IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Herlehy v. Taylor, |
| 2015 BCSC 1323 |
Date: 20150729
Docket: 1140301
Registry:
Prince George
Between:
Brandon Herlehy
Plaintiff
And
Joyce Taylor and
Amy Taylor
Defendants
– and –
Docket: 1445613
Registry:
Prince George
Between:
Brandon Herlehy
Plaintiff
And
Tyler Mackenzie
and The Estate of Tyler Mackenzie
Defendants
Before:
The Honourable Mr. Justice Tindale
Reasons for Judgment
Counsel for the plaintiff: | K. Vicei & M. |
Counsel for the defendants: | D.W. Lindsay |
Place and Date of Trial: | Prince George, B.C. December 15, 16, 17, January 29 and 30, |
Place and Date of Judgment: | Prince George, B.C. July 29, 2015 |
INTRODUCTION
[1]
The plaintiff seeks damages as a result of injuries that he sustained in
two motor vehicle accidents, which occurred on December 25, 2009 and October 3,
2012. Specifically, the plaintiff is seeking damages for injuries to his right
hand, neck, back, and his knees.
[2]
The defendants have admitted liability for both accidents.
[3]
On December 25, 2009, the plaintiff was the driver of a 2007 Chrysler
2000 traveling northbound on the John Hart Highway near Telford Road in Prince
George, British Columbia. The southbound driver of a 2006 Chevy Equinox turned
left in front of the plaintiffs vehicle causing a near head-on collision. The
plaintiff was wearing a seatbelt at the time of the accident and his wife,
Stacey Herlehy, was a passenger in the vehicle. There was extensive damage to
the plaintiffs vehicle as a result of the collision.
[4]
On October 3, 2012, the plaintiff had stopped his vehicle at a red light
while traveling north on the John Hart Highway when he was rear-ended by
another vehicle.
THE EVIDENCE
The Plaintiff
[5]
The plaintiff is 31 years of age having been born on November 12, 1983.
He is married and has been working as a welder for Finning Canada
("Finning") since 2005. He is a high school graduate and has both his
C and B level tickets in welding.
[6]
Prior to the motor vehicle accidents, he enjoyed outdoor activities such
as hiking, camping, fishing, and snowboarding. He was also a competitive
fighter in mixed martial arts with his last fight being in August 2009.
[7]
When he was training as a mixed martial artist he would be in the gym
every day. He would train in boxing, wrestling, and jujitsu. He would also do
cardiovascular and weight training.
[8]
The plaintiff has had various injuries over the years as a result of his
recreational activities. He has had a broken nose as well as a damaged wrist.
In August 2009, he injured his shoulder. With regard to his wrist injury, an
orthopedic surgeon recommended that he have surgery on the wrist; however, that
did not occur.
[9]
The plaintiff testified he was injured after the first motor vehicle
accident on December 25, 2009. His hand and nose were bleeding. He hit his
knees on the dash of his car and his neck was sore. He was taken to the
hospital by his mother and brother-in-law. He complained about his hand, knees,
nose, neck, and back.
[10]
As a result of this accident, the plaintiff was off work until April 19,
2010.
[11]
The plaintiff testified he noticed that his neck and back tightened up
right away after the second motor vehicle accident on October 3, 2012.
[12]
The plaintiff attended at physiotherapy after the first motor vehicle
accident. He also did home exercises and attended at his chiropractor, Dr. Terrance
Warawa.
[13]
The plaintiff testified that currently his major complaints are his neck
and back pain as well as the difficulties that he is having with his knees.
[14]
The plaintiff said that work is difficult because he has to wear a
helmet when he is welding, which irritates his neck, and he is standing on
concrete most of the day, which causes pain in his back.
[15]
The plaintiff also testified that he no longer goes to the gym as he is
too tired after work. He has stopped training in mixed martial arts though he
coached for a short period of time.
[16]
The plaintiff testified that he has worked at Finning for approximately ten
years. Prior to the motor vehicle accidents, he worked in the hydraulic machine
shop. The plaintiff gave examples of welding jobs that he is expected to do. It
involves some heavy lifting, which he says he has difficulty with now. The
plaintiff also testified that he takes micro-breaks to be able to manage the
pain at work.
[17]
The plaintiff testified that prior to the motor vehicle accident of
December 25, 2009 he would work out of town on occasion doing truck builds.
This work involves staying at camps or in motels and working long hours. The
plaintiff said that he would help assemble large trucks for mining operations
during these truck builds. This would entail a lot of welding where he would
have to maintain one position for long periods of time.
[18]
The plaintiff testified that it was his plan to work at Finning until he
retired. He does not feel he can do another 30 years of this type of work. He
testified that his current rate of pay is $41.08 per hour and the average
workweek is 40 hours. At the time of the December 25, 2009 motor vehicle
accident, his hourly rate of pay was $35.80
[19]
The plaintiff testified that he recently went out of town for seven days
to do a truck build. He stated that he could feel it on his knees because of
the lifting. He testified that when he works out of town anything over eight
hours per day is considered double time.
[20]
The plaintiff testified that he earned the following income from 2006 to
2013:
2006 $87,047
2007 $79,104
2008 $36,125
2009 $63,143
2010 $77,919
2011 $84,031
2012 $95,110
2013 $108,341
[21]
The plaintiff testified that his income was low in 2008 because he was
laid off that year due to a shortage of work.
[22]
The plaintiff testified that a typical day for him now starts at 5:30
AM. He will take a shower and stretch to alleviate his neck and back pain. Then
he eats breakfast and goes to work for 7:30 AM. He will work until 4 PM. His
employer does not allow employees to have drugs or alcohol at work so he does
not take any pain medication. When he comes home he will take an
anti-inflammatory medication, have a shower and put a heating pad on his lower
back. He says he does not do much of anything until it is time to go to bed.
[23]
The plaintiff testified that he does not believe he will finish his
career with Finning because of his pain. He has considered an alternate career
as either a mechanical engineer or a mechanical engineering technologist. For
that he will need to do upgrading. His plan is to attend at the British Columbia
Institute of Technology. The plaintiff testified that his marks in high school
were not very good.
[24]
The plaintiff testified that he and his wife plan to have children.
Their plan was to have children by the time they were 30. That has been placed on
hold because of his injuries.
[25]
The plaintiff agreed on cross-examination that he needs to upgrade in English
and Chemistry before he could pursue a career in engineering.
[26]
The plaintiff agreed on cross-examination that from March 20, 2009 until
December 23, 2009 he worked on average 69.6 hours per two week pay period. He
also agreed that during this same time period he worked 6.5 hours of overtime.
[27]
The plaintiff agreed on cross-examination that from April 30, 2010 until
the end of 2010 he worked on average 76.9 hours per two week pay period, which
included 7.3 hours of overtime. The plaintiff testified that he would work the
hours available to him, subject to his personal plans.
