IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150508

Docket: M131039

Registry:
Vancouver

Between:

Roberto Espinoza

Plaintiff

And:

Martha G. Espinoza

Defendant

Before: The Honourable Mr. Justice
Grauer

Reasons for Judgment

I.                
INTRODUCTION

[1]            
Roberto Espinoza Guerrero was the front seat passenger in a sport
utility vehicle driven by the defendant, his wife, when it was involved in a
single-vehicle accident on December 31, 2011.  The defendant admits
liability for the accident, and further concedes that Mr. Espinoza was
injured.  The extent, however, of Mr. Espinoza’s injuries is hotly
contested.

[2]            
Mr. Espinoza alleges significant injury and ongoing disability in
the form of chronic pain syndrome, myofascial pain syndrome and thoracic outlet
syndrome all caused by the whiplash effect of the accident, manifested
principally in headaches, and neck and lower back pain.  As the diagnosis of
these injuries depends largely on the history and symptomatology reported by Mr. Espinoza,
his credibility, and that of the experts who testified in this matter on both
sides, is of critical importance.  It is by no means a straightforward matter.

II.              
THE ACCIDENT

[3]            
The accident happened when the driver, Mrs. Espinoza, lost control
of the family vehicle under winter conditions.  The SUV mounted the curb and
went up on the sidewalk, hit a fence, glanced off a tree, and then struck a
lamp post, bringing it to a stop.  Photographs demonstrate significant damage
to the right front and side of the vehicle including a loss of the right front
wheel.  As the front seat passenger, Mr. Espinoza was, of course, sitting
on the side where the impact occurred.

III.            
THE PLAINTIFF

A.             
The Credibility Conundrum

[4]            
Mr. Espinoza was born in Honduras in 1967 where he underwent about
eight years of schooling.  He emigrated to Canada in 1987.  He testified with
the assistance of a Spanish interpreter.

[5]            
On the witness stand, where he spent some considerable time, Mr. Espinoza
appeared to be in significant discomfort, heavily favouring his neck and back,
and exhibiting a significantly limited range of motion, consistent with the
injuries he claims to have suffered.  The defence attributes this to
“histrionics”.

[6]            
While testifying, Mr. Espinoza often had difficulty in organizing
his thoughts, and was frequently confused in giving his evidence.  For
instance, after stating that he was born on June 7, 1967, and that he
moved to Canada on August 27, 1987, he then explained that he was 18 when
he left Honduras for Canada.  That, of course, was obviously wrong.  He was 20. 
There is evidence of confusion as well in various forms filled out by Mr. Espinoza
for use by experts retained to assess functional capacity.

[7]            
After arriving in Canada, Mr. Espinoza found work as a cement mason,
and has essentially worked in concrete placing and finishing ever since.  Much
of this trial concerned the extent to which his injuries have interfered with
his ability to work in this field.  It is physically demanding.  It is Mr. Espinoza’s
case that his capacity to work in this field has been significantly diminished
by the injuries he suffered in the accident.

[8]            
At the time of the accident, Mr. Espinoza had been laid off. 
Shortly before, on November 7, 2011, he testified that he had suffered an
injury to his shoulder during the course of his employment.  He was off work
for three weeks before returning to light duties.  Mr. Espinoza was then
laid off on the stated basis that there was a “shortage of work”.  In the
meantime, he had made a claim for compensation to the Workers’ Compensation
Board (WorkSafe BC).  That claim was subsequently denied.  The defence takes
the position that the alleged workplace injury never occurred, and that his WCB
claim is evidence of a pattern of deception on Mr. Espinoza’s part.

[9]            
Since the accident, Mr. Espinoza returned to work as a cement mason
for different periods of time notwithstanding his physical state, noting that
he had a family to support.  According to his evidence, he has had to leave
each of these jobs because of the toll they took on his back and neck, but
returned to work fairly soon after.  The defence argues that he appeared fully
able to work in these positions, and that he did so is evidence that he was not
disabled.

[10]        
From all of this, a number of puzzling inconsistencies arise.  It is not
easy to imagine how the person I observed in the witness box, who appeared to
suffer from significant and disabling pain, could possibly have returned to
work as a concrete mason for any extended period, let alone the stretches of
several months at a time that were recorded here.  On the other hand, if, as
suggested by the defence, Mr. Espinoza was not significantly injured and
has set about to advance a spurious claim, it is difficult to understand why he
approached his employment the way he did after the accident.  Why bother to
return to work at all?  That he kept trying to resume employment seems
inconsistent with an intent to maximize undeserved recovery.

[11]        
Unfortunately, such inconsistencies abound in this case.  On almost any
given aspect, there is evidence that supports the claim as presented by Mr. Espinoza,
and evidence that raises doubt.

B.             
Before the Accident

[12]        
In his teens, Mr. Espinoza worked on a banana farm in Honduras,
rising to the position of quality control inspector.  He enjoyed his work, but
felt it necessary to leave Honduras to avoid becoming entangled in the military
adventures undertaken by the government of the day.

[13]        
Mr. Espinoza has three adult children, all of whom live at the home
he shares with his wife, from whom he is separated.  His daughters, 23 and 21
at the time of trial, live upstairs with Mrs. Espinoza, while his son, 22,
who is profoundly deaf, lives with Mr. Espinoza in the basement.  All
three children are studying full time.

[14]        
Since first obtaining work as a cement mason, which occurred
serendipitously, Mr. Espinoza has continued to work full time in that
field for over 25 years.  On his evidence, he has always enjoyed the work.  It
has involved him in a community of fellow-workers with whom he has enjoyed
working, and its physical demands have kept him outdoors and in good shape. 
Jobs are generally project-specific, and dispatched through the union hall. 
The pay is good, usually supplemented by a considerable amount of overtime.

[15]        
In August 2011, Mr. Espinoza started working for W.S. Nicholls
Western Construction Ltd. (“WSN”) at its project at Vancouver International
Airport.  He earned $32 per hour at regular time.  He was still working in this
capacity when, on November 7, 2011, he testified, he injured his right arm
and shoulder in the course of his work.  As no one was at the first aid
station, he left and returned home.  He took some time off to see if his injury
would improve.  It did not.  He saw his family doctor, Dr. Leonid Vinnitsky.

[16]        
According to Mr. Espinoza, it was Dr. Vinnitsky who told him
that as his injury had occurred at work, he would have to file a WCB claim.  Mr. Espinoza
indicated that he is by nature a very private man, imbued with the “macho”
cultural value of never complaining, never explaining, and never wanting to
appear weak.  He had, he said, no intention of filing a WCB claim until Dr. Vinnitsky
told him he must do so.  When asked about this, Dr. Vinnitsky explained
that he advises, but never instructs.

[17]        
After Mr. Espinoza’s claim was filed, WSN investigated.  Brent
Easter, WSN’s Vice President and project manager instituted the company’s
“standard investigation protocol” which included taking statements from
co-workers who might have witnessed the injury and preparing a report.  The
first problem was that Mr. Espinoza had not reported the injury when it
occurred, as required by policies with which Mr. Espinoza was well
familiar.  Then, according to the statements taken, none of the workers
interviewed acknowledged witnessing any incident.

