SUPREME COURT OF BRITISH COLUMBIA

Date: 20140821

Docket: M135402

Registry:
New Westminster

Between:

Deena Lynn Forder

Plaintiff

And

Rodney S. Linde

Defendant

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

Introduction

[1]            
Deena Lynn Forder was injured in a motor-vehicle accident on the evening
of March 19, 2010. She was seated in her Mustang motor vehicle at a stop light
on Lougheed Highway at the intersection of 105 Avenue in Maple Ridge.

[2]            
The defendant was driving his Ford F350 one-ton truck and failed to
notice Ms. Forder’s vehicle in time and crashed into the rear of her
Mustang.

[3]            
Ms. Forder sustained soft tissue injuries to her neck and back and
as a consequence has had ongoing chronic headaches and pain.

[4]            
She seeks compensation for her injuries past, present and future; for
past and future loss of earnings; for past and future medical expenses; and for
related special damages.

Summary of the Accident

[5]            
The accident occurred at approximately 4:00 p.m. on March 19, 2010.

[6]            
Ms. Forder was driving her Mustang convertible on a dry and sunny
day with the top down. She stopped for lights at an intersection at 105 Avenue
and Lougheed Highway.

[7]            
The Ford F350 truck driven by the defendant struck her from behind. The
defendant’s evidence was that he did not notice the traffic stopped and was
within 50 feet of the intersection when he took his foot off the accelerator in
an 80 km zone, and he was within 15 feet when he started to try to apply the brakes.

[8]            
Ms. Forder saw the vehicle coming in her rear view mirror. The
collision was not minor. The rear-end of the Mustang was compressed, from
outward appearance in the photographs, some three inches. Her vehicle was
pushed well into the intersection.

[9]            
Ms. Forder’s principal recollections were her head striking her
headrest and then being somewhat confused thereafter.

[10]        
People moved her vehicle from the intersection, and she then had
difficulty of doing the simple act of calling her partner on her cell phone although
he did arrive soon after.

[11]        
Eventually they went on to their volunteer work, a fundraiser selling
raffle tickets at a nearby hotel.

[12]        
The insurance company wrote off the Mustang convertible.

[13]        
The next day Ms. Forder was beset by pain in her neck, low back and
headaches; she was also vomiting. She attended a walk-in clinic later in the
day. She was prescribed Naproxen (an anti-inflammatory), Flexeril (a muscle
relaxant) and Ativan by the attending doctor.

[14]        
On Monday, March 22, 2010, Ms. Forder attended her regular doctor, Dr. Luitingh.
Her complaints were pain in her head, chest, neck, back, arm, dizziness, nausea
and driving anxiety.

[15]        
Her doctor prescribed the same medications and gave her a letter
regarding her absence from work and made a referral for physiotherapy.

Summary of Ms. Forder’s Background

General

[16]        
Ms. Forder was age 47 at the time of the accident.

[17]        
She graduated from High School in 1980 and took a diploma course in
recreational leadership in 1998 and then took a job as an occupational therapist
at Riverview Hospital that year.

[18]        
She married in 1988 and had children in 1989 and 1991. She took an early
childhood education program and opened a daycare in 1989 and also accommodated
children with special needs.

[19]        
She then began to study to become a special education assistant (“SEA”)
and obtained her qualification in 1994. That same year she began working full
time as a SEA and continued working with the school district until the
accident.

[20]        
She worked 28 hours a week in elementary schools and 30 hours a week in
high schools on a timetable similar to a teacher.

[21]        
While Ms. Forder was an average student in high school, she came by
her caring nature naturally. Her mother was a caregiver and for some 18 or 19
years an executive director of an organization for the mentally challenged.

[22]        
So Ms. Forder had, from an early time, helped those less fortunate
than herself, and her nature had led her easily into assisting special needs
children and educating herself in care for the handicapped.

[23]        
In 2008, she returned to Douglas College part-time with the intention of
obtaining a degree in recreational therapy and increasing her income. However
the acquisition of degree credits was slow, given her busy life and slow
reading skills.

Pre-Trial Earnings

[24]        
Ms. Forder’s income shows consistent taxable earnings from work and
unemployment insurance beginning in 2005 – $30,395; 2006 – $37,116; 2007 – $34,359;
2008 – $35,953; 2009 – $37,774 (of which EI comprised $9,161).

[25]        
She had began additional studies at Douglas College to obtain a degree
in therapeutic recreation so she could improve her wage and obtain more hours
of work with the long-term intention of having a better pension. Potentially it
opened up other employment in the mental health field with seniors and in
hospitals.

Other Income

[26]        
From time to time, she took homestay students from Mexico and Japan for
anywhere from two to six weeks per year. She took these students to expose her
children to other languages and experiences.

[27]        
She said income for the homestay students was approximately $700 per
month or $26 per diem, and she provided three meals, snacks and transport to
school and typically showed them around Vancouver.

[28]        
She also did respite work for families with special needs children, and
in the six months before the accident, she regularly cared for three children.

[29]        
At trial, she said respite income was not taxable.

Marital Status

[30]        
In 2008, her marriage amicably broke down. She lived much of the summer
at regular camp at Cultus Lake.

[31]        
She began a new relationship with Mr. Omerod.

[32]        
In November 2009, the matrimonial home sold, and she bought a new home
on 102B Street in Maple Ridge. Her new partner Mr. Omerod helped repair
the house and small garden.

[33]        
More recently in March 2011, they moved into a house on 222 Street in
Maple Ridge.

Pre-Accident Health

[34]        
Undeniably, pre-accident Ms. Forder had various health issues,
particularly a work related incident in 2007 that saw her off work for several
months. However, by April 2007, she was able to run in the Vancouver Sun Run
10 km.

[35]        
She acknowledged she had low back pain off and on over the years since a
1997 work place injury. Other injuries were in 2001, 2002, 2007 and October
2009.

[36]        
These injuries lead to various neck and low back injuries as well as
headaches. All the injuries required medication, chiropractic, and
physiotherapy treatment. And twice she was off work for several months.

[37]        
Ms. Forder was a keen gardener. As well, she was very interested
and active in various crafts, including stained glass, scrapbook making,
sewing, and painting.

[38]        
From her mother and sister’s evidence, she was central to family
celebrations: she organized and cooked Christmas and Thanksgiving dinners as
well as recognizing and organizing wedding anniversaries and other family
celebrations.

[39]        
She was an occasional runner in the Sun Run and said not only had she
completed the Sun Run but she also completed a half marathon in 2007.

Evidence at Trial

Deena Forder

[40]        
Ms. Forder graduated from Centennial High School in Coquitlam in
1980 and went on to Langara College taking a diploma in recreational leadership
and in 1982 a diploma in psychology.

[41]        
She began working at Riverview Hospital in occupational therapy and
recreational therapy, particularly arts and crafts; cooking; and life skills.

[42]        
She took a craft instruction course in 1986.

[43]        
She married in 1988 and had two children. She started her own daycare in
1988, became qualified in 1990, and ran it until her daughter was four.

[44]        
She became interested in special needs children and befriended a number of
them while she was running the daycare and as a result took a special education
assistant’s course in 1995.

[45]        
She then began working for School District Number 42. Effectively, she
works classroom hours similar to a teacher (but without the preparation) with
28 hours weekly in elementary school and 30 hours in high schools.

[46]        
Her earnings including EI over the summer were in 2005 – $30,395; 2006 –
$37,116; 2007 – $34,359; 2008 – $35,953; 2009 – $37,774.

[47]        
She noted she received worker’s compensation in 2007 due to the arm
injuries she sustained being off work from late January to mid-April.

[48]        
In 2010, her tax return shows $13,059 T4 earnings, EI of $9,161 and RSP
of $2,226 for a total of $24,446.

[49]        
In 2009, her marriage broke down; the matter settled on an amicable
basis. She then lived at Cultus Lake from May to September.

[50]        
In November 2009, the family home sold.

[51]        
She moved to a new house in Maple Ridge on 112B Street. She said it was
not in good shape. By then, she had met Mr. Omerod in summer 2008, and
their relationship grew. She believed Mr. Omerod moved in with her at the
beginning of 2010.

[52]        
She and Mr. Omerod moved to the current premises on 222nd Street in
March 2011.

[53]        
From time to time, she took homestay students over the summer for a two
to six week period as she thought it a good experience for her children and it
added some income of approximately $700 per month.

[54]        
As well, she did respite work for approximately three families on a
regular basis.

[55]        
She described her pre-accident health as being normal except for a car
accident in Grade 11 and workplace accidents.

[56]        
In 1997 and January 2007, lifting incidents injured her neck and
shoulders.

[57]        
In October 2009, a swinging door struck her. Her doctor put her on Gabapentin
to treat the pain in her neck and shoulder.

[58]        
She recalled going to Mexico in February 2010 when she was taking two
pills of Gabapentin a day and feeling fine at work.

[59]        
She noted that she ran the Sun Run several times and ran a half marathon
in 2007. While she was off work in the early part of 2007, she was able to run
and compete in the 2007 Sun Run in April.

[60]        
She enjoyed an active social life and particularly, family dinners or
going to friends’ houses. She enjoyed planning parties and sports days’
activities.

[61]        
She enjoyed gardening in the home acquired in November 2009. She and Mr. Omerod
put in a cement path and other garden work.

[62]        
She had very much enjoyed her gardening in the previous matrimonial
home, including pruning and tending various kinds of trees requiring such as
peaches, apples, pears, cherries and as well various berries. She said she
would spend a day at a time in the garden.

[63]        
She also enjoyed camping and going up to the interior. And in the
summer, she would go to Cultus Lake every weekend.

[64]        
She enjoyed camping with the children. Her former husband was “not into
it”, so it was largely her work, and she enjoyed setting up the campsite,
including a fence for the dog and firewood. But now Mr. Omerod does those
tasks.

[65]        
With respect to her kitchen activities, she enjoyed canning her fruit
and berries.

The Accident

[66]        
She said the accident happened on Friday, March 19 at about 4:00 p.m.

[67]        
She was going to assist with the Lions Club meat draw and was westbound
on the Lougheed Highway in her Mustang convertible with the top down. She
stopped at a red light. She heard the screeching of tires, looked in the mirror
and then she recalled people pushing her car out of the intersection.

[68]        
She felt confused, and she recalled trying to use her cellphone to call Mr. Omerod
because somehow she could not do it. A bystander phoned him for her, and he was
soon on site.

[69]        
She said the other driver apologized for hitting her, and he said he had
not been paying attention.

[70]        
Photos of the damage of the Mustang were introduced in evidence, and the
damages’ cost estimate was $1,700. The accident resulted in a total loss.

[71]        
Her left arm hurt, but otherwise she felt ok and went with Mr. Omerod
to the Lions Club meat draw. She was, however, not able to help in the usual
fashion and they went home.

[72]        
The following day, she had a really bad headache and pain in her neck,
back and chest. She was also throwing up, so she went back to bed.

[73]        
She tried to go to a clinic but felt too dizzy and nauseated, but
eventually later in the day, she went to a walk-in clinic in Maple Ridge where
she was prescribed Ativan and painkillers.

[74]        
She saw her family doctor, Dr. Luitingh, the following Monday.

[75]        
She said she had complaints of low-back pain on the right side that
seemed to progress across her hips and pelvis and into her back.

[76]        
She had low-back pain pre-accident, but it was only in her gluteal
muscles whereas the car accident resulted in injury more to her back.

[77]        
She has only really noticed improvement in her back since January 2013
when she started yoga and is obtaining better mobility with less pain.

[78]        
She also had a lot of muscle spasms between her shoulder blades that have
not improved.

[79]        
She complains of what she describes as muscle spasms in her chest area
when she is trying to do her activities.

[80]        
The primary problem, however, has been headaches that she described as
bad daily migraines. They last all day and cause her to lose her sight. She
said she was not able to speak or even think properly. It would affect her at
night or when she increased activity.

[81]        
She said the migraine medications prescribed by the doctors did not
help.

[82]        
Eventually, she started on Topamax and the worst of her headaches were
somewhat relieved.

[83]        
She still has daily headaches that can be triggered by any kind of
activity, even as simple as emptying the dishwasher.

[84]        
She complained of jaw pain for a long time, but it has gone away. She
noted the headaches would cause numbness in her face that sometimes occurred
before the headaches came on.

[85]        
Exhibit 9 presents a chronological sequence of all the medical
appointments and prescriptions. It shows physiotherapy beginning in March 2010,
massage therapy in April 2010, a chiropractor in May 2012, and Dr. Ferri,
the psychologist, on June 24, 2012.

[86]        
A KARP program was cancelled on doctor’s advice.

[87]        
Additionally, Ms. Forder attended 34 sessions of kinesiology
between March 3 and July 13, 2011.

[88]        
Regarding the kinesiology sessions, she said that she was having
difficulty doing even simple stretches. Every time she began to exercise, she
would get dizzy and have severe headaches, but she felt it important to keep on
doing something to re-condition her back given she was busy all her life to
that stage. But she also felt it was important that she be supervised in her
programs in case she fell over. She recalled trying to ride a stationary cycle
and had to stop.

[89]        
She said the kinesiology sessions ended on her doctor’s advice. She said
ICBC stopped paying even though she wanted to continue.

[90]        
So she got her own gym pass, but she did not feel comfortable with no
one to supervise her or tell her what to do. Her concern was that without
supervision she might get dizzy just “standing there” and feared for other
person’s safety as well as her own.

[91]        
She felt that without supervision during activity she did not know when
headaches might affect her and what she might do.

[92]        
On October 30, 2011, she saw Dr. Stephen Anderson for a psychiatric
assessment. He recommended getting cognitive behavior treatments (“CBT”) from
the psychologist.

[93]        
On March 16, 2012, she began seeing Dr. Michael Anderson and met
with him ten times. At the end of the ten sessions, Dr. Michael Anderson
apparently told her he could not help anymore, and she should get a
psychologist and other psychiatric help.

[94]        
On February 14, 2013, she went back to seeing Dr. Ferri and said
she finds her treatments and Dr. Ferri herself supportive. She said that
she pays for the treatments from her extended health (50%) because ICBC also
stopped making payments to Dr. Ferri.

[95]        
On April 2, 2012, Dr. Luitingh gave Ms. Forder a note
referring her for vestibular disorder physiotherapy, and she was initially
treated in Pitt Meadows.

[96]        
In January 2013, she changed to a Port Coquitlam physiotherapist, Ms. Keen.
She said it is helping, but it is a long slow process, and it had not ended. Ms. Keen
has referred her to a “guru” physiotherapist in North Vancouver, and the
treatments were ongoing.

[97]        
Counsel then turned to Exhibit 10, a medication summary from July 1,
2007 to April 25, 2013. And counsel proceeded to take her through each
medication she took, why she took it, the effects it had on her, and what her
dosages were.

[98]        
Ms. Forder spoke of taking Topamax for her headaches and dizziness
that Dr. Luitingh initially prescribed on April 20, 2010. The initial
prescription was for 25 mg, and it increased to 50 mg.

[99]        
Ms. Forder said she stopped that medication when she went on
holiday in Mexico in December 2010. She said everyone else was having fun but
she was not; she was going to bed early and was sad and upset, so she reduced
the medication to 25 mg and then stopped. In essence, “she threw in the towel”.

[100]     However,
in mid-June 2011, she saw Dr. Sadowski, the neurologist, who recommended
she go back on Topamax at a higher dose of 200 mg daily. He said she could not
continue to live in pain, and the pain could, in the long term, affect the way
her brain was working. She said she did not like to take medications and felt
that Topamax had not previously helped, but he asserted it would be the best
medicine for her problem.

[101]     On July
11, 2011, she filled a new prescription, and in August of 2011, she increased
the Topamax dosage to 200 mg daily. She has not changed that dose since.

[102]     She says
the headaches have gone.

[103]     She was
warned of some possible side effects with Topamax, but she said it had not
affected her concentration or cognitive powers. She did acknowledge she was
sleepy for a while, and she did have some tingling in her hands and feet, but
those side effects have gone.

[104]     Dr. Luitingh
prescribed Gabapentin for her pain. But she was taking Gabapentin in February
2010 to deal with neck pain she was suffering pre-accident. She was taking two
pills a day.

[105]     After the
car accident, Dr. Luitingh prescribed a higher dosage of three pills a
day, over 900 mg. She said that dose was effective, and she takes it daily. It
treats the pain in her trapezius and the top of her neck, and she had no side
effects.

[106]     In 2007,
she was prescribed Oxycocet after a workplace injury. But she said she took
very few of them as she did not like them as the side effects made her feel
“spacey”, and she did not like taking pills.

[107]     She
believed the Oxycocet pills were stolen during a children’s party, and a new
prescription was made in 2009, but she had not used many.

[108]     Before
2009, she was using Oxycocet for muscle pain, but after the accident they were
used for headaches, and in 2011 for “really bad headaches”.

[109]     In early
2012, Dr. Robinson suggested she take Oxycocet for the really bad
headaches, and if she took them every four hours, she would not get such bad
headaches. However, she said that even though she took them regularly, she
always felt she was catching up, and she had difficulty remembering to take the
pills every four hours and felt she was on a roller-coaster.

[110]     At
nighttime, she felt Oxycocet did help when she took them with muscle relaxants
as they assisted her in getting sleep right through the night.

[111]     In sum, she
used 630 mg Oxycocet a day in 2012 after seeing Dr. Robinson in January
2012.

[112]     In October
2012, she was prescribed a pain patch called Butrans. By using that patch, she
found the headache “spikes” lessened, and she had fewer bad headaches.

[113]     She said using
Oxycocet had decreased drastically, and she rarely used it unless she overdid
some work in the garden.

[114]     In January
2013, with the reduction in pain due to Butrans, she began therapeutic yoga.

[115]     She said Dr. Ferri
and Dr. Luitingh had previously suggested yoga, and she had tried yoga but
found it too difficult. However, therapeutic yoga seemed beneficial, and she
has been going eight months and can do “almost all the stretches and poses”.

[116]     She has
increased her mobility, and she has more hope. She feels it is improving her
strength and that she is better able to get out of bed, shower and get dressed
each day.

[117]     In 2009
and 2012, she also took Emtec for pain. In 2009, she took 120 pills and
described them as being like Tylenol 3.

[118]     In 2009,
2010 before the accident, and in 2011 after the accident, Novo-Cycloprine was
taken as a muscle relaxant.

[119]     Cyclobenzaprine,
another muscle relaxant, was also prescribed post-accident. In 2010, she took
ten, and in 2012, she took 100.

[120]     In May
2011, she was prescribed Amitriptyline (Elavil). She said it was actually
prescribed for pain and headaches, but it is listed as an antidepressant. She
said it had a bad effect on her leaving her with a bad taste and a dry mouth,
and it kept her awake at night.

[121]     In
mid-2011, Dr. Luitingh prescribed Nortriptyline as being a newer version
of Amitriptyline with fewer side effects, but it had the same problem, and she
said she gradually reduced the dosage until she went off it.

[122]     In March
2012, Dr. Sadowski suggested she tried Cymbalta, another antidepressant,
and she increased the amount in mid-year, but she then stopped using it in
November 2012 because of the dry mouth, bad taste side effects and a rather
“flat” feeling. This drug also was an antidepressant, but she appears to relate
it to headache treatment.

[123]     Ms. Forder
was then asked about her post-accident life.

