IN THE SUPREME COURT OF BRITISH
COLUMBIA
Citation: | Valencia v. Gardner, |
| 2014 BCSC 2368 |
Date: 20141215
Docket: M075049
Registry:
Vancouver
Between:
Emiro Castillo
Valencia
Plaintiff
And
Gregory Stanley
Gardner, JW Auto Group Ltd.,
Gogic Goran dba Molson Painting, Molson Painting and Ramis Chatyi
Defendants
– and –
Docket: M083494
Registry:
Vancouver
Between:
Emiro Castillo Valencia
Plaintiff
And
Ashley Maureen
Cavanaugh
Defendant
– and –
Docket: M101744
Registry:
Vancouver
Between:
Emiro Castillo
Valencia
Plaintiff
And
Vickram Budhram
and M R Smith Limited
Defendants
Before:
The Honourable Mr. Justice Ehrcke
Reasons for Judgment
Acting on his own behalf: | E.C. Valencia |
Counsel for the Defendants Gregory Stanley Gardner, and JW | J.R. Walsh |
Counsel for the Defendants Gogic Goran dba Molson | J.W. Burgoyne |
Place and Date of Trial: | Vancouver, B.C. |
Place and Date of Judgment: | Vancouver, B.C. |
II. PLAINTIFFS
BACKGROUND PRIOR TO THE MOTOR VEHICLE ACCIDENTS
III. FIRST MOTOR VEHICLE
ACCIDENT – 5 SEPTEMBER 2006
IV. SECOND MOTOR VEHICLE
ACCIDENT – FEBRUARY 12, 2007
V. THIRD MOTOR VEHICLE
ACCIDENT – JULY 21, 2007
VI. FOURTH MOTOR VEHICLE
ACCIDENT – JUNE 6, 2008
VII. FIFTH MOTOR VEHICLE
ACCIDENT – DECEMBER 15, 2008
VIII. LAY WITNESSES FOR THE
PLAINTIFF
IX. THE MEDICAL AND
PROFESSIONAL EVIDENCE CALLED BY THE PLAINTIFF
X. OPINIONS AND FINDINGS
OF THE PLAINTIFFS MEDICAL CONSULTANTS.
XII. POSITION OF THE
PLAINTIFF
XIII. POSITION OF THE
DEFENDANTS
I.
INTRODUCTION
[1]
The plaintiff, Emiro Castillo Valencia, claims damages for injuries he
says were sustained in five different motor vehicle accidents between 2006 and
2008. The first three accidents are the subject of action VA M075049. The
fourth accident is the subject of action VA M083494. The fifth accident is the
subject of action VA M101744.
[2]
Pursuant to an order dated September 27, 2010, all three actions were
consolidated and heard together at one trial. The trial commenced before me on
October 14, 2014 and continued for thirteen days. The plaintiff was
unrepresented at trial, although he had previously had counsel.
[3]
Liability is admitted by the defendants in all five motor vehicle accidents.
At issue is the extent of injuries, causation and damages. The defendants take
the position that any damages that are awarded need not be apportioned by the
Court, and that any damage award may be made joint and several among the
defendants in the five motor vehicle accidents.
[4]
The defendants submit that the plaintiff has grossly exaggerated his
injuries, and that if he has any continuing disability or impediment to
employment, it is attributable not to the motor vehicle accidents, but rather
to pre-existing factors, including his limited education and language skills,
but more particularly, to work-place and degenerative injuries that caused him
to be off work prior to the time of any of the motor vehicle accidents.
II.
PLAINTIFFS BACKGROUND PRIOR TO THE MOTOR VEHICLE ACCIDENTS
[5]
The plaintiff was born March 18, 1967 in Buenaventura, Columbia and was
educated there to the equivalent of Grade 3. Spanish is his first language. He
has a deformity to his right hand which, as he told Dr. Levin during an
interview on June 25, 2013, occurred when he was attacked by some white men in
Columbia in 1983.
[6]
In 1993, he immigrated to Vancouver, British Columbia, and took a
six-month course in English as a Second Language. He also had training to be a
janitor and a carpenter.
[7]
In 1994, he moved to Montreal and tried to learn French, although he
found that more difficult than learning English. He worked part-time picking
fruit, but also obtained income assistance. For a time he worked in the textile
industry making leather jackets. He also worked in a factory in Montreal, and
he told Dr. Levin that he injured his right hand in an accident there. He
told Dr. Levin, I was bending steel and the machine grabbed me… A piece
of my finger was gone… They put it back but it became black and they cut it
out… He said he was off work for approximately two years following that
injury.
[8]
His earned income as set out on his T4 slips was under $2,000 for each
of the years he lived in Montreal, except for 2002 when it was $5,678, and 2004
when it was $4653.
[9]
In December 2004 he moved back to British Columbia and was employed full-time
as a rebar worker earning $18 per hour until April 17, 2006, when he stopped
working due to a workplace accident. His T4 income for 2005 was $34,522, and for
2006 it was $11,814.
[10]
The plaintiff made three Workers Compensation Board (WCB) claims in
relation to his work-place accidents while employed as a rebar worker. As
summarized in the February 29, 2012 Vocational Testing and Assessment Report of
Dr. Dean Powers, which the plaintiff tendered in evidence as Exhibit 15:
According to the records provided, Mr. Valencia had
three Workers Compensation Board (WCB) claims, the first from March 9, 2005
when a bar flipped and struck him in the neck/chin area. The second accident
occurred in September 27, 2005 when Mr. Valencia was carrying a bundle of
rebar when he slipped and fell on another bundle, falling backwards. The load
he was carrying fell on to his left shoulder/neck area (WCB records). The third
accident occurred on April 17, 2006 when Mr. Valencia was unloading rebar
off of a truck. A bundle got caught and struck Mr. Valencia in the right
side of the neck.
…
Mr. Valencia stopped working
in mid April 2006 due to unresolved left shoulder/neck, left wrist, and left
finger injuries. Mr. Valencia was on leave and receiving WCB payments at
the time of the first motor vehicle accident of September 5, 2006. Following
the accident, Mr. Valencia did not return to work as a Rebar Worker or in
any alternate paid or unpaid occupation. He began receiving Employment
Insurance (El) benefits on December 24, 2006. Mr. Valencia stopped
receiving WCB payments on January 2, 2007 (WorkSafe BC, records) and stopped
receiving El benefits on February 24, 2007 (Employment Insurance, records). He
was unemployed at the time of the following accidents of February 12, 2007,
July 21, 2007, June 6, 2008 and December 15, 2008. Mr. Valencia presently
remains unemployed and stated he receives $609.00 per month in income
assistance and $485.00 per month in disability benefits through the Canada
Pension Plan.
III.
FIRST MOTOR VEHICLE ACCIDENT – 5 SEPTEMBER 2006
[11]
The first motor vehicle accident occurred on September 5, 2006. The
plaintiff was driving his 2002 red Honda Civic on Kingsway in Burnaby, British
Columbia, going slowly in rush hour traffic. His wife was in the passenger seat.
As the plaintiff passed the traffic light at the intersection of Royal Oak
Avenue, he heard the bang of another car hitting the back of his car. The
driver of the other vehicle, Gregory Stanley Gardener, got out and called an
ambulance. The plaintiffs wife was taken to the hospital first, and then the
plaintiff.
[12]
It is admitted that the accident was caused by the negligence of the
defendant Gregory Stanley Gardener. The vehicle he was driving was owned
jointly by JW Auto Group Ltd.
[13]
The plaintiff was taken to Burnaby Hospital where, he said, they checked
him out and then sent him home. He testified that they called him the next day
and told him the images showed that there was soft-tissue injury to C1-C2 and
that the head slid to the right.
