IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160322

Docket: M152276

Registry:
New Westminster

Between:

Tammy
Dorsey

Plaintiff

And

Mamta
Bhindi, Rita Warlow, and
476060 BC Ltd. dba Mercedez Benz Finance Service Canada

Defendants

Before:
The Honourable Madam Justice Warren

Reasons for Judgment

Overview

[1]            
The plaintiff, Tammy Dorsey, seeks damages arising from a four-vehicle car
accident on April 3, 2013. She was driving her
Geo Tracker and was stopped at a red light behind other stationary vehicles.  A
Mercedes-Benz rear-ended the vehicle behind her, which hit the rear end of her vehicle
pushing it into the vehicle in front of her. Liability is not in issue.

[2]            
Ms. Dorsey was 49 years old
at the time of the accident.  She was employed as a social worker at Peace Arch
Hospital and had just returned to full-time duties following an incident at
work, in December 2012, during which she
slipped and suffered injuries to her shoulders, neck, and back.

[3]            
Ms. Dorsey testified that
when her vehicle was struck she felt a severe force behind her; her body and
her vehicle shifted to the left; her left shoulder hit the door of her vehicle;
and then her vehicle hit the vehicle in front of her.  She said there were
three impacts, first when the rear of her vehicle was hit, second when her
shoulder hit the door, and third when the front of her vehicle hit the vehicle in
front of her.  She got out of her vehicle after the accident.  She then moved
her vehicle off the road, exchanged information with the other drivers, and
drove home.  Her vehicle sustained damage to the front and back bumpers, the
front licence plate, and the lower portion of the front grill.  The estimate to
repair her vehicle was $1,144.32.

[4]            
Ms. Dorsey testified that she
did not feel any symptoms immediately following the accident, but within
approximately two hours she felt pain, tightness, stiffness, and tingling in
her back, legs, and arms.  She claims that while her symptoms have waxed and
waned, and changed in nature to some extent, she continues to suffer from
constant pain.  In particular, she claims to suffer from constant low back pain
and less severe but bothersome neck, mid-back, and upper back pain.  Although
she did not actually testify about having significant shoulder pain, she claims
to have sustained a shoulder injury in the accident that has resulted in
adhesive capsulitis, which is also known as frozen shoulder.  She says these
injuries have caused or contributed to psychological conditions including
depressive symptoms and anxiety.  She claims that her symptoms have left her
permanently disabled from working.

[5]            
Ms. Dorsey continued to work
for approximately 18 months after the accident, although she took occasional
days off due to pain.  She stopped working completely in September 2014
following several stressful events at work that included a very strained
interpersonal relationship with a co-worker, a complaint made against her by
another co-worker, and a patient complaint that resulted in formal discipline. 
She has been receiving long-term disability benefits since April 2015.

[6]            
The defendants dispute the nature
and extent of the injuries Ms. Dorsey claims to have suffered in the
accident and the effects that she says those injuries have had on her life. 
The defendants assert that Ms. Dorsey’s claim depends on the credibility
of her subjective reports of pain and that she is not credible.  The defendants’
position is that the accident caused a temporary aggravation of the injuries
Ms. Dorsey suffered in the slip at work in December 2012.  The defendants
submit this aggravation lasted no longer than six months and that
Ms. Dorsey had returned to her pre-accident condition by October 2, 2013,
when she suffered another injury during a chiropractic treatment.

[7]            
The critical questions are what injuries
were caused by the accident; whether Ms. Dorsey has any ongoing physical
symptoms; if so, whether those symptoms were caused by the accident or whether
they have other causes including pre-existing degenerative joint disease, the
injury she suffered at work, and/or the subsequent chiropractic treatment; and,
if her ongoing physical complaints were caused by the accident, whether those
physical complaints interfere with her ability to work or whether she is unable
to work for reasons unrelated to the accident.

[8]            
Ms. Dorsey called her family physician, Dr. David Zayonc, who
testified about his treatment of her but who did not write an expert report
and, accordingly, did not offer any opinion evidence.  She also called her
treating chiropractor, Dr. Grant O’Neill.  Dr. O’Neill testified
about his treatment of her and he wrote two expert reports in which he provided
a diagnosis and prognosis, an opinion concerning the cause of her conditions,
and an opinion concerning her requirements for future care.  Ms. Dorsey
called a co-worker named Carol Digby.  Finally, she relied on the expert
evidence of an economist named Howard Teasley.

[9]            
Dr. Robin Rickards, a specialist in orthopaedics, was called by the
defendants.  Dr. Rickards wrote an expert report providing a diagnosis and
prognosis and opinions concerning the cause of Ms. Dorsey’s conditions. 
The defendants also called Ms. Dorsey’s treating physiotherapist, Andrea
Chen, and a counselor Ms. Dorsey saw in 2014 and 2015, Lorraine Klassen.

The Plaintiff’s Credibility

[10]        
To the extent that Ms. Dorsey’s claim involves subjective
complaints of pain, it is particularly important to exercise caution about and
examine her evidence carefully: Price v. Kostryba (1982), 70 B.C.L.R.
397 at 399 (S.C.).  Among other things, if her account is not convincing, the
hypothesis upon which her medical evidence rests may be undermined: Samuel
v. Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras. 15, 43-44.

[11]        
The factors to be considered when assessing credibility were summarized
in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff’d 2012
BCCA 296, leave to appeal ref’d [2012] SCCA No. 392.  They include the
firmness of the witness’s memory, the ability of the witness to resist the
influence of interest in modifying her recollection, whether the witness’s
evidence harmonizes with independent evidence that has been accepted, whether
the witness changes her evidence during direct examination and
cross-examination (or between examination for discovery and trial) or is
otherwise inconsistent in her recollections, the witness’s demeanor, and
whether the witness’s evidence seems generally unreasonable, impossible, or
unlikely.

[12]        
A consideration of these factors leaves me with grave concerns about Ms. Dorsey’s
credibility.

[13]        
Her evidence about the nature and intensity of her symptoms, and their
progression over time, was extremely vague and at times evasive.  She testified
in only very general terms about the pain and other symptoms she experienced
after the accident.  She said she could not recall how she was feeling six
months after the accident, just prior to the incident on October 2, 2013 when
her symptoms were exacerbated following a chiropractic session.  In her direct
examination, she did not mention having shoulder pain following the accident
yet her frozen shoulder diagnosis appears to be central to her claim that she
is permanently disabled from working.

[14]        
When asked, in direct examination, about the injuries she suffered in
the slip at work, Ms. Dorsey said that she "believes" she was
injured around her neck area.  In fact, she attended at the emergency
department of Peace Arch Hospital (her workplace) following that incident, saw
Dr. Zayonc on several occasions over the next few weeks, underwent regular
physiotherapy and massage therapy treatments, and took several weeks off work
after which she participated in a graduated return to work program, returning
to full hours and duties just days before the accident.  In the circumstances,
it is implausible that she was unable to recall, in more detail, the nature of
the injuries she sustained in the slip at work.

[15]        
Ms. Dorsey’s testimony at trial was shown to be materially
inconsistent with evidence she gave approximately 18 months earlier during an
examination for discovery.  As just noted, she initially testified at trial that
she "believed" she suffered an injury around her neck area in the
slip at work.  In cross-examination, however, she acknowledged that she injured
her shoulders in that incident.  When asked in cross-examination whether she
also injured her upper and mid-back in the slip she said she did not think so
and then she said she could not recall.  When asked in cross-examination
whether she had tingling symptoms before the accident she said she did not.  When
asked in cross-examination whether she had difficulty sitting after the slip at
work she said she did not recall.  However, in her examination for discovery
she said that she thinks her "upper and middle back got pulled, like,
stretched" in the slip at work, that she was sore in that area, that she
had tingling in her limbs immediately after the slip, that she reported to
Dr. Zayonc that she was having difficulty sitting for more than half an
hour due to the pulled muscles in her back, and that she had difficulty bending
over after the slip.

[16]        
The evidence Ms. Dorsey gave at her examination for discovery about
her symptoms following the slip at work was consistent with her contemporaneous
report to her physiotherapist, Andrea Chen.  Ms. Chen testified that when
Ms. Dorsey first consulted her after the work injury in December 2012, she
reported experiencing neck, upper back, and shoulder pain right away, and
continuing constant pain, as well as pain with bending, leaning, reaching, and
sitting or standing for too long.  She also told Ms. Chen she had
headaches in the forehead area and numbness and tingling in both hands, both hips,
and the back of the neck.

[17]        
Similarly, the evidence Ms. Dorsey gave in her examination for
discovery about her symptoms following the slip at work was consistent with her
contemporaneous report to Dr. Zayonc.  He testified that she reported
having strained her neck, shoulders and back in a slip at work, and that she
complained of tingling down her back and headaches after the slip.  His
observations initially included decreased range of motion and extension in the
cervical and upper thoracic spine, mostly on the left side.  He recommended
analgesics, muscle relaxants, and anti-inflammatories.  He also suggested she
attend physiotherapy and massage therapy.

