IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140606

Docket: M122387

Registry:
Vancouver

Between:

Anastasia Ivanovna
Pichugina

Plaintiff

And

Kyung Hi Matula
and Robert Charles Matula

Defendants

Before:
The Honourable Mr. Justice Cohen

Reasons for Judgment

I.        Introduction

[1]            
The plaintiff, Ms. Anastasia Ivanovna Pichugina,
claims damages for injuries she sustained in a motor-vehicle accident (the
“accident”) that happened on August 31, 2010, at the intersection of King
George Highway and 128^th Street in Surrey, British Columbia.  The
plaintiff’s vehicle was struck on the passenger side by a vehicle driven by the
defendant, Kyung Hi Matula.  The defendants admit liability.

[2]            
The plaintiff alleges that she sustained
injuries to her neck, right shoulder, and low back, and sustained an
aggravation of her pre-accident migraine and light headaches.  She seeks $1,560
for loss of housekeeping capacity; $22,734.56 for past loss of income;
$11,125.77 for future loss of income earning capacity; $7,152.20 for future
cost of care; and, $5,611.70 for special damages.

[3]            
By way of background, the plaintiff, age 29,
married Mr. Kristopher Rzesnoski in 2012.  She has been employed by the
Canada Revenue Agency (CRA) since 2009, initially as a collection contact
officer, and now as a collection officer dealing with insolvency files.  In
addition, the plaintiff is a part-time student at BCIT taking management and
financial courses.

[4]            
The plaintiff claims that prior to the accident
she was a healthy and fit person who was able to comfortably juggle her work
and school schedules, as well as have an active social life engaging in a wide
variety of physical pursuits.  She insists that she was asymptomatic at the
time of the accident, and that while she did experience some neck, shoulder,
and low back symptoms prior to the accident, these were mainly due to her large
chest size and the symptoms mainly resolved following her breast reduction
surgery.

II.       Summary of the Lay Evidence in the Plaintiff’s Case

[5]            
The plaintiff testified that prior to her breast
reduction surgery she experienced occasional aches and pains in her neck and
back for which she sometimes took massage therapy.  For the most part, the
symptoms did not limit her physical activities, nor interfere with her work or
school schedules.  As for physical activity, she frequently hiked the Grouse Mountain
Grind, played tennis, and taught ballroom dancing.  Following her breast
reduction surgery, she spent several weeks in recovery, after which she
participated in some new recreational pursuits including archery, pole fitness,
kickboxing, and running.

[6]            
As for her pre-accident headaches, the plaintiff
said that she experienced migraines once or twice a year, and also experienced some
light headaches.

[7]            
The plaintiff said that on the day of the
accident she felt sore and stiff and that in the days following the accident
she felt an increase of pain in her neck leading down to her right shoulder and
in her low back.  She experienced nearly constant low-level headaches and
migraines, more regularly than prior to the accident.

[8]            
On her family doctor’s advice, the plaintiff
took several kinds of treatment including physiotherapy, active rehabilitation,
chiropractic, acupuncture, and home exercise.  She took pain medication and
stayed off work for approximately a month, after which she returned to work on
a gradual basis.  She was referred to a sports medicine specialist for her
shoulder pain, and to a neurologist for her headaches.  She took medication for
her migraine headaches.

[9]            
According to the plaintiff, she gradually
returned to her pre-accident activities, but with each attempt she would suffer
a setback in her condition and would require some further treatment and took
time off work.  Over time, the plaintiff’s symptoms have improved to some
extent, mainly due to her avoidance of triggers such as increased exertion and
working long hours.  She regularly experiences neck and back pain, though it is
not constant, and she has experienced migraine and light headaches on a regular
basis which were alleviated to some extent by a Botox treatment she received in
December 2013.

[10]        
The plaintiff said that due to her pain and
headaches she was unable to study as effectively, and took fewer courses at
BCIT.  She feels that the accident-related injuries have set back her
educational path by approximately one year.

[11]        
The plaintiff and her husband have been trying
to start a family without success.  She has gained a substantial amount of
weight since the accident, and has been told by her medical advisor that she
must lose weight before she can continue with her planned fertility treatments.
This fact has been a significant stressor for her.

[12]        
Ms. Majda Deck has been a close friend of the
plaintiff since 2005.  She now resides in Kelowna.  Ms. Deck testified that
while the plaintiff was not limited from physical activity prior to her breast
reduction surgery, she did have difficulty with some activities, such as undertaking
certain yoga poses.  She said that the plaintiff’s capacity to take on new
activities increased after the surgery, and that the plaintiff appeared to be
more confident.

[13]        
Prior to the accident, the plaintiff and Ms.
Deck frequently hiked the Grouse Mountain Grind, went to the gym together, and
out to dance.  They also drove to Kelowna together to visit friends.

[14]        
The plaintiff called Ms. Deck from the accident
scene and Ms. Deck visited her a couple of days later.  She recalled that the
plaintiff looked sore.  She said that over the ensuing months she invited the
plaintiff to join her on the kind of activities they had done together prior to
the accident, but more often than not they spent time together in less active
pursuits, like dining or watching movies.  They did go for walks and attempted
a drive to Kelowna, but the plaintiff was not comfortable and the trip was not
as enjoyable for them as it had been prior to the accident.