[124]     In terms
of post-accident issues, she said she had difficulty initially forming
sentences, recollecting words or concentrating whether on conversations,
reading or what she is doing at home.

[125]     As an
example, she said that while cleaning her fridge, she would go to get a clean
cloth and would see the laundry and forget what she was doing. She would then
realize that the laundry was not finished.

[126]     As another
example, she recalled accusing the children of leaving the fridge open, and
then they would reply that she had left it open. She had difficulty recalling details
of conversations, but she said it has got better over time.

[127]     She was
quite upset at this stage in her evidence.

[128]     In crowds,
she had great difficulty with noise or even being with her own family. At
times, she would find it overwhelming because there would be too much to take
in, and she would have to leave.

[129]     At family
dinners, she does not stay long and she is the first to leave. She notes she
used to organize large elaborate meals, and now if she does a meal, it is very
basic and pre-prepared, e.g., like spaghetti.

[130]     She said
relatives get frustrated with her. They were used to her organizing, and now
she had become the scatterbrain. And she knows that leaving family events early
upsets her father.

[131]     However,
she said her family had been amazing in their support, and her parents, her
partner, and other relations help with the garden. But she feels guilty as she
used to be the one that did everything.

[132]     At home,
the division of labour has changed markedly as she previously did all the home
cleaning and cooking. Now Mr. Omerod does it, and she also pays for some
house cleaning. She says if she does the housework, she gets headaches.

[133]     She said
her mother is very sweet, and she just helps clean up the house.

[134]     Ms. Forder
was then asked about her work. She has not been able to go back to work.

[135]     Pre-accident,
she was providing respite to families through Ridge Meadows Community Living.
The hours could vary but usually about six hours per day.

[136]     She has
only continued with a very limited amount of respite work with Nicole who is a
high-functioning child. She has known Nicole since Grade 4, and she recently
graduated from high school. Nicole is high-functioning but non-verbal, and she
has no behavioural issues. Therefore, Nicole is not a risk to her, and they
have a very strong relationship.

[137]     She
discussed her abilities with Nicole’s mother after the accident, and she said
that she would have to restrict assistance in active activities like skating or
bowling. Basically her assistance to Nicole has been passive assistance like
movies or baking in the kitchen.

[138]     The letter
from Community Living notes that between April 2009 and March 2010, Ms. Forder
provided 34 days of respite at $100 per day. Respite work is apparently
non-taxable.

[139]     Her income
for respite work for Nicole from July 2009 through June 2010 totalled
$6,847.50. She stopped doing the respite care for the others due to their
mobility or behavioural issues.

[140]     Regarding
her work for the school board, School District Number 42 provided a letter July
12, 2010 noting Ms. Forder was hired September 7, 1994 as a special
education assistant being paid $25.72 per hour working six hours per day, five
days per week.

[141]     Exhibit 14
contains a description of the special education assistant’s work. Ms. Forder
said the job varies greatly depending on whether one is just supporting a
student, actually helping and assisting with the class work, or even learning
subjects and assisting the teacher.

[142]     Ms. Forder
said she is concerned she is not able to learn and teach as she previously did.

[143]     She notes
special needs children vary greatly; some are able do what is happening in
class, and others go into other programs like sewing or cooking. But gym work
has to be done with the rest of the class, and some of the special children are
physical risks, so a worker needs to know restraining techniques.

[144]     The job
also puts into question her own physical health and strength because she has to
be able to lift, transfer, feed, clothe and help children in and out of busses.

[145]     At this
point in her testimony, Ms. Forder became quite upset and was crying.

[146]     To get
back to work, she must have a doctor’s note that she can meet the job
description.

[147]     Counsel
asked what Ms. Forder’s retirement plans were. She indicated she expected
to work until 60 or 65 and carry on with respite care. She said the pension is
poor, but if she was able to get a degree that would change.

[148]     Ms. Forder
was asked about travel.

[149]     With
respect to travel since the accident, she went to Mexico in 2010 with her
parents, to Phoenix and on a Caribbean cruise.

[150]     She said
the trip to Mexico in December 2010 was very depressing as another friend’s
daughter and Mr. Omerod’s son all came for Christmas, but she was having
to turn into bed early each evening. She found the flying uncomfortable, and
she did not feel well at any stage of the trip.

[151]     In
November 2011, they went to Phoenix but she found the airplane trip “horrible”.
The seniors’ complex in Phoenix was good, and she said her parents did
everything. She got out the rain and relaxed and did little day trips. In sum,
it was a good trip.

[152]     The
Caribbean cruise was “a disaster”. She did not want to go, and the travelling
from Seattle through Denver to Florida was not comfortable. On the cruise, she
felt dizzy and if she started walking, she would feel the motion of the boat.
On the land visits, she would get off the boat and go to the nearest pub and
did not enjoy any of the excursions.

[153]     She was
asked about gardening, and she said she can work in the garden sitting on a
stool and could then plant and weed.

[154]     Ms. Forder
was then asked about her gardening, her grandson, and her crafts.

[155]     Gardening
used to be a favourite activity, but she is now just helping and cannot do it
by herself. She said if she bends down, puts her head down, or becomes
overheated, she would get dizzy and it made her nervous.

[156]     She said
nowadays she is good in the garden for 15 to 30 minutes, but then she gets back
and neck pain. If a headache or dizzy spell occurred, she might even lose her
sight. It is the loss of balance that worries her, so people assist her.

[157]     She says
when her grandson visits, she likes to help but can only do so for a short
period of time. She puts him into a Jolly Jumper but does not like him on the
floor as she is not able to help if he moves away.

[158]     She also
has not kept up with crafts, which was a favourite interest. She says she has
tried a couple of times, but, for example, when she is trying to look at
stained glass or when she is sitting looking down, she gets dizzy. Similarly,
with knitting, she used to do elaborate sweaters, but now she is only able to
knit a child’s basic sweater.

Special Damages

[159]     Exhibit 16
was presented as Ms. Forder’s list of special damages for $40,214.

[160]     Only the
matters being contested were put to Ms. Forder.

[161]     Item 1 was
for exterior house cleaning in July and August 2011 for $660, and it related to
cleaning the gutters and siding as well as pressure washing the concrete
perimeter.

[162]     Ms. Forder
said the work was not done on Mr. Omerod’s house (by that statement, I
infer her to mean it was her house). In any event, Mr. Omerod was busy, so
Mr. Romans was hired and used Ms. Forder’s pressure washer.

[163]     Items 2, 3
and 4 is work her son did to repair water leaks in the backyard in October 2011
and May 2012 and for removing old trees in April 2013 for a total of $1,455.

[164]     Ms. Forder
also sought the cost of extended health benefits that cost $28.77 monthly as
she was not working; the total is $1,188.55.

[165]     Cost of
psychotherapy services from Dr. Jean Ferri and Dr. M. Anderson
totalling $19,050 were also put forward as special damages.

[166]     She said
she derived a benefit from Dr. Ferri’s psychotherapy.

[167]      Item 8
was for medical services premiums for $38.40 a month; the total is $345.60.

[168]     She also
claimed the Sun Run registration for 2010 and 2013, $145.95 and $155.68,
respectively.

[169]     Ms. Forder
was asked if she had worked with a kinesiologist, and she said about a year ago.
She found a women’s only circuit training with three people in the class, but
she said she had a blackout and headaches at the first class, so she sat down
and was asked not to come back until she had medical clearance.

[170]     She also
claimed liver health pills ($147.75) that were used in 2012 and 2013. Ms. Forder
said Dr. Luitingh suggested them in conjunction with the Oxycocet.

[171]     She also
claimed payments to a counsellor in June 2013 of $547. She said Dr. Luitingh
recommended seeing the counsellor over grief and anger related to losing her
job; her changed life; and for guilt and fear. She said speaking with the
counsellor was helpful.

[172]     She also
claimed $59 for a sacroiliac belt that her physiotherapist suggested would help
when walking in the Sun Run as her pelvis/sacrum was not stable, and it would
allow her to walk for a longer period of time. She did not eventually
participate, but she did use it for some of the training walks.

[173]     She
claimed $970 for chiropractic services from April 12, 2010 to December 2010,
some services in 2011, treatments from mid-2012 to October 2012 and January
2013 for back pain. Ms. Forder said she found it beneficial. She said Dr. Luitingh
supported the chiropractic treatments. She said it helps with mobility and also
assisted with the pain in her sacrum/pelvis and mid-back.

[174]     She also
claimed charges for a consultation for a mouth guard in October 2012 and
January 2013 as the physiotherapist said it would be worth seeing if a mouth
guard might help with her headaches.

[175]     Various
charges for a Hertz car rental ($13), attending an examination for discovery in
2012 and 2013 ($58), and completing an insurance form by Dr. Luitingh
April 5, 2010 ($40) that was related to her line of credit as it was affected
by her loss of income were all questioned.

[176]     Exhibit 17
is a summary of expenses for yard work with supplies from Haney Builder’s
Supplies $1,510.51 and Ramis $124.62 for a total of $1,635.13. Ms. Forder
said the flower beds and vegetable beds were on the ground, but Mr. Omerod
built them up using railway ties to raise the bed 10 inches. She said she
needed to have the beds raised so that she could work in the garden easier.

Cross-Examination of Ms. Forder

[177]     Ms. Forder
agreed Dr. Luitingh was her doctor since September 2006.

[178]     Counsel
thoroughly examined her about previous workplace injuries.

[179]     She agreed
she had a Worksafe report for September 16, 1997 when she was transferring a 50
lb student and sustained right-side lumbar pain resulting in her being off work
for 42 days; she had eight weeks chiropractic treatment.

[180]     On June
30, 2001, she reported being hit by a wheelchair from behind; it injured her
low back, and she was off work for approximately three months.

[181]     In
September 2002, she was injured in a two-person lift causing pain in the top of
her neck on the left side, and she was off 85 work days or approximately four
months from September through Christmas. She agreed she was in a lot of pain.

[182]     On January
29, 2003, she no longer worked with the physically disabled but only the
mentally disabled, and she agreed that work was less physically demanding.

[183]     In
September 2006, she and a student fell in a bowling alley and she missed one
day of work.

[184]     On January
23, 2007, a student pulled on her left arm when her arms were crossed causing
an upper arm injury and pain in the left side of the neck and upper back and
between the shoulder blades. It resulted in a WCB claim. She had physiotherapy
treatment. She also reported headaches starting in the base of her neck but
being active. She had massage therapy, and WCB made findings of left arm injury
and headaches. She was off work until April 24, some three months.

[185]     Counsel
noted they had put her return to work day as April 26, but counsel referred to
a letter from Worksafe showing the return to work on April 16. Ms. Forder
did not recall a graduated return to work nor having any more physiotherapy
after returning to work.

[186]     A stress
fracture in her left foot was noted in June 2007.

[187]     In March
2009, she chased a student but twisted her knee. The knee pain that night
resulted in Dr. Luitingh prescribing a muscle relaxant for her. She had no
recollection of that.

[188]     She agreed
she had other health issues in 2009 and another work injury on October 26,
2009. She was pushing a wheelchair and a door hit her causing immediate
right-sided pain. She was prescribed an anti-inflammatory for left shoulder
pain. She gave a history of left shoulder pain with pain in her left side and
neck, and she noted previous left shoulder injuries in 2001 and 2006.

[189]     She was
then asked about her physical activity, namely running.

[190]     She agreed
she ran in a half marathon in August 2007 continuing her training after the Sun
Run. She said she ran and walked in the Sun Run. She agreed she was off work at
the time, and she agreed her daughter was at home at that time.

[191]     She agreed
she had a picture of her competing in a half marathon in 2007 and believed she
trained, but she did not know if she ran in the 2008 Sun Run. She agreed 2008
would have been the year of the separation, but the training begins in January
whereas the separation agreement was not made until June or October of 2008.

[192]     She agreed
she told Dr. Luitingh she was not able to work at that time, but when
asked if she told Dr. Luitingh she was training for the Sun Run, she said
she must have. She agreed the doctors’ reports went to WCB advising she was not
able to work.

[193]     She was
then asked about respite work.

[194]     She agreed
she provided respite for A in 2007 and had done so in the spring, summer and
fall 2005 and all of 2006 and in 2007 from January through June. She agreed she
was still off work from January to April 2007.

[195]     She described
A’s special needs as relating to a mild form of Fetal Alcohol Syndrome; she was
able bodied, but she did a lot of homework and after school activities. She
agreed A’s parents would have paid $571 per month to have her provide child
care.

[196]     She was
then asked about 2008 and her health problems during that year.

[197]     In March
2008 Dr. Luitingh wrote to a rheumatologist noting Ms. Forder had
been suffering months of joint pain and fatigue. Ms. Forder said it
related to a strange pain she was feeling in her hand, but as far as she could
recall, she had no treatment or therapy.

[198]     There was
some discussion as to whether she had Lupus in April 2008.

[199]     In
September 2008, she asked Dr. Luitingh for an exemption note due to
personal stresses affecting her abilities at Douglas College. She spoke to a
counsellor and was advised to withdraw from the courses so as to not lose her
fall tuition fees. She agreed she told Dr. Luitingh she had trouble
sleeping, but she did not fill the prescription for the Amitriptyline that the
doctor prescribed.

[200]     She then
said she was mixed up about the date of marital separation –  i.e. September
2008.

[201]     With
respect to her Douglas College studies, she took general studies in summer
2008, and in 2009 she had difficulties due to the financial issues arising with
her separation.

[202]     She was
then asked about why her studies were on hold.

[203]     She told Dr. Robinson
in February 2012 she was taking Spanish classes one hour per week. Dr. Robinson
noted Ms. Forder said her education was on hold due to difficulties
arising from her accident. When asked if she told Dr. Robinson her
education was on hold due to her finances or moving, she did not recall such
discussion.

[204]     She was
referred to Dr. Teal’s report where she was reported as saying that her
degree aspirations were on hold due to finances, and she said that fact was
true, but she denied saying that she had taken courses in special education,
psychology and business.

[205]     When
resuming her evidence, Ms. Forder said she had thought it over and agreed
that she had separated from her husband in 2008 and not 2009.

[206]     She agreed
she took a summer course in 2008, decided to separate in May 2008, was at
Cultus Lake over the summer, and then sold her house. She was taking one
tertiary course at that time.

[207]     She agreed
the house moving, packing, etc. precipitated withdrawing from coursework in
September 2008.

[208]     She was
then asked about difficulties managing children. She disputed the reference to
having difficulties with handling children in a bath as not being related to
her grandchildren.

[209]     She was
then asked about difficulties sleeping, and Ms. Forder agreed she had
problems with her sleep before the car accident. The concussion clinic noted
her saying she had never slept through the night since she was age three. She
said three was incorrect. It was more like age 13, and she agreed she had
difficulty sleeping before the accident.

[210]     I noted
this day Ms. Forder was in a good mood and smiling. I will also note in
passing that Ms. Forder’s evidence was given over six days of trial to
accommodate the many expert witnesses, and during her cross-examination she
seemed comfortable and cognisant to the proceedings and dealt with all the
questions with little difficulty.

[211]     She was
then asked about previous medication.

[212]     In May
2009, she obtained several prescriptions and Dr. Luitingh’s note indicated
she had come in for refills for five prescriptions but Ms. Forder could
not recall what they were for.

[213]     They were
noted to be Emtec for pain, Oxycocet for pain and Flexeril a muscle relaxant. Ms. Forder
said Emtec was like Tylenol 3 and not a narcotic. She described it as not
necessary, just for testing situations. Similarly, she described the muscle
relaxants as being “just in case”.

[214]     In May
2010, she purchased Novo-Cycloprine tablets.

[215]     She had
treatments on six occasions for injuries to low-back and mid-back to December
16, 2009, and she was prescribed Naproxen, a muscle relaxant.

[216]     In 2009,
she said she “loaded up on pills” as she believed her husband would cut-off her
access to his medical plan.

[217]     When asked
why she was renewing or topping up prescriptions in May 2009 if the separation
occurred in 2008, she said because she would be cut-off “even though it was in
the separation agreement”.

[218]     She was
then asked about her weight. She agreed her driver’s licence said her weight in
October 2004 was 145.5 lbs, and a new driver’s licence on November 13, 2009
showed her weight at 70 kilos or 154.32 lbs.

[219]     She agreed
she had told the doctors that she put on 30 lbs since the accident. She agreed
she told Dr. Ferri her normal weight pre-accident was 140 lbs, and she
related that weight to her clothes’ size before January 2010. She said she lost
15 lbs before January 2010, and at examination for discovery, she claimed
weight was 140 lbs; now it was 170 lbs.

[220]     When asked
how she could be losing weight when she was being treated for low-back pain,
she said she “just lost it”. It was noted Dr. Underwood weighed her at
167.4 lbs in October 2012.

[221]     She said another
doctor had weighed her at 175 lbs, and her clothing size was 13-14.

[222]     She was
then asked about gardening.

[223]     She moved
to the current house in spring 2011. She said the yard was not good, but the
home was three years old and Mr. Omerod did the yard work.

[224]     Ms. Forder
said both she and Mr. Omerod raised the garden beds. She recalled they met
in 2008 and he moved in with her in December 2008 or January 2009. She believed
they worked together at raising the garden beds in November 2008.

[225]     Reference
was made to a rock garden that she said was done in front of the house with Mr. Omerod’s
assistance and would have been done before going to Mexico in February 2010.
They put in a raised garden bed, a rock garden, and Mr. Omerod put cement
patio into the back yard.

[226]     When asked
if she did any work in the fall 2009 when her back was injured and she was
under treatment, she said she may have planted some plants but otherwise just
helped tidying. Ms. Forder agreed that in fall 2009, WCB was paying for
treating the October 2009 back injury – i.e., when she was hit by a door.

[227]     She was
then asked more about previous injuries, treatment, and medications.

[228]     She agreed
pre-accident she had a number of issues with her health, including thyroid,
hernia and pelvic issues and that ultrasound pictures were taken.

[229]     It was put
to her that she saw her chiropractor Dr. Masse in February 2010 and that
his notes said “constant bad back pain low-back and achiness”; on February 20,
2010, she said she was sore all the time in her neck and low back; and on March
13, 2010, she said she started on Gabapentin; and on March 17, 2010, she said
she was feeling better with the Gabapentin medication.

[230]     Ms. Forder
saw Dr. Luitingh in early February 2010 with complaints of stabbing pain
in her neck, aching in her low-back and that the pain was keeping her awake at
night.

[231]    
On February 16, 2010, the doctor’s note of the subjective complaints
read:

Stabbing in neck and pain when
reaching; constant back pain; Oxycocet is not helping; chiropractor says need
pain management and referral for MRI

[232]     Ms. Forder
agreed Dr. Luitingh prescribed Gabapentin, and Ms. Forder then went
on the holiday trip to Mexico.

[233]     In early
March 2010, she saw Dr. Luitingh for a bronchial infection and refill of
medications.

[234]     Reference
was made to the Pharmanet list regarding a Nasonex nose spray. Ms. Forder
said she had a damaged lung as a baby and eventually had a diagnosis of
bronchiolitis which recurs from time to time. Also treated was a sinus
infection at a walk-in-clinic and more medication was prescribed.

[235]     Ms. Forder
agreed that in February 2010 she was seeing Dr. Luitingh regarding neck
and back problems. At that time, the Oxycocet was not working and she was
prescribed Gabapentin.

