IN THE SUPREME COURT OF BRITISH
COLUMBIA
Citation: | Tisalona v. Easton, |
| 2015 BCSC 565 |
Date: 20150414
Docket: M124854
Registry:
New Westminster
Between:
Liza Tisalona
Plaintiff
And
Cynthia Easton and
Straight Line Transports Ltd.
Defendants
– and –
Docket: M156143
Registry:
New Westminster
Between:
Liza Tisalona
Plaintiff
And
Sukpreet Grewal
and Amrtipaul Grewal
Defendants
Before:
The Honourable Madam Justice Wedge
Reasons for Judgment
Counsel for the Plaintiff: | P. Formby |
Counsel for the Defendants: | S.B. Stewart |
Place and Date of Trial: | New Westminster, B.C. |
Place and Date of Judgment: | New Westminster, B.C. |
A. Ms. Tisalonas
Background and Employment History
D. Ms. Tisalonas
Medical Condition following the January 2008 Accident
E. Ms. Tisalonas
Return to Work
F. Ms. Tisalonas
Ongoing Medical Condition
G. The
2011 Accident and Follow-Up Medical Reports
H. Ms. Tisalonas
Evidence Concerning Her Current Condition
2. Loss
of Income Earning Capacity
3. Loss
of Housekeeping Capacity
I.
INTRODUCTION
[1]
This action arises from a motor vehicle accident that occurred on
January 21, 2008 (the January 2008 accident), in which Liza Tisalona suffered
soft tissue injuries. It was joined for purposes of trial with another action
relating to a motor vehicle accident of November 3, 2011 (the November 2011
accident), involving Ms. Tisalona (Tisalona v. Grewal, New
Westminster Registry No. 156143). In both accidents, the car Ms. Tisalona
was driving was struck from the rear by another vehicle.
[2]
Ms. Tisalona has claimed damages for the losses she alleges she
suffered as a result of her injuries in both accidents. Specifically, her
claims include damages for non-pecuniary loss, past loss of income, loss of
income earning capacity, loss of housekeeping capacity, cost of future care and
special damages.
[3]
The defendants in both actions have admitted liability for the
accidents.
[4]
It is acknowledged that Ms. Tisalona suffered soft tissue injuries
in the January 2008 accident, and is entitled to some award of damages for
those injuries. However, the defendants in the action arising from the November
2011 accident say Ms. Tisalona did not sustain any injuries arising from
that accident. The evidence at trial supports the position of the defendants
concerning the latter accident.
[5]
There are essentially two issues. The first is the severity of the
injuries Ms. Tisalona suffered in the January 2008 accident and the extent
to which the accident impaired her from working and may continue to impair her
future working opportunities.
[6]
The second issue is causation. Ms. Tisalona was involved in a prior
motor vehicle accident on October 31, 2007 (the October 2007 accident). The
defendants in both actions say the injuries she sustained in that accident, and
the extent to which that accident contributed to Ms. Tisalonas claims of
impairment arising from the January 2008 accident, must be taken into account
in assessing her overall entitlement to damages.
II.
FACTS
A.
Ms. Tisalonas Background and Employment History
[7]
Ms. Tisalona is currently 47 years of age. She was born and raised
in the Philippines, where she received her primary, secondary and
post-secondary education. Ms. Tisalona obtained a Bachelor of Science in
Agriculture before emigrating to Canada in 2000. She now lives in Surrey,
British Columbia, with her spouse, Dennis Tisalona. They have three children
aged 24, 18 and 13.
[8]
After arriving in Canada, Ms. Tisalona enrolled in, and
successfully completed, a two-year program at the British Columbia Institute of
Technology (BCIT) in Renewable Resources (Forestry Option).
[9]
In 2006, Ms. Tisalona began work with the Canadian Grain Commission
(the CGC) as an entry level grain inspector.
[10]
In about mid-2007, Ms. Tisalona left the CGC to take a fixed term
contract position as Meat Hygiene Inspector for the Canadian Food Inspection
Agency (CFIA). Once again, this was an entry level position. Her work
consisted mainly of inspecting slaughtered turkeys. Her 2007 combined income
from the CGC and CFIA jobs was $45,000.
[11]
The CFIA contract stipulated a term of employment ending in April 2008,
but the contract was subsequently extended to August 2008. The contract was not
renewed past that time.
[12]
Ms. Tisalona did not succeed in finding new work until May 2009,
when she was hired back by the CFIA on a temporary contract performing plant
inspections. After a month or two in that job, she returned to the CGC, having
again obtained an entry level grain inspector position.
[13]
In 2010, while still working as a grain inspector, Ms. Tisalona
also worked from time to time as a lab technician in the CGC, which is a higher
level position. In 2011, she successfully applied for a permanent position with
the CGC as a lab technician earning $54,000 per annum. Ms. Tisalona has
continued to work in that position since 2011.
B.
The Prior Injury
[14]
In the October 2007 accident, Ms. Tisalona drove over a dead deer
that had been struck by another vehicle and was lying in the middle of the road.
She was considered at fault for this accident and no claim was made as a result
of injuries she sustained. The radiator in her car was badly damaged and the
vehicle was not driveable. Ms. Tisalona could not recall the cost of
repairing the damage, but her spouse, Mr. Tisalona, thought it may have
been in the range of $8,000.