[15]        
At the time of the accident, the plaintiff was
dating Mr. Rzesnoski.  He is an avid outdoorsman and together he and the plaintiff
participated in camping, hiking, riding ATVs, and archery.  Prior to the
accident, the plaintiff worked a flexible schedule that meant she could
organize her work and class schedules to undertake these activities with Mr.
Rzesnoski on a regular basis.

[16]        
The plaintiff and Mr. Rzesnoski took kickboxing
together and had a personal trainer.  She was able to keep up with him without
any difficulty.  He said that any aches and pains she mentioned to him that
were caused by her large chest size were alleviated by taking a brief rest, and
these symptoms did not prevent her from enjoying her life.

[17]        
Mr. Rzesnoski testified that he brought the
plaintiff back to his home following the accident and he observed that she
seemed very stiff and sore and was visibly uncomfortable.

[18]        
Mr. Rzesnoski estimated that the plaintiff
gained about 25 pounds after the accident. He said that his formerly very
confident and physically fit girlfriend, now his wife, turned into a person who
was deeply insecure about her body appearance.  He also said that while, prior
to the accident, the plaintiff kept her apartment in a spotless condition,
their current home is much less so and much of the housework does not get done
until he returns home from work, noting that his job takes him away from home
for days at a time.  He said that when he returns home, he and the plaintiff
spend time together catching up on chores from the previous week, and that
while they still do activities together, they tend to be more sedentary.  He
also mentioned the fact that they are attempting to start a family and the
challenges they are experiencing with the fertility treatments.

[19]        
The plaintiff also called two of her co-workers
to testify on her behalf.  Ms. Laura Lee started her employment at CRA at
the same time as the plaintiff in 2009, and they now work in the same position.
Ms. Lee said that overtime hours are offered to the employees seasonally and
that she and the plaintiff would usually accept the overtime hours offered.  She
recalled that following the accident the plaintiff underwent an ergonomic
assessment and was provided with a new chair and various other accommodations.  She
also described how CRA offers its employees the option of working flexible
hours, which, prior to the accident, the plaintiff took advantage of.  However,
after the accident, the plaintiff worked a standard five-day week due, as Ms.
Lee understood, to the pain the plaintiff experiences from having to sit long
hours.

[20]        
Ms. Carolyn Stanley was the plaintiff’s supervisor.
She described the structure of the insolvency division at CRA.  She explained
that files are assigned to employees on a random basis, and that there is no
option for an employee to seek out a file of a particular complexity, or that
requires some particular skill level.  She also described the various
competencies that are assessed by CRA when considering an employee for hiring
or promotion and explained the process for obtaining these competencies on the
job.  She said that while she could not state with any certainty that the
plaintiff had missed an opportunity to obtain increased competency during the
time that she was away from work, it was certainly a possibility.

[21]        
Ms. Stanley described the plaintiff as a bright
and competent employee who was called upon to give training to other employees.
She said that, post-accident, the plaintiff missed some work and required
ergonomic modifications to her workstation.  She mentioned recently taking a
walk with the plaintiff during a lunch break, but they had to turn back because
of the plaintiff’s discomfort.

III.  Damages

1.       General Damages

Discussion

[22]        
On the issue of causation, the main point of
contention between the parties relating to the injuries sustained by the
plaintiff in the accident is whether the plaintiff was asymptomatic or not at
the time of the accident in relation to her complaints of neck, right shoulder,
and low back pain.  The defence position is that, as a result of the accident,
the plaintiff sustained soft tissue injuries to her neck, right shoulder, and
low back, and that the plaintiff was symptomatic in all of these areas prior to
the accident and that, essentially, her complaints relating to these areas as
well as her complaints of headaches post-accident are the same as or similar to
those she experienced prior to the accident.

[23]        
Following the accident, the plaintiff attended
her family doctor with complaints about her neck, right shoulder, low back, and
an increase in her headaches.  She attended physiotherapy at Eagle Ridge
Physiotherapy from September through December 2010.  She then attended an
active rehabilitation program at the same facility from February to the end of
March 2011.  The plaintiff said that she was much improved following completion
of these treatments.

[24]        
The plaintiff’s position is that the accident
did not aggravate pre-existing symptoms, and that while she did experience some
issues with her neck and shoulder prior to the accident, these were related to
her chest size and the breast reduction surgery resolved the issues.  The
plaintiff said that although her condition has now improved, she is not
enjoying her life to the extent that she did prior to the accident.  She also
said that she has done all that is reasonable to improve her condition and that
now the best cure for her condition is time.  She insists that the doctors all agree
that her symptoms arise due to the accident, although they are not necessarily
in agreement about how long the symptoms will last.

[25]        
On September 7, 2010, the plaintiff visited her
family doctor, Dr. H. Vorobeychik, for the first time about her accident-related
injuries.  In her report dated January 12, 2014, the doctor states that, on
physical examination, the plaintiff had decreased range of motion in the right
shoulder, neck, and lower back.  The plaintiff was advised to start
physiotherapy and anti-inflammatory medications.  At the plaintiff’s visit to
the doctor on November 8, 2011, she complained about right shoulder and neck
pain radiating to the right arm.  The doctor noted in her report that an x-ray
of the plaintiff’s right shoulder dated December 2, 2011, was normal and of the
cervical spine was “suggestive of muscle spasm”.  On May 11, 2012, the
plaintiff discussed Botox treatment with the doctor and its side effects and
reported an improvement with Nadolol.  The doctor said in her report that as a
result of the accident the plaintiff sustained soft tissue injury to her neck,
back, and right shoulder and “developed” headaches.  She states, “By now, her
symptoms improved to some extent, but she still experiences migraine headaches,
and right shoulder, neck, and back problems, especially upon exertion.  Her
prognosis is guarded.  She will continue migraine treatment with Dr. Robinson,
and will likely need physiotherapy for some time in the future.”

