IN THE SUPREME COURT OF BRITISH
COLUMBIA

Docket:
M101674

Registry: Vancouver

Between:

Shirley
Charles

Plaintiff

And

Matthew
Dudley, Julie Valough-Buhl
and Alfred Bailey

Defendants

Before: The Honourable Mr.
Justice McEwan

Reasons for Judgment

I

[1]
The plaintiff was injured in a motor vehicle accident on June 1, 2008.
She was a passenger in a 1999 Chevrolet Silverado truck owned and operated by
her boyfriend Alfred Bailey which was struck by a 2007 Hyundai operated by
Matthew Dudley near the intersection of Fraser Highway and 200th Street in
Langley, British Columbia. Liability is admitted by Mr. Dudley, as is the fact
that he was operating the vehicle involved in the accident with the consent of
Julie Valough-Buhl, its registered owner.

II

[2]
The trial proceeded in a fashion I would have described as unorthodox
until recently, with the medical evidence called before the plaintiff
testified. Counsel advised that they understand this to be the preferred way to
run a personal injury case. I do not know where they get this idea. If
persuasion of the trier of fact is the objective, the practice of leading
medical opinion unattached to any factual foundation is the most awkward way to
go about it. I have observed elsewhere that doctors do not subject their
patients to a forensic examination. They generally assume that what the patient
tells them is true and attempt to treat their symptoms. Their observations are
of assistance to the trier of fact to the degree to which they reasonably
conform to the facts that have been established after the plaintiff’s
assertions have been tested. It is very difficult to assimilate medical
evidence provisionally, that is, with no means of sorting what matters from
what does not. A trier of fact obliged to hear a trial this way must go back over
such evidence to put it in context. This Court is not alone in making this
point. In Yeung v. Dowbiggin, 2012 BCSC 206, Humphries J. said:

[27]     Since the plaintiff was
one of the last witnesses called and was in the courtroom very rarely prior to
her testimony, it was difficult to assess the evidence about the effects of the
accidents as I listened to the various witnesses. I had no idea who the
plaintiff was, had no sense of her, and had heard no evidence about the
accidents as I listened to all these witnesses. I do not know if this was a
tactical decision or whether it was necessitated by schedules, but it meant the
evidence I heard was all without context.

[3]
In any event, owing to gaps in the scheduling of the opinion witnesses,
I persuaded counsel to call the plaintiff after the first medical witness had
testified to fill out the court day. The case then proceeded with interruptions
of the plaintiff’s evidence to accommodate the scheduled witnesses. While
occasional scheduling issues may dictate such a course, plaintiffs in personal
injury cases should generally be called first, if the point is to put across a
coherent case.

III

[4]
Ms. Charles was born August 25, 1955 in Montreal. She is the youngest of
five, two brothers and two sisters. She completed high school in Montreal and
then took a year at Humber College in Toronto.

[5]
She started working at St. Paul’s Hospital in Vancouver in 1994, as an
administrative assistant. She has done similar work, since she started on a
casual basis and has worked full time since 1998. She has worked in various
departments in the hospital and is currently working in the Social Work
Department.

[6]
The plaintiff has been in the workforce since 1974 in a variety of
clerical settings, including her own agency where she had contracts for
temporary clerical work. She moved from Toronto to Vancouver about a year before
she got work at St. Paul’s Hospital. During that year she also worked as a
demonstrator in Costco.

[7]
The plaintiff has been in a common-law relationship since 2005 with
Alfred Bailey. They had a mutual interest in playing squash. As they get to
know each other they began to pursue a number of other physical and
recreational activities together, including walking, swimming and cycling. They
also did a lot of gardening.

[8]
The plaintiff was in the habit of riding her bicycle to work every day
from Kerrisdale, a commute of several kilometres. She was a member of the YMCA
downtown and participated in yoga and weightlifting.

[9]
The plaintiff was very serious about her exercise regime, in part
because she was aware of a tendency in her family to develop blood clots. Her
sister, a twin, had the problem at the age of 48. This concerned the plaintiff
and she says she was determined not to gain weight.

[10]
In 2002 the plaintiff was told that she had this blood disorder. She
said this made her determined to take responsibility for her health. She had
not received any medical treatment in the several years before the accident.
She said that she had broken her wrist in 1992. The plaintiff said that she had
incorporated massage into her health routine and that in the year before the
accident she took many massage treatments.

[11]
On the day of the accident the plaintiff and Mr. Bailey were going to a
farm on Fraser Highway for a purpose related to Mr. Bailey’s work in soil
enhancement.

[12]
The accident occurred as Mr. Bailey was turning left off Fraser Highway
at the farm entrance. His truck was struck from behind on the driver’s side.
The plaintiff was sitting with her leg over her knee in the passenger’s seat
facing Mr. Bailey. She had no warning of the impact and was flung forward on
the impact. She said she heard a “pop” in her neck. She said she was stunned
and had a “complete headache”. She said she felt pain down her left side and
down her spine and into her lumbar area, and felt totally confused.

[13]
In the aftermath, the plaintiff recalls that she had a headache and felt
stiff and nauseated and had a pain in her jaw. She said she had pain in her
arms and legs and throughout her body.

