Fifi v. Robinson

2012 BCSC 1378 Fifi v. Robinson

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fifi v. Robinson, 2012 BCSC 1378 Date: 20120920 Docket: M124749 Registry: New Westminster Between: Rachel Fifi Plaintiff And: Kevin Robinson Defendant Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Counsel for the Plaintiff: L.B. O'Neill D.T. Eleff Counsel for the Defendant: C.R. Cordick Place and Date of Trial: New Westminster, B.C. Jan. 24-26, April 2-3, 2012 Plaintiff's Written Submissions: April 20, 2012 Defendant's Written Submissions: April 27, 2012 Plaintiff's Written Reply Submissions: May 4, 2012 Place and Date of Judgment: New Westminster, B.C. September 20, 2012 I. Introduction [1] This is an assessment of the plaintiff's damages arising out of a motor vehicle accident that occurred October 8, 2008. Liability is admitted. [2] The plaintiff, Ms. Rachel Fifi, contends that she continues to suffer from substantial ongoing pain, limitation of function, and psychological effects arising from the accident. [3] The defence contends that she suffered mild to moderate soft tissue injuries in the accident, which were resolved or substantially resolved by April 28, 2009, when she injured herself at work. II. The Positions of the Parties [4] The submissions of the parties as to the amounts that should be awarded are as follows: Plaintiff Defendant Non pecuniary loss: $65,000 - $80,000 $20,000 - $25,000* Loss

of earning capacity: $150,000 - $250,000 0** Past loss of earnings opportunity: $5,000 - $10,000 0 Past wage loss: $1,423.50 $952.64 Cost of future care: $50,000 - $55,000 0 Special damages: $250 0 Total: $271,673.50 - $396,673.50 $20,952.64 - $25,952.64 * Before deduction. The defendant submits that the plaintiff's claim for non-pecuniary loss should be reduced by 25% for failure to mitigate. ** The defendant submits that any amount awarded for loss of earning capacity should be reduced by 50% for failure to mitigate. III. Background Facts [5] The plaintiff grew up in Terrace, B.C., where she graduated from high school in 2004. At the time of the accident she was 22 years of age, and single. She was working as an apprentice cabinet-maker, also called joiner, at Levan Millwork in Port Coquitlam. [6] The apprenticeship program requires a combination of about 6,500 hours of work-based training with a sponsoring employer, and four levels of technical training in a classroom and shop setting, with examinations. Each level of technical training entails approximately six weeks of full-time schooling. The program typically takes four years to complete. Successful completion leads to a certificate or ticket as a certified tradesperson, often called a journeyman. [7] Ms. Fifi began the apprenticeship program in the fall of 2007, with the successful completion of the first level of

technical training, at BCIT. She began working as an apprentice cabinet-maker at Levan Millwork in April, 2008. Subsequent to the accident she has completed the other three levels of technical training. At the time she gave her evidence at trial in January 2012 she was working full-time as an apprentice cabinet-maker for Uni Construction in Terrace, and had accumulated about 5,100 hours. She expected to complete the workplace hours requirements within a year, and will therefore be a qualified journeyman in cabinet-making. She may by now have achieved that qualification. [8] The accident of October 8, 2008 occurred while she was on her way to work in Port Coquitlam. At the time she was living in a rented apartment on Boundary Road, Vancouver. She was driving a 2000 Mazda Protegé that belonged to her mother, but for which she had assumed responsibility for making loan payments. As she was driving eastbound on Highway One near the Brunette interchange, the car in front of her stopped suddenly, forcing her to do the same. Her car was struck from behind by the defendant's car, a 1991 Subaru station wagon. Her car was driven into the vehicle in front of hers. No repair cost estimates are in evidence. ICBC's photographs of the defendant's Subaru show moderate damage to the right front corner of the vehicle. The plaintiff testified that the damage to the vehicle in front of hers was

very slight. The photographs of the plaintiff's vehicle show substantial rear-end damage. No emergency personnel attended the accident. Unfortunately, both other drivers abandoned the plaintiff at the scene without any alternative means of transportation, so she drove her damaged vehicle the remainder of the way to work, about 10 minutes of further driving. [9] The defendant did not testify at the trial. The plaintiff read in to evidence an answer from his examination for discovery, in which he answered "yes" to this question: "So you say that you were doing at least the speed limit of 90 kilometres an hour at the time the impact occurred with the Mazda being driven by the plaintiff?" From this, the plaintiff argues that the impact speed of the two vehicles was 90 km/h. I do not so interpret the evidence of the defendant. The damage to the vehicles as shown in the photographs is not consistent with the plaintiff's interpretation of the defendant's evidence. Much more likely, what the defendant meant was that his vehicle was travelling at the speed limit of 90 km/h or greater, prior to the collision. There is no evidence as to the speed of the plaintiff's vehicle at impact. There was no engineering assessment of any kind. The plaintiff also read in the defendant's agreement that his vehicle hit the Mazda "rather forcefully." This description is consistent with the photographs. I

