IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Sahota v. Ho, |
| 2013 BCSC 639 |
Date: 20130412
Docket: M034236
Registry:
Vancouver
Between:
Prabraj
Sahota, an infant, by his Guardian Ad Litem Rajinder Singh Sahota
Plaintiff
And
Anne Ho
Defendant
Before:
The Honourable Mr. Justice Cohen
Reasons for Judgment
Counsel for the Plaintiff: | Mandeep Randhawa |
Counsel for the Defendant: | Janet Lew |
Place and Date of Trial: | Vancouver, B.C. October 22-26, 2007 |
Place and Date of Judgment: | Vancouver, B.C. April 12, 2013 |
Contents
IV. The
Chronicity and Severity of the Plaintiffs Symptoms
A. The
Plaintiffs Medical Evidence
1. Dr.
L.K. Chua, the Plaintiffs Family Doctor
2. Dr.
R.D. Beauchamp, an Orthopaedic Surgeon.
3. Dr.
C. Hershler, a Physical Medicine and Rehabilitation Specialist
B. The
Defendants Medical Evidence
V. Summary
of the Plaintiffs Direct Examination.
VI. Summary
of the Plaintiffs Fathers Direct Examination
VII. Reliability
of the Evidence of the Plaintiff, his Father and Dr. Chua
A. Severity
of Neck Pain and Injury
I. The Plaintiffs Claim
[1]
The plaintiff, Prabraj Sahota, was injured in a motor vehicle accident
(the accident), on September 29, 2001, at the intersection of Garden City
Road and Cambie Street, in the City of Richmond, British Columbia, while riding
as a rear seat passenger in a motor vehicle owned and operated by his father,
Rajinder Singh Sahota, the Guardian Ad Litem. Liability for the accident is
admitted.
[2]
The plaintiff, who was 9 years old at the time of the accident, claims
damages for soft tissue injuries allegedly caused by the accident. He also
claims that he continues to experience ongoing chronic neck and upper back
pain, which has functionally limited his activities at home, school and work.
As a result, the plaintiff is seeking $75,000 for general damages, $50,000 for
past and future loss of income, $25,000 for future care costs and $410 for
special damages.
II. The Defence Position
[3]
The defendant concedes that the plaintiff sustained soft tissue injuries
to his neck and stomach, and some tenderness to the right side of his head as a
result of the accident. However, the defence position is that these injuries
resolved within a relatively short period of time following the accident. With
respect to the plaintiffs assertion of suffering from ongoing residual neck
and upper back pain and discomfort, the defence argues that these complaints are
unrelated to and were not caused or contributed to by the accident. In any
event, the defence says that causation aside, any residual neck pain
experienced by the plaintiff is intermittent and relatively mild.
III. The Issues
[4]
The central issue is that of the appropriate award to make to the plaintiff
for general damages, income loss and future care costs. In deciding this
issue, I must consider the chronicity and severity of the soft tissue injury to
the plaintiffs neck, and whether the plaintiffs complaint of upper back pain,
which was first reported by the plaintiff to his family doctor some two years
following the accident, can be blamed on the accident.
IV. The Chronicity and Severity of the
Plaintiffs Symptoms
A. The Plaintiffs Medical Evidence
[5]
The plaintiff filed five medical reports as exhibits and called the
doctors who authored the reports to testify.
1. Dr. L.K. Chua, the Plaintiffs Family
Doctor
[6]
Dr. Chua testified that he first examined the plaintiff following the
accident on October 1, 2001. Dr. Chuas examination showed tenderness in his
upper and lower abdomen and in the right side of his head. The central nervous
system was normal. The doctor diagnosed the plaintiff with a head contusion and
a soft tissue injury of the abdomen. He recommended that the plaintiff take
Advil as needed for his pain.
[7]
Dr. Chua next saw the plaintiff on October 16, 2001. He was complaining
of headaches and abdominal pain, as well as some pain in his neck that he said
began on October 2, 2001. Dr. Chuas examination at that time showed some
tenderness and slight stiffness in the plaintiffs neck and some tenderness of
his abdomen. He was advised to continue taking Advil when needed for his pain.
[8]
The plaintiff visited Dr. Chua on a number of occasions over the next
year and reported essentially the same complaints. On each visit, Dr. Chua recorded
neck pain and headaches, sometimes noting that one or both were on and off,
and abdominal pain.
[9]
On January 3, 2002, Dr. Chua noted that the plaintiff no longer reported
pain in his abdomen.
[10]
In Dr. Chuas report dated August 31, 2002, he concluded that as a
result of the accident, the plaintiff had sustained a mild to moderate head
contusion, a soft tissue injury to his abdomen and a moderately severe cervical
strain, explaining this to mean a strain of the plaintiffs neck or muscles of
the neck being pulled to such an extent as to cause him pain and swelling.
[11]
Dr. Chua further noted the plaintiff had much improved from his
injuries, but was still having slight residual neck pain with occasional
headaches. Dr. Chua expected the plaintiffs symptoms to gradually go away
without any permanent disability. Dr. Chua stated in his report that he had
reassured the plaintiffs parents during a visit earlier in the month that the
plaintiff was improving satisfactorily from his injuries.
[12]
On January 14, 2003, Dr. Chua noted the plaintiffs reports of headaches
for the last time.
[13]
In Dr. Chuas report dated July 19, 2003, he wrote that the plaintiff
was last seen by him on July 17, 2003, and that he still complained of pain in
his neck, on and off. He also reported that a physical examination of the
plaintiff showed mild tenderness, with a slight stiffness in his neck. Dr.
Chua testified that his opinion as of July 19, 2003 was that the plaintiffs
progress had not gone as well as he thought it might. Because of the
persistence of the plaintiffs reported neck pain, Dr. Chua referred the
plaintiff to Dr. R. Currie, an orthopaedic specialist. The plaintiff attended
Dr. Currie on August 12, 2003.
[14]
Dr. Currie did not file a report, nor was he called as a witness.
However, the history of the plaintiffs visits with Dr. Currie, as well as Dr.
Curries findings, are summarized in Dr. Chuas report dated August 5, 2007. Dr.
Chua stated that upon examination, Dr. Currie found slight tenderness of the
left para-cervical muscles, with a suggestion of mild thoracolumbar scoliosis.
An x-ray taken on August 12, 2003 showed a mild right convex thoracolumbar
scoliosis and a very minimal upper thoracic scoliosis.
[15]
Dr. Currie followed up with the plaintiff on September 8, 2003 and
suggested that he continue with a conservative treatment of stretching and a strengthening
range of movement exercises. He also referred him for physiotherapy
treatments.
[16]
In September 2003, Dr. Chua noted in his clinical records some
significant incidents involving the plaintiffs health. He recorded on
September 4, 2003 that the plaintiff had fallen on the school grounds that day
and injured his right hand. On examination he found that the plaintiffs
little finger had moderate tenderness with swelling and contusion. On
September 5, 2003, Dr. Chua recorded that the plaintiff went to the Childrens
Hospital emergency on September 4, 2003. An x-ray was taken of the plaintiffs
right hand which disclosed a fracture of the plaintiffs little finger.
[17]
The plaintiff returned to visit Dr. Chua on September 26, 2003. As
before, the plaintiff complained of pain in his little finger and neck pain. However,
the plaintiff also reported a slight pain in upper back, together with pain
in his neck. This is the first reference to back pain in Dr. Chuas medical
records following the accident. Dr. Chua noted stiffness and mild
tenderness in the plaintiffs neck and upper back.
[18]
On October 31, 2003, Dr. Chua recorded that the plaintiff had attended
two physiotherapy treatments (massage therapy), but the treatments had to be
discontinued after he fractured his upper incisor tooth during a fall at
school. Dr. Chuas records indicate that the plaintiff later resumed the
treatments and had completed six by early December 2003.
[19]
The plaintiff returned to see Dr. Currie on several occasions from 2004
to 2006 for follow-up regarding his neck and upper back. The plaintiff
continued to report pain in his neck and upper back, and on examination, Dr.
Chua recorded mild tenderness with slight stiffness in that area. On each
visit Dr. Currie advised the plaintiff to continue with his exercises.
[20]
During this time, the plaintiff would occasionally report additional
symptoms associated with his complaints of neck and upper back pain. For
example, on September 16, 2004, Dr. Chua recorded pain in the neck and upper
back on and off, worse when sitting for some time doing his homework. On
December 19, 2005, he recorded pain in the neck and upper back on and off,
especially when sitting and studying for a long time.
[21]
On November 6, 2006, the plaintiff reported that he slipped and fell
while exiting a van and injured his right hand. On examination, Dr. Chua found
moderate tenderness with swelling in the plaintiffs right ring finger and
diagnosed a contusion.
[22]
On December 19, 2006, the plaintiff reported dizziness when getting up
in the morning for about two weeks.
[23]
In his August 5, 2007 report, Dr. Chua noted that Dr. Currie ordered an
x-ray of the plaintiffs thoracolumbar spine on July 25, 2007, and that the
x-ray showed mild curvature of the lower thoracic and upper lumbar spine and
minimal curvature of the upper thoracic spine. The report further noted that
Dr. Currie did not feel there was any need for surgical intervention.
[24]
Dr. Chua stated in his August 5, 2007 report that he last saw the
plaintiff on July 30, 2007. There was still pain and stiffness in the
plaintiffs neck and upper back, and Dr. Chua advised him to continue with his
exercises and take Advil when needed for pain.
[25]
In his August 5, 2007 report, Dr. Chua reached the following the
conclusion regarding the nature of the injuries suffered by the plaintiff as a
result of the accident:
In summary, Mr. Prabraj Sahota
sustained, during the MVA of September 29th, 2001, a moderately
severe cervical strain, and head contusion. He has been able to continue
attending school after the accident, but is still left with some residual pain
in his neck and upper back. Given that this pain has been present for almost 6
years, I feel that this pain will most likely be permanent. He will not be
able to do any heavy job, but will have to do work of a lighter nature,
preferable sedentary ones.
[26]
The plaintiff again visited Dr. Chua on October 1, 2007 with complaints
of recurrent pain in the neck and upper back. Dr. Chuas examination showed
tenderness and stiffness in the plaintiffs neck and upper back. He was
advised to continue doing his exercises and to take Advil when necessary for
pain.
[27]
Dr. Chua testified that tenderness is both a subjective and objective
finding, and that there were findings of tenderness on a number of his
examinations of the plaintiff. He said that where he recorded tenderness, it
was an objective finding. He also said that where he recorded stiffness, he
meant that the plaintiff was not as supple as he should have been, and although
he might have had a full range of motion, it was with some difficulty.
[28]
When asked whether the delayed onset of the plaintiffs upper back pain
suggested that his upper back symptoms were unrelated to the accident, Dr. Chua
responded in the negative, stating, [the plaintiffs] lower neck and the
thoracic area were adjacent to each other and there was some pain there earlier
on in. And, I believe, about two years later, the pain started to spread a
little bit lower to the thoracic area and that can still happen.
[29]
Dr. Chua further rejected the likelihood that an intervening event, such
as the plaintiffs slip and fall in 2003, could have caused the plaintiffs
upper back pain. Dr. Chua pointed out that the fall occurred on September
4, 2003, a few weeks before the onset of the plaintiffs upper back pain, and said
that his clinical records did not indicate that the fall had anything to do
with the plaintiffs upper back. When asked if it was a possibility, he said,
well, its possible, but improbable.