IV

[14]
The plaintiff saw Dr. Wendy Porten the next day. She took ten days off
work. She was not symptom free when she went back, but took some prescribed medication
and Tylenol 3 and aspirin. She attended 12 physiotherapy sessions. After three
weeks she was somewhat better. She could get on a bicycle but said she felt
less safe. She found walking painful and said that she was having constant neck,
shoulder and lower back pain. When she felt confident enough she said she rode
her bike to work because she needed the exercise and wanted to get back into
shape.

[15]
In the fall of 2008, about six weeks after she had flown across the
country to attend her mother’s birthday, the plaintiff had a pulmonary
embolism. About three weeks before the embolism she noticed that she was
experiencing shortness of breath and that her left leg felt heavier. She was
diagnosed as having had a blood clot in her lungs and appears to have had one
in her leg. She was put on warfarin and treated as an out-patient. Her symptoms
related to the embolism went away in about four weeks.

[16]
The plaintiff was clearly upset about the embolism and about having to
take warfarin which she described as “rat poison”. She thinks she was on
warfarin for about a year, and continues to take aspirin. She has also
attempted to treat her blood clotting condition with naturopathic treatments
and acupuncture.

[17]
The plaintiff says she experienced shortness of breath and lack of
energy and fatigue as a result of the embolism. She acknowledged that she was
worried that it would kill her. She said the warfarin caused her skin to break
out in rashes.

[18]
She said that presently she has soreness in her neck, a limited ability
to lift weights, and finds it difficult to bend, kneel or run. She said her
boyfriend, Alfred Bailey, now does the gardening she used to do. She said she
tried but was unable to do it without experiencing a level of pain that obliged
her to stop. She finds ordinary housework difficult. She cannot move the
furniture. She said she can cope with housework if she paces herself.

[19]
The plaintiff said she experiences pain throughout her whole body and is
limited to lifting objects of five to ten pounds, so she avoids lifting. She said
her motivation to exercise has decreased. She said she is in pain in her back,
shoulders, and elbows and all over her body. She said her neck, back and elbows
always ache and finds that her elbows are sore even when she holds a book. She
said she can’t handle an iPad without extreme pain. She said she is able to
sleep but sometimes wakes up. She does not feel refreshed when she wakes up.

[20]
The plaintiff said she was working out before the accident and that the
YMCA was her “lifestyle”. She said she was working toward body building. She
found that after the accident her “spirit had been dampened” and although she
tried to go, her interest has fallen off. She said she needs someone to watch
her because she has no idea what her body can do. She was afraid to do much for
fear of further injury.

[21]
The plaintiff said that her intimacy with Mr. Bailey has stopped because
of her weight gain. Photographs were introduced showing her before the accident
when she weighed 128 pounds, more recent photographs showed her at her present
weight which she said is 175 pounds. She said the weight gain began right after
the accident and that she has never lost weight since.

[22]
In cross-examination the plaintiff agreed that she went home after the
accident and did not go to the hospital. After seeing her doctor on June 8th she
was given a prescription. She did not seek medical attention related to the
accident until August of 2010.

V

[23]
The plaintiff had seen the same doctor since 1994. When she saw the
doctor on June 8th she was advised to begin physiotherapy. This started June 17th.
She did not renew the prescription her doctor had given her and she cancelled a
July 7th appointment. The plaintiff did not attend physiotherapy during the
month of August 2008, and on September 24th, she was assessed as having normal
function. The plaintiff did not re-attend physiotherapy for treatment relative
to the accident.

[24]
The plaintiff saw Hector Tao on various occasions between February 6,
2007 and May 22, 2008, for massage, generally after working out. She saw him
nine times between June 5, 2008 and July 17, 2008. She said her last massage
was on September 27, 2008, and she did not go back until June of 2009, when she
saw him for matters unrelated to the accident.

[25]
The plaintiff acknowledged that she was back at work full time two weeks
after the accident and that she frequently rode to and from work on her bicycle
until she had the pulmonary embolism. She says she modified her exercise regime
at the YMCA to eliminate weight lifting. She rode a stationary bike and used
some of the other equipment. She stopped going to the YMCA when it closed for
renovations.

[26]
The plaintiff acknowledged that her complaint of elbow pain did not
arise at the time of the accident.

VI

[27]
Alfred Bailey’s evidence was introduced by consent, by the unusual
expedient of tendering the examination for discovery conducted by the plaintiff
as if it were a deposition. The principal issue upon which Mr. Bailey was
discovered was liability, but he was also asked about the plaintiff’s condition.
Although technically a cross-examination most of the questions were not particularly
leading. I have read the transcript for whatever assistance it may be.

[28]
Mr. Bailey confirms that in the immediate aftermath of the accident the
plaintiff was quite uncomfortable, and that for some time after he took on the
larger share of the household tasks he and the plaintiff used to divide. He said
that he commuted to Vancouver from Abbotsford, where he was working in a farm,
more often than he would have otherwise, to help her for the first three or
four months. He said it was a year or so before she was doing her share of the housework
because she was hard to get motivated. He said she would complain about putting
on weight but would not get any exercise. He confirms that she was fit and
motivated to remain fit before the accident.

[29]
Mr. Bailey said that all of the fitness activities he and the plaintiff
engaged in before the accident have been curtailed. He thinks that the plaintiff
has been getting better recently and is able to walk a mile or so without
complaining.

[30]
Mr. Bailey said the plaintiff was depressed after the accident. He said
that after the accident, but before the blood clot, she was eating less and did
not appear to have a serious desire for food. He said she seemed more forgetful
and disengaged in things. He did not think she has regained her former state of
health.