conclude that the impact involved significant physical force. The plaintiff has not established that the impact speed was 90 km/h. There is no question that the nature of the accident was sufficient to cause injury. [10] When the plaintiff arrived at her workplace, upon observing the condition of her car, the shop foreman refused to allow her to work. The office manager, Ms. Tina Donauer, drove her to a walk-in medical clinic. At trial the plaintiff testified that while she was at the clinic she was suffering from stiffness and pain "almost head to toe" but particularly in her shoulders, neck, back, arms, hands, and hips. Dr. Wiebe, the doctor at the clinic, referred her for physiotherapy. She attempted to return to work that day but was unable to function effectively. [11] Upon arising the next day her pain and stiffness were much worse. She was unable to work. [12] Her next medical treatment was on October 17, nine days post-accident, when she saw Dr. Kin Phord-Toy, a family doctor. Four days later, on October 21, she returned to the same clinic and was seen by Dr. Mark Phord-Toy. Dr. Mark Phord-Toy is the son of Dr. Kin Phord-Toy. Dr. Mark Phord-Toy continued to provide treatment to the plaintiff thereafter. When he saw her on October 21, he diagnosed soft-tissue injuries of her shoulders, neck and back. He advised her to use a heating pad, muscle rub, to rest and stretch,

and use over-the-counter pain medications. He also prescribed pain medications. [13] On October 20, the plaintiff attended a physiotherapy clinic. On the basis of the records it does not appear that she obtained treatment on that day. Information was gathered and a treatment plan established. The plaintiff received five physiotherapy treatments, from October 22 to November 7. At trial, the plaintiff testified that the physiotherapy helped her. [14] The plaintiff returned to work after slightly more than two weeks, on October 27. She lost 12 days of work due to the accident. Her past wage loss claim based upon the twelve days lost is $1,423.50. [15] The plaintiff testified that following the motor vehicle accident she was compelled, for financial reasons, to return to work after missing only 12 days, although she was still in pain. She was supporting herself, alone. She had rent and car payments to make. She was only earning $13.00 per hour at Levan and could not afford to lose further pay. [16] She testified that after her return to work she was sleeping very poorly. She no longer had the use of the car, which was written off by ICBC, so she had to rise at 4:30 a.m. in order to arrive at work for 7 a.m., using public transit. [17] She worked for two weeks, then on November 10, 2008 she went to Kelowna, where for the next six weeks she attended Okanagan College and completed the

second level of her apprenticeship training. [18] The physiotherapist had planned a course of 12 - 14 visits over the course of 4 or 5 weeks. However the planned course of physiotherapy was abbreviated by her departure for Kelowna. She did not receive further physiotherapy treatments until much later. [19] In her evidence in chief she testified that the technical training was about 60% study and 40% shop training. In cross examination she confirmed the truth of her examination for discovery testimony, in which she said that "maybe 75% of the day you're in the shop." These answers are not necessarily inconsistent, as she also testified that there was a lot of sitting and reading involved, and that she would study at night. She testified that she found studying uncomfortable due to her injuries. I conclude that the technical training levels involve a large proportion of hands-on shop work. The precise proportion is not clear on the evidence and is not critical. [20] She testified that she struggled with pain during the six weeks she was in Kelowna in November and December 2008 for the second level apprenticeship courses. [21] The plaintiff returned to work at Levan Millwork, in early January 2009. [22] Her difficulties in getting to work improved at the end of January, when she began car-pooling with a co-worker, Norm Modeland. In April 2009 she moved into an apartment in Port

Coquitlam so as to be closer to work. [23] She continued to work without interruption until April 28, 2009. On that day she was injured at work. She attempted to lift a heavy roll of Marmoleum, a flooring material also sometimes used in cabinetry. The roll weighed at least 60 pounds. At trial the plaintiff testified that this resulted in pain in her left shoulder and back. She finished her work for the day, but after reporting for work the next day, she found that she was unable to work. She went to the walk-in medical clinic. X-rays were taken, which showed no radiological evidence of injury. She was prescribed medication for pain. [24] A significant point of contention relates to the plaintiff's condition during the period of time following her return to work at Levan October 27, 2008, and the workplace injury she suffered April 28, 2009. [25] As noted, the defence contends that by April 28, 2009 her accident injuries were completely or substantially resolved, and that her complaints of injury thereafter are unrelated to the motor vehicle accident. [26] The plaintiff contends that during this time period she was continuing to suffer significantly from her accident injuries. She said that she struggled with pain while at work and had to rely on co-workers to help her. All of the witnesses described the work involved in cabinetmaking as being very physically demanding. She said