[30]
Dr. Chua also testified that in the early years after the accident, the
plaintiff was quite young and would not report his symptoms directly to Dr.
Chua. The plaintiffs parents, typically the father, would communicate what they
understood the plaintiff had experienced. Dr. Chua said that as the plaintiff
got older, he was able to speak for himself.
2. Dr. R.D. Beauchamp, an Orthopaedic Surgeon
[31]
The report of Dr. Beauchamp is dated September 6, 2006. The facts and
assumptions upon which Dr. Beauchamps opinion is based include the
history taken from the plaintiff, the plaintiffs physical examination, Dr.
Chuas clinical records for the period October 1, 2001 to December 19, 2005,
and Dr. Curries clinical records from August 12, 2003 to October 8, 2005.
[32]
Dr. Beauchamp stated in his report that the plaintiff was unsure as to
when he began to complain of neck and back pain, but felt that it was within
the same day or perhaps the day following the accident.
[33]
Dr. Beauchamp reported that the plaintiff complained of pain located in
his left mid-thoracolumbar area, as well as pain in the left para-vertebral
area of his upper trapezius neck region. Dr. Beauchamp noted that while the
plaintiff complained of headaches years earlier, he told Dr. Beauchamp that they
were no longer particularly bothersome.
[34]
Dr. Beauchamp diagnosed the plaintiff as having a mid-thoracolumbar back
strain and cervical spine strain. At trial, he explained that by cervical
spine he meant the posterior neck and by mid-thoracolumbar back he meant the area
around the scapula or shoulder blade. He said he could not be more specific
due to the interconnected nature of overlying muscles that cover the neck and
back.
[35]
He also explained the term cervical spine strain, stating: a strain
is usually when the muscles or soft tissues, ligaments, tendons, have been
stretched to their breaking point or their limit and they are expected to heal…
but every time a soft tissue heals, it heals with scar tissue. He said that
scar tissue is relatively inflexible compared to normal tissue and suggested
that the plaintiffs chronic pain could be attributed to that inflexibility.
[36]
Dr. Beauchamp gave the prognosis in his report that it is more likely
than not that the accident caused the plaintiffs symptoms of back and neck
pain. However, Dr. Beauchamp noted that the symptoms did not appear to occur
immediately following the motor vehicle accident but a day or so later and
have persisted since the plaintiff visited Dr. Chua following the accident.
[37]
Dr. Beauchamp made a note in his report that the plaintiff had to alter
his lifestyle to accommodate his discomfort, writing no PE, activities of
daily living. When asked about this notation, he explained that the plaintiff
had to alter his lifestyle due to his injuries, such as sitting out of some
P.E. activities, but the plaintiff did not cease attending P.E. altogether.
[38]
Although Dr. Beauchamp found evidence of scoliosis, he believed that it
was unrelated to the accident.
[39]
Dr. Beauchamps opinion regarding the plaintiffs likelihood of recovery
was equivocal, ranging from the possibility that his complaints would subside,
to the possibility that they may be permanent:
With continued growth and
maturation it is possible (although unlikely) his mid-back and neck complaints
may subside. On the other hand, they have not disappeared completely since the
accident and may in fact be present for a considerable and undetermined length
of time in the future. His back and neck symptoms may even be permanent.
[40]
When asked about his prognosis for the plaintiffs cervical spine, he
said that injuries in children usually heal very rapidly, but the plaintiff was
not healing very well. He said that injuries persisting for five years or so
suggest a chronic state, with the likelihood of complete recovery becoming
fairly remote.
[41]
In cross-examination, Dr. Beauchamp acknowledged the possibility that
the plaintiffs upper back pain could have been caused by an incident that
occurred weeks before its onset, such as a slip and fall. However, he said
that the incident would have to involve fairly major trauma, and he did not
think that a fall on the ground would be associated with any back pain. He
said that he sees a lot of patients with broken arms or legs from low velocity,
non-motor vehicle accidents and does not often encounter complaints of upper
back pain in that context.
3. Dr. C. Hershler, a Physical Medicine and
Rehabilitation Specialist
[42]
Dr. Hershler examined the plaintiff on June 19, 2007. He reviewed the
reports of Dr. Chua, dated August 31, 2002 and July 19, 2003, as well as
Dr. Chuas clinical records.
[43]
In summarizing the plaintiffs presenting complaints in his report dated
June 19, 2007, Dr. Hershler noted that the plaintiff presented with an
approximate six year history of persistent left-sided neck pain, which refers
down the medial aspect of the left scapula. The plaintiff reported to Dr.
Hershler that the pain was constant and was made worse while sitting and
writing, or by physical work such as mowing the lawn. Dr. Hershler also noted
the plaintiffs diagnosis of having a mild thoracolumbar scoliosis.
[44]
Relying on the plaintiffs medical history, the
in-person examination and the description of the accident, Dr. Hershler expressed
the opinion that the accident caused the soft tissue injury to the plaintiffs
neck. As for the scoliosis, Dr. Hershler could not be certain whether the
plaintiff had some abnormal curvature prior to the accident. Since the
plaintiff was asymptomatic before the accident, he felt that the accident
either rendered a pre-existing scoliosis symptomatic and painful, or caused the
scoliosis.
[45]
Dr. Hershler considered the prognosis to be extremely
guarded given that the plaintiffs pain had persisted for almost six years. He
also noted that the plaintiff continued to do exercises at home on a regular
basis and had to turn down a summer job at Tim Hortons due to his pain. As a
result, he concluded that the plaintiff would likely have to deal with chronic
pain indefinitely.
[46]
Dr. Hershler stated that physiotherapy or massage
therapy was unlikely to provide sustained relief. He recommended chiropractic
treatment and, if that did not work, then pulsed signal therapy.
Dr. Hershler testified that he considered pulsed signal therapy as a last
option once other therapies had been attempted and exhausted.
[47]
In cross-examination, Dr. Hershler was asked whether
the plaintiffs upper back symptoms, which manifested a few weeks after his
slip and fall incident in 2003, might be more related to that incident than the
accident. Dr. Hershler admitted that it was possible, but said that the
persistence of the plaintiffs symptoms from the accident suggest that the
plaintiffs upper back pain is more likely related to an adaptation of those
symptoms.
B. The Defendants Medical Evidence
[48]
Dr. J.F. Schweigel, an orthopaedic surgeon, prepared several reports
following his independent medical examination of the plaintiff at the request
of defence counsel.
[49]
Dr. Schweigel examined the plaintiff on January 4, 2007. In his report
of the same date, he noted that the examination showed the plaintiff to be
normal except for a slight tilt of the neck to the left and the
thoracoscoliosis slight convex to the right in the thoracic area and to the
left in the lumbar area. He stated that the tilt in the neck is secondary to
the scoliosis. He found that the contusion to the head and the soft tissue
injuries to the cervical spine had healed. The plaintiff had full cervical
motion, and Dr. Schweigel was unable identify any spasm, neurological deficit or
swelling.
[50]
Dr. Schweigel took issue with a number of Dr. Chuas records. Dr.
Schweigel noted that Dr. Chua recorded tenderness in the plaintiffs cervical
and upper back area from 2001 to 2005, but tenderness is a subjective finding that
has little meaning without associated spasm, deformity or swelling. Moreover,
Dr. Chua recorded stiffness, but that also has little meaning because the
plaintiffs degree of motion is not recorded. Most importantly, Dr. Chua did
not record any loss of motion on October 1, 2001. Dr. Schweigel concluded that
the plaintiff sustained a mild soft tissue injury to the cervical spine that
should have resolved within one to three months. In Dr. Schweigels opinion,
the pain reported by the plaintiff could not be explained by any physical or
radiological abnormality, and no further treatment or investigations are
required.
[51]
Dr. Schweigel also concluded that the plaintiffs scoliosis is unrelated
to the accident. In his opinion, the plaintiffs spinal curve is either a
developmental anomaly or it may be related to a hormonal imbalance. When asked
in direct examination if he meant that the plaintiff had an underlying
condition that was present prior to the accident, he replied, yes, it could
have been there prior to the accident, slowly evolving, starting, with a
straight spine then slowly becoming crooked, which nobody would have noticed
initially and/or it could have developed months or years after the accident in
the same fashion.
[52]
Dr. Schweigel further explained in chief that the accident could not have
caused the plaintiffs scoliosis because such a result would have required an
injury so severe that the plaintiff would have been incapacitated for months,
which was not the case according to Dr. Chuas records:
[I]f one postulates that the MVA
caused this scoliosis, then one has to say that the MVA caused severe damage to
the musculoligamentus, tearing them apart and causing instability of the
spine. Having said that, if that occurred because of this MVA, the patient
would have had terrible pain in his back, probably incapacitated in bed, and
this would have lasted for months. And I did not see that in the documentation
of Dr. Chua when he first saw the patient on October 1st, and then
on October 16th of the same year. Therefore, I would have to
conclude that the MVA did not cause his scoliosis.
[53]
Dr. Schweigel testified that mild soft tissue injuries to the cervical
spine tend to resolve in one to three months. Such injuries can have lingering
discomfort after that, but the discomfort is usually not incapacitating.
[54]
Dr. Schweigel provided an addendum report dated August 27, 2007, based
upon his review of Dr. Hershlers report. He was asked by defence counsel, inter
alia, how Dr. Hershlers report influenced his opinion on his conclusions
about the plaintiffs complaints of pain, whether he remained of the opinion
that the plaintiffs scoliosis was not caused by the accident, and what the
likelihood was that the accident rendered the scoliosis symptomatic. Dr.
Schweigel explained, in part, that scoliosis is not associated with pain in children,
and that even adults with scoliosis rarely experience pain:
Children with scoliosis do not
have pain in the scoliotic curve. They dont present to the family doctor or
the specialist with pain. They present to the family doctor because someone
has noticed an abnormal curve in their spine in their growing years. Usually
this curve is found between the age of 10-16 years of age. It is usually seen
by the mother or some friend when they have a bathing suit on or are partly
undressed. Even adults, rarely have pain with scoliosis. By the age of 40 or
50 they may have slight pain as there can be some degeneration developing at
that time, from the abnormal curve. However, this degenerative process in the
disc and the facet joints takes years to develop. This young boy may have
pain, but it is not, in my opinion, physical pain.
[55]
Dr. Schweigel provided another addendum report dated October 2, 2007, after
reviewing the reports of Dr. Chua dated August 5, 2007 and Dr. Beauchamp. Dr. Schweigel
challenged Dr. Chuas conclusion that the plaintiff suffered a moderate to
severe head contusion. Noting that the plaintiff had no loss of consciousness,
bruising, swelling or ecchymosis following the accident, Dr. Schweigel concluded
that any head contusion suffered by the plaintiff would have been mild.
[56]
Dr. Schweigel also took issue with the chronology of the plaintiffs
symptoms relating to his neck and upper back. Dr. Schweigel highlighted the
fact that the plaintiff did not report any neck pain on his visit with Dr. Chua
two days after the accident. It was not until the plaintiff returned to see
Dr. Chua approximately two weeks later that the plaintiff first reported neck
pain, which he said occurred three days after the accident. According to Dr.