[14]
In fact, the radiologists report of the CT scan of his cervical spine
on September 6, 2006 said:
FINDINGS:
Vertebral body alignment is satisfactory throughout. Disc
spaces are maintained. There is no fracture nor other osseous abnormality. Neural
foramina are widely patent at all levels.
No evidence of acute injury.
[15]
The plaintiff testified that he had terrible pain in the back of his
head, and he could not rest his head on a pillow.
IV.
SECOND MOTOR VEHICLE ACCIDENT – FEBRUARY 12, 2007
[16]
The second motor vehicle accident occurred on February 12, 2007. The
plaintiff testified that he was driving on Kingsway and was stopped at the
intersection of Edmonds Street, waiting at the light to make a left turn. He
was fully stopped, when a vehicle hit the back of his car. The plaintiff
testified that it was only a little hit, not too hard. The driver of the other
vehicle, Gogic Goran, gave him his information, and the plaintiff went home. There
was no police attendance.
[17]
It is admitted that the accident was caused by the negligence of the
defendant Gogic Goran.
[18]
According to the plaintiff, this accident aggravated his neck injury,
because afterwards, the back of his head and neck hurt and he could not put his
head on a pillow. He called Dr. Lui the next day and explained the
accident to her. He made an appointment, and went to see her a few days later.
V.
THIRD MOTOR VEHICLE ACCIDENT – JULY 21, 2007
[19]
The third motor vehicle accident occurred on Saturday, July 21, 2007. While
driving his 2002 Honda Civic on that date, the plaintiff stopped at a red
traffic light near 8th Street or Canada Way and Royal Avenue in New Westminster.
The plaintiff testified that a woman was lying on the street in front of him. He
heard a bang when another vehicle hit the right rear of his car. That other
vehicle was unattended at the time, because its operator, Ramis Chatyi, had
gotten out of his vehicle to help the woman on the ground, who had been hit. Emergency
personnel arrived, and the woman was taken away in an ambulance. The plaintiff
drove himself home, although he had been asked if he wanted to go to hospital.
[20]
It is admitted that this accident was caused by the negligence of the
defendant Ramis Chatyi.
[21]
The plaintiff testified that the next morning, his neck was stiff and he
could not move his head. He said he had terrible pain in his mid-spine, neck,
upper and lower back. He said he had a terrible headache.
[22]
The next Monday, he called Dr. Lui to make an appointment. He saw
her later that week. He said she checked him out, sent him for an x-ray, and
referred him to a massage therapist. He said it was hard for him to walk, but
he tried nevertheless. He said that Dr. Lui sent him to a specialist who
ordered an MRI which, he said, showed disc damage and bulging at 3,4,5, and 6. He
said the doctor injected his neck and the back of his head, which gave him a
little relief at first, but it did not last. He said everything he did was
painful and he could not sleep. He said he was sent to a physiotherapist, but
the treadmill gave him terrible pain. He said he could not tilt his head from
side to side.
VI.
FOURTH MOTOR VEHICLE ACCIDENT – JUNE 6, 2008
[23]
The fourth motor vehicle accident occurred on June 6, 2008. The
plaintiff was driving his 2002 Honda Civic on Columbia Street in New
Westminster towards 6th Street, when a car driven by Ashley Maureen Cavanaugh
pulled out of a parking space and struck the right front corner of the
plaintiffs car. The plaintiff testified that it was not a hard impact, but it
still aggravated his injuries. He said he had headaches, earaches, blurred
vision, and his jaw bothered him. As he had originally planned, he drove to see
his son, and then drove home.
[24]
It is admitted that this accident was caused by the negligence of the
defendant Ashley Maureen Cavanaugh.
[25]
The next day, the plaintiff called his lawyer to tell him about this
fourth accident. He later called Dr. Lui, and then saw her about three
days after the accident. She gave him pills for inflammation. She sent him to
Columbia Hospital for an MRI, but the plaintiff testified that they could not
do the MRI because he could not remain still.
[26]
He testified that it was difficult for him to buy groceries because he
could not carry them. Dr. Lui told him that it was important for him to
keep active, even if it was painful, because otherwise, he would end up a
cripple.
VII.
FIFTH MOTOR VEHICLE ACCIDENT – DECEMBER 15, 2008
[27]
The fifth motor vehicle accident occurred on December 15, 2008. The
plaintiff had recently moved to Surrey at the beginning of December. He wanted
to find the Jehovahs Witness Kingdom Hall, and so he drove his 2002 Honda
Civic to 152nd Avenue and 84th Avenue. As he was driving back on 152nd Avenue,
near 104th Avenue, he pulled behind another car waiting to make a left turn,
and he put on his direction signal. Without warning, a vehicle driven by
Vickram Budhram and owned by M R Smith Limited collided with the right rear
corner of the plaintiffs car, causing it to move forward and to the side. The
plaintiff testified that his body twisted and his head struck the head rest. The
driver of the other vehicle asked him if he needed an ambulance, and he said
yes. His car was blocking traffic, so he moved it to a nearby gas station. An
ambulance arrived and took him to Surrey Memorial Hospital. They applied a neck
brace, which he found uncomfortable.
[28]
The plaintiff testified that he was in terrible pain. He said his head,
spine and ribs hurt on both the left and right side. At the hospital, they took
an x-ray or CT scan, and said they would send the report to Dr. Lui. At
some point, they had taken his neck brace off, and they sent him home.
[29]
The next day, he called his lawyer to tell him of this accident. At some
point, he discharged his lawyer because his lawyer told him that ICBC said he
should be working.
[30]
The plaintiff testified that he had a lot of pain in his neck, head and
ribs, and that it was difficult for him to walk. He said he had lost power in
the grip of his hands because of the pain.
[31]
The plaintiff testified that his next medical visit was in January 2009,
when he saw Dr. Lui. She examined him and gave him medicine for
inflammation.
[32]
He testified that his next medical visit was when he went to see Dr. Lui
in February 2009. He told her it was hard for him to do any activity. She
weighed him and said he had lost weight. She gave him bottles of liquid
nutrients. He told her that his ribs were bothering him. He asked her if she
had received the images from Surrey Memorial Hospital because he was still in a
lot of pain. He says she told him that she was still waiting for them. She
reminded him that he had another appointment that day with an eye doctor, for
his blurry vision.
[33]
He testified that after visiting the eye doctor, he went home and found
that he was bleeding from his penis. He said this went on for about five hours.
He said that he went to Surrey Memorial Hospital the next day and told them he
had experienced five hours of internal bleeding. They examined his penis and
did a CT scan. He said they told him his belly was okay, and that he should go
home and they would send the information to his doctor. He testified that after
three days he developed a little bump on his penis which bled when he squeezed
it. He said this eventually went away, and he has had no problems of that sort
since.
[34]
Records from Surrey Memorial Hospital (Exhibit 19) show that he did not
attend hospital in February for this issue. There is a hospital report from
April 20, 2009 which states that he was there on that date because of blood in
urine. The second page of that report, under the heading History of the Chief
Complaint states: Rectal bleeding March 15. The plaintiff takes the position
that these records are wrong.
[35]
The plaintiff testified that his ribs continued to bother him, and he
arranged for a friend to pick up food for him every two weeks.
[36]
He said that sometime after February 2009, he told Dr. Lui that he
had no money to eat or to pay the rent, and she helped him apply for Canada
Pension Plan (CPP) disability benefits. He said that prior to this, he had
Provincial disability benefits.
[37]
He said that his initial application for CPP benefits was turned down,
but he appealed, and further information was sent to them, and as a result, he
was granted CPP disability benefits.
[38]
The records from Canada Pension Plan (Exhibit 13) show that the
plaintiff did apply for CPP disability benefits, and that initial application
was dismissed on March 19, 2009. That decision stated:
Dr. Lui, family physician, February 2009 reported Mr. Castillo
Valencia diagnosis as soft tissue injuries due to five MVA from 2005-2008. The
Physician reported Mr. Castillo Valencia, is limited with neck and back
pain but noted he has full range of motion of his neck and back and indicated a
guarded prognosis.
