IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140416

Docket: M134510

Registry:
New Westminster

Between:

Thomas Larry
Mattice

Plaintiff

And

Gerald Arthur
Kirby

Defendant

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

I.                
Overview

[1]            
This case involves a significant claim for damages for personal injuries
following a high impact collision on August 21, 2009. Of particular interest in
this case is the dramatically different approaches taken by the medical experts
for both sides. In spite of statements by these experts that they are aware of their
obligations as expert witnesses under Rule 11-2(1) of the Supreme Court
Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not
be an advocate for any party, in some cases it is clear that the temptation to
become an advocate takes priority over the obligation to assist the Court.

II.              
Background

A.             
The Plaintiff before the Accident

[2]            
Mr. Mattice is a 56 year old who has over 30 years of experience as an
automotive mechanic. He has worked continuously for the past 24 years at Austin
Automotive in Coquitlam, B.C. At trial, Mr. Mattice testified about the
importance to him of being able to work as an automotive mechanic, stating “[i]t
defines who I am. It is what I do.” Over many years, he has also performed
automotive work “on the side”, repairing cars for friends and family at home.
He stated he would often do these “on the side” repairs for a much reduced fee
because he loves his job. He also assisted on weekends at the gift shop his
wife owns in Maple Ridge.

[3]            
Mr. Mattice testified regarding the physical demands required to perform
his employment including strength, fine motor skills, reaching, twisting, gripping,
lifting and other physically demanding tasks. He stated that an auto mechanic
is required to work in various positions including working on overhead tasks,
working while lying on his back, and often work that involves pushing and
pulling, all often in cramped quarters. The work of a mechanic is clearly
physically demanding in many ways.

[4]            
Mr. Mattice testified, as did his employer, Mr. Springman, that Mr. Mattice
was very efficient at his work and regularly used to beat the “book time”, which
is the amount of time manuals allow for performing specific tasks efficiently.
If a mechanic can complete tasks in less than the “book time”, he can move on to
other tasks and is more productive for his employer.

[5]            
Mr. Mattice has no pension plan and, prior to the accident of 2009, stated
he was intending to continue with his work to at least age 70, possibly longer.

[6]            
Mr. Mattice and his second wife built their home in Maple Ridge
approximately fifteen years ago and they have been living in that house ever
since. The house sits on a large lot which he describes as “park-like” with
shrubs, flower beds, trees and a large lawn, which he previously tended to in
his spare time. He and his wife both testified that prior to the accident of
August 21, 2009, Mr. Mattice was very active in maintaining the home and yard,
and participated in various recreational activities including hiking, camping, fly
fishing and biking.

[7]            
Mr. Mattice and Mrs. Jill Mattice both testified that prior to the
accident, they would share household work “50/50”, with Mr. Mattice doing the
dishes, vacuuming, cleaning windows and occasionally cooking.

[8]            
Mr. Mattice also testified that prior to the 2009 accident, he was in
good health and had no sleep problems. He had been injured in a motor vehicle
accident on November 28, 2008. He experienced a stiff neck and shoulders, was prescribed
painkillers and a muscle relaxant, received physiotherapy treatment for a week,
and stated he had no further symptoms or pain a few weeks after the accident.

[9]            
The only other health issue Mr. Mattice faced prior to the 2009 accident
was a history of low back pain, which he stated did not limit his work in any
way. There was also a report in his doctor’s medical records of a visit on
April 5, 2009, regarding his right elbow. There were no details regarding any
problem with his right elbow and he testified that he did not recall a problem
with it or having spoken to his doctor about a problem with it. There were no
other references to his elbow in any other medical records before the 2009
accident.

B.             
The August 21, 2009 Accident

[10]        
During the morning of August 21, 2009, Mr. Mattice and his fellow
worker, Mr. Kugnut, were performing a diagnostic road test of a Chevrolet van
owned by an Austin Automotive customer. Mr. Mattice was seated in the front
passenger seat, wearing a lap and shoulder belt, with a diagnostic scanner on
his lap that was about the size of a small keyboard. Mr. Kugnut was driving the
van down a steep hill on Marmont Street in Coquitlam. Mr. Kugnut had stopped
and was signalling a left turn onto Cartier Street. Mr. Mattice testified that
while Mr. Kugnut was waiting for traffic to clear before turning left, Mr.
Mattice was looking down at the scanner when their van was struck from behind.

[11]        
The front windshield shattered. Mr. Mattice testified that Mr. Kugnut
could not see, so he put the van in park and forced his passenger-side door
open, likely by ramming it with his shoulder, to try to help Mr. Kugnut, but
Mr. Kugnut’s door would not open. He found his cell phone, which had been in
his pocket, in the back of the van and called his employer. Mr. Mattice
testified that he did not know what had happened to his body on impact. He
testified he felt “shaken up”. He noticed the driver’s side panel had buckled.
He stated there had been no warning of the collision and no skid marks, which indicates
the driver of the other vehicle had not attempted to stop.

[12]        
Mr. Mattice testified the frame of the van was bent, the doors were ajar
and the windshield shattered. In spite of this damage, he managed to drive the
van back to Austin Automotive and Mr. Kugnut was taken to the hospital by
ambulance.

[13]        
The impact of the collision was significant as the defendant’s vehicle
did not attempt to stop.

[14]        
Mr. Mattice then went back to work for the rest of the day as he was the
only mechanic available in the shop since Mr. Kugnut had been taken to the
hospital. Mr. Mattice testified that by the end of that day at work, his
chin was sore, both shoulders were stiff, and his neck was stiff. Mr. Mattice
stated that the next day he was suffering from headaches, his chin was sore,
his elbow was sore, his neck and shoulders were both tight and sore, and he had
a bruise on the underside of his right elbow. He also had some pain from the
restraint by the seat belt. At the doctor’s office, he was prescribed Tylenol 3
and a muscle relaxant, and was told to go see a physiotherapist.

III.            
Issues

[15]        
Liability for the accident is admitted. The issues before me are:

a)    What
injuries has Mr. Mattice suffered, and were they caused by the accident?

b)    What
damages, if any, are appropriate in this case?

IV.           
Evidence of the Injuries

A.             
Injuries and Treatment

[16]        
Mr. Mattice claims the following injuries were caused by the August 21, 2009
accident (hereafter, “the accident”):

a)    chronic soft
tissue injuries to his neck and upper back;

b)    soft tissue
injury to his right elbow which developed into chronic right ulnar nerve
irritation;

c)     a right
infraspinatus partial thickness tear with chronic myofascial pain involving the
right trapezius and infraspinatus muscles (whether this was caused by the
accident is very contentious);

d)    sleep disruption
due to pain; and

e)    depression.

[17]        
Evidence of the injuries suffered by Mr. Mattice included the testimony
of Mr. Mattice, his wife Jill Mattice, medical records of doctors
attending to Mr. Mattice’s injuries, the expert opinions of Dr. David Koo for
the plaintiff and of Dr. Keith Christian, an orthopaedic surgeon who provided
an opinion on behalf of the defence. Janet Hunt, an occupational therapist,
also provided an assessment of Mr. Mattice’s “functional abilities and
limitations in order to determine his work capacity” to the Court on behalf of
the plaintiff.

[18]        
Mr. Farron Fedechko, is a kinesiologist who treated Mr. Mattice for his
workplace injury in 2010. His evidence was not particularly useful considering
the issues before me in this action. It was suggested that Mr. Mattice, while
being treated for the workplace accident injuries, would have mentioned the
2009 accident injuries to the therapist and there was no record of that.
Whether or not the therapists were so advised is not significant as he was
specifically being treated for workplace injuries and there is other evidence
of the accident injuries.

B.             
Post-Accident

[19]        
Mr. Mattice went for physiotherapy on August 28, 2009, a week after the
accident. He told the physiotherapist of his headaches, decreased right hand
strength, pain in his right forearm, hand and elbow, and of his experiencing
“pins and needles” in his right hand. He continued with physiotherapy sessions
until January 28, 2010, when he testified he reported to his physiotherapist
that he was doing well; he estimated he was at 90% of normal, had some pain on
and off at work, and had two more weeks left in his exercise program.

[20]        
On his physiotherapist’s recommendation, Mr. Mattice also attended an
exercise-based kinesiology program between late October 2009 and January 13,
2010. He had on-going pain in his right shoulder and right hand for which he
continued to take painkillers. When visiting his doctor on February 10, 2010,
he reported continuing pain in his neck and shoulders, and pins and needles in
his right hand. He testified that the numbness in his right hand would become
painful at work and the pain would go from his hand up his arm and into his
neck. He missed very little work in this period of time, that is, up to April
1, 2010. He had been managing the pain in his right shoulder with the
painkillers but was concerned the painkillers may be doing more harm than good
as they would “mask” the problem.

[21]        
On April 1, 2010, Mr. Mattice was injured at work (hereafter “the
workplace injury”). He was standing on a mezzanine attempting to use a rope to lift
a snow plow up to the mezzanine. His co-worker suddenly let go of the rope and
Mr. Mattice ended up pulling the snow plow up on his own. He testified that he
suffered a groin injury as a result. Later on that day he missed a step going
off of a curb and his “lower back went out”. He stated that there was no
increase at that time in the pain in his right shoulder and in his right elbow.

[22]        
Mr. Mattice made a claim for a workplace injury with the Workers
Compensation Board. His claim was accepted and he was work for three months as
a result. On April 6, 2010, he returned to Pitt Meadows Physiotherapy for
relief from what he then referred to as a hip injury. The prescription written
by Dr. Richards of the Cottonwood Medical Clinic prescribed physiotherapy for
“back sprain” and “disc injury” but made no reference to the neck, right elbow
or right shoulder problems or the “pins and needles” in this right hand that resulted
from the accident of August 2009.