[18]        
Some aspects of Ms. Dorsey’s evidence were unreasonable.  For
example, she refused to acknowledge that her job as a hospital social worker could
be stressful, even though she described her duties as including being present
when patients are first informed that they have a terminal illness; grief
counselling for those patients and their family members; counselling family
members of patients who have died, including those who died unexpectedly in the
emergency room; and counselling mothers whose newborn babies have been taken
into care.

[19]        
As already discussed, at trial Ms. Dorsey claimed she could not
clearly recall the injuries she suffered in the slip, but she insisted that she
was certain she was symptom free by the time she returned to full-time duties
just prior to the accident.  She insisted that she would not have returned to
work following the slip if she was still suffering symptoms but she also
claimed that she went to work after the accident even though she was in
significant pain.  When asked, in cross-examination, whether her accident-related
symptoms had improved by the fall of 2013, she said she was certain they had
not improved by then because she would not have continued with therapy if the
symptoms had improved.  Yet, she maintained that she was symptom free in late
March 2013 when she returned to work following the slip even though she was
still attending physiotherapy and massage therapy for injuries suffered in the
slip.  She also claimed, in cross-examination, that the injuries she suffered
in the slip were not similar to those she suffered in the accident even though
she had already testified that she did not recall the injuries she suffered in
the slip.

[20]        
There is no dispute that after the slip in December 2012,
Ms. Dorsey was off work completely for several weeks and did not return to
full-time duties until the end of March 2013.  Yet when she was asked in
cross-examination whether she returned to full-time duties a little more than
three months after the slip she said, "I don’t know".

[21]        
Ms. Dorsey testified that she went to the emergency department of
Peace Arch Hospital the morning after the accident, before reporting for work. 
She said she saw a female doctor there whose name she could not recall.  She
said the doctor gave her a prescription for medication.  However, there is no
record of Ms. Dorsey having attended at the emergency department that day. 
An MSP claims history report indicates that the only medical practitioner who
billed for seeing Ms. Dorsey that day was Dr. Zayonc.  This is in
contrast to the documentation that exists with respect to Ms. Dorsey’s
slip at work on December 20, 2012.  A document entitled
"Emergency/Ambulatory Care Clinical Record" in Dr. Zayonc’s
clinical records indicates that Ms. Dorsey attended at the emergency department
of Peace Arch Hospital on December 20, 2012 after slipping on a wet floor, that
she saw a physician named Dr. Esther Grunau on that day, and that
Dr. Grunau gave her a prescription for medication.  The MSP claims history
report indicates that Dr. Grunau billed for the services she provided to
Ms. Dorsey on December 20, 2012.  Of course, it is possible that
Ms. Dorsey simply got mixed up about what she did following the two
events.  However, when presented with the documentary evidence that clearly
indicates she went to the emergency department following the slip, but not
following the accident, she would not concede the possibility of a mix up and continued
to insist that she saw a doctor in the emergency department the day after the
accident.

[22]        
Finally, and most concerning, I find that on several occasions,
Ms. Dorsey attempted to mislead the court.

[23]        
In cross-examination, Ms. Dorsey acknowledged that in March 2014
she joined a walking group at work but she said she did not actually
participate in any walks.  However, Ms. Dorsey’s physiotherapist, Andrea
Chen, testified that Ms. Dorsey told her that she had joined the walking
club at work and was getting out walking as much as twice a day.

[24]        
In June 2014, Ms. Dorsey started seeing a counselor named Lorraine
Klassen.  When she was asked, in cross-examination, to confirm that she
initiated this counselling because of stress at work and resulting anxiety, she
said the work issues were only part of the reason and that the symptoms she was
continuing to experience as a result of the injuries she sustained in the motor
vehicle accident were also part of the reason.  However, Lorraine Klassen
testified that the only issues they discussed during the counselling sessions
were the work issues and they never discussed any of Ms. Dorsey’s injuries
or her physical health.  Ms. Klassen did not recall discussing an accident
with Ms. Dorsey.  Ms. Klassen testified that at her first visit with
Ms. Dorsey in June 2014, Ms. Dorsey was in a lot of distress as a
result of changes in her workplace and particularly about an inappropriate
comment she had made to a co-worker.  She testified that in September 2014,
Ms. Dorsey had "a meltdown" and was "unable to cope". 
She testified that Ms. Dorsey returned to see her in January 2015 and
continued to complain about anxiety, panic attacks, and feeling overwhelmed.

[25]        
Ms. Dorsey said she stopped seeing her chiropractor, Dr. O’Neill,
in mid-September 2014 because by then she had stopped working and she could no
longer afford the treatments.  She resumed treatments with Dr. O’Neill in
April 2015.  Dr. O’Neill’s records indicate that she did not pay for any
treatments after September 11, 2014, including those she had after April 2015. 
When this was pointed out in cross-examination, Ms. Dorsey said that when
she went back to Dr. O’Neill in April 2015, he asked why she had not been
coming for treatment and when she told him she could not afford the treatment
he reminded her that they had previously agreed that he would provide treatment
pursuant to a "direction to pay" whereby he would be paid out of the
proceeds of this action.  At trial she claimed that she had forgotten about
this arrangement and had therefore needlessly stopped going to chiropractic
treatments.  She referred to this as "funny" and "a great error
on [her] part".  It is implausible that Ms. Dorsey forgot that
Dr. O’Neill had agreed to continue to treat her, without charge,
particularly given she claims to have been in so much pain at the time that she
had to stop working.  It is much more likely that she stopped going for
chiropractic treatments because she no longer needed them.

[26]        
I was particularly troubled by the evidence Ms. Dorsey gave in her
direct examination concerning the reasons she stopped working in September 2014. 
This testimony clearly left the impression that she stopped working because of
the severe pain she was continuing to experience as a result of the injuries
she suffered in the accident.  She testified that she was also suffering from
depressive symptoms and lack of concentration but she attributed this to the
pain she was continuing to suffer from the accident.  It was not until cross-examination
that she acknowledged having significant interpersonal issues at work,
including an interaction with a co-worker, and a complaint from a patient that
resulted in Ms. Dorsey being suspended.  As already discussed,
Ms. Klassen testified that she and Ms. Dorsey only discussed the
work-related issues and that, in September 2014, Ms. Dorsey had a meltdown
and was unable to cope.  Shortly after Ms. Dorsey stopped working she
applied for long-term disability benefits.  A long-term disability claim form completed
by Dr. Zayonc in January 2015, stated a primary diagnosis of anxiety,
depression, and frozen shoulder with an onset of symptoms in September 2014,
roughly 18 months after the accident.  The long-term disability claim form did
not mention the accident at all and noted neck and back pain as a secondary
diagnosis that was not a contributing factor to the application for long-term
disability.

[27]        
In summary, in her testimony at trial, Ms. Dorsey understated the
severity of the injuries she suffered in the slip at work and the work stress
she was experiencing in 2014 and exaggerated the impact of the accident on her
physical condition and her ability to work.  I was left with a general concern
that her testimony was motivated more by her interest in the outcome of this
case than the desire to be candid.  Accordingly, I am unable to give any weight
to Ms. Dorsey’s testimony unless it is corroborated by independent
evidence that I do accept.

Before the accident

[28]        
Very little evidence was led about Ms. Dorsey’s lifestyle prior to
the accident.  She testified that she used to do her own housecleaning and she
worked as a social worker at Peace Arch Hospital.

[29]        
 On December 20, 2012, Ms. Dorsey slipped on a wet floor at work. 
She braced herself in the door jam with both arms and did not fall to the
ground.  As already noted, she initially testified that she
"believed" she suffered an injury around her neck area.  In cross-examination,
however, she agreed that she injured her shoulders in this incident.  As
already noted, her evidence about the injuries she suffered in the slip at work
was quite different during her examination for discovery.  At that time, she said
that she pulled or stretched her upper and middle back; that she was sore in
that area; that she had tingling in her limbs after the slip; that she reported
to Dr. Zayonc that she was having difficulty sitting for more than half an
hour due to the pulled muscles in her back; and that she had difficulty bending
over after the slip.  The evidence she gave at her examination for discovery
about her symptoms after the slip at work was consistent with her
contemporaneous report to both Dr. Zayonc and to Ms. Chen.  Both Dr.
Zayonc and Ms. Chen testified that she also complained of shoulder pain
following the slip at work.

[30]        
I find that Ms. Dorsey injured her neck, back, and shoulders in the
slip at work and that she subsequently suffered from pain in these areas as
well as numbness and tingling in her hand, hips, neck, and back.  I also find
that these injuries significantly interfered with her ability to sit and to
bend.

[31]        
Dr. Zayonc recommended that Ms. Dorsey attend physiotherapy
and massage therapy.  By January 2013, she was attending regular physiotherapy
sessions with Ms. Chen and by February 2013 she was also attending massage
therapy.