[18]        
Mr. Easter agreed that a claim of this nature, if accepted, would
result in an increase in the company’s insurance premium.  As it was, the claim
was denied, essentially because it had not been reported on the day it was said
to have happened, and because there was no evidence from the co-workers to
support the claim of a work-related injury.  Mr. Espinoza did not appeal
that denial.

[19]        
David Russell, who was WSN’s site supervisor and safety officer at the
time, testified that he had a confrontation with Mr. Espinoza that day
because Mr. Espinoza was leaving early, something the whole crew had been
warned not to do.  A heated argument resulted, but there was no mention of any
injury.  The next day, Mr. Espinoza telephoned to say he was not coming
in.  He next showed up on November 10, with his arm in a sling, reporting
for the first time that he had hurt it at work.

[20]        
None of Mr. Espinoza’s co-workers testified as to what they saw or
did not see that day.  Neither Mr. Russell nor Mr. Easter were in a
position to give direct evidence on that issue.

[21]        
Just what happened on November 7 is very difficult to determine.  Mr. Espinoza’s
description of how he was injured and what he did afterwards lacks a certain
air of reality.  Given that Mr. Espinoza had filed several WCB claims
before this (not surprising in so physical an occupation), I find it difficult
to accept that he was reluctant to report an injury or file a claim on this
occasion because of cultural values.  As such, there is no satisfactory explanation
for why he simply walked off the job without saying anything to anyone about
being injured, particularly when he had a run-in with Mr. Russell on his
way out.  Upon being challenged for leaving early, stopping to explain that he
had been injured would have been the obvious and natural response.

[22]        
On the other hand, Mr. Espinoza did see Dr. Vinnitsky about
this injury, and paid for six sessions of physiotherapy out of his own pocket. 
The defence points out that Mr. Espinoza stopped physiotherapy around the
time that he learned that his WCB claim was denied (December 21, 2011).  I
note, however, that this was immediately before Christmas, which was followed a
very quickly by the accident.  That seems just as plausible an explanation for
the cessation of the course of physio on which he had embarked.

[23]        
I also note that the company offered him lighter duties, apparently
accepting that he had suffered an injury although not accepting that it
occurred on the job.

[24]        
I conclude that Mr. Espinoza did suffer some kind of injury at this
time, as recorded by Dr. Vinnitsky, and that he did not make it up
entirely in order to obtain compensation.  But I am not able to find, on a
balance of probabilities, that he was injured in the course of employment in
the way he described.  This is an example of the sort of evidence in this case from
which I conclude that Mr. Espinoza is quite capable of revisionism in
recounting what happened to him.  By this I mean that he demonstrated a
tendency to recast what happened in a manner more favourable to his interests
than the evidence supports.

[25]        
Ultimately, WSN laid Mr. Espinoza off effective December 22,
2011.  The Record of Employment notes that his last day worked was December 19. 
Mr. Espinoza then took employment insurance benefits, and was still receiving
those benefits at the time of his accident.

[26]        
As for recreational activities, Mr. Espinoza engaged in relatively
few.  I find that he did a small amount of gardening, did a small amount of
housework and maintenance, and went for walks with his family and his dog.  His
main interest outside of work was music, and he performed fairly frequently,
playing his guitar and singing, at local community events and celebrations.  Mr. Espinoza
spent a considerable amount of time practising, rehearsing and composing for
these performances.

C.             
After the Accident

[27]        
Mr. Espinoza testified that he cannot recall what he did
immediately after the accident.  He was in shock.  Somehow he got out of the
vehicle, and then saw his wife leaning against the steering wheel.  The car was
sparking, and he tried to get her out.  The police and ambulance service showed
up quickly.

[28]        
The ambulance then took Mrs. Espinoza to Surrey Memorial Hospital,
and Mr. Espinoza rode along inside.  She received some treatment there,
but he did not.  Their son than picked them up and brought them home.

[29]        
He gave evidence that he was stiff and sore all over the next day,
particularly in his neck and lower back.  He said that he waited two days to see
if he got better, and then went to see his doctor because the pain was worse. 
He had to cancel performances that had been scheduled.

[30]        
Mr. Easter testified that on or about January 2, 2012, Mr. Espinoza
came into the WSN office.  Mr. Espinoza told Mr. Easter that he had
been in a motor vehicle accident on New Year’s Eve, and said words to the
effect: “I told them I was working for you at the time”.  Mr. Easter
responded, “No, Roberto, you know that’s not so, you were laid off before
Christmas”.  Mr. Easter confirmed that there was still no work available,
and wished Mr. Espinoza well.  Mr. Espinoza then left.

[31]        
Mr. Espinoza could not remember such a conversation, but I have no
reason to doubt the evidence of Mr. Easter.  What I should take from it is
not entirely clear.  No evidence was led to suggest that Mr. Espinoza had
in fact told ICBC that he was working for WSN at the time of the accident.  It
is nevertheless consistent with my observation concerning Mr. Espinoza’s
capacity for revisionism.

[32]        
Mr. Espinoza remained on employment insurance until April 2012
when he started working as a cement mason for Astra Concrete Pumping 1998 Ltd.,
a company for whom he had worked in the past.  In the last half of April, he
worked 77 hours at regular pay ($28/hr), 23 hours at time-and-a-half
($42/hr), and 1.5 hours at double time.  Regular pay covers the first eight
hours of work in a day.  The next two hours are paid at time-and-a-half, and
any time over 10 hours in a day is paid at double time.

[33]        
According to Mr. Espinoza, he found this work difficult.  He took a
week or two off, hoping to recover, before starting what he considered to be a
“dream job” working for DL Baker Construction Canada on a project in Kitimat,
BC.  This was a long term project that could provide employment for several
years.  It required him to live in a camp in Kitimat, and offered the potential
of plentiful overtime at both time-and-a-half and double time.  He started
working there in early May, and continued until early July 2012.

[34]        
Mr. Espinoza testified that he was able to perform his duties in
Kitimat reasonably well for the first two weeks, although it caused him a good
deal of pain in his neck and lower back.  After the first two weeks, he had to
slow down.  The foreman asked him why he was so slow, and he took a day off. 
He was obliged to return to work after two days, and then quit when he found
that he could not perform his duties properly.  He did not like to tell his
employer why he was having difficulties and said nothing about being injured. 
He still had some pain in his right shoulder from the earlier injury, but this
did not interfere with his ability to work.

[35]        
Mr. Espinoza’s foreman at Kitimat, David Hill, testified that he
worked with Mr. Espinoza, and interacted with him daily.  He saw no signs
of pain or limitation, notwithstanding that Mr. Espinoza was bending,
crouching, kneeling, and working often 10 hours and more per day.  He described
the job as rewarding, but the working conditions less so given the lack of
privacy in camp life.

[36]        
Mr. Hill had worked with Mr. Espinoza before this stint, and
described Mr. Espinoza as a reliable worker who got along well with
people.  Then, somewhat inconsistently, he maintained that he would not hire Mr. Espinoza
again because he was not a happy person, and “was hard to get along with”.  He
noted that Mr. Espinoza never asked for modified duties and never gave any
reason for leaving.  He described Mr. Espinoza as storming away in a
tantrum.

[37]        
In cross-examination, Mr. Hill agreed that he was not in a position
to observe Mr. Espinoza while he was not working (when Mr. Espinoza
testified he had to lie down to recover from his workday), and that if Mr. Espinoza
had disclosed that he had neck and back problems, he would never have made the
dispatch.

