IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151209

Docket: M111758

Registry: Vancouver

Between:

Laura Bergen

Plaintiff

And

Justin Gaetz and
Nicholas Mantel

Defendants

– and –

Docket: M126734

Registry: Vancouver

Between:

Laura Bergen

Plaintiff

And

Rebecca Brooke

Defendant

Before:
The Honourable Mr. Justice Greyell

Reasons for Judgment

Table of Contents

Introduction. 4

The Positions of the Parties. 4

The Circumstances of the Accidents. 5

The First Accident 5

The Second Accident 7

Ms. Bergen’s Life Prior to the
First Accident. 8

Activities. 8

CBSA Employment. 9

Ms. Bergen’s Pre-Accident Health. 11

Lay Witness Evidence. 13

The Evidence of Family and Friends
about Ms. Bergen’s Life and Activities Before and After the Accidents. 13

The Evidence of Ms. Bergen’s Co-workers
and Supervisor Concerning her Ability to Function at Work Before and After the
Accidents. 16

Expert Witness Evidence. 18

Plaintiff’s Medical Evidence. 18

The Defendants’ Medical Evidence. 34

Issues. 41

Ms. Bergen’s Credibility. 42

Speed and Severity of the Accidents. 45

Application of the Applicable Legal
Principles. 45

Non-pecuniary Damages. 47

Damages for Lost Housekeeping
Capacity. 49

Past Loss of Earnings. 49

Loss of Future Income. 50

Contingencies to Take into Account in
Assessing Ms. Bergen’s Loss of Future Income. 53

Loss of Pension. 57

Cost of Future Care. 58

Summary of Cost of Future Care. 60

Special Damages. 61

Summary of Special Damages. 62

Summary of Award. 62

Introduction

[1]            
The plaintiff claims damages arising from two motor vehicle accidents
(the “Accidents”). The Accidents occurred March 2, 2009 (the “First Accident”)
and November 27, 2010 (the “Second Accident”) and were both rear end collisions.

[2]            
The defendants have admitted liability for the Accidents. The issue for
determination is an assessment of the plaintiff’s damages arising from and as a
result of the Accidents.

[3]            
Following completion of the last day of trial on April 17, 2015, the
plaintiff applied to reopen the trial to adduce new evidence. Following further
submissions I allowed the plaintiff to do so in Reasons indexed as Bergen v.
Gaetz, 2015 BCSC 1871. The trial resumed November 6, 2015 during which a
letter from Ms. Bergen’s employer and her response to the letter were
introduced into evidence and counsel made further submissions, reference to
which will be made under the Loss of Income section of this decision.

The Positions of the Parties

[4]            
The position of the plaintiff is that her physical injuries and the
disabilities arising from those injuries were either the direct cause of the Accidents
or were exacerbated by them and that “but for” the Accidents she would not have
sustained her present injuries.

[5]            
The position of the defendants is that the plaintiff was suffering from
a pre-existing degenerative spondylolisthesis in her lower back which was
symptomatic and for which she was receiving treatment at the time of the First Accident.
The defendants argue the plaintiff’s pre-existing condition was aggravated by the
functions she was required to perform in her job and the training she was
required to undergo to qualify as a Canada Border Services Agency (“CBSA”) employee.
The defendants say the plaintiff’s current physical condition is one she would
have been in notwithstanding the Accidents.

[6]            
The defendants also submit the court should question the plaintiff’s
credibility, asserting that she has been “economical” with the truth, in
particular, by downplaying her pre-accident back problems, providing incomplete
medical histories to the physicians she has seen, and giving testimony that,
“whether by design or default,” reconstructed and distorted her medical history
prior to the First Accident.

[7]            
I will commence these reasons with a description of the Accidents and
the evidence which describes the plaintiff as a person, her medical condition
prior to the First Accident and the effect the Accidents have had on her
health. I will then review the medical evidence before moving to a description
of the issues, my findings on those issues and the awards under the various heads
of damages claimed by Ms. Bergen.

The Circumstances of the Accidents

The First Accident

[8]            
The defendants say the Accidents were minor in nature and could not have
reasonably caused injuries to the plaintiff of the magnitude she claims. They generally
assert Ms. Bergen’s evidence should not be accepted at face value, arguing,
for example, that she has minimized her pre-accident medical condition and
exaggerated the speed at which each defendant’s vehicle struck her vehicle to
her treating physicians. Because of these assertions, it is necessary to recite
the evidence pertaining to each accident.

[9]            
The First Accident occurred when the plaintiff, who was driving on 75A Avenue
in Surrey, was rear-ended by the defendants in Mr. Mantel’s vehicle when
she stopped at a crosswalk to allow a pedestrian to cross the road. The plaintiff
testified she saw Mr. Mantel’s vehicle approaching and the impact was a
“sudden pushing feeling”; while her vehicle was not pushed forward, she felt
“shaken” at the time, but nothing else. She testified when she inspected her
vehicle at the scene of the First Accident, the defendant’s bumper was resting on
top of her rear bumper.

[10]        
Photographs demonstrate minor damage to both vehicles. The First Accident
was classified as a low velocity impact. The repair costs to the plaintiff’s vehicle
were roughly $750.

[11]        
In cross-examination, Ms. Bergen agreed that in her statement to
ICBC she said she didn’t recall the force of the impact. She also agreed she probably
told Dr. Lau, a pain specialist she was referred to in December 2014, that
she was “hit from behind at 40 kph”. She agreed she did not know how fast Mr. Mantel’s
vehicle was traveling at the time of impact. She testified she had “approximated”
his speed to Dr. Lau.

[12]        
Mr. Mantel testified he was driving about 30 kph before he applied
his brakes and that his vehicle, a pick-up truck, was traveling at “maybe 5 kph
or under” when it struck the rear of the plaintiff’s vehicle. He testified the
impact was “very minor – a touch”. Mr. Mantel said he examined his vehicle
and saw no damage and that he saw only a light scuff to the plaintiff’s
vehicle. He testified he approached the plaintiff and asked her how she was but
did not recall her response.

[13]        
In cross-examination, Mr. Mantel agreed his vehicle was
approximately one car length or 10 feet behind the plaintiff’s vehicle when he
saw her brake lights go on and that he applied his brakes hard.

[14]        
Mr. Heggie, a passenger in Mr. Mantel’s vehicle, testified the
plaintiff applied her brakes abruptly–he felt unsafely so–causing Mr. Mantel
to apply his brakes and, at the time of impact, Mr. Mantel’s vehicle was
traveling no faster than 5 kph. He described the impact as a “minor tap”.

[15]        
After exchanging information with the other driver, the plaintiff drove
home. She said she felt a nagging achiness in her neck and back and that she had
headaches which she described as “really bad”. She testified she took Advil.

[16]        
Ms. Bergen did not mention the First Accident to her family
physician, Dr. Brits, when she attended her office on March 6, 2009 for a
prearranged appointment as she thought the Advil would control her pain and the
appointment had been arranged to discuss other matters.

[17]        
Ms. Bergen testified the pain in her neck and back got worse. She
was advised by Dr. Brits to continue attending physiotherapy with Mr. Mah,
who she had been attending prior to the First Accident.

[18]        
She testified she developed what she described as deep pain in her hip
which would radiate down her right side but, with treatment by Mr. Mah
involving core stability exercises, she felt she was getting better before the Second
Accident occurred.

The Second Accident

[19]        
The Second Accident occurred when the plaintiff and her husband were
stopped at a red light and their vehicle was hit from behind by the defendant, Ms. Brooke.
Again this collision involved a low velocity impact. Ms. Brooke’s vehicle
sustained a cracked license plate holder. Ms. Brooke described the impact
as a “thump”. Ms. Brooke testified that Ms. Bergen was upset when she
approached her at the scene of the accident and told her she was in chronic
pain as a result of a previous accident.

[20]        
Ms. Bergen agreed in cross-examination she told Dr. Lau that Ms. Brooke’s
vehicle was traveling approximately 60kph at the time of impact. She said she
did so because that was the speed limit in the area. Dr. Lau’s notes
indicate Ms. Bergen told her this but also recorded she was “unsure” of
the speed.

[21]        
Ms. Bergen’s husband, Mr. Peter Burns, who was sitting in the
front passenger’s seat at the time of the Second Accident testified he felt a
jolt, a “good hard shove”, that his seat belt caught him as he moved forward. He
said his shoulder was sore afterward. When he got out of the vehicle to examine
the damage, he could see the imprint of a bolt from Ms. Brooke’s vehicle on
the rear bumper of their vehicle.

[22]        
Ms. Bergen testified immediately after the Second Accident she felt
shaken, had lower back pain, right side leg pain and pain in her jaw which she
described as “vibrating”.

Ms. Bergen’s Life Prior to the First Accident

[23]        
The plaintiff was born September 29, 1969, and was 39 years old at the
time of the First Accident.

[24]        
She grew up in Delta, graduated from high school in 1987 and attended
Douglas College where she took performing arts and theater. She then worked as
a waitress and acted until 1994 when she moved to London, England, where she
worked as a server until 1998 when she took a position as a food and beverage
manager for a cruise ship company. She testified that during this period she
had a bike on board when she was traveling and often would road bike when she
was ashore.

[25]        
In 2000, she returned to Canada. She worked for a bank in Richmond and
retained that position part-time when she returned to Kwantlen College. She
also volunteered during this period with a community police centre.

Activities

[26]        
Ms. Bergen led a physically active life prior to the First Accident.
When she returned to Vancouver in 2000 she continued with biking and regularly
hiked, canoed, ran and played grass hockey.

[27]        
She met Mr. Burns in 2004. Their mutual love for sports and outdoor
activities was a factor leading to their marriage in 2005.

[28]        
A brief catalog of some of the trips/activities undertaken by the
plaintiff in the years preceding the First Accident include:

·      
Canoeing: Between 2005 to fall 2008, she participated in canoeing
trips on the Bowron Lake circuit (five days canoeing and portaging with Mr. Burns
and two friends in 2007), Lightning Lake, Canim Lake, on the Fraser River and
regularly in Deas Island Park).

·      
Hiking: She took frequent (two times per month) eight-hour hikes
with Mr. Burns and friends up Diez Vistas Mountain and elsewhere in the
lower mainland. During her honeymoon in New Zealand in 2007, she hiked up Mount
Doom (six hours – difficult hike in volcanic scree) and back. Following this
hike, she and her husband did a further two day hike/kayak trip followed by a
five-day hike along the Kepler Track in Fjordland National Park during which
each carried 40-50 pound packs. The plaintiff testified she experienced no
problems with her back, neck or pelvic areas during or after this trip,
although felt tired and “achy” at the conclusion of the hike.

·      
Running: The plaintiff enjoyed regular running with a friend. Mr. Burns
was also a runner and the two often ran together in Stanley Park. Ms. Bergen,
inspired by Mr. Burns doing his first marathon in 2007, trained for and
ran a half marathon in 2008. Her training for that event involved three to four
months of running or cycling four days a week. She testified her hip and low
back pain (which I will discuss later) was alleviated by the running. She said
she planned to train for a full marathon and then a triathlon in the future.

[29]        
In addition to these activities Ms. Bergen regularly cycled,
golfed, skied and, influenced by Mr. Burns, a hockey enthusiast, was
learning to play hockey.

CBSA Employment

[30]        
Ms. Bergen obtained a job working with the CBSA in 2005 at the
Vancouver International Airport. She met arrivals and verified declarations.

[31]        
In 2006, she undertook a 13-week intensive course where she studied
customs-related legislation, the examination of people and goods and use of
force techniques. She described this training period, and particularly the
portion entitled Control, Defence, Tactics and Tools (“CDTT”), as being “very
intense, challenging and exhausting”. The CDTT course must be taken every three
years by CBSA officers as part of their recertification. Ms. Bergen
recertified again in 2008 to which I will refer later in these Reasons.

[32]        
In late 2007, Ms. Bergen transferred to the CBSA container
examination facility in Burnaby. Her job included the inspection of containers and
the removal and testing of suspected illegal materials sought to be imported
into Canada. She was assigned to the Recourse Division for one year less a day
in April 2008 (where she was working at the time of the First Accident) and
then returned to the container examination facility.

[33]        
Ms. Bergen testified she enjoyed her job; that she found it
challenging and wanted to move ahead into positions with increasing levels of
responsibility within the CBSA. She said she kept her eyes open for positions
that would interest her. She was also active in her union.