Schweigel, [i]f a site has been traumatized and there has been some physical
damage to the soft tissues, those soft tissues become symptomatic immediately
or certainly with a day or 2 after the MVA. Dr. Schweigel further noted
that there was no loss of motion of the cervical spine and no evidence of any
spasm, deformity or neurological deficit.
[57]
Despite taking issue with the delayed onset of the plaintiffs neck
pain, Dr. Schweigel agreed on cross-examination that the plaintiffs
discomfort in his neck was related to injuries sustained in the accident. However,
he expressed the opinion that the plaintiff only suffered minor soft tissue
injury. When asked whether an ongoing spasm a year to three years after an
accident is a strong indicator of a moderate or a severe soft tissue injury, the
doctor answered, its indicative of muscle irritation, but not necessarily
moderate or severe. Dr. Schweigel agreed that given the persistence of the
neck pain experienced by the plaintiff, it would likely continue into the
foreseeable future.
[58]
In regards to the chronology of the plaintiffs upper back pain, Dr. Schweigel
observed that there was no mention of upper back or thoracic discomfort in the
first several weeks following the accident. The earliest record of such
symptoms that he could find were roughly two years after the accident. He stated
that [w]hen a site becomes symptomatic weeks later or years later, that
symptomatic site is unrelated to the trauma and in this case, I am referring to
the trauma of September 29, 2001.
[59]
In regards to recommended treatment, Dr. Schweigel testified that
children should not have physiotherapy for minor soft tissue injuries. He said
that physiotherapy is only warranted in children if they have had a severe soft
tissue injury, which he felt the plaintiff did not have.
V. Summary of the Plaintiffs Direct
Examination
[60]
When the plaintiff was asked how he was feeling after the impact of the
accident, he answered that he was feeling very painful, Im just in shock and
surprised. He said the pain was in his head, neck, stomach and upper back.
[61]
The plaintiff said that when he saw Dr. Chua on the day after the
accident (the visit was in fact two days after the accident), he was still having
neck pain and headaches, and his stomach was hurting. The doctor told him to
take Tylenol or Advil and stretch out his neck. He said the Advil helped him.
[62]
In regards to his stomach, he said the pain was constant for the first
month or so and then three or four months later it just went away. He said
that he no longer experiences stomach pain.
[63]
He said that his head was feeling sore and aching at the scene of the
accident. His head continued to hurt the morning after the accident with a
dull kind of pain. He said that a month after the accident, he was still
getting headaches about once or twice a week. He said that by the end of 2001,
he was still having headaches, and his head was pretty painful.
[64]
With respect to his neck, he said that shortly after the accident, his
neck was sore on the left and right side, near the base of the neck. He described
it as a dull and jabbing kind of pain.
[65]
He said that about a month after the accident his neck was still sore,
and he had the same feeling of a dull and jabbing pain on the left side and
near the base of his neck.
[66]
He said when he went to Dr. Chuas office, he would advise Dr. Chua
about his pain.
[67]
In the three months after the accident, his neck pain remained the same.
He said he felt the pain constantly. When asked how severe the pain was, he
said very painful. He rated the pain as 5-6 on a scale of 10 in 2001, rising
to 7-7½ when it became aggravated. He said that playing sports, such as
basketball or volleyball, or doing household chores, such as mowing the grass,
or sitting for a long time at a computer doing homework would cause the pain to
worsen.
[68]
The plaintiff said that the pain in his neck persisted in essentially
the same manner throughout 2002 to 2007, and that the pain was constant. He
said it would rise as high as 7-7½ when aggravated and would be as low as 3-4
with medication, but was often in the middle around 5-6. Dr. Chua continued to
recommend that he take Tylenol or Advil.
[69]
The plaintiff said that he attended P.E. classes from 2002 to 2007,
generally 2-3 times a week. He said his teacher let him sit out certain
activities when he had pain, or he would simply take a break and stop for a
while. He played a range of sports in P.E., including basketball, volleyball,
hockey, dodgeball, soccer and rugby.
[70]
He said that when he was playing basketball, he would have his hands up
and then his neck and upper back would start hurting, so he would sit out. He
did not have any problems when playing dodgeball, but when he played
volleyball, he said that spiking and setting was hard for him to do. He said that
when he went to swing and had one arm up, his neck and upper back area hurt. He
said he only had difficulty with soccer when he did headers, and he would
either not do them or just sit out. He said he had some difficulty playing
hockey, although he was able to play rugby, but once his neck hurt, he did not
play it as much. He said that when he had pain from playing sports, it would
be 7-7½ at its worst.
[71]
He saw Dr. Currie for the first time in 2003, and Dr. Currie told him to
do some stretches. He said that the stretches, like the Tylenol or Advil, would
make the pain subside. He said the stretches were neck rotations and for his shoulder.
He would do the rotations for five to ten minutes, and place his back against
the wall and push.
[72]
Dr. Currie also recommended that he go to massage therapy and try
swimming. He said that he went to 5 or 6 therapy sessions, and it helped him a
little bit. He also said he tried swimming for about 2 months, but he got an
ear infection and stopped.
[73]
As in the initial year of the accident, he said his pain would become
worse from sports, household chores and trying to do his homework. He also had
difficulties sitting for a long time in class.
[74]
When asked what he was doing to help manage the pain, he said he avoided
league sports outside of school, took breaks, stretched and used Tylenol or
Advil. He testified that he only took medication occasionally, generally 2-3
pills per week. He also told Dr. Currie that he was taking medication only
occasionally.
[75]
He said that his injuries did not affect him in any way while he was
participating on the school track team. He took part in relays and hurdles, and
also tried the 100 meter sprint but did not qualify. As part of the track team,
he entered into competitions in Grades 8 and 9.
[76]
The plaintiff said he has also experienced dizziness. He said he felt
dizzy on the day of the accident, and it has since persisted. He said the
dizziness will come and go, lasting two minutes or so each time. He said he usually
feels dizzy when he wakes up in the morning, and this happens once or twice a
month. He said that if he feels dizzy, he just stays in the same spot for a
couple of minutes or lies back down on the bed and waits until it goes away.
He does not feel dizzy during the day, and he said the dizziness has not
prevented him from doing activities at school or in the house, nor has it
affected his homework or schooling.
[77]
The plaintiff said that he will sometimes wake up about once during the
night because of the pain in his neck and back area. He said this occurs up to
2 or 3 times a week. He said that when he wakes up he just lays back down and
falls asleep.
[78]
In addition to on-going neck pain, the plaintiff said that he has pain
at the base of his neck between the shoulder blades. He could not be sure when
he started to feel the pain in this region of the upper back. He said he did not
know if he had any upper back pain at the scene of the accident, and he could not
remember if he had upper back pain in 2002 or 2003. The earliest point at
which he could remember such pain is in 2004.
[79]
He said that whenever his neck was hurting a lot, his upper back area
would hurt too, and he felt that his upper back pain was connected to his neck
pain. He described the back pain as resembling the pain in his neck, a sort of
stabbing feeling, and rated the pain in a similar manner: at its best it was 3
and at its worst it was 7, but mostly it was 5-6 out of 10. He said he experienced
the pain 2-3 times a week. As with his neck pain, he has managed his upper
back pain by taking Tylenol or Advil, doing stretches and avoiding sports, or
simply taking breaks when needed. He said he saw Dr. Chua for all of his
symptoms, and also saw Dr. Currie for his upper back pain.
[80]
The plaintiff said that after the accident, his parents proposed that he
enter the workforce. His sister starting working at 15, and his father wanted
his children to be independent. However, the plaintiff said he was unable to work
because of his pain, and he was worried that a job may require him to do heavy
lifting.
[81]
In 2003, the plaintiff knocked out his tooth while rollerblading in the
gym. He said he slipped and his hands were out trying to cushion the fall, but
his face still hit the ground. When asked if there were other injuries, he
said he may have had a thumb or finger bruised but could not remember.
[82]
When asked if his injuries from the accident affected his schooling, he
said that they might have a little because his marks were dropping. Although
he was unsure, he suggested that his pain could have impacted his ability to
study and left him needing more rest.
[83]
He testified that his headaches have since gone away.
VI. Summary of the Plaintiffs Fathers Direct
Examination
[84]
The plaintiffs father said that on the day of the accident, the
plaintiff indicated that he had pain in his stomach and head. He gave the
plaintiff Tylenol and Gravol.
[85]
The plaintiffs father said that on the day following the accident, the
plaintiff told him he had pain in his stomach and head, and that he had pain in
his neck. He again gave the plaintiff Tylenol and Gravol.
[86]
On Monday, the plaintiffs father took the plaintiff to see Dr. Chua.
He said he told Dr. Chua whatever the plaintiff had told him, namely that the
plaintiff was complaining about pain in his belly area and in his head and
neck. Dr. Chua prescribed Advil.
[87]
The day following their visit to Dr. Chua, the plaintiff complained that
he was experiencing more pain and that the pain was continuous. The plaintiff had
pain in his neck and in his head and stomach. The plaintiffs father said the
pain was on the left side of the plaintiffs neck and also on the right, back
side of the neck. He said there was more pain in the left side. He said that
the plaintiff took Advil whenever he was experiencing too much pain. He said
that the plaintiff took one Advil a day, sometimes 3, 4 or 5 times a week.
[88]
The plaintiffs father said that Dr. Chua told him that the plaintiffs
condition would slowly improve.
[89]
A month after the accident, the plaintiff was still telling his father that
he had pain in his stomach and neck. The plaintiffs father said that the
severity of the plaintiffs complaints varied.
[90]
The plaintiffs father said that in December of 2001, the plaintiff
complained less about pain in his head and also reported less pain in his stomach.
The pain in the plaintiffs neck was the same.
[91]
The plaintiffs father said that in the first six months of 2002, the
plaintiff was complaining of pain in the left and right side of his neck,
headaches and pain on the upper back. He said that after three to four
months, the complaints of pain in the plaintiffs stomach got better.
[92]
The plaintiffs father said that in the first six months of 2002, the
plaintiff was complaining every day about a sharp pain in the right side of
his neck (although it was sometimes only a mild pain) and headaches. He said
that when the plaintiff came home from school, he seemed tired and sometimes he
would lie down and massage his neck, and that the plaintiff had problems
writing, reading and working on the computer. Sometimes the plaintiff would
take Advil or Tylenol.
[93]
The plaintiffs father said that in the second half of the year 2002,
between July 1 and December 31, the plaintiff complained of pain on the left
side of his neck and slightly less pain on the right side. He also complained
of headaches and pain in his upper back that radiated downwards. The plaintiff
would make such complaints every day.
The plaintiff told his father that whenever he did some
activity, he would have sharp pain, and he had less pain when he was doing
nothing. Activities that would trigger the sharp pain were P.E., mowing the
lawn, vacuuming, reading or writing and using the computer. His father continued
to give him Tylenol or Advil as recommended by Dr. Chua.
[94]
The nature of the plaintiffs complaints persisted in the same manner
throughout 2003 and 2004. The plaintiffs father said that the plaintiff complained
of more sharp pain on the left side of his neck and less pain on the right side.
He also complained of headaches and pain in the area between his shoulder
blades. He complained every day, and his pain was worsened by certain
activities.
