IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Gleason v. Yoon, |
| 2015 BCSC 586 |
Date: 20150416
Docket: M139472
Registry:
New Westminster
Between:
Patricia Carolina
Gleason
Plaintiff
And
Myung Yoon
Defendant
Before:
The Honourable Mr. Justice Cohen
Reasons for Judgment
Counsel for the Plaintiff: | Karalyn Moore; Paul |
Counsel for the Defendant: | Rajeev K. Patro |
Place and Dates of Trial: | New Westminster, B.C. January 26-30, |
Place and Date of Judgment: | New Westminster, B.C. April 16, 2015 |
IV. Discussion and
Findings on the Plaintiffs Accident Related Injuries
6. Household Chores and Hobbies
2. Neck, Left Shoulder & Left Arm
5. Effect on Homemaking and Hobbies
6. Effect on Employment Activities
V. Discussion and Decision on
the Plaintiffs Claim for Damages
C. Loss of Housekeeping Capacity
I. The Plaintiffs
Position
[1]
The plaintiff, who will turn age 50 in April of this year, was involved
in a motor vehicle accident on June 26, 2010. She was riding as a passenger in
a Chevrolet Equinox sports utility vehicle driven by her then husband Jim
Gleason. As the plaintiffs vehicle was stopped on the Dewdney Trunk Road
waiting to make a left hand turn at the intersection of 217th Street in Maple
Ridge, a vehicle driven by the defendant struck the rear of the plaintiffs
vehicle. Liability is not in issue.
[2]
The plaintiff claims that the accident is the cause of her soft tissue injuries,
particularly to her low back, the left side of her neck and shoulders, and to
her left arm. In addition, she claims that she also suffers symptoms of
headaches, dizziness, anxiety, lack of sleep and post-traumatic thoracic outlet
syndrome, all due to the accident.
[3]
The plaintiff immigrated to Canada in 1986 from El Salvador as a young
adult, along with her parents and younger siblings. Since that time she has
learned to speak English, worked at several different jobs, married and raised
two sons. She separated from Mr. Gleason in late 2010, and now resides with her
common-law partner George Stark. Her eldest son Kevin Gleason (Kevin) lives
in a basement suite in their home.
[4]
The plaintiff, who at the time of the accident was employed as a
production supervisor at Value Village, became employed with that company in
2005 as a part-time employee. She worked her way up through several different
positions in the company at several locations in Metro Vancouver. She is now
the manager of the Value Village Clarke Road Coquitlam store.
[5]
She explained that while her daily role is primarily to oversee the
management of the store, when a different department of the store is short-handed
because store staff is away due to illness, vacation or otherwise unavailable,
and she is not able to delegate tasks to other personnel in the store, then she
must step in and assist with these tasks, some of which are very physical in
nature. The physical nature of these certain tasks that she is required to
assist with as part of her employment is central to her claim for damages.
[6]
She also explained that the success of the store is driven by meeting
production and sale targets and quotas, and that she must step in to assist
when needed to ensure that these targets and quotas are met. According to her,
at the present time the continued operation of the store is under review by
management given its recent poor financial performance, due largely to Skytrain
construction that has been taking place in the immediate area of the store, impeding
customer access.
[7]
The plaintiff says that since the accident she has suffered constant
pain; dizziness from time to time, particularly when she performs cashier tasks
or other tasks that require head movement; and some functional limitations
regarding physical tasks, particularly at those times of the year when there is
a changeover of the floor goods and special sale or seasonal events, such as
Halloween, when goods have to be physically relocated or moved off the floor.
[8]
The plaintiff submits that her accident related injuries have impacted
every aspect of her daily life from the tasks that she has to perform at work
to her household duties, and that overall she has become a much less active
person. She mentioned that she cannot any longer perform the majority of
household chores, such as carrying a heavy vacuum, washing dishes, or doing
laundry; and she can no longer sit for long periods of time and do crafts as
she did prior to the accident, or enjoy other hobbies or physical activities
such as taking a long walk. She also submits that the accident has made her
very anxious about being a passenger in a motor vehicle, to the extent that she
does not now wish to obtain a drivers licence. She claims that this condition
may have a negative impact on her future job prospects.
[9]
The plaintiff has been diagnosed with soft tissue injuries to her neck,
back and shoulders. She briefly attended physiotherapy, but discontinued the
treatments because she felt that they were not helping her condition. She has
been taking Advil on a daily basis to deal with her pain, and to get her
through the work day, as well as using it to help her sleep during the night.
[10]
The plaintiff has also been diagnosed with post-traumatic thoracic
outlet syndrome. This is a chronic condition affecting her left arm, from her
shoulder to her fingertips. The plaintiff claims that this condition is related
to the accident and is functionally limiting and, as such, has left her
somewhat disabled. She submits that the best case scenario for her future
health is the status quo, and that she is at risk for aggravating and worsening
her condition should she suffer a further trauma, or be required to repeatedly
use her left arm.
[11]
Causation regarding the plaintiffs condition of post-traumatic thoracic
outlet syndrome is not in issue. However, a central issue regarding the
plaintiffs claim for damages for accident related injuries is the severity of
her alleged symptoms from this condition as it relates to the assessment of her
non-pecuniary damages, and her claim for damages to compensate her for lost
earning capacity. She claims that the accident related injuries have rendered
her functionally limited, and that while she was fortunate to have been
assigned light duties immediately following the accident, and has been able to
accommodate her symptoms at work to some extent since the accident, her future
employment prospects are anything but certain.
[12]
The plaintiff submits that although she was only away from work for a ½
day following the accident, has been working almost constantly since the
accident, and has received positive performance reviews, salary increases, and
a promotion to store manager, she is seriously limited in carrying out some of
the physical tasks associated with her position and must constantly delegate
such tasks to other store employees, as well as spend time in the office in
order to rest so that she can cope with her responsibilities. She claims that if
she is required to find new employment, or suffers a further deterioration of
her physical condition, she will face a great deal of uncertainty regarding her
future employment options.
[13]
The plaintiff submits that prior to the accident she was always upbeat
and happy and had no serious health issues that rendered her physically
incapacitated to perform at work, home or in pursuit of her recreational and
hobby activities. However, after the accident she continues to suffer symptoms
of her accident related injuries and, in the case of her left arm and shoulder,
the symptoms are worsening. She seeks non-pecuniary damages in the range of $90,000-$105,000;
loss of earning capacity in the range of $50,000-$150,000; loss of housekeeping
capacity in the range of $10,000-$25,000; cost of future care in the range of
$20,000-$30,000; and special damages in the amount of $6,880.
II. The Defendants Position
[14]
The defendant acknowledges that the plaintiff sustained soft tissue
injuries to her neck, upper back, and left shoulder as a result of the accident.
The defendant also accepts that the plaintiff has developed post-traumatic
thoracic outlet syndrome, but takes the position that the plaintiffs symptoms
from this condition are mild. The defendant submits that the plaintiff
experienced an increase in headaches for a period of time following the
accident, as well as intermittent dizziness, but that her symptoms have
generally reduced over time, despite the fact that she only participated in ten
passive physiotherapy sessions.
[15]
The defendant accepts that the plaintiff is entitled to awards for
non-pecuniary damages for her pain and suffering, as well as special damages
for her physiotherapy and ambulance bill, totaling $280. The defendant submits
that the evidence supports an award to the plaintiff of non-pecuniary damages
in the range of $32,000-$45,000 (applying a 10-20% deduction to a range of
$40,000-$50,000 for the plaintiffs alleged failure to mitigate). The defendant
opposes an award of damages to the plaintiff under all other heads being
claimed by her.
III. The Issues
1. What injuries did the
plaintiff sustain as a result of the accident?
2. What effect has the
accident had on the plaintiffs homemaking and recreational activities?
3. What effect has the
accident had on the plaintiffs employment?
4. What damages ought to be
awarded the plaintiff?
5. Has
the plaintiff failed to mitigate her damages, and what deduction, if any,
is appropriate?
IV. Discussion and Findings on the Plaintiffs
Accident Related Injuries
A. The Plaintiffs Position
1. General
[16]
The plaintiff submits that the impact that the accident has had on her
over the past several years has been nothing short of transformative. She has
experienced headaches, nausea, and dizziness, which she experienced daily for
approximately a year before those symptoms decreased to more tolerable, albeit
still frequent, levels. She claims that she has experienced pain in her lower
back, which was initially so severe that doctors X‑rayed that area in the
emergency room following the accident. She has also experienced difficulty
sleeping and suffers from anxiety while riding as a passenger in motor
vehicles. Most significantly, however, is the pain she claims she has
experienced and continues to experience on the upper left side of her neck and
back and in her left shoulder, which radiates down her left arm, and leaves her
hand numb and tingling, symptoms caused by post-traumatic thoracic outlet
syndrome, which is a permanent and potentially worsening condition.
[17]
The plaintiff submits that her injuries have caused her difficulty in
all aspects of her life. She claims that her daily pain and discomfort have
caused difficulty in her recreational activities, household chores, and at work.
She notes that she was a very active crafter prior to the accident, spending a
great deal of time knitting. However, she now finds that she can no longer knit
for longer than 15 to 20 minutes, a fact confirmed by the evidence of Mr.
Gleason and Kevin. The evidence of Mr. Stark was that the plaintiff has
beading materials that she rarely uses, and she stopped going to the gym,
finding that it aggravated her symptoms.
[18]
She also claims that she was previously responsible for practically all
household chores, but that she now relies to a large degree on Mr. Stark, because
vacuuming, dishwashing, yard work, and anything requiring her to reach above the
level of her shoulders aggravates her symptoms.
[19]
The plaintiff submits that at work she either needs to avoid certain of
her duties by delegating or hiding out in the office, or work through the
pain and risk worsening her injuries. She submits that work is a very difficult
and painful way for her to spend her days and this is indicative of just how
serious her injuries are.
[20]
The plaintiff submits that the most serious aspect of her injuries is
their permanence. As described by the plaintiffs experts, Drs. A.J. Salvian, a
Vascular Surgeon, and R. N. Stewart, a Physiatrist, any symptoms related to her
post-traumatic thoracic outlet syndrome will never be cured and, in fact, are
at serious risk of worsening with either repeated use of her left arm or with
further trauma. She claims that her realization over the past few years that
her injuries are permanent and may get worse has been difficult for her. She
has been left limited in her work, activities, and home life, and is vulnerable
to further trauma or aggravation even by simple tasks.
[21]
The plaintiff also submits that prior to the accident she was an upbeat
and energetic woman, and that essentially she had no major health issues prior
to the accident relating to the areas of her body injured in the accident. There
is no history of pre-accident ongoing or frequent headaches, although the
plaintiff agreed, in cross-examination, that she had told Dr. Salvian and the
defendants expert Dr. Andrew Travlos, a specialist in Physical Medicine
and Rehabilitation, that she had experienced headaches a couple of times a
month prior to the accident, but said that after the accident they were stronger.
[22]
Regarding her employment, at the time of the accident the plaintiff was
employed at Value Village as a production supervisor. She was responsible for supervising
a team of employees who received goods from trucks delivering donations of
clothing and miscellaneous items, weighing and sorting the bags of clothing and
miscellaneous items, moving the items to the sales floor, and preparing the
items for sale, including pricing and tagging.
2. Soft Tissue Injuries
[23]
Prior to the accident, the plaintiff did not experience any difficulty
with the physical tasks associated with her employment, including participating
in the tasks above described, with the exception of calling upon others to
assist moving the heavy carts containing the bags of donated clothing and
miscellaneous items upon their delivery to the receiving area of the store.
[24]
Part of the plaintiffs employment duties prior to the accident were to
ensure that store department quotas were being met. To complete this part of
her duties, the plaintiff had to help out departments from time to time by
taking on some of the physical tasks associated with that department, including
sorting clothes and other donated items, pricing, and tagging.
[25]
The plaintiff gave evidence regarding the pain she experiences in her
neck, left shoulder, and left arm, as well as occasional numbness in her left
hand and fingers. She experienced pain in her neck immediately following the accident.
She described this pain as occasionally excruciating, occasionally bringing her
close to tears, occurring every day to some degree, and seeming to get worse
over time. She further described an inability to lift her left shoulder and
that even lifting her arm to a level below shoulder level causes her pain. This
pain worsens with repeated use of her arm. She described the numbness she
experiences in her hand as uncomfortable and functionally limiting to a degree,
for instance, occasionally causing her grip difficulties. Her evidence was
that, with respect to her left shoulder and arm symptoms, it feels as though
they are getting worse.
[26]
Mr. Stark also gave evidence that he has often observed the
plaintiff sit down and hold her neck and left shoulder. He has also observed
that she cannot carry a vacuum cleaner. He has heard her complain when doing
dishes. He described having to massage her neck and left shoulder, which he
said has occasionally caused her to cry out in pain. He has occasionally applied
a topical medication to her back called MediStik.
[27]
The plaintiffs family doctor, Dr. I.S. Crothers, made the following
clinical notes: on June 28, 2010, he noted right and left trapezius tenderness;
on July 7, 2010, he noted neckache and pain radiating down the plaintiffs
left arm; on July 19, 2010, he noted tender trapezius muscles, particularly on
the left side; on March 5, 2011, he noted neck pain as well as tender left
trapezius and rhomboid muscles; on May 12, 2011, he noted that she remained in
pain, with her left side worse than her right, and numbness in her left arm; and
on December 9, 2011, he noted that if she did physical work, she got
neckache, shoulderache, and some numbness in her left hand.
[28]
The plaintiff submits that while all three medical experts, Drs.
Salvian, Stewart and Travlos, gave evidence to the effect that the plaintiff
suffers from thoracic outlet syndrome due to the accident, it is the evidence
of Dr. Salvian that should be accepted as the most authoritative on the
issue. Dr. Salvian received training in the diagnosis and treatment of
thoracic outlet syndrome in 1979, and has had a special interest in the
condition since coming on staff at Vancouver General Hospital (VGH) in 1981.
He is a member of a multidisciplinary group of specialists at VGH and the
University of British Columbia with an interest in the diagnosis and treatment
of the syndrome. He sees, on average, four to six possible cases of thoracic
outlet syndrome each week and has treated well over 2,000 patients with [the
condition]. Dr. Salvian was qualified at trial as an expert witness in
vascular surgery and the diagnosis and treatment of thoracic outlet syndrome.
The plaintiff submits that where the evidence of any of the three medical
experts differs on the issue of thoracic outlet syndrome, the evidence of Dr. Salvian
should be preferred.
[29]
Dr. Salvian examined the plaintiff on March 12, 2014, the date of
his Report. His assessment of her involved an interview, a review of her
medical records, and a physical examination. Dr. Salvian gave evidence
regarding the importance of each of those three elements to the formation of
his opinion.
[30]
On examination, Dr. Salvian tested the plaintiffs range of motion,
her response to muscle palpitation, her external rotation capabilities, her
grip strength, and her general tenderness in the muscles affected. He found
disparity between her right and left flexion and rotation, with some pulling
and discomfort on her left side with right flexion and rotation. He noted in
his Report, at p. 8, that she had:
marked tenderness of the left
trapezius and very marked tenderness of the left scalenes. Palpitation here causes
radiation down the medial aspect of the arm to the inner arm and forearm. She
has moderate tenderness to palpitation of left pectoralis minor.
she has
difficulty flexing across her chest. External rotation is also quite painful.
[31]
There was disparity between her right and left grip strength (28 kg
and 20 kg, respectively). She also had diminished sensation for cold, fine
touch, and two point discrimination in the second, third, and fourth fingers of
her left hand.
[32]
His examination also involved what he termed Thoracic Outlet Testing.