[26]        
In cross-examination, Dr. Vorobeychik was
referred to her clinical note of July 18, 2009, which refers to a massage
referral, and neck and back stiffness and pain as well as headaches.  The
doctor agreed that these complaints are “generally” the same as those the
plaintiff complained about post-accident.  The doctor also said that on
occasion the plaintiff had to miss work because of a serious migraine.

[27]        
The doctor was referred by defence counsel to a
letter sent to the doctor by plaintiff’s counsel dated November 13, 2013, where,
on page two, counsel asked the doctor to include in her report, “the prognosis,
with particular emphasis on pain, disability, limitations in activity or work,
and any pre-existing conditions which may have been aggravated by or
contributed to such limitations”.  The doctor conceded that there was no
reference in her report of January 2, 2014, of the plaintiff’s pre-accident
complaints of neck, low back, or shoulder pain, and that this information
should have been included.  She also conceded that her report does not mention
the plaintiff’s headaches prior to the accident and the doctor agreed with
counsel that the plaintiff in fact experienced headaches prior to the accident
and that she did not “develop” headaches as a result of the accident.  As for
scapular winging, the doctor said that she did not check the plaintiff for this
condition.  She said that she did check the plaintiff’s range of motion and
found it to be “good” and agreed that with good range of motion she would not
have suspected scapular winging.  She also said that when she examined the
plaintiff on December 4, 2013, just before writing her report, the plaintiff’s
results were entirely normal, including her neck, low back, and right shoulder.

[28]        
The doctor also testified that the plaintiff was
upset about her inability to conceive and that she is under a lot of stress as
a result.  The doctor said that in her experience, stress can manifest in
headaches and physical symptoms.  When asked if it was possible that the
plaintiff’s continuing complaints are related to the stress that she is
experiencing the doctor responded, “hard to say”.

[29]        
Dr. G. Robinson, a neurologist, in his report
dated November 4, 2013, noted that, pre-accident, the plaintiff experienced
some mild to moderate headaches on average once or twice a week, but severe
attacks occurred no more than every six to eight months.  He said that, after
the accident, the plaintiff had near constant bitemporal headaches, described
as being unchanged in character compared to headaches prior to the accident,
and that most headaches would be mild to moderate.  However, she began
experiencing severe headaches on average two to three times a month.  He said
that, over time, the plaintiff believes that there has been gradual improvement,
and that on occasion she will have a headache-free day, but continues to have
quite frequent mild to moderate headaches.  He said that she believes that she
has “learned how to manage headaches better”, avoiding “foods with sugar and
salt”, which she believes may make her “dehydrated”.  Under examination, the
doctor noted that there was “minimal winging of her right scapula”.  In the
doctor’s opinion, he believes that the plaintiff’s history and examination is
consistent with a diagnosis of migraine without aura and chronic post-traumatic
headache related to neck injury, that her persisting neck and right shoulder
pain is probably the underlying cause of the increase in her pre-existing
migraine, and that other factors could include feelings of anxiety manifest as
jaw clenching and occasional difficulties with sleep.

[30]        
In cross-examination, the doctor said that when
he examined the plaintiff she told him that, before the accident, she did not
have any symptoms in her right shoulder, and that, other than mild tenderness
of the paracervical musculature, her examination was normal.  The doctor said
that the plaintiff told him that, prior to the accident, she missed time from
work and activities due to her headaches and that, after the accident, she
worked full-time and took courses at BCIT.  The doctor said he had no
recollection of the plaintiff telling him that she had to miss opportunities to
work overtime after the accident, and said that it is common with migraines
that they can be triggered by stress in many patients.  He assumed that the
development of the plaintiff’s neck and right shoulder pain was related to the
trauma she suffered in the accident.

[31]        
When Dr. Robinson was asked to assume that,
prior to the accident, the plaintiff was having between three to six severe headaches
per year, rather than the reported one to two per year, his opinion remained
that the increase in headaches was related to the accident.  However, he said
he would have to revise the time that it would take to return to baseline.  He
said that this is speculation and crystal ball gazing, at best, but he revised
his timeframe to be two to three years until a return to baseline. 
Dr. Robinson also confirmed that stress can bring on migraine headaches.

[32]        
In his report of September 8, 2013, Dr. R. M.
Feldman, a physical medicine and rehabilitation expert, said that abnormal
movement of the plaintiff’s shoulder was noted on the right and winging of the
scapula was present beyond 120 degrees.  He said that the plaintiff “was found
to have weakness of the serratus anterior muscle causing the scapular winging”.

