IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150130

Docket: M134851

Registry:
Vancouver

Between:

Lindsey
Erick Mothe

Plaintiff

And

Jean-Paul
Silva, GFS British Columbia Inc. and Penske Truck
Leasing Canada Inc./Location de Camions Penske Canada Inc.

Defendants

Before:
The Honourable Madam Justice Ross

Reasons for Judgment

Introduction

[1]            
This is an action for personal injuries arising as a result of a motor
vehicle accident that occurred on November 24, 2011, when a tractor trailer
truck driven by the defendant, Jean-Paul Silva struck the rear end of the
pickup truck driven by the plaintiff, Lindsey Mothe. Liability is not at issue.
At issue are the non-pecuniary damages, claims for past and future wage loss
and the cost of future care.

[2]            
The defendants concede that Mr. Mothe has sustained myofascial injuries
to the cervical soft tissues and interscapular region, myofascial injuries to
the left shoulder and cervicogenic headaches as a result of the motor vehicle
accident and that these have not resolved. The defendants do not, however, concede
that symptoms Mr. Mothe developed in his left arm and hand and a C6/7 disc
herniation were the result of the motor vehicle accident. Thus a key issue to
be determined is the extent of the injuries suffered in the motor vehicle
accident and the extent to which the symptoms Mr. Mothe has complained of are
the result of that accident or attributable to pre-existing or subsequent
causes unrelated to the motor vehicle accident.

Facts

[3]            
Mr. Mothe is 48 years of age. He was born and raised in the Lower Mainland
where he attended and graduated from high school in 1984. He was very active
and interested in sports. His father would not allow him to participate in
organized sports so he did not do so until after he graduated from high school.
He then took up hockey and has played in a recreational league ever since. In
addition, he has enjoyed mountain biking, working out at the gym and hiking.
Mr. Mothe has maintained a regular membership at his gym, attending to train
several evenings a week.

[4]            
His father, who was a carpenter, encouraged him to find work in the
trades. After graduation, Mr. Mothe followed his father’s recommendation and
went into an apprenticeship as a drywall finisher. The apprenticeship lasted four
years. He then continued work in that trade with the union as a journeyman. In
total, Mr. Mothe continued in that trade for 22 years.

[5]            
Mr. Mothe enjoyed good health. He rarely took a sick day. He was very
strong and had a strong work ethic. He very much enjoyed the hard physical
work. He was promoted to foreman. However, the union was shrinking and so when
a co-worker started his own company and asked Mr. Mothe to join him, Mr. Mothe
took up that opportunity. He carried on with the same type of work in the
company.

[6]            
Mr. Mothe met Felicia, his future wife, in 1998. They married three
years later in 2001. Ms. Mothe is employed as a legal secretary. They hoped to
start a family and both hoped that Mr. Mothe would be able to earn enough so
that Ms. Mothe could cut back or cease working once they had children.

[7]            
In 2004, Mr. Mothe obtained an application to become a longshoreman. He
wrote the test and passed the physical. He viewed the possibility of becoming a
longshoreman as a very attractive option because of the potential for higher
income, excellent benefits and a pension plan.

[8]            
Tom Doran, who is the Secretary Treasurer of the ILWU Local 502, gave
evidence about the process of allocation of work and the progression of a
longshoreman’s career. He testified that all longshoremen start designated as “casual”
at the bottom of the “T Board”. Over time they have the opportunity to work
their way up through a series of “Boards”. The most senior casual Board is “A
Board”. From “A Board” a longshoreman can become a union member when vacancies
become available.

[9]            
Casual members move up and down the Boards as vacancies are created from
longshoremen moving up or down the Board or when the ILWU Local 502 creates new
positons. In order to maintain a positon on a Board, a longshoreman must work a
minimum of 65% of the average hours worked by longshoremen on that Board. A
longshoreman who fails to do so would be dropped down a Board. Longshoremen
eligible to move up a Board are ranked in order of their seniority number.

[10]        
Full union members are not subject to the minimum hour requirements.
Union members who are available for work are dispatched before casual members.
Casual members are dispatched in order of the Boards, starting with “A Board”.
Rated work is dispatched before labour work.

[11]        
The ILWU Local 502 dispatches work from a dispatch hall in Surrey. There
are three dispatches a day; at 6:15 a.m. for the day shift, 3:15 p.m.
for the afternoon shift and 4:15 p.m. for the graveyard shift.
Longshoremen make themselves available for work by turning a plate on the Board
at the dispatch hall.

[12]        
The base rate of pay for longshoreman of the ILWU Local 502 is
determined by the Collective Agreement. Under the terms of the current Collective
Agreement, the base hourly rate for 2014 is $38.21. The base rate is paid on an
hourly basis for the day shift, $48.14 for the afternoon shift, and $59.45 for
the graveyard shift. Certain “rated” jobs receive higher base rates called
skill differentials. On Saturdays, the base rate of pay for the day and afternoon
shifts is $48.14, and $61.14 for graveyard. All shifts worked on a Sunday are
paid the base rate of $61.14.

[13]        
Some rated work provides for a “Call-Back”, which allows a longshoreman
to be Called-Back to work the following day without having to attend the
dispatch hall again the next day. It is possible for a longshoreman, with
certain ratings, to attend the dispatch hall on a Monday and be Called-Back
through to Saturday. A new dispatch is then issued for Sunday.

[14]        
There is an expectation that a longshoreman will not decline work that
has been dispatched. If a longshoreman on the boards below “A Board” declines
to accept dispatched work, there is a 24-hour time period within which the longshoreman
is not able to work – the same penalty applies to Call-Back work. If a
longshoreman continues to decline work, additional disciplinary action may
apply.

[15]        
Mr. Doran testified that, at the current time, there is enough work
availability for a union member longshoreman to work seven days per week.
Casual longshoreman on A and B Boards have the same access to work
availability. There has been an increase in the amount of work hours available
to the ILWU Local 502 longshoremen in the last three years. At the present
time, casual longshoremen down to “E Board” are likely able to work five or six
days per week.

[16]        
Union members are provided with full health and dental benefit plans as
well as a pension plan. Longshoremen on casual “Board A” are provided with
medical and dental benefit plans. Casual “Board B” longshoremen are provided
with a reduced coverage medical and dental benefit plan. Full pension is
available following 35 years of pensionable credit. A pensionable year is 88
hours. Casual longshoremen accrue pensionable service.