[23]        
In April 2010, Mr. Mattice engaged Dr. D. Patidar as his family doctor.

[24]        
Mr. Mattice continued with treatment for his workplace injury and
returned to work on a part-time basis on June 30, 2010 and on a full-time basis
at the end of July 2010. He testified that all the treatment received at Pitt
Meadows physiotherapy was for the workplace injury with a focus on his hip and
not for the injuries suffered in the 2009 accident. He also stated that by the
end of the physiotherapy program in early July 2010, his right shoulder, arm
and the “pins and needles” sensation in his right hand were not improved and he
was having problems performing some functions of his job.

[25]        
 Mr. Mattice testified that in the fall of 2010: the pain in his right
hand, arm and shoulder continued, it hurt when he had to work overhead, most
tasks at work aggravated the pain, and he was not enjoying any of the
recreational pursuits he had previously enjoyed. He no longer could fly fish
due to the pain in his right arm. He could not golf. He gave an example of how
he was picking mushrooms during a hike and had to “pull himself up the
mountain” as he was so fatigued. He also stated he abandoned pain killers.

[26]        
Also in the fall of 2010, his sleep was poor as he would wake up multiple
times during the night, his energy level was low and on one occasion he hired
someone to do some heavy work around the yard. He and Mrs. Mattice both
testified that they also reduced the rent of Mr. Mattice’s stepson who was
living in the basement of his house by $200 per month in exchange for his stepson
performing heavier house and yard work.

[27]        
By March 2011, he consulted Dr. Patidar again regarding his injuries
from the motor vehicle accident. Mr. Mattice testified that he is “not one to
run to the doctor” and so the impetus for this visit was his wife’s insistence
that he go to a doctor because he was not getting better. He consulted Dr. Patidar
regarding numbness in his hand, his shoulder pain, his lack of sleep and the
loss of intimacy with his wife, for which Dr. Patidar prescribed him Viagra. Dr.
Patidar wrote an undated letter to counsel for Mr. Mattice. It was entered as
an exhibit at trial, but only as evidence as to facts described in the letter,
not as an expert opinion. The letter is not dated but has a facsimile
transmission record dated May 19, 2011 and in it Dr. Patidar referenced having
last seen Mr. Mattice on March 24, 2011.

[28]        
Among other items, Dr. Patidar wrote about the accident of August 2009
(in respect of which he was presumably reviewing clinical records) and noted he
had also been made aware of the workplace accident and treatment Mr. Mattice
had received for it. After a brief history of Mr. Mattice’s complaints to other
medical practitioners about, and treatment for, the accident injuries, Dr.
Patidar wrote the following about his own interactions with Mr. Mattice:

Mr. Mattice first consulted me on April 14, 2010 and reported
he had sprained his lumbar spine at work. He injured his back while carrying a
snow plough. He reported that he was rear ended in August 2009 but his whiplash
was stable.

He was last consulted on March 24, 2011. He still gets pain
between his shoulders in his thoracic area, and reported that occasionally he
gets tingling in his hands.

Mr. Mattice has recovered well
from his MVA as he was symptom free until he reinjured his lumbar spine at
work.

[29]        
Counsel for the defence submits that I should draw an adverse inference
from the plaintiff’s failure to call Dr. Patidar as a witness and cites several
authorities including Lau v. Insurance Corporation of British Columbia, 2012
BCSC 1226, and Travis v. Kwan, 2009 BCSC 63.

[30]        
Having considered the authorities and reviewed Dr. Patidar’s statements,
I am of the opinion that Dr. Patidar’s statements are of little, if any,
assistance to me other than the evidence of Dr. Patidar reporting what Mr.
Mattice told him. To the extent the letter from Dr. Patidar is reporting the
subjective statements of Mr. Mattice, those statements appear to
contradict Mr. Mattice’s evidence regarding his recovery from the injuries
suffered in the accident of August 2009. Specifically, Dr. Patidar reports that
Mr. Mattice said that “his whiplash was stable” at the time of the workplace
injury and “he still gets pain between his shoulders in his thoracic area, and
occasionally he gets tingling in his hands.”  The final statement, that
Mr. Mattice had recovered from the accident and was symptom-free until his
workplace injury, is Dr. Patidar’s opinion, and therefore largely irrelevant. However,
it can be used, in a very limited way, as indirect evidence that Mr. Mattice
was not reporting serious symptoms to Dr. Patidar, as he likely would have if
the accident injuries were causing him as much pain as he testified to;
however, I approach this last point with caution.

[31]        
Therefore, Dr. Patidar’s letter calls into question whether the
plaintiff’s injuries truly were as debilitating as he testified at trial, as
Dr. Patidar’s record in the letter likely would have indicated more extensive
complaints from Mr. Mattice. Dr. Patidar’s reference in this letter to
“whiplash” could only relate to Mr. Mattice’s neck and back injuries he claimed
to have suffered in the August 2009 accident but Dr. Patidar does not refer to
any complaint about an injury to his right shoulder and elbow.

[32]        
Mr. Mattice testified that he continued through the spring of 2011 to
have poor sleep, to be moody and depressed, and to be unable to do the
recreational activities he enjoyed. He was no longer attending meetings as the
Masonic Lodge as he was too tired. He stated he was too tired by the end of a
work day to do anything but sit in a large chair at home. He testified his
shoulder was aching, pain was nagging him “all the time”, and then added it would
go away briefly. Work aggravated his shoulder, the pins and needles continued
in his hand, and he found twisting, gripping and other necessary tasks of a
mechanic to be very difficult.

[33]        
After being assessed by Dr. Koo for the first time in June 2011, Mr.
Mattice attempted to enroll in a rehabilitation program that Dr. Koo recommended.
Mr. Mattice’s lawyer wrote to ICBC, enclosing a copy of a report from Dr. Koo
and asking ICBC to fund an exercise program. I understand this request was
refused; however, it may be more accurate to say the request was ignored. Mr.
Mattice eventually funded the program from his own resources.

[34]        
On March 28, 2012, Mr. Mattice entered a rehabilitation program at West
Coast Kinesiology. Up to that time, his right shoulder, arm, elbow and numbness
and pain and pins and needles in his hand had not improved. Mr. Mattice testified
that, in fact, his right shoulder was gradually getting worse.

[35]        
West Coast Kinesiology began with an assessment of Mr. Mattice. He was
asked to lie face down on a padded table with his head over the edge and raise
his arms up, in front of himself, as high as possible. His left arm came up and
down without incident. He then raised his right arm to the level of the table. A
trainer then lifted it another two inches, causing Mr. Mattice “excruciating
pain instantly”. He stated he screamed out in pain. The pain was in his back
near his shoulder, the same location where he had been experiencing pain in his
shoulder while at work and otherwise. It is this incident that is controversial
in this litigation as a result of Dr. Koo’s testimony, which I will refer to
later in these reasons.

[36]        
After the incident of March 28, 2012 at West Coast Physiotherapy,
Mr. Mattice continued with a program of light exercise, lifting light
weights and other forms of therapy. Mr. Mattice testified that the exercise did
not help alleviate his pain. As a result, one of the kinesiologists suggested
to Mr. Mattice that he should have an MRI taken of his right shoulder. The MRI
was taken on August 13, 2012 in a private clinic at a cost of $900 and revealed,
according to Dr. Koo, a rotator cuff tear.

[37]        
Later, in October 2012, as recommended by Dr. Koo, Mr. Mattice underwent
nerve conduction tests with Dr. Sadowski, a neurologist. Dr. Sadowski corrected
Mr. Mattice’s arm posture which has reduced some of the pain that had been
radiating up to his neck from his right arm. As well, the nerve conduction test
revealed that the nerves passing through Mr. Mattice’s elbow had been crushed.

[38]        
Mr. Mattice testified that during the fall of 2012, the pain in his
shoulder was not improving but he continued to work, using his left hand when
possible. Mr. Mattice is right hand dominant. He did not miss any work
during the fall of 2012 and stated that his right hand and arm improved
slightly and there was “not so much pain” in his neck. He stated that his sleep
was poor as he could not sleep on his right side due to pain. He had previously
always slept on his right side. He also testified that he was less productive
at work, that he was completing tasks in the “book time” or longer, and that he
was experiencing cramping. Mr. Mattice also explained that he had cut himself
at work on some protruding screws, which were apparently prevalent on Chrysler
vehicles. His concern was that due to the numbness in his hands, he was not
even aware he had been cutting himself on the screws.

[39]        
Mr. Mattice testified that in 2013 there had been no improvement to his right
shoulder and his arm and hand had experienced a slight improvement but he continued
to experience hand cramps.

[40]        
Mr. Mattice did state that he felt better when he was taking his pain
medicine, either Tylenol 3 or Advil, but he generally stopped taking the
medicine. Mr. Mattice stated he was concerned that the medications would “cover
up” his injuries and worsen his situation. I understand him to mean that the
pain medicine would relieve the pain, allowing him to continue to work or
continue with activity which would ultimately result in even more pain once the
medicine began to wear off. In other words, the medicine improved his tolerance
and worsened his condition because he was temporarily not feeling the pain after
taking pain medicine.

[41]        
Mr. Jordan Springman, co-owner of Austin Automotive, testified that
Mr. Mattice has been a long-time outstanding employee who gave 100% effort
to his job. Mr. Springman spoke of observing Mr. Mattice working since the
accident of 2009. He described Mr. Mattice continually having problems with his
right shoulder, his arm and his hand, particularly when doing overhead work and
working on his back. He also said that Mr. Mattice was constantly shaking his
hand, presumably due to “pins and needles”. He stated that from his
observations, Mr. Mattice’s discomfort in his right shoulder is getting
progressively worse.

