IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160304

Docket: M128140

Registry:
New Westminster

Between:

Nelson Saborio and
Carmen Lacayo

Plaintiffs

And

Gerald A. Guitard
and Marie C. Guitard

Defendants

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

Introduction

[1]            
This case concerns the plaintiff Carmen Lacayo’s claim that she suffered
debilitating injuries in a 2008 car accident, to which liability is admitted. She
seeks non-pecuniary damages of $200,000, an in trust claim for her husband of
$30,000, an in trust claim for her daughter of $1,000, $80,000 compensation for
her loss of housekeeping capacity, $200,000 to pay for the costs her future
care, and $20,000 for damage to her income earning capacity.

[2]            
The overarching issue in this case is the claimant’s credibility and
whether she has proven on the balance of probabilities that the accident caused
injuries to the extent described by her and her physicians. The impact of the
injuries caused in the accident on her ability to function to the level she
asserts is central to her claim.

Background

[3]            
The plaintiff is a 51 year old native of Nicaragua who immigrated to
Canada in 1986. She is married and is the mother of five children, ages 27, 24,
16, 15 and 11. She was educated in Nicaragua and completed secondary school
followed by three years of university.

[4]            
Before immigrating to Canada in 1986 the plaintiff worked in animal food
cultivation, as a part-time executive secretary and as a kindergarten teacher.
She learned no English while living in her home country and currently speaks
little English; she said she is able to read but cannot write in English.

[5]            
She married Nelson Saborio in 1982 and preceded him to Canada; he
arrived in 1987. Initially, the Lacayo family settled in Vernon, BC, where they
lived for approximately eight years before moving to Surrey, BC. Currently she
lives with Mr. Saborio in their two bedroom townhouse in Surrey. At the
time of the accident, they had owned their home for about eight years. Three of
the plaintiff’s children aged 16, 15 and 11 continue to live with her; her
eldest daughter resides in Pennsylvania and her eldest son is in the Armed
Services.

The Accident

[6]            
The plaintiff testified that she and her daughter were returning from
Chilliwack, travelling west on Highway 1 and apparently exiting onto 200^th
Street. She was in the front passenger seat of her husband’s 2004 sedan. She
could not recall what happened or the name of the street they were on at the
time of the collision. She said it was raining heavily and their car had
stopped at an intersection waiting for the lights to change. She said: “I only
saw a black thing coming towards us” and heard a “boom”. Later in her testimony
she said she had not seen the car.

[7]            
Curiously, she told her family doctor, Dr. Benitez the impact was a
T-bone collision. This report is against all of the evidence about the impact.

[8]            
The defendant said he was travelling southbound on 200^th
Street intending to enter Highway 1 eastbound. He was travelling between 50 and
60 km/hr and attempting to change into a lane of traffic to his left.
Notwithstanding that he made a shoulder check, he did not see the plaintiff’s
motor vehicle. He realized the presence of their vehicle when he heard a slight
scraping noise. He said the force of impact was minor. There was relatively
little damage to his motor vehicle.

[9]            
 The plaintiff had no cuts or bruises as a result of the impact, stating
only that her forehead was red. She said she remembers nothing after the
impact; she maintained at trial that she lost consciousness in the accident and
her next memory was being at the hospital, where she recalls being hot and shaking.
At her examination for discovery on October 2, 2012 (the “discovery”) she gave
an alternative narrative: she said she woke up in the ambulance before reaching
the hospital; at trial she disavowed this version and testified she made a
mistake at the discovery.

[10]        
Regardless, her testimony regarding having lost consciousness is against
the evidence of her daughter, the ambulance attendants and the hospital records
recording her responses to their questions, all of whom reported her as being
conscious. When confronted with the hospital records in particular, which
included answers that she was unemployed and had not lost consciousness. She
testified she could not recall being asked those questions and that it was
impossible she gave those answers. On those records her last name was recorded
as “Betanco”.

[11]        
With regard to this issue, I do not believe the plaintiff’s evidence
that she was rendered unconscious or that she informed staff that she had lost
consciousness at the time of the accident.

[12]        
In chief, the plaintiff testified that she had remained in hospital overnight
and was released the next day. She said she was released the next morning
because they were doing x-rays and she was crying and her back hurt. On
cross-examination she could not explain hospital records indicating that she
was admitted at 12:20 p.m. and discharged at 2:55 p.m. She also
testified that when she left the hospital it was dark; either the night or the
late afternoon. This of course contradicts her earlier evidence that she left
the hospital the following morning.

[13]        
I am satisfied that the plaintiff is incorrect in her assertion that she
remained in hospital until the day after the accident.

Pre-Motor Vehicle Accident Work History and Health Status

[14]        
The plaintiff testified that before the accident she was healthy and well
except for adult onset diabetes which was discovered when she was pregnant. Otherwise,
she testified, she had “no other health problems”.

[15]        
A review of her pre-accident health and work history suggests otherwise.

[16]        
The plaintiff’s first job in Canada, when she lived in Vernon, was
culling apples and cherries. Soon after she got a job plucking chickens for a
commercial poultry business. While performing her duties in June of 1992, she suffered
a work injury to her right hand. By 1994 this injury became disabling.

[17]        
She was diagnosed with a tumour in her arm in March of 1995. This condition
was treated with chemotherapy, and while currently asymptomatic, she is concerned
“it is still there”. After this treatment she was diagnosed with a permanent
disability and unable to work.

[18]        
The plaintiff was off work for two years due to her tumour. Shortly
after she began receiving homemaker assistance and disability payments from the
Government of British Columbia (“BC”). Later, she applied for and began
receiving Canada Pension Plan (“CPP”) disability pension benefits. She remains
on that disability pension to the present; she receives $1,195 per month,
including $700 which she said is attributable to her children’s entitlement.

[19]        
Despite her declaration of ongoing disability, she returned to work in
mid-1997. Her work history is reviewed below.

[20]        
In 1998 she was denied continuing social assistance benefits by the
Province. She appealed the termination of those benefits, and in October 2002,
BC re-confirmed her entitlement to disability benefits including homemaking and
financial assistance. This reinstatement was done without the knowledge that
she had returned to the workforce, where she now claims she continued earning
income until the date of the accident. However, the benefits paid by BC were
stopped in 2004 after a 2003 investigation in which BC discovered she had
fraudulently failed to declare support payments from her husband.

[21]        
I infer from those facts that the plaintiff was separated from her
husband sometime in 2003 or 2004.

[22]        
In April 2001, the plaintiff was awarded Workers’ Compensation Board
(“WCB”) benefits based on 2% of a total disability due to her work injury in
the chicken plant.

[23]        
The plaintiff testified about her work history prior to the accident.
This evidence was imprecise and confusing. In describing the work she did
before she was injured, the plaintiff testified she was employed at the Royal
Columbian Hospital in a casual/part time position assisting in cleaning and
meal preparation; it is not clear when she began or ended her employment at
that hospital. Afterwards she worked cleaning offices, commercial buildings and
residences in association with several cleaning businesses. She said she was doing
this work at the time of the accident.

[24]        
In addition, she explained she operated her own housekeeping/cleaning
business. She said her duties involved cleaning four houses, spending three
hours cleaning each house and doing so three times per month. She was paid $18
per hour, resulting in a monthly income of $648. She did not provide many
details about her cleaning business. She had no records and declined to
identify her clients although in re-examination identified the surname of one
person.

[25]        
The plaintiff also worked for the New Westminster Pentecostal Church
preparing meals. She would produce approximately 200 dishes four times per
month, which she sold to the church for $4 each. If this pattern of work
persisted throughout the year, she would have earned $3,200 per month, but she
provided neither confirmation of the amount she earned nor the duration of that
work.

[26]        
She also prepared wedding cakes and other celebratory cakes. She
testified she would prepare approximately five or six orders per month for
between $55 and $120 each. This effort would have yielded between $275 per
month and $720 per month.

[27]        
The plaintiff also worked as a painting decorator on a casual basis,
usually paid $475 per project. She did not describe the frequency of this work.

[28]        
Finally, the plaintiff was involved in a vacuum cleaner sales business.
She was employed for approximately four to five years by “Lou’s Company” and
was paid $500 per unit. She typically sold two vacuums per month.

[29]        
Although her evidence about her work history was not clear or complete,
it appeared to me that she may have earned, by her testimony, as much as $5,000
or $6,000 dollars per month before the accident.

[30]        
The plaintiff’s reported income for 2003 to 2013 are as follows:

[31]        
During these years the plaintiff did not report to the Canada Revenue Agency
(“CRA”) any income from employment or other sources notwithstanding her claim
that she worked throughout this time.

[32]        
Away from work, the plaintiff’s leisure activities included volunteering
at her child’s school day trips. She would exercise at the Newton gym, bicycle
and run. She did not drive. At home, she was able to clean her house including
vacuuming and all other necessary chores, though she had some help with the
laundry.

[33]        
Despite at least one separation, the plaintiff testified that her
relationship with her husband before the accident was sweet and normal.

[34]        
She denied having many of the chronic physical pain or disabilities she
now complains of, with the exception of her hand (which she says is now worse).
She likewise denied having any problems sleeping before the accident and said
she did not take any sleep medications – her medications were limited to those
used to treat her diabetes.

[35]        
She said that prior to the motor vehicle accident she had no psychological
or emotional problems and had seen a physiatrist once post-partum, because her
diabetes did not go away after the pregnancy. She said that in the year before
the accident she did not feel depressed or sad.

[36]        
She likewise denied she was “a worrier” or an “anxious” person before
the accident, as her daughter reported to the ambulance attendants.

[37]        
For reasons referred to later, I do not accept the plaintiff’s evidence.

Post-Accident Life

Injuries

[38]        
Since the accident, the plaintiff reports a wide range of serious
injuries. These injuries include:

a)    Continuous
headaches that have not lessened since the accident;

b)    Pain in her jaw
extending from her ear to her chin. She said she first noticed this jaw pain
one month after the collision, and that since then it has been constant, though
it wavers in severity;

c)     Neck pain
that has been “there all the time” since the accident, without change. She
described the pain as starting from her neck and shooting down her spine to her
lower back and right leg. She also described “noises” her neck has made since
the accident. Her symptoms worsen with activity or if she straightens her trunk
in bed. She has received injections which seem to have lessened the pain a bit,
but overall there is no improvement;

d)    She said there
is pain over her head which has not improved or changed since the accident;

e)    Problems with pain
in her shoulders;

f)      Pain
in her arms, but not in her elbows or hands;

g)    A feeling of
“pressure” in her upper back all the time and without change since the accident;

h)    “Horrible” pain
in her lower back that has seen no improvement and is only slightly lessened
with medications. This pain worsens if she tries to walk, to such an extent
that if she walks a distance more than the width of a room, she is “done”. She
had surgery to her lower back in 2012 to address these issues, but she says
things have worsened since this surgery; her intake of medicines and pain
reducing measures has only increased. She has also complained of bladder
control issues since the surgery;

i)       Pain
in her right leg. She claimed this pain started about three months after the
accident, when the leg became “really swollen”. Presently, she reports her
right leg as constantly numb, that numbness extending to her right foot. She
also feels a tingling in her knee. She also reported her legs and hips hurting
if she opens them.

[39]        
The plaintiff also claims that she has suffered serious psychological
and emotional consequences as a result of the accident.

[40]        
She said she has flashbacks to the accident and lives in terrible fear
of riding in cars. These fears started immediately after the accident. She
described having panic attacks if driving in a car with her husband or
children. She also has difficulty watching television depicting accidents. She
travels less now and to accommodate her fears she rides in taxis rather than
personal cars.

[41]        
She also described recurring hallucinations which started three months
after the accident. In these hallucinations she hears voices and sees cars coming
in the direction of her house.

[42]        
Since the accident, she feels depressed and has a poor appetite. She has
had suicidal thoughts and made a plan to end her life. She also reported that
her temper has been worse since the accident.

[43]        
The plaintiff said the effects of her accident have caused problems in
her marriage. Since the accident, she and her husband have had no intimate
relations and have started sleeping in separate beds. She has kicked him out
four times, at which times he has stayed away two to three days before
returning.

[44]        
Since the accident the relationship with her children has varied. As
described below, she maintains the children help out with chores in ways they
did not before the accident. She is short tempered with the children and on one
occasion they called the police because she kept yelling at them.

[45]        
Regarding sleep, the plaintiff reported that she has had problems
falling asleep since the accident. She has taken medication to help her sleep.
She cannot sleep through the night, and on waking requires additional pills to
help her fall back to sleep. These issues have become worse since her 2012
surgery, which she maintains necessitated her buying a new bed. She does not
have a regular sleep schedule and finds herself fatigued during the day.

Daily Routine and Activities

[46]        
The plaintiff claims her daily routine has been restricted since the
accident as a result of her injuries.

[47]        
Her typical day begins with her husband helping her down the stairs to
the main floor of their house. She is able to walk up and down the 12 stairs
connecting each level of her residence. From there, she often sits in and moves
with the assistance of an electric wheelchair she acquired eight months after
the accident. She said she can only stand five to ten minutes a day, and that her
spine hurts if she uses any other chair. Her need for this chair has restricted
her mobility – she can only travel with her children because they are capable
of loading her wheelchair into a car.

[48]        
To deal with her pain, she uses a back brace and applies ice packs.
Otherwise, she is on a number of medications. Some of these medications cause
her to shake and she has allergic reactions to Lyrica, an anticonvulsant. Other
medications have made her unable to see, and all upset her stomach.

[49]        
Her leisure activities have all been affected by her symptoms. Her
children have to brush her hair and help her dress; as a result she has cut her
hair short and no longer wears skirts or high-heeled shoes. Her husband must
also assist her with travel and in other personal care. She has stopped going
to parties and to church and avoids children’s activities. She has done some
travelling, taking a four day trip to attend her son’s promotion from the
military Academy in Montréal and a one-month vacation to Pennsylvania where her
daughter, Claudia, currently lives. She testified that she took her wheelchair
on each of these trips.

[50]        
Her physical activities are restricted. She has difficulty reaching over
her head and when stretching feels a pinching in her neck. Crouching hurts and
squatting is difficult but she is able to hold that position. She has
difficulty when kneeling and requires assistance to stand up. She said climbing
up and down stairs is awful; ascending the stairs is more difficult than
descending.

[51]        
She is unable to exercise due to her pain, but has lost weight, going
from 200 lbs at the time of the accident to 167 lbs at the time of
trial.

[52]        
She described difficulties she encounters when driving. When her husband
is driving she said “I throw myself at him and tell him to stop”. She does not
like watching television because there are too many accidents.

[53]        
Her children give her pleasure but she struggles with a bad temper and
is often unfair to them.

[54]        
Respecting house work, the plaintiff reported that she has difficulties
contributing. She reports being able to do her own laundry, wash dishes, and
can do some sweeping. She is able to cook when she takes morphine. Otherwise
the children and her husband do the vacuuming, most of the cooking, clean the
washrooms and are responsible for their own laundry.

[55]        
The family was previously assisted by a woman, Conchita,
who lived in the home before the accident. She moved out before the accident.

[56]        
For approximately one year after the accident the plaintiff employed a
woman who came four hours per day to look after her children and otherwise
assist in the home. She paid $425 per month for this assistance.

[57]        
Except for a brief time immediately after the accident, the plaintiff has
not worked since 2008.

[58]        
The defendant vigorously challenges the plaintiff’s claims concerning
her pain and incapacity. The issue of her current capacity to perform work or
domestic tasks was addressed, in part, through the introduction of surveillance
footage and social media postings.