[15]
In the October 2007 accident, Ms. Tisalona suffered injuries to her
left shoulder and upper back. She took some time off work but could not recall
precisely how long; she estimated that it was a few days. Her family physician,
Dr. Andrew Major, indicated in his March 27, 2009 medical report that Ms. Tisalona
saw one of his associate colleagues in his clinic shortly after the accident. According
to the clinical notes, Ms. Tisalona described pain in her left shoulder,
trapezius and middle upper back. She was prescribed an anti-inflammatory and
advised to rest, apply ice and stretch.
[16]
During a follow up visit to the clinic on November 22, 2007, Ms. Tisalona
continued to complain of left shoulder pain. She was back at work, but her job
as a meat inspector with the CFIA required reaching above her head and
performing some heavy lifting. She received a note from Dr. Major advising
her employer that she should avoid reaching above her head and lifting heavy
objects.
[17]
Ms. Tisalona saw a physiotherapist, Jennifer Wong, on three
occasions December
3, 5 and 21. Ms. Wongs clinical notes reflect that Ms. Tisalona was
experiencing pain in her left shoulder, trapezius and bicep. She also had
restricted movement in her neck.
[18]
When Ms. Tisalona saw Dr. Major again on December 13, 2007,
she reported that she was still experiencing left shoulder pain and decreased
movement. She was back at work, but with some accommodation. She reported to
him that she was seeing the physiotherapist but was finding that the exercises
were making her too sore.
[19]
At the last physiotherapist appointment on December 21, Ms. Wong
noted that Ms. Tisalonas condition had not changed since December 5. Ms. Tisalona
had a further appointment booked for January 7, 2008, but did not attend.
[20]
Ms. Tisalona acknowledged in cross-examination that in the October
2007 accident she sustained injury to her left shoulder which caused difficulty
in raising her left arm above shoulder height, tingling in her left hand and
soreness of her neck restricting rotation of her head to the left.
[21]
On or about January 10, 2008, Ms. Tisalona again went off work with
a viral infection she likely contracted from her meat inspection work. She was
still on a course of antibiotics, and had not yet returned to work as of
January 21, 2008.
C.
The January 2008 Accident
[22]
At about mid-morning on January 21, 2008, Ms. Tisalona was driving
her 2007 Toyota Yaris along 108th Avenue in Surrey. At the intersection of
108th Avenue and 144th Street, she braked as she observed a transport truck beginning
to straddle both lanes ahead of her. As she did so, she was struck by a minivan
driven by Ms. Easton which was travelling immediately behind her. Ms. Tisalona
heard a screeching sound, and felt the impact of something striking her from
behind. She experienced what she described as an empty feeling in the back of
her head as it struck the headrest.
[23]
Ms. Tisalona recalls that the driver of the van helped her climb
from her car. Someone called 911, and the police and an ambulance arrived soon
thereafter. She was dizzy and shaken. Her sunglasses and hat, which were on the
dashboard of her car, had been thrown to the floor on impact. The ambulance
paramedics examined her, and then advised her that either they could take her
to the hospital to be examined further or she could go home and make her own
arrangements with her doctor. Ms. Tisalona chose the latter.
[24]
Ms. Tisalona observed damage to the back of her car. The bumper was
on the road; the police were clearing pieces of it off the road. There was
approximately $8,000 in damage to the Yaris, but it was drivable. She drove
herself home and reported the accident to ICBC. She then went to the clinic of
her family doctor because she was beginning to feel stiff and sore. Her doctor,
Dr. Major, was not in so she was seen by a locum physician.
D.
Ms. Tisalonas Medical Condition following the January 2008
Accident
[25]
Ms. Tisalona was scheduled to return to work at the CFIA on January
22, 2008, but as a result of the accident she did not return for some months.
In his medical report dated March 27, 2009, Dr. Major described Ms. Tisalonas
condition and course of treatment in the first weeks after the accident as
follows:
The [locum] physicians assessment pointed to neck tender to
palpation as well as the right lower back but with good range of motion. The
diagnosis was offered of soft tissue injury/strain, and anti-inflammatory,
Naproxen, and a muscle relaxant were prescribed along with the suggestion to
take three days off work.
When seen five days later, she reported stiffness increased,
left more than right side of the [neck], sore mid-back and right more than left
side of the low back. She had some recurrent numbness of the left fingers. My
examination revealed tight neck, decreased range of motion. Neurological
examination was grossly normal, though. I also learned that by the time of the
latest MVA she felt she had recovered about 90% from the previous MVA of
October 31, 2007. She was advised to continue with both Naproxen and muscle
relaxant and was sent for physiotherapy, advised to stay off work and to follow
up in 10 days.
When seen five days later she reported increased pain after
two sessions of physiotherapy, felt sleepy after Naproxen. There was limited
movement of the neck and back. She was advised to withhold physio and to try
massage, to use a hot tub. I prescribed a different anti-inflammatory, Celebrex,
and asked her to take muscle relaxants at night if tolerated.
When seen as requested two weeks
later, she was taking Celebrex daily and although there was some improvement,
she also reported some pain over the right anterior chest and some headaches
which were somewhat worse towards the end of the day. She was pursuing some
help with home duties. My assessment pointed to the limited movement of the
neck in all directions. I then agreed to support her staying off work and in
treatment she was to continue with all the above.
[26]
Ms. Tisalona testified that she suffered pain in her neck, left
shoulder and left upper back and mid-back. The pain interrupted her sleep such
that she felt exhausted much of the time. She said she could not perform any
household tasks requiring any kind of lifting and could not prepare meals
requiring the chopping of vegetables or other ingredients. As a result, her
husband and one of her sons took over most household duties.