The plaintiffs results were as follows, at p. 9 of the Report:
a. Arms elevated and wrists
extended test: this causes pain in the left shoulder;
b. Straight arm elevation
test: this really does not bother her;
c. Hold up manoeuvre: this
causes pain into the left shoulder and eventually all of the fingers of the
left hand go numb and into the base of the hand;
d. Adisons manoeuvre: this
causes numbness into the left third finger; and
e. Military brace manoeuvre:
this causes shoulder pain.
[33]
With respect to the plaintiffs neck and left shoulder pain, with
associated pain and numbness shooting down her left arm and into her left hand,
Dr. Salvian was of the view that it is the result of post-traumatic
thoracic outlet syndrome. According to him, the plaintiff, like the majority of
thoracic outlet syndrome sufferers, was anatomically predisposed to thoracic
outlet syndrome, likely due to an abnormal fibrous band in the region of her
left scalene muscles, and that the accident and associated whiplash injuries
are what caused it to manifest. The plaintiff notes that in the cross-examination
of Dr. Salvian, he gave evidence that it is highly unlikely that a person
with such a predisposition would develop the syndrome absent any trauma to the
scalene muscles.
[34]
The plaintiff also submits that Dr. Salvians comments regarding the
plaintiffs resulting limitations and her prognosis are worth highlighting.
With respect to limitations, at pp. 22-23 of his Report, Dr. Salvian
opined as follows:
Passive therapy such as acupuncture, massage and chiropractic
are never curative but are often beneficial, particularly when patients have
over done it.
The most important component of the conservative management
of thoracic outlet syndrome is aimed at good ergonomics. Ms. Gleason can
manage reasonably well as long as she does not have to do anything physical or
repetitive with the left arm, particularly with the arm elevated or with the
arm away [from] the chest.
It is important that she continued to be able to do this at
work. She is in a more managerial position now and it is my opinion that she
could not do a more physical job where she had to lift boxes or put items on
shelves or do repetitive activities such as typing or prolonged driving or
heavy lifting.
At home she will require assistance with heavy housework such
as vacuuming, wall washing, and window washing. She should avoid putting things
in high shelves or hanging up heavy loads of laundry. She will require
assistance with gardening, raking and shoveling and painting.
From a recreational standpoint, as I have stated, she needs a
gym pass and a personal trainer to try to develop an exercise program where she
can lose weight and improve her overall conditioning. There are activities,
however, that she should avoid, particularly two handed activities such as
kayaking, and back packing. It is often difficult for these patients to cycle
because of the heads up position. Jogging is often difficult because of the
jarring nature of the activity. Most often these patients get their
cardiovascular exercise by walking. Sometimes they can use a recumbent bicycle.
She will have a great deal of difficulty with two handed activities such as
golf or tennis.
The job she is doing now seems to be reasonable as long as it
is in a managerial function but it may be worthwhile having a functional
capacity assessment and vocational assessment because, as I have stated, I
dont believe that she can do a more physical job. There may be limitations in
her present job if she is required to do prolonged typing or clerical work.
At the present time I dont
believe that she is a candidate for thoracic outlet surgery. It would be much
better to have her be able to cope with the behaviour modifications as I have
outlined.
[35]
With respect to her prognosis, at p. 24 Dr. Salvian opined as
follows:
Ms. Gleason has had these symptoms since the motor
vehicle accident of June 26, 2010 and by definition has a chronic pain
syndrome. It is my experience that patients are never cured by conservative
therapy of thoracic outlet syndrome. They may be able to cope and have a
reasonable quality of life if they are able to follow the behaviour
modification that I have outlined. On the other hand, if they are forced to
use the arm repetitively, particularly with elevation or with any degree of
load, then their symptoms of neuralgic pain will become worse and eventually
result in a more severe chronic pain syndrome and they simply will not be able
to do that activity.
Ms. Gleason is at risk of
exacerbating her symptoms should she have further trauma to the scalene
muscles. However, muscle spasms can occur with something as simple as sleeping
in the wrong position or prolonged driving or a sudden unusual activity such as
moving furniture for example.
[36]
The plaintiff notes that in direct examination, Dr. Salvian
emphasized the stubborn nature of thoracic outlet syndrome and the potential
for the condition to worsen. He explained how therapy is never curative,
although it may provide relief from the acute irritation. Furthermore, his
evidence was that a person suffering from thoracic outlet syndrome is at
significant risk of worsening their pain and functional limitations should they
be unable to keep their affected arm at their side or suffer further trauma,
such as another flexion/extension injury, a fall, or a motor vehicle accident.
[37]
The plaintiff also notes that under cross-examination, Dr. Salvian
was challenged about the severity of the plaintiffs thoracic outlet syndrome.
When asked if someone who could do more work with their left arm would have a
less serious case of the syndrome, he answered that such a view was missing the
point. He said that the symptoms are additive, and that his opinion would not
change if he learned that she was sorting clothes for one hour as opposed to 15
minutes. He was also challenged about the effectiveness of treatment. His
evidence remained that while some treatment, mostly aimed at posture and
stretching, could possibly help with the relief of symptoms, he was very
skeptical that any treatment could relieve her symptoms, particularly now that
she has had the syndrome for more than four years. When asked whether her
treatment had been optimized, he responded that he is unsure what else she would
have been able to do to relieve her symptoms.
[38]
The plaintiff also submits that as a result of the accident she has suffered,
and continues to suffer from soft tissue injuries to her neck, cervical spine,
trapezius muscles, scalene muscles, rhomboid muscles, pectoralis minor, and
lower back.
[39]
She submits that support for this finding of fact can be found not only
in the evidence of herself, but also in the Reports of Drs. Stewart and
Salvian. At pp. 16-17 of his Report, Dr. Salvian stated, as follows:
Ms. Gleason has ongoing neck and left shoulder pain which is
constant but is exacerbated by activities, particularly using or elevating the
left arm.
It is my opinion that this neck
and left shoulder pain is due to injury to the paraspinal muscles, particularly
the trapezius, rhomboids and scalene muscles and pectoralis minor. This type of
myofascial injury to the ligaments and muscles results in scarring and
shortening and to a degree spasm of the muscles which then act in an agonist /
antagonist manner. This results in poor scapulothoracic motion and increased
muscle strain.
[40]
At p. 8 of her Report, dated December 10, 2013, Dr. Stewart had
similar findings:
Ms. Gleason reported that she had no problems with neck or
back pain or headaches prior to the motor vehicle accident of June 26, 2010 and
her records support that claim. Following the accident she complained of pain
in her neck and shoulders, headaches, a pins and needles sensation in her hands
and dizziness with nausea. She has also complained of low back pain on occasion
since the accident. On his initial examination two days after the motor vehicle
accident Dr. Crothers found tenderness over both trapezius (shoulder) muscles. Given
this history it is my opinion that Ms. Gleason sustained soft tissue injuries
to her neck and back in the motor vehicle accident. The mechanism of injury,
that of a rear-end motor vehicle accident, is consistent with such an injury.
Ms. Gleason has continued to experience positional dizziness
since the accident. In my opinion it is likely that she sustained an injury to
the vestibular apparatus in her inner ear at the time of the accident.
She has experienced post-traumatic stress symptoms since the
accident in the form of bad dreams about accidents, anxiety in a vehicle and
avoidance of getting in a vehicle. These symptoms have interfered with her
planned pursuit of a driving license, which is necessary to her job.
She has had very limited rehabilitation for her injuries and
that rehabilitation was entirely passive. She has continued to experience neck
pain, related muscle tension headaches and low back pain. She has signs and
symptoms of secondary thoracic outlet syndrome on the left side, likely due to
increased tension in the scalene muscle.
Her longstanding tendency to
clench and grind her teeth has been worse since the motor vehicle accident, in
response to pain and to anxiety in a vehicle.
3. Headaches
[41]
The plaintiff also claims that as a result of the accident she
experienced constant headaches for approximately a year following the accident,
and continues to experience lingering frequent headaches two to three times a
month.
[42]
In direct examination, she described her headaches as beginning with a
very dull pain, and then turning into a pounding headache with ringing in her ears.
She described the dull headaches as being permanent, and the bad headaches as
being caused by very heavy work. She testified that if she does not take
medication right away, the bad headaches can last from a few hours to a whole
day.
[43]
As mentioned earlier, the plaintiff conceded that she did experience
headaches prior to the accident, but said that they were less intense than they
are now.
4. Dizziness
[44]
The plaintiff submits further that as a result of her accident related
injuries she experienced dizziness on a daily basis for a period of time
following the accident, and continues to experience occasional dizziness.
[45]
She testified that following the accident, she had to take Gravol every
day in order to control her dizziness, and continues to take Gravol
approximately twice per month. She testified that she has learned to control
her dizziness to some degree by refraining from moving her head around. However,
when she has to work the cash register or the sorting table at work, she is
unable to do so for long without becoming very dizzy and having to stop.
[46]
She described the dizziness as feeling like everything is spinning around
her, sometimes coming on suddenly and sometimes requiring her to sit down. It
often is caused by her making sudden movements, or looking down and up. It is
made worse with increased activity, and is often much worse on Tuesdays, which
is Seniors Day at Value Village, which, she testified, is the stores
busiest day and the day she tends to work at the cash register the most.
[47]
She testified that the dizziness makes her very disoriented and tired,
and she is unable to think straight. She said that she experiences these
symptoms approximately twice per week.
5. Functional Limitations
[48]
The plaintiff also points to the symptoms from her accident related
injuries and submits that she is now functionally limited at her employment
with Value Village.
[49]
The plaintiff described in some detail all of the tasks she is faced
with in her work day and the difficulties that she experiences with each of
them. She stated in direct examination that prior to the accident, she was able
to sort approximately 100 to 150 bags, but since the accident she is
unable to get through three bags. This task irritates her neck, shoulders, and
lower back, and if she were to do it on a daily basis it would cause her
dizziness.
[50]
She described that tagging has a very negative effect on her shoulder
because she has to hold up clothes. It may at times also affect her headaches,
and standing for long periods may also aggravate her lower back pain. She
stated that she is only able to do this task for approximately half an hour at
a time.
[51]
She also testified that she has completely avoided pricing since the accident,
because of the positioning of the machine to her left side and the way she
would be required to move her head.
[52]
When she has exhausted her capacity for tasking, she testified that she
will often leave the floor and go to her office to rest her body a little bit.
She uses that time to check emails, read reports, etc., and said that she just
needs to remove herself in order to have a rest. However, she testified that
she tries not to sit in her office for too long, half an hour at the most,
because she wants to set a good example for her team members.
[53]
She testified that she has been told by her supervisors on various
occasions that she should be spending less time in the office. She notes that her
performance records document this concern, which was expressed by two separate
supervisors over the course of three years. In the plaintiffs 2011 performance
review as a Value Village production manager, Mr. Jeffrey Stonehouse, the
plaintiffs store manager at the Hastings Street store location, recorded the
following comments:
In the coming
year Patricia needs to better balance her time spent on the sales and
production room floor against time spent in the office. She has the floor
manager experience that when put together with her new understanding of the
business through reports will generate quicker response time to opportunities
in all aspects of operations and production. By ensuring that more time is
spent on the floor rather than the office Patricia will also be able to
recognize in her team development opportunities and high potential [team
members].
In 2012 Patricia needs to
identify [high potentials] and grow the bench on a regular basis and work on
growing sales through building the item ratios. In order to do this Patricia
needs to work side by side with her team and limit time spent doing non essential
tasks.
[54]
In the plaintiffs 2013 performance review as store manager, Ms. Brenda
Beecroft, Value Village District Manager, recorded as follows:
This year Patricia has missed her
sales target by double digits and TC targets by over 100%. This has been driven
from many contributing factors with a new store down the road and construction
challenges. However, it was within Patricias control to overcome these
obstacles and meet her targets. The first 6 months of the year Patricia spent a
lot of her time in the office not focused on business opportunities and being
hands on in the work. Patricia was very focused with making sure administrative
deadlines were hit and reviewing reports but not spending the time needed to
take action. Brenda and Patricia addressed the day in the life of a store
manager and structured Patricias day so she would be hands on in the business
each day and prioritize her other managerial responsibilities accordingly. This
took some time and coaching and the last 6 months Patricia has been
consistently spending her time in production and on the sales floor inspecting
and coaching her team
Today Patricia is a completely different manager and
her team fully understands what is expected of them and how to accomplish it. I
was very pleased to see sustained improvement in the last 6 months and this is
why Patricias store performance has improved.
In 2014 Patricia needs to
continue to exude the passion for the business she is showing by being involved
in every aspect of the business, keep her priority with her time on the
critical few as they currently are, continue to have a sense of urgency to
capitalize on business opportunities and lead by the example she is setting. All
of this has improved to meet and in some cases exceed standard however it was
not consistent through the first half of the year.
[55]
Ms. Lisa Leroux is a retail sales manager who works directly under
the plaintiff. She testified that she works very closely with the plaintiff
four days a week, and that she has observed first-hand her physical
limitations. In direct examination she stated that when she sees the plaintiff
lifting for a long period of time, she notices that she winces, slows down, and
is unable to move correctly. The plaintiff will often indicate to her that she
needs to go and rest. She has also observed that the plaintiffs face changes
colour, she slows down, and is not able to move as fast on the sales floor as
she normally is. She testified that she has noticed these things both during in
store moves, and when the plaintiff engages in tagging, which involves
attaching tags to clothing.
[56]
Ms. Leroux also testified that the store quotas are unforgiving,
and that the reality is that the store manager often has to jump in to help
with tasks, as there is no excuse for not making the quota at the end of the
day. She testified that she has worked under two previous store managers, and
those managers engaged in tasks, such as sorting, in order to help meet quotas,
which is something that she has not observed the plaintiff do. In terms of the
circumstances under which a store manager would be required to step in, Ms. Leroux
testified that generally it occurs when the store is short employees, which is
generally due to illness. She estimated that the store will have one to two
people missing from the production side on any given day.
[57]
Regarding in store moves, which involve replacing the items on the racks
with new items when the seasons change, Ms. Leroux explained that these moves
occur twice a year, as well as a Halloween set up that also requires a lot of
work. These rearrangements of the store occur at night while the store is
closed and involve only herself and the plaintiff. She described how larger
stores may have other team members to help with the in store moves, but because
their store is small, they do not have extra staff on hand that would not have
to be at work during the day. She testified that while her previous managers
were involved in the physical aspects of the move, the plaintiff was extremely
limited in how much she was able to help.
[58]
In terms of her general observations about the plaintiff managing her
pain at work, Ms. Leroux said that the plaintiff does not complain a lot,
but that she can see that the plaintiff is physically worn down if she has been
doing physical tasks. She stated that the plaintiff needs to take a lot of
breaks, but really tries to just keep on going. She described her as being very
apologetic about it.
[59]
In his Report, at p. 23, Dr. Salvian discussed the plaintiffs
ability to manage at work, stating:
The most important component of the conservative management
of thoracic outlet syndrome is aimed at good ergonomics. Ms. Gleason can
manage reasonably well as long as she does not have to do anything physical or
repetitive with the left arm, particularly with the arm elevated or with the
arm away [from] the chest.
It is important that she
continued to be able to do this at work. She is in a more managerial position
now and it is my opinion that she could not do a more physical job where she
had to lift boxes or put items on shelves or do repetitive activities such as
typing or prolonged driving or heavy lifting.
[60]
Dr. Stewarts Report, at p. 9, also addresses the plaintiffs
working capacity:
Because of
her injuries she would be unable to do physically demanding work and it is
appropriate that she has avoided heavier work tasks in her job since the
accident. Because of the dizziness Ms. Gleason should not work at heights
or around dangerous machinery due to the risk of falls and further injury. Even
changing a light bulb is dangerous for her.