[28]
The plaintiff also agreed on cross-examination that in 2011 he worked on
average 83.1 hours per two week pay period, which included 7.2 hours of
overtime. I will note that not all of the pay stubs for that year were provided
by the plaintiff.
[29]
The plaintiff agreed on cross-examination that in 2012 he worked on
average 84.3 hours per two week pay period, which included 7.9 hours of
overtime.
[30]
The plaintiff agreed on cross-examination that in 2013 he worked on
average 85.4 hours per two week pay period, which included 12.8 hours of
overtime. During this year the plaintiff was also working doing truck builds
out of town.
[31]
The plaintiff agreed that from 2009 through 2013 he did not work 80
regular hours per two week pay period.
[32]
The plaintiff agreed that he saw Dr. Catherine Paramonoff in July 2013
and that he told her that he was not able at that time to return to out of town
work. He also agreed that in July 2013 he went to work at the Red Chris mine,
which is out of town.
[33]
The plaintiff agreed that Dr. Paramonoff had recommended that he visit a
physiotherapist specializing in lumbosacral dysfunction. He also agreed that he
has not done this. The plaintiff did say that he has done the exercises
suggested by the doctor. He agreed that Dr. Paramonoff had suggested that he
would be better able to tolerate activities if he followed her recommendations.
[34]
The plaintiff also agreed that Dr. Paramonoff, Dr. Michael Piper and Dr.
Gerard Mckenzie recommended that he decrease his attendances with his
chiropractor.
[35]
The plaintiff testified that he applied for a service supervisor
position with Finning. He thought that job paid between $75,000 and $100,000.
He agreed that the alternate career path that he was looking into would likely
pay him less than he is making now.
[36]
The plaintiff also agreed that in the motor vehicle accident of December
25, 2009 his wife was also injured. He agreed that as a result of that accident
she has limitations as to what recreational activities she can do and he agreed
that he normally did most of his recreational activities with his wife.
[37]
The plaintiff testified that he does not have a set plan as to what he
will do in the future for a job. He testified that, if he has the financial
ability, he will upgrade his education.
[38]
The plaintiff agreed on cross-examination that he suffered from the
following injuries prior to the motor vehicle accidents:
July 25, 2006 left bicep
contusion
September 8, 2006 right shoulder
injury
July 19, 2007 torn ligament in
right knee
October 29, 2007 left wrist pain
[39]
The plaintiff was referred by Dr. Janet Ames to Dr. Roger Purnell on
February 6, 2008 for his left wrist injury. Dr. Purnell recommended surgery on
the left wrist; however, that did not occur.
[40]
The plaintiff agreed on cross-examination that when he saw his family
doctor, Dr. Denise McLeod, on June 1, 2010 his only physical complaints as a
result of the motor vehicle accident of December 25, 2009 were his hand and his
knee.
[41]
The plaintiff did complain about neck problems to Dr. McLeod on July 19,
2010 though he did not mention any back problems.
[42]
The plaintiff agreed that the second motor vehicle accident aggravated
his existing symptoms for two to four weeks though he did not receive any new
injuries as a result of that accident.
[43]
The plaintiff testified that initially he had neck pain on his right
side; however, at some point between the years 2012 and 2013 the pain moved to the
left side of his neck.
[44]
The plaintiff agreed on cross-examination that he was paid short-term
disability benefits while he was off work because of the December 25, 2009
motor vehicle accident. He agreed that he received 600 hours of short-term
disability benefits, which amounted to $12,888. This is confirmed in Exhibit 13
A tab B at page 55.
Kim Pederson
[45]
Kim Pederson is a service supervisor for Finning. He has worked for
Finning for ten years and has been a supervisor for three years. He has
supervised the plaintiff for approximately one year.
[46]
Mr. Pederson supervises anywhere from eight to nine men and testified
that the plaintiff is fourth or fifth on the seniority ladder.
[47]
Mr. Pederson testified that the plaintiff has great skill and ability.
When determining who will do a particular job, seniority is always a factor but
he also considers the skill and ability of the person assigned to the job.
[48]
Mr. Pederson is aware that the plaintiff struggles and has hip and lower
back problems. He has observed the plaintiff spending a lot of time stretching
at work. He recently assigned the plaintiff to be the lead hand on a truck
build. Mr. Pederson is of the opinion that the plaintiff has the potential to
be a great leader.
Bradley Comozzi
[49]
Bradley Comozzi has been a welder since 1995 and is 44 years of age. He
has worked for Finning for ten years. He testified the work decreased in Prince
George in 2008 so he went to the Finning shop in Fort McMurray. He was there
until the summer of 2011.
[50]
Mr. Comozzi testified that welding is positional work, which requires lifting
objects that are 50 to 60 pounds. For heavier objects they typically use a
crane. However, if he is working in the field it is often more physical because
they might not have a crane available.
[51]
Mr. Comozzi has worked on truck builds steadily since 2006 at various
mine sites. When doing those types of jobs, he said he typically works four to five
hours of overtime a day.
[52]
Mr. Comozzi testified that in 2012 he earned $176,422.71. However, he
was working out of town doing truck builds for the entire year. In 2013, he
earned $133,894.52 and worked out of town on three occasions.
[53]
In addition to the years 2012 and 2013, Mr. Comozzi testified that he
earned the following income for the years 2008 to 2011:
2008
$85,580.19
2009
$117,693.11
2010
$103,518.55
2011
$81,361.59
[54]
Mr. Comozzi testified that he has always worked 40 hours per week plus
overtime, which he always accepts.
Walter Moar
[55]
Walter Moar is 63 years of age and started working as a welder in 1973.
He has worked at Finning continuously since 1994. He testified Finning became
involved in doing truck builds at mine sites in 2005.
[56]
Mr. Moar testified that working outside in the winter is severe on the
body. Also truck builds require heavy lifting and a lot of hammering.
[57]
Mr. Moar testified that for the years 2008 to 2013 he earned the
following income with Finning:
2008
$90,472.31
2009
$76,624.83
2010
$130,556.51
2011
$135,532.40
2012
$132,692.39
2013
$115,279.33
[58]
Mr. Moar also testified that if his banked overtime hours were
calculated into his 2010 income he would have earned approximately $178,000.
Mr. Moar did not have any documentation to specifically support the exact
number of overtime hours that he would have banked in 2010.
[59]
Mr. Moar also testified that there was a slowdown at work in 2008;
however, because of his seniority he was able to work full-time hours.
Glen Gutkowski
[60]
Glen Gutkowski has worked as a machinist since 1982 and has been
employed by Finning since 1985. He has worked at Finnings Prince George shop
since 2006.
