IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Thompson v. Choi, |
| 2015 BCSC 1283 |
Date: 20150724
Docket: M131196
Registry:
New Westminster
Between:
Daniel Thompson
Plaintiff
And
Siu Choi and
Assoc. of Neighbourhood Houses
Defendants
Before:
The Honourable Mr. Justice N. Brown
Reasons for Judgment
Counsel for the Plaintiff: | P.C.M. Formby |
Counsel for the Defendants: | R.F. Shirreff |
Places and Dates of Trial: | New Westminster July 21 – 25, 2014 Chilliwack, B.C. February 6, 2015 |
Place and Date of Judgment: | New Westminster, B.C. July 24, 2015 |
Table of Contents
1 Initial
period after the Accident
2 Return to
work experience in April 2009
3 Layoff from
Alpha-Duron June 4, 2009
.1 Mr. C.
Barones testimony regarding layoff
4 Discussion
of reasons for layoff from Alpha-Duron
Search
for other employment & Treatment
1 Fall out
after layoff from Alpha-Duron in June 2009
2 Finding
union and non-union employment
3 Effects of
2008 recession and Olympics
4 Witness
Mr. P. Saxon, Lower Mainland Sheet Metal
5 Mr. J.
McIntyre, Westside Projects
6 Metro Wall
Systems and Mid-City Roofing and Metal
7 Western
Roofing Master Roofers, December 31, 2012
2 MRIs of
April 4, 2009 and January 10, 2011
Discussion
and Assessment of Damages
Findings
on nature and extent of injuries
2 Award for
non-pecuniary damages
2 Functional
Capacity Assessment of Mr. Shew April 16, 2013
3 Recap of
medical evidence on earning capacity
4 Parties
positions loss of earning capacity
5 Accommodations
made at Western Roofing
6 Discussion
and findings on past earning capacity
Loss
of future earning capacity
4 Conclusion
loss of future earning capacity
Nature of CAse
[1]
The plaintiff is a 44-year-old journeyman sheet-metal worker. At the
time of the November 10, 2008 accident that occasioned the plaintiffs claim
for injuries, he lived in the Lower Mainland of British Columbia. He now lives
in Kamloops. He is married, and has two teenaged children from a former
marriage.
1
The Accident
[2]
On November 10, 2008, the plaintiff was driving a 1996 Toyota Corolla
and wearing his seatbelt. His wife was a passenger in the vehicle. As he drove within
the speed limit eastbound on 49th Avenue in Vancouver, he approached
the intersection at Tyne Street where the light was green. He proceeded into
the intersection. At the same time, the defendant drove a shuttle bus into the
intersection against a red light. The plaintiff tried to avoid the collision by
jamming his right foot on the brake. He also extended his left arm and pushed
it hard against the horn. The left front of the Toyota struck the left rear
wheel of the shuttle bus as it travelled through the intersection (the
Accident). The impact against the shuttle buss rear wheel lifted the Toyota
into the air and altered its path. The forces generated were sufficient to
deform the drivers side front quarter panel, the door frame, and the hood. The
1996 Corolla was written off.
[3]
The physical injuries alleged involve the neck, mid back, upper back,
shoulders, arms, right hip, right leg, knee and ankle. These proved troublesome
for months, but only the neck, shoulders, and right knee proved to be lasting. His
wife sustained relatively minor injuries from the collision.
[4]
Claimed effects of the injury include chronic shoulder pain; headaches;
sleeplessness and fatigue; frustration, stress and anxiety.
[5]
Compensable losses alleged include: loss of income; loss of opportunity
to earn up to trial; loss of future earning capacity; loss of homemaking
capacity; cost of care and special damages.
witnesses
[6]
Apart from the medical experts, the plaintiff called these witnesses:
§
Josh Stoesz, a co-worker and supervisor at the plaintiffs current
employer, Western Roofing Master Roofers Ltd. (Western Roofing);
§
Colin Rasmussen, Western Roofings owner and general manager.
Both witnesses testified about accommodations Western Roofing has made for the
plaintiffs physical limitations; and
§
Philip Saxon, retired owner of Lower Mainland Sheet Metal Ltd.,
where the plaintiff was indentured for his apprenticeship. He testified about
the plaintiffs exceptional skills in layout and fabrication of sheet metal and
the meticulous workmanship he had developed in the installation of flashings.
He also testified about a visit from the plaintiff in the spring of 2010, looking
for light sheet-metal work.
[7]
The defendant called one lay witness, Craig Barone, his supervisor at
the company the plaintiff returned to work at in the spring of 2009,
Alpha-Duron Roofing Ltd. (Alpha-Duron).
Overview
[8]
Taking the birds-eye view of the case, as we shall see, the plaintiff
did not fully recover from all his injuries. The defendant concedes that point to
some extent. What he disputes is the nature and extent of the plaintiffs
residual symptoms and deficits. The plaintiff for his part, points to his
pre-accident work history as a sheet-metal worker; to his return to work within
about five months after the Accident, before he felt ready to do so; his continued
efforts to mitigate his losses through physiotherapy and in his search for
employment; to the negative effects of his limitations on him and his family.
He points as well to medical opinion and a functional capacity assessment that
he contends confirm the injuries he claims; and finally, to the accommodations
his current employer and supervisor have made for his physical limitations.
[9]
The defendant points to the plaintiffs statements to his family
physician that he recovered to about 85 to 90% of his pre-accident status; to
the fact that he has worked in his trade full time since January 2013. The
defendant also contends the plaintiff was laid off from Alpha-Duron in June
2009 for reasons unrelated to his injuries and that most of the lost income he
claims flowed from factors unrelated to the Accident such as the effects of the
2008 economic recession and the post-2010 Olympics slump. He relies on the
medical legal opinion of an orthopaedic surgeon that negatives a medical legal
basis for the plaintiffs limitations. Finally, the defendant contends the
evidence does not point to employment accommodations as extensive as those he
claims and that the defendants earnings are roughly equivalent, anyway, to
what he would have earned without the Accident.
[10]
The evidence variously runs somewhat disjointedly in both directions on the
issues the parties debated. There is no reason, though, to doubt the plaintiff suffered
a major loss of income after the Accident. Some common trade tasks that were not
at all problematic before the Accident became very difficult for him. The
plaintiffs current supervisor and employer are aware of certain of the
plaintiffs physical limitations and have accommodated them. Further, there is
no question the plaintiff is particularly skillful at some essential sheet-metal
tasks, particularly in the laying out, measurement, and fabrication of sheet
metal before its application. Some sheet-metal applications are intricate and
require a keen eye and more precise execution, and not all sheet-metal workers
are equally able on those types of applications.
[11]
The most contentious issues are the measure of damages for pain and
suffering and for past and future loss of earning capacity. The plaintiff seeks
damages roughly ten times greater than the figures the defendant proposes.
1
Initial period after the Accident
[12]
Dr. J. Dubec, the plaintiffs family physician, referred him to
Surrey Sports and Rehabilitation Physiotherapists Corporation (Surrey Sports
and Rehab) for treatment after the Accident. It focussed on the lower part of
his neck, his shoulders, and on his left arm and hand. Swelling in his right
elbow, right knee and ankle also received attention. The physiotherapist gave
him exercises to perform at home, with a particular focus on the stretching of his
arms and hands.
[13]
Problems with sleep proved to be intractable for a considerable time. The
plaintiffs pain worsened at night, dependent on what he had done during the
day. This amplified after he returned to work at Alpha-Duron in April 2009, and
reflected the nature of the work he had done that day. He continued to take
Tylenol 3 and Naproxen. Dr. Dubec recommended that the plaintiff stop
taking Movacox, an anti-inflammatory medication he had been taking for a
pre-existing condition, to be explained later, because he was concerned taking
two anti-inflammatory medications increased his risk for liver damage. The
plaintiff stopped taking that medication, but still takes Tylenol 3, and
occasionally Naproxen.
[14]
The plaintiff remained off work on disability for five to six months. He
has to repay his disability plan $8,972.83, on conclusion of this case. In
April 2009, he returned to work for Alpha-Duron. Alpha and Duron are separate,
but commonly owned and related companies. The plaintiff worked for both at
different times, but it was to Alpha-Duron primarily that he returned in 2009.
[15]
Before the Accident, the plaintiff had a small sheet-metal business on
the side. He earned $4,341 from it in 2008. When the Accident happened in
November 2008, he had contracts he had measured up and was prepared to do, but could
not and had to pass the work onto his brother and a friend to complete.
[16]
The plaintiff still felt poorly when he returned to work for Alpha-Duron
in April 2009. He could not lift his left arm to the side at all, in the aftermath
of the Accident. Eventually, he could lift it roughly to between 45-degrees and
90-degrees, but he could not put his left hand on his head. Problems raising
his arm to the side continued until he started physiotherapy. Following
additional physiotherapy in 2010, He gained further mobility but not strength,
and pain with use continued.
[17]
The plaintiff described tingling and numbness in his left arm that
extended into his thumb. He did not notice these symptoms occurring until 2012,
after he resumed sheet-metal work. Assuming certain positions or carrying-out
certain kinds of work brings these sensations on right away. The medical
evidence did not settle the cause of these sensations, but they are transient
and not debilitating. The pain in the left arm and hand that often ensues is.
[18]
The plaintiff testified he continues to find standing and sitting problematic.
He cannot fully assume an upright position, has to lean back somewhat,
otherwise he experiences pain and tingling especially in his left arm. He has
to sit back that way at the dinner table, as well. Otherwise, he experiences
tingling into his left hand and arm which then turns into pain.
[19]
The plaintiff continued to experience pain in his right hip, right knee,
and right ankle for quite a long time. But of those three, only the right
knee still bothers him. The right ankle pain went away by about five months
post-accident.
[20]
The plaintiff granted that he had pre-accident left knee problems that
required physiotherapy sponsored by the Workers Compensation Board (WCB). These
mostly resolved and did not interfere with his work before the Accident. His
right knee, however, continues to cause problems when he kneels, squats, and
hikes up hills, with pain ensuing within about 45 minutes. He also feels
discomfort in his left knee, but it does not become noticeable until he has
hiked for about two hours. He has given up the more vigorous hiking he used to
enjoy. He has gained twenty pounds. He feels exhausted in the morning when he
wakes up. He blames his weight gain mostly on the lack of sleep, on being less
active and on eating more than previously.
[21]
He has had to call on his brothers and friends to help him with some physically
demanding homemaking responsibilities. In December 2008, a month of heavy snow,
he tried to clear some snow with a very small shovel but lasted only five
minutes or so before he had to give up. He called his brother and a friend to
clear the driveway for him so that they could get in and out of the house.
[22]
The plaintiff found his union disability plan covered less than the
combination of his income from employment and his side business. Family
finances were further strained by the fact that three weeks before the motor
vehicle accident, his wife had taken on a cleaning job. As she also sustained some
injury from the Accident she had to take time off from work, which cost her job.
She eventually found another job providing daycare for his brothers children
and is currently employed full time in Kamloops, where the plaintiff and his
family eventually moved to.
[23]
The children were affected as well. The plaintiff and his former spouse shared
parenting time. This had to be adjusted. He could not pay child support for a considerable
period.
2
Return to work experience in April
2009
[24]
By January 2009, the plaintiffs left leg, hip, and right arm had
improved; except for occasional numbness and tingling. He felt these symptoms
fairly minor compared to the pain and numbness on his left side. By February
2009, he felt his right shoulder was essentially recovered; but his left arm
remained symptomatic, not an issue for him if he was not working in construction.
By February 11, 2011, his right shoulder had essentially recovered, although it
felt sore on the right side at times. As we shall see, however, after the
plaintiff resumed sheet-metal work, the locus of pain eventually shifted more
to his (dominant) right side.
[25]
As mentioned earlier, the plaintiff testified he did not feel ready to
return to work in February and thought that he needed more physiotherapy. ICBC
evidently refused to cover the cost of further treatment under Part 7 and he
could not afford the cost. As the plaintiff saw it, he was left with no choice.
On February 27, 2009, he started on a graduated return to work program with
Alpha-Duron, working 3½ days a week and six hour days, performing light work.
This gradually increased to full time hours by May 2009, his main complaints
then still focused on his left side: he could not raise his arm out from his left
side and reaching over his head caused pain.
[26]
By May 2009, the plaintiff had increased his work days at Alpha-Duron to
3½ days, and on 8-hour days. The last project he worked on for Alpha-Duron was
located on the roof level of the Sheraton Hotel in downtown Vancouver. Alpha-Duron
was well aware of the plaintiffs physical limitations and at first assigned a
young helper to help him.
