that an active man who has suffered
such a disability will take some quite unreasonable risk. But if he does he
cannot hold the defender liable for the consequences. [Underline emphasis in Dudek]

The House of Lords found that the
appellant in that case was acting unreasonably, thus breaking the chain of
causation.

[62]        
The defendants offer a further refinement:

In the alternative, should the
September 23, 2010 fall be found to be causally connected to the Accident, the
Plaintiff acted unreasonably with regards to the October 10, 2010 fall so as to
constitute a novus actus. In particular, the Plaintiff’s evidence was
that following the September 23, 2010 fall she was afraid of falling again yet
she made no efforts to use a cane or the support of her husband at the time of
the October 10, 2010 fall. The Plaintiff’s unreasonable failure to do so, in
light of the September 23, 2010 fall was unreasonable in the context of McKew,
supra.

[63]        
Following these falls the plaintiff’s complaints of pain have migrated
over time. Dr. Koo attempts to account for this:

Dr. Boyle found evidence of left shoulder adhesive
capsulitis, with restriction of range of motion. This is similar to my own
assessment. With regards to causation however, he found “it is impossible to
date the onset of this clinical picture, i.e. restriction of range of motion consistent
with an adhesive capsulitis when records reviewed, as late as 2012, indicate
that the left shoulder had no clinical evidence of pathology".

What Dr. Boyle fails to consider however, is that the
occurrence of right shoulder adhesive capsulitis following the accident in
question, likely significantly increased Ms. Chiang’s risk of delayed
development of adhesive capsulitis on the opposite side, based on epidemiologic
studies. Not only does the presence of adhesive capsulitis significantly
increase the risk of recurrence on the affected side, but it also appears to
increase the risk of development of the same condition affecting the opposite
shoulder. Some studies have reported that sequential (i.e. non-simultaneous),
bilateral adhesive capsulitis can occur in up to 40-50% of patients, which is
substantially higher than the general population risk estimated at 3-5% (Greene
WB. Essentials of musculoskeletal care. 2. Rosemont, IL: American Academy of
Orthopedic Surgeons; 2001)

Therefore, in my opinion, it
would have been unlikely for Ms. Chiang to develop left shoulder adhesive
capsulitis spontaneously. In the absence of alternative causation, although Dr.
Boyle did note that “the patient did relate some falls post-MVA which could
have led to injury to the shoulder" page 5, paragraph 6 (please refer
to my subsequent comments on fall risk related to the accident), it is my
opinion that her post-traumatic right adhesive capsulitis from the MVA in
question, likely increased her risk for developing spontaneous left adhesive
capsulitis with a delayed onset.

[64]        
This is unconvincing. As one multiplies “possibilities” (injuries
arising from the accident x the possibility that the falls are related to the
accident x the possibility that the other-side shoulder pain is related, for
example) a given proposition become more and more remote.

[65]        
My view of the evidence is that the description of the plaintiff’s
psychiatric state given by Dr. Misri is accurate: that is how the plaintiff is.
I do not necessarily accept that the plaintiff’s perception of pain and
disability is accurate, but accept that in the case of her disorder, perception
may be reality.

[66]        
I do not accept that the plaintiff’s present condition is entirely due
to the accident. Given the lack of any tangible evidence of weakness in the leg
associated with the accident, I think it more likely that the plaintiff simply
suffered a fall on September 23, 2010, unrelated to the accident. I think the
second fall was more likely to be causally related to the first fall than to
the accident.

[67]        
This is not to say that thereafter the plaintiff’s difficulties are
entirely due to these subsequent events. The plaintiff’s problems are
multifactorial, and relate to her pre-existing conditions, the accident, and
her falls. I accept that the combination of factors has left her significantly
disabled. The task is to assess the contribution of the injuries suffered in
the accident to this profile.

VIII

[68]        
The plaintiff submits that the range of damages for pain and suffering
and loss of enjoyment of life is between $95,000 and $125,000. The defendants
submit that the range is $25,000 – $75,000.

[69]        
The plaintiff submits that the plaintiff suffered a loss of housekeeping
capacity which is divided into what she calls “outdoor work” and “indoor work”.
The ranges she suggests are $45,000 – $50,000 for “outdoor work” and $65,000 –
$75,000 for “indoor work”. Taking account of the discount rate published in the
Law and Equity Act, R.S.B.C. 1996, c. 253, s. 56, the plaintiff submits
that a proper allowance for housekeeping is $10,000 per year for 10 years
discounted to a present value of $87,521.