that she avoided taking pain medication while at work, for safety reasons. She testified that during the January through April period her pain was diminished as compared with the period immediately following the accident. She suffered from back, shoulder and arm pain every day, all day, but of variable intensity, depending on activities. She suffered from pain and numbness in her hands. She rated the intensity of pain at 5 to 5.5 out of 10 on some days, and 2 or 3 on others. She testified that she carried on because of her determination to complete the apprenticeship program. [27] Following her visit to Dr. Phord-Toy on Oct. 21, 2008 and the final physiotherapy session on November 7, 2008, the plaintiff received no medical treatment until after she was injured in a workplace accident April 28, 2009. [28] She told Dr. Phord-Toy when she saw him on May 6, 2009 that she was continuing to suffer from all of the same pains as she had before the workplace accident. [29] She contends that the workplace accident of April 28, 2009 caused only a temporary aggravation of her shoulder and back problems. At trial she testified that the effects of the workplace accident "did not last long" and were gone or all but gone by the end of June. She contends that the injuries she complains of in these proceedings are solely attributable to the motor vehicle accident. [30] She was unable to work for

about two weeks following the workplace accident. As a result, she did not return to work prior to returning to Okanagan College in Kelowna on May 19, 2009 for the third level of her apprenticeship technical training. [31] The plaintiff made a claim to WorkSafeBC [WSBC] for compensation arising from her workplace accident of April 28. She received compensation for the period April 28, 2009 to June 29, 2009, the day she reported for duties at Levan Millwork. Thus, she received WSBC benefits while she was studying. [32] In making her WSBC claim, the plaintiff stated that her injury was to her upper back, between her shoulder blades. She denied any prior problems with the area of injury. On June 10, she saw a doctor in Kelowna who provided a report to WSBC, diagnosing a low back strain. In a follow-up telephone conversation on June 12, 2009 she advised the WSBC representative dealing with the claim, Ms. Shirley Pipke, that "her back was fine prior to this incident." [33] In her evidence at trial, the plaintiff testified that she could not recall telling Ms. Pipke that her "back was fine" prior to the workplace injury, although she did not denying saying it. She also testified that she informed Ms. Pipke that she had been in a car accident, from which she was still in pain, but had been trying to work through it. [34] Ms. Pipke testified about the plaintiff's "back was fine"

comment with the aid of contemporaneous file records that she made. She testified that all conversations with workers are documented. She also testified that at her level of authority, she would not deal with issues of pre-existing injuries. She denied that the plaintiff told her that she had been in a car accident. She testified that if the plaintiff had said that, then she would have sent the claim to someone at a higher level, with the requisite authority. [35] In relation to this, I accept the evidence of Ms. Pipke, and reject the evidence of the plaintiff. The plaintiff twice denied to WSBC that she had any relevant prior injury. WSBC's records are detailed, and reliable. Had the plaintiff said anything about a prior injury, that comment would have been documented. Moreover, I have no difficulty accepting Ms. Pipke's testimony that if the plaintiff had said anything that would raise an issue about a pre-existing injury, she would have referred the claim to others. [36] Ms. Pipke testified that the claim was accepted as a mid-back sprain, based upon the medical information provided, and despite the reference by the plaintiff to a shoulder injury. [37] On June 29, 2009, following the completion of her third level of training, she reported for duty at Levan Millwork. Unfortunately, upon her arrival that day, Levan Millwork advised her that she was being let go due to lack of

work. [38] Her next visit to Dr. Phord-Toy was on September 25, 2009. According to his evidence, on that occasion she continued to complain of pain in her neck, shoulders, and lower back. He then began to see her on a more regular basis. He saw her on six occasions spanning November 12, 2009 to April 11, 2011. [39] On November 12, 2009, due to her lack of progress with regard to pain reduction, Dr. Phord-Toy recommended that she attend an active rehabilitation program with KARP Rehabilitation. He thought that passive treatments such as those the plaintiff had undergone previously were "temporarily helpful but were not making a positive long term impact on pain relief." Both Dr. Phord-Toy and the plaintiff described KARP as being a program of active rehabilitation, which I take to mean an active program of exercise and strengthening. Dr. Phord-Toy's referral to KARP calls for a work conditioning program for her neck, shoulder or shoulders, and back. [40] The plaintiff attended KARP Rehabilitation for one or two sessions, only. ICBC refused Part 7 funding for the program, taking the position that the need for the therapy was based upon the workplace injury of April 28, 2009, not the motor vehicle accident. [41] The plaintiff testified that she would have continued with the program had ICBC funded it. [42] The plaintiff had great difficulty obtaining employment after being laid