MRI cervical neck, August 21, 2007 demonstrated a mild bulge
with annular tear noted at C3-4 & C5-6 with no significant spinal stenosis.
While recognizing Mr. Castillo
Valencias neck and back pain, with indicated functional limitations, he has
full range of motion of his neck and back, therefore the objective medical
evidence on file does not support a severe and prolonged disability as per the
CPP at his LPDOO.
[39]
The plaintiff requested a reconsideration, and additional information
was submitted. In a reconsideration decision dated May 21, 2010, the plaintiff
was granted a CPP disability pension, not on the basis of his physical
condition, but rather because of his delusional disorder. That decision read,
in part:
Office visit notes obtained for 2009 show many visits for his
pain and his belief of being fully disabled and remains in litigation. There is
not the medical evidence to support a severe and prolonged condition with his
soft tissue injuries. However, it is clear in the notes that the client is
delusional and paranoid. He refused to seek help as there was nothing mentally
wrong with him. He did not want to discuss his vision of the angels as he
thinks people will think he is crazy but it is religious in his mind. In a
phone counselling session, mental health stated he is too sick to have
counseling and is completely paranoid. He has had public trustee involved in
his finances though the client feels he does not need it) which shows a lack of
functioning.
His psychiatrist stated in a June 2009 report that he has a
delusional disorder and Seroquel was recommended. The client stopped this
medication. He clearly does not have insight into his illness. This supports a severe
and prolonged condition. Though his LPDOO is December 2007, we have clear
evidence of this condition all of 2009. It is reasonable to assume from these
notes that his paranoid delusions are not a new occurrence and most likely
affected him prior to his LPDOO.
Part of delusional disorder is
somatic in nature which may explain his overwhelming belief of being totally
disabled since 2006. Also with the combination of conditions as his work
experience and education it is reasonable to say he meets the CPP criteria of
severe and prolonged prior to his LPDOO of December 2007. Conclusion: Severe
and Prolonged met at LPDOO.
[40]
The plaintiff was not working at the time of any of the motor vehicle
accidents, and he still is not working now. He has not worked since April 2006.
He lives on his disability payments.
[41]
He says that presently, his ribs do not bother him like they used to,
but his neck, head, collar bone, middle of spine and low back bother him a lot
when he walks. He said he does not have good balance. He says he does not take
medication when he is at home, but he does take medication for pain and
inflammation when he goes out.
VIII.
LAY WITNESSES FOR THE PLAINTIFF
[42]
The plaintiff called his uncle, Jairo Valencia, to testify. He said that
he has been helping the plaintiff with grocery shopping since 2010, because the
plaintiff cannot carry anything.
[43]
Omar Sinisterra is a friend of the plaintiff. He testified that he
helped him with food shopping in 2010.
[44]
Victor Arias-Mina is another friend of the plaintiff. He testified that
he helped him with shopping in 2009.
IX.
THE MEDICAL AND PROFESSIONAL EVIDENCE CALLED BY THE PLAINTIFF
[45]
In addition to the lay witnesses mentioned above, the plaintiff called
the following expert witnesses to testify at trial:
Dr. Kljajic,
the plaintiffs family doctor in 2006;
Dr. Dhawan,
a specialist in physical rehabilitation;
Dr. Sridhar,
the plaintiffs family physician since May 31, 2013;
Dr. Powers,
an expert in vocational assessment and rehabilitation;
Dr. Wade,
a psychologist and nurse;
Mary Carman,
an occupational therapist; and
Paul Pakulak, an occupational therapist,
who testified as lay witness.
[46]
In addition, the following reports and documents were entered as
exhibits during the case for the plaintiff:
Exhibit 4: A one-page signed
statement of the plaintiff dated June 24, 2008, concerning the fourth
motor-vehicle accident;
Exhibit 5: Workers Compensation
Board/WorkSafe BC Records;
Exhibit 6: Reports dated July
17 and 18, 2014 by Christiane Clark of Associated Economic Consultants on
Present Value Calculations of Costs of Future Care and Estimates of Earnings
and Non-Wage Benefits;
Exhibit 7: Expert Psychological
Report of Dr. Wade dated August 27, 2012;
Exhibit 8: Clinical Records of Dr. Kljajic
from April17, 2006 to January 19, 2007;
Exhibit 9: Expert Reports of Dr. Kljajic
dated November 10, 2007 and December 18, 2007;
Exhibit 10: Clinical Records of
Dr. Sridhar;
Exhibit 11: One-page Report of Dr. Sridhar
dated April 23, 2014;
Exhibit 12: Expert Reports of Dr. Dhawan
dated May 28, 2007; September 17, 2007; March 17, 2008; June 16, 2008; and
January 8, 2010;
Exhibit 13: Canada Pension Plan
Records;
Exhibit 14: Handwritten Note
of Dr. Jay Martens dated February 20, 2007;
Exhibit 15: Vocational Testing
and Assessment Report of Dr. Powers dated February 29, 2012;
Exhibit 16: Cost of Future Care
Analysis by Mary Carman dated July 11, 2014.
[47]
It should be noted that reports of Dr. Charline Lui were not
entered as exhibits, as the content of her reports was contested, and she was
not produced for cross-examination. Although the plaintiff had subpoenaed other
of his expert witnesses, he did not subpoena Dr. Lui, and she did not
attend the trial.
[48]
As well, the plaintiff chose not to tender in evidence the reports of Dr. G.H.
Hirsch that had been commissioned by the plaintiffs former counsel.
[49]
The defendants called the following witnesses to testify at trial:
Dr. Kokan,
an expert in orthopedics and the diagnosis of musculoskeletal complaints;
Dr. Schweigel,
an expert in orthopedics and the diagnosis and treatment of musculoskeletal
injuries;
Donna
Carlson, the health records custodian for Surrey Memorial Hospital;
Samantha
Gallagher, an expert in vocational rehabilitation counselling; and
Dr. Levin, a psychiatrist
and medical doctor.
[50]
In addition, the following reports and documents were entered as
exhibits during the case for the defendants:
Exhibit 17:
Curriculum Vitae of Dr. Kokan;
Exhibit 18:
Expert Report of Dr. Kokan dated June 30, 2014;
Exhibit 19:
Records of Surrey Memorial Hospital;
Exhibit 20:
Surrey Memorial Hospital Proof of Stay;
Exhibit 21:
Expert Reports of Dr. Schweigel dated July 11, 2007 and December 11, 2007;
Exhibit 22:
Vocational Rehabilitation Assessment Report of Samantha Gallagher dated August
29, 2014;
Exhibit 23:
Curriculum Vitae of Dr. Levin;
Exhibit 24: Expert Psychiatric
report of Dr. Levin dated July 9, 2013.
[51]
The report of Dr. H.E.P. Hawk, which was prepared for the
defendants, was not admitted in evidence, as the defendants could not produce Dr. Hawk
for cross-examination.
X.
OPINIONS AND FINDINGS OF THE PLAINTIFFS MEDICAL CONSULTANTS
[52]
A large volume of clinical records and medical consultation reports were
put before the Court. Although I have considered all of the exhibits and all of
the testimony, it is not necessary in these reasons to mention every page of
the documentation. The most important evidence is highlighted below.
1.