[61]
Mr. Dominic Shew, a Work/Functional Capacity expert, who assessed
the plaintiffs work capacity, provided a Report dated March 31, 2014. The Report
discusses at length the plaintiffs limitations in the workplace. At pp. 5-7
of his Report, he stated as follows:
During testing, she did not demonstrate any significant
functional restrictions tolerating activity requiring hand dexterity, grasping
and weight bearing (i.e., standing, walking, climbing, and balancing).
She
consistently demonstrated restrictions tolerating activity that placed stress
to her neck and upper body (left more functionally restricted than the right)
when performing tasks requiring, for example, vertical reaching, horizontal
reaching and sustaining head and neck positions. She also demonstrated
restrictions tolerating activity that placed stress to trunk and left lower
extremity when, for example, completing tasks requiring work-intensive
sitting, bending, stooping, squatting, crouching and kneeling. There were
measured restrictions and reported increases in symptoms during left upper and
lower extremity strength testing as well as two handed carrying, one handed
lifting, and two handed lifting. Furthermore, there were restrictions in her
cervical and shoulder mobility.
Based on test results, Ms. Gleason demonstrated adequate strength
to safely manage the sedentary, light and select medium aspects of this line of
work (e.g., managing loads up to 25 to 30 lbs occasionally and 20 lbs
frequently). She, however, did not demonstrate the ability to safely manage the
upper strength requirements (e.g., maneuvering loads up to 60 lbs). As such, in
order to remain safe and to manager her symptoms, she will require assistance
maneuvering loads above her safe demonstrated capacity.
Although there were measured restrictions in her cervical and
shoulder mobility, clinical observations suggest that she demonstrated
functional coordination and mobility in her upper and lower body and trunk to
perform short periods of the typical positional demands expected of this line
of work. Specific to her current occupation, she did not demonstrate any
significant functional restrictions tolerating activity requiring hand
dexterity, grasping, and weight bearing. She, however, demonstrated
difficulties tolerating tasks requiring her to sustain her head, neck, upper
body (primarily left), and trunk in various positions while reaching in front
or to the sides of her body in a seated position (e.g., static positioning of
the body while reading, writing, using a computer, et cetera). In addition, she
demonstrated restrictions tolerating tasks requiring her to work overhead, to
work in low-level positions requiring bending, stooping, crouching, squatting
and kneeling, and to sustain head and neck positions. In my clinical
experience, such body positional demands are typically crucial requirements of
these occupations.
Based on the summation of the test findings, clinical
observations and her response to testing the days following the evaluation, Ms.
Gleason is likely safe and gainfully employable in this line of work with her
accommodations and work modifications currently in place. She, however, will
require assistance maneuvering loads over 30 lbs and if maneuvering of loads
over 20 lbs is required on a frequent basis to remain safe and to manage her
symptoms. In addition, her restrictions suggest that there will likely be an
aggravation of her symptoms resulting in a reduction in her ability to tolerate
the demands over her workday and week when tasks requiring prolonged and
repetitive positioning of her neck, upper body, trunk and left lower extremity
are required. Thus, to manage her symptoms and allow her to remain functional
at work, she is best suited for a position that allows her the flexibility to
take breaks as needed to rest, stretch, or change positions. She would also
benefit from ongoing and appropriate ergonomic equipment and an appropriately
set-up workstation to assist in the management of her symptoms during desk-type
activities.
To her credit, she has attempted
to continue with employment despite her physical restrictions. This is likely
due to the fact that she is in a management position that allows her to
delegate more physically demanding tasks to other workers and allows the
flexibility to change positions as needed for symptom management. However, test
findings indicate that she [is] likely at a competitive disadvantage if she was
to enter into an open job market because of the persistence of her limitations
as noted throughout this report.
[62]
Dr. Travlos, writes at p. 12 of his Report dated March 6,
2014, that [t]here are activities at work that would definitely bother her
such as lifting overhead with her left arm
Either way she is capable of
continued gainful, full-time employment.
[63]
The plaintiff contends that while it is clear from the evidence that the
physical work of tasking is not a part of a Value Village store managers
duties per se, it is within a store managers purview to ensure that
quotas are met. As Ms. Leroux testified, store managers are required to
fill in when necessary and it is important that they be physically involved in
order to be seen as being part of the team. It becomes even more important for store
managers to jump in and help with tasking when the store is short-staffed due
to employee sickness or other circumstances.
[64]
The plaintiff notes that her evidence echoed that of Ms. Leroux.
She stated that everyones quota is my quota, in the sense that her performance
is measured based on her teams accomplishment of their quotas. She added that
even though the company policy is that store managers are not supposed to task
unless they are short more than five people in production, one employee can
make the difference between hitting and not hitting targets. As an example of
the reality of the situation, she stated that it is typical that two to three
times a week there will be a shortage of employees and she will have to help
out with physical tasks. On the day she was giving evidence under cross-examination,
she explained that the store had just lost two employees, so when she returned
to work the next day she would certainly have to task until new people could be
hired.
[65]
The plaintiff submits that in addition to tasking, it is clear from both
her evidence and the evidence of Ms. Leroux that the store manager must
participate in the in store moves and the Halloween set up, all of which
require a great deal of physical work, while the in store moves involve moving
the entire store around, and the Halloween set up involves building a store
within a store.
[66]
She also submits that with respect to this point, it is important to
remember her evidence in cross-examination that while she is largely able to
control her symptoms by avoiding the use of her left arm, her evidence was also
that she experiences pain in the affected regions on a daily basis. Kevin and Mr. Starks
evidence is that she seems to suffer from pain and fatigue on a daily basis,
with Mr. Stark noting that her symptoms appear to worsen towards the end
of the work week. She submits that this evidence speaks volumes to not only her
symptoms, but to the physical nature of her job.
6. Household Chores and Hobbies
[67]
In addition, the plaintiff claims that she is functionally limited in
her household duties and pursuit of her hobbies. Kevin testified that, prior to
the accident, his mother performed 95 to 100 percent of the housework. However,
he stated that after the accident, he and his brother had to step it up by
doing all of the vacuuming and dishes, and would either pick something up after
work for dinner or Mr. Gleason would help out with the cooking. Kevin said
that now she usually only helps out with the laundry on the weekends. He
testified that if she vacuums he hasnt seen her do it.
[68]
Mr. Stark, who has lived in a common-law relationship with the plaintiff
since early 2011, testified that he does approximately 60 percent of the
housework, including vacuuming, making the bed, cleaning the kitchen, carrying
the laundry basket, dishes, and cooking. He testified that the plaintiff is
unable to carry the vacuum and complains of pain if she has to wash dishes.
[69]
While the plaintiff acknowledged that there is some discrepancy in the
evidence regarding whether she is able to vacuum, do dishes, or both, she
explained, in cross-examination, that she is unable to do vacuuming unless it
is a very light broom vacuum. In any event, she claims that it is well
supported in the medical evidence that her condition is likely to cause
difficulty vacuuming, and if she is able to do it at all, it will be painful
for her.
[70]
At p. 23 of his Report, Dr. Salvian stated the following:
At home she will require
assistance with heavy housework such as vacuuming, wall washing, and window
washing. She should avoid putting things in high shelves or hanging up heavy
loads of laundry. She will require assistance with gardening, raking and
shoveling and painting.
[71]
The plaintiff notes that Dr. Stewart echoed this opinion, in cross-examination:
So vacuuming, that wouldnt be
unusual with a with the neck and back injuries. Vacuuming is one of the
vacuuming and pushing a lawnmower are two of the things that people
particularly have difficulty with, with these injuries.
[72]
The plaintiff submits that she is significantly restricted in her
ability to perform housekeeping duties at home, particularly with regards to
vacuuming and dishes.
[73]
As well, the plaintiff testified, in direct examination, that prior to
the accident, she was attending a gym two to three times per week. In addition,
she enjoyed a variety of hobbies including knitting, woodworking, and other
crafts. Since the accident, however, she testified that she has been extremely
limited in the amount of time she can spend doing crafts, since holding her
head down aggravates her pain.
[74]
The plaintiff notes that her testimony was confirmed by Kevin and Mr. Stark.
Kevin described his mother prior to the accident as frequently engaged in
crafts, but now observes that she is only able to do so for approximately 15 to
20 minutes at a time. Mr. Stark noted, in his direct examination, that
there are several unfinished projects around the house, and that she has never
taken her jigsaw out of its box since he has lived with her.
7. Difficulty Sleeping
[75]
The plaintiff claims that as a result of her accident related injuries,
she suffers from fatigue, difficulty sleeping, irritability, and has gained
substantial weight due to her inactivity. She claims that this fact is supported
by virtually all of the lay witnesses evidence. The plaintiff testified in
direct examination that she wakes up a couple of times per night due to neck
and back pain, and takes Advil Night on a nightly basis to help her sleep. She
stated that she finds herself very tired.
[76]
Kevin recalled that in the days and weeks following the accident, the
plaintiff would go to bed two to three hours earlier than usual, and that some
days she would come home and go straight to bed without talking to anyone. He
said that she still goes to bed a lot earlier than she used to. He testified
that her energy level is low compared to what it was like before the accident,
and that often when he comes upstairs to eat dinner with his mother and
Mr. Stark, she is already in her pajamas,
and he described that she pretty well eats and goes to sleep.
[77]
Mr. Gleason testified that he did not observe the plaintiff to have any
health or mobility problems prior to the accident. However, after the accident,
she did not want to do anything, and was in bed a lot. He testified that for
several months, she would simply go straight upstairs and lie down when she got
home she just couldnt do anything. In terms of housework, Mr. Gleason
testified that after the accident, she could do very little as she was unable
to bend over to do anything and could only maybe do some light feather dusting.
He recalled that this lasted until she moved out of the family home.
[78]
Mr. Stark, while he did not live with the plaintiff prior to the accident,
confirmed that she takes two Advil at night so that she can sleep, and that if
she has had a bad week at work, she will wake up four to five times during the
night. This typically happens two to four times per week and usually more
towards the end of the week. He testified that he wakes up at 2:00 am for his
shift work, and that when he calls her later in the morning to wake her up, he
can often tell that she has not gone back to sleep.
[79]
The plaintiff stated, in direct examination, that when the pain gets
bad, she gets cranky and irritable. She will get home from work and tell Mr. Stark
that she does not want to talk. She added that she wishes there was something
she could do, as its very depressing living with daily pain.
[80]
Kevin testified that his mother is a lot moodier than she was before the
accident. Mr. Stark said in direct examination that the plaintiff will often
complain about being in pain and when shes hurting you have to leave her
alone.
8. Rehabilitation
[81]
Finally, the plaintiff contends that she has made efforts to
rehabilitate her injuries as recommended by Drs. Crothers and Salvian. In
the plaintiffs direct examination, she confirmed that she attended a number of
physiotherapy sessions, as recommended by Dr. Crothers. However, when the
physiotherapy sessions began to make things worse, Dr. Crothers advised
her to stop. The plaintiff also testified that she has been performing
stretches and practicing proper posture, as advised by Dr. Salvian during
her assessment. She also explained that it is through proper posture and
holding her head still that she is able to better control her symptoms. Mr. Stark
confirmed that he observes the plaintiff doing stretches.
[82]
The plaintiff has also made efforts to improve her symptoms. She
testified, in direct examination, that there are a number of things that she
does in order to alleviate her symptoms, such as taking baths with Epsom salts,
applying a cream and MediStik to the affected areas, applying heat and ice, taking
over the counter medications (primarily Advil), and having Mr. Stark
massage her back. Mr. Stark confirmed that he gives the plaintiff Advil
and massages, and sometimes gives her cooling creams. He added that she used to
take 200 mg pills of Advil, but he has increased those to 400 mg pills because
the 200 mg pills stopped helping. The plaintiff also testified that she
sometimes rubs peppermint oil on her temples to help with her headaches.
B. The Defendants Position
1. Low Back
[83]
The defendant notes that the plaintiff gave evidence, in direct
examination, of experiencing immediate low back symptoms following the accident.
She said that she reported her low back symptoms to ambulance personnel, as
well as to Dr. Crothers in their first meeting and on subsequent visits. Later
on, she expressed uncertainty about telling Dr. Crothers of her low back
pain.
[84]
The defendant submits that at the plaintiffs examination for discovery
on April 9, 2013, the plaintiff could not recall when she first began to
experience low back pain. On cross-examination, she admitted that she had no
actual recollection of reporting low back symptoms to Dr. Crothers in the
first two years after the accident. No history of low back pain was provided to
Dr. Salvian.
[85]
The defendant submits that, as noted in Dr. Travlos Report, and
highlighted during Dr. Stewarts cross-examination, there are no
references to low back pain in the ambulance records (the plaintiff and Mr.
Gleason were taken from the accident scene to the Maple Ridge Hospital), the
hospital records, or the clinical records of Dr. Crothers or Port
Coquitlam Physiotherapy, with the exception of the September 16, 2013 entry in Dr. Crothers
records. The defendant contends that that entry refers to low back pain for two
days and right side sciatica. There is no medical opinion suggesting that these
complaints, coming more than three years after the accident, have any relation
to the accident.
[86]
The defendant also notes Dr. Crothers evidence that it would be
highly unlikely for him not to have recorded low back complaints if the plaintiff
made consistent complaints to him in this regard, and that the ICBC CL-19
medical report completed by him does not make any reference to low back
symptoms.
[87]
The defendant notes that the only piece of evidence suggesting a
possible low back injury is the X-ray referred to by Drs. Stewart and Travlos. The
taking of this X-ray suggests that there was some sort of initial complaint. The
X-ray, as noted during Dr. Stewarts evidence, was consistent with patient
positioning or muscle spasm. Dr. Travlos evidence was that the threshold
for ordering an X-ray in the emergency setting is quite low, with the purpose
of ruling out any possibility of fracture so that the patient could be
discharged. The complete lack of documentation of any low back complaints
thereafter suggests, in Dr. Travlos opinion, that current low back complaints
are likely not related to the accident.
[88]
Thus, the defendant submits that the evidence, on the whole, does not
support that the plaintiff sustained a low back injury of any significance in
the accident. The plaintiffs evidence is not reliable regarding the onset of
her low back symptoms, and the available corroborative evidence does not
support her contention in this regard. Finally, she has not sought any
treatment whatsoever for her alleged low back pain which, in the defendants
submission, suggests that these symptoms, whether or not they are related to
the accident, are of little significance.
2. Neck, Left Shoulder & Left Arm
[89]
The plaintiff gave evidence of neck, left shoulder and left arm symptoms
following the accident. She denied experiencing any improvement and gave
evidence of these symptoms being experienced on a constant basis, every day,
and that they were getting worse. She also indicated that for several months
she could not do any physical work.
[90]
The defendant accepts that the plaintiff sustained soft tissue injuries
to her neck and left shoulder resulting in pain symptoms, including those of a
mild thoracic outlet syndrome, as a result of the accident. However, the defendant
submits that the evidence does not support that these symptoms have been nearly
as severe, or as constant as the plaintiff contends.
[91]
On cross-examination, the plaintiff agreed that her symptoms were at
their worst in the first year after the accident. This contradicts her
assertion, on direct examination, that she had not experienced any improvement
and that the symptoms were, in fact, worsening. The plaintiff also confirmed
that three months after the accident she had spent two hours hanging clothes,
i.e. doing physical work, which is contrary to her assertion that for several
months post-accident she did no physical work.
[92]
The defendant notes that, on cross-examination, the plaintiff agreed
that at least as early as 2012, she had been pain-free at times in her neck,
and that at least as of April 2013, when her examination for discovery took
place, her neck pain was occurring about once a week. Finally, she also agreed
that there had been further improvement in her neck symptoms from 2013 to the
present time, and that if she avoided heavier physical tasks, her left shoulder
generally did not bother her. All of these answers directly contradict her
contention of unrelenting and worsening neck and left shoulder symptoms.