[34]        
The CBSA job description describes the level of effort required by a
border services officer as follows:

There is a requirement to sit or
stand for prolonged periods while conducting inspections and examination at
ports of entry, at container central examination facilities or in office
environments. There is an integral requirement to use physical force and tools,
including a baton, to ensure compliance, and the safety of the officer, client
and members of the public. Exercising powers of arrest and detention may
require application of use of force techniques. As a team member conducting
Confined Space Entry examinations on deep sea freighters, de-stuffing containers
at a Central Examination Facility or examining commercial cargo, there is a
requirement to carry, lift and/or move compressed air tanks, boxes, and other
objects weighing more than 10 kilograms. Assignment to these teams can
range in duration from one day to many months. There is an integral and
continuous daily requirement to view computer screens and to use a keyboard,

[35]        
Ms. Bergen found she could not perform the heavier aspects of her
job after the Accidents. Her ongoing back pain required her to lie down during
her shift to relieve the pain. She was informally accommodated by her then
co-worker and supervisor, Mr. Angelo Larigakis, whereby she would do
lighter duties and he would do the heavier duties. She began to take more and
more time off work as a result of her back pain.

[36]        
Ms. Bergen stopped working on January 14, 2013 on the
recommendation of her family physician, Dr. Brits. She was unable to
continue to work because of persistent ongoing lower back pain with pain
radiating into her left leg and has been receiving long-term disability
benefits from Sun Life since July 2013.

[37]        
When she applied for benefits she noted she was awaiting spinal surgery.
Her benefits are being paid until April 12, 2015 on the basis she is unable to
perform the duties of her regular job. Benefits continue after that date only
if she is considered to be “totally disabled for any commensurate job for which
she is or may become reasonably qualified”. Her claim is currently under review
by Sun Life who has a right to indemnification against the amount it has paid Ms. Bergen
in the event of an award relating to past wages lost or loss of future income.

Ms. Bergen’s Pre-Accident Health

[38]        
The condition of Ms. Bergen’s lower back and how that condition
affected her before and after the Accidents is central to the issues between
the parties.

[39]        
While I will elaborate on her health prior to the First Accident when I
review the diagnoses of the various physicians who she has seen, an overview is
that Ms. Bergen had complaints of a condition called endometriosis (a
painful condition of the uterus) and back pain at least as far back as 2005
when she first saw her family physician, Dr. Brits.

[40]        
At the conclusion of her training program in 2006 to become a CBSA
employee, Ms. Bergen complained she was exhausted, that her muscles were
sore and her lower back “felt sore”. She also complained about lower back pain
in 2008 when training for a marathon.

[41]        
Dr. Brits’ comments in a referral note to Dr. Nikolakis in
2010 (which I will refer to below in my review of Dr. Brits’ evidence) is
also relevant to Ms. Bergen’s pre-First Accident health.

[42]        
Between 2006 and 2008 Ms. Bergen saw a chiropractor, Dr. Burge.
Dr. Burge was called by the defendants to testify to the facts, not to
offer an opinion. Dr. Burge had lost his clinical records but had a record
of the dates he saw Ms. Bergen. He noted from an x-ray he took when he
initially saw Ms. Bergen in 2006 that she suffered from “[m]ild lumbar spine
and SI joint degenerative changes”. I will review his evidence below. Ms. Bergen
testified she thought Dr. Burge’s treatment was more focused on her neck
and upper back.

[43]        
Ms. Bergen testified she commenced seeing Mr. Mah, a
physiotherapist working with Quest Performance Center, in September 2008 for
problems associated with her menstrual cycle and for fitness training for
marathon training. She testified that during her cycle it was “very painful” in
her back, abdominal and hip areas.

[44]        
Mr. Mah’s clinical notes and those of the trainer she saw for
treatments were referred to extensively in evidence. Ms. Bergen attended Mr. Mah
approximately three times per month and the trainer less frequently. Mr. Mah’s
first note of September 30, 2008 indicated a report by the plaintiff that she
experienced clicking in her lower back. He assessed her as having a SI joint
dysfunction. Many of the subsequent notes he made before the First Accident
indicated either back “sore” or “better” or “better overall”.

[45]        
Mr. Mah saw Ms. Bergen on three occasions in both January and
February 2009 immediately preceding the First Accident. He noted on each
occasion she was “better overall” or “better” with the exception of February
12, 2009, when she complained of a sore hip.

[46]        
Ms. Bergen continued to see Mr. Mah after the First Accident up
to May 2013 when she ceased treatments because the treatments were not
assisting her to improve her condition.

Lay Witness Evidence

The Evidence of Family and Friends about Ms. Bergen’s
Life and Activities Before and After the Accidents

Mr. Peter Burns

[47]        
Mr. Burns is a land surveyor employed by Natural Resources Canada.
He testified that both before and after their marriage he and Ms. Bergen
were very physically active: they ran regularly, did strenuous weekend hikes
and both played hockey and golf.

[48]        
He testified that when the plaintiff returned from her 13 weeks of CBSA
training in Québec in 2006, there was no change in their activity regime: she
had no physical ailments, but he did recall she suffered from menstrual cramps.

[49]        
Mr. Burns confirmed the events the couple participated in following
her CBSA training, including the Bowron Lake trip in June 2007, the hiking
trips on their honeymoon in New Zealand in January 2008 and the training the plaintiff
did later that year to run in a half marathon in August 2008. Mr. Burns
testified after that event Ms. Bergen was “fit and healthy and able to
continue with her everyday activities.”

[50]        
Mr. Bergen testified that after the First Accident their activities
were reduced considerably: they walked instead of hiked and Ms. Bergen
stopped running and biking. He said she was slowly, but gradually, improving up
to the time of the Second Accident.

[51]        
He testified that after the Second Accident there was a noticeable
decline in Ms. Bergen’s activity. She continues to be bothered by a
persistent pain which radiates down her leg and he testified she seems to get
some relief when she lies on her back. He said she can’t be out of the house
for much time without lying down and that was the reason she does not go out
socially or to family events. He testified she often appears in pain and
frequently lies down on the sofa, bed or floor to relieve the pain. He said
their social life was significantly curtailed as was their physical
relationship. He testified Ms. Bergen’s mood after the Accidents has been one
of sadness, despondency and frustration; she had said she felt that life was
passing her by and that this has had an effect on their marriage.

[52]        
Mr. Burns testified Ms. Bergen tried to work after the Second Accident,
but after work she would be exhausted and in discomfort. He testified she had
been very keen to further her career and remain with the CBSA and had taken
courses to advance in her career before the Accidents.

Ms. Sherry Panou

[53]        
Ms. Panou had known Ms. Bergen since 2002 when the two worked together
at a bank. She testified she and Ms. Bergen worked out together doing endurance
training, running and swimming. She said they would work out five to six days a
week and were both in good physical condition. She described the plaintiff as
happy, outgoing, laughing a lot and as enjoying the outdoors.

[54]        
Ms. Panou accompanied Ms. Bergen and others on the five-day
Bowron Lake canoe trip in 2008. She testified Ms. Bergen did not complain
of any physical ailment during the trip other than the soreness they all shared
from carrying heavy packs and hauling the canoes over the portages.

[55]        
She testified that subsequent to the Accidents she and Ms. Bergen
mostly had contact when they met for dinners, but they had taken short walks
together. She said when they drove to the walks Ms. Bergen reclined her
seat in the car to relieve the pain in her back area and that during the walk
she had to lie down as pain in her back was aggravated by her dog pulling on
its chain.

[56]        
She testified the plaintiff was now a much different person: she cries a
lot, cancels plans to get together and appears to be depressed.

[57]        
In cross-examination, she agreed that in the last few years she only saw
Ms. Bergen once every couple of months. She also said, while not a doctor,
she had seen the intensity of Ms. Bergen’s condition get worse over the
last four years; she knew her before and after the Accidents and felt the Accidents
had changed her physical capabilities.

Mr. Grant Patterson

[58]        
Mr. Patterson had known Ms. Bergen since 1989 when the two
attended Douglas College. They had remained in contact. While employed by the
CBSA as a border services officer, he had not worked with Ms. Bergen.

[59]        
He testified that prior to the Accidents they had worked out at the same
gym and she was “very physically active”. He testified that since the Accidents
she had been restricted in what she could do and, as a result, appeared depressed.
He recalled an incident when she had to lie on the floor and prop her feet on a
chair because of pain.

[60]        
Mr. Patterson described Ms. Bergen as outgoing and
enthusiastic about her work with the CBSA prior to the Accidents.

Ms. Christine Krauss

[61]        
Ms. Krauss knew Ms. Bergen before the Accidents through work
(I will refer to her work-related observations separately below) and socially
both before and after the Accidents.

[62]        
Ms. Krauss met Ms. Bergen in 2005 when Ms. Bergen became
a co-worker at the CBSA. She described the plaintiff as being well-liked,
outgoing and enthusiastic. She said the two socialized frequently after work
and on weekends. She said they exercised, walked and hiked together and that Ms. Bergen
was a very active person.

[63]        
She testified that after the First Accident Ms. Bergen was “more into
recovering” and “more cautious”; she recalls her walking instead of running a
half marathon in August 2009.

[64]        
Ms. Krauss testified that since the Second Accident she and Ms. Bergen
had grown apart: Ms. Bergen had become “very depressed, crying all the time”,
not leaving the house and isolating herself and that she was “depressing to be
around.” Ms. Krauss said she had also become busy with her own children;
in the last three years she had only seen Ms. Bergen about ten times. She
testified she had noticed marital discord between Ms. Bergen and Mr. Burns
since the Second Accident.

The Evidence of Ms. Bergen’s Co-workers and Supervisor
Concerning her Ability to Function at Work Before and After the Accidents

Ms. Christine Krauss (continued)

[65]        
Ms. Krauss was Ms. Bergen’s team leader for some five months
when the latter commenced employment with the CBSA in 2005. Ms. Krauss subsequently
transferred to the container examination section. The two worked together again
when Ms. Bergen joined that section.

[66]        
Ms. Krauss described Ms. Bergen as being able to perform all
the duties of her job prior to the First Accident. She said Ms. Bergen was
fully functioning; she was very well-liked by her co-workers and was ambitious
and enthusiastic about her job. She described her as a “go getter” who would
“go above and beyond”; she was “always reading job postings and would apply for
better positions”.

[67]        
She testified she did not notice much of a change in her work performance
after the First Accident but after the Second Accident she noticed a “big”
difference in her performance at work: she could not complete any of the duties
of her job without lying down every 20 minutes and had to rely on co-workers to
assist her, particularly her supervisor and fellow shift worker, Mr. Larigakis,
to carry out the physical aspects of the inspections while she took notes of
the results.

[68]        
Ms. Krauss testified after the Second Accident co-workers grumbled
about the number of breaks she was taking and the work environment became more
difficult for the plaintiff.

Mr. Angelo Larigakis

[69]        
Mr. Larigakis worked at the CBSA container examination facility as
an acting superintendent and as Ms. Bergen’s supervisor during the
two-year period prior to her leaving on disability in January 2013.

[70]        
He testified he did not have much recollection of her prior to this
period but does recall her as an interested and dedicated employee who had a
“bubbly personality”. He testified during the period he worked with her he took
her under his wing as she was limited in what she could do. He did the heavy
work, including drilling holes in the containers, opening container doors, etc.
while Ms. Bergen wrote down the details, ran samples through a machine in
the office and noted the results.

[71]        
Mr. Larigakis testified that “pretty much every shift” Ms. Bergen
would lie down in the first aid room, sometimes for an hour, because of back
pain. He testified he knew by her demeanor and a change in her composure–her
movements became slower and measured–that she was having difficulty performing
her work. He testified the reason Ms. Bergen was working with him was
because the job she was doing was a “static” one, which allowed them to stop
from time to time, and said that in this way “we were accommodating her”.

[72]        
Mr. Larigakis said after two-and-a-half years of this type of
accommodation she appeared to get increasingly discouraged and “sort of
beaten-down”, she would apologize to co-workers, there were a few spats in the
office and that co-workers did not understand her situation.

[73]        
In cross-examination, Mr. Larigakis agreed he could only speak to
the plaintiff’s ability to function in the two years immediately prior to her
leaving work in early 2013.

Mr. Robert Atkinson

[74]        
Mr. Atkinson is the superintendent in charge of the CBSA container
examination facility. He testified there were some 30 CBSA officers employed on
various shifts at the facility.

[75]        
He testified he started in his position in November 2009 but had the most
contact with Ms. Bergen in the year before she went off work on disability
leave in January 2013. He did her performance reviews for the fiscal years
ending March 2011 and March 2012.

[76]        
Mr. Atkinson testified he was aware Ms. Bergen was taking
breaks from work because of her physical limitations and her condition seemed
to deteriorate (more absenteeism and more breaks) in and after the mid-summer
of 2012. He testified that was when he “really noticed things” and became concerned
she was getting worse, not better. He said it appeared to him she was making a
concerted effort to come to work, but her condition appeared to be getting
worse and her absenteeism was affecting his ability to schedule staff. He
testified he couldn’t be confident she would be at work.