[32]        
Ms. Dorsey was off work completely for some time following the slip
at work and she then participated in a gradual return to work program,
returning to full hours and full duties at the end of March 2013, just a few
days before the accident.  Ms. Dorsey testified that she is not sure how
long she was completely off work after the slip but she thought it was about a
month or a month and a half.

[33]        
On January 14, 2013 (about four weeks after the slip and about six weeks
before the accident), Ms. Dorsey filled out questionnaires at
Ms. Chen’s request indicating that she was continuing to suffer significant
back and neck symptoms.

[34]        
Dr. Zayonc testified that in February 2013, Ms. Dorsey was
still reporting difficulty moving and he advised her to continue therapy and to
increase the dosage of the muscle relaxants.

[35]        
Ms. Chen testified that at a visit with Ms. Dorsey on March
20, 2013, she observed limited range of motion of the cervical and lumbar spine
as well as the shoulders.  Ms. Dorsey reported that she was able to sit
for short durations and was sore by mid-day at work.

[36]        
The last time Dr. Zayonc saw Ms. Dorsey before the accident
was on March 22, 2013.  In a report to WCB he advised that as of that date, she
was "[g]etting better overall" but still had "some tightness and
disco[m]fort" and "[h]ypertonic traps and rhomboids".  In
cross-examination, he confirmed that she was still symptomatic as of March 22,
2013.  Ms. Dorsey did not deny telling Dr. Zayonc on that day that
she was still suffering from tightness and discomfort and she said that if she
told him that it was true.

[37]        
Ms. Dorsey attended massage therapy and physiotherapy treatments
regularly following the slip at work.  The last massage therapy treatment prior
to the accident was on March 27, 2013.  The last physiotherapy appointment
prior to the accident was also on March 27, 2013 and, at that time,
Ms. Chen was recommending that Ms. Dorsey continue physiotherapy for
the injuries suffered in the slip.

[38]        
On April 10, 2013 (after the accident), Ms. Chen submitted a
request to WCB for funding for an additional six to eight physiotherapy
visits.  This request was based on Ms. Chen’s March 20, 2013 assessment of
Ms. Dorsey (prior to the accident).  It documented continuing pain and
some decrease in Ms. Dorsey’s range of motion in the cervical and lumbar
areas and shoulder, and reported functional limitations in sitting for more
than short durations and soreness by mid-day at work.

[39]        
On the basis of the forgoing, I find that Ms. Dorsey’s symptoms
from the injuries she suffered in the slip at work had improved enough by late
March 2013 that she was able to return to full-time work, but she remained
symptomatic.  Specifically, she was continuing to experience pain and some
limits in her range of motion in the areas of her cervical and lumbar spine,
and in her shoulders, and although she was working she could sit for only short
durations and was sore by mid-day.  This was her condition at the time of the
accident on April 3, 2013.

After the accident

Physical symptoms and treatment

[40]        
As already discussed, Ms. Dorsey testified that she went to the
emergency department of Peace Arch Hospital the morning after the accident,
then to work, and then to see Dr. Zayonc.  For the reasons already
discussed, I find that she did not do that.  I find that she went to work and
then she went to see Dr. Zayonc.

[41]        
As already noted, Ms. Dorsey testified that within about two hours
of the accident she felt pain, tightness,
stiffness, and tingling in her back, legs, and arms.  She said the tingling
stayed about the same for a week or two and then it would come and go in her
legs, feet, arms, and hands.  She did not mention feeling any shoulder pain
immediately following the accident.  She said she still feels some tingling in
her hands and back but not so much in her legs and feet.

[42]        
Ms. Dorsey gave very little evidence
about the ongoing nature of her symptoms or their progression since the
accident.  She said she continues to suffer from constant low back pain, less
intense neck pain, and frequent but not constant mid-back pain and upper back
pain.  Ms. Dorsey said that she began to suffer from foot pain sometime
after the accident, but it resolved about a year before the trial.  In her
direct evidence, she mentioned her shoulder only once and that was in response
to a question about why she was approved for long-term disability benefits in
early 2015.  She said she was approved because of severe neck, shoulder, and
back injuries that she suffered in the accident.  However, as already noted, in
January 2015, Dr. Zayonc filled in a report to support Ms. Dorsey’s
long-term disability claim.  On that form he stated her "primary
diagnosis" as "anxiety/depression, left adhesive capsulitis"
with an onset of symptoms in September 2014.  He also noted "mechanical
back and neck pain" as a "secondary diagnosis" and he ticked a
box on the form indicating that this was "not a contributing factor". 
Ms. Dorsey signed that form.

[43]        
Dr. Zayonc testified that when he saw Ms. Dorsey on April 4,
2013, the day after the accident, her initial primary complaints were cervical
stiffness, headache, and mobility.  His clinical notes also record complaints
of difficulty lifting arms and sore legs.  In a CL 19 form that Dr. Zayonc
completed for ICBC in late June 2013, he noted his initial objective findings
as hypertonic cervical and thoracic spine and decreased range of motion.  He
testified that "hypertonic" means tighter, increased tone.  He said
he considers this to be an objective finding but acknowledged there is a
subjective element to it.  He initially prescribed a muscle relaxant and an anti-inflammatory,
the same medication he had prescribed after the slip at work.

[44]        
Dr. Zayonc could not recall if he recommended Ms. Dorsey take
any time off work after the accident.  I will address the impact of her
injuries on her work in more detail below.  For now, it is sufficient to note
that she did not immediately take any time off work.  It is likely that during
the 18 months after the accident she took occasional days off as a result of
the injuries she suffered in the accident, but the evidence was not precise on
that point.  She continued to work until September 2014, but she has not worked
since then.

[45]        
Dr. Zayonc recommended chiropractic treatments, physiotherapy, and
massage therapy.  As already discussed, Ms. Dorsey had been attending
physiotherapy and massage therapy following the slip at work, and she continued
to attend without interruption.

[46]        
Ms. Chen’s records indicate that on Ms. Dorsey’s first
physiotherapy appointment following the accident she complained of headaches,
difficulty lifting her arms, upper and lower back pain, pins and needles in her
feet, and sore legs.  Ms. Chen completed a form for ICBC on June 3, 2013
in which she noted reduced range of motion in the cervical and lumbar spine but
made no mention of shoulder symptoms.

[47]        
Ms. Dorsey stopped attending physiotherapy with Ms. Chen in
June 2013.  She did not explain why she stopped attending.

[48]        
In the CL19 form, Dr. Zayonc stated that Ms. Dorsey’s previous
work injury "was back asymptomatic prior to collision".  In
cross-examination, he said that was based on what Ms. Dorsey told him at
or around the time he filled out the form in June.  However, as noted above, as
of March 22, 2013, approximately two weeks prior to the accident, she was still
reporting tightness and discomfort to Dr. Zayonc and he was still noting
hypertonic traps and rhomboids.  The CL19 form mentioned stiffness, pain on
movement, and numbness into hands as Ms. Dorsey’s current complaints. 
Dr. Zayonc listed "hypertonicity cervical, thoracic, lumbar,
paraspinals" as his current objective findings.

[49]        
There are no notations in Dr. Zayonc’s records, after the accident,
specifically of left frozen shoulder symptoms, and very few notations that
mention the shoulders at all.  The shoulders were not mentioned on the CL 19
form.  On April 9, 2013, Dr. Zayonc’s clinical records note decreased range of
motion “on shoulder abduction bilateral”.  In September 2013, he noted
“shoulders sore” and pain in shoulders and neck.  However, these references relate
to both shoulders and, as already discussed, they are very similar to Ms.
Dorsey’s reports of shoulder pain after the slip at work.

[50]        
Ms. Dorsey started attending chiropractic treatments with a
chiropractor named Dr. Herrewig on August 6, 2013.  Between then and
October 2, 2013 she had 11 chiropractic treatments with him.

[51]        
Dr. Zayonc testified that by September 2013, Ms. Dorsey was
reporting feeling 50% better.  In September 2013, Ms. Dorsey started
taking a yoga class but she said she had to stop after two or three sessions
because it caused her too much pain.

[52]        
Ms. Dorsey’s last visit with Dr. Herrewig was October 2, 2013. 
She testified that "her body responded poorly" to that session.  When
pressed for details, she said that within two hours of the session she was
unable to walk or stand, her legs were giving out, she was in pain, and
suffering tingling sensations.  She had to take three to five days off work. 
She said she did not go back to Dr. Herrewig because she thought he had
done something to cause those symptoms.

[53]        
Dr. Zayonc testified that at a visit on October 17, 2013,
Ms. Dorsey reported an exacerbation of symptoms following the chiropractic
treatment on October 2, 2013.  She told him that the chiropractor had
manipulated her lower back "aggressively" and within two hours she
was experiencing severe pain, difficulty walking, her legs were giving out, and
she had to take a week off work.