Dr. Kljajic
[53]
Dr. Kljajic was the plaintiffs family physician at the time of his
workplace accidents. The plaintiff came to his office and was seen by a locum
on April 17, 2006. At that time he was complaining of left-side neck injury. He
said that he had two injuries to his left neck a year earlier and in October
2005, when a metal bar hit his left neck. He said his pain radiated from his
left neck to his left arm and that he was unable to extend two middle fingers. He
was complaining that he was unable to work, and he localized his complaints
around his left neck side, his left shoulder, and his left arm, with inability
to extend his 3rd and 5th finger. He was sent to Keary Physiotherapy in May
2006, and he also had a neurological examination by a neurologist, Dr. Grosh,
on May 25, 2006, who performed electromyography and found no signs of ulnar or
radial nerve damage, but mild asymptomatic carpal tunnel syndrome. Dr. Kljajic
saw the plaintiff in June and August 2006 when he was complaining of the same
problem with no new developments. A CT scan was done on July 22, 2006 with
marginal spur without loss of height at C4-5, C5-6 and C6-7; No disc
herniation demonstrated.
[54]
The first motor vehicle accident occurred on September 5, 2006, and the
plaintiff first reported this to Dr. Kljajic two weeks later, on September
18, 2006. He was complaining of worsening neck and shoulder pain, but said that
his left fingers extension had improved. His gait was unremarkable, his neck
range of motion was unchanged, and his left shoulder range of motion was
somewhat slower, but other findings were unremarkable.
[55]
The plaintiff came to Dr. Kljajics office on October 19, 2006 and
informed him that the Workers Compensation Board suggested a gradual return to
work.
[56]
Dr. Kljajic received a report November 1, 2006 from the plaintiffs
chiropractor, Dr. Sandhu, who suggested that something might have been
missed by the radiologist who read the x-rays at the hospital. Dr. Sandhu
wrote:
The patients X-ray findings suggest significant trauma. I
believe the radiologist who read his X-rays at the hospital missed a T1
fracture of the tip of the transverse process. In addition, he has a
significant loss of cervical lordosis most likely due to severe whiplash. More
importantly, Mr. Valencia has a major subluxation of the C1/C2 complex
which I believe may be causing the severe headaches and earaches.
According to the surface electromyogram scan which I have
attached, Mr. Valencias upper cervical subluxation shows up as a very
high muscle tension at C2. In addition, the scan shows moderate muscle tension
throughout the cervical spine and moderate to high tension in the thoracolumbar
area.
According to my findings, my
diagnosis is an acute cervicothoracic sprain/strain associated with an avulsion
fracture of the tip of the first thoracic vertebral transverse process on the
left complicated by a loss of cervical lordosis and a subluxation of the C1/C2
process.
[57]
Dr. Kljajic saw the plaintiff again November 20, 2006, and in
December 2006, January 2007 and February 2007.
[58]
In the meantime, he received an Addendum Report dated November 30, 2006,
regarding the September 6, 2006 cervical spine CT scan that had been questioned
by Dr. Sandhu. Despite Dr. Sandhus comments, the radiologist
confirmed the accuracy of the original findings. He wrote:
FINDINGS:
The cervical vertebrae appear intact. Specifically, no T1
spinous process fracture is seen. There is some straightening of the normal
cervical lordosis on the cervical spine radiography from September 5, 2006 and
the CT cervical spine from September 6, 2006 which may be positional or
muscular in origin. Alignment is otherwise normally maintained and the normal
cervical vertebrae are otherwise intact and in normal alignment with normally
maintained intervertebral disc space heights and foramina. No prevertebral soft
tissue swelling is seen. No ligamentous instability is demonstrated on flexion
or extension. The predental space and dens-basion relationship are normally
maintained.
IMPRESSION:
No acute fracture or dislocation
of the cervical spine is identified on any of the reviewed images. The craniocervical
and atlantoaxial relationships are unchanged when the MR from July 22, 2006 and
the radiograph from April 25, 2006 are compared with the more recent CT from
September 6, 2006 and radiograph from November 21, 2006. No ligamentous
instability is demonstrated on flexion or extension.
[59]
The plaintiff was seen in Dr. Kljajics office more than 40 times
over a period of two years. His last visits were in March 2007. On March 1,
2007, the plaintiff told Dr. Kljajic that he had had another motor vehicle
accident on February 12, 2007. At this time the plaintiff complained of
terrible neck pain, but Dr. Kljajic noted that while explaining me his
complaints his neck, shoulder and both arms range of motion did not appear to
be altered. The plaintiff informed Dr. Kljajic that he was now seeing a
different family physician, Dr. Lui. (As previously noted, the plaintiff
did not subpoena Dr. Lui, and she did not give evidence at this trial.)
[60]
Dr. Kljajic provided two medical-legal reports, which together were
entered as Exhibit 9. In the first report, dated November 10, 2007, he wrote
that the plaintiff suffered soft tissue injuries from the first two motor
vehicle accidents which in his view were temporary in nature. In his second
report dated December 18, 2007, he noted that a neck MRI done on August 21,
2007 indicated a mild Central broad based bulge with annular tear is noted at
C3-4 and C5-6 level with no significant spinal canal or neural foramina
stenosis (narrowing). He said:
Based on this finding it is
likely that Mr. Valencia would have been able to return to his work
earlier had that MVA not occurred. The question: How much earlier? is hard to
answer but I believe most likely within next 2-3 months, probably before the
end of 2006.
2.
Dr. Dhawan
[61]
Dr. Dhawan is a specialist in physical rehabilitation, who saw the
plaintiff 8-10 times on referral from Dr. Lui. The first visit was on May
28, 2007, at which time he injected the C2 to C5 facets with Depo-Medrol and
Lidocaine. In his report of that date, Dr. Dhawan wrote:
Impression: This man has suffered
soft tissue injuries to his upper cervical facet joints with secondary
myofascial pain and lumbar facet joint injury without any discogenic neurologic
injury. It is not clear whether he has any C1-2 subluxation or instability. The
CT did not show it. Flexion-extension views were not impressive. There was
slight widening on the x-ray at C1-2. I have ordered a MRI at VGH to see if it
will clarify the issue.
[62]
Dr. Dhawan saw the plaintiff in follow-up on September 17, 2007,
and gave him injections at the C2 to C5 facets. He wrote in his report of that
date:
I have advised him to stay
active; even though after a block or two he has to sit down, I have encouraged
him to keep walking every day and hopefully with rehab he will improve further.
[63]
On March 17, 2008 Dr. Dhawan noted that the cervical MRI only
shows a small annular tear at C3-4 and C5-6 without disc herniation and there
was no neural canal or spinal canal forminal compromise. He again advised the
plaintiff to exercise even if it hurts and go back to work. He wrote, I
certainly emphasized as hard as I can the pain vs harm paradigm and he should
be returning to function.
[64]
Dr. Dhawan saw him again on June 16, 2008, at which time he told
him that he was not disabled and could function fully despite pain. In his
report of that date he wrote that the plaintiff walked in with a very big
peculiar non-organic gait.
[65]
The plaintiff was seen again by Dr. Dhawan in consultation on
January 8, 2010. He was again showing nonorganic gait throughout, not
conforming to any neurological syndrome. He performed a full neurological
examination, and all was normal. Dr. Dhawan wrote:
He was fixated on the idea that
he is completely disabled. He feels that his spine has been damaged severely. He
also was very angry that he has been tortured by the system and his
caregivers not providing him proper and full care. He called Canada a
dictatorship and felt that he has been tortured here and he would like to go
to U.S.
[66]
Under the heading, Physical Examination, Dr. Dhawan wrote:
He was histrionic, litigious, and quite paranoid of the
system. He had a nonorganic gait. He was able to walk in a straight line in a
tandem fashion without losing balance. He was able to stand with feet together,
eyes closed without losing balance. He had normal cranial nerves. Peripheral
reflexes, strength and sensation were normal. He had a normal cerebellar exam. There
were no upper motoneuron findings, or long tract signs. He did not have
increased tone in lower limbs. He had normal cervical, thoracic and lumbar
range of motion. He had nontender cervical, thoracic and lumbar range of motion.
No muscles visible or palpable muscle spasm, or any tenderness over facet,
interspinous ligaments.