[70]        
The plaintiff’s analysis underlying the amounts submitted for loss of
housekeeping is essentially arithmetical, turning outside work into a number of
hours per day multiplied by $15 which the plaintiff submits is reasonable on
the authority of Deo v. Deo, 2005 BCSC 1788, and Chamberlain v. Giles,
2008 BCSC 171. She undertakes a similar exercise with respect to the
computation of indoor housekeeping.

[71]        
The defendants submit that there is no evidence of the extent of
housekeeping assistance required and no evidence of replacement cost. They
submit that the proper approach is to factor loss of housekeeping capacity into
the assessment of non-pecuniary damages. They cite Eaton v. Regan, 2005
BCSC 3, at para. 46:

[46]      As I read Kroeker v.
Jansen [(1995), 123 D.L.R. (4^th) 652 (B.C.C.A.)] and McTavish
v. MacGillivray [[2000] B.C.J. No. 507 (C.A.)] it is open to a trial judge
to compensate for this loss as a factor in the assessment of the non-pecuniary
loss. Given the lack of evidence with regard to replacement cost, that is the
most appropriate way to compensate the plaintiff in this case and the one I have
chosen.

[72]        
The plaintiff seeks an allowance for the cost of future care totalling
$47,515, including $22,190 for a chronic pain program, and cognitive pain,
exercise and other therapies totalling another $20,000 or so. She also seeks
$5,000 for future costs of medication.

[73]        
The defendants submit that all the record supports is some medication
and physiotherapy, or in the alternative, some $14,390 for chronic pain through
the Back in Motion program.

[74]        
Special damages are claimed at $3,353.90.

[75]        
The plaintiff’s summary of damages is as follows:

[76]        
The defendants’ summary of damages is:

IX

[77]        
As I have indicated, I accept that the plaintiff suffers from the psychiatric
symptoms noted by Dr. Misri. Given the complex of pre-accident conditions, her
falls (which can only be speculatively associated with the injuries for which
the defendant can be found liable), and the widespread nature of the injuries
relative to any possible impact the accident may have had, I am of the view
that the accident simply cannot be the cause of all the plaintiff’s present
complaints. Despite the willingness of the doctors called on behalf of the
plaintiff to assign all her symptoms to the accident, and despite the
plaintiff’s submission that the accident accounts for her subsequent falls –
apart from what Dr. Boyle says, the plaintiff’s explanation is all the court
has – I do not think it reasonable to accept such assumptions. The court is not
“stuck” with the plaintiff’s explanations, just because they are
uncontradicted. Assessing the case on the whole of the evidence, I think that
all that can fairly be said is that the accident triggered pain and suffering
that significantly contributed to the plaintiff’s present condition. Doing the
best I can to be fair to both parties, I am of the view that the plaintiff’s
injuries suffered in the accident account for 50% of her overall condition.

[78]        
With respect to the losses of gardening and housekeeping assistance, the
evidence is that the garden was a hobby for both the plaintiff and her husband
and that the house is a very large Tudor-style establishment that is not fully
occupied by the plaintiff and her husband. It is hard to see how large parts of
the house would need more than occasional cleaning. I think it must also be
said that many people the plaintiff’s age “downsize” their domiciles. The
plaintiff cannot be expected to do so, but I think it can be anticipated that in
any event the time is coming when assistance might have been required in any
case. Any allowance for housekeeping should, in my view, be modest.

[79]        
I think the defendants’ point with respect to the gardening is well
taken, and that in the circumstances of this case an allowance for gardening in
the assessment of general damages more readily meets the plaintiff’s situation
than the notion of a replacement gardener.

[80]        
Considering the plaintiff’s loss of the ability to garden as a feature
of the plaintiff’s pain and suffering, I think an appropriate award cannot
exceed half of what I would consider the plaintiff’s overall general damages to
be, were all of her claims referable to the accident. This means that I would
have assessed the plaintiff’s overall pain and suffering at a higher figure
than the plaintiff proposed, but with a corresponding reduction in the claims
for housekeeping/gardening. I assess pain and suffering at $100,000.

[81]        
I assess loss of indoor housekeeping capacity, past and future, at $30,000
for occasional assistance.

[82]        
I assess the cost of future care at $20,000 inclusive of medications and
all therapies.

[83]        
I allow special damages at $3,353.90. Inasmuch as the plaintiff’s
injuries suffered in the accident contributed to these expenses, I consider it
artificial to divide them.

[84]        
The total is:

[85]        
If it is necessary to say so, I make this assessment on the basis that
had I found the accident wholly responsible for the plaintiff’s condition, I
would have assessed damages at approximately double the amounts I have fixed. I
cannot be more precise.

[86]        
The plaintiff shall have her costs and disbursements unless there is
reason to speak to the matter.

“McEwan J.”

_______________________________

The Honourable Mr. Justice McEwan