[17]        
Mr. Mothe was able to start work as a longshoreman in 2006. He kept his
dry walling job and would go to the dispatch to get as many afternoon or
graveyard shifts as he could secure. At the start, most days that he went to
dispatch he did not get work. For example, in 2007 he earned only $587.20 as a
longshoreman, probably around three shifts. He secured more longshoreman work
in 2008, however his seniority was still very low. His longshoreman wages
dropped in 2009, reflecting the impact of the recession on the availability of
work at the docks.

[18]        
On January 15, 2010, Mr. Mothe fell from stilts while on a construction
job. He went to Burnaby Hospital for treatment two days later where he reported
that he had fallen from ten feet, landing on his hands and wrists. There was no
loss of consciousness. He complained of pain in his wrists, shoulders and neck.
Dr. Chou ordered an x-ray. He diagnosed sprains and strains of wrists and hands
and recommended that Mr. Mothe take some time off work (the “Workplace
Injury”). Mr. Mothe did not miss work on account of the injury.

[19]        
Mr. Mothe reported the injury to WorkSafe BC. The WorkSafe Report states
that Mr. Mothe struck his head on the ground in the fall but did not lose
consciousness.

[20]        
Mr. Mothe reported back to Dr. Lew, his family physician, in May 2010
concerning the Workplace Injury, stating that he was still having pain in the
wrists. He told his doctor that he experienced pain when lifting buckets or
making certain motions. He reported that he would drop things at times when the
pain came on suddenly. The left wrist was the worst.

[21]        
In 2010, more work became available on the docks and in August of that
year Mr. Mothe made the decision to quit construction and work full time as a
longshoreman. His income has increased each year since then. Mr. Mothe has
moved steadily up the Boards since 2010 and is now on B Board.

[22]        
Mr. Mothe took rated training and has secured several ratings: Reach
Stacker, Multi-Truck, Lift Truck Dock and Rubber Tire Gantry. Having the
ratings makes him available for more work and makes him eligible for work at a
premium rate, earning an hour of overtime each shift.

[23]        
At a visit in April 2011, Dr. Lew noted that meralgia paresthetica, a
condition involving numbness or pain in the outer thigh, had been present for two
years.

[24]        
In June 2011, the Mothes learned that Ms. Mothe was pregnant. However,
this wonderful news was soon tempered with worry. Ms. Mothe experienced
complications in her pregnancy. There was concern that the baby might be
premature. Ms. Mothe had been ordered to bed rest in the period shortly before
the motor vehicle accident.

[25]        
Mr. Mothe testified that in 2011 prior to the motor vehicle accident,
his health was fine. He was training at the gym, playing hockey, working all
without issues. He stated that he never had headache, neck or shoulder problems
prior to the motor vehicle accident. This description is generally consistent
with the reports in the clinical records with the exception of the consequences
of the Workplace Injury which continued to be symptomatic and present problems
for Mr. Mothe.

[26]        
Prior to Ms. Mothe’s complications with the pregnancy, Mr. Mothe generally
went to the gym two to three times a week and he continued to play in the
recreational hockey league. He had cut back somewhat on his gym attendances
when Ms. Mothe was ordered to bed rest during her pregnancy.

[27]        
The motor vehicle accident occurred on November 24, 2011 at about 5:00 p.m.
Mr. Mothe was proceeding east along River Road in stop and go traffic. His
vehicle was stopped in the traffic when he was hit from behind by the tractor
trailer truck driven by the defendant Jean-Paul Silva. Mr. Silva estimated that
his vehicle was travelling at five to ten kilometres per hour when the
collision took place. He had taken his foot off the brake but had not stepped
on the gas. The truck was rolling. He stated that the impact was a slight tap.
He observed the rear bumper of Mr. Mothe’s truck was tucked forward following
the collision.

[28]        
Mr. Mothe stated that he felt confused and had pain between his shoulder
blades and at the base of his neck.

[29]        
Mr. Mothe attended at a walk-in clinic after he left the accident scene.
The doctor diagnosed whiplash and advised him to stay active. Mr. Mothe stated
that the doctor recommended Mr. Mothe go to physiotherapy. Mr. Mothe returned
home and reassured Ms. Mothe, who was very emotional about the accident.

[30]        
Mr. Mothe went to work the next day. He attended the gym two days after
the accident and played hockey three days after the accident. He agreed that he
was not taking any medication to deal with his symptoms. He did not attend
physiotherapy at the time because of his concern for Ms. Mothe, a decision I find
to be both reasonable and understandable in the circumstances.

[31]        
He stated that in the next few weeks his symptoms got worse. He was
having pain between his shoulder blades and headaches. He testified that he was
having pain and numbness down his arm at this time. He stated that he pretended
everything was normal because he did not want to worry Ms. Mothe who was still
ordered to bed rest.

[32]        
Mr. Mothe attended Dr. Lew on December 2, 2011 in relation to the motor
vehicle accident. Dr. Lew noted that Mr. Mothe reported that following the
accident he felt soreness between the shoulder blades and since then had been
having concussion-like symptoms, including a fuzzy feeling in his head, nausea
with exercise, headache, and pressure in the back of the head. He reported that
he was able to work but was finding it harder to concentrate. The pain between
the shoulder blades was not as bad but there was pain in the back of the head
and neck, like a pressure, and some light-headedness when working out. He told
his doctor that he was able to play hockey and that he had not been taking any
medication. He was found to be tender between the neck and shoulder blades with
full range of motion in his neck without pain. Dr. Lew noted a diagnosis of
neck and upper back strain and a mild concussion.

[33]        
Mr. Mothe stated that he was feeling hot stabbing pain in his neck and
shoulder at this time. He was fuzzy and could not concentrate and he was having
headaches.

[34]        
Shortly after this Ms. Mothe was hospitalized. She remained in hospital
until their baby was born on December 24, 2011. The baby was premature and stayed
in the neonatal intensive care nursery for five weeks after her birth. During
this time Mr. Mothe went to work and then stayed at the hospital.

[35]        
Mr. Mothe started to attended physiotherapy in February 2012 when his
baby came home from the hospital. He attended from February 8 to August 27, 2012.
It was his evidence that his symptoms were getting worse and the physiotherapy
was not helping. The problems were with his neck, shoulder and the left side of
his upper body.