[54]        
On November 4, 2013, Ms. Dorsey saw Ms. Chen for the first
time since June 2013.  She told Ms. Chen that she had been seeing a
chiropractor once a week for a couple of months and that she had been feeling
okay for the first time in a year.  She then reported the incident in the
chiropractor’s office on October 2, 2013.

[55]        
Dr. Zayonc testified that by February 6, 2014, Ms. Dorsey
reported being able to do most activities.  By June 2014 she was reporting to
be 70% better but she also reported work stress and resulting anxiety.  Dr. Zayonc
recommended counselling for the work issues and in cross-examination he said
this had nothing to do with the accident.

[56]        
In August 2014, Ms. Dorsey started attending chiropractic
treatments with Dr. O’Neill.  As already discussed, she testified that she
stopped attending chiropractic treatments with Dr. O’Neill in September
2014 because she could not afford them.  As already discussed, in fact
Dr. O’Neill had offered to continue to treat her without charge provided
he is paid out of the proceeds of this action.

[57]        
Throughout the fall of 2014, Ms. Dorsey continued to report experiencing
pain to Dr. Zayonc.  However, the focus of her complaints was on her
anxiety and depressive symptoms, and Dr. Zayonc recommended that she take
time off work.  As already noted, she ultimately did stop working in September
2014.

[58]        
Ms. Dorsey continued to see Ms. Chen in September 2014 when
she stopped working, but Ms. Chen’s records do not contain any note indicating
that she told Ms. Chen that she was going off work.

[59]        
In the fall of 2014, Ms. Dorsey consulted a rehabilitation
specialist named Dr. Hershler.  He did not testify at the trial and no
expert report written by him was tendered by Ms. Dorsey.  Ms. Dorsey testified
that she went to see him about pain management because she did not like taking
pain medication.  After seeing him she began using a topical ointment called
Voltaren and she no longer takes pain medication.

Ms. Dorsey’s work and the decision to stop working in September 2014

[60]        
As already noted, until September 2014, Ms. Dorsey worked as a
social worker at Peace Arch Hospital.  She testified that there is a lot of
sitting and computer work associated with her job.  She has to make a lot of
phone calls and has to pick up charts, some of which are as big as a large
binder.  Sometimes she has to sit at a patient’s bedside and sometimes she has
to lean over while speaking to a patient who is hard of hearing.

[61]        
Ms. Dorsey testified that during her first appointment with
Dr. Zayonc after the accident, he gave her a note stating that she needed
a few days off work.  However, she did not take any time off immediately.  Her
evidence as to how much work she missed during the 18 months after the accident
was vague.  She said that she eventually took between three and five days off
as a result of the injuries she suffered in the accident and that there were
other occasions she took time off due to back pain and her inability to sleep,
but she could not be more precise about when she missed work or how much time
she missed.  She also acknowledged that during the 18 months between the
accident in April 2013 and when she stopped working completely in September
2014, she took time off work for reasons unrelated to the accident, including
the sudden death of her brother-in-law.

[62]        
Dr. Zayonc could not recall whether he recommended that
Ms. Dorsey take time off work following the accident.  There is a note in
his clinical records indicating that Ms. Dorsey missed two to three weeks
of work between the accident, in April 2013, and February 21, 2014, but the
note does not indicate the reason(s) she missed that work.  Another note in
Dr. Zayonc’s records indicates he recommended she take a week off work in
May 2013 following the death of her brother-in-law.  There is another note
indicating that he recommended she take a few days off work, around June 12,
2014, due to stress and anxiety.  As addressed in more detail below, by June
2014, Ms. Dorsey was suffering from significant work-related stress that
was unrelated to the accident.

[63]        
Ms. Dorsey testified that she "soldiered on" at work
after the accident.  She said she felt duty-bound to go to work after the
accident because she had missed a lot of work after the slip and had just returned
to full duties.  She testified that her employer was flexible and attempted to
accommodate her.  Her supervisor, Ms. Digby, facilitated the acquisition
of a new chair and helped her set up her workspace to be more ergonomically
sound.  She was permitted to take "mini breaks", about once every 30
minutes, during which she would get up and walk around.  She had the use of the
nurses’ staff room which she used a couple of times a month to lay down.  She
got a headset for her phone so that she could speak without holding the
receiver and could stand and walk around while on the phone.

[64]        
Ms. Digby was Ms. Dorsey’s supervisor at the time of
Ms. Dorsey’s slip at work and she continued to be her practice leader
until November 2013 when Ms. Digby transferred to a different position in
another hospital.  Ms. Digby testified that before the accident,
Ms. Dorsey was a dedicated, empathetic, effective, and efficient social
worker.  After the accident, she said she noticed changes in Ms. Dorsey’s
work and, specifically, she observed Ms. Dorsey standing and re-adjusting
her position frequently.

[65]        
From about the fall of 2013, things began to deteriorate for
Ms. Dorsey at work.  In September 2013, she started working in a new area
of the hospital, where she had to interact with an occupational therapist who
she considered to be overstepping the bounds of his authority.  This caused her
considerable stress.  In November 2013, Ms. Digby, who had been supportive
of her, left to take a new job at another hospital.  In the spring of 2014,
Ms. Dorsey made a racially derogatory comment in a conversation with a
co-worker that was reported by the co-worker to management.  On June 10, 2014,
a patient complained about Ms. Dorsey’s conduct at work.  As already
discussed, on June 12, 2014, she initiated counselling with Lorraine Klassen
for work-related stress.  She underwent meetings with management as a result of
the patient complaint and, on June 17, 2014, she received a half day suspension
from work.  She acknowledged that all of this caused her a lot of stress.  She
took some additional time off work after the suspension.

[66]        
By about August 2014, Ms. Dorsey was moved to a new position at the
hospital because of the conflict with the occupational therapist.  By that time
she had been working for nearly a year in a very high conflict environment.

[67]        
Ms. Dorsey testified that by September 2014, she was unable to
continue working because the neck, shoulder, and back injuries she suffered in
the accident prevented her from fulfilling her duties.

[68]        
In March 2015, Ms. Dorsey’s long-term disability insurance provider
sent her to see a psychiatrist named Dr. Buchanan.  Dr. Buchanan did
not testify at trial.

[69]        
In April 2015, Ms. Dorsey was approved for long-term disability
benefits.  Since then she has been receiving disability benefits in the amount
of approximately $3,000 per month.

The Expert Medical Evidence

Dr. Grant O’Neill

[70]        
The only medical opinion evidence tendered by Ms. Dorsey was that
of her treating chiropractor, Dr. Grant O’Neill.  He authored two reports.

[71]        
In Dr. O’Neill’s first report, dated September 20, 2014, which was
based on an assessment he conducted on August 19, 2014, he expressed the
following opinion:

Ms. Dorsey presented with
signs and symptoms consistent with an acceleration/deceleration syndrome and
with the ongoing symptoms could be deemed late whiplash syndrome.  Given the
nature of the trauma that the patient sustained and the complaints subsequently
arising, the motor vehicle collision on the above date is the logical medical
etiology.  She sustained injury to the left shoulder girdle, facet joints,
muscles and ligaments of the predominantly the left cervical spine, upper back
and shoulder.  She currently has cervical facet syndrome, Cervicogenic
headaches, frozen shoulder and myofascial pain.  The left foot pain is likely
idiopathic.

[72]        
He referred to orthopaedic testing as indicating that "the pain is
from injuries not merely arising from muscle strain or a so-called soft tissue
injury, more so the deeper structure such as facet joints".

[73]        
Dr. O’Neill’s prognosis was guarded.  In his view, some permanent
impairment is to be expected because the symptoms did not resolve within a
reasonable period.  He recommended a functional capacity evaluation and said
Ms. Dorsey may require assistance for heavier cleaning, housework, and
repair tasks.

[74]        
In Dr. O’Neill’s second report dated April 17, 2015, which was
based on a re-evaluation on April 7, 2015, he expressed the similar view that
"[a]s a result of the MVC related injuries there is chronic pain, loss of
range of motion and point tenderness".  He commented that ongoing
symptomology "2 years post injury is associated with negative
outcomes".  He made recommendations for future care including chiropractic
treatments, an ObusForme or similar back support, home support care for
cleaning and maintenance, the three-month kinesiology program, back/shoulder
support wear, and ergonomic counselling and assessment.

[75]        
I found Dr. O’Neill’s reports and his testimony at trial to be
generally unhelpful.  There are three reasons for this.

[76]        
First, Dr. O’Neill did not specifically address, in his reports,
the possibility that the injuries Ms. Dorsey suffered in the slip at work
were contributing to the ongoing symptoms that she reported to him.  This is
because he was under the misapprehension that she was healthy and essentially
asymptomatic prior to the accident.  In this regard, his September 20, 2014
report reads:

History Prior to MVC

1.         Ms. Dorsey was in generally good health.  She
worked full time as a Social Worker and enjoyed activities such as skiing,
aerobics, snow shoeing, watersports, walking and dancing.  She cared for her
grandchildren and did activities with them including many of those listed as
well as playing at the park and amusement park rides.