[38]        
The fact remains that, while Mr. Espinoza testified that he ran
into problems after the first two weeks, he continued to work there for another
six weeks without any sign of limitation visible to his foreman.  The question
is whether his observed unhappiness and difficulties in getting along were due
to having to cope with pain that he was otherwise effectively able to mask in
order to maintain employability.

[39]        
After he returned to the Lower Mainland, Mr. Espinoza’s union dispatched
him to AC Paving Co. Ltd.  He worked there from July through December 2012
and was paid through to January 8, 2013.  He found the job interesting and
felt that he could handle it even though it hurt.  He testified that he then
ran into difficulty, however, doing form work, due to the amount of bending and
lifting, and ultimately was criticized by his foreman.  Once again, Mr. Espinoza
explained that he does not like to tell people what is going on with him, as he
is very private.  He did obtain a doctor’s note stating that he required two
days of rest, but in the end, he said, he could not comply with his employer’s
demands, and was laid off.

[40]        
Daryl Bowers, who was a working foreman with AC Paving during the time
that Mr. Espinoza worked there, gave evidence consistent with that from
other persons who worked with the plaintiff after the accident.  Mr. Espinoza
seemed to be a good worker, gave no sign of injury or limitation, and left
after a confrontation with another employee.

[41]        
In February 2013, Mr. Espinoza began working with Astra
again.  He testified that he left Astra in May 2013 because he was asked
to do concrete placing only, which is more physically demanding, and he was not
making as much money as he wanted.  After taking a short time off, he started
working with Gestaldo Concrete Ltd., another company with whom he had worked in
the past.  He worked with Gestaldo from May 2013 through November 2014.

[42]        
For the last year or so of this stint, Mr. Espinoza worked as a
foreman, which he thought would be easier on him physically.  Nevertheless, the
physical demands remained significant and caused him a good deal of pain. 
Ultimately, he said, he quit the job in order to avoid further damage to his
body.  At the time of trial, had not returned to work, but continued to take employment
insurance benefits.

[43]        
A compatriot and sometime co-worker, Aldo Gustavo Barrios, worked with
him during part of this time.

[44]        
Mr. Barrios, whom I found to be a credible witness, first worked
with Mr. Espinoza in 2006 or 2007, on the Port Mann Bridge project.  It
was difficult work over long hours and Mr. Espinoza had no problems at all
handling it.  He worked with Mr. Espinoza again after the beginning of
June 2013.  He remembers best the part of Mr. Espinoza’s work with
Gestaldo when Mr. Espinoza was a foreman.  He reported hearing of problems
among the workers because Mr. Espinoza could not carry his weight as part
of the team.  Although no objection was raised, I do not take that evidence
into account as it was hearsay.  But Mr. Barrios also had direct evidence
to give: he reported that when he worked side-by-side with Mr. Espinoza in
October and November 2014, he found that Mr. Espinoza kept falling
behind, and Mr. Barrios would have to go back to help him catch up.  This
was very different from his experience working with him years before.  In 2014,
Mr. Espinoza complained of back pain, and had to ask for help.  He did not
mention that he had been in a motor vehicle accident.

IV.           
THE EXPERT EVIDENCE

[45]        
Mr. Espinoza led evidence from his treating family doctor, Dr. Vinnitsky,
and from several experts who saw him solely for the purpose of assessing him
and preparing reports for this litigation: Dr. John le Nobel, a physiatrist;
Dr. Anthony Salvian, a vascular surgeon with an expertise in thoracic
outlet syndrome; Dr. Daniel Gouws, an occupational health physician; and
Richard Carlin, a vocational rehabilitation consultant.  The defence led
evidence from Dr. Duncan McPherson, an orthopedic surgeon.

A.             
Dr. Vinnitsky

[46]        
Dr. Vinnitsky first saw Mr. Espinoza in relation to the motor
vehicle accident on January 2, 2012.  By that time, he testified, Mr. Espinoza
had essentially recovered from the shoulder injury that had been reported to WorkSafe
BC.  Now, Mr. Espinoza complained of pain in the neck and lower back, left
hand and wrist pain, and headache and insomnia.  On examination, Dr. Vinnitsky
noted tenderness in the soft tissues of the neck, upper back and lower back,
with “accompanied a muscles spasm and stiffness”.  Neurological examination was
normal.  Dr. Vinnitsky diagnosed whiplash injury with severe lower back
strain, prescribed a nocturnal painkiller and a muscle relaxant, and advised Mr. Espinoza
to start physiotherapy and massage.

[47]        
Mr. Espinoza attended again on January 27, 2012, complaining
of neck stiffness, headache, fatigue and upper back spasm.  Dr. Vinnitsky
noted tenderness in the neck and upper back.  He advised continuing with the
muscle relaxant and massage.  He testified that he would not have prescribed
the muscle relaxant if he had not found spasm, although he did not record such
a finding.

[48]        
On March 8, 2012, Mr. Espinoza complained of pain in the left
wrist and “volar aspect of the left forearm related to sprained wrist”.  Dr. Vinnitsky
found no swelling and observed a full range of motion in the left wrist and
forearm.

[49]        
As we have seen, Mr. Espinoza returned from Kitimat in early July 2012. 
On July 12, he saw Dr. Vinnitsky and reported that he was unable to
keep working due to persistent low back and neck pain, with stiffness and
limited range of motion, and significant difficulties in lifting.  Dr. Vinnitsky
advised him to take some time off work and do physiotherapy.  It was shortly
after this appointment that Mr. Espinoza began working at AC Paving, where
he continued working for the rest of the year.

[50]        
Mr. Espinoza’s next appointment with Dr. Vinnitsky was on
November 15, 2012, at which time he complained of intense lower back, mid
back and neck pain with accompanied headache and insomnia.  He reported that he
was unable to return to work because of these problems.  Dr. Vinnitsky
noted tenderness along the entire spine, with accompanied “para vertebral spasm
in neck and lower back”.  He arranged for x-rays, which were normal.  He
prescribed a “powerful painkiller and muscles relaxant” and recommended
physiotherapy.

[51]        
Mr. Espinoza returned on November 22, complaining of pain in
the joints, back and neck with headache.  He reported difficulties with
activities at home and work.  Dr. Vinnitsky found tenderness in the soft
tissues of the neck, upper back and lower back, and advised physiotherapy and
massage.  He gave Mr. Espinoza a note to take a few days off work.  There
was a further consultation on November 28 at which time Dr. Vinnitsky
advised Mr. Espinoza to discuss with his employer ways of doing his work
that were less problematic.

[52]        
Mr. Espinoza returned on December 11, 2012, complaining of
intense lower back pain with difficulties walking, standing and bending.  Dr. Vinnitsky
reported palpatory tenderness along the lumbar spine, with accompanied “para
lumbar spasm”.  Once again, he gave Mr. Espinoza a note to excuse him from
working, and it was at about this time that he left his employment with AC
Paving.

[53]        
Mr. Espinoza returned on January 10 and 15, 2013, with
continuing complaints of insomnia, and pain in the neck, mid back and lower
back.  Dr. Vinnitsky prescribed an anti-inflammatory medication and
advised more time off work.