[33]        
In cross-examination, counsel suggested to Dr.
Feldman that he could not state that his finding of scapular winging was
related to the accident.  He conceded that he had no way of knowing if the
condition existed before the accident.  When counsel suggested to the doctor
that he could not state with confidence that his finding of scapular winging
was related to the accident, Dr. Feldman said his answer was “maybe” the
finding is there, and that the plaintiff’s history fits the diagnosis.  If
other doctors did not agree with him, Dr. Feldman said he “could not help
that”.  He said that he assumed the plaintiff did not have pain in her neck and
right shoulder before the accident, and, when asked if his opinion would be
different if the plaintiff had pain in her neck and shoulder before the
accident, he said “it depends” and that “you deal with what you are given”.

[34]        
Dr. M. Piper, an orthopaedic surgeon, in a
report dated November 21, 2013, said as follows:

Following my examinations of this lady I
have come to the following conclusions.  It certainly does appear that she did
have symptoms of neck and shoulder discomfort prior to the motor vehicle
accident, as noted in Doctor [Vorobeychik’s] clinical notes.  This may very
well have been significantly benefited by [the] breast reductions.  I do
believe that as a result of the subject accident she has continuing discomfort
in the neck as a result of soft tissue injuries here.  Physical examination was
essentially normal, other than for the finding of muscle spasm in the trapezius
region bilaterally.  Her imaging studies show no significant structural damage.

It certainly appears to me that Mrs.
Pichugina’s major symptomatic disability is with her headaches.  I am inclined
to agree with Doctor Robinson that these are probably cervicogenic but I would
certainly leave discussion of these headaches to experts in that field.

From an orthopaedic point of view I do
believe that she would be benefited by being involved in an ongoing
rehabilitation project.  I think she would be better served by attend [sic] KARP
or CBI than returning to the Eagle Ridge Aquatic Centre.

I do believe that such a program would
greatly improve her prognosis for a complete recovery.

I believe as
well that Mrs. Pichugina should become involved in a very aggressive weight
loss program.  I think her significant weight gain has been detrimental to her
recovery.  I believe that her orthopaedic symptoms at least should ultimately
resolve with the passage of time and appropriate rehabilitation.  I don’t
believe she will have any permanent orthopaedic disability as a result of this
accident.

[35]        
In his report dated February 18, 2014, Dr. Piper
said:

Doctor Vorobeychik is Mrs. Pichugina’s
family physician.  Doctor Vorobeychik documents Mrs. Pichugina’s complaints and
does suggest that she may require further physiotherapy.  With regards to her
headaches, Doctor Robinson defers to Doctor Robinson for his comments.

I have reviewed Doctor Robinson’s comments. 
As we have discussed, I acknowledge Doctor Robinson’s expertise in the
management of headaches.  It would be inappropriate of me to comment on this.

With regards to Doctor Feldman’s report, I
do take issue with his suggestion that Mrs. Pichugina has evidence of winging
of her right scapula.  I examined this young lady two months after Doctor
Feldman and found no evidence of this whatsoever.  I think it is significant
that when she was examined by Doctor Shearer in February of 2012 Doctor Shearer
describes “no evidence of true shoulder pathology”.  He states, “her shoulder
examination was normal”.

I have considerable respect for Doctor
Shearer’s ability to examine the shoulder.

I am surprised that Doctor Feldman, having
described this condition, did not feel it appropriate to carry out any further
investigations such as nerve conduction studies.

A review of the
reports mentioned in no way changes my opinion documented in my letter dated
the 21^st of November 2013.

[36]        
In cross-examination, the plaintiff agreed with
defence counsel that, prior to the accident, she had complaints relating to her
neck, right shoulder, and low back, and that she experienced light headaches
and migraines before the accident.  She said that, before the accident, she did
not miss any work and that, also before the accident, she attended Trailside
Physiotherapy relating to complaints to her neck, right shoulder, and back.  She
agreed that, before the accident, she experienced flare-ups, would take
treatment, be fine for a while, experience a flare-up and take a treatment, and
that this was her pattern.  She was referred to Dr. Vorobeychik’s clinical
notes for November 2009, which reports complaints of neck, shoulder, and low
back pain, and agreed that these were the same areas that she complained of
post-accident.

[37]        
Counsel referred the plaintiff to her Personal
Leave Status Report that shows that she took sick leave in 2009.  She said she
could not be sure if it was in relation to her complaints of low back pain, but
that it was possible.  The plaintiff did recall going to Trailside
Physiotherapy just 13 days before the accident, and said that this is when she
started pole dancing class and had a pain in her right shoulder and back, and
she agreed that this was the same area where she experienced pain post-accident.

[38]        
The plaintiff agreed with defence counsel that
she told Dr. Feldman that she had no complaints in her shoulder or neck just
before the accident and agreed that, 13 days before the accident, she attended
for a massage at Trailside Physiotherapy.  Counsel then said to the plaintiff
that, before the accident, she had symptoms in her back, and she replied that
it was from sitting at work.

[39]        
The plaintiff also agreed with counsel that she
did not tell Dr. Piper that she attended for massage therapy 13 days before the
accident, and also agreed that she told Dr. Robinson that her neck and shoulder
pain was totally alleviated as a result of her breast reduction surgery, but
she did not think she told him about her massage therapy session 13 days before
the accident.  She also agreed that, since March 2011, the pattern of flare-ups
and treatment for those flare-ups, and managing her life and attending work
between the flare-ups, is the same as it was before the accident and in the
same areas she is presently complaining about.  She said that her last flare-up
was in December 2012 and that she has been doing better since then.