[27]
The plaintiff was assigned to cladding in sheet metal on three-sided,
concrete concave parapets that had been built on the roof top floor where there
was going to be a swimming pool. His work required him to drill specialized
fasteners through the sheet metal into the concrete. To do so, he had to assume
positions that caused discomfort, e.g. crouching or lying on his back and
looking upwards to hammer-drill fasteners through the sheet metal into the
concrete parapets that were being clad. He explained how he would have to hold
the sheet metal up with one arm and use the hammer-drill, which weighed 15 – 20
lbs with his other hand. He had to reach out and up with his other arm to apply
and fasten the sheet metal. He found the specialized type of fastener used, an S-type
awkward to install; this, combined with his physical limitations, slowed the
project dramatically. He had to take frequent breaks whenever he did work above
his head. Normally, his daily production should have reached between 180 to 200
feet. He acknowledged he could not come anywhere near that. He recalled his
supervisor, Mr. Barone, mentioned a business slowdown and that if he could
not increase his production, he would be laid off. Without a helper, he was not
able to increase production above 60 and 80 feet: the longest stretch he
applied at the Sheraton was 110 feet in what was a comparatively easy stretch
that did not require him to assume awkward positions.
[28]
He testified he had to take frequent breaks from overhead works and had
to start and stop all day. In the last two to three weeks the plaintiff worked
for Alpha-Duron, he had to work without a helper, which made the work even more
difficult. He testified that his supervisor, Mr. Barone, refused his request
for the helper to come back.
3
Layoff from Alpha-Duron June 4, 2009
[29]
The parties stand poles apart on the question of whether it was the
plaintiffs low production levels or his padding of his time sheets that led to
his layoff from Alpha-Duron in June 2009. We reach here an important junction
in the case because the answer affects assessment of the plaintiff loss of
earning capacity award to the date of trial.
[30]
The defendant challenges the plaintiffs testimony that Alpha-Duron laid
him off because he could not meet the companys production standards. The
plaintiff argues that is the reason for his layoff and that blame for it
ultimately rest at the feet of the defendant for the injuries the plaintiff
sustained. After his layoff, the plaintiff could not find another position in
his trade for over a year. He did not find any job until July 2010, when he
found a minimum wage position at Washworld Car Wash (Washworld), where he
remained until April 2011. The plaintiff attributes his failure to find
employment in his trade to the fact he could not perform heavy-duty sheet-metal
worker tasks; thus eliminating most job opportunities in the field.
[31]
After his dismissal from Alpha-Duron in June 2009, he had to rely on Employment
Insurance (EI), until December 2009. He became despondent over his
circumstances, incurred debt he could not repay, and decided bankruptcy was his
only option; one he took up in the fall of 2009.
[32]
Countering the plaintiffs theory, the defendant relied on the testimony
of Mr. Barone, the plaintiffs foreman at Alpha-Duron. In essence, Mr. Barone
testified he fired the plaintiff because in the last week of May 2009, when Mr. Barone
was on holiday, the plaintiff carded hours worked allegedly contradicted by a security
log kept at the entrance to track goings and comings to the work site.
[33]
Regrettably, this issue requires a considerable digression and a focus
on some details that are rather removed from the main issues in this case.
However, the parties devoted a fair amount of time to it, the determination has
consequences, and a finding has to be made.
.1
Mr. C. Barones testimony
regarding layoff
[34]
Mr. Craig Barone had worked for Alpha-Duron for 25 years; of those
years, he had been a sheet-metal journeyman and acting foreman at the company
for 23 years. He recalled the plaintiff first started to work as a sheet-metal
worker for the company in April 2008. The company was busy at the time and good
sheet-metal workers were hard to come by.
[35]
His testimony was at times confusing and somewhat inconsistent.
[36]
Mr. Barone recalled the plaintiff telling him he had been involved
in a motor vehicle accident. At the time, he had eight to 10 jobs on the go,
with as many workers working on two projects. He recalled the plaintiff started
working one day a week, then gradually increased to two, three, and eventually to
four days a week. He accommodated the plaintiff by trying to make sure an
apprentice was available to assist him. He did not recall any light-duty work
being available.
[37]
Mr. Barone was not on site much until June 2009. He did not
directly supervise the plaintiff, though he had a few opportunities to watch
him at work. He testified that by the time he was working four days a week, most
of the time he was satisfied with his production. It was not stated where the
plaintiff was working or what he was doing at those times.
[38]
He recalled that over a roughly 3½-month period he told the plaintiff a
couple of times to pick up the pace. Overall, however, he had been okay with
his production. He mentioned to the plaintiff when not made clear, that in June
2009 there might be layoffs. The plaintiff was let go June 4, 2009. He explained
to the Court that in the fall of 2008, 80,000 construction jobs had been lost;
and that in the spring of 2009, the companys employees knew that this could also
come about for them. On the other hand, he qualitied this by stressing the
importance of keeping quality guys employed through downturns, if you want to
hang on to them. Mr. Barone stated on cross-examination, however, that he
was not planning on laying-off the plaintiff.
[39]
Mr. Barone was away the last week of May and the first two days of June.
He was off on the Wednesday, which means he had returned on the Thursday. He
stated he went to the site where the plaintiff was working and noticed he had installed
only 60 to 80 feet of flashing for a whole week. He stated on cross-examination
that if the plaintiff had applied 100 feet daily, he would not have looked at
the plaintiffs timecards. As it was, however, concerned, he stated he asked
for the plaintiffs timecards, then stopped at security, reviewed their sign-in
and sign-out records and compared the two documents. He recalled a time card
showing in at 6:30 a.m. and out at 3:00 p.m., yet with the security log showing
in at 7:00 a.m. and out at 2:10 p.m.
[40]
He stated compensation starts when the worker is on the job site with
tools ready to work and does not include travel time. He estimated it would
take an employee up to 10 minutes to get through the building and security, not
the up to 30 minutes the plaintiff stated. He further testified that the
company paid for parking and that the plaintiff did not have to park offsite
and pay for it. Evidently, at some point, on when the evidence was not clear,
the plaintiff had a discussion about the subject of when compensable hours
started, whether it was from when the worker was on site at the ready, or from
when they had parked, and so on. The plaintiff had his own views on the matter.
[41]
But to the point on what led to the plaintiffs layoff: in essence, Mr. Barone
stated he was concerned the plaintiff had not been on site when he had reported
he was. Mr. Barone did not copy the relevant security log books for the
court to examine; his testimony was based on what he recalled from his having
looked at them, which at this point would be about five years before he
testified.
[42]
As for the helper, Mr. Barone could not recall details about what
happened to the one he had assigned to assist the plaintiff due to his physical
limitations.
* * *
Market factors and employment opportunities in 2009
[43]
Mr. Barone was also asked at about market conditions for the sheet-metal
business about that time and in the next couple of years. He testified another
six months passed before he hired someone to replace the plaintiff and no one
else was hired during the summer. He stated that he had enough work on the go to
keep me busy. In the fall of 2009, the company was no longer receiving calls
for Olympics work and in the last two months of 2009, just before the Olympics,
business ground to a halt. In 2010, he began to receive calls from sheet-metal
workers looking for work. He noted the re-roof business was slow after the
Olympics ended; Alpha-Durons business was practically all on the re-roofing
side and more companies were bidding into their speciality area, putting a
squeeze on.
.2
The Plaintiffs position
[44]
The plaintiff testified that Mr. Barone never confronted him with
any information regarding discrepancies when he first came and left the job
site; and it was only when he saw him on June 4, the day he was laid off, that he
said anything about it which was that he was being let go for his poor
production. The plaintiff also submitted the following arguments:
§
Mr. Barones assertion the plaintiffs impairment and
disability had nothing to do with the layoff is not credible, considering all
of his evidence, including: what had fuelled his concern in the first place was
the lack of progress on the Sheraton parapet; that the plaintiff had completed in
a week what an experienced sheet-metal worker would complete in one-half of a day;
the fact that Mr. Barone was aware of the plaintiffs limitations and that
he had assigned an apprentice to assist him; and, the apprentice was not
available to the plaintiff in that last week of May.
§
With respect to parking arrangements, the plaintiff had
complained about the distance away from the site he had to park and the high
cost of parking. As mentioned, Mr. Barone testified Alpha-Duron would have
paid the plaintiff for his parking. None of the relevant pay stubs now before
the court notate any reimbursements by Alpha-Duron. The plaintiff further
argues that if Mr. Barone had in fact addressed the parking issue earlier,
as he stated, the plaintiff would have been paid and the issue of parking would
never have come up at all. But on this point, some discussion between the
plaintiff and Mr. Barone about start times and parking arrangements
previously had occurred and the plaintiff disagreed with the companys
position. The plaintiffs submission on this point does advance his position.
§
On another point, the plaintiff submits that given the way
Alpha-Duron methodically received and processed employee time cards, Mr. Barone
could not have had the plaintiffs time cards in hand on Monday, June 1, 2009, which
is when he said he spoke to the plaintiff. Moreover, the plaintiff submits he
could not have spoken to him on Tuesday, June 2, 2009, which is when he saw the
plaintiff leaving the site, evidently on his way to a physiotherapy
treatment scheduled for that day. On Wednesday, the next day, the plaintiff did
not work. Accordingly, the plaintiff submits Mr. Barone could not possibly
have had the time cards in hand until after June 4, 2009, and so after he had already
laid off the plaintiff.
§
Further, the plaintiff points out the Sheraton security log did
not account for the two hours the plaintiff spent in the companys Burnaby
workshop fabricating sheet-metal. If that time is added, the plaintiff worked a
total of 34 hours the last week of May, equivalent to full time.
§
Further, the plaintiff argues that a calculation based on the plaintiffs
slow progress on the parapet as notice by Mr. Barone and which had so
concerned him, shows if the number of work hours are prorated to reflect an
additional four hours of the alleged missing work. Mr. Barone would have
been seeing a maximum of 90 feet of flashing installed, also falling below
expectations.
[45]
In summary, the plaintiff submits it was production demands Alpha-Durons
higher management had imposed on Mr. Barone and the plaintiffs slow rate
of progress, not any timecard issues, that had prompted Mr. Barone to let
the plaintiff go. The plaintiff further submits a white elephant stands at
the heart of Mr. Barones evidence, one composed of the fact he was fully
aware of the plaintiffs limitations; that he had been accommodating them, then
left him to work without a helper on the roof for the week he was away. Accordingly,
the plaintiff submits, his poor production in the week Mr. Barone was away
should not have surprised him.
[46]
The defendant summarily rejoined that Mr. Barone had refreshed his
memory from the security log, had no reason to mislead the court and that,
irrespective of the plaintiffs explanations in court, as far as he was
concerned, the plaintiff had padded his time sheets, and thus gave sufficient
reason to lay him off irrespective of his physical limitations.
4
Discussion of reasons for layoff
from Alpha-Duron
[47]
Viewed head on it makes little practical difference whether Mr. Barone
made a rush to judgment based on faulty assumptions and has faulty recall four
years after the event, though these are plausible contentions. Mr. Barone
impresses as a decisive individual, who once decided on a matter, would not be
put off by the detailed points resurrected by the plaintiff. I agree some of Mr. Barones
evidence was confusing. I find on balance that the evidence in total does not
justify a finding the plaintiff fabricated time he spent on site. If looked
upon as if a wrongful dismissal action, the plaintiff would have a decent case
on the facts. But time cards right in hand or not, Mr. Barone knew the
plaintiff had limitations. Even so, he was minded he had had not recorded his
time accurately.
[48]
That said, and as I mentioned in passing at the trial, even if Mr. Barones
mind on the layoff were determined to be found wholly unrelated to the
plaintiffs physical limitations, standing alone, this would not negative an
award for past loss of earning capacity to the date of trial: the fact remains
that the plaintiff walked out the door of Alpha-Duron still burdened with
physical limitations that reduced his capacity to perform all the tasks
expected of a journeyman sheet-metal worker and they still hampered his ability
to find new employment in the field. These facts on this issue, however, do not
justify a calculated past loss of salaried income based on an assumption that
but for the Accident he would have continued to earn $31 an hour at Alpha-Duron
for the duration.
Search for other
employment & Treatment
1
Fall out after layoff from Alpha-Duron
in June 2009
[49]
After Alpha-Duron let the plaintiff go, he had no alternative position.
He remained on EI between July 2009 and December 2009. He looked for a suitable
job as sheet-metal worker, starting with union positions. He attended the EI
office every morning, without success. As one might expect, he found his EI
income did not support the family. He resorted to credit cards and his line of
credit. He incurred a $12,000 credit card debt, a further $30,000 on his line
of credit, and without the means to repay those amounts. Finances deteriorated
to the point that he could no longer pay rent for the home in which he and his
family had lived in for eight years. A friend offered rent-free use of part of
his home. After his EI ran out in December 2009, he had to rely on social
assistance until July 2010, when he found work at a car wash.