His examination, basically, was
normal from neurological and musculoskeletal standpoint with nonorganic
features.
[67]
Under the heading, Impression, Dr. Dhawan wrote:
I did not find any neurological
or musculoskeletal impairments. His imaging studies are also inconclusive. There
are many features to his presentation, which suggest psychological basis and
extreme fixation on his own disability. His subjective sense of disability far
exceeds objective findings and has done so over the years. I would strongly
suggest another psychiatric opinion, as well as a neurological opinion, given
the MRI findings of the spinal cord and a yearly MRI would be recommended of
his spinal cord to see any progression of hydromyelia, which is unlikely. Consistent
with my previous opinion, he should be encouraged to be fully functional. I
would not recommend an ambulatory aid like a wheelchair or a power scooter for
him, which will create greater dependence and greater sense of disability and
more deconditioning. I do not see any contraindication in him for remaining
fully functioning and activities of daily living, recreationally or
vocationally.
3.
Dr. Sridhar
[68]
The plaintiff called Dr. Sridhar to testify on his behalf, and his
one-page report dated April 23, 2014 was tendered as an exhibit. The defendants
objected to the admission of this evidence because the report did not comply
with the requirements of Rule 11-6. I ruled that the evidence could be
admitted, subject to the possibility that it might be accorded little or no
weight.
[69]
In his report, Dr. Sridhar stated that the plaintiffs injuries
are most likely the result of the multiple motor vehicle accidents. He
expressed the opinion that the plaintiff would have a great deal of difficulty
working with these sustained injuries, and he recommended a full program of
rehabilitation.
[70]
I have concluded that I can put virtually no weight on Dr. Sridhars
opinions, as he admitted in cross-examination that in preparing his report, he
did not have a copy of Dr. Luis clinical file, he was unaware of Dr. Dhawans
and of Dr. Kljajics reports, he made no inquiries and had no knowledge of
whether the plaintiff had other previous injuries prior to the motor vehicle
accidents, and he did not conduct any physical examination of the plaintiff on
either of his first two visits. Dr. Sridhar admitted in cross-examination
that he really knew very little about the plaintiff other than what the
plaintiff himself told him.
4.
Dr. Powers
[71]
Dr. Powers, an expert in vocational assessment and rehabilitation,
saw the plaintiff in February 2012. Based on his testing, he found the
plaintiff to be significantly below average in math, spelling, reading and
writing. His vocabulary was at a Grade 5 level. He found the plaintiffs grasp
of the English language to be very limited. These factors could be barriers to
employment. He found that the plaintiff had become deconditioned because he is
not exercising, and improvement in this area would contribute to his vocational
success.
[72]
Dr. Powers wrote in his report (Exhibit 15), that the plaintiff is
not employable as a rebar worker either on a full-time or part-time basis, and
that alternative employment options have been narrowed considerably as a
result of the injuries sustained from the several motor vehicle accidents. In
his opinion, he is now likely relegated to entry level part-time work at light
duties and likely in the minimum wage range.
[73]
In cross-examination, Dr. Powers admitted that he is not qualified
as a medical doctor, has not seen any of the medical evidence since May 2011,
and agreed that updated medical evidence might change his opinion.
5.
Dr. Wade
[74]
A registered psychologist, Dr. Wade, who saw the plaintiff three
times in 2012, was called by the plaintiff to give evidence. His report dated
August 27, 2012, was marked as Exhibit 7.
[75]
In his opinion, the plaintiff has pain disorder, meaning that his
experience of pain is out of proportion to any physical disorder. He thought
the plaintiff was at risk of depression, although the plaintiff told him he was
not depressed. He said the plaintiff had delusions that were probably caused by
the motor vehicle accidents, but he agreed in cross-examination that that was
speculative, because he did not know whether the plaintiff had any delusions
before the accidents. He recommended that the plaintiff should receive
psychological intervention and get help from a multi-disciplinary pain clinic.
[76]
I find that I can place very limited weight on Dr. Wades opinions.
There seems to be no real basis for a conclusion that the plaintiff is at risk
of depression. Dr. Wades opinion that the plaintiff suffers from pain disorder
seems to be based simply on the fact that he reports pain for which there is no
apparent medical or physical cause, but he did not explain why there could not
be another explanation, such as malingering. Indeed, Dr. Wade agreed in
cross-examination that it is possible that there is nothing physically wrong
with the plaintiff and that he could work, but is manipulating the system for
financial gain.
[77]
As to the cause of delusions, Dr. Wade apparently was unaware that
the plaintiff testified that he first started seeing angels in the 1990s when
he was living in Montreal. Dr. Wade agreed that if the angels were not
experienced simply as a dream, then it was clearly delusional. He agreed in
cross-examination that it is speculative to say that the plaintiffs delusions
were caused by the motor vehicle accidents.
6.
Paul Pakulak
[78]
The plaintiff called Paul Pakulak, an occupational therapist at
Harbourview Rehabilitation. He saw the plaintiff on March 5, 2012 and conducted
a musculoskeletal examination for range of motion, strength, movement patterns,
and speed and fluidity of movement. He also conducted distraction-based tests
for consistency and reliability. He said that the plaintiff completed most of
the range of motion tests, but he declined to complete portions of the
musculoskeletal examination because he complained of his symptoms. Thus, he did
not complete a treadmill walk, lower extremity strength testing, and a portion
of the upper extremity strength testing. Mr. Pakulak testified that the
tests showed inconsistencies in performance, and less than maximal effort on
the plaintiffs part. The tests were therefore discontinued, because a
consistent high level of effort is needed for a valid test.
7.
Mary Carman
[79]
The plaintiff called Mary Carman, an occupational therapist, to testify.
He also tendered a Cost of Future Care Analysis that she prepared on behalf of
the plaintiff. That report was marked as Exhibit 16.
[80]
The Facts and Assumptions section of Ms. Carmans report contains
a summary of her understanding of the events and medical consultations of the
plaintiff, based on the materials that had been supplied to her by the
plaintiffs counsel at the time:
4. Mr. Valencia had a history of several
injuries related to WCB claims prior to the first motor vehicle accident in
2006. These included being hit in the neck/chin with rebar on March 9, 2005, a
slip and fall on September 27, 2005 which resulted in his left shoulder and
neck being hit with a piece of rebar, and being hit on the right side of his
neck with some rebar on April 17, 2006. As a result of these injuries, Mr. Valencia
had complaints of headaches, jaw pain, right sided neck pain, left neck pain,
and left middle and ring finger pain and he had been off work on disability
since April 2006 (Dr. Powers, February 29, 2012; Dr. Lui, February
28, 2007).
5. In May 2006, Mr. Valencia was attending
physiotherapy funded by WCB for complaints of difficulty extending his left 3rd
and 4th fingers and neck pain. Dr. Grosh, neurologist, questioned a left
C6 radiculopathy. EMG studies were normal for ulnar or radial nerve damage, but
suggestive of mild carpal tunnel syndrome. A neck MRI showed marginal spurring
in the lower cervical vertebrae, but no disc herniation (Dr. Kljajic,
November 10, 2007).
6. In the first motor vehicle accident on September
5, 2006, Mr. Valencia experienced complaints of pain in his neck, upper
and mid back, dizziness, and headaches. He was diagnosed with soft tissue
injuries to his neck and shoulder and possible brachial nerve plexus
compression injury in addition to his previous problems of tendonitis in his
hand and mild left hand carpal tunnel syndrome (Dr. Kljajic, November 10,
2007).
7. Mr. Valencia attended physiotherapy from
September to October 2006 for treatment for his WCB-related claim from April
2006. He then progressed to a work hardening program. He was discharged from
the work hardening program in November 2006 as not fit to return to work. Mr. Valencia
also participated in chiropractic treatment from October 2006 to January 2007.