[54]        
As noted, Mr. Espinoza began working with Astra about a month
later.  He continued with Astra until May, at which time he took a little time
off before starting with Gestaldo that same month.  He did not return to Dr. Vinnitsky
until November 12, 2013 at which time he reported intense pain in the neck
and upper back and told Dr. Vinnitsky that he had visited the emergency
room of the local hospital a few times to obtain pain control.  That was untrue. 
Mr. Espinoza did not in fact attend any hospital over the relevant time.

[55]        
On this visit, Dr. Vinnitsky found “diffuse tenderness in upper
back and neck areas” and prescribed a painkiller with codeine and a muscle
relaxant.  Once again, he maintained that although he did not record any
finding of muscle spasm, it is probable that he did observe it or he would not
have prescribed a muscle relaxant.

[56]        
Mr. Espinoza returned to Dr. Vinnitsky on May 26, 2014
reporting ongoing neck pain and stiffness.  His next visit was not until
October 6, 2014, when he complained of intense upper back and neck pain
with muscle spasm and stiffness.  He came back on November 10, 2014, with
complaints of persisting pain in the neck radiating to both arms, reporting
headache and tingling in both arms.  A neck x-ray showed evidence of early
osteoarthritis.  That was the last visit relating to complaints arising from
the motor vehicle accident.

[57]        
In his medical legal report, Dr. Vinnitsky concluded that Mr. Espinoza
had been significantly affected by the accident, suffering neck, upper, mid and
lower back problems that had worsened considerably since the accident, and were
caused by it.  He considered Mr. Espinoza to be in need of ongoing
physiotherapy and rehabilitation therapy, and offered a guarded prognosis for
recovery.

[58]        
I observe that Mr. Espinoza undertook relatively little
physiotherapy notwithstanding that the repeated recommendations, and did not
take most of the medication that was prescribed.  He testified that it affected
his stomach.

B.             
Dr. le Nobel

[59]        
Dr. le Nobel saw Mr. Espinoza twice for the purposes of
preparing reports:  on December 13, 2013, and September 2, 2014.

[60]        
By December 2013, Dr. le Nobel observed, Mr. Espinoza was
nearly two years past the accident, and still suffering pain.  He diagnosed
this as chronic pain, which he defined as pain continuing for longer than the
time that tissue takes to heal, caused by myofascial pain.  He further
diagnosed “myofascial pain syndrome”, being diffuse in that it involves an
extensive area of the body, and characterized by abnormal sensory paraesthesia
(numbness) in addition to diffuse stiffness and aches.  In this condition,
nerve irritation is widespread as opposed to being limited to a focal area such
as at the carpal tunnel or thoracic outlet.  The prognosis, he indicated, was
guarded, but some improvement could be achieved through an exercise-based
rehabilitation program along with pain control, physiotherapy and massage
therapy.

[61]        
Dr. le Nobel’s opinion remained much the same after the second
assessment.  He was satisfied that, but for the motor vehicle accident, Mr. Espinoza
would have been able to get back to his work and music, and that his prognosis
remained guarded, with ongoing symptoms and limitations to be expected.

[62]        
Dr. le Nobel wrote in his report that he had provided expert evidence
for both plaintiffs and defendants.  On cross-examination, he indicated that,
over the last 10 years, he had prepared perhaps ten reports for defendants, and
thousands for plaintiffs.  He agreed that Mr. Espinoza was a poor
historian who had trouble explaining the nature of his work-related symptoms,
and did not mention that he had been laid off just before the accident.

[63]        
Dr. le Nobel agreed that his physical exam disclosed no nerve
damage, which is the whole point of myofascial pain syndrome.  He also agreed
that his diagnosis was based solely on what Mr. Espinoza told him. 
According to Dr. le Nobel, one does not have to have objective signs to
satisfy the criteria for a diagnosis of chronic pain.

C.             
Dr. Salvian

[64]        
Dr. Salvian was qualified as a specialist in vascular surgery with
expertise in thoracic outlet syndrome.  In his group of vascular surgeons, he
performs all of the thoracic outlet decompression surgery.  He saw Mr. Espinoza
on one occasion:  August 6, 2014.

[65]        
Dr. Salvian observed that Mr. Espinoza was a very fit and
muscular man who walked with a normal gait and sat in a normal fashion.  He was
careful only with the movements of his neck.  I note that Mr. Espinoza was
working with Gestaldo at this time and had not seen Dr. Vinnitsky for many
weeks.  What Dr. Salvian reported is markedly different from how Mr. Espinoza
presented while in the witness box before me, notwithstanding he was no longer
working at the time of trial.  At any rate, Dr. Salvian considered that
there were “no non-organic findings or findings of symptom magnification”.

[66]        
Dr. Salvian reported that palpation of the paraspinal muscles
revealed significant myofascial discomfort and muscle tension, with marked
tenderness over the scalene muscles bilaterally.  There was a marked tension
and discomfort over the pectoralis minor, and a degree of spasm of the right
pectoralis.  Sensory examination was normal.  He administered thoracic outlet
testing.

[67]        
In Dr. Salvian’s opinion, Mr. Espinoza’s ongoing headache and
neck pain was due to myofascial injury of the muscles and ligaments of the neck
and upper back.  He said that Mr. Espinoza had had long-standing back
complaints but his symptoms became much worse after the motor vehicle
accident.  He concluded that Mr. Espinoza developed soft tissue injury of
the ligaments and muscles in the area of the rhomboids and trapezius and
supporting muscles of the neck.  While such injury normally recovers in one or
two years, the symptoms persist in 10-15% of patients, developing into a “chronic
myofascial pain syndrome”, which is what he believes had happened with Mr. Espinoza.

[68]        
Dr. Salvian went on to diagnose, in addition, “post-traumatic
thoracic outlet syndrome” on the basis of complaints of numbness and tingling
with pain radiating down both arms into the forearms and hands, particularly at
night.  In this regard, he noted no complaints prior to the motor vehicle
accident notwithstanding Mr. Espinoza’s lengthy history of physical work. 
He observed that the accident was a significant collision, and reported: “Mr. Espinoza
described the onset of neck pain and stiffness and headache and then the
gradual onset of numbness, tingling and paraesthesias into the fingers”.

[69]        
In Dr. Salvian’s view, the motor vehicle accident induced “sufficient
whiplash to cause the onset of paraspinal scalene muscle injury and brachial
plexus irritation resulting in post-traumatic thoracic outlet syndrome”.  He
described this as a typical history.

[70]        
Dr. Salvian recommended job modification and retraining to assist
in this.  He considered it unlikely that Mr. Espinoza would be competitive
in a physical job.  He thought it would be useful to attend a chronic pain
service.  He concluded that his symptoms of thoracic outlet syndrome were
caused by the accident.

[71]        
Included among the medical data that Dr. Salvian reviewed was a Functional
Capacity Evaluation report prepared by Ms. Louise Craig on April 16,
2014.  He considered it to be an important factor.  Although Ms. Craig’s
report had been served on the defence, the plaintiff chose not to call her to
give evidence.  The defence submits that I should, as a result, draw an adverse
inference concerning Ms. Craig’s opinion.  I deal with this submission
below.