[31]
The plaintiff’s documented medical condition is found in records which
have largely been reduced to a series of admissions, including the following:

B.  Dr. Wendy Porten, general practitioner

10.    That
the plaintiff first sought treatment related to the Accident
with Dr. Wendy Porten on June 2, 2008.

11.    That the plaintiff saw Dr. Wendy
Porten on June 2, 2008.

12.    That Dr. Porten recorded all visits with the plaintiff in her
clinical records.

13.    That the plaintiff complained of “sore neck +
shoulders”, “[right] + [left] temple + forehead sore”, and
“fatigue” to Dr. Porten on June 2, 2008.

·
The Plaintiff has suggested that further
symptoms were also indicated to Dr. Porten.

14.    That Dr. Porten advised the plaintiff to rest, obtain massage
therapy, and to take “Arthrotec 75, BID x 20 tab” on June 2, 2008.

15.    That the plaintiff at no time reported widespread pain to Dr.
Wendy Porten.

·
In her one visit to Dr. Porten after the
accident the Plaintiff reported pain in several places. Whether this
constitutes widespread pain is a matter for expert opinion. It is true that the
Plaintiff did not attend Dr. Porten and say “I have widespread pain”.

C.  Dr. Joanne Irwin, general
practitioner

16.    That Dr. Joanne Irwin recorded all visits with the plaintiff
in her clinical records.

17.    That the dates indicated in Dr.
Irwin’s clinical records are accurate.

18.    That the plaintiff saw Dr. Irwin on
June 3, 2008.

19.    That the plaintiff complained of “neck pain”,
“right shoulder pain feels stiff”, “headache diffuse” to Dr. Irwin on
June 3, 2008.

·  Admitted. However, the Plaintiff also made other complaints at that
time.

20.    That Dr. Irwin recorded all significant symptoms reported to
her on June 3, 2008.

21.    That Dr. Joanne Irwin advised the plaintiff to attend
physiotherapy, take Advil, get an x-ray, and return for review in 2 weeks.

22.    That the plaintiff was prescribed physiotherapy by Dr. Joanne
Irwin on June 3, 2008.

23.    That the plaintiff saw Dr. Irwin on
June 12, 2008.

24.    That the plaintiff complained [among other things] of “still
neck pain/headache”, “TMJ pain, feels sore behind her eyes”, “now lower back
pain ++”, “[increased] pain with standing, sleep/laying down better” to Dr.
Irwin on June 12, 2008.

25.    That Dr. Irwin recorded all significant symptoms reported to
her by the plaintiff on June 12, 2008.

26.    That Dr. Irwin advised the plaintiff to come in for a “recheck”
on July 7, 2008.

27.    That the plaintiff cancelled her appointment with Dr. Irwin
on July 7, 2008.

28.    That the plaintiff did not see Dr.
Irwin again until February 13, 2009.

29.    That the plaintiff saw Dr. Irwin on February 13, 2009 but not
for reasons relating to her injuries in the subject motor vehicle accident.

30.    That the plaintiff saw Dr. Irwin on May 11, 2009 but not for
reasons relating to her injuries in the subject motor vehicle accident.

31.    That the plaintiff saw Dr. Irwin on May 23, 2009 but not for
reasons relating to her injuries in the subject motor vehicle accident.

32.    That the plaintiff saw Dr. Irwin on October 13, 2009 but not
for reasons relating to her injuries in the subject motor vehicle accident.

33.    That the plaintiff saw Dr. Irwin on October 16, 2009 but not
for reasons relating to her injuries in the subject motor vehicle accident.

34.    That the plaintiff saw Dr. Irwin on October 27, 2009 but not
for reasons relating to her injuries in the subject motor vehicle accident.

35.    That the plaintiff saw Dr. Irwin on January 18, 2010 but not
for reasons relating to her injuries in the subject motor vehicle accident.

36.    That the plaintiff saw Dr. Irwin on April 3, 2010 but not for
reasons relating to her injuries in the subject motor vehicle accident.

37.    That the plaintiff saw Dr. Irwin on May 10, 2010 but not for
reasons relating to her injuries in the subject motor vehicle accident.

38.    That the plaintiff saw Dr. Irwin on June 14, 2010 but not for
reasons relating to her injuries in the subject motor vehicle accident.

39.    That the
plaintiff was not seen Dr. Irwin since June 14, 2010.

[32]
The admissions include the following respecting massage and physiotherapy
treatments:

D.  Hector
Tao, Massage therapist

42.    That the plaintiff complained of pain and/or stiffness in her
neck, shoulders, trapezius, upper back, lower back, sacroiliac joint, hip,
arms, knees, and thighs to Hector J. Tao, massage therapist, on various
occasions between February 6, 2007 and May 22, 2008.

·
Admitted.  This was after strenuous workouts.

43.    That, after
the Accident, the plaintiff attended massage therapy 9 times between June 5, 2008
and July 17, 2008.

·
Admitted.  The Plaintiff also had massage
therapy on other occasions.

E.  Westside
Physiotherapy and Hand Clinic, physiotherapist

44.    That the plaintiff only saw Sid Raddalgoda, physiotherapist,
at the Westside Physiotherapy and Hand Clinic.

45.    That Mr. Raddalgoda recorded all visits with the plaintiff in
his clinical records.

46.    That the dates indicated in Mr. Raddalgoda’s clinical records
are accurate.

47.    That “ADLs”, in the context of Westside Physiotherapy and
Hand Clinic September 24, 2008 clinical notes, stands for “activities of daily
living”.