[95]
In 2003, the plaintiffs father said that as the plaintiff was not
getting better, Dr. Chua referred the plaintiff to Dr. Currie. Dr. Currie
sent the plaintiff for x-rays and massage therapy. Dr. Currie also told the
plaintiff to go swimming and do some exercises. Dr. Currie told the plaintiff
that it was very important for him to move his neck. The plaintiffs father
said that after the x-rays, he was told that the plaintiff had a curve in his
neck.
[96]
The plaintiffs father said that the plaintiff attended massage therapy for
five or six sessions, went swimming about ten or twelve times and performed the
exercises that Dr. Currie had prescribed for the plaintiffs neck 5-6 times a
week. The plaintiffs father said that the plaintiff would feel more relaxed
after the message therapy, but he would still have pain in his neck. The
plaintiff did not receive much benefit from the swimming, and he stopped after
developing an ear infection.
[97]
In 2004, the plaintiffs father said that the plaintiff did exercises
for the whole year, 3-4 days a week or 5 days when there were holidays.
[98]
The plaintiffs father said that when he and his son went to visit Dr.
Currie, Dr. Currie told the plaintiff to continue doing the same
exercises.
[99]
The plaintiffs father said that in the year 2005, the plaintiff was
complaining less about his headaches. However, he was still complaining about
pain in his neck and upper back. The plaintiff told his father that he had
more pain in the back of his neck when he threw something in the upward
direction, and he had lots of sharp pain in the backside of his neck and also
on the right side. He also had sharp pain in his neck and back when pushing
and pulling something. When asked where in the back the plaintiff had pain,
the plaintiffs father indicated the base of the neck between the shoulder
blades. As before, the pain was made worse by activities like P.E., household
chores and homework.
[100] The
plaintiffs complaints about pain in his neck and upper back continued in this
manner up to and including 2009.
[101] In 2006,
the plaintiff took medication whenever he had more pain, which was 2-4 times
per week. He did his exercises 4-5 times a week and sometimes on the weekends,
but he did not do his exercises on days when he was having lots of pain.
[102] The
plaintiff visited Dr. Currie in the summer of 2006, and had a follow-up visit
in December of that same year. On each occasion Dr. Currie recommended that
the plaintiff do the same exercises.
[103] The
plaintiffs father said that in 2007, the plaintiff was doing less exercises,
maybe 2-4 times per week.
[104] The
plaintiffs father said that the plaintiff started working in the deli at a
Save-On-Foods store in April 2008. He said he had planned on sending the
plaintiff to work earlier, when he turned 14, but could not do so because he
was injured. He explained that he wanted the plaintiff to work due to financial
reasons because he was on a disability pension. He explained that he had sent
his eldest daughter to work when she was 15, and his younger daughter started
to work when she turned 14. He said his eldest daughter works in catering, and
his younger daughter also works in the deli at Save-On-Foods.
[105] According
to the plaintiffs father, the plaintiff cuts meat into small pieces, packs and
places it on shelves. The plaintiff also cuts meat for customers using a meat
slicer and makes pre-prepared sandwiches. The plaintiff works part-time at the
deli and goes to school full-time, but he gets more work hours when he is on
holidays. The plaintiff works at the store during summer break and on
weekends. Initially when he started, he worked five to six hours per shift, but
he is now working eight hour shifts. During the summer of 2009, the plaintiff
worked seven or eight hours a day for 5 days a week. He was paid $10.00 per
hour and received holiday pay, but no medical or dental benefits.
[106] The
plaintiffs father said that for the first 8 months of 2009 the plaintiff took
his medication 3-4 times a week and, if he had pain, more than two times a
day. He took either Advil or Tylenol. He said that he paid about $7 or $8 for
500 tablets of Advil, and that in 2009 he twice purchased Advil in bottles of
100 tablets.
VII. Reliability of the Evidence of the
Plaintiff, his Father and Dr. Chua
[107] The
evidence of the plaintiff and his father regarding the onset, chronicity and
severity of the plaintiffs symptoms does not fully accord with other evidence
presented at trial, particularly the medical records of Dr. Chua documenting
the plaintiffs visits. Moreover, Dr. Chuas evidence is itself internally
inconsistent in some cases. A number of statements that Dr. Chua made at trial
and in his medical reports are not supported by his own medical records. The
following discussion highlights a number of significant inconsistencies and
other issues that raise concerns of reliability in regards to the evidence of
the plaintiff, his father and Dr. Chua.
A. Severity of Neck Pain and Injury
[108] The
plaintiff testified that he has consistently experienced pain in his neck
ranging from 3-7½ out of 10. He often described it as a dull, stabbing pain
and said on a number of occasions that it was very painful. The plaintiffs
father testified that the plaintiff consistently reported sharp pain in his
neck.
[109] Although in
Dr. Chuas report dated August 31, 2002, he diagnosed the plaintiff with a
moderately severe cervical strain, his clinical records documenting the
plaintiffs visits make no mention of such severe pain or injury.
[110] Rather,
Dr. Chua recorded that when he saw the plaintiff on October 16, 2001, his
examination showed that the plaintiff had slight stiffness in his neck; on
February 8, 2002 he noted slight stiffness in the plaintiffs neck; on April
5 and 25, 2002 he noted mild tenderness in neck; on June 14, 2002 he noted
mild neck tenderness; on February 28, 2003 he noted slight neck pain on and
off, slight stiffness in neck; on July 7, 2003 he noted slight pain in the
neck; on July 17, 2003 he noted mild tenderness with slight stiffness in the
neck; and on September 15, 2003 he noted mild tenderness in the neck.
[111] Dr. Chua
testified that during each of the plaintiffs visits to him from 2001 and 2002,
the complaints described by the plaintiff or his father were in some cases mild
and in some cases more than mild. However, he admitted that up to August 31,
2002 he had recorded mild.
[112] Dr. Chua
further agreed that until August 31, 2002, he did not use the words moderate
or severe to describe the plaintiffs tenderness or reports of neck pain. He
said sometimes I use mild tenderness and sometimes I use tenderness, which
is more than mild. He conceded that he did not use the words moderate or
severe in his clinical records.
B. Onset of Symptoms
[113] The
plaintiff testified that he felt neck pain immediately following the impact of
the accident on September 29, 2001. He could not remember exactly when the
pain in his back began, but the earliest point that he could remember such pain
is in 2004.
[114] The
plaintiffs father testified that the plaintiff complained of pain in his neck
on the day following the accident. The plaintiffs father said that he
reported this neck pain to Dr. Chua on October 1, 2001, which was the first
visit with Dr. Chua after the accident. The plaintiffs father also testified
that the plaintiff complained of upper back pain in the first six months of
2002.
[115] However, according
to Dr. Chuas clinical records, the plaintiff did not report any neck pain on
the initial visit after the accident on October 1, 2001. It was not until the
second visit with Dr. Chua on October 16, 2001 that the plaintiff first
reported neck pain that he said began on October 2, 2001.
[116] In regards
to the plaintiffs upper back pain, Dr. Chua agreed with defence counsel that
none of his notes for 2001, 2002 and leading up to his July 19, 2003 report
documented the plaintiff having such pain. He also said that he did not
specifically recall the plaintiff, or his parents describing the plaintiff as having
any upper back pain from the time of the accident to July 19, 2003.
[117] The first reference
to the plaintiffs back pain in Dr. Chuas clinical records is on September 26,
2003. The plaintiff was visiting Dr. Chua about a fall earlier in the month
that resulted in a fracture in his right little finger. On examination, Dr.
Chua recorded mild tenderness with slight stiffness in the plaintiffs neck and
upper back.
[118] When Dr.
Chua was asked by defence counsel if September 26, 2003 was the first time he
recorded any complaints involving the plaintiffs upper back, he answered yes.
However, Dr. Chua followed his answer by stating that due to the proximity
between the neck and upper back, a reference to the neck may include the upper
back: I believe we have to, you know, have a definition of upper back,
although I never mentioned upper back — the lower part of the neck, and the
top part of the upper back, that means that they are just next to each other.
So sometimes if I just mention the neck, it could be the first few levels of
the upper back.
[119] Nonetheless,
Dr. Chua agreed with defence counsel that he at no time prior to September 26,
2003 recorded any complaints of upper back pain.
[120] The plaintiff
also testified that he has experienced dizziness since the day of the accident,
and it usually happens once or twice a month. However, Dr. Chuas medical
records contain no reports of dizziness shortly after the accident. The only
mention of dizziness is on December 19, 2006, more than five years after the
accident, and the records indicate that the plaintiff only reported dizziness
lasting about two weeks.
C. Chronicity of Symptoms
[121] The
plaintiff and the plaintiffs father both testified that the pain in the
plaintiffs neck has been constant since the day of the accident. However, Dr.
Chuas records repeatedly describe the pain in the plaintiffs neck as being
on and off.
[122] At trial, Dr.
Chua took the position that the words on and off meant fluctuating intensity
of pain, and that the pain reported by the plaintiff was, in fact, constant.
However, that definition was clearly contrary to the manner in which on and
off was used elsewhere in his clinical records. Dr. Chuas clinical
records contain a number of references to headaches, coughing and a period of vomiting
unrelated to the accident that are similarly described as being on and off. In
such a context, it is more likely that Dr. Chua intended on and off to mean
an alternation between the presence and absence of symptoms, not a fluctuating
intensity of symptoms that are always present.
D. Incomplete Memory
[123] In direct
examination, the plaintiff rated the pain in his neck for each year since the
accident on a scale of 10. However, he admitted on cross-examination that he
had no specific recollection of how his pain felt in the years 2001 to 2004 and
agreed with the defence counsel that his ratings were merely guesses.
[124] The
plaintiff insisted that he was unable to recall the time in which he slipped
and fell while exiting a van on November 6, 2006. He said that he had no
memory of the event or subsequently having x-rays taken of his right hand as a
result of the fall despite the fact that the incident occurred only a year or
so before he testified at trial.
E. Recovery
[125] There is
also an apparent discrepancy in the testimony between the plaintiffs father
and the representative of ICBC who interviewed him following the accident
regarding the degree to which the plaintiff recovered from his injuries.
[126] Ms. Dianne
Porter commenced her employment with ICBC in 1989 as a bodily injury adjuster.
She moved to the South Vancouver Claims Centre as an acting claims examiner in
2002. Between March 2005 and September 2007, she acted as the claims manager
of the Newton Claims Centre.
[127] Ms. Porter
met the plaintiffs father in person on November 21, 2002. Just the two of
them were present at the meeting. She had no concerns regarding his ability to
speak or understand English. She also contacted him several times by telephone
between 2002 and 2004.
[128] Ms. Porter
had a discussion with the plaintiffs father in February 2003. She typed her
handwritten notes into electronic format. She said on that occasion she would
have asked the plaintiffs father how his son was and then recorded what he
told her. She testified that he indicated at the time that he felt, in his
estimation, the plaintiff had recovered about 60-65%.
[129] She also
had contact with the plaintiffs father in May 2003. She asked him how the
plaintiff was doing, if he was doing better and whether the family had any
concerns. She testified that the plaintiffs father advised her that the
plaintiff continued to do better. She said his actual words were, he is doing
much better. The plaintiff had a follow-up appointment on May 2, 2003 with
Dr. Chua, and the plaintiffs father said he would let her know the outcome of
that appointment.