[77]        
In cross-examination, defence counsel took Mr. Atkinson through the
performance reviews he completed for the years ending March 2011 and March 2012
and pointed out a number of comments made by Ms. Bergen as to the initiative
she had shown at work, including a leadership role in the union’s Occupational
Health & Safety committee. Mr. Atkinson testified it was in the last six
to eight months he “really noticed” she had physical health issues. He
testified that had he completed a performance report for the year in March 2013
he would have had to address her performance issues.

Expert Witness Evidence

[78]        
The court heard medical opinion evidence from a number of medical
practitioners concerning the diagnosis, prognosis and causation of Ms. Bergen’s
injuries.

Plaintiff’s Medical Evidence

Dr. Bernice Brits, General Practitioner

[79]        
Dr. Brits has been Ms. Bergen’s general practitioner since 2005.
She prepared a medical legal report dated April 24, 2013, in which she
described Ms. Bergen’s complaints following the Accidents, her findings on
her examinations during office visits, referrals she made and the treatment she
recommended, as well as her opinion on the cause of Ms. Bergen’s injuries.

[80]        
Dr. Brits first saw Ms. Bergen regarding the First Accident on
April 6, 2009, when she complained of intermittent headaches, neck and
increasing lower back pain which was causing her difficulty sleeping and
preventing her from running and walking. Dr. Brits prescribed
anti-inflammatory drugs and muscle relaxants and recommended Ms. Bergen
continue with physiotherapy.

[81]        
Dr. Brits ordered x-rays of Ms. Bergen’s lower back because of
ongoing persistent lumbar back pain. The x-rays showed degeneration of her
lumbar spine.By January 2010, Ms. Bergen’s lower back pain was radiating
into her right leg. At this time Dr. Brits noted she was not able to
resume running or power walking, was still taking physiotherapy, had engaged a
personal trainer to help her strengthen her core muscles and was wearing a
lumbar support belt. In April 2010, Ms. Bergen was complaining to Dr. Brits
of back pain and more migraine headaches. Dr. Brits notes that her
examination suggested disc degeneration at L5-S1. CT results also showed
degenerative disc disease with nerve root involvement at L5-S1 prompting a
referral to a neurosurgeon.

[82]        
Dr. Brits referred Ms. Bergen to Dr. Nikolakis, a
neurosurgeon, who did an assessment of her May 20, 2010, and prepared a report
for Dr. Brits which Dr. Brits testified she did not receive. The
defendants rely on several of the comments in Dr. Brits’ referral notes to
Dr. Nikolakis. Considering these notes play a significant role in the
defendant’s case, I will set out both.

[83]        
Dr. Brits’ referral note advised Dr. Nikolakis that Ms. Bergen
had “lumbar pain referred to her right leg and foot” and that she had been
symptomatic since 2006. She noted this presented a problem working as a border
officer wearing a heavy belt and vest. Dr. Nikolakis responded:

Thank you for your referral. Ms. Bergen is a 40-year-old
female who presents with a chief complaint of low back pain.

Ms. Bergen has been suffering from low back pain for
several years. Her symptoms began in 2006 after undergoing a training exercise
in Montréal as part of
her employment. Ms. Bergen works for the government of Canada in the role
of border patrol, and her training in Montréal
required hand-to-hand combat exercises.

Over the last four years, Ms. Bergen has been suffering
from slowly progressive low back pain with intermittent radiation down the
front of her right thigh. She has no pain which radiates down the back of her
upper leg, and she has no pain which radiates past the knee. There is no
weakness or numbness in her lower extremities.

Ms. Bergen is currently not on any medications for her
low back pain. She is still able to carry out her occupational function,
however, she will be required to do another training exercise in the near
future. She is worried that her low back pain will not tolerate this type of
stress.

[84]        
Dr. Nikolakis concluded by noting Ms. Bergen was able to
function in her job without difficulty; that she had a healed pars fracture in
her L5 vertebrae and Grade 1 spondylolisthesis of L5 on S1; and the facet
joints at these levels showed “significant degenerative changes”. He
recommended management include regular medication such as Tylenol or Advil and
“surgical options such as facet rhizotomies and spinal fusions” if she was
unable to control her pain.

[85]        
By September 2010, Dr. Brits noted in her report that Ms. Bergen
had been unable to wear her duty belt at work and was wearing lumbar support.

[86]        
On her last visit to Dr. Brits prior to the Second Accident
(November 17, 2010), Dr. Brits noted Ms. Bergen “still had back pain
referring to the right hip exacerbated by physical forces like for instance
when she went for a ride”. Dr. Brits noted Ms. Bergen “was improving with
physiotherapy”.

[87]        
Following the Second Accident, Ms. Bergen’s jaw, lumbar and right
leg pain worsened. At times Ms. Bergen reported severe neck pain with
migraine headaches to Dr. Brits. Dr. Brits noted Ms. Bergen was
anxious and depressed about the limitations in her work and personal life and
her ongoing pain.

[88]        
MRI and CT scan results ordered by Dr. Brits in late 2012/early
2013 confirmed anterolisthesis of L5 on S1 and a small tear on her L4-5 disc.

[89]        
Dr. Brits referred Ms. Bergen for assessments on several
occasions in 2013 and 2014 to Dr. Paquette, a neurosurgeon at VGH. He
undertook selective nerve root blocks but they were unsuccessful in controlling
Ms. Bergen’s complaints of pain. Dr. Paquette and Ms. Bergen
discussed the option of spinal fusion surgery and its complications and risks.

[90]        
Ms. Bergen has received conflicting advice from Dr. Paquette
and from his associate, Dr. Batista, about how spinal surgery would be
conducted. She is hesitant to undergo surgery pending more conservative treatment
from Dr. Lau at her pain clinic (discussed below). Neither Dr. Paquette
nor his associate, Dr. Batista, were called to give evidence.

[91]        
Dr. Brits opined Ms. Bergen’s chronic back pain, headaches and
lower limb symptoms were “causally related” to the Accidents and had “a
substantial impact on her life.” She noted Ms. Bergen had complied with
all conservative measures and therapy to regain her pre-accident capabilities
without success and that further substantial improvement was not expected. Dr. Brits
wrote:

This unfortunate patient who has
early onset of degeneration of her spine is left with the cumulative effect of
her disease and injuries related to [the Accidents]. Her prognosis is guarded
and it is probable that she will have persistent pain in the future. … She will
be a candidate for surgery if the benefit of this invasive treatment outweighs
the risk.

[92]        
Dr. Brits was cross-examined on various entries made in her
clinical records (some of which I have discussed above) concerning various physical
complaints Ms. Bergen had made before the Accidents. These include the
following entries:

·      
July 18, 2007: Ms. Bergen was seeing a chiropractor,
complaining of a condition called endometriosis which was causing abdominal
pain. Ms. Bergen sought a second opinion;

·      
October 23, 2007: Ms. Bergen saw Dr. Brits complaining
of sinus pain and migraine headaches;

·      
July 28, 2008: Ms. Bergen saw Dr. Brits when she was
training for a marathon. Dr. Brits’ note reads “very physical training,
progressive back pain … ++ spasm back … worse mornings … relief (by) running,
chiropractor”. Dr. Brits referred her for an x-ray and physiotherapy;

·      
October 29, 2008: Ms. Bergen was prescribed medication for
migraine headaches; and

·      
January 12, 2009: Ms. Bergen was complaining of migraines
and mood swings and being angry. Dr. Brits thought this was related to her
menstrual cycle.

[93]        
Dr. Brits testified while she had not seen Dr. Nikolakis’ report
she deferred to his expertise. She testified Ms. Bergen had only one
complaint prior to the First Accident regarding back pain which was in 2008.

Dr. Steven Helper, Physiatrist

[94]        
Dr. Helper is a physiatrist specializing in physical and rehabilitation
medicine and spine pain management. He assessed Ms. Bergen on May 23, 2013,
and again on August 11 and 29, 2014, for the purpose of preparing an initial
medical legal report of May 28, 2013 and subsequent report of September 2, 2014.

[95]        
In his first report, Dr. Helper opined his “leading diagnosis” was
that Ms. Bergen has Grade 1(small) – 2(moderate) degenerative
spondylolisthesis at the L5-S1 segment of her lumbar spine with radiating
symptoms into her lower left leg possibly (he said the evidence
was weak) from L5 nerve root irritation.

[96]        
Dr. Helper also concluded post-accident Ms. Bergen has severe
facet joint arthropathy (arthritis) and moderately severe degenerative disc
changes at L5-S1. He felt it was likely her pain originated from either the
intervertebral disc or the facet joints. Dr. Helper recommended non-surgical
measures should be explored but opined that surgery (fusion of her L5-S1 disc)
may ultimately be her only option for pain relief.

[97]        
Dr. Helper opined that while a clear prognosis was difficult to make
without an established diagnosis, her overall prognosis was poor: “if one were
to assume that the leading umbrella diagnosis of mechanical low back pain from
the L5-S1 segment is accurate”.

[98]        
In his second report, Dr. Helper confirmed his original diagnosis.
He opined that the Accidents were “directly related to Ms. Bergen’s
lumbosacral pain complaints” and that those complaints represented an
aggravation of a pre-existing condition. He based this conclusion on his interview
with Ms. Bergen (I note Ms. Bergen told him she had no chronic back
pain complaints prior to the First Accident and that her low back pain began
the day following that accident), his review of the physiotherapy records of Mr. Mah,
Dr. Brit’s clinical records, x-rays and other imaging reports.

[99]        
In his second report, Dr. Helper noted a change in what Ms. Bergen
reported to him about her precedent condition:

c. Ms. Bergen’s verbal history was originally negative
for low back pain in the time period leading up to [the First Accident].

d. Ms. Bergen’s present verbal history leads to the
explanation that clinical records from Mr. Stephen Mah of iQuest
Physiotherapy, from 2008 & 2009, refer to “hip” area aching that was mild,
non-limiting, and different from her present day lumbosacral symptoms.

i. Her verbal history is negative
for recurrent or chronic “back” pain complaints.

ii. She describes no physical
limitations in the time period leading up to [the First Accident].

e. From the Progress Notes of iQuest Physiotherapy, from the
2008 and 2009 it appears as though Ms. Bergen was being followed for
symptoms in the low back and hip region between September 30, 2008 and February
26, 2009.

i. Overall, there is a trend
towards improvement when screening these handwritten records.

ii. There appear to be intermittent
flare-ups.

iii. The patient’s symptoms are not described as resolved.

[100]     Dr. Helper
noted that imaging of Ms. Bergen’s lumbar spine demonstrated degenerative
change at L4-5 and L5-S1 and that such changes “were likely present prior to”
the Accidents.

[101]     He opined
it was “likely less than 50%” that she would have “spontaneously deteriorated”
in 2009 or 2010 had she not been involved in the Accidents. He also opined that
“[o]ver a prolonged period of time (years), one would expect it would be more
likely than not that she would become increasingly symptomatic from either
mechanical low back symptoms or nerve root irritation or both.” In cross-examination,
he agreed this would be the case even absent the Accidents.

[102]     Dr. Helper
also opined on Ms. Bergen’s functional capacity. He concluded that a
combination of physical diagnoses (intolerance of sitting, walking, lifting and
carrying) as well as the emotional impact of her condition had led to total
disability from her previous job position and noted that “it is difficult to
suggest that Ms. Bergen would be qualified for any full-time gainful
employment at this time.”

[103]     In
cross-examination, Dr. Helper agreed spondylolisthesis was a degenerative
condition occurring as a process of aging and that, if one had the condition,
the usual trend was continued degeneration over time. He testified management
of pain by a spinal fusion was a last resort. He agreed he would defer to the
opinion of a spinal neurosurgeon, such as Dr. Paquette, for an opinion as
to spinal surgery.

[104]     Dr. Helper
was referred to Dr. Brits’ clinical records of May 18, 2010 and the referral
notes she had written to Dr. Nikolakis. He agreed that when he initially
saw Ms. Bergen she had not told him she had any prior problems with her
back before the First Accident. He testified prior to his second report she had
explained she thought the pain she experienced before the First Accident
originated from her hip area and not her lower back. He testified he thought,
however, she had lower back problems prior to the First Accident. He was not
aware Ms. Bergen had undertaken physiotherapy treatments between 2006 and
2008 and said, had he known this, it “could be potentially relevant” to his
opinion.

Dr. Ramesh Sahjpaul, Neurosurgeon

[105]     Dr. Sahjpaul,
a neurosurgeon, saw Ms. Bergen for medical legal assessments on March 2,
2013 and November 1, 2014 at the request of her counsel and provided medical
legal reports on March 11, 2013 and December 15, 2014, respectively.

[106]     In his
March 11, 2013 report Dr. Sahjpaul opined it was “more likely than not”
that Ms. Bergen had pre-existing degenerative spondylolisthesis at L5-S1
which was aggravated by the Accidents. In addition, she had developed a left L5-S1
facet joint cyst which was compressing the left S1 nerve root causing her left
leg symptoms.