48.    That Mr. Raddalgoda recommended to the plaintiff on July 30,
2008 that she “try 20 min…walk/run”.

49.    That the plaintiff did not attend any physiotherapy sessions
at Westside Physiotherapy and Hand Clinic in August 2008.

50.    That Mr. Raddalgoda recommended to the plaintiff on September
3, 2008 that she “[follow up] in 2wk [and with] possible [discharge]”.

51.    That the plaintiff reported to Mr. Raddalgoda on September
24, 2008 that she was “fine with [activities of daily living]” and was “able to
do all normal activities”.

52.    That the plaintiff’s physiotherapist at Westside
Physiotherapy and Hand Clinic, on September 24, 2008, assessed the plaintiff as
having “Normal function” and recommended that she be discharged from physiotherapy.

·
Admitted. However, we will object to this
being admitted as a medical opinion. These facts are admissible only for the
purpose of showing that they happened.

53.    That Mr. Raddalgoda discharged the plaintiff from
physiotherapy on September 24, 2008.

54.    That the plaintiff did not attend Westside Physiotherapy and
Hand Clinic after September 24, 2008.

55.    That the
plaintiff only attended physiotherapy for reasons related to the Accident until
September 24, 2008.

[33]
The admissions include the following respecting prescriptions:

F.  Prescription
medications

56. That the plaintiff filled a prescription for 20 pills of Arthrotec
75mg-200 on June 2, 2008.

57.    That the plaintiff did not seek any prescriptions for
medications relating to injuries suffered in the Accident between June 3, 2008 and
August 23, 2010.

58.    That the plaintiff did not obtain any prescriptions for
medications relating to injuries suffered in the Accident between June 3, 2008
and August 23, 2010.

59.    That the
plaintiff did not fill any prescriptions for medications relating to injuries
suffered in the Accident between June 3, 2008 and August 23, 2010.

[34]
The plaintiff tendered a report from Dr. Rhonda Shuckett. She diagnosed
fibromyalgia based on positive complaint at 17 out of 18 tender points, and six
out of seven control points. She summarized her complete diagnosis as follows:

1. Neck pain, most likely
musculoligamentous.

There could be some component of zygapophyseal joint (Z-joint) capsular injury. There is some
decrease in range of neck motion.

2.      Thoracolumbar [pain] with a bit of decreased
range of motion.

This was relatively mild and I believe that this relates to soft
tissue injury.

3.      Impingement syndrome of the left shoulder, relatively mild,
and a bit of impingement, possibly, of the right shoulder.

4.      Myofascial pain syndrome (MPS) and muscle spasm in the neck
and shoulder girdle regions, particularly the trapezii.

5.      Mechanical low back pain and some suspected sacroiliac
ligament strain.

I cannot rule out an acetabular labral tear
on one or the other hip but am not particularly suspicious of this. I will not
recommend a MRI arthrogram in view of her history of lupus anticoagulant or
antiphospholipid syndrome and a risk of clot formation.

6.      Fibromyalgia
syndrome and chronic pain syndrome.

[35]
Her remarks on causation were as follows:

CAUSATION:

I believe that the neck and shoulder area
pain, myofascial pain syndrome and mechanical low back pain and buttock hip
area pain are mainly due to the subject MVA. However, she did have some
musculoskeletal complaints for which she saw a massage therapist until May 22, 2008,
so not long before the MVA of June 1, 2008. It seems that she was a bit prone
to stiffness of the upper back, neck, and right hip related to doing her
exercise. Thus, I believe that these pre-existing symptoms likely placed her at
greater risk for injury of these areas with the subject MVA.

As far as fibromyalgia is concerned, there
are papers in the literature, both supporting and detracting from an
association between fibromyalgia and an injury. I do believe that she likely
got into a situation of deconditioning, multiple areas of soft tissue injury, a
non-restorative sleep pattern and possible mood disorder. These sequelae of the
MVA likely played a role in her development of fibromyalgia and development of
chronic pain syndrome.

To what degree
other psychosocial factors unrelated to the MVA, such as the death of her
mother, interplayed with the evolution to fibromyalgia, is a consideration.

[36]
Her prognosis was as follows:

PROGNOSIS:

By the time I saw her, it was about three
and a half years since the subject MVA and she remains symptomatic. I believe
that a significant component of her prolonged pain is related to the
development of fibromyalgia syndrome. I believe that there is a significant
chance that she is going to continue with her current level of pain in the
longer term future.

Regular exercise is to be supported and I
would support her working with a physical trainer, or kinesiologist, to help
attain some better aerobic fitness and to help deal with her weight loss. It
sounds like her weight gain is derived from being less able to be physically
active after the MVA.

Cognitive behavioral therapy (CBT) is
another important modality to help patients with fibromyalgia and chronic pain
syndrome cope with their symptoms better. This is usually administered by a
psychologist.

In the event of
a future injury, such as a future MVA, she will be at heightened risk for
exacerbation of her symptoms from the subject MVA of June 1, 2008.