off at Levan Millwork. She testified, and I accept, that the market conditions were difficult. She also testified that as a female in a male dominated trade, she felt that she was at a disadvantage in gaining employment. Apart from two days work in November 2009, she was unemployed for more than a year, following her lay-off from Levan Millwork at the end of June 2009, and until September 2010. During this time she collected Employment Insurance. In April 2010 she could no longer support herself in the Lower Mainland, so she moved back to Terrace to live with her parents. She was unable to find work in Terrace, but was offered work commencing September 2010 as an apprentice cabinet-maker with "5ive West" Ltd. in Delta. She moved back to the Lower Mainland. The work at 5ive West lasted only three months, until December 2010, when once again she was laid off due to lack of work. [43] She testified that her pain problems while she was working at 5ive West in late 2010 were still present, but were not as severe as they had been when she was working at Levan Millwork in early 2009. Subjectively, she rated the pain she was suffering as 2 out of 10 on some days, and 3 to 4.5 out of 10 on other days. She testified that the pain was always present. She testified to pain in her shoulders, back, neck, arms and hand. [44] The plaintiff once again had difficulty finding work following the

end of her work at 5ive West in December 2010. An obstacle was that she was scheduled to do the fourth level of her apprenticeship technical training in May, 2011. She deferred seeking work as a cabinet-maker, and instead sought other short-term work. [45] On February 8, 2011 she applied for work with a temporary employment agency, Target Personnel. On the application form she answered "no" to the question, "Have you ever had any back problems?" She answered "yes" to the question, "Are you medically cleared and fit to work with no restrictions or disabilities from any previous injury, illness, or medical condition?" On the other hand, she disclosed that she had a "history of back problems", and she answered "yes" to a question about "other pertinent medical illness or injury related information you feel we should be aware of". She says she had a verbal discussion with persons in the office at the time she submitted the application. Although she testified that her answers were "not necessarily" lies, on balance it is clear that she did not give full and accurate information to the employment agency. She testified that she needed the work, and felt that if she were completely honest she would not get hired. She testified that she was poor, and all but homeless, in that she was sleeping on her uncle's couch at his residence in Surrey. [46] Target Personnel assigned her to work at

a warehouse in Richmond. The work was a day at a time, at pay rate of $10 per hour. She worked for about four days in total, in March, 2011. She testified that the work involved lifting and carrying lightweight boxes of some kind. [47] In April and May, 2011, she underwent five physiotherapy treatments at a clinic on Fraser Street, Vancouver. The treatments were funded by her legal counsel. She testified that these treatments "helped a little bit". [48] In May and June, 2011, she successfully completed the fourth level of her apprenticeship training, at BCIT. [49] She did well in all of her apprenticeship course work. She obtained an 82% grade in level one at BCIT in 2007 (pre-accident), 80% in level two (post accident) at Okanagan College in 2008, 78% in level three at Okanagan College in 2009, and 74% in level four at BCIT in 2011. [50] She returned to live with her parents in Terrace in June 2011. [51] In July, 2011, the plaintiff obtained work in Terrace with Uni Construction, as a cabinet-maker. She has worked there continuously since commencing employment. She is now the head cabinet-maker at Uni Construction. [52] At trial, in January 2012, the plaintiff testified that she continued to suffer from the following injuries: 1. Neck pain, daily, extending into her shoulders, with stiffness. She rates the pain at 2 or 3 out of 10; 2. Pain in shoulders, daily. She rates the

pain at 3 or 4 out of 10; 3. Arms and hands. Pain daily, all day. Also numbness and stiffness. Pain rated at 3 out of 10, usually; 4. Back pain. Daily. Entire back. Usually 3 out of 10, but sometimes 5 or 5.5 out of 10; 5. Interference with sleep; 6. Occasional headaches; 7. Reduced energy; and 8. Depressed mood. Irritability. Feelings of frustration, hopelessness, lack of motivation. [53] She testified that her injuries have affected her work at Uni Construction. She states that she asked for help with some of the more physical aspects of the work after the departure of a journeyman in September, 2011. She testified that the employer hired her brother Calvin Fifi to assist in the shop. She testified that her hand stiffness and pain limits her work to about one hour before she needs a break of 5 to 10 minutes. Her injuries cause pain when she works with a table saw, which is used in 60 or 70% of her work. She testified that has difficulties using the many hand tools needed for her work, such as sanders and routers, and that she has difficulties lifting, carrying and installing cabinets. [54] In terms of other activities, she testified that the injuries prevent her from participating in Nisga'a traditional dancing and singing, cause discomfort on long car trips, and interfere with play and child care in relation to her brother's young children. IV. Review of Medical and Expert

Evidence [55] Three medical doctors testified at trial. In general, the medical reports and opinions expressed at trial are quite consistent. [56] Her family doctor, Dr. Phord-Toy, concluded that she suffered injuries to her neck, shoulders and lower back in the accident. She also suffers from numbness and tingling going down her arms. In his view, the numbness and tingling is not neurological in origin, but is a by-product of her muscle and soft-tissue pain. She has a full range of motion in all areas, but still has ongoing pain. She also has symptoms consistent with an "adjustment disorder", with depressive symptoms, including low mood, poor energy, lack of concentration, feelings of hopelessness, and low self-esteem. [57] In Dr. Phord-Toy's view, Ms. Fifi's ongoing pains do not appear to prevent her from carrying out her normal activities in and out of the home, albeit with discomfort. He states that further passive therapies would not be beneficial. She is not at increased risk of developing degenerative arthritis or disc problems in the future. He recommends that she engage in an active exercise, for which a gym pass would be helpful, and an active rehabilitation program such as the KARP program that was cancelled due to ICBC's funding refusal. He suggests, possibly, continuation of sleep medications, anti-depressant medications and counselling with a psychologist.