[236]     It was
suggested Dr. Luitingh had then referred Ms. Forder for an MRI scan
of the low-back and referred her to Dr. Sadowski (the neurologist) to
check out her left arm problems. Ms. Forder disagreed saying that the
referral to Dr. Sadowski was solely for headaches, but she agreed there
was a conduction study of the left arm, and then she re-phrased and said it was
for a stabbing pain in her shoulder pointing to the junction of her neck and
shoulder.

[237]     She agreed
she complained to Dr. Luitingh about stabbing pain in her left arm when
reaching, and it was the reason she had been put on Gabapentin.

[238]     Counsel
then read from Dr. Sadowski’s patient questionnaire where Ms. Forder
noted she was on three medications, including Gabapentin, and the drawings
referred to symptoms in the elbow, upper arm and neck.

[239]      She had
stated in the questionnaire the symptoms were from March 19, 2010. When asked
if that was accurate, Ms. Forder paused for a lengthy period and then
answered, “Yes but I never had numbness in my arm, my back and my neck before
the accident.”

[240]     She agreed
she told Dr. Sadowski she was on medication for stabbing pain in her
shoulder, not her neck. She said she told Dr. Sadowski she was on the
Gabapentin for a month before the accident on March 19, 2010.

[241]     When it
was suggested her reporting to Dr. Sadowski was not entirely accurate, Ms. Forder
said they talked about everything, including her work injuries.

[242]     She agreed
she did not tell Dr. Sadowski that her chiropractor in February 2010 had
suggested that, given her neck and back complaints, a general practitioner invoke
pain management and get an MRI of her back.

[243]     Ms. Forder
said Dr. Sadowski did no conduction studies of her left arm and right arm.

[244]     She
disagreed that Dr. Luitingh made the referral to Dr. Sadowski in
February 2010, that the attendance was months after the accident, and was for
her persistent headaches.

[245]     She did
not remember if Dr. Luitingh arranged for a scan of her neck in February
2010.

[246]     Ms. Forder
was shown a referral to the Ridge Meadows Hospital for a CT scan dated March 5,
2010. The note read “patient with spondylosis (Degenerative cervical spine) and
severe pain with numbness” and the appointment for April 26, 2010 at 8:00 a.m. Ms. Forder
did not recall the appointment being made before the car accident.

[247]     Ms. Forder
was asked if her left arm and neck complaints that she had before the accident
had now resolved, and she replied the Gabapentin had really helped, but the
symptoms had not resolved; they still come and go and sitting in court did not
help.

[248]     She agreed
Dr. Sadowski had been the first doctor to prescribe antidepressant
medication but not on her first visit to see him.

[249]     She said
she took the Amitriptyline and then Dr. Luitingh changed it to
Nortriptyline for about six weeks. She did not believe she completely used the
prescribed Amitriptyline; perhaps she only took it for two weeks. It was noted
that some 450 pills have been prescribed, and she agreed she did not take them
all nor could she recall how many she took at any one time.

[250]     Another
antidepressant was Cymbalta. She started at 30 mg and then increased to 60 mg.
In total, she took the pills for six months. Then she reduced the dosage.

[251]     Questions
then turned to the car accident on March 19, 2010 and time off around that
period.

[252]     She said
she had been working that day but was not certain about how many days she had
worked that week. She had returned from Mexico and taken some days off without
pay.

[253]     Ms. Forder
agreed she saw a doctor regarding potential hernia surgery on March 16, 2010
and possibly took that day off. The School District records show an application
for vacation from February 19 – March 1, 2010, which would have been the trip
to Mexico, and the last week of February would have been without pay as there
is no paid vacation.

[254]     She agreed
she would not be paid for Spring Break the week of March 7-12, 2010.

[255]     She
believed she worked March 1 – March 5 and March 15-19. When asked if she
possibly took some days off that week, she did not recall. The school record
earnings statement showed, for the two weeks before March 27, three days work
and seven days sick time.

[256]     The school
record until April 10 showed two regular salary days but those were statutory
holidays, Good Friday and Easter Monday, and eight days sick time.

[257]     Ms. Forder
was unable to say what the two days sick time for the week of March 15 – 19 were
for, but one could have been a medical appointment. Ms. Forder accepted
that she had worked the day of the accident but took two days off earlier in
the week.

[258]     Questions
then turned to her pre-accident income.

[259]     She agreed
her respite work is not taxable and that she collected employment insurance in
the summer of each year. She did not tell employment insurance she had respite
work.

[260]     She agreed
she is obliged to take a job in the summer if it is offered, but she was unsure
when she last did work in the summer recalling when she did work at Riverview.

[261]     Reference
was made to Exhibit 13, the Ridge Meadows Association for Community Living
letter regarding respite care. She went through a fitness review in 2009, but
in 2010 she did not continue.

[262]     She agreed
the work she did for Nikki was different from that she had done for Rebecca and
Ramis. She agreed she had lost the Ridge Meadows Respite work.

[263]     She agreed
the letter said that she made $3,400 in the previous year (2009) and added that
she had signed on for two other contracts that were not referenced.

[264]     She agreed
respite income for 2005 was $200; $800 in March 2006; in 2007, $1,000 in March,
$100 in October and $100 in November; in 2008, $500 in March, $200 in April,
$3200 for May to September, and $300 in November.

[265]     In 2009,
the respite work was $300 in February, $300 in June, $100 in September, $100 in
October, $300 in November, and $1600 in December for a total of $2,700.

[266]     When asked
if there was no similar work, Ms. Forder said that she probably worked
with other children who were not funded through Community Living.

[267]     Respite
work earnings in 2010 were $300 in January, $300 in February, and two $700
payments in March.

[268]     When asked
when that work would have been done, Ms. Forder said it was possibly over spring
break. When asked how that funding might occur, she said that Community Living
would have funding to the end of their fiscal year and often provided a lump
sum payment, but the work would not be done right away – i.e., March. She
agreed she would have been away in Mexico on a ten-day holiday for part of the
time.

[269]     She said
she would need to check her records to see what the $1,400 in March 2010
related to.

[270]     A review
was then made of the respite expenses for Nicole that became Exhibit 27, and it
reflects sporadic attendance through March and April 2010 showing 11 days
respite work from March 23 to April 17 and some 33.5 hours with a number of
days showing 3.5 to 5 hours work. She agreed the respite work paid to continue
at the same rate pre and post-accident.

[271]     When asked
if after the accident she ever missed an appointment to pick up a child at
school, she said she did once and was very late and absolutely panicked.

[272]     With
respect to the care for Nikki, she said it involved picking her up at school
but otherwise staying at home with the child. She said after the accident Mr. Omerod
or her mother or even her brother would pick her up. She said the work started
off as she felt a bit better but she had never given up on Nikki or the meat
draw.

[273]     She agreed
that if she told her doctor she was in bed for months that in fact she would
get out of bed to get Nikki, go back to bed and Nikki could watch TV as she was
very passive.

[274]     She agreed
she would get up for her doctor, physiotherapy, Nikki, or the meat draws;
otherwise she was often in bed.

[275]     She was
then asked about her home stay students.

[276]     Income
from the home stay students would not be declared income as the parents would
be making the payments. She agreed her records were not complete and that she
had students for several years, some being paid by the parent, and some being
paid by the churches that began before 2008.

[277]     She was
then asked about her education.

[278]     As to her
education, it was suggested she was not an “honours” student. She said she did
recall being on the honour roll. However, she agreed that telling Dr. Anderson
she got A’s and B’s in Grade 12 would be an overstatement but it was not
purposeful.

[279]     She agreed
the record at Langara College (Exhibit 28) showed B’s and C’s, and that the
other courses she took while at Riverview from Vancouver City College showed
marks in the 80-82 range.

[280]     The more
recent degree work requires 120 credits to her degree, and she has 21 credits
to date.

[281]     She is
doing two courses at a time and withdrew from one recently. She agreed she withdrew
in 2008 and has done little since that date.

[282]     She agreed
her marks at Langara were below average. She rejected the suggestion she did
not apply herself; she said she tried really hard, but she was a slow reader
and it was hard to read all of the material, so she feels better taking one
course at a time and applying herself. She agreed she had always been a slow
reader.

[283]     When it
was suggested she had said at the concussion clinic she was occasionally
forgetful, she responded “at 50 everyone does.”

[284]     In earlier
evidence, she indicated she was taking a course in business communication and
she said she took it in summer 2008.

[285]     She agreed
she needed 120 credits for a bachelor in communications and that at three – four
credits a course she had a long way to go.

[286]     She was
then asked about the accident scene.

[287]     When asked
how she felt at the accident scene, she said “concerned and confused”, but she
did not go to a clinic or hospital that day.

[288]     When it
was suggested that she would go to a walk-in-clinic for infections, she said
she would go for bee stings as she was allergic to them.

[289]     She agreed
she did not feel the need to go to the clinic or the hospital after the car
accident. She agreed she went to a walk-in-clinic the day after the accident
and then three days after the accident to see her family doctor.

[290]     It was
suggested that if she was blind and not able to speak due to headaches she
would go to a hospital. She said that did not occur but she said the headache
incidents passed quite quickly.

[291]     She was
then asked about the concussion clinic.

[292]     She agreed
she was referred to Dr. Sadowski, but she said it was a couple of months
after the accident.

[293]     She agreed
she was referred to a concussion clinic at Fraser Health.

[294]     A review
of Ms. Forder’s attendance at the Fraser Valley Concussion Clinic on May
21, 2010 ensued. She agreed with the notes’ recording – i.e., in the three days
after the accident, she had intermittent nausea; blurred vision; constant
headaches; intermittent dizziness; lack of sleep; pain in her neck and upper
back; short term memory problems; numbness in both hands and on the left side
of her jaw; and pain down her left arm.

[295]     She was
then asked about stressors, counselling, and CBT.

[296]     She
acknowledged referencing the stress of the divorce, e.g., filling in documents
for the court case. Her daughter was living with her father, and she was not
sure when her daughter moved to her father’s house. While she did not remember
expressing concern about the divorce court to the concussion clinic, she did
tell Dr. Ferri about her divorce. She accepted the concussion clinic noted
the stress of the court case.

[297]     A
reference on p. 4 to driving causing increased pain led to her comment
that she would not put the children in the car. With respect to her respite
children, she said she did not put Nikki in the back seat, but she did put
Rebecca in the back seat. She did not recall discussing with Rebecca’s mom
putting Rebecca in the front seat. She could not remember whether she had told
the respite parents she could not drive or that her brother had to drive her to
the respite sessions.

[298]     She agreed
Dr. Luitingh had referred her to Dr. Ferri for CBT; memory and
headache issues; and other problems. When asked if she had other treatments,
she did not know. She agreed the treatments were helpful, but she continued to
have headaches, memory and thinking problems.

[299]     When asked
why she continued to see Dr. Ferri if she was not recovering, Ms. Forder
said it helps her a lot to talk about the issues and other issues that have
occurred, such as sadness, anger and the fact that her whole life changed
overnight. She said it was not good for her to talk to her friends or her
family, and that she knows Dr. Ferri well and continues to trust her. She
agreed she is not paying Dr. Ferri, and that Dr. Ferri will get paid
when she gets paid. When asked if she had considered a less expensive
therapist, she said she would not change when she formed a relationship with
someone.

[300]     She was
then asked about going to all her appointments.

[301]     Ms. Forder
agreed she was offered rehabilitation at KARP. She understood Dr. Ferri
wrote a letter a KARP, but she had not seen it. Nor did she ask Dr. Luitingh
to write a letter to KARP. She said she met with Dr. Luitingh about
attending KARP, and she was willing to go but Dr. Luitingh said she should
not go.

[302]     Dr. Luitingh’s
records of June 25, 2010 stated Ms. Forder attended the doctor to get a
letter for the School Board saying she could work one day a month and the
doctor gave her a letter to that affect.

[303]    
As well, the doctor’s note read:

declined daily home care;
disorganized and trying to sort clothes that are no longer fitting her; still
has pain in neck and head; eating unhealthy things and goes up and goes to bed:
feeling overwhelmed with all of the medical appointments; Dr. Ferri says
not to go to all of the appointments; Tramacet helps with back and neck
problems.

[304]     When asked
if she recalled the discussion with Dr. Luitingh about Dr. Ferri’s
advice about not going to all the appointments, Ms. Forder said she was
going to all of the appointments, but they were not helping her and she really
needed to rest and that she was driving every day to appointments and it was
not helping with her dizziness and headaches. So Dr. Luitingh agreed with Dr. Ferri
about going to too many appointments.

[305]     Reference
was then made to Exhibit 9 where on June 24, 2010, the KARP program was
cancelled – i.e., before the discussion with Dr. Luitingh on June 25th.

[306]    
Reference was then made to Dr. Luitingh’s note of May 14, 2010
where it said:

patient okay with kinesiology,
feels she is doing okay, but overwhelmed of trauma, appointments, starting at Dr. Ferri,
couldn’t remember how to get over Golden Ears bridge.

[307]     Ms. Forder
said the kinesiologist was at the physiotherapist but accepted it was an
inaccurate note.

[308]     A further
note on June 10, 2010 records Ms. Forder saying she was using Oxycocet;
there were good days and bad days; she was tired after all the appointments;
she was having difficulty doing dinner, homework, laundry and her boyfriend was
really helpful; she was starting active rehabilitation and stretching; and the
doctor concluding “sounds a bit more positive.”

[309]     She was
then asked about active rehabilitation.

[310]     When asked
if the concussion clinic had approved her starting rehabilitation, she said no
but she did recall the concussion clinic saying she did not need to come back.

[311]     Ms. Forder
said while Dr. Luitingh had written that note, she did not recall the
discussion. The note reads “also went to concussion clinic and started active
rehabilitation.” Ms. Forder agreed she went to the physiotherapist and
then went to the kinesiologist as they were at the same location.

[312]     When asked
if she told Dr. Luitingh she was ready for kinesiology and later going
back and saying she was not ready, she could not remember that discussion. She
believed going to a kinesiologist was on the recommendation of the
physiotherapist – i.e., to try active rehabilitation.

[313]     She said
she did not change her mind; rather the active rehabilitation did not work. She
tried it, but she would get dizzy and got really bad headaches and was then
sent home. And at the end of June 2010, she stopped the active rehabilitation
therapy.

[314]     Ms. Forder
agreed the physiotherapy records show one to two times per week attendance in
April, May and June for three months. She agreed the massage treatments were on
a similar timetable as were the chiropractors.

[315]     When asked
what exercises she did at physiotherapy she replied: “acupuncture, heat and
massage therapy.” She agreed it was not active therapy.

[316]     In late
2010, an occupational therapist attended Ms. Forder’s home. Ms. Forder
said the first visit went well, but on the second visit, Ms. Forder met
the occupational therapist at the door, and she did not stay.

[317]     Evidently
the intention was to do relaxation techniques in her home, but her family
members were being asked to leave. She said her daughter and her partner were
both working late, and she was not going to ask them to leave the house so that
she might do her relaxation techniques privately. Besides, she was already
doing relaxation techniques with Dr. Ferri. She said the therapist left,
and she was surprised that there was no further contact as she felt they had
other issues to work on.

[318]     The
kinesiology treatments restarted in March of 2011 and continued through March,
April, May and June. The exercises were relatively passive, lying on a bed and
stretching and some stand-up stretching.

[319]     During the
first year of the accident, Ms. Forder also saw an ophthalmologist on two
occasions and once was for “convergence issues with respect to her complaints
of blurred vision.” However, no treatment recommendations were made.

[320]     Ms. Forder
also said with respect to the kinesiology, she recalled trying to get on a bike
and ride for a while but got a headache and then on another occasion trying
again and again getting a headache.

[321]     She agreed
she saw Dr. Masse (chiropractor) in June, August and September of 2012.

[322]     She was
then asked more about CBT.

[323]     Eighteen
months post-accident she saw Dr. Stephen Anderson who recommended CBT. She
did not recall what CBT was or whether it was explained. That in turn led to
referral to Dr. Michael Anderson. She disagreed Dr. Michael Anderson
said to come back if she wanted to because her recollection was she was moving
and therefore she was going back to see Dr. Ferri.

[324]     Dr. Michael
Anderson said in his report that CBT was not helping Ms. Forder and he
would have offered more if it could help, and that supportive counselling would
be better. Ms. Forder agreed Dr. Michael Anderson was not helping
with the CBT.

[325]     She agreed
that she was now able to drive to North Vancouver but only once every six to
eight weeks, and if someone else can drive, she will go and she rarely drives
that far by herself.

[326]     She was
then asked more about the functional capacity evaluator.

[327]     Reference
was made to Exhibit 26, the March 29, 2013 report of Mr. Pakulak, the
functional capacity evaluator. He had questioned Ms. Forder as to the
treatments she was receiving. Ms. Forder gave a comprehensive listing of
her treatments to that stage including physiotherapy and the recent visit to Ms. Keen
for triggering the vestibular symptoms she was complaining of.

[328]     When asked
if she would return to see Dr. Masse in 2012, Ms. Forder said that
she had to try because she would get so much pain.

[329]     A
reference to the “homework” from Dr. Ferri was explained as being breathing
exercises. She saw Dr. Ferri two times per week for two years, but the
breathing exercises did not help with her headaches. On the other hand, she
found her visits to Dr. Ferri very helpful, and nothing helps with the
headaches except her medications.

[330]     At
p. 8 of Mr. Pakulak’s report under the heading of “vocational
history” was a listing of the respite care Ms. Forder was providing at the
time of the accident.

[331]     She listed
off three days per week with Nikki, two days per week with Rebecca and two days
with Ramis with some alternative Sunday work built into that timetable of
approximately 17.5 hours a week. Ms. Forder gave a detailed answer and
said it would be slightly exaggerated.

[332]     With
respect to Dr. Brett’s assessment for intermittent eye divergence, Ms. Forder
agreed Dr. Luitingh sent her to that doctor, and that the diagnosis was
that she was not treatable.

[333]     She was
then asked about driving.

[334]     A
reference to driving anxiety in the reports of Dr. Ferri and Dr. O’Shaughnessy
led to her agreement that she had made some comments about Dr. O’Shaughnessy’s
report to Dr. Ferri.

[335]     With
respect to driving to her daughter’s home in Port Coquitlam, she pointed out that
Port Coquitlam was where her ex-husband lived, and she would not meet her
daughter at ex-husbands’ home; rather she preferred her daughter come to her
house.

[336]     She agreed
that she moved from the country lane to a new address closer to Maple Ridge in
2011. There were many houses that were considered and eventually a decision
made in 2011. She did not agree she did all the packing for the house move but
only the breakable items such as china, and other people were paid to do the
packing.

[337]     She was
then asked again about CBT.

[338]     She did
not recall any discussion with Dr. Stephen Anderson about CBT nor speaking
to Dr. Ferri about taking CBT.

[339]    
She was then asked more about activity.

[340]    
Reference was then made to attendance at Westcoast Kinesiology on March
3, 2011 when she completed a rehabilitation assessment, which read under
pre-accident exercises:

running 5-10 k. three to four
times a week; 60 minutes aerobics three times a week; gym weights two days a
week; daily hobbies including gardening two hours x two days a week; crafts two
hours x two days a week and her work requiring standing, squatting and lifting.
Currently able to walk three x 30 minutes’ walk a week and her goals were to
return to work in September, being able to clean the house and be physically
fit. The limits on activity were sitting 30 minutes and unable to comment
standing or needing a break times.