[37]
Dr. Shuckett was cross-examined on her report. She acknowledged that she
first saw the plaintiff December 23, 2011, and that the referral came from her
lawyer. She was shown the records of a Dr. Goddard, who, on July 23, 2010, had
diagnosed the plaintiff as having “severe arthritic pain”. Dr. Shuckett said
she disagreed with that diagnosis.

[38]
Dr. Shuckett said that as she looked at the plaintiff’s condition now
she does not think she had chronic pain syndrome. Dr. Shuckett acknowledged
that she relied heavily on the plaintiff’s subjective reports of pain.

[39]
Dr. Shuckett acknowledged that if there was a history of a period after
the accident when the pain seems to have disappeared for six months that would
indicate some interruption in the pathway back to causation by the accident.
She acknowledged that while she had concluded that the plaintiff had
fibromyalgia when she saw her she cannot say when it developed. She also said
that in light of the pulmonary embolism and other factors it was challenging to
sort out the various contributing factors.

[40]
The plaintiff called Paul Pakulak, a rehabilitation consultant. He
concluded:

In my opinion, Ms. Charles demonstrated the
physical capacity to be employable at up to a light level on a full time basis
with restrictions and limitation as noted above. Below waist level work and
overhead work should be kept to an occasional basis. If she is required to
complete tasks requiring prolonged sitting she will require the flexibility to
take periodic breaks to change positions and shift around to manage increases
in symptoms. She may also benefit from the provision of high end ergonomic
seating to maximize her comfort when working in a seated position.

It is also my opinion that her overall
ability to compete for work in an open job market is significantly reduced due
to her ongoing injuries and resultant physical limitations. That is, the
overall number of jobs that she would be able to compete for given her physical
limitations are significantly limited.

With respect to her previous work as an
Administrative Assistant, the physical demands of that work are described in
the NOC under the category of Administrative Clerks (1441) and are described as
requiring limited or sedentary level strength, upper limb coordination, prolonged
sitting, verbal interaction and near vision. Given her reported job demands and
my experience working with others in this occupation, I would generally concur
with this description. Based on the testing results, it is my opinion that she
did demonstrate the capacity to complete this work on a full time basis at a
competitive and sustainable pace. Testing results suggest that prolonged
positioning of the neck and shoulders and prolonged sitting will result in some
increases in symptoms and she will require the flexibility to take periodic
breaks to stretch and change positions to manage symptoms. These breaks are
reportedly built into her work.

The following chart outlines this writer’s
opinion of her capacity to complete work as an administrative assistant on the
results of this assessment.

With respect to avocational activities, she
did demonstrate the capacity to complete most aspects of the household cleaning
chores in her current residence provided that she is able to pace herself to
manage increases in symptoms when completing the more physically demanding
chores.

[41]
His recommendations for Future Care included:

Over the course of her recovery she has
participated in physiotherapy, massage therapy, acupuncture treatments and
self-directed exercise efforts. Dr. Shuckett has recommended further
rehabilitation efforts that may assist Ms. Charles in her recovery efforts.
Given the results of the testing and the information contained in the medical
documents, I would recommend that consideration should be given to the
provision of funding for the following:

1.   Exercise therapy sessions. Dr. Shuckett recommended that she
participate in a supervised exercise program. I would concur with this
recommendation. She will benefit from the provision of funding for one to one
sessions with a Kinesiologist to assist her in developing an exercise routine
that she will be able to tolerate and then continue on her own. I would suggest
the provision of funding for 15 sessions. At a cost of $55 per hour, the cost
of 15, 90 minute sessions will be $1237.50.

2.   In order to facilitate ongoing participation in her self-directed
exercise efforts, she will continue to require an annual pass to a facility
that offers both a pool and fitness room. The cost of such a pass will vary
somewhat but typically ranges between $400 and $500.

3.   Dr. Shuckett also recommended that she may benefit from
cognitive behavioural therapy. It is difficult to predict how many sessions she
will require as this will depend on the relative success of the initial
sessions. Based on my professional experience I would recommend the provision
of 15-20 sessions. The need for any additional sessions will have to be
determined by the treating psychologist. At a cost of $175 per hour the total
cost of these sessions will range between $2625 and $3500.

Ergonomic or Assistive Devices

Given her
ongoing difficulties and demonstrated limitations with sitting she will benefit
from high end ergonomic seating to maximize her productivity and enhance her
comfort when completing her work. Seating is a matter of personal preference
and as such I would recommend that Ms. Charles attend at a store such as
Chairlines (www.chairlines.com) and trial a number of chairs before
making a purchase. There is a range of costs for high end seating, but given my
professional experience, I would suggest that a provision of $750 plus
HST would be sufficient for a suitable model. The chair will have to be
replaced every 3-5 years.

[42]
Mr. Pakulak was cross-examined at trial about some adverse comments that
had been made about his represented qualifications in an earlier court decision
in which he had testified as an expert witness: Araki v. Guitard, 2012
BCSC 165.

[43]
Taking account of the caution contained in that decision, I ruled that
Mr. Pakulak was qualified to give opinion evidence in this proceeding.

[44]
Mr. Pakulak recorded the following symptoms:

At the time of this assessment,
she reported the following ongoing symptoms and difficulties:

1. Neck and upper back pain. She described daily intermittent aching
and tension in the central aspect of the neck and the upper trapezius muscles
bilaterally. The pain tends to come on with prolonged positioning of the neck
and prolonged periods of looking up. She rated her pain at the time of this
clinical interview (current pain) at 0.5/10 according to the pain scale
outlined in Appendix E attached. She also indicated that her highest and lowest
levels of pain in the last 30 days were 5/10 and 0/10 respectively.