[61]
Mr. Gutkowski was aware that the plaintiff was off work in 2009 until
sometime in 2010. He worked approximately ten feet away from the plaintiffs
working area and was able to observe him. He noted that upon returning to work
in 2010 the plaintiff spent more time taking breaks. He testified that the
plaintiff would stop and stretch every ten to fifteen minutes.
[62]
Mr. Gutkowski also observed that the plaintiff would use a crane more
often to pick up heavier items after the motor vehicle accidents. He also noted
that the plaintiff would take his helmet off every ten to fifteen minutes.
[63]
On cross-examination, Mr. Gutkowski testified that he did not think
anybody was working 40 hours a week prior to the plaintiff having his motor
vehicle accident in 2009.
Brent Matijevic
[64]
Brent Matijevic has been a welder since 2004. He is married with two
children. He started working with Finning in 2011 and transferred to Prince
George in 2012.
[65]
Mr. Matijevic testified that he earned $115,888.19 in 2013. Exhibit 9 is
a pay statement for Mr. Matijavic dated December 20, 2013 that shows that he
had 314 hours of banked overtime.
[66]
Mr. Matijevic also testified that in December 2014 he worked on a truck
build with the plaintiff. The plaintiff was the lead hand. He testified that he
helped the plaintiff a bit. He stated that they were working anywhere from 12
to 14 hours a day. He said that they would use a portable welder known as a
suitcase welder, which weighed anywhere from 50 to 75 pounds.
Wilfred Racher
[67]
Wilfred Racher is the welding supervisor at Finning. His responsibility
is shop safety in the welding shop and he currently supervises the plaintiff.
He also makes scheduling decisions for the plaintiff and the other welders in
the shop including who works overtime.
[68]
Mr. Racher met the plaintiff approximately ten years ago and was
involved in hiring the plaintiff. He testified that the plaintiff was laid off
in 2008 and then rehired once it became busier.
[69]
Mr. Racher is aware that the plaintiff has back issues. He said that he
has a consultation with the plaintiff before the plaintiff begins a job to
ensure that he can handle it. For instance, he testified that a D-11 blade came
into their shop for repairs, which required four people to work on it. Once the
blade was in the shop it became apparent that it would be awkward to work on it
so the plaintiff did not work on that particular job.
[70]
Mr. Racher testified that from 2010 up until the middle of 2014 the
volume of work at Finning had been fantastic. However, more recently the work
has declined.
[71]
Mr. Racher testified that the plaintiff is a highly-skilled welder. He
said that the quantity and quality of the plaintiff’s work is high. He also
said that historically the plaintiff would have worked 100 to 200 hours of
overtime a year.
[72]
Mr. Racher testified that there are accommodations made for the
plaintiff at work; however, he also testified that other employees are given
accommodations as well. He testified that all welders are encouraged to take
micro-breaks during the day as welding is hard on their bodies.
[73]
Mr. Racher testified that he has sent three welders to other branches
since the work has tapered off.
Stacey Herlehy
[74]
Stacey Herlehy met the plaintiff in 1999 and they were married in 2005.
She described the plaintiff as having a good group of friends who were all into
sports such as skateboarding, snowboarding, and martial arts.
[75]
Mrs. Herlehy described the plaintiff as being well-liked by his friends.
She also described that the plaintiff and her were very active and they did
most of their outdoor activities together.
[76]
Mrs. Herlehy testified that she and the plaintiff are goal-oriented and
they wanted to have children by the time they were 30 years of age. Part of
their family planning was to have a bigger house and have their debts paid off.
She stated that the plan has changed given that they are not sure if the
plaintiff will stay at his job much longer.
[77]
Mrs. Herlehy testified that the plaintiff is constantly complaining
about his back and neck. When he comes home from work he sits on the couch with
a heating pad and he does not have the energy to participate in recreational
activities. She also testified that the plaintiff is very negative. She has
asked him to speak to a doctor about this.
[78]
Mrs. Herlehy testified that she looked into an engineering program for
the plaintiff and that he would need to take at least three courses to update
himself before he applied to the program.
[79]
On cross-examination, Mrs. Herlehy could not recall whether the
plaintiff was working less than 40 hours per week before the motor vehicle
accident in 2009 nor could she recall if his overtime hours have increased
since he went back to work in 2010.
[80]
Mrs. Herlehy agreed that since the motor vehicle accident in 2009 (which
she was also injured in) she has not returned to some of her recreational
activities.
[81]
Mrs. Herlehy could not remember whether the plaintiff had any aches or
pains prior to the first motor vehicle accident. She also did not recall him
hurting his wrist in 2007 or that it was recommended that he have surgery on
that wrist. Finally, she did not recall that in August 2009 the plaintiff was
injured in his last mixed martial arts fight and that the fight was stopped
because of that injury.
EXPERT WITNESSES
Dr. Paramonoff
[82]
Dr. Catherine Paramonoff is a specialist in physical medicine and rehabilitation.
She examined the plaintiff and provided a medicolegal report dated July 3,
2013. In that report, Dr. Paramonoff made the following diagnoses for the
plaintiff as a result of the motor vehicle accidents:
a. Neck pain: likely with contribution from
musculoligamentous sources at the cervical spine, resulting in unmasking of
pre-existing asymptomatic degenerative changes, and with some contribution from
muscle imbalance/deconditioning.
b. Intermittent headache: likely with contribution from
cervicogenic sources, including muscle tension.
c. Intermittent back pain: likely multifactorial, with
contribution from musculoligamentous sources of the lumbosacral spine and that
the sacroiliac regions; including likely some unmasking of pre-existing
asymptomatic degenerative changes at the lumbosacral spine, and further
unmasking the pre-existing intermittent sacroiliac symptoms; and with
contribution from muscle imbalance/deconditioning.
d. Knee pain: likely largely with contribution from
patellofemoral symptoms, including from muscle imbalance/deconditioning; maybe
unmasking of degenerative changes at the knees further imaging recommended
for assessment.
e. Mood symptoms: I will defer to
Psychiatry and/or Psychology for further assessment and commentary in this
regard.
[83]
Dr. Paramonoff at page 11 of her report stated the following:
It is my opinion that confounding
factors are likely also contributing to the ongoing (chronic) musculoskeletal
pain presentation, with the confounding factors largely consisting of the
described mood symptoms, with onset since MVA 1. I will defer for further
assessment and commentary to Psychology and/or Psychiatry, however, I will note
that it is important for such confounding factors to be optimally managed, as
they can have a negative effect on a persons experience of pain, thereby
acting as aggravating and perpetuating factors to a chronic pain presentation.