[59]        
Ms. Lacayo admitted she is the person shown in the surveillance
footage taken in February, March and April of 2015. She is shown walking
independently in a mall parking lot and in front of a residential complex. She
is also seen carrying bags in her right hand and sweeping her front porch for
two to three minutes. These videos show her able to move her arm freely and to
walk and bend fluidly. In general, the observations of the plaintiff on the
videos are inconsistent with her evidence, appearance and demeanour at trial.

[60]        
The defendant also referred the plaintiff to several Facebook postings
which appear to show the plaintiff in somewhat happy and relaxed circumstances
after the accident. She testified that some of these images were pre-accident
images but several of the pictures appear to be post-accident. Nonetheless,
such “snapshots” should be addressed carefully and should not be overly relied
on in determining a party’s credibility or state of mind: see J.D. v.
Chandra, 2014 BCSC 466 at para. 108.

Analysis

Credibility

[61]        
The plaintiff’s problems in this case mirror those described by Finch J.
(as he then was) in Gagnier v. Canadian Forest Products Ltd, 1991 CanLII
143 (B.C.S.C). In that case the Court said:

As counsel for the defence so
bluntly, but so accurately put the matter, Mr. Gagnier has demonstrated
that he will lie when it is to his economic advantage to do so. He has done so
in many ways, to many people, for a long time. He has lied to his accountants,
to Revenue Canada, to the Unemployment Insurance Commission, and to his trustee
in bankruptcy. I have no confidence that anything he told me was reliable or
true. I feel bound to disregard Mr. Gagnier’s evidence altogether insofar
as it touches on his claim for damages.

[62]        
Much of the plaintiff’s evidence simply lacked credibility and
reliability and cast a shadow over all of her evidence. Her history of
defrauding BC, CPP and the CRA seriously undermined her evidence.

[63]        
Credibility issues in her evidence also affected the assessment of the
opinions given by many medical experts whose opinions tried to explain the
plaintiff’s current presentation in connection to the motor vehicle accident.
These issues are developed below.

[64]        
The plaintiff’s credibility and reliability issues include the
following:

a)             
The plaintiff exaggerated and overstated aspects of her evidence. Her
characterization of the effects of this accident were exaggerated and her pre-accident
health problems understated. As an example, she said that she saw a black
object coming towards her and after the collision thought she was dead. She
also told her family doctor, Dr. Benitez, the impact was a T-bone
collision. In fact, this accident was a mild to moderate impact collision
involving two cars coming together side by side while travelling in the same
direction. Nothing in the circumstances could reasonably have led the plaintiff
to think that she was in mortal danger. Contrasting her initial testimony, later
in her evidence, she acknowledged that she had not seen the defendant’s vehicle
before impact.

b)             
The plaintiff has a long history of fraudulent schemes to obtain money
from public bodies based on representations that she was totally disabled from
working commencing in 1994. In October 2005 she was convicted of defrauding BC
of $115,277 over a ten-year period relating to a disability pension she
received when she was able to work and working. She was given an 18-month
conditional sentence and ordered to pay restitution of $65,000 by June 25,
2006.

On March 17,
2007, BC obtained a default judgment against the plaintiff for $120,948 in
respect of benefits she had unlawfully received from them. On April 12, 2007,
the plaintiff made an assignment into bankruptcy and was discharged on March
11, 2009. The plaintiff also attempted a fraudulent transfer of her interest in
her family home in a scheme which saw the family purchase a new house and put
the majority interest in the names of her daughter and husband, providing her a
2% ownership interest; this transfer was subsequently reversed.

c)              
The plaintiff applied for CPP disability benefits in July 1995, stating that
she had been unable to work since November 1994 due to a right-hand injury
caused while working in a poultry plant and the subsequent detection of a
tumour in her arm. In making the application, the plaintiff agreed to notify
CPP of any change that might affect her eligibility for benefits including an
improvement in her medical condition and a return to full-time or part-time
work; she was entitled to keep a threshold level of income with the reporting of
those earnings to CPP In mid-1997, the plaintiff returned to work. In 1998, she
obtained further CPP pension benefits for her child Carmen.

In April 2001, the plaintiff
was given a partial disability award from WCB based on 2% of total disability
relating to an injury to her right hand.

In 2004, CPP had
informed the plaintiff that she no longer qualified for a disability pension.
They suggested that she was capable of some form of light work. In September
of that year, the plaintiff wrote to CPP advising that her medical condition
had not changed and she could not return to work. Her letter stated as follows:

I am writing to you because I do not like the decision that
is being made. My medical situation has not changed for the better. I have to
intake many pills:

 Tylenol #3 every four hours

 Celebrex 200 MG every four hours

 Naproxen 375 MG twice daily

 Cyclobenzaprine 10 mg one tablet at bedtime

not only that but I am also diabetic(Type #2) and my blood
pressure drops suddenly if I don’t have enough rest and take care of myself.
This being the case I cannot work especially with my haemangioma in my right
wrist and am limited in my capabilities. I cannot go back to work, and I need
my pension to survive, for myself and my children. Please don’t take this away
from me.

Dr. Benitez
and Dr. Tesler-Mabe provided opinions that she was unable to work due to
her major depression with psychotic features and chronic pain from her right
wrist. She wrote this statement and elicited these diagnoses notwithstanding
the fact that she had at that time been working for seven years.

In receiving CPP
benefits, the plaintiff was also required to report to CPP any income
above a threshold amount in a calendar year. The threshold for reporting income
has increased over the years, but was $7,200 in 2014. She was aware of these
requirements, stating at trial “they [CPP] let you earn a little bit”. The
plaintiff’s testimony placed her earnings well above these reporting thresholds.
In defending her non-reporting the plaintiff said that all of the income she
was earning before the accident was paid to her in cash without deductions for
tax, employment insurance and CPP contributions. She challenged the need to
declare this income, rhetorically asking “how can I declare income when there
are no deductions made?” She would not directly answer the question when it was
put to her that she failed to report her earned income to avoid losing her CPP
disability payments.

Moreover, the plaintiff
neither reported her income to the CRA from 1994-2014 nor informed CPP or BC of
her health improvements or return to work, or the income she earned from it. In
fact, it is apparent from the records that she informed BC that she had not
been working before her statement in 2004.

d)             
The plaintiff was interviewed by Home Health Rehabilitation, a community
therapist company, to provide recommendations for the plaintiff’s
rehabilitation plan. Notwithstanding the recommendation of physiotherapy intervention,
the plaintiff lied to the physiotherapist, Ms. Rodriguez, telling her she
was going to be away on holidays for three months to explain why she would not
to be able to take the recommended treatment.

e)             
If I could accept the plaintiff’s evidence concerning her multiple income
sources in the years prior to the accident, she would have earned significant
income in those years. However, she failed to report any income, other than her
government-funded benefits, from 2003- 2008. Thus, the plaintiff avoided her
reporting obligations and likely failed to pay some income tax, employment
insurance obligations and Canada pension remittances.

[65]        
When cross-examined on these points, she repeatedly deflected the
questions with related but unresponsive answers. On the issue around her
fraudulent conduct with CPP I found the plaintiff evasive and untruthful. In my
view, the plaintiff clearly was aware of her obligation to report changes in her
employment status, health and income. She continued fraudulently receiving
disability benefits even after her criminal conviction. In spite of the fact
that she has advanced claims in this case for future income loss she continued
to take these benefits before and after the date of the accident.

[66]        
Moreover, her description to the court of her
pre-accident working history was confusing, inconsistent, unreliable and
untrustworthy. In addition to the lack of income tax reporting, the
plaintiff did not produce any records at trial concerning her work, income or
expenses. At one point, the plaintiff was asked to identify some of her house
cleaning clients. She refused to identify these people before and during the
trial with the exception of offering the surnames of three women who employed
her. I conclude that the plaintiff was well aware that waiting to identify
these people so late in the process meant her evidence could not be tested or investigated.

[67]        
As she was cross examined her attitude was somewhat
defiant and indignant; she accused counsel of “harassing her about the past”.
She said she was “here for my children” and, concerning her fraud conviction,
insisted “I paid the government back”.

[68]        
Despite these shortcomings in her testimony, she declared she was
entitled to the full of the amount claimed in this action. When specifically
asked if she felt entitled to both a wage loss claim against the defendant and the
CPP disability benefits she had received since 1995 she said “I don’t know how
to answer that question”. When challenged further on her failure to declare her
ability to return to work and report her income, the plaintiff responded “I am
not a thief; I pay my taxes as any human being”. When challenged on the truth
of that statement she replied, speaking in English, “I need to respect myself
as a human being”. She appeared to feel justified in her position because, as
she stated, “[m]y pain is my pain. Someone has to pay for my back”. The
impression I received throughout her testimony and demeanor is that the
plaintiff has no grasp of the truth and she is prepared to do or say what is
required to obtain compensation.

[69]        
The plaintiff argued that although the court can consider her criminal
conviction for welfare fraud, the fact that she provided restitution is a
factor to be considered. She recognizes that her failure to declare her work
income or changes in health to CPP are problematic. Evidence of remorse or
insight may limit the prejudicial effect of prior convictions: Fast Trac
Bobcat & Excavating Service v. Riverfront Corporate Centre Ltd., 2009
BCSC 268. In this case, the Court said:

[23]     
     In some cases, a conviction that is 20 years old should be
given limited weight.  This may be the case if the person, by his or her
conduct in the years following the conviction, has demonstrated good, honest
behaviour and shown remorse and insight into the harm caused by the conduct in
issue.

[70]        
This argument may have currency in a case with different facts. In this
case, the plaintiff’s conviction for fraud and repayment of those monies under
compulsion happened only two to three years before the accident. More
importantly, the plaintiff continued to defraud CPP notwithstanding her recent
conviction for defrauding BC. Rather than showing remorse or insight, the
plaintiff revealed an ongoing appetite to obtain whatever benefit was offered
in spite of the fact she said her health improved and she was earning
significant income.

Pre-Accident Condition

[71]        
Under cross-examination the plaintiff said:

(a)      She had no sleep
problems before the accident;

(b)      Before the accident
she took no medications for sleep problems;

(c)      Before the accident
she was healthy except for her diabetes.

[72]        
Counsel referred the plaintiff to her PharmaCare records that record medications
purchased by her before the accident. These records confirm
that on November 24, 2008, she received prescriptions of Metformin (diabetes),
Bisoprolol (high blood pressure), Diovan (high blood pressure), and Lipitor (cholesterol),
among other drugs. She received a similar list of prescription medications
three times in November 2008.

[73]        
She acknowledged receiving additional prescription medications including:

·      
Restoril, insomnia medication, prescribed on September 29, 2008,
and again on November 24, 2008;

·      
Zytran Excel, insomnia medication, prescribed on October 28,
2008;

·      
Ratio-Emetic, which was prescribed on September 30, 2008. She did
not know what this medication was but was reminded by counsel that the
medication is more commonly known as Tylenol 3 with Codeine. She received a
prescription of 100 pills two months before the accident. She said she told her
doctor that her tumour hurt a lot and he prescribed Tylenol 3.

[74]        
This medical evidence is in stark contrast to the plaintiff’s testimony
that except for her diabetes she was healthy, had no sleep problems and had no
pain in her arm. When asked why she had said earlier she was only taking
medications for diabetes, she replied “one can’t remember everything”.

[75]        
 Counsel asked why the plaintiff had denied taking sleep medications
before the accident. She answered “yes, but not like now”. She responded at
other times, in dismissing the line of inquiry, that she could not remember
what caused her issues or, more generally, that “one cannot remember
everything, these documents refresh my memory”. These answers were not entirely
responsive to the questions, but clearly indicated that she was untruthful in
her earlier testimony that she had no sleep problems before the accident.

[76]        
Regarding her pre-accident physiological problems or depression issues,
the plaintiff was prescribed:

·      
Effexor, an anti-depressant, prescribed in May of 2004;

·      
Celexa and Remeron, both anti-depressants, prescribed on October
6, 2008;

·      
Temazepam, Mirtazapine, Citalopram, and Risperidone, all
anti-depressants prescribed on November 2008.

·      
Trazodone, an anti-depressant which she said aided her in falling
asleep and which was prescribed in October, November and December. Trazodone
was prescribed four days before the accident;

[77]        
The plaintiff confirmed that before the accident she had taken the
advice of a psychiatrist for depression. She explained she was sad because her
eldest daughter had moved away from her home (though this is inconsistent with
her and her daughter’s evidence that her daughter moved after the accident) and
she was concerned about the scholastic performance of three of her children
continuing to live with her – apparently she was worried the children were not
performing well at school. She otherwise sought to explain away her earlier
testimony that she was not depressed or being treated for depression in a
similar manner to that relating to her sleep issues.

[78]        
The plaintiff also admitted that she experienced headaches before the
accidents, but similarly argued that those headaches were not the same as the
ones she has now. She was likewise impeached on her statement that her previous
headaches were not limited to when she had a cold; when her attention was
brought to the transcript of such testimony at her discovery, she denied she
had made the statement.

[79]        
To explain this contradiction, the plaintiff said that she could not
recall the answer she had given at the discovery and that there are many things
she does not remember. She eventually agreed that she did have headaches in the
month before the accident, but they were small, acute pain headaches. She was
asked about the frequency of those headaches and declined to answer fully; she
said they would go away and come back.

[80]        
She confirmed that there was an occasion in early November 2008, when
she had such severe headaches that she went to St. Paul’s Hospital for a CT
scan. She could not remember when this visit was, but the clinical records
indicated it was 27 days before the accident. The records described her
symptoms as unrelenting headaches lasting three weeks.

[81]        
In reviewing the plaintiff’s more distant physical history, she was asked
about comments in Dr. Benitez’s clinical records:

(a)      2003:
In 2003 there was a September entry that the plaintiff had slipped and injured
her back. At this appointment described suffering crying spells, difficulties
sleeping, and a reduced memory and inability to concentrate;

(b)      2004:
In 2004 there were eight entries referencing stress and depression. At an
appointment on March 29 she described experiencing visual and auditory
hallucinations and was suffering from stress and a depressed mood. She also
described, in June, the revelation of her welfare fraud and complained it was
causing her considerable stress and anxiety, reporting that she was
experiencing a loss of sleep, crying spells and depression. There were six
entries concerning pain in her right wrist, describing it variously as painful,
swollen, numb, and tingling. She complained of having a sore neck on a number
of occasions, once going to a chiropractor. She also complained of a pain in
her low back between August and November;

(c)      2005:
In March of 2005 there is an indication that the plaintiff was in an accident
and dragged by a taxi. She apparently landed on her shoulder/hip and legs. At
trial, she denied this event happened or that she reported it happening to Dr. Benitez.
Also in March, she complained of suffering stress, headaches and fatigue and
was contemplating surgery be performed in April by “Dr. Dole”. She could
not recall Dr. Dole. In July, the plaintiff reported she began
experiencing groin pain. The doctor recorded right hip pain. She said she had a
“ball” in her left hip. She said it was not her hip but her neck that was a
concern. This groin pain was recorded again in November, where she again
reported feeling stressed and anxious;

(d)      2006:
In January of 2006 she described her family situation as serious and said a
divorce was imminent. She reported feeling depressed and strained. In April her
legal difficulties over the welfare fraud began. She was facing the payment of
$65,000 due to the fraud. She was under stress and was seen by a court-appointed
psychologist. Reports of stress related to the court process and her cancer were
recorded again in May, August, and December, at the last of which she again
reported difficulties sleeping and crying spells. In May, she also complained
of a back pain she had been suffering under for at least two weeks;

(e)      2007:
In January she received an injection for her right shoulder. She relates this
injection to the pain and discomfort related to her cancer. She said that she
received one or two shoulder injections, and that one of these was just before
the accident. Complaints of her shoulder re-occurred in February, April, May,
and June. Through this time she also complained of pain in her right hand,
rotator cuff, in her temporomandibular joint (which she believed was just “ear
pain”), and rotator cuff tendinitis. In February she had fallen and reported
injuring her lower back. She described falling again in December of 2007, where
she reported suffering lower back pain in the lumbosacral region. Finally, through
the year there were also two entries regarding jaw pain, two entries regarding
frequent headaches, and two entries related to stress and depression;

(f)       2008:
In February reports of pain in her right shoulder and arm continued. Arm
complaints were repeated in February and May. She received injections for these
issues in August but complaints continued in September and October, at which
time she requested analgesics. She complained of right groin pain in August and
September and was prescribed x-rays. Finally, she also complained of stress,
reduced energy and concentration, attention and memory in July, and reiterated
these complaints in September, at which time she was prescribed the medications
reviewed above.