[93]
With respect to the plaintiffs left hand symptoms, on cross-examination
she agreed that those symptoms had not changed in a long time, and that they
amounted to some occasional numbness in her fingertips which occurred when her
neck and shoulder symptoms were flaring up. On direct examination she confirmed
that the left hand symptoms were not painful.
[94]
It is accepted by the defendant that the plaintiff has not taken any
time away from work as a result of her injuries. The plaintiffs evidence that
she would not have been able to afford to take time away from work does not
explain why she did not make use of any of her sick days or her short term
disability benefits, if indeed her symptoms are (or were) as severe as she
claims. This, in the defendants submission, is a significant piece of evidence
that speaks to the modesty of her symptoms.
[95]
The defendant also submits that there has been a significant dearth of
treatment with respect to these symptoms. The plaintiff has only had ten
physiotherapy treatments. Her reason for discontinuing these was that after the
first few sessions, which did seem to help, she experienced increased headaches.
The plaintiffs evidence that Dr. Crothers supported her in her decision
to discontinue physiotherapy was corroborated by Dr. Crothers. However,
the plaintiffs evidence that Dr. Crothers made no further treatment
recommendations, and, in fact, discouraged her from pursuing additional
modalities is contradicted by Dr. Crothers.
[96]
Dr. Crothers evidence was that he recommended massage therapy
following the plaintiff trying physiotherapy, and that he would not have told
the plaintiff not to pursue other treatment modalities such as massage and
chiropractic. His only advice with respect to pursuing treatment would have
been for the plaintiff to only pursue one modality at a time. The plaintiffs
evidence was that she had considered chiropractic treatment, as well as
massage, and was aware that she did not require a doctors referral to pursue
either treatment.
[97]
The defendant submits that the plaintiffs evidence was also somewhat
inconsistent regarding the reason for her discontinuing physiotherapy in the
first place. In direct examination she complained that some of the exercises
were making her headaches worse, whereas at her examination for discovery she
complained that it was the massage that had made the headaches worse. On
cross-examination, she said that both the massage and certain exercises were
the problem. The defendant submits that the plaintiff did not make any serious
attempt to work with the physiotherapist or Dr. Crothers to attempt to
continue treatment in a way that would be manageable with respect to her
headaches. Certainly she did not give evidence that all of the physiotherapy
treatment was aggravating to her, only certain exercises and massage.
[98]
The defendant also notes that during the short period of time when the plaintiff
was undergoing physiotherapy treatment, she was traveling via public transit
from Maple Ridge to Vancouver for work every day. Her commute was taking her
approximately two hours each way, and the physiotherapist was not seeing her
promptly. On her last physiotherapy visit, she complained that being seen 20
minutes late was difficult for her given her long commute. The plaintiff
admitted to being upset by the tardy treatment, but denied being fed up. Although
she denied that these were reasons for her discontinuing physiotherapy, the defendant
submits that adding another one to two hours (for treatment) onto a 12 hour
work day (including commute) would have made the prospect of physiotherapy
rather unattractive to anyone. Particularly if the symptoms being treated were
not interfering, in any significant way, with ones work.
[99]
It is also difficult to accept, in the defendants submission, that the plaintiff
has limited her treatment for the past four years on account of Dr. Crothers
advice, particularly in light of how dissatisfied she expressed being regarding
the treatment he provided. She gave evidence of attending at the Wilson Clinic to
see Dr. P.P.H. Leung, another doctor in the clinic, on days when she knew that Dr. Crothers
would not be there for treatment of her osteoarthritis symptoms, but thought it
would be disrespectful to do the same with respect to her accident-related
injuries. The defendant submits that this simply does not make sense. Furthermore,
the defendant submits that once Dr. Stewart saw the plaintiff in August
2013, this excuse becomes even less convincing, and it simply cannot be
accepted following the consultation with Dr. Salvian in March 2014 considering
his numerous treatment and exercise recommendations.
[100] The
medical experts agree that the plaintiff suffers from thoracic outlet syndrome
as a result of the accident. This condition is treatable, but not likely
curable. The defendant submits that with behaviour modifications (which the plaintiff
has already implemented), and appropriate treatment, the plaintiff could very
well experience improvement in function and improvement with respect to her
symptoms. That was the evidence of Drs. Travlos and Salvian. However,
the defendant submits that the plaintiff has not undergone any such treatment,
and has neglected to perform the home exercises recommended by Drs. Stewart
and Salvian. Dr. Salvian, in particular, provided a written guide
outlining a specific exercise regime, but the plaintiff has not pursued this. In
these circumstances, the defendant calls into question the severity of her
symptoms on account of the plaintiffs indifferent attitude towards treatment. The
defendant submits that Dr. Travlos opinion that the plaintiff has a mild thoracic
outlet syndrome condition should therefore be accepted.
3. Headaches and Dizziness
[101] The plaintiffs
evidence, on cross-examination, was that she had a fairly constant headache for
about the first year after the accident. She treated the headaches, with some
success, with over the counter painkillers. There was improvement in the
headaches over time, and by the end of that first year she was experiencing
headaches about two to three times per month. She admitted that this state of
affairs has persisted to date. Her headaches do not stop her from going about
her day.
[102] The plaintiff
also admitted, on cross-examination, that she suffered from headaches about
twice per month, as well as migraine headaches one to two times per year, even
before the accident. In light of this admission, the defendant submits that it
would appear that she is nearly back to her pre-accident status with respect to
her headaches.
[103] There is
no medical evidence pertaining to the plaintiffs prior history of migraine
headaches, or regarding her severe headache in February 2013 that required her
to attend at the hospital. On cross-examination, she admitted that she
initially thought this headache was a migraine, but was not so sure later on.
[104] The defendant
submits that the plaintiff suffered from increased headaches for approximately
one year as a result of the accident.
[105] The plaintiffs
evidence on direct examination was that she experienced dizziness on a daily
basis for a number of months after the accident. Since then there has been some
improvement. These days, the symptoms are controllable if she avoids fast
movements of her neck. Dr. Salvian did not record any report of dizziness
when he did C-spine range of motion testing, nor did Dr. Travlos.
[106] The
defendant notes that some of the plaintiffs evidence on direct examination was
conflicting with respect to her dizziness. The frequency of her Gravol intake
was elicited twice by her counsel. On one occasion she indicated that she had
to take Gravol a couple of times per week to control her dizziness. On a second
occasion she indicated that she had to take Gravol about twice per month to
control her dizziness.
[107] Drs. Stewart
and Travlos are in agreement that the plaintiff sustained some sort of insult
to her vestibular system as a result of the accident. Their opinions are quite
limited as neither is an ear nose & throat specialist. The defendant
submits that it is not clear that her ongoing symptoms are a result of this
initial vestibular insult. There have been no tests, and no opinion has been
provided regarding the nature and extent of the vestibular injury. On functional
capacity testing by Mr. Shew, the plaintiff did not exhibit any
difficulties with balance which, in the defendants submission, would be
something one would expect if dizziness were a significant problem.
[108] Finally, Dr. Stewart
recommended that this vestibular issue be investigated, but the plaintiff has
not taken any steps to do so. In light of this lack of urgency to investigate
and obtain any treatment, the defendant calls into question the severity and
significance of the plaintiffs dizziness symptoms, even if attributable to
some sort of minor vestibular insult.
4. Anxiety
[109] The defendant
submits that Dr. Stewart, in cross-examination, noted that the plaintiffs
symptoms of passenger anxiety have abated considerably over time. The defendant
notes that there was no evidence that the plaintiff avoided traveling as a
passenger following the accident for any specific period of time. She always
went to work, and made several references in her evidence to obtaining rides to
work from others. In her direct examination, there was some general evidence of
her being a nervous passenger and being too scared to obtain a drivers license.
[110] Whatever
the severity of the plaintiffs alleged passenger anxiety, it has not been
treated. This remains so despite Dr. Stewarts recommendations for
counselling, the plaintiffs apparent desire to obtain a drivers license, and the
fact that she has access to counselling sessions through her employer with
possible additional access through her extended benefits which she has not
looked into.
[111] The plaintiff
claims that she was attempting to obtain her drivers license before the accident.
She had obtained and was studying the new drivers booklet. Despite her
expressed desire to obtain a drivers license, the plaintiff has not taken any
serious steps to that end since taking driving lessons in El Salvador. Her
reasoning for not taking any steps until shortly before the accident was that
she never got around to it.
[112] The defendant
submits that the severity of the plaintiffs alleged anxiety must be called
into question in light of her failure to obtain any treatment whatsoever. Furthermore,
she has never stopped traveling in vehicles as a passenger. Her desire to
actually obtain a drivers license is also questionable in the defendants
submission.
[113] The expert
evidence provided by Dr. Stewart regarding the plaintiffs driving anxiety
was, in the defendants submission, less than satisfactory, and not of the
quality that should see the defendant liable to the plaintiff for any ongoing
passenger anxiety. Dr. Stewart, who did not profess any expertise with
respect to the treatment of post-traumatic stress symptoms when qualified,
opined in her Report that the plaintiffs anxiety would persist for the rest of
her life. On cross-examination, Dr. Stewart resiled somewhat from this
position, indicating that she could not know how the plaintiff would respond to
the recommended treatment for her anxiety as it was a very individual thing. She
provided as a justification for her opinion that treatment tends to be less
effective over time.
[114] The
defendant submits that Dr. Stewarts conclusion regarding the permanency
of the plaintiffs passenger anxiety amounts to a bald assertion without proper
explanation. The defendant notes that Dr. Stewart did not cite any
scientific studies to justify her position, and claims, with respect, that her
expertise as a physiatrist does not make it obvious that she has much
experience, if any, with respect to the treatment of such issues. Furthermore, Dr. Stewarts
conclusion defies common sense. The plaintiffs claim of anxiety has not been a
hindrance to her traveling in a vehicle since the accident, and therefore it
appears to be a mild condition. In the defendants submission, Dr. Stewart
assumed the role of advocate in providing this opinion without sufficient
explanation or justification.
[115] Despite
the foregoing, the defendant accepts the evidence of the plaintiff and Mr. Stark
that the plaintiff has suffered from some passenger anxiety since the accident.
However, in light of the plaintiffs failure to seek treatment, the lack of any
direct evidence that the plaintiff has actually avoided being a passenger since
the accident, and the evidence regarding the regular vacations the plaintiff
has taken with Mr. Stark to the Okanagan, the defendant submits that the
Court ought to find that her passenger anxiety has been mild, and that with
appropriate treatment and resolve on her part, she will overcome it.
5. Effect on Homemaking and Hobbies
[116] Mr. Stark
gave evidence that homemaking duties are split 60/40, with the plaintiff doing
less than he. He would not expect the plaintiff to ever do more than 50% of the
housework. The plaintiffs evidence was that she cleaned the bathrooms and did
the dusting, but could not do more. Mr. Gleasons evidence was that he did most
of the cooking when he lived with the plaintiff. Mr. Starks passion is
cooking and he will usually attend to that task. He also normally cleaned up
the dishes and did the vacuuming.
[117] At her examination
for discovery, the only difficulty identified by the plaintiff is vacuuming,
which she said that she resumed a few months after the accident whilst living
in her Maple Ridge townhouse before her marital separation. Mr. Gleason, or one
of her sons, would have to lift the vacuum up and down stairs for her. The plaintiff
then gave evidence that she did not have any difficulties with housekeeping at
Atlin Place as it was a one bedroom basement suite. The plaintiff then denied
any housekeeping difficulties since moving to Angela Place, other than neck
pain sometimes when she lifts the vacuum.
[118] On
cross-examination, she confirmed that the answers she gave at her examination
for discovery relating to homemaking difficulties were true to this point. She
noted that she did not now have a dishwasher, however it was pointed out to her
that the examination for discovery was done when she was already living at her
current residence on Angela Drive, i.e., without any dishwasher.
[119] The
defendant submits that the plaintiffs evidence suggests that she is fully
capable of most, if not all, of her homemaking duties. She may, from time to
time, experience symptoms with vacuuming, and perhaps (although the evidence is
not clear), with doing dishes. Lifting the vacuum between floors may also be
difficult for her. If above-shoulder level work is what triggers her
significant symptoms, putting dishes away might be problematic. However, these
would be occasional tasks.
[120] The defendant
submits that the evidence does not support that the plaintiff is disabled from
any of her homemaking tasks such that a loss of homemaking capacity award is
justified. She shares the homemaking tasks fairly equally with Mr. Stark
as most modern couples do.
[121] The plaintiff
testified that her only current exercise is walking. She enjoyed walking before
the accident as well. She used to go for longer walks before the accident. She
agreed that when she goes for a walk with her dog, the dog doesnt want to go
for more than a few blocks, as it is a small dog, and is getting older. Mr. Stark
gave evidence of the couple doing some hiking in the Okanagan, and visiting
wineries. The plaintiff is not disabled from participating in walking. There is
no medical evidence supporting limitations relating to the accident in this
regard. The Functional Capacity Evaluation of Mr. Shew does not identify
any significant limitations with respect to walking.
[122] Alternatively,
the defendant submits that if the plaintiff does have limitations with respect
to walking, they are likely related to her pre-existing plantar fasciitis, her
lower back problems, or both, conditions which are not related to the accident.
[123] The plaintiff
enjoyed knitting for up to two to three hours at a time before the accident. There
was some general evidence about some other crafting she also enjoyed doing. The
defendant notes that since the accident, she has been diagnosed with
osteoarthritis in her right hand and left foot, and that these symptoms were
significant enough that Dr. Leung sent her for an urgent consultation with
Dr. A.R. How, a rheumatologist. She was followed by Dr. How in 2013.
The plaintiff stopped knitting and making jewellery on account of her joint
symptoms. She could not walk for longer than half an hour on account of fatigue
and left heel pain. Heavy lifting and typing were difficult, as were opening
jars, doing up buttons, and walking up stairs. These symptoms persisted as of
November 2013 when she saw Dr. How in follow up. The plaintiff was candid
in cross-examination when she admitted that her reports to Dr. How were
accurate.
[124] At her examination
for discovery in April 2013, the plaintiffs evidence was that she was able to
knit for an hour at a time on account of her neck symptoms. The plaintiff
explained the discrepancy between her examination for discovery and direct
examination by stating that in about mid-2014, her knitting abilities
diminished further.
[125] The
plaintiff gave evidence of her osteoarthritis symptoms resolving with the use
of an unnamed natural medication that she began taking sometime in 2014.
[126] The defendant
submits that the evidence does not demonstrate, on balance, that the plaintiff
has had to limit her knitting on account of her accident-related symptoms. Rather,
it is just as likely that any ongoing difficulties she has with knitting are
due to her osteoarthritis symptoms which, claims the defendant, are not being
optimally treated with the unnamed natural medication referred to by the plaintiff.
[127] Alternatively,
the defendant submits that if the plaintiffs ability to knit has been affected
by her accident-related injuries, this finding must be tempered by the fact
that there are other factors at play with respect to any ongoing difficulties she
is experiencing, and the contingency that she may very well have experienced
difficulties with this hobby irrespective of the accident.
6. Effect on Employment Activities
[128] The
defendant notes that the plaintiff commenced employment with Value Village as a
floor worker in 2005 at the Clarke Road Coquitlam store, and quickly went from
part-time to full-time employment that year. From 2005 to 2010, the plaintiff
was transferred to the Value Village Barnet Highway store, promoted to the
position of front end supervisor, further promoted to the position of retail supervisor,
and then promoted to the position of production manager. The plaintiff agreed,
on cross-examination, that her job has become less physical and less repetitive
with each promotion.