[72]        
Under cross-examination, Dr. Salvian agreed that his reference to
numbness and tingling in the arms down to the fingers came from what Mr. Espinoza
told him, and not from any clinical records.  In this regard, I note that the
first and only reference in the clinical records to a complaint of this nature
is in Dr. Vinnitsky’s note of November 10, 2014.  Numbness was also
reported to Dr. Gouws (discussed below) on October 6, 2014, as a
resolving problem.  Both were after Mr. Espinoza’s time with Dr. Salvian.

D.             
Dr. Gouws

[73]        
Dr. Gouws obtained his M.D. in 1984 in South Africa.  He has no
specialist’s training, but was qualified on the basis of his experience in the
field of occupational medicine as an expert capable of giving opinion evidence
in the field of general medicine and occupational medicine, including fitness
to return to work.

[74]        
Dr. Gouws saw Mr. Espinoza on October 7, 2014.  At that
time, Mr. Espinoza reported sharp neck pain and stiffness with associated
headaches that interfered with his sleep; mild to severe headaches a few times
a week; back pain associated with his neck symptoms; low back pain when he
bends for too long or lifts repeatedly; and numbness that he had initially
experienced in his arms at night, but which by then happened only once every two
months.

[75]        
Functional testing disclosed, among other things, adequate and pain-free
range of motion of both shoulders, unrestricted flexion/extension of both
elbows, no unusual sensitivity over the ulnar or median nerve distributions,
and no functional limitations in the elbows and forearms.  There was normal
wrist extension and flexion.  Mr. Espinoza stood with a level pelvis, and
normal thoracic and lumbar curves, and back flexion brought his fingertips to a
few inches from the floor.  There were no fully objective signs of injury.

[76]        
Based on Mr. Espinoza’s report and his testing, Dr. Gouws
concluded that Mr. Espinoza had developed a chronic pain condition with
widespread pain, headaches, functional limitations and emotional comorbidities
that had yet to resolve, all of which would not have occurred but for the
accident.  Mr. Espinoza is unable to work in the same capacity as his
pre-injury position of concrete/masonry supervisor, and is prone to
occupational burnout if he continues on his current path.

[77]        
Dr. Gouws considered that Mr. Espinoza had reached his maximum
recovery, and that his chronic pain condition has not been adequately
addressed.  He recommended psychological counselling with cognitive behavioural
therapy, and if his symptoms worsen, participation in a multidisciplinary pain
program.  In the meantime, he would require assistance with heavy household and
maintenance chores.

[78]        
An issue was raised concerning Dr. Gouws’ opinion and report
because a number of the screening tests that Mr. Espinoza took as part of
the assessment were in fact administered and scored by an assistant, whose role
in the assessment is not mentioned in the report.  A similar concern was raised
in relation to Mr. Carlin’s vocational assessment, which I will deal with
separately.

[79]        
As a matter of process, there is in my view nothing necessarily
problematic about the role of Dr. Gouws’ assistant in scoring the tests,
given that the work product can be produced and reviewed, and the assistant was
not involved in evaluating the scores.  That involvement should, however, have
been disclosed in order to comply fully with the spirit of Rule 11-6(1).

[80]        
The test results were produced and reviewed in this case.  The answer sheets
to some of those tests indicated at the very least a lack of understanding on Mr. Espinoza’s
part.  On one test, where he was asked to check a box indicating the frequency
with which he experienced a list of problems, the boxes indicating “not at
all”, “several days”, “more than ½ the days” and “nearly every day”, he tended
to check three boxes out of four for each item.  On another questionnaire,
where he was asked to rate various pain responses on a scale from 0 (not at
all) to 4 (all the time), he simply used checkmarks and Xs.

[81]        
In these circumstances, the fact that someone other than Dr. Gouws
administered and scored the tests becomes more problematic.  While I am
prepared to accept that Mr. Espinoza was confused in responding to these
questionnaires, I am left wondering how his answers could sensibly have been
used in arriving at an opinion.  Given the bifurcation between scorer and
evaluator, and the confusion on the part of them subject, I am unable to give
the report as much weight as I might otherwise have done.

[82]        
Like Dr. Salvian, Dr. Gouws listed Ms. Craig’s Functional
Capacity Evaluation among the documents reviewed for the purpose of his report. 
Dr. Gouws disavowed, however, any reliance upon Ms. Craig’s
evaluation in arriving at his opinions, notwithstanding his reference to
reliance on a “functional physical examination”.  Dr. Gouws explained that
this was based on his own examination, rather than Ms. Craig’s.

E.             
Mr. Carlin

[83]        
Mr. Carlin was qualified as an expert in vocational counselling,
able to offer opinion evidence in the field of vocational rehabilitation.  He,
too, reviewed the Functional Capacity Evaluation of Louise Craig.

[84]        
Mr. Carlin expressed the opinion that Mr. Espinoza would not
be able to tolerate the continued physical demand of his work in the concrete
pouring and finishing industry up to retirement age.  His employability outside
of that field would likely consist of lighter unskilled or semiskilled
occupations.

[85]        
In arriving at his opinion, Mr. Carlin assumed that Mr. Espinoza
sustained soft tissue injuries in the motor vehicle accident that have continued
to impact his capacity to work.  He reviewed the medical opinions I have
surveyed here, other than those of Dr. Vinnitsky, and otherwise relied on
what Mr. Espinoza reported.  Some of the information he took from Mr. Espinoza
was inaccurate.  For instance, Mr. Espinoza told Mr. Carlin that he
lasted three weeks in the job at Kitimat, when in fact he worked there for two
months.  It is possible, of course, that Mr. Carlin misunderstood Mr. Espinoza,
and that Mr. Espinoza was referring to the length of time he was able to
work in Kitimat before his pain became problematic.  But that is not what Mr. Carlin
took from the conversation.

[86]        
In his report, Mr. Carlin wrote that “Mr. Espinoza
demonstrated increased signs of fatigue and general discomfort during the two
plus hours of testing.  He was observed to shift positions somewhat regularly
and reported increased back, neck and headache pain by the end of the day”. 
Once again, the testing in question was administered by someone other than the
author of the report, without attribution:  in this case, a “psychometrist”
employed by Mr. Carlin.  It was that person who administered and scored
the tests, and made the observations described in the report.  Although the
psychometrist scored the tests, Mr. Carlin testified that it was he who reviewed
and interpreted the scoring.

[87]        
Once again, the fact that a person other than Mr. Carlin
administered and scored the tests would not, in my view, necessarily affect the
weight to be given the opinion, although it should have been disclosed.  Here,
however, there is an added difficulty to the problem of confusing answers.  Mr. Carlin
based his opinion in part on observations that were not his own, but were those
of the psychometrist.  These should not have been reported without attributing
them to the person who made them.  Experts are entitled to rely on hearsay, but
the extent to which they do so may well affect the weight to be given to their
opinions.  Consequently, it is important to make it clear where the
observations are firsthand and where they are not.

F.             
Dr. McPherson

[88]        
Dr. McPherson testified for the defence.  He was qualified as an
expert in orthopedic surgery, although he has not operated for over 20 years,
and his practice has been limited to medical legal consultations since about
1997.

[89]        
Dr. McPherson saw Mr. Espinoza on November 13, 2014.  It
was Dr. McPherson’s opinion that, as of at that time, “there is no
evidence of a disability related to the motor vehicle accident and none is
expected in the future.  There is no reason to limit his activities and he is a
very active person, doing a specialized form of concrete finishing”.