[107]     He
recommended conservative treatment including a left S1 nerve root block with
cortisone and thought she may be a candidate for surgical intervention, which
he described as “a significant operation on the lumbosacral spine with
long-term consequences in terms of activity level, work issues, etc.” He was
not, however, optimistic conservative measures would resolve her symptoms.

[108]     During her
November 2014 visit Ms. Bergen clarified with Dr. Sahjpaul the low
back pain she had prior to the Accidents was left-sided pain which she related
to wearing her duty belt at work which went away when she removed the belt. She
also reported she was doing a desk job in 2008 and 2009 which did not require
her to wear her duty belt. She told Dr. Sahjpaul the Accidents had caused
her much worse pain but mostly on the right side of her lower back.

[109]     In his December
15, 2014 report Dr. Sahjpaul noted Ms. Bergen’s main complaint was of
persistent lower back pain in her lumbosacral area, left leg achiness and pain
which she said came on after the Second Accident, right leg numbness and
tingling originating in the right thigh and radiating down her leg after walking
for 15 minutes, headaches (twice a month) and neck stiffness which tended to coincide
with the headaches and occur around the time of her menstrual cycle.

[110]     In his
summary and conclusions, Dr. Sahjpaul noted “[p]rior to [the Accidents], Ms. Bergen
had left posterior upper iliac discomfort attributed to wearing her duty belt. This
was a mild complaint, non-progressive and non-disabling. She also had a history
of migraines.”

[111]     Dr. Sahjpaul’s
diagnosis was similar to that contained in his first report: low back pain due
to the First Accident which was aggravated by the Second Accident as a result
of pre-existing L5-S1 spondylolisthesis and stresses on the disc at this level.
He opined the low back pain was rendered symptomatic by the First Accident and
aggravated by the Second Accident. He also opined she had an aggravation of her
pre-existing migraines and the symptoms in her legs were probably due to the
Accidents and the pre-existing spondylolisthesis made her susceptible to nerve
root irritation/compression.

[112]     Dr. Sahjpaul’s
prognosis was that Ms. Bergen would “probably” not be able to resume her
CBSA position and that she was a candidate for spinal fusion surgery, which was
“a significant procedure” with “significant long-term limitations”. He noted
that persons who undergo such surgery typically experience pain sitting for
long periods, pain with impact type duties, inability to lift heavy objects
and, in Ms. Bergen’s case, she would not likely be able to wear her duty
belt after such a surgery.

[113]     In
cross-examination, Dr. Sahjpaul agreed he had reviewed the report of Dr. Nikolakis
and Dr. Brits’ referral note. He said he had not reviewed these reports
with Ms. Bergen and agreed the degenerative condition pre-existed the Accidents,
spondylolisthesis was a deteriorating condition and actual slippage of her L5-S1
disc and spur existed at the time of the First Accident. He agreed that with
her history it was not advisable for her to wear her duty belt or to engage in
activity such as wrestling or hand-to-hand combat.

[114]     He did not
agree that, absent the First Accident, her condition would have gotten worse. He
testified spondylolisthesis is common in the general population and the
majority of persons don’t know they have it and don’t require treatment. He
agreed that if Ms. Bergen was exposed to training programs as necessitated
by her work or was required to wear a duty belt it was possible her condition
would have worsened.

[115]     He agreed,
however, based on the referral note from Dr. Brits to Dr. Nikolakis, the
latter’s report back to Dr. Brits and Ms. Bergen’s physiotherapy
records shortly before the First Accident that Ms. Bergen had “significant
problems” with her lower back before the Accidents. He agreed the degree of
slippage in her L5-S1 between 2010 and 2013 had increased and was an indication
of the progressive nature of the condition.

Dr. Brenda Lau, Pain Specialist/Anesthesiologist

[116]     Dr. Lau
is an anesthesiologist and specialist in pain management who saw Ms. Bergen
for a medical legal assessment at the request of her counsel on December 11 and
16, 2014. As did the other medical practitioners who testified, she based her
opinion on the history she took from and her examination of Ms. Bergen and
her review of Ms. Bergen’s medical records.

[117]     Dr. Lau’s
report, dated December 29, 2014, was an extensive 37 pages, not including
appendices. I will attempt to do justice to summarizing her findings and
recommendations.

[118]     Dr. Lau’s
diagnosis was that Ms. Bergen suffered myofascial neck pain, headaches,
low back pain with upper leg symptoms (possibly due to the aggravation of
pre-existing, but asymptomatic, severe facet joint L5-S1 arthritis and
anterolisthesis), sleep disturbance, onset of depression and memory,
concentration and learning difficulties from the First Accident.

[119]     Dr. Lau’s
diagnosis from the Second Accident was that Ms. Bergen suffered an
exacerbation of unresolved neck, back and right leg pain caused by the First Accident,
new and persistent left leg pain which may have been an aggravation of her previous
asymptomatic L5-S1 facet joint disc with compression of the S1 nerve root,
exacerbation of pre-existing temporomandibular joint dysfunction (TMJD) and a pre-existing
persistent bowel dysfunction.

[120]     Dr. Lau
also opined Ms. Bergen’s functional difficulties were aggravated by severe
depression, social isolation (including not working), high functional
disability scores, an irritated bladder which may have been caused by the use
of medications for her back pain and the onset of hyperalgesia (increased
muscle pain) after 2012 which did not allow her to “tolerate physiotherapy or
massage after 2012.”

[121]     Dr. Lau
opined Ms. Bergen had not reached her maximum medical recovery or improvement
so she was not able to comment on Ms. Bergen’s future period of full or
partial disability as there were, in her view, “a number of pain mechanisms
that have yet to be addressed”.

[122]     Dr. Lau
further opined that based on studies she had reviewed, “even with her imaging
changes she would not have been at any higher risk that the general population
in developing back pain”. I do not accept Dr. Lau’s opinion in this regard
as, in my view, such opinion is well outside the area of her expertise and runs
contrary to the evidence of Drs. Helper and Sahjpaul.

[123]      Dr. Lau
recommended a “layered approach” to her treatment by an interdisciplinary team
which would include progressively invasive treatments from massage to IMS to
therapies such as dextrose perineural injections and trials of intravenous
lidocaine or ketamine. She recommended an assessment by a neurologist regarding
her migraine headaches, the use of medications for pain, and to assist sleep
and mood management, vitamin supplements and psychiatry or group therapy to
assist with Ms. Bergen’s depression. It was her opinion at trial that a
conservative approach to treatment should be applied before surgery was
considered.

[124]     In cross-examination,
Dr. Brits’ clinical records, Dr. Nikolakis’ opinion and the pre-Accident
physiotherapy clinical records were shown to Dr. Lau. She agreed it
appeared Ms. Bergen had complained before the Accidents about the same
back problems she was experiencing at the time she examined her. She also
agreed Ms. Bergen had not told her about her previously existing problems
of progressively worsening back pain.

[125]     Dr. Lau
agreed with the suggestion that the greater the impact forces sustained in the Accidents
the greater the plaintiff’s pre-existing spondylolisthesis would affect her.

[126]     Dr. Lau
also agreed Grade 2 spondylolisthesis was a condition that could be expected to
deteriorate over time and Ms. Bergen’s concerns about her ability to cope
with her upcoming work training program were reasonable.

[127]     Dr. Lau
agreed the plaintiff had attended counseling in early 2010 and the counselor’s
notes had considerable reference to family dynamics but nothing to suggest the
plaintiff’s emotional state is related to either of the Accidents.

[128]     Dr. Lau
was also of the view Ms. Bergen “will be employable in some capacity,” not
necessarily in her former occupation, following further treatment. She was of
the view the physiotherapy treatment by Mr. Mah had been of no sustained benefit
to Ms. Bergen. Dr. Lau recommended Ms. Bergen undergo a
vocational assessment.

Dr. Bruce Blasberg, Oral Medicine Specialist

[129]     Dr. Blasberg,
a specialist in oral medicine, saw Ms. Bergen on October 23, 2014 at the
request of her counsel for the purposes of preparing a medical legal opinion,
dated January 2, 2015, opining about the origin of Ms. Bergen’s complaints
of pain in her jaw area following the Accidents. In preparing his opinion, Dr. Blasberg
reviewed the medical records of Dr. Brits and several dentists who saw Ms. Bergen
after the Accidents and examined her.

[130]     Dr. Blasberg
noted that following the Second Accident, Dr. Brits’ clinical notes
reflected a complaint by Ms. Bergen that she felt an immediate pain in her
lower jaw. He also noted that x-ray results of Ms. Bergen’s jaw showed degenerative
disease in her left and right temporomandibular joints. He said her problems
with jaw pain or function were improved by oral appliance therapy and orthodontic
treatment. Dr. Blasberg was of the opinion that the jaw muscle pain
disorder Ms. Bergen sustained in the Second Accident was probably caused
by the Second Accident, but that he could not say it was more than 50% probable
degenerative changes in her TMJ were caused by the Second Accident.

Mr. Steven Mah, Physiotherapist

[131]     Mr. Mah
had been the plaintiff’s physiotherapist since 2008. He prepared a report dated
April 14, 2013 and was cross-examined at trial.

[132]     Mr. Mah
started treating Ms. Bergen prior to the First Accident in August 2008 for
abdominal, low back and hip pain. He concluded her “mild low back pain” was “associated
with endometriosis” (an irritation of tissues of the uterus) associated with
her menstrual cycle. Mr. Mah continued to treat her to May 2013 when Ms. Bergen
discontinued treatment.

[133]     Ms. Bergen
attended the two clinics at which Mr. Mah worked, IQuest Performance
Centre and, subsequently, commencing in March 2010, Oakridge Physiotherapy. She
also attended a personal trainer at IQuest up to July 2009. At the time Mr. Mah
wrote his report he did not have access to the complete set of IQuest’s clinical
notes. The notes were available by the time of the trial.

[134]     Mr. Mah
assessed the plaintiff’s injuries in March 2010, a year subsequent to the First
Accident, as including cervical spine stiffness, moderate neck pain with
associated moderate to severe headaches, moderate low back pain which was
degenerative in nature and decreased bladder control.

[135]     Ms. Bergen
saw Mr. Mah two to three times a month between the dates of the First Accident
and the Second Accident. Mr. Mah noted she had demonstrated a “slow but progressive
improvement” after the First Accident but that her symptoms were aggravated by
the Second Accident.

[136]     Ms. Bergen
continued to see Mr. Mah several times a month up to May 2013. He
described her most significant ongoing problems as being moderate to severe
neck, moderate to severe low back pain, TMJ dysfunction and decreased strength
and conditioning.

[137]     Mr. Mah
noted that Ms. Bergen “demonstrated excellent motivation and compliance in
carrying out her home exercise program” during the course of his treatment.

[138]     In cross-examination,
Mr. Mah agreed that, on her intake form before commencing treatment at
IQuest, Ms. Bergen wrote the reason for her attendance was for “lower back
pain” which had commenced in August 2006. She indicated she had been attending
a chiropractor, Dr. Burge.

[139]     Also in
cross-examination, Mr. Mah was referred to the first entry in his progress
notes made September 30, 2008 in which he had assessed Ms. Bergen as
having a “SI joint dysfunction” with right side lower back pain. There are a number
of notes made prior to the First Accident by Mr. Mah and Ms. Bergen’s
personal trainer documenting Ms. Bergen had complaints of a sore back or
hip. The trainer’s note of February 24, 2009, for example, read “back SI is out
again … Extreme pain associated w/ it”.

Mr. Philip Towsley, Occupational Therapist

[140]     Mr. Towsley
is an occupational therapist who prepared a functional/work capacity evaluation
report on December 25, 2014 after evaluating the plaintiff on November 26 and
27, 2014. His report included an assessment of Ms. Bergen’s cost of future
care.

[141]     Following
testing of Ms. Bergen, which included a push/pull/carry capacity
evaluation, grip testing, cardiovascular testing and lifting, standing,
stooping and bending tests, Mr. Towsley concluded Ms. Bergen
demonstrated a sedentary to light strength level and had “demonstrated
limitations” sitting, standing and stooping which would make it impossible for
her to perform her former work with the CBSA. It was his view she did not meet
the strength, mobility or tolerance demands of her former work position. He
found her core stability was limited. He concluded she would be able to perform
her own housekeeping activities with time for stretching and resting.

[142]      Mr. Towsley
recommended Ms. Bergen undertake a vocational assessment and counseling
which may be useful for Ms. Bergen to determine how her transferrable
skills may play a role in reaching her vocational goal. He described Ms. Bergen
as having “considerable transferable skills.” He recommended she would benefit
from involvement of an occupational therapist, ongoing therapy for symptom
management, assistive devices and some assistance with more involved outdoor
yard maintenance. He recommended an interdisciplinary pain management program
even if spinal surgery became a viable option.