[84]
Dr. Paramonoff further opined to the following prognosis for the
plaintiff at page 13:
It is my opinion that Mr. Herlehy
will need to adapt how he does some activities due to his symptoms, and will
need to avoid other activities, based on his residual symptoms; for example,
avoiding prolonged static positions of the neck, loaded twisting of the back,
and loaded activities with knees bent. Once he has built up the recommended
exercises, which will likely take an estimated 9 months to 1 year to obtain
optimal benefit, and hence reflect his long-term baseline of residual symptoms,
he will likely have better tolerance of his activities, but is unlikely to have
complete resolution and therefore unlikely to have eliminated all adaptations;
a Functional Capacity Evaluation at that time would be of benefit to determine
residual functional limitations.
[85]
Dr. Paramonoff recommended that the plaintiff visit with a
physiotherapist specializing in lumbosacral dysfunction, that he continue with
the augmented exercise program ideally building up to five days per week one
hour each time and he may benefit from a referral to a specialist regarding
localized injections. She also recommended that the plaintiff be referred to
psychology for assessment and recommendations regarding his mood symptoms.
[86]
Dr. Paramonoff clarified that the term unmasking refers to injuries
that result in pre-existing asymptomatic degenerative changes becoming
symptomatic.
[87]
Dr. Paramonoff agreed that in coming to her opinion she relied on both
the records provided to her and the history that she took from the plaintiff.
Dr. Paramonoff agreed that she was aware that the plaintiff had pre-existing
complaints with regard to his neck. However, she testified that she was not
aware of any complaints in that area by the plaintiff in the six months leading
up to the motor vehicle accident of December 25, 2009.
[88]
Dr. Paramonoff also agreed that the plaintiff had some problems with his
back prior to the motor vehicle accidents. She agreed that the plaintiff did
not suffer any new injuries as a result of the second motor vehicle accident of
October 3, 2012 and, in fact, the plaintiff would have only suffered a
temporary aggravation for approximately two weeks.
[89]
Dr. Paramonoff agreed that she did not go through the clinical records
with the plaintiff. She agreed on cross-examination that if the plaintiff saw his
chiropractor Dr. Warawa less after the motor vehicle accidents than before them
it would follow that he was experiencing fewer symptoms.
[90]
Dr. Paramonoff agreed that if the plaintiff does not follow her
recommendations for exercise and treatment, his symptoms will stay the same or
could potentially become worse. She agreed exercise will allow the plaintiff to
better tolerate his activities and that he should reduce his reliance on
passive treatment such as attending at the chiropractor.
Dr. McKenzie
[91]
Dr. Gerard McKenzie is an orthopedic surgeon who is a specialist in
orthopedic and soft tissue injuries. He provided three medicolegal reports
dated May 24, 2012, October 24, 2013, and September 9, 2014.
[92]
Dr. McKenzie, in his report dated May 24, 2012, in diagnosing the
plaintiff’s injuries opined that the plaintiff had bilateral patellofemoral
pain in his knees. He further opined that with regard to the knee injury the
prognosis was poor. However, he was of the opinion that the plaintiff was not
at increased risk for developing osteoarthritis. He did, however, opine that
activities that involve loading the patellofemoral joint would be affected.
[93]
Dr. McKenzie further opined that the plaintiff had pre-existing
asymptomatic degenerative changes in his neck that became symptomatic after the
first motor vehicle accident. He did not recommend any invasive treatment for
this condition. He did recommend modifying his activities such as wearing a
lighter helmet or avoiding that activity altogether.
[94]
Dr. McKenzie further noted that the plaintiff had low back pain. He
recommended an MRI; however, he stated that if the MRI was abnormal he would
have no idea whether or not it was from his previous level of activity such as
heavy weightlifting and his heavy work or whether it was from his accident. Dr.
McKenzie did opine that because the plaintiff was asymptomatic prior to the
accidents the low back pain was caused by the accidents.
[95]
Dr. McKenzie in his report dated October 24, 2013 reviewed an MRI that
the plaintiff had done on his cervical spine on May 15, 2013:
In essence, it shows some multilevel degenerative changes
from C3/4 down to C6/7. They apparently are "substantially more
advanced" than would be seen in a patient of this age. In my opinion that
is likely due to his very heavy work that he does wearing a welding helmet and
also due to his mixed martial arts career. As I indicated in my previous
report, pre-existing but asymptomatic degenerative changes do not have any
predictive value for future neck pain. This is also consistent with the
previous CT scanned he had on his neck showing some degenerative changes at
C4/5 and C6/7.
[96]
Dr. McKenzie also reviewed a letter from the plaintiffs chiropractor,
Dr. Warawa, confirming that the plaintiff did have some symptoms in his lower
back prior to the motor vehicle accidents. As a result of that information, Dr.
McKenzie modified his opinion and now opines that the motor vehicle accidents
aggravated a pre-existing condition in his back.
[97]
Dr. McKenzie also commented on Dr. Pipers report of January 10, 2013.
Dr. McKenzie generally agreed with Dr. Pipers conclusions and opinions except Dr.
McKenzie did not believe an aggressive therapy program would be useful for the
plaintiff. Dr. McKenzie also did not agree with Dr. Piper that the plaintiff’s
symptoms would gradually resolve over time.
[98]
Dr. McKenzie in his report of September 9, 2014 commented on an MRI
Arthrogram that the plaintiff had on his hip. The MRI Arthrogram was suggestive
that the plaintiff may have a tiny focal tear in his labrum.
[99]
Dr. McKenzie commented, because the plaintiff was extremely active from
an exercise point of view, he may have had a pre-existing but asymptomatic
labral tear.
[100] On
cross-examination, despite the fact that the plaintiff made little or no
mention to his family doctor about neck and back complaints for almost two
years, Dr. McKenzie was still of the opinion that the plaintiff has ongoing
neck and back problems.
[101] Dr.
McKenzie did, however, say that his opinion with regard to the neck would
change if it became clear that the plaintiff had pre-existing neck pain. In
that regard, Dr. McKenzie said if the plaintiff had significant pre-existing
neck pain then his opinion would change to reflect that the motor vehicle
accident aggravated the pain. He did agree that the plaintiffs work and mixed
martial arts training could also be aggravating factors for the pain.
[102] Dr.
McKenzie opined that, with regard to the pre-existing degenerative changes in
the plaintiffs neck, he may have developed pain in any event by the time he
was 50 or 55 years of age.
[103] As noted
above, Dr. McKenzie did not agree with Dr. Pipers recommendation that the
plaintiff should engage in an aggressive exercise program. Dr. McKenzie said he
did not think such a program would help because the plaintiff knew a lot about
exercising and he tried it and it hurt too much. I will note that Dr.
McKenzies opinion in this regard is also in disagreement with that of Dr.
Paramonoff.
[104] On
cross-examination, Dr. McKenzie said that he did not find any indication of a
hip problem when he examined the plaintiff and he would not have ordered an MRI
Arthrogram for the hip.