[27]
Dr. Major continued to see Ms. Tisalona on an almost weekly
basis for the next few weeks. His report reflects that by the time of the visit
on February 18, 2008, Ms. Tisalona was experiencing an array of new
symptoms such as pain in her legs, decreased rotation to the right of the neck,
and diminished power of pinch in the right hand. Dr. Major provided Ms. Tisalona
with a note for help at home.
[28]
Dr. Major noted that when he saw Ms. Tisalona on March 20,
2008, she complained of dizziness and an inability to oppose both thumbs and
raise her arms, yet neurological examination was normal. On her March 27 visit,
she reported possible loss of peripheral vision and very little change
otherwise in her condition. Dr. Major found, upon examination, that her
peripheral vision was equal to his own. In his report, Dr. Major noted
that at that point, he entertained the possibility of some degree of
psychological trauma. He explained to her the concept of no pain no gain. X-rays
did not reveal any abnormality that would explain the symptoms as described by Ms. Tisalona.
[29]
Dr. Major also requested a consultation with a physiatrist, Dr. Jaworski.
Ms. Tisalona visited Dr. Jaworski in April 2008. According to Dr. Majors
report, Dr. Jaworski basically concluded there was presence of
non-specific musculoskeletal aches and pains with psychosocial stress. Dr. Jaworski
arranged for basic blood tests, the results of which indicated an absence of
active inflammation in the body.
[30]
Dr. Major then suggested that Ms. Tisalona return to work on
light duties, but that option was not available in her workplace.
[31]
By mid-May, Ms. Tisalona was reporting mild improvement, and Dr. Major
suggested she gradually return to work. However, there were as of yet no
suitable jobs to which she could return. On her visit to Dr. Major on June
26, 2008, Ms. Tisalona reported that she had been offered work by her
employer setting insect traps at various locations in the Abbotsford area three
days per week. She had worked two days setting insect traps, but had difficulty
raising her arms above her head to set the traps and found the lengthy drive
from location to location produced too much discomfort to continue.
[32]
In July 2008, Ms. Tisalona travelled to Australia to act as a
chaperone for young adults during the World Youth symposium sponsored by the
Roman Catholic Church. A friend who travelled with Ms. Tisalona testified
that she participated in all of the activities but did not take the longer
pilgrimage walks.
[33]
Ms. Tisalonas contract position as an inspector with CFIA was due
to end at the beginning of April 2008, but was extended by her employer to
August 2008. When she was notified that the contract would not be extended
further, Ms. Tisalona filed a grievance through her union alleging that
the contract was terminated because the employer was not willing to accommodate
her. The grievance was denied on the basis that the position had, from the
outset, been one of a finite term, and there was no longer work for the
position. The grievance was not pursued further.
[34]
Ms. Tisalona testified that before her accident, she had been
invited to sit examinations in March 2008 to qualify her for permanent,
higher-level positions in the CFIA, which, were she successful, would permit
her to bid on jobs beyond the entry level jobs she currently occupied. It was
her evidence that she could not sit the exams because she was off work with her
injuries at that time, and was advised by her employer that she must be
actively at work to do so. It is not clear why she would not be permitted to
sit the exams so long as she was willing to do so. There was no evidence of any
rule or policy of the employer, or any correspondence from the employer to Ms. Tisalona
indicating that she must be actively at work in order to participate in the
exams.
[35]
Ms. Tisalona testified that, commencing in August 2008, she applied
for positions within the CFIA which she felt she was physically capable of performing
at that time. Her goal was to find a permanent position rather than a temporary
or contract position, and that was the focus of her job search. She was not the
successful applicant in any of the positions for which she applied until May
2009.
[36]
In his report, Dr. Major stated that as of August 20, 2008, he
advised Ms. Tisalona to try to accept some of the pain and to try to
accomplish her daily tasks anyway. He encouraged her to do regular exercises
and to attend physiotherapy to establish an exercise program for the weakened
muscles of her neck and mid-back.
[37]
With respect to the October 2007 accident, Dr. Major states:
According to the patient, she was
about 90% recovered from the October 31, 2007 accident at the time of the MVA
on January 21, 2008. The latter aggravated the entire situation to a large
extent, again affecting the left paracervical, parathoracic and paralumbar
structures more so than the right side.
[38]
Dr. Major concluded his report as follows:
In regards to her ability to work, it is my opinion that by
the fall of 2008 she would have been able to perform limited duties in terms of
physical work load and time constraints, however it is my understanding that
such were not available to her. It is my opinion that her continued neck and upper
back problems likely affect her daily routine at home as well and quite likely
affect her leisure activities as well.
In regards to prognosis, as I so
far see her neck and upper back injuries as basically soft tissue ones, with
the above plans I believe that she will eventually recover well enough to
sustain gainful employment and happiness in her private life.
[39]
Ms. Tisalona testified that as of August 2008, she was still unable
to perform many of the household tasks; her husband and son completed all of the
physically demanding housework. She testified further that her leisure
activities were significantly restricted. Before January 2008, she did a great
deal of gardening including pruning and limbing trees. She went on regular
hiking and camping trips with her family and was the leader of the group,
setting up camp and pitching the tents. Following the January 2008 accident,
she no longer gardened, and while she did some hiking and camping with the
family, she no longer did any of the strenuous work of setting up camp.
[40]
Ms. Tisalona acknowledged that she reported to Dr. Jaworski in
April 2008 that the symptoms she was experiencing at the time were linked to
injuries sustained in two motor vehicle accidents those of October 2007 and January 2008.