[130] At trial,
the plaintiffs father denied making the above statements to Ms. Porter. He
disagreed that he said the plaintiff was doing better or that he provided an
estimate that the plaintiff was 60-65% recovered. Despite making such denials,
however, he also testified that he could not remember what he told ICBC in
2003. He said, [l]ook, the pain hes having, its every day. Its an
everyday story now. And thats why I remember that he is having pain. And the
other things I might not remember because it was a long time ago.
VIII. The Parties Arguments
[131] The
plaintiffs father testified that by late 2001, the plaintiff complained of
less pain in his head, but that he had headaches up to 2005 and again in 2007.
This, claims the defendant, is in stark contrast to the evidence that his
headaches had resolved by at least the year 2006.
[132] The
plaintiffs father denied that he had ever reported any improvement in the
plaintiffs condition, either in intensity of pain, or the constant nature of
the symptoms (other than for the plaintiffs stomach pain and, at some point, his
headaches). In particular, he denied that he reported any improvement when he
spoke with the ICBC representative, despite the fact that the notes recorded by
the representative state that he reported that the plaintiff was doing better
and rated the plaintiffs recovery at 60%-65%.
[133] Defence
counsel said it is notable that under cross-examination, the plaintiffs father
acknowledged that it was very hard for him to remember things, and that he
forgets things. Moreover, the plaintiffs father conceded that if there was a
record of these discussions, then they might have happened.
[134] The
defendant pointed out that the plaintiffs father testified that the plaintiff
was mowing the lawn by 2002, but that the plaintiffs evidence on this point is
that he did not start mowing the lawn until he was either in Grade 7 or 8,
which would be in the year 2004 at the earliest.
[135] In the
initial years after the accident, the plaintiffs father communicated with Dr.
Chua on behalf of the plaintiff. If the plaintiff reported slight pain or less
pain, then the plaintiffs father would report this to Dr. Chua, and
conversely, if there was increased pain, this would also be reported. However,
the plaintiffs father would not agree with the suggestion that he had ever
reported, or given any indication to Dr. Chua, that the plaintiffs neck
pain was only slight or mild, which does not accord with Dr. Chuas clinical
records.
[136] The
plaintiffs father also denied that the plaintiffs fractured tooth caused him
to miss any physiotherapy. He further denied that the plaintiffs fractured
tooth required the plaintiff to avoid certain activities in order to prevent
further injury. The defendant noted that this evidence is at odds with the
evidence of the plaintiff and Dr. Chuas clinical records.
[137] The
plaintiffs father and the plaintiff insisted throughout their testimony that
the plaintiffs pain had been constant. When asked by defence counsel if they
had reported to Dr. Chua that the plaintiffs pain was on and off, they
either denied that they would use those words, or in the case of the plaintiff,
he denied that he understood what those words meant, or said that if he had
used those words, that he still meant constant and simply referred to
fluctuating pain levels.
[138] Defence
counsel noted that the words on and off were also used by Dr. Chua in
his clinical records to describe headaches, coughing and an unrelated vomiting
period, and noted that the plaintiff not only clearly understood what the words
on and off meant in that context, but that they also had their usual meaning
of being intermittent and not being constant. In addition, in direct
examination, the plaintiff used the words on and off to mean that his stomach
pain was no longer constant. Thus, submitted the defendant, when the
plaintiffs father and the plaintiff reported that the plaintiffs pain was on
and off, they clearly meant that the plaintiff was only experiencing pain
intermittently at the time.
[139] The
defendant noted that Dr. Chua took the position that the words on and off
meant fluctuating intensity of pain, but yet used those same words to describe
vomiting and other unrelated symptoms when such a definition would have made
little sense.
[140] The
defendant also noted that the plaintiffs father testified that the plaintiffs
headaches had been occurring daily and had been constant since the accident,
and he denied that he reported to ICBC that the plaintiffs headaches were only
occasional or occurred only a few times per week. The defendant also submitted
that this evidence stood in contrast to the evidence of the plaintiff.
[141] The
defendant said that under cross-examination, the plaintiff either was simply
unable to recall or did not know what his medical condition might have been
like at certain times prior to and following the accident when it was
unfavourable to his overall claim. The plaintiff also denied that he had ever
specifically reported any improvement, claiming that he was either
misunderstood or his complaints were incorrectly recorded. The defence noted
that similarly, under cross-examination, the plaintiffs father testified to a
lack of recall at certain relevant times.
[142] The
defendant argued that while minor discrepancies or inconsistencies in the
evidence might be overlooked, in this case, many of the inconsistencies go to
central issues. As an example, the defendant noted that Dr. Beauchamps diagnosis
and prognosis relating to the plaintiffs upper back was based on an assumption
that the plaintiffs upper back pain arose immediately following the accident.
However, the plaintiff did not report upper back pain until some two years
following the accident, and both the plaintiff and the plaintiffs father
testified that the plaintiffs upper back pain arose closer to one and a half
years following the accident.
[143] The
defendant argued that the medical evidence for the plaintiff has been based on
the reporting to the doctors by the plaintiff and his father and, to the extent
that the doctors opinions are found to be based upon erroneous assumptions due
to the evidence at trial, then their opinions must be disregarded, or at a
minimum, be accorded less weight. The defence submitted that both the
plaintiff and his father are unreliable historians and, as such, the court
ought to disregard their testimony, or assign little weight to their evidence,
particularly where it is inconsistent with a true clinical picture of the
plaintiffs condition. Defence counsel argued that where there is any conflict
or inconsistency between their testimony and the clinical records, the clinical
records should be preferred as they were made contemporaneously with the
reporting by the plaintiff and his father.
[144] The
defendant also submitted that the court should draw an adverse inference from
the failure of the plaintiff to call witnesses who might have been seen as more
independent than the plaintiff and his father, and who may have been able to
address the issues raised by the plaintiff. As an example, the plaintiff claimed
that he experienced pain and needed to take breaks at school, particularly
during physical education class, yet he did not choose to call his physical
education teacher. Furthermore, he did not call the witness from his workplace
to address whether the plaintiff exhibited any physical difficulties or
limitations at work.
[145] The
defendant also noted that although the plaintiff attended Dr. Currie on several
occasions, he did not file a report or call Dr. Currie as a witness.
[146] In regards
to the plaintiffs specific complaints of neck and upper back pain, as well as
headaches and dizziness, the defence position is that it is more likely than
not that, despite the plaintiff reporting to Dr. Chua on October 16, 2001 that
his neck pain arose on October 2, 2001, that it probably arose closer to
October 16, 2001 than on or near October 2, 2001.
[147] Dr. Chuas
medical records describe the plaintiffs headaches as being on and off.
However, the plaintiffs father testified in chief that the plaintiffs
headaches were ongoing, although in cross-examination he said that the
plaintiffs headaches had resolved. The defendant argued that when the
plaintiff had headaches, they could not have been severe nor debilitating given
that he was not referred to a specialist and Dr. Chua did not prescribe
any medication for his complaints.
[148] With
respect to the plaintiffs reports of dizziness, his father could not recall
when this complaint arose. The defendant argued that on the evidence, this
complaint was only fleeting, did not have any impact on the plaintiffs
activities and did not affect his school work or stop him from performing
household duties.
[149] With
respect to the issue of causation, the defence argued that the plaintiffs back
pain was not related to the accident. The plaintiffs father testified that his
upper back pain arose one and a half years following the accident. However,
the defence argued that the plaintiffs upper back pain did not arise until
after a slip and fall accident that occurred at the plaintiffs school in
September 2003, which was closer to two years after the accident. The
defendant said that the slip and fall accident was forceful enough to have
caused a fracture of the plaintiffs little finger on his right hand. The
defence argued that it was important to note that there are no references to
upper back pain in the clinical records of the plaintiffs doctors prior to the
slip and fall accident. The first reference is in Dr. Chuas clinical records
dated September 26, 2003 when he recorded slight pain in the plaintiffs
upper back.
[150]
The defence also noted that the plaintiff did not know when he began to
experience upper back pain. In direct examination, when asked whether he had
experienced back pain in 2002, he said that he could not recall that far back
and he acknowledged that he had no records or documents to support his
assertion that his upper back pain was connected to his neck injury and must
have arisen some time prior to September 26, 2003.
[151] In
cross-examination, Dr. Chua was asked what injuries the plaintiff complained of
in each of the visits up to August 2003. He did not testify that there were
complaints of upper back, or for that matter, any back pain during that time. Moreover,
he testified that if the plaintiff or his father reported any complaints, he
would have written them down.
[152]
The defendant pointed out that Dr. Chua was aware by August 2007 of the
plaintiffs complaint of upper back pain. However, Dr. Chua wrote the
following in his August 5, 2007 report:
In summary, Mr. Prabraj Sahota
sustained, during the MVA of September 29, 2001, a moderately severe cervical
strain and head contusion.
[153] The
defendant said it was significant that Dr. Chua did not actually state in his
reports that the plaintiff sustained upper back pain as a result of the
accident.
[154] Furthermore,
the defendant argued that the evidence indicates that any pain the plaintiff
has had, and might continue to experience, is only slight or mild. The
plaintiffs reports of pain have never been described as moderate or severe in
Dr. Chuas clinical records. He typically described the pain as either
slight or mild if he used any description at all.
[155] The
defence submitted as significant that according to Dr. Beauchamps report, the plaintiff
said he was unsure as to when he began to complain of neck and back pain, but
felt it was within the same day or perhaps the day following the accident. The
defendant submitted that Dr. Beauchamp accepted that the neck and back pain had
persisted since the accident, yet he did not address how he came to that
conclusion, particularly when there were no references to upper back pain in
Dr. Chuas medical records until September 2003.
[156] The
defendant also submitted that Dr. Beauchamp was left with the impression that
the plaintiff had missed some school because of the accident, and that he had
to curtail some of his activities at school, primarily physical education,
because of his complaints of neck and upper back pain. However, the defendant
argued that this was at odds with the evidence of the plaintiff under
cross-examination, where he acknowledged that he had not missed physical
education class or physical activities due to his accident related injuries.
[157] The
defendant also noted that Dr. Beauchamp was left with the impression that the
plaintiff regularly used Tylenol or Advil. Again, said the defendant, this was
at odds with the evidence the plaintiff gave under cross-examination, where he
acknowledged that he used these products only occasionally.
[158] Dr.
Beauchamp diagnosed the plaintiff with mid-thoracolumbar back strain and
cervical spine strain. He defined a strain as occurring when the muscles or
soft tissues have been stretched to their breaking point or their limit.
However, the defendant noted that Dr. Schweigel said that if there had been
injury to the muscles and ligaments of the thoracic and lumbar area, then the plaintiff
would have had severe pain in that area, as tearing muscles and ligaments hurt
and result in swelling. Dr. Schweigel found no evidence of this in Dr.
Chuas clinical records.
[159] In
cross-examination, Dr. Beauchamp acknowledged that if the back complaints arose
some time well after the accident, then they could be attributable to other
causative factors. For example, subsequent trauma or poor posture could be
causative. Dr. Beauchamp also acknowledged that postural habits could be
important in the consideration of back pain. The defendant noted that Dr. Chua
also agreed that poor posture could account for pain. Dr. Chua further noted
that there was some evidence of scoliosis, but he felt this was probably
unrelated to the accident.