Dr. Warawa
[105] Dr.
Terrance Warawa is the plaintiffs chiropractor and was tendered as an expert
in chiropractic medicine. He provided a report dated August 23, 2012. In that
report, it is noted that the plaintiff attended at his office on January 22,
2010 complaining of neck and lower back pain and stiffness. The plaintiff also
complained of headaches and mentioned that his knees and right hand were in
pain.
[106] Dr. Warawa
opined that the plaintiff was suffering from a post-traumatic cervical,
thoracic, and sacroiliac strain/sprain type of injury.
[107] Dr. Warawa
testified that prior to the motor vehicle accident, the plaintiff would come in
on occasion for a couple of treatments to remedy specific complaints.
[108] Dr. Warawa
on cross-examination agreed that prior to the motor vehicle accident the
plaintiff was suffering generally from neck and low back complaints.
[109] Dr. Warawa
testified that he saw the plaintiff weekly from January 2010 until
approximately April 13, 2010. He noted that the plaintiff returned to work on
April 19, 2010. From May through July 2010, he saw the plaintiff once every two
weeks and did not see him from July 7 until August 7, 2010. In September 2010, Dr.
Warawa saw the plaintiff on a weekly basis; however, he did not see him at all in
October 2010. He saw the plaintiff on one occasion in November 2010 and his
next visit was on March 16, 2011.
[110] Dr. Warawa
currently sees the plaintiff approximately once every two weeks.
Christiane Clark
[111] Ms. Clark
was qualified as an expert economist capable of giving opinion evidence on the
calculations of earnings and non-wage benefits. Ms. Clark provided a report
dated September 18, 2014.
[112]
Ms. Clark was retained by the plaintiff and asked to provide the
following estimates of future earnings:
1. Estimates
of future earnings of journeyman welders with Finning, based on potential
annual earnings of $125,000, from the trial date to Mr. Herlehys age 65 or 68;
2. Estimates
of future earnings with Finning of about $102,000 annually from the trial date
to August 31, 2015, followed by estimates of future earnings for mechanical
engineers in BC from July 1, 2021 to Mr. Herlehys age 68;
3. Estimates
of future earnings with Finning of about $102,000 annually from the trial date
to August 31, 2015, followed by estimates of future earnings for mechanical
engineering technologists in BC from July 1, 2018 to Mr. Herlehys age 68;
4.
Income multipliers that can be used to calculate the present value of
any earning capacity the Court may determine.
[113] Ms. Clark
opined that if the plaintiff left Finning on August 31, 2015 and was earning
approximately $102,000 annually and was out of the labour force from September
1, 2015 to mid-2018 training as a mechanical engineering technologist and then
returned to the labour force as a mechanical engineering technologist until age
65 the plaintiffs future loss of earnings and benefits would be $1,412,100.
[114] Ms. Clark
agreed on cross-examination that she had never met the plaintiff and was not
commenting on the reasonableness of the plaintiffs proposal to retrain in the
field of engineering.
[115] Ms. Clark
also testified that she used the figure of $125,000 as potential earnings for
the plaintiff because that was the number she was supplied by the plaintiff.
[116] Ms. Clark
agreed that the statistical average income for a welder is $66,000 per year. She
agreed that the plaintiff was earning income in the ninth decile for welders
even after the motor vehicle accidents. It was put to Ms. Clark that in her
calculations she should be using average earning figures for engineers who are
in the ninth decile. Ms. Clark stated that he could earn in excess of the
average.
[117] Ms. Clark
did not know what the average retirement age was for a welder; however, she did
say that in British Columbia the average retirement age of a male is 64.
[118] That was
the case for the plaintiff.
Dr. Piper
[119] The
defendants called one witness, Dr. Michael Piper. He is an orthopedic surgeon
and an expert in orthopedic medicine. Dr. Piper provided two medicolegal
reports dated January 10, 2013 and May 29, 2013.
[120] In his
report of January 10, 2013, Dr. Piper opined that the plaintiff probably sustained
musculoligamentous injuries to the cervical and lumbar spine as a result of the
motor vehicle accidents. He noted that presently the plaintiffs cervical spine
showed no clinical evidence of any significant abnormality although the
plaintiffs lumbar spine did show evidence of continuing paravertebral muscle
spasm.
[121] Dr. Piper
went on to opine that the plaintiff may have a mild to moderate degree of
continuing discomfort from posttraumatic patellar chondromalacia in his knees. Based
on the fact that the plaintiff had been working steadily since mid-2010, Dr.
Piper also opined that the plaintiff was not terribly disabled.
[122] Dr. Piper
recommended that the plaintiff should not continue with passive treatments such
as chiropractic. Dr. Piper believed that the plaintiff should become involved
in a very aggressive rehabilitation program directed specifically to his low
back. Dr. Piper recommended that the plaintiff be taught core strengthening
exercises and hamstring stretching exercises to help relieve the strain on his
low back. Dr. Piper also recommended that a weight-loss program as well as a
continuing quadriceps strengthening program may be beneficial to his knees.
[123]
In his report dated May 29, 2013, Dr. Piper commented on Dr. McKenzie’s
May 24, 2012 report:
The only difference really with regards to our assessment is
with regards to the prognosis. I personally continue to believe that if this
man were to be involved in core strengthening exercises and hamstring
stretching exercises his low back symptoms would improve significantly.
He is at the present time
"working out" only once a day. I don’t personally believe there is
any indication for his continuing chiropractic involvement.
[124] On
cross-examination, Dr. Piper agreed that the plaintiff had a muscle spasm in
his lumbar region. Dr. Piper also stated that the muscle spasm was related to
the motor vehicle accidents and likely as a result of a soft tissue injury.
[125] Dr. Piper also
agreed on cross-examination that the plaintiffs activities such as kneeling,
squatting, and climbing ladders would aggravate the plaintiffs pain in his
knees.
[126] Dr. Piper
agreed that it was possible that the plaintiffs knee condition combined with
regular heavy work could worsen over time.
NOTICE TO ADMIT
[127]
Pursuant to a notice to admit dated November 26, 2014, which has been
marked as Exhibit 13 A, the plaintiff has admitted the following facts:
1. The Plaintiff was involved in a motor vehicle accident on
December 25, 2009 (the first accident).
2. The plaintiff was involved in a motor vehicle accident on
October 3, 2012 (the second accident).
3. After the first accident, the Plaintiff received
physiotherapy treatment by David Fleming at Accelerated Sport & Spine
Physiotherapy.
4. The Plaintiff attended a total of 16 physiotherapy
sessions between January 21, 2010 and May 31, 2010.
8. The Plaintiff did not attend any further physiotherapy
visits after the first accident and did not attend any physiotherapy visits
after the second accident.