[143]    
He noted:

Ms. Bergen does have
transferrable skills worth considering and she did indicate having some idea of
a possible vocational path that would meet her present functional capacity and
tolerance levels. Even with such plans ergonomic consultation is still
recommended as some degree of limitations are likely to remain.

[144]    
Mr. Towsley provided a list of costs associated with the cost of
future care recommendations he and Ms. Bergen’s other care givers had recommended:

[145]     In cross-examination,
the defendants challenged Mr. Towsley on the methodology he had used in
testing Ms. Bergen, suggesting he had used the American standards for
measuring function instead of those issued by the Canadian government, thereby
enabling him “to slide” Ms. Bergen into the “sedentary/light” rather than
the “light/medium” work capacity category which would be indicated under the
latter system of job function measurement. Mr. Towsley maintained he had
used the correct assessment of Ms. Bergen’s functional capacity.

[146]     Mr. Towsley
confirmed at the time he made his recommendation for future care he was not
aware the plaintiff was presently attending Dr. Lau’s Change Pain program.
He agreed that if this program or surgery were successful the cost of future
care would be decreased.

Mr. Kevin Turnbull

[147]     Mr. Kevin
Turnbull, a Chartered Account and Economist was called to provide expert
testimony provided three reports: the first estimating the present value of Ms.
Bergen’s Loss of Future Earnings, the second, estimating the costs of her
future care and the third, estimating Ms. Bergen’s loss of earnings to the date
of trial and her pension loss. Mr. Turnbull estimated Ms. Bergen’s pension loss
to be between $218,000 and $295,000 based on assumptions she would have worked
until age 60 and had no ability to return to work in a position with a pension.

The Defendants’ Medical Evidence

Dr. Bernard Tessler, Neurologist

[148]     Dr. Tessler,
a neurologist retained by the defendants, interviewed and examined Ms. Bergen
on October 29, 2013 for a neurological assessment. Dr. Tessler reviewed Ms. Bergen’s
clinical records and provided a medical legal report on the date he assessed
her and a further report once he had had an opportunity to review the reports
of Drs. Paquette, Nikolakis, Cripps (a urologist) and Cundiff. These reviews
did not change his initial opinion.

[149]     Dr. Tessler’s
opinion was that as a result of the First Accident, Ms. Bergen “had an
aggravation of pre-existent symptoms due to soft tissue lumbar strain injury.” He
opined her complaint of numbness extending around the hip to the right lateral
thigh area to the right lateral cutaneous nerve of the thigh was not due to an L2
or L3 nerve root irritation.

[150]     Dr. Tessler
opined she sustained a “further aggravation of her lumbar symptoms due to a
soft tissue musculoligamentous strain injury” as a result of the Second
Accident which prolonged her recovery and that she continued to be symptomatic
due to the date of her examination. He notes that she was tender in the left
sacroiliac joint and opined “this is not nerve root irritation but due to
sacroiliac joint discomfort or hip discomfort." He acknowledged her “pains
have limited her in her work”.

[151]     In
cross-examination, Dr. Tessler agreed he had not asked Ms. Bergen if
she had prior menstrual problems or pelvic pain and that it was difficult for
many women to differentiate between pelvic pain and back pain.

[152]     Dr. Tessler
testified he was not familiar with the science underlying Dr. Lau’s
opinions but agreed he could not disagree with her report.

[153]     Dr. Tessler
also agreed it was not surprising two surgeons may have differing views about
the how back surgery might proceed and this could be unsettling to a patient.

Dr. Thomas Burge, Chiropractor

[154]     I have
touched on Dr. Burge’s evidence earlier. Dr. Burge was a chiropractor
called by the defendants who had treated Ms. Bergen on some 49 occasions
between August 23, 2006 and September 2008.

[155]     Dr. Burge
testified that while he had lost his clinical records he did have a list of
treatment dates and a copy of an x-ray of Ms. Bergen’s cervical and lumbar
spine taken August 23, 2006 as a routine process when he first saw her.

[156]     The
impression he noted on the x-ray report pertaining to her lumbar spine was “[m]ild
lumbar spine and SI joint degenerative changes with increased biomechanical
stress of facet joints due to hyperlordosis of the lower back curve”. His
impression of her cervical spine was “[v]ery mild C7-T1 osteoarthritis with
loss of normal cervical spine lordosis which increases biomechanical stress”.

[157]     Dr. Burge
did not recall treating Ms. Bergen. The purposes noted for a number of his
treatments are for “chiropractic adjustment” and for “massage”.

[158]     In
cross-examination, Dr. Burge agreed many patients see him to improve their
personal performance or simply in pursuit of personal wellness. He agreed that
toward the end of his treatment of Ms. Bergen she was seeing him about once
a month.

Dr. Geoffrey Cundiff, Obstetrician/Gynaecologist

[159]     Dr. Cundiff
reviewed the medical reports filed on behalf of Ms. Bergen, the clinical
records of Dr. Brits, the accident reports, the pleadings and other
documents provided to him by the defendants’ counsel and prepared a medical
legal report dated November 6, 2014 in which he gave his opinions on a series
of questions posed to him by defence counsel. His opinions pertained to the
nature of the injuries sustained by the plaintiff in the Accidents, to the
extent to which she had recovered from those injuries, his prognosis for future
recovery, the extent to which the plaintiff’s symptoms and disabilities were
related to or unrelated to the Accidents and whether she would have suffered
from those symptoms in any event of the Accidents.

[160]     Dr. Cundiff
opined “her back pain is consistent with the progression of degenerative spinal
arthritis over time rather than traumatic injury.” He was of the view the Accidents
did not cause or exacerbate her urinary incontinence, endometriosis or bowel
complaints but rather “these are chronic diseases that could have further
progression.”

[161]     In
cross-examination, Dr. Cundiff agreed he had modified his report after
talking with counsel for the defendants to remove opinions related to Ms. Bergen’s
lower back. He also agreed previous counsel for the defendants had read
portions of Ms. Bergen’s examination for discovery to him. When asked if
he relied on this he responded “I guess I did”, but testified he had primarily
relied on the material he had been provided by defence counsel including the
photos of the damage to the vehicles during the Accidents, the repair estimates
to the vehicles and statements Ms. Bergen and the defendants gave to ICBC
as well as the various medical reports provide by her physicians.

[162]     Dr. Cundiff
agreed in cross-examination he did not rule out that the Accidents could not
have aggravated the plaintiff’s lower back pain symptoms. He also agreed that
following the First Accident the plaintiff had made progress toward recovery of
her symptoms. He agreed he was not qualified to comment on how her back pain
and migraine headaches would affect her present or future ability to work.

[163]     As the
conversation(s) between previous defence counsel and Dr. Cundiff, the
questions and answers read to him from Ms. Bergen’s examination for
discovery and the modifications made to his reports as a result were not adduced
in evidence, I give little weight to Dr. Cundiff’s report or to his
evidence.

Dr. Brian Toyota, Neurosurgeon

[164]     Dr. Toyota,
a neurosurgeon, provided a “rebuttal” medical legal report to the medical legal
reports filed by the plaintiffs (specifically to the reports of Drs. Helper,
Blasberg, Sahjpaul, Lau and Brits and Mr. Mah). Dr. Toyota did not
see or independently assess Ms. Bergen.

[165]     Dr. Toyota’s
overall opinion was that while it was “within possibility” Ms. Bergen’s “pain
syndrome” was exacerbated by the Accidents, it was “more than probable that
this exacerbated pain has since resolved and what remains is the pain she would
have expected to endure given her pre-existing condition of chronic low back
pain.” He noted it was “well documented” her Grade 1 spondylolisthesis “very
clearly” existed prior to the Accidents.

[166]     Dr. Toyota
criticised the conclusions drawn by Drs. Helper and Sahjpaul on the basis they
“failed to critique” Ms. Bergen’s descriptions of her body mechanics
during both car accidents. He referred to the minor cost to repair the vehicles
and to the physical evidence of damage to the vehicles. It was his view “the
denominator of people involved in low velocity ‘fender benders’ is ample and
the resultant pain and disability seen in Ms. Bergen is not the norm.”

[167]    
He criticised Dr. Helper for failing to consider “causation”:

…Dr. Helper does not put any consideration into the
actual parameters of the vehicle collision. It is not clear how one can apply
causation without this consideration- the consideration of ‘how the
accidents caused the current pain syndrome’. … It is almost as if he feels any
car accident can cause debilitating back pain and that the simple report of
having been in a car accident is sufficient explanation for any subsequent
visceral complaint.

[Emphasis in original.]

[168]     Dr. Toyota
wrote that given the plaintiff’s previous complaints to Dr. Brits and the
fact she had physiotherapy and chiropractic treatments prior to the First Accident,
he disputed Dr. Sahjpaul’s conclusion that Ms. Bergen’s
spondylolisthesis was asymptomatic prior to the First Accident.

[169]     He also
noted “there is yet to be any objective evidence of traumatic consequence to Ms. Bergen-
none of the imaging show anything more than a modest progression of her
underlying/pre-existing condition” and that all her neurological examinations
since the Accidents were normal in terms of sensation, strength and reflexes.

[170]     Dr. Toyota
was highly critical of Dr. Lau’s report and labelled her description of
mechanical low back pain as “scientific pontification”. He referred to her
report as long, convoluted and exhaustive. He opined Dr. Lau was unable,
based on her experience, expertise and training to give an opinion on causation
of Ms. Bergen’s low back pain whereas experts in neurosurgical trauma
could “comfortably provide this opinion”. Dr. Toyota also viewed Dr. Brit’s
assertion the Accidents caused Ms. Bergen’s chronic back pain as “not
credible”.

[171]     Dr. Toyota
concluded one of Mr. Mah’s conclusions was based on “a rather grand
assumption” (that Ms. Bergen’s low back pain was due to endometriosis) and
his statement that the Second Accident resulted in significant changes observed
in the lumbar spine as noted on her MRI was “patently false and without
expertise in reading MR images of the spine.”

[172]     Dr. Toyota
criticized Dr. Blasberg for failing to “actually describe the mechanism by
which [the Accidents] would have caused a painful jaw syndrome” and not dealing
with the discrepancy between his conclusion that the Accidents led to a jaw
muscle pain disorder and Ms. Bergen’s diagnosis of TMJ syndrome prior to
the First Accident.

[173]     In
cross-examination, Dr. Toyota agreed the information contained in his
report concerning the nature of the damage to the vehicles in the Accidents and
what Ms. Bergen said about “her body mechanics” in the Accidents was not
contained in the list of “Materials Reviewed” in his report and that it should
have been.

[174]     Dr. Toyota
also agreed it was relevant to consider how the patient felt, how fit she was
before the Accidents and how she felt after the Accidents. He agreed this was a
“crucial” factor. He agreed all he knew about her treatment at IQuest before
the First Accident was that she was being treated for lower back pain. He did
not know if she was seeing a personal trainer. He was of the view she was “going
out of her way” to incur costs to treat her condition in attending Dr. Lau.

[175]     I do not
accept Dr. Toyota’s conclusions in this regard for several reasons. First,
his opinion is contrary to the opinions of Drs. Helper, Sahjpaul and Brits
whose opinions I do accept: that Ms. Bergen’s lower back and left leg
problems, particularly, were aggravated by the Accidents. These physicians
examined Ms. Bergen: Dr. Toyota did not.

[176]     In my
view, Dr. Toyota’s report is argumentative in nature and contains language
which seeks to impugn the credibility of the plaintiff’s physicians. Lastly,
and more importantly, in cross-examination Dr. Toyota agreed he did not
rule out that the plaintiff’s injuries may have been aggravated by the
Accidents. I find Dr. Toyota’s opinions were likely influenced by
materials he was provided with and discussions he had with the defendant’s
former defence counsel that were not before the court. For this reason alone I
would disregard his opinion.

Dr. Christopher Cooke, Vocational Consultant and Work Capacity
Evaluator

[177]     Dr. Cooke,
a Vocational Consultant and Work Capacity Evaluator, reviewed the medical legal
reports of the plaintiff’s physicians, Mr. Towsley’s functional assessment
and opinions, Sun Life’s disability records and provided an opinion regarding Ms. Bergen’s
vocational potential in a report dated February 13, 2015. Dr. Cooke was
cross-examined on his report at trial. Dr. Cooke did not conduct
functional testing of Ms. Bergen and had not reviewed the job
responsibilities of her position.

[178]     Dr. Cooke
concluded “[t]here is support for the exploration of alternative vocational
options for Ms. Bergen … including the potential for retraining.”