[36]        
The physiotherapy clinical records for February 8, 2012 describe him
reporting stiffness, mild concussion, stiffness between the shoulder blades,
pain between the shoulder blades and back of the head. There is no reference to
pain and numbness in the arm. The clinical records note that he reports steady
improvement although he continued to be symptomatic with pain, stiffness and
fatigue.

[37]        
Mr. Mothe’s next visit to his physician was on February 14, 2012. This
visit was in relation to the problems with his wrist that he was experiencing
in relation to the Workplace Injury. Dr. Lew reported to WorkSafe BC that Mr.
Mothe was still having left wrist pain from that injury. Mr. Mothe had reported
pain in the left wrist with any lifting, even relatively light weights such as
groceries, difficulty at work with any activity that requires prolonged use of
the wrists, even with no lifting, and with any lifting. Dr. Lew noted a
diagnosis of chronic wrist tendonitis and suggested that Mr. Mothe might
benefit from a wrist brace.

[38]        
Mr. Mothe attended Dr. Lew on July 23, 2012. The appointment appeared to
deal with both the Workplace Injury and the motor vehicle accident. With
respect to the motor vehicle accident, Dr. Lew noted that Mr. Mothe reported
that he had attended physiotherapy; the pain had gotten worse, with the feeling
of a hot knife in the back. He was tender in the left T2-4 paraspinal area,
with pain in the neck. Dr. Lew noted a diagnosis of upper back strain form the
motor vehicle accident.

[39]        
In a report to WorkSafe BC dated July 23, 2012 concerning the Workplace
Injury, Dr. Lew noted that Mr. Mothe had reported that his left wrist was still
a problem when lifting anything heavy. He still sometimes had to release objects
due to pain. There was no pain on passive range of motion and no tenderness or
swelling present, but pain in both dorsiflexion and volar flexion.

[40]        
Mr. Mothe was referred to the WorkSafe hand therapy program in August
2012. He attended physiotherapy for the Workplace Injury from August to
November 2012.

[41]        
The clinical records of the physiotherapist dated August 6, 2012 contain
a reference to an incident that Mr. Mothe described as having occurred one
month after the last visit. The last visit had been on May 30, 2012. Accordingly,
the incident referred to would have occurred in late June or early July. The
notes state that Mr. Mothe reported that he had been doing more things at work
and going to the gym but then when he made a twisting motion, felt a sharp pain
in his shoulder, going down his arm, with tingling in his fingers. The notes
state that he reported that the pain was constant for a few days and then
reduced. This appears to be the first report of symptoms going down Mr. Mothe’s
arm. However, there is no note in the family physician’s records of Mr. Mothe
reporting this symptom to the doctor at the July 23, 2012 visit during which
they addressed both the Workplace Injury and the motor vehicle accident
injuries.

[42]        
The discharge report with respect to the Workplace Injury noted weaker
grip strength on the affected side and a positive phalen’s sign on the left,
indicating some median nerve compression at the wrist. Mr. Mothe reported some
tingling of his fingers. He reported that he did not have difficulty operating
heavy equipment at work but did have problems with repetitive lifting and moving
heavy beams. He reported that he now had pain carrying his daughter in her car
seat and his activity at the gym was reduced. He reported that when climbing
ladders at work his left wrist felt sketchy and that he was concerned that he
might not be able to hold on. He was provided with a wrist cuff.

[43]        
Mr. Mothe testified that throughout the first year after the motor
vehicle accident, he was suffering from headaches, pain (more on his left side),
pain in his shoulders and numbness and weakness in his left arm. As noted
during 2012, Mr. Mothe did not report the left arm symptoms to his physician.
There was one report by Mr. Mothe to the physiotherapist of pain radiating down
the arm occurring likely in late June or early July 2012.

[44]        
Mr. Mothe stated that in 2012, his hours appeared greater because he was
getting more rated work. It was his evidence that he had a strong desire to
take even more shifts, and work was available to do so, but he felt that he was
struggling to maintain the normal shifts and needed to rest. He found that the
headaches interfered with his ability to concentrate at the jobsite,
particularly with the rated work.

[45]        
Mr. Mothe attended Dr. Lew on January 28, 2013. Dr. Lew’s notes report
that he stated that his shoulder felt weaker at the gym, he was experiencing
intermittent tingling and numbness in all the fingers of his left hand. An
axial loading of the cervical spine with neck turned to the right reproduced
tingling and numbness in the left hand. There was no cervical or thoracic spine
tenderness. Dr. Lew ordered an x-ray of the cervical spine.

[46]        
Dr. Lew retired and his practice was taken over by Dr. Smith. Dr.
Smith’s notes for a consultation with Mr. Mothe on February 6, 2013 report that
the cervical spine x-ray showed quite severe narrowing on the left from C3 down
to C6. Mr. Mothe was experiencing intermittent parathesia in his left arm. Dr.
Smith ordered a CT scan.

[47]        
Dr. Smith’s notes for June 25, 2013 reflect a review of the MRI of the
neck and shoulder. The shoulder showed infraspintatus tendinosis, no tear and a
moderate/large C6/7 disc bulge with compression of the nerve. On examination he
noted normal range of motion with mild pain in the shoulder with resisted
external rotation. There was very mild decreased sensation from D 2-4. Spurlings
reproduced numbness in the left hand with head rotation to the right. He noted
that Mr. Mothe complained of left hand parathesia and left arm weakness. Dr.
Smith questioned whether these symptoms were related to the motor vehicle
accident, noting that issues with the left arm had not been referred to in
previous visits after the motor vehicle accident.

[48]        
Mr. Mothe was referred to Dr. van den Elzen for a neurological
consultation and nerve conduction study. The consultation report dated August
22, 2013 noted that Mr. Mothe had reported that as he was getting physical
therapy for the pain in his upper back following the motor vehicle accident; he
became aware of pain radiating down the left arm, associated with numbness in
the hand. He stated that the pain had improved and the numbness resolved over
the past three to four months and that now there was only residual pain in the
shoulder. He reported some mild weakness in the left arm in association with
pain with some actions such as bench pressing or reaching into the back seat of
the car.

[49]        
Dr. van den Elzen’s report concludes:

IMPRESSION

In summary, Mr. Mothe has a history consistent with left
cervical radiculopathy, MRI that showed moderate to severe nerve root
compression due to C6-C7 disk herniation, normal neurological exam and negative
EMG study.