[129] In 2010
the plaintiff accepted a transfer and commuted to the Value Village Vancouver Hastings
St. store. While working as a production manager at the Vancouver Hastings St. store,
the plaintiff oversaw about 25 workers. On cross-examination, she agreed that
although there was some physical work, most of her work was managerial and
administrative. She agreed that lifting was only an occasional part of this job.
It was put to her by defence counsel that this physical work never actually
required her to lift items over 30 lbs, to which she replied, not necessarily. She
said that with respect to items over 30 lbs, there was not always someone else
around to help her, but that she would always obtain help for items weighing
over 50 lbs.
[130] The plaintiff
also agreed, on cross-examination, that during her time working at the Vancouver
Hastings St. store, Mr. Stonehouse never told her to move items over 30
lbs because there were warehouse workers available to do that kind of work. Delegation
of such tasks was expected to the extent that they arose. The plaintiff
continued to work at this location until 2012 when she was promoted to her
current position of store manager. There is no evidence that heavy lifting
(i.e. items over 30 lbs) was ever anything but an occasional part of her job as
a production manager.
[131]
The defendant notes that the plaintiffs performance reviews for 2010
and 2011 were positive, and that none of the performance measures related to
her ability to do physical work. All of the measures related to managerial and
administrative work. Although Mr. Stonehouse did not give evidence, the
parties have agreed on certain facts:
1. Mr. Stonehouse was the plaintiffs
store manager at the Value Village Hastings St. store for the entire time that
the plaintiff was employed at that location;
2. Mr. Stonehouse is the author of
the plaintiffs 2010 and 2011 performance reviews;
3. Mr. Stonehouse observed the
plaintiff demonstrate outward manifestations of pain at work following the
accident;
4. Mr. Stonehouse observed a
reduction in the plaintiffs physical work following the accident, and he does
not recall directly observing the plaintiff tasking following the accident,
although he assumes that she did some;
5. Mr. Stonehouse observed the
plaintiff use an ergonomic chair during her time at the Value Village Vancouver
Hastings St. store, and he sent her ergonomic chair to the Value Village Coquitlam
Clarke Rd. store after she left to become store manager;
6. Value Village has a formal
process for assessing limitations and implementing accommodations for disabled
employees;
7. No formal accommodation was ever
requested or implemented with respect to the plaintiff while Mr. Stonehouse was
her store manager in 2010 and 2011;
8. Mr. Stonehouse recommended the
plaintiff for a promotion after the accident;
9. The plaintiff was always an
excellent manager of people both before and after the accident on Mr.
Stonehouses observation; and
10. Mr.
Stonehouse assigned the plaintiff to light duties after the accident for a
number of months, and thereafter he did not take an active role in
accommodating her limitations.
[132] The plaintiffs
evidence was that her symptoms were most acute in the first year after the accident.
The defendant submits that during this year she performed admirably and
apparently beyond her employers expectations. She was working in a job that
was as, or more, physical than her current job, at a larger store. She was also
commuting a great distance: first from Maple Ridge, and then from Coquitlam
after her separation. The defendant submits that such a long commute would not
be easy for anyone, injured or otherwise. The defendant submits that all of the
above points represent objective evidence that suggests the plaintiffs
injuries have had a minimal effect on her abilities at work.
[133] The plaintiff
began her current position as store manager on April 30, 2012, which position
she has maintained since that time. Her evidence was that her District Manager
actually wanted to promote her a year earlier, but there was no store available.
The plaintiff agreed, on cross-examination, that her current position does not
generally require her to lift items over 30 lbs, and that when such lifting is
necessary there are workers available to provide assistance.
[134] On
cross-examination, the plaintiff stated that she is in charge of approximately
40 employees. She has a production manager and a retail manager. Management do
not have personal quotas for tasking (i.e. physical work). The plaintiff also
admits that while employees are hired into specific positions initially, they
are all eventually cross-trained so that they can work all of the different floor
positions within the store. Delegation of duties to workers is necessary and
expected for the store to operate efficiently, and employees are shifted around
between tasking positions within the store.
[135] On direct
examination, the plaintiff gave evidence of her supervisory, managerial, and
administrative duties, and noted that it was her responsibility to see that the
various departments and workers were meeting their departmental targets and
quotas respectively. The defendant submits that the importance of driving her
team and ensuring that she had good staff members was attested to by the plaintiff
on cross-examination.
[136] The
defendant does not dispute that the plaintiff is an excellent manager. Ms. Leroux
agreed that the plaintiff was an excellent store manager, and even a mentor to
her.
[137] With
respect to the plaintiffs 2013 Performance Review, she agreed that the sales
figures were low on account of the Skytrain construction, which was a factor beyond
her control, and that the review was largely positive otherwise. The plaintiff
was criticized for spending too much time in the office, but the plaintiff
agreed on cross-examination that the amount of administrative work required did
necessitate her being in the office for longer than Ms. Beecroft suggested
was appropriate. In any case, the review suggests that this issue was resolved
in the latter half of 2013.
[138] Notably,
the plaintiff was not criticized in her 2013 review for not engaging in more
physical work. Rather, it was noted that she ought to be on the floor more,
managing her team. Specific reference is made in this review to improvement in
the latter six months of the year, with the plaintiff spending more time on the
floor inspecting and coaching her team. Ms. Beecroft also notes that the
plaintiffs performance in the latter half of the year, improved to meet and
in some cases exceed standard[s].
[139] As a store
manager, the plaintiff has to do some tasking on an occasional basis for a
variety of reasons, e.g. a missing worker, to allow a worker to take a break,
or during busy periods. She cannot task all day or for long periods of time
because she must manage the store. A worker may be absent two to three times
per week on the plaintiffs evidence. There was no evidence that the plaintiff
would have to task all day, under any circumstances.
[140] The plaintiffs
evidence was that physical work at Value Village stores is required with
respect to the following tasks: recycling, demonstrating, pricing, tagging,
cashier, and sorting. Additional non-managerial work mentioned by the plaintiff
included grading clothes and checking carts. The plaintiff agreed that these
additional tasks were not physical.
[141] Recycling
is very heavy work that the plaintiff has never done. This work is undertaken
when the delivery trucks arrive and the product is sorted onto large carts. The
plaintiff has, on occasion, been one of three people (as mandated by WCB on the
plaintiffs evidence) to push the loaded cart to the scale, but when she
participates in this work, she does not exert herself and her contribution is
minimal. The gist of the plaintiffs evidence, on cross-examination, was that
her recyclers could do this without her help, and when she assists it is simply
as a formality to satisfy the WCB requirements. She agreed that she would not
engage in this sort of physical work if she considered the other two workers
to be at risk in any way.
[142] The plaintiff
admitted that simply demonstrating new procedures to her staff (which
procedures would have been demonstrated to her by her District Manager) is not
a problem for her.
[143] In regards
to the other floor or tasking positions, the plaintiff was candid on
cross-examination that, as a store manager, she would not want to participate
in any of these tasking jobs for longer than an hour at a time (even if she had
not been injured) because doing so would take her away from her managerial
responsibilities for too long.
[144] The
defendant notes that the plaintiff gave conflicting evidence regarding the
extent to which she was able to engage in cashier work. She initially stated
that she normally worked as a cashier for about an hour every day, but later
on, when this evidence was elicited a second time on direct examination, she
indicated that she could only do this work for a half an hour on account of
neck, shoulder and dizziness symptoms. On cross-examination she agreed that she
did this work every day for an hour.
[145] Ms. Lerouxs
evidence was that she calls on the plaintiff to do cashier work for brief
periods and that the plaintiff must fill-in and do physical work when necessary.
The defendant submits that there was no corroborative evidence from Ms. Leroux
that the plaintiff is limited to a half hour of cashier work at a time.
[146] With
respect to pricing work, the plaintiff described, on cross-examination, that as
of a year and a half ago, she does not do any such work. This is because the
company adopted a new procedure, and she found the lower positioning of the
touch screen to be bothersome for her neck. She had not sought any ergonomic
accommodation to raise the touch screen because this was not necessary as she
could simply delegate that work. Prior to the adoption of the new pricing
procedure, the plaintiffs evidence, on cross-examination, was that she could
tolerate that work for 30 minutes.
[147] The
defendant notes that the plaintiff gave conflicting evidence with respect to
her ability to do tagging work. Her evidence also conflicted with that of Ms. Leroux.
In direct examination, the plaintiff indicated that she could only tolerate
this work for half an hour. She further indicated that after doing tagging work
she could only tolerate administrative or price checking work (as opposed to
more physical work) for a period of time. On cross-examination she indicated
that she was able to tag for an hour, and come back to that work after a 15
minute break. Ms. Leroux, however, made specific reference in direct
examination to the plaintiff only being able to do tagging for a few hours at a
time. The defendant submits that Ms. Lerouxs evidence should be preferred
to the plaintiffs with respect to her ability to do tagging work.
[148] With
respect to sorting work, the defendant points out that the plaintiff again gave
conflicting evidence. On direct examination, she indicated that this kind of
work involved lifting items in the range of 10-25 lbs, and that doing it caused
her to experience increased symptoms. She could only do three bags in the time
that her sorters could do 100-150 bags, i.e. 30-45 minutes, on account of her
neck, left shoulder, left arm, and low back symptoms. She later stated that she
had not put herself in a position to do sorting work due to her dizziness. On
cross-examination, she said that she could tolerate sorting miscellaneous items
for 45 minutes to an hour, but that she could not sort clothes. The reason for
her being able to do one kind of sorting, but not the other, was not clearly
explained.
[149] The plaintiff
testified that she recently attended a work conference in Las Vegas. She
confirmed, on cross-examination, that she was discouraged from tasking and told
to focus on the managerial aspects of her job. The expectation of her employer
that was communicated to her at the conference was that tasking by managers was
only to take place if more than five employees were away. There was an
understanding that managers may involve themselves in tasking if two people
were away.
[150] The defendant
submits that the extent to which she currently engages in tasking is largely
consistent with her employers expectations. Indeed, she may be tasking too
much from her employers perspective. There was no evidence that she is tasking
too little given her position.
[151] The defendant
also submits that her ability to engage in sustained tasking work has also been
compromised for reasons unrelated to the accident.
[152] The plaintiff
admitted to suffering from the limitations noted in Dr. Hows Reports of
January and November 2013. These limitations included: difficulty with typing,
heavy lifting, opening jars, doing up buttons, doing stairs, as well as
stress-related fatigue and inability to sleep since accepting the store manager
job. The plaintiff also agreed that she was unable to walk for more than about
30 minutes on account of fatigue and left heel pain. The plaintiff agreed, on
cross-examination, that these factors were limiting her ability to engage in
the more physical aspects of her work.
[153] The plaintiff
also admitted to having suffered from limiting elbow pain with repetitive work
prior to the accident. She admitted that as a floor worker, her job was
difficult at times on account of these elbow symptoms. Doing things like
tagging and sorting were painful for her elbow. In cross-examination, Dr. Stewart
gave evidence that epicondylitis, as referenced in Dr. Hows Report dated
January 6, 2013, was an inflammatory over-use syndrome that required rest and
modification of the triggering activity to resolve.
[154] The plaintiff
indicated, on cross-examination, that the elbow symptoms resolved when she
moved from the floor to the production manager position. The defendant submits
that the plaintiffs pre-existing epicondylitis represents another reason that
the plaintiff may not be suitable for extended periods of repetitive physical
work.
[155] On
cross-examination, the plaintiff admitted to suffering from some pre-existing
right hand numbness and tingling. She agreed that prior to the accident, she
had had to modify her work to avoid these symptoms. The plaintiff admitted that
this symptom occurred as a result of her tagging at work, and that she was able
to control the symptoms by using the gun less and by breaking up her day. The defendant
submits that the plaintiffs pre-existing right hand numbness and tingling
represents another reason why the plaintiff may not be suited for extended
periods of repetitive physical work.
[156] The plaintiff
suffers from Irritable Bowel Syndrome (IBS), and has had chronic abdominal
problems requiring repeated hospitalizations, both before and subsequent to the
accident. She has missed work on occasion due to these symptoms, and because of
a gallbladder surgery. The plaintiff denied that these recurrent abdominal
problems were a limiting factor when it came to the physical aspects of her
work. However, considering that these episodes have resulted in lost time from
work and hospitalizations, the defendant submits that these symptoms represent
yet another reason, unrelated to the accident, that the plaintiff may not be
suitable for extended periods of heavy physical work.
[157] The plaintiff
has not missed any time from work since missing a half day on the Monday
following the Saturday accident. She has not made use of her ten paid sick
days, or her short term disability benefits. She engages in tasking to an
extent that is entirely consistent with her employers expectations, and to a
degree that allows her to keep on top of her managerial responsibilities. Mr. Shews
Report supports that the plaintiffs current abilities are consistent with the
requirements of her job.
[158] The
defendant submits that the plaintiff modifies and delegates tasks to
accommodate her limitations, many of which may not be related to the accident. She
has not sought any formal accommodation regarding her alleged difficulties,
despite the fact that Value Village has a formal accommodation policy with
respect to disabled employees. The plaintiff also engages in unpaid overtime
work during the Halloween season, which demonstrates that she is capable of
working long hours for sustained periods of time.
[159] The defendant
submits that the above-noted facts do not support a conclusion that the plaintiffs
work has been significantly affected by her accident-related injuries.
C. Findings
[160] For the most part I found the plaintiff to be an accurate and honest
historian of her accident related injuries and symptoms. There are however, as
pointed out in the defendants argument, some discrepancies in the plaintiffs
evidence.
[161] In my opinion, not all of the discrepancies pointed out by the
defendant serve to undermine the plaintiffs testimony because they are either
minor in nature or the weight of her evidence in combination with that of
Kevin, Mr. Gleason and Mr. Stark supports her testimony. However, I have
concluded that the plaintiff has failed to prove that she suffered an accident
related injury to her lower back.
[162] On the other hand, I am satisfied and find that the plaintiff
sustained moderate soft tissue accident related injuries to her upper back,
neck and left shoulder. In my opinion, the evidence supports the conclusions of
Dr. Salvian that the plaintiff has ongoing neck and left shoulder pain which is
constant, and is exacerbated by activities such as using or elevating her left
arm. I accept his opinion that the plaintiffs neck and left shoulder pain is
due to injury to the paraspinal muscles, and that her symptoms of numbness,
tingling and paresthesias radiating down her arm, medial forearm, and the tips
of her fingers is due to soft tissue irritation of the nerves of the brachial
plexus, which is occurring at the level of the scalene muscles in the thoracic
outlet, the condition referred to as post-traumatic thoracic outlet syndrome.
[163] Moreover, I find that as a result of her accident related injuries,
the plaintiff is disabled from or limited in undertaking some household chores,
and certain crafting and recreational activities. As well, she is functionally
limited regarding certain physical tasks associated with her employment.
[164] Regarding the plaintiffs position that she suffered from increased
headaches as a result of the accident, I find that approximately one year
following the accident her symptoms improved to the extent that she returned to
her pre-accident status.
[165] Regarding the plaintiffs experience of suffering from dizziness
from time to time following the accident, while there is evidence that she
suffered an insult to her vestibular system as a result of the accident, I
agree with the defendant that the evidence falls short of establishing the
severity or significance of the plaintiffs symptoms. In any event, to the
extent that she still experiences dizziness there has been some improvement
since the accident and she appears to have it under control.
[166] Finally in my opinion, the findings in Dr. Hows Reports have no
bearing upon the assessment of the plaintiffs evidence surrounding her
accident related injury symptoms, given her evidence, which I accept, that the
symptoms dealt with in Dr. Hows Reports were resolved soon after the
plaintiff attended Dr. How.
