IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120126

Docket: M108243

Registry:
New Westminster

Between:

Kevin James Madsen

Plaintiff

And

Daphne M. Bekker
and John O’Brian

Defendants

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
Mr. Madsen was involved in a motor vehicle accident on November 8,
2006 with a vehicle owned by the defendant Mr. O’Brian and driven with his
consent by the defendant Ms. Bekker.

[2]            
The accident happened at the intersection of McCallum Road and Marshall
Road in the City of Abbotsford, Province of British Columbia. The defendant
Bekker was turning left off McCallum Road onto Marshall Road when her vehicle
came into collision with the plaintiff’s vehicle proceeding northbound on
McCallum Road.

[3]            
The plaintiff’s vehicle enjoyed the right of way and liability has been
admitted by the defendants in this action for the collision and any provable
damages suffered by the plaintiff.

[4]            
The plaintiff was 26 years of age at the time of the accident. He says
that he tried to brace himself before the impact by planting his left foot
firmly against the floor and locking his arms onto the steering wheel so that
his head wouldn’t hit the windshield. He says he was going approximately 50
kilometres per hour at the time of the collision and the defendants’ vehicle
was starting from a stopped position in the left-turn lane.

[5]            
Mr. Madsen alleges that he sustained personal injuries in this
accident and his injuries have adversely affected his past and future income-earning
capacity and caused him out-of-pocket expenses, for all of which he claims in
this action.

[6]            
He says that immediately in the collision he felt pain in his low back
area, in his left pelvic area and in his right shoulder. He did not attend at
any hospital because he knew he had no broken bones and he wasn’t bleeding. Instead
he went home and lay down on the couch. He fell asleep and woke up in the
morning with his stomach hurting, probably from the seatbelt. He attended the
hospital for the stomach pain but it disappeared in a couple of days.

[7]            
Dr. Parkin was Mr. Madsen’s family doctor at that time. Mr. Madsen
attended on Dr. Parkin for the first time at his office on November 17,
2006 although Dr. Parkin had seen him in the hospital. Dr. Parkin
says that Mr. Madsen presented with chief complaints of low back pain,
interscapular pain and pain involving the right neck and shoulder and trapezius
muscle.

[8]            
Past history for Mr. Madsen included symptoms referable to the
right rotator cuff and right posterior shoulder pain that were not symptomatic
at the time of this accident.

[9]            
On examination, Dr. Parkin concluded Mr. Madsen had diffuse
palpatory tenderness in the areas complained of with no particularly localized
injury.

[10]        
Dr. Parkin diagnosed grade 1 injuries and recommended an active
approach towards rehabilitation. Mr. Madsen was given a referral for
physiotherapy. He was also advised that massage therapy and chiropractic
therapy were not contraindicated. A grade 1 injury is a complaint of pain
without any physical findings.

[11]        
Mr. Madsen had already attended chiropractic sessions with a Mr. Buchanan
on three occasions prior to the motor vehicle accident, in 2004 and 2005, for
what he says was pain in his left rib area caused by his gym workouts. His
evidence is that he received adjustments at that time from Mr. Buchanan
and returned to his workouts.

[12]        
After the motor vehicle accident he re-attended on Mr. Buchanan on
November 23, 2006 for a first visit. He attended thereafter in January and
February of 2007, once in April 2007, once in May 2007 and once in August 2007.
Altogether he attended on Mr. Buchanan on 15 occasions.

[13]        
Mr. Madsen says he did not attend Mr. Buchanan further in 2006
after November 23 because he considered it better to rest at that time. He
stopped these chiropractic treatments because he was not getting much relief
from the pain as it was not diminishing.

[14]        
Mr. Madsen’s sessions of physiotherapy started on February 5, 2007
and continued every month through to and including May 2007. There was one further
session in July 2007 and then no more sessions until March 2010 when Mr. Madsen
returned and took more sessions through April 2010. The total of these sessions
throughout were approximately 54 in number.

[15]        
Before Mr. Madsen began physiotherapy sessions he had three MRIs on
February 5, 2007 for his shoulder, left spine and neck because he felt the need
to be assured that he hadn’t hurt himself more seriously before he began the
physiotherapy. The MRIs indicated no problems.

[16]        
He agrees that he had asked for a referral from a Dr. Hobson at a
clinic for these MRIs, but was told by Dr. Hobson that they were not
medically indicated. Nevertheless he wanted them.

[17]        
Mr. Madsen says he had two hour physiotherapy sessions to start
with but progressed to four hour harder sessions in April 2007. Dr. Parkin
says that he advised Mr. Madsen to proceed with these harder sessions in
April 2007 and he says he probably agreed at that time that Mr. Madsen was
still not ready for work.

[18]        
Mr. Madsen says that he stopped these sessions initially on May 29,
2007 as he was preparing to move to Alberta to work at a golf course outside of
Edmonton, Grouse Nest Golf Course, owned by his mother and her partners.

[19]        
He says that by then his neck pain and right shoulder pain had resolved
but he still had a lot of muted pain in his left lower back/left hip area, with
a feeling of constant pressure.

[20]        
Dr. Parkin says in his report of May 10, 2007 that a return to work
on a trial basis about one month after April 11, 2007, around the middle or end
of May, was appropriate for Mr. Madsen.

[21]        
Dr. Hobson in an undated clinical note states “Return to work April
01/07 full duty”, but Mr. Madsen says he doesn’t recall ever getting this
note from Dr. Hobson.