[341]     In further
discussion, she said the amount of walking would be limited if she did not have
a partner, and her pre-accident exercise routine described alternatives rather
than being seven days a week of exercise.

[342]     She agreed
Botox therapy had been recommended, and she was not reluctant to do it but the
cost was prohibitive. She had already seen Dr. Chu and had not proceeded
with the treatment due to the cost.

[343]     She was
then asked about depression.

[344]     Ms. Forder
agreed she was diagnosed with depression, but she did not agree with the
diagnosis. She said that it was true that diagnosis came from Dr. Ferri
and Dr. Anderson, and she was using Cymbalta, but she felt depression was
no longer relevant and that the yoga was helping her too.

[345]     When asked
why it was not relevant, she said she was not depressed anymore; she had been
through sadness and depression and tried everything. Ms. Forder agreed
that she did not like the antidepressant side effects, and she had changed from
Amitriptyline to Nortriptyline and had not sought any other medication.

[346]     She agreed
Dr. Sadowski was the first to suggest antidepressants.

[347]     Reference
was made to a diary she kept for a time after the accident where on April 7,
2010 it was noted she had taken Rebecca to horse-back riding. She disagreed it
was respite; rather Rebecca’s mother telephoned saying Rebecca wanted to go to
horse-riding and could she help. Ms. Forder said she advised she could not
get Rebecca in and out of the car, so the mother put her in and the stable
volunteers took her out and put her on the horse and visa-versa.

[348]     Her
empathy for children showed as she spoke about her children and the things that
they can enjoy.

[349]     A diary
note of April 17, 2010 spoke of how she was missing respite each month namely
Nikki, 20 hours, Rebecca 18 hours and Ramis 18 hours. She agreed Dr. Ferri
had soon after told her to focus on when she was working rather than when was
not working and not to continue writing the diary.

[350]     She agreed
the note of April 18, 2010 stated she was only doing respite work with Nikki
and Rebecca as being “inactive children”. She disagreed she worked with Rebecca
after the accident save the one occasion to go riding.

[351]     With
respect to the special damages, she said that the backyard water repair   work was
work that she could have done. With respect to the tree falling, she said the
tree was dead and had to be removed, and she had helped moving some of the
small branches particularly from the neighbour’s property and putting them on
the truck.

Re-examination of Ms. Forder August 21, 2013

[352]     Ms. Forder
said the letter to work for one day after the accident in June 2010 allowed her
to obtain benefits for June, July and August. She worked the last day of school
with no special needs children and the other children were writing exams. The
support teacher arranged for her to support one student during the day, a
learning disabled student writing exams, but she said it was still a difficult
day for her.

[353]     With
respect to the contracts for Ramis and Rebecca with Community Living, the
contracts ran for one year from September 2009 to September 2010 and November
2009 to November 2010.

Della Romans

[354]     Ms. Romans
is the plaintiff’s mother.

[355]     In 2007
she retired from her job and moved back to the Pitt Meadows area, some 10
minutes away from her daughter. She was in regular contact with Ms. Forder.

[356]     She said
her daughter was very much the organizer of family birthdays, Christmas, and
other celebrations and regular events where Ms. Forder would be the hostess
and prepare most of the food. She was aware of her daughter’s work place
injuries, but they had not stopped her from housework, gardening, or
scrapbooking. Indeed, she noted her daughter had made three big albums for
their wedding anniversary.

[357]     She noted
how her daughter had moved to a new house in 2009, and redecorated and
landscaped most of the premises.

[358]     Her
observations of her daughter post-accident were that she spent much of the
months following the accident in March 2010 sleeping and appeared to be in a
lot of pain, particularly with her back, and complained of severe headaches.

[359]     She
observed changes in her daughter’s personality; she had a loss of her ability
to organize, was short tempered, and was difficult to converse with as she did
not appear to grasp the topic.

[360]     As well
her daughter seemed to be short of energy and only able to garden for 10 or 15
minutes.

[361]     The energy
Ms. Forder previously put into family celebrations was no longer evident,
even to the extent of forgetting her father’s birthday in 2013 and her parents
wedding anniversary in April 2013. She noted Ms. Forder had difficulty
playing with their grandchildren after some 15 minutes of play.

[362]     In
cross-examination, she agreed that Ms. Forder still does some special
children care work particularly for a former and ongoing client, Nikki, but it
is not as much as previously. She often assists her daughter as she believes
her daughter is less able to care for the child.

[363]     She agreed
her daughter had various “women’s issues”, but she did not perceive any
reduction in her daughter’s activities pre-accident. She agreed her daughter
complained of sinus congestion and had allergies all her life, but she had not
been aware of any headache complaints pre-accident.

Brian Omerod

[364]     Mr. Omerod
creates corporate displays for trade shows and stores.

[365]     He is Ms. Forder’s
partner now. They met some five years ago when camping at Cultus Lake for the
weekends. Their relationship grew in 2009 and eventually he moved into her
house in November 2009.

[366]     He
described Ms. Forder as being bubbly, active, positive, and a happy person;
she was involved in a lot of things with high energy.

[367]     Socially,
she led the way with potlucks and volunteering at Lions Clubs events.

[368]     She was
also very busy with her family’s birthdays, anniversaries, and dinners. She
would prepare a variety of foods, and the rest of the family would help with
the cleanup.

[369]     He
described her as an immaculate housecleaner with everything in place and very
clean. Pre-accident, he might have done 10% of it.

[370]     He knew
she was a special education assistant and provided respite work after school.
He noted the respite children had different levels of capability, and she
interacted with them in all their various needs. As well, she took on foreign
students from Mexico and Japan from time to time.

[371]     They both
enjoyed gardening, and he did “the hard stuff”, but otherwise she did most of
the gardening. Sometimes they would work the whole day in the summer. He built
her a greenhouse in which she grew plants from seed.

[372]     The
gardening led to lots of canning, including beets and berries.

[373]     He
described her as very active – e.g., walking, using the treadmill, weight
training and going in the Sun Run.

[374]     As well,
they liked to go out dancing to various bands.

[375]     When camping
on the weekends, she would be the one setting up the camp and creating camp
fires at night time.

[376]     She also
took courses, including advanced sign language.

[377]     He said
she loved her crafts, making her own Christmas gifts, creating scrap books for
the family and working with stained glass.

[378]     With
respect to the Lions Club, the club raised money for charities for underprivileged
children. She helped run a meat draw with meat bought from Costco, and it was a
source of substantial fundraising.

[379]     He did not
recall her complaining of pre-accident health matters, but he did recall taking
her to the chiropractor.

[380]     On the day
of the accident, he received a telephone call from her and was soon at the
scene.

[381]     Ms. Forder
was still seated in her car and a man was talking to her. She was evidently
trying to phone Mr. Omerod, and she did not seem to understand that he was
right there beside her and was speaking to her.

[382]     He
described the damage to the car as creating an accordion of the back end into
the front seat, and the car was not operable.

[383]     He said he
spoke to the defendant who said to him he was looking at his phone and looked
up and there she was.

[384]     A
tow-truck came and hooked her car up and took it away.

[385]     Ms. Forder
said she could go to the meat draw that night, and they went. But not long
after she said she was not well she stiffened up and complained of headaches.

[386]     That
night, he said she lay down, but she was very restless all night and woke him frequently
complaining of pain, and the next morning he took her to the doctor.

[387]     Subsequently,
she has had headaches practically on a daily basis, and she seemed to have a
lot of memory issues.

[388]     With
respect to medications, he thought she changed them frequently, and that fact led
to them buying a medical pill box and a day timer to ensure she took the
correct pills.

[389]     He
perceives her memory as not good, and he said he would telephone her and talk
about what they were having for dinner, and by the time he got home, she would
have forgotten. That fact has led to sticky notes being plastered all over the
house.

[390]     She has
ongoing aches and pains doing any work, and she also complains of dizziness.

[391]     More
recently, however, she has been doing yoga, and he believes that the
therapeutic yoga is helping her and relaxing her.

[392]     At night
time, Ms. Forder does not seem to be able to get comfortable.

[393]     She cannot
lift things. She has a five month old grandson, and Ms. Forder can take
care of him for about 15 minutes, and then she complains of her back being
painful.

[394]     Emotionally,
he feels she has found it very difficult post-accident and has seen her wake up
crying. He would come home from work, and she would say she has been having
headaches and was crying or disoriented.

[395]     The bubbly
personality has been replaced by a person frustrated that she cannot do things
as she did.

[396]     She has a
very low energy level, and if she has to go to doctor’s appointment, she will complain
of headaches in the afternoon and go to bed.

[397]     She no longer
prepares evening meals. Often he will wake her and take her out or he will
cook.

[398]     Mr. Omerod
recalled the 2011 turkey dinner she prepared. Halfway through the dinner, she
got up, left the family gathering and went to bed.

[399]     Camping
has fallen off, and they have not kept the campsite (a cost of $3,000 per
summer).

[400]     Ms. Forder
has not worked since the accident save for some respite care to her favourite handicapped
child, Nikki. The other children are too demanding, and she is not able to
handle them. But Nikki is a non-verbal and high functioning child. She has not
taken foreign students.

[401]     Recently, he
took her to a blues concert, and they had two dances; it was the first time in
several years they danced.

[402]     Mr. Forder
is no longer training, running or walking as she complains she is too exhausted
and has headaches.

[403]     She does
very little in the garden, but he has created garden boxes and raised them so
that she can get a stool and work from there. Nonetheless, he says she only
lasts 15 to 30 minutes, and she will tell him what to do.

[404]     He does
the housework, and if he is available, he will do the driving because he says
she is extremely nervous, “a white knuckle driver”.

[405]     Holidays
have been affected, and he illustrated that fact with a five and half hour
flight to Mexico that resulted in her staying in bed the week of the holiday.
He also mentioned the subsequent trip to the Caribbean. They did the traveling
in stages. First they went to Seattle, then to Denver, and then to Florida. In
other words, they did the travel over two or three days, and the trip was far
more relaxed.

[406]     He says
their physical relations have fallen off with the complaints of headaches and a
sore back although that is now some 25% better. He does not discern much
improvement in her memory function, but the headaches and back aches have
improved although they are still occurring.

[407]     In
cross-examination, he said he was not aware of any time being taken off of work
due to headaches.

[408]     He agreed
he moved into her house on November 29, 2009.

[409]     He was not
aware Ms. Forder was injured on the job in October 2009 and was having
treatment and complained to her doctor of pain in her neck and shoulder in
January 2010. Nor was he aware of complains of shooting pain in her neck or
that she was on the drug Gabapentin.

[410]     With
respect to the advanced sign language, he believes she was taking it before
summer 2009. Counsel put to him that she withdrew from the course in 2008, and
he said he thought it was 2009. He was not aware if she completed the course.

[411]     He did not
recall Ms. Forder complaining of sleep difficulties in 2008 and asking for
a doctor’s letter so she might withdraw from her course.

[412]     He said
they did go camping every weekend when they could.

[413]     He
recalled when they first met she was moving to a new house, and he did not know
her marital situation. He helped with the garden. They moved to another house
in spring 2011, and they still live in Maple Ridge and he has put the garden in
at that house.

[414]     With
respect to the accident, he confirmed she telephoned him and he was “around the
corner”. He said she was on her way to a Lions Club fundraiser at the time of
the accident. They both continue to do Lions Club work.

[415]     She
continues to care for Nikki. He described it as glorified babysitting on a
lesser scale then pre-accident. It is usually two times a week, and often, he
has helped with picking up the child. And he will on occasion say no to caring
for Nikki if he perceives it is going to be too much for Ms. Forder.

[416]     They took
foreign students until April 2010, and then he put a stop to it as Ms. Forder
could not handle the lunches, preparation, and travel. And he could not do it
all.

[417]     He has
talked to the doctors on occasion when Ms. Forder has been attending for
assessments. He read Dr. Wild’s June 2011 report. He did not recall Mr. Forder
attending a doctor for “women’s problems”. He said she was still running on the
treadmill after November 2009. He agreed fall 2009 was possible. When asked if Ms. Forder
would be saying no exercise in November 2009, he said he could not remember.

Andie Forder

[418]     She
described her mother as an organizer and planner. Her mom was always taking
them to art school, soccer, i.e., mom was the taxi service.

[419]     She lived
with her father from August 2009 to June 2010 and then moved out again in
February 2013.

[420]     She said
she now sees her mother two to three times a week and speaks to her daily on
the phone as she now lives in Port Moody.

[421]     She
recalled great pre-accident family dinners every three to four weeks and
regular dinners on a daily basis.

[422]     When her
mother visited, she did everything and there were no issues, e.g., with the
house cleaning.

[423]     She noted
her mother would camp at least three or four times in the summer, and the
weekends would be spent at Cultus Lake.

[424]     Her mother
had a camper before she graduated in 2010, and she recalled her mother would
set it all up, cook, clean, get firewood, set the fire, and she had no
difficulties with all these tasks.

[425]     Cultus
Lake was no different from home with a fence to keep the dogs, home cooking, and
eating at the table. There was a wide spread of activities, including a
horseshoe pit, swimming, and boating.

[426]     She recalled
her mother having a back injury but not being off work for a long period, nor
did she consider it to be an ongoing issue.

[427]     Pre-accident
hobbies included scrap booking, painting, gardening, cooking turkey pies.

[428]     In the
matrimonial home her mother maintained a big garden, and after the separation,
she put in a new garden and was able to work all day without limitation.

[429]     She said
she had a good relationship with her mother before the accident.

[430]     She noted
her mother provides special needs children with care, and she is very patient.
That care is something she said she could not do, but her mother really liked
it.

[431]     She heard
about the accident from her mother who telephoned her, and she saw her mother
within the month. She was complaining that her back and neck hurt.

[432]     She believes
her mother is making progress and can drive further and her mood is better.

[433]     She recalled
her mother previously used to arrive at her place crying.

[434]     In terms
of energy, her mother sleeps during the day now and rests all the time. She is “hardly
like” her previous activities, and she will retire to bed between 7:00 and 9:00
p.m. and be up at 8:00 a.m.

[435]     In terms
of gardening, she only sees her mother working 10 to 15 minutes at a time.

[436]     When her
mother visits her house, she goes to bed early, and she even leaves friends’
houses at 8:00 p.m.

[437]     She
believes her mother’s memory is not good, and her mother was very frustrated at
her changes. She writes down what her mother tells her and she looks at it all
the time. She said her mother is very good with the five month old grandson,
Blake, but she can only lift and carry him for five to ten minutes at a time.

[438]     In
cross-examination, she did not recall her mother being injured at work. Nor did
she recall her being off for more than a short period of time, a day or so. She
had no recollection of her mother being off for a couple weeks in September
2007.

[439]     She agreed
the new house has a big garden.

[440]     She said
she lived with her father until she finished Grade 12, and after graduating,
she returned to her mother’s house in 2010.

[441]     She said
her mother visits her in Port Coquitlam, and it is a 15 or 20 minute drive.

[442]     She does
use her mother to babysit but only for short times.

Dr. Luitingh

[443]     Dr. Luitingh
is Ms. Forder’s family doctor. She had been treating Ms. Forder for
several years before the motor vehicle accident.

[444]     She
provided a report dated July 16, 2013. The report gave little pre-accident
history or assessment of Ms. Forder’s health, nor does it mention any
contact with her patient after January 2013. The report noted Ms. Forder
had a previous WCB injury for which she was using Gabapentin and was improving
fairly well from that injury (being back at work), but the car accident
re-injured and re-activated some of her pains. Dr. Luitingh’s report noted
the onset of pain, dizziness, nausea and driver anxiety. The pain was in the
back of her head, her neck, her chest, mid and lower back, and she had pain
radiating into the left arm.

[445]     Dr. Luitingh
felt Ms. Forder had a possible concussion, and in April she referred Ms. Forder
to the early intervention concussion clinic.

[446]     Pre-accident
she had also been considering referring Ms. Forder to Dr. Sadowski to
manage a migraine issue, and she thought the accident-related concussion that Dr. Luitingh
felt could be due to a number of factors, but she was recording cognitive
difficulties as well as emotional issues. However the referral was not made to Dr. Sadowski
until April 2010.

[447]     Dr. Luitingh
noted Ms. Forder had started doing physiotherapy and massage therapy, and
in May, she approved her starting kinesiology. However, in her view, the
patient was becoming overwhelmed with the trauma of the accident and cognitive
decline, and she also made a referral to Dr. Jean Ferri, a psychologist.

[448]     Dr. Luitingh
felt Ms. Forder could not return to work.

[449]     CT scans
of the brain, thoracic and cervical spine proved negative.

[450]     Ms. Forder
reported the therapy with Dr. Ferri was helpful, but exercising was giving
her headaches and making her feel very tired.

[451]     Topamax
was prescribed to help manage Ms. Forder’s migraine headaches, but she had
little improvement through the end of 2010. It was noted Dr. Sadowski then
recommended Amitriptyline for the headaches, but Ms. Forder was not able
to tolerate it.

[452]     In 2011, Dr. Luitingh
noted physical activity was still causing visual disturbances and migraine
headaches and nausea.

[453]     In
mid-2011, Dr. Luitingh recommended Ms. Forder increase the Topamax to
try to counteract the headaches, and she saw some improvement, but physical
activity still brought on headaches and as well physical activity caused
dizziness when she tried a fitness class. She reported other cognitive difficulties
and indicated it would be difficult for her to go back to teach or assist
special children.

[454]     In October
2011, Ms. Forder reported more episodes of dizziness when looking down in
her garden or in her shower – i.e., a form of positional dizziness and also
reported having difficulties with basic mathematics.

[455]     In
December 2011, Ms. Forder noted she felt very weird going to see Dr. Anderson,
a psychiatrist; she had a huge headache when at his office, and she said it
took a week to write-up answers to questions she was asked to respond to.

[456]     Dr. Luitingh
noted Ms. Forder seeing Dr. Robinson (at the request of Ms. Forder’s
solicitors) and Dr. Robinson reporting a diagnosis of chronic
post-traumatic headache related to neck injury that he said is a common symptom
following soft-tissue injury to the neck in his report of February 16, 2012.

[457]     In 2012, Dr. Luitingh
noted Ms. Forder seeing Dr. Sadowski, who supported using Cymbalta
for pain and the ongoing use of Topamax.

[458]     In
February 2012, Ms. Forder reported dizziness while on the ferry.

[459]     In March
2012, Ms. Forder said she wanted to go back to try some kinesiology due to
a loss of fitness and her neck hurting. Dr. Sadowski’s recommendation of
Cymbalta as antidepressant was taken up and started. Some ongoing side effects
– dizziness and “black vision” – were reported in April as well as fogginess
with headaches that might last up to a week.

[460]     In July, Ms. Forder
reported that physiotherapy and Cymbalta were helping her headaches and some of
her dizziness. She was able to do some 15 minutes of gardening before feeling
dizzy.

[461]     Dr. Masse,
her chiropractor, suggested a pain patch, and they decided to start her on a Butrans
pain patch.

[462]     In October
2012, Ms. Forder reported some ongoing mental difficulties. It was noted Ms. Forder
was still taking 200 mg of Topamax at night plus Gabapentin and the Butrans
patch, but she had discontinued the Cymbalta. She felt the headaches were
getting better, but her back was not improving, so she had used some Percocets.
An EEG and a CT angiogram ruled out any other pathology.