I think that his symptoms in the
past have been due to the cervical radiculopathy from C7 nerve root
compression. It is unclear whether this was due to the accident or occurred
subsequently. The negative EMG study correlates with his marked improvement
over the past few months. He now has only mild symptoms, only in certain
positions. Based on that, he is not a candidate for surgical intervention. If
his pain returns, then I would recommend that he be re-referred to our EMG
laboratory for re-evaluation for possible surgery. He should continue all his
activities without restrictions. It is very likely that he will have recurrent
problems at this level in the future.

[50]        
It was Mr. Mothe’s evidence that in 2013 he saw no real change in his
physical condition. His headaches were somewhat worse. He stated that he would
have worked additional shifts but was not able to because of his need to rest.

[51]        
In the summer of 2014, Mr. Mothe advanced to B Board. He is now eligible
for more rated work involving call backs, often for an entire week without
going back through dispatch.

[52]        
Mr. Mothe’s family responsibilities have increased. Both his parents are
in poor health. The family is living in the ground floor of his parents’ home.
He and his wife want to do what they can to assist his parents. They hope to
purchase a home close by, possibly a duplex with his parents. To achieve this
plan will require Mr. Mothe to work six-day work weeks.

[53]        
He stated that he is struggling to keep working. He has considerable
pain and headaches every day. He said that he is exhausted by the end of the
day. He has cut back on his other activities in order to rest. He stated that
the pain in his neck and shoulder is constant. His sleep is disturbed. His mood
is low and he is pessimistic. He feels that he is not able to be as supportive
to his wife.

[54]        
He stated that he is having difficulties climbing the ladders at work
and the headaches are causing problems with his ability to focus. He worries
that he will not be able to continue working. Meanwhile he and his wife have
not been able to realize their plan to have her stop work outside the home. He
fears not being able to support his family. He has few options. He is not able
to go back to drywall work because he cannot work with his arms above his head.

[55]        
He stated that he has given up mountain biking and has not gone to the
gym for quite some time. He thinks he will probably have to give up hockey as
well.

[56]        
He stated that he has not received any suggestions for possible
treatment. Meanwhile the headaches, weakness, numbness and pain are increasing.

Lay Witnesses

[57]        
Felicia Mothe described Mr. Mothe as very athletic and energetic when
they met. He was a hard worker with a strong work ethic who was also very
active in sports. It was her evidence that in the year before the accident Mr.
Mothe’s health was very good. He had no problems, high energy and continued to
be very active in sports.

[58]        
Ms. Mothe recalled the Workplace Injury. She did not recall that Mr.
Mothe suffered a major injury. She thought that he had a “bit of pain”. She did
not observe anything different in the aftermath of that accident. However, her
recollection is not consistent with the medical evidence. I believe that it is
consistent with Mr. Mothe’s continuing efforts not to disturb or alarm her.

[59]        
She recalled that Mr. Mothe looked sort of disoriented and in shock
after the motor vehicle accident and that when he went to work in the next
weeks he looked hunched over, pale, grey in the face and that he seemed to be
in pain.

[60]        
It was her evidence that in the last year Mr. Mothe’s condition has
worsened. He appears to be in pain. He has no energy. His mood is poor in
contrast to the positive person that he used to be before the accident. He
appears to be struggling at work. When he returns home he has to lie down. He
complains of back and neck pain as well as headache. His level of recreational
activity is much reduced. He rarely goes to the gym, plays less hockey and no
longer mountain bikes. He is doing less and less around the house. She stated
that he is not the same person and is getting worse, not better.

[61]        
Ms. Mothe stated that she is fearful of their future. She is afraid that
he will not be able to keep on working. They have put plans for another child
on hold.

Ryan Burns

[62]        
Mr. Burns has been employed as a longshoreman since 2006. He is
currently on the B Board. He has known Mr. Mothe since 2009. They met at work
and because they are close in seniority have often worked side by side.

[63]        
Mr. Burns stated that he was aware that Mr. Mothe had been in a motor
vehicle accident. He said that before the accident, Mr. Mothe was healthy and
fit; a very hard worker. He was exceptionally strong with good stamina. He was
dedicated to the job. He was a happy guy, ambitious with a lot of energy. He
could do all the jobs without limitation and enjoyed the hard labour jobs.

[64]        
He stated that in the weeks following the motor vehicle accident, Mr.
Mothe seemed to be struggling a bit. It seemed to get worse as time went on. He
complained of headaches, pain in his neck and shoulder.

[65]        
He stated that during the first six months of 2012 they were working
side by side a lot. Mr. Mothe was struggling to lift heavy beams. His attitude
seemed somewhat negative. They were on C Board together during the last six
months of 2012. He recalled Mr. Mothe complaining of headache, pain in his
shoulder and neck. He had difficulty with some aspects of the work. Mr. Burns
had to assist him.

[66]        
Mr. Burns stated that he was not aware that Mr. Mothe experienced problems
with his left wrist. He did not recall that Mr. Mothe had experienced
difficulty climbing ladders or that he had been dropping things that he was
carrying. He was not aware of Mr. Mothe experiencing pain while carrying small
things or that he wore a brace.

[67]        
Mr. Burns stated that in 2014 Mr. Mothe is discouraged. His neck and
shoulder continue to bother him. They go running at noon, three to five kilometres
along the dike at Tsawwassen, but sometimes he struggles.

Expert Evidence

Dr. Ramesh Sahjpaul

[68]        
Dr. Ramesh Sahjpaul is a neurosurgeon. Dr. Sahjpaul examined Mr. Mothe
in September 2013. He noted, on examination, normal cervical range of motion.
Spurling sign was positive to the left, reproducing numbness and tingling in
the left hand. There was wasting and weakness of the left triceps. The right
arm was normal. There was mild tenderness to palpation in the left posterior
shoulder and reaching behind the back produced discomfort in the left posterior
shoulder. Dr. Sahjpaul also reviewed the MRI shoulder and cervical spine
imaging.

[69]        
Dr. Sahjpaul’s diagnosis was:

Diagnoses:

1.     Left
lateral thigh numbness consistent with femoral cutaneus nerve compression –
preexisting.

2.     Neck
pain and left shoulder area pain. Myofascial. Causation due to motor vehicle accident.
Comments regarding the infraspinatus tendinosis left to more qualified
individuals, possibly traumatic, due to motor vehicle accident.