Work History

[22]        
Mr. Madsen was not working at the time of the motor vehicle
accident. He had been receiving employment insurance benefits since October 15,
2006. Prior to that time in 2006 he had worked for Air-A-Fare Restaurant owned
by his mother at the Abbotsford Airport, and for the Pacific Salmon Commission for
a time, as well as for a company called Valley Master Mason which did
countertop stone installations. He says he enjoyed this work at Valley Master
Mason but was laid off from that employment.

[23]        
Mr. Madsen says that he had talked to another company, CS Floors,
about a job, prior to the motor vehicle accident, but there was no set time to
start, although he says it was expected to be around the middle of November
2006. With the accident he did not work for CS Floors in 2006 and not until
2008.

[24]        
He had graduated from high school in 1998. In 1999 he was in a serious
motor vehicle accident where he suffered a brain injury, but eventually
successfully recovered over a period of time and had no physical problems prior
to this motor vehicle accident of November 8, 2006.

[25]        
He had worked at a number of jobs over the years prior to the motor
vehicle accident. He worked for White Spot Restaurants and for CanWest Flight
Services in Abbotsford as a ramp attendant in 2001. He was laid off from
CanWest on April 29, 2002 and went on employment insurance benefits from May
12, 2002 until October 19, 2002. He then took an Employment Initiative course
through Employment Insurance at Sprott-Shaw Community College in Abbotsford and
earned an Honours Diploma from that institution on September 12, 2003 in Advanced
Business Management and E-Commerce.

[26]        
He says he started looking for work from June 2003 when he completed
this course to January 2004, without success.

[27]        
In 2004 he worked for CanWest again and for the Bank of Nova Scotia for
one month and also for his mother’s restaurant Air-A-Fare at the Abbotsford
Airport. There he says he started as a bookkeeper which led to becoming the
manager of up to 25 employees. He says that he had no set hours for himself as
he was only there when he thought he needed to be there to ensure the employees
performed and that was only occasionally.

[28]        
His total income in 2004 was $17,578.63 as shown on his income tax
return.

[29]        
In 2005 he continued working at Air-A-Fare and also worked at Valley
Master Mason doing countertop installations. His total income on his 2005 income
tax return was $17,526.69 of which $12,908.55 was net income from working at
Air-A-Fare as a self-employed worker.

[30]        
In 2006 he earned a total income of $25,297.75 to include receipt of
employment insurance benefits of $2,936, $1,724 from Air-A-Fare, $6,454 from
Valley Master Mason and $14,183.27 from the Pacific Salmon Commission.

[31]        
In 2007 he remained on employment insurance medical benefits from before
the accident until the end of May and then worked at the Grouse Nest Golf
Course near Edmonton, Alberta from June 15, 2007 to October 2007. His total
income shown on his tax return that year was $11,326.11 which included income of
$7,200 from renting his home in Mission while he lived in Alberta, $4,037 from
employment insurance and $89.11 from a GST/HST rebate. No income was declared
from Grouse Nest Golf Course.

[32]        
He says that his work at Grouse Nest Golf Club in 2007 started at 5:45
in the morning and consisted of mowing, weeding, changing holes in the greens
and other maintenance duties.

[33]        
On referral from his lawyers he saw Dr. McGraw, an orthopaedic
surgeon, in July 2008. He told Dr. McGraw that it had been beneficial for
him to have a variety of tasks to do at the golf course as it was helpful to
his back complaint. He agrees he did not tell Dr. McGraw at that time that
there was anything he could not do at that job.

[34]        
He says in his evidence in trial, however, that he had to stretch and
lie down from time to time when his back/hip area became painful and bending
over was always hard on his back.

[35]        
Mr. Madsen returned to British Columbia from Alberta in October
2007 and says in his evidence that he didn’t feel capable of working. He also
says that he had received a $15,000 gift from his mother and had decided he
didn’t need to work. He agrees he told counsel on his examination for discovery
that the $15,000 was an employment bonus but he says that was a mistake because
it was a gift.

[36]        
He told Dr. Watt, a sports medicine physician to whom he was also
referred, that he remained off work by choice from October 2007 to May 2008,
but he explains in his evidence that he didn’t think he could perform and make
the money that he should.

[37]        
Upon his return from Alberta he attended Nigel Burns for acupuncture and
chiropractic treatments for his hip and back. These treatments commenced in
October 2007 and continued practically every month thereafter until April 2010
with a final session on January 19, 2011, a total of some 90 sessions. He says
this was all in an effort to relieve the pressure that he continued to feel in
his left hip all the time.

[38]        
In 2008 he did not return to Alberta because he had a girlfriend at the
time in British Columbia. He worked at the Ramada Inn for approximately two
weeks in February 2008 but says it was not the job for him as it offered no
satisfaction. The Ramada Inn record indicates that he was fired, but he says
that he quit.

[39]        
He also says that he worked part of one day for Sears department store
but again says this was not for him.

[40]        
Other than these two jobs at the Ramada Inn and Sears, Mr. Madsen
did not work after October 2007 until May 2008. At that time he commenced work
at Fort Langley Golf & Country Club where he remained until August 28,
2008.

[41]        
He says his back and hip were still painful but it was light work at
that golf course sitting on a lawnmower and he had no difficulties except for
having to stretch occasionally and lie down. He says he eventually quit on an
issue of pay and because he started a job at CS Floors on September 1, 2008
until November 2008 moving tools and scraping floors and pushing brooms, and
other preparatory work for gluing down tile. He says he left CS Floors when it
changed its product from laying of tiles to laying of carpets as that was too hard
on his back/hip.

[42]        
Mr. Merwin is the superintendent at Fort Langley Golf & Country
Club and Mr. Madsen worked under his direct supervision in 2008.

[43]        
He says Mr. Madsen performed all the duties of a greens-keeper
including raking, weed-eating, changing holes in the greens, mowing, and branch
clean-up, along with a number of other responsibilities.