[160] The
defendant highlighted Dr. Beauchamps evidence, in cross-examination, that he
would have expected by this time to have seen resolution of the injuries in
someone of the plaintiffs age, and he found it rather unusual at his age for
the plaintiffs symptoms to persist for two years. He agreed that typically,
soft tissue injuries would resolve within one to three months following an
accident. The defendant pointed out that Dr. Chua also agreed that he would
have expected early resolution. However, he stated that he would defer to the
opinion of an orthopaedic surgeon regarding soft tissue injuries.
[161] The
defendant also pointed out that Dr. Beauchamp was of the opinion that with
continued growth and maturation it was possible, though unlikely, that the
plaintiffs neck and upper back complaints might subside or could be present
for an undetermined length of time or may even be permanent. He also gave the
opinion that the injuries were probably permanent. The defendant said that
causation aside, the prognosis provided by Dr. Beauchamp was not definitive.
[162] The
defendant argued that given Dr. Beauchamps assumption that the plaintiffs
complaint of upper back pain arose shortly after the accident, which it did
not, and his assumption that the plaintiff curtailed his physical activities in
order to accommodate his discomfort, which he did not entirely do,
Dr. Beauchamps assumptions about the degree to which the plaintiffs
injuries impacted him were mistaken, and any opinions based on such assumptions
should be given little weight.
[163] The defence relied heavily on the evidence of Dr. Schweigel. In
particular, the defence pointed out that Dr. Schweigel, much like Dr.
Beauchamp, felt that the plaintiffs scoliosis was not caused or contributed to
by the accident. Dr. Schweigel testified that the deformity could have been
present prior to the accident or could have developed months or years after the
accident. Dr. Schweigel also testified that the thoracic discomfort was likely
unrelated to his other injuries because it first occurred a considerable period
of time after the accident.
[164] The defence noted that Dr. Schweigel was dismissive of Dr. Chua’s
opinion that the plaintiff had sustained a moderate or severe contusion of his
head, as there was no record of any loss of consciousness, bruising, lumps or
swelling. Dr. Schweigel felt that at most, the plaintiff sustained a mild
contusion of the head area, which resolved.
[165] The defence pointed out that Dr. Schweigel also classified the
plaintiffs soft tissue injuries as mild. Having reviewed Dr. Chua’s clinical
records, which described the injuries as being slight or mild, Dr. Schweigel
noted that at no stage did Dr. Chua ever record any severe deformity, severe
spasm, severe loss of motion, neurological deficit or other clinical findings
that one would expect in a severe soft tissue injury.
[166] The defence pointed out that Dr. Beauchamp agreed with Dr. Schweigel
that for there to be a severe soft tissue injury, there is a necessity of
severe spasms, severe deformity and severe loss of motion.
[167] Dr. Schweigel also refuted the suggestion that the presence of any
spasms or any clinical findings, even if over a period of more than a year, necessarily
indicated a moderate or severe soft tissue injury. Dr. Beauchamp agreed, stating
that chronicity and severity of symptoms are two separate and distinct
considerations. Dr. Schweigel also testified that one cannot have moderate to severe
spasms and have good range of motion in the cervical spine at the same time.
[168] The defence also emphasized Dr. Schweigels opinion of the
plaintiffs physical capabilities. Dr. Schweigel felt that the plaintiff might
have been restricted from doing sports and housework for the first two to three
months following the accident, but he did not consider the plaintiff to be
disabled from full-time work or sports activities any longer. Dr. Schweigel advised
that the plaintiff should be as active as possible, play all sports that he
desires and do whatever work he desires. He felt it was reasonable for the
plaintiff to work at Tim Horton’s or any similar establishment, and that he is
capable of doing heavy work.
[169] Dr. Schweigel did not feel that the plaintiff required any further
treatment or investigations. In his report of August 27, 2007, he advised that
there is no orthopaedic literature that supports pulsed signal therapy. He
acknowledged that some spinal surgeons will order some physiotherapy to
strengthen the spinal muscles around the curve, particularly the convex side of
the curve to see if they can limit the degree of scoliosis, but this
recommendation would be done to try to strengthen the muscles around the
scoliotic curve, not because of the accident.
[170] As for the opinion of Dr. Hershler, the defence pointed out that he could
not be absolutely certain that the plaintiff did not have some abnormal
curvature prior to the accident. As the plaintiff was asymptomatic prior to
the accident, he felt that the accident either rendered a preexisting
scoliosis symptomatic and painful, or caused the scoliosis. However, this
opinion was at odds with the opinions of both Drs. Beauchamp and
Schweigel, who felt that the scoliosis was a developmental anomaly, unrelated
to the accident. The defence pointed out that Dr. Hershler testified that he
respected Dr. Beauchamp’s opinions regarding developmental scoliosis and
the incidents of scoliosis in young people, and acknowledged that Dr. Beauchamp
likely had more experience in this area than he did.
[171] Although Dr. Hershler considered the plaintiffs prognosis to be
extremely guarded, the defence stressed that his conclusion was based on the
understanding that the plaintiff had been regularly performing his stretching exercises and swimming during the summer.
However, the testimony of the plaintiffs father suggests that the plaintiff did
not perform his stretching exercises on a regular basis, and both the plaintiff
and his father confirmed that the plaintiff swam only 10 to 12 times, quitting
the activity after an ear infection developed.
[172] On the other hand, the plaintiff asserts that a review of the
clinical records and medical evidence clearly establishes that the slip and
fall did not result in him experiencing or reporting upper back pain,
and that there is no evidence tendered by the defence to suggest that the slip
and fall incident was the cause of his upper back pain. He claims that it is
more likely that his upper back pain is a manifestation of the ongoing neck
pain that he has been experiencing which gradually spread downward as he grew, and
the chronicity of his neck symptoms impacted the musculature in his upper
back. The plaintiff also refers to the evidence of Dr. Chua who confirmed that
there is overlap between the area he describes as neck and upper back. In
addition, Dr. Beauchamp confirmed that given the connectivity between the
musculature in the neck and upper back area, the symptoms being experienced by
the plaintiff were caused by the injuries sustained by the plaintiff in the
accident.
[173] The
plaintiff agrees that the headaches and dizziness he experienced are not having
a significant ongoing functional impact on him.
[174] The
plaintiff also submits that he has tried to engage in activities to the best of
his ability, but that as a result of the injuries sustained by him in the
accident, he has at times been limited in participating in certain activities
or has not enjoyed them fully. He says that his stoicism is not illustrative
of discrepancies in his evidence relating to his functional limitations. As
for the defence submission on the absence of the plaintiff taking prescribed
medication, he points to the evidence that all of his doctors and his parents
have encouraged him to remain active and to use over the counter pills to
manage his symptoms.
[175] In reply
to the defendants submissions, the plaintiff contends that the fact that Dr.
Chua does not record neck pain on a particular occasion is not determinative of
whether the plaintiff was, in fact, experiencing pain at the time. The
plaintiff says it is quite common for patients to only report their most
troubling symptom on a single visit with the doctor, or for the doctor to
record some and not all of the symptoms reported on a visit.
[176] Furthermore,
Dr. Chuas evidence in cross-examination confirmed that the reference to neck
in his clinical records would also include a portion of the upper back.
[177] The
plaintiff submits that there is no basis to suggest that Dr. Chua was
advocating on behalf of his patient. Dr. Chua presented as an objective
witness who testified in a candid and forthright manner. Furthermore, asserts
the plaintiff, it is problematic that the defendant seeks to rely on certain
aspects of Dr. Chuas evidence which is favourable to the defendants theory of
the case and discredit other portions of his evidence.
[178] It is
further submitted by the plaintiff that although Dr. Beauchamp acknowledges
that there were other possible causative factors, he was of the opinion that
the plaintiffs pain in the upper back was related to the accident.
Dr. Beauchamp provided a detailed medical explanation under cross-examination
referring to the connectivity in the musculature of the neck and upper back.
[179] The
plaintiff says that Dr. Beauchamps opinion on causation regarding the upper
back injury is not based on the assumption that the back injury arose shortly
following the accident.
[180] In reply
to the defendants submissions on the evidence of Dr. Schweigel, the plaintiff
says that it is simplistic to say that when a site becomes asymptomatic weeks
later or years later that the symptomatic site is unrelated to trauma. In the
event that there is injury to a region of the neck and the injury becomes chronic,
it is quite likely that the symptomology will spread and affect the other
attached muscles in the area.
IX. Findings
[181] The
plaintiff submits that although there may be minor inconsistencies in the
plaintiffs evidence and that of his father, the evidence, when considered in
its totality, is credible and reliable. The plaintiff asserts that he has been
assessed by a number of medical experts, and he did not display any non-organic
signs or illness behaviours when he presented himself to his treating and
assessing doctors. He claims that throughout the process, consistency and
reliability of presentation have been noted. He argues that his evidence, when
considered in its totality, is inherently consistent and corroborated by the
medical evidence and the evidence of his father. The plaintiff also asserts
that his fathers evidence, including that of his testimony about the
plaintiffs injuries, treatment and progression of his symptoms since the
accident, ought to be accepted and afforded considerable weight.
[182] I have
carefully considered the whole of the evidence and the parties arguments. With
respect I disagree with the plaintiffs position on the consistency of the
evidence in relation to the onset, chronicity and severity of the plaintiffs symptoms
relating to his injuries from the accident. In this regard, I note that at
least for the first several years following the accident, the plaintiffs
father attended with the plaintiff when he visited his family doctor, as well
as the other medical experts. The procedure they usually followed was that the
plaintiff would tell his father what his symptoms were, and his father would
then report these symptoms to the doctors. In my opinion, there is inconsistency
between the evidence of the plaintiff and his father regarding the onset, chronicity
and severity of the plaintiffs symptoms. Moreover, the evidence of the
plaintiff and his father is inconsistent with the evidence of the doctors,
primarily Dr. Chua, regarding what they were told by the plaintiff and his
father.
[183] Therefore,
I agree with the defence position that the plaintiff and his father are not
reliable historians and that where there is any conflict or inconsistency
between the testimony of the plaintiff and his father and Dr. Chuas clinical
records, the clinical records should be preferred because they were made by
Dr. Chua contemporaneously with the reporting of the plaintiffs accident
related symptoms.
[184] In
addition, I note that there are inconsistencies within Dr. Chuas evidence
itself regarding the chronicity and severity of the plaintiffs symptoms. Therefore,
to the extent that conclusions in his medical reports and in his testimony
differ from what he wrote in his clinical records, I prefer his clinical
records.
[185] Thus, I
find as follows:
(1) the
plaintiff sustained injuries to his head, abdomen and neck as a result of the
accident on September 29, 2001. The plaintiffs injury to his head and abdomen
resolved shortly after the accident. The plaintiff continued to experience occasional
headaches, but this symptom has also since resolved. The plaintiffs neck pain
is on-going and will likely continue indefinitely;
(2) the
plaintiffs injury to his neck was a mild, soft tissue injury. The evidence
from the clinical records of Dr. Chua is that from both a subjective and
objective point of view, he noted "mild" with respect to what the
plaintiff reported to him and what he found upon examination. He also conceded
in cross-examination that he did not ever use the terms moderate or severe
in his clinical records. In my opinion, the plaintiffs complaints regarding
his neck pain were not as severe as described by the plaintiff and his father
in their testimony. I do not agree with the plaintiffs position that the
plaintiffs neck is appropriately characterized as a moderately severe
cervical strain as stated by Dr. Chua in his August 2007 report; and
(3) the
neck pain experienced by the plaintiff was intermittent, rather than every day
or constant as the plaintiff and his father insisted. If the plaintiff or
his father had reported to Dr. Chua that the plaintiff experienced neck pain
every day, or that the plaintiffs neck pain was constant, then Dr. Chua
would have written this description in his clinical records. Instead, Dr. Chua
recorded that the pain was on and off or recurrent, terms which are not
synonymous with the word constant. Furthermore, those terms were used
elsewhere in Dr. Chuas clinical records in reference to other symptoms that do
not support such an interpretation. I also prefer the testimony of Ms. Porter
to that of the plaintiffs father regarding whether the plaintiff experienced
improvements in his condition over the period of time following the accident. Her
testimony is in keeping with the evidence of Dr. Chua who mentioned in his
report of August 2002 that the plaintiff had improved from his injuries.