[90]        
Chronic pain and myofascial pain do not seem to be diagnoses that Dr. McPherson
recognizes.  It is no surprise, then, that he concluded that Mr. Espinoza
was not disabled.  In a case such as this, where credibility is in issue and
much depends upon the plaintiff’s evidence, a more expansive investigation and
deeper consideration of the medical issues would have been useful from the defence.

[91]        
Dr. McPherson offered little in the way of opinion evidence that
was either helpful or persuasive.  Moreover, there were a number of features of
his evidence that suggest a less than objective perspective.  For instance, Dr. McPherson
went out of his way (that is, beyond the scope of any question put to him) to
suggest that Dr. Salvian, while a reputable vascular surgeon, was
unethical in his approach to thoracic outlet syndrome, another diagnosis that Dr. McPherson
considers dubious.  Indeed, Dr. McPherson expressed the view that one
third of purported thoracic outlet syndrome patients have nothing wrong with
them as the problem is all in their head, another third have median nerve
compression, while the remaining third have ulnar nerve compression.  His
gratuitous comments in this regard, including his drive-by shot at Dr. Salvian’s
ethics, were neither set out in any report, nor put to Dr. Salvian in
cross-examination.

[92]        
Dr. McPherson was also rather selective in his references to Dr. Vinnitsky’s
records, and frequently went well beyond the question asked of him in order to
emphasize his point of view.

[93]        
What I do accept, however, is Dr. McPherson’s examination results
which showed full range of movement and normal power in the neck, shoulders and
upper limbs, normal leg movement, normal stance, gait and balance, and
appropriate flexion, extension and rotation of the back.  These observations
are essentially consistent with those of Dr. Salvian and Dr. Gouws. 
Like those of Dr. Salvian and Dr. Gouws, they do not fit with what I
observed in the courtroom.

G.            
Louise Craig

[94]        
As mentioned, Mr. Espinoza was seen by Ms. Craig for a
functional capacity evaluation.  The plaintiff decided not to call her to give
evidence and her report was not tendered.  Nevertheless, it had been reviewed
by Dr. Salvian, Dr. Gouws and Mr. Carlin in preparing their
reports and conducting their assessments.

[95]        
Dr. Gouws denied relying on it, and so his appendix referring to Ms. Craig’s
findings was removed from his report before it was entered as an exhibit.  Mr. Carlin
also reviewed Ms. Craig’s evaluation, stating in his report:

Ms. Craig reported that Mr. Espinoza
did not demonstrate the capacity to meet the physical demands of his job as a
Mason (NOC #7282).  However, she also stated that only limited testing was
completed due to reports of fatigue and severe pain.  She stated that Mr. Espinoza
felt he could not continue with testing and requested to terminate just after 2
PM.  Ms. Craig reported that Mr. Espinoza’s full
limitations/abilities are as yet undetermined.  Further, she reported that Mr. Espinoza
does not appear to have reached maximum physical rehabilitation.

[96]        
Dr. Salvian listed Ms. Craig’s Functional Capacity Evaluation
as part of the “medical data” that he found to be important, and quoted from
parts of it.

[97]        
The only other reference to Ms. Craig’s findings came from Dr. McPherson,
who referred to the same and other passages:

[Ms. Craig] remarks that “The patient did not
demonstrate the capacity to meet the physical demands of his job as a mason”
and apparently the examination stopped at that point.  This is curious in view
of the fact that he has been essentially steadily employed as a mason ever
since the spring of 2012.  She comments “The patient has not returned to work
as a mason since December 31, 2011”.  The employment records indicate that
he has been employed steadily since the spring of 2012, except for short
intervals between changes of job and employers.

Her most important observation is
on page 19, “Assessment of findings and clinical observations do not fully
support Mr. Espinoza’s subjective reports of pain and his perception of
his ability.  His subjective reports are inconsistent with pain scale
descriptors”.  She also comments “Mr. Espinoza presented with significant
activity limitation and pain behaviour”.

Dr. McPherson explained in his evidence that “pain
behaviour” means behaviour that indicates pain, but is not supported by the
facts.

[98]        
Also in evidence from Ms. Craig’s examination was a questionnaire
she administered that set out a lengthy list of household and sports and
recreational activities.  Mr. Espinoza was asked to indicate whether he
had done the activity before the accident, and if so, the extent of his current
limitation.  As to whether he had done the activity, he answered “yes” to every
one of them, including many that he had never tried in his life.  He was unable
to explain why he would have answered it in this way, although once again,
confusion seems evident.

[99]        
While I do not have the benefit of Ms. Craig’s report, I can and do
accept the accuracy of the references to what is in her report, which was
provided to other experts for review.  It seems to me that of the plaintiff’s
experts tended to ignore the more negative aspects of Ms. Craig’s findings
as reported by Dr. McPherson.  But I cannot be certain in the absence of
having Ms. Craig’s report available to me, or having her subjected to
cross-examination.

[100]     Counsel
for the plaintiff argues that I should draw no adverse inference from his
failure to call Ms. Craig as his decision was simply based on the absence
of any need to add her evidence to the mix and thereby lengthen the trial and
increase expense, and the defence could have chosen to call her if they felt it
appropriate or helpful to do so.

[101]     I
disagree.  I accept that a party is not obliged to call every witness,
including experts, on his or her witness list.  Whether any inference arises
from a decision not to call a particular witness depends entirely on the
circumstances.  Here, the witness in question was an expert whose report was
relied upon by other experts who testified and were cross-examined before the
decision not to call her was announced.  Had the decision been made at the
start of the trial, counsel for the defendant might well have conducted her
cross-examination of the other experts differently.  By mid-trial, it could not
fairly be suggested that the defendant could avoid any prejudice by calling Ms. Craig
as a witness for the defence, as opposed to cross-examining her as part of the
plaintiff’s case.  As a matter of trial fairness, that would put the defendant
in an untenable position.  In these circumstances, it cannot be said that Ms. Craig
was “equally available to both parties” (compare Zawadsky v Calimoso,
2011 BCSC 45 at para 149).

[102]     Consequently,
while counsel for the plaintiff has provided an explanation for deciding not to
call the witness other than adversity of opinion, that explanation must be
balanced against what is known about the report as indicated above, the fact
that other experts relied upon it, and the effect of the decision on trial
fairness.  In these circumstances, I infer that Ms. Craig’s evidence would
not have assisted the plaintiff’s claim.  See, for instance, Buksh v Miles,
2008 BCCA 318; O’Connell v Yung, 2012 BCCA 57 at para 27;
and Warren v Morgan, 2013 BCSC 708 at para 509.

[103]     The
practical effect of this, in the particular circumstances of this case, is to
detract from the weight I am prepared to give to the evidence of those of the
plaintiff’s experts who relied upon her report.  It does not affect the
necessity of carefully weighing all of the evidence, both lay and expert, in
determining the issues.

V.             
DISCUSSION

A.             
Injury and Non-Pecuniary Damages

[104]     As the
courts have frequently pointed out, it is necessary to be exceedingly careful
in assessing personal injury claims where there is little or no objective
evidence of continuing injury, and where complaints of pain persist for long
periods extending beyond the normal or usual recovery: see, for instance, Butler
v Blaylock Estate, [1981] BCJ No 31 (SC), and Prince v Quinn,
2013 BCSC 716.