[44]        
He says he never observed any signs of injury in Mr. Madsen and he
never had any discussion with Mr. Madsen about any injury. He didn’t even
know there had been a motor vehicle accident.

[45]        
Fort Langley Golf & Country Club is a full 18-hole course and the
maintenance crew starts at around 5:00 a.m. and finishes at about 1:30 p.m.
when Mr. Merwin also finishes.

[46]        
There are approximately nine employees in the maintenance crew. He says
he saw Mr. Madsen perform every one of his duties at different times and
he is sure that he saw Mr. Madsen bend down during his duties but cannot
recall any specific occasion.

[47]        
Mr. Merwin’s current salary as superintendent is $50,000 per year
and he says superintendent’s salaries generally range from $40,000 to $60,000. He
says his pay would be higher if he worked longer hours past 1:30 in the
afternoon.

[48]        
Mr. Roy was the plaintiff’s boss at CS Floors in 2008 working on a
12-storey project in Vancouver laying vinyl flooring. Mr. Roy confirms the
plaintiff complained of his hip hurting and he was not asked to do any of the
heavy work.

[49]        
Mr. Roy was the head of a crew and says he makes $40,000-$55,000
per year before bonuses.

[50]        
In 2008 Mr. Madsen made a total income on his tax return of
$9,983.24, principally made up of $7,983.56 from Fort Langley Golf Course and
$1,129.36 net from CS Floors.

Medical Evidence

[51]        
In 2008 Mr. Madsen says he was also referred to a Dr. Feldman
who told him the same thing that other doctors had been telling him – that time
heals all. He never returned to Dr. Feldman.

[52]        
When Dr. McGraw saw Mr. Madsen on July 10, 2008 he reviewed a
number of clinical records of chiropractors and physiotherapists as well as Dr. Parkin’s
report of May 10, 2007.

[53]        
At the time of his examination Mr. Madsen told Dr. McGraw that
his neck was okay but he complained of pain from time to time every day in the
thoracolumbar junction posteriorly, related to activity. He said his back felt
tight all the time.

[54]        
In the lumbosacral level and left sacroiliac area he said he felt a
constant ache like pressure with radiation of discomfort from his back into the
fronts of his right and left thighs.

[55]        
At the time that he saw Dr. McGraw he was working at Fort Langley
Golf & Country Club.

[56]        
Dr. McGraw said in his report of July 24, 2008 to Mr. Madsen’s
lawyers that Mr. Madsen appeared fit on examination. Physical examination
was normal in all areas of cervical spine, both shoulders, upper extremities,
thoracolumbar spine, gait pattern and both hips.

[57]        
On pelvic stress testing Mr. Madsen complained of pain in the left
sacroiliac area.

[58]        
Dr. McGraw diagnosed grade 1 soft tissue injury in the cervical and
thoracolumbar spine areas and a possible strain/sprain of the left sacroiliac
joint. He was concerned about the pain in the left sacroiliac area and the
lumbosacral area and of the possibility of a left sacroiliac strain,
particularly in view of the reported mechanism of the accident as told to him with
Mr. Madsen’s left foot being jammed or planted on the floorboard of the
vehicle. He is convinced that the sacroiliac pain was caused in the motor
vehicle accident.

[59]        
Dr. McGraw recommended Mr. Madsen have a diagnostic
anaesthetic block of the left sacroiliac joint and said if this temporarily
relieved the pain consideration could be given to a second block consisting of
local anaesthetic and a steroid preparation.

[60]        
Dr. Madsen went through these procedures in 2009. A radiology
report was received on March 3, 2009 which said that Mr. Madsen had a pain
level of 3 out of 10 pre-injection and 0 out of 10 post-injection on the first
procedure.

[61]        
Dr. McGraw was of the opinion that this first block strongly
substantiated the cause of the back pain as a left sacroiliac strain and said
the next step was a similar image-guided injection of a steroid preparation
into the joint in the identical manner to suppress any inflammatory changes.

[62]        
Subsequently on October 22, 2009 Dr. McGraw reported that the
second block had taken place on October 7, 2009 and the pre-injection pain
level reported was again at 3 out of 10 with the post-injection level again
recorded at 0 out of 10.

[63]        
In his report Dr. McGraw said that if the left sacroiliac pain is
not managed in the long-term by conservative treatment such as injections,
consideration could be given to a surgical fusion or arthrodesis of the left
sacroiliac joint, but the operation is not to be undertaken lightly and in his
experience complete pain relief is not assured as it is not an easy joint in
which to obtain a solid fusion.

[64]        
He explains that the reference in his first report of possible
strain/sprain of the left sacroiliac joint was a way to indicate his suspicion
at that time of the diagnosis, with no proof, and his view that to make a
certain diagnosis required the injections which subsequently followed and confirmed
his diagnosis.

[65]        
While he mentioned in his last report that consideration could be given
to the possibility of a surgical fusion, he says at trial the options are to do
nothing and become fit, do a third injection or do a surgical intervention
which he does not recommend.

[66]        
He says he never discussed these options with Mr. Madsen directly.
He reported to his lawyers.

[67]        
In his evidence Mr. Madsen says the hip pain disappeared for about
four months after the first injection, before it returned prior to the second
injection but only disappeared for approximately one month after the second
injection.

[68]        
He says that he got married on December 19, 2009 and presently has a 15‑month-old
son with another child expected in 2012.

[69]        
His wife doesn’t work as she is not a Canadian citizen. He says he
cannot consider any surgery until his children are old enough for school and
his wife can work in Canada and while he upgrades his skills at golf course
management and manages his mother’s golf course at Grouse Nest Golf Course.