[186] I find further
that the plaintiff has failed to prove on the evidence that his complaint of
upper back pain was caused by the accident.
[187] According
to the theory of the defence advanced at trial, the onset of the plaintiffs
upper back pain coincided with a slip and fall incident in 2003, and as a
result, the fall is a more likely cause of the plaintiffs upper back pain than
the accident in 2001. In my opinion, the evidence offered by Drs. Chua and
Beauchamp is sufficient to discount the defences theory. The plaintiffs
upper back pain was first recorded a few weeks after the slip and fall, and the
plaintiff had multiple visits with Dr. Chua during this time. At trial,
Dr. Chua noted that there was no complaint of upper back pain when he saw the
plaintiff about the slip and fall, and his clinical records did not suggest a
link between the two. Moreover, Dr. Beauchamp said that he does not often
encounter complaints of upper back pain from patients with broken arms or legs
from low velocity, non-motor vehicle accidents, and he would not expect a fall
on the ground to result in upper back pain without fairly major trauma. As a
result, I find that the evidence is not sufficient to establish a link between
the plaintiffs slip and fall in 2003 and his complaints of upper back pain.
[188] However,
for the reasons that follow, I find that the plaintiff has failed to discharge
his burden of proof in establishing that his complaint of upper back pain was
caused by the accident.
[189] The
plaintiffs father reported that the plaintiff was complaining of upper back
pain about a year and a half following the accident. However, Dr. Chuas
clinical records clearly indicate, and the testimony of Dr. Chua is consistent
with his clinical records, that this complaint was not reported to him until
about two years following the accident.
[190] I consider
it significant that although Dr. Chua was aware of the plaintiffs complaint of
upper back pain when he wrote his report of August 2007, he nevertheless did
not in his report connect the plaintiffs complaint of pain in his upper back
to the accident, mentioning only that the plaintiff sustained a cervical strain
as a result of the accident.
[191] Moreover, Dr.
Beauchamp testified in re-examination that when he prepared his opinion, he was
aware that the plaintiffs reporting of upper back pain was about two years
after the accident. Nevertheless, he concluded in his report that the
plaintiffs discomforts involving cervical spine and mid-thoracolumber spine
have persisted since [the accident], which is clearly not the case on the
evidence.
[192] At trial,
both Dr. Chua and Dr. Beauchamp downplayed the significance of the delayed
onset of the plaintiffs upper back pain. Dr. Chua testified that the pain in
the plaintiffs neck simply spread downward to his upper back over time, while
Dr. Beauchamp provided a similar explanation involving the connectivity of
musculature that overlays the neck and upper back. I note that neither
explanation appeared in either Dr. Chuas or Dr. Beauchamps medical reports.
Regardless, I do not find their explanations to be sufficiently persuasive to
establish causation of the plaintiffs upper back pain from the accident,
particularly in light of the aforementioned problems I have identified with the
evidence of Dr. Chua and Dr. Beauchamp.
[193] Finally,
on the issues surrounding the plaintiffs complaint of back pain, I find that
the weight of the medical evidence supports a conclusion that the plaintiffs
condition of scoliosis is unrelated to the accident.
[194] Furthermore,
I find that the plaintiffs complaints of dizziness are not causally related to
the accident. According to Dr. Chuas clinical records, the plaintiff only
reported a two-week period of dizziness on a single occasion in December 2006, approximately
five years after the accident. In contrast, the plaintiff testified that his
dizziness arose shortly after the accident. Given that I prefer the evidence
of Dr. Chuas clinical records over the testimony of the plaintiff, I find that
the plaintiff has failed to establish a sufficient connection between the
accident and the onset of his dizziness.
X. Damages
A. General Damages
[195] I have
reviewed the authorities submitted by plaintiffs counsel which contain awards
to plaintiffs in the range of $60,000-$90,000 for soft tissue type injuries: Lee
v. Metheral, 2006 BCSC 1841; Hartnett v. Leischner & ICBC, 2008
BCSC 1589 [Hartnett]; Foran v. Nguyen, 2006 BCSC 605 [Foran];
Krell v. Saari, 2003 BCSC 699; Klein v. Dowhy, 2007 BCSC 1151; Patel
v. Ling, 2007 BCSC 1570; Kasic v. Leyh, 2009 BCSC 649; Predinchuk
v. Spencer, 2009 BCSC 1396.
[196] In my
opinion, the injuries sustained by the plaintiffs in these cases were far more
severe than those sustained by the plaintiff in the instant case. For example,
in Hartnett, the plaintiff sustained injuries to his neck, hip, lower
back, right shoulder and right knee. His hip, lower back and right shoulder
proved particularly problematic, adversely affecting his work and personal
life. He was forced to curtail his active lifestyle outdoors and home
maintenance activities. He was also unable to play with his children in the
same manner as before the accident without experiencing significant pain. The
court awarded him $60,000 in non-pecuniary damages.
[197] In Foran,
the plaintiff suffered multiple soft tissue injuries and experienced a range of
headaches, including neck headaches, cluster headaches and migraine headaches.
The evidence established that the pain in the plaintiffs neck and upper back
would be chronic, as would her headaches. As a result of her injuries, she had
difficulty sleeping and was constantly tired. She could no longer participate
in outdoor activities, such as camping and trail walking, and the quality of
her participation in other activities, such as interacting with her students
and her daughter, was significantly reduced. The court awarded non-pecuniary
damages of $90,000.
[198] The
defendant submitted authorities which reflect a much lower range of damages from
$6,000 to $22,000 for soft tissue type injuries: Brandy Naks v. Hesse [Brandy
Naks], 2012 BCSC 1327; Wallner v. Uppal, 2012 BCSC 1602; Johnson
v. Keats, 2012 BCSC 751 [Johnson]; Kain v. Kirman, 2006 BCSC
1770.
[199] The cases
cited by the defendant more closely resemble the facts of the present dispute. For
example, in Brandy Naks, an infant plaintiff was injured in a motor
vehicle accident when she was 8 years of age. Following the accident, the plaintiff
complained of neck pain, lower back pain and headaches, all of which interfered
with her sleep and left her feeling fatigued. She attended several sessions
with a chiropractor and massage therapist, both of which provided only short
term relief. At the time of trial, she was still performing stretching
exercises recommended by her chiropractor and taking Advil and Tylenol to help
with her pain. The plaintiffs injuries did not impact her performance at
school and she was able to maintain an active lifestyle after the accident. The
court awarded $22,000 in non-pecuniary damages.
[200] In Johnson,
the 24-year-old plaintiff was diagnosed with soft tissue injuries to his neck,
upper back and lower back. After missing 3 weeks of work as a long-shoreman, he
was sufficiently recovered to return to lighter duties, and after 3 months, his
injuries had almost entirely resolved, enabling him to resume the more
strenuous tasks required by his occupation. Nonetheless, he continued to
experience occasional stiffness and soreness in his shoulders and neck after prolonged
sitting and sleeping. The court awarded $16,000 in non-pecuniary damages.
[201] In the
case at bar, the pain and discomfort the plaintiff has experienced has, on the
evidence, had a minimal impact on his home, school, athletic and social
activities. For example:
(1) The
plaintiff has attended school on a full-time basis since the accident. In the
year of the accident, the plaintiff missed one day of school, and in the year
following, only two days for reasons unrelated to his accident injuries.
(2) The
accident injuries have not had an impact on the plaintiffs school grades, nor
his participation in school sports. The plaintiff reported to Dr. Currie that
not only had he not missed any time off from school, but that he did not miss
any time from his physical education activities. In cross-examination, the
plaintiff confirmed that what he had reported to Dr. Currie was accurate.
(3) The plaintiff
has not missed time off work due to accident-related injuries, and there is no
evidence that he required any accommodations in association with his duties at
work.
[202] I am
mindful that the plaintiff continues to be symptomatic and that his neck pain
is likely to continue in the foreseeable future. However, given my findings on
the chronicity and severity of the plaintiffs pain, in the context of the
evidence regarding the extent of the suffering and inconvenience experienced by
the plaintiff following the accident, I find that a fair award to him for general
damages is $40,000.
B. Loss of Income
1. Past Income Loss
[203] As
mentioned, the plaintiff was 9 years old at the time of the accident.
According to the evidence, he has worked at the Save-On-Foods deli on a
part-time basis since April 2008 while going to school from September to June,
and he works longer hours during the summer and holiday breaks. He has not
missed time off work due to his accident related injuries, and there is no
evidence that his accident related injuries have interfered with his ability to
perform his duties as an employee.
[204] The
plaintiffs father testified that he was unable to send the plaintiff to work
at an earlier age due to his accident related injuries. The plaintiff also said
that he was unable to pursue work because of his pain. However, as the defence
pointed out, there is no evidence that the plaintiff attempted to seek work at
an earlier age or would have been successful in securing employment if he had
tried. Although the plaintiffs father had enquired as to the minimum age to
be employed at Tim Hortons, no application was ever submitted on the
plaintiffs behalf. As defence counsel argued, one can only speculate as to
what the labour market conditions were like at the relevant time and whether
employment opportunities would have been available to the plaintiff. Moreover,
there is no evidence that the plaintiff would have been regarded as
sufficiently mature.
[205] Dr.
Hershler claims that it would not have been unreasonable for the plaintiff to
have turned down an employment opportunity with Tim Hortons in light of his
injury and the nature of his pain. However, this evidence does not reconcile
with the fact that the plaintiff has gone on to perform the type of work that
might have been expected of him at Tim Hortons, and he has been able to work at
this capacity without missing any days from work. I accept the defence
submission that the plaintiff has failed to reasonably mitigate any income loss
at ages 14 and 15, as he failed to even attempt to work, or seek alternate or
lighter work.
[206] Therefore,
I find that the plaintiff has failed to prove past income loss.
2. Future Loss of Income
[207] The
plaintiff filed a functional capacity evaluation report dated August 20, 2007.
The evaluator was Mr. Dominic Shew, an occupational therapist.
[208] Mr. Shew
concluded that overall, the plaintiff had demonstrated the capacity to perform
activity that required modified medium level strength on an occasional basis.
Mr. Shew said that the plaintiff consistently demonstrated restrictions in his
capacity for activity requiring repetitive and prolonged periods of vertical
and horizontal reaching. He also had measured restrictions with two-handed
carrying and two-handed lifting, as well as limitations with his capacity to
manage extended periods of sitting. Overall, there were restrictions in his
endurance generally.