[42]        
When possible, Mr. Springman testified he would assign work in the shop
in such a way that would allow Mr. Mattice to avoid work which would aggravate
his injuries.

[43]        
As of early September 2013, Mr. Mattice reduced his work schedule to
three days per week as had been recommended to him by Janet Hunt, an
occupational therapist. At the time, Mr. Mattice was concerned about whether he
was going to be able to continue his work as a mechanic due to the pain and
exhaustion he was experiencing. Upon switching to a three-day work week, he
stated that having fewer hours “helped a bit” and he had a “bit more energy to
help at the house”. His arm was helped slightly by working less, but his
shoulder continued to be just as painful as it had for a considerable time. His
sleep and emotions did not improve with the three day week and he testified
that his mood became even worse.

[44]        
Mr. Springman testified that he accommodated Mr. Mattice’s request to
work three days per week commencing September 2013, but cannot allow Mr.
Mattice to work only when he is feeling well enough, which is reasonable as it
would not be feasible to properly schedule work and his staff in those
circumstances.

[45]        
Mr. Mattice testified that he believed he could continue to work for
another six months to a year, and “previously never thought of not working”. He
stated that he cannot afford to retire; he thought he would be working to the
age of 70 or more and he did not have a pension plan. His financial situation
has also been negatively affected as, in recent years, he has not been taking
on any “side jobs” due to fatigue and pain.

[46]        
Mr. Mattice testified he has not returned to his recreational pursuits
of fishing, hiking, camping and biking due to the pain and exhaustion he
experiences. He hiked the Grouse Grind with his wife but it took an inordinate
amount of time and he could not keep up with his wife. As counsel elicited on
cross examination, Mr. Mattice was able to undertake trips to China, Thailand,
Dallas, Edmonton and Seattle, the latter three being business trips when he
accompanied his wife on buying trips.

[47]        
Mr. Mattice also testified that he could only minimally contribute to
household chores compared to before the accident. He had also paid painters to
paint a portion of the exterior and interior of the house when previously he
would have performed that work. Mrs. Mattice testified that because Mr. Mattice
can no longer perform his share of household chores, she is looking for a
housekeeper to perform those chores at a cost of some $20-$25 per hour, in
addition to having reduced her son’s rent.

[48]        
Mr. Mattice testified that he has been “moody, down”, “not able to do my
job”. At the end of the work day was too tired to do anything once he got home.
At times, he would help out at his wife’s shop, watching for shoplifters. Mrs. Mattice’s
evidence was that prior to the 2009 accident, her husband was always positive
and “upbeat” and he was always active, always doing something, whether it was
chores, work or recreational activities. Emotionally, Mrs. Mattice described
her husband as depressed. He was coming home every day exhausted from work.
They are no longer intimate due to his depression and, from her evidence, I
understand their life as a couple has generally become an emotional letdown.
Generally, and as would be expected, she has supported her husband and I find
some limited weight can be placed on her testimony.

[49]        
On the whole, I find that Mr. Mattice is generally a credible witness,
though I find that he had embellished his injuries somewhat. In addition to Dr.
Patidar’s reports of Mr. Mattice’s subjective statements about his injuries
which I already dealt with above, Dr. Koo’s expert report, discussed below,
sets out Mr. Mattice’s “clinical history”, based in part on his interviews with
Mr. Mattice. Dr. Koo’s most recent, 2013 report states:

In the last two years, he feels his shoulder pain is somewhat
better, by 30 to 40 percent overall. The pain intensity has subsided, and he
has learned to accommodate with his left arm, and avoid aggravating activities
at work as much as possible.

He is contributing to 30 to 40
percent of the household activities. He manages with most of the chores without
too much difficulty. Vacuuming can be aggravating to his right shoulder.

[50]        
This demonstrates that Mr. Mattice reported improvement to Dr. Koo,
whereas Mr. Mattice testified that his pain is so much worse that he will not
be able to go on working much longer. In addition, Mr. and Mrs. Mattice
testified that Mr. Mattice was unable to do house and yard work, when he
used to undertake half of the household tasks; clearly, Mr. Mattice gave a much
more optimistic report to Dr. Koo. These discrepancies lead me to question
whether Mr. Mattice’s testimony was a true representation of the extent of the
injuries. Mr. Mattice appeared to break down in tears on several occasions
while delivering his testimony and his demeanour in court sometimes appeared
disingenuous. It is also significant that Mr. Mattice stated he did not
miss any work as a result of the injuries suffered in the 2009 accident until
September 2013, when he changed to a three-day work week. Though I accept Mr.
Mattice’s evidence about the kinds of injuries he experienced and their effects
generally, I find that Mr. Mattice has somewhat embellished the extent and
frequency of the pain and effects.

[51]        
Mr. Mattice had an assessment with Dr. Christian on October 19, 2012,
which will be referred to later in these reasons. He also went to see Dr. David
Koo on two occasions, in June 2011 and June 2013, for assessments, diagnosis
and recommendations as to care. I now turn to these visits and the findings of
the experts.

C.             
Medical-Legal Evidence

1.              
Dr. David Koo

[52]        
Dr. Koo was qualified as an expert in physical medicine and
rehabilitation to give opinion evidence on the diagnosis, prognosis, management
and rehabilitation of persons suffering from motor vehicle accident related
injuries, both physical and psychological. Physical medicine and rehabilitation
are collectively referred to as “Physiatry”, which focuses on the treatment and
rehabilitation of persons with physical impairments and disabilities. Dr. Koo’s
clinical practice is located at GF Strong Rehabilitation Centre in Vancouver
and Dr. Koo is a Clinical Associate professor in the Division of Physical
Medicine and Rehabilitation of the Department of Medicine at UBC.

[53]        
Dr. Koo assessed Mr. Mattice on June 16, 2011 and June 17, 2013. On both
occasions, Dr. Koo conducted an interview, a physical examination and reviewed
medical records regarding Mr. Mattice’s history. The physical examinations
conducted by Dr. Koo were lengthy (approximately one hour each), and involved
measurements and applying pressure to areas of Mr. Mattice’s back, shoulder and
arms; Dr. Koo described these methods in detail at trial.

[54]        
Dr. Koo testified at trial and was cross-examined at length. On cross-examination
Dr. Koo agreed that all of the medical-legal reports he writes are for
plaintiffs.

[55]        
In his first report, dated June 16, 2011, Dr. Koo reported, based on his
physical examination of Mr. Mattice, his review of medical records and the history
he took from Mr. Mattice, that Mr. Mattice had suffered acute soft tissue
injuries to his neck and upper back in the accident of November 28, 2008 and
that prior to the second accident on August 21, 2009, Mr. Mattice was pain-free
in his employment and recreational activities.

[56]        
Dr. Koo’s June 16, 2011 report included the following diagnoses relating
to the accident of August 21, 2009:

In my opinion, the following conditions were present at the
time of today’s assessment and were likely the resultant effects from his
original acute injuries:

1.         Chronic soft tissue injury with myofascial pain
arising from:

·       
Cervical paraspinal muscles (right greater than left),

·       
Trapezius muscles (right greater than left),

·       
Right supraspinatus,

·       
Right infraspinatus, and

·       
Right rhomboids.

2.         Bilateral
post-traumatic thoracic outlet syndrome (right greater than left).

3.         Chronic sleep disruption secondary to 1 and 2;

4.         Adjustment reaction.

In my opinion, the chronic
irritation and activation of his neck and shoulder muscles has resulted in
bilateral post-traumatic thoracic outlet syndrome.

[57]        
Dr. Koo’s report also included the following recommendations in relation
to these diagnoses:

Physical therapy or kinesiology programs that emphasize
conditioning or “work hardening” progression of physical tolerance, without
paying attention to effect of trigger points may be too intensive and result in
maintenance and irritation of peripheral pain generators, which in turn can
cause additional central sensitization of a chronically painful condition,
leading to an increase in pain perception. Therefore, I would recommend an
integrated pain management approach for Mr. Mattice, with the use of
pharmacologic and pain-reducing therapies, in conjunction with a gradual
reactivation plan.

…In particular, Mr. Mattice reports intolerance to prolonged
elevation of his arms above shoulder-height, and avoidance of such activity
would be preferred from a medical perspective, although this may not be easily
accommodated given his workplace demands. His frequent position changes and
stretching at work are useful with this regard.

Despite the aforementioned recommendations, I must emphasize
that the duration of pain and stiffness for Mr. Mattice are negative prognostic
predictors, and I believe that some degree of chronicity of symptoms will be
probable despite following these treatment recommendations, which are intended
to ameliorate a chronically painful condition, but not cure it.

Additionally, given his reports of pain exacerbation with his
routine work activities and daily life, I believe that he remains at
significantly increased risk for future pain exacerbation, and may require
periods of activity limitation in the future in the event of re-injury or
overuse.

Nerve conduction studies may be
helpful in further ruling-out alternative neurologic causes to his intermittent
tingling, however it is important to note that electromyography and nerve
conduction studies are typically normal in most cases of thoracic outlet
syndrome, and would not necessarily confirm such a diagnosis. I would suggest
recommend nerve conduction studies if he fails to improve with physiotherapy
management, or his symptoms worsen.

[58]        
Dr. Koo stated the following about the effects of Mr. Mattice’s motor
vehicle accident injuries on his life:

His chronic
daily impairments and pain have led to a loss of his leisure activities, such
as his ability to participate in golf, backpacking, and have resulted in a
negative impact on his quality of life. He endorses periodic tearfulness and feelings
of loss and frustration that do not meet criteria for a major depression. His
general levels of fatigue and pain have led to a reduced interest and frequency
in intimate relations with his wife as well, which he reports has been helped
to some degree with Viagra prescribed by his family physician.