[70]        
He believes he will be laid up for about a year after any surgery before
he can function adequately again.

[71]        
In 2009 he decided to start his own company in British Columbia, Yard
Gnomes Home Maintenance. He did not return to Grouse Nest that year because his
mother was involved in litigation with her partners over it. This new company
of his did not work out however, and he says he then returned to CS Floors to
work at GM Place putting carpet and rubber matting down.

[72]        
This work at CS Floors does not show on his 2009 tax return. That return
only shows income from the company he started and from a rental property in
Abbotsford to a total of $15,868.29 total income.

[73]        
In 2010 Mr. Madsen moved back to Alberta in May expecting his
mother to gain control of the golf course by then. She did not for that entire
season however, and he did not work there in 2010.

[74]        
One day his cousin Cole Madsen telephoned and suggested he apply at
World Stone Inc., another counter-installer, in Edmonton, where Cole Madsen
worked.

[75]        
Mr. Madsen was hired there to install countertops but he says he
told World Stone that if a piece of stone was too heavy and big and there was
no one else to help him lift it he couldn’t do it and the company agreed with
that. He says he tried to lift minimal weight of up to 50 pounds and to use
dollies to carry any weight. If he hunched over his sacroiliac joint really
started to hurt.

[76]        
He only lasted one month at World Stone however in and around September
2010 because he and his cousin Cole Madsen thought they could make more money
on their own with their own company. They left World Stone and opened a new
company under the name of Install Plus. Mr. Madsen says his cousin did the
heavy work and he did the finishing work as well as being the business person
of the two of them. The split in proceeds was 60% to him and 40% to his cousin.

[77]        
This business opened September 13, 2010 and closed for the Christmas
season on December 23, 2010.

[78]        
He says he trusted his cousin completely in the operation of the Install
Plus business but at the end of the season his cousin had to leave for other
work and then subsequently hurt himself and went on Workers’ Compensation
benefits.

[79]        
Cole Madsen confirms this evidence. He says he knew of the plaintiff’s
physical limitations and it was he that did the heavy lifting while the
plaintiff supplied the capital, did the books and did the finishing work. Cole
Madsen says that if he needed help with any heavy weight there were always
other trades around.

[80]        
He says that if Install Plus had not been seasonal work he would have
remained there but he had to leave to find other employment. When he did he
broke his wrists and this has led to his present WCB status.

[81]        
Mr. Madsen says that he couldn’t continue the business without his
cousin as he needed someone as a partner he could trust who would be willing to
handle the heavy weight while he did the finishing work. Only if he could find such
a person again would he be prepared to start the business up again.

[82]        
In 2010 Mr. Madsen declared $27,480 total income on his tax return
which included rental income from his house in Abbotsford, income from World
Stone declared at $3,450.72 and income from Install Plus declared at $14,442.30
net. No income was declared from Grouse Nest Golf Course.

[83]        
On February 4, 2011 he began working at Grouse Nest Golf Course once his
mother wrestled control away from her partners. Unlike 2007 he says that he had
a lot more control of the golf course and there was a lot more staff to do the
heavy lifting. He says that he is presently learning as he goes as the
superintendent, talking to other golf superintendents and reading books on
course management.

[84]        
He says his income is $4,000 per month with the right to live for free with
his family in a five-bedroom house owned by his mother on the golf course.

[85]        
He says he has to be at the course 12 months of the year for security
purposes and he says that he and his mother have agreed on an income for 2012
of $100,000, less her cost of hiring others for work that he cannot do, such as
any heavy lifting and mechanical work.

[86]        
He says it is the staff that picks up the broken tees off the tee boxes
and replaces divots as he cannot stay bent or hunched over for any length of
time.

[87]        
He says he also cannot cut brush with a weed-eater nor pull up stumps.

[88]        
He says the first chiropractic treatments with Mr. Buchanan ending
in 2010 did not give him much pain relief but a different chiropractor gave him
a new set of exercises for his back that he has carried on in Alberta which
have made his back stronger, but without any pain relief.

[89]        
Mrs. Madsen, the plaintiff’s mother, says she purchased the Grouse
Nest Golf Course with partners on June 15, 2007. She says the plaintiff was
sent there at that time to represent her interests in the running of the golf
course but she says his job was not to take care of the golf course itself as
her partners were to do that. She says she had no idea as to how to run a golf
course business.

[90]        
She became the sole owner of the golf course in February 2011 after
settling a dispute with her partners. She moved to Alberta for the season,
which she says will end in October 2011, and says the course had been neglected
and was run down. The plaintiff ran the golf course as a working superintendent
in 2011 before trial, while she looked after the club house.

[91]        
She says she introduced the plaintiff to people who could help with the
golf course in terms of getting it back into shape and she says this has
succeeded because the golf course now looks like one again.

[92]        
She says the plaintiff wanted an income of $8,000 per month but she said
that was not possible and negotiated an income with him of $4,000 per month
plus a free house.

[93]        
She says there is certain work on the golf course that the plaintiff
cannot do and she says she has had to hire other employees to do this work for
an extra cost of approximately $20,000.

[94]        
She says the gross revenues from the golf course for 2011 she hopes will
be about $140,000 or more.

[95]        
She says her operating costs are approximately $10,000 per month or
$120,000 per year, which does not include the cost for employees. She says she
does not expect to make any money this year.

[96]        
For 2012 she anticipates her gross revenues will be approximately
$500,000 and she anticipates paying the plaintiff 20% of the gross revenues or
$100,000. She says she has a verbal agreement with him to pay him that amount. However
with the $20,000 that she says she has to pay to other employees for work the
plaintiff is not physically able to do, she anticipates paying him a net amount
of $80,000.