[41]
Dr. Major confirmed that in a Claim for Disability Insurance form
dated August 21, 2008, he noted that Ms. Tisalonas main symptoms were
pain of neck, back and headaches which first began on October 31, 2007. He
also noted that Ms. Tisalona advised him she could not perform her job
because of those symptoms as well as decreased concentration and weakness.
E.
Ms. Tisalonas Return to Work
[42]
In May 2009, Ms. Tisalona returned to work in a temporary position
with CFIA as a plant inspector. Within a month or two of that, she was once
again hired by the CGC as an Assistant Grain Inspector, earning $45,000 per
annum. The work included regular inspections at grain elevators in the Port of
Vancouver, wearing steel-toed boots and other protective clothing. Ms. Tisalona
testified that she found the work quite taxing physically, but she performed it
without accommodation. She also worked a considerable amount of overtime.
[43]
Within a month or two of her return to work at the CGC, Ms. Tisalona
applied for the position of lab technician with the CGC, a higher level
position (classified as an EG 3) which was permanent rather than temporary in
nature. In approximately February 2010, she sat a written examination and
completed the interview process for the position. She was awarded the position
in August 2011, but she began performing lab technician work on a temporary
part-time basis in mid-2010 while still working as an Assistant Grain Inspector,
and was paid at the EG 3 level for that temporary work. Ms. Tisalonas
annual salary as a lab technician is $54,000. She is paid at the high end of
the salary range for that position. She is also asked from time to time to take
on the position of acting supervisor in the lab, and earns a higher rate while
in the acting position.
[44]
Ms. Tisalonas supervisor since she has worked as a lab technician,
Russell Lawson, testified that lab technicians grind and weigh grain samples
and then run tests on them. The samples may weigh anywhere from 100 grams to 10
kilograms. Employees may be required to transfer grain samples of up to
approximately 25 kilograms, but they can break the samples down into much
smaller quantities or request assistance. He noted that lab technicians are
allowed to organize their work within their physical capabilities, and are free
to take stretch breaks and change position regularly.
[45]
Mr. Lawson testified that he was aware Ms. Tisalona had some
difficulty arising from a sore neck, shoulder and back, but said that she has
not asked for any accommodation at work in the lab. According to Mr. Lawson,
Ms. Tisalona performs equally well as the other lab technicians in his
group, and shares equally in the overtime hours with her co-workers.
[46]
Although there have been significant layoffs in the CGC across Canada,
there have been no layoffs in the Vancouver Lab. Two lab technicians retired in
the past year or so, but both were replaced.
F.
Ms. Tisalonas Ongoing Medical Condition
[47]
Although Dr. Major has continued to follow Ms. Tisalona as her
family physician, he did not file any further report concerning her medical
condition after the fall of 2008.
[48]
No evidence was advanced by Ms. Tisalona concerning her medical
condition in the ensuing three years following the January 2008 accident.
[49]
Ms. Tisalona testified that while she continued to be symptomatic
from the January 2008 accident, by May of 2009 she was back at work on a
full-time basis. She would have returned to work much earlier than that, had
she been the successful applicant for any of the several positions for which
she applied between September 2008 and May 2009. As noted earlier, the
positions for which Ms. Tisalona applied during that time did not have the
same physical demands as the position she held just prior to the January 2008
accident.
[50]
By 2011, Ms. Tisalona was not only working full-time as a lab technician,
but walking one hour per day and doing an additional one hour per day of
strengthening exercises. In her examination for discovery in mid-2011, Ms. Tisalona
stated that she was feeling much improved.
[51]
In August 2011, Ms. Tisalona was referred by her legal counsel to Dr. Cecil
Hershler, a specialist in physical medicine and rehabilitation. In October
2011, again at the behest of her legal counsel, Ms. Tisalona was seen by Dr. Rhonda
Shuckett, a specialist in internal medicine and rheumatology. Both physicians
issued reports on Ms. Tisalonas condition in 2001. She was seen again by
both physicians for follow-up in September 2014.
[52]
Ms. Tisalona told Dr. Hershler, in the course of his first
examination of her, that she was almost completely recovered from the October
2007 accident when she was injured in January 2008. She told Dr. Shuckett
during their first appointment that she had completely recovered at the time of
the January 2008 accident.
[53]
Dr. Hershler, in his August 24, 2011 opinion, noted the following
with respect to Ms. Tisalonas reporting of her recovery from the January
2008 accident:
By July 2009, she estimated her
recovery at about 75%. Although all of her symptoms were still present (headaches,
neck and back pain, numbness in left arm), they had become more tolerable and
less severe.
[54]
According to Dr. Hershler, when he saw Ms. Tisalona in August
2011, she estimated her recovery at about 80%. He noted that Ms. Tisalona said
she continued to be the primary homemaker but that her husband and children had
taken over the heavier household tasks.
[55]
Dr. Hershler described his finding, upon physical examination of Ms. Tisalona,
a pronounced muscle knot in the trapezius muscle just behind the left shoulder
joint so
pronounced that it was actually visible to the eye. He said the following
concerning the significance of that finding:
The history and physical findings are consistent with soft
tissue (muscular) injuries. The primary muscle affected is the left trapezius,
where an abnormal muscle knot is both palpable and observable. This injury to
the trapezius muscle is the cause of her headaches and the sensation of
numbness in the left arm. The attachment of the left trapezius muscle to the
left side of the neck is the reason for the tenderness that reaches from the
neck up to the base of the skull.