[59]        
As noted, Dr. Koo’s report was based in part on the medical history he
took from Mr. Mattice. His notes on this interview included the following:

He continues to report persisting intrascapular mid back and
right shoulder pain. This has been present since the accident. It is
experienced as a “pinching” sensation, and again is worse with elevation
of the arms above shoulder height. Brief lifting below shoulder height is well tolerated,
but sustained carrying with his arm by his side, such as groceries, will also
cause pain. Stretching his right arm across the front of his chest can ease off
this right posterior shoulder pain.

He has had new tingling since the accident,
which gradually came on approximately one year afterwards and appears to be
worsening. When present, it is more noticeable in the right than left arm, and
appears to originate along the back of the arm, forearm and into the fingers
especially the little and ring finger. It is typically worse with elevating his
arms or when holding a steering wheel. At times, he feels that the strength in
his hands is less, i.e. with loosening an oil filter, and he now might use a
tool instead of his bare hands.

He reports persisting sleep disruption. His neck pain makes
getting comfortable at night difficult and it takes him 15-20 minutes to fall
asleep. Although he feels that he continues to sleep throughout the night, he
awakens feeling unrefreshed and fatigued.

His right elbow pain gradually
improved and resolved after approximately three months. He no longer notices
right elbow problems.

[60]        
Meanwhile, Dr. Koo’s notes from his physical examination of Mr. Mattice
included the following:

Upper extremity reflexes were all normal. There was no
asymmetry of muscle bulk in the arms, hands, or forearms noted. Strength
examination was normal and symmetric in the C5-C8 myotomes.

Active range of motion in both
shoulders was normal. The shoulder joint movement itself was smooth and without
evidence of intraarticular pathology or instability. Impingement testing was
normal. Glenohumeral stability was normal.

[61]        
This demonstrates that Mr. Mattice’s range of motion was normal. Dr. Koo
also noted that there was no pain with certain movements. Therefore, it seems
as though, taken together with the subjective statements of Mr. Mattice to Dr.
Koo noted in the previous quote, he was improved.

[62]        
Dr. Koo was asked to prepare a further opinion which was to include
reference to additional documents from the Workers Compensation Board files, Dr. Patidar’s
clinical records from January 2011 to January 2012, and Golden Ears Orthopaedic
& Sports Physiotherapy’s clinical records from August 2009 to January 2012.
Dr. Koo’s further opinion was issued February 10, 2012. His opinion was
unchanged. As he stated:

Based on my
review of the information provided, and my reevaluation of my initial
medicolegal opinion, dated June 16, 2011, my diagnostic impressions of Mr.
Mattice‘s accident-related injuries, causation, prognosis and treatment
recommendations are unchanged at this time.

[63]        
In his second report, Dr. Koo confirmed, and elaborated at length about,
the diagnosis of posttraumatic thoracic outlet syndrome from his first report. It
was his opinion that the thoracic outlet syndrome was causing the pins and
needles or numbness in the plaintiff’s hand. He stated the following about Mr.
Mattice’s injuries in his second report:

…In particular, on October 2, 2009, it was
noted that following three hours of overhead work he had pins and needles in
the right hand.

In my opinion, it is probable that he had
early symptoms of posttraumatic thoracic outlet syndrome at this point in his
recovery that gradually improved alongside his neck injuries, which was not
completely normal by the time of completion of treatment at Innovative
Rehabilitation Services. In particular, he had not yet returned to active
recreational pursuits, and although he had improvement in his cervical range of
motion and subjective pain, he was
“still
below the population norm in cervical range of motion and thoracic flexion. It
is strongly recommended that Mr. Mattice continue with the exercise program
independently”.

In my opinion, it is probable that from the
time of treatment discharge on January 27, 2010, to my assessment on June 16,
2011, he has had a deterioration of his neck, with increased stiffness on the
basis of his chronic soft tissue injuries with gradual shortening and tightness
of these painful neck muscles due to myofascial pain.

[Emphasis in
original.]

[64]        
He concluded that Mr. Mattice’s workplace injuries did not cause
any of the injuries he had attributed to the accident in his first report. He re-iterated
his conclusion that the motor vehicle accident caused the injuries he had set
out in his first report. He stated the following about the causes of Mr.
Mattice’s injuries:

Upon review of his WCB injuries, it appears
that his other claims have been localized to his lower back, sarcroiliac
region, hips and lower extremities. In my opinion, his other work-related
injuries are unlikely to have been significant in terms of causation, or
contribution to, his conditions of myofascial pain of the neck and upper back,
cervicogenic headaches, and thoracic outlet syndrome.

Therefore,
based on review of the updated clinical records you have provided, it remains
my opinion that but for the subject motor vehicle accidents of November 28,
2008 and August 21, 2009, I can identify no other reasonable clinical cause for
his post-accident problems related to recurrent pain and stiffness involving his
neck and upper back, headaches or posttraumatic thoracic outlet syndrome, and
subsequent functional limitations as described in my original medicolegal
report.

[65]        
Dr. Koo’s third report was issued July 10, 2013. Under the heading
“Updated Clinical History” Dr. Koo noted continued difficulties in the same
areas, except for slight improvement in his shoulder pain:

He attended West Coast Kinesiology, and recalls aggravation
of his right shoulder injury during the initial assessment process; he recalls
being face down on an examination table, asked to extend his outstretched arms
towards the ceiling, and then had the therapist hyperextend his shoulder that
aggravated his right shoulder pain.

He continues to remind his employer to
accommodate his injuries, with avoidance of overhead lifting or reaching, and
hammering, which continue to aggravate his right shoulder pain, and cause
numbness and tingling to the right hand. There are some jobs that cannot be
delegated to other workers, however, and he continues to do these activities
from time to time.

In the last two years, he feels his shoulder
pain is somewhat better, by 30 to 40 percent overall. The pain intensity has
subsided, and he has learned to accommodate with his left arm, and avoid
aggravating activities at work as much as possible.

He continues to avoid fly fishing, golfing
or backpacking due to fear of re-injury of the right shoulder, which would
negatively impact his work capability.

He is
contributing to 30 to 40 percent of the household activities. He manages with
most of the chores without too much difficulty. Vacuuming can be aggravating to
his right shoulder.

[66]        
Under the heading “Investigations”, Dr. Koo found that
the MRI Mr. Mattice paid for on the recommendation of his kinesiologist,
revealed what is commonly referred to as a rotator cuff tear:

MRI scan of the
right shoulder on August 13, 2012 showed tendonosis or infrasubstance tear of
the infraspinatus tendon. There is a partial thickness tear of the articular
surface at the infraspinatus tendon, measuring 10 x 7 mm, consistent with a rim
rent tear. There was some deltoid bursitis.

This is the most significant injury
claimed by Mr. Mattice and the injury which has contributed more than any other
injury to his claim that he will soon no longer be able to continue with his
occupation as an auto mechanic.

[67]        
Dr. Koo’s third report sets out the following
injuries caused by the August 2009 motor vehicle accident:

1.    
Acute soft tissue injuries to the neck, upper
back, chest;

2.    
Acute soft tissue injury to the right elbow with
chronic right ulnar nerve irritation at the elbow;

3.    
Right infraspinatus partial thickness tear with
chronic myofascial pain involving the right trapezius and infraspinatus
muscles;

4.    
Cervicogenic headaches (resolved);

5.    
Mechanical neck pain (resolved);

6.     Sleep disruption due to pain (persisting)[.]

[68]        
Significantly, Dr. Koo stated that with the
benefit of the nerve conduction studies and re-examination, it became evident
to him that Mr. Mattice did not have thoracic outlet syndrome, as he had
diagnosed in his previous two reports. Rather, he found that the right hand
numbness and tingling was likely due to irritation of the ulnar nerve at the
elbow, not thoracic outlet syndrome. He wrote:

In my opinion,
the chronic ulnar neuropathy that has caused ongoing numbness and tingling, and
pain in the hand and arm since MVA-2, is likely a direct consequence of the
initial soft tissue injuries to the right elbow.

[69]        
Dr. Koo also re-iterated what he stated in his
second report following a review of the MRI: that the shoulder symptoms were the
result of a tear in the infraspinatus tendon (or rotator cuff). He wrote:

He has a
partial thickness tear of the infraspinatus tendon on the MRI scan, which
likely accounts for his sub-deltoid bursitis, as well as positive painful arc
during active abduction of the shoulder. The localization of his pain with palpation,
however, is in the mid-body of the infraspinatus and likely represents
secondary myofascial pain with a palpable and persisting trigger point.

[70]        
According to Dr. Koo’s third report, Mr. Mattice’s
recovery is unlikely. Under the heading “Prognosis”, Dr. Koo stated:

Although he has had partially improved pain
in his shoulder, and numbness and tingling into the hand, it is now more than
three years post MVA-2. Maximum medical recovery has likely taken place as it
relates to his infraspinatus partial thickness tendon tear, myofascial pain,
and posttraumatic ulnar neuropathy.

He continues to have pain and limited
strength with dynamic stabilization of the shoulder during forward and overhead
reaching and activities with a weighted extremity. He continues to require
accommodation at work to avoid heavier demand activities such as overhead
reaching, hammering, or heavier lifting, and he has pain that interferes with
his sleep at night.

The work
disability outlined in the work capacity evaluation of Ms. Hunt’s report is
likely permanent, given the duration and severity of his symptoms to date.