[463]     In sum, Dr. Luitingh
said there was confirmation of vestibular migraines and the dizziness was
related to the migraines.

[464]     While she
had recommended active rehabilitation therapy, she had not recommended that Ms. Forder
attend KARP rehab because physical activity seemed to aggravate the
post-concussion syndrome and migraines.

[465]     Dr. Luitingh
did not feel the Topamax was affecting Ms. Forder’s cognitive abilities,
and it helped with the migraines that have “definitely decreased” and the
dizziness has also improved, but it has not gone completely. As well, the pain
level had decreased, and Ms. Forder’s concentration was better. Dr. Luitingh
felt the Butrans pain patch had helped with the neck and back pain and
headaches, so Ms. Forder had been able to start yoga, and her general
level of pain in functioning had improved. As a result, Ms. Forder’s mood
improved.

[466]     She did
not consider Ms. Forder depressed. The mood issues over the past few years
were caused by chronic pain. Her general well-being was affected by the
motor-vehicle accident together with the concussion-syndrome and “vestibular
migraine”.

[467]     Dr. Luitingh
attended the trial on August 26 and 27, 2013.

[468]     In direct
exam, Dr. Luitingh was taken to her patient’s notes that noted using
Gabapentin pre-accident in March 2010. She agreed Ms. Forder had a
previous problem with neck pain, and the chiropractor had ordered x-rays for Ms. Forder’s
neck pain that was keeping her awake at night and causing difficulties when
reaching for objects. She agreed the x-rays showed spondylosis and degeneration
at the C4-C7 areas.

[469]     Dr. Luitingh
agreed she increased the Gabapentin dosage after the car accident.

[470]     Dr. Luitingh
agreed Ms. Forder looked confused in the office and was distressed about
her memory not functioning or being able to concentrate.

[471]     She agreed
that in April 2010 Ms. Forder was referred to a concussion clinic to Dr. Sadowski,
in May 2010 for kinesiology, and then to Dr. Ferri for the emotional,
cognitive and possible mild brain injury symptomology.

[472]     Dr. Luitingh
agreed Topamax can make people feel tired, but generally they adjust, and the
fatigue goes away.

[473]     Dr. Luitingh
agreed Ms. Forder re-tried the Topamax in mid 2011, and it improved the headache
complaints, but they could still be activated with physical activity.

[474]     She agreed
the antidepressant Cymbalta was begun in March 2012 and taken through the
remainder of 2012, but the dosage caused some difficulty with the patient when
it was increased to 60 mg, so it was reduced to 35 mg. She agreed the
therapeutic dose for depression would have been 60 mg.

[475]     She agreed
using the Butrans patch in 2012 together with Oxycocet seemed to help the pain
and worked for the patient.

Cross-examination of Dr. Luitingh

[476]     Dr. Luitingh
agreed the medications prescribed pre-accident were Oxycocet for pain, a
narcotic analgesic; Emtec, the Codeine narcotic analgesic for moderate pain;
Flexeril, a muscle relaxant; Naproxen, an anti-inflammatory; and Gabapentin, for
pain and neurological pain.

[477]     Dr. Luitingh
agreed that the references to Botox in Dr. Robinson’s report seemed chronologically
wrong in time given that the patient saw Dr. Robinson in January 2012.

[478]     Dr. Luitingh
agreed that some of the cognitive complaints could be caused by the pain Ms. Forder
felt, and in turn, emotional distress arises and the ability to cope with pain
and the pain management decreases. And the sleep disturbance could be a factor
as well in the overall picture, and a cognitive decline could follow from
depression and mood disturbance.

[479]     Dr. Luitingh
was asked to review some of the historical matters she had dealt with Ms. Forder
before to the accident.

[480]     Dr. Luitingh
was asked about a student injuring Ms. Forder’s left arm, neck and
shoulder in September 2006. That injury caused pain; numbness in the left arm;
and pain in the neck and shoulders that eventually resulted in Ms. Forder
being off work from January 24 to April 2, 2007. She noted that Ms. Forder
had numbness in the hands, daily muscle spasms, and headaches that had
gradually decreased. On February 23, 2007, an x-ray was taken of the cervical
and thoracic spine that showed some degenerative disc disease at C4-6 and C5-7.
On March 30, 2007, a reference was noted for a graduated return to work program,
and by April 13, there was reference to Ms. Forder returning to work but she
still had continual aches. She returned to work full-time on April 16.

[481]     In
mid-June 2007, there is reference to left foot pain for training in a
half-marathon.

[482]     In late
2007, complaints of chronic pain led to a referral in April 2008 to a
rheumatologist, but after blood tests were taken, there was nothing specific
reported in terms of the cause of the chronic back problem as referred by Dr. Luitingh
– i.e., chronic neck and back pain.

[483]     In September
2008, problems were noted of insomnia and needing to drop out of Douglas
College, and Nortriptyline was prescribed as an antidepressant. Her doctor’s
note records discussing divorce, selling the house and consequent emotional
difficulties.

[484]     On March
10, 2009, there is a note regarding osteoarthritis complaints and an
anti-inflammatory, Naproxen, was prescribed for knee injury.

[485]     In May 2009,
Dr. Luitingh provided a number of refills for Emtec, Flexeril and Oxycocet
given the prior history of her neck and back pain.

[486]     Dr. Luitingh
was not aware of a WCB back injury until she saw Ms. Forder in February
2010. She believed various reports might have been scanned and put on the file
as she did not meet with Ms. Forder on October 26, 2009.

[487]     As well,
there is a letter to the file from the chiropractor, Dr. Masse, from November
3, 2009 noting he is treating Ms. Forder for lumbar, hip and thoracic
spine pain.

[488]     Dr. Luitingh
agreed that Ms. Forder came in on February 16, 2010, and she prescribed
Gabapentin for a stabbing pain in the neck with pain going down to the low back
and loss of sleep and thus arranged an MRI. Ms. Forder said the Oxycocet
was not working and a stronger dose of Gabapentin was prescribed. As well, an
x-ray was sought for the cervical and lumbar spine, and then on March 14, 2010,
a CT scan was arranged because of the x-ray showing degeneration at C4,5,6 as
the CT was to better define the amount of degeneration.

[489]     Post-accident
notes included a reference to Ms. Forder doing respite with “two kids”,
and while she was aware of Nikki, she was not aware of any other child Ms. Forder
was providing respite.

[490]     With
respect to the June 10, 2010 note that Ms. Forder was not ready for KARP
rehabilitation, Dr. Luitingh said that note occurred due to her confusion.
Maple Ridge Physiotherapy was asking if Ms. Forder could do more in terms
of activity, and she had asked KARP to begin with flexibility training rather
than strength training. Maple Ridge Physio suggested more activity as well as
KARP suggesting more active therapy. Ms. Forder did not know who KARP was
when they called, and she was not ready for active rehabilitation, and that
reason is why KARP was declined.

[491]     To further
clarify, Dr. Luitingh noted on June 1, 2010 that Ms. Forder said she
had gone to the Maple Ridge Concussion Clinic and started active rehabilitation,
and then on June 10, KARP called her to come and start active rehabilitation.
Therefore, Dr. Luitingh faxed KARP (believing Ms. Forder was doing
rehabilitation at the concussion clinic) saying “not now”.

[492]     She agreed
she provided Ms. Forder a note for the school board saying she could work
one day per month so she could obtain her benefits, but it was obvious she
could not work in the usual capacity.

[493]     Her view
on Ms. Forder declining the use of We Care for home cleaning and cooking
was that Ms. Forder was overwhelmed, that her family was helping with the
cooking and cleaning, and that Ms. Forder was so disorganized she did not
want any help in her house.

[494]     Dr. Luitingh
said she does expect further improvement in Ms. Forder’s medical conditions.

[495]     She agreed
the spondylosis or the degenerative disc disease in Ms. Forder’s neck
pre-existed the motor-vehicle accident.

[496]     She agreed
there was no observed muscle spasm to be found in her notes, but if there were,
she had not documented them.

Dr. Ferri

[497]     Dr. Ferri
is a registered psychologist. She has provided regular psychological counselling
to Ms. Forder since May 2010, with the exception of December 2010, when
she was out of the country.

[498]     Dr. Ferri
utilizes a form of therapy called “self-regulation therapy” to assist Ms. Forder.

[499]     In her
letter to counsel dated April 25, 2011 (Exhibit 18), Dr. Ferri diagnosed Ms. Forder
as having post-traumatic stress syndrome, cognitive disorder not otherwise
specified (post-concussion disorder), and chronic pain.

[500]     She said
that Ms. Forder had made significant progress in therapy since June 2010,
including reducing the severity or frequency of intrusive imagery or flash
backs; extreme sensitivity to light and sound; exaggerated emotional startle
responses; nightmare and night terrors; depression; feelings of detachment,
alienation, or isolation; mental blankness; feelings of helplessness; and
freezing or inability to respond to danger. And her ability to engage in social
events and her ability to formulate plans was increased.

[501]     She noted Ms. Forder
continued to experience high levels of anxiety while driving, was overly
cautious while driving, and is an overly anxious passenger.

[502]     The letter
was written in response to the insurer withdrawing medical and housekeeping
benefits, which stressed Ms. Forder and caused a number of her symptoms to
re-emerge. The purpose of the report was to try and reinstate the insurer’s
assistance.

[503]     Ms. Forder
continued to see Dr. Ferri until February 2012 and then resumed treatments
in February 2013. She was asked by counsel to respond to Dr. O’Shaughnessy’s
letter of 22 April 2013.  Dr. Ferri responded with a 75 page defence of
her treatment of Ms. Forder including descriptions of the self-regulation
therapy technique she employed. Ms. Forder did not claim to have improved
as much as Dr. Ferri notes in her patient reports, but I am satisfied
there was a good rapport between Ms. Forder and Dr. Ferri and with
time there has been improvement in her health. Counsel did not call Dr
O’Shaughnessy nor was much made of the battle between the experts, and I need
not say more.

Dr. O’Shaughnessy

[504]     Dr. O’Shaughnessy
saw Ms. Forder on March 19, 2013, and his report is dated April 22, 2013.
He is a senior psychiatrist of some standing in his field.

[505]     He
concluded after a thorough interview that Ms. Forder had developed
significant chronic pain; had sustained depression that had evolved, including
daily depression; had lost interest in activities; irritability; frustration
with her pain and other functioning; and significant sleep disturbances due to
headaches and pain.

[506]     He was not
satisfied that Ms. Forder had sustained a concussion. He noted, according
to the concussion clinic, that the symptoms were more likely due to a
combination of pain, mood changes, sleep disturbances, and medications.

[507]     He did not
have Dr. Wild’s assessments, but he noted that while Ms. Forder had told
Dr. Sadowski that there was some evidence of cognitive impairment, Ms. Forder
told him that Dr. Wild had assured her there was no evidence of any brain
injury.

[508]     Dr. O’Shaughnessy
doubted the psychological testing would show anything other than mild
concentration or short term memory deficits, as might be expected from someone
having complaints of pain, sleep disturbances, mood disturbance, and
depression.

[509]     He did
conclude Ms. Forder had a major depressive disorder in partial remission
and a pain disorder. The mood disorder was evident through sustained periods of
depressed mood and physiological symptoms like loss of appetite; change in
weight; sleep disturbance; loss of interest in motivation and social activities;
and a loss of capacity to experience pleasure and joy. He said these symptoms
crossed over “enormously with pain” such that chronic pain can virtually
reproduce all the same symptoms; therefore it is a challenge to determine which
complains are predominate.

[510]     He noted Ms. Forder
perceived all the difficulties to be secondary to pain but he felt there was
evidence of depression.

[511]     Dr. O’Shaughnessy
noted the pain disorder is a somatoform illness in which psychological factors
are deemed to play a role in onset, perpetuation, and severity of the patient’s
complaints of pain.

[512]     He agreed
she sustained a work place injury. And cervicogenic headaches and emotional
factors have played a significant role – e.g, the increased complaints she had
when her insurer’s funding was cut off.

[513]     He noted
her various disabilities were causing a total loss of enjoyment of activities,
difficulties of financial stresses, and her perception of less support from her
family than she might expect.

[514]     He was
greatly concerned about Dr. Ferri’s recommendations that Ms. Forder
not participate in an active rehabilitation program or participate in the CBT
that Dr. Anderson had recommended.

[515]     He
criticised Dr. Ferri’s usage of self-regulation therapy as being based on
unproven theories and opined there was no basis for a post-traumatic stress
syndrome diagnosis.

[516]     I will
take this moment to address the cervicogenic headaches, the active
rehabilitation, and the CBT.

[517]     For my
purposes, I note that Dr. Robinson, in light of his finding of
cervicogenic headaches, agreed that active rehabilitation must be approached
very cautiously.

[518]     As well, a
10 session CBT program was attempted in spring 2012 on Dr. S. Anderson’s
advice, and Dr. M. Anderson moderated those sessions.

[519]     Unfortunately
after hearing his evidence, I can only say the sessions seemed to be a rather
undisciplined, unrecorded, and unhelpful group of sessions in which the patient
did not want or follow instructions. Thus, while the psychological and
psychiatrist reports are at odds, I do find some merit in both. Dr. Ferri
did provide solace and support for Ms. Forder. Ms. Forder is “a sensitive
soul”, and to that extent the therapy appears, at least in Ms. Forder’s eyes,
to be helpful. Dr. S. Anderson also endorsed the value of a good
relationship with patient and counsellor.

[520]     However, Dr. O’Shaughnessy
is correct in that there is little evidence of PTSD.

[521]     In terms
of measureable treatment, I note Dr. Ferri’s methods can only be measured
by the patient and to that extent may be helpful. However, it is difficult to
say that Dr. Ferri has: (1) reduced the headaches that seem to be ascribed
to the eventual finding of the right mix of medications under the other doctor’s
care; (2) in terms of soft tissue pain reduction, it would seem to follow the
natural course of time though prolonged by the various emotional and psychological
factors besetting Ms. Forder; (3) chronic pain – i.e., the feeling of
on-going soft tissue injury pain – is only explicable by psychological factors sometimes
put forward as a re-wiring of the nervous pain system, and all the observers
agree it could be found in Ms. Forder due to her depression, anxiety,
grief, sadness, and frustration. And those factors result in less activity by Ms. Forder
that leads to deconditioning and weight gain. In sum, a perpetual
self-defeating cycle arises that is being met slowly by the various medical
personnel.

[522]     I decline
to enter the debate between the specialists. The issue for me is assessing the appropriate
compensation premised on findings about Ms. Forder’s pre-accident health,
and the nature and extent of her injuries from the car accident.

Dr. S. Anderson

[523]     Dr. S.
Anderson is a psychiatrist.

[524]     His report
is dated November 8, 2011, and he saw Ms. Forder on October 31, 2011.

[525]     Dr. Anderson
opined as that Ms. Forder was then suffering chronic headache pain; had
developed a chronic disorder with both psychological factors (anxiety and
depression) and a general medical condition; ongoing cognitive difficulties
related to mild brain injury; and deterioration of mood resulting in chronic
major depressive disorder of moderate severity.

[526]     Dr. Anderson
recommended that in addition to the psychological treatment received from Dr. Ferri,
she be referred to a psychologist who has experience treating patients with
chronic pain and cognitive impairment and that she have 30 sessions of
cognitive behavioural therapy before reassessment.

[527]     Dr. Anderson
expressed a concern that the Topamax may be affecting Ms. Forder’s
cognitive functioning.

[528]     He also
wanted other consultations, namely, a neurologist such as Dr. Robinson to
opine on headache pain; a psychiatrist to opine on treatment recommendations
for the chronic neck and back pain; an occupational therapist to determine
whether ergonomic interventions and housekeeping assistance are necessary;
enrollment in a supervised exercised program at the direction of a
kinesiologist or experienced personal trainer; and a referral to a multidisciplinary
pain clinic. As well, after the other recommendations are in place, a
vocational assessment was needed to provide vocational assistance.

[529]     At trial, Dr. Anderson
agreed he assessed Ms. Forder one and a half years post-accident. He noted
treating the depression was possible, but the difficulty was Ms. Forder’s
ongoing chronic pain and anxiety. He agreed he did not find post-traumatic
stress disorder, and the main concern was the ongoing chronic pain, and her not
taking any antidepressant medications.

[530]     Dr. Anderson
agreed CBT was to assist in clarifying the distorted thinking such as being
stuck in traffic and equating that to being worthless. He agreed it was
necessary to give homework and assignments, but they would not help with severe
depression if there was a lot of fatigue. The important point was to use CBT to
give her new coping skills to get around any distorted thinking, and therapy
would make reference to the homework and note progress on periodic assessment.

[531]     Dr. Anderson
was aware Ms. Forder had seen Dr. M. Anderson but for only 10
treatments rather than the 30 he recommended. In his view, her cognitive deficiencies
impaired the usefulness of CBT as did her depression, but he noted Dr. O’Shaughnessy
found the depression largely reduced, and that fact might be attributable to
the therapeutic relationship with Dr. Ferri.

[532]     Dr. Anderson
noted that no antidepressants were being used in November 2011, but Ms. Forder
subsequently used Cymbalta in mid-2012. But she then took herself off the
medications as she did not like the side effects. He agreed other medications
could have been tried to see if there could be improvement.

[533]     Dr. Anderson,
however, agreed that depression and cognitive impairment were affected by her
pain and fatigue at the time of his assessment. It was evident that Dr. Anderson
had seen the later reports of Dr. Underwood and Dr. O’Shaughnessy
showing improvement in Ms. Forder’s depression, and he said that
improvement could then be followed going to a pain clinic to help improve her
function, mood, and quality of life and relationships.

[534]     Nonetheless,
Dr. Anderson was hesitant to say Ms. Forder could make a full return
to work. Return to work was still possible at 18 months, but after more than
two years, he would be less optimistic.

[535]     Even in
the long term it would be difficult to improve Ms. Forder’s function, but
he doubted she could return to her norm with the ongoing concerns of pain and
fatigue. He agreed she appeared to have had a reduction in pain with the use of
Topamax and the Butrans pain patch.

[536]     In sum, the
effect of chronic pain on Ms. Forder’s cognition mixed with anxiety and
depression had to be reduced in the long term for Ms. Forder to make
forward progress.

Dr. Robinson

[537]     Dr. Robinson’s
report is dated February 16, 2012, and he consulted with Ms. Forder on January
18, 2012.

[538]     Dr. Robinson’s
neurological practice includes a speciality in headaches. His interview was at
less than two years post-accident, and during his examination, he noted her
anxiety and tearfulness but no apparent deficits in attention, language, or
memory. He also noted mildly decreased range of motion in her cervical spine
together with tenderness in the paracervical, perithoracic and paralumbar
musculature.

[539]     Dr. Robinson
noted the onset of headaches post-accident that have continued on a constant
basis. However, severe headaches were not relatively infrequent and were
related to the use of Topamax in fall 2011.

[540]     Dr. Robinson
concluded Ms. Forder had chronic post-traumatic headache related to neck
injury (whiplash, a common symptom following soft tissue injury to the neck)
with head pain similar to migraine or tension type headaches.

[541]     Dr. Robinson
noted that some studies where local anesthetic injected into the upper joints
of the neck (facet) had resulted in abolition of head and neck pain. He noted
while many patients may recover within weeks, many patients continue to have
headache and neck pain years post injury, particularly females who have a
longer more slender neck with less developed musculature.