There is also myofacial pain and
secondary weakness in the lower back.
[56]
Dr. Hershler opined that while it was possible that the left
trapezius was injured in the 2007 accident, historically Ms. Tisalona
seems to have recovered by the time the accident occurred on January 21, 2008.
[57]
With respect to prognosis, Dr. Hershler expressed the opinion that
given the almost four years that had passed since the accident, it was likely
that she would remain symptomatic, at least in the shoulder region, for another
year if not longer.
[58]
Dr. Shuckett first saw Ms. Tisalona on October 5, 2011. In her
report of October 17, 2011, Dr. Shuckett noted that Ms. Tisalona
described her symptoms immediately following the January 2008 accident as
headaches, shoulder and back pain along with trouble sleeping.
[59]
As at the time of the examination, Ms. Tisalona complained of pain
in the upper back and the posterior shoulder blades, and a bit of low back
pain every day on each side of the low back into the seat areas. Upon
examination, Dr. Shuckett found the following:
She had palpable muscle firmness,
like muscle spasm, over the paraspinal muscles of the neck on the left, over
the left trapezius and over the paraspinal muscles adjacent to the upper and
mid thoracic spines, all on the left side.
[60]
Dr. Shuckett also noted that the neck range of motion was okay to
the right with some left sided tightness in the neck.
[61]
By way of general impression, Dr. Shuckett concluded that Ms. Tisalona
had sustained injury to the left side of her neck and that she suffered from
myofascial pain syndrome of the left neck and shoulder girdle region with
painful trigger points and palpable muscle spasm. Dr. Shuckett also
diagnosed some upper and mid-back pain as well as some minor mechanical low
back pain.
[62]
Finally, Dr. Shuckett opined that while Ms. Tisalona reported
full recovery from the October 2007 accident, it may very well have played a
predisposing role in the January 2008 accident since the neck and shoulder
injuries from the 2007 accident were on the same side as those sustained in the
January 2008 accident.
[63]
With respect to prognosis, Dr. Shuckett opined that since
three-and-a-half years had passed since the January 2008 accident, yet Ms. Tisalona
remained symptomatic, [t]here is a good chance that she will continue to [be]
symptomatic from [the January 2008] MVA.
G.
The 2011 Accident and Follow-Up Medical Reports
[64]
The second accident occurred on November 3, 2011. Ms. Tisalona was
driving a 2010 Ford Escape when she was struck from the rear by the defendants
vehicle. The impact was minor and damage to her vehicle was negligible.
[65]
When Ms. Tisalona saw Dr. Hershler again on April 10, 2014,
she reported that the accident was minor and that she did not experience much
of a jolt. She took a couple of days off work and then resumed all of her
regular job duties. She told Dr. Hershler that this accident did not
alter her pre-existing symptoms in any measurable fashion.
[66]
In his follow-up report of April 17, 2014, Dr. Hershler noted some
improvements over the findings he documented in his earlier report in 2011,
including restoration of full range of motion of the head and neck. However,
there was still present an enlarged muscle knot in the left trapezius. Dr. Hershler
concluded that, based on Ms. Tisalonas complaint of persistent pain in
the region of the left shoulder some six years after the January 2008 accident,
it was unlikely Ms. Tisalona would ever fully recover from her current
symptoms.
[67]
Dr. Shuckett saw Ms. Tisalona again on July 23, 2014. In her
supplementary report of September 23, 2014, she noted:
[Ms. Tisalona] was in a MVA
in November of 2011. She said that she was still very symptomatic from the 2008
MVA and had not improved. She felt that most of what she feels is from the 2008
MVA and that it never went away.
[68]
Dr. Shuckett also noted that Ms. Tisalona was unsure of what
symptoms derived from [the November 2011] MVA, and felt that it really
basically did not cause new injuries but made her symptoms from the prior
subject MVA of 2008 more significant.
[69]
Ms. Tisalona told Dr. Shuckett in the course of the July 2014
examination that she experienced persistent dull headaches, pain and tenderness
of the neck, discomfort in her upper back and left shoulder area, and numbness
in the left fingers. She said she also experienced sleep disruption several
times during the night while shifting her position in bed to alleviate the
discomfort.
[70]
Ms. Tisalona also reported to Dr. Shuckett that she did as
much housework as she could, but could not vacuum regularly and needed help
carrying the laundry up and down the stairs. She said she still cooked, but had
family members help her, particularly if she was preparing an elaborate dinner.
She customarily took a bit of a rest when she arrived home from work.
[71]
Dr. Shuckett detected muscle spasm in the trapezii, the left side
more pronounced than the right. Flexion and rotation of the neck was within
normal range. She diagnosed myofascial pain of the neck and shoulder girdle
areas, and some mechanical lower back pain.
[72]
In terms of prognosis, Dr. Shuckett noted that Ms. Tisalona
was working in a skilled full-time job, and would be able to continue doing so.
However, considering the length of time since the January 2008 accident, Dr. Shuckett
opined that it is probable that [Ms. Tisalona] is going to [be] left with
her current symptoms in the longer term future.
[73]
Ms. Tisalona attended an independent medical examination by Dr. O.
Sovio, at the behest of the defendants, on June 13, 2013. Dr. Sovio
concluded that at the time of his examination, Ms. Tisalonas ongoing
complaints of pain were subjective. In his view, based on his physical
examination, Ms. Tisalona was not suffering from any physical disability,
nor was it his view that she was limited in her ability to function from a
physical standpoint.