3.     C6 –
7 disc herniation – this herniation is either preexisting and rendered
symptomatic by the motor vehicle accident or caused by the motor vehicle
accident. It has resulted in significant left C7 nerve root compression and
sensory motor deficits. Over time, his symptoms have improved but have not
resolved. He does not have radicular pain per se at the present time, but does
have some ongoing symptoms consistent with symptomatic C7 nerve root
compression and clearly has weakness due to C7 nerve root compression. Whether
the herniation preexisted the motor vehicle accident deserves further comment.
Mr. Mothe indicates that about a year prior to the motor vehicle accident he
sought chiropractic treatment for left leg symptoms and experienced a transient
discomfort in the left upper arm, which may have been due to transient C7 nerve
root compression phenomenon due to the C6 – 7 disc osteophyte complex if
it were preexisting. Regardless, this was a transient episode and relatively
minor and in my opinion, but for the motor vehicle accident he probably would
have remained asymptomatic with regards to the C6 – 7 disc.

4.    Transient symptoms suggestive of
concussion due to MVA.

[70]        
Dr. Sahjpaul stated that Mr. Mothe’s nerve root compression symptoms
could worsen in the future. In such a case surgery would likely promote some,
but not complete recovery. He stated that surgery would probably improve the
quality of Mr. Mothe’s life and make it more enjoyable for him to work and
likely improve his overall functioning.

[71]        
He stated that Mr. Mothe’s headache and neck pain were likely myofascial
and would not improve with surgery.

[72]        
Dr. Sahjpaul was not provided with a full history and was not told about
the ongoing hand and wrist issues associated with the Workplace Injury. He
agreed that delay of onset of symptoms is a factor that is useful in assessing
the causation of nerve root compression. He also agreed that if Mr. Mothe had a
pre-existing disc problem, symptoms could be brought on by a variety of
activities, including hockey, working out at the gym, lifting weights, and physical
labour.

Dr. Max Kleinman

[73]        
Dr. Kleinman is a specialist in physical medicine and rehabilitation. He
examined Mr. Mothe in April 2014. Dr. Kleinman was of the opinion that Mr.
Mothe suffered from the following motor vehicle accident-related impairments:
chronic biomechanical disorder of the cervico thoracic and left periscapular
region, chronic spinal deconditioning and chronic post-traumatic headaches. He
noted that Mr. Mothe had reported pain in the left upper extremity with
numbness and tingling. At the time of his examination he had no referral of
pain down the arm and no numbness or tingling in the hands. Dr. Kleinman
believed that there was a neurogenic contribution to this presentation and
deferred to the neurologists with respect to this issue.

[74]        
With respect to causation of the issues relating to the cervical spine,
Dr. Kleinman stated that it was his opinion that the accident either caused the
changes as seen in the MRI or activated previously quiescent changes. However,
Dr. Kleinman also stated that he could not recall if Mr. Mothe told him when
these symptoms started. He agreed that he may have assumed that it was from the
time of the motor vehicle accident. He agreed that delay in the onset of
symptoms is relevant in the determination of causation and that the longer the
period without symptoms, the less likely the motor vehicle accident was the
cause.

[75]        
It was Dr. Kleinman’s opinion that Mr. Mothe had reached a physical
plateau with respect to the injuries sustained in the motor vehicle accident
and his condition should be considered permanent and static.

[76]        
He recommended a program of physical conditioning with postural
correction, stretching and conditioning with activities that improve the
strength, flexibility and endurance of the musculature of the neck, upper back
and periscapular region. He also recommended an ergonomic assessment of his job
site. He believed that a certain amount of supportive care should be available
for periodic flare-ups.

[77]        
It was his opinion that Mr. Mothe will continue to experience difficulties
at work and that it is highly unlikely that Mr. Mothe will be able to continue
with the type of work he is doing to the same capacity for the same length of
time that he would have had it not been for the accident.

Dr. Navraj Heran

[78]        
Dr. Heran is a neurosurgeon who examined Mr. Mothe in June 2014. His
diagnoses were as follows:

1)         Myofascial
injuries to the paracervical. soft tissues and interscapular region;

2)         Myofascial
injuries to the left shoulder, possibly rotator cuff region;

3)         Cervicogenic
headaches;

4)         Left-sided
C7 radiculopathy;

5)         Left-sided
carpal tunnel syndrome;

6)         Left wrist injury.

[79]        
Dr. Heran was of the opinion that the myofascial injuries were the
direct consequence of the motor vehicle accident; the other conditions were
not. In particular, because of the delay of onset of symptoms, he could not
conclude that the motor vehicle accident was a causal force in relation to the
left-sided C7 radiculopathy.

[80]        
Dr. Heran was not of the opinion that Mr. Mothe has any present restrictions
in relation to his work. He stated that the restrictions and limitations with
respect to recreational and domestic activities are directly the consequence of
the left-sided C7 radiculopathy and not a consequence of the motor vehicle
accident. He stated that Mr. Mothe was at risk of progressive worsening of his
left-sided C7 radiculopathy which could render him disabled. However in that
case, he would be a candidate for surgery with the expectation of reintegration
back to work after a period of recovery, typically six weeks off work.

[81]        
He disagreed with Dr. Kleinman’s opinion that Mr. Mothe has plateaued in
his symptoms, stating:

…I disagree with this in that the natural history of disc
herniations is that of improvement and in the setting where he is not improving
from disc herniation, surgery, as Dr. Sahjpaul has described, would be
remediating. I do not believe that his underlying myofascial injuries would
limit his ability to function. Therefore, I cannot state that he has plateaued
at this point in time. In the last paragraph on page 13, he states that if
there is material change to his symptoms, in particular as it relates to the
weakness and/or left upper extremity referral, then he should be re-referred
for updated electrodiagnostic studies as per the recommendation of Dr. van den
Elzen. I would state that the change in examination from the time that Dr. van
den Elzen had seen him, as documented by Dr. Sahjpaul as well as by Dr.
Kleinman and now by myself, would suggest strongly the need for nerve
conduction studies to document C7 radiculopathy. Furthermore, if there is
active denervation in a setting where he himself is describing further loss of
bulk and strength, then the surgery that Dr. Sahjpaul has recommended for
decompression of the C7 nerve root should be instituted sooner than later.