[50]
Already deprived of sleep from pain wakening him each night, anxious
over his finances, his inability to work in his trade, the loss of their Surrey
home, having no money for the children, and his eventual bankruptcy in October
2009, the plaintiffs pain-related sleeping problems worsened. He became
despondent and angry. To manage it, he attended counselling between November
2009 and August 2010.
[51]
The plaintiff also continued to request more physiotherapy to improve
his functioning. In December 10, 2009, ICBC agreed to fund a rehabilitation
program with Karp Rehabilitation. That started in January and ended in May of
2010. After he finished that program, he found that (after he first rotated his
right arm) he could now lift it to just under 100-degrees, whereas before he
could not lift it above 45-degrees. His neck and right shoulder however had
worsened and his left arm had not improved. Over-all during this period, the
plaintiff was reporting to physicians he felt he was clearly improving. Around
May 2010, Dr. Dubec, his family physician, noted vast improvement,
though it is notable he was not doing sheet-metal work at the time. In
following months of 2010, he reported to Dr. Dubec that while both
shoulders had improved, the right side continued to bother him.
[52]
(Initially, the left side was more problematic, although he did report
some right side complaints. It appears that when he resumed sheet-metal work
the right side became predominantly troublesome.)
2
Finding union and non-union
employment
[53]
Questioned about being hired through postings in the union hall, the
plaintiff testified that typically one would see 20 or 30 member names posted
on the board. When he went to the hall after May 2010, he would see roughly 150
names on the board, a reflection of post-Olympic job availability. The
plaintiff then sought work with non-union companies, one of them being the
company owned by Mr. P. Saxon, whose testimony I will turn to shortly. The
plaintiff said he had applied for work in Abbotsford, Aldergrove, and Hope but
as they all required heavy lifting etc. he could not pursue those jobs. He did
not keep a record of the applications he made, which the defendant submits he
should have done.
[54]
He continued to be restricted from heavy or overhead work. He found jobs
available, but also found quite a few guys looking. Citing his experience,
the plaintiff became minded to look for a foreman position, which would allow
him to run the job and avoid heavy lifting. He found companies hiring, but he
had no luck finding a foreman or other type of position that accommodated his
limitations. He considered travelling north, but thought it unlikely he could
find a light-work position; and he had no means to pay the cost of travelling
there to look anyway.
3
Effects of 2008 recession and
Olympics
[55]
Asked about the effect of the 2008 financial crisis on his job prospects
at Alpha-Duron, and afterwards, the plaintiff stated he knew layoffs would be
coming, but that, on the other hand, the Olympics kept the industry going and
more jobs became available, at least until the Olympics ended. The plaintiff
testified that if not for his limitations, he believed he could have found work
as a sheet-metal worker and that he could have returned to, and remained at
Alpha-Duron.
4
Witness Mr. P. Saxon, Lower
Mainland Sheet Metal
[56]
Mr. Philip Saxon, age 62, testified. He retired in August 2013 from
ownership of his company, Lower Mainland Sheet Metal. He first met the
plaintiff in January 2000. The plaintiff worked for him as part of his
apprenticeship for one year. He stated that in 2010 the plaintiff occasionally
came by to his workplace. He recalled in particular a visit in May 2010, when
the plaintiff asked him if he had any light work, such as flashings. The
plaintiff did not say why he was looking for light work, but Mr. Saxon saw
he looked uncomfortable and when the plaintiff left, he mentioned that he was
sore. Mr. Saxon explained that at one time, his shop had been a
diversified one, focused mostly on retrofitting condominiums. In 2008, however,
the company moved exclusively to industrial contracts. Therefore, when the
plaintiff asked, there was no such thing as light shop work. Mr. Saxon was
aware the plaintiff was talented in the area of layout and fabrication of
sections, and that his work was meticulous.
[57]
Returning now to the plaintiffs experience at Washworld, where he
started working September 2010 at $14 hourly, the plaintiff stated that when he
first started to work there, his neck and arms were very sore, but by the end
of nine months pain lessened gradually and became bearable.
5
Mr. J. McIntyre, Westside
Projects
[58]
Between April 2011 and August 2011, alerted by a friend of a another job
prospect, the plaintiff left Washworld and began work for a builder and
contractor, Mr. Jim McIntyre who owned a company called Westside Projects.
He decided to take a chance on the work, which involved: picking up garbage at
work sites, wheel-barrowing, digging ditches, and shovelling beach sand around
foundations. For limited periods, he did some jackhammer work. The work
aggravated his lower back, but he did not suffer a new injury. He remained for
about five months until he found a position as journeyman sheet-metal worker at
Metro Wall Systems Ltd. (Metro Wall Systems), which marked his first return to
his sheet-metal trade since the Accident.
6
Metro Wall Systems and Mid-City
Roofing and Metal
[59]
After leaving Westside Projects at the end of August 2011, the plaintiff
worked at Metro Wall Systems (Walls Division) until December 3, 2011. At this
point, his having completed the rehabilitation program at Karp Rehabilitation,
the plaintiff found he could tolerate more lifting. As for his duties at Metro
Wall Systems, the plaintiff performed a lot of layout and fabrication work;
also applied some flashing. Four apprentices did the heavy lifting (not just
for the plaintiff). The apprentices also lifted sheets into position for the
plaintiff to apply. Even with this help, the plaintiff felt pain in his
shoulders. The plaintiffs insurable earnings at Metro Wall Systems were
$15,184.
[60]
Metro Wall Systems Ltd. owned Mid-City Roofing & Sheet Metal (2008)
Ltd. (Mid-City) the plaintiffs next employer. It had a contract for work at
a fire station in Kamloops. An opportunity came about for the plaintiff to run
the sheet-metal department for Mid-City. This entailed a transfer to Kamloops
that the plaintiff accepted. Accordingly, after working three months at Metro
Wall Systems, the plaintiff transferred to Mid-City and to Kamloops. He
recalled working 50 hours a week at Mid-City. As foreman, he received a raise.
The work at Mid-City was one-half residential and one-half commercial. The
plaintiff did all of the sheet-metal work. He was not specifically
accommodated, but because he was foreman he could get whatever help he needed.
The plaintiffs insurable earnings at Mid-City between December 5, 2011 and
November 9, 2012 were $54,960, roughly $4,489 monthly, and $30 hourly.
7
Western Roofing Master Roofers,
December 31, 2012
[61]
The plaintiff started work at Western Roofing Masters Roofers Ltd.
(Western Roofing) on December 31, 2012, at a rate of $27 hourly. Western
Roofing is a large and well established company. He remained on probation for
six months. He seldom worked alone at first and when he did, mostly applied base
flashings. He travelled a lot in the first six months. He cannot recall doing
any overhead work then, although later on he did. Although there was a slowdown
in business in 2013, he was not laid off at that time.
[62]
He works as a team with Mr. Joshua Stoesz, who is also his
supervisor. The plaintiff concentrates more on measuring and fabrication and Mr. Stoesz
does most of the application work and heavier tasks. The plaintiff can measure
and layout ventilation projects faster; he has a certificate for that; Mr. Stoesz
does not. He sometimes uses hammer-drills and impact drills which give off a
slight vibration; but he is able to tolerate the hammer-drill more than he
could earlier.
[63]
He usually lets Mr. Stoesz know when his neck and shoulder are
sore. He experiences pain and stiffness, and occasional numbness and tingling
that precede pain and stiffness that starts in the neck. He tries to minimize
symptoms with a change of position, medications, and rest. Overhead work
remains particularly problematic.
[64]
On cross-examination, the defendant put to the plaintiff an excerpt from
p. 4 of Dr. Hershlers medical opinion dated April 23, 2013 legal
opinion. There he stated:
In January 2013, he started working for a different roofing
company and has continued working there full-time. In fact, he is now working
50 hours a week on average, doing all the tasks that he formerly did before the
accident. He lives with some level of pain and stiffness in the neck and
shoulders, and occasional paraesthesiae in the right arm.
On a daily basis, he takes two,
500 mg Naproxen tablets to help him deal with pain. On the days that he has to
do heavy lifting, he supplements a Naproxen with a Tylenol #3 tablet. He has no
problems with his low back or legs. On an average day, [the plaintiff]
rates the pain levels in his neck and shoulders as varying from a range of 2/10
to 5-6/10 (0/10 is no pain and 10/10 excruciating pain). The lowest level of
pain is apparent after a good night sleep and rest
[65]
At p. 5, he further stated:
[E]ven though he has returned
to working as a sheet metal journeyman, he takes more time off work [than] he
did before. He has regained his pre-accident productivity, but at the expense
of pain.
[66]
The plaintiff agreed he made these statements. He explained he continues
to experience pain and stiffness. Occasionally, numbness and tingling occurs,
though not at home, unless he is reaching for something. When numbness and
tingling occur, pain and stiffness follow. He tries to work around it. The
symptoms start with numbness and tingling, with pain then starting in the neck,
extended through the right shoulder, and then down into the right arm and hand.
If he continues with what he is doing, pain invariably follows. He has to
reposition his body or rest.
[67]
As noted earlier, the paraesthesiae and increased symptoms on the right
side became more prominent in 2011/2012, which is when he started sheet-metal
work again.
[68]
Looking forward, the plaintiff grants the strength in his arms and hands
has improved. The numbness and tingling, however, have worsened, are now
present daily, and at times get worse, depending on the project. The plaintiff
exampled sheet-metal work he performed at an auto dealer, roughly two months before
he testified. There, he had to assume awkward positions, such as looking up to
fasten clips. This produced sharp pain and a lot of numbness. He remained sore
the following week. In response, he intensified his stretching routine, and had
physiotherapy. His pain and stiffness have worsened enough now such that the
plaintiff finds he needs to take Naproxen twice a day.
[69]
Looking forward, he finds strength in his hands has improved but his
neck and shoulder symptoms are getting worse. His main concerns remain heavy
and overhead work, and he still requires the accommodation of being able to
work with a partner who can do the heavy lifting and relieve him from tasks
that are causing him problems.
Medical
opinions
[70]
The court heard from the following qualified experts:
Called by the plaintiff
1.
Dr. J.J. Dubec, the plaintiffs family physician;
2.
Dr. C. Hershler, a physiatrist, April 23, 2013;
3.
Dr. D.A. Cameron, a neurologist, April 16, 2014, by the
plaintiff;
4.
Mr. Dominic Shew, an occupational therapist, April 16, 2013;
and
5.
Mr. Robert Carson, an economist, February 24, 2014, April
25, 2014, July 22, 2014.
Called by the defendant
6.
Dr. J.P. Wade, a rheumatologist, June 7, 2012; and
7.
Dr. M.R. Boyle, an orthopaedic surgeon, March 1, 2014.
1
Dr. J.J. Dubec
[71]
Between November 11, 2008 and February 1, 2014, Dr. J.J. Dubec, the
plaintiffs family physician, saw the plaintiff over 60 times. He has been a
physician since 1995 and completed the family residency program between 2000
and 2002. He has been a faculty member in the Family Practice Division at UBC
since October 2013. He has considerable clinical experience in emergency
settings. He is published in several journals mostly in areas of acute or
organic medicine and has published anatomical artwork in several international
medical journals.
[72]
The plaintiff had been his patient since October 28, 2005. At p. 3
of his April 24, 2014 report, Dr. Dubec states that, [The plaintiffs]
general health prior to this accident was good. He was free of any physical
pain prior to the accident and did not previously seek medical attention for
any physical injury issues of which I was aware.
[73]
Dr. Dubecs medical diagnosis at p. 4 of his report was as
follows:
Cervical spine spondylosis at C
5/6 level. The patient has also suffered sprains/strains of his bilateral
trapezius/shoulders and right knee areas. These injuries involve micro-tearing
of the muscles, tendons, and/or ligaments collectively known as a soft tissue
injury and may also include a compressive type injury to the joints and joint
capsule of the spine, shoulder, and knee joints.
[74]
Symptoms and signs also noted at p. 4 of his report were as
follows:
The patient complained of soreness and aches focused on the
trapezius/shoulder and knee areas. In particular the right shoulder and right
knee areas. He also complained of sporadic shooting type pains from the
shoulder down into the hand and sometimes upward into the back and neck. Pain
would worsen with prolonged positioning of the shoulder (e.g. prolonged
abduction, reaching, or lifting.)
Upon initial examination, the patient exhibited a reduced
range of motion of his back, both shoulders, and right knee. There was
tenderness at his back, shoulders and right hip, thigh, and knee on palpitation.
Swelling of his right knee was not seen. On subsequent examinations in the months
to follow, there was ongoing pain reported by [the plaintiff] and ongoing
tenderness of the shoulder and right knee joints upon palpitation. [The
plaintiff] had also noted that he had difficulty sleeping. The shoulder and
knee function and range of motion slowly improved over subsequent visits, but
was subject to flare-ups.