[40]        
As for her headaches, she agreed that she has
experienced headaches since her teens and said she did not believe she ever had
to miss work or her activities as a result of her headaches.  Counsel asked her
if she told Dr. Robinson that, before the accident, she had to miss work
because of her migraines and she said she did.  She also said that, after the
accident, her headaches improved with the Botox treatment.  She agreed that in
the past year they got better even before the Botox treatment.

[41]        
The plaintiff agreed with counsel that not being
able to conceive creates stress for her and is upsetting and is on her mind all
the time.  She also agreed with counsel that, after the accident, her stress
level has increased quite a bit.

[42]        
The plaintiff agreed with defence counsel that,
when she was examined by Dr. Robinson on November 1, 2013, she told him
she was continuing to miss a day of work or leaving work early one to two times
a month.  Counsel suggested to the plaintiff that this was not true.  Counsel
pointed to her evidence that she had not missed any work due to accident-related
injuries since May 2013, and she said this was correct.  Counsel said to the
plaintiff that what she told Dr. Robinson in November was not correct and she
responded, “I guess not”.

[43]        
The plaintiff also testified that what she said
in her evidence regarding the number of times she experienced migraines before
the accident was a guess, as she did not keep a record and it could have been
three or four times a year.  She also said that, before the accident, she did
not keep track of how many days she missed from work.  She agreed that before
the accident she missed time from work due to headaches and some physical
symptoms, but did not keep a record.

Decision

[44]        
First, I agree with the defence submission that
the plaintiff was symptomatic in her neck, right shoulder, and low back at the
time of the accident.  In cross-examination, she admitted to having various
flare-ups since at least 2007 in the same areas of her body that she was
complaining about post-accident.  She admitted that prior to the accident she
would experience flare-ups, take some treatments, and then feel well for a few
months before the cycle started all over again, which is the same experience she
had following the accident.

[45]        
On this point, in her clinical record of July
18, 2009, Dr. Vorobeychik made a note of the plaintiff’s visit and symptoms of
neck and back stiffness and pain.  There is also a note, but in another
doctor’s handwriting, with no indication of a date, of back and neck pain.  Further,
on November 15, 2009, in Dr. Vorobeychik’s handwriting, there is a note of the
plaintiff’s visit and symptoms of neck, lower back, and shoulder pain.

[46]        
Moreover, 13 days before the accident, in the
clinical records of Trailside Physiotherapy dated August 17, 2010, there is a
reference to complaints by the plaintiff of pain in the right side of her neck
and shoulder that she had experienced for two weeks with gradual worsening.  The
note states that there was no known trauma and that the plaintiff had slight
numbness in her fingertips.  She received treatment for her neck, back, and
shoulder.

[47]        
Regarding the plaintiff’s complaint of suffering
headaches, she told the medical experts that she suffered from one to two
migraines a year prior to the accident.  However, in cross-examination, she
admitted that this was a “guess” and that in fact she did not know how many
migraine headaches she suffered from prior to the accident, as she did not
actually keep a record of them.  She said that it was possible that she may
have suffered from three to six migraine headaches a year.

[48]        
On direct examination, the plaintiff testified
that her pre-accident headaches did not cause her to miss work or activities.  However,
when asked on cross-examination about Dr. Robinson’s report, where he states
that she did have occasional severe headaches that would cause her to miss work
and activities, she admitted that her pre-accident headaches did in fact cause
her to miss some work and activities on occasion.

[49]        
On direct examination, the plaintiff said that
she continues to experience approximately one to two migraines a month,
although she admitted that since the accident she has been under some stress in
relation to her inability to become pregnant.  She finds this very stressful
and upsetting and admitted that stress is a trigger for her migraines.  The
plaintiff has not experienced a headache since December 2013, and agreed that
her migraines seem to be improving along with her other symptoms.

[50]        
The plaintiff said that when she started to get
back into her activities, she had a flare-up of her symptoms.  In cross-examination,
it was put to the plaintiff that this was similar to her pre-accident cycles of
having flare-ups.  The plaintiff agreed, but qualified it by saying she would
have a bit longer treatment.  The plaintiff said that presently she is not as active
as she was before the accident because of her symptoms.  She said that before
the accident she was a very active person, participating in hiking, camping,
quadding, doing the Grouse Mountain Grind every weekend, working out with a
personal trainer, playing tennis, archery, kickboxing, etc.  Following the
accident, although she tries to keep active, it is her evidence that she is not
able to be as active as before.

[51]        
However, the defence suggested that there are
other reasons, unrelated to the accident, as to why the plaintiff is not as
active anymore.  For example, her best friend, Ms. Deck, who did many
activities with the plaintiff, has moved away.  In addition, her husband works
out of town, and is only home on weekends, which limits her activities with her
husband.  He did, however, confirm that they continue to go camping, hiking,
and quadding as much as they did before the accident.  As well, the defence questions
how much free time the plaintiff has for extracurricular activities given that
she is working full-time, plus overtime, and taking part-time courses at BCIT
in the evenings and on weekends.

[52]        
In summary, it is the defendants’ submission
that as a result of this accident, the plaintiff suffered soft tissue injuries
to her neck, right shoulder, and low back, that she was symptomatic in all of
these areas prior to the accident, and had been treated for her right trapezius
area in the 13 days before the accident.  The defence noted that she has a
history of flare-ups in these same areas dating back to at least October 2007,
and had received treatment for these flare-ups.  The defence said that it would
appear that the plaintiff advised all of the specialists that she was symptom-free
at the time of the accident, and that they were not aware of her pre-accident history.