V. Discussion and Decision on the Plaintiffs
Claim for Damages
A. Non-Pecuniary Damages
1. The Plaintiffs Position
[167]
In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, Dickson
J. (as he then was) stated at 261-262:
There is no
medium of exchange for happiness. There is no market for expectation of life.
The monetary evaluation of non-pecuniary losses is a philosophical and policy
exercise more than a legal or logical one. The award must be fair and
reasonable, fairness being gauged by earlier decisions; but the award must also
of necessity be arbitrary or conventional. No money can provide true
restitution.
Money is awarded because it
will serve a useful function in making up for what has been lost in the only
way possible, accepting that what has been lost is incapable of being replaced
in any direct way.
[168] The
plaintiff submits that the words of Dickson J. give forceful emphasis to the
principle of full compensation for non-pecuniary loss, and that while the
principle is restitutionary in nature, the law recognizes that nothing can
directly replace what the plaintiff has lost due to the accident.
[169] Acknowledging
that the Court is not capable of reaching back in time and removing the
physical and emotional pain and suffering that has so damaged the plaintiffs
life, the plaintiff submits that the law entitles her to be compensated for her
non-pecuniary loss, as far as money is capable.
[170]
In the case of Kuskis v. Tin, 2008 BCSC 862 the Court reiterates
the general principles relating to an award of non-pecuniary damages:
[135] Non-pecuniary damages are awarded to compensate the
plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities.
The compensation awarded should be fair and reasonable to both parties: Andrews
v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Jackson v.
Lai, 2007 BCSC 1023 at para. 134.
[136] For purposes of assessing
non-pecuniary damages, fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough guide. Each case
depends on its own unique facts: Andrews; Jackson; Jenkins
v. Bourcier, 2003 BCSC 388 at para. 87; Radford v. Drobot,
2005 BCSC 293 at para. 62.
[171]
The plaintiff notes that the more specific factors to be considered in
the assessment of non-pecuniary loss are set out in Stapley v. Hejslet,
2006 BCCA 34, leave to appeal refd [2006] SCCA No. 100:
[45]
I think it is instructive to reiterate the underlying
purpose of non-pecuniary damages. Much, of course, has been said about this
topic. However, given the not-infrequent inclination by lawyers and judges to
compare only injuries, the following passage from Lindal v. Lindal,
supra, at 637 is a helpful reminder:
Thus the amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in
considering what part of the maximum should be awarded the gravity of the
injury alone will be determinative. An appreciation of the individual’s loss
is the key and the "need for solace will not necessarily correlate with
the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal
Injury Damages in Canada (1981), at p. 373). In dealing with an award
of this nature it will be impossible to develop a "tariff". An
award will vary in each case "to meet the specific circumstances of the
individual case" (Thornton at p. 284 of S.C.R.).
[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54).
[Emphasis in original.]
[172] While
noting that all cases turn on their particular facts, the plaintiff made
reference to some recent awards for non-pecuniary damages in cases where the
plaintiffs suffered injuries allegedly similar to those of the plaintiff in the
case at bar: Durand v. Bolt, 2007 BCSC 480; Neumann v. Eskoy,
2010 BCSC 1275; Smith v. Moshrefzadeh, 2012 BCSC 1458; Stanikzai v.
Bola, 2012 BCSC 846; and Kumar v. Elpidio, 2013 BCSC 236.
[173] The
plaintiff submits that given the applicable legal principles, the awards in the
cases cited by her, and the permanence of her injuries, an award for
non-pecuniary damages in the range of $90,000 to $105,000 is appropriate.
2. The Defendants Position
[174] The defence
position, as earlier outlined, is that the plaintiff sustained moderate soft
tissue injuries and a mild thoracic outlet syndrome as a result of the accident.
The defendant cites the decisions in Mowat v. Orza, 2003 BCSC 373; Verhnjak
v. Papa, 2005 BCSC 1129; Langley v. Heppner, 2011 BCSC 179; Harris
v. Zabaras, 2010 BCSC 97; Wery v. Toulouse et al., 2006 BCSC 823;
and Salvatierra v. Vancouver (City), 2008 BCSC 537, as cases very
similar to the facts in the case at bar and submits that an award for the
plaintiffs non-pecuniary damages in the range of $40,000 to $50,000 is appropriate
in the present circumstances.
3. Decision
[175] Based upon
my findings on the evidence, and my review of the authorities, I fix the
plaintiffs non-pecuniary damages in the amount of $75,000 for the pain, suffering
and inconvenience she has suffered and will continue to suffer in the future.
B. Loss of Earning Capacity
1. The Plaintiffs Position
[176] To prove a
loss of future earning capacity, the plaintiff must satisfy a two part test. First,
she must prove an impairment to her earning capacity on a balance of
probabilities. Second, she must prove that there is a real and substantial
possibility that the diminishment in earning capacity will result in a
pecuniary loss in the future. If the possibility of a future loss is found to
be merely speculative, then the plaintiff will not have met the burden
required: Midgley v. Nguyen, 2013 BCSC 693 at paras. 236-239.
[177] The plaintiff
contends that the onus on her in justifying a pecuniary award for loss of
capacity is not heavy: Munoz v. Singh, 2014 BCSC 567 at para. 169. In Munoz,
at para. 169, the Court held that a plaintiff must prove a real or substantial
possibility of future loss and that the onus on the plaintiff is not heavy
but must nonetheless be met.
[178] The
plaintiff submits that according to Midgley, at para. 236, once a
plaintiff has discharged the test, the quantification of the loss of earning
capacity may be assessed either by way of a real possibility approach (also
known as the earnings approach), or by way of a capital asset approach. The
former may be more appropriate where a demonstrated pecuniary loss is
quantifiable in a measureable way, while the latter is more appropriate where
the loss is not measurable in a pecuniary way: Perren v. Lalari, 2010
BCCA 140 at para. 12.
[179]
The plaintiff points out that in applying the capital asset approach,
Courts have consistently relied on the factors established in Brown v.
Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.) in order to
establish the extent of the loss. In that case, Finch J. (as he then was),
stated as follows:
8 The means by which the value of the lost, or
impaired, asset is to be assessed varies of course from case to case. Some of
the considerations to take into account in making that assessment include whether:
1. The
plaintiff has been rendered less capable overall from earning income from all
types of employment;
2. The
plaintiff is less marketable or attractive as an employee to potential
employers;
3. The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and
4. The plaintiff is less valuable
to himself as a person capable of earning income in a competitive labour
market.
[180] In support
of the plaintiffs claim that she is entitled to compensation for a loss of
earning capacity despite the fact that she has not missed any work, the
plaintiff referred to the decision in Preece v. Leonard, 2014 BCSC 173.
In that case, the plaintiff was unable to continue working at his job due to the
injuries he suffered in the accident. He was off work for a few months but was
later offered a new job by his employer. At the time of the trial, the plaintiff
was working up to 16 hours per day at his new job and had missed very few
days of work as a result of his injuries. He was making more money at the time
of trial than he had been at the time of the accident. The Court found that he
enjoyed his work and had no immediate plans to pursue a different career, and
considered a number of cases in which the plaintiffs had failed to meet the
burden required to establish a real and substantial possibility of a future
pecuniary loss. The defendant in Preece argued that there was no real
and substantial possibility that the plaintiffs injuries would cause him a
future loss.
[181]
In Preece, Barrow J. distinguished a number of the cases referred
to by the defendant where a plaintiff had not proven a real and substantial
possibility:
[63] Mr. Preeces circumstances are different. Given his
skill set, his preferences, and his past work history, the kinds of jobs he
will perform into the future will all involve an element of physical labour.
His present job involves physical labour. His injuries limit his ability to do
physical labour. They do not prevent him from performing physical labour, but
they limit his ability to do so.
[64] Mr. Preeces job with Okanagan Aggregates was very
physically demanding. I am satisfied that as a result of his injuries, he was
unable to [do] that work. His employer accommodated [him] by assigning him a
job that involved driving [a] truck and
generally less physically demanding
duties. Even that proved taxing for Mr. Preece. As a result, he pursued truck
driving positions in rural Alberta. The first truck driving job, he lost not
because of the consequences of his injuries but rather because of his cognitive
limitations. The next truck driving job he obtained was too physically
demanding. It involved a lot of stationary standing which he cannot tolerate
due to his injuries. It is true that his present employer, like most of his
earlier employers, values him as an employee. His employer has equipped the
truck that he drives with a more comfortable seat. The truck he drives is new
and has very good suspension. Even with these circumstances, Mr. Preece
continues to experience reasonably constant pain.
[66] I accept that Mr. Preece will continue working for
his present employer as long as he can. I also accept that there is no
immediate prospect of his employer going out of business or otherwise
terminating Mr. Preeces employment. It does not follow, however, that the
prospect of losing this job is mere speculation. Any number of future
contingencies may give rise to a loss by Mr. Preece of his present
employment. The economy may slow; his employer may sell out. If these or any
other such events were to occur, Mr. Preece would be at a competitive
disadvantage in pursuing employment of the kind he is suited for and likely to
pursue. Unlike the plaintiff in Perren v. Lalari or Daitol v. Chan,
Mr. Preeces injuries will limit his ability to earn an income in the
future should he find it necessary to secure another job. Moreover, if another
position were available that for other reasons Mr. Preece found
attractive, he would be unable to pursue it if it involved any more physical
labour than is required to carry out his present job.
[67] I am satisfied that there is
a real and substantial possibility of a future event giving rise to a loss of
income.
[182] The
plaintiff submits that it is clear from Preece that even where a
plaintiff has plans to continue working for her present employer for as long as
possible, and there is no immediate prospect of that employer going out of
business or otherwise terminating her employment, the test for real and
substantial possibility of a future loss can still be made out. The primary
consideration in such a case is whether or not the plaintiffs ability to
perform jobs that would be considered a realistic alternative has been
diminished. Further, while the fact that no work has been missed due to the
injuries may be a relevant factor for consideration, it is not a determinative:
Munoz, at para. 177; Clark v. Kouba, 2014 BCCA 50 at
para. 33.
[183] The
plaintiff also submits that even where there is little chance that a plaintiff
is likely to change careers in the future, and she is able to continue at her
job, loss of ability to work without pain and exhaustion is compensable under
loss of future earning capacity. This is so even where non-pecuniary damages
have already addressed a loss of satisfaction and joy in the time the plaintiff
spends working: Cheung v. MacDonald et al., 2004 BCSC 222. The Court in Cheung
applied the factors set out by the Court of Appeal in Brown when
assessing the value of the impaired asset.
[184]
The plaintiff contends that it must be remembered that workers are often
provided with accommodations that help them to overcome some of the obstacles
that are created by their injury-related disabilities. However, these
accommodations may not always be available, for a variety of reasons, and if
they are to be removed then the plaintiffs ability to perform their employment
duties will be diminished. In Munoz, the Court stated as follows:
[178] The evidence supports the
finding of a high chance of a substantial possibility that Ms. Munoz will
be coping with episodic flares of her symptoms throughout her future tenure
with McDonalds, and in any similar position she may obtain in the
hospitality/restaurant industry. It is a matter of common experience that, over
time, ongoing pain will have a detrimental effect on a persons ability to
work, even in circumstances where the employer is prepared to make
accommodations: Morlan v. Barrett, 2012 BCCA 66 at para. 41. The
logical extension of that common experience is that the detrimental effect may
be accelerated or more profound where an employer ceases making such
accommodations or is not prepared to make them at all.
[185]
In Munoz, Ballance J. held that the plaintiff had proven a
substantial possibility that her diminished capacity would generate a pecuniary
loss in the future. This was so despite the fact that the plaintiff had only missed
a few days of work, and was able to make accommodations that enabled her to
fulfill all of her duties. The plaintiff submits that of note is Ballance J.s
comment that:
[174] Through sheer grit and
determination and to her credit, Ms. Munoz, who is the main breadwinner
for her family, has continued to work after all of the accidents. She is not to
be penalized for her stoicism: Clark, supra, at para. 34.
[186] The trial
judge in Clark held that even though the plaintiff had not missed any
significant period of work up until the point of trial, she had established a
real and substantial possibility of a future event leading to an income loss.
The Court awarded Ms. Clark $100,000 for loss of future earning capacity;
$25,000 of the award reflected the recommendations of one of the experts that
she take a three month leave from her employment in order to focus on her
recovery, and the other $75,000 was to reflect the Courts assessment of the
chance that negative contingencies would cause her to incur future wage loss. In
Clark, at para. 39, the Court of Appeal affirmed the trial judges
findings.
[187]
The plaintiff also cited authorities where the Court awarded loss of
earning capacity in cases where the plaintiff had continued working
post-accident. In Cheung, the plaintiff was 64 years old at the time of
trial, and was working part-time at his long-established pediatric dental
practice. After the accident, he began working less but performing more
lucrative and less physically demanding work. As a result, in the period
following the accident, his billings were higher than they had ever been in the
past. The Court acknowledged that the plaintiff had demonstrated the ability to
carry on and produce billings as high as he had in the past, but pointed out that:
[84]
While he may have demonstrated that he can, if he
wills himself to, carry on and produce billings as high as before, one must ask
whether it is reasonable to expect him to do so in the face of the pain he must
endure.
[85] The proper question under
this head of damages is not simply whether a plaintiff will suffer an actual
wage loss, but rather whether there has been an impairment of his
income-earning capacity. This latter approach treats the ability to earn income
as a capital asset, and the proper question is then whether that asset has in
any way been diminished by reason of the defendants negligence.
[188] The Court
in Cheung awarded the plaintiff $70,000 for loss of future earning
capacity in that case, as the plaintiff was 64 years of age and it was found
that, even apart from the accident, he would have already begun to
significantly wind down the scale of his practice. As stated above, what was
being compensated was the loss of capacity to work in his job without pain and
exhaustion, not the loss of the satisfaction and joy that the plaintiff
previously derived from his work.
[189] In Rahimi
v. Ma, 2014 BCSC 710, the plaintiff was a 32-year-old woman who had
recently finished design school but had only worked a few months out of each
year since that time. The medical evidence was clear that she was capable of
doing such work on a full-time basis, although she may experience flare ups
that would require her to pace herself and prioritize her tasks accordingly.
[190] The Court
found that she could work on a full-time basis, but may struggle with working
on a more than full-time basis (para. 120). She may at times have to work with
some pain or discomfort, which the Court held was properly compensable. The
Court also found that she had been made more vulnerable or susceptible to
future trauma or a further car accident, which put her at risk of some
worsening of her symptoms, which could, in turn, impact her ability to work
(para. 124). She was awarded $50,000 for loss of future earning capacity.
[191] The
plaintiff submits that although she has not missed any significant amount of
time from work, she has been struggling through her tasks, making accommodations
for herself wherever possible, and working through pain on a daily basis. Much
like the plaintiff in Munoz, it is through sheer grit and determination
that she has continued to work after the accident, and she should not to be
penalized for her stoicism.
[192]
The plaintiff argues that Mr. Shews Report confirms her testimony,
namely that she has difficulty with the physical aspects of her job, and that
continued performance of her duties aggravates her symptoms. The plaintiff also
notes that Mr. Shews Report confirms that her injuries have left her at a
competitive disadvantage in the labour market due to her restrictions, and the
aggravation of her symptoms. She is incapable of the upper strength
requirements of her position, less capable of the sedentary, light, and select
medium aspects, and susceptible to aggravation of her symptoms due to her
requirements.
[193] The
plaintiff submits that Ms. Lerouxs evidence on this point further
confirms both the pain and loss of function from which the plaintiff suffers,
and the extent to which she is limited in her ability to jump in and help out
her team members when the store is short-staffed and in need of help in order
to meet quotas.