9. The Plaintiff injured his wrist in or about June 2007.
11. On or about October 9, 2008, the Plaintiff told Dr.
Purnell, orthopedic specialist, that he wanted to proceed with surgery on his
left wrist
12. The Plaintiff never had surgery on his left wrist.
13. The Plaintiff saw a chiropractor, Dr. Warawa, on
occasion, prior to the first accident.
14. Prior to the first accident the Plaintiff had occasional
thoracic and lumbar/sacroiliac discomfort that was treated by Dr. Warawa.
15. Prior to the first accident,
Dr. Warawa treated the Plaintiff for last sacroiliac and cervico-thoracic
complaints.
DISCUSSION
Non-Pecuniary Damages
[128] The
plaintiff argues that prior to the December 25, 2009 motor vehicle accident he
was a very active, fit young man who trained intensely five to six days per
week. He fought in a mixed martial arts fight in August 2009 and passed a
medical examination for that purpose. He used to enjoy hiking, fishing, camping,
and snowboarding.
[129] The
plaintiff relies on the decision of Sekihara v. Gill, 2013 BCSC 1387,
and Shipley v. Bye, 2014 BCSC 201, in assessing non-pecuniary damages. Both
cases considered sport-oriented plaintiffs. In Sekihara, the plaintiff
was awarded $130,000 for non-pecuniary damages. The plaintiff argues that the
facts of this case are very similar to the case at bar. In Shipley, the
plaintiff was awarded $85,000 for non-pecuniary damages.
[130] The
plaintiff argues that after consideration of the factors for assessing
non-pecuniary damages as set out in Stapley v. Hejslet, 2006 BCCA 34 at
para. 46, this Court should make an award of $130,000. The inexhaustive list of
factors cited in Stapley can be summarized as follows:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering;
(f) loss or impairment of life;
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiffs stoicism (as a
factor that should not, generally speaking, penalize the plaintiff).
[131] The
defendants argue that the plaintiff sustained a soft tissue injury to his neck,
low back, and knees that required very little medical attention. The defendants
point to the fact that the plaintiff had degenerative changes in his cervical
spine that were more advanced than would be expected for somebody his age.
[132] The
defendants also argue that the plaintiff had low back issues prior to the motor
vehicle accidents. The defendants argue that the plaintiff has not met the onus
of establishing that his current complaints were caused by the motor vehicle
accidents.
[133] The
defendants further argue that, based on the evidence of both Dr. Piper and Dr.
Paramonoff, the plaintiff has not followed treatment advice. The defendant says
that the plaintiff has therefore failed to mitigate his loss and his damage
award should be reduced by 15%.
[134] The
defendants further argue that the plaintiff has remained active and continues
to do his regular household chores with the exception of some heavy work and he
continues to camp, fish, hunt, and hike
albeit at a reduced level.
[135] The
defendants also argue that, given the plaintiffs pre-existing degenerative
changes in his cervical spine and back, there should also be a 30% reduction to
ensure that the defendants are only liable for injuries that they caused.
[136] The
defendants also argue that there is no evidence from Dr. McLeod who is the
plaintiffs general practitioner. They ask this Court to draw an adverse
inference from Dr. McLeod’s failure to provide any evidence on this trial.
[137] The
defendants say the appropriate range for non-pecuniary damages is $50,000 to $60,000.
[138] The
defendants rely on the following cases: Bancroft-Wilson v. Murphy, 2008
BCSC 1035, affd 2009 BCCA 195; Strazza v. Ryder, 2012 BCSC 1693; Graydon
v. Harris, 2013 BCSC 182, affd 2014 BCCA 412; Bulpitt v. Muirhead,
2014 BCSC 678; Benson v. Day, 2014 BCSC 2224; and Crane v. Balmforth,
2014 BCSC 1899.
[139]
In Bulpitt at paras. 77-78, Mr. Justice G.C. Weatherill
summarized the law on causation of injuries:
[77] The "but for" test is the general test
for factual causation: the plaintiff must prove on a balance of probabilities
that but for the defendants negligence, he would not have suffered his injury.
The defendants negligence must have been a necessary cause of injury. This
test was most recently summarized and affirmed by the Supreme Court of Canada
in Clements (Litigation Guardian of) v. Clement, 2012 SCC 32 (S.C.C.) at
paras. 8-10 (see also Ediger (Guardian ad litem of) v. Johnston, 2013
SCC 18 (S.C.C.) at paras. 28-29).
[78] The classic statement
of the law of causation by Mr. Justice Sopinka in Snell v. Farrell,
[1990] 2 S.C.R. 311 (S.C.C.) 328 is that causation need not be determined by
scientific precision. It is a practical question of fact that can be answered
by ordinary common sense.
[140] I found
the plaintiff to be an honest witness though at times he was not the best
historian in terms of the progression of his injuries. However, he complains of
neck, back, and knee issues since the motor vehicle accident December 25, 2009
and he is candid in saying that the motor vehicle accident of October 3, 2012
only affected him for a couple of weeks.
[141] The
plaintiff was off work from December 2009 until April 2010. Up until August
2009, he was a competitive mixed martial artist who was very fit and dedicated
to his sport.
[142] He has
largely returned to his previous activities except for his training associated
with mixed martial arts. He does have to take numerous breaks at work during
the day and his wife testified that he has little energy after work.
[143] Doctors
Paramonoff, Mackenzie, and Piper all opined that the plaintiffs injuries were
as a result of the December 25, 2009 motor vehicle accident. Dr. McKenzie did
opine that the plaintiffs back injury was pre-existing, however, that it was
aggravated by the December 25, 2009 motor vehicle accident. Dr. Paramonoff
conceded that the plaintiff had neck symptoms prior to the accident, however,
in her view there is no evidence that they occurred within six months of the
accident and as such she did not feel they were symptomatic. Dr. Piper found no
clinical evidence of any significant abnormality of the plaintiffs cervical
spine.
[144] While I
have considered the fact that the plaintiff had degenerative changes in his
neck, the evidence does not establish that the plaintiff was having ongoing
regular pain prior to the December 25, 2009 motor vehicle accident. Dr. Warawa
describe the plaintiff as a "fixer" prior to the accidents meaning
the plaintiff would come in with a minor problem that would require a couple of
treatments to resolve. Dr. Warawa described the plaintiff as being in the
maintenance category of patients after the motor vehicle accidents meaning that
he required regular treatments. Dr. McKenzie testified that degenerative
changes are not predictive of future pain.
[145] I find
that the motor vehicle accident of December 25, 2009 caused the plaintiffs
injuries involving his neck and knees as well as the injuries he received to
his hand, which had previously resolved. I am not satisfied that the evidence
has established that the pre-existing degenerative changes in the plaintiffs
neck were symptomatic or would have caused him pain or problems over time in
the absence of the accident occurring. I find that the plaintiffs pre-existing
degenerative changes in his back were symptomatic prior to the motor vehicle
accident of December 25, 2009; however, I find that they were aggravated by
that accident. For that reason, I will make a 15% deduction from the
appropriate heads of damage.