Examination of [the plaintiffs]
neurological and vascular examination was largely normal with the exception of
cold and tingling neurologic symptoms involving flare ups of his right upper
extremity.
[75]
Under the heading disability, Dr. Dubec noted that the plaintiff
had missed nearly two years straight work after the Accident. (This is an
error as the plaintiff returned to work in April 2009. Dr. Dubec has
encompassed the extended period of unemployment following the plaintiffs
layoff at Alpha-Duron in June 2009).
[76]
At p. 6, Dr. Dubec noted that MR imaging of the plaintiffs
neck on April 4, 2009, confirmed cervical spondylosis of the C5/6 level. He
further noted at p. 6:
[The plaintiff] experienced significant symptoms for some
time following the accident. [The plaintiff] has done reasonably poorly in
terms of rehabilitation; having had approximately nineteen months off work
after the accident. The right shoulder and knee regions continue to generate
occasional but significant flare-ups of discomfort.
During his most recent visit on February 1, 2014, [the
plaintiff] stated he continues to experience right shoulder/trapezius and flare
ups of his neck pain. [The plaintiff] feels incompletely recovered from his
injuries overall. He feels like he has recovered to about 85-90% of his pre-MVA
state, with the exception of his limitations involving overhead work/reaching
and heavy lifting.
[The plaintiff] currently is not
able to participate in all the regular duties at his job. Having said that, he
continues to work at his new job as a metal fabricator for a roofing company
and plans to continue to avoid situations that involve extreme exertional
positions, overhead work/reaching, or heavy lifting.
[77]
(Dr. Dubec explained use of the word extreme was his own).
[78]
With respect to treatment and prognosis, Dr. Dubec opined that
there was reason for optimism in that in the several months preceding his
February 1, 2014 examination, the plaintiff had not suffered major instances of
debilitating flare-ups of pain in his joints that caused him to miss
significant work.
[79]
At p. 7 of his report, Dr. Dubec concluded the plaintiffs
symptoms did not prevent him from gainful employment. To avoid aggravation of
his symptoms, however, he advised the plaintiff: to avoid extremely strenuous
work or activities of a strenuous physical nature; to avoid extended periods
of exertion by taking frequent breaks or rests at work whenever possible;
when symptoms became aggravated, he recommended physiotherapy and/or massage
therapy, and anti-inflammatory medications on an as needed basis. He further
advised daily exercise that included stretching and strengthening.
[80]
With respect to quality of life, Dr. Dubec noted that while the
plaintiffs life had been significantly affected during the months following the
Accident, [it did not appear] his injuries will prevent him from gainful
employment. He opined, however, that he remained largely restricted from
previous recreational activities.
.1
Clinical notes
[81]
Dr. Dubecs clinical records in the summer and fall of 2011 note neck
and shoulder pain and flare-ups of shoulder discomfort. While the plaintiff
worked at Mid-City in 2012, he reported he was performing light to medium work and
that both work and healing were going well.
2
MRIs of April 4, 2009 and January
10, 2011
[82]
The MRI report of Dr. J. Leipsic dated April 4, 2009 showed at C5-6
a generalized broad-based posterior disc bulge with mild disc extension into
the neural foraminal; the impression was of mild cervical spondylosis
absent
any neural compromise.
[83]
The MRI of Dr. Clement 18 months later, on January 10, 2011
reported a moderate loss of disc height and disc desiccation, moderate
uncovertebral osteophytes and resulting mild to moderate right neural foraminal
narrowing, unchanged in comparison to the prior.
3
Dr. C. Hershler
[84]
Dr. C. Hershler graduated with a degree in medicine in 1980, and
became a fellow in physical medicine and rehabilitation in 1984. He has been in
private practice since 1990, served in a series of clinical and residency
positions, and has published on a variety of medical/engineering/rehabilitation
matters. He first saw the plaintiff one time, on April 23, 2013.
[85]
Dr. Hershler noted at p. 2 of his report that before the
Accident the plaintiff occasionally experienced episodes of low back pain,
sometimes took a day or two off work, and occasionally saw a chiropractor.
These symptoms were reportedly self-limiting, did not last, and usually
associated with heavy lifting. As a further part of the history, he notes, just
as the plaintiff testified, and also as confirmed by Dr. Dubec, he was
pain-free November 10, 2008 and had no neck, back, or other complaints.
[86]
Dr. Hershler commented on the April 4, 2009 MRI of the cervical
spines revealing of multilevel degenerative changes (i.e. mild disc and
osteophyte extensions). With respect to changes at C5-6, he noted a generalized
broad-based posterior disc bulge with mild disc extension into the neural
foramina. He also noted there was no cord compression noted and that the
radiologists had described the MRI as mild cervical spondylosis at multiple
levels. I note as well, there were two MRIs and that there was no change
between the first and second image over the eighteen intervening months.
[87]
Dr. Hershler underwent a deposition July 10, 2014. I will set out
the pertinent portions of his testimony in point form:
§
he elicited pain with direct palpitation over C5-6 on the right
hand side of the spine;
§
the plaintiff had both myofascial injuries and injury to the disc
involved as well ligaments in that area;
§
degenerative changes are more likely a function of age;
§
the MRI showed no evidence of cord or nerve root impingement and
so neither the nerve or the cord would be compromised;
§
there was nothing on the MRI to indicate the disc itself was
doing anything disruptive to the nerve root;
§
he found no clinical evidence of reduced sensation, motor
changes, reflexes etc.;
§
the forces in the car accident likely aggravated the spine and
probably rendered the C5-6 disc more vulnerable to pressure;
§
the plaintiffs symptoms would be animated only when pressure is
applied to the spine in a particular fashion; if pressure is not put on the
vulnerable disc, it would not be symptomatic;
§
with respect to Dr. Camerons statement that he found no
focal neurological deficit to explain the paraesthesiae, Dr. Hershler
distinguished Dr. Camerons findings from his opinion, explaining that a
neurological examiner looks for permanent change to a nerve root; and that, in
this case, there is no permanent damage to a nerve root. Dr. Hershler
explained his statement, however, is different: that under certain conditions the
plaintiff will have irritation of nerve root or nerve fibers, in turn causing
the plaintiffs neurological symptoms, and unless the
neurologist does a manoeuver
that stresses the disc to see whether it actually irritates nerve root, then hes
not going to see it. (p. 17, lines 5 – 9);
§
the disc bulge could have developed at the time of the Accident;
or if present prior to the Accident, may have extended further from the
musculoskeletal injuries that would make it vulnerable to pressure under
certain conditions, which I reproduced in my room by rotating his head,
pressing down, I reproduced it, therefore Im saying that disc is injured, that
disc is vulnerable to pressure and that disc intermittently can cause symptoms
of pain and paresthesia. (p. 18, lines 36 – 42);
§
with respect to the objectivity of the plaintiffs reaction to
the test [Spurlings maneuver which Dr. Hershler described], Dr. Hershler
stated the plaintiffs response to the palpitation was involuntary, an
instinctive reflexive withdrawal.
§
from performing Spurlings maneuver, he agreed the examiner
generally would expect pain, but he maintained that other neurological
sensation, such as tingling, while less frequent, may be present if the sensory
nerve is being irritated;
§
there is greater muscle tightness and loss of range on the left
side than on the right;
§
on examination, the plaintiff was unable to raise his left arm
above his head to the same degree as he could on the right side, and he lost
range of motion around the shoulder (p. 22); and
§
both shoulders were within the normal range of motion, but the
plaintiff had muscle tightness on the right that he works against, i.e. more
resistance to movement; he thus raises it slower and needs assistance to bring
it to the top range. He also noted a definite loss of internal rotation about
the left shoulder, which he attributed to muscle tightness;
[88]
At p. 26 of the deposition, Dr. Hershler explains there was
more than one injury that occurred: one to the soft tissues, the muscles,
which explains the tightness [around the shoulder and] the shoulder pain
felt from the neck pain; and also, soft tissue or muscular pain [in the neck],
and [also] a separate injury to [the] disc. He explained the plaintiff didnt
notice the paresthesia right away after the Accident because at that point he
was not stressing the disc.
[89]
At p. 27, Dr. Hershler explained further that at first the
plaintiff was describing more of the myofascial complaints and that it was
only through specific pressure on the disc, that both pain and neurologic
irritation would be generated. That only in certain circumstances will the
plaintiff experience both pain and paresthesia at the same time, which he was
able to demonstrate in the physical exam.
[90]
At p. 21 (lines 12 – 18) of the deposition, Dr. Hershler
further explained:
All I can say about [the
plaintiff] is that there is clearly both pain and an irritation of some sensory
nerve, because he would not he would not complain of the tingling and the paresthesia
in his arm unless there was irritation of some form of sensory nerve, and I
know that Dr. Cameron would agree with that and does in fact state that.
4
Dr. D.A. Cameron
[91]
Dr. D.A. Cameron is a neurologist, and an assistant professor in
the Neurology Division of the Department of Medicine at UBC. He has served in
various executive medical positions at Lions Gate Hospital. He saw the
plaintiff for a neurological examination on April 9, 2014.
[92]
Dr. Cameron opined that the mild cervical spondylosis imaged at
multiple levels of the cervical spine were probably chronic and predated the
Accident. He also agreed with Dr. Hershlers view that before the Accident
the plaintiff did not complain of pain or tingling, or of a pins and needles
sensation that involved the neck, right shoulder or right upper extremity. He
agreed the Accident caused these symptoms. He agreed the Accident caused the plaintiffs
pain radiating down into his right upper extremity with intermittent pins-and-needles
complaints into the right thumb, index and third digits. Dr. Cameron,
however, thought it was more likely that musculoskeletal injuries at the base
of the right neck and shoulder area, the muscle spasms those injuries produced
and their consequent irritating of the small fibers and sensory nerves in that
area, were responsible for the plaintiffs symptoms as opposed to broad based
disc bulging at C5-6 proposed by Dr. Hershler.
[93]
At p. 7 (items 34 – 25), Dr. Cameron concluded:
34. … [The
plaintiffs] complete disability and then subsequent partial disability
is
due to soft tissue and musculoskeletal injuries that he sustained at the time
of the accident.
[The plaintiff] more likely suffered irritation of small
fibre sensory nerves serving the right upper extremity as a result of soft
tissue and musculoskeletal injuries sustained at the time of the accident
.
These injuries resulted in irritation of the small fibre sensory nerves due to
development of muscle spasm in the base of [the] right neck and right shoulder
area following this accident.
35. It is my opinion that [the
plaintiff] did not suffer injury to nerve roots or peripheral nerves sustained
at the time of this accident, but rather that he suffered with intermittent
irritation of the small fibre sensory nerves in the brachial plexus of nerves
serving the median nerve in the right upper extremity sustained at the time of
this accident.
[94]
Dr. Cameron did not specifically denote thoracic outlet syndrome or
brachial plexus injury and he does not describe it in either of those terms.
5
Dr. J.P. Wade
[95]
Dr. J.P. Wade is a rheumatologist. He provided a report dated June
7, 2012 and testified at trial. He saw the plaintiff on May 16, 2012.
[96]
He noted that at the time of the Accident, the plaintiff had some
nonspecific musculoskeletal complaints with minor aches and pains in his hands,
left knee and back. He noted the plaintiff was a carrier of hemochromatosis,
but does not have the disease itself, which can be associated with arthritis.
[97]
On p. 2 of his report, he concluded the plaintiff sustained a
probable mild to moderate injury of the cervical, thoracic and lumbar spine. He
may have also had a soft tissue injury to the right knee. He also noted that
as at the date of his assessment, May 16, 2012, the plaintiff reported
variable symptoms, but globally he reports self-improvement in the order of
80%.
[98]
With respect to the plaintiffs radiating pain and paraesthesiae, Dr. Wade
stated on p. 2:
At the time of my assessment of
May 16, 2012 [the plaintiff] had symptoms of mechanical neck pain. He had
some symptoms in the right 1st and 2nd digit that would
be in keeping with a possible right C6 nerve irritation. The MRI imaging of
the cervical spine done initially on April 4, 2009 did confirm multilevel
changes of a degenerative nature in the cervical spine and there was a disc
protrusion at the C5-C6 level with some possible bilateral foraminal
encroachment. [Emphasis added.]