According to Dr. Phord-Toy, participation in a pain clinic treatment program as suggested by Dr. Caillier is not immediately necessary, unless all other treatment options prove unsuccessful. [58] Dr. Phord-Toy states that no further investigations and consultations are required. In his view her injuries do not result in what he describes in his report as a "permanent partial disability". [59] By the time of trial, Dr. Phord-Toy's report was somewhat out of date. His report was prepared on October 1, 2011, and was based upon his last visit with the plaintiff on May 18, 2011, prior to her completion of the fourth level apprenticeship, and commencement of her employment at Uni Construction in Terrace in July, 2011. He states that in a best case scenario, she may be able to return to work after six weeks of treatment as suggested in his report. As it turned out, she was able to return to work, even without the suggested treatment. [60] Thus it seems that Dr. Phord-Toy's prognosis was somewhat over-cautious. [61] At plaintiff's counsel's request, the Plaintiff saw a specialist in physical medicine and rehabilitation, Dr. Lisa Caillier, who prepared a medical-legal report and testified at trial. She saw the plaintiff on one occasion, May 17, 2011. Her report is dated July 18, 2011. The major conclusions made by Dr. Caillier are that the plaintiff suffered from soft-tissue injuries to

her neck, posterior shoulder girdle, and upper and lower back. Neurological examination was normal. However she has "upper limb sensory symptoms" (numbness and tingling in her arms and hands), which Dr. Caillier states are likely related to the soft-tissue pain. At trial Dr. Caillier testified that there is no objective evidence of pathology. She has developed a chronic pain syndrome, with psychological, emotional and physical factors. She has a mood disorder and is depressed. [62] In its post-trial written submissions, the defence objects to admission of evidence from Dr. Caillier concerning psychological concerns. No such objection was taken to admission of Dr. Caillier's report or her evidence at trial. In my view the issue should have been dealt with at trial. In any event, in my view the evidence is within Dr. Caillier's expertise as stated in her report, which I note includes study of pain disorders. [63] Dr. Caillier's prognosis is for continuation of her neck, back and shoulder pain "beyond the next 12 months". In her view there is a poor prognosis for complete resolution of the "upper extremity" symptoms, but she says that these are unlikely to be limiting. She states that the plaintiff's headaches occurring about once per week are related to the motor vehicle accident. She suggests that her chronic pain problems can be better managed. She recommends an active

rehabilitation program and also an independent exercise program. She states in her report that, "Ms. Fifi does need to understand that for her to pursue her apprenticeship within cabinet-making that she does need to take it upon herself to become more active and participate in an independent exercise program." [64] Dr. Caillier suggests that the plaintiff engage in a chronic pain program, at St. Paul's Hospital in Vancouver if no such program is available in Terrace. (No such program is available in Terrace.) She sees no restriction in the plaintiff's functioning in and around the home. Her opinion is somewhat guarded in relation to the plaintiff's ability to work full-time as a cabinet-maker, but is more positive if the plaintiff were to achieve improvement in sleep, mood, and physical conditioning. [65] As with Dr. Phord-Toy, Dr. Caillier's report pre-dated the plaintiff's successful return to work in July 2011. Similarly, then, subsequent events have shown that her prognosis was somewhat over-cautious. [66] At ICBC's request, the plaintiff saw Dr. Marc Boyle, an orthopaedic surgeon. He prepared a report dated September 15, 2011, based upon an examination of the plaintiff on September 14, 2011. In his view, the plaintiff suffered strains to the cervical and thoracolumbar spine in the accident. That is, injury to the ligaments, tendons and muscles. There is no evidence of

injury to the vertebrae, disc pathology, or neurological compromise. There is no evidence of injury to her shoulders. He found no objective evidence of pathology. In his opinion, treatment should be in the form of stretching and strengthening exercises, and the use of over-the-counter anti-inflammatory medication. He also suggests core stabilization and aerobic fitness exercise, and weight loss. He noted that the plaintiff is quite obese. [67] Dr. Boyle had the benefit of knowing that the plaintiff had begun working full-time as a cabinet-maker in Terrace. In his opinion, she is able to continue in that occupation. In his view, she would benefit from the treatment recommendations made by Dr. Caillier. [68] The plaintiff was seen July 27, 2011 by Mr. Bruce Hunt for a physical capacity and work tolerance assessment. Mr. Hunt is a Certified Exercise Physiologist, registered Kinesiologist, registered Functional Evaluator, and Certified Work Capacity Evaluator. At trial, by agreement, he was qualified to give opinion evidence as a work capacity evaluator and a cost of care evaluator. [69] Mr. Hunt's report indicates that the plaintiff has adequate stamina to meet the employment demands as a cabinet-maker. He also states that the results of the assessment indicate that the plaintiff meets the physical requirement of her job as a cabinet-maker, as defined by the National Occupational