[82]        
Throughout cross-examination, the defendant pointed
to the many inconsistencies in the plaintiff’s evidence and in the information
she communicated to the experts concerning her pre-accident condition. Suffice
it to say, it is difficult to reconcile the disparity between the plaintiff’s
report of her pre- and post-accident condition. The effect of these discrepancies
on the proof of her damages is addressed below.

Lay Witnesses

[83]        
The plaintiff’s husband Nelson Saborio testified.
He was a passenger in the car at the time of the accident and because of
receiving some ophthalmological drops his eyes were closed. He felt the impact
of the collision but did not see the other car. He said his wife screamed and
cried but he heard nothing else.

[84]        
He said he was not aware she received social
assistance benefits from 1994 to 2004 although they were living in the same
house at the time. He did not know about her WCB pension or her receipt of CPP
benefits.

[85]        
He did not know about the plaintiff’s use of
antidepressant medications, sleep problems and other physical ailments extent at
the time of the accident.

[86]        
Mr. Saborio generally confirmed some aspects
of the testimony of the plaintiff. In particular, he said after the accident
she was limited in her activities (discussing the new difficulties she had with
cooking and walking) and that she seemed to be in additional pain. He said that
the changes in her activity seem to be accompanied by increased expressions of
pain.

[87]        
He does not see any significant changes in her
mental functioning.

[88]        
He confirmed that before the accident their relationship
was happy, though not always harmonious (admitting he knew she discussed
divorcing him), but since the accident they have argued strongly. He does not
enjoy the time he spends with the plaintiff. He echoed of the plaintiff’s
comment that their intimate life has ended.

[89]        
The plaintiff does not have a driver’s license. For
a few months after the accident Mr. Saborio was unemployed and was able to
drive her to appointments. After he obtained his new job, he said he has taken
time off of work to drive the plaintiff to medical appointments. He has not
kept an accurate record of the time off but was able to make up time missed. He
finds her difficult to drive with because she often screams at him.

[90]        
He added that since the accident he believes the
plaintiff is more aggressive and argumentative and her behaviour towards the
children has changed. She often becomes angry with them.

[91]        
However, Mr. Saborio’s testimony diverged from
the plaintiff’s in some respects. He agreed that the plaintiff’s right hand and
wrist caused her difficulties, but said she had difficulties cooking, cleaning the
house and combing her hair before the accident. He said the plaintiff could
cook but not every day. The balance of the cooking and the cleaning was done
mostly by the children and himself.

[92]        
He did not know that the plaintiff was working as a
house cleaner at the time of the accident nor what income she might have
received. He was aware that the plaintiff had sold some vacuum cleaners.

[93]        
He denied that there was a woman named Conchita living
in their basement at the time of the accident. He said the plaintiff told him
Conchita helped with the housework and cooking and with the children sometime
before the accident.

[94]        
Further, he denied the plaintiff had any paid help
after the accident.

[95]        
The plaintiff’s daughter Claudia Gumina testified. Ms. Gumina
was driving the car in which the plaintiff was a passenger at the time of
impact. She made some observations of her mother complaining of pain after the
accident.

[96]        
She said that before the accident everyone around
the house did chores but the plaintiff did the majority of housework including
cooking, laundry and mopping floors. She said her father did the yard work.

[97]        
Regarding her mother’s post-accident condition, she
said that her mother cannot move the same way she did before the accident. She
moves slowly and is unable to reach things and bend down. Her observations have
been limited, however, as a few months following the collision Ms. Gumina
moved to Thunder Bay and has returned only for short visits since.

[98]        
After her mother’s surgery Ms. Gumina visited
her and stayed for approximately two weeks. She helped her with bathing,
haircare and cooking. She worked approximately three hours per day. The
plaintiff also visited Ms. Gumina in the United States in August 2013,
reporting she came with her wheelchair.

[99]        
She described her mother as becoming a little sad
when she moved to the state of Pennsylvania in 2011. She was not familiar with
the plaintiff’s psychiatric treatments, though she observed that the plaintiff
was distressed when diagnosed with diabetes and observed her as being sad and
depressed and seeming to take more medications after the accident.

[100]     She keeps in touch with the plaintiff via Facebook and identified a
number of photographs recorded since the accident. These photos were of little
assistance but did reflect the plaintiff in happier circumstances than she
appeared at the trial.

[101]     The plaintiff’s son Jeremiah testified. He described his mother’s
activity in the home before the accident and changes he has observed since the
accident. He said he did not know that the plaintiff had any health problems
prior to the accident. He confirmed that she is now mentally and physically
limited and seems to have a shorter walking stamina. He also finds his mother
is more paranoid when driving with him in a car.

[102]     Garth Geddes, who ran a family business selling vacuum cleaners, also
testified. The plaintiff worked for him in this business for about one year
around 2005. He said that she sold approximately six vacuums and earned around
$2,500. She also attended company sales meetings. Before the accident he felt
she seemed lively and appeared to have good energy and did not remember her
exhibiting any physical disabilities.

Medical Opinions

Physical Evidence

 Dr. Borhorquez

[103]     Dr. Borhorquez is a physiatrist who was retained to provide an
independent medical opinion concerning the plaintiff’s health. He met with her
and performed assessments on August 18, 2011, January 23, 2014, and March 13,
2014.

[104]     In his first report, dated January 4, 2012, Dr. Borhorquez gave
opinions about the diagnosis of the plaintiff’s injuries, causation of those injuries
and her residual disability and limitations. He observed that the plaintiff
demonstrated excessive pain behaviours during his examination.

[105]     He reviewed the plaintiff’s background health circumstances with her;
she reported having Type 2 diabetes and hypertension and denied any previous
neck or low back pain. He was not informed of her long-running complaints
regarding several areas or that she received recent left shoulder injections.
He did not know that she had received a WCB pension, social assistance from BC,
or a CPP disability pension for an ongoing disability associated with her right
hand and arm and mental health problems.

[106]     He said that it was difficult to assess how much of the plaintiff’s
pain was due to her degenerative changes and how much was due to muscle pain. His
assessment was that her excessive pain behaviours were interfering with her
recovery. He found she had poor psychological coping mechanisms and was
suffering from chronic pain. This pain was contributed to by her lack of
physical activity, which has resulted in her becoming deconditioned.

[107]     He did not find any evidence of an S1 nerve root injury, weakness in
her ankles, or sensory loss in her S1 dermatome.

[108]     Regarding her psychiatric conditions, Dr. Borhorquez believed she
had developed a major depressive disorder since the accident because of her
poor ability to cope with symptoms.

[109]     Dr. Borhorquez believed that her symptoms are related to the motor
vehicle accident. He came to this conclusion recognizing she had episodes of
back pain that were self-limiting before the accident.

[110]     Regarding the treatment of her physical injuries, he noted that trigger
point therapy had been successful, albeit to improve her function rather than
eliminate her pain. Those injections can be performed every two to three months
and recommended they be done for symptom relief. He also believed that a
stretching and strengthening program could help her resolve her muscle pain.
Core strengthening would help her mechanical neck and back pain and in the
result he recommends she attend a gym and the assistance of a kinesiologist for
five sessions.

[111]     He referred the plaintiff to a pain clinic at the Jim Pattison Outpatient
Care Centre in Surrey. This multidisciplinary program would likely have focused
on therapies to improve her function. He further recommended a tapering off of
the opioid medications she was receiving. No information from the outpatient
clinic was put into evidence.

[112]     He believes she has become deconditioned because of a lack of physical
activity that relates to her neck, low back and lower extremity pain. He
concluded that she would not be able to return to work as a housekeeper or in
positions demanding use of her neck, low back and right leg, and her employment
options are thus limited. He infers that her best chance of returning to the
workforce is retraining in a less physically demanding occupation but expects
she will need flexibility in the workplace.

[113]     To address both her psychiatric and pain issues, he recommended
continuing psychiatric help and cognitive behavioural therapy, suggesting five
of such sessions would be reasonable.

Dr. Benitez

[114]     Dr. Benitez prepared two medical reports tendered by the plaintiff
at trial. His first report is dated February 12, 2011, and the second January
9, 2015. A third report prepared by the doctor was introduced during
cross-examination.

[115]     In his 2011 report, Dr. Benitez diagnosed the plaintiff with
whiplash, thoracic and lumbar strain, post-traumatic stress disorder, and a
right arm/forearm contusion.

[116]     He was concerned about the unusual exacerbation and peak of symptoms
and muscle spasticity affecting her neck muscles and trapezius muscles. She also
had an exacerbation of her right shoulder and right hand pain and was also
complaining of excruciating (10 out of 10) right-sided low back pain.

[117]     She had two physiotherapy treatments. He insisted that she do
strengthening exercises, stretch and apply heat to treat symptoms and encouraged
her to lose weight. He recommended non-impact exercises such as bicycling and
swimming. She did not follow that advice.

[118]     Nevertheless, by January 2011 her cervical spine was between 60 and 70%
improved, although she complained of ongoing severe neck and upper back pain

[119]     Ongoing bilateral back pain became the most significant symptom
aggravating her pain to an intensity level of 10 out of 10. She received spinal
injections to the right lumbosacral region but the resulting improvement was
brief. She had also been prescribed Tramadol or Acetram for flare-ups of her
right arm, right shoulder and right elbow pain. She also had a vascular
malformation of the right arm which required medications.

[120]     He recorded that she had flashbacks relating to her accident and some
auditory hallucinations.

[121]     He suggested she use a power wheelchair for occasional use only when
severe pain interfered with her mobility. He also had recommended she obtain an
orthopedic bed to assist in restorative sleep.

[122]     Beyond these treatments and recommendations, he referred the plaintiff
to Dr. W. Gittens, a neurosurgeon to address her low back complaints.
Dr. Benitez followed the plaintiff’s progress post-surgery with Dr. Gittens.
He also monitored of the plaintiff’s progress with Dr. Mallavarapu.

[123]     In forming his diagnoses and reviewing these treatments, Dr. Benitez’s
only mention of the plaintiff’s medical history was “of hypertension and
diabetes mellitus type II”; there was a note relating to her medical history of
depression, beside which he opined she “was at the moment of the MVA frail and
a much higher risk to develop posttraumatic stress disorder and depression than
the average population”.

[124]     His report did not review the details of her medical history concerning
depression, shoulder pain, arm pain, back pain or headaches. As addressed in
his cross-examination and reviewed above, his pre-accident notes were replete
with references to these observations.

[125]     The plaintiff also relied on Dr. Benitez’s January 9, 2015 report.
However, the defendant argues that this report should not be accorded any
weight because Dr. Benitez violated his duty not to be an advocate for the
plaintiff. The defendant contends that Dr. Benitez failed to disclose the
medications the plaintiff was taking at the time of the accident and the
multiple injections into her right shoulder and elbow that had been delivered
in the two years before the accident. He made no comment on whether her ongoing
pain control regimen was altered by the accident.

[126]    
The defendant also points to a report Dr. Benitez
prepared dated December 21, 2014, an early draft of his January 9, 2015 report which
was not served, as a demonstration of this bias. Dr. Benitez was cross
examined on his draft report and a number of inappropriate comments were
identified.

[127]    
First, in the December report, Dr. Benitez
states:

Patient feeling
very frustrated as ICBC would recommend one in a half [sic] hour per
week of assistance which to me is ridiculous

He formed this view erroneously; the
recommendation to ICBC was that the plaintiff receives four to five hours of
homemaking per week.

[128]    
He also recorded in his report:

The patient”
was devastated to learn that Dr. Gittens has written a very controversy [sic]
a letter indicating that her herniated disc was somewhat coincidental and not
related to her previous MVA. I commented on September 25, 2012, that I strongly
disagree”

[129]     The defendant argued that there was nothing controversial in Dr. Gittens’
opinion to the plaintiff’s lawyer.

[130]    
Also, in his report he said that the three
neurosurgeons and one orthopedic surgeon based opinions on “inaccurate, false
and incorrect information”, stating:

I am convinced that the opinion
of these three physicians is inadmissible and lacking of [sic]
professional credibility.

[131]     Dr. Benitez commented on Dr. Paquette’s report:

In my opinion,
there is a clear attempt to overstretch information, undermine symptoms and to
confuse facts by specialists paid by ICBC

[132]     Dr. Benitez also attacked Dr. Semrau by alleging he was
biased towards ICBC for financial reasons and said he did not believe Dr. Semrau’s
opinion was objective, credible, impartial or admissible in court. He described
Dr. Semrau as “irrational, insensitive and preposterous”. He asserted Dr. Semrau’s
opinions were “absurd and nonsense”.

[133]     The defendant urged that Dr. Benitez’ reports should be given
limited or no weight because he performed his duty more in the manner of an
advocate than a person assisting the court. As a result, the defendant invited
the Court to deny the plaintiff’s costs in relation to preparation of his
opinion and testimony at trial as a rebuke of his failure to abide by his duties
to be objective and not act as an advocate for either party.

Dr. Mallavarapu

[134]     Dr. Mallavarapu began treating the plaintiff in May 2011 at the
request of her family doctor for depression, pain, anxiety and insomnia which “got
worse following a motor vehicle collision on November 28, 2008.”

[135]     He continued to treat her on an ongoing basis and authored reports
dated December 19, 2011; March 13, 2012; March 22, 2012; and February 13, 2014.

[136]      In preparing his initial opinion, he relied on the plaintiff’s
subjective reporting of symptoms. She did not provide him with and he did not
mention her pre-existing symptoms of depression extent for two years before the
accident.

[137]     as such, in his December 19, 2011 report he incompletely described the
plaintiff’s pre-accident medical history. He said in 2004 she was treated for
depression, anxiety, poor sleep and crying. He then jumped to 2011 to deal with
her post-accident history. In terms of past medical history he said she
suffered from Type 2 diabetes.

[138]     He then concluded the accident was responsible for her most significant
physical symptoms including headaches, neck, upper and lower back pain as well
as pain radiating into her right leg. He said she developed chronic pain
disorder due to psychological factors including anxiety and depression.

[139]     Dr. Mallavarapu further determined the plaintiff was emotionally
traumatized in the collision, causing her to develop post-traumatic stress
disorder and that she continues to experience the symptoms of that condition. He
said the essential feature of this disorder is that the focus of her clinical
presentation was pain that caused distress or impairment in social,
occupational or other important functioning. In this way, the pain is not
intentionally produced or feigned.

[140]     Further symptoms attributed to the accident include fear of getting
into another accident, anxiety and fear of travelling, avoiding travel,
experiencing visual and auditory flashbacks of the accident and sleep
disturbance associated with nightmares. He said that the plaintiff had
depression before the accident which was exacerbated by the collision. She
experiences sad mood, increased emotional liability, severe anxiety, poor
concentration, decreased energy and motivation, reduced ability to experience
joy in life, decreased libido, persistent sleep problems and irritability.