[99]
With respect to right shoulder pain and the shift in symptoms from the
left side more to the right side, Dr. Wade commented further at p. 2:
At the time of my assessment
[the plaintiff] had symptoms of right shoulder pain with pain localized to the
right acromioclavicular joint as well as to the region of the right
supraspinatus tendon insertion. There were some right shoulder symptoms in the
months after the accident of concern however over the first number of months
the main shoulder complaints were left-sided. He reports that in recent months
his dominant shoulder complaints have been right sided. On examination he had
findings of right acromioclavicular joint pain as well as findings suggestive
of a possible supraspinatus tendinitis. It appears that symptoms in the left
shoulder were more prominent after the accident concerned with less dominant
symptoms of the right shoulder in the immediate period after the accident. In
recent months he has had more dominant complaints in the right shoulder. The association
of the accident of November 10, 2008 and his current right shoulder complaints
are unclear.
[100] Also on
p. 2, he noted swelling in the plaintiffs knees with right patellofemoral
pain and some tenderness in the right forefoot. Those findings suggested to him
that the plaintiff had a mild underlying low grade seronegative inflammatory
arthritis.
[101] He thought
that if the plaintiff experienced increased symptoms of inflammatory arthritis
this could be associated with future disability. With respect to his right
shoulder symptoms, he opined that there was a small possibility that he would
have increasing symptoms of pain or nerve root irritation requiring
decompression of the cervical spine. He thought it was unclear whether the
plaintiffs right shoulder complaints were in any way related to the Accident.
6
Dr. M.R. Boyle
[102]
Dr. M.R. Boyle has been an orthopaedic surgeon since 1979, when he
obtained his fellowship in orthopaedic surgery at UBC. Between 1979 and 1988,
he practised at VGH in the Adult Trauma Service. Between 1988 and 2009, he had
an orthopaedic practice in Abbotsford and was on staff at MSA General Hospital.
He saw the plaintiff on February 18, 2014. Under Impression at pp. 2 – 3,
he stated:
The patient suffered a myofascial strain. This is an injury
to the ligaments, tendons and muscles. There is no evidence that he suffered
injuries to the vertebrae (plain films and MRI). It is unlikely that he
suffered injuries to the discs. There is no evidence of annular tears or
herniations which could be part of a soft tissue injury complex. There is some
degree of disc bulge and osteophyte changes. There is no evidence of central or
lateral canal stenosis, indicating that there is no evidence radiologically of
any nerve compromise. The sequential MRIs some 18 to 19 months apart did not
show any progression of changes.
It is unlikely that progression of changes would occur in the
long term.
The changes at C5-6 antedated the
motor vehicle accident. They were not caused by the motor vehicle accident and
they will not be worsened by the motor vehicle accident [referring to medical
legal literature on Bannister, G. et al. Whiplash Injury. review
Article. 2009. JBJS (BR); 91-B: 845-50)]. Their presence, however, is a
negative prognostic factor in that symptoms could be worsened in severity and
duration because of their presence.
[103] With
respect to the shoulders, Dr. Boyle concluded at p. 3 that [the
plaintiff] had symptoms and signs of a very mild impingement syndrome, perhaps
slightly more on the left than the right. Having referred to the research of S.
Chauhan in a 2003 article: Impingement Syndrome Associated with Whiplash
Injury (2003, JBJS (BR); 85-B: 408-10), which stated that 75% of patients
have improvement following time and treatment. At p. 4, Dr. Boyle
opined that more likely than not, the plaintiff would have resolution of his
shoulder complaints. If symptoms were to persist it is not thought that they
would be disabling.
[104] With
respect to the right knee, on p. 4, Dr. Boyle thought the plaintiff
showed signs of chondromalacia patella and that his anterior right knee pain
was likely attributable to a patellofemoral pain syndrome
[that] would result
in some anterior knee discomfort, worse on squatting or kneeling. He also
thought [s]ome minor degree of progression overtime could occur. He
did not think this would be disabling or limiting at the time of the
examination or long-term.
[105] With
respect to disability following the motor vehicle accident, he states on
p. 5, that an initial disability of 4 months with a gradual return to work
over another 2 months for a total disability (total and partial) of 6 months
would have been appropriate. Thereafter, the expectation would be that, more
likely than not, he would be able to resume full time duties as a sheet metal
worker, as he defined them to this writer.
[106] Beyond
that, Dr. Boyle stated he could not find evidence of pathology sufficient
to require a 1-year hiatus from being laid off in June 2009 until either late
2009 or early 2010, when he went to work in a car wash. He further opined, No
further disability regarding future work as a sheet metal worker or any other
work for which he is qualified or interested in is expected as a result of this
MVA.
[107] At
p. 9, he noted axial compression in three planes was not associated with
any discomfort. He noted, tenderness over the C6 and 7 spinous processes and
interspinous ligaments and some tenderness over the trapezii.
[108] His tests
for thoracic outlet syndrome were negative.
[109] On
testifying, Dr. Boyle explained the axial compression he conducted is
effectively Spurlings maneuver, described by Dr. Hershler. He stated that
pain, not numbness, is the classic response and that he elicited no pain. As we
saw earlier, Dr. Hershler agreed pain is commonly elicited, but that
tingling and numbness are also sometimes elicited.
[110] Asked on
cross-examination to explain the factors on which he based his opinion on the
planes disability, he referred to the interview, x-rays, clinical exam, age,
lack of prior trauma, and MRI studies which showed mild changes, which in total
led to his findings that there is no pathology to preclude his return to work
as a sheet-metal worker. He characterized the MRI findings as normal in a
43-year-old male. With respect to his duties, he testified that the plaintiff
indicated he climbed ladders, installed metal on roofs, flashings, and has to
manipulate tools. He did not discuss cladding. Dr. Boyle was not aware of
the heavy loads that had to be brought onto the roof, or of accommodations
employers had to make for the plaintiff. He stated he would expect an employer
to accommodate any concerns and detailed no specific areas. Dr. Boyle
stated he was not saying the plaintiff did not require accommodations and
pointed out he gave an estimate for a return to work with accommodations over
time.
[111] With
respect to disc bulging, he testified two-thirds of the population have disc
bulges, herniations and stenosis without symptoms. He agreed, however, that an
injured patient with that condition would have longer-lasting symptoms and that
a pre-existing degenerative change could result in greater injury, but it would
not cause further degeneration. Dr. Boyle testified that it was probable
the plaintiff would have more residual symptoms but, in his opinion, they were
not disabling. He stated that he found the plaintiffs range of motion good;
and therefore, his symptoms were not likely to be disabling. He noted the plaintiff
had full range of motion in the neck, but that was in extension, for only a
matter of seconds.
Discussion and
Assessment of Damages
[112]
The following table summarizes what I understand are the parties positions
on appropriate damages:
Damages Claimed | Plaintiff |
| Defendant |
|
From | To | From | To | |
Non-Pecuniary | $130,000 |
| $50,000 | $60,000 |
Loss | 5,000 |
|
|
|
Past | 176,788 |
| 13,800 | 13,800 |
Past | 40,000 |
|
|
|
Future | 350,000 |
| – | – |
Future | 350,000 |
| – | 20,000 |
Cost | 10,000 |
| – | – |
Special | 620 |
| 620 | 620 |
Total | $1,062,408 |
| $64,420 | $94,420 |
Findings
on nature and extent of injuries
1
Relevant prior conditions
.1
Hemochromatosis
[113] Before the
Accident, the plaintiff took medications for a condition called
Hemochromatosis. This disorder relates to a livers inability to process and
remove iron from the blood. It accumulates in the tissue, including joints, and
produces a mild form of arthritis. This condition caused the plaintiff some
hand stiffness. The plaintiff had taken medication called Meloxicam that made
it easier for him to use his hands, which have to be capable of snipping 16-gauge
tin sheets. (The smaller the number, the thicker the metal; 30-gauge steel is
about the thickness of a tin can). In June 2008, the plaintiff experienced a
three-month episode related to finger pain, possibly related to this condition.
.2
Left knee
[114] The plaintiff
was involved in two prior motor vehicle accidents. He denied sustaining any
injuries in either. In the early 2000s, roughly in the same period of the two
accidents, he injured his left knee. After two months physiotherapy, he
returned to work. He has to continue to guard the left knee at work; a wrong
step or heavy lifting could aggravate it, but the plaintiff denied any
significant limitation caused by his left knee at work.
.3
Sore back from work
[115] Before the
Accident, the plaintiff could awoke with a sore back, one that went away as the
day went on at work, returning again in the evening when at rest. The defendant
pointed, as well to the plaintiffs testimony that pre-accident, where
possible, he left heavy lifting to apprentices and avoided heavy lifting when
possible.
[116] I see less
significance in this than does the defendant. Sheet-metal work is inherently
physical; soreness from just standing on concrete for eight hours can cause
back soreness and it is only common sense to expect sheet-metal workers have to
put up with a certain amount of muscle soreness and stiffness after work. More
significant is Dr. Dubecs clinical observation that, before the Accident,
the plaintiff was in good health and able to perform all duties expected of
him.
.4
Low grade arthritis
[117] As for
possible progressive changes, Dr. Wade thought, as just noted, that if the
plaintiff experienced increased symptoms of inflammatory arthritis this could
be associated with future disability. This is a possible negative contingency,
but like Dr. Wades comment about possible future decompression surgery at
C5-6, more of a sidebar than an opinion and rather speculative.
Non-pecuniary
damages
1
Parties positions
.1
Plaintiff
.2
Defendant
[118] The
plaintiff grants the plaintiff suffered soft tissue injuries, primarily to the
areas of his neck, upper, mid and lower back, and a mild impingement syndrome
in his shoulders, greater in the left than in the right. Dr. Boyle
conceded as much.
[119] Sound
conclusions on the nature and extent of a personal injury require credible
testimony from the claimant, a plausible medical history, qualified supporting
medical opinion; and where available, independent corroboration. Further, the
evidence should exhibit reasonable internal consistency, coherence, and accord
with what an experienced and reasonable person would expect to see in the
circumstances.
[120] The court
may accept or reject all or part of a witnesss testimony. The court must
consider the medical opinion and though not bound to accept it, should have a
reasonable basis for completely rejecting qualified expert opinion.
[121] The
defendant submitted that Dr. Hershlers theory stood in total isolation
from all the other opinions the court heard. With respect, I do not find that
to be the case.
[122] There is
no dispute that the spondylosis at C5-6 predated the Accident and that in the
18 months that passed between the MRIs, no significant progression was present.
The defendant correctly points out the evidence showed neither the canal nor
the nerve root exiting the canal were compromised. Dr. Hershler did not
quarrel with that. He opined that nothing on the MRI indicated the disc itself
was doing anything disruptive to the nerve root; he found no clinical evidence
of reduced sensation, motor changes, reflexes etc. He did not disagree with Dr. Camerons
thinking on that aspect. He did opine the disc bulge could have developed at
the time of the Accident; or if present prior to it, the plaintiffs musculoskeletal
injuries may have extended the bulge. There is no pre-accident imaging to
confirm that, or not. In any case, Dr. Hershler opined either bulging of
the disc, pre-existing or extended through aggravation, became vulnerable in
certain conditions. He produced them by first rotating the plaintiffs head and
then pressing down on it (Spurlings maneuver). In short, he opined the disc
was vulnerable to particular types of pressure that caused symptoms of pain and
paraesthesiae. He also opined the ligaments were injured and there was
increased muscle tightness.
[123] Dr. Boyle,
on cross-examination, would not take the plaintiffs point that degenerative
changes such as he saw at C5-6 rendered a persons spine at the degenerated
level more vulnerable to insult, but agreed medical research confirmed that
such a pre-conditioned state associated with prolongation of symptoms. The
chain of reason for that distinction seemed to me to be lacking.
[124] I have
already just commented on Dr. Camerons theory. As we saw, he did not
reject Dr. Hershlers theory. He basically accepted Dr. Hershlers
theory could be explanatory, but he preferred his own alternative explanation
for the same phenomena.
[125] I note as
well that Dr. Wade, called by the defendant, felt there was a small
possibility that the plaintiff would have increasing symptoms of pain or nerve
root irritation requiring decompression of the cervical spine.
[126] As we saw,
Dr. Boyle did not reproduce the same Spurlings maneuver response that Dr. Hershler
provoked when he conducted the test. Dr. Hershler testified that the same
response should occur if provoked by another physician. When asked, he could
not explain why Dr. Boyles conduct of the maneuver failed to provoke the
same response. For his part, Dr. Boyle testified that pain, not paresthesias
is the classic response to Spurlings maneuver. Dr. Hershler partly
agreed, but was also clear that Spurlings maneuver sometimes provokes paraesthesiae,
as well. This consists with the plaintiffs testimony that both symptoms could
present themselves when engaged in provocative work, such as when he has to
look up and keep his arms up.