Classification. I accept these portions of his evidence, as they are based upon his assessment and tests, which he is qualified to perform and interpret. I also accept the validity of the test results that he reports. In my view, however, much of the report cannot be relied upon. [70] A large part of the report, headed "Overview and Clinical Impression," is a confusing blend of the plaintiff's reports to Mr. Hunt, and what would appear to be Mr. Hunt's own opinions, much of which falls outside of his area of expertise. This part of the report contains significant errors of fact. For example, he states that due to the accident injuries, "...she stopped working which delayed her Cabinet Trades certification for several years and contributed to loss of income, earning potential and financial stress." The first part of this statement is wrong. The evidence is that she did not stop working due to her injuries. She was unemployed for long periods of time due to lay-offs and economic conditions. Notwithstanding that, her progress towards certification as a cabinet-maker has been delayed for only one year, approximately. She has or will complete the program in about five years, which is common. The latter part of the statement is inappropriate, if intended as an opinion, which it appears to be. In the next two paragraphs he refers to her work at the time of the accident and

subsequently as that of "construction labour". This is incorrect. The error is significant, in the context of a work capacity assessment relating to her ability to work as a cabinet-maker. [71] Several other opinions expressed by Mr. Hunt are beyond his expertise. For example, he states that "Chronic back, neck, shoulder, arm, hand and finger pain symptoms will continue to affect her reach, handling, grasping and strength tolerance." This is either an assumption in the guise of an opinion, or a medical prognosis, which Mr. Hunt is not qualified to give. He makes several treatment recommendations, such as that "Ms. Fifi would benefit from referral to counselling to address her low mood, decreased physical function, life changes and chronic pain." He recommends massage, physiotherapy and acupuncture treatments. These are medical opinions. He states that Ms. Fifi "should consider" upgrading her education in order to change her career to something less physically demanding such as a Construction Trades Vocational Teacher. Once again I am not satisfied that this opinion falls within Mr. Hunt's expertise. Other opinions would more properly be within the expertise of a labour market economist, if admissible at all. For example, Mr. Hunt states: 26. Ms. Fifi's employment opportunities in the national labour market are limited due to chronic neck, upper and lower back, arm and hand pain

symptoms. She is presently working as a Cabinet Maker in Terrace, BC. The entry level physical demands are within her current positional and strength tolerances. She is less competitively employable due to her chronic neck, back, arm and hand pain symptoms. [72] In another part of the report Mr. Hunt states that the National Classification Index under-represents the physical demands of the work as a cabinet-maker. This opinion is based upon Ms. Fifi's reports to Mr. Hunt. There is no objective support for the opinion. In my view there is an insufficient evidentiary basis to support this opinion, and I give it no weight. [73] In general, for these reasons, with the above noted exceptions, I place no weight on Mr. Hunt's work capacity report and evidence. Mr. Hunt also provided a cost of care report which provides useful information. In that report Mr. Hunt also provides treatment recommendations (for example, nutritional counselling, and physiotherapy) which I have ignored where they are not supported by the medical evidence. In so far as Mr. Hunt's cost of care report is admissible, I will refer to it later in these reasons. V. Assessment A. Failure to mitigate [74] The defence argues in the alternative that if the plaintiff's injuries were not fully or substantially resolved by the time of the workplace accident, she has failed to mitigate her loss, and that a 25% and 50%

reduction in her award should be made for non-pecuniary loss and loss of earning capacity respectively. [75] As I stated recently in Carter v. Zahn, 2012 BCSC 595: [102] A plaintiff has an obligation to take all reasonable measures to reduce his or her loss. The duty to mitigate includes undergoing treatment to alleviate or cure injuries. The defence bears the burden of establishing that the plaintiff has failed to act reasonably to mitigate her loss. [103] In Wahl v. Sidhu, 2012 BCCA 111, [2012] B.C.J. No. 460, Madam Justice MacKenzie stated at para. 32: [32] The test for failure to mitigate by not pursuing a recommended course of medical treatment is set out at para. 57 of Chiu v. Chiu, 2002 BCCA 618, 8 B.C.L.R. (4th) 227: In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. [76] The defence contends that the plaintiff has failed to take reasonable steps to mitigate her loss on the following grounds: 1. Limited attendance for medical treatment; 2. Failure to attend for prescribed physiotherapy treatments and active rehabilitation; 3. Failure to follow recommended exercise