2.   Low back pain. She described daily intermittent aching and
tension on both sides of the low back that tends to come on with prolonged
sitting, prolonged standing and heavier lifting and carrying. She rated her
pain at the time of this clinical interview (current pain) at 0.5/10 according
to the pain scale outlined in Appendix E attached. She also indicated that her
highest and lowest levels of pain in the last 30 days were 3/10 and 0/10
respectively.

3.   Knee stiffness pain. She described daily intermittent stiffness
in the knees that comes on with prolonged positioning of the knees. She rated
her pain at the time of this clinical interview (current pain) at 0/10
according to the pain scale outlined in Appendix E attached. She also indicated
that her highest and lowest levels of pain in the last 30 days were 3/10 and
0/10 respectively.

4.   Elbow stiffness
pain. She described daily intermittent stiffness in the elbows that comes on
with prolonged positioning of the elbows. She rated her pain at the time of
this clinical interview (current pain) at 0/10 according to the pain scale
outlined in Appendix E attached. She also indicated that her highest and lowest
levels of pain in the last 30 days were 1/10 and 0/10 respectively.

[45]
When it was put to Mr. Pakulak that there was no indication of knee or
elbow injury in the accident, he suggested that they were not particularly
significant. He said that the plaintiff should be able to carry on with her
duties in her present occupation particularly if she is not required to handle
heavy loads.

[46]
The plaintiff led a report from a chiropractor, Dr. Deni Cortese. Dr.
Cortese examined the plaintiff on September 4, 2009. His findings were
summarized as follows:

It has been just over fourteen months since
the motor vehicle collision. Ms. Charles has noted improvement in her
condition. She is working full time and without restriction. She does find
herself uncomfortable after sitting for more than thirty minutes. If her
activity levels are low she has mild discomfort. As a result of her injuries
she has become deconditioned, gaining thirty pounds as well. She has begun to
ride her bicycle again but has not returned to employing a fitness trainer.
Home activities are well tolerated except for lifting and vigorous cleaning
activities. Sleep is fine. She may have pain in her jaw at times with chewing.
She also still complains of some cognitive difficulties.

From an objective perspective her cervical
ranges are still significantly restricted although she reports more stiffness
and tenderness than pain. Her lower spine ranges of motion are reduced ranging
from a mild to moderate in degree. Once again tightness and stiffness were the
majority of her complaints. Over the next twelve months I expect the patient to
continue to improve. The scientific literature reports that the majority of
recovery will take place over the first two years approximately (1). After that
time progress is gradual and limited. The literature also reports that the
patient may continue to have neck symptoms for up to five years with injuries
of this nature (3). She is considered vulnerable in future trauma for seven
years (3). The likelihood of future neurological deficits and surgery is low,
however, I believe Ms. Charles will not fully recover. She will be left with
residual symptoms of neck and back stiffness, periodic pain and limited
mobility. These symptoms will periodically flare-up, especially in relation to
activity. A short course of treatment will reduce an acute episode. The patient
obviously is encouraged to exercise to enhance stability, encourage
self-reliance and reduce reoccurrences.

Although her
global ranges of motion will likely remain reduced in the cervical (especially)
and lumbar spine. Ms. Charles should be able to return to the majority of her
pre-accident activities. She will likely experience stiffness, limited mobility
and periodic pain. The possibility of accelerating the common degenerative
process of the spine is a concern over the next five years or longer. The
prognosis in this regard is also guarded.

[47]
Dr. Cortese was cross-examined and re-examined. He did not think the
embolism or pulmonary thrombosis have much to do with the plaintiff’s pain.

[48]
The defence called Dr. Olli Sovio, an orthopaedic surgeon. Dr. Sovio
examined the plaintiff on May 1, 2012. His report include the following
“impression and discussion”:

This woman was involved in a motor vehicle accident June 1,
2008. It would appear from the history that this patient
suffered some soft tissue injury in this accident but she has continued to
complain of non-specific type pain basically throughout her whole body for the
last almost 4 years.

On physical examination I could not
demonstrate any structural abnormalities. The patient had tenderness in her
entire body. It did not matter where one palpated it was sore. The range of
motion of the neck was normal as was the range of motion of the upper
extremities in all the joints. There was nothing to suggest any structural
abnormality in the shoulders. There was no evidence of impingement. She had a
full range of motion but complained of pain all over with movement of the
shoulders. There was nothing to suggest any abnormality in the elbows, wrists
or hands.

She did not have any evidence of nerve root
impingement in the upper or lower extremities. Straight leg raising and femoral
stretch tests were normal. There was no abnormality of hip range of motion.
There was no evidence of hip impingement and in trying to elicit any labral
discomfort I could not elicit any in flexion and internal rotation.

The knees had pain all through. There was no
effusion. There was no evidence of meniscal pathology or ligamentous injury and
as mentioned no neurologic abnormalities. This patient’s symptoms are global and
involving the whole body. There is nothing to suggest that she has any specific
injury per se but complaints of these subjective muscular complaints.

These appear to be similar to the complaints
that she had when she was getting massage therapy when she was exercising prior
to the motor vehicle accident.