[127] The
defendant submitted a plausible explanation for the difference between Dr. Boyles
results and Dr. Hershlers results, characterized by the defendant as a
false positive, is that the plaintiff simulated a response. I do not think so. Dr. Hershler
testified that the plaintiffs instantaneous response was instantaneous, clearly
involuntary and easily distinguishable from a voluntary or feigned response. It
is worth noting the particularity as opposed to the peculiarity of the
plaintiffs symptoms. No one contended sensations of numbness and tingling
followed a route so eccentric and so inconsistent a nerve distribution
associated with C5-6 that it could only have been falsified. In other words, it
is not as if the plaintiff had claimed a neuropathy beyond the realm of medical
possibility, as we see in some cases.
[128] I note the
defendants concerns about the shifting source of the shoulder and arm pain,
initially at the left side and in recent years to the right. Even after the
benefits wrought from the Karp Rehabilitation physiotherapy, despite
improvement seen, it remained worse on the left side. The plaintiff did report
pain on the right side to Dr. Dubec; but again, initially the left side
was worse and remained so for some time. As the plaintiff returned to
sheet-metal work, it appears his right-side symptoms gradually became
ascendant, then predominant. The plaintiff is right-hand dominant. To keep this
in proper perspective, the plaintiff complained primarily about a certain set
of tasks, symptoms and limitations. Otherwise, he acknowledged a substantial
recovery.
[129] The record
of employment is relevant here. After the plaintiff left Alpha-Duron June 4,
2009, he did not work again until August 2010, when he started at Washworld.
Until then, he was not working. Work at Washworld was not very heavy, though
the work with Jim McIntyre, as we saw earlier, had some heavy parts; enough
that the plaintiff injured his back. Some of the experts commented on the
causation question, but no developed medical proposition opines the plaintiffs
right side symptoms are not traceable to the Accident.
[130] In brief
summary, the experts either reached similar conclusions by different pathways,
or in the case of Dr. Boyle, different conclusions. But even there, the
diagnostic opinions are not pointedly irreconcilable.
[131]
I find the plaintiff suffered significant soft tissue injuries
that produced the conditions discussed in these reasons. It is not critical to
judicially settle on the exact physiological mechanism that has produced the
plaintiffs symptoms, e.g. whether the disc bulge at C5-6 was extended in the
Accident. The superior question is the nature and extent of the plaintiffs
physical limitations and his prognosis.
Plaintiffs
credibility
[132] As we saw,
the defendant questioned the credibility of the plaintiffs testimony regarding
his layoff from Alpha-Duron. Also challenged is the reliability of his
testimony that of late, seven years after the Accident, that he has noticed
increased pain and frequency of pain and paraesthesiae.
[133] Overall,
the plaintiff presented as an intelligent straightforward witness. He did not
quibble, he made concessions on cross-examination, and he did not tend towards
exaggeration all the time, as sometimes occurs in personal injury cases. He
granted major improvement had occurred, except in those areas that most impact
his physical capacity for certain tasks at work and that with the help of his
work partner, a change of position or change task, rest, and medications, he
can complete the task, albeit in discomfort and with less production than he
could otherwise have achieved. He rather insistently pursued treatment and when
he completed it, admitted the benefits he received from it. As Dr. Ward
put it, his initial physiotherapy following the Accident was probably
suboptimal. I accept he contended with a lot of discomfort at work and that his
productivity suffered at times, but he did persist. For the most part, I find
he was a reliable historian. Although ably conducted by experienced counsel,
the cross-examination did not fundamental shake his reliability, not to say his
testimony was entirely acceptable.
[134] I accept
the plaintiffs testimony regarding his symptoms and their effects for the most
part, with some exception on the nature and extent of his limitations, which I
will discuss later.
2
Award for non-pecuniary damages
[135] The list
of matters the court should consider when assessing non-pecuniary damages is open.
It encompasses as much variety and differences as there are individuals. In
most cases, the court needs to consider the age of the plaintiff, the nature of
their injury, the severity and duration of pain, the nature and extent of any
disability, any emotional suffering they have experienced, and any loss or
impairment of life: Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th)
19. In Smaill v. Williams, 2010 BCSC 73, Russell J. suggested the
following additional conditions: impairment of family, marital and social
relationships; impairment of physical and mental abilities; loss of lifestyle;
and the plaintiffs stoicism. From the quantum cases the plaintiff presented to
the court, he highlighted Hubbs v. Escueta, 2013 BCSC 103 as nearest the
facts in this case. The court awarded Mr. Hubbs $130,000 for
non-pecuniary damages.
[136]
He was a 43-year-old journeyman electrician. Earlier in his career, he
and a partner had the dangerous work of maintaining the electric systems in a
sawmill. He was happy to leave that work and to find a position as a journeyman
with VIA Rail Canada, where he was very content until the Accident. The work
did not require a lot of heavy lifting, but nonetheless was quite strenuous and
it required him to work at times in difficult spaces, climb ladders, and so on.
He enjoyed his work a lot. He was involved in two accidents, but $130,000 was
the award for the much more serious of the two. He suffered numerous soft
tissue injuries. The significant injury was to his left ankle which was
fractured both on the outside and the inside and required two surgeries. At para. 35,
Ross J. found:
[135] This case highlights the
importance of the individual circumstances. The injury suffered by Mr. Hubbs
is serious. While the consequences for someone of more sedentary occupation and
lifestyle might not have been so significant, for Mr. Hubbs the injury has
proven to be life changing. He is a relatively young man who now faces a
lifetime of limitation and disability. Mr. Hubbs livelihood requires
strength, agility and balance, all of which have been impaired by the injury.
The injury has impaired his ability to earn his living. He has worked through
the pain, but at a terrible cost to his family life. He is no longer able to
enjoy the active lifestyle he loved. His mood is depressed and he has little
energy for anything except the struggle to put in a day at work. His relations
with his wife and children have been damaged. It appears that he has reached a
plateau in his recovery and faces a future of increased deterioration and
vulnerability to injury.
[137] I note as
well, the two surgeries the plaintiff underwent and the comments of Mr. Hubbs
family physician as quoted in the judgment. All the important realms of the
plaintiffs life were seriously impacted and measure out as more serious and
consequential than what has been shown the court in this case. His medical
prognosis is more positive. His injuries interfere less with his work.
[138] While the
plaintiffs injuries are not solely responsible for the plaintiffs damages,
they did inhibit his earning capacity and significantly lessen his ability to
earn income to support his family. He lacked money to meet the childrens
needs, had to leave the home the family had lived in for eight years, and had
to take minimal wage employment outside his trade. He had to enter into
bankruptcy, which will remain on his credit record. He was unable to enjoy
hiking as before. His parenting arrangements were disrupted. He became distraught,
depressed and sought counselling for his anger and frustration. He has
experienced considerable pain and discomfort since the Accident, and while much
improved now, seven years later, he still experiences pain and stiffness when
engaged in certain tasks, especially at work. While there is a reasonable
chance he will experience improvement, I find he will never fully recover his
formal level of function, especially with respect to overhead work that he
continues to find difficult.
[139] I find the
plaintiffs proposal of $130,000 on the high side, all things considered. The
defendant submits an award in the range of $50,000 to $60,000, considering the
plaintiffs prognosis, is appropriate. This is not an unreasonable proposal,
but considering the plaintiff, who is not a malingerer, in my view, still
experiences symptoms seven years later, an award in that range falls on the
short side. I am not able to find any facts to justify an award for loss of
homemaking capacity. I find an award for non-pecuniary damages faithful to the
evidence and fair to both sides is $90,000.
Loss of earnings
1
Overview of work history
[140] The
plaintiff attended a business college after leaving school in Grade 10. He
tried work as a drywaller, but did not like that trade. In about 2000, he
started to work as a sheet-metal helper. In 2001, he began his apprenticeship.
In 2006, he earned his Red Seal journeyman designation. Since then, he earned
most of his income as a unionized, salaried T4 employee; some from salaried employment
and a smaller portion from subcontract work. His T4 earnings between 2005 and
2007 averaged $45,574. Income totalled from all sources, averaged $47,021.
[141] Sheet-metal
work encompasses as many applications as there are building types; both new
construction and renovation. Much of the work involves work on roofs, e.g.
applying flashing on roof gaps or parapets and side cladding. Other
applications are on ground level or higher on the side of buildings. Other
smaller applications include applying flashing around doors, the bottom of
walls, and windows. Another large component is construction of interior and exterior
ventilation and ducting, for which the plaintiff holds a certificate. Some
tasks are light and some heavy.
[142] Although
the National Occupational Classification (NOC) system classifies the physical
demands of sheet-metal worker as moderate, Mr. Dominic. Shew, an
occupational therapist retained by the plaintiff to conduct a Functional
Capacity and Work Capacity Assessment at the plaintiffs request, to be considered
shortly, thinks such classifications should be regarded as provisional. His
firsthand observations and the plaintiffs description of the nature and extent
of the various tasks he performs logically call for a more variegated approach.
A number of tasks directly related to the trade require heavy lifting, and call
for considerable strength. The WCBs standards limit a single worker to lifting
50 pounds weight. The plaintiff testified that before the Accident, he
sometimes had to carry packages that weigh 150 pounds. Like others in the
trade, he had to develop sufficient grip strength to cut through up to 16-gauge
sheet metal. The next size up from 16-gauge is ⅛-inch
thick sheeting. The plaintiff recalled many new apprentices cannot cut through
16-gauge metal and have to build up the strength.
2
Functional Capacity Assessment of Mr. Shew
April 16, 2013
[143] Mr. Dominic
Shew, an occupational therapist, assessed the plaintiff over two days, April 3
and 4, 2013. His report is dated April 16, 2013. Mr. Shew graduated from
the Faculty of Rehabilitation Sciences at UBC in 2013. He testified in a
straight-forward way, making concessions fairly.
[144] He
conducted a functional capacity assessment over two consecutive days, starting
with a series of questionnaires. Physical and functional testing consisted of
sitting, standing, walking, climbing, lifting, carrying, crouching, squatting,
bending, stooping, grasping, and overhead and forward reaching. Those
assessments on April 3, 2013, lasted seven hours and 50 minutes. On April 4,
2013, he returned for assessment that included repeated physical and functional
testing lasting four hours and 15 minutes.
[145] Testing
and observations throughout the assessment satisfied him the plaintiff provided
high levels of physical effort." Mr. Shew opined that the results
of testing are an accurate representation of his present physical and
functional abilities and limitations.
[146] The testing
was extensive and the report of 67 pages, exhaustive.
[147]
At p. 9 of his report he stated:
When considering the medical
information to date and the results of the FCE/WCE [Functional Capacity
Evaluation and Work Capacity Evaluation] [the plaintiff] is not well-suited
for the demands of his present work as a Sheet Metal Worker and he is at risk
of injury due to his restrictions maneuvering heavier loads. However, based on
his residual capacity, he is likely employable at other occupations that are
within his physical and functional abilities.
[148] Mr. Shew
obtained details about the plaintiffs work as a car wash attendant at Washworld.
The plaintiff reported to him that he was sore in his neck, upper back and
arms with repetitive activities using his arms.
[I]nitially, he avoided maneuvering
containers of the chemicals (he estimated approximately 60-70 pounds) but near
the end of his work, he managed to complete this task (p. 13).
[149] As for the
plaintiffs work at Metro Roofing, the plaintiff confirmed with Mr. Shew that
he had noticed numbness/tingling in his right shoulder, arm and hand became
more pronounced with repetitive upper body movements. Mr. Shew noted the
plaintiff was fired from Mid-City, in November 2012. This was not explained at
trial (p. 14).
[150] As for
Western Roofing, the plaintiff described his work there for Dr. Shew as
fabrication and some installing. Mr. Shew noted as well the plaintiff
reports that Western has a power brake (e.g. foot pedal) versus a manual brake
(e.g. using the upper body), which makes [work] easier for his upper body. He
reported, as at trial, that the plaintiff continued to experience neck, upper
back/shoulder and arm soreness especially after his shift. He also reported
numbness/tingling in his right neck, shoulder/upper back and arm with heavy
lifting, working in a bent over position and working overhead with his arms and
awkward head/neck positions (p. 14).
[151]
At. p. 7, Mr. Shew rated the plaintiffs overall capacity:
Based on test results, [the plaintiff] demonstrated the
capacity to safely perform tasks requiring sedentary to modified heavy level
strength (0-60/70 lbs). However, this is in contrast to the demands of such
work in which he must be capable of heavy to very heavy level strength; thus he
did not demonstrate the capacity to safely perform the upper strength
requirements. In addition, there was a measured decline in his ability to
safely repeat the two-handed lifting and carrying tasks on the Day 2 and
considering his reported increase in his symptoms with such activity, this
suggests that there will likely be a reduction in his ability for tasks
requiring heavier demands over time.