2.         Ms. Dorsey had a
prior work related injury December 20, 2012 where she slipped on the floor at
work.  She did physiotherapy until April 10, 2013 and was released with no
reported factors delaying recovery.  She was healthy and essentially
asymptomatic, working full time and enjoying her activities of daily living
prior to the MVC.

[77]        
This presents an overly optimistic view of Ms. Dorsey’s health just
prior to the accident.  At trial, Dr. O’Neill confirmed that his causation
opinion was based on the temporal connection between the accident and his
understanding of the onset of the symptoms and he emphasized that
Ms. Dorsey was essentially asymptomatic prior to the accident. 
Accordingly, that she was in fact symptomatic prior to the accident undermines
his causation opinion.

[78]        
Dr. O’Neill testified that his assumption that Ms. Dorsey was
essentially asymptomatic was based on Ms. Dorsey’s self-report of her
history, the WCB form filled out by Ms. Chen just before or around the time
that Ms. Dorsey returned to work, and the CL 19 form filled out by
Dr. Zayonc in June 2013.  Ms. Chen’s report, which was based on a
reassessment on March 20, 2013—roughly two weeks before the accident—actually
indicated that Ms. Dorsey continued to have limited range of motion with
pain at the end of the ranges, was able to sit for short durations, and was
sore by mid-day at work.  Ms. Chen’s report actually recommended a further
six weeks of physiotherapy.  The CL 19 form filled out by Dr. Zayonc did
state that Ms. Dorsey "was back asymptomatic prior to collision"
but, as already noted, Dr. Zayonc testified that the comment was based on
what Ms. Dorsey told him when he filled out the report in late June 2013,
nearly three months after the accident.  In contrast, his clinical records
indicate that she remained symptomatic, complaining of "some tightness and
discomfort" as of March 22, 2013.

[79]        
Second, Dr. O’Neill did not have the report of x-rays on
Ms. Dorsey’s lumbar spine taken before the accident, in February 2013,
which Dr. Rickards did have and which he said showed pre-existing
degenerative changes in her lumbar spine before the accident.  That x-ray
report noted unremarkable facet joints, but Dr. O’Neill testified that
injury to the facet joints is often not apparent on an x-ray.  The point is
that the x-rays do indicate some pre-existing degenerative changes in the
lumbar spine.  This combined with Dr. O’Neill’s mistaken understanding
that Ms. Dorsey was asymptomatic prior to the accident significantly undermines
his opinion about the cause of her current condition.

[80]        
Third, Dr. O’Neill’s opinion concerning Ms. Dorsey’s physical
condition is heavily dependent on Ms. Dorsey’s subjective reports of her
symptoms and functionality.  For the reasons already expressed, I have
significant concerns about the credibility and reliability of her self-reports. 
Although Dr. O’Neill characterized at least some of the findings flowing
from his orthopaedic testing as objective, having considered his evidence
carefully, it is apparent that his findings depended very heavily on her
reports of pain in response to his physical maneuvers such as palpitations or
adjustments of her facet joints.  He emphasized his ability to re-create or
trigger pain but, as I understood his evidence, while a finding of
hypertonicity or tight muscle tone might be accurately characterized as
objective, Ms. Dorsey’s self-reports of pain were fundamental to his
conclusions.  Further, his comments concerning Ms. Dorsey’s functional
limitations were based entirely on her self-reports.

[81]        
Dr. O’Neill is entitled, and for all practical purposes required,
to take Ms. Dorsey’s complaints at face value.  The court is required to
take a more critical view.  My concerns about Ms. Dorsey’s credibility and
reliability generally and her apparent failure to accurately inform Dr. O’Neill
of her condition just prior to the accident significantly undermine Dr. O’Neill’s
opinions, as does the fact that he was apparently unaware of her pre-existing
degenerative changes in her lumbar spine.  In the result, I am unable to give
his opinions much if any weight.  Where his opinions differ from those of
Dr. Rickards, I prefer Dr. Rickards’ opinions.

[82]        
There is one final aspect of Dr. Neill’s reports that I wish to
mention.  Dr. O’Neill did not address, in his reports, the impact of the
October 2, 2013 chiropractic incident.  He was unaware that following that
chiropractic treatment, Ms. Dorsey reported pain in her lower back so
severe that she was losing sensation in her legs and falling down, and that she
had to take a week off work.  The defendants submit this undermines his
opinions.  I do not agree that this alone materially affects the weight to be
given to his reports.  The defendants’ expert, Dr. Rickards, must have
been aware of the exacerbation of her symptoms following the October 2, 2013
chiropractic treatment because it is referred to in Dr. Zayonc’s clinical
records which Dr. Rickards reviewed.  Yet, Dr. Rickards did not
consider the incident to merit any comment in his report.

Dr. Robin Rickards

[83]        
The defendants relied on the
expert opinion evidence of Dr. Robin Rickards.  Dr. Rickards is
certified as an orthopaedic surgeon by the Royal College of Physicians and
Surgeons of Canada.  He practiced as an orthopaedic surgeon for over 20 years
and he now focusses on non-surgical orthopaedic care and chronic pain
management.

[84]        
Dr. Rickards assessed
Ms. Dorsey on May 22, 2015, and then prepared an expert report.  No
objection was made to his qualifications as an expert in orthopaedic surgery
who is qualified to provide opinion evidence regarding the diagnosis,
causation, prognosis, and treatment of musculoskeletal injuries and chronic
pain.  No objection was made to the admissibility of any portion of his report.

[85]        
Dr. Rickards took a history from Ms. Dorsey, reviewed reports
of various diagnostic imaging (x-rays and MRI scans), and examined
Ms. Dorsey.  He diagnosed her as suffering from adhesive capsulitis or
frozen shoulder in the left shoulder; degenerative joint disease of the cervical
spine; and degenerative joint disease of the lumbar spine and probable lumbar
facet joint syndrome.  He expressed the following opinions with respect to the
cause of these conditions:

(a)      In
Dr. Rickards’ opinion, the adhesive capsulitis or frozen shoulder was not
caused by the accident.  This opinion was based on the fact that
Ms. Dorsey reported to him that the left frozen shoulder symptoms began
approximately one year after the accident and that she had pain in both
shoulders arising from the slip at work before the accident.

(b)      Dr. Rickards
concluded that Ms. Dorsey had symptoms of mechanical pain in the neck
region.  He found no evidence to suggest the nerve roots being pinched or squeezed
in the neck region and no hard evidence to suggest facet joints being irritated
in that area.  He noted that degenerative disease in the cervical spine was
seen on an x-ray in May 2013 and an MRI scan in August 2013.  He explained that
these changes take years to develop and in his opinion they were present prior
to the accident in April 2013.  He noted that Ms. Dorsey had significant
neck symptoms subsequent to the slip at work that persisted at least until
March 27, 2013, which was her last documented massage therapy visit.  He
expressed the opinion that the accident "may have exacerbated these
pre-existing symptoms" but that the accident "does not appear to be
the primary cause of these neck symptoms nor the primary cause of their
persistence".  He expressed the opinion that the current symptoms were
caused in major part by the slip at work and in part due to the pre-existing
cervical degenerative changes.

(c)      Dr. Rickards
concluded that Ms. Dorsey had symptoms in her low back area suggestive of
degenerative joint disease of the lumbar spine and probable lumbar facet joint
syndrome.  He said x-rays of the lumbar spine taken in February 2013 (before
the accident), and an MRI scan of the lumbar spine taken in December 2013
(after the accident) showed evidence of arthritic changes in the low back which
were present prior to the accident.  It was his opinion that Ms. Dorsey
had arthritic changes due to aging and natural wear and tear as well as
probable lumbar facet syndrome associated with the slip at work and that these
conditions may have been aggravated by the accident.

[86]        
In the prognosis section of his report, Dr. Rickards stated that
"[t]here is nothing to suggest that the motor vehicle accident of April 3,
2013 has significantly altered the natural history of this preexistent
arthritic change in cervical and lumbar areas".  At trial he clarified
that this meant that by the time he assessed Ms. Dorsey in May 2015, she
had returned to the same position she would have been in had the accident not
occurred.

[87]        
Dr. Rickards’ opinions were not undermined in cross-examination.  To
the contrary, in cross-examination he emphasized that Ms. Dorsey was still
receiving massage therapy and physiotherapy treatments in late March 2013, days
before the accident, as a result of the injuries she suffered in the slip.  He
acknowledged that although she had just returned to work at the time of the
accident, she took no time off work immediately following the accident which
suggested to him that the accident did not result in a significant setback.

What injuries and
conditions were caused or contributed to by the accident?

Legal Principles

[88]        
Ms. Dorsey must prove, on a balance of probabilities, that the
accident caused her injuries.  The test for causation, established in Athey
v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, 140 D.L.R.
(4th) 235, is the "but for" test.  This requires Ms. Dorsey to
establish that it is more likely than not that but for the accident she would
not have suffered the injuries underlying her claim.  Causation need not be
determined by scientific precision and is best answered with ordinary common
sense: Athey at para. 16.