[97]        
She says that if gross revenues for 2012 turn out to be only $400,000,
she will pay the plaintiff $80,000 less $20,000, or $60,000 net.

[98]        
If the gross revenues for 2012 are only $300,000, she considers that too
little to get by on and she says the plaintiff will have to find another job. However
she expects a banner year based on the condition of the course presently,
assuming the weather is good and a full season. She says no promotion was done
for 2011 but it will be done for 2012.

[99]        
Her long-term goal is to run the golf course for three years but after
that she is not sure what she will do.

[100]     Before
starting at Grouse Nest Golf Course in 2011 Mr. Madsen was sent by his
lawyers to Dr. Watt, a sports medicine specialist to whom I have
previously referred. Dr. Watt saw Mr. Madsen on January 17, 2011
while he was still operating the company Install Plus.

[101]     In Dr. Watt’s
report of February 9, 2011 of his examination of the plaintiff he recorded Mr. Madsen
as saying that his low back pain had actually improved markedly over the
previous four months since he had begun a new set of home exercises prescribed
by a physiotherapist in Spruce Grove, Alberta. He felt he was then about 95% to
100% of normal. Over the previous two weeks he said he had virtually no low
back pain and at worst his discomfort had only been about 2 out of 10. The
discomfort was worse with prolonged sitting and standing, heavy lifting,
bending and coughing.

[102]     In his
evidence Mr. Madsen says he was not doing any physical work during this
period of time around his appointment with Dr. Watt and that is why he had
little low back pain to complain of to Dr. Watt.

[103]     Dr. Watt
found that Mr. Madsen had excellent muscle development and reasonably good
posture. He appeared to sit comfortably in his chair without fidgeting.

[104]     On
examination of Mr. Madsen’s back Dr. Watt found that his core
strength was adequate but less than expected and he had mild tenderness to firm
palpation directly over the left sacroiliac joint.

[105]     On
examination of Mr. Madsen’s legs Dr. Watt found normal hip range of
motion in all planes on both sides with the exception of left hip extension
which was moderately reduced to about 20% due to a tight left iliopsoas muscle.
Left hip flexion was markedly weaker than right hip flexion and straight leg
raising was less on the left than on the right due to tight hamstrings.

[106]     Dr. Watt
also found marked tenderness to firm palpation over the left iliopsoas muscle
with a marked tenderness over the left piriformis muscle (deep in the buttock)
with an obvious shortening of that muscle.

[107]     For the
purpose of his report Dr. Watt reviewed the functional test data of Mr. Nguyen,
a kinesiologist who tested Mr. Madsen.

[108]     The test
data indicated to Dr. Watt that Mr. Madsen saw himself as capable of
working at a physical demand capacity range of “heavy” which was consistent
with his observed performance although Mr. Madsen’s report of functionally
limiting low back pain levels during heavy lifting tasks and stooping suggested
to Dr. Watt that he would poorly tolerate these activities on more than an
occasional basis (i.e. less than one-third of a typical work day or shift).

[109]     Tests of
reaching, stooping, kneeling and crouching were all performed at below competitive
levels and during stooping Mr. Madsen reported disabling pain in his left
low back.

[110]     No
limitations were found in his ability to tolerate sitting for up to an hour,
standing, walking, kneeling or crouching.

[111]     His low
back range of motion was considered generally normal with the exception of side
flexion which was mildly reduced to the right and moderately reduced to the
left.

[112]     In his
report Dr. Watt considered Mr. Madsen’s current physical activity
status, in accordance with the National Occupational Classification, to be
estimated as capable of sitting, standing, walking and other body position
activities such as stooping, kneeling, crouching and crawling, with limitation
for prolonged repetitive other body positioning activity, capable of all limb
coordination activities, and capable of heavy physical demand – lifting,
pushing, pulling and carrying over 20 kilograms occasionally.

[113]    
In his report Dr. Watt expressed the opinion that the motor vehicle
accident of November 8, 2006 directly caused Mr. Madsen’s current low back
complaints and in terms of his state of recovery Dr. Watt said this:

32.       The accident occurred more than four years ago;
nevertheless it is my opinion that he is not yet at maximal medical improvement
with respect to his low back complaints. He has had actually had [sic] a marked
improvement in his low back pain over the past four months as a result of a new
home exercise program that was recently prescribed. As a result of these
exercises he says that his back is now near normal in terms of symptoms. He
does still describe some modest functional limitations with prolonged standing,
sitting and bending although none of these interfere with his ability to do his
job in any significant way. Therefore at this point it is my opinion that he
should be considered to have temporary impairment with respect to his
low back. I believe that most of his symptoms are the result of soft tissue
injuries of the left iliopsoas muscle (a large hip flexor muscle) as well as
the piriformis muscle deep in his left buttock and a very tight, weak left
hamstring. I believe he injured all of these muscles in the accident and has
gone on to develop a chronic myofascial pain syndrome in each of these muscles
causing pain, shortening and weakness. With continued appropriate
management (see below) I think it is reasonable to anticipate that he will
continue to improve over the next three to six months both in terms of symptoms
and function. However, he has had persistent symptoms for four years now
therefore his prognosis for a complete functional and symptomatic recovery must
remain guarded. It is certainly possible that even with optimal rehabilitation
management he may be left with some permanent residual disability.

33.       Finally, I do not
anticipate that he will develop a progressive or degenerative condition with
respect to his low back.

[114]     While Mr. Madsen
complained of mild tenderness to firm palpation over the left sacroiliac joint,
Dr. Watt says at trial he was more struck by Mr. Madsen’s soft tissue
injuries than with the possibility of any sacroiliac joint injury.