Although there were measured restrictions in his cervical and
shoulder mobility, clinical observations, and test findings indicate that he
demonstrated functional upper and lower body and trunk mobility and
coordination to perform short periods of the basic body positional demands
typically required of this line of work. However, specific to the demands of
his work, he demonstrated mild restrictions tolerating activity requiring
forward reaching, bending, and stooping. In addition, he demonstrated moderate
difficulties tolerating activity requiring overhead reaching, squatting,
crouching, kneeling, standing, walking and climbing. Furthermore, there was a
measured decline in his ability for forceful grasping on Day 2 of the
evaluation. In my clinical experience in referencing the NOC [National
Occupational Classification] and DOT [Dictionary of Occupational Titles], the
ability to safely perform and sustain such body positional demands are
typically crucial requirements of such a laborious occupation.
Based on the summation of the
test findings, clinical observations and considering his response to testing
the day following the assessment, [the plaintiff] demonstrated the strength and
physical ability to safely perform aspects of this occupation. He, however,
did not demonstrate the capacity to safely manage the higher strength
requirements suggesting that if he attempts to complete such demands, he is
likely placing himself and others at risk of injury. As such, he will require
assistance with loads over 60/70 lbs or if the maneuvering of moderate to heavy
loads is required on a more repetitive basis. Furthermore, his difficulties
managing tasks specifically requiring him to work overhead, at low-levels in
squatting, crouching, kneeling and those requiring lengthy and repetitive
periods of standing, walking and climbing suggest that he is not well-suited
for such demands. Moreover, the measured and functional reduction in his
capacity over the course of the two-day evaluation suggests that if higher
physical demands are required, there will likely be a reduction in his
productivity over the course of his workday and week. In order to manage his
symptoms, he requires frequent breaks to rest, stretch, or change positions. [Emphasis
added.]
[152] To his
credit, he has attempted to persist with work despite his physical
restrictions. However test findings suggest that he is unsafe performing the
full demands of his present work and is not well-suited for the repetitive
and prolonged body part positional demands as described above, indicating that
he will require accommodations and modifications to the typical requirements.
Furthermore, he likely is at a competitive disadvantage in an open job market
because of the persistence of his limitations as discussed throughout this
report.
[153] The
defendant noted, among other points, that Mr. Shew did not test the
plaintiff for maximum tolerance. He also reminded the court of the subject
element involved as the Mr. Shew in part had to rely on the plaintiffs
reporting.
3
Recap of medical evidence on
earning capacity
[154] To briefly
refresh the medical legal opinions on the plaintiffs future prospects as a
sheet-metal worker: (i) Dr. Dubec advised the plaintiff to: avoid
extremely strenuous work or activities of strenuous physical nature, and take
frequent breaks or rests whenever possible to avoid extended periods of
exertion. (ii) Dr. Hershler, having noted the plaintiff had developed some
pain tolerance, opined the plaintiff had a permanent injury and that it was
unlikely the symptoms would disappear in future. (iii) Dr. Cameron
diagnosed soft tissue and musculoskeletal injuries, but deferred to a physiatrist
the questions of therapy, ongoing partial disability and their relationship to
his injuries. (iv) Dr. Wade did not proffer a prognosis, but thought there
was a small possibility the plaintiff would have increasing symptoms of pain or
nerve root irritation requiring decompression of the cervical spine. (v) Dr. Boyle
opined that given his diagnosis of a very mild shoulder impingement syndrome,
more on the left side, the plaintiff would have resolution and if persisting,
symptoms would not be disabling; that after six months he could have resumed
full-time duties as a sheet-metal worker, and that he saw no further disability
for future work as a sheet-metal worker.
[155] I found
all the medical opinions made a useful contribution to formation of rounded
conclusions. I found Dr. Boyles analysis and reference to medical
literature informative. Literature and research ultimately deals in general
categories of injuries, certain cohorts, and predicts outcomes based on norms.
Literature may enrich the courts understanding, but the evidence before the
court is richer and more expansive than is the literature standing alone. Some
of the plaintiffs symptoms persisted beyond what Dr. Boyle predicted.
This may bring them outside general expectation, but it is not that uncommon or
holly outside the bell curve of expectations of the literature Dr. Boyle
briefly mentioned.
[156] The physical
nature of the plaintiffs work, the locus of his symptoms, the types of
positions and movements that provoke them, reliable corroboration, and the
compass of the medical opinions support a finding that the plaintiffs symptoms
and limitations are genuine. It also should be noted that he has been quite
stoic, persisting in tasks through pain. He has conceded improvements and
benefits from treatment.
4
Parties positions loss of earning
capacity
.1
Plaintiff
[157] The
plaintiffs theory is that but for his injuries, after his layoff in June 2009,
he likely could have obtained work in his trade or even continued with
Alpha-Duron. The plaintiff stressed his work history; his pride in his
workmanship; his experience in his trade and journeyman status; his skills in
measurement, layout, and fabrication; his motivation to support his family. He
submitted it is unlikely, absent the Accident, that someone like him would
remain unemployed during the economic slowdown.
[158] The
plaintiff stressed that the defendant did not significantly challenge Mr. Shews
report. He noted the restrictions Mr. Shew found from extensive testing
and his own observation over a two-day period. He stressed, among other things,
that: the plaintiff lacks the capacity to safely manage the higher strength
requirements of a sheet-metal worker if he attempts to do so places himself and
others at risk of injury; that he will require assistance with loads over 60/70
pounds and/or if he has to maneuver repetitively moderate to heavy loads; and that
if he is faced with higher physical demands over time, he will likely produce
less.
.2
Defendant
[159] The
defendants main points are as follows:
§
The plaintiff was disabled totally or partially between November
10, 2008 and June 4, 2009, when he was laid off at Alpha-Duron.
§
When the plaintiff left Karp Rehabilitation in May 2010, he had
achieved substantial resolution of any remaining disability or impairment.
§
Between September 2011 an August 2011, when the plaintiff worked
successively at Washworld and for Jim McIntyre, he managed to do perform
physical tasks, some heavy the job required
§
After the plaintiff returned to sheet-metal work at the end of
August 2011, the plaintiffs complaints of functional impairment do not
reconcile with the other evidence as a whole in that he was able to perform the
work required of him although defendant concedes the plaintiff sometimes has
had to work through flare-ups of pain from working.
§
It is difficult to reconcile the plaintiffs evidence of
impairment with objective evidence that he has worked full time in all aspects
of sheet-metal work since August 2011.
§
The plaintiff conceded that pre-accident he pawned off heavy work
to an apprentice when he could and avoided heavy lifting as much as possible.
§
Dr. Boyle confined the scope of the plaintiffs problems to
a very mild impingement syndrome which would affect range of motion to a mild
degree and also account for discomfort the plaintiff felt when he did heavy
overhead lifting.
§
The defendant minimized the significance of the accommodations
explained by Mr. Stoesz, arguing that it amounted to complaints of soreness
once a week.
§
The plaintiff had no accommodations at Metro Wall Systems and Mid-City.
[160] On this
last point, the defendant is correct only insofar it references specific formal
accommodations. Metro Wall Systems had four apprentices who performed the heavy
work required; and at Mid-City, as he was a foreman, he spent most of his time
in fabrication and when required, could call for assistance.
5
Accommodations made at Western
Roofing
.1
Mr. J. Stoesz
[161] The
plaintiff explained his working arrangement with Mr. Joshua Stoesz, his
supervisor at the company that has employed him since January 2013.
[162] Mr. Stoesz,
age 30, has been a sheet-metal journeyman for six years. He had been working at
Western Roofing for three years when he testified. He supervises three other
employees, including the plaintiff. Mr. Stoesz had both supervised and
worked with the plaintiff for one year before he testified. They do not
socialize off-site and Mr. Stoesz and the plaintiff are not friends.
[163] He
testified the plaintiff cannot work on a sustained basis with his arms lifted
above shoulder level. He cannot perform tasks that require him to look up
without taking frequent breaks, which effectively eliminates soffit work.
Crouching and kneeling remain difficult.
[164] To
accommodate the plaintiffs limitations with overhead work, heavy lifting, and
kneeling, he generally does most of the heavier tasks. Generally, the plaintiff
lays out the materials and fabricates them. Mr. Stoesz applies most of the
overhead installations. He sees the plaintiff finds this particularly
difficult. Overhead applications, ceilings in particular, require a lot of
shoulder work and looking up. They use a boom lift, which always entails
reaching out with the arms. He is aware the plaintiff has pain in his shoulder
and neck when he has to reach up or look up, has to kneel, stretch out or engage
in heavy lifting. On cross-examination, however, he confirmed the plaintiff
does some work on the scissor lift and also on the extended boom.
[165] In
essence, he tries to accommodate the plaintiff as much as possible so that he
can avoid heavy lifting and to minimize tasks that strain his neck and
shoulders. Mr. Stoesz could not recall the plaintiff having any difficulty
with hammer drills and he has seen the plaintiff use them.
[166] [170][165] Mr. Stoesz
agreed the plaintiff is particularly good at the tricky bits of fabrication
and that fabrication skills are important contributions. He does not mind
delegating the measuring and fabrication aspect of the installation to the
plaintiff, but Mr. Stoesz noted that he sometimes feels tired from having
taken on most of the heavy work. As for his own production, Mr. Stoesz can
apply product at the top end of average and is much faster than the plaintiff.
[167] As for the
pace of their team work, Mr. Stoesz testified production levels were a
concern, below average, and that some time ago, though not recently, his
supervisor had criticized their production numbers.
[168] Asked on
cross-examination about a sheet-metal project they worked on in Cranbrook, Mr. Stoesz
confirmed that he, the plaintiff, and two other workers, worked on the project
in wintertime. It had taken a long time to complete, partly due to the weather.
He confirmed the plaintiff measured and fabricated the sheets and applied
parapet flashing. The metal was heavy-gauge. As they performed the work in
wintertime, they had to deal with heavy wind. It took three trips to Cranbrook
to complete the project.
[169] Asked on
cross-examination about how busy the company was, he stated it was much busier
in 2012; it had dropped off in 2013; increased again, but not to as high a level
in 2014; and since then, has dipped again. He thought the plaintiff should have
a raise.
[170] I found Mr. Stoesz
a credible witness.
.2
Mr. C. Rasmussen
[171] Mr. Colin
Rasmussen is the general manager of Western Roofing. He has been with the
company for 20 years. He explained most of the companys work is commercial.
The company has 50 employees, 12 of those are sheet-metal workers. He hired the
plaintiff after he replied to a company posting. He told him he had been
involved in a motor vehicle accident and had some physical limitations related
to his neck, shoulder, fatigue and with above shoulder level work. Mr. Rasmussen
stated he left it to the plaintiff to work in a safe manner. He testified the
plaintiff is excellent at prep work and ground work. He is aware that the
plaintiff has neck tenderness and finds it difficult to work overhead, lift
heavy weights, and that he fatigues. His limitations have been accommodated:
the foreman has adjusted his tasks; Mr. Rasmussen is respectful of his
more limited role. He is aware the plaintiff has to work more slowly and more
carefully than usual. He notes as well that he takes pride in his work. He also
noted that on days the plaintiff works as the installer, everything needs to be
set up in advance for the plaintiff, or else production slows considerably. He
notes the plaintiff asks for additional help if he thinks he requires it. This
occurs mostly if the work is above his head level. In that case, the tasks may
be switched.
[172] I found Mr. Rasmussen
to be a credible witness.
[173] I gleaned
from the evidence that the company cares about the well-being of employs,
particularly their safety. In the event of a slowdown, the owners try keep the
employees going until work picks up again.
[174] The
plaintiff confirmed he is very happy with the company and hopes to remain.
6
Discussion and findings on past
earning capacity
[175] For past
benefits and income lost, the plaintiff claims $176,780. This is based on the
calculations in Mr. Carsons report and on the difference between the
plaintiffs total reported earnings less his actual earnings plus benefits
estimated at 15% annually. The plaintiffs calculations incorporate earnings
for 2013 and seven months of 2014 that were not available to Mr. Carson.
Appendix 1, attached to Mr. Carsons report, sets out the hourly wage
rates paid to sheet-metal workers under current union agreements. They have
increased from $29.01 an hour in 2005 to $36.10 an hour in 2014. The rate in
2008 was $30.96; and since then, it has increased by roughly one dollar in each
successive year.
[176] Mr. Carsons
calculations do not account for a number of relevant considerations. I have
already discussed the plaintiffs layoff from Alpha-Duron in June 2009. As
discussed, although the plaintiffs poor production last week of May 2009 was
what drew Mr. Barones interest the accurate of the plaintiffs time
cards, it was his opinion on the time cards that ultimately that brought about
the layoff and nothing was going to change his mind on the matter. I have found
the plaintiff did not falsify his time cards, but that does not give any
impetus to what becomes too long a throw to the courts reaching of a conclusion
that but for his injuries he would have remained at Alpha-Duron, or found a
comparable position at the same rate of pay until he resumed work in his trade
in September 2011.