[141]     He said that most of her ongoing sleep problems are related to pain but
acknowledged that he had not analyzed the plaintiff’s pre-accident sleep issues
before preparing his report.

[142]     He noted that even though the plaintiff suffered from depression before
the motor vehicle accident on November 28, 2008, she continued to work. Earlier
in his report he said that she reported working as a housekeeper at Royal
Columbian Hospital after coming to Canada but that following the collision she
could not go back to that work due to her ongoing symptoms.

[143]     He confirmed that the claimant had informed him that she had lost
consciousness at the time of the accident but that her report was inconsistent
with the hospital records and ambulance crew report.

[144]     The matter of the plaintiff’s self-reporting symptoms is addressed above.
Further, before writing his opinion, Dr. Mallavarapu had not reviewed the
pre-accident PharmaCare records or Dr. Tesler-Mabe’s 2004 report to CPP
indicating the plaintiff had a significant level of disability. He only noted that
Dr. Tesler-Mabe had seen the plaintiff in 1991 and she suffered from post-partum
depression in 2005. He did not have the hospital records from 2006 relating to
her previous suicidal ideation and, although he was aware of her previous neck
and back pain, did not mention them in this report as it was his impression these
had not become acute until after the accident.

[145]     Although Dr. Mallavarapu was in possession of Dr. Benitez’s clinical
records from 2004 to 2008, he said he skipped a review of those records in
preparing his report and reviewed only the notes from December 30, 2008, to
November 5, 2011. He was thus not apprised of the details concerning the
plaintiff’s medical and psychiatric condition during the four years immediately
prior to the accident.

[146]     Mr. Mallavarapu characterized the plaintiff’s psychological
condition as depression with psychotic symptoms. In doing so, the plaintiff did
not inform Dr. Mallavarapu regarding the antidepressants she was taking
before the car accident or of Dr. Tesler-Mabe’s diagnosis of
schizoaffective disorder. He was likewise not aware she continued to claim CPP
disability benefits during the previous ten years in part on the basis of a
continuing psychological disorder or of her conviction for defrauding BC.

[147]     Dr. Mallavarapu nevertheless rejected the possibility that the
plaintiff had a continuation of her pre-existing major depressive disorder.

[148]     It was apparent from the evidence that the plaintiff’s fraud conviction
and subsequent claims for reimbursement of $65,000 were emotionally stressful
times for the plaintiff. In addition, given the fact she continued to receive
benefits from CPP and reported no earned income to the CRA, she would likely
have been stressed at the prospect of further criminal or administrative charges
and penalties. Dr. Mallavarapu was not aware of those details until he
reviewed Dr. Semrau’s report and commented in his February 13, 2014
report.

[149]     Dr.  Mallavarapu concluded that the plaintiff would need to
continue medications until March 2014, and in the absence of full remission and
functional recovery he considered her condition to be at a plateau. He opined
she will likely continue to need medications for the management of her
depression and chronic pain disorder.

[150]     The defendant contends that the plaintiff’s failure to accurately
inform Dr. Mallavarapu concerning her pre-accident psychiatric history and
employment, the absence of Dr. Tesler-Mabe’s records, and his lack of
awareness about her suicidal ideation severely undermined his report.

Dr. Semrau

[151]     Dr. Stanley Semrau assessed the plaintiff on behalf of the
defendant. He conducted a psychiatric interview punctuated by significant
concerns regarding the objectivity and reliability of the information he
received from the plaintiff. He had limited confidence in the opinion contained
in his report because of difficulties in the information he obtained (or was
denied) at the time.

[152]     He said that it is important to be able to rely on the information
communicated from patients. He takes information from patients and reviews it
in contrast with documents and independent records that may be produced in
order to obtain confidence in the credibility of the patients reporting.

[153]     His opinion was divided into her pre-accident history, accident related
events, post-accident history, post-accident treatment and prognosis.

[154]     Dr. Semrau’s conclusions and reservations concerning the
plaintiff’s diagnosis include the following:

a.     Her pre-accident history included many difficulties including forced
immigration, chronic marital problems, serious stresses with her children, poor
English language skills, limited employment skills and history, lengthy
employment disability, multiple serious physical health problems, multiple
chronic and serious mental health problems, criminal behaviour and related
financial stresses;

b.     The accident may have caused travel anxiety and avoidance symptoms and
some partial post-traumatic stress symptoms;

c.     The plaintiff’s pre-accident depression and anxiety may have worsened
after the accident due to the results of the accident and many other factors;

d.     Psychological factors including a pronounced disabled/helpless sick
role tendencies and secondary gain mechanisms have likely been aggravating her
physical symptoms and functional complaints. There may be some intentional
malingering of symptoms;

e.     The plaintiff’s mental health treatment has been somewhat appropriate
but without significant resulting gains;

f.      The plaintiff’s future mental health treatment requires radical
changes. The status quo needs to be challenged with expectations of
better functional capacity;

g.     The plaintiff’s mental health prognosis is guarded but there is a
decent prospect of improvement with changes to treatment; if that is not
successful further improvement is unlikely;

h.     The plaintiff’s mental health symptoms arising from the accident are
not likely to interfere with her future work or educational capacities.

Pre-Accident History

[155]     Dr. Semrau reviewed a lengthy list of events in the plaintiff’s
life which illustrate a long and troubled personal history.

[156]      She denied she had ever experienced any health-related employment
disability. In spite of the fact that she was convicted of fraud concerning
disability benefits she received from the Province she maintained, in Dr. Semrau’s
words, “she could not recall having experienced any such problems, so no
further detail could be obtained on this aspect of her history during the
interview”.

[157]     She told Dr. Semrau that her only pre-accident difficulty had been
diabetes and she was sure that she had never experienced any other significant
physical health problems before the accident. This evidence was repeated in her
trial testimony in chief. When the contrary records were brought to her
attention by Dr. Semrau she retorted he “should just look at the records
then”. The records disclose a plethora of significant health challenges
experienced by the plaintiff until shortly before the accident.

[158]     Regarding her mental health, the plaintiff told Dr. Semrau that
she had been happy all the time and had never experienced any sort of mental
health symptoms, assessment or treatment. When questioned on this point she
said “maybe I saw somebody a few times – not sure – can’t recall anything
more”. Dr. Semrau observed that she had been diagnosed with a relatively
severe form of depression in 2004, experienced psychotic symptoms, and was at
one point diagnosed with schizoaffective disorder. She was prescribed some
eight medications to address her psychiatric condition and Dr. Semrau’s
assessment was that her mental health problems were relatively severe and quite
chronic before the accident.

[159]     She denied any pre-accident marital difficulties until confronted with
the contrary records. She then admitted to marital difficulties and other
difficulties regarding her children’s educational problems. She had felt her
husband was not properly carrying out his duties as a husband and father and said
she stayed with him before the accident because she felt sorry for him.

[160]     She told him her pre-accident employment had always gone well. When confronted
with her health-related disabilities, she could not recall the difficulties
reflected in those documents. She said she had always been financially
comfortable, had no problems with debt, and denied any pre-accident legal
difficulties. Dr. Semrau noted that this is inconsistent with the records
he had received.

[161]     Based on the review of her pre-accident medical records, he said she
may well have suffered from some form of somatoform disorder such as somatic
nation disorder or pain disorder before the accident.

[162]      After reflecting on this evidence, the inconsistencies in her
presentation, and her responses, Dr. Semrau said “it is likely that Ms. Lacayo
would have continued with a similar pattern of chronic intermittent multiple
physical and mental health problems”. He said ongoing depression and anxiety
would likely have continued absent the accident.

Accident Related Events

[163]     Dr. Semrau noted that the plaintiff’s subjective report of a fear
she might die at the moment of impact likely created some increased risk for
the development of vehicle travel anxiety and/or post-traumatic stress
symptoms.

[164]     He reviewed all of the details concerning a possible head injury and
concluded that it was unlikely she had suffered a significant head injury in
the accident.

Post-Accident History

[165]     Dr. Semrau began this part of his opinion with a diagnosis of a
vehicle travel anxiety/avoidance condition. Although the plaintiff claimed her symptoms
were worsening over time, Dr. Semrau said that was unlikely based on the
information available. He said a diagnosis of post-traumatic stress disorder
was not justified but it was possible “some” post-traumatic stress symptoms
might have occurred. Her travel anxiety and the post-traumatic stress-like
symptoms were caused by the accident.

[166]     He concluded that the plaintiff’s depressive and anxiety symptoms were
not likely caused by the accident. He noted the records did not document depressive/anxiety
symptoms until one year after the accident. He questioned whether those
symptoms were related to the accident because depressive symptoms usually begin
within a few months of the event. He suggested the post-accident emotional
symptoms were largely a continuation of her pre-accident chronic depressive and
anxiety disorders and the operation of other physical symptoms and
circumstantial stress factors post-accident, the latter of which he opined
played a major causative role.

[167]     He said that it is possible that there has been some aggravation of her
pre-accident emotional symptoms due to the direct and indirect effects of the
accident.

[168]     Dr. Semrau observed that the plaintiff had severe financial
problems after the accident including the repossession of her house. He was
unable to ascertain if this was connected to the fraud judgment against her.

[169]     He learned from the plaintiff that her marriage is now better than
before the accident. Her family has been helpful to her in her post-accident
circumstances. Her husband and children take care of all of the cooking and
kitchen duties, housekeeping and laundry. She believed they are doing
everything because she is unable to perform any of the chores. He learned from
her that her children’s pre-accident learning difficulties have continued after
the accident.

[170]     At one point he observed that the plaintiff’s report of high pain
levels was inconsistent with the level of physical discomfort he observed
during his examination. She used very strong language such as” I have pain
everywhere – it’s killing me”.

[171]     Dr. Semrau described how, in his opinion, the plaintiff’s symptoms
and functional impairments are evidence of a “secondary gain” effort that
reinforces the perpetuating effect of her current symptoms. He believes she has
taken on a fairly extreme disabled/helpless sick role within her family far
beyond what could be reasonably explained on the basis of objective medical
symptoms. He could not be certain if the plaintiff’s behaviour was consciously
focused on secondary gain; her descriptions exceeded anything he had seen
before and this factor suggests there is a conscious desire for secondary gain.
He described her condition as being addicted to secondary gain from her family
and healthcare providers. He said that the plaintiff’s pain disorder means the
plaintiff genuinely experiences and expresses pain and other related symptoms,
but emotional factors have an important role in aggravating and perpetuating
the perception and experience of pain symptoms. Regarding causation, the pain
disorder is due to the combination and interaction of the plaintiff’s physical
injuries and the other for psychological problems experienced by her.

Post-Accident Treatment

[172]     Her mental health treatment has been, in Dr. Semrau’s opinion, “somewhat
appropriate”, but it has not resulted in significant improvement.

[173]     He proposes a radically different treatment approach. He opined she needs
therapy that emphasizes a practical rehabilitation component in which she is
challenged to increase her physical activity and which will reward actual
performance and stop her from paying attention to her symptoms.

[174]     He believes that the plaintiff needs vigorous therapy that includes
separating the plaintiff from her family to interrupt the secondary gain
features of her condition. He said she needs to go “cold turkey” for at least
one month to curtail the continuation of the symptoms of this role. It will be
an uphill battle and she is not likely to willingly participate. Dr. Semrau
mentioned a clinic in Alberta that treats disorders similar to the plaintiff’s
condition at between $500 per day and $1000 per day.

Prognosis

[175]     Dr. Semrau believes that there is a possibility of some
improvement in her condition but his mental health prognosis is guarded. In his
opinion, there is a “decent prospect of improvement if major changes are made
to the treatment approach”.

[176]     Further, he said, regarding the plaintiff’s work and educational
capacities, “any mental health symptoms arising from this accident have not
been significantly limiting in the past and are unlikely to interfere in future
either”.

Dr. Sahjpaul

[177]     The plaintiff was assessed by Dr. Sahjpaul at the request of her
solicitor on July 5, 2013. He provided a report the same day concluding the
following:

a.     The neck pain and cervicogenic headache were the result of a soft
tissue/myofascial injury caused by the accident;

b.     The thoracic and low back pain were myofascial and caused by the
accident;

c.     The right arm symptoms were pre-existing but previously intermittent
and infrequent; they were significantly aggravated by motor vehicle accident in
question. The MRI cervical spine demonstrates C 6-5 foraminal stenosis. More
likely than not, this stenosis is pre-existing, but probably rendered
symptomatic by the motor vehicle accident accounting for some of her right arm
symptoms. But for the motor vehicle accident, she probably would not have her
right arm symptoms to the extent that she does now;

d.     The right leg symptoms are due to motor vehicle accident. After the
accident she had disc pathology at the L4-5 and L5-6 disc levels. There is
evidence of a right L4-5 stenosis and a right L5-S1 disc herniation. These were
related to her S1 and possibly L5 nerve root compression from the disc
pathology noted;

e.     The disc herniation was pre-existing and rendered symptomatic by the
motor vehicle accident;

f.      Although there is a delay in documentation of the right leg symptoms
(which reflects nerve root compression) there was a definite recording of right
leg symptoms in a December 17, 2008, entry by the RehabMax Physiotherapy
& Sports Injury Clinic. The plaintiff’s lumbar spine pain it
is predominately myofascial and the disc herniation has not contributed to her
low back pain;

g.     Her depression and anxiety were caused by motor vehicle accident, but
are best left to more qualified practitioners. Depression and chronic pain
psychiatric diagnosis can negatively modify physical pain appreciation;

h.     The plaintiff will not likely be able to return to her pre-motor
vehicle accident work;

i.       The plaintiff will not likely have meaningful improvement in her pain
presentation because she is overweight and deconditioned.

[178]     Under cross-examination Dr. Sahjpaul discussed the information he
received from the plaintiff when he assessed her. This cross-examination
reviewed the following:

a.     She told him that she had no issues with her spine before the accident;

b.     She denied experiencing any headaches before the accident;

c.     She did not advise the doctor that at the time of the accident she was
claiming and in receipt of CPP disability pension for 13 years;

d.     She did not advise that she had been in receipt of social services
benefits from 1994 to 2004 based on a false claim of disability;

e.     The plaintiff did not inform the doctor of the medications she was
taking at the time of the accident;

f.      The plaintiff did not recall and did not report to him the mechanism of
the accident;

g.     She reported to Dr. Sahjpaul that the sensation in her right leg
developed later on but he was unclear about the timing of that symptom;

h.     He was aware the plaintiff had chronic shoulder pain for more than six
months before the accident and that may have impacted her overall chronic pain;

i.       He was aware she had pre-accident shoulder complaints but was not aware
she had received injections into her acromioclavicular joint in August 2008;

j.       She did not inform the doctor that she had restrictions in her ability
to cook and clean before the accident;

k.     The plaintiff did not inform the doctor that she had diabetic
neuropathy before the accident;

l.       The disc herniation suffered by the plaintiff was not a contributing
cause to her pain or at least not a significant cause;

m.   The
plaintiff was deconditioned and he recommended she exercise and wean herself
off reliance on her scooter;

n.     The plaintiff told Dr. Sahjpaul that before the accident she was
working as a “housecleaner and working in decoration, full time”;

o.      She reported a history of diabetes but no other serious medical issues
and no ongoing issues with her spine.