[194]
The plaintiff also notes that while satisfaction of the Brown
factors will often be used to determine the extent of a loss, she is not
required to prove a future pecuniary loss on the balance of probabilities. The
plaintiff submits that all she needs to prove is that such a loss is beyond
mere speculation. I pause to note that the test, as stated above, is that the
plaintiff must demonstrate both impairment to her earning capacity and that
there is a real and substantial possibility that the diminishment in earning
capacity will result in a pecuniary loss. Once these two requirements have been
established, then future hypothetical events that may affect the award can be
considered, so long as there is a real and substantial possibility of the event
occurring, not mere speculation. The following passage from Rosvold v.
Dunlop, 2001 BCCA 1, is instructive:
[9] Because damage awards are
made as lump sums, an award for loss of future earning capacity must deal to
some extent with the unknowable. The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities: Athey v. Leonati, [1996] 3
S.C.R. 458. Possibilities and probabilities, chances, opportunities, and risks
must all be considered, so long as they are a real and substantial possibility
and not mere speculation. These possibilities are to be given weight according
to the percentage chance they would have happened or will happen.
[195] The
plaintiff submits that the evidence has borne out the possibility that her
injuries could cause her a loss in the future, and that there is any number of
contingencies to consider, too numerous to list. However, two possibilities
(perhaps even likelihoods) were clear from the evidence at trial. First, that
her store may go out of business, or she may otherwise find herself in the job
market. There is evidence regarding the current precarious financial condition of
her store, related primarily to the Skytrain construction nearby. Should the
store close, she might find herself to be a functionally limited woman, of
limited education in her 50s or even 60s, and there is no guarantee that a
person in those circumstances could find a job at all, let alone a job paying
what she earns as a Value Village store manager.
[196] The second
possibility is that the plaintiffs physical condition and corresponding
functional limitations could worsen. Her evidence is that her left shoulder and
arm symptoms feel as though they are getting worse. Mr. Stark also gave
evidence that the plaintiff seems to be getting worse. This evidence
corresponds with the evidence of Dr. Salvian, in his Report and orally,
that persons with thoracic outlet syndrome are at significant risk of
aggravating and worsening their condition to the point of being unable to use
their affected arm. This could be the result of further trauma, something that
may be experienced by the plaintiff in the future. Worsening and aggravation of
thoracic outlet syndrome can also be caused by repeated use of the affected arm
in a particular way. The plaintiff submits that given her description of her
symptom patterns, as well as the evidence of Mr. Stark, it is not
unreasonable to assume that this is what is taking place in her case. Regardless,
the plaintiff submits that the potential worsening of her thoracic outlet
syndrome is a real and substantial possibility, if not probability.
[197] Finally,
even if neither of these contingencies were to materialize, the plaintiff
submits that her evidence and Ms. Lerouxs is clear that she is entitled
to monetary bonuses if her store does well in meeting its quotas and sales
targets. As Ms. Leroux clarified in her testimony, the sales performance
of the store is largely driven by the production departments ability to get
new items out onto the floor. Therefore, if production suffers then sales
suffer as a result. The plaintiff submits that since she is in charge of her
team meeting the quotas, which involves jumping in to help out with tasking
when they are behind, her restrictions in doing so present a real and tangible
loss of potential earnings that cannot be ignored.
[198] Further, as
her loss is one of a diminishment in her ability to earn, and it is uncertain
how it may affect her ability to earn income, the loss is not easily measurable
in a pecuniary way. In this case, the capital asset approach is most
appropriate for her situation.
[199]
The plaintiff submits that while it is difficult to put a precise dollar
amount on something that is not measured by reference to numbers, the plaintiff
is nevertheless entitled to be compensated for her loss. As stated in Pallos
v. Insurance Company of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.):
43 The cases to which we
were referred suggest various means of assigning a dollar value to the loss of
capacity to earn income. One method is to postulate a minimum annual income
loss for the plaintiffs remaining years of work, to multiply the annual
projected loss times the number of year remaining, and to calculate a present
value of this sum. Another is to award the plaintiffs entire annual income for
one or more years. Another is to award the present value of some nominal
percentage loss per annum applied against the plaintiffs expected annual
income. In the end, all of these methods seem equally arbitrary. It has,
however, often been said that the difficulty of making a fair assessment of
damages cannot relieve the court of its duty to do so.
[200] The
plaintiff submits that there are any number of future contingencies to be
considered by the Court, including the potential loss of her job or worsening
of her injuries and limitations. However, she argues that one example that may
provide some perspective for the Court is that even if the plaintiffs injuries
only cause her to retire two years earlier than she otherwise would have, that
would represent a loss of more than $100,000 at her current salary.
[201] In all of
the circumstances, it is submitted by the plaintiff that a fair award for her
loss of earning capacity would be in the range of $50,000 to $150,000.
2. The Defendants Position
[202]
The defendant submits that the recent case of Graydon v. Harris,
2014 BCCA 412, informs the circumstances of the case at bar. In that case, the
plaintiff was 60 years old at the time of the accident. He worked for 40 years
as a welder. He retired shortly before the accident but was re-hired as a
project superintendent. This was a fairly light job though it did involve some
welding. The plaintiff continued working after the accident despite having
moderate pain. He had to limit himself in terms of doing heavier work because
of his accident injuries. The medical evidence was that the plaintiff would be
limited by his injuries from doing welding for prolonged periods. He would also
have difficulty with heavy lifting and working in awkward positions. There was
medical opinion that the plaintiff could continue working so long as he did
primarily supervisory work. The doctor noted that it was possible the plaintiffs
pain would ultimately become so bothersome that it would cause him to stop
working.
[203] In the
trial judges decision (2013 BCSC 182) it was held that the plaintiffs
injuries would continue to affect his work. Nevertheless, the trial judge noted
the plaintiff had not missed much work and could work in a supervisory fashion,
even if he was unable to continue to weld. Ultimately, the trial judge held
that there was not a real and substantial possibility the accident injuries
would have an impact on his ability to earn income.
[204] On appeal,
the plaintiff argued that it was inconsistent for the trial judge to accept the
medical evidence as to the plaintiffs limitations, but fail to award him
anything for loss of earning capacity. The Court upheld the trial judges
decision. The Court noted that the trial judge had found that the plaintiff may
have to stop doing hands-on welding, but he could still supervise. In fact, he
was hired to be a supervisor. It was merely speculation that the plaintiff
would have to work doing anything other than what he was hired to do. At para. 25,
the Court accepted the trial judges position that it was unlikely the
plaintiff would ever work in a heavy job.
[205]
The Court emphasized that the risk of a loss of income attributable to
the injuries has to be realistic, having regard to the plaintiffs own
circumstances. Specifically, the Court stated:
[27] In any event, establishing a
real and substantial possibility of a future event causing an income loss that
is attributable to the plaintiff’s injury suffered in the accident means that
any employment said to have been lost to the plaintiff by reason of the injury
must be shown to be realistic, having regard for what the plaintiff’s
circumstances would have been absent the injury: Perren v. Lalari, 2010
BCCA 140 at para. 32, citing Steward v. Berezan, 2007 BCCA 150.
There is otherwise no proof of a loss.
[206]
Another case referred to by the defendant with respect to consideration
of awards under this head of damages is the recent decision in Kim v. Morier,
2014 BCCA 63. The appeal concerned the trial judges finding that the plaintiff
had sustained a loss of future earning capacity for which damages in the amount
of $10,000 were awarded. The plaintiff was a previously active 30 year old
woman who was working as a floor plan technician. The job involved being on her
feet all day, as well as kneeling and bending to take measurements. There was
no award for past loss of income, but an award of $25,000 was made to
compensate for a one year delay of entry into the workforce, which was found to
be partly attributable to her injuries. The Court summarized the evidence
relevant to the appeal as follows:
[3] It is in respect of the award
for reduced earning capacity that this appeal was brought. Ms. Kim testified as
to her fear that if her employer expands his business, he will hire someone
else to fulfill the requirements of attending at construction sites. This fear
is one example of the anxiety that characterized her view of her future. The
trial judge did not accept that these fears were fully justified. He noted that
Ms. Kim had not provided any evidence that she might be forced to leave a
commercial job or a construction site because she finds steel toed boots
uncomfortable, or that her employer plans to expand its commercial clientele.
[207]
The Court then quoted the trial judge as follows:
[5] The trial judge stated:
[106] The capital asset approach
seems more appropriate for this case since it would be difficult to postulate a
minimum annual income loss for the plaintiffs remaining years of work and I do
not have expert evidence to assist me in that regard.
[107] The plaintiff has
suggested $75,000.00 is a reasonable estimate of what she would lose over her
work life by virtue of the pain caused by her injuries. She projects that the
steel toed boots will continue to interfere with her ability to work on
commercial construction sites, where she can earn more than she can earn on
residential sites. Ms. Kim further bases this claim on her alleged loss of 27
commercial jobs a year.
[108] I am not aware of any
particular jobs that she has lost as a result of being unable to attire herself
correctly to attend a construction site. It has not been suggested to me that
someone else has been hired to do the work she is unable to perform. As well, I
have no reliable evidence on the estimated amount of commercial work that would
likely become available to Ms. Kim over the years ahead.
[109] I am reminded of the fact
that Ms. Kim has not missed any work and she can work 12 to 15 hours per day.
[110] Her ambition appears to
mean that she will continue to achieve at her job despite her pain. This should
not result in a lower award than would be given to an injured plaintiff who
complains constantly. However, to some degree, I must take her continuing
ability to do her job as a limit on her claim for future wage loss.
[111] Given the nature of her
continuing pain, I find that she is entitled to some amount for her loss of
a capital asset, namely her own perception that she is less valuable as an
employee.
[112] However, in view of the
vague and uncertain nature of the evidence available to me under this head of
damages, I limit her award to a nominal amount.
The amount awarded was $10,000.00. The judge then added:
[114] I find that as she ages,
she may be less capable of maintaining her disciplined approach to work.
[Emphasis in original.]
[208] In allowing
the appeal and vacating the loss of earning capacity award, the Court found
that the trial judge erred in equating the loss of capital asset with the
plaintiffs own perception (para. 8). It was not found at trial that there was
a realistic possibility she [would] be less able to compete in the marketplace
− with economic
consequences, not merely psychological ones. Additionally, the trial judges
statement that the plaintiff may be less capable of maintaining her
disciplined approach to work also fell short, with the Court of Appeal holding
that the word may is essentially speculative and does not equate to a
finding of a real possibility.: Kim, at para. 8.
[209] The
defendant submits that the findings of fact referred to by the Court in Kim
are rather similar to those in the case at bar. There is evidence of impairment
of a capital asset as well as evidence of the plaintiffs own fears about the
future, but there is no evidence that the impaired asset will realistically
translate into lost income sometime in the future. Accordingly, the Court
should be mindful to not equate the loss of capital asset with the plaintiffs
own perception, and overlook the preliminary step of determining that there is
a real and substantial possibility that the plaintiffs income will be
impaired.
[210]
The defendant also submits that the ongoing pain symptoms experienced at
the plaintiffs job do not, in this case, equate to a finding that there has
been a loss of future earning capacity. As noted in McTavish v. McGillivray,
2000 BCCA 164, when the Court was assessing a claim for lost housekeeping
capacity:
[69] A plaintiff who performed
the tasks with difficulty or functioned with the tasks undone and never to be
done will be compensated for that loss under the head of pain and suffering and
loss of amenity, just as she would if she were to go to work every day, earning
her regular wages, but suffer in the course of mitigating her loss.
[211] The defendant
submits that the evidence in the instant case does not support a real and substantial
possibility of a future event leading to a loss of income. The plaintiff would
be in the same position with respect to her employment, irrespective of the
injuries sustained in the accident. It is pure speculation that the plaintiff
will, in the future, be suddenly thrust into a position requiring her to
undertake physical tasks beyond her abilities, such that she will sustain a
loss of income.
[212] The
defendant argues that the plaintiff has been in management for a number of
years; she is a competent and respected manager; she has accommodated her
injuries appropriately without detriment to her position; she has not sought
any formal accommodation from her employer, although that option has always
been available to her; the extent to which she participates in physical work is
consistent with her employers expectations and she has been recognized with a
promotion and positive performance reviews; and furthermore, her symptoms and
functioning may very well improve with appropriate treatment that she has not
yet pursued, further reducing the likelihood of a future loss. Therefore, the
defendant submits that the facts in this case simply do not justify any award
under this head.
3. Decision
[213] The plaintiff argues that the evidence establishes that there has
been an impairment to her earning capacity, and that there is a real and
substantial possibility that she will suffer a pecuniary loss in the future.
[214] First, an application of some of the considerations listed in Brown,
which assist the court in valuing how the asset was impaired, applied to my findings in the case at bar support the plaintiffs
position that she is less valuable to herself as a person capable of earning
income in a competitive labour market:
(a) She is less marketable as a prospective job applicant because she is
unable to tolerate some of the demands of her current job, and she has been
rendered less capable overall from earning income from all types of jobs
requiring upper body strength. Dr. Salvian opined that the plaintiff can manage
at work reasonably well as long as she does not have to do anything physical or
repetitive with her left arm, particularly with her left arm elevated or away
from her chest, nor could she take on a position where she had to do repetitive
activities such as typing or prolonged driving or heavy lifting. Dr. Stewart
opined that the plaintiff would be unable to do physically demanding work.
Finally, Mr. Shew opined that she is likely at a competitive disadvantage if
she was to enter an open job market because of the persistence of her
limitations.
(b) The culture of the plaintiffs workplace dictates that the
plaintiffs duties as a store manager are to be primarily a team player in
leading her staff to meet store quotas, and when necessary, to be very hands on
including taking on some of the physical tasks of employees who are absent from
work. I agree with the plaintiffs position that even if she were able to
manage a job position by making the necessary accommodation, as she now does,
she would have to disclose to a prospective employer her requirements for
making accommodation, and risk losing her job if the employer was not prepared
to meet her requirements.
[215] Second, the evidence establishes that the plaintiffs condition of post-traumatic
thoracic outlet syndrome is getting worse, and could worsen still more in the
future. In my opinion, this fact is a real and substantial possibility, if not
even a probability of a diminishment in her capacity to earn income.
[216] In my opinion, the facts in the cases relied upon by the defendant
are distinguishable from those in the case at bar. In Graydon, the
plaintiff was retired and collecting a pension. He returned to employment prior
to the accident when he was offered a supervisory position. After the accident
he returned to work the following day and then worked the next nine days up to
13 hours per day. He was able to work long hours and one half of his income in
his best earning year was overtime pay.
[217] In Kim, as noted in the decision, the plaintiff held a fear
that if her employer expanded his business he would hire someone else to
fulfill the requirements of attending at construction sites and the trial judge
did not accept that these fears were justified. I disagree with the defendants
argument that the facts in the case at bar are similar.
[218] In the result, I accept the plaintiff’s argument and find that she
has suffered an impairment to her earning capacity, and that there is a real
and substantial possibility that she will suffer a loss of income in the
future. I also find that by applying the capital asset approach to the assessment
of her damages under this head, and upon my review of the applicable
authorities, a fair and appropriate award to her for her loss of earning
capacity is $55,000.
C. Loss of Housekeeping Capacity
1. The Plaintiffs Position
[219] The
plaintiff refers to the decision in OConnell v. Yung, 2012 BCCA 57, which
referred to the leading cases of Kroeker v. Jansen (1995), 4 B.C.L.R.
(3d) 178 (C.A.), leave to appeal refd [1995] SCCA No. 263; and, McTavish.