[542]     Current
research indicated there were complex psychobiological factors surrounding the
acute injury that could be responsible for changes in the neurological
processing of sensory impulses within the pain system that result in pain in
peripheral structures that have recovered from the primary injury.

[543]     Dr. Robinson
noted that treating chronic headaches related to head and neck trauma was
usually difficult, and no physical therapy had been found to be curative. He
considered that her physical attempts at therapy, which caused increased
headaches, were appropriately abandoned, and the important thing was to
maintain an active lifestyle with regular exercise directed to improve general
fitness.

[544]     He made
recommendations regarding possible medications and noted her good response to
Topamax (and I note the subsequent use of the Butrans patch was also helpful).

[545]     Dr. Robinson’s
final suggestion was that Botox injections could be helpful, and that there was
evidence of improvement in a number of patients and experiments and the risks
were minimal. If she had success, treatments would be required every three
months, and that treatment would be a reasonable consideration.

[546]     Dr. Robinson
expressed some concern about the current psychological treatment being less
than optimal and that consideration of retaining a therapist with an interest
and expertise in mood disorder relative to chronic pain should be considered.
He noted with respect to cognitive function she had an excellent memory and
there was no mention of cognitive dysfunction during her evaluations.

[547]     Dr. Robinson
noted how upset Ms. Forder was having driven from her home to Dr. Anderson’s
office, and by her own assessment, she had difficulties carrying out the simple
tasks Dr. Anderson had requested, but with Dr. Robinson she was able
to do the same simple task of drawing a clock face without any difficulty.

[548]     So Dr. Robinson
noted it was probable her mood disorder coupled with her chronic pain as
causative of her cognitive symptomology, and managing her psychological
distress would be critical in her ultimate prognosis.

[549]     In sum, Dr. Robinson
felt, with respect to the passage of time and her current prognosis, that her
recovery is guarded, and she was at considerable risk of persisting partial
disability.

Dr. Wild

[550]     Dr. Wild
is a registered psychologist who has been practicing in BC since 1979.

[551]     Her
practice focuses on clinical neuropsychology. Psychological assessment includes
neuropsychological, intelligence and personality testing. The College of Psychologists
in British Columbia defines clinical neuropsychology as “the application of
knowledge about brain/behaviour relationships to the assessment, diagnosis,
treatment and rehabilitation of individuals with known or suspected central
nervous system dysfunction, neurological disorders, traumatic brain injury, and
learning difficulties”.

[552]     Dr. Wild
interviewed Ms. Forder and Mr. Omerod, reviewed medical reports and
records as listed, and observed and tested Ms. Forder.

[553]     Dr. Wild
concluded Ms. Forder sustained a closed head injury of sufficient severity
to lead to a mild traumatic brain injury or concussion as a result of the motor
vehicle accident of March 19, 2010.

[554]     I do note
there was some discussion as to Dr. Wild’s ability to express such an
opinion given that she is a psychologist and not a registered MD. I dealt with
that issue by Dr. Wild’s agreement that the symptoms she assessed were
consistent with a person who had a mild traumatic brain injury or concussion.

[555]     Dr. Wild
noted Ms. Forder was in a car accident as teenager and had put her head
through a car window with resultant significant blunt trauma to the head and a
concussive blow to the brain.

[556]     Dr. Wild
noted the assessment of the Fraser Health Concussion clinic.

[557]     Dr. Wild
noted Ms. Forder’s emotional responses including persistent problems with
pain; symptoms of depression; considerable amounts of anxiety; stresses
including weight and financial aspects; dysfunctional coping patterns; high
levels of emotional distress about her physical functions; unhappiness; little
energy or enthusiasm; and little hope for future improvement. All these
symptoms are indications of a depressive mood.

[558]     On
cognitive testing, Ms. Forder showed average intelligence though mildly
lower intellectual functioning than might be expected on the basis of her prior
education and occupation. She had weak performances on tasks requiring
efficient information processing and working memory as well as problems with
divided attention.

[559]     Results of
executive functioning tests relating to problem solving and reasoning were
found intact, but mental efficiency was generally weak affecting verbal fluency
and inhibition. Ms. Forder was found to perform adequately on most memory
and learning tasks, but she had initial difficulties with information
processing, and Ms. Forder was easily distracted and experienced loss of
short term memory.

[560]     Ms. Forder
also reported feeling blank and not able to concentrate for lengthy periods of
time.

[561]     Overall, Dr. Wild
found Ms. Forder’s cognitive testing consistent with mild cognitive
impairment affecting attention, memory, and learning, and these impairments resulting
in decreased mental efficiency.

[562]     Other risk
factors were being female, over 40, elevated symptoms of anxiety, and
depression.

[563]     Dr. Wild
concluded her results reflected a combination of mild traumatic brain injury
together with chronic pain, fatigue, lack of sleep, anxiety, stress, and a
“pronounced shaken sense of self together with heightened vulnerability to
stress”.

[564]     The
resulting maladaptive coping patterns lead Dr. Wild to recommend a
cohesive multidisciplinary rehabilitation program focusing on pain and anxiety
with clear guidance to gradual reactivation and increase in activity both
physically and mentally.

[565]     With
respect to headaches, she recommended a referral to Dr. Robinson.

[566]     Dr. Wild
thought Ms. Forder was motivated to improve and would benefit from a
well-structured intervention program.

[567]     Dr. Wild’s
March 2013 report was largely similar. As well she had the reports from Dr. S.
Anderson, Dr. Robinson, and Dr. M. Anderson.

[568]     The
persistent post-concussive symptoms reflected a combination of mild traumatic
brain injury, problems with chronic pain, fatigue, dizziness, heightened
anxiety and stress some three years post-accident.

[569]     Dr. Wild
still recommended a comprehensive well-structured intervention program focusing
on Ms. Forder’s complex symptom presentation while realizing it might be
very challenging to find a suitable program for Ms. Forder.

[570]     Dr. Wild
agreed with Dr. S. Anderson’s concerns regarding negative impact of
medication on cognitive functioning and that pain control should be instituted
to monitor ongoing medications and alternative strategies for pain management.

[571]     Dr. Wild
expressed her concern about Ms. Forder’s problems with driving, but it did
not appear to be an issue in Ms. Forder’s trial evidence.

Dr. Teal

[572]     Dr. Teal’s
report is dated April 1, 2013, and he saw Ms. Forder on April 5, 2012.

[573]     Dr. Teal
is a neurologist, and he has worked in full time emergency units and been
chairman of the Department of Emergency Medicine at Victoria Hospital. He
subsequently took his neurology training at UBC and Tufts University and is a
clinical professor of neurology at UBC as well as being on the active staff of
the Vancouver General Hospital.

[574]     When Dr. Teal
saw Ms. Forder, he noted she was taking Topamax 200 mg, Gabapentin,
Oxycocet, Cymbalta 30 mg, and Cyclobenzaprine, and the Topamax had reduced the
headache frequency and severity.

[575]     Dr. Teal
noted Ms. Forder was able to provide extensive detail regarding her
symptoms and history and exhibited a good functional memory.

[576]     Dr. Teal
concluded it was unlikely Ms. Forder sustained a mild traumatic brain
injury, but if she did, it was at the “extremely mild end” of the spectrum for
such injury. She likely had a Grade 2 cervical strain, whiplash associated
disorder, and myofascial and soft tissue injury of the lumbar sacral spine.

[577]     With
respect to the possible brain injury, Dr. Teal noted there was only some
confusion; there was no retrograde amnesia; there was no loss of consciousness;
there was no use of emergency responders; and subsequent CT scans and brain
scans showed no evidence of injury.

[578]     Dr. Teal
noted Ms. Forder had a pre-existing history of neck pain and documented
degenerative changes in her cervical spine with medical treatments beginning
January 2007 for neck injury and headaches and in February 2010 stabbing neck
pain and constant low back pain.

[579]     CT scans
showed cervical disc narrowing and spondylosis, and these findings meant there
was a predisposition to further neck pain given the car accident.

[580]     With
respect to low back pain, she had a prior history of mid and low back pain, and
there was evidence of a wedge fracture of the T7 that was present since at
least February 2007.

[581]     Dr. Teal
noted Ms. Forder was using Oxycocet, Gabapentin, Cyclobenzaprine, Emtec
30, and Naproxen before the car accident.

[582]     Dr. Teal
opined that Ms. Forder’s cognitive and behavioural symptoms were largely
attributable to mood disturbance, sleep disturbance, and using medication
associated with a high incidence of cognitive side effects as well as psychological
factors.

[583]     The
variety of symptoms included headaches, dizziness, cognitive symptoms including
distractibility, memory problems, disorganization, difficulties in social
situation, mood disturbance, and sleep disturbance.

[584]     Dr. Teal
found Ms. Forder had a mixed post-traumatic headache disorder with other features,
including cervicogenic headache, tension type headache, and occasional
headaches with migraine features. And these symptoms were again affected by
psychological factors.

[585]     Dr. Teal
noted the headaches were still experienced three days a week, and he found the
direct and indirect effects of the accident were a significant contributor to Ms. Forder’s
headache profile.

[586]     Dr. Teal
also found Ms. Forder experienced post-traumatic benign positional vertigo
post-accident and mild symptoms of visual vestibular mismatch but on his
examination the testing was negative. He noted her current symptoms of
dizziness were primarily non-specific light-headedness and he did not feel there
was a significant injury to her vestibular or balance system.

[587]     In sum, Dr. Teal
opined that the physical injuries were relatively minor, but her medical issues
– including the multiple cognitive symptoms, sleep disturbance, headaches and
back and neck problems – were due to development of a mood disorder, pain
disorder, and physiological factors. He felt personality factors were also a
significant contributor to the generation and maintenance of her symptoms.

[588]     Dr. Teal
recommended a psychiatric evaluation and he questioned whether the multiple
symptoms of depression and sleep disturbance had been adequately treated. He
also was concerned that Ms. Forder’s medication was a contributor to her
cognitive symptoms, and it had been largely ineffective in treatment of her
headaches. He disagreed with the use of Gabapentin and was concerned about the
side effects of the Topamax and Oxycocet and recommended there be a
neurological assessment (Dr. Teal was evidently unaware of Dr. Robinson’s
assessment).

[589]     Dr. Teal
found her current work and recreational limitations were due solely to her episodic
headaches occurring three times a week, but there was no neurological or brain
injury; rather psychological factors, sleep disturbance and medication underlay
Ms. Forder’s subjective symptoms. And if those issues are resolved, Ms. Forder
could return to her previous work and recreational pursuits.

[590]     Dr. Teal
noted the presence of pre-existing degenerative disc disease with neck and back
pain that was symptomatic pre-accident, and it likely disposed Ms. Forder
to a more protracted post-traumatic symptomology.

[591]     In the
long term there was still potential risk for progression of the existing
cervical spondylosis. He also opined that the pre-existing neck and back
problems would preclude heavy lifting or sustained moderate to intense physical
activity.

[592]     In
connection with his qualifications, defence counsel noted the time Dr. Teal
spent in his other specialities, namely the treatment of stroke patients.

[593]     Dr. Teal
indicated that he spent approximately one and a half days of his ordinary work
week with stroke patients, and he was in general neurology two and half days,
and the other day was spent providing reports for both the plaintiff and
defence bar.

[594]     Dr. Teal
reiterated that Ms. Forder had both cervicogenic and tension headaches and
that psychological factors were also important. The sleep loss and mood factors
would affect Ms. Forder’s ability to deal with her headaches, and treating
the mood disorder might help overall, but it was always difficult to untangle
the mood disorder, sleep disorder, and day to day functioning.

[595]     Dr. Teal
agreed the depression was part of her pain profile and had the indirect effect
of making it more difficult to cope and get on with the daily activities.

[596]     It was
noted Dr. O’Shaughnessy in April 2013 found Ms. Forder’s depression
in remission, but the headaches were continuing. Whether her remission was
complete or partial was yet to be determined, but Dr. Teal agreed there
were multiple elements of depression, sleep loss, and medication factors in
play.

[597]     Dr. Teal
agreed Ms. Forder was able to carry out limited household and other
activities, and the headaches were the inhibiting factor.

[598]     Dr. Teal
confirmed his finding of a mixed headache disorder, and if there was migraine,
it was not a major component. He agreed a Botox trial would be useful, and if
it worked, the Topamax could be discontinued.

[599]     Dr. Teal
agreed he did not commonly treat chronic headaches, but it was 15% of his
general neurological practice.

[600]     A debate
then ensued as to his conclusion of no mild traumatic brain injury. He had “walked”
Ms. Forder through the accident events in great detail and noted it
appeared she could recall the events; she had no loss of consciousness and a
good recollection of events pre and post-accident.

[601]     He was not
aware of Mr. Omerod’s evidence that Ms. Forder did not recognize him
when he arrived on the scene. Nor was he was specifically aware of the damage to
and the distance Ms. Forder’s car was pushed in the collision. And he
agreed that those factors could be a basis for a confused verbal finding on a
Glasgow Coma Scale.

[602]     Discussion
then turned to principles of pain management and a reference was made to John
G. Meads Principles of Pain Management where it was written “sometimes pain can
begin and become chronic with trivial or indeed no earlier preceding tissue
injury; it appears to be caused and sustained by malfunction of central and
peripheral neurological mechanisms leading the description neuropathic pain.” But
Dr. Teal said that was not the case for Ms. Forder.

[603]     Dr. Teal
did agree that his description of Ms. Forder’s combined medical and
psychological factors lead to a definition of a pain disorder in the DSM classification
307.89 where both psychological and general medical conditions have important
roles in the onset, severity and exacerbation or maintenance of the patient’s
pain.

[604]     Dr. Teal
agreed Ms. Forder was not making up her complaints, and he was sure she believed
what she felt was real and that her pain was subjective and debilitating.

[605]     Dr. Teal
still had some optimism about further recovery for Ms. Forder as he felt
some occupational therapy had been declined, that she had not been closely
followed, that she was not under psychiatric care when he saw her, and that
other treatment for headache could be considered; therefore her treatment to
that time had not been optimized.

[606]     Dr. Teal
did agree general medical literature would not give an optimistic outcome to a
person complaining of major chronic headaches, depression and pain for more
than three and half years.

[607]     Dr. Teal
again repeated he did not feel Ms. Forder had neuropathic pain and there
was no evidence of neurological injury. He noted she had pre-accident pain and
cervical disease.

[608]     Dr. Teal
agreed the CT scan showed narrowing in the left side of the cervical spine and
that Ms. Forder had been taking Gabapentin pre-accident, but he did not
agree that it was necessarily indicating no pain had been relieved. He agreed Ms. Forder
said the pain had come back, so she took the Gabapentin post-accident to stop
the neck pain.

[609]     With
respect to his comments regarding Topamax, he was asked if in discussion with
the plaintiff she had noted a cognitive decline after taking the medication. He
said that she would not necessarily have correlated the two aspects, but she
had started at 25 mg and worked up her dosage until she stopped using it, so it
would be difficult to know what cognitive functions would be affected and if it
could also affect her depressive symptoms.

[610]     Dr. Teal
was not aware that the plaintiff had had neurological testing when not on
Topamax and later when on Topamax with little difference in the outcome of the
testing (Counsel had referred to Dr. Wild’s testing in 2011 and 2013).

[611]     Counsel
put to Dr. Teal that Dr. Robinson had been using Topamax for 15 years
for people complaining of frequent headaches and that each patient can have side
effects. He did not recall if he specifically asked if she had any side effects,
but he may have asked whether she was taking the medication that day.

[612]     Dr. Robinson
had said that cognitive problems reported by a patient taking Topamax can be
approximately 25% percent. Dr. Teal agreed.

[613]     When asked
why he would take her off Topamax if it was helping her headaches, Dr. Teal
said she was on multiple medications, and it was useful to test the efficacy of
the medications by taking a patient off the medications to check if the
medications were working.

[614]     It was
suggested Ms. Forder had said she had Topamax for some time yet the
headaches had recurred and would that affect his opinion, but Dr. Teal
remained of the view that Ms. Forder’s medications should be reviewed. He
was aware that Dr. Robinson had suggested that Topamax be taken for her
headaches. And he was aware she had tried Amitriptyline but was not aware of
the dosage.

[615]     In sum, he
reiterated his recommendations in para. 21 of his opinion.

Dr. Heather Underwood

[616]     Dr. Heather
Underwood is a physiatrist with her speciality in rehabilitative medicine and
rehabilitation.

[617]     Dr. Underwood’s
opinion was based on an assessment of Ms. Forder on October 23, 2012 and
her report is the same date. The report includes appendixes with a document
review; a statement of facts and assumptions; a list of pre-accident health and
function; accident history; post-accident health and level of function; and the
physical exam of October 23, 2012.

[618]     Dr. Underwood’s
conclusions accord with Dr. Robinson – i.e., chronic post-traumatic headaches
related to neck injury (noting the degenerative changes both before and after
the car accident) and a mild traumatic brain injury.

[619]     It was
noted an MRI found no overt findings of diffuse brain injury or confusion. Dr. Wild’s
neuropsychological testing reported difficulty with mental inefficiencies
worsening under pressure.

[620]     Dr. Underwood’s
opinion was Ms. Forder’s symptoms were in keeping with mild traumatic
brain injury, but the immediate effects had passed, and her current symptoms in
October 2012 were likely a combination of chronic pain, depression, and headaches
associated with neck pain and reduced mood.

[621]     With
respect to Ms. Forder’s neck pain, she had pre-accident difficulties in
2007 and in February 2010, including difficulties with reaching and
prescription of medication. Ms. Forder told Dr. Underwood that she
had acupuncture, massage, physiotherapy as well as an active rehab program but
no trigger point injections or facet injections.

[622]     Dr. Underwood
found a number of tender points in the neck and upper back, limited range of
motion, pain in rotation of neck, and reported dizziness with forward flexion.
But she found normal reflexes and normal strength in the upper extremities.

[623]     Dr. Underwood’s
opinion was Ms. Forder’s neck pain was the result of soft tissue injuries
involving the musculature surrounding the spine. Facet irritation could not be
completely excluded, but she was unable to test that.

[624]     Dr. Underwood
recommended the Botox injections not only for Ms. Forder’s headaches but
also as an option with respect to neck pain.

[625]     Dr. Underwood
noted the prior history of lower back pain, but it was less of an issue
compared to pre-accident neck pain. On examination, Ms. Forder had discomfort
with forward flexion (more on the right compared to the left in the iliolumbar
region); discomfort in the right iliolumbar region and buttocks with forward
lunges; and discomfort with side lunges to the left with dragging of the right
leg but straight leg raising to 70 degrees.

[626]     Dr. Underwood’s
opinion was Ms. Forder had ongoing muscular and soft tissue injury
involving the iliolumbar region (it was greater on the right side) but no nerve
root compression or sacroiliac discomfort.

[627]     It was
noted she was wearing non-supportive footwear, something that was also apparent
when Ms. Forder was in court.

[628]     While Ms. Forder
had health issues pre-accident, including pain, she was able to work on a full
time basis and perform her daily activities without limitation. The pain had involved
headaches, neck pain, thoracic pain, and low back pain for more than two years;
therefore the pre-accident pain meets the criteria for chronic pain.

[629]     There was
no previous history of decreased mood, but the documentation Dr. Underwood
reviewed noted the gradual reduction in mood requiring psychosocial
intervention and noted Dr. Anderson’s report of depression.