[115]     He says he
did not see any symptoms of sacroiliac joint injury on his examination and did
not diagnose that injury. At the same time however he says he does not disagree
with Dr. McGraw’s opinion in this regard.

[116]     In the
section of his report dealing with Mr. Madsen’s employability, Dr. Watt
said the plaintiff was fit to return to work as a granite counter installer. At
trial he says the plaintiff told him that he had an employee that did any of
the heavy lifting.

[117]     Dr. Watt
holds the opinion the plaintiff is not yet at maximum medical improvement. He
says he does not consider it possible to determine yet what if any impact the
motor vehicle accident will have on the plaintiff’s long-term competitive
employability.

[118]     He
recommends treatment that is aimed at deactivation of what he says are trigger
points in the left iliopsoas muscle by restoration of normal muscle length and
strengthening of the muscles through specific exercises.

[119]     He
encourages the plaintiff to continue with his home exercise program and says
any episodic acute exacerbation of pain can be managed with brief courses of
massage therapy and/or active release therapy and the plaintiff should consult
with a physiotherapist for stretching exercises of the muscles.

[120]     He also
recommends a certified fitness trainer for a progressive exercise program of
three to four months and says the plaintiff would also benefit from a three to
six month course in yoga.

[121]     It appears
Mr. Madsen has already taken these treatments of massage therapy and
progressive exercise program from Mr. Kuzyk of Parkland Rehabilitation
commencing on April 25, 2011 and continuing through to September 12, 2011.

[122]     Dr. Watt
concluded his report by saying that the plaintiff will probably experience episodic
acute exacerbation of low back pain over the years if he works as a granite
counter installer, but he should not develop a chronic or progressive condition
with his low back.

[123]     Mr. Kuzyk
of Parkland Rehabilitation of Alberta also gave evidence. Mr. Madsen
attended upwards of 60 times up to September 12, 2011 for
physiotherapy treatments.

[124]     He says he
put the plaintiff on a work-hardening program which involved weight-testing and
cardio-testing. Mr. Kuzyk’s largest concern was the plaintiff’s low back
with weakness through his core muscles and the sessions concentrated on these
core muscles. When he saw the plaintiff he was working at the Grouse Nest Golf
Course and was complaining of soreness and stiffness more than normal so
massage was introduced from time to time.

[125]     Mr. Kuzyk’s
records indicate that on very many of his sessions the plaintiff made no
complaints whatsoever about his back.

[126]     He thinks
that as the plaintiff progresses with his exercises at home it might be
beneficial for him to return for further treatments in three to six months
depending on how he is feeling at that time.

[127]     He says
that through his sessions with the plaintiff, the plaintiff’s core muscles
strengthened and his functionality was much improved and his ability to handle
increased weight also improved substantially. With a good exercise program at
home Mr. Kuzyk considers there to be no reason to think the plaintiff will
not continue to improve.

Submissions

Plaintiff’s Submissions

[128]     Plaintiff’s
counsel emphasizes the diagnosis of Dr. McGraw that Mr. Madsen has
strained his left sacroiliac joint and his opinion that with failure of more
conservative measures surgical fusion of the joint becomes a treatment of last
resort.

[129]     He also
emphasizes at the same time Dr. Watt’s diagnosis of soft tissue muscle
injury rather than sacroiliac joint injury and his concern that the plaintiff
will be left with some permanent disability.

[130]     He
discounts Dr. Parkin’s evidence that he did not find any localized
tenderness in the plaintiff’s back and therefore did not treat the plaintiff as
having sustained a sacroiliac joint injury.

[131]     He submits
that the plaintiff has an uncertain future as far as his health is concerned
and at some point his ability to modify and adapt his activities may be further
impaired if his symptoms become worse.

[132]     The figure
of $90,000 is sought for non-pecuniary damages for pain and suffering and loss
of enjoyment of life.

[133]     A past
wage loss claim is made in the amount of $60,000 gross on the basis of a loss
of $3,600 gross in 2006 between November 15 and December 31, a loss of $14,400
gross in 2007 between January 1 and June 14, and a loss of $25,000 gross in
each of 2008 and 2009 based on average incomes as estimated by Mr. Carson
the economist in his evidence, as well as based upon the evidence of Mr. Roy
of CS Floors of what he says he makes doing that work.

[134]     No claim
is made for 2010 or 2011 up to the time of the trial.

[135]     A claim of
future loss of income-earning capacity is made in the range of
$150,000-$200,000 on the basis that the plaintiff will lose approximately
$20,000 in income from Grouse Nest Golf Course per year that his mother says
she will have to pay to others to do work the plaintiff is unable to do, and
the plaintiff will no longer be able to do countertop installations as he did
with his cousin Cole Madsen unless he can find someone else that he can trust to
do the heavy lifting that Cole did.

[136]     Past
special damages are claimed in the amount of $16,000 for all the physiotherapy
and chiropractic sessions that the plaintiff had to pay for, as well as for the
three MRIs he underwent.

[137]     Future
special damages are claimed in the amount of $20,000 for any future treatment needed
and the possibility of future surgery.

Defendants’ Submissions

[138]     Defence
counsel takes an entirely different view of each of the claims made by the
plaintiff.

[139]     Counsel
points out the different diagnoses of Dr. McGraw and Dr. Watt with Dr. McGraw
saying the plaintiff sustained a sacroiliac joint strain injury and Dr. Watt
saying the plaintiff sustained a muscle injury. Counsel submits the onus is on
the plaintiff to prove his injury and he has failed to do that.

[140]     Counsel
submits that because Dr. McGraw stands alone in diagnosing a sacroiliac
injury his opinion should either be rejected outright or at least if accepted
the injury should not be attributed to the motor vehicle accident.