[220]
In OConnell, Kirkpatrick J.A. summarizes the distinction between
loss of housekeeping capacity and cost of future care:
[67]
because the award reflects
the loss of a personal capacity, it is not dependent upon whether replacement
housekeeping costs are actually incurred. Damages for the cost of future care
serve a different purpose from awards for loss of housekeeping capacity. Unlike
loss of housekeeping capacity awards, damages for the cost of future care are
directly related to the expenses that may reasonably be expected to be required
(Krangle at para. 22).
[221]
The plaintiff notes that her evidence, as well as that of Mr. Gleason is
that prior to her accident, she was someone who took responsibility for all
household chores, including cooking, washing dishes, and household cleaning,
such as vacuuming, tidying, and dusting. However, following the accident, she
has been unable to do work around the house at the same level. This reality was
reflected in the evidence of the plaintiff, Kevin and Mr. Stark. Furthermore, Dr. Salvian
said in his Report, at p. 23:
At home she will require
assistance with heavy housework such as vacuuming, wall washing, and window
washing. She should avoid putting things in high shelves or hanging up heavy
loads of laundry. She will require assistance with gardening, raking and
shoveling and painting.
[222] The
plaintiff also refers to Kumar, a case where the plaintiff suffered from
similar injuries. While the plaintiff in Kumar did not suffer from
thoracic outlet syndrome, the Court found, at para. 15, that she did
suffer from myofascial chronic pain syndrome related to soft tissue injuries to
her left shoulder, neck, and upper back. The Court further found, at para. 16,
that the plaintiffs injuries limit her use of the left shoulder and arm,
significantly impairing her ability to carry out household chores such as
cleaning and laundry, [and also] cook[ing]. While the Court found, at para. 58,
the evidence on lost housekeeping capacity to be somewhat confusing and
inconsistent, it did accept an estimated increase in hired housekeeping help
of an additional eight hours per week at $15 per hour. The Court took into
account a number of factors including the impact of employment, the potential
for recovery and the effect of aging (para. 59). The Court ultimately awarded
the plaintiff $6,000 per year to age seventy, and reduced for contingencies to
a total award of $70,000 for loss of future housekeeping capacity.
[223] The plaintiff
in the case at bar argues that the primary differences between her and the
plaintiff in Kumar is that Ms. Kumar had paid housekeeping help
prior to her injuries and an increase in such afterwards, meaning that Ms.
Kumar could demonstrate a clear pecuniary loss; and that the plaintiff in the
instant case suffers from more than myofascial injuries and the evidence is
that her thoracic outlet syndrome is at serious risk of deteriorating with
repetitive left arm use. The plaintiff submits that with respect to the lack of
a paid housekeeper in her case, this fact should not deprive her of
compensation for this very real loss. As was made clear in OConnell, it
is not necessary for a plaintiff to prove that someone will be employed to do
the work in the future to be entitled to an award for loss of housekeeping
capacity. With respect to the difference in the two plaintiffs injuries, it is
the plaintiff in this case who has the less promising prognosis with respect to
further degeneration.
[224] In light
of all of the circumstances, the plaintiff submits that an award in the range
of $10,000 to $25,000 is appropriate for the plaintiffs loss of housekeeping
capacity.
2. The Defendants Position
[225] The plaintiffs
evidence regarding the extent of her homemaking difficulties, coupled with the
shared nature of homemaking tasks attested to by Mr. Stark do not, in the defendants
submission, justify any award under this head.
[226] The
defendant submits that, the Court in Campbell v. Banman, 2009 BCCA 484
at para. 19, referred to Star v. Ellis, 2008 BCCA 164, as being a
caution that relatively minor adjustment of duties within a family will not
justify a discreet assessment of damages. There will be applied a robust appreciation
of household realities within a family and an understanding of the normal give
and take that necessarily is part of family life.
[227] Along this
line of reasoning, I note the recent case of Westbroek v. Brizuela, 2014
BCCA 48 at para. 77, where the Court referred to Kroeker as establishing
that a cautionary approach should be taken to awards for a loss of housekeeping
capacity. In Kroeker, there was a two thirds reduction in the award
where the plaintiff and his or her spouse may be able to re-organize domestic chores
in such a way that there would be no pecuniary loss. The Court held that the
trial judges award be reduced by two thirds on account of the cautionary approach,
in part because there was no evidence as to the allocation between the spouses
of household tasks.
[228] The defendant
submits that if there is to be any award under this head, it should be in the
range of $2,500.
3. Decision
[229] Based upon
my findings on the evidence, and my consideration of the authorities, I fix the
plaintiffs claim in the amount of $6,500 for the reduction of her capacity,
past and future, to perform household tasks and chores caused by her accident
related injuries.
D. Cost of Future Care
1. The Plaintiffs Position
[230]
The plaintiff submits that, in her circumstances, an appropriate award
for cost of future care would be in the range of $20,000 to $30,000. She notes
that the purpose of awarding damages for cost of future care is to provide for
and promote the plaintiff’s mental and physical health into the future. The
Court in Kuskis commented on the nature of awards for future care:
[163] An award for the cost of future care is notional and
imprecise in nature: Strachan (Guardian ad Litem of) v. Reynolds,
2006 BCSC 362. The court must consider evidence regarding what care is likely
in the injured person’s best interest and calculate its present cost, with
appropriate adjustment for contingencies in all of the circumstances of the
case: Courdin v. Meyers, 2005 BCCA 91.
[164] In making an award for
future care costs the court must take into account both what is medically
required and what expenses the plaintiff will likely incur. Items and services
that the plaintiff is unlikely to use in the future cannot be justified as reasonably
necessary aspects of the cost of future care: Izony v. Weidlich,
2006 BCSC 1315.
[231] Further,
in Spehar et al. v. Beazley et al., 2002 BCSC 1104, affd 2014 BCCA 290
at para. 55, the Court accepted the plaintiffs submissions that the
authorities support awards of compensation that will provide a reasonably high
standard of future care for injured plaintiffs.
[232]
The Supreme Court of Canada discussed the quantification of future care
costs in Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9:
21 Damages for cost of
future care are a matter of prediction. No one knows the future. Yet the rule
that damages must be assessed once and for all at the time of trial (subject to
modification on appeal) requires courts to peer into the future and fix the
damages for future care as best they can. In doing so, courts rely on the
evidence as to what care is likely to be in the injured person’s best interest.
Then they calculate the present cost of providing that care and may make an
adjustment for the contingency that the future may differ from what the
evidence at trial indicates.
[233] The
plaintiff notes that in Mr. Shews Report he provided recommendations
regarding the plaintiffs future care. He also provided estimates of the cost
of such care, which take into account the duration for which she will likely
require it, and the frequency at which it will be required.
[234] The first
recommendation is for physical rehabilitation. Mr. Shew noted that it is
his opinion that the plaintiff remain as active as possible. While he says that
individuals are often unsure of appropriate exercises and may perform the
exercises incorrectly, she would likely benefit from update sessions with a
physiotherapist who could identify her specific restrictions. Her exercises
could then be supervised by a kinesiologist.
[235] The cost
of the physiotherapist, which he recommends she see twice per week for six to
eight weeks, would total anywhere from $660 to $1,040. The cost of the
kinesiologist, which he recommends twice a week for six weeks, would total
between $630 to $756. These costs would be in addition to a fitness membership,
which is approximately $368 per year. Although Mr. Shew did not comment on
how long she would require a fitness membership, the plaintiff submits that
given the consensus that her condition is permanent in nature, the defendant
ought to be required to pay for a lifetime fitness membership.
[236] The
plaintiff submits that if the Court wishes to award her a fitness membership
for the next 20 years, the cost would be $7,360; for the next 30 years, the
cost would be $11,040. However, taking into account the present discounted
value as required under the Law and Equity Act, R.S.B.C. 1996, c. 253,
s. 56, and the Law and Equity Regulation, B.C. Reg. 352/81, the estimated
range becomes between $6,018.95 and $8,244.15. It is also noted that the
recommendation for a fitness membership and personal trainer was also supported
by Drs. Salvian and Stewart.
[237] Mr. Shew
also recommended a short bout of physiotherapy to re-trial a TENS machine to
determine if this item would assist in the management of her symptoms, which
will likely aid her in remaining functional and productive. He notes that four
to six physiotherapy sessions for this purpose should suffice, at an estimated
cost of $220 to $390. The cost of the TENS machine itself is approximately
$200. Electrodes then need to be replaced every three to four months at a cost
of $23 ($69 to $92 per year). In total, then, the cost of this recommendation
for the next 20 years (applying present discounted value calculation) would be
$1,924.32 to $2,094.33; for the next 30 years, it would total between $2,480
and $2,650.48.
[238] Mr. Shew
also made a recommendation for an ergonomic assessment of the plaintiffs
current workstation. He states that this assessment would identify the most
appropriate ergonomic equipment and modifications to her workstation, as well
as provide suggestions regarding her biomechanics to allow her to better manage
her symptoms while attempting to remain productive. He estimates the cost of
this service at $153 to $231.
[239] Depending
on the recommendations that flow from the ergonomic assessment, Mr. Shew
postulated that she will likely require an adjustable high-back ergonomic chair;
an ergonomic keyboard and mouse; a wide, tilt and height adjustable keyboard
tray; and a slant board/document holder. The total estimated cost of these
items is from $575 to $685.
[240] In
addition to Mr. Shews recommendations, the plaintiff notes that she continues
to take over the counter medication, use Epsom salts, cream, and MediStik at an
approximate cost of $145.90 per month. Over the course of 20 years, this would
total $28,628.03. Over the course of 30 years, it would total $39,211.79.
2. The Defendants Position
[241] The
defendant notes that the treatment recommended by the experts includes
specialized physiotherapy and/or exercise therapy. Dr. Stewart also
recommended counselling for the plaintiffs passenger anxiety. However, the
defendant submits that in Penner v. Insurance Corporation of British Columbia,
2011 BCCA 135 at para. 14, the Court held that if a plaintiff is unlikely
to make use of a future care item its value should not be awarded.
[242] The
defendant submits that the plaintiff has had extended medical coverage in place
at all relevant times. Mr. Stark also has the ability to add the plaintiff
onto his plan, in the event that the plaintiffs own coverage was insufficient.
Despite this available coverage, the plaintiff has not attempted one treatment
modality since discontinuing physiotherapy in September 2010. She has not
followed Drs. Stewart or Salvians treatment recommendations. It seems
very unlikely, in the defendants submission, that the plaintiff will make use
of any future care award to pursue exercise or specialized physiotherapy.
3. Decision
[243] Although I
do not agree with the plaintiff’s submission on the extent of the additional
treatment that she will undergo, I do find that she will participate in some
treatment to address the symptoms from her accident related injuries. As she
acknowledges, as a result of taking treatment she will experience a certain
level of improvement in her symptoms which in time will reduce her medication
requirements and the duration of her use of a fitness facility. Thus, based
upon my findings and consideration of future contingencies, as well as the
applicable authorities, I assess the plaintiff’s claim for cost of future care
at $10,000 to treat her accident related injuries.
E. Special Damages
1. The Plaintiffs Position
[244] In terms
of special damages, the plaintiff asks the Court to find that an approximate
amount of $6,880 has been incurred by the plaintiff. She claims she has spent
$200 on physiotherapy treatments; $80 on the cost of the ambulance on the day
of the accident; and, a further approximate $145.09 per month on over the
counter medications, Epsom salts, MediStik, and therapeutic cream.
2. The Defendants Position
[245] The
defendant accepts that the plaintiff is entitled to special damages totalling
$280 for physiotherapy fees incurred in 2010, and the BC Ambulance bill. The
defendant submits that the plaintiff is not entitled to special damages beyond
that.
3. Decision
[246] I am
mindful that the plaintiff was not able to produce receipts to prove all of her
medication expenses. However, on the whole of the evidence, I am satisfied and
find that she is entitled to an award of $3,500 for special damages.
F. Mitigation
1. The Defendants Position
[247] The plaintiff
has, in the defendants submission, failed to mitigate her loss by failing to
undertake recommended medical treatment. The defendant seeks a 20% deduction on
account of the plaintiffs failure to mitigate.
[248]
The test for failure to mitigate by not pursuing a recommended course of
medical treatment is set out in Chiu v. Chiu, 2002 BCCA 618:
[57] The onus is on the defendant
to prove that the plaintiff could have avoided all or a portion of his loss. In
a personal injury case in which the plaintiff has not pursued a course of
medical treatment recommended to him by doctors, the defendant must prove two
things: (1) that the plaintiff acted unreasonably in eschewing the recommended
treatment, and (2) the extent, if any, to which the plaintiffs damages would
have been reduced had he acted reasonably.
[249]
The plaintiff has only engaged in ten physiotherapy sessions since the accident.
She found this helpful to some degree, but in the later sessions she found that
her headaches were being made worse. Her evidence indicates that she made only
cursory efforts, if any, to address how she might continue to engage in useful
therapy whilst managing her headaches. The plaintiff did not maintain any
degree of persistence with respect to treatment. Recently in Rasmussen v.
Blower, 2014 BCCA 1697:
[38] The law does not encourage indolence. An injured party
has a duty to mitigate
In this type of case, the plaintiff must seek and
follow the advice of his or her physician with the goal of overall improvement
and recovery.
[39] Regarding lack of mitigation, plaintiffs counsel
submits that the plaintiff did not follow the recommended treatment of
physiotherapy and massage, stating that the two sessions that he did attend
were painful, that he was constantly travelling, and that he could not afford
the treatments.
[40] The Court rejects the
plaintiffs reasons for failure to mitigate. Realistically speaking,
perseverance is often the key to allowing medical treatments a chance to work.
[250] The plaintiff
stated on direct examination that Dr. Crothers discouraged her from
engaging in additional modalities, and advised her that they would not assist
her. She also stated that Dr. Crothers had not given her any exercises to
do. Dr. Crothers denied that he so advised the plaintiff in giving his
evidence, or that he, in any way, discouraged the plaintiff from seeking other
treatment such as chiropractic or massage therapy. In fact, Dr. Crothers
specifically recommended massage therapy after the plaintiff discontinued
physiotherapy, as recorded in his clinical records. He also gave evidence that
he advised the plaintiff with respect to range of motion exercises, which is also
recorded in his notes.
[251] Drs. Stewart,
Salvian and Travlos all agree that the plaintiff should be engaging in specific
exercise therapy to assist with her symptoms. Other than some occasional range
of motion exercises about which the plaintiff provided some vague evidence, she
has not followed any of the treatment recommendations set out in the medical
legal reports. These treatment recommendations, according to the balance of the
expert evidence, would be expected to improve the plaintiffs symptoms and
functionality.
[252] The burden
is on the defendant in demonstrating a failure to mitigate. The defendant
submits that through the plaintiffs admissions, Dr. Crothers evidence,
as well as the expert evidence regarding the nature of the recommended
treatment and anticipated benefit of same, the defendant has satisfied the
burden, and submits that a 10-20% reduction is appropriate.
2. Decision
[253] I reject the defendants argument on mitigation. The evidence
establishes that the plaintiff did regularly attend her family doctor; she
attended physiotherapy but discontinued after consultation with her family
doctor; she was not referred by her family doctor to a specialist regarding her
complaints as he felt that her symptoms would resolve over time on their own;
and, she was not diagnosed with her condition of post-traumatic thoracic outlet
syndrome until several years following the accident. In all of the
circumstances, I find that the defendant has failed to prove that the plaintiff
did not mitigate her loss by failing to take appropriate or recommended
treatment.
VI. Conclusion
[254] As set above the plaintiff is awarded the following amounts:
Non-Pecuniary | $75,000 |
Loss of Earning Capacity: | $55,000 |
Loss of Housekeeping Capacity: | $6,500 |
Cost of Future Care: | $10,000 |
Special Damages: | $3,500 |
TOTAL: | $150,000 |
B.I.
Cohen J.