[179]     Dr. Cooke
suggested the primary focus for vocational exploration would be to obtain
suitable, alternate employment with the CBSA. He opined that should Ms. Bergen
be unable to return to her pre-accident job it was “possible” she would be able
to seek an accommodation in a modified light-duty position as a CBSA officer or
transfer to a different job within her physical abilities and, thus, maintain
her seniority, pension contributions, healthcare and extended benefits. He
opined there would be a form of salary protection available to Ms. Bergen
if/when she returned to work with the CBSA. He identified various positions
within the CBSA and other federal public service agencies with whom he
considered her skills transferable which required a “sedentary to light
strength level” based on Mr. Towsley’s conclusions.

[180]     Dr. Cooke
testified he spoke with someone in the union representing federal public
service employees who had advised him Ms. Bergen was entitled to “salary
protection” when she returned to work. As this evidence was not included in Dr. Cooke’s
report, it is hearsay evidence and, as no other witness gave evidence – this
benefit would be available to the plaintiff (Mr. Atkinson was not
cross-examined on the subject), I disregard Dr. Cooke’s evidence on this
point.

[181]     In cross-examination,
Dr. Cooke agreed Mr. Towsley was in a better position to assess Ms. Bergen’s
capabilities than he was. He acknowledged he was not aware of the “specific
details” applied by the CBSA or more generally by the Canadian Public Services
Commission when considering application of the duty to accommodate. Dr. Cooke
agreed he did not know the process under which Ms. Bergen might be able to
transfer to another department, including Citizenship and Immigration, Canadian
Security Intelligence Service and Customs, nor whether she would need to
compete for such position. Dr. Cooke was not aware Ms. Bergen had
been approved for long-term disability and agreed the longer a person was off
work on disability the more difficult it was to find employment and return to
work.

Issues

[182]     Based on
the position of the parties, the following issues require determination:

1.     Is Ms. Bergen’s
evidence generally reliable?

2.     What were
the pre-existing conditions and did the Accidents aggravate Ms. Bergen’s
pre-existing condition of spondylolisthesis and, if so, to what extent?

3.     If Ms. Bergen’s
pre-existing condition was aggravated by the Accidents, is her present
disability related to that aggravation or is it a disability which would have
come on in any event of the Accidents? That is, would she have her present disability
“but for” the Accidents?

4.     Did the Accidents
hasten the onset of Ms. Bergen’s disability as a result of her
pre-existing condition and is it likely Ms. Bergen’s pre-existing
condition would have affected her in any event of the Accidents?

5.     What
damages should be awarded to Ms. Bergen under each of the heads of damages
for which she claims?

Ms. Bergen’s Credibility

[183]     The
defendants say Ms. Bergen has been “economical” with the truth in giving
much of her evidence. The defendants referred to a surveillance video taken a
week before the trial during which the plaintiff went for a 55-minute walk
following which it is alleged she went shopping for one-and-a-half hours before
returning home.

[184]     The
defendants assert Ms. Bergen has downplayed the significance of her pre-existing
condition to the physicians she saw; that she purposefully could not remember Dr. Burge’s
name (the implication being she sought to hide the nature and number of
treatments she had with him prior to the First Accident); that she exaggerated
the force of impact during the Accidents to her attending physicians; and that
her evidence was inconsistent with the evidence of her husband about activities
she could do around the time of the First and Second Accidents.

[185]     The
defendants say that while some discrepancy and confusion may be understandable,
given the aggregate of the above and discrepancies on significant issues, the
court should consider the totality of her evidence and find she has not been a
credible witness.

[186]     I disagree
with the defendants that Ms. Bergen was not a credible witness. In my
view, Ms. Bergen gave her evidence in a straightforward and honest manner.
Her evidence was, to a very great extent, corroborated by the testimony of her
husband and by those who knew her, including her work associates, all of whom I
find to be credible and reliable witnesses.

[187]     Certainly there
were discrepancies in the plaintiff’s evidence as to the condition of her lower
back before the First Accident and complaints related to Mr. Mah, the
trainer who worked at IQuest, and Dr. Burge. Ms. Bergen is a poor
historian. However, the discrepancies in her evidence can, in my view, be
explained by several factors.

[188]     The first
is that this trial took place some nine years after the lower back complaint
was first raised in 2006 and six years after the First Accident and
four-and-a-half years after the Second Accident. There can be little doubt the
passage of time, the nature of the injuries she sustained, the number of
physicians she has seen and the treatment she has received have all taken a
toll on her ability to recollect details with any precision.

[189]     Second, Ms. Bergen
associated the source of some of her pre-accident low back complaints to endometriosis.
While the defendants quite properly rely on Dr. Brits’ referral note to Dr. Nikolakis,
the latter’s report to Dr. Brits was not received by her. Hence there is
little likelihood the plaintiff would have known of Dr. Nikolakis’
findings or recommendations. Several of the medical witnesses, including Dr. Toyota,
testified it would be difficult for the plaintiff to distinguish the pain
associated with endometriosis from that associated pain caused by mechanical
low back pain.

[190]    
Third, much reliance was placed by the defendants on the clinical
records, particularly of Mr. Mah and Dr. Brits. It is useful to bear
in mind the comments of Mr. Justice N. Smith in Edmondson v. Payer,
2011 BCSC 118 at paras. 34-37, aff’d 2012 BCCA 114:

[34] The difficulty with statements in clinical records is
that, because they are only a brief summary or paraphrase, there is no record
of anything else that may have been said and which might in some way explain,
expand upon or qualify a particular doctor’s note. The plaintiff will usually
have no specific recollection of what was said and, when shown the record on
cross-examination, can rarely do more than agree that he or she must have said
what the doctor wrote.

[35] Further difficulties arise when a number of clinical
records made over a lengthy period are being considered. Inconsistencies are
almost inevitable because few people, when asked to describe their condition on
numerous occasions, will use exactly the same words or emphasis each time. As Parrett J. said in Burke-Pietramala v. Samad, 2004
BCSC 470, at paragraph 104:

…the reports are those of a
layperson going through a traumatic and difficult time and one for which she is
seeing little, if any, hope for improvement. Secondly, the histories are those
recorded by different doctors who may well have had different perspectives and
different perceptions of what is important. … I find little surprising in the
variations of the plaintiff’s history in this case, particularly given the
human tendency to reconsider, review and summarize history in light of new
information.

[36] While the content of a clinical record may be evidence
for some purposes, the absence of a record is not, in itself, evidence of
anything. For example, the absence of reference to a symptom in a doctor’s
notes of a particular visit cannot be the sole basis for any inference about
the existence or non-existence of that symptom. At most, it indicates only that
it was not the focus of discussion on that occasion.

[37] The same applies to a
complete absence of a clinical record. Except in severe or catastrophic cases,
the injury at issue is not the only thing of consequence in the plaintiff’s
life. There certainly may be cases where a plaintiff’s description of his or
her symptoms is clearly inconsistent with a failure to seek medical attention,
permitting the court to draw adverse conclusions about the plaintiff’s
credibility. But a plaintiff whose condition neither deteriorates nor improves
is not obliged to constantly both busy doctors with reports that nothing has changed,
particularly if the plaintiff has no reason to expect the doctors will be able
to offer any new or different treatment. Similarly, a plaintiff who seeks
medical attention for unrelated conditions is not obliged to recount the
history of the accident and resulting injury to a doctor who is not being asked
to treat that injury and has no reason to be interested in it.

[191]     Dr. Brits’
clinical records had but one reference to Ms. Bergen having an issue with
low back pain prior to the First Accident. On July 28, 2008, Ms. Bergen complained
of “progressive back pain” which was the result of “very physical training” for
the half marathon she was planning to run that August. Ms. Bergen told Dr. Brits
the pain was relieved by attending her chiropractor and by running. Ms. Bergen
again complained of lower back pain to Mr. Mah on September 30, 2008,
which he diagnosed as endometriosis, as described in his September 30, 2008
clinical note. At the same time she attended a personal trainer at the clinic
for the purpose of improving her performance, particularly her running
activities.

[192]     The
defendants say Ms. Bergen purposefully overstated the speed at which each
of the defendants were driving when she was rear-ended to magnify the effect
each impact had on her injuries. I do not accept this was her purpose. She did
not know how fast each defendant was travelling and gave a speed that matched
the speed limit in the area of the accident. While she was not accurate with
her physicians, I find she was not purposely trying to mislead them.

[193]     The
defendants rely on portions of a video taken by an investigator showing clips
of Ms. Bergen going for a walk and then attending a shopping centre. The video
depicted only portions of Ms. Bergen’s activities that day. The plaintiff
testified both during her walk and during her shopping she stopped to rest. As
it showed only portions of the plaintiff’s activities on the day it was taken
the video is of little assistance in resolving the issues before the court. I
accept Ms. Bergen’s evidence she had to stop and rest during both her walk
and shopping.

Speed and Severity of the Accidents

[194]     Much of
the defendants’ case rests on the fact the Accidents were low impact accidents
and that such low impacts were unlikely to have caused Ms. Bergen the
significant injuries about which she has afterwards complained. This is the
premise underlying Dr. Toyota’s report wherein he concludes there is no
“causation” between Ms. Bergen’s current complaints and the Accidents. As
mentioned above, I find that Dr. Toyota’s opinions were likely influenced
by former defence counsel in this case.

[195]     Further, this
court has recognized in a long line of authorities that low impact accidents,
while necessitating a close examination of the evidence, can cause significant
injuries: Christoffersen v. Howarth, 2013 BCSC 144 at paras. 53-60; Rabiee
v. Rendleman, 2015 BCSC 595 at para. 59.

Application of the Applicable Legal Principles

[196]     The
opinions of Drs. Helper, Sahjpaul and Tessler, as well as those of Dr. Brits,
lead me to conclude that in assessing Ms. Bergen’s damages caused by the
defendant’s negligence, I must make a deduction from an otherwise appropriate
award for her pre-existing, but then mostly asymptomatic, medical condition
which put her at risk for the development of some of the injuries from which she
has suffered at some point in the future even if the collisions had not
occurred.

[197]     The need
to make such a deduction is founded upon the analysis of causation and damages discussed
by the Supreme Court of Canada in Athey v. Leonati, [1996] 3
S.C.R. 458, 140 D.L.R. (4th) 235 [Athey], and cases decided thereafter
which discuss the difficult questions involved in the quantification of damages
in cases where the evidence establishes that the plaintiff suffered from
pre-existing injuries or conditions.

[198]    
In Athey, Justice Major wrote at para. 32 for the Court:

The essential purpose and most basic principle of tort law is
that the plaintiff must be placed in the position he or she would have been in
absent the defendant’s negligence (the “original position”). However, the
plaintiff is not to be placed in a position better than his or her
original one. It is therefore necessary not only to determine the plaintiff’s
position after the tort but also to assess what the “original position” would
have been. It is the difference between these positions, the “original
position” and the “injured position”, which is the plaintiff’s loss.

[Emphasis in original.]

[199]    
The Court then went on to discuss the “Thin Skull” and “Crumbling Skull”
doctrines at paras. 34 and 35:

The respondents argued that the plaintiff was
predisposed to disc herniation and that this is therefore a case where the
“crumbling skull” rule applies. The “crumbling skull” doctrine is an awkward
label for a fairly simple idea. It is named after the well-known “thin skull”
rule, which makes the tortfeasor liable for the plaintiff’s injuries even if
the injuries are unexpectedly severe owing to a pre-existing condition. The
tortfeasor must take his or her victim as the tortfeasor finds the victim, and
is therefore liable even though the plaintiff’s losses are more dramatic than
they would be for the average person.

The so-called “crumbling skull” rule simply
recognizes that the pre-existing condition was inherent in the plaintiff’s
“original position”. The defendant need not put the plaintiff in a position
better than his or her original position. The defendant is liable for the injuries
caused, even if they are extreme, but need not compensate the plaintiff for
any debilitating effects of the pre-existing condition which the plaintiff
would have experienced anyway. The defendant is liable for the additional
damage but not the pre-existing damage: Cooper-Stephenson, supra, at
pp. 779-780 and John Munkman, Damages for Personal Injuries and Death
(9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that
the pre-existing condition would have detrimentally affected the plaintiff in
the future, regardless of the defendant’s negligence, then this can be taken
into account in reducing the overall award: Graham v. Rourke, supra;
Malec v. J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson,
supra, at pp. 851-852. This is consistent with the general rule that the
plaintiff must be returned to the position he would have been in, with all of
its attendant risks and shortcomings, and not a better position.

[Underline emphasis added.]

[200]     Counsel
for the defendants has submitted that all aspects of Ms. Bergen’s ongoing
back and leg problems are related to her pre-existing L5-S1 disc problems and that
such problems would have occurred in any event of the Accidents. He further
submits that if they had not occurred she had not already returned to her
pre-accident condition, she would soon do so.