[141]     It is also
submitted that Dr. Watt’s opinion of piriformis syndrome should also be
rejected or at least not attributed to the motor vehicle accident because Dr. Watt
did not see the plaintiff until over four years after the motor vehicle
accident.

[142]     Counsel
submits that all the plaintiff sustained was a grade 1 soft tissue injury to
the low back that cleared up by the end of 2007 at the latest and any ongoing
pain is not due to the motor vehicle accident, or if related to the motor
vehicle accident it is mild and no longer of any effect on the plaintiff.

[143]     For the
purpose of non-pecuniary damages it is submitted that the plaintiff has
exaggerated at trial the severity of his injuries and sought to minimize the
effect of subsequent intervening injury.

[144]     It is
submitted that an appropriate range for non-pecuniary damages for the plaintiff
would be $20,000-$25,000 for soft tissue injuries that resolved in 8-20 months
or alternatively a range of $30,000-$40,000 if the injuries and pain continued
for 4½ years.

[145]     It is
submitted the claim for future loss of $20,000 at Grouse Nest Golf Course per
year is not to be believed and is unsupported as is the evidence of promised
income to the plaintiff of $100,000 per year.

[146]     It is
submitted that both the plaintiff’s evidence and his mother’s evidence in this
regard should be rejected.

[147]     For past
loss of income the defendants concede $11,550 gross income loss from November
15, 2006 to May 2007 from CS Floors, less $2,310 for times when work was not
available, leaving a total of $9,240 gross as the appropriate amount to award.

[148]     Otherwise
defence counsel submits there is no provable past loss of income claim.

[149]     For the
claim of future loss of income-earning capacity it is submitted that there is
no basis on the facts nor in the law for any award under this heading.

[150]     The same
submission is made for the claim for cost of future care.

[151]     The
defendants agree to physiotherapy costs from February 5, 2007 to June 13, 2007
in the amount of $505.82, but submit that there are no further expenses that
should be awarded as they are unsupported by the plaintiff’s doctors and/or unrelated
to the injuries in the motor vehicle accident.

[152]     With
particular respect to the MRIs it is submitted that the cost of these should be
denied as they are not medically supported.

Analysis and Decision

Non-Pecuniary Damages

[153]     I accept
that the plaintiff’s initial pain in his right shoulder and neck area had
resolved completely by May 30, 2007 before he went to Alberta to work.

[154]     I accept
the opinion of Dr. McGraw that the plaintiff sustained a strain of his
left sacroiliac joint and I reject the opinion of Dr. Watt that it was
rather a soft tissue injury to his left iliopsoas muscle and his left
piriformis muscle.

[155]     Dr. Watt
may not have diagnosed a sacroiliac joint strain but he was not prepared to
disagree with Dr. McGraw’s diagnosis of that.

[156]     Dr. McGraw
proved his diagnosis through the image-guided diagnostic block of the joint on
March 3, 2009 and October 22, 2009.

[157]     In his
report of July 24, 2008 Dr. McGraw diagnosed grade 1 soft tissue injury to
the lower back area and Dr. Watt in his report of February 9, 2011 also described
complaints of non-radiating low back pain at the time of his assessment of
January 17, 2011. To that extent the diagnosis of both doctors is similar.

[158]     The
plaintiff told Dr. Watt in 2011 that a new set of exercises put his low
back at a recovery point of about 95% to 100% of normal, with virtually no low
back pain over the previous two weeks. I accept this as the stage of recovery the
plaintiff is at presently.

[159]     I am
prepared to accept some present minor low back injury related to a strain of
the left sacroiliac joint causing mild pain at times of prolonged lifting,
bending or crouching but I also do not consider that this pain has been
disabling to any of the plaintiff’s activities at all.

[160]     I accept
the evidence of Mr. Merwin of the Fort Langley Golf and Country Club that
he did not see any impairment of the plaintiff’s abilities to do the work at
that golf course in 2008 and I conclude that is because the plaintiff did not
show any impairment nor have any impairment of his ability to do his job to its
fullest.

[161]     Similarly
I reject any evidence of the plaintiff and his mother that he has any
impairment of his abilities to complete all his responsibilities at the Grouse
Nest Golf Course in Alberta.

[162]     The
plaintiff has continued throughout with chiropractic and physiotherapy
treatments and his own evidence is that they have done wonders for his
complaints.

[163]     Although Dr. McGraw
says that consideration could be given to a surgical fusion or arthrodesis of
the left sacroiliac joint if the joint pain is not managed in the long-term by
conservative treatments such as injections, or doing nothing and becoming fit,
he does not recommend surgical intervention.

[164]     With this
opinion of Dr. McGraw that I accept I do not consider the chance of
surgical intervention to be at any level sufficient for an award of
compensation.

[165]     I am
satisfied from all the evidence that the plaintiff’s effort to become more fit
through his own exercise routines is working sufficiently to resolve the strain
in his left sacroiliac joint and any related low back soft tissue injury.

[166]     I decline
to apply any adverse inference against the plaintiff for failing to call Dr. Feldman,
a physiatrist who attended on him. The plaintiff says he was simply told, as Dr. Parkin
had told him, to rest. Even if I were to apply any adverse inference I would
not know what that inference would be other than the opinion would be no
different than all the evidence I have heard.

[167]     I am
prepared to accept that the plaintiff’s complaints have continued for over four
years, but at a mild level, and I consider an appropriate award of
non-pecuniary damages for pain and suffering and loss of enjoyment of life
should be in the amount of $40,000.