[105]     In this
case, there are, in addition, a number of inconsistencies in the plaintiff’s
evidence and the expert evidence as described above.  There were additional
inconsistencies in Mr. Espinoza’s evidence about his inability to perform
music after the accident as he had before, notwithstanding the fact that he
recorded an album after the accident, and a number of post-accident performances
were noted on Facebook.  Moreover, Mr. Espinoza has been very inconsistent
in pursuing any course of therapy or rehabilitation.

[106]     Nevertheless,
I am satisfied that Mr. Espinoza was indeed injured in the motor vehicle
accident, and the defendant does not contest this.  I find that he sustained
soft tissue injuries to the neck and back, and that these indeed have become
chronic, though not as disabling as he would suggest.  In this regard, I rely
most upon the evidence of Dr. Vinnitsky, whose examinations disclosed at
least some objective symptoms and who had the opportunity to assess Mr. Espinoza
over a period of time both before and after the accident.  I found the evidence
of Dr. le Nobel and Dr. Salvian less helpful on this issue given
their total reliance on Mr. Espinoza’s reports, and my concerns with the
reliability of Mr. Espinoza as a historian.  As indicated, the evidence as
a whole leads me to conclude that Mr. Espinoza has at times exaggerated
his injury, attributing more to the motor vehicle accident than the evidence
other than his own can support.  I do accept, however, the reality of the
problem of chronic pain as a syndrome, a reality rejected by Dr. McPherson.

[107]     I do not
accept that Mr. Espinoza has suffered traumatic thoracic outlet syndrome
as a result of the accident, as opined by Dr. Salvian.  The best evidence
of his course after the accident, being the reports of Dr. Vinnitsky, is
inconsistent with what Mr. Espinoza reported to Dr. Salvian, and does
not support such a diagnosis.  Mr. Espinoza submits that Dr. Vinnitsky’s
finding on March 8, 2012, of pain in the left wrist and “volar aspect of
the left forearm” could properly be interpreted as due to numbness and tingling
consistent with a developing post-traumatic thoracic outlet syndrome.  Dr. Salvian
suggested as much.  I disagree.  It is clear that Dr. Vinnitsky related
this to a sprained wrist.  I find that Mr. Espinoza has failed to
demonstrate, on a balance of probabilities, that he suffered a thoracic outlet injury
at all, or that, if he did, it relates to the accident.

[108]     Mr. Carlin
noted that Mr. Espinoza had never been assessed at a chronic pain clinic,
and such information might indeed have been useful.  The fact remains that it
was for Mr. Espinoza to prove his injuries.  He has proven injury, but in
a manner that raises many concerns and questions.

[109]     In these
circumstances, I am unable to accept the level of disability to which Mr. Espinoza
testified, given that he has demonstrated an ability to work as a cement mason
without displaying any difficulty to those in a position to observe him.  In
saying this, I do not ignore the evidence of Mr. Barrios.  I accept Mr. Barrios’
evidence concerning some physical difficulties Mr. Espinoza had with
certain aspects of his work at the end of his time with Gestaldo.  The problem
is that, on the evidence, there appear to have been times when Mr. Espinoza
has had little difficulty, and other times when he has genuinely suffered from
the physical demands of his employment.

[110]     Much the
same can be said with respect to his activity as a musician.  When
cross-examined about the performances he gave following the accident, he said
that he had to change his costume because his neck could not support the large
Mexican sombrero that he normally wore.  He was then confronted with a
photograph from Facebook of him performing after the accident while wearing the
sombrero.  That is, however, only one moment in time and I am prepared to
accept that he was able to devote rather less time to practice and performance
after the accident than before.  But I treat his evidence with great caution.

[111]     Similarly,
the references by Dr. Salvian and Mr. Carlin to tests results they
reported as being consistent with an absence of malingering or exaggeration
seem to me to be of little help.  They are inconsistent with the observations
of those experts of Mr. Espinoza’s presentation as compared with his
presentation at other times.  Moreover, it is clear that Mr. Espinoza had
considerable difficulty with much of the testing.  In the circumstances, I am
unable to give those tests any weight.

[112]     Mr. Espinoza
submits that an appropriate award for non-pecuniary damages is $100,000.  He
relies on Davidge v Fairholm, 2014 BCSC 1948 ($90,000), Beagle v
Corneslon Estate, 2012 BCSC 1934 ($90,000), MacKenzie v Rogalaski,
2011 BCSC 54 ($100,000), Morlan v Barrett, 2012 BCCA 66
($125,000) and Poirier v Aubrey, 2010 BCCA 266 ($100,000).

[113]     The
defendant asserts that the proper range for an award of non-pecuniary damages
in this case is a $40,000-$50,000.  She relies on Wettlaufer v Air Transat,
2013 BCSC 1245 ($60,000), Langley v Heppner, 2011 BCSC 179
($55,000), Mowat v Orza, 2003 BCSC 373 ($50,000) and Rutledge v
Jimmie, 2014 BCSC 41 ($55,000).

[114]     I reject
the authorities cited by counsel for the plaintiff, which involve claims that
in my view are not only more serious, but also rest upon more reliable
evidence.  Thus in Beagle, the plaintiff was found to be honest and
stoic, while in Davidge, the prognosis was very poor indeed.

[115]     I consider
the Rutledge case to be much closer to this one, as it involved a
chronic pain situation where a diagnosis of thoracic outlet syndrome was
rejected.  Considering all of the necessary factors, and taking into account
the evidentiary difficulties, I assess the plaintiff’s non-pecuniary damages at
$55,000.

B.             
Past Loss of Income

[116]     The
defendant takes the position that no past loss of income has been proven.

[117]     The
plaintiff submits that the evidence supports an award of $90,000 in gross past
wage loss, when one adds up what he would have earned from the hours he could
have worked had he not been injured, and subtracts the amount he did earn.  He
suggests that he would have remained in Kitimat working for DL Baker but
for his injuries, which was a lucrative position.

[118]     Mr. Espinoza
submits that he has now arrived at the stage predicted by Dr. Gouws and Mr. Carlin,
of occupational burnout.  He has been worn down to the point where he cannot
work in any sustained manner without a significant period of rest.  Yet he gave
no appearance of being worn out in the period from August through November 2014
when he was seen successively by Dr. Salvian, Dr. Gouws and Dr. McPherson. 
Consequently, it is difficult to accept this proposition wholly.

[119]     After
carefully considering Mr. Espinoza’s evidence, the evidence of his
employers and that of Mr. Barrios, all of the expert evidence, and in
particular the chronology of treatment outlined by Dr. Vinnitsky, I
conclude that the chronic soft tissue injury that I am satisfied Mr. Espinoza
suffered has had an impact on his ability to work, but obviously has not
prevented him from being able to perform his duties as a cement mason.  I do
accept that it has taken its toll on him, but it is difficult, on the evidence,
to ascribe any particular period of unemployment to the accident, at least
until his departure from Gestaldo.

[120]     In the
circumstances, doing the best I can with the evidence, I find it appropriate to
assess Mr. Espinoza’s loss as one of a past loss of capacity equivalent to
about four months’ employment.  Reviewing his pay history with Gestaldo
concrete over the last year of his employment, I note considerable variation,
presumably depending upon available work and overtime.  Employing what I
consider to be an appropriate average, I value this loss at $25,000 before
deductions.  I will leave it to counsel to work out the appropriate net figure
based on the income loss being distributed over the tax years 2012-2015.