H.
Ms. Tisalonas Evidence Concerning Her Current Condition
[74]
At trial, Ms. Tisalona testified that currently she does not experience
lower back pain and has headaches only occasionally. Her main complaint is
soreness in her neck and left shoulder, which is a daily occurrence. She also
experiences numbness and tingling in her left arm and hand, although that seems
to occur primarily at night while lying in bed.
[75]
Ms. Tisalona testified that overall, the first two years after the
January 2008 accident were difficult as she was quite sore all over. Since
then, she feels her condition has improved significantly. She is able to work in
her current position as a lab technician without difficulty because the
physical component of the job is not taxing and she can stretch and change
position frequently.
[76]
Nevertheless, said Ms. Tisalona, she still feels the need to rest
after work and to call upon her family to do the heavier housework. With
respect to leisure activities, she continues to hike and camp with her family
but still cannot carry a heavy backpack or set up camp as she did before the
January 2008 accident. Nor, she testified, can she do the heavy gardening work
she did previously.
III.
DISCUSSION
A.
Causation
[77]
As observed by the Court in Athey v. Leonati, [1996] 3
S.C.R. 458 at para. 32, it is a basic principle of tort law that the
plaintiff must be placed in the position he or she would have been in absent
the defendants negligence. However, the plaintiff is not to be placed in a
position better than his or her original one (emphasis in original). It
is, accordingly, necessary to determine the original position of the plaintiff.
The Court went on to reiterate that principle at para. 35:
The so-called crumbling skull
rule simply recognizes that the pre-existing condition was inherent in the
plaintiffs original position.
The defendant is liable for the injuries
caused, even if they are extreme, but need not compensate the plaintiff for any
debilitating effects of the pre-existing condition which the plaintiff would
have experienced anyway.
[78]
Ms. Tisalonas position is that she had almost fully recovered from
the October 2007 accident at the time of the January 2008 accident. However,
the independent evidence, canvassed earlier in these Reasons, does not entirely
bear out that assertion. Both Ms. Tisalonas own reporting in 2008 and the
clinical records of the physiotherapist from whom she sought treatment in late
2007 suggest that the left shoulder and trapezius pain suffered in the October
2007 accident was quite significant and continued to play a role in Ms. Tisalonas
condition following the January 2008 accident.
[79]
Having said that, Ms. Tisalona returned to work after only a few
days following the October 2007 accident, albeit with some modifications to her
work for a time. Further, I am satisfied that the January 2008 accident both
caused a more significant injury to the left shoulder/trapezius injury and
caused the additional injuries that Ms. Tisalona suffered to her neck and
upper back. On the evidence, I conclude that the October 2007 accident
continued to be responsible for 20% of Ms. Tisalonas medical condition at
the time of the January 2008 accident. Put another way, Ms. Tisalonas
original position at the time of the January 2008 accident was 80% of her
full health.
B.
Damages
1.
Non-Pecuniary Loss
[80]
The purpose of an award for non-pecuniary loss is to compensate the
plaintiff for pain, suffering, disability and loss of enjoyment of life.
[81]
Non-pecuniary loss must be assessed for both losses suffered by the
plaintiff to the date of trial and for those she will suffer in the future. The
award of a sum of money is to permit the plaintiff to substitute other
amenities of life for those she has lost.
[82]
In Stapley v. Hejslet, 2006 BCCA 34, Kirkpatrick J.A., writing
for a majority of the Court, quoted at para. 45 Lindal v. Lindal,
[1981] 2 S.C.R. 629 at 637, with respect to the underlying rationale for
non-pecuniary damages and the considerations that should guide a court in
awarding such damages. In Lindal, the Court emphasized that the amount
of an award for non-pecuniary damages should not depend only on the seriousness
of the injury. Rather, the amount of the award must depend as well on its
ability to ameliorate the condition of the injured plaintiff considering his or
her particular situation. For that reason, the gravity of the injury will not,
of itself, be determinative of the amount of the award. An appreciation of the
loss in the context of the specific plaintiffs circumstances is the key, and
the need for solace will not necessarily correlate with the seriousness of the
injury,
[83]
The factors to be considered in determining the amount of an award for
non-pecuniary loss, as outlined in Stapley, are now well established.
They include the following:
·
the age of the plaintiff;
·
the nature of the injury;
·
the severity and duration of pain;
·
level of disability;
·
emotional suffering;
·
impairment of family, marital and social relationships;
·
impairment of physical and mental abilities;
·
the plaintiffs stoicism (a factor that should not penalize the
plaintiff).
C.
Positions of the Parties
[84]
Counsel for Ms. Tisalona, in written argument, submitted the
following:
Ms. Tisalonas entire life
has been irreparably and negatively impacted as a result of the subject
accident. Her resulting neck and upper back pain, sleep and fatigue problems
will most likely be with her for the rest of her life adversely affecting
almost every aspect of her life. As she ages and loses muscle tone, strength
and stamina, her injuries will likely become more troublesome, and could make
her more prone to other health complications.
[85]
Ms. Tisalona seeks $110,000 for non-pecuniary losses. Her counsel
cited, in support of the magnitude of this claim, only the Stapley decision,
which he submitted was factually similar to this case.
[86]
Counsel for the defendants submit that for the injuries suffered by Ms. Tisalona,
the case law supports non-pecuniary damages in the range of $20,000 to $40,000:
Lidher v. Toews, 2009 BCSC 1055; Eng v. Titov, 2012 BCSC 300; Anderson
v. Dwyer, 2010 BCSC 526.