Dr. Kleinman gives his opinions
with respect to continuing on in his vocation. I think these would be
reasonable expectations in the setting where remediation of his left-sided
cervical radiculopathy could not be established. I do not foresee a reason
though that any of the other sources of his symptoms, notably the myofascial
injuries, should limit him given that he has not required medications for them,
he is not getting worse from them, nor has he lost any time from work because
of them.

[82]        
Dr. Heran agreed that chronic cervicogenic headaches and myofascial pain
can be problematic in the workplace depending upon the severity of the
symptoms. However, he stated that his understanding from Mr. Mothe is that his
headaches and myofascial pain are not limiting factors in his work.

[83]        
He stated that most disc herniations occur spontaneously as a result of
wear and tear. Only the minority of herniations are attributable to a traumatic
event. He agreed that a motor vehicle accident could precipitate a disc
herniation and could cause myofascial injury that could precipitate a disc
herniation. However, where myofascial injury has precipitated a disc herniation,
he would expect to see the symptoms within two to three months of the accident.
He stated that in this case the first time clear cut features of radiculopathy
were found was January 2013. He did not agree that the August 2012 note in the
physiotherapist’s clinical records was the first evidence of the onset of
radiculopathy. He did not agree that the description was consistent with
radiculopathy. Moreover, he would not expect to see one episode and then no
other episodes for many months.

[84]        
In this case, in his opinion there is no relationship between the
numbness in the hand and the motor vehicle accident. The numbness in the hand
is the consequence of carpal tunnel syndrome.

[85]        
Dr. Heran stated that it was sensible for Mr. Mothe to give up mountain
biking because of the positon of the neck required by that sport. He agreed
that Mr. Mothe should stay active and supported a gym program supervised by a
kinesiologist.

Dominic Shew

[86]        
Dominic Shew performed a Functional/Work Capacity Evaluation on July 15,
2014. He noted that Mr. Mothe provided high levels of effort, and passed the
placebo and distractions tests. He stated that Mr. Mothe’s subjective reports
concerning capacities and limitations were generally consistent with Mr. Shew’s
findings.

[87]        
Mr. Shew concluded:

Based on the summation of the test findings and clinical observations,
Mr. Mothe has the ability to continue in this line of work since he
demonstrated the strength and physical ability to perform aspects of this
occupation. He, however, had difficulties sustaining the upper strength
requirements suggesting that when heavier demands are required and/or when his
symptoms are aggravated, he will likely have difficulties managing such demands
over time. In addition, the measured and functional reduction in his capacity
primarily related to tasks that stressed his neck, upper spine and left
shoulder and upper extremity suggest that when more physically demanding and
repetitive tasks are required, there will likely be a reduction in his capacity
as his workday and work week progresses. His restrictions indicate that when his
symptoms are aggravated, he will require the ability to take breaks to rest,
stretch or change positions; however, the deterioration in his abilities in the
latter portion of the testing infers that these breaks were no longer
supporting his ability to return to his baseline physical capacity.

Mr. Mothe has attempted to
persist with work despite his physical and functional restrictions. This is
likely due to the fact that he has the physical capacity to perform the
essential demands on an occasional basis and has seniority, which often allows
him to find work that is generally lighter. However, results of the FCE/WCE
suggest that although he has the fundamental capacity, his residual capacity is
incompatible for the full physical demands as described throughout this report
and when higher-level or repetitive physical demands are needed, there will
likely be an adverse affect on his ability to sustain the physical
requirements.

[88]        
Mr. Shew stated that Mr. Mothe reported to him that his neck pain was of
very mild intensity. The headaches were frequent but slight.

[89]        
He stated that his function was to assess functional limitation, not to
ascribe the limitations to particular causes. According to his assessment, Mr.
Mothe’s functional limitations were related to problems with his left arm, hand
and left upper body.

When did the symptoms of radiculopathy first present?

[90]        
A central issue in the litigation is whether the motor vehicle accident
was the cause of the left-sided C7 radiculopathy. Both the neurosurgeons agree
that delay in onset of symptoms is a significant factor in assessing causation.
Accordingly it is important to determine when Mr. Mothe first manifested the
characteristic symptoms of C7 radiculopathy.

[91]        
My impression of Mr. Mothe was that he was an honest and straightforward
witness who was doing his best to provide an accurate and honest account.
However, I also formed the opinion that Mr. Mothe was a very poor historian. In
particular, that he had difficulty providing an accurate account looking back
in time. This is consistent with a pattern of difficulties with the history he
provided to experts in the litigation.

[92]        
I note first that none of the experts who testified found evidence of
abnormal pain behaviour, pain amplification or inappropriate illness behaviour.
As noted, Mr. Shew noted that Mr. Mothe provided high levels of effort and
passed placebo and distraction tests. These observations are all consistent
with my impression of an honest and straightforward witness.

[93]        
However, it is also the case that Mr. Mothe did not give accurate
histories to Dr. Sahjpaul and Dr. Kleinman or to Mr. Shew. Mr. Mothe saw Dr.
Sahjpaul in September 2013. He did not report that he had suffered a left wrist
injury in giving his history. Mr. Mothe reported to Mr. Shew in July 2014 that
the difficulties he experienced with his wrist had been with his right wrist.
In fact however, his right wrist made a full recovery and the ongoing problems
had been with his left wrist. He told Mr. Shew that he had not hit his head in
the workplace fall; however the medical records from the time suggest that he
did hit his head. In giving his history to Dr. Kleinman, he denied suffering
any work-related injuries in the past.

[94]        
The issue of an accurate history of symptoms is of particular relevance
in relation to the time when Mr. Mothe first experienced the symptoms
consistent with left side radiculopathy. Mr. Mothe testified at trial that he
felt pain and numbness down his arm in the few weeks immediately following the
motor vehicle accident. However, he attended Dr. Lew in December after the
motor vehicle accident specifically to address the injuries suffered in the
accident. Dr. Lew’s notes for this visit are quite detailed, but contain no
reference to pain and numbness in the arm.