C.             
Loss of Income Earning Capacity

[121]     Once
again, the defendant submits that Mr. Espinoza has not proven any loss of
income earning capacity.  She asserts that if he is unable to secure work in
the future, that will be due to factors other than his alleged injuries, such
as his personality conflicts with co-workers, and insolence towards his
superiors.

[122]     The
plaintiff argues that the evidence supports a finding that Mr. Espinoza’s
income earning capacity has been reduced, at a minimum, by about one quarter. 
The proposition is that his history since the accident demonstrates that in
order to work successfully, he needs to take time off and rest for three months
a year.  Over the remainder of his working life, the plaintiff submits, this
amounts to a minimum loss of 4.5 years of employment, or $360,000.  The
plaintiff submits that a reasonable assessment would be in the range of
$500,000.

[123]     As with
the other heads of damage, the assessment of this part of the claim is
complicated by the inconsistencies in the plaintiff’s evidence.

[124]     In Parker
v Lemmon, 2012 BCSC 27 at para 44, Savage J, as he then was,
helpfully summarized the proper approach to claims for lost income earning
capacity as prescribed by the Court of Appeal in Perren v. Lalari, 2010
BCCA 140 at paras 25-32:

(1)        A
plaintiff must first prove there is a real and substantial possibility of a
future event leading to an income loss before the Court will embark on an
assessment of the loss;

(2)        A
future or hypothetical possibility will be taken into consideration as long as
it is a real and substantial possibility and not mere speculation;

(3)        A
plaintiff may be able to prove that there is a substantial possibility of a
future income loss despite having returned to his or her employment;

(4)        An
inability to perform an occupation that is not a realistic alternative
occupation is not proof of a future loss;

(5)        It is
not the loss of earnings but rather the loss of earning capacity for which
compensation must be made;

(6)        If the
plaintiff discharges the burden of proof, then there must be quantification of
that loss;

(7)        Two
available methods of quantifying the loss are (a) an earnings approach or (b) a
capital asset approach;

(8)        An
earnings approach will be more useful when the loss is more easily measurable;

(9)        The capital asset approach will
be more useful when the loss is not easily measurable.

[125]     Looking at
the first three of these factors, I find that Mr. Espinoza has proved a
real and substantial possibility that continuing chronic pain will cause him an
income loss in the future.  I base this principally upon the evidence of Dr. Vinnitsky,
the evidence of Mr. Espinoza’s daughters, and the evidence of Mr. Barrios. 
The evidence of Dr. le Nobel and of Dr. Gouws is of some help, but
limited in the weight I am prepared to give it.

[126]     It is
therefore appropriate to proceed to assess such loss.

[127]     As
indicated by the third factor, the fact that he has returned to his employment
in the past does not mean that there is not a substantial possibility of a loss
in the future.

[128]     The loss
is not one that is easily measurable, leading me to prefer the capital asset
approach.  There is no actuarial evidence before me, but taking into account Mr. Espinoza’s
work history, I am unable to accept that his capacity has been reduced to the
extent for which he contends.  I would assess this loss at $93,000, being the approximate
equivalent of 15 months of full employment income discounted to present value.

[129]     Turning to
some of the cases relied upon by the defendant, I note that in Fifi v
Robinson, 2012 BCSC 1378, which also involved a significant
credibility issue, the court was unable to find any compensable incapacity.  In
Stein v Kline, 2012 BCSC 573, the medical evidence indicated that
there would be no more than occasional flare ups of the plaintiff’s physical
condition, which is of a lesser order of future event than I find likely here. 
In Sampson v Aubin, 2012 BCSC 1320, the evidence did not indicate
that the physical limitations the plaintiff suffered actually interfered with
his work.  All of these are, I find, distinguishable.

[130]     Having
said that, the fact remains that Mr. Espinoza demonstrated an ability to
carry out his former employment to a considerable degree, and a tendency
towards exaggeration.  It is these features that restrain me from assessing
this loss at a significantly greater amount.  I consider that what I have
awarded will be enough to compensate him for time necessary to rest and
rehabilitate himself sufficiently.

D.             
Loss of Housekeeping Capacity

[131]     Mr. Espinoza
submits that $10,000 should be awarded to compensate him for his need for
assistance around the house when he is working, from his daughters, and then from
others after his daughters have moved out.  In the alternative, he submits that
an increase in his award for non-pecuniary damages is warranted.

[132]     Given the
state of the evidence, I find that no award for loss of capacity is justified,
beyond the extent already taken into account in my assessment of his
non-pecuniary damages.  As with so much else, the evidence concerning Mr. Espinoza’s
activities around the house was inconsistent, and did not support the claim he
makes.

E.             
Future Care Costs

[133]     The
plaintiff points to recommendations from the various experts, for ongoing
physiotherapy (Dr. Vinnitsky), a multidisciplinary rehabilitation program
(Dr. Gouws and Dr. le Nobel), psychological counselling (Dr. Gouws
and Dr. Salvian), and specialized physiotherapy (Dr. Salvian).

[134]     The
plaintiff has not, however, adduced any evidence whatsoever about the cost of
any of these programs should I find them necessary.

[135]     I am
unable to make any award without evidence.  The only evidence I have about cost
relates to physiotherapy, which Mr. Espinoza underwent in the past ($60
per session).  I accept that an ongoing requirement for physiotherapy and
active rehabilitation has been established (Dr. Vinnitsky and Dr. le
Nobel).  I am prepared to infer that the cost of an active rehabilitation
program would be the same as the cost of physiotherapy.  I allow $3,000 in this
regard.  I make no other award.

F.             
Special Damages

[136]     I accept
this claim as presented, in the amount of $876.

G.            
Mitigation

[137]     The
defendant submits that Mr. Espinoza failed to mitigate his losses by not
engaging in an exercise program as recommended by Dr. le Nobel, and by
failing to take all of the medications prescribed by Dr. Vinnitsky. 
“Specifically,” the defendant submits, “the medications mentioned by Dr. Vinnitsky
in the acute phase of injury may have helped Mr. Espinoza”.

[138]     To succeed
in a plea of mitigation, the defendant must establish two things: first, that
the plaintiff acted unreasonably in failing to follow a recommended course of
treatment; and second, that had the plaintiff acted reasonably, his damages
would have been reduced: Chiu v Chiu, 2002 BCCA 618 at para 57.

[139]     In my
view, the evidence in this case falls short on both points.  Mr. Espinoza
explained that he did not take all of the medication because of its effect on
his stomach, a known side effect, and undertook exercises at home as taught by
his physiotherapist that he thought were complying with the instructions he had
been given.  Given the somewhat disjointed nature of the recommendations given
by various experts who saw him only once or twice, I am not prepared to
conclude that he acted unreasonably.  Moreover, there is nothing that would
allow me to conclude on a balance of probabilities that, had he acted
differently, his damages would have been reduced.  Accordingly, I make no
reduction for an alleged failure to mitigate.

VI.           
SUMMARY

[140]    
In this rather perplexing case, I assess the plaintiff’s damages as
follows:

[141]     If
necessary, the parties may speak to costs.

“GRAUER, J.”