8. Mr. Valencia saw Dr. Macdonald, plastic
surgeon in February and March 2007 who found a small nodule on his dorsal
tendon on his left hand which she felt was contributing to his difficulties
with trigger finger. She injected it with Kenalog and lidocaine which appeared
to resolve this problem (Dr. Kljajic, November 10, 2007).
9. Mr. Valencia was involved in a second motor
vehicle accident on February 12, 2007. This resulted in aggravation of the pain
in his neck, left shoulder and left arm and also resulted in back sprain (Dr. Kljajic,
November 10, 2007).
10. In May 2007, Dr. Dhawan, physiatrist,
diagnosed Mr. Valencia with soft tissue injuries to the upper cervical
facet joints with secondary myofascial pain and lumbar facet joint injury. He
recommended treatment with facet joint injections and amitriptyline (Dr. Lui,
April 20, 2012).
11. Mr. Valencia initiated a rehabilitation
program at Karp Rehabilitation in June 2007. He reported increased symptoms
with the exercise program.
12. He was involved in a third motor vehicle accident
on July 21, 2007 and had to discontinue his rehabilitation program. This third
accident resulted in complaints of heaviness on the right side of his face,
decreased neck mobility, and bruising/tenderness of the left shoulder. He was
diagnosed with muscle spasms of the neck, upper, mid and lower back, and
contusion of the left shoulder (Dr. Lui, April 20, 2012).
13. Following this accident, Mr. Valencia
continued to complain of neck and upper back pain, especially with walking or
activity, leg weakness, and decreased short term memory.
14. In September 2007, his family doctor noted that Mr. Valencia
was experiencing mild paranoid ideation and he spoke of angels (Dr. Lui,
April 20, 2012).
15. Dr. Dhawan treated Mr. Valencia in
September 2007 with injections of steroids and lidocaine to the facet joints
between C2 and C6 and in his trapezius muscles. He was prescribed nortriptyline
instead of amitriptyline. His symptoms waxed and waned over the next 7 months (Dr. Lui,
April 20, 2012).
16. An MRI of his spine in August 2007 showed a mild
central broad based bulge with annular tear at C3-4 and C5-6 (Dr. Kljajic,
December 18, 2007), but a subsequent MRI in May 2008 did not show a tear or
definite disc herniation (Dr. Lui, April 20, 2012). An MRI performed in
November 2009 showed mild disc bulging at C5-6, fluid in the spinal canal at
T3-5 and T6, and small non-specific lesions in the deep white matter of the
left frontal lobe which was felt to be non-diagnostic (Dr. Dhawan, January
8, 2010). An MRI in February 2011 also showed minor hydromyelia at T3-5 and T6
(widening of the central canal of the spinal cord) and minimal degenerative
disc disease at C5-6 (Dr. Lui, April 20, 2012).
17. Mr. Valencia participated in an active
exercise program from September 2007 to March 2008. In September, he was noted
to demonstrate mild paranoia. By February 2008, he was demonstrating irrational
behaviour and made threatening or abusive comments to rehabilitation staff.
Thus, he was discharged for inappropriate behaviours and noncompliance (Dr. Lui,
April 20, 2012).
18. Mr. Valencia was subsequently referred to
mental health services. He was reportedly religiously focussed and
demonstrated borderline delusional speech but no obvious psychotic symptoms. He
denied symptoms and refused treatment (Dr. Lui, April 20, 2012).
19. Mr. Valencia was involved in the fourth motor
vehicle accident as a passenger on June 6, 2008. He complained of pain in his
right ear, neck, and upper back. He was diagnosed with neck sprain and
conservative treatment was recommended, including medication, stretches, heat,
and attention to good posture.
20. The fifth motor vehicle accident occurred on
December 15, 2008. Mr. Valencia complained of pain in his head, neck, and
back as well as altered vision. He was reportedly anxious about a conspiracy
against him because of the number of accidents he had been involved in. His
family doctor diagnosed him with soft tissue injuries to his neck and back
which exacerbated his previous injuries, headache secondary to tension/muscle
spasm of his neck, and anxiety and paranoid ideation (Dr. Lui, April 20,
2012).
21. An ophthalmology consultation in February 2009
indicated that there was no evidence of traumatic ocular pathology related to
his motor vehicle accident (Dr. Lui, April 20, 2012).
22. Mr. Valencia was assessed by a psychiatrist
in June 2009. Dr. Hyrman of Surrey Mental Health diagnosed him with
delusional disorder. He was also assessed by the RCMP Mobile Crisis Response
Unit on June 22, 2009. He was assessed as not being a threat to himself or to
the public.
23. In September 2009, Mr. Valencias claim for disability
benefits was accepted.
24. In March or April 2010,
Mr. Valencia agreed to try Seroquel for managing his emotional symptoms.
However, he did not continue with this medication.
[81]
As can be seen, many of Ms. Carmans assumptions are based on
reports of Dr. Lui. For the reasons explained above, Dr. Lui did not
testify at this trial, and her reports have not been entered in evidence.
[82]
Ms. Carman wrote that as of the date of her assessment, June 17,
2014, the plaintiff reported symptoms of pain at the back of his head, neck,
and back, as well as occasional pain throughout the right side of his body.
[83]
With respect to her own observations, she noted that the plaintiff was
somewhat guarded and he limited his performance on some aspects of testing.
She said he occasionally staggered and lurched to one side while standing, but
this appeared to occur randomly rather than in response to some physical demand.
She said he declined to participate in strength testing. She noted that the
medical reports indicate no neurological or musculoskeletal injuries other than
soft tissue strains and associated myofascial pain, and that the plaintiffs
perception of disability was greater than the objective findings.
[84]
Ms. Carman gave estimated costs for a number of possibilities for
future care, including psychological counselling, referral to an
interdisciplinary pain management program, occupational therapy, an exercise
program, vocational counselling, and provision of a motorized scooter. She
noted that there was no opinion from a physician about any medications needed
in the future.
8.
Christiane Clark
[85]
Christiane Clark, an economist with Associated Economic Consultants
Ltd., was not called as a witness, but the reports she prepared on July 17 and
July 18, 2014 on Present Value Calculations of Costs of Future Care and
Estimates of Earnings and Non-Wage Benefits were admitted in evidence as
Exhibit 6.
XI.
THE DEFENDANTS WITNESSES
1.
Samantha Gallagher
[86]
The defendants called Samantha Gallagher, an expert in vocational
rehabilitation counselling and filed her report as Exhibit 22. In that report,
she provided her reasons for disagreeing with the conclusions of Dr. Powers.
2.
Donna Carlson
[87]
Donna Carlson is the health records technician who introduced the
certified records of Surrey Memorial Hospital.
3.
Dr. Schweigel
[88]
Dr. Schweigel is a medical doctor with a specialty in orthopedics. He
performed an independent medical examination of the plaintiff on July 11, 2007.
His findings are set out in two reports, dated July 11, 2007 and December 11,
2007, which have been marked as Exhibit 21.
[89]
Dr. Schweigel found little objective evidence to support the
plaintiffs subjective complaints. His physical examination of the plaintiff’s
cervical, thoracic and lumbar spine was normal. Upon reviewing the clinical
records, he concluded that the first motor vehicle accident caused a
"minor, temporary aggravation of a chronic neck problem that predated the
MVA of September 5, 2006 and was related to a WCB injury." He noted that
as early as September 19, 2006, the plaintiff’s physical abnormalities were
very sparse and that he exhibited full range of motion of the neck and back
with an extremely minor degree of muscle spasm. As well, the plaintiff did not
exhibit the usual hallmarks of moderate to severe soft tissue injury, such as
moderate to severe spasm, loss of motion, and deformity, and he did not require
narcotic medication.