Dr. Shuckett seems to imply that the patient
is at a higher risk of sustaining injury because she had muscular discomfort
pre-accident.

I am at a loss to know what specific injury
the patient might have suffered. Certainly when I examined the patient there
was no shoulder impingement as suggested by Dr. Shuckett. The patient had a
negative Faber test and stressing the SI joints revealed no discomfort. She had
a full range of motion of her lumbar spine but the pain that she was
complaining of was global.

As far as fibromyalgia diagnosis was
concerned it is difficult to understand how this diagnosis can be made when the
patient has no areas in her body that are not tender.

I do not feel that the pain that the patient
has is on the basis of any physical and specific injury and thus it is
difficult to make a statement like that made by Dr. Shuckett whereby she feels
that the patient will have long term pain and will be at a heightened risk of
future injury.

There is nothing to suggest that the patient
has any muscular weakness nor is there any specific structural injury to the
muscles. If one looks at sports related injuries and muscular injuries individual
who suffers injuries to the muscles which are soft tissue injuries do heal and
are not at any greater risk of further injury. I do not feel that the statement
provided by Dr. Shuckett can be defended by any literature that I know of.

The patient needs to be reassured that
nothing significant is ongoing. She needs to start exercising. She states that
she is afraid to ride her bike to work because she is afraid of further injury.
There is nothing again to support that notion.

The patient is physically deconditioned. She
had gained a significant amount of weight, she is in the obese category and
this needs to be addressed. The patient has not exercised for an extended
period of time and it is no wonder that she gets discomfort if she tries to
exercise. She needs to gradually ease into her exercise program.

I do not feel that any further investigation
or any formal treatment is indicated. The patient needs reassurance.

As far as the reassurance of Dr. Cortese is
concerned I do not agree with the statement that the patient will have
accelerated degeneration of the spine as a result of this particular motor
vehicle accident. Dr. Cortese states that the patient has vertebral
dysfunction. This term is non-descriptive and really means nothing. I would
agree with the patient that the patient likely suffered whiplash associated
disorder Grade II. I do not however agree with the statement that the patient
will never recover.

As far as the
Functional Capacity Evaluation of Mr. Paul Pakulak is concerned. Mr. Pakulak did
not note that the patient had any shoulder problems and I agree with that and
this certainly disagrees with the findings of Dr. Shuckett. I do not feel that
the patient is limited in any capacity as mentioned previously and to that end
I disagree with the Functional Capacity Evaluation. Functional Capacity
Evaluations under the circumstances where there are significant subjective
symptoms which cannot be confirmed by physical findings are very problematic
and in spite of the ascertain that standardization of these tests are done it
is extremely difficult to standardize tests when subjective symptoms are
present.

[49]
Dr. Sovio was cross-examined. He remained firmly of the position that a
fibromyalgia diagnosis cannot be found where the complaint is of generalized
pain and is not specifically associated with trigger points, and that Dr.
Cortese’s “diagnosis” of vertebral dysfunction is not helpful because it
amounts to simply saying the back is not working properly when the question
that must be answered is “why”.  In court, Dr. Sovio was of the view that there
is no physical basis for the plaintiff’s complaints of injury.

VII

[50]
This is a case of a kind described 30 years ago by McEachern, C.J.S.C.
(as he then was) in Price v. Kostryba (1982), 70 B.C.L.R. 397:

1.     The assessment of damages in a moderate or moderately
severe whiplash injury is always difficult because plaintiffs, as in this case,
are usually genuine, decent people who honestly try to be as objective and as
factual as they can. Unfortunately, every injured person has a different
understanding of his own complaints and injuries, and it falls to judges to
translate injuries to damages.

2.     In this endeavour, we attempt to apply legal
principles; otherwise every damage award would stand alone in isolation from
other cases, depending largely upon how each individual plaintiff reacts and
responds to his injuries and how he or she describes them. This question was
discussed in Andrews v. Grand & Toy Alta. Ltd., [1978] 2 S.C.R. 229
at 243-44, where Dickson J., speaking for the court, said:

The focus should be on the injuries of the innocent party.
Fairness to the other party is achieved by assuring that the claims raised
against him are legitimate and justifiable.

[51]
The plaintiff’s complaints in the immediate aftermath of the accident are
consonant with a painful but moderate soft tissue injury. The precise dynamics
of the accident are not well described but are not crucial: it is clear that in
the impact the plaintiff suffered neck, shoulder and back strain in the
collision. She was conventionally treated with prescription medications and
massage treatments. She saw Dr. Porten on June 2, 2008, and followed with an
appointment with Dr. Irwin a day later, who recommended physiotherapy. The
plaintiff did not see Dr. Irwin between June 12, 2008 and February 13, 2009, at
which time she attended for complaints unrelated to the motor vehicle accident.
She saw Dr. Irwin about ten times up to June 14, 2010, for complaints that
were unrelated to the accident.

[52]
The plaintiff had a number of massage therapies with Hector Tao in the
months before the accident and took nine up until June 17, 2008, when they ceased.
She attended physiotherapy until September 24, 2008, when she was described as
having “normal function” and she herself said she was “fine”.