[71]        
Dr. Koo stated that, aside from altering the
diagnosis from thoracic outlet syndrome to post-traumatic ulnar neuropathy,
“the other recommendations made in his medical legal report remain relevant and
on-going.” Dr. Koo’s recommendations in his third report included the
following:

He does have a partial thickness tear of the
infraspinatus tendon. He would likely benefit from physiotherapy to help with
dynamic shoulder stabilization exercises, strengthening of the remaining
rotator cuff muscles, and education regarding avoidance of aggravating
activities. In my experience, chronic partial thickness tears of the
infraspinatus tendon are often aggravated through daily activities, sleeping on
the right side, and continue to be a source of pain and disability on an
ongoing basis, as spontaneous cure or resolution is unlikely.

…He may benefit from an occupational therapy
assessment of supportive surfaces around the home, with consideration to
preventative padding when sitting or sleeping in bed.

His ulnar neuropathy likely reduces his
ability to perform sustained or repetitive activities involving the right upper
extremity, particularly those that require prolonged flexion of the elbow, or
repeated hammering movements, or strong and repetitive gripping.

If he should experience increasing worsening
of his numbness and tingling despite conservative therapy, he would likely
benefit from repeat nerve conduction studies and possibly elecromyography to
further evaluate the degree of ulnar nerve compression at the elbow. Ulnar
nerve transposition surgery would be best reserved as a treatment of last
resort, if his symptoms become unbearable, or if he should develop motor
weakness.

[Emphasis
added.]

[72]        
Dr. Koo made the following findings and
treatment recommendations regarding Mr. Mattice’s psychological symptoms:

His chronic daily impairments and pain have
led to an ongoing loss of leisure activities including his ability to
participate in golf, backpacking and fly fishing.

His adjustment disorder appears to have
evolved into a mild depression; his PHQ-9 scored 11. In particular, in the last
two weeks “nearly every day” he has had trouble falling/staying asleep; and
felt tired or had little energy. On “more than half the days” he had had little
interest or pleasure in doing things; and felt down, depressed or hopeless. “On
several days” he has had trouble concentrating on things.

Accident-related factors contributing to his
depression include ongoing loss of leisure and recreational pursuits, worry and
apprehension about his future health and symptom progression, loss of work
tolerance, and ongoing sleep disruption.

I would
recommend ongoing psychological counseling for coping and adjustment to his
injury and disability, and supportive psychotherapy. The relative mildness of
his depression likely does not warrant pharmacologic management or referral to
a psychiatrist for psychiatric review at this time.

[73]        
At trial, I found Dr. Koo to be very thorough and generally credible. Although
his answers to questions were often rambling, he was cooperative and I detected
no attempt to avoid questions. He demonstrated a willingness to agree with
counsel on cross-examination when appropriate. The most significant testimony
of Dr. Koo related to the cause of the rotator cuff injury which I will refer
to later in these reasons.

[74]        
Significant evidence from Dr. Koo at trial included:

a)    His description
of the method he uses to locate myofacial pain or soft tissue injuries and his
conclusion that there were five areas of soft tissue injury in Mr. Mattice’s
spine, neck and shoulders.

b)    His description
of the rotator cuff injury which was detected in the MRI scan conducted August
13, 2012 and referred to in Dr. Koo’s third report (the July 10, 2013 report).
Dr. Koo described how such an injury can cause the ball and socket to shift
and, if the rotator cuff muscles are injured, how the injury can be very
painful and bursitis can result. Dr. Koo also described how such an injury
would be particularly painful when one is working overhead. He stated on
cross-examination that “when reaching out or above the pain increases and more
so when there is weight in the arm”.

Most
significantly, on cross-examination Dr. Koo stated that in his first assessment
of Mr. Mattice in 2011 there were no signs of a rotator cuff tear, but it did exist
in 2013. There were soft tissue injuries to the rotator cuff in 2011, as noted
in Dr. Koo’s first report. In cross-examination he added that the rotator cuff tear
was more likely due to the kinesiology incident of March 28, 2012 (when the
kinesiologist raised Mr. Mattice’s right arm while he was lying face-down on
the table) than due to the accident.

c)     Dr. Koo
was asked if the ulnar neuropathy (that is, the elbow pain) could be
“serendipity”, or a “function of …occupation”, to which he responded “it is a possibility”.
He also agreed on cross examination that it is “possible” that the ulnar
neuropathy could be aggravated or even caused by work. However, in Mr.
Mattice’s specific case this was most likely caused by the trauma, and work was
just aggravating it.

d)    Dr. Koo described
how the pain caused by the rotator cuff tear would cause chronic sleep
deprivation as Mr. Mattice has claimed, especially since Mr. Mattice had
previously slept on his right side and is right-handed.

e)    In his 2013
report, Dr. Koo referred to mild depression and little interest in activities,
including leisure activities. He had recommended ongoing psychological
counseling which he stated usually helps persons with mild depressive
disorders. There is no evidence before the Court that Mr. Mattice has received
psychological counselling.

f)      Dr.
Koo testified that his assessment is that Mr. Mattice will not significantly
improve and that he has ongoing physical and psychological “fallout”.

g)    And, the
following quote from Dr. Koo’s evidence is particularly significant regarding
the effect of his injuries on his ability to work:

So my role in this is to … look at what he can do now, but
also presents a picture of what he should be doing to keep him healthy and
functional as it can be. Work, but also not work. So there is a very real and
distinct likelihood that if he continues in a full-time employment, at a
physically demanding job, knowing that he has a symptomatic rotator cuff,
knowing that he has a vulnerable ulnar nerve that continues to be irritated
through work, that these things can actually become worse, and not just
sort of maintain.

[Emphasis added.]

2.              
Dr. Keith Christian

[75]        
Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for
the defence and was also cross-examined at trial. Dr. Christian assessed Mr.
Mattice on October 19, 2012 and issued a report the same day. Dr. Christian
completed his interview and physical examination of Mr. Mattice in a total of
twenty minutes, which included 16 minutes for the interview and four minutes
for the physical examination. Dr. Christian did not disagree that his
assessment of Mr. Mattice was very brief.

[76]        
During cross-examination, Dr. Christian was very argumentative and often
arrogant. He stated that when asked previously by defence counsel whether he
took notes of his meeting with Mr. Mattice, he advised that he did not take
notes. At trial Dr. Christian admitted to having taken “scribbles”, which he
said were illegible and which he destroyed after dictating his report on the
day of the assessment. He said he had denied having taken notes as he had
instead made “scribbles” and that no one had asked him if he had taken any
“scribbles”. Since Dr. Christian admitted on cross-examination to having used
his “scribbles” to dictate his report, there is little doubt in my mind that
his “scribbles” were what any doctor would consider “notes” and that Dr.
Christian was well aware that his “scribbles” constituted what anyone else would
consider to be “notes”. His answers in this inquiry were most evasive and clearly
showed a lack of willingness to be frank, open and honest with the Court.

[77]        
Dr. Christian’s interview and physical examination of Mr. Mattice were
without question incomplete. On cross-examination, Dr. Christian admitted that
he had not asked Mr. Mattice questions regarding, among many other things: the
severity of the accidents of 2008 and 2009; any symptoms in his hands such as
pain and “pins and needles”; whether symptoms, if there were any, were
improving; bruising on Mr. Mattice’s elbow; the nature of his employment;
the extent of the pain in his shoulder; and sleep problems. Dr. Christian also
did not inquire about aspects of the accident that were relevant to the
injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and
how he was impacted in the accident. In written submissions, counsel for Mr.
Mattice listed 18 areas of legitimate inquiry that Dr. Christian could
have pursued to provide a more informed and unbiased opinion; in my view, there
were areas in addition to these 18 which Dr. Christian could have explored, but
elected not to do so.

[78]        
Dr. Christian repeated on several occasions that he was an orthopaedic
surgeon and that his role was only to explore musculosketetal, and not
neurological, problems.

[79]        
Dr. Christian noted the following symptoms:

He indicates
he has weakness in his right hand that bothers him particularly when he is
driving. The numbness in the ulnar distribution of the right hand is still
there. He does think this is getting better, however.

Over the last six months or so, he reports
that his symptoms have improved somewhat. He has recommenced physiotherapy over
the last few months and he thinks this is helping. He still has some stiffness
in his neck and headaches are still a problem.

The examination of the upper
extremities showed normal range of abduction and elevation of the shoulders. He
had slight restriction of internal rotation of the right shoulder.

[80]        
Under the heading “Opinions and Conclusions”, Dr. Christian stated:

3.         Causal
connection between the accident and the Plaintiff’s injuries.

In view of the fact that there was some degree of spinal
discomfort in the past and there was a history of a previous rear-end collision
a year or so prior which produced some neck and back discomfort, it is not at
all clear whether or not his present symptoms with respect to his neck and
shoulder stiffness are causally connected to the motor vehicle accident in
question.

4.         The diagnosis.

With respect to the diagnosis of this gentleman’s symptoms of
residual right shoulder pain, neck stiffness, and a subjective sensation of
impairment of sensation of the right hand, I would consider the following: It
is recognized that a rear-end collision of this nature frequently produces a
predictable set of symptoms characterized by neck pain and stiffness,
headaches, and various neurological symptoms, including numbness. The term
whiplash-associated disorder (WAD) is a term that has been applied to this
symptom complex and would appropriately describe Mr. Mattice’s complaints.

5.         Present and future treatment recommendations.

I would say that this gentleman does not require any physical
or medical treatment at the present time, or is likely to in the future
specifically as a result of the motor vehicle accident in question. There is
little evidence to suggest that physical forms of treatment past a few months
from this type of incident are helpful and may, in fact, be counterproductive
in that they tend to focus on symptoms…. I think that maintaining a normal
activity level is important and it is likely that continued neck discomfort and
stiffness as well as shoulder discomfort will tend to have their exacerbations
and remissions over the years ahead, but are unlikely to have been affected by
the accident in question and would not require any specific measures as a
result of it.