[201]     I agree
with the defendant’s submission and the application of the above legal
principles in this case but not with the period of time the defence argues Ms. Bergen
would have been bothered by her pre-existing condition in any event of the Accidents.

Non-pecuniary Damages

[202]     The
principles underlying an award for non-pecuniary damages are set out in the
well-known and oft-cited decision of the Court of Appeal in Stapley v. Hejslet,
2006 BCCA 34, leave to appeal ref’d [2006] S.C.C.A. No. 100. The factors the
court must take into account include the age of the plaintiff, the nature of
the injury, the severity and duration of the pain, any resulting disability,
resulting emotional suffering, loss or impairment of life, impairment of family
life, marital and social relationships, any impairment of physical or mental
abilities, loss of life style and the plaintiff’s stoicism (which, generally
speaking, should not penalize a plaintiff) (at para. 46). The list is non-exhaustive.

[203]     Notwithstanding
the breadth of issues the court must consider in deciding what amount to award
for non-pecuniary damages, a fundamental principle underlying any award of
damages is that a defendant is only liable to pay damages caused by his/her
negligence. Further, any amount awarded must be fair to both plaintiff and
defendants.

[204]     The
plaintiff says the plaintiff should be awarded $110,000 in non-pecuniary
damages, relying on White v. Wiens, 2015 BCSC 188 [White]; Djukic
v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203; Gormick v. Amenta, 2013
BCSC 1128; Neumann v. Eskoy, 2010 BCSC 1275; Durkee v. Sherwood,
2013 BCSC 104; and Jones v. Arjun, 2013 BCSC 1313.

[205]     The
defendants submit the court should award the plaintiff at the lower end of a
range of between $60,000 and $70,000 in non-pecuniary damages.

[206]     Again, the
defendants say the evidence establishes Ms. Bergen suffered from a
symptomatic degenerative condition of her spine at the time of the First Accident
and that even had the Accidents aggravated her condition she would have
eventually been in the position she is now. That is, the defendants say Ms. Bergen’s
underlying condition would have progressed to leave her with her present pain
and suffering and functional disabilities.

[207]     The
defendants rely on Athey; White; Preece v. Leonard, 2014
BCSC 173; and Munoz v. Singh, 2014 BCSC 567.

[208]     I find
that Ms. Bergen had a pre-existing condition of spondylolisthesis which
has been described by the physicians who saw her as degenerative and which was
aggravated by the Accidents. While active training as a CBSA officer and,
likely, the wearing of her duty belt, periodically aggravated her symptoms, she
was able to function fully at work and to enjoy an athletic and active
lifestyle prior to the First Accident. She worked at maintaining herself in
good physical condition, regularly attending a trainer and physiotherapist for
conditioning and the treatment of minor complaints. She was recovering well
when her condition was further aggravated by the Second Accident.

[209]     There is
little doubt the Second Accident aggravated Ms. Bergen’s lower back pain.
She testified the pain radiates into her lower leg to such an extent that the
resulting pain and discomfort has become debilitating to her. She has developed
a depressed mood and has isolated herself from friends, not wanting to or not
able to socialize with friends and family. She is unable to work, having gone
on disability leave in January 2013 because of continuing pain and discomfort
in performing her job duties. She is unable to participate in the sporting and
recreational activities she formerly enjoyed prior to the First Accident. She
is unable to take her dog for a walk or shop without lying down to rest and
alleviate the pain. Her injuries and emotional health have affected her marital
relations with Mr. Burns. She continues to be seen by Dr. Brits and
is now being seen by Dr. Lau at a pain clinic. She is a candidate for
spinal surgery should treatments by Dr. Lau not be successful.

[210]     In my
view, after considering the authorities referred to by counsel, while
recognizing no two cases are the same, the appropriate amount to award Ms. Bergen
as non-pecuniary damages is $100,000.

Damages for Lost Housekeeping Capacity

[211]     The plaintiff
claims $20,000 for lost housekeeping capacity to compensate her for work about
their home she can no longer do or is limited in doing, including cleaning,
vacuuming, cooking, shopping, heavier gardening and other chores now performed
by Mr. Burns.

[212]     Mr. Towsley
was of the view Ms. Bergen should do as many household chores as she could
manage. I do not make a separate award for lost housekeeping capacity. I have
included a consideration of this factor in my award for non-pecuniary damages.

Past Loss of Earnings

[213]     Ms. Bergen’s
employment earnings with the CBSA from 2007 to the time she went on sick leave were
as follows:

[214]     Mr. Turnbull
estimated Ms. Bergen’s gross income for 2014 would have been $76,871 had
she remained working.

[215]     Ms. Bergen
commenced receiving disability benefits in or about January 2013. At the time
of trial her status to receive such benefits was under review by the carrier
for determination of whether she was totally disabled from earning income
performing work in any occupation.

[216]     Taking
into account Mr. Turnbull’s computations of her net past income loss and Ms. Bergen’s
actual income, I award her income loss from the date of the First Accident to the
date of trial in the amount of $145,871. This amount is net of income taxes and
EI premiums paid and payable. This is the figure set out in Mr. Turnbull’s
schedule. If counsel have difficulty working out the actual amount payable to Ms. Bergen,
they have liberty to apply.

[217]     I reach
this conclusion based on my finding that but for the Accidents Ms. Bergen
would have remained in gainful employment with the CBSA to the date of trial.

Loss of Future Income

[218]    
The legal principles to a loss of future income damage award are
articulated in Athey; Andrews v. Grand & Toy
Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452; and Perren v. Lalari, 2010 BCCA 140. Those principles
were recently summarized by the Court of Appeal in Schenker v. Scott,
2014 BCCA 203, by Mr. Justice Harris at para. 50:

The principles specific to assessing an award for loss of
future earning capacity are well settled: see, for example, Rosvold v.
Dunlop, 2001 BCCA 1, and Perren v. Lalari, 2010 BCCA 140. These
principles were recently canvassed by this Court in Meghji v. British
Columbia (Ministry of Transportation and Highways), 2014 BCCA 105, where
Smith and Willcock JJ.A. writing for the Court said:

(ii) The approach to assessing loss of future
earning capacity

[81]
It is correct to say that an award of damages under this head is a result of
the careful weighing of all the evidence and the application of considered
judgment to that evidence. It is not a calculation: Mulholland v. Riley Estate
(1995), 12 B.C.L.R. (3d) 248 at para. 43, [1995] B.C.J. No. 1823 (C.A.).
Because the court is required to take into account all substantial
possibilities it is necessary to use careful judgment in weighing those
possibilities. In order to ensure that all reasonable substantial possibilities
are taken into account, however, the conventional approach is that described in
Lines [2009 BCCA 106]. In that case, at para. 57, Saunders J.A.
held:

There
are two major components to an assessment of loss of future earning capacity.
One is the general level of earning thought by the trial judge to be
realistically achievable by plaintiff but for the accident, taking into account
the plaintiff’s intentions and factors that weigh both in favor of and against
that achievement, and the other is the projection of that earning level to the
plaintiff’s working life, taking into account the positive and negative
vagaries of life. From these two major components must be applied an analysis
that produces a present value of the loss, adjusted for all appropriate
contingencies.

[82]
The standard of proof to be applied when evaluating hypothetical events such as
loss of future earnings, is simple probability rather than the balance of
probabilities: Athey v. Leonati, [1996] 3 S.C.R. 458, [1996] S.C.J. No.
102.

[219]    
Mr. Justice Abrioux provided a helpful summary of the principles in
Karim v. Li, 2015 BCSC 498 at paras. 148-151. He explained the two
possible approaches to an assessment of this type of award:

[148]
There are two possible approaches to assessing loss of future earning
capacity: (i) the earning approach (Pallos), or (ii) the capital asset
approach (Brown). Both approaches are correct and their appropriateness
in the circumstances depends on whether the loss can be quantified in a
measurable way: Perren v. Lalari, 2010 BCCA 140.

[149]
The earnings approach involves a form of math-oriented methodology such as
(i) postulating a minimum annual income loss for the plaintiff’s remaining
years of work, multiplying the annual projected loss by the number of remaining
years and calculating a present value, or (ii) awarding the plaintiff’s entire
annual income for a year or two: Pallos at 271; Gilbert at para.
233.

[150]
The capital asset approach is employed when future loss cannot be
measured in a pecuniary way. Finch J., as he then was, described the factors to
consider in Brown at 356:

1. The plaintiff has been rendered
less capable overall from earning income from all types of employment;

2. the plaintiff is less
marketable or attractive as an employee to potential employers;

3. the plaintiff has lost the
ability to take advantage of all job opportunities which might otherwise have
been open to him, had he not been injured; and

4. The plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

See also Perren at para. 32; Gilbert at para.
233.

[151] Where an earnings approach is
the most appropriate method of assessing an award under loss of future earning
capacity but it does not fully encompass the realities of the situation, it is
correct to consider all of the evidence and adjust the award for further
negative contingencies: Westbroek v. Brizuela, 2014 BCCA 48 at paras.
64-66.

[220]     In my view, the appropriate approach to take in this case is the capital
asset approach to loss of future income. In my view the income loss approach is
not appropriate. There are too many variables present in Ms. Bergen’s
future potential earning capacity which make a mathematical calculation
impractical and inappropriate.

[221]     At
the date the trial commenced, Ms. Bergen was 45 years old. Prior to the Accidents
Ms. Bergen was a fit, healthy individual who engaged in many physical
activities (some quite strenuous). She had a pre-existing degenerative lower
back condition which was, on occasion, symptomatic but not disabling. It did
not prevent her from fully engaging in her work with the CBSA or undertaking
lengthy backpacking trips, running, canoeing or engaging in other strenuous
activities. She is now unable to perform her duties at work and has a
functional capacity for sedentary to light duties.

[222]     The most that can be said about Ms. Bergen’s prognosis is that,
according to Dr. Lau, she has not reached her maximal recovery and that
she should improve by undergoing a pain management program. That program will
likely improve Ms. Bergen’s ability to manage her pain but will not likely
restore her to the functionality she had before the Accidents. In my view she
satisfies the four criteria set out above in Brown cited in Karim.

Contingencies to Take into Account in Assessing Ms. Bergen’s
Loss of Future Income

[223]     There are
a number of factors the court must take into account in assessing Ms. Bergen’s
claim for loss of future income.

[224]     In my view
of the evidence, Ms. Bergen had a number of years of an active lifestyle
and working life had the Accidents not occurred. I accept the opinion of
Dr. Helper that over “a prolonged period of time” her back would become
increasingly symptomatic from either mechanical back problems or nerve root
irritation or both. While no medical evidence was adduced to define this
period, I find that, given the above factors and the plaintiff’s positive
attitude, such onset would not have occurred for approximately 12 to 15 years
from the date of the Second Accident. The defendants are not responsible for
damages arising from her injuries after that point in time but are responsible
for the aggravation of her pre-existing condition to that point in time.

[225]     I have also
included in my assessment the possibility Ms. Bergen may have injured
herself at work or in performing one of the recreational activities she was
involved in or otherwise.

[226]     Drs. Paquette
and Dr. Batista (both of whom did not testify), as well as Drs. Helper
and Dr. Sahjpaul have recommended spinal fusion surgery as a last option
in the event more conservative treatment is not successful. Drs. Helper and
Sahjpaul confirm spinal surgery is not a procedure to be undertaken lightly
until other options have been exhausted as there are significant risks to such
surgery. The result of such surgery is that Ms. Bergen may still be
limited in functions of standing and sitting. Ms. Bergen has deferred a
decision to undergo surgery because of this and the conflicting proposed surgical
procedures and instead has been exploring pain management treatment through Dr. Lau.

[227]     Dr. Lau
wrote “there are many aspects of Ms. Bergen’s physical, cognitive and
emotional states that have not reached maximum medical improvement.”
Dr. Lau was unable to provide a prognosis other than this but recommended
a “layered approach” to treatment through her pain clinic.

[228]     Conservative
treatment with Dr. Lau or through another pain clinic or, if such
treatment is not successful, surgery may bring Ms. Bergen some relief and
enable her to return to work either in a full or a modified position with the
CBSA or elsewhere.

[229]     Mr. Towsley
has opined Ms. Bergen “could utilize her considerable transferrable
skills” in a sedentary to light level work in a sitting or standing position
with the assistance of ergonomic equipment. It is possible Ms. Bergen
would recover from her current pain and discomfort well within the 12 -15 year
period through one of two routes: pain management treatment or, if that is not
successful, surgery.

[230]     The trial
was reopened to permit Ms. Bergen to enter a letter she received from the Chief
of Operations of the CBSA’s Container Examination Facility dated June 30, 2015
advising her that under the Treasury Board’s Directive on Leave and Special
Working Arrangements “[l]eave without pay cannot be granted indefinitely” and that
“[a]ll leave without pay is to be terminated eventually through one of the
following” options: (1) return to duty (subject to medical certification); (2)
retirement on medical grounds (subject to Health Canada approval); (3)
Resignation/retirement for non-medical reasons; and (4) release “‘for reasons
other than breaches of discipline or misconduct,’ pursuant to section 12(1)(e)
of the Financial Administration Act (F.A.A.).”