[53]        
According to the plaintiff, she had much improvement by
the end of her active treatment in March 2011.  At that point, approximately seven
months post-accident, the plaintiff would experience flare-ups when involved in
various activities.  This was similar to her pre-accident status.  In addition,
the plaintiff guessed at the frequency of her headaches prior to the accident, and
it is uncertain what the true frequency was.  Dr. Robinson based his opinion on
the self-report of the plaintiff and therefore, claims the defence, it is
difficult, if not impossible, to determine the baseline.  The plaintiff missed
work on occasion due to her physical complaints and headaches prior to the
accident.  She continues to work full-time, plus overtime, and attends BCIT
part-time.  In the circumstances, the defendants submit that a reasonable range
for the plaintiff’s non-pecuniary damages is $30,000 to $35,000, relying upon Basi
v. Buttar, 2010 BCSC 9; Burton v. Insurance Corporation
of British Columbia, 2011 BCSC 653; and Hunter
v. Yuan, 2010 BCSC 1526.

[54]        
On the other hand, based upon the decisions on
non-pecuniary damages set out in Kuskis v. Hon Tin, 2008 BCSC 862; Fell
v. Morton, 2012 BCSC 428; and Bittante v. Zichy, 2008 BCSC 728, the
plaintiff contends that the general damages applicable to her circumstances is
in the range of $55,000 to $60,000.

[55]        
As Beames J. said in Moini-Shirazi v. Sun,
2010 BCSC 2021, at para. 24, citing Athey v.
Leonati, [1996] 3 S.C.R. 458, it is the function of the Court to consider
the plaintiff’s level of functioning before and after the accident and attempt
to measure the difference between the person before the accident happened, and
the person after the injury, and to ensure the Court is only assessing the
damages attributable to the difference.

[56]        
On the totality of the evidence before me, I
find that, as a result of the accident, the plaintiff sustained aggravation to
her already symptomatic neck, right shoulder, and low back and sustained
aggravation to her pre-existing headaches.  In my opinion, there is no evidence
to support a conclusion that the accident caused the minimal winging of the
plaintiff’s right scapula.  Although the plaintiff returned to work full-time
by the end of two months following the accident, and experienced much
improvement in her condition by the spring of 2011, she cannot take advantage
of a flexible work schedule, and, while she remains physically active, some
activities are no longer comfortable for her.

[57]        
According to Dr. Vorobeychik, the plaintiff’s
symptoms have improved, but she still experiences migraine headaches and
problems with her right shoulder, neck, and back when she is active or upon
exertion.  The overall medical evidence, and that of the plaintiff, is that
there has been gradual improvement in her condition post-accident, and she
appears to be handling her headaches better.  According to Dr. Robinson,
the plaintiff will probably continue to have gradual improvement over the next three
to five years, but she remains at risk for persisting neck and right shoulder
pain, which would act as an aggravator to her migraine predisposition.

[58]        
Upon my consideration of the whole of the
evidence, the parties’ submissions, and the authorities relied upon by them, I
find that a fair and reasonable award to the plaintiff for general damages is
$45,000.

2.       Loss of Housekeeping Capacity

[59]        
The plaintiff’s claim under this head of damage is
based on the law set out by Voith J. at para. 95 of Rezaei v. Piedade,
2012 BCSC 1782:

[95]      This claim is based on the
plaintiff’s diminished ability to assist with household chores. In McTavish
v. MacGillivray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281, Huddart J.A. said:

[63] As we have seen, it is now well
established that a plaintiff whose ability to perform housekeeping services is
diminished in part or in whole ought to be compensated for that loss. It is
equally well established that the loss of housekeeping capacity is the
plaintiff’s and not that of her family. When family members have gratuitously
done the work the plaintiff can no longer do and the tasks they perform have a
market value, that value provides a tangible indication of the loss the
plaintiff has suffered and enables the court to assign a specific economic
value in monetary terms to the loss. This does not mean the loss is that of the
family members or that they are to be compensated. Their provision of services
evidences the plaintiff’s loss of capacity and provides a basis for valuing
that loss. The loss remains the plaintiff’s loss of economic capacity.

[60]        
The plaintiff and her husband both testified
about the plaintiff’s difficulty with housekeeping chores following the
accident.  I accept their testimony that, at least for some time following the
accident, the plaintiff was not able to keep her home to the standard she had achieved
prior to the accident, and that Mr. Rzesnoski assisted her with household
chores when he returned home on the weekends.  I think $1,500 is a fair and
reasonable award for this head of damage.

3.  Past Loss of Income

[61]        
The plaintiff’s claim for past loss of income is
based on her loss of vacation and sick days that she plans to repurchase from
her employer, her direct out-of-pocket loss for time off without pay, and her loss
of opportunity to earn income from overtime hours.

[62]        
The plaintiff explained that her employment
contract permitted her to repurchase vacation and sick days taken with pay, and
that it is her intention to repurchase those days for later use.

[63]        
According to the plaintiff’s calculation, there
were 376.50 hours lost with varying rates of income for a total of $11,372.15.  Of
those hours, 50.5 hours were lost as leave without pay, totaling $1,265.02.  The
balance of those hours was taken as sick leave or vacation leave, for a loss of
$10,107.13.