[90]
Dr. Schweigel reviewed a further MRI, done on August 21, 2007, and
stated in his medical-legal report dated December 11, 2007 (Exhibit 21) that it
did not change his original opinion. On cross-examination by the plaintiff, he
said that the findings were not related to the first accident, because there
were no significant findings on examinations done by the practitioners who
treated him and that the findings were consistent with degeneration. On that
point, Dr. Schweigel stated that the plaintiff’s pre-accident MRI of July
22, 2006 showed a spur on his cervical spine, which represents arthritis. He
added that it is an abnormal growth that should not be there and is causing the
plaintiff’s neck pain. Dr. Schweigel also testified that there was no
inconsistency between the April 25, 2006 x-ray report, which was reported as
normal, and the November 21, 2006, x-ray report.
[91]
Dr. Schweigel observed that the plaintiffs gait was normal, and
that the Trendelenburg test was negative, suggesting no weakness of the hip
muscles. The lordosis and curvature were normal, with no spasm, deformity or
tenderness.
[92]
Dr. Schweigel commented on the plaintiffs multiple non-organic
findings. He wrote:
At the whole history he was
always talking about pain, pain, pain, He was rubbing his neck and back all
the time. He had decreased neck motion, but when distracted had normal motion. He
had marked tenderness of the neck, but when distracted and more pressure was
put on the same areas, there was no tenderness.
[93]
During his oral testimony, Dr. Schweigel expanded on this. He said
that the plaintiff complained of marked tenderness on his initial examination,
and he even jumped, but he made no complaint when Dr. Schweigel put a
great deal of pressure on the same area during an exam of the plaintiff’s neck.
[94]
Dr. Schweigel concluded that the plaintiffs subjective reports of
pain and disability are out of proportion and inconsistent with the physical
findings, and he offered his opinion that the plaintiff was capable of
full-time work. He said that should be light work, not because of the motor
vehicle accident, but rather because of a chronic neck problem that dated back
to 2005 and continued up to the motor vehicle accident.
[95]
In a subsequent report dated December 11, 2007, Dr. Schweigel
expanded on this opinion:
The inability to return his heavy
steelwork is because of his arthritis of the cervical spine, which was
asymptomatic prior to the WCB accidents of 2005 and became symptomatic because
of the WCB injuries. The MVAs (of September 5, 2005 and February 2007)
aggravated these pre-existing neck problems. He probably would not have
returned to his steelwork regardless of the MVA of 2006 and 2007 because of the
symptomatic arthritis in his neck, which became symptomatic because of his two
WCB accidents.
[96]
Dr. Schweigel was cross-examined by the plaintiff in relation to
the plaintiffs x-rays and MRIs taken in 2006, 2007 and 2009. He agreed there
were some changes and some abnormalities, but he did not agree that any of that
was caused by the motor vehicle accidents. He explained, for example, that the
mild disc bulge with annular tear reported in the MRI of August 21, 2007 was
consistent with degeneration due to age.
4.
Dr. Kokan
[97]
The defendants called another orthopaedic surgeon, Dr. Kokan, who
performed an independent medical examination of the plaintiff on June 3, 2014. His
report was marked as Exhibit 18.
[98]
Dr. Kokan stated that although the plaintiff complained of
widespread pain throughout all areas of his neck and back, there was no
orthopaedic evidence of a traumatic musculoskeletal condition resulting from
the five motor vehicle accidents. He observed that the plaintiff looked fit and
muscular.
[99]
Like Dr. Schweigel, Dr. Kokan had concerns about the
reliability of the plaintiffs subjective reports of pain and disability. For
example, he said that on a light axial load the plaintiff’s knees started to
buckle and he complained of pain basically down his entire spine. Dr. Kokan
explained that this represents a positive Waddell inorganic sign of pain.
[100] Dr. Kokan
also reviewed the x-rays, CT scans and MRIs. He observed that the annular tear
noted in the August 2007 MRI was not seen on a repeat MRI done on November 24,
2009 which showed only a mild disc bulge and mild areas of hydromyelia.
[101] On
cross-examination, Dr. Kokan, testified that hydromyelia was not trauma
related and, like the other findings, was a "normal variant." Dr. Kokan
said that he reviewed some of the radiology studies personally and confirmed
that contrary to Dr. Sandhus opinion, there was no fracture. He also said
that a disc bulge and annular tear would not account for the symptoms reported
by the plaintiff, since patients with an annular tear would not complain of
pain down their entire body.
5.
Dr. Levin
[102]
The defendants final witness was Dr. Levin, a psychiatrist who
interviewed the plaintiff for three hours on June 25, 2013 in order to prepare
his independent psychiatric assessment, which was marked as Exhibit 24. Like
many of the other witnesses at this trial, Dr. Levin noted several unusual
and inconsistent aspects of the plaintiffs presentation. At the beginning of
his report, Dr. Levin wrote:
It should be mentioned early in
this summary that during Mr. Valencias psychiatric evaluation in my
office, he presented with numerous inconsistencies and discrepancies while
describing his symptoms. At the beginning of our interview, Mr. Valencia
called himself completely disabled. He could not identify any specific injury
responsible for such a total disability. Therefore, from a psychiatric
perspective, Mr. Valencia seems to assume a sick role in his life,
spending his time at home, reading the Bible, going out three times a day to
a mall, sometimes seeing friends, regularly attending his church and still
intermittently driving. The review of Mr. Valencias medical file also did
not identify any significant general medical condition, neurological injury or
musculoskeletal abnormalities to adequately explain Mr. Valencias
self-reported total disability. Therefore, from a differential psychiatric
diagnosis perspective, the ultimate question in this case is to determine
whether or not Mr. Valencia has been suffering from any type of major
mental illness or clinically significant psychiatric condition that could
explain his on-going self-reported disability. In short, I would like to
report that from a neuropsychiatric perspective (one of the psychiatric
disciplines dealing with patients who present with physical and neurological
disturbances that could be related to or explained by a psychiatric disorder),
Mr. Valencias clinical presentation and his on-going subjectively
reported complaints of physical problems reported in his medical file do not
support the diagnosis of any major mental illness or clinically significant psychiatric
condition of disabling proportions. [Italics in original.]
[103]
Unlike the psychologist Dr. Wade, who considered that the plaintiff
suffers pain disorder due to a general medical condition and an adjustment
disorder with depression and anxiety, Dr. Levin is of the opinion that the
plaintiff is either malingering or has a factitious disorder, which he
described as the assumption of a sick role in order to obtain nurturing and
care. In explaining this concept, Dr. Levin reproduced this passage from Kaplan
and Sadocks Comprehensive Textbook of Psychiatry:
A number of investigators have
suggested that a useful way to think about differential diagnoses for
factitious disorder… with predominantly physical signs and symptoms is
to consider the diagnosis along a spectrum, ranging between somatoform
disorders at one end and malingering at the other … In somatoform disorders,
such as somatization disorder, conversion disorder, hypochondriasis and pain
disorder, the patient complains of physical symptoms which are excessive or for
which there is no demonstrable organic basis, and there is a tendency to
experience emotional distress physically. Unlike factitious disorder, the
production of symptoms in somatoform disorders is unconscious and
unintentional; the person is not simulating or feigning illness, but believes
fully that the illness is real… In malingering, symptoms are fabricated to
achieve an overt and tangible goal such as to seek compensation, obtain
shelter, avoid work or evade the police. Symptom production is fully conscious
and intentional with obvious secondary gain and symptoms disappear when they
are no longer particularly useful. Factitious disorders fall in the middle of
the spectrum, with symptoms being intentionally but compulsively feigned, for
largely unconscious motivations. In clinical practice, it is not always easy to
distinguish definitely among those conditions and, in fact, many patients may
show overlapping presentations, suggesting that their disorders should not be
thought of as mutually exclusive….