[630]     In sum, Dr. Underwood
found that while there was a likely mild traumatic head injury, it would be
minor in nature, and Ms. Forder’s ongoing symptoms were likely the result
of a combination of neck pain, headache, chronic pain, and reduced mood.

[631]     There had
been numerous prior recommendations for Ms. Forder to participate in a
multidisciplinary pain program. Dr. Underwood pointed out that the
programs available were persons with decreased mood as well as self-management
of chronic pain.

[632]     Dr. Underwood
made other recommendations:

1.       exercise should be
considered;

2.       a pool based exercise
program;

3.       walking with the aid
of walking sticks;

4.       using proper shoes
with new orthotic devices;

5.       relaxation techniques;

6.       facet injections to
the neck;

7.       radio frequency
oblation;

8.       ongoing psychological
counselling in psychiatric assistance; and

9.       Botox injections.

[633]     At trial, Dr. Underwood
reiterated the mild traumatic brain injury had resolved and the problem was
ongoing neck, back, and headache pain.

[634]     Dr. Underwood
agreed that some of Ms. Forder’s confusion at the time of the accident
could well be attributable to shock, fright, or upset, but she was reluctant to
agree there was no mild brain injury given the reported 80 km car impact. She
agreed she was not hung up on the label, and that the brain injury, if any, was
mild.

[635]     Dr. Underwood
agreed there had been recovery, but there were ongoing neuropsychological
inefficiencies showing in Dr. Wild’s testing.

[636]     Dr. Underwood
agreed Dr. Robinson’s and her own recommendations had not been followed
since her report in October 2012.

[637]     Dr. Underwood
agreed the recommendations, if implemented, would empower Ms. Forder and
give her better self-management, but any long term prognosis would still be
guarded.

[638]     In terms of
Ms. Forder’s return to work, Dr. Underwood described it as possible
but not probable, and Ms. Forder would not expect a return to her previous
work function.

[639]     The
important part in the rehabilitation would be gentle increases in daily
activities including walking and water based activities as well as home based
activities.

[640]     Dr. Underwood
agreed that Ms. Forder had never been a good sleeper pre-accident as
reflected in the pre-accident records, and using Oxycocet and Gabapentin before
the accident was a progressive increase in medications. Dr. Underwood
noted she does not manage rehabilitation in that fashion and does not like to
use narcotics.

[641]     She agreed
with Dr. Robinson that Ms. Forder should be using a local
psychiatrist with a brain injury background and that treatment of depression,
pain, fatigue, and cognitive effects in all aspects needed to be dealt with.

Paul Pakulak

[642]     Mr. Pakulak
is an occupational therapist and a certified functional capacity evaluator. He
graduated from UBC in 1997 from the Faculty of Rehabilitation Sciences, and for
the past 15 years, he has worked in private rehabilitation settings and has
specialized in functional capacity assessing.

[643]     As he
points out, his testing evaluates, over the course of a day, the major physical
tolerance abilities related to musculoskeletal strength, endurance, speed, and
flexibility.

[644]     At the
time of his assessment, Ms. Forder was 50 years old and medical
documentation showed injuries to her neck, back, and left arm and complaints of
headaches and dizziness.

[645]     Mr. Pakulak
noted limitations on her ability to perform prolonged or repetitive overhead
reaching, bending, crouching, sitting, static standing, climbing, and heavy
lifting and carrying. He was satisfied that she was consistent in her efforts
throughout, and he had a reliable measure of her functional capacity. He found
her subjective reports of her abilities were consistent with his results and
findings.

[646]     Mr. Pakulak
concluded she was best suited for sedentary level strength matters given the
functional limitations already mentioned.

[647]     Mr. Pakulak
considered her employable on a sedentary level on a full time basis with
restrictions, namely, below waist and overhead work could only be done
occasionally, and he opined that prolonged or forceful use of arms and
shoulders, neck positioning, sitting or standing would require worksite flexibility
to allow her to take breaks during the work day to manage any potential
symptoms of pain in her neck, shoulders, low back and the headache and
dizziness complaints. Accordingly the number of jobs she would be able to
compete for would be significantly limited.

[648]     In his
view, she did not demonstrate the capacity to compete on a full or part-time
basis as a special education assistant, and she would be limited in her work as
a respite worker.

[649]     In terms
of her home, she would be able to pace herself through light household cleaning
chores, but she demonstrated little capacity for more physically demanding
chores. He agreed her current level of home assistance (five hours every other
week) was appropriate.

[650]     Although
it was a lengthy cross-examination, it largely confirmed his findings on the
one day of assessment in January 2013, and given he found her self-reporting
reliable, his opinion was not affected.

Richard Carlin

[651]     Richard
Carlin is a vocational consultant, and his report is dated May 15, 2013.

[652]     Mr. Carlin
has a master’s degree in counselling psychology and has been in private
practices of a vocational rehabilitation consultant since July 1987.

[653]     Mr. Carlin
interviewed Ms. Forder on February 21, 2013 and administered a vocational
test battery that day.

[654]     Mr. Carlin
reviewed medical documentation and Mr. Pakulak’s functional capacity
evaluation as well as Ms. Forder’s school records. Based on the medical
records and Mr. Pakulak’s report, Mr. Carlin noted Ms. Forder
was not able to return to her pre-accident job as a special education assistant
following the March 2010 accident, and she has only maintained one of her long
term respite clients. He noted she also, from time to time, provided room and
board for international students, enjoyed a variety of craft projects, and was
an avid gardener.

[655]     Given the
constellation of physical and psychological factors, Mr. Carlin felt Ms. Forder
would likely continue to have anxiety and depressive symptoms as long as she
had the other issues.

[656]     Mr. Carlin
measured her average range intellectually. A prominent cognitive weakness was
her difficulty in taking new information when under pressure, and he concluded
her mental efficiency and level of comprehension were compromised.

[657]     Mr. Carlin
noted Mr. Pakulak’s finding that Ms. Forder was best suited to a
sedentary strength level.

[658]     Given her
lack of physical abilities, Mr. Carlin felt she could not meet the range
of physical demands associated with the special education assistant and a
respite caregiver given its physical requirements. In his view, it was outside
her physical ability. He noted the ongoing respite worker contract does not
require physical exertion, and the child is emotionally and psychologically
stable.

[659]     In
consideration of her abilities as against the national occupation
classifications, Mr. Carlin found that Ms. Forder’s ability met
sedentary strength (limited strength) criteria, leaving 50% of the list of job
titles, but the majority of them had educational or experience requirements Ms. Forder
did not possess.

[660]     As well
she experienced physical issues during long sitting – so jobs as a secretary,
accounting clerk, or word processor – or jobs requiring sustained standing and
walking – like sales clerk, hair stylist, hotel desk clerk, etc. – were not
feasible. Thus, he opined her potential job poll was considerably reduced on
the basis of her physical capacity. And when considering her complaints of
chronic pain, headaches, dizziness, and poor memory, together with anxiety and depressive
symptoms, he questioned her ability to be successful in any retraining
endeavour.

[661]     Mr. Carlin
accepted she was “a bright lady”, but her ability to learn new information in a
formal setting was limited, and her ability to apply new informational skills
might also be compromised.

[662]     In
conclusion, he felt, from a vocational rehabilitation view point, she was most
probably not competitively employable.

[663]     Even if
she found a job meeting her physical needs, she would need an employer to
accommodate her headaches, chronic pain, emotional distress, and unplanned
absenteeism.

[664]     At age 50,
Mr. Carlin would expect she had an ability to work for 15 more years, and he
noted she was still providing respite care for one child and volunteering for
the Lions Association.

[665]     Mr. Carlin
concluded money should be put aside for vocational rehabilitation if only to
find activities where she could engage in volunteer activities and recommended
30 hours or $3,000 for vocational assessment.

[666]     I note Mr. Carlin’s
comments regarding ability to process information were largely based on Dr. Wild’s
report.

[667]     In his own
assessment on academic achievement, Mr. Carlin found Ms. Forder
demonstrated Grade 12 level spelling, sentence comprehension, and word reading
ability. Her math computation an early Grade 12 level, but her reading level
was consistent with her self-reporting that she was a very slow reader. Her
vocabulary was 14.6 years of education, but her slow reading and the fact that
she only completed one passage instead of an average four or five (and five of
the eight questions were incorrectly answered) led him to conclude that she
would have considerable difficulty in managing the reading requirements
associated with most vocational training where reading textbooks was intrinsic.

[668]     As to her
intellectual functioning, Ms. Forder scored in the lower half of average.
She was able to think both concretely and abstractly, and she had the ability
to transfer what is learned from one context to another. Thus, she could learn
new information equally well from the classroom setting or a more practical
experimental mode subject to her cognitive impairments.

[669]     In
cross-examination, Mr. Carlin agreed that the job categories would be
expanded due to the different kinds of job titles within each category.

[670]     And Mr. Carlin
agreed that if Ms. Forder’s ability to sit longer or to stand longer would
substantially increase the number of jobs available (being able to sit perhaps
30% and being able to “dynamically stand” 10%), but she would still have
restrictions regarding lifting and carrying objects.

[671]     As to her limited
ability to learn new materials, he agreed that academically she still had good
standing, but her acknowledged slow reading and her difficulties on
comprehension testing as well as Dr. Wild’s report lead to his concern
about her being able to absorb new information for retraining.

[672]     Mr. Carlin
agreed that the Friday night meat draws would mean she would be socializing and
be able to sell tickets and make change.

[673]     And Mr. Carlin
agreed she had been a slow reader pre-accident; indeed that had been a reason
she had gone to special education as she was more interested in those courses
and made better progress.

[674]     Mr. Carlin
agreed that if she went into some area of self-employment, she would be able to
regulate her own pace of work. Thus the vocational advice would be useful for
ascertaining appropriate areas of self-employment, but it did not necessarily
mean it would be paid employment as it could well be assisting others in
activities she has mastered such as craft work.

Tracy Berry

[675]     Tracy
Berry prepared a cost of future care report dated May 3, 2013.

[676]     Ms. Berry’s
report was based on an assessment made March 14, 2013.

[677]     Her scope
of practice is to assess occupational performance and modify human and
environmental conditions to maintain, restore, or enhance occupational performance
and health.

[678]     Ms. Berry
met with Ms. Forder at her residence and reviewed the medical and
rehabilitation records provided to her by plaintiff’s counsel.

[679]     I note Ms. Berry
describes the house Ms. Forder moved into in March 2011 as situated on a
third of an acre with a creek, bridge, mature landscaping and multiple garden
beds with a four level split style home. Ms. Forder and Mr. Omerod’s
intend to further update the home.

[680]     Ms. Berry
noted Ms. Forder was attending therapeutic yoga and receiving regular
physical therapy and was finding the initial sessions of yoga helpful.

[681]     The recent
arrival of a grandson was noted, but Ms. Forder had difficulty holding the
baby for any length of time.

[682]     Ms. Berry
noted Ms. Forder had not received any occupational therapy services and
recently started vestibular therapy for dizziness symptoms that may improve her
daily functioning by reducing psychological distress and improving her physical
condition and tolerance for activity. Ideally those services should be provided
in the context of a coordinated multidisciplinary team.

[683]     So Ms. Berry
anticipated Ms. Forder would require a gradual rehabilitation program and
a long term maintenance level of support to maintain functional gains made.

[684]     Ms. Berry
noted at times Ms. Forder appeared to have difficulty staying on topic
with tangential speech and emotional overlay.

[685]     I would
note that while that was an initial impression of Ms. Forder, she gave
evidence over six days in court, and towards the end, she seemed far more
comfortable without any limitation in understanding or speech.

[686]     Ms. Berry’s
impression of Ms. Forder’s demonstrated pain seemed far more than
exhibited before Mr. Pakulak or in the courtroom.

[687]     Ms. Berry
noted Ms. Forder demonstrated normal range of motion in her neck, arms,
and legs, but trunk flexion (bending forward) was significantly restricted with
reports of pain.

[688]     In
contrast to Mr. Pakulak’s testing of squats, Ms. Forder had
difficulty.

[689]     Normal
grip strength was noted for her age and gender.

[690]     Prolonged
sitting and standing over two hours was demonstrably difficult.

[691]     Ms. Berry
expressed some optimism that with extensive medical rehabilitation and support
services her restrictions could be reduced over an extended period of time – i.e.,
there was a need for a multidisciplinary team approach to deal with the
deconditioning, poor pain management, and emotional issues.

[692]     With
respect to household activities, Ms. Berry felt Ms. Forder may be
more capable than she believes, but her pain perception and her emotional
impairment affect her confidence, activity, tolerance, and general activity
enjoyment. Supportive therapy would be required.

[693]     Ms. Berry
accepted that Ms. Forder was not currently competitively employable, and for
possible competitive employment or at least productive activity, she needed to
have extensive medical and rehabilitation support together with a supportive
employer in a job with sedentary physical demands that enable frequent body
position changes, a limited schedule, limited time pressure, and a proper
ergonomic work station.

[694]     At
Appendix H, Ms. Berry summarized the costs followed by a detailed
breakdown.

[695]     Counsel
advised the estimated cost for Gabapentin would be reduced to one-third, i.e.
$284 as an ongoing cost.

[696]     At page 58,
the claims for neurological assessment and psychological assessment and initial
treatment were withdrawn.

[697]     At page
60, claims on house modification were abandoned as no evidence had been led.

[698]     In
cross-examination, Ms. Berry was not aware of Ms. Forder’s pre-accident
health issues and medications, but based on Ms. Forder’s description, Ms. Berry
described her as independent functionally with no reason to think she would
deteriorate.

[699]     Ms. Berry
said the need for occupational therapy management arose from the various doctor’s
directions regarding cognitive improvement, ergonomic structures, psychological
support, and supervised access.

[700]     Ms. Berry
noted Ms. Forder had improvements not long before her assessment, and Ms. Forder
was walking up to an hour, had signed up for Sun Run training once a week with
a walking partner, had attended yoga, and was getting vestibular physiotherapy.

[701]     The
important aspect of Ms. Berry’s opinion was that Ms. Forder had room
for improvement, but she would need a multidisciplinary clinic management at
the outset, and ongoing occupational therapy supervision to habituate
improvements as well as ensuring that the initial rehabilitative exercises,
particularly pool therapy were done in a moderate but sustainable fashion.

[702]     If
successful, Ms. Forder could experience some restoration of physical
ability and reduction of pain. In turn, it might lead to a better chance of
competitive employment within her limitations, but care had to be exercised
given the time Ms. Forder had been out of work.

[703]     Ms. Berry
agreed the Tens electrical stimulation had not been recommended by a doctor, but
she believed it had been effective in similar cases and was worth trying.

[704]     Ms. Berry
agreed Mr. Pakulak’s functional assessment might lead to less assistance
from housecleaners, but she noted Ms. Forder liked a clean house and Ms. Forder
could not do the heavy work necessary to maintain the house. Thus she
recommended four hours weekly or eight hours every two weeks.

[705]     The
exercise program would involve more pool work than gym work.

[706]     Both Dr. Underwood
and Dr. Anderson had recommended pool therapy recognizing the need to get Ms. Forder
out of the house, and she noted that Ms. Forder was not following her home
exercise program as she might.

John Struthers

[707]     Mr. Struthers
filed reports as to potential lost future earnings and cost of future care.

[708]     I received
the submission from plaintiff’s counsel as to the potential effect of the
changes to the discount rates in the Law and Equity Act, so I will
indicate the items I am allowing.

[709]     That will
let the parties see if they can agree on the total future care. If not, the
parties are at liberty to argue the appropriate quantum before me.

Parties’ Submissions

Plaintiff

[710]     Plaintiff’s
counsel provided me an excellent detailed 83 page brief which I found most
helpful. My summary of the submissions in no way diminishes a very strong
argument for Ms. Forder’s claims.

[711]     The
plaintiff in summary argued the evidence showed Ms. Forder sustained:

a)    a mild traumatic
brain injury;

b)    chronic
post-traumatic headaches;

c)     soft-tissue
injuries to the neck and iliotibial region of her back resulting in chronic
pain;

d)    post-traumatic
stress disorder;

e)    symptoms of
anxiety; and

f)      reduced
cognitive abilities as a result of the pain and chronic major-depressive
disorder of moderate severity with symptoms of anxiety.

[712]     Ms. Forder
had her life changed from being an active special children’s assistant with
interests in activities including running, gardening, crafts, cooking and
family social life to substantially reduced life in terms of social activity
and physical activity and a substantially reduced work life having retained
only one respite worker contract.

[713]     In turn,
this resulted in claims put forward of:

1.     General
damages – $135,000;

2.     Past wage
loss – $133,760;

3.     Future
loss of earning capacity – $551,000;

4.     Cost of
future care – $319,000;

5.     Special
damages – $41,876.41;

6.     Total –
$1,180,636.41.

Defendant

Non Pecuniary Damages

[714]     The
defendant submitted Ms. Forder had:

a)    pre-existing
chronic neck and back pain;

b)    pre-existing
sleep disturbances and thus she sustained an aggravation of pre-existing sleep
disturbances;

c)     pre-existing
headaches and thus she sustained an aggravation of pre-existing neck and back
pain; and,

d)    onset of
post-traumatic headaches, depression and other mood disturbances resulting in
cognitive difficulties.

[715]     The
defendant argued the plaintiff had not had appropriate treatment for her
injuries and not recovered as she should. With further appropriate treatment,
she could improve her mental and physical health sufficiently to return to her
previous work and recreational pursuits.

[716]     While
conceding Ms. Forder sustained soft-tissue injuries, the defendant
submitted Ms. Forder had no brain injury, but she had a mild concussion.

[717]     The
defendant argues Ms. Forder had no post-traumatic stress disorder, but she
had long-standing headache pain and neck, shoulder, and back pain.

[718]     The
defendant conceded the time off work to date was compensable, but Ms. Forder
had failed to mitigate her losses.

[719]     At the
same time, the defendant acknowledged Ms. Forder had apparently followed
the treatment plan of Dr. Luitingh and Dr. Ferri. But the defendant submitted
other experts had told her she should change her focus, and she should obtain a
psychologist who specializes in persons with chronic pain and depression.

[720]     The
defendant argued the CBT counselling was inadequate, that the medication
therapies were inappropriate, and that the Botox injections recommended by Dr. Robinson,
Dr. Teal and Dr. Underwood would assist in resolving her headaches.

[721]     As well,
participation in active rehabilitation in a pain clinic would allow for a
potential return to work.

[722]     As to the
argument against a finding of mild traumatic brain injury asserted by Dr. Anderson,
Dr. Wild, and Dr. Underwood, they relied on the opposing opinions of Dr. Teal
and Dr. O’Shaughnessy that were essentially based on her post-accident
recollection of the accident.

[723]     Dr. Robinson,
in his report, indicated it was only a possibility the plaintiff sustained a mild
traumatic brain injury given the brief loss of awareness, but he noted her
excellent memory and no mention of other cognitive dysfunctions in her earlier
evaluations.

[724]     Alternatively,
Dr. Underwood’s opinion was noted – i.e., if there was a mild traumatic
brain injury, it had resolved and the ongoing symptoms of neck pain, headache,
chronic pain, and reduced mood were not related; rather they were related to
the neck and chronic pain issues.