[177] Mr. Barone
spoke of a significant slow-down in the business leading into the last few
months before the Olympics and then following it. The plaintiff was not
replaced and hiring did not resume for several more months, until the summer of
2010. Meanwhile, the plaintiff looked for postings at the union hall. Leading
into the Olympics, there were a few names posted; after his layoff, twenty to
thirty names showed on the board. The plaintiff testified that after his layoff
from Alpha-Duron, right away he went looking for employment as a sheet-metal
worker and found a long line of other applicants. As we saw earlier, he
enlarged his search to non-union companies and placed a lot of calls.
[178] The
plaintiff testified that he found some positions, but was not hired because he
told them he could not perform overhead or heavy work.
[179] The
defendant criticizes this testimony because the plaintiff failed to document
any of those lost opportunities, which were important to his case. The
defendant submitted, as well, that were the plaintiff as desperate for work in
the sheet-metal trade as he stated in court, he would have tried a position to
see if it would work out, particularly after Karp Rehabilitation program had
proved so beneficial.
[180] Judges are
cautious about taking judicial notice of anything but the most notorious of
things. In this case, the effects of the 2008 financial crisis and the slump in
the local economy following the Olympics carry ample notoriety to take judicial
notice of and to give them some consideration when it comes to assessing the
plaintiffs with and without accident employment prospects.
[181] Were the
court to make the kind of wage-based calculation the plaintiff proposed, it
could not fairly assume the plaintiff would have earned union wages without the
Accident. The differential between union and non-union wages will not
necessarily be the same everywhere, and a non-union position may offer
financial advantages, such as reduced travel time, and so on. The plaintiffs
current hourly rate when he was hired at Western was roughly $7.00 less than
the 2013 union rate, he was due for a raise, and the plaintiff is very happy
with the company. Non pecuniary factors play a role in an actors decision
making. Adopting of fixed wages for without accident earnings is too
speculative.
[182] I find the
plaintiff is entitled to a pecuniary award spanning the time from his layoff
from Alpha-Duron in June 2009 and the trial date. The award is intended to
compensate for the plaintiffs past loss of earning capacity. The award is not
amenable to a fixed mathematical calculation based on full-time without
accident income and wage differentials between full-time union wages and actual
earnings because the plaintiffs actual earnings were influenced by factors
other than the plaintiffs injuries. Full time employment at maximum union
wages and benefits is an unduly speculative assumption, considering the
economic climate in late 2009/2010 and 2011; and accepted testimony on its
effects on the sheet-metal industry. That said, wages paid to journeyman
sheet-metal workers are proper considerations because they represent a part of
employment opportunities available to someone like the plaintiff. But it is
their availability to the plaintiff at the material times that is uncertain
speculative.
[183] The
factors supporting an award for past loss of earning capacity are these: the
plaintiffs injuries rendered him less capable overall from earning income from
his trade and other employments for which he was suited by training; he could
not perform all tasks expected of a journeyman, notably heavy lifting, overhead
work, and working for prolonged periods in some positions; and so he was not
able to take advantage of all job opportunities in his trade or other similar
opportunities that otherwise might have been available to him. Factors that
that detract from an award are those already canvassed.
[184] Considering
the totality of the evidence, including the plaintiffs record of employment
and earnings, his earnings credentials, his physical limitations, his actual
with-accident earnings, benefits, and the other factors I have examined, I
assess $80,000 for past loss of earnings capacity from the date of the Accident
to the date of trial. As requested by counsel, as the parties wish, they may address
any adjustments for tax in writing, sent to the Supreme Court Hearing Scheduler.
Loss of future
earning capacity
1
Plaintiffs position
[185] The
plaintiff submits he has proved he likely will continue to suffer diminished
income due to his injuries. He further submits that he is unlikely to find
another union-wage position and that his losses in that regard are high. He
points out that at the time of trial he earned $27 hourly at Western Roofing
and that when he left Alpha-Duron, his hourly wage was $31.23 hourly. The
plaintiff submits he likely will continue to retirement working at below union
wages, and at a wage perhaps less than he is currently earning at Western
Roofing. He points out that the difference in the union rate and his current
rate is $9.20 an hour, and works out to approximately $19,000 annually.
Assuming that he would continue to work in his trade to age 65, he submits the
wage differential works out to $352,523. Based on this earnings approach, see Steenblok
v. Funk, [1990] B.C.J. 1158 (C.A.) the plaintiff seeks an award of
$350,000.
[186] And, In addition to
this earnings-based loss, the plaintiff submits his injuries have curtailed his
productivity and competitiveness, and that there remains a strong likelihood he
consequently will continue to see diminished income in the future. He submits
he is at future risk that he will not have an employer so accommodating as
Western Roofing has been, and find no substitute. He finally submits that a
calculation of future loss based on the differential between union rates and
what he currently earns would not cover all of his losses. Accordingly, in
addition to an assessment of the worth of the loss of earning capacity based on
a quantification of loss of earnings, the plaintiff seeks an assessment based
on Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.) [Brown];
and Kwei v. Boisclair, [1991] B.C.J. No. 3344 (C.A.).
[187]
In Perren v. Lalari, 2010 BCCA 140, Garson J.A. discussed
alternative approaches to the assessment of the loss of earning capacity. At
para 32, she stated:
[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. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and
Romanchych. A plaintiff may indeed be able to prove that there is a
substantial possibility of a future loss of income despite having returned to
his or her usual employment. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.
[Emphasis in original.]
2
Defendants position
[188] The
defendants main points on this head of damages, in addition to those already
mentioned in these reasons are:
§
The history demonstrates that the plaintiff continues to improve
overall.
§
The plaintiff worked more difficult and heavier jobs, and more
that involved overhead work and managed to perform those.
§
He will continue to manage his residual symptoms and remain
functional as a sheet-metal worker as he has done to date.
§
He continues to improve globally.
§
He is performing well at Western Roofing and his foreman thought
him deserving of a raise.
§
He has pre-existing conditions and a previous aversion to heavy
work that discouraged him from doing heavy work in respect of the Accident.
§
The prognosis includes further symptomatic recovery.
§
An appropriate award is $20,000, with any amounts additional to be
attributable to flare-ups that may require the plaintiff to take time off.
3
Discussion and findings
[189] I
respectfully disagree with the way the plaintiff approached the assessment of
loss of earning capacity in this case. It is not appropriate, in my view, to
stack the assessment in the way that the plaintiff has done. This approach
results in an inflated amount that fails to allow for contingencies, both
negative and positive, both as regards realistic without-accident
possibilities and with-accident possibilities.
[190] In some
circumstances, it would be appropriate to calculate the present value of wage
differentials until retirement and to compensate for that. This is not a case
where the plaintiff had a long history of employment in a unionized company,
seniority and other factors present which produced a realistic possibility they
would have continued to be employed there until retirement. An award based on
the assumption the plaintiff would have worked to age 65 at union rates before the
Accident and after it at non-union rates until 65 is a twenty-two year
projection that tramples consideration of other realistic possibilities.
[191] In my
view, the approach in Brown is more serviceable in this case. It should be
noted the Brown approach does not preclude consideration of economic data, such
as the plaintiffs history of earnings, wage rates, demand for the workers in
the trade, and so on. This information leads to a more realistic assessment and
reduces the risk of over compensation or under compensation.
4
Conclusion loss of future earning
capacity
[192] I find:
§
The plaintiffs condition has gradually improved over-all until
more recently. He faces a decent chance he will see some further improvement. The
plaintiffs testimony at trial that he had experienced an increase in pain and
numbness and tingling recently does not prefigure a set change of course for
the worse. Further medical evidence would have to justify that conclusion.
§
The plaintiff will likely continue to have difficulty with heavy
lifting, over-head work, prolonged kneeling, crouching, having to assume
positions that require him to look up, and so on, as discussed in these
reasons. There is a realistic possibility he will experience flare-ups that may
require downtime, occasional days off, and physiotherapy appointments. While he
is likely to experience discomfort at work, through breaks, change of position,
change of task and use of anti-inflammatory medication, he generally will be
able to continue and complete the work, partly because has developed some pain
tolerance.
§
He will have to take extra care to avoid further injury by
avoiding heaving lifting, and taking other precautions noted by Dr. Dubec
and others.
§
Without the Accident, he was at some risk of his hemochromatosis
condition producing increased inflammation in the joints and hands, but this
was unlikely to be sufficiently disabling to require a change of career.
§
Before
the Accident, he experienced some soreness and stiffness after work. He avoided
heavy lifting whenever possible, but where required he could perform it.
§
His physical limitations render him less capable over all of earning
income as a journeyman sheet-metal worker because job opportunities will not be
available to him that require heavy lifting or place on him other physical
demands that for him would be unsafe.
§
He is likely to require some accommodations from prospective
employers that he did not require before he acquired his injuries. However, he
has developed an exceptional level of expertise in the measurement, layout and
fabrication of sheet metal, most notably for difficult and intricate
applications, which makes him more valuable as an employee and may permit him
to concentrate more on fabrication and to lessen his exposure to tasks that
aggravate his symptoms. He is less productive than he would have been without the
Accident, but this can be addressed in any situations by working with a
partner. Further, his fabrication expertise and attention to detail makes his
lower productivity less of an obstacle to earnings advancement than it might
otherwise have been. His productivity is not lower for all tasks.
§
The plaintiffs injuries have rendered him less valuable to
himself as a person capable of earning income in a competitive market. He may
find it difficult to find an accommodating employer should he lose his current
position. However, he is evidently well regarded at Western Roofing; he likes
the company. There is a strong possibility the company will continue to employ
him. The company is well established. There is a realistic possibility the
plaintiff will receive an increase in his hourly wage rate.
§
If the plaintiff loses his position, he will have to find work at
a company willing to make similar accommodations, restricting his opportunities.
§
The plaintiff has lost the ability to take advantage of all job
opportunities as a sheet-metal worker that might otherwise have been open to
him. On the other hand, the evidence shows he has worked as a sheet-metal
worker since 2011 without significant interruption.
§
The evidence does not indicate a realistic possibility the
plaintiff will experience deterioration at C5-6 beyond what he would have experienced
without the Accident.
§
With a healthy exercise routine there is a realistic possibility the
plaintiff can at least maintain his current level of function or somewhat improve
it. On the other hand, if the plaintiffs symptoms from his injury
significantly worsen, or if flare-ups become intense, he may have to work
reduced hours or find other employment.
[193] The
defendants proposed amount represents less than one-third of the plaintiffs
annual income and benefits. The plaintiffs proposed amount represents the
present value of 20 years of full time employment a union wages and benefits.
In my respectful view, neither of these sufficiently balances the various
negative and positive realistic possibilities the future may visit on the
plaintiff. Considering all the foregoing realistic possibilities, I assess the
plaintiffs loss of earning capacity at $200,000.
Cost
of future care
[194] I accept
the plaintiff may require additional physiotherapy when he experiences
significant flare-ups in his symptoms. These cost $60 to $80 per session.
Allowing that the plaintiff may require treatments about twice a year for a
five-year period, and over and above those he would have sought without the
Accident, I fix the amount at $2,000. I do not find ongoing sessions with a
kinesiologist necessary. The plaintiff knows his limitations and what triggers
symptoms. The physiotherapist can provide directions for safe exercise. Two or
three sessions with a kinesiologist would ensure the plaintiffs exercises will
improve his function and minimize the risk of injury. I do not find the need
for an ergonomic assessment has been proved. The plaintiff can pay the cost of
a gym. Need for a case manager is not made out. A vocational assessment and
counselling would be helpful if the plaintiff sees a need, or if circumstances
force it on him to leave his trade or find other work with in it. I note he had
career counselling after his injury and at that time had expressed interest in
an alternative career as a safety supervisor, or something similar for a
company. The plaintiff presents as a capable and intelligent person, and could
explore options on his own.
[195] As for
medications, the plaintiff uses Naproxen daily, now twice daily, and when his
symptoms spike, he occasionally uses Tylenol 3 for two or three days. This was
not costed out and the present values were not calculated. In my view, assuming
the plaintiff would have likely purchased some Naproxen, or something like it,
for aches and pains at work, I estimate $1,000 is a reasonable amount.
[196] Costs
follow the event in the ordinary way, subject to offers to settle that may
affect the amount.
Summary
of award
[197] In
summary, the plaintiff is awarded the following:
Non-Pecuniary | $90,000 |
Past | 80,000 |
Future | 200,000 |
Future | 0 |
Cost | 3,000 |
Special | 620 |
Total Awarded | $373,620 |
[198]
The plaintiff is entitled to costs at Scale B unless offers have
unsettled the usual order, in which case they may address costs in writing c/o
the Supreme Court Hearing Scheduler, New Westminster Registry.
N. Brown
J.