Dr. Paquette

[179]     Dr. Scott Paquette is a neurosurgeon and examined the plaintiff on
February 8, 2013. She was accompanied by a professional Spanish interpreter. At
that interview, she could not recall the events of the motor vehicle accident
but informed him she had been advised by her lawyer on how to respond to his
questions. The plaintiff declined to give a medical history when questioned by Dr. Paquette.
She told him she had not been in any previous accidents nor had she had prior
surgeries. She would not answer his question about whether she had pre-existing
or coexisting medical problems. The only information she gave him was that she
did not have back pain or leg pain before the accident. She told him that her
symptoms, including her back pain and right leg pain, “began approximately six
months after the motor vehicle accident”. Dr. Paquette’s inability to
obtain a history with regards to the events of the motor vehicle accident or
her pre-accident medical history is consistent with her presentation with other
doctors.

[180]     After their interview, Dr. Paquette obtained information
concerning the plaintiff’s medical history from records provided to him by
counsel. The records describe a person with very frequent contact with the
medical system before the accident. Her “six-month” statement, however,
correlates to the information he found in her family doctors records where the
pain is noted for the first time in March 2009.

[181]     The plaintiff would not allow Dr. Paquette a full physical
examination. She refused to allow him to examine any part of her body other
than her lower extremities.

[182]     He said that the plaintiff’s disc herniation surgery was done to
address the symptoms of her nerve root compression. The surgery recommendation
was based on a combination of subjective symptoms and physical findings which
correlate to neurologic evidence of a compressed spine.

[183]     Dr. Paquette stated disc herniations are symptomatic on or around
the time of the trauma. Minor damage to discs leading to later disc herniations
are quite rare and isolated events, and the delay in the onset of her symptoms
suggested against the injury being caused by the accident. Further, the early
examinations of the plaintiff with specialists familiar with spinal anatomy did
not find sufficient evidence of a lumbar radiculopathy or nerve root entrapment
by a disc in the back. The operative findings were not in keeping with the
radiology findings; the disc herniation was much smaller than expected. Finally,
the plaintiff’s symptoms were made worse by the decompression of the nerve root
and that is against the proposed association between the accident. the disc
herniation and the need for surgery.

[184]     He could not say whether the disc herniation was created or caused by
the subject motor vehicle accident.

Dr. Gittens

[185]     Dr. Winston Gittens, a neurosurgeon, performed a discectomy on the
plaintiff’s right L5-S1 disc. He reviewed the history of her treatment from the
date of the accident until his meeting with her on January 19, 2011. He noted
that she walked with a cane, was tender in the lower back and para-lumbar and
sacroiliac areas and was tender over the right greater trochanter. She had
restricted leg raising on the right side it due to back pain. She also
demonstrated decreased effort on motor testing.

[186]     When he saw her, he was unable to explain her symptoms in the L5-S1
region because they were not typical of an injury in that area. He believed her
pain was myofascial in origin.

[187]     He reviewed a CT scan demonstrating a disc herniation at L5-S1 and
bulging discs at L3-4 and L4-5. A later MRI scan confirmed the disc herniation
on the right side and he performed the surgery.

[188]     In his follow-up with the plaintiff she came to his office in a
motorized wheelchair complaining of pain in the incision but no pain into the
lower extremity.

[189]     He said that the plaintiff’s responses at this post-surgical
examination were excessive. He said normally you can touch an area but found
her response to touching well beyond the expected.

[190]     He saw her again on June 29, 2012, when she again attended in her
scooter. She reported a deep, near-daily pain across her back. At that stage he
believed she had musculoskeletal pain and needed a consultation with a
physiatrist.

[191]     He considered the records of Dr. Benitez and concluded that she
suffered a soft tissue injury to the neck and lower back and to the shoulder
without any neurological injury. He commented that the plaintiff complained of
right lower extremity pain in March 2009. Based on Dr. Benitez’s records
he concluded that the disc herniation was probably unrelated to the car
accident and more likely due to degenerative changes in her lower spine. The
car accident instead caused soft tissue related injuries.

[192]     He did not believe her ongoing pain or disability was related to the
disc pathology. He said lower back pain is not consistent with nerve root
entrapment caused by the degenerated disc. He was cross-examined on his opinion
regarding the connection between the accident and the nerve entrapment in her
L5-S1 disc and confirmed that degenerative discs can exist without causing
symptoms. He added that tingling in the right leg is not a common sign of
entrapment and can sometimes be caused by diabetes.

[193]     He said that a heavy right leg is not indicative of nerve root
compression. It was not until Dr. Benitez’s comments in March 2009 that
there was evidence of a nerve root entrapment.

[194]     He acknowledged that straight leg raising test is not an infallible
test for nerve root entrapment. Rather, it is necessary to identify pain
radiating into the leg in order to support a diagnosis of entrapment. He was
provided the records of Dr. Kousai who had seen the plaintiff previously; she
had a normal neurological examination with him and at that time there was no
sign of nerve root irritation with 90° leg raising.

[195]     In Dr. Gittens’ opinion, her prognosis is guarded in part due to
her pre-accident history of back problems, including her low back pain in the
right sacroiliac region reported in December 2007 and her psychological
problems. He said the fact she has been deconditioned related to reduced
activity and musculoskeletal pain.

[196]     Regarding treatment, he said that her current symptoms are most likely
musculoskeletal and a pain management program would be helpful.

Differences and Conclusions

[197]     Any fair and accurate analysis of the medical evidence is severely
compromised by the plaintiff’s lack of credibility and reliability in her trial
testimony and the quality of information provided to the assessing physicians.

[198]     There are further difficulties because some of the doctors who
testified at this trial considered opinions given by other doctors who did not
testify and whose reports were not included in any of the evidence. As an
example, Dr. Tesler-Mabe had previously treated the plaintiff for her
mental health issues and provided reports supporting her claim for a disability
pension in 2004. Dr. Kousai, a neurologist, also assessed the plaintiff
after the accident and produced consultation reports. Both were in turn relied
on by some of the medical witnesses at trial without reference to those
opinions.

[199]     The plaintiff contends that suffers from post-traumatic stress disorder
and constant pain in her low back. She claims to suffer thoracic and lumbar
strain with a possible L5-S1 radiculopathy and chronic neck pain with radiation
to the arm in association with occipital and cervicogenic headaches, myofascial
pain in her right shoulder, mid and upper back pain, and lumbar pain radiating
into her right leg. Her right arm symptoms were significantly aggravated by the
accident. Her sleep is disturbed.

[200]     She contends that her prognosis is poor or guarded and her
psychological symptoms have plateaued. She accepts there is a possibility of
improvement but argues that the affliction of six years works against any
improvement.

[201]     She contends that these symptoms were caused by the accident.

[202]     In argument the plaintiff said the clinical records appear to record
only occasional complaints of episodic neck and low back pain before the
accident, but there is a lack of information to indicate that these problems
were prolonged and ongoing. There was ongoing right AC joint and right arm pain
up to the time of the accident or recently before. Dr. Benitez’s evidence
was that the pre-accident right shoulder complaints were localized to the
acromioclavicular joint. Her post-accident complaints stems from the neck and
over a wider area.

[203]     She claims that she suffered a lumbar disc herniation as a result of
the accident. She acknowledges that testing done in December 2008 and in 2010
did not support a conclusion of nerve root compression; she argues this test
was not conclusive and later imaging confirmed this diagnosis.

[204]     She also contends that Dr. Benitez’s findings of spasms over a
long period after the accident demonstrate that she has myofascial pain in the
low back.

[205]     The defendant contends that the evidence does not support a conclusion
that the plaintiff’s nerve root compression problem was, more likely than not,
caused by the accident. In any event, the plaintiff’s low back complaints are
largely soft tissue in origin or related to her mental health difficulties. He
contends that the plaintiff has not proven the allegation of post-traumatic
stress disorder.

[206]     He contends that Dr. Benitez’ opinion is of little value to the
court and should not be relied upon.

[207]     I accept that Dr. Benitez was shown to demonstrate an underlying
bias to support the plaintiff’s claims. Although not fully articulated in his
January 2015 report, his views contained in the December 2014 report reveal he
adopted an advocacy role in forming his opinions and communicating them in his
reports. In his February 2011 report Dr. Benitez made almost no reference
to the plaintiff’s medical and psychiatric health immediately before the
accident. It is hard to imagine how a physician could form an opinion regarding
causation of a patient’s symptoms that were, at least in part, ongoing
immediately before the accident. He did not address those issues until his
second report, January 9, 2015, which he described as intending to provide an
update of the plaintiff’s symptoms, and to provide a chronological description
of events, procedures, investigations, comments about the medical opinions made
by other consultants, as well as a final diagnosis.

[208]     I accord Dr. Benitez’s opinions very little weight where they
conflict with those of Drs. Paquette, Gittens and Semrau.

[209]     Similarly, the defendant contends that Dr. Borhorquez’s opinion is
of little value because the doctor was not given an accurate or complete
history of the plaintiff’s pre-accident physical and mental health condition.
In particular, he was not aware of the plaintiff’s fraud and subsequent legal
proceedings concerning her social services disability benefits or her ongoing
receipt of CPP disability payments.

[210]    
Nonetheless, the defendant says that Dr. Borhoquez
found it difficult to determine how much of her pain was due to degenerative
changes and how much due to muscle pain. He considered the low back pain
multifactorial and was concerned that the plaintiff’s excessive pain behaviours
interfered with his assessment. He could not find any clinical evidence of radiculopathy
and considered her chronic pain syndrome exacerbated by a poor psychological
coping mechanism. He recommended the plaintiff should focus on improving her
function despite pain.

Psychiatric Conclusions

[211]     The defendant’s attack on Dr. Mallavarapu’s report is based on his
acknowledgement that he did not have a substantial amount of pre-accident
information about the plaintiff that related to her physical and psychiatric
circumstances. In particular, in his initial report he ignored Dr. Benitez’s
records for 2004-2008. He contends that the significant shortcomings noted
above diminish the significance and weight. I should accord his opinions
concerning the plaintiff’s psychiatric condition.

[212]     Dr. Mallavarapu did not or could not confront the plaintiff with
many of the inconsistencies observed in her evidence nor the gaps of important
information that did not come to his attention until much later.

[213]     Among the many discrepancies in the plaintiff’s evidence, she appears
to have told Dr. Mallavarapu that she had been working as a Royal
Columbian Hospital cleaner before the accident; he was not sure if she was
maintaining full-time or part-time employment. She appears to have told Dr. Semrau
that she worked 35 hours per week cleaning houses before the accident.

[214]     In contrast, Dr. Semrau had the ability to question the plaintiff
about inconsistencies in her evidence and was able to draw conclusions based on
the shortcomings in the pre-accident information available to both himself and Dr. Mallavarapu.

[215]     Dr. Mallavarapu had opined that the plaintiff suffered major
depression as a result of the accident. Dr. Semrau said that he believed
she had suffered a less serious diagnosis of adjustment disorder with depressed
and anxious mood.

[216]     I have considered the opinions of each psychiatrist and their cross-examinations.
Contrasting the two opinions, I am persuaded that Dr. Semrau had a better
informed and more objective perspective on the plaintiff’s overall pre-accident
and post-accident physical and mental health circumstances. I am satisfied he
more skillfully investigated the evidence and that his conclusion regarding the
plaintiff’s condition on the balance of probabilities more accurately sets out
the state of her past and present mental health and the causes of her ongoing
complaints.

Orthopedic Conclusions

[217]     An accurate finding regarding the plaintiff’s physical injuries is
likewise hampered by the shortcomings in her evidence, including her lack of
credibility and reliability. The fact that she was untruthful or unreliable in
describing her medical history to her doctors adversely affects the conclusions
reached by them. She allowed Dr. Paquette to perform a very limited
physical examination and misstated her pre-accident health to Dr. Semrau.
These anomalies in her behaviour appear to be deliberate measures taken to
avoid the risk they would give opinions adverse to her claim.

[218]     Drs. Sahjpaul and Gittens each agree that the plaintiff’s ongoing
symptoms are most likely soft tissue in origin. Dr. Paquette believes that
there is a psychiatric diagnosis to explain her ongoing symptoms. Dr. Borhorquez
did not find that she had a lumbar radiculopathy but said she was experiencing
multifactorial pain and chronic pain syndrome. Dr. Semrau concluded she
was suffering depression and anxiety symptoms, together with an adjustment
disorder with depressed and anxious mood symptoms. He believed that her
physical symptoms may aggravate her psychological symptoms. Her pain disorder
is due to a combination of the interaction of the injuries and or psychological
problems. He believed that secondary gain had a substantial conscious
reinforcing and perpetuating effect on the plaintiff’s statements regarding her
symptoms and functional impairment. Dr. Gittens concluded causation was limited
to soft tissue-related injuries.

[219]     Dr. Sahjpaul opined that the plaintiff’s right-L4-5 pathology was
extant before the accident but rendered symptomatic by the accident. He said
that although Dr. Benitez’s records reflected normal right leg symptoms until
March 2009, there was a recording of a right leg symptom on December 17, 2008,
indicating that the plaintiff was complaining of right leg symptoms within
three weeks of the accident. He said this was an indication that she was
experiencing a nerve root entrapment shortly after the accident. Thus, he
concluded the accident was the cause of that condition.

[220]     The only record reflecting any concern by the plaintiff connected to
her back or leg was contained in a record from the RehabMax clinic dated
December 18, 2008. Those records noted, with respect to the plaintiff’s
condition, “leg feels heavy”. In the diagram attached to that note, the only
indications of injury were in the plaintiff’s neck back/shoulder area and mid
to lower back. There is no indication of pain or discomfort or numbness in the
right leg. There is no mention in any of the doctor’s records in the three
weeks before this visit that the plaintiff had any leg related symptoms.

[221]     The evidence also indicates that the forces of the collision were not
as described by the plaintiff to some of the doctors, i.e. a “T-bone collision”.
The impact in this accident was modest with the forces coming from two vehicles
colliding side by side.

[222]     Dr. Sahjpaul disagreed with Dr. Paquette’s opinion that the
lack of postsurgical improvement was indicative of an absence of symptomatic
nerve root pathology because there can be multiple reasons for deterioration in
symptoms including nerve root attraction. Nonetheless, his opinion is that the
plaintiff’s predominant symptoms are soft tissue injury and not connected to
the disc herniation.

[223]     I accept the opinions of Drs. Paquette and Gittens in preference
to that of Dr. Sajhpaul and conclude that the evidence does not support
the plaintiff’s contention that this accident caused a disc herniation and the
right leg symptoms precipitating the symptoms stemming from her pre-existing
right L4-5 pathology. It follows that I do not accept that the surgery
performed by Dr. Gittens was as a consequence of the accident or the
injuries suffered by the plaintiff at that time.

[224]     Dr. Sahjpaul testified that at least 90% of the plaintiff’s pain
emanates from the soft tissue injury and not from the disc. He is supported in
that view by Dr. Gittens.

[225]     I have concluded that the plaintiff suffered a level of soft tissue
injury in the accident that combined with her psychological problems, developed
into a significant pain disorder. I accept she genuinely experiences and
expresses pain and other related symptoms but emotional factors have a role in aggravating
and perpetuating her perception of those symptoms.

[226]     I am further satisfied that the plaintiff is motivated by the prospects
of significant secondary gain that is causing a continuation of her subjective
pain complaints. Her statement during the trial that “somebody has to pay” for
her back pain, coupled with her history of abusing the disability resources
made available by BC and Canada and her refusal to follow the recommended
treatment regimens are compelling indicators that she seeks financial and
social gains including the comfort she derives from the care and attention of
her family.