[725]     Thus, the
defendant takes the position the plaintiff is showing a slow but continuing
recovery from her accident-related injuries, and her injuries must be
considered in light of the pre-existing medical history, including symptomatic
neck and back problems before the accident, the degenerative neck condition and
low back problems, and the use of prescription medicine pre-accident.

[726]     Therefore,
the defendant says non-pecuniary damages are $75,000.

Past Wage Loss

[727]     The
defendant asked the Court to calculate the gross wage loss, and the parties would
then attempt to settle the applicable tax, and failing settlement, they would
apply to the Court.

[728]     With
respect to lost income from School District Number 42 as a special education assistant,
the defendant calculated a five-year average from 2005-2009 at $35,069 per
annum.

[729]     In turn,
this calculation gives rise to a calculation of three years’ lost income to
trial of $105,207 plus five months to August 2013 – $14,612.05 for a total of
$119,819.05.

[730]     With
respect to respite care, the defendant notes the plaintiff has continued to
provide respite care for one child. The defendant submits as well the previous
income is limited in 2005 – $200; 2006 – $800; 2007 – $1,200; 2008 – $700; 2009
– $1,600.

[731]     But the
defendant conceded that from April 2009 to March 2010, the earnings were $3,400,
possibly up to $6,000 per year if she was earning $500 per month.

[732]     Taking the
$3,400 estimate amounts to a loss of $11,900, the total appropriate lost gross
income is $131,720.

Loss of earning capacity

[733]     The
defendant took the view that the plaintiff’s potential future lost earnings was
best measured as a capital asset approach, not a mere mathematical calculation.

[734]     Therefore,
the Court should consider the plaintiff had been rendered less capable overall
of earning income from all types of employment; is less marketable or attractive
as a potential employee; has lost the ability to take all tangible job
opportunities; and less valuable to herself as a person capable of earning
income in a competitive labour market.

[735]     The
plaintiff has made little progress in her wish to acquire a degree in
recreation therapy, and it was more likely she would have continued her special
education assistant’s employment into the future.

[736]     It was
noted Mr. Pakulak’s functional capacity evaluation did not consider
pre-accident health matters, and his opinion was based solely on his testing.
Further, the sum of his opinion was not based on prolonged testing due to time
limitations.

[737]     For
instance, Ms. Forder was able to sit for an hour and 40 minutes, and she
had no functional limitations to her functional standing. He did not test for
prolonged walking tolerance, and she was able to conduct three speed-walk tests
without functional limitation. Additionally, functional limitations for
prolonged and repetitive overhead work were not actually tested.

[738]     She was
not fully limited with respect to work below her waist level, and she met the
competitive threshold for three of four transfer tests.

[739]     She was
able to transfer when bending, kneeling and crouching.

[740]     Although Mr. Pakulak
indicated she had functional limitations specific to prolonged and repetitive
work in front of the body, a number of tests were in fact done without any
accommodations to reduce neck or shoulder strain although there were increased
symptoms.

[741]     As well,
the physiatrist noted upper extremity strength as normal on examination.  Dr. Robinson
noted normal muscle power and tone on examination. As well as Dr. Teal noted
normal muscle tone and power.

[742]     Mr. Carlin’s
vocational assessment could not say she was ineligible; rather it said she was
eligible and met 50% of all listed national occupational classification jobs that
involved 953 total groupings with ten to 50 different job titles within each
grouping. Therefore, there were thousands of other jobs available to the plaintiff.
30% required mere sedentary sitting.

[743]     As well if
Ms. Forder had no functional limitation for dynamic standing as indicated
by Mr. Pakulak, the number of groupings increased by approximately 90:
thus there was a large alternative job pool if the plaintiff did not return to
her original occupation.

[744]     The
defendant relied on Dr. Teal’s assessment that the plaintiff’s strength
and movement was normal, and the problems that remained were mood disorder,
pain disorder and psychological factors. Therefore other treatment options not
yet explored might better improve the plaintiff’s health, including:

a)    Tricyclic
antidepressant medication;

b)    Botox treatments
for the headaches as suggested by Dr. Robinson and Dr. Teal; and

c)     The
several references to the use of the multidiscipline pain clinic (Dr. Teal,
Dr. Anderson, Dr. Robinson, Dr. Wild, Ms. Berry) should be
taken into account.

[745]     Given the
potential alternative employment and potential for improvement in her health,
the defendant submitted lost future earning capacity should be two years’
income or $70,000.

Cost of future care

[746]    
The defendant focused on the need for the cost of future care to be
related to medically justified matters noting the words of Johnston J. in Travis
v. Kwon, 2009 BCSC 63 that the original cost of care cases grew out of
catastrophic injury cases and the need to provide for a full and adequate life
for a person rendered largely immobile. Those facts were not the case for Ms. Forder.

[747]    
In Ms. Berry’s cost of care report, she noted the plaintiff was not
doing any home exercise in spite of having a number of gym aids, including an
exercise ball, treadmill, weights, a bench, and home videos. Indeed, the
plaintiff’s self-management strategies were largely passive.

[748]    
On the other hand, the plaintiff at her functional capacity evaluation, only
perceived herself as slightly restricted with respect to kneeling, crouching,
sitting, standing, climbing, reaching out and reaching overhead and
unrestricted in gripping and handling.

[749]    
She perceived herself as moderately restricted with walking and
moderately to severely restricted with bending and stooping and was unable to
estimate her lifting and carrying ability.

[750]    
Ms. Berry in cross-examination recommended the plaintiff continue
her current housekeeping duties and gradually increase them. Other than seeing
the plaintiff in front of a laundry machine, she did not see the plaintiff
doing homemaking or yard work to assess her actual capabilities and in fact
relied on the FCE results.

[751]    
As well, the plaintiff had moved to her current residence in March 2011,
and at some stage, she was doing up to one-and-a-half hours of yard work but
had reduced that 30 minutes, and she had no home maintenance at the time of her
assessment (May 2013).

[752]    
In evidence, the plaintiff said she could perform 30 minutes of planting
and weeding on a daily basis.

[753]    
As well, there had been improvements before trial with the use of the Butrans
pain patch stopping bad headaches and permitting her to begin therapeutic yoga.
She was now rarely using Oxycocet, and she had improvement in her low-back pain
after several months of therapeutic yoga.

[754]    
The decline in shutdown headaches with Topamax medication and the help
of vestibular physiotherapy all accorded with Dr. Luitingh’s closing
comments.

[755]    
Thus the defendant submitted a future care award should allow for the
plaintiff increasing her function such that she is able to resume her ordinary
homemaking tasks and as she is able to increase her physical and mental health
and possibly return to her former employment.

[756]    
Both Dr. Wild and Dr. Anderson recommended intervention or multidisciplinary
pain clinics as did Dr. Underwood.

[757]    
Therefore, the defendant agreed with the allowance of $13,600 for a pain
clinic although there are free clinic pain services as Dr. Underwood suggested.

[758]    
The defendant further proposed ongoing homemaking support on a reducing
basis over two years for a total of up to $4,500.

[759]    
Botox injections had been suggested by Drs. Robinson, Teal and Underwood
and the cost to age 60 was put at $30,000 or at $53,829 to age 75.

[760]    
The defendant conceded that ten cognitive behavioural sessions was not
sufficient given the overlapping health issues of chronic pain and depression
sustained by Ms. Forder.

[761]    
Dr. M. Anderson’s treatments were not only undocumented but also
seemed to be of little help. Dr. Anderson recommended at least 30 sessions,
and the defendant agreed with an allowance of appropriate CBT sessions in the
amount of $5,250.

[762]    
There were various concerns expressed by Dr. O’Shaughnessy and Dr. Wild
as to medications and that future care costs for continuing medication but
eventual reduction should take place.

[763]    
The defendant stated that in addition to home aids such as stools, an
adjustable table for crafts, long-handled garden utensils, yoga, kinesiology, physiotherapy
and occupational therapy, a few years of gym and pool passes were appropriate.

[764]    
The defendant submitted a range of $35,000 – $45,000 for future care
costs would be appropriate. (I note that on my own calculations the defendant’s
figures added up fairly quickly to $70,000 before consideration of medications
and other assistance and a figure of $100,000 would not appear inappropriate).

Special damages

[765]     The
defendant submitted that certain costs were not appropriate in the context of Ms. Forder’s
claims for personal injuries namely:

1.       $2,105
for exterior home services rendered by Mr. Austin Forder for
housecleaning, gutter cleaning, repair of a drainage pipe and removal of trees
as being matters that Ms. Forder could not have performed in any event;

2.       $600
of the claimed psychological treatments as not being treatments but related to
meetings with counsel or review of records;

3.       The
reasonableness of Dr. Ferri’s services following the November 8, 2011
report of Dr. Anderson who had recommended a referral to a psychologist
with experience in treating patients with chronic pain, cognitive pain and 30
sessions of CBT;

4.       $345.60 for MSP
premiums;

5.       $72.98 of the claimed
$145.95 for the Sun Run training clinic (2010);

6.       $147.75 for liver
health pills;

7.       $547 on June 4 and 8,
2013 to counsellor Ms. Penny Bojczuk;

8.       $498.50
being half of the $997 charged by Focus Chiropractic as being related to
pre-accident injuries;

9.       $819.90
for claimed dental expenses (there being no medical basis for the claim);

10.     $96
of the travel mileage relating to examinations for discovery Ms. Bojczuk’s
counselling and a car rental; and,

11.     $1,635.13 relating to
yard work.

[766]     In sum, the
defendant says the plaintiff’s claim of $41,876.41 should be reduced to
$28,813.

Discussion

General Damages

[767]     Ms. Forder
was 48 at the time of the accident. She had formed a new relationship, but her
children were still dependent. She was very active both at work and in her
other activities.

[768]     Her work
as a special education assistant was demanding, and she added respite work with
three children, a non-taxable form of income.

[769]     She
enjoyed camping, crafts, and gardening, all useful releases from the stresses
of her daily work.

[770]     In terms
of her pre-accident health, she had sustained some workplace injuries, two
requiring several months off work, and there was evidence of symptomatic degeneration
in the cervical spine. She was having difficulty reaching forward and was
taking painkilling medication. In the long term, these matters were going to
affect her future health and employment

[771]     I am
satisfied the motor vehicle accident caused her new injuries, in particular
ongoing and debilitating headaches, and it exacerbated her current complaints.

[772]     The
ongoing complaints of neck, shoulder, and low back pain have become chronic.

[773]     The
medical professionals debate whether there has been a mild traumatic brain
injury but whether it is that injury or a concussion, it is of a mild variety
and no longer in effect when Ms. Forder saw Dr. Underwood.

[774]     What has
been resolved is an unremitting headache causing a major depressive disorder of
the first two years post-accident, or as Ms. Forder put it, 18 months in bed.

[775]     The
evidence was that time was starting to heal, that some of the medications were
assisting in managing the headaches and muscle pain, and that Ms. Forder
was starting to take positive steps in terms of yoga classes and physiotherapy
that were also improving her daily life.

[776]     These
positive events in the year before the trial, particularly using the Butrans
patch, seemed to have relieved the worst of the headaches.

[777]     Mr. Omerod
mentioned going to a concert and having some dances.

[778]     Several of
the medical personal believe there is a basis for a multidisciplinary clinic
assessment that will provide further assistance.

[779]     Likewise
there is a 30-50% chance of improvement of her headache conditions with Botox
injections which appear to greatly assist muscle relaxation and reduced
headache pain.

[780]     And even
in the course of the trial Ms. Forder, who was initially nervous and ill
at ease, gave her evidence over several days, and in the later part, she seemed
a lot more comfortable; she comprehended the questions being asked and was well
able to deal with the questions of the cross-examining counsel as well as her
own counsel.

[781]     Many cases
were cited in the parties’ legal briefs, and I have drawn assistance from them,
but only two had headaches as a primary complaint. In Ms. Forder’s case it
has been her ongoing pain that has led to mood disturbances, depression,
lessened activity and deconditioning.

[782]     When I
take into account all of the factors listed in Stapley v. Haljet, 2006
BCCA 34, I award $100,000 for general damages.

Past Lost Earning Capacity

[783]     The
parties were not significantly apart on quantum. The difference being the
plaintiff’s premise of Ms. Forder’s last year of earnings in 2009 of
$37,774 while the defendant’s took a 2005-2009 average of $35,069 as a starting
point.

[784]     As well,
the plaintiff’s used a figure of $9,100 per annum of lost respite care income
while the defendant’s used a figure of between $3,400 and $6,000.

[785]     With
respect to past lost income, I agree with the plaintiff that the last year must
be used. Therefore, the figure is $128,577.

[786]     However,
on the respite care issue where Ms. Forder had taken on two additional
children in addition to her favourite Nikki, it is difficult to see how much
more additional work she could take on if she was to keep her life in balance.

[787]     The
defendant’s acknowledge $3,400 is a base and in rough terms three years, 21
weeks in time.

[788]     I use the
figure of $5,000 per year in lost respite care for a total of $17,000. In sum
the past loss is $145,577.

Future Loss of Earning Capacity

[789]     The
preponderance of the evidence is that Ms. Forder will not be able to return
to her work as a special education assistant.

[790]     She has
retained one respite child who is not demanding of her in terms of her physical
abilities.

[791]     The functional
capacity evaluation concluded she could work at a sedentary job, and the
vocational assessor indicated that opened potentially 950 jobs. However, the
issue of her ongoing headaches and how that would affect her employability is
not known.

[792]     While her
headaches are evidently diminishing, the graduated rehabilitation therapies and
multidisciplinary pain clinics to be taken over the next few years need to be successful
and the Botox injections need to be effective. Moreover, a suitable employer
and job needs to present itself. A suitable employer is one who could make
allowance for Ms. Forder’s periods of incapacity albeit they may be
reducing over time.

[793]     While the
defendant postulates a return to work in two years, they did so on the basis of
a future care assessment of something in the range of $50,000.

[794]     The
plaintiff sought approximately $300,000 for future income but did not make any
allowance for Ms. Forder being able to obtain sedentary employment.

[795]     Mr. Struthers
extrapolation of future earnings for Ms. Forder if she never worked again
was $447,336, and if I make an allowance for lost respite care (on my basis of
$5,000 per year) that is an approximate amount of $57,360 per year or lost
future earnings of $502,036.

[796]     However, Dr.’s
Wild, Anderson, Underwood and O’Shaughnessy all spoke favourably of utilizing a
multidisciplinary pain clinic to assist Ms. Forder resolving her anxiety
and depression over her chronic pain and headaches.

[797]     Dr.’s
Robinson, Underwood and Teal all spoke of the real potential of the Botox
injections assisting in treating the recurring headaches.

[798]     CBT is
also part of the treatment for depression and anxiety as recommended by Dr. Wild
and Dr. Anderson.

[799]     Ms. Berry
strongly supports the idea of active rehabilitation and would oversee such kinesiology.
She also recommends a gym and pool membership to assist Ms. Forder’s physical
recovery.

[800]     In my view,
the medical recommendations are all sensible.

[801]     Ms. Forder
was basically bed ridden for some 18 months. Equally, clearly as one sifts
through the reports and sees the improvement after 18 months and the plain need
for Ms. Forder to become more active but at the same time have appropriate
medical care without the worry of a lawsuit impinging on her life, there is in
my view a reasonable medical likelihood of Ms. Forder being capable of
sedentary employment. She has continued with one of her respite care clients.
It is not unreasonable to forecast that Ms. Forder, with her skills and
empathy for special needs children will be able in the long term to acquire
some more clients.

[802]     I note as
well that in her own assessment she is able to kneel, crouch, sit, stand,
climb, reach up, and reach overhead. Her arm and grip strengths are normal, which
is interesting given the impression one might have of Ms. Forder after
three years of virtual incapacity.

[803]     No medical
person noted any muscle wasting though Ms. Forder had put on some 30
pounds. As well there were in the pre-accident injury reports clear signs of
symptomatic neck disease that could come in to play in the long term.

[804]     When I
take into account these various factors and keep in mind it is not merely a
mathematical calculation but an assessment of future lost earning capacity for
the plaintiff who was age 50 at trial, the appropriate award is $325,000.

Future Cost of Care

[805]     I had some
difficulty with the defendant’s position when they were in agreement that there
was a need for a multidisciplinary pain clinic, ongoing home assistance, but
only for some two years, payment for Botox treatment even perhaps to age 75
($53,000), the need for cognitive behavioural treatment, and not the ten
sessions that were purportedly done with Dr. M. Anderson, but with 30
sessions recommended by Dr. S. Anderson ($5,250).

[806]     And given the
need for medication and psychological intervention for the major depressive
disorder based on Dr. O’Shaughnessy and Dr. Wild’s opinion, the
defendant’s suggestion of future cost of care be limited to $35,000 – $45,000
does not fall within their own parameters.

[807]     However, Ms. Berry’s
cost of care as extrapolated by Mr. Struthers, including taxes, comes out
to $302,937

[808]     In my
view, the pain clinic, the medications (reduced as plaintiff’s counsel
suggested for the Gabapentin to $5,540); psychological assessment; CBT; ongoing
psychological assistance; occupational therapy; physiotherapy; water therapy; allowance
for homemaking and pool/gym membership; Nordic poles; yoga, kinesiology; home
aids; and vocational assessment are all appropriate.

[809]     In the
long term, some of these modalities may prove useful, some may not, and I
conclude that $230,000 is an appropriate award.

Special Damages

[810]     Exhibit 16
listed the special damages claimed save for the items listed in exhibit 17.

[811]     Under
Exhibit 16 the amount of $40,214.28 was sought.

[812]     I am
disallowing the following:

1.       House bills, $2,115;

2.       $600
for costs charged unrelated to counselling;

3.       $2,500
from Dr. Ferri’s overall accounts given the concerns expressed by Dr. Stephen
Anderson about the need for CBT being necessary, but at the same time
recognizing that Ms. Forder both endorsed the relationship she had with Dr. Ferri
while at the same time questioning the overall therapeutic benefit;

4.       The
$547 costs of the counsellor who evidently rendered services in June of 2013
but was not mentioned by Dr. Luitingh or any other medical person as
providing services and appears to overlap with Dr. Ferri;

5.       Dental expense of
$819.90;

6.       Liver health pills
$147.75; and,

7.       A deduction of $96
from the mileage.

[813]     For a
total of $6,825.65. This leaves a net allowance for special damages in the
amount of $33,388.63.

[814]     I allow
the sum of $1635.13 for the yard work materials in Exhibit 17 for the raised
flower and garden beds as being an expense that would not have been incurred
save for the accident.

Summary of Awards

[815]     In the
sum, the plaintiff is awarded the following:

Costs

[816]     The
plaintiff is entitled to her costs, subject to any arguments that may be forth
coming.

Discount Rates

[817]     Mr. Dinsley
forwarded a revised report from Mr. Struthers based on the new discount
rates promulgated April 30, 2014, with resultant increases in the future lost
earning capacity and future cost of care calculations. I did not receive any
reply from defence counsel, but I do not close the argument at this time. The
awards reflect the old discount rates. If the parties are not in agreement as
to the applicable discount rates and the effect on the awards or other issues
arise, the parties can contact me through the Manager, Supreme Court Scheduling,
New Westminster.

Conclusion

[818]     I thank
counsel on both sides for their able presentations. If there are any
outstanding matters I will be available by contact through the Manager, Supreme
Court Scheduling, New Westminster.

“The
Honourable Mr. Justice Crawford”