[95]        
Mr. Mothe did not report such symptoms to his doctor until January 28,
2013, at which time his doctor was concerned about cervical radiculopathy and
ordered an x-ray and MRI scan. I have concluded that Mr. Mothe is mistaken with
respect to his testimony concerning the timing of the onset of these symptoms.
The physician’s notes for June 25, 2013 confirm that these symptoms were not
raised in the visits in December 2011 and July 2012 dealing with the motor vehicle
accident injuries.

[96]        
Mr. Mothe’s counsel suggested that the reference in the clinical record
of July 2012 to the “feeling of a knife like feeling in the back” and the
August 2012 physiotherapist note describing a “sharp pain in shoulder blade,
knife pain up into the left arm, fingers tingling occasionally” were consistent
with radiculopathy. Dr. Heran did not agree. In addition, I note that Mr.
Mothe’s doctor was quick to respond with referral for imagining studies when
the symptoms were reported to him in January 2013. Had he been of the view that
what was reported in July 2012 was consistent with radiculopathy, it is likely
that he would have referred Mr. Mothe for imaging studies at that time.

[97]        
These were worrying symptoms and I believe that Mr. Mothe raised them
with his doctor shortly after they commenced. I find that Mr. Mothe first
experienced the symptoms of cervical radiculopathy around January 2013.

Causation

[98]        
In cases of negligence the plaintiff must establish causation for both
injury and loss. As Mr. Justice Voith noted in Brewster v. Li, 2013 BCSC
774 at para. 78:

[78]      The plaintiff must establish causation for both
injury and loss. If a defendant did not cause an injury, (s)he is not
liable for the losses flowing from that injury. Even if a defendant did cause
an injury, (s)he is not liable for any losses or damages that were not caused
by the injury. In Blackwater v. Plint, 2001 BCSC 997 at para. 364, 93
B.C.L.R. (3d) 228 [Blackwater BCSC], Chief Justice Brenner, as he
then was, adopted the following dichotomy between “injury” and “loss”:

"injury" refers to the initial physical or mental
impairment of the plaintiff’s person as a result of the [defendant’s act],
while "loss" refers to the pecuniary or non-pecuniary consequences of
that impairment.

[99]        
The defendants concede that as a consequence of the motor vehicle
accident, Mr. Mothe suffered myofascial injuries to the paracervical soft
tissues and interscapular region and to the left shoulder and that he suffers
from cervicogenic headaches. Mr. Mothe does not contend that the left-sided
carpal tunnel syndrome or left wrist injury were caused or aggravated by the
motor vehicle accident.

[100]     The issue
of dispute with respect to causation is in relation to the left-sided
radiculopathy. I have concluded that the motor vehicle accident was not a cause
of this condition. In particular, I note:

(a)      while trauma can be a
cause of radiculopathy, this is only in a minority of cases. The majority of
cases emerge spontaneously;

(b)      if the motor vehicle
accident did cause the radiculopathy either directly or through myofascial
injury, one would expect the symptoms to manifest within a relatively short
timeframe;

(c)      Mr. Mothe’s symptoms
first manifested in or around January 2013, more than a year after the motor
vehicle accident and well beyond the timeframe that would be associated with
the emergence of such symptoms following trauma;

(d)      I prefer the opinion
of Dr. Heran to that of Dr. Sahjpaul. Dr. Sahjpaul obtained a history that was
not accurate and he did not have the benefit of a review of the clinical
records. He was not aware of the delay of onset of many of Mr. Mothe’s symptoms
and conceded that a delay of onset makes his diagnosis less certain regarding any
link between the motor vehicle accident and the radiculopathy. In contrast, Dr.
Heran had a more complete and accurate history and was provided with the
clinical records;

(e)      Dr. Kleinman expressed
an opinion with respect to causation but did not comment on the delay of onset
of the symptoms of the radiculopathy. In cross-examination, he conceded the
significance of delay of onset of symptoms in determining causation. He
conceded that if the report to Dr. Smith in January 2013 was the first evidence
of symptoms of radiculopathy, the linkage to the motor vehicle accident would
be weak.

Non-Pecuniary Loss

[101]     Counsel
for Mr. Mothe submits that prior to the motor vehicle accident Mr. Mothe was in
good physical health. He was looking forward to the birth of his daughter. He
had enjoyed a work history of largely uninterrupted physical work. Counsel
submits that Mr. Mothe loved physical activity. He was active at the gym,
playing hockey and mountain biking. He loved his work and took great pride in
providing for his family.

[102]     Counsel
submits that although Mr. Mothe is stoic and has struggled to carry on, he is
not the man that he was prior to the accident. He has lost all of his
recreational activities. He is less energetic at home and with his family. His
attitude is less positive. He is in chronic pain and the prognosis for
improvement is very poor. Counsel cites Kuras v. Repo, 2014 BCSC 1634; Crane
v. Lee, 2011 BCSC 898; Gosselin v. Neal, 2010 BCSC 456; Pett v.
Pett, 2008 BCSC 602; and Foran v. Nguyen, 2006 BCSC 605, in support
of a range on non-pecuniary loss of between $80,000 and $105,000.

[103]     The
plaintiff’s positon is premised on a finding that all of the pain and partial
disability that Mr. Mothe has experienced since the motor vehicle accident is
the result of injuries suffered in that accident. The positon of the defendants
is that the left wrist injury, left-sided carpal tunnel syndrome and left side
C7 radiculopathy are related to causes other than the motor vehicle accident
and that those conditions contribute substantially to Mr. Mothe’s present pain
and restriction.

[104]     The
defendants concede that Mr. Mothe sustained myofascial injuries to the cervical
soft issues, interscapular region and the left shoulder, and that as a
consequence he continues to suffer from neck and left shoulder pain and
cervicogenic headaches. Counsel submits that the headaches are frequent but
relatively mild and that the neck and left shoulder pain do not restrict Mr.
Mothe from working full time five to six days per week, playing hockey,
attending the gym, jogging, doing yard work and his fair share of the domestic
responsibilities, including caring for his infant daughter. Counsel submits
that any ongoing problems of a more significant nature are the result of the
pre-existing Workplace Injury and the C7 radiculopathy.

[105]     Citing Ryan
v. Klakowich, 2011 BCSC 835; and Ludwig v. Frighetto, 2012 BCSC
1721, counsel submits that $25,000 is the appropriate award for non-pecuniary
loss in the circumstances.