[227]      
Her prognosis is poor but there are treatment
options that will optimize her chances of recovering to a better level of
function. It is a challenge to determine which ongoing symptoms are caused or
contributed to by the collision and which symptoms are perpetuated by her
pursuit of secondary gain or which symptoms would have occurred in any event
absent the accident. This is because the plaintiff’s claim is complicated by
the shortcomings in her evidence. As the court stated in Minhas v. Sartor, 2014 BCCA 455, referrring to Le v. Milburn, [1987] B.C.J. No. 2690
(C.A.):

When a litigant practice is to
deceive, whether by deliberate falsehood or gross exaggeration, the court has
much difficulty in disentangling the truth web of deceit and exaggeration. If,
in the course of the disentangling of the web, the court casts aside as untrue
something that was indeed true, the litigant has only himself or herself to
blame. In this case there has been some deliberate falsehood and some
exaggeration.

Causation

[228]     To succeed
in her claim Ms. Lacayo must establish on a balance of probabilities that
the defendants’ negligence caused her injuries. In Athey v. Leonati, [1996]
3 S.C.R. 458 at paras. 13-17, the Court described the test the plaintiff
proved a causal connection between the defendant’s negligence and the injury
sustained. The plaintiff must meet the “but for” test, which inquires “but for”
the defendant’s negligence, would the plaintiff’s injuries have occurred? 

[229]    
In Farrant v. Laktin, 2011 BCCA 336, the court framed the question
this way:

[11]      Thus, in applying the
“but for” test, the trial judge was required to consider not just whether the
defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but
also whether the plaintiff had established a substantial connection between the
accident and that pain, beyond the de minimus level.

[230]     Thus, if the
plaintiff can prove a substantial connection between the injury and the
defendants’ conduct, beyond the de minimus range, she can succeed.

[231]     Where
there are potentially multiple causes of a plaintiff’s injuries, it is further necessary
to determine whether the injuries are divisible or indivisible in order to
ensure that the defendants are not held liable for injuries not caused by their
negligence: Athey at paras. 24-25. Indivisible injuries are
those that cannot be separated or have liability attributed to the constituent
causes whereas divisible injuries are those capable of being separated out and
having their damages assessed independently: Bradley v. Groves, 2010
BCCA 361 at para. 20, leave to appeal ref’d [2010] S.C.C.A. No. 337.
Whether damage is divisible or indivisible is a question of fact: B.P.B. v.
M.M.B., 2009 BCCA 365 at para. 74, leave to appeal ref’d
[2010] S.C.C.A. No. 90.

[232]     If an
injury is indivisible, subject to contributory negligence, the defendants are
liable for all damages attributable to that injury regardless of the
contribution of other causes: Athey at paras. 17-20, 25.

[233]     A further
relevant consideration is the pre-existence, inevitability or predisposition to
suffer psychological injury in circumstances such as those brought about in a
particular case.

[234]    
In Athey, the Court addressed issues of pre-existing and
inevitable injury in explaining the “crumbling skull” rule:

35        The so-called
“crumbling skull” rule simply recognizes that the pre-existing condition was
inherent in the plaintiff’s “original position”. The defendant need not put the
plaintiff in a position better than his or her original position. 
The defendant is liable for the injuries caused, even if they are extreme, but
need not compensate the plaintiff for any debilitating effects of the
pre-existing condition which the plaintiff would have experienced anyway. 
The defendant is liable for the additional damage but not the pre-existing
damage:  Cooper-Stephenson, supra, at pp. 779-780 and John Munkman,
Damages for Personal Injuries and Death (9th ed. 1993), atpp. 39-40.  
Likewise, if there is a measurable risk that the pre-existing condition would
have detrimentally affected the plaintiff in the future, regardless of the
defendant’s negligence, then this can be taken into account in reducing the
overall award:  Graham v. Rourke,  supra; Malec v.
J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson, supra,
at pp. 851-852.  This is consistent with the general rule that the
plaintiff must be returned to the position he would have been in, with all of
its attendant risks and shortcomings, and not a better position.

[235]     Where
there is a predisposition to suffer injury, the defendant is not relieved of
liability for the injuries represented by the injuries caused by their wrongful
act. Such relief could only occur if the injuries or symptoms would have
occurred in any event.

[236]    
With respect to psychological injuries, the principles described in Maslen
v. Rubenstein, [1994] 1 W.W.R. 53, 33 B.C.A.C. 182, are apposite this
analysis:

[8]        To meet the onuss which lies on a plaintiff in a
case of this sort. . . the plaintiff must, in my view, establish that his or
her psychological problems have their cause in the defendant’s unlawful act,
rather than in any desire on the plaintiff’s part for things such as care,
sympathy, relaxation or compensation, and also that the plaintiff could not be
expected to overcome them by his or her own inherent resources, or
“will-power”.

[9]        If psychological problems exist, or continue,
because the plaintiff for some reason wishes to have them, or does not wish
them to end, their existence or continuation must, in my view, be said to have
a subjective, or internal, cause. To show that the cause lies in an unlawful
act of the defendant, rather than the plaintiff’s own choice, the plaintiff
must negative that alternative. The resolution of this issue will not involve
considerations of mitigation, or lack of mitigation. . . . If a court could not
say whether the plaintiff really desired to be free of the psychological
problem, the plaintiff would not, in my view, have established his or her case
on the critical issue of causation.

[10]      Any question of
mitigation, or failure to mitigate, arises only after causation has thus been
established.

[237]    
These principles were restated in Yoshikawa v. Yu, [1996] 8
W.W.R. 239, 21 B.C.L.R. (3d) 318, as follows:

[14]      . . . First, it must be shown that the defendant’s
unlawful act was a "cause-in-fact" of the plaintiff’s psychological
symptoms.  That means that the plaintiff must establish that "but
for" the defendant’s unlawful act the plaintiff’s psychological symptoms
would not have occurred or would not have occurred in the way they did. 
That is a factual question.  Second, it must be shown that the defendant’s
unlawful act was a "proximate cause" that is, a legally relevant
cause-in-fact, as a matter of law, of the plaintiff’s psychological
symptoms.  That is a legal question. . . .

[15]      So if the psychological symptoms from which the
plaintiff is suffering after the accident are symptoms from which the plaintiff
would have been suffering in any event, even if the defendant’s wrongful act
had not occurred, then the plaintiff cannot meet the cause-in-fact test and the
defendant is not liable for the loss represented by those symptoms.

[16]      But if the
psychological symptoms from which the plaintiff is suffering after the accident
would not have occurred if the defendant’s wrongful act had not occurred, then
the cause-in-fact test is met and consideration must be given to the question
of "proximate cause" in law.

[238]     It is then
for the plaintiff to provide evidence of a “convincing” nature to overcome the
improbability that her pain, depression, and anxiety will continue, in the
absence of objective causes, well beyond the normal recovery period. Such a
claim will be carefully scrutinized: Yoshikawa. The test for accepting
or rejecting this evidence is one of reasonableness: Janiak v. Ippolito (1985),
16 D.L.R. (4th) 1 at 11.

[239]     The other
element that has to be considered in determining whether the objective test of
reasonableness applies to decisions made by the alleged thin-skulled plaintiffs
is the nature of the pre-existing psychological infirmity. It is evident not
every pre-existing state can be said to amount to a psychological thin skull.
It seems to me the line must be drawn between those plaintiffs who are capable
of making a rational decision regarding their own care and those who, due to
some pre-existing psychological condition, are not capable of making such a
decision. Accordingly, non-pathological but distinctive subjective attributes
of the plaintiff’s personality and mental composition are ignored in favour of
an objective assessment of the reasonableness of her choice. So long as she is
capable of choice the assumption of tort damages theory must be that she
herself assumes the cost of any unreasonable decision. On the other hand, if
due to some pre-existing psychological condition she is incapable of making a
choice at all, then she should be treated as falling within the thin skull
category once it is established that she has been wrongfully injured should not
be made to bear the loss.

[240]     If, as
described in Maslen and Yoshikawa, the psychological symptoms
which the plaintiff suffers would have occurred if the accident had not
happened, then she is entitled to compensation for those features of her
injuries that would not have happened but for the accident. In this case, I
have concluded that a portion of the plaintiff’s psychological injuries would
have occurred absent the accident and her damages will be reduced accordingly.

[241]     The
difficulty in this case is that I have found the plaintiff to be consciously
motivated by a desire for secondary gain. Thus, even though she has
psychological injuries caused by the accident, the continuation of the
symptoms, in part, is driven by her desire for secondary gain and thus is not
compensable.

[242]     The
determination of damages resulting from a defendant’s negligence is an
assessment and not a calculation informed by any mathematical formula. I have
taken into account the principles articulated in Athey, Meslin, and Yoshikawa
in my analysis of the plaintiff’s claims.

Non-Pecuniary Damages

[243]     I conclude that before the December 2008 accident, the plaintiff was a
victim of intermittent ongoing depression and poor psychiatric health. She had
a history of hand injury, cancer, shoulder and back complaints and headaches.
It appears that her relationship with her husband was unsatisfactory before the
accident and somewhat better after the accident although there were continuing
issues between them. Before the accident she was unable to do many of the
domestic chores including cleaning, some laundry and some cooking. She claimed
to be disabled from working.

[244]     I accept the conclusion of Dr. Semrau that the plaintiff suffered
an exacerbation of depressive and anxiety symptoms post-accident, but does not
suffer from post-traumatic stress disorder. I accept Dr. Semrau’s opinion
that she has a moderately severe pain disorder and experiences pain-related
symptoms aggravated and perpetuated by emotional factors.

[245]     I am also satisfied that a dramatic program emphasizing “a practical
rehabilitation component” in which she is encouraged to increase physical
activity will likely provide her some significant benefits. This program was
described in  Dr. Semrau’s opinion and appears to set an optimum
strategy toward her recovery. Otherwise, her mental health prognosis is
guarded.

[246]     I accept Dr. Semrau’s opinion that if the November 2008 accident
had not occurred, it is likely the plaintiff would have continued with a similar
pattern of multiple chronic physical and mental health problems including
depression and anxiety. It is established that the plaintiff’s difficulties
with concentration and memory are likely related to pain, emotional causes and her
medication’s side-effects.

[247]     Dr. Semrau was unable to conclude that the plaintiff was
consciously malingering; however, having heard all of the evidence with
particular emphasis on the plaintiff’s incredible and unreliable testimony, I
am satisfied that it is more likely than not that she is consciously seeking a
secondary gain.

[248]     This conclusion is supported by the established challenges to her
credibility and reliability. She has long demonstrated a willingness to lie for
financial gain. She stated at trial her view that “somebody has to pay for my
back”. She did so in the context of being challenged on her right to claim
under certain heads of damage.  My impression is that her positions at trial
are no different than her long history of relying on disability benefit support
from both levels of government that she was not entitled to receive and her
failures to report any earned income to the CRA (while insisting in court that
she pays her taxes).

[249]     I find that the plaintiff’s failure to engage in rehabilitative
measures recommended by her physicians and treatment providers, although falling
short of a failure to mitigate as described below, is some evidence that the
plaintiff is not as physically impacted by the injuries claimed. Features of
her complaints are exaggerated and where she has failed to accept medical
advice, she demonstrates her desire to avoid improvement thus increasing the
secondary gain she obtains from her current presentation.

[250]     I accept the evidence of Drs. Gittens and Paquette that the plaintiff’s
disc herniation was probably unrelated to the motor vehicle accident. Put
another way, I am not satisfied on the balance of probabilities that the
accident caused her disc herniation. I also accept their conclusions that the
accident caused soft tissue related injuries.

[251]     In reconciling the opinions of Dr. Semrau and Dr. Paquette, I
find that the plaintiff would have continued with a similar pattern of chronic
intermittent physical and mental health problems if the accident had not
occurred. In particular, she would likely have had ongoing depression and
anxiety issues.

[252]      The defendant relied on the following cases in support of his
submission that non pecuniary damages, assessed at $30,000-$40,000. These cases
include:

a.     Schofield v. Jentsch, 2012 BCSC 1130, awarding
$30,000 for non-pecuniary damages. The plaintiff was rear-ended at a stoplight
and sustained some soft tissue injury to her neck and upper back. She was
unable to work for approximately four months and could not resume full-time
work for an additional two months. Approximately a year after the accident, the
plaintiff was able to return to all her previous work and recreational
activities.

b.     Brown v. Raffan, 2013 BCSC 114, where non-pecuniary
damages were assessed at $35,000. The plaintiff was 44 years old and worked a
variety of low-labour service jobs before being involved in a violent motor
vehicle accident causing significant cuts, soft tissue injuries, and which broke
her dental plate. The injuries interfered with her ability to carry out normal
domestic activities, but had largely resolved within two years. Otherwise, she
was left with some scarring, continued to have some headaches and knee pain,
and suffered from anxiety associated with driving.

c.     Tibeault v. MacGregor, 2013 BCSC 808,
assessing non-pecuniary damages at $35,000. The plaintiff was a disabled 48
year old mother of four who was injured as a result of a low-velocity impact
collision. Despite the negligible impact and the trial judge’s finding she
exaggerated her condition, the accident did exacerbate her poor physical
condition, causing difficulty sleeping, headaches, neck, shoulder and back pain
and further difficulties in participating in domestic work.

d.     Sharifi v. Chaklader, 2012 BCSC 685, assessing
non-pecuniary damages at $50,000. The plaintiff worked fulltime for the
Ministry of Social Development, four nights a week at an assisted living
facility, and occasionally at home as an esthetician. She was involved in a
forceful collision while the passenger of a van and suffered soft tissue
injuries to her upper back, neck, and upper shoulders, which in turn caused occasional
migraine type headaches, stress, anxiety, fatigue and depression-like symptoms.
These injuries have diminished her capacity to enjoy life and work, but did not
interfere with most activities of daily living. There was also some hope of a
recovery or reduction in pain with appropriate treatment.

e.     Minhas v. Sartor, 2012 BCSC 779, where non-pecuniary
damages of $70,000 assessed before being reduced for contributory negligence.
The plaintiff was employed in a variety of warehouse jobs before being injured
in a motor vehicle accident. At trial, the court reviewed the plaintiff’s serious
credibility concerns, including his applying for and accepting social
assistance, employment insurance, and WCB benefits to which he was not
entitled, a history of faking workplace injuries to obtain leave and benefit,
and filing false tax returns. To the extent his evidence could be relied on, the
court found the plaintiff suffered soft tissue injuries to his neck and
back that caused discomfort and reduced mobility or range of motion in his neck
and back. He also had jaw problems for which he sought surgery, and which
resulted in a respiratory infection. His issues had limited interference with
his hobbies and, with the exception of some ongoing jaw pain, largely were resolved
within one year.