6.         Degree of disability including present and future working
limitations, if any.

With respect to the degree of
disability, I would point out that this man has no objective evidence of any physical
impairment as would be identified by the AMA Guides to the Evaluation of
Permanent Impairment. He would not appear to have any impairment which would
preclude the possibility of his returning to normal work activity and normal
recreational activity. He has subjective symptoms which he feels to be somewhat
disabling and which he feels are causally connected [to] the subject accident.
I would expect that as he is able to put this issue behind him and return to
more normal physical activity, the symptoms that he finds presently to be
somewhat disabling will resolve.

As a result of this incident I would not anticipate any
reduction in earning capacity or restriction of recreational activity in the
future.

7.         Prognosis.

The prognosis for recovery from this
type of collision is usually favorable, although symptoms may be experienced
for some time post accident. I would expect satisfactory resolution of symptoms
with time. There is little evidence to suggest that the occurrence of this type
of motor vehicle collision leads to the advancement of arthritic or
degenerative processes in later life.

[81]        
In the Addendum of Keith Christian dated June 8, 2013, Dr. Christian
said in part:

The report of the MRI of the right shoulder suggests a
tendinosis or intrasubstance tear of the infraspinatus tendon. It also notes
partial thickness incomplete tear of the articular surface of the infraspinatus
tendon. It also suggests a subacrominal bursitis.

It should be noted that these features described in the MRI
study are common abnormalities found in asymptomatic adult individuals; the
incidence in the general population is extremely high, particularly in mid to
later life age groups. I would say that the presence of these abnormalities
noted on the MRI are of no significance and are completely incidental findings.
From the mechanism of the injury and the symptoms reported by the claimant,
there is nothing to suggest there is a causal connection between these
radiological findings and the motor vehicle accident in question.

Furthermore, the presence of
these radiological findings would not likely be related to this gentleman’s
ongoing symptoms. The complaints that he reported to me are more likely on the
basis of the whiplash-associated disorder that I have discussed in my report. I
would say that the presence of these findings do not, in any way, render this
individual more susceptible to the appreciation of ongoing symptoms of this
disorder occasioned by the motor vehicle accident in question.

[82]        
In cross-examination Dr. Christian stated that there was no reason at
the time for him to be having shoulder pain, that any fatigue being experienced
by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr.
Mattice not to improve, and that there was no reason for Mr. Mattice to have a
problem with his shoulder. He stated that, generally, in his opinion, Mr.
Mattice should have been over any injuries from the 2009 accident long before
the visit to Dr. Christian.

[83]        
In conclusion on Dr. Christian’s evidence and opinions, I have no
hesitation in finding that his research was incomplete, that he was predisposed
to a finding that Mr. Mattice’s injuries were either exaggerated or did not
exist, and that by limiting his opinions to musculoskeletal injuries, he was
not qualified to opine on the injuries which Mr. Mattice claimed to have
suffered in the 2009 accident. As a result, I find the opinions and evidence of
Dr. Christian to be of little or no probative value and I am left with the medical-legal
opinions of the plaintiff’s expert and all other evidence to make a
determination regarding Mr. Mattice’s injuries.

D.             
Other Expert Evidence

1.              
Janet Hunt

[84]        
Ms. Hunt is an occupational therapist who was qualified as an expert to
give opinion evidence about a person’s capacity to work at certain occupations.
Her report entitled “Work Capacity Evaluation of Mr. Thomas Mattice” was
entered into evidence and was dated June 28, 2013. Ms. Hunt also testified at
trial.

[85]        
Ms. Hunt’s findings in her report under the heading “Opinion, Work
Capacity”, include, in connection with his right arm, the following:

Right Arm:

·       
While Mr. Mattice’s grip strength is fully functional, he reports
increased ring and little finger numbness with repetitive strong gripping, with
reduced grip strength over time. Based on these findings he is not suited to
jobs requiring repetitive strong right gripping throughout the day.

·       
Tolerance for repetitive or sustained reaching at shoulder height
and above is limited to brief intervals (approximately 30 seconds to 1 minute
at a time), on occasion. If he is able to regularly alternate between his right
and left arms, reasonable tolerance for work in this range is up to 5 minutes
at a time, on occasion. Below shoulder reaching is best tolerated in close
range (up to approximately 12 inches from his body).

·       
He has no difficulty writing with his right dominant hand.

·       
He is able to manipulate small to medium size objects with
reasonable precision at below average to above average speeds.

·       
He reasonably tolerates light handling activity for 30 minutes at
a time, working at competitive to highly competitive speeds.

·       
He is not suited to tasks requiring: forceful repetitive impact
through his right arm (i.e. hammering); pulling force in combination with shoulder
abduction (i.e. pulling objects apart); sustained holding of weight in a
forward reach position; or repetitive and/or resisted shoulder and/or forearm
rotation (e.g. manually loosening or tightening nuts), particularly in
combination with forward reaching or awkward arm postures.

·       
He is able to lift up to 30 pounds through range (i.e. floor to
overhead) with his right arm close to his body, once in a while; in comparison
to 35 pounds with his left arm, without limitation (considered Light-Medium
strength).

·       
Work requiring him to lie on his right side while using his right
arm awkwardly (e.g. work on a creeper under a vehicle or under a dashboard) is
poorly tolerated, not recommended.

·       
There were further reductions in right shoulder range of motion,
speed (for repetitive overhead reaching and fine dexterity tasks) and grip
strength in response to approximately 4¹/₂ hours of
physical testing involving his right arm, indicating Mr. Mattice will have
difficulty maintaining productivity if required to perform jobs requiring
repetitive right arm reaching and/or force application. He is also at increased
risk of left arm over-use symptoms if he continues to regularly accommodate
right arm limitations by substituting his left arm.

[86]        
This indicates that although Mr. Mattice has some significant
limitations, he also has fairly significant strength, that is, he is able to
lift 30 to 35 pounds. He is also able to write and can handle some activity.

[87]        
On the issue of Mr. Mattice’s ability to continue his work as an
automotive technician, Ms. Hunt concluded:

Results of work capacity testing
indicate Mr. Mattice is not fully meeting the physical demands of his job as an
Automotive Technician. Specifically, he is not meeting Heavy Strength demands
above waist height. He also has limitations for upper limb coordination demands
involving his right arm… . These findings are consistent with Mr. Mattice[’s]
reported ongoing difficulties working full time as an Automotive Technician,
with reduced tolerances for: right arm reaching in combination with
lifting/handling in awkward spaces; 2 hand overhead work; low work requiring
him to lay on his right side while using his right hand; and strong right
gripping, loosening/tightening or hammering. Findings are also consistent with
his reported need to use compensatory strategies to perform his job, including:
left arm substitution (with reduced precision and speed); regular breaks to
rest his right arm; equipment to reduce carrying; and/or deferring to
apprentices … .

[88]        
It is noteworthy that Ms. Hunt’s analysis discusses “reduced
tolerances”, certain “limitations”, and the “need to use compensatory
strategies”, and although she states he is not suited to work as an automotive
technician, she indicates that his ability to continue to work will depend on
the amount of symptoms he is willing and able to tolerate and that “[t]he
feasibility of [work on a part time basis] will depend on the willingness of
his current employers or other employers to accommodate”. This seems to imply
that Mr. Mattice can work part-time, with some accommodation, which his
employer has permitted and testified he can continue.

[89]        
I generally found Ms. Hunt to be a credible witness who withstood
cross-examination. I find that her evidence is generally reliable and I accept
it.

E.             
Conclusion on Mr. Mattice’s Injuries

[90]        
Mr. Mattice suffered from soft tissue injuries to his neck and upper
back, headaches and bruising as a result of the accident, which have fully
resolved. The major, on-going complaints relate to Mr. Mattice’s right shoulder,
arm, elbow and hand, as well as the resulting effects on his mental state.

[91]        
Having considered all the evidence, I have no trouble finding that Mr.
Mattice suffers from ulnar neuropathy in his right elbow that was caused by a
soft tissue injury to his right elbow in the accident and that this, in turn,
causes “pins and needles”, or numbness or tingling, in his right hand.

[92]        
As noted, the most serious and contentious injury is the rotator cuff
injury, or the infraspinatus partial thickness tear with chronic myofascial
pain in the right trapezius and infraspinatus muscles.

[93]        
As Dr. Koo stated, the infraspinatus partial thickness tear was most
likely caused by the incident during the assessment at West Coast Kinesiology
on March 28, 2012. However, I am satisfied that legal causation is
established: the injury would not have occurred “but for” the motor vehicle accident.

[94]        
It is clear that where the defendant’s negligence is one of the causal
factors resulting in the plaintiff’s injury, “defendants whose acts were
necessary parts of the causal sequence will be fully liable for the injuries”: Hussack
v. School District No. 33 (Chilliwack), 2009 BCSC 852, aff’d 2011 BCCA 258;
Athey v. Leonati, [1996] 3 S.C.R. 458.

[95]        
This is not a “thin skull” or “crumbling skull” case where the
plaintiff’s infraspinatus was vulnerable to tearing before the accident;
rather, the accident caused the injuries which made it vulnerable to tearing. There
is clear evidence demonstrating that before the incident at West Coast
Kinesiology, Mr. Mattice was suffering from shoulder pain, restrictions in the
range of motion in his shoulder, and soft tissue injuries with myofascial pain
in his right infraspinatus, caused by the accident. In particular, this is
noted in Dr. Koo’s report of June 2011. The kinesiologist’s actions during the
assessment were directly related to the accident injury, and not independent, unrelated,
intervening events which broke the chain of causation between the defendant’s
negligence and Mr. Mattice’s rotator cuff tear injury. I am satisfied that “but
for” the shoulder injuries caused in the accident Mr. Mattice would not
have needed to attend an assessment of a kinesiologist. I am also satisfied
that “but for” the accident injuries, a kinesiologist or other medical
professional performing standard tests such as raising an arm by approximately
two inches would not have caused a tear in the infraspinatus. Therefore, the
defendant’s negligence is a necessary part of the causal sequence leading to
the tear.