[209] With
respect to avocational (unpaid tasks), Mr. Shews opinion was that the
plaintiff was capable of performing light to modified medium homemaking,
gardening and yard work activities if he paced himself throughout the day and week.
[210] Mr. Shew
stated in his report that if the plaintiff was to attempt to work, test results
indicated that he was likely competitively employable at least on a part-time basis
(4-5 hours per shift) at an occupation between a sedentary to modified medium
level with the restrictions as noted above. It was Mr. Shews opinion that
although the plaintiff demonstrated the capacity to perform modified medium
activity, the decline in his working pace indicated that such activities should
be kept to an occasional basis only. Mr. Shew also opined that the plaintiff
would require frequent periods to rest, stretch and change positions (from
sitting to standing to walking) in order to manage his pain and remain
functional. As such he would need an understanding employer that would
accommodate his limitations.
[211] Mr. Shew
set out several recommendations in his report, including a recommendation that
the plaintiff would continue to benefit from additional sessions with a
physiotherapist, sessions with a registered kinesiologist or exercise
therapist, provision of a membership at a facility in close proximity to his
residence — the YMCA for example — chiropractic sessions, ergonomic and
biomechanical assessment of his work station at home, assessment from an
occupational therapist, a comprehensive ergonomic assessment and ergonomic
equipment.
[212] With
respect to Mr. Shews evaluation, the defence noted, as follows:
·
Mr. Shew did not have all of the medical documentation,
particularly Dr. Schweigels opinions, provided to him;
·
Mr. Shew catered the testing towards a particular occupation or
vocation, but in this case, the referral was not directed towards any
particular occupation or vocation;
·
the active range of motion in the cervical spinal region was
normal for the plaintiff, as it was for his shoulders, elbows and the lumbar or
lower back area;
·
The plaintiff was 15 years old at the time of the test, but his
scores had to be compared to a 20-year-old adult (other than for grip strength)
because there were no strength norms for a male of the plaintiffs age. Mr.
Shew felt that the test scores were comparable, as he considers 15-year-olds to
be more or less an adult. However, he acknowledged under cross-examination that
a teenager or adolescent is not considered fully grown and could still be
undergoing a period of physical and psychological development. He also
acknowledged that there is literature which shows that adolescents lack
confidence in their physical abilities and that this could affect their performance.
The defence submitted that the test results are largely unreliable given the
large discrepancy in results that would naturally occur between an
underdeveloped, immature male and a fully-developed, mature male;
·
the plaintiff had subjective complaints of pain and fatigue
during testing. Under cross-examination, Mr. Shew acknowledged that there was
no way for him to measure fatigue, but he will make a note of such complaints
if reported;
·
Mr. Shew made recommendations to accommodate for problems with
the plaintiffs middle back, which are causally unrelated to the accident. For
instance, in tests of his standing tolerance, the plaintiff stated that he
believed his standing was generally unrestricted, but after approximately 2
hours, his upper and middle back began to ache. Any opinions on the overall
functional capacity therefore would be skewed by limitations involving his
middle or upper back; and
·
in terms of his recommendations, Mr. Shew acknowledged that he is
unable to give a diagnosis or prognosis, unlike a medical doctor.
[213] Dr.
Schweigel reviewed the functional capacity evaluation and disagreed with Mr.
Shews assessment that the plaintiff is disabled as it relates to his neck.
Dr. Schweigel did not consider the plaintiff to be disabled currently or
in the foreseeable future as it relates to his cervical, thoracic and lumbar
spine. He could find no physical reason why the plaintiff was unable to be as
active as possible. Dr. Schweigel also wrote that even patients with
scoliosis, particularly at the plaintiffs age, do not have a functional
disability.
[214] As already
mentioned, not long after the functional capacity evaluation, the plaintiff
commenced employment as a deli worker, initially on a part-time basis for 8
hour shifts for two days over the weekend, and once summer started, on a
full-time basis. The defence submitted that the plaintiff has well exceeded
what Mr. Shew felt he was capable of performing. Mr. Shew suggested that
the plaintiff was potentially capable of working only part-time hours, but he
has demonstrated that he has been able to work full-time. He has not needed to
miss any time off work despite his complaints of pain. Furthermore, Mr. Shew
felt that the plaintiff would require an understanding employer that would
accommodate his limitations. There is no evidence, and the plaintiff did not
call his employer or any work colleagues to testify on his behalf, that he
needed accommodations, modifications or frequent breaks at his workplace.
[215] As for
diminished or loss of capacity, Dr. Chua is of the opinion that the plaintiff
will be unable to do any heavy jobs and will have to do work that is less
physically demanding and preferably sedentary in nature. Dr. Hershler offered
a similar opinion, but also recommended that the plaintiff avoid prolonged
sitting. The defence submitted that Dr. Chuas opinion that the plaintiff
is capable of sedentary work is to be preferred over that of Dr. Hershler. For
one, Dr. Chua is more familiar with the plaintiffs medical history, but
the plaintiff has also been able to attend school on a full-time basis without
any absences, and this necessarily involves sitting for several hours
throughout the day.
[216] Dr.
Schweigel on the other hand feels that the plaintiff does not have any
restrictions or limitations, and that he is capable of performing heavy work.
[217]
In terms of his vocational options, Dr. Schweigel is of the opinion that
any limitations the plaintiff might face will be attributable to his scoliosis,
a developmental anomaly in his spine, not the accident. He stated:
Patients with scoliosis,
particularly young children, are encouraged to be as active as possible. Having
said this, the scoliosis patient should also avoid, as they grow up, work that
involves heavy lifting, bending and twisting. The reason for this is that
eventually, the scoliosis curve, when they reach middle age, can often have
some degeneration of the disc and or facet joints, because of the abnormal
curve, and further stress on this degenerative process from heaving (sic)
lifting impact type activities, etc., can cause pain. However, the scoliosis,
as already mentioned earlier, is unrelated to the MVA.
[218] Dr.
Schweigel reiterated this opinion in his report of October 2, 2007, stating that
heavy work and impact activities are discouraged for those with scoliosis as
they become older due to an increased tendency of disc degeneration.
[219] Dr. Chua
also agreed that scoliosis could affect ones ability to engage in activities
that involve heavy jobs.
[220] In other
words, says the defence, at some juncture, when the plaintiff becomes older, he
would necessarily have to avoid heavy work due to his scoliosis, which Drs.
Beauchamp and Schweigel agree is unrelated to the accident and likely a developmental
anomaly.
[221] The
defence argues that the opinion of Dr. Schweigel should be preferred over that
of Drs. Chua and Hershler, as they failed to address how a developmental
anomaly such as scoliosis would impact on the plaintiffs functionality.
[222] The plaintiff
argues that while a work capacity evaluator is not qualified to provide an
opinion on diagnosis and prognosis, this type of specialist is entitled to
provide the court with a report setting out functional limitations relating to
an individual based on the diagnosis and prognosis provided by the medical
practitioners. This enables the court to assess diminishment of earning
capacity based on the diagnosis and prognosis accepted by the court.
[223] The
plaintiff asserts that the evidence of Mr. Shew is consistent with the totality
of medical evidence and ought to be accepted. Furthermore, the defendant did
not tender any evidence in rebuttal or response to the evidence of Mr. Shew.
[224] The
plaintiff argues that given his young age and uncertainty regarding his future
vocational endeavours, he meets all the criteria set out in the case law for an
award for diminished earning capacity. There is a realistic possibility that
he will not be able to do certain occupations, with the effect that he will
suffer a loss of income.
[225] In my opinion,
the plaintiff has failed to prove that he should receive the amount claimed by
him for future income loss. The plaintiff is correct that although Mr. Shew is
not entitled to make a medical diagnosis or prognosis, he is entitled to set
out the plaintiffs functional limitations as evidenced in his testing and
based upon the diagnosis and prognosis of a qualified medical practitioner. However,
Mr. Shews testing procedure raises a number of concerns touched upon by
the defence. In particular, the closest available benchmarks for comparing the
plaintiffs testing scores were those of a 20-year-old adult. This latter
point is especially valid given Mr. Shews acknowledgement, which is simply
common sense, that test results on a functional capacity evaluation may change
as a teenager grows and matures into a young adult, typically showing an
improvement in physical strength. Mr. Shews findings are further brought into
question by the fact that the plaintiff has demonstrated an ability to perform
work that exceeds many of his limits according to the functional capacity
evaluation. To the extent that the plaintiffs residual intermittent mild neck
pain may interfere with his employment opportunities in the future, the
evidence establishes that it will be minimal, at most. In all of the
circumstances, I award the plaintiff $5,000 for this head of his claim.
C. Special Damages
[226] I accept
the plaintiffs claim for special damages and award him $400.
D. Future Care Costs
[227] Drs. Chua,
Beauchamp and Schweigel were all in agreement that the plaintiff does not
require any further investigation or treatment in regards to any injuries he
sustained in the accident. Dr. Chua testified, in cross-examination, that this
was an opinion that he had received from Dr. Currie, and that he agreed with Dr.
Curries opinion and that of Dr. Schweigel. Moreover, Dr. Currie consistently
recommended exercises and not therapy treatments.
[228] Dr.
Hershler on the other hand felt that chiropractic treatments could be
beneficial and, if not, then a program of pulsed signal therapy would assist
with pain management. He agreed that it was unlikely that physiotherapy or
massage therapy would provide any sustained relief. In his report of August
27, 2007, Dr. Schweigel felt that there was no orthopaedic literature that
supports pulsed signal therapy and feels that the plaintiff does not require
this. He acknowledged that some spinal surgeons will order some physiotherapy
to strengthen the spinal muscles around the curve, particularly the convex side
of the curve to see if they can limit the degree of scoliosis, but this
recommendation would be done to try to strengthen the muscles around the
scoliotic curve, not because of the accident.
[229]
Mr. Shew also made a number of medical recommendations, but he
acknowledged that he was not competent to provide a diagnosis or prognosis as
he is not a medical practitioner. I agree with the defence that the medical
recommendations made by Drs. Chua, Beauchamp and Schweigel are to be preferred to
the extent that if the plaintiff has any ongoing residual neck pain, it will be
relatively mild such that the extensive treatment recommended by
Dr. Hershler and Mr. Shew is not or is no longer warranted. The defence
further submits, and I agree, that to the extent the plaintiff has not used a
service, or sought out services or modifications in the past, it may not
properly be the subject of an award, as it is unlikely that he will avail
himself of such services in future. According to Masuhara J. in Izony
v. Weidlich, 2006 BCSC 1315 at paras. 73-74:
…The defendant cites Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.) for the proposition that future care costs must be
objectively based on medical justification and reasonableness.
I agree that future care costs
must be justified as reasonable both in the sense of being medically required
and in the sense of being expenses that the plaintiff will, on the evidence, be
likely to incur (see generally Krangle). I therefore do not think it
appropriate to make provision for items or services that the plaintiff has not
used in the past (see Courdin at ¶ 35), or for items or services that it
is unlikely he will use in the future.
XII. Conclusion
[230] In the
result, the plaintiff is entitled to the following award:
1. | General Damages | $40,000.00 |
2. | Future Income Loss | 5,000.00 |
3. | Special Damages | $400.00 |
| Total Award: | $45,400.00 |
B.I. Cohen J.
The Honourable Mr. Justice Cohen