[253]     In support of the plaintiff’s submissions that non-pecuniary damages be
assessed at $200,000, she relies on:

a.     Al-Hendawi v. Sidhu, 2006 BCSC 522, awarding
non-pecuniary damages of $150,000. The plaintiff was an active 43 year old
doctor who suffered a disc herniation. This injury caused pain and disability,
and paralyzed his left foot such that he required surgery, which in turn caused
such pain that he was immobilized for two months; in this time he depended on
his wife and brother to assist him in going to the bathroom, washing, or eating,
which caused him extreme embarrassment. The injuries also interfered with his
enjoyment of intimacy and disrupted his and his wife’s plans to have more
children. The undisputed prognosis was that he would experience chronic back
pain in the future.

b.     Cumpf v. Barbuta, 2014 BCSC 1898, awarding
$150,000 in non-pecuniary damages. The plaintiff was a 44 year old housekeeper
and property manager. After her accident, the combined effects of
residual physical injuries (headaches, neck and back pain, loss of function in
her wrist, shoulder and ankle), along with the pervasive emotional disorder
resulting from them and the trauma of the collision, devastated Ms. Felix’s
personal and vocational life. She lost much of her ability to be self-reliant
and to participate in many of the activities that had been the foundation of
her social life and she was unlikely to improve without significant further
treatment.

c.     Chowdry v. Burnaby (City of), 2008 BCSC 1337,
awarding $200,000 in non-pecuniary damages. The plaintiff, a 64 year old lease
manager for a car dealership, was seriously injured when a transport trailer
crushed the driver’s side of his car. He was rendered catatonic for six months.
His physical symptoms (headaches and back, neck and shoulder pain) resolved
before trial, but he continued suffering symptoms of a mild traumatic brain
injury, PTSD and a major depressive disorder which caused him to lose his job
and strained his self-identity and relationship with his family. There was hope
for improvement, but little doubt issues would continue for the rest of his
life.

d.     Courdin v. Meyers, 2005 BCCA 91, where non-pecuniary
damages were set at $200,000. The plaintiff was a 43 year old business woman
involved in a three-vehicle collision. Her injuries include a soft tissue
sprain and secondary fibromyalgia which worsened over time and had crippling
effects on her demeanor and ability to contribute to her relationships and business
ventures. The medical evidence suggested she would continue to deteriorate and
her prognosis was very guarded. However, the Court of Appeal noted this award
was at the high end of the appropriate (reducing it from a jury’s suggestion of
$950,000).

e.     Felix v. Heame, 2011 BCSC 1236, where
non-pecuniary damages were set at $200,000. The plaintiff was a 44 year old
court reporter who suffered recurrent headaches, tinnitus, vertigo, neck, back,
shoulder and ankle pains and concussion symptoms. Shortly after the accident
she developed post-traumatic stress disorder and related panic attacks. She was
in constant pain and her psychological issues affected her work, family life
and social activities. By the time of trial there was only a modest hope for
further improvement.

f.      Best v. Thomas, 2014 BCSC 1033, awarding
non-pecuniary damages of $225,000. The plaintiff was a 32 year-old labourer.
The injury required emergency surgery, and after the accident the plaintiff
developed a serious conversion disorder. He withdrew socially and gave up hopes
of becoming a father. He experienced constant pain, was disabled from
competitive employment, and could not engage in any physical activity without
assistance and discomfort. At the time of trial, no expert predicted anything
approaching a full recovery.

[254]     There is a formidable challenge to assessing the plaintiff’s non-pecuniary
damages in light of the findings made above. It is the plaintiff’s burden to
prove on the balance of probabilities that the accident has caused the symptoms
that form the basis of her claim. I was not referred to any authorities that reflect
my findings of the compensable part of the plaintiff’s claim. Considering the
principles in Stapley v. Hejslet, 2006 BCCA 34, and
the authorities cited by the parties, I am satisfied that the plaintiff’s non-pecuniary
damages for those injuries that were caused by the defendant’s negligence after
considering the plaintiff’s desire for secondary gain and those symptoms that
would have existed absent the accident are $70,000.

Future Income Loss

[255]     There is a paucity of reliable and credible evidence to persuade the Court
that the plaintiff has suffered any economic loss. In the past, she has
demonstrated a propensity to be untruthful to improve her economic circumstances
when convenient. She has persisted in these habits for many years and continues
notwithstanding a recent conviction for fraud. She has lied to the CRA, to CPP,
to her doctors and to the Court. I have no confidence that most of what she has
said were reliable or true. I am compelled to disregard any of her evidence
concerning her income loss claim.

[256]     Her counsel conceded the issues in her credibility, and brought the
Court’s attention to Wepruk v. McGarva and Butt, 2006 BCCA 107, which states
a plaintiff has a high burden in proving loss of income-earning capacity where
there is no corroborating evidence.

[257]     Nonetheless, the plaintiff made much of the fact that recipients of CPP
disability benefits can pursue “small scale” income-earning ventures. She contends
despite the lack of documentation, it was likely that she was involved in some
income earning activity before the accident and suggests these ventures would
have continued for some time (perhaps ten years) beyond the date of trial.
Estimating her potential earnings at $1,000 to $2,000 per year; she submits she
deserves “nominal” damages of $10,000 to $20,000 to compensate for this loss.

[258]     Through trial, the plaintiff suggested she was working either part-time
or full-time before the accident; her reports to some doctors indicate she was
working full-time, her reports to others part time. Her testimony on the types
of work she did and the related earnings suggested she made anywhere from
$12,000 to $60,000 per year, but this testimony was often contradictory and
confusing and she resiled from much of it in her submissions.

[259]     Otherwise, there was an almost complete absence of credible or reliable
evidence concerning her pre-accident employment. In particular, there were no
tax records, and no report to CPP that she was able to work or of the amounts
made, all because the plaintiff intended to continue defrauding the federal
government of both income tax and her disability pension. The plaintiff even refused
to disclose to the Court or to the defendant the identity of clients she
performed housecleaning without any convincing reason to support her defiant
position.

[260]     She does not make a claim for past income loss; presumably she
recognizes that the evidence does not support that claim. Equally, the evidence
does not meet the test described in Perren v. Lalari, 2010 BCCA 140, that
she must prove a substantial likelihood of income loss in the future.

[261]     In the result, I award no compensation for future income loss.

Cost of Future Care

[262]     Paul Pakulak is an occupational therapist retained to assess the
plaintiff on April 29, 2014. His role was to test the plaintiff’s physical
abilities to complete the functional activities and this included assessment of
her mobility strength, dexterity, performance of work activities will among
other goals.

[263]    
His report contained the following:

During the
musculoskeletal assessment results indicated the presence of significant non-organic
pain behaviours and variable levels of physical effort in the testing. Based on
the testing results, it is not possible at this time to provide an opinion
regarding Ms. Lacayo’s maximum physical capacity. Given the variable
levels of physical effort provided during the testing, the results of testing
cannot be relied upon to generate such an opinion. Further, given the positive
non-organic signs and presence of inappropriate illness behaviour the degree to
which one can rely on the reported symptoms is also drawn into question.

[264]     He noted that this conclusion did not imply that the plaintiff was
intentionally attempting to exaggerate her symptoms or level of physical
capacity. This type of presentation is not uncommon in individuals with
significant emotional and psychological difficulties. However, he said the
plaintiff tested positive for “simulated weakness” in her legs and he conceded
that her non-organic signs raised the possibility of malingering.

[265]     He interviewed the plaintiff and obtained some information from her
concerning the accident and her current circumstances. He did not obtain her pre-accident
medical history or PharmaCare history. He did not know that prior to the
accident she was receiving a CPP disability pension; he indicated that
information might have been important in his assessment of her current physical
capacity. He did not know she was taking antidepressant medications before the
accident. The only information he received was that she had suffered a wrist
fracture in the past, was diabetic and had some depressed mood before the
accident which became worse after the accident.

[266]     Ms. Lacayo told Mr. Pakulak that she had a clear recollection
of the accident mechanism and recalled sitting in the car in pain after the
impact. She said she was transported to the hospital by ambulance. She also
told him that after the accident, she returned to work for two full weeks but
quit because of worsening symptoms.

[267]     Mr. Pakulak’s report beyond these notes is based largely on
comments made by the treating physicians concerning their views on her
condition and needs.

[268]     Deborah Edwards was the client services manager at We Care Services.
She provided a letter that records her recollections and recommendations
concerning the plaintiff. These were typical recommendations with a computer
generated care plan for the plaintiff. It is a standard plan prepared by another
coordinator.

[269]     In April 2012, We Care charged $25.50 (now $26.50) plus GST for home
making services and $26.50 (now $28.) for personal care. 

[270]     These services that would have been available to the plaintiff in 2011.

[271]     Her letter says the plaintiff became angry when reviewing her
suggestions and rejected her and those services.

[272]     At a trial, the plaintiff described Ms. Edwards as a “nice lady”.
However, in her discovery evidence, the plaintiff said that Ms. Edwards
was a “bad” person and was asked to leave her house. At trial, the plaintiff
denied asking Ms. Edwards to leave her house but confronted with her
October 2, 2012, discovery evidence, acknowledged that she probably asked Ms. Edwards
to leave.

[273]     Dr. Benitez recorded that Ms. Edwards’ recommendation of two
hours per day personal help for the plaintiff was not nearly enough.

[274]      The claimant contends there is medical justification for future care
cost claims advanced in the trial. Milina v Bartsch (1985), 49 B.C.L.R.
(2d) 33; 30 A.C.W.S. (2d) 257.

[275]     She submits that it is not necessary to adduce opinion evidence
concerning each item claimed; the whole of the evidence is sufficient to
support an award for specific items: Chiu v. Chiu, 2002 BCCA 618;
Aberdenn v. Zanatta, 2008 BCCA
420; McCarthy v. Davies, 2014 BCSC
1498.

[276]     The plaintiff seeks $13,500-$14,000 to fund a single attendance at a
multidisciplinary pain program as recommended by Dr. Benitez, Dr. Borhorquez
and Dr. Semrau. Dr. Semrau’s description of an appropriate
residential program requires separating the plaintiff from her current
surroundings. This approach will allow her to begin a treatment program without
the limitations of her current circumstances that may block meaningful change.
In my view, this is a compelling recommendation best suited the plaintiff’s
optimum recovery. Mr. Pakulak approves of this program.

[277]     I accept that there is a connection between the plaintiff’s chronic
back pain and her depressive symptoms. I am satisfied that the injury suffered
in the car accident has exacerbated her pre-accident condition to such an
extent that this program is warranted based on the opinions of three doctors.

[278]     The plaintiff also claims for psychological counselling at a cost of $3,500-$5,250
(subject to a net present value reduction). Mr. Pakulak recommends
psychological counselling as a transitional program from the multidisciplinary
pain management program. He based his estimate on Dr. Mallavarapu’s
recommendation. Dr. Mallavarapu’s recommendation did not take into account
that the plaintiff might be referred to a pain management program. I accept
that some treatments might assist the plaintiff in transitioning away from the
multidisciplinary effort, but not to the extent recommended. I am not satisfied
that this program superimposed on, or in addition to, the multidisciplinary
pain program is medically warranted in its entirety.

[279]      In my view, $2,500 should be sufficient to assist in her transition from
the multidisciplinary program.

[280]     The plaintiff argues that Dr. Borhorquez recommended sessions with
the psychologist. That recommendation was premised on the recommendation that
she required cognitive behavioural therapy to deal with pain and improve her
activity. It seems to me those concerns will be addressed if the plaintiff
pursues the month-long multidisciplinary plan, and as such further recovery for
these sessions is not allowed.

[281]     The plaintiff seeks kinesiology sessions at a cost of $1,795 for one
year based on Dr. Mallavarapu’s and Dr. Borhorquez’s recommendations.
The need for a kinesiologist is based on the plaintiff’s fear of making her
symptoms worse if she becomes active. Bearing in mind all of the evidence and
the difficulties with the plaintiff’s reliability and credibility, I am not
satisfied that this would be a medically necessary or reasonable expense.

[282]     The plaintiff also claims between $3,567 and $5,296 for a gym/pool pass,
the amount representing the cost of an annual pass over 25 years. This claim is
based on the recommendation of Dr. Benitez, who recommended a pool
exercise program as medically necessary if she had difficulties with other
exercises.

[283]     She said she tried swimming once in 2013 but is not interested in going
to a pool because she is afraid of something untoward happening. She
acknowledges that Dr. Benitez told her to walk, climb stairs and try
swimming; she admits she has not pursued that advice.

[284]     Mr. Pakulak said that a gym pass might facilitate her involvement
in a self-directed exercise program as she works through the plans he laid out.
However, she has declined to take up swimming in the past and I am not
satisfied that the plaintiff will use a pool/gym pass if awarded sufficient
money to engage in that process. No amount is awarded for this expense.

[285]     The plaintiff claims a lump sum award of approximately $200,000 for the
costs of medications. In considering what portion of her medication costs is
awardable in this action, it is significant that the plaintiff was receiving
between 36 and 55 prescriptions every month from September 2008 to November
2008. Many of these were prescribed to address her inability to sleep, right
arm pain, fatigue and tiredness, unrelenting headaches, and depression – issues
she continues to struggle with and take medication for today. Mr. Pakulak’s
medication summary recommendation reflects estimates for her current reported
medication intake from the date of trial into the future and is based on the
net present value calculations performed by Turnbull and Company.

[286]     The plaintiff contends that the records reflect higher painkilling
medication consumption in 2014 than she used before the accident. She asks the
Court to infer that the increased medication consumption was made necessary by
her injuries because no other potential causes were identified. She also argues
that the medications she currently consumes are substantially different from
those taken before the accident.

[287]     She also contends that the award for future care cost should not be
based on the amount of the claim for special damages.

[288]     The defendant argues that the plaintiff’s post-accident prescription
medications have been, when considering actual cost to the plaintiff, less than
$100 per year. The actual expense for her prescription medications since
November 28, 2008, is paid by PharmaCare. He contends that Mr. Pakulak did
not undertake an analysis to determine whether her post-accident medication
needs have changed or whether the need for those medications is causally
connected to the accident. He submits the plaintiff has not met the burden of
proving she will incur future expenses as claimed due to the consequences of
the accident.

[289]     Although I recognize the plaintiff will likely continue taking
medications, the evidence does not assist in informing the Court on what level
of medications would not have been necessary but for the accident. Indeed, for
the year 2008 prior to the accident the plaintiff received 624 prescriptions
for medicines recorded in her PharmaCare print-out. Many of these are to
address her sleep issues, pain complaints, and headaches. Further, there is no persuasive
evidence to assist the Court in measuring how long the plaintiff might require
these medications and what, if any, improvement might eliminate the necessity
of medications in the future.

[290]     Given the state of the evidence, the possibility she may need
medications for the balance of her life, and bearing in mind that the plaintiff
will likely benefit from PharmaCare support, the determination of the
compensation for future medications, is difficult.

[291]     The plaintiff reports medication expenses in 2014 of $10,018.47. She
sets out future annual medication costs in the order of $10,861 per year
calculated in the Pakulak report. Applying a net present value multiplier of 23.889,
she estimates $259,459 to be the cost of her required medications for the
balance of her life. She accepts that there should be a deduction for
contingencies set at a 20%, thus producing a total future care cost for
medications of $200,000.

[292]     Alternatively, the plaintiff suggested that her pre-accident
medications for 2008 cost approximately $5,000 per year. Thus, the difference
between the pre-accident and post-accident medication levels would be $5,000
per year, justifying an award of $119,445.

[293]     This latter suggestion does not take into account my findings
concerning the plaintiff’s secondary gain motivation or the prospect that she
would have continued to have intermittent mental health and physical health
issues regardless of the accident. Nonetheless, I must deal with this part of
the claim by estimating the amount of the plaintiff’s pre-accident medication
needs and the post-accident medication requirements that would not have been
necessary if the accident had not happened.

[294]     Assessing the plaintiff’s future medication needs that would not have
been required but for the accident is complicated by the lack of credibility
and reliability in the plaintiff’s overall evidence. The recommendations for
these medications derive from the opinions of several doctors whose evidence
has been given less weight because of the failure to do a careful comparison
between her pre-accident condition and long term prognosis (failures in no
small part owing to the plaintiff lying about this condition or otherwise her
failure to provide this that information). Further, there is no indication
about the level of medication she might require if she meets with some success
in the multidisciplinary assessment planned.

[295]     The plaintiff has a doubtful prognosis for recovery. She may be
permanently afflicted with symptoms following the accident. However, I am
unable to do a mathematical calculation under this head of damages. As in all
cases, the compensation for this head of damage is an assessment and not a
calculation. In the final analysis, and taking into account her presentation of
ongoing annual prescription expenses of $10,861 set out in the schedule
attached to the written argument, the plaintiff will recover $50,000.