[96]        
I accept that Mr. Mattice has had difficulty sleeping as a result of his
rotator cuff injury.

[97]        
While I accept that the accident and resulting injuries have affected
Mr. Mattice’s psychological state, there is insufficient medical and other
evidence before me to demonstrate depression. Though the extent was exaggerated
by the plaintiff and Mrs. Mattice, I accept that the injuries and difficulties
at work have made Mr. Mattice occasionally frustrated or moody, affected his
sex life and affected his general quality of life.

[98]        
On the medical evidence before me, it is clear that the injuries to Mr.
Mattice’s shoulder and elbow are likely permanent and may even deteriorate in
the future. Part of this exacerbation stems from Mr. Mattice’s continuing to
work as an auto mechanic. However, with his age, education and experience, it
is unlikely he will be able to re-train easily. On all the evidence, it is
likely more realistic for Mr. Mattice to continue to work part time with the
existing accommodations for a period, but not to the age of 67.

V.             
Damages

A.             
Non-Pecuniary Damages

[99]        
In Stapley v. Hejslet, 2006
BCCA 34, the Court of Appeal set out the principles for assessment of
non-pecuniary loss at paras. 45-46:

[45]      … I think it is
instructive to reiterate the underlying purpose of non-pecuniary damages. Much,
of course, has been said about this topic. However, given the not-infrequent
inclination by lawyers and judges to compare only injuries, the following passage
from Lindal v. Lindal, supra, at 637 is a helpful reminder:

Thus the amount of an
award for non-pecuniary damage should not depend alone upon the seriousness of
the injury but upon its ability to ameliorate the condition of the victim
considering his or her particular situation. It therefore will not follow
that in considering what part of the maximum should be awarded the gravity of
the injury alone will be determinative. An appreciation of the individual’s
loss is the key and the "need for solace will not necessarily correlate
with the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal
Injury Damages in Canada (1981), at p. 373). In dealing with an award
of this nature it will be impossible to develop a "tariff". An
award will vary in each case "to meet the specific circumstances of the
individual case" (Thornton, [1978] 2 S.C.R. 267, at p. 284
of S.C.R.).

[Emphasis added.]

[46]      The inexhaustive
list of common factors cited in Boyd that influence an award of
non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of
pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of
life;

I would add the following
factors, although they may arguably be subsumed in the above list:

(g) impairment of family,
marital and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism
(as a factor that should not, generally speaking, penalize the plaintiff: Giang
v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54).

[100]     In support
of an award of $50,000 the defendant cites: Thorp v. Gerow, 2008 BCSC
622 ($50,000); Niitamo v. ICBC, 2003 BCSC 608 ($51,000); Langley v.
Heppner, 2011 BCSC 179 ($55,000); and Antonishak v. Piebenga, 2012
BCSC 745 ($60,000).

[101]     The
defendant submits that if the plaintiff were still suffering from the lingering
effects of his injuries, non-pecuniary damages should be assessed in the
$50,000 range. Having reviewed the cases, it is evident that the injuries and
their effects are much more significant in Mr. Mattice’s case than in those
cited by the defendant. In Langley, for instance, the 23 year old
plaintiff’s injuries meant he could no longer undertake any activity that
involved significant overhead use of his arms due to a significant and on-going
shoulder injury. The pain associated with that injury (and others which had
substantially resolved) was not great, and it did not limit all his
recreational pursuits. The injuries and associated limitations did lead to some
loss of enjoyment of life and emotional distress, and did affect his
relationships, but “not to any significant extent”.

[102]     In the
instant case, an award in the range of $50,000 is too low as the plaintiff
continues to suffer from far more than “lingering effects”; rather, his
injuries will continue to plague him permanently, and may deteriorate further.

[103]     The
plaintiff submits that an award of $115,000 to $135,000 would be appropriate in
the circumstances. Counsel for the plaintiff cites Stapley as a similar
case, but I find it unhelpful. In that case the plaintiff was awarded $175,000
in non-pecuniary damages in unique circumstances: the consequences of the
injuries were more serious as the plaintiff had to move from the ranch where he
lived, worked, and planned to retire, which was described as a particularly
“unique loss” in the circumstances of that case. Further, the Court of Appeal
was substituting an unreasonable jury award with the highest possible one, in
circumstances they recognized would normally not warrant an award of
non-pecuniary damages above $100,000.

[104]     I have
reviewed the other cases cited by the plaintiff. They include: Westbroek v.
Bruzuela, 2012 BCSC 1955 ($90,000); Zawadzki v. Calimoso, 2011 BCSC
45 ($180,000); Fox v. Danis [2005] B.C.J. No. 137 ($100,000); Gosselin
v. Neal, 2010 BCSC 456 ($100,000); Slocombe v. Wowchuck, 2009 BCSC
967 ($125,000); Knauf v. Chao, 2009 BCCA 605 (award reduced to
$135,000); and Felix v. Hearne, 2011 BCSC 1236 ($200,000).

[105]     The
plaintiff’s age is a relevant factor in the analysis. In addition to
significant differences in injuries and effects of the injuries on the
plaintiffs which I will not set out in detail here, Fox, Gosselin,
Slocombe and Knauf involved plaintiffs who were much younger than
Mr. Mattice at the time of trial (34, 30, 29, and approximately 41,
respectively). For instance, in Slocombe, the plaintiff’s life changed
dramatically. Similar to Mr. Mattice, he could no longer participate in the
social and sporting activities he loved. However, at just 25 years old, he lost
the ability to do the work he loved (carpentry) at all and lost his financial
independence; he was in constant pain and could not sit for any length of time.
His mood and sleep were affected. Similarly, Felix involved a plaintiff
whose personal and vocational life was devastated, who lost her ability to be
self-reliant and who suffered from a pervasive emotional disorder (PTSD and
depression).

[106]     In Westbroek,
the 38 year old plaintiff’s injuries and extent of limitations were similar and
permanent. The plaintiff was a very promising and skilled automotive technician
who could usually beat the book time. The plaintiff’s ability to earn personal
income as an automotive technician had been diminished, but he owned two shops and
could concentrate on other aspects of the business as an accommodation, which
was not his preferred role. He could no longer participate in various
recreational pursuits, including outdoor activities and music, he struggled to
do more than minimal housework, and he became moody and variable, which had an
impact on his relationship with his wife. As noted in Westbroek, despite
some similarities, Zawadzki involved a 44 year old plaintiff with
distinct and much more significant injuries and impacts than Mr. Mattice’s
case. The plaintiff was unable to return to his active lifestyle, his passion
(music) or his job even with lighter duties; significantly, he had had three
surgeries, and he developed marked changes in his personality and alcoholism.

[107]     Mr.
Mattice is 56 years old and his symptoms are unlikely to improve, and may even
deteriorate.

[108]     Mr.
Mattice obviously derived much pleasure from his work as an auto mechanic. He
loved his work, he excelled at it in both skill and speed, and, as he said, it
defines who he is. As a result of the injuries, he is no longer able to perform
his employment with the ease, speed and skill he previous had. As he testified,
and I accept, he no longer has the enjoyment and pride he used to feel at work,
and he now feels “moody” and “down” when he used to be “upbeat” and “active”. As
he said, “my job is who I am”. There is also a possibility that Mr. Mattice
will not be able to continue working in the near future; though, as I noted I am
of the view that, based on the evidence, he will be able to work longer given
his shortened work week and lighter task load. However, I accept Dr. Koo’s
evidence that there may be, over time, further deterioration in his rotator
cuff and ulnar nerve caused by irritation from work.

[109]     Mr.
Mattice was active in maintaining his home and yard and participating in
various recreational activities such as golfing, hiking, camping, fishing and
biking, before the accident. His ability to engage in these activities has been
hindered by the accident, though not to such a great extent as Mr. Mattice
expressed in his evidence. The injuries and limitations caused by the accident
have also affected Mr. Mattice’s sex life and relationship with his wife.

[110]     Considering
all of the above in light of the cases, plaintiff’s injuries and circumstances,
I am of the view that an award of $90,000 is appropriate in the circumstances
of this case.

B.             
Past Wage Loss

[111]     Mr.
Mattice claims for direct wage loss as a result of his reduction to a three-day
work week. Mr. Mattice should be compensated for the two days per week he
stopped working from early September 2013 to trial. I therefore award $6,000
for direct past wage loss.

[112]     Mr.
Mattice also claims for lost income from “side jobs” he could no longer take
due to fatigue and pain. The plaintiff stated he earned $8,600 to $12,000 per
year from side jobs, and claims $34,400 to $48,000 based on four years’ worth
of loss (accounting for the three months he could not work from the workplace
injury). I agree that Mr. Mattice should receive some compensation for his loss
of side jobs; however, in my view he exaggerated the income from that work,
considering the amount of time that would be taken by all the housework, yard
work, painting and other work he claims to have done. In my view, approximately
half of the amount claimed would be appropriate. I therefore award $20,000 for
lost income from side jobs.

[113]     Therefore,
the total damages for past wage loss is $26,000.

C.             
Loss of Earning Capacity

[114]    
There are two appropriate means of assessing damages for future loss of
earning capacity. The Court of Appeal set out the approach in Perren v.
Lalari, 2010 BCCA 140 at para. 32:

[32] A
plaintiff must always prove, as was noted by Donald J.A. in Steward,
by Bauman J. in Chang, and by Tysoe J.A. in Romanchych,
that there is a real and substantial possibility of a future event leading to
an income loss. If the plaintiff discharges that burden of proof, then
depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok.