[89]        
Ms. Dorsey does not have to establish that the accident is the sole
cause of the injuries.  If other potential causes exist, such as the
chiropractic treatment in this case, the plaintiff will still establish cause
in fact if she can prove a substantial connection between the injury and the
defendants’ conduct, beyond the de minimus range.  If she does so, the
defendants will be fully liable for the harm suffered, even if other causal
factors, which the defendants are not responsible for, contributed to the harm:
Athey; Blackwater v. Plint, 2005 SCC 58; Resurfice Corp. v.
Hanke, 2007 SCC 7; Clements v. Clements, 2012 SCC 32; Farrant v.
Laktin, 2011 BCCA 336.

[90]        
Where there are multiple potential causes of injury, the court must
consider whether the injuries are divisible or indivisible.  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.  Whether damage is divisible or
indivisible is a question of fact: B.P.B. v. M.M.B., 2009 BCCA 365 at
para. 74.

[91]        
The characterization of damage as divisible or indivisible is necessary
to ensure that the defendant is not held liable for injuries not caused by his
or her negligence: Athey at paras. 24-25.  If an injury is
indivisible, subject to contributory negligence, the defendant is liable to the
plaintiff for all damages attributable to that injury regardless of the
contribution of other causes: Athey at paras. 17-20.

Causation Findings

[92]        
Ms. Dorsey’s complaints may be conveniently grouped into three
categories:

(a)      frozen shoulder;

(b)      neck and back pain with associated tingling sensations; and

(c)      anxiety and depressive symptoms.

Frozen shoulder

[93]        
I accept Dr. Rickards’ opinion that Ms. Dorsey does have
adhesive capsulitis or frozen shoulder on the left side.  However,
Ms. Dorsey has not established that the accident caused or materially
contributed to that condition.  Dr. Rickards has expressed the opinion
that it did not.  This was based on the fact that she had suffered a shoulder
injury in the slip at work and that she told him that the frozen shoulder
symptoms began approximately one year after the accident.

[94]        
Dr. Rickards’ opinion is consistent with the long-term disability
claim form completed by Dr. Zayonc that included adhesive capsulitis as a
primary diagnosis but also indicated that the onset of the symptoms was
September 25, 2014, nearly 18 months after the accident. 
Dr. Rickards’ opinion is also consistent with the fact that Ms. Dorsey
made few complaints of shoulder symptoms to Dr. Zayonc and Ms. Chen following
the car accident and that she had complained of shoulder symptoms to both of
them following the slip at work.  Finally, Dr. Rickards’ opinion is
consistent with the fact that Ms. Dorsey did not testify to having exacerbated
shoulder symptoms following the accident.

[95]        
For these reasons, I find that Ms. Dorsey’s frozen shoulder was not
caused by the accident.

Neck and back symptoms

[96]        
I have found that Ms. Dorsey injured her neck, back, and shoulders
in the slip at work and that she subsequently suffered from pain in these areas
as well as numbness and tingling in her hand, hips, neck, and back.  I have
also found that her symptoms improved during the approximately 3 and a half
months between the slip and the accident but that at the time of the accident
she remained somewhat symptomatic.  Specifically, she was continuing to
experience pain and some limits in her range of motion of her cervical and
lumbar spine and her shoulders.  Although she was working, she could only sit
for short durations and was sore by mid-day.

[97]        
For all the reasons I have outlined, I have serious concerns about the
credibility of Ms. Dorsey’s evidence.  Nevertheless, Ms. Digby did
corroborate, to some extent, Ms. Dorsey’s claim of an exacerbation of her
symptoms following the accident.  Dr. O’Neill and Dr. Zayonc both
noted hypertonicity in the neck and back areas and the inference from
Dr. Rickards’ opinion is that her complaints of pain following the
accident are consistent with the pre-existing degenerative changes in her
spine.  Accordingly, despite my concerns about Ms. Dorsey’s testimony,
there is enough corroborating evidence that persuades me to accept that she did
experience worsened pain in the neck and back areas and some tingling in those
areas and her limbs following the accident.

[98]        
I accept Dr. Rickards’ opinion that Ms. Dorsey has ongoing
symptoms of mechanical pain in the neck and pain in the back that probably
involves lumbar facet joint syndrome, and that these conditions were initially
caused by the slip at work and contributed to by pre-existing degenerative
changes in her cervical and lumbar spine.  I also accept his opinion that these
symptoms were temporarily exacerbated or aggravated by the accident, but that
by the time he assessed her in May 2015, she had returned to the same position
she would have been in had the accident not occurred.

[99]        
The defendants submitted that the treatment Ms. Dorsey received
from Dr. Herrewig on October 2, 2013 was a subsequent intervening event
that broke the chain of causation with the result that I should find that the
accident caused a temporary aggravation that lasted no more than six months,
until October 2, 2013.

[100]     I accept
that Ms. Dorsey’s symptoms were exacerbated on October 2, 2013 as a result
of the chiropractic treatment.  However, I do not agree that this broke the
chain of causation.  The chain of causation will be broken where an intervening
event, rather than the defendants’ conduct, is considered the proximate or
legal cause of the subsequent injury.  This principle, known as novus actus
interveniens, recognizes that defendants should not be held liable for
objectively unforeseen consequences of their actions: Hussack v. Chilliwack
School District No. 33, 2011 BCCA 258 at para. 87; Yoshikawa
v. Yu, [1996] 8 W.W.R. 239 at para. 21, 21 B.C.L.R. (3d) 318 (C.A.).

[101]    
The question of whether an intervening event breaks the chain of
causation is a question of fact and it may depend on whether the plaintiff
acted unreasonably: Hussack.  As stated by Madam Justice Bennett in Hussack
at para. 82:

In essence, the decisions say
that if an injured party acts unreasonably and causes him or herself further
injury, the tortfeasor is not responsible for injuries suffered as a result of
the second injury.

[102]     It cannot
be said that Ms. Dorsey acted unreasonably in attending for chiropractic
treatment.  Dr. Zayonc recommended that she do so because of the injuries
she suffered in the accident.  The chiropractic treatment was another event
that contributed, for some time, to an exacerbation of Ms. Dorsey’s
existing symptoms but that further exacerbation cannot be viewed as an
unforeseen consequence of the defendants’ negligence.  To the contrary, any
injury Ms. Dorsey suffered as a result of the chiropractic treatment was
itself caused in part by the accident and was indivisible from the injuries she
suffered in the accident.  Accordingly, the defendants remain liable,
regardless of the contribution of another cause: Athey at paras. 24-25.

[103]     Ms. Dorsey
was off work for at least several weeks following the slip at work and did not
return to full-time duties for approximately 3 and a half months.  In contrast,
she returned to work immediately following the accident and, on the evidence
before me, took no more than occasional days off work as a result of her exacerbated
neck and back pain.  This suggests that the exacerbation caused by the accident
was not severe.

[104]     By
February 2014, Ms. Dorsey told Dr. Zayonc she was able to do most
activities.  By June 2014, she told him she was 70% better and he referred her
to counselling for stress and anxiety that he said was unrelated to the
accident.  By late September 2014, Ms. Dorsey’s primary complaints to
Dr. Zayonc were anxiety and depressive symptoms related to her stress at
work.  She had stopped seeing Dr. O’Neill and had replaced her pain
medication with Voltaren ointment.  She was receiving counselling from Ms. Klassen
and did not discuss any ongoing physical complaints with her.

[105]     In all the
circumstances, I find that the accident caused a temporary and relatively minor
exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that
gradually improved over about 18 months, and that by late September 2014
Ms. Dorsey’s condition had returned to its pre-accident state.

Psychological symptoms

[106]     I accept that by the spring of 2014, Ms. Dorsey
was experiencing anxiety and depressive symptoms, but there is no expert
evidence that suggests any link to the accident.  The symptoms did not arise
until approximately a year after the accident.  The weight of the evidence
suggests that they were related to significant stress at work caused primarily
by a challenging interpersonal relationship and complaints about
Ms. Dorsey by a co-worker and a patient that led to her suspension.  As
already noted, Dr. Zayonc’s evidence was that when he referred
Ms. Dorsey for counselling in the spring of 2014, he did not consider the
anxiety and depressive symptoms to be related to the injuries she suffered in
the accident.  For these reasons, I find that Ms. Dorsey has failed to
establish that the anxiety and depressive symptoms were caused or materially
contributed to by the injuries she suffered in the accident.

[107]     The foregoing is sufficient to dismiss any claim
related to these particular symptoms but I also note that the notice of civil
claim does not contain any allegation that Ms. Dorsey suffered
psychological symptoms of any sort as a result of the accident.

Conclusion on causation

[108]     In summary, I make the following findings on
causation:

·      
Ms. Dorsey injured her
shoulders in the slip at work, but did not exacerbate that injury in the
accident.  She currently suffers from frozen shoulder on the left side, but I
am not persuaded that the accident caused or materially contributed to that
condition.