[87]
I am satisfied that the acute phase of Mr. Tisalonas injuries
lasted approximately six months from January 21, 2008. Dr. Major cleared Ms. Tisalona
to return to work as a meat inspector in August 2008 with some accommodation
for her ongoing shoulder pain. At that time, Ms. Tisalona did not have a
job to which she could return, as her term contract with CFIA had expired and
there was no ongoing work in the position. In May 2009, Ms. Tisalona
returned to full-time work inspecting plants for CFIA, and in June 2009
obtained work with CGC in her previous job inspecting grain. I accept that she
continued to suffer some ongoing discomfort until 2011 which prevented her from
fully returning to her leisure activities of hiking, camping and gardening, and
that she relied somewhat on her family to assist with housework.
[88]
By 2011, however, Ms. Tisalona was, by her own reports, much
improved; she was not only working full-time as a lab technician for CGC, but also
exercising two hours per day. I am satisfied, based on Ms. Tisalonas
evidence and her reports to physicians, that the November 2011 accident had no
effect on her medical condition as it existed at the time.
[89]
Dr. Hershler is the only medical professional to detect the
palpable knot in Ms. Tisalonas left trapezius, and that detection came in
August 2011, some three-and-a-half years after the January 2008 accident. Dr. Shuckett,
who also saw Ms. Tisalona for the first time in 2011, diagnosed some left
trapezius spasm, but did not report findings similar to that of Dr. Hershler.
Dr. Major, Ms. Tisalonas attending physician, did not make any such
findings in the months following the January 2008 accident.
[90]
It is telling, in my view, that Ms. Tisalona did not lead any
medical evidence about her ongoing condition from Dr. Major, who continues
to treat Ms. Tisalona as her family physician. Dr. Majors report,
and his evidence at trial, covered only the period between January and August
2008. Dr. Majors opinion, contained in his March 2009 report, was that Ms. Tisalona
had made significant recovery by August 2008 and should make a full recovery
from her injuries.
[91]
On the basis of Ms. Tisalonas own evidence at trial, I accept that
she continues to suffer occasional neck and shoulder pain when, in her own
words, she overdoes it at work or in her other activities. I accept, as well,
that those occasional pain symptoms will be ongoing.
[92]
Taking into account the evidence of Ms. Tisalona as well as that of
the medical experts, and having considered the authorities, I conclude that the
appropriate award for non-pecuniary damages is $32,000. That award of damages
takes into account Ms. Tisalonas prior injuries suffered in the October
2007 accident and my finding that she was not fully recovered from that
accident by January 2008.
1.
Past Income Loss
[93]
Ms. Tisalona claims $62,500 (gross) for past income loss.
[94]
The defendants submit that, at most, Ms. Tisalona is entitled to
the equivalent of her monthly salary from the time of the January 2008 accident
until her contract with the CFIA expired in August 2008 (which, by my
calculations, is approximately $20,000 (gross)).
[95]
In Gilbert v. Bottle, 2011 BCSC 1389, Dickson J. said the
following with respect to proof of past loss of income:
[223] The plaintiff is entitled to compensation for loss
of the value of work he or she would have performed but could not perform
because of accident-related injuries. Depending on the circumstances, evidence
of that value may take many forms. For example, in some cases actual earnings
that the plaintiff would have received, but did not, may evidence the value of
his or her lost earning capacity. … The key point is that compensation for
past loss of earning capacity is to be based on what the plaintiff would have,
not could have, earned but the injury that was sustained
[224] The burden of proof of
actual past events is a balance of probabilities. Where the plaintiffs claim
for past loss of earning capacity depends on proof of past hypothetical events,
however, a different standard will apply. Once liability and causation have
been established on a balance of probabilities, past hypothetical events that
were a real and substantial possibility must be considered and taken into
account. Such events are to be given weight according to the relative
likelihood that they would have occurred
[96]
As of January 2008, Ms. Tisalona was earning $45,000 per year in
her meat inspection job with CFIA. According to Ms. Tisalonas tax
returns, her actual earnings for 2008 were $7,553. However, this amount
includes both sick leave pay and vacation pay. Following the January 2008 accident,
Ms. Tisalona drew on both of those sources of income and exhausted both
her sick leave and vacation pay banks. Based on her counsels calculations,
which I accept, the value of those benefits was $4,625. Accordingly, Ms. Tisalonas
actual total earnings in 2008 were $2,928.
[97]
Ms. Tisalona argues that had she been permitted to sit the
examinations in March 2008 to qualify her for permanent, higher-level positions
in CFIA, she may well have obtained such a position. I have difficulty with
that submission. There was no evidence of any communication between Ms. Tisalona
and CFIA concerning the matter, nor was there any evidence of a policy of CFIA
barring employees from sitting exams while not actively at work. More
importantly, there was no evidence of available positions within CFIA for which
Ms. Tisalona was qualified, or for which she would have been qualified had
she passed the exams for permanent, higher-level positions and for which she
could have applied at the time
[98]
As noted earlier, Dr. Major gave Ms. Tisalona clearance in the
fall of 2008 to return to work in a job that did not require the physical
workload of a meat inspector. It is not disputed that Ms. Tisalona did
apply for numerous jobs that would have been within her physical capacity at
the time in other
words, jobs that would not have required work that would aggravate her injuries
but she was not
successful in obtaining such a position until May 2009.