[64]        
In addition to the income the plaintiff lost
post-accident, she also claims lost accrued sick and vacation credits while
missing work.  Employees are entitled to 9.375 hours of vacation leave credits
for every calendar month during which 10 days or 75 hours are worked, and 9.375
hours of sick leave credits per calendar month in which the employee works at
least 10 days.

[65]        
The evidence is that the plaintiff did not reach the
threshold of hours worked in order to accrue non-wage benefits for the months
of September and October 2010.  She claims a loss of 9.375 hours in each of the
categories of sick and vacation credits during a period in which she earned
$25.05 per hour.  The loss of 9.375 hours, multiplied by two categories
of credits (sick leave and vacation leave) and two months (September and
October 2010), at a wage of $25.05 per hour, results in a gross
loss of $939.38.

[66]        
The plaintiff cited Bjarnason v. Parks,
2009 BCSC 48, in support for her claim of lost income on days for which her
employer paid her as sick leave.  In that case, the Court held that loss of
sick bank credits is a compensable loss and that loss of sick bank credits was
not in the character of past wage loss and should not be deducted for income
tax.

[67]        
Regarding overtime hours, the plaintiff gave
evidence about the amount of overtime hours that were offered post-accident and
the amount she was able to accept.  According to her, in the period prior to
the accident she worked 41 overtime hours at 1.75 times her regular pay, and
was also allocated $10.50 for a meal allowance for each three-hour overtime
shift.  She earned $1,881.34.

[68]        
The plaintiff said that she would have been
interested in taking all of the overtime offered and did accept some overtime
hours post-accident, working 15 of 72 hours offered in 2011; 21.5 of 144
offered in 2012; 0 of 106 offered in 2013 and 33 of 36 hours offered in 2014.  She
claims that the gross loss over the four years post-accident totals $15,757.80.

[69]        
The plaintiff recognized that aside from the
sick and vacation leave used, the remainder of the plaintiff’s past wage loss,
including $1,265.02 for leave without pay, $939.38 for loss of sick and
vacation credits, and $15,757.80 for loss of overtime, must, at law, be reduced
to a net value after tax.  The marginal rate for the plaintiff’s income tax
bracket in each of the years in which the loss was incurred is 29.70% for federal
and provincial tax combined.  Accordingly, the plaintiff’s gross loss totaling
$17,962.20 is reduced to $12,627.43, to which is added the loss of sick and
vacation leave, which are not taxed, of $10,107.13 for a total of $22,734.56.

[70]        
The defence submitted that based on the fact
that the plaintiff took sick leave and vacation until September 30, 2010, and
then worked reduced hours for the month of October 2010, the income loss for
this period of time is 214 hours at $25.05 per hour for a total of $5,360.70
gross which, the defendants argued, is a reasonable claim supported by the
medical evidence.  The defence also submitted that further time loss until the
end of March 2011 is reasonable given that this is when the plaintiff’s active
rehabilitation program ended.  This is an additional 38.5 hours at $26.18 per
hour for a total of $1,007.93 gross.  The defendants submitted that the
plaintiff’s total income loss is $6,368.63, which must be reduced by 29.70% to
arrive at net income.

[71]        
Regarding the plaintiff’s claim for lost
opportunities to accept overtime hours due to her accident-related injuries,
the defence pointed to the plaintiff’s cross-examination where she conceded
that it was not correct to say that she would have accepted all offers of
overtime post-accident.  She admitted that other factors would influence her
ability to accept overtime hours, such as evening and Saturday classes at BCIT and
the fact that, beginning in 2012, the plaintiff’s husband was only at home on
weekends.  The plaintiff also admitted that she would not necessarily have
taken all overtime offered to her before the accident and that she did not keep
track of the overtime hours offered and the amount of overtime she could have
accepted following the accident, nor did she advise any of her treating or
consulting doctors that she had a concern about not being able to accept
overtime hours.

[72]        
On the whole of the evidence, and upon a
consideration of the parties’ arguments, I assess the plaintiff’s net past loss
of income at $8,000, plus $6,000 for loss of sick and vacation leave, for a
total past loss of income award of $14,000.

4.       Future Loss of Income

[73]        
The future loss of income claimed by the
plaintiff is grounded on three types of loss:

(a)        the fact that, but for the
accident, during the 376.5 hours of regular time and 288.5 hours of overtime
she missed due to injury, the plaintiff lost the opportunity to be assigned
cases that may have been of sufficient complexity to ground an application for
increased competency, as well as the opportunity to take on duties outside her
regular scope of employment, both of which are considerations in the CRA’s
process for granting promotions within the organization;

(b)        the fact that, due to her
injuries, the plaintiff took a semester off from her studies and, generally,
took a lighter course load, such that her goal of completing her diploma in
order to qualify for the Bachelor of Business Administration Degree followed by
an accounting certification was delayed by approximately one year, thus
limiting her ability to obtain promotion within the CRA organization
particularly in respect of the Audit division; and,

(c)        the
possibility that she will continue to miss time occasionally for flare-ups of
muscle pain and headaches, as has been the case over the last three and a half
years.