treatments; and 4. Failure to reduce body weight. [77] In relation to the first point, the defence relies on the plaintiff's failure to seek medical treatment from Dr. Phord-Toy or otherwise between October 21, 2008 and May 6, 2009. There was no argument that this alone meets the test for failure to mitigate. In any event the defence has not established to my satisfaction how attending for medical treatment during this time period would have led to an improvement in the plaintiff's condition. [78] For convenience I will recap the physiotherapy, active rehabilitation and exercise advice and treatment the plaintiff has received. [79] On the day of the accident, the doctor at the clinic, Dr. Wiebe, prescribed physiotherapy. The plaintiff attended only five sessions before going to Kelowna. She testified that the physiotherapy treatments were of some help. Dr. Phord-Toy's report states that the early physiotherapy she received was beneficial. However he was told by the plaintiff that she had engaged in about 10 physiotherapy sessions when in fact there were only five such treatments. She did not seek physiotherapy treatment in Kelowna, or upon her return to Vancouver. She acknowledged that ICBC would have paid for more treatments, but states that she would have had to advance the funds. She also said that once she had returned to work at Levan, she had no vehicle, and did not want

to take time off from work. [80] When she saw Dr. Phord-Toy May 6, 2009, he did not prescribe further physiotherapy. However in November, 2009 he prescribed active rehabilitation with KARP. The plaintiff attended one or two sessions before funding was denied. On February 10, 2010 Dr. Phord-Toy recommended that she get a gym pass so she could get more exercise. He repeated that advice October 25, 2010. The plaintiff got a gym pass and started going to the gym only in early 2011. Dr. Phord-Toy advised that she "continue with an active rehabilitation program" when the plaintiff saw him on April 4, 2011. She attended five sessions with South Fraser Physiotherapy in April and May, 2011. These sessions were privately funded. The plaintiff testified that this treatment was on a referral from Dr. Phord-Toy. However she testified that this treatment consisted of massage and thus it does not appear that this treatment was the kind of active rehabilitation that Dr. Phord-Toy was recommending. In his report written October 1, 2011 he states that in his opinion further passive treatments would not be of any additional benefit to the plaintiff, essentially repeating his advice of November 12, 2009. He continues to recommend active rehabilitation like KARP, and an exercise program. [81] In order to prove a failure to mitigate, the defendant must do more than show that the plaintiff failed to

engage in treatment that could or might have been beneficial: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, at para. 56. [82] While I can readily infer that timely physiotherapy could or might have been beneficial, as that was of course Dr. Wiebe's purpose in prescribing it, the defence has not established that it would have benefited the plaintiff such that her injuries would have been lessened. [83] Dr. Caillier's report of July 18, 2011 also strongly recommends an active rehabilitation program, and an independent exercise program. Dr. Boyle also recommended exercise, and stated that the plaintiff would benefit from following the treatment recommendations made by Dr. Caillier. Thus, there is a consensus among the doctors that active rehabilitation and an exercise program would benefit the plaintiff. [84] I do not agree with the defence contention that the plaintiff has acted unreasonably in not undertaking a program of active rehabilitation. Given her financial circumstances, in my view the plaintiff cannot be faulted for failing to attend KARP rehabilitation in the fall of 2009 after ICBC refused funding. She was unemployed for most of 2010. She has not been in position to self-fund a program of active rehabilitation until sometime after commencing full time employment in Terrace in July, 2011, only several months before the trial. Moreover, there is

no evidence before me as to whether such treatment programs are available in Terrace. I note that the plaintiff testified that physiotherapy resources in Terrace are very limited. Mr. Hunt's cost of care report supports this. [85] The plaintiff is significantly obese. She refused to discuss her weight with Dr. Boyle, but allowed herself to be weighed and measured by Mr. Hunt. Dr. Phord-Toy testified that she is clinically obese, but declined to say that her obesity as such was impeding her recovery. Dr. Boyle simply recommends weight loss, without elaboration. There is no medical evidence that a reduction in body weight of itself would have improved the plaintiff's condition. I infer that the plaintiff was already obese when the accident occurred. There was no evidence of weight gain post-accident. A person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery: Gilbert v. Bottle 2011 BCSC 1389, at para. 203. [86] The defence has not established a failure to mitigate on the part of the plaintiff in failing to lose weight. [87] The plaintiff has consistently been advised to get more exercise. That was the repeated advice of Dr. Phord-Toy, and his views have more recently been supported by the other doctors. The plaintiff has made only very limited efforts to follow