[99]
Ms. Tisalona earned $777 per week (gross), or approximately $3,100
per month. She was off work for approximately 15.5 months. Ms. Tisalonas
loss over that period, taking into account her actual earnings up to January
21, 2008, is $47,000 (gross). However, the role of the October 2007 accident
must be taken into account with respect to this loss. By the time of the
January 2008 accident, Ms. Tisalona had recovered 80% of her full health. Accordingly,
Ms. Tisalona is entitled to 80% of $47,000, or $37,600. I will leave it to
counsel to calculate the net loss taking into account the required deductions.
2.
Loss of Income Earning Capacity
[100]
In Perren v. Lalari, 2010 BCCA 140, the Court of Appeal
reiterated the burden carried by the plaintiff concerning loss of future income
earning capacity. At para. 32, the Court said the following:
A plaintiff must always
prove, as was noted by Donald J.A. in Steward, by Bauman J. [as he then
was] 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… [Emphasis in original.]
[101] As the
authorities establish, an appropriate award under this head of damage must be
based on the medical evidence.
[102] Ms. Tisalona
has been employed on a full-time basis since May 2009. She has been since 2011,
and continues to be, an EG 3 equivalent with the CGC, occupying a permanent
full-time position as a lab technician. Ms. Tisalona acknowledged that
obtaining such a position within the CGC had always been her employment
objective. She led no evidence to suggest that her accident-related injuries
have interfered with her ability to perform all aspects of her lab technician
job or resulted in absences from work. She has continued to earn a higher
salary, year after year, since her return to work almost six years ago.
[103] Ms. Tisalona
has never received any complaints from her supervisors while working for the
CGC since 2009. In fact, she has been told by one of her supervisors that she
is an asset to the organization. Mr. Lawson, her direct supervisor,
testified that Ms. Tisalona has neither asked for nor required any
accommodation as a result of her injuries, that she performs as well as her
co-workers in the lab, and that she shares equally in all overtime work. Mr. Lawson
also testified that although there has been significant downsizing of the
employment complement within the CGC in other locations, there have been no
layoffs within Ms. Tisalonas area of work in Vancouver. Mr. Lawson
has been supervisor for at least eight years, during which the CGC has always
maintained a full complement of lab technicians. There was no evidence to
suggest that even if Ms. Tisalona was laid off, similar positions would
not be available to her either in other departments of the CGC or in private
industry.
[104] In any
event, the medical evidence supports the fact that Ms. Tisalona is not
disabled from other occupations for which she is qualified. Ms. Tisalona
did not undergo any kind of functional capacity evaluation which might
establish whether certain occupations are now foreclosed to her.
[105] In short, Ms. Tisalona
has not established a real and substantial possibility of a future event
leading to an income loss.
3.
Loss of Housekeeping Capacity
[106] Ms. Tisalona
claims past and future loss of housekeeping capacity in the amount of
approximately $33,400.
[107] For past
loss, Ms. Tisalona claims $100 per month for the past seven years, or
$8,400. For future loss, she claims $100 per month for the next 28 years until
she reaches the age of 75, or $33,600, the present value of which is
approximately $25,000.
[108] The
defendants say that no award is appropriate.
[109] As
authorities such as McTavish v. MacGillivray, 2000 BCCA 164, establish,
an award for loss of homemaking capacity is not intended to be based on a
precise mathematical calculation. Rather, the reasonableness of a particular
amount claimed can be assessed be comparing it to a rough estimate of the cost
of replacement services.
[110] The
evidence concerning impairment to Ms. Tisalonas homemaking capacity as a
result of the January 2008 accident was vague and the replacement value of the
services provided by her family was, as a result, difficult to evaluate. I am
satisfied on a balance of probabilities that she required some assistance until
May 2009, and is entitled to a modest award of $8,000, taking into account the
role played by the October 2007 accident in her condition.
4.
Cost of Future Care
[111] Neither
the medical evidence nor Ms. Tisalonas evidence establishes, on a balance
of probabilities, a claim for cost of future care.
5.
Special Damages
[112] The
original claim for special damages included $1,680 with respect to the Sun Life
Financial subrogated claim for treatments Ms. Tisalona received at the Vancouver
Health Centre and $2,839.18 in out-of-pocket expenses, for a total of $4,519.18
in special damages.
[113] In
argument, counsel for Ms. Tisalona advised that a separate $800 claim for
treatments at the Vancouver Healing Centre was in error, as was a $431.20 claim
concerning weight room costs. In the result, total out-of-pocket expenses
claimed are in the amount of $1,607.98.
[114] Ms. Tisalona
is entitled to a total award for special damages of $3,287.98.
6.
Failure to Mitigate
[115] The
defendants argued that Ms. Tisalona failed to follow Dr. Majors
advice concerning rehabilitation therapy in the months following the accident
and that, as such, she failed to properly mitigate her loss. Having reviewed
all of the medical evidence, I have concluded that the defendants have not
established a failure to mitigate. Accordingly, there will be no reduction in
the overall award of damages.
IV.
SUMMARY OF CONCLUSIONS
[116] By way of
summary, Ms. Tisalona is entitled to the following award of damages:
1)
Non-pecuniary loss: $32,000;
2)
Past wage loss: $37,600 (before income tax deductions);
3)
Loss of housekeeping capacity: $8,000;
4)
Special damages: $3,287.98.
[117] Unless
there are costs issues of which I am not aware, Ms. Tisalona is entitled
to her costs.
The Honourable Madam Justice C.A. Wedge