[53]
The accident occurred against a background of an “antiphospholipid
antibody” condition associated with a higher risk of arterial and venous
thrombosis, which was diagnosed by Dr. Chantal Leger on July 25, 2007. On
October 2, 2009, the plaintiff was diagnosed by Dr. Leipsic with “acute
Pulmonary Embolism”. This followed an incident on an airline flight from Ontario
to Vancouver August 5, 2009, in which she began to notice swelling and
tightness in her leg. On August 25th, the plaintiff was treated in the
emergency room. This led the diagnosis of a pulmonary embolism, and she was
started on warfarin.

[54]
The plaintiff missed two to three weeks of work due to the accident and
was commuting to work by bicycle after she went back.

[55]
There is a one year gap in treatment between September 2008 and October
2009 when the embolism was diagnosed, during which the plaintiff did not complain
of pain as a result of the accident. The available medical evidence is all from
medical and treating professionals who have seen the plaintiff since that time.

[56]
There is no medical report from the plaintiff’s treating physician, Dr.
Irwin.

[57]
There is no credible evidence linking the embolism to the injuries that
occurred in the accident.

[58]
There is also little credible evidence linking the plaintiff’s
deconditioning after the accident specifically to its effects. Mr. Bailey’s
evidence is of some assistance in that it corroborates the evidence of the
plaintiff to some degree and suggests that notwithstanding her self-description,
as “fine” in September 2008, and the fact that she had stopped seeing her
doctors, she continued to suffer from the effects of the collision. This is
contradicted to some degree by her ability to commute to work by bicycle when
she returned to work.

[59]
I fully accept the plaintiff’s evidence (which Mr. Bailey’s evidence
supports) that she was, up until the time of the accident, engaged in fitness
and in good condition. The photographs show that she has since gained
considerable weight. Mr. Bailey’s evidence suggests that there was a
significant change in the plaintiff’s motivation to work out or maintain her
fitness after the accident.

[60]
This cannot be because she could not continue because of pain and
disability. Her early return to work and her ability to ride her bicycle
shortly afterward negate any claim to serious disability. Her inattention to
treatment would normally suggest that she was not suffering. In the
circumstances of this case, one other possibility seems open, and that is that
the plaintiff somehow lost her motivation, not because of physical disability –
of which there is scant reliable evidence – but owing to factors which are not
identified in the evidence and merely speculative. The overall impression the
plaintiff gives is that starting around the time of the accident she ceased to
be as active as she had been and that following the embolism she adopted a much
more limited approach to her own health and fitness which clearly distresses
her and may be caused by her distress.

VIII

[61]
The medical evidence sets up a common conflict judges are obliged to
resolve, between medical reports which tend to assign consequences to motor
vehicle accidents that forensic scrutiny will not bear, and medical reports
that appear to underestimate the effects of injury that is not tangible or
visible. I do not characterize either Dr. Shuckett or Dr. Sovio in precisely
those terms, but their reports are rather divergent.

[62]
On balance, I accept Dr. Sovio’s view that the plaintiff’s present
complaints of generalized pain undermine the cogency of a diagnosis of
fibromyalgia. I do not accept that, in any event, the plaintiff has proved that
her present complaint of pain symptoms relates to the injuries suffered in the
motor vehicle accident. The plaintiff was subject to muscle pain before the
accident as a result of the strains caused by heavy exercise. She suffered an
injury that was treated positively for a limited period of time. She returned
to work after a brief period of time and was back to forms of exercise that I
think might have been bothersome had her injuries not largely resolved. The
medical trail ends about when one might expect for a moderate soft tissue
injury.

[63]
I think the plaintiff’s present complaints of constant pain may be the
result of the anxiety she clearly feels over the other medical condition she
has developed, and her apparent difficulty in maintaining the motivation she
once had towards fitness. Whatever the cause, the evidence does not establish
that the injuries suffered in the motor vehicle caused the present complex of
issues.

[64]
Doing the best I can, I think the plaintiff’s injuries resolved within a
few months of the accident. I allow that she may have had occasional pain that
reflects a slight increase in vulnerability to injury over the ensuing months.

[65]
The injuries are not within the range submitted by counsel for the
plaintiff of $50,000 to $125,000. The defendant’s submissions are in the $8,000
to $25,000 range, depending on the duration of the injury. The court was
referred to Morrison v. Peng, 2010 BCSC 562, a case of an older
plaintiff who suffered similar injuries and missed a brief period of work. The
quantum of general damages was $18,000.

[66]
In Willing v. Ayles, 2009 BCSC 1035, a 46 year old teacher
suffered similar injuries and did not miss any work. She was awarded $20,000
for an injury of approximately one year in duration.

[67]
In Loik v. Hannah, 2009 BCSC 1196, a 43 year old worker suffered
similar injuries and failed to seek appropriate medical attention. She was an
administrative worker who had difficulty performing her duties for a few months
and who had some lingering symptoms 3 years after the accident.

[68]
I assess the plaintiff’s injuries in light of these authorities at
$22,500. I cannot find on the evidence that the plaintiff’s deconditioning or
her other current complaints were caused or precipitated by the injuries
suffered in the accident.

[69]
There is no evidentiary basis for an award of future income loss or
costs of future care. The injuries the plaintiff suffered in the accident
appear to have persisted a matter of months.

[70]
The parties have agreed to past income loss of $2,900.22 and special
damages of $1,306.88.

[71]
The plaintiff is entitled to costs unless there are pertinent
circumstances that should be drawn to the Court’s attention.

“McEwan J.”

________________________________

The Honourable Mr. Justice McEwan