Mitigation

[296]    
The applicable test to be applied to a defence of failure to mitigate
was set out in Morgan v. Galbraith, 2013 BCCA 305:

[78]        In Chiu (which
remains the guiding authority on this question), Low J.A. said at para. 57:

[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 plaintiff’s damages would
have been reduced had he acted reasonably. These principles are found in Janiak
v. Ippolito, , [1985] 1 S.C.R. 146.

[297]     The
defendant argues that the plaintiff had refused to follow treatment advice to
exercise and engage in a pool program and had been untruthful with the
therapist. He contends she did not undertake the steps to improve her condition
nor had she reduced her reliance on the motorized wheelchair notwithstanding
the wisdom to do so. He said none of the medical experts support her continued
use of the wheelchair and noted that Dr. Sahjpaul said she needed to walk
more to increase her muscle strength, which he opined would lead to a reduction
of pain intensity.

[298]     The
plaintiff was cross-examined regarding the use of the wheelchair/scooter. At
trial she denied the scooter was used because of back pain. She said it hurts
when she walks longer distances and she has pain when she sits in ordinary
chairs. In the wheelchair she said she felt relaxed. She was then confronted
with her evidence at her examination for discovery where she said she uses the
wheel chair because of back pain and not because of difficulties with her right
leg.

[299]      When
asked if Dr. Benitez told her to stop using the scooter, she said she
could not remember; later, she admitted that Dr. Benitez told her to buy a
back brace and stop using the scooter.  When asked again if Dr. Benitez
recommended she reduce her use of the chair she said “I’m sorry things are not
stored in my head”. It was in turn revealed that she was the one who suggested
to Dr. Benitez that she wanted a scooter. None of her doctors have recommended
that she get or continue to use it.

[300]     Otherwise,
the plaintiff submits that there was no evidence that she consciously took on a
sick role. She argues that she has been compliant with her family doctor’s
advice and her decision to decline an exercise program was reasonable because
there were only limited prospects that program might succeed. She also argues
that Dr. Sahjpaul’s opinion concerning the results of her efforts to
improve is not established. The evidence does not point to the likelihood of a
successful outcome; the effects of exercise will be directed to better pain
management, not the elimination of pain.

[301]     She
acknowledged making a misleading statement to Ms. Rodriguez, the ICBC
appointed physiotherapist, when she said she would be away for three months and
could not take the treatments recommended; she admitted she was absent for only
one month and explained she simply did not want to see anyone else at the time.
Although there is no opinion regarding the impact on her recovery that might
have followed these treatments, it is troubling that the plaintiff arbitrarily
and without a sound reason deflected the opportunity to obtain physiotherapy
assistance.

[302]     At her
discovery, the plaintiff was questioned about Ms. Deborah Edwards from We
Care, who came to assess her needs at her house. The plaintiff acknowledged
asking for four hours for personal care and meal preparation and when Ms. Edwards
suggested she would only need two hours, the plaintiff asked Ms. Edwards
to leave her house, asserting at discovery she was a “bad” person.

[303]     I accept
the submissions that the plaintiff has failed to pursue the recommendations concerning
exercise and reducing her reliance on the motor scooter. There are measures
recommended by the physicians she could take to ameliorate some of the pain
symptoms and I accept that if the plaintiff embraced this medical advice she
could reasonably expect to reduce the level of pain she experiences. It is
likely that the serious mental health issues that overshadow her
self-perception of pain and injury have impeded her ability to make rational
choices in response to the doctor’s recommendations. Nonetheless, I am inclined
to the view that the plaintiff’s decisions to eschew medical advice to exercise
and reduce her reliance on her scooter were conscious and deliberate.

[304]      However,
there is no evidence to inform the Court of the extent of any anticipated pain
reduction or improvement in function that might have resulted from the
plaintiff pursuing these recommendations. Additionally, there is no evidence to
clarify the duration of any expected pain reduction. I accept that common sense
could lead to a conclusion that the plaintiff’s rejection of her doctor’s
recommendations might have ameliorated her ongoing symptoms. Nevertheless,
in the circumstances of this case and considering the complexities of her
physical symptoms and psychiatric difficulties, including the plaintiff’s mental
health shortcomings, contributed to in part by the accident, and the dearth of
evidence concerning the anticipated impact of her involvement in either an
exercise program, the reduction in the use of her scooter or other recommended
treatment, I am not satisfied the defendant has proven a failure to mitigate on
the balance of probabilities.

In Trust Awards

[305]     The plaintiff seeks an in trust award for her husband, Nelson Saborio,
based on the evidence that he drove her to many appointments (at least 10 per
year at two hours each), took time off work, and did cooking, cleaning and
laundry that she maintains she was unable to do. She argues that his efforts
were beyond the call of duty and, although he has not kept a record of his
time, he should be awarded compensation based on 100 hours per year of
assistance at $25 per hour. This rate would compensate him at $18,000 for the
six years he has performed these tasks. Because her condition is unlikely to
improve, she contends I should add a “future component” for a total claim of
$25,000-$30,000.

[306]     The defendant argues that Mr. Saborio’s services were no more than
what might reasonably be expected in a family situation where there is”
give-and-take”: see Dykeman v. Porohowski, 2010 BCCA 36.

[307]     Mr. Saborio did not provide any documentary evidence proving a
financial loss for caring for his wife; instead, his employer confirmed that
there was no loss of income because he was able to make up time as required. He
also testified he was not working at the time of the accident but for some time
after the accident, Mr. Saborio was not working and would not have
incurred any financial loss in driving the plaintiff to employ appointments or
otherwise performing domestic chores.

[308]     Nevertheless, it is not necessary to establish that Mr. Saborio
lost any income while providing services to the plaintiff in order to recover
an in trust award.

[309]     The defendant also points out that the plaintiff did not have a
driver’s license and was, before the accident, regularly attending her
physician’s office. There is no basis to conclude that this pattern changed as
a result of the accident. Finally, the defendant points out that the plaintiff
was disabled from house work due to her pre-existing condition and had
assistance with it before the accident. Indeed, Mr. Saborio said prior to
the accident the plaintiff could not exert strength in that hand. As a result,
she did not clean the house or comb her hair; it was he and the children who
were doing the cleaning. The plaintiff did some cooking, but not every day. Her
hand limited her otherwise.

[310]     Mr. Saborio’s evidence underscores the consequences of the
plaintiff’s unreliable and unbelievable evidence. It is clear that the
plaintiff was not performing the household duties and services alleged in her evidence
or submissions. I accept the husband’s evidence that he was already doing many
of the domestic chores in the family home prior to the accident because the
plaintiff’s arm was too painful for her to perform those duties. She continued
complaining about her hand after the accident, but downplayed at trial the
impact it had on the things she was doing.

[311]     I am not satisfied that the plaintiff has established on the balance of
probabilities that an in trust award for Mr. Saborio has been made out. On
his evidence alone, it does not appear that she was performing the duties in
the home before the accident, or that since the accident he has taken up any
extra cooking or any other household duties he was not performing at the time
of the accident.

[312]     I accept that he may have driven his wife to some appointments and he
may have done some cooking that the plaintiff could not do after the accident,
but I am not able to accept that the very minor increase in duties he undertook
rise to the level that would support an in trust award for him. The purpose of
an in trust award is to compensate the plaintiff for the reduction in her the
ability to carry out household tasks performed by a family member. The
foundation for such an award must be established in the evidence: see Kroeker
v. Jansen (1995), 123 D.L.R. (4^th) 652, 4 B.C.L.R. (3d) 178
(C.A.). In this case, the plaintiff has not proved that her post accident
ability to perform those tasks has been reduced because of the injuries. Her
disability was extent at the time of the accident.

[313]     The plaintiff also claims an in trust award for her daughter, Claudia
Gumina, for personal care she required during the post-surgical convalescence.
The plaintiff argues that the services provided by Claudia were done three
hours per day for two weeks following the surgery. She seeks an award of $1,000
as reasonable compensation for that help.

[314]     I have determined that the plaintiff’s radiculopathy was not caused by
the accident and the resulting surgery was not caused in the collision. Thus,
the plaintiff has not proven that there should be an in trust award for Claudia
for her post-surgical services to her mother made necessary because of the
plaintiff’s reduced capacity resulting from the injuries caused by the
defendant’s negligence.

Loss of Housekeeping Capacity

[315]     The plaintiff seeks $80,000 as compensation for the loss of her
capacity to perform household tasks that were part of her role at the time of
the accident. She acknowledges that at the time of the accident she had some
restrictions on her ability to perform these duties including a reduced ability
to cook.

[316]     The plaintiff refers to Deo v. Deo -and- Deo v.
Fourchalk, 2005 BCSC 1788, and Kroeker, and argues the court could estimate the number of hours of work
performed by others without charge and calculate the value of the services
based on a minimum wage payment for the number of hours required. She contends
the We Care estimate of $26.50 per hour for between six and seven hours per
week for housekeeping and personal care should be awarded for at least four to six
weeks. She also argues that her overall diminution in housekeeping capacity is
$6,250 per year (calculated at five hours per week and $25 per hour). The sum
of these amounts is $80,000. She accepts that this amount can be reduced due to
limitations in her pre-accident housekeeping capacity.

[317]     She relies on Hosseinzadeh v. Leung, 2014 BCSC 2260, where the
plaintiff claimed for a loss of capacity, distinct from a future care claim,
which was intended to reflect the value of work that would have been done by
the plaintiff but which she is incapable of performing due to the injuries
caused by the accident. There, the plaintiff claimed that before the accident
she performed all the cooking and housekeeping as well as laundry and grocery
shopping. The plaintiff contended that she was able to perform many of those duties
but they were now more time-consuming. The Court, without calculations,
provided a rough estimate of replacement services. The plaintiff contends that Dr. Gittens,
Dr. Borhorquez and Dr. Benitez commented on the plaintiff’s inability
to return to work. It is curious that these physicians spoke about the
plaintiff’s physical inability to work without regard to her pre-accident
inability to perform domestic chores because of her hand problems.

[318]     Again, the tension arising from the unreliability in the plaintiff’s
evidence hampers the Court’s assessment of what, if any, interference in the
plaintiff’s homemaking ability arises from the accident related injuries.

[319]     Based on my findings concerning the diagnosis and prognosis of the
plaintiff’s physical and mental health, I accept that the accident may have
interfered in her ability to perform some chores in or about the family home. However,
I am not satisfied on the evidence that the plaintiff performed any significant
measure of housekeeping chores prior to the accident. It is accepted that she
did some cooking and her ability to continue working in the kitchen and/or
helping out in any modest way with household chores is uncertain. Nonetheless,
I am prepared to make a modest allowance for the impairment in her home making
capacity that was likely caused by the injury sustained in the accident and
award the plaintiff $8,000 under this head of damage.

Special Damages

[320]     The plaintiff has presented a list of special damages totaling
$17,603.72.

[321]     The first item is a charge of $585 from the RehabMax clinic for user
fees charged between December 18, 2008, and June 27, 2009. I am satisfied that
the user fees incurred in the immediate aftermath of the plaintiff’s accident
were appropriate and she will have judgment for that sum.

[322]     The plaintiff claims for prescription medications totaling $631.50. The
defendant does not take issue with this claim.

[323]     The plaintiff claims $6,555 for child care/home support. The person who
provided these services was not called and the plaintiff’s husband testified
that she did not have any paid help after the accident. Finally, there is no
medical evidence to support such a claim.

[324]     I am not satisfied on the balance of probabilities that the evidence
warrants an award for this amount of money as an item of special damages. Though
the plaintiff produced some receipts curiously reflecting the same $795 each
month from April 2009 to November 2009 and $195 in March 2010, the
contradictions between her evidence and that of her husband cannot be
reconciled. Based on my overall view of the plaintiff’s evidence noted above, I
am not satisfied that these damages have been proven.

[325]     The plaintiff claimed $78.15 for a back support belt and knee brace.
The evidence did not relate that expense to an injury sustained in the
accident. It will not be allowed as a special damage claim.

[326]     The plaintiff claimed $2,486 for a bed that she contends was purchased
to facilitate her post-surgical recovery. The bed was not purchased on the
recommendation of her surgeon, Dr. Gittens. Dr. Benitez had written a
note supporting its purchase and testified that it would assist in improving
her restorative sleep. Still, it is clear she was having sleep difficulties
before the accident. In view of my findings concerning the surgery and in the
absence of a recommendation from Dr. Gittens, the plaintiff has not proven
on the balance of probabilities that the acquisition of this bed was medically
necessary because of the plaintiff’s motor vehicle accident related injuries.

[327]     The plaintiff claims $3,285 for MRI scans performed at the
recommendation of her treating physician. The defence says it should not be
responsible for those costs concerning a disc herniation because that injury
was not related to the accident. In my view, it cannot be said that the
decision to have the MRI scans performed should not be paid because the
ultimate diagnosis of disc herniation was not related to the accident. The
plaintiff was complaining of back pain at the time and her doctor formed the
opinion that this investigatory procedure was necessary in the circumstances.
If she had not been involved in the accident, she would not likely have
experienced low back pain at the levels described after the accident. Thus, in
my view the MRIs were investigatory procedures that were undertaken because she
had been in the accident, notwithstanding that the findings showed a condition
unrelated to the accident. I am prepared to allow $3,285 as a reasonable
special damage claim.

[328]     The plaintiff obtained medications from Nicaragua valued at $62.04. The
defendant contends this expense was unrelated to the motor vehicle accident;
however the medication was used by the plaintiff’s treating physician to
address accident concerns and in my view would not have done so if he were of
the opinion that the medications were not medically necessary. As such, this
expense is allowed.

[329]     Finally, the plaintiff claims $3,850.63 for taxi fares and mileage
between 2008 and February 3, 2015. The examination of the taxi receipts
contained in the plaintiff’s evidence indicates that the plaintiff travelled to
and from various medical offices, hospitals, therapy clinics and other
consultants. I accept that the plaintiff should recover those costs associated
with obtaining treatment; some of the charges relate to the plaintiff’s
attendance with independent medical examiners retained by the defendant.

[330]     In my view, those attendances for IME’s are not proper special damage
claims; they are more properly claims in the litigation or should have been
paid as a condition of the plaintiff’s attendance. They should be dealt with in
conjunction with the assessment of costs.

[331]     A determination of the appropriate mileage is further troubled by the
fact that the plaintiff was seeking an in trust award for her husband who
purportedly drove her to and from many appointments.

[332]     The plaintiff may be entitled to a significant award for these
transportation costs; however, I am unable to provide any accurate assessment
of the amount she should be allowed as special damages based on the evidence
before me. If the parties are not able to resolve the question of the latest
transportation costs based on the reasons herein, the parties will have liberty
to set this matter down for further argument on the question of the amount that
should be allowed to the plaintiff.

Summary

[333]     The plaintiff will have judgment as follows:

a.     non-pecuniary damages: $70,000;

b.     cost of future care: $50,000;

c.     impairment to housekeeping capacity: $8,000;

d.     special damages: $3,932.04.

[334]     The plaintiff’s claim for future income loss/impaired earning capacity is
dismissed, as are her claims for in trust awards on behalf of her husband and
daughter.

[335]     If the parties are unable to agree on a disposition concerning costs of
this proceeding, then they are at liberty to make further submissions on costs.
In my view, the disposition of the defendant’s argument concerning. Dr. Benitez’s
report should be dealt with later. If no submissions are made by either party
by March 15, 2016, the plaintiff will have her costs at Scale B.

“The Honourable Mr. Justice Armstrong”