[115]    
Here, the “earnings approach” is most appropriate as the loss is more
easily quantifiable. The Court of Appeal set out the suggested means of
calculation for this approach in Pallos v. Insurance Corp. of British
Columbia, [1995] B.C.J. No. 2 (C.A.) at para. 43:

…One method is to postulate a
minimum annual income loss for the plaintiff’s remaining years of work, to
multiply the annual projected loss times the number of year[s] remaining, and
to calculate a present value of this sum. Another is to award the plaintiff’s
entire annual income for one or more years.

[116]     Mr.
Mattice has no pension plan. Prior to the accident of 2009, he testified he was
intending to continue to work to at least the age of 70. The plaintiff claims
he would have earned $68,600 to $72,000 per year until this age from his income
from Austin Automotive and his side jobs.

[117]     In my
view, Mr. Mattice was unlikely to have worked at full time until age 70 had the
accident not occurred. Mr. Mattice has a history of low back pain, which he
stated did not limit his work; however, with age, this and other ailments were
likely to limit Mr. Mattice’s ability to work. I think it is reasonable to
assume he would have worked to age 67, and was likely to work less than full
time before then.

[118]     Mr.
Mattice testified that he believed (at the time of trial) he could only
continue to work for another six months to a year, likely only to his 57^th
birthday on May 7, 2014. As noted, there must be a “real and substantial
possibility” of a future event leading to an income loss. The evidence does not
establish that there is a real and substantial possibility that Mr. Mattice will
be unable to work past his 57^th birthday. I expect that Mr. Mattice
will be able to continue to work part-time for a period beyond his 57^th
birthday. As noted, Mr. Mattice has exaggerated the seriousness of his
injuries, and the medical evidence before me indicates that Mr. Mattice is
capable of working part-time with accommodations such as those already put in
place by his employer, and which his employer has testified he is willing to
continue. Dr. Koo stated that Mr. Mattice could not work full time at a
physically demanding job. Ms. Hunt seemed to indicate that if his employers can
accommodate him, he can work part-time. His employer has agreed to accommodate
him at three days per week. Mr. Mattice also gave evidence that he has more
energy and ability to help with housework since moving to part-time in
September.

[119]     There is a
real and substantial possibility that, while Mr. Mattice’s accident injuries do
not require him to stop working immediately, at some point before the age of
67, he will no longer be able to work part-time. As Dr. Koo noted, and I
accept, continuing to work is likely to eventually cause deterioration of Mr.
Mattice’s injuries. Mr. Mattice is likely to get to a point where he can no
longer keep up with even three days per week, especially given the physical
demands of the work that even working part-time will not eliminate.

[120]     If Mr.
Mattice feels he can no longer work part-time as an automobile mechanic, he is
expected to continue to support himself if he can. The evidence clearly
demonstrates that Mr. Mattice is capable of working at a less physically
demanding job. Given Mr. Mattice’s age, level of education, and physical
limitations, I expect that re-training is not practical and thus any job he
gets will likely be at significantly reduced pay. However it is important to
note that Mr. Mattice has not been rendered entirely incapable of working;
therefore, the award will be lower than it might be if Mr. Mattice could no longer
work at all.

[121]     Taking
into account these considerations, I am now required to “postulate a minimum
annual income loss for the plaintiff’s remaining years of work, to multiply the
annual projected loss times the number of year[s] remaining, and to calculate a
present value of this sum”: Pallos. While Mr. Mattice continues to work
three days per week, his annual loss is $24,000 from his job at Austin
Automotive and (based on my findings about the number of side jobs he was
taking) approximately $5,000 from loss of side jobs. While I accept that Mr.
Mattice is unlikely to be able to work right to the age of 67, this is offset
by the likelihood he would reduce his hours and take fewer side jobs as he got
older in any event and that he is capable of working at lower-paying jobs. Regardless,
I am meant to calculate his “minimum” annual loss. I find Mr. Mattice’s minimum
annual loss to be $29,000.

[122]     Using Mr. Carson’s
report (Exhibit 9), the net present value of this income is $258,419. Taking
into account any additional general negative and specific contingencies, I am
of the view that an award of $250,000 is appropriate.

D.             
Cost of Future Care

[123]     Costs that
are reasonable and medically necessary will be awarded as costs for future
care. As the Court of Appeal set out in Tsalamandris v. MacDonald, 2012
BCCA 239 at paras. 62-63:

[62]      The test for assessing future care costs is
well-settled: the test is whether the costs are reasonable and whether the
items are medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R. (2d)
33 at page 78; affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.):

3. The primary emphasis in
assessing damages for a serious injury is provision of adequate future care.
The award for future care is based on what is reasonably necessary to promote
the mental and physical health of the plaintiff.

[63]      McLachlin J., as she then was, then went on to
state what has become the frequently cited formulation of the “test” for future
care awards at page 84:

The test for determining the
appropriate award under the heading of cost of future care, it may be inferred,
is an objective one based on medical evidence.

These authorities establish (1) that there must be a medical
justification for claims for cost of future care; and (2) that the claims must
be reasonable.

[124]     The plaintiff
claims $15,000 to $20,000 for various therapies recommended by Dr. Koo in his
first and third reports. This amount is based on the $4,620 they submit Mr.
Mattice has paid for physiotherapy, kinesiology, and acupuncture, and mileage
for those treatments, over the past four years. The acupuncture was $100 for
two visits and the physiotherapy was $2,260. There is no evidence of the cost
of kinesiology, though the plaintiff submits it is similar to physiotherapy.

[125]     Dr. Koo’s
third report recommends a combination of physiotherapy, an active
rehabilitation program conducted by a kinesiologist, massage therapy, and
acupuncture. Dr. Koo notes that it is not clear which would be most beneficial
to Mr. Mattice, but he does not need all of them. I find that the cost of
a combination of two of these therapies is both reasonable and medically
justified.

[126]     The
defendant submits that the plaintiff has paid $2,360 for physiotherapy and
acupuncture over the past four years (not including mileage), and so the appropriate
award is $10,000.

[127]     I am left
with very little useful evidence upon which to make this award, other than the
evidence that some combination of these therapies is necessary. In my view, an
award of $11,000, representing approximately 10 years’ of kinesiology and
physiotherapy (assuming they are each $2,260 for four years), is appropriate
for these therapies. I add to that $1,000 for mileage. Therefore, the total
award for costs of future care is $12,000.

[128]     Dr. Koo
also recommended psychological counselling to treat his mild depression.
However, I have found insufficient evidence to demonstrate depression. In any
event, Dr. Koo recommended psychological counselling in his reports, but the
plaintiff did not follow that recommendation and I find he is unlikely to do so
this time.

E.             
Loss of Homemaking Capacity

[129]     The
defendants submit that no award for past or future loss of homemaking capacity
is appropriate as the plaintiff has not met the burden of proof.

[130]     Mr.
Mattice seeks $16,000 to $24,000 for the lost capacity to do yard work, by
calculating the annual value of this asset at $4,000 to $6,000. He also claims
$9,000 to $18,000 for past loss of housework, for an award of between $25,000
to $42,000 for past loss of homemaking capacity.

[131]     Mr.
Mattice seeks $50,000 to $125,000 for future loss of homemaking capacity, based
on the annual value of $4,000 to $6,000 for yard work and $3,000 to $4,500 for
housework, minus contingencies.

[132]     Mr. and
Mrs. Mattice both testified that prior to the accident they would split the
housework evenly. They both testified to having reduced his stepson’s rent in
exchange for his performance of heavier house and yard work, and about hiring
painters or housekeepers to help with the work. However, according to Dr. Koo’s
last report, Mr. Mattice is now contributing 30 to 40 percent of the household activities
without too much difficulty. It is unclear whether that relates to yard work
and housework or just housework.

[133]     Mr.
Mattice’s evidence is that he used to contribute 50%, and, as Dr. Koo notes, he
is now contributing 30 % to 40%. That means his ability to contribute has
reduced by 20% to 40%. I accept that Mr. Mattice can no longer do some of the
house and yard work that is more strenuous and involves movement similar to
those Ms. Hunt identifies as beyond Mr. Mattice’s capacity at work. I find that
an award of 30% of the amounts claimed by the plaintiff appropriately represents
the loss of value of the asset. Absent clearer evidence of the value of the
asset, I use the lower amounts put forward by the plaintiff. I therefore award
$7,500 for past loss of homemaking, and $15,000 for future loss of homemaking,
for a total of $22,500.

F.             
Special Damages

[134]     The
plaintiff seeks $4,205.50 based on the costs of physiotherapy ($2,260),
acupuncture ($100), the MRI ($900) and mileage ($945.50 out of the total $1,002
claimed) to accident-related appointments. From the total mileage noted in the
plaintiff’s out of pocket expenses, only $56.50 is taken out for mileage for
medical visits related to issues other than the motor vehicle accident, which I
do not view as an accurate estimate given Mr. Mattice’s workplace injury and
other medical issues that arise in the usual course.

[135]     The defendants
submit that $3,260.00 is appropriate. I would add $500 for mileage for these
appointments. The total for special damages is $3,760.

VI.           
Conclusion

[136]     Liability
has been admitted.

[137]     The
plaintiff is awarded the following amounts in damages:

a)   
Non-pecuniary damages:                          $90,000

b)   
Past loss of earnings:                               $26,000

c)    
Loss of future earning capacity:               $250,000

d)   
Costs of future care:                                 $12,000

e)   
Loss of homemaking capacity:                  $22,500

f)     
Special damages: $3,760

Total:                                                    $404,260

[138]    
If the parties cannot reach agreement on costs, they are at liberty to
apply.

“Jenkins J.”