Past Income Loss

[168]     At the
time of the motor vehicle accident the plaintiff was unemployed and receiving
employment insurance. Although he says he had talked to CS Floors about a job
prior to the motor vehicle accident and was expecting to start around the
middle of November 2006, Mr. Roy of CS Floors said nothing about this when
he gave his evidence. In addition while Mr. Roy said his own rate was $25
per hour he did not give any rate for the plaintiff.

[169]     I do
accept that the plaintiff would have returned to work sooner than he did if not
for the injuries in this accident, but it is somewhat unclear as to when that
might have been. The defendants concede a loss of income from November 15, 2006
to the end of May 2007 and I consider that fair.

[170]     I am
prepared to award the plaintiff $15,000 gross for his loss of income during
that period of time.

[171]     As of June
15, 2007 the plaintiff was working at Grouse Nest Golf Course in Alberta where
he remained until October 2007. No income shows on his tax return from that
source in 2007. While I assume the plaintiff was paid something while he worked
there, there is no evidence of what it was.

[172]     In any
event no claim is made for a past income loss after Mr. Madsen began work
at Grouse Nest Golf Course in June 2007.

[173]     The
plaintiff says in his evidence that he didn’t feel like working when he
returned to British Columbia in October 2007 and he told Dr. Watt that he
remained off work by choice until May 2008. I accept this evidence.

[174]     In May
2008 the plaintiff started working at Fort Langley Golf and Country Club where
he was paid and then moved to CS Floors where he was paid again until he quit
in November 2008.

[175]     In 2009
the plaintiff set up his own company, Yard Gnomes Home Maintenance, where again
he made money before it ultimately failed. He says he then went back to CS
Floors but does not disclose any income from that source in his tax return.

[176]     There is
no claim being made for the years 2010 or 2011.

[177]     I can see
no basis for any past income loss claim beyond the $15,000 awarded to the
plaintiff for the initial period.

Loss of Future Earning Capacity

[178]     The claim
is made on the basis of the plaintiff’s mother’s evidence that she expects she
will have to pay others approximately $20,000 per year to do work that she says
the plaintiff is physically unable to do, and therefore will deduct the $20,000
from the $100,000 she says she is prepared to pay the plaintiff per year to be
the superintendent at this nine hole golf course in Alberta.

[179]     Alternatively,
the claim is made that the plaintiff will lose a prospective income from the
granite top installation business because he cannot lift the heavy pieces
himself and his cousin Cole Madsen can no longer partner with him.

[180]     I reject
the plaintiff’s mother’s evidence of any anticipated loss by the plaintiff at
Grouse Nest Golf Course of approximately $20,000 per year or any number.

[181]     In the
first place, with the evidence of Mr. Merwin of Fort Langley Golf and
Country Club, an 18-hole course, that as superintendent there he only makes
$50,000 to $55,000 a year, I consider it ridiculous to suggest that the Grouse
Nest Golf Course would pay the plaintiff $100,000 per year to superintend nine
holes. I conclude the mother is just doing her best to help her son in his
claim and is exaggerating beyond belief.

[182]     I reject
the evidence of the plaintiff that he has any impediment to doing all that he
is required to do as a superintendent at the Grouse Nest Golf Course as he did working
at the Fort Langley Golf Course.

[183]     There is
no basis for any award for an inability to do work that he otherwise would be
required to do in his position as superintendent. His mother’s estimate of loss
for her son of $20,000 per year is completely unsupported.

[184]     I also
reject the plaintiff’s evidence that he will lose money from not being able to
do granite countertop installations because he won’t be able to find another
partner to work with that he can trust as much as he could his cousin Cole
Madsen.

[185]     Such a
proposition in my view is ludicrous. I believe the plaintiff is more able to
handle heavier granite pieces than he is making out based on the testing that
he was able to perform for Mr. Nguyen and the conclusions of Dr. Watt
about his capabilities.

[186]     If the
plaintiff needs help with heavier granite pieces I am sure he can find another
trustworthy partner/employee to work with him.

[187]     At the
same time the plaintiff appears to have no intention of ever going back to the
countertop installation business now that he is involved in his mother’s Grouse
Nest Golf Course in Alberta.

[188]     I see no
basis in law to award the plaintiff any amount for loss of future earning
capacity.

Special Damages

[189]     Special
damages are claimed in the amount of $16,000. Dr. Parkin says he referred
the plaintiff for physiotherapy and advised the plaintiff that massage therapy
and chiropractic therapy were not contraindicated.

[190]     All these
treatments appear on the medical evidence to have served the plaintiff well in
his recovery.

[191]     I award
the plaintiff his losses for these treatments which I understand are in the
amount of $16,000.

[192]     I decline
to award anything for the three MRIs because the plaintiff decided to do these
on his own, when Dr. Hobson told him that they were not medically
indicated. In the circumstances there is no evidentiary basis for such an
award.

[193]     Similarly
with respect to the visit the plaintiff made to a psychologist, no physician
for the plaintiff recommended this and there is no evidence that would support
any basis for this claim. The plaintiff was referred there by his own lawyers
and not by a doctor.

Cost of Future Care

[194]     I see no
basis in the evidence for any award for cost of future care for any possibility
of surgery, as I consider that only a remote possibility on the strength of Dr. McGraw’s
opinions. I am not prepared to make any award for the general possibility of
future treatment without any specifics.

Conclusion

[195]     In
summary, the plaintiff is awarded:

(a)      general damages of
$40,000;

(b)      past wage loss of $15,000;

(c)      future wage loss – nil;

(d)      special damages of
$16,000;

(e)      future care costs – nil.

[196]    
The plaintiff will have his costs unless there is any reason to have a
hearing on the issue.

“The Honourable Mr.
Justice Truscott”