·      
The accident caused a temporary and relatively minor exacerbation
of Ms. Dorsey’s pre-existing neck and back symptoms that gradually
improved over about 18 months, and by late September 2014 Ms. Dorsey’s
condition had returned to its pre-accident state.

·      
Ms. Dorsey has suffered from
some anxiety and depressive symptoms but I am not persuaded that the accident
caused or materially contributed to those conditions.

Assessment of
Damages

Non-pecuniary
damages

[109]     An award of non-pecuniary damages is intended to
compensate for pain and suffering, loss of enjoyment of life, and/or loss of
amenities.  In Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave
to appeal ref’d [2006] SCCA No. 100, the Court of Appeal set out a
non-exhaustive list of factors to be considered in determining the amount of
non-pecuniary damages to award.  That list includes the age of the plaintiff,
the nature of the injury, the severity and duration of the pain, the extent of
disability, the existence of emotional suffering, the loss or impairment of
life, the impairment of relationships, the impairment of physical and mental
abilities, and the loss of lifestyle.

[110]     I
have found that the accident caused a temporary and relatively minor
exacerbation of Ms. Dorsey’s pre-existing neck and back symptoms that
gradually improved over about 18 months, and by late September 2014
Ms. Dorsey’s condition had returned to its pre-accident state.  The
exacerbation was not so significant as to interfere with her ability to work.

[111]     As already indicated, very little evidence was led as
to Ms. Dorsey’s pre-accident lifestyle or the impact of the accident-related
injuries on her activities. Ms. Dorsey testified that her ability
to do heavy housework was compromised because of the pain in her neck and her
back.  She said she continues to use Voltaren for pain and does not take pain
medication.  She continues to walk, to stay off work, and to avoid strenuous
physical activities.  She continues to visit her children and grandchild in
Williams Lake.  She did not provide many examples of the kinds of activities
that she used to participate in but avoided after the accident, other than her
job and heavy housework.  In cross-examination, she said only that she has not
been skiing since December 2012, which is when she suffered the slip at work. 
It was not made clear how often she skied prior to December 2012.

[112]     Counsel
for Ms. Dorsey and counsel for the defendants have each provided me with a
number of cases that they submit assist in determining the appropriate award of
non-pecuniary damages.  Counsel for Ms. Dorsey submits that the
authorities support an award in the range of $200,000 to $235,000.  Counsel for
the defendants submit that the authorities support an award in the range of
$8,000 to $25,000.

[113]     The cases
referred to me by Ms. Dorsey’s counsel are not at all helpful.  They
concern plaintiffs who sustained far more serious injuries and whose conditions
impacted their lives to a much greater extent than I have found is the case for
Ms. Dorsey.  I will summarize three of them simply to demonstrate the very
significant difference between the injuries suffered by the plaintiffs in those
cases and the injuries I have found Ms. Dorsey suffered in this accident.

[114]     In Harrington
v. Sangha, 2011 BCSC 1035, the plaintiff suffered an injury to her left
brachial plexus leaving her with little movement in her left shoulder.  She
also suffered a traumatic brain injury that affected her cognition and might have
reduced her overall intelligence.  She had chronic pain and was left
unemployable.  Non-pecuniary damages of $210,000 were awarded.

[115]     In Felix
v. Hearne, 2011 BCSC 1236, the plaintiff suffered multiple injuries to her
neck, back, left shoulder, elbow, wrist, pelvis, knee, and ankle which
continued to affect her, were chronic, and were unlikely to improve.  She also
developed post-traumatic stress disorder and depression as a result of the
accident.  Non-pecuniary damages of $200,000 were awarded.

[116]     In Roussin
v. Bouzenad, 2005 BCSC 1719, the plaintiff suffered a brain injury and
fractured skull, facial lacerations and abrasions, a fractured left wrist, and
soft tissue injuries to her left hip, back and neck.  The physical injuries had
mostly resolved but the brain injury, which was mild, nevertheless led to a
loss of executive function, dizziness, vertigo, and other symptoms that prevented
the plaintiff from working in her pre-accident field of broadcast journalism.  Non-pecuniary
damages of $200,000 were awarded.

[117]     Of the
authorities cited by the defendants, Kearns v. Marples, 2009 BCSC 802,
bears the most similarity to this case.  In that case damages were assessed on
the basis that the 51-year-old plaintiff had suffered injuries to her
shoulders, right elbow, and neck that largely resolved within about eight
months, but for the right shoulder which remained injured and was predisposed
to further injury which occurred in two subsequent motor vehicle accidents.  These
injuries were superimposed on pre-existing conditions.  Non-pecuniary damages
of $25,000 were awarded. In that case, Justice Verhoeven referred to Job v.
Van Blankers, 2009 BCSC 230, where Justice Ker awarded non-pecuniary
damages of $25,000 to a plaintiff who had suffered a mild to moderate soft
tissue injury that resulted in sustained disability, pain and suffering, and
interfered with the plaintiff’s life for about 14 months: Kearns at
para. 134.

[118]     Awards of
damages in other cases provide a guideline only.  Ultimately, each case turns
on its own facts.  I have found that the accident caused a temporary and
relatively minor exacerbation of Ms. Dorsey’s pre-existing neck and back
symptoms that gradually improved over about 18 months.  The exacerbation was
not so significant as to materially interfere with her ability to work.  There
is very little evidence of any material impairment of her physical abilities or
significant loss of lifestyle.  Considering the principles discussed in the
cases referred to me and the criteria considered in the assessment of damages
in Stapley, I assess Ms. Dorsey’s non-pecuniary damages at $25,000.

Loss of Income
Earning Capacity

[119]     In Smith
v. Knudsen, 2004 BCCA 613, the Court of Appeal confirmed the approach to be
taken in determining whether a plaintiff has established a claim to past loss
of earning capacity.  A plaintiff must prove on a balance of probabilities that
an injury caused an impairment to his earning capacity that has resulted in a
pecuniary loss.  A claim for past loss of income earning capacity is based on
the value of the work that the injured plaintiff would have performed but was
unable to perform because of the injury: Rowe v. Bobell Express Ltd.,
2005 BCCA 141 at para. 30.

[120]     To establish a claim for future loss of income earning
capacity, a plaintiff must first prove a real and substantial possibility of a
future event leading to a loss of income, as opposed to a speculative loss: Perren
v. Lalari, 2010 BCCA 140 at para. 32.  If the plaintiff discharges
that burden, then the loss must be assessed, taking into account all realistic
positive and negative contingencies.  The assessment may employ what has been
referred to as an "earnings approach" or a "capital asset
approach": Schenker v. Scott, 2014 BCCA 203 at paras. 50-51; Morgan
v. Galbraith, 2013 BCCA 305 at para. 53; and Perren at
para. 32.

[121]     Ms. Dorsey relied on an expert report prepared by
an economist, Howard Teasley, who provided opinions with respect to the present
value of Ms. Dorsey’s claimed income loss.  These opinions are of no
assistance to me because they are based on assumptions that have not been
established.  I do not intend to address Mr. Teasley’s opinions in detail.
It is sufficient to note that he assumed that Ms. Dorsey missed 244.08
hours of work from the date of the accident until September 18, 2014, when she
stopped working, and that since September 18, 2014, she has been unable to work
as a result of the injuries from the accident.  His calculations also assume
that she will never work again as a result of the injuries she sustained in the
accident.

[122]     The evidence does not establish that Ms. Dorsey
missed anywhere near 244 hours of work in the 18 months following the accident.
The evidence does not establish that Ms. Dorsey has been unable to work
since September 18, 2014 as a result of the injuries she suffered in the
accident.  There is no evidence establishing a real and substantial possibility
of a future inability to work as a result of the injuries Ms. Dorsey suffered
in the accident.

[123]     Ms. Dorsey
testified that by September 2014, she was unable to continue working because
the neck, shoulder, and back injuries she suffered in the accident prevented
her from fulfilling her duties.  I do not accept this evidence for the
following reasons:

·      
As already discussed, I have grave concerns about her credibility
and her claim that her physical injuries prevented her from working was not
corroborated by any independent evidence that I do accept.

·      
It is apparent from Ms. Digby’s evidence that
Ms. Dorsey was able to work following the accident albeit with some
accommodations such as adjustments to her work station and equipment and extra
breaks.

·      
By February 6, 2014, Ms. Dorsey told Dr. Zayonc that
she was able to do most activities.

·      
By June 2014, Ms. Dorsey told Dr. Zayonc she was 70%
better.  By that time her work-related stress had become a considerable focus
in his clinical records.  He testified that in June 2014 he referred her for
counselling and this had nothing to do with the accident.

·      
By September 2014, Ms. Dorsey had stopped seeing Dr. O’Neill
and she had replaced her pain medication with Voltaren ointment.