[231]     Ms. Bergen
was advised in the letter that “[i]f you are unable to return to work, and you
do not elect to apply for a medical retirement or submit a resignation,
management will have no choice but to sever your employment with the Agency as
per section 12(1)(e) of the F.A.A.”.

[232]     Ms. Bergen
was provided with an attached form listing the options and was asked to choose
one and to respond to the letter by July 30, 2015. The form provided the effective
date of the option chosen “must be prior to September 30, 2015.”

[233]    
Ms. Bergen responded to the letter July 22, 2015 with a copy to her
union. She advised:

As of today, I am unable to make a decision.

I am actively seeking treatment, based upon my Doctor’s
advisement, it may not happen by September 30th, 2015.

I am requesting an extension in
order to allow for this treatment which I am hoping it will be in the near
future. If successful, I plan to choose Return to Work, and do so
immediately.

[234]     Ms. Bergen’s
counsel submits the letter is evidence the Treasury Board is moving to
terminate Ms. Bergen’s employment with the CBSA. As noted, the trial was reopened
and continued in November 2015. No further evidence was adduced about a
response to Ms. Bergen’s letter. Notwithstanding the deadline imposed in
the employer’s letter, the CBSA had not acted on nor had it responded to Ms. Bergen’s
letter requesting more time.

[235]     Ms. Bergen
was cross-examined on her knowledge of her employer’s duty to accommodate. She
agreed the CBSA was a department of the Government of Canada and was subject to
the Treasury Board’s “Policy on the Duty to Accommodate Persons with
Disabilities in the Federal Public Service” (the “Accommodation Policy”). She
agreed the Accommodation Policy applied to persons with “mobility impairment”,
“chronic pain”, “chronic conditions” and “other permanent or temporary
conditions that cause pain or limit or restrict activities”.

[236]     Ms. Bergen
testified she had discussed accommodation with her union; where she might work
when she finished the Change Pain program and that she filled out a request for
accommodation with her employer.

[237]     In my view,
while it is quite possible the Treasury Board is moving to terminate Ms. Bergen’s
employment, it is also possible her employer may be considering its duty to
accommodate her. At this time, based on the evidence, it remains unknown
whether Ms. Bergen will retain a position with the CBSA or public service
including whether she can be accommodated in another position and what her pay rate
would be. Although her employer would have a duty to reasonably accommodate her
return to work (see Canadian Human Rights Act, R.S.C. 1985, c. H-6, ss.
3(1), 7 15(2); Gallina v. Honda Canada Finance Inc., 2014 BCSC
974 at para. 122), based on the present evidence before the court I cannot
award damages against the defendants on the basis of a conclusion the CBSA
plans to terminate Ms. Bergen’s employment. In my view it is as likely as
not she will retain employment in some form with the CBSA: that there is a 50%
chance she will return to work with the CBSA in the future in some modified
position.

[238]     I am also
of the view, notwithstanding limited evidence at trial, her employer would have
found a way to reasonably accommodate her in her employment duties as and when
her condition began to deteriorate and affect her ability to perform at work in
12 – 15 years when her condition worsened in any case.

[239]     Allowance
must be made for the time Ms. Bergen will spend in pain management therapy
and an allowance made for the possibility she will have to undergo surgery as a
last option which would require her to take time off work.

[240]     Allowance
must also be made for the opportunity Ms. Bergen has lost to advance through
promotion within the ranks of the CBSA with resulting increases in her
earnings. As noted earlier, she regularly reviewed job postings for the
opportunity to advance within the CBSA.

[241]     It is, of
course, possible Ms. Bergen could have aggravated her spondylolisthesis during
the course of her athletic activities or at work. Again, in the later situation,
she would likely have been accommodated by lighter duties if able to perform
them.

[242]     On the
other side of the ledger, as noted by Mr. Towsley, Ms. Bergen has
“considerable transferable skills” and it may be that vocational counselling
will provide an opportunity for re-employment which will accommodate her
working in a standing or sitting position. It is also possible Ms. Bergen
could find a position in one of the occupations identified by Dr. Cooke.

[243]     Taking the
above factors into account I award Ms. Bergen $210,000 in loss of future
income. This award is based on approximately three years of her annual taxable
income at the time of the Accidents.

Loss of Pension

[244]     Ms. Bergen
claims loss of pension enhancement as a result of having to leave work because
of the aggravation of her degenerative back problems.

[245]     Mr. Turnbull’s
report indicates employees with the CBSA are members of the federal government
public service pension plan. The plan provides for pension benefits at age 60
based on the highest five years average earnings. Had Ms. Bergen worked to
age 60 when she was entitled to retire, she would have had 24.2 years of
pensionable service. As a result of the aggravation caused by the Accidents Ms. Bergen
has suffered a loss in pension entitlement but, in my view, her loss must be
adjusted for several reasons: the possibility she may yet be accommodated in
her employment by the CBSA or federal public service, because she would likely
have had to take time off work prior to age 60 in any event as a result of her
degenerative condition. I have no evidence during such absence she would have
continued to accumulate pensionable service and such adjustment must account
for the fact she had lost the opportunity to be promoted to a higher positions
at a higher pay grade with increased pensionable earnings.

[246]     Three
years of the difference between 18.83 years of work (average of 12 to 15 years
after second accident) and the post-accident annual pension benefits to age 65
would be $54,626.71 (assuming the income figures in scenario 2 on p. 14 of Mr.
Turnbull’s report).

[247]     I award Ms. Bergen
$55,000 to account for loss of pensionable earnings.

Cost of Future Care

[248]     In order
to be reimbursed for the cost of future care, Ms. Bergen must establish
such expense is “medically necessary”: Hardychuk v. Johnstone, 2012 BCSC
1359 at paras. 210-214.

[249]     Mr. Towsley
summarized the treatment recommendations made by Ms. Bergen’s health care
providers and the cost of providing that care into the future:

1)    Epidural corticosteroid
injections: Dr. Helper recommended Ms. Bergen take a course of these
injections into the L5 nerve root “once or twice a year for the foreseeable
future” if she needed repeated injections. Dr. Sahjpaul also recommended cortisone
injections. The cost of two injections per year is $3,800. I allow two years of
such injections (or $7,600) to allow a period of time for Ms. Bergen to
attend a pain clinic and then to make, if necessary, a decision regarding
surgery.

2)    Medication and supplies:
Ms. Bergen currently takes Tylenol Muscle (for pain) and Celexa (for anxiety)
with costs totalling roughly $340 annually. Should she require spinal fusion
surgery she would undoubtedly require further medication. There was no evidence
as to what that amount might be. I allow Ms. Bergen $2,500 for future
medication costs.

3)    Pain management clinic:
Both Dr. Lau and Mr. Towsley recommend Ms. Bergen continue to
attend a pain management clinic. I accept this is an appropriate approach for Ms. Bergen
to continue with as the only other option for her is major surgery which has no
guarantee of either improving her back/leg pain or enabling her to return to
work. Dr. Lau outlined the various investigations and treatments available
to Ms. Bergen at his clinic. Dr. Lau agreed the cost of the
diagnostic part of the program would amount to $20,000 at the high end and
$10,000 at the low end. Mr. Towsley provided other costs at another
service provider which would amount to $14,500 and would include a five-week
multidisciplinary program. I accept these recommendations that Ms. Bergen
should participate and award her $14,500 toward the cost of such program.

4)    Vocational assessment:
Mr. Towsley recommended a vocational assessment be done to assist Ms. Bergen
in finding appropriate work should she not be accepted back to work with the
CBSA. In my view, the chances of Ms. Bergen returning to work with the
CBSA, even with accommodation, are no greater than 50%. Accordingly, I view
this as a reasonable cost of her future care. Mr. Towsley placed the cost
at between $2,500 and $3,000. I award $2,500 to cover this expense.

5)    Ergonomic assessment
on return to work: Mr. Towsley recommended a sum be reserved for an
ergonomic assessment to be performed on Ms. Bergen’s return to work. I
agree with his assessment. Whether conservative treatment or surgery will be
successful is unknown. Assuming she achieves some recovery, as stated, she will
likely have to retrain in another employment position which will likely require
some accommodation to make sitting or standing easier. An ergonomic assessment
may very well be necessary to enable her to apply for a broad range of
positions. I award the cost of such assessment in the amount of $1,250.

6)    Assistive needs
for household cleaning and gardening: Mr. Towsley has recommended a light
weight vacuum, a long handled mop, a self-propelled lawnmower, a leaf blower
and other incidental items, as well as five occupational therapy visits to
assist Ms. Bergen in continuing to perform some household and garden tasks,
to pace herself and educate herself in modified techniques. I do not allow such
expense as the cost of the items is small and counselling on how to adapt at
home is a matter that can be covered at the pain clinic. I also do not allow Mr. Towsley
and Mr. Mah’s recommendations for continued physiotherapy treatments or
occupational therapy. Neither Dr. Helper nor Dr. Sahjpaul recommended
such treatments.

7)    Cost of gym
membership: Dr. Helper opined that the majority of patients with
discogenic low back pain similar to Ms. Bergen’s would be recommended to
pursue fitness with an emphasis on core strength and flexibility. I accept this
recommendation and Mr. Towsley’s estimate of the cost of a gym membership
for the next seven years at an annual cost of $438 per annum with an additional
cost of a personal trainer of $750 to direct her in the appropriate exercises
she should perform. The total I award is $3,816.

8)    Other
suggestions from Mr. Towsley include items that Ms. Bergen will need
should she proceed with surgery and “possible ergonomic equipment” considering
her “present symptoms and limitations.” It would be speculative to consider
what Ms. Bergen may need following surgery and improper to order the
defendants to pay for a wish list of “possible” equipment. That list includes
the cost of a self-propelled lawn mower, a leaf blower and gardening equipment.
The defendants’ obligation is to reimburse or pay for expenses which are
necessary. There is no evidence Mr. Burns has not in the past and cannot
continue to perform some of the heavier household and gardening tasks.

[250]     Although
some of the above expenses I have allowed may have been incurred by Ms. Bergen
at some time in the future even if the Accidents had not occurred, I have found
her pre-existing condition would not likely have affected her for some number
of years. It is not appropriate, in my view, to make any deduction for that
possibility as I think the nature of such future expenses is too remote from
the present circumstances. Ms. Bergen is faced with the above cost of
future care now, not some unknown number of years in the future.

Summary of Cost of Future Care

[251]     To
summarize, I make the following award for cost of future care:

Special Damages

[252]     The
plaintiff claims the following special damages:

1)    Oakridge
Physiotherapy: Ms. Bergen claims reimbursement of $9,534 expended on physiotherapy
treatments with Mr. Mah between March 4, 2010 and February 26, 2015. The
defendants say she is not entitled to any reimbursement because the treatment
was a continuation of pre-accident treatment and was directed to her pre-accident
degenerative condition. I do not accept the defendants’ position. Ms. Bergen
attended physiotherapy on the recommendation of Dr. Brits to help her deal
with the aggravation of her pre-existing condition caused by the Accidents. I
award the amount claimed less the sums of $235 and $470 for the services of a pedorthist.
There was no evidence to link these services to Ms. Bergen’s injuries.

2)    Dr. Dennis Strokon,
dental services: Ms. Bergen makes a claim for reimbursement for dental
services because of the TMJ injury she received in the Second Accident. The
total account was in the amount of $18,268. Dr. Blasberg’s opinion was
that Ms. Bergen would not have experienced the jaw muscle pain disorder
but for the Second Accident. He noted she was receiving treatment at the time
by Dr. Strokon which included oral appliance therapy and orthodontic
treatment. As a result of the treatment, she was asymptomatic in January 2015.

The defendants say some of the
account for services is for services unrelated to the Accidents and it is
difficult to identify what expenses are related. The defendants propose
splitting the cost approximately in half, paying $10,000. I have reviewed the
account of Dr. Strokon. While there are some items on the bill that are
related to cleaning, scaling, etc. (i.e. normal dental care) the very large
percentage is for the work referred to by Dr. Blasberg. I award 90 percent
of the amount claimed or $16,441.

3)    Dr. Timothy
Brown, naturopathic medicine treatments: Ms. Bergen claims an amount of $2,138.74
for naturopathic treatments incurred in relation to acid reflux developed due
to her pain medications. I allow this claim as an honest effort by Ms. Bergen
to deal with the issues arising from her pain.

Summary of Special Damages

[253]     To
summarize, I make the following award for special damages:

Summary of Award

[254]     I have
awarded Ms. Bergen the following:

“Greyell
J.”