[106]     I agree
with the submission of the defendants that the functional limitations described
in Mr. Shew’s analysis are either in whole or in large part the consequence of
the chronic left wrist problems stemming from the Workplace Injury or the consequence
of the C7 radiculopathy. I have found that the motor vehicle accident did not
cause or contribute to this condition. However, Mr. Mothe does suffer neck and
shoulder pain and headaches as a consequence of the motor vehicle accident.
With respect to these injuries, his recovery has plateaued and the condition is
chronic. These injuries have not, with the modest exception discussed below,
prevented Mr. Mothe from working but he does so in pain. These injuries have
contributed to fatigue and a discouraged, pessimistic outlook. They have
reduced his enjoyment of recreational activities and his family life.

[107]     In all of
the circumstances, I award $40,000 for non-pecuniary loss.

Past Wage Loss

[108]     Mr. Mothe
agreed that following the motor vehicle accident he worked more hours than he
had before the accident. He submits that he would have worked a couple more
shifts per year if he had not been injured and that these would likely have
been rated work at the afternoon shift differential. He claims $3,000 for past
wage loss.

[109]     The
position of the defendants is that this claim is not sustainable in the face of
Mr. Mothe’s history provided to medical practitioners that he had not missed
any work. In any event, the marginal tax rate of 30% from the evidence given by
Mr. Lakhani should be applied to any award given under this head.

[110]     Mr. Mothe
had a plan to work extra shifts in order to make it financially possible for
Ms. Mothe to cut back or cease work outside the home entirely. It is clear that
the work was available to be taken up in the period following the motor vehicle
accident. I am satisfied that as a result of the injuries suffered in the
accident, his pain and fatigue prevented him from taking on more extra shifts
in the amounts claimed. I agree with the submission of the defendants that the
30% marginal tax rate should be applied and consequently award $2,100 for past
wage loss.

Loss of Future Earning Capacity

[111]     Mr. Mothe
testified that his plan was to work extra shifts in order to make it possible
for his wife to stop working. In addition, he wanted to maximize his
longshoreman’s pension. Ms. Mothe confirmed these plans in her testimony. Mr.
Doran confirmed that it is not uncommon for longshoreman to work well past 65
years of age.

[112]     Counsel
submits that the injuries Mr. Mothe sustained in the motor vehicle accident
have left him with physical and functional restrictions that will have an
adverse effect on his ability to sustain the physical requirements of his
occupation. Counsel relies in particular upon the findings of Mr. Shew’s
functional assessment and Dr. Kleinman’s observations.

[113]     Counsel
submits that as a consequence of these restrictions, it is likely that Mr.
Mothe will be forced to reduce his hours and that he will retire earlier than
he would have done had it not been for the accident. Thus counsel submits that
the “real and substantial possibility of a future event leading to an income
loss” per Perren v. Lalari, 2010 BCCA 140 at para. 32, is satisfied
in the present case.

[114]     Counsel
submits that based upon the pre-accident plan to work a full five-day week plus
25 weekend shifts, the present value of Mr. Mothe’s future earnings until age
65 would be $1,171,000. A 20% reduction in these hours would represent a loss
with a present value of $234,152. In addition, Mr. Mothe would suffer an
additional loss if he retires even three or four years earlier than he would
have in the absence of his injuries. Counsel submits that in all of the
circumstances and taking into account negative and positive contingencies, Mr.
Mothe’s loss should be assessed at $250,000 to $300,000.

[115]     The
position of the defendants is that there is no viable claim for loss of future
income earning capacity. Counsel notes that Mr. Mothe has been able to carry on
with his duties since the accident and indeed has increased his hours of work.
As he rises in seniority, he is able to obtain jobs that have somewhat more
modest physical demands. Counsel submits that the physical and functional
restrictions are the result of the C7 radiculopathy which is not related to the
motor vehicle accident and notes that in any event if Mr. Mothe requires
surgery for this condition, one would anticipate an improvement in his
condition.

[116]     As noted
above, I agree with the submission of the defendants that the restrictions described
in Mr. Shew’s report flow in whole or substantial part from the conditions
which I have concluded were not caused by or aggravated in the motor vehicle
accident. I note in addition that Mr. Mothe has continued to work full time
since the motor vehicle accident; indeed he has increased his hours. The only
past wage loss is for a slightly reduced number of extra shifts. Mr. Mothe’s
condition with respect to the injuries caused by the motor vehicle accident has
plateaued.

[117]     I have
concluded that there is “a real and substantial possibility of a future event
leading to an income loss” in the present case; namely that Mr. Mothe will
continue to not take up a small number of additional extra shifts as he has
since the motor vehicle accident. I find that the injuries suffered in the
motor vehicle accident are a causal factor in this future loss. In my view, the
past behaviour is the best predictor of the future in this case. Based upon the
past wage loss of $1,000 per year and the multiplier set out in Mr. Lakhani’s
expert report, the award to age 65 would be $13,830. However, Mr. Mothe planned
to work past age 65 and the fatigue associated with chronic pain may well have a
more debilitating effect as time goes on.

[118]     I award
$20,000 for damages for the loss of ability to earn income.

Special Damages

[119]     Mr. Mothe
has advanced a claim for 25 physiotherapy treatments in the amount of $750. The
defendants did not take issue with this claim which I award in the amount
claimed.

Cost of Future Care

[120]     Mr. Mothe
seeks an award of $2,500 for ongoing physiotherapy as recommended by Dr.
Kleinman. Counsel notes that while a gym program and the assistance of a
kinesiologist were also recommended, Mr. Mothe has stated that he would have
kept up his gym membership in any event. The position of the defendants is that
no entitlement for future care has been established.

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

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

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

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

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

[122]     In the
present case, Dr. Kleinman supported ongoing supportive care in the form of
physiotherapy, chiropractic and or massage. Both he and Dr. Heran supported an
active rehabilitation program with the assistance of a kinesiologist. Mr. Mothe
has attended physiotherapy in the past when it has been recommended. In the
circumstances, I am satisfied that the award sought is appropriate and award
$2,500 for the costs of future care.

Summary

[123]     In the
result, I award damages as follows:

[124]     If the
parties are unable to agree on costs, they may, within 21 days of these
reasons, and before entry of the order reflecting these reasons, arrange to
speak to the issue at their and the Court’s earliest convenience. Otherwise,
the order will provide for Mr. Mothe to have his costs at Scale B.

“Ross J.”