·      
In notes dated September 25, 2014, October 27, 2014 and November
24, 2014, Dr. Zayonc recommended she remain off work, but these notes do
not state the reason(s) she was unable to work. His clinical records for this
time period record that she was reporting a lot of anxiety and that she seemed
overwhelmed.

·      
Ms. Dorsey was continuing to attend physiotherapy sessions
with Ms. Chen in the fall of 2014, but she did not advise Ms. Chen
that her physical symptoms were preventing her from working.  Ms. Chen had
no notes in her records from this time period indicating Ms. Dorsey was
taking time off work.  If Ms. Dorsey’s physical injuries were impeding her
ability to work, she almost certainly would have told her physiotherapist that this
was so.

·      
The long-term disability claim form filled in by Dr. Zayonc
in January 2015, reported her primary diagnosis as
"anxiety/depression" and "adhesive capsulitis" (frozen
shoulder).  Dr. Zayonc also stated, on that form, that her condition was
due to "injury or sickness arising out of [her] employment" and that
the onset of the symptoms was September 25, 2014, nearly 18 months after the
accident.  He reported, as a secondary diagnosis, "mechanical back and
neck pain" but checked a box indicating this was "not a contributing
factor" to her inability to work.

·      
Finally, it is apparent from Ms. Klassen’s evidence that
Ms. Dorsey’s primary issue at the time she stopped working was the
work-related stress.  She did not discuss her physical symptoms with
Ms. Klassen at all.

[124]     For these
reasons, I find that Ms. Dorsey stopped working in September 2014 as a
result of very significant anxiety and depressive symptoms caused by stress at
work and her frozen shoulder.  I have found that the accident did not cause or
contribute to those conditions.  In other words, the injuries she suffered in
the accident did not contribute to her inability to work in September 2014 or
thereafter.

[125]     For the
reasons already expressed, I have found that the injuries Ms. Dorsey
suffered in the accident gradually improved over about 18 months, and by late
September 2014 her condition had returned to its pre-accident state.

[126]     The
remaining question is whether there is evidence upon which I could find that
Ms. Dorsey missed some work between the accident and September 18, 2014 as
a result of the injuries she suffered in the accident.

[127]     As already discussed, Ms. Dorsey’s evidence as
to how much work she missed during the 18 months after the accident was
extremely vague.  It is clear that she did not take any time off immediately
after the accident.  She testified that she eventually took between three and
five days off as a result of the injuries she suffered in the accident and that
there were other occasions she took time off due to back pain and her inability
to sleep, but she could not be more precise about when she missed work or how
much time she missed.  She also acknowledged that during the 18 months between
the accident in April 2013 and when she stopped working completely in September
2014, she also took time off work for reasons unrelated to the accident,
including the sudden death of her brother-in-law.

[128]     Ms. Digby
testified that Ms. Dorsey did not take time off work immediately following
the accident but that she recalls Ms. Dorsey did eventually take some time
off work as a result of injuries she said she suffered in the accident.  However,
Ms. Digby did not quantify the time Ms. Dorsey took off work
following the accident.

[129]     Ms. Digby’s
evidence corroborates Ms. Dorsey’s evidence on this point, to some extent.
Accordingly, I am satisfied that Ms. Dorsey has established, on a balance
of probabilities, that the injuries she suffered in the accident caused her to
miss some work in the 18 months following the accident.  In all the
circumstances, I am satisfied that it is more likely than not that she missed
ten days of work as a result of injuries suffered in the accident. It is
possible that she missed more than ten days but, on the evidence before me, I
cannot conclude that it is more likely than not that she did so.

[130]    
As noted above, a claim for past loss of
income earning capacity is based on the value of the work that the injured
plaintiff would have performed but was unable to perform because of the
injury.  At the time of the accident Ms. Dorsey was earning $34.56
per hour, which translated to about $1,600 every two weeks net of taxes and
other deductions.  I am satisfied she missed 10 days of work; in other words,
two weeks.

[131]    
For the forgoing reasons, I assess Ms. Dorsey’s past loss of income
earning capacity in the amount of $1,600 net of taxes and other deductions.  Ms. Dorsey
has not established any future loss of income earning capacity.  Accordingly,
her claim for future loss of earning capacity is dismissed.

Cost of Future Care

[132]     A plaintiff is entitled to be compensated for expenses
reasonably necessary for the future medical treatment of injuries for which the
defendant is liable.  The test for assessing an appropriate award for the cost
of future care is an objective one based on the medical evidence.  It is
twofold:  first, there must be a medical justification for the cost; and
second, the claim must be reasonable: Tsalamandris v. McLeod, 2012 BCCA
239 at paras. 62-63.

[133]    
Ms. Dorsey submits that "she
has ongoing symptoms, so it would be reasonable to infer the [sic] she will
incur cost of future care and other expenses".  She relies on Dr. O’Neill’s
recommendations for ongoing chiropractic treatment, an ObusForme or similar
back support, home support care, a three-month program with a kinesiologist,
back and shoulder support wear, and ergonomic counselling and assessment.

[134]    
However, I have found that the
accident caused only a temporary exacerbation of Ms. Dorsey’s pre-existing
symptoms that gradually improved over about 18 months and that she has
returned to her pre-accident state.  Any symptoms and limitations that she
continues to experience are not caused or contributed to by the accident.  Accordingly,
her claim for cost of future care is dismissed.

Special Damages

[135]     Ms. Dorsey
is entitled to be compensated for expenses she incurred as a result of the
injuries she suffered in the accident, so long as the decision to incur them
was reasonable.

[136]     Ms. Dorsey
claims as special damages the cost of physiotherapy, massage therapy,
chiropractic treatments, carpet and upholstery cleaning and yoga classes.

[137]     The
defendants submit that at the time of the accident, Ms. Dorsey was
continuing to receive massage and physiotherapy for the December 2012 slip at
work and that it is likely she would have continued receiving that treatment
even if she had not been involved in the accident.

[138]     I agree
that it is likely that Ms. Dorsey would have continued to receive some
massage therapy and physiotherapy treatments even if the accident had not
occurred.  However, that does not disentitle her to compensation for the
treatment she received after the accident.  For the reasons already expressed,
her injuries were exacerbated by the accident.  Dr. Zayonc recommended
that she attend massage therapy and physiotherapy as a result.  Accordingly,
the accident was at least part of the cause of Ms. Dorsey incurring
massage therapy and physiotherapy expenses during the period between April 3,
2013 and the end of September 2014.

[139]     The evidence
establishes that Ms. Dorsey’s first massage therapy appointment after the
accident was on April 8, 2013. She paid $46 for that treatment.  Between April
10, 2013 and June 19, 2013 she had 19 massage therapy treatments at a cost of
$20 per treatment.  She had a treatment on August 30, 2013 at a cost of $85, a
treatment on September 13, 2013 at a cost of $90, a treatment on January 22,
2014 at a cost of $90, and between February 5, 2014 and the end of September
2014 she had 48 treatments at a cost of $50 each.  This amounts to a total of
$3,091.  I am satisfied that she has established an entitlement to that amount.

[140]     The
evidence establishes that Ms. Dorsey’s first physiotherapy appointment
after the accident was on April 10, 2013.  Between April 10, 2013 and June 19,
2013 she had 19 physiotherapy treatments at a cost of $25 each.  Between
November 4, 2013 and August 13, 2014 she had 56 physiotherapy treatments at a
cost of $60 each.  On August 27 and September 3, 2014 she had physiotherapy
treatments at a cost of $67.50 each.  Between September 8, 2014 and the end of
September 2014 she had six physiotherapy treatments a cost of $65 each.  This
amounts to $4,360.  I am satisfied that she has established an entitlement to
that amount.

[141]     The
defendants accept that the cost of Ms. Dorsey’s chiropractic treatments
for the period between the accident and October 2, 2013 is properly recoverable
as special damages.  However, I have found that Ms. Dorsey did not return
to her pre-accident status until the end of September 2014.  Accordingly, she
is entitled to the cost of her chiropractic treatments to then.  This amounts
to $470 for treatments by Dr. Herrewig between August 6, 2013 and October
2, 2013 and $420 for treatments by Dr. O’Neill between August 19, 2014 and
September 18, 2014.  I am satisfied that she has established an entitlement to
those amounts.

[142]     Ms. Dorsey
claims $91 for the cost of the yoga class she enrolled in on August 30, 2013.  The
defendants agree that this amount is properly recoverable as special damages.

[143]     Finally,
Ms. Dorsey claims $231.41 for carpet and upholstery cleaning in June 2013.
The defendants submit there is no medical opinion to the effect that she was
unable to perform these tasks as a result of the injuries she sustained in the
accident.  However, I am satisfied that given the exacerbation of her symptoms
following the accident it was reasonable for her to incur these expenses.

[144]     The total
award for special damages is, thus, $8,663.41

Conclusion

[145]     In summary, the damages awarded to Ms. Dorsey
are:

[146]    
If the parties are unable to agree on costs, they may arrange to speak
to that issue by contacting the registry.

“WARREN J.”