[104]
Dr. Levin reviewed the plaintiffs pre-accident history of
accusatory statements, for example against the police in Quebec, and then
opined on page 4:
In my clinical opinion, Mr. Valencias
assumption of a sick role in Canadian society and his active legal pursuit
represent a continuation of his pre-existent behaviours and attempts to adjust
in Canada, rather than representing any type of major mental illness (pain
disorder as a psychiatric condition or any other somatoform disorder). Unlike
patients with pain disorder as a psychiatric condition, Mr. Valencia has
been mainly preoccupied with his total disability rather than pain itself.
He went on to say at page 5:
In clinical practice, patients with pain disorder as a
psychiatric condition usually present with the on-going pursuit of obtaining
any type of treatment to alleviate their pain, rather than making generalized
statements about dictatorship, disability,’ etc.
From a clinical perspective, Mr. Valencias
behaviours and physical complaints as described by Dr. Dhawan should not
be perceived as any type of major mental illness, such as pain disorder as one
of the somatoform disorders (currently diagnosed in DSM-5 as somatic symptoms
and related disorders). DSM-5 specifically explains, It is not appropriate to
give an individual a mental disorder diagnosis solely because a medical cause
cannot be demonstrated … The Diagnostic and Statistical Manual of Mental
Disorders, fifth edition (DSM-5), in the chapter of Somatic Symptoms and
Related Disorders, also explains, A distinctive characteristic of many
individuals with somatic symptom disorder is not the somatic symptom per se,
but instead the way they present and interpret them. Incorporating affective,
cognitive and behavioural components into the criteria for somatic symptom
disorder provides a more comprehensive and accurate reflection of the true
clinical picture than can be achieved by assessing the somatic complaints alone
… In other words, Mr. Valencias complaints of his disability and
somewhat unrealistic, overly simplistic explanation of such a disability should
be viewed in the context of his pre-existent history of similar problems and
his current activities of daily living. It seems that Mr. Valencia has been
frequently relying on social and financial support in Canada at times without
any specific underlying medical problems. Mr. Valencia presented with a
sense of entitlement and need to be taken care of by this society. In my
clinical opinion, such behaviours and attitude by themselves do not represent
any major mental illness but could explain his on-going assumption of a sick
role.
[105]
Dr. Levin concludes that the plaintiff does not suffer from
depression and does not require any ongoing psychopharmacological or
psychiatric interventions. In his opinion, the plaintiff does not have any
psychiatric or psychological disability that would prevent him from returning
to gainful employment. He concluded on page 9 of his report:
From a prognostic perspective, I
would like to reiterate that Mr. Valencias subject MVAs did not cause the
development of any major mental illness and would not have any long-lasting
psychological/emotional effect on his occupational, inter-personal or social functions.
XII.
POSITION OF THE PLAINTIFF
[106] The
plaintiff submits that he has a permanent physical disability as a result of
the motor vehicle accidents that prevents him from ever working again. He
submits that the injuries from his workplace accidents prior to the motor
vehicle accidents were temporary. He submits that the fact that he has a
permanent disability and the fact that it was caused by the motor vehicle
accidents is established by the medical records and medical imaging.
[107] Relying on
Exhibit 6, the plaintiff seeks damages of $234,500 for past wage loss, $495,321
for future loss of earnings, and $86,107 for the cost of future care. He also
seeks substantial non-pecuniary damages for pain and suffering and loss of
amenities of life.
XIII.
POSITION OF THE DEFENDANTS
[108] The
defendants take the position that the plaintiffs injuries flowing from the
five motor vehicle accidents were limited to soft tissue injuries that resolved
in the usual course. Based on the cases of Clark v. Hebb, 2007 BCSC 883,
Loft v. Nat, 2013 BCSC 1568, and Sangha v. Chen, 2012 BCSC 749,
the defendants submit that the appropriate range of non-pecuniary damages for
the plaintiff in this case should be between $40,000 to $60,000.
[109] The
defendants submit that there should be no award for the cost of future care or
for future loss of earning capacity, because the evidence does not support the
conclusion that the plaintiff continues to have any physical injury caused by
the accidents. They submit that any physical limitations that the plaintiff may
possibly now have with respect to his ability to work are the result either of
continuing effects of his workplace accidents, or of degenerative conditions
associated with aging such as arthritis. His main impediments to employment are
not physical, in the defendants submission, but are psychological in nature,
and have nothing to do with the motor vehicle accidents. For this reason, the
defendants submit that the reports of Christiane Clark have no relevance to
these proceedings.
[110] With
respect to the future care recommendations considered by Ms. Carman, the
defendants submit that they are not supported by the medical evidence, and in
some cases, her recommendations are actually contrary to the recommendations of
the doctors that have seen the plaintiff. In particular, she recommended the
provision of a motorized scooter, even though Dr. Dhawan said this would
create greater dependence, more deconditioning, and a greater sense of
disability in the plaintiff.
[111] The
defendants submit that if there was any past loss of income caused by the motor
vehicle accidents, it was of relatively short duration. They submit that given
the plaintiffs very spotty record of employment earnings prior to the motor
vehicle accidents, any award for past income loss should be for no more than
two years, at $4,509 per year, based on his average annual earned income from
1994 through 2005.
XIV.
CONCLUSIONS
[112] The
defendants have admitted liability with respect to all five motor vehicle
accidents. Still, the plaintiff bears the onus of proving on a balance of
probabilities that he actually has the injuries he claims, and that they were
caused by the motor vehicle accidents.
[113] On a
consideration of all the evidence called by both the plaintiff and the
defendants, including the documents that have been entered in evidence as
exhibits at this trial, I am not satisfied that the plaintiff has shown, on a
balance of probabilities, that he has any continuing physical injury or
disability that was caused by any of the five motor vehicle accidents. His
subjective reports of continuing pain, weakness, and difficulty walking, are
for the most part not supported by objective medical evidence.
[114] I accept
the opinion evidence of Dr. Levin over that of Dr. Wade. Not only do
I find that Dr. Levin is better qualified than Dr. Wade by reason of
his more extensive education and experience, but more important, I find that in
forming his opinions Dr. Levin gave more thorough consideration to all the
relevant aspects of the plaintiffs previous personal and medical history than
did Dr. Wade.
[115] On all the
evidence, including the medical and psychiatric evidence, I find that the
plaintiff is either malingering or that he has a psychological fixation on
being disabled despite the fact that he is not physically disabled. If he is not
malingering and his reports of being disabled are related to a psychological
condition, I find that the condition was not caused by the motor vehicle
accidents, but rather pre-dated them. This is evidenced by his visions of
angels, which commenced in the 1990s in Montreal, and by his expressions of
suspicion and persecution, which again, pre-dated the motor vehicle accidents,
and which he expressed, among other things, in relation to his workplace
injuries before any of the motor vehicle accidents.
[116] For these
reasons, I find that the plaintiff is not entitled to any award for cost of
future care or for loss of future earning capacity.
[117] I find
that the plaintiffs physical injuries caused by the motor vehicle accidents
were limited to mild to moderate soft tissue injuries which resolved within six
months of the last of the five accidents. On this basis, I consider that he is
entitled to an award of general damages in the amount of $60,000 for pain and
suffering and loss of amenities of life for a period commencing with the first
accident on September 5, 2006, and continuing up to June 2009, a period of 33
months.
[118] I find
that he is also entitled to an award for past income loss for the same period
of 33 months. Given his erratic work history, his frequent claims for workers
compensation and social assistance, and his typically low annual earned income,
I conclude that the award should be based on his average annual earned income
from 1994 to 2005 of $4,509 per year, or $375.75 per month, for a total of
$12,400.
[119] No special
damages have been proven.
[120] To
summarize, the plaintiff is entitled to an award of $60,000 for non-pecuniary
damages, and $12,400 for past loss of income. There is no award for future
income loss or for cost of future care.
The
Honourable Mr. Justice W.F. Ehrcke