[146]
In Benson at para. 163, the court reviewed the test to establish
a failure to mitigate a plaintiffs loss:
[163] The plaintiff submits that the defendants have not
satisfied the test for establishing a failure to mitigate, which was described
by the Court of Appeal in Chiu v. Chiu, 2002 BCCA 618 at para. 57 as
follows:
The onus is on the defendant to prove that the plaintiff
would have avoided all or a portion of his loss. In a personal injury case in
which the plaintiff has not pursued a course of medical treatment recommended
to him by doctors, the defendant must prove two things: (1) that the plaintiff
acted unreasonably in eschewing the recommended treatment, and (2) the extent,
if any, to which the plaintiffs damages would have been reduced had he acted
reasonably. These principles are found in Janiak v. Ippolito, [1985] 1
S.C.R. 146.
[147] The
plaintiff has not strictly followed the recommendations of Dr. Paramonoff with
regard to exercises designed to strengthen his core. However, he has continued
to try to exercise to strengthen himself. He is quite knowledgeable in the area
of fitness and, while he perhaps did not appreciate the difference between
strengthening his large muscle groups and his core, I do not find that he acted
unreasonably in pursuing his recovery. I will not make a deduction for failure
to mitigate.
[148] Finally, I
am not prepared to draw an adverse inference from the fact that Dr. McLeod did
not testify. Counsel for the plaintiff told the court that despite their best
efforts to obtain a medical legal report from Dr. McLeod he was not cooperative
in that regard. The defendants had in their possession the clinical records of
Dr. McLeod. Also the defendants cross-examined a number of the expert witnesses
with regard to the fact that the plaintiff did not see Dr. McLeod for a
two-year period shortly after the December 25, 2009 motor vehicle accident.
Clearly there were limited visits by the plaintiff to Dr. McLeod.
[149] The
plaintiff continues to suffer from his injuries five years after the initial
accident. He has substantially reduced his recreational and competitive
activities. Prior to the initial accident, he was a competitive mixed martial
artist, which is an activity that he no longer pursues. He has needed
accommodations at work and has lost many of his social relationships because of
his injuries.
[150] While the
cases of Sekihara and Shipley involved plaintiffs who were
devoted athletes, the injuries sustained by those plaintiffs were much more
serious and had a more adverse effect on their lifestyles and livelihood than
what was suffered by the plaintiff here.
[151] Taking
into account the plaintiffs injuries, the effects on his lifestyle and his
employment, and the case law provided by counsel, the appropriate amount for
non-pecuniary damages is $80,000. I will deduct 15% from this amount for the
plaintiffs pre-existing back condition and award $68,000 for non-pecuniary
damages to the plaintiff.
Past Wage Loss
[152] The plaintiff
argues that there is evidence that there was ample overtime work available in
2010 and continuing until late 2014 for him.
[153] The
plaintiff argues that this Court should take into account the annual income of
his co-workers Brad Comozzi and Walter Moar for the years 2010 to 2013. The
overall average of their earnings during this time period was $134,872.
Compared to the plaintiffs overall average earnings for the same time period
which was $91,350. The plaintiff argues that this equates to a difference of
$42,522 per year.
[154] The
plaintiff argues that the past wage loss should be calculated over the five
years from 2010 to 2014 by multiplying $42,522 by five and then deducting the
appropriate amount for income tax.
[155] The
plaintiff concedes that each person is different and may work different hours,
however, he submits that the appropriate amount for past wage loss would be
$120,000.
[156] The
defendants argue that the plaintiffs hourly rate of pay at the time of the
December 25, 2009 motor vehicle accident was $35.80. The plaintiff missed 16
weeks of work and, assuming he worked 40 hours per week, the calculated loss
would be $22,912. Calculating a 20% deduction for income tax and other
mandatory deductions the past wage loss would be approximately $18,000.
[157] The
defendants further argues that in the nine months prior to the December 25,
2009 motor vehicle accident the plaintiff was working approximately 35 hours
per week with virtually no overtime. Based on 35 hours per week, the calculated
loss would be $20,048 prior to deductions for taxes and other mandatory deductions.
Calculating a 20% deduction would result in past wage loss of approximately
$16,000.
[158] The
defendants argue that the plaintiff received $12,888 in disability benefits and
there is no evidence that the plaintiff has to repay this amount. Therefore,
this amount should be deducted from any past wage loss.
[159] The
defendants also argue that the evidence does not establish that the plaintiff
would have worked more overtime hours but for the accidents. Prior to the
accidents, the evidence shows that the plaintiff did not work many overtime
hours.
[160] Compensation
for past wage loss is based on what the plaintiff would have, not could have,
earned but for the injury that was sustained: Rowe v. Bobell Express Ltd.,
2005 BCCA 141 at para. 25; M.B. v. British Columbia, 2003 SCC 53 at
para. 27.
[161] In my view,
it is not appropriate to argue that the plaintiff would have worked similar
overtime hours to Mr. Comozzi and Mr. Moar if he had not been injured. The
evidence establishes that Mr. Comozzi chose to work out of town virtually all
the time in order to earn the overtime hours that he did. Mr. Moar also chose
to work more hours than the evidence establishes that the plaintiff chose to work
traditionally. Also the evidence does not establish what all of the welders at
Finning earned during this time period.
[162] There is
no evidence that since the plaintiff returned to work in April 2010 that he has
lost any time or money. The evidence establishes that the plaintiff has worked
the hours provided to him albeit with micro-breaks.
[163] In my view,
the appropriate analysis for past wage loss is to use the plaintiffs hourly
rate of $35.80 and calculate the loss based on 40 hours per week for the 16 weeks
of work that he missed after the December 25, 2009 accident. This equates to a
loss of $22,912. Applying a 20% reduction for income tax and other mandatory
deductions results in a loss of $18,329.60. The plaintiff received payment from
his employer in the amount of $12,888, which is properly deducted from any past
wage loss figure. This results in a past wage loss of $5441.60.
[164] I award
the plaintiff $5441.60 for past wage loss.
Future Loss of Earning Capacity
[165] The
plaintiff submits that this is a case where it is appropriate to quantify the
loss of earning capacity of the plaintiff on an earnings approach. The
plaintiff further submits that the evidence has shown that the answers to the
questions posed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at 356 (S.C.)
are yes. Those factors are as follows:
a) Has the plaintiff been rendered
less capable overall from earning income from all types of employment?
b) Has the plaintiff been made less
marketable or attractive as an employee to potential employers?
c) Has the plaintiff lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured? and
d) Has the plaintiff become less
valuable to himself as a person capable of earning income in a competitive
labour market?