[74]        
The plaintiff and Ms. Stanley testified about
the different levels of positions available at CRA: collections contact
officers (SP4), collections officers (SP5), and resource officers (SP7).  The
plaintiff said that she wanted to be promoted to the SP7 level position and
into management, or eventually to the audit division.  However, the plaintiff
explained that she has not yet had the opportunity to gain the competencies she
requires to be considered for the SP7 level position.  She concedes that there
is not a way to state with certainty that, absent the missed hours set out
above, the plaintiff would have been exposed to the additional complex files.  The
plaintiff pointed to Ms. Stanley’s evidence that “if you are not there you
aren’t getting files.”

[75]        
Based on her assertion that her career
advancement has been delayed for one year as a result of the accident-related
injuries, the plaintiff claims the difference between her level of pay at the
SP5 level position ($59,713/year) and the corresponding SP7 level position
salary ($69,907/year), for a total of $10,194.

[76]        
With respect to future missed days or partial
days, the plaintiff notes that given her symptoms have gradually improved and
that, according to the medical evidence, she may yet see further improvement,
she claims $931.77, based on the fact that she missed 27 hours in 2013 at
$34.51 per hour.

[77]        
In response to the plaintiff’s argument that her
career path was delayed one year, the defence submission is that this head of
damage is too speculative to support an award for future income loss.  The
defence pointed out that the plaintiff also missed work following her breast
reduction surgery, and, in any event, Dr. Robinson said at p. 10 of
his report, “Since the accident [the plaintiff] has been able to return to work
full-time and continue with her studies at BCIT…The main impact of her increase
in headache and persisting neck and right shoulder pain is a reduction in her
quality of life.”

[78]        
As for the plaintiff’s submission that she has
been delayed from advancing in her studies at BCIT, which she claims has had an
impact on her ability to advance in her career at CRA, the defence said that
the evidence does not support this assertion.  Although she had testified that
prior to the accident she was taking three and six courses in the year before
the accident, in the term just before the accident, the plaintiff took two courses,
and in the term just after the accident she took three courses.  She completed
the courses in the term after the accident.  In cross-examination, the
plaintiff testified that she had started a new program in the term following the
accident and that she had not taken financial accounting courses before.  She
explained that the courses were for more credits, and were more difficult.  She
did well in her other courses, but struggled with the financial accounting
courses.

[79]        
I generally agree with the defence submission on
the plaintiff’s claim for future income loss.  I find that the evidence falls
far short of the plaintiff proving that she is entitled to an award of damages
in the amount claimed by her.  I assess the plaintiff’s damages under this head
at $1,000.

5.       Future Cost of Care

[80]        
The plaintiff points to the doctors’ evidence
regarding the future treatments that will assist the plaintiff in her goal of
minimizing her accident-related symptoms:

(a)        Dr. Vorobeychik states “she will
continue migraine treatment with Dr. Robinson, and will likely need
physiotherapy for some time in the future.” She provided a referral dated March
30, 2014, for physiotherapy at Karp for the neck and back pain.

(b)        Dr. Robinson has, in fact,
administered the Botox treatment which appears to last for approximately three
months, and has recommended migraine abortive medication to use as-needed (some
of which in the past has been provided as samples). He will, at the plaintiff’s
request, administer further Botox and has also stated that after she becomes
pregnant and gives birth, she will be a candidate for further treatment with
prescription medication.

(c)        Dr. Feldman suggests “access to a
combined treatment protocol of massage and physical therapy provided as
treatment modalities during the same treatment session.”

(d)        Dr.
Piper states, “I do believe that she would be benefited by being involved in an
ongoing rehabilitation project. I think she would be better served by attend
[sic] KARP or CBI than returning to the Eagle Ridge Aquatic Centre….I believe
as well that Ms. Pichugina should become involved in a very aggressive weight
loss program.”

[81]        
The cost of the Botox treatments is $163.36 over
the amount covered under the plaintiff’s medical plan.  She is willing to
continue with the treatments so long as she is not pregnant.  Four sessions of
treatments per year for the three to five years that Dr. Robinson suggested it
will take for further improvement will cost between $1,960.32 and $3,267.20.

[82]        
Physiotherapy expenses incurred during the
period between September and December 2010 cost the plaintiff $1,225.  The same
is claimed for the future physical therapy recommended by the experts.  As
well, the plaintiff testified that she had relief of her symptoms during the
periodic flare-ups by engaging chiropractic and massage therapy treatments.  She
spent $860 on treatments between the summer of 2011 and the winter of 2012.  She
claims an equivalent amount for such treatments in the future on an as-needed
basis.

[83]        
The plaintiff also claims $360 per year for five
years for a membership program to a gym or fitness center for a total of $1,800.

[84]        
The plaintiff’s total claim for future cost of
care is $7,152.20.

[85]        
I am satisfied that, with the exception of the claim
for Botox treatments, the evidence supports the plaintiff’s claim for the other
items.  As for the Botox treatments, the evidence does not indicate the length
of the treatments, or the amount of time it may be required in the future, not
to mention that if the plaintiff becomes pregnant she will not take the
treatments.  I fix the plaintiff’s award for future cost of care at $4,000.

IV.      Special Damages

[86]        
I am satisfied that the evidence supports the
plaintiff’s claim of $5,611.70 for special damages.

V.       Conclusion

[87]        
In the result, the plaintiff shall have judgment
for the following amounts:

“B.I. Cohen J.”
The Honourable Mr. Justice B.I. Cohen