[166]
In Perren v. Lalari, 2010 BCCA 140 at para. 32 the court stated
the following:
[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 the original.]
[167] The
plaintiff submits that the evidence shows there is a real and substantial possibility
of a future event leading to an income loss. The plaintiff points to the fact
that he cannot work competitively on D-11 blades, for instance. The plaintiff
also points to his desire to retrain in order to reduce the physicality of his
work.
[168] The plaintiff
argues that he has three options. The first is to soldier on in his current
employment and miss lucrative employment opportunities. The second is that the
plaintiff will upgrade his education and be successful in becoming a mechanical
engineer. The third is that the plaintiff will upgrade his education and will
be successful in becoming a mechanical engineering technician.
[169] The
plaintiff says Ms. Clarks report details the various losses from these
scenarios. The plaintiff acknowledges that an assessment of loss of future
earning capacity must be fair to both parties and take into account future
events. The plaintiff submits an appropriate award would be $800,000.
[170] The
defendants argue that the plaintiff has continuously worked since his return to
his employment in April 2010 and he has substantially increased his overtime
hours worked, including doing fieldwork.
[171] The
defendants argue that the plaintiffs plan to retrain as a mechanical engineer
or technologist is illogical because he does not have the demonstrated ability
to work in that capacity.
[172] The
defendants further argue that there is no functional capacity or vocational
assessment to conclude that the plaintiff cannot perform his present job.
[173] I will
note that the medical evidence does not establish that the plaintiff is unable
to perform his job duties. In fact, the evidence demonstrates that the
plaintiff is a highly regarded employee who has the potential to become a
supervisor at Finning. The evidence also shows that the plaintiffs work has
not suffered since the accidents in terms of quality or quantity.
[174] The
defendants argue that Ms. Clark’s report is flawed because she does not refer
to the plaintiffs pre-motor vehicle accident earnings or those of his coworkers
in making her comparison. There is no analysis as to whether or not the
plaintiff retraining as a mechanical engineer or technologist is reasonable.
Further, the wage loss is calculated on the assumption that the plaintiffs
without accident earnings would be $125,000 per year, a figure that is not
supported by the evidence.
[175] The
defendants argue that if an award is made it should be in the range of
$100,000.
[176] I am
unable to conclude on the evidence that the plaintiff has to stop his
employment immediately and retrain as the plaintiff has suggested. This is not
a case where the assessment for loss of future earning capacity can be done on
an earnings approach. In my view, the appropriate approach is to assess the
loss of the capital asset.
[177] The
plaintiff is currently able to perform his job duties. He has continually
worked at a productive level since returning to work in April 2010. Dr.
Paramonoff and Dr. Piper both opine that including core exercises in the
plaintiffs rehabilitation program will greatly benefit him though it will not
result in a total resolution of his symptoms.
[178] There are
no medical opinions suggesting that the plaintiff is significantly disabled or
that he cannot perform his job duties. There has been no vocational or
functional capacity assessment tendered in this case. Dr. Piper opines that the
plaintiff is not terribly disabled.
[179] However, I
do find that the plaintiffs neck, back, and knee injuries will preclude him
from accepting overtime work in the future and, in my view, given the physical
nature of welding including the awkward and sustained positions that a welder
must be in there is a real and substantial possibility that the plaintiff will
have to retire early.
[180] The
plaintiff currently earns approximately $100,000 per year. Taking into account
the real and substantial possibility of overtime losses and the plaintiff
having to retire early, I assess the plaintiffs loss of earning capacity at
$200,000. I will deduct 15% from this amount for the plaintiffs pre-existing
back injury. The award for future loss of earning capacity is $170,000.
Cost of Future Care
[181] The
plaintiff argues that he requires chiropractic treatments. He argues that after
the motor vehicle accidents he is averaging approximately 30 visits to the
chiropractor per year. The plaintiff suggests that $10,000 is warranted under
this head of damage.
[182] The
defendants argue that the medical experts have recommended that the plaintiff
reduce his chiropractic attendances. They concede that some physiotherapy and
over-the-counter medications are required. The defendants suggest that $5000 is
warranted under this head of damage.
[183] The
purpose of an award for future cost of care is to compensate for a financial
loss reasonably incurred to sustain or promote the mental and/or physical
health of an injured plaintiff: Erickson v. Sibble, 2012 BCSC 1880 at
para. 316. The basis for such an award is what is medically justified and
reasonable based on the evidence: Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 at 84 (S.C.); Spehar (Guardian ad litem of) v. Beazley,
2002 BCSC 1104 at para. 55.
[184] In my view,
the plaintiff is going to require extensive physiotherapy and some ongoing
chiropractic treatments.
[185] In my view,
the appropriate award for costs of future care is $10,000. I will deduct 15% from
this amount for the plaintiff pre-existing back injury. The award for costs of
future care is $8500.
Special Damages
[186] The
plaintiff seeks reimbursement for the cost of an MRI performed on him on May
15, 2013 in the amount of $995. The plaintiff seeks further reimbursement for
the cost of a second MRI, which was performed on the plaintiff on July 2, 2014
in the amount of $995. Also the plaintiff received an invoice in relationship
to that MRI in the amount of $400 for the cost of the contrast injection.
[187] There is a
10% per annum interest fee charged on the two above accounts in the amounts of
$995.
[188] The
defendants are agreeable to paying the cost of the May 15, 2013 MRI. The
defendants are not agreeable to paying the cost of the July 2, 2014 MRI as this
was associated with the plaintiffs hip. Dr. McKenzie noted that there was no
way of telling if this labral tear was caused by the accident or pre-dated the
accident.
[189] Both MRI
imaging were medically necessary for this case and reasonably incurred.
[190] I award
the plaintiff $995 for the May 15, 2013 MRI as well as 10% annual interest from
May 27, 2013 (the date of the invoice) until the date of this judgment.
[191] I award
the plaintiff $995 for the July 2, 2014 MRI as well as 10% annual interest from
July 17, 2014 (the date of the invoice) until the date of this judgment.
[192] I award
the plaintiff $400 for the cost of the contrast injection associated with the
July 2, 2014 MRI.
SUMMARY
[193] I award
the plaintiff the following amounts for the injuries he sustained in the motor
vehicle accidents of December 25, 2009 and October 3, 2012:
Non-Pecuniary Damages: | $68,000.00 |
Past Wage Loss: | $5441.60 |
Loss of Future Earning | $170,000.00 |
Cost of Future Care: | $8500.00 |
Special Damages: | $2390.00 |
Total: | $254,331.60 |
[194]
The plaintiff is entitled to his costs at Scale B.
R.S.
Tindale, J.