this advice. She did not follow Dr. Phord-Toy's advice to get a gym pass until sometime in early 2011. She testified that she went to a gym near Nat Bailey Stadium in Vancouver for about three months prior to undertaking her fourth level apprenticeship training in May, 2011. At the time of her testimony at trial in January, 2012, she was doing some daily stretching exercises at home, but not attending a gym and had not undertaken an active rehabilitation program. She conceded that now that she is working full time she could afford to pay for treatment, but doesn't believe she has the time. [88] While there is a medical consensus that the plaintiff would benefit from exercise and active rehabilitation, there is less clarity regarding "the extent, if any, to which the plaintiff's damages would have been reduced had [she] acted reasonably." No medical report or testimony directly addresses this question. [89] In cross examination, Dr. Caillier would only say that if she had been more active, "perhaps" her pain would be decreased by now. She would not go so far as to say that improvement in her condition would have been probable. B. Conclusions - Failure to Mitigate [90] I agree with the defence contention that the plaintiff has acted unreasonably in failing to follow medical advice that she should get more exercise. However on the evidence I am not satisfied that the defence has

proven the extent to which, if at all, the plaintiff's injuries and thus her damages would have been reduced had she followed the advice she was given. [91] Thus, the defence has not established a failure to mitigate. C. Credibility of Plaintiff's Complaints of Injury [92] I was impressed with the determination Ms. Fifi has demonstrated in order to achieve her goal of becoming a journeyman cabinet-maker. She has had to overcome many obstacles. At trial she testified that the trades generally are male dominated, and it is not easy for a female to succeed. She has had to find a way to support herself for long periods of time in the Lower Mainland. She has funded her education with minimal assistance from others. She has endured poverty and long periods of unemployment. She is of aboriginal heritage, which is often associated with disadvantage. She testified that her parents do not have a lot of money. Her father is disabled. She is a hard worker who wants to be self-sufficient. [93] In a case of this nature, where the plaintiff's complaints are subjective in nature, with little in the way of reliable corroboration, assessing the credibility of the plaintiff's evidence is central. As much as I admire the plaintiff's determination and her work ethic, in relation to her credibility as a witness, I have concluded that a great deal of caution is called for. [94] There are specific

aspects of the plaintiff's evidence that support the need for caution. [95] As noted, in making her claim for compensation to WSBC arising out of the April 28, 2009 workplace injury, she stated that she had no prior problems with the injured areas, and then on June 12 she specifically told Ms. Pipke of WSBC that her "back was fine". I accept that, as she testified at trial, at the time she said this she was in fact continuing to suffer from an injury to her back resulting from the motor vehicle accident. On that basis, her statements to WSBC were deliberately false, made in order to advance her claim for compensation. Thus, she demonstrated a willingness to lie in pursuit of financial advantage. [96] In submissions, plaintiff's counsel concedes that the plaintiff provided false information to WSBC and that it was wrong of her to do so, but argues that she had no money and had to do what she did to survive. This is an overstatement, as by then she had been working for Levan Millwork for a year, except for the 12 days post accident and the 6 weeks in Kelowna. I accept that her financial circumstances were very strained. However, any sympathy I might have for her on that account does not allow me to ignore the plain fact that she deliberately misled WSBC in relation to her claim. [97] As noted previously, I reject the plaintiff's testimony at trial that she informed Ms. Pipke that

she had been in a car accident, from which she was still in pain, but had been trying to work through it. In my view this testimony was invented by the plaintiff in an effort to soften the effect of the evidence concerning her statements to WSBC. [98] Assuming as she now claims that the plaintiff was still suffering from back problems at the time she applied for temporary work with Target Personnel in February, 2011, then she also provided less than truthful information to Target Personnel. Once again, the plaintiff showed a willingness to distort the truth when she felt she needed to do so. [99] The plaintiff relies on testimony from a co-worker, Mr. Norman Modeland, to corroborate her complaints of injury in the months leading up to the workplace accident. Mr. Modeland is an experienced cabinet-maker, who Levan Millwork treated as a journeyman. Mr. Modeland left Levan's employ April 17, 2009, as a result of dispute of some kind with the employer, but before that the plaintiff often worked with Mr. Modeland, as his helper. They often worked together in a somewhat secluded area of the shop. Mr. Modeland described the physically demanding nature of the work as a cabinet-maker, generally, and at Levan Millwork in particular. I have no difficulty accepting this evidence. Mr. Modeland was impressed with the plaintiff's work ethic and her attitude. He described her as an excellent

worker. He testified that after the plaintiff's return to work in January, 2009, she sometimes asked for help in relation to heavier work. He noticed pain behaviors on her part, such as wincing and rubbing her body. She complained of pain frequently. [100] However, Mr. Modeland never reported any difficulties that the plaintiff was having coping with the work to Brian Lepke, the shop foreman. He said that he and the plaintiff worked together as a team, and he was able to compensate for any problems she was having. In his words, she, "toughed it out". He said that there was no need to report any problems to Mr. Lepke or the employer, as the plaintiff was able to do the work. As I interpret his evidence, he was never so concerned that he thought her injuries posed safety concerns for herself or otherwise. He testified that he himself has often worked while enduring pain. [101] The shop foreman, Mr. Brian Lepke, testified that Levan Millwork is a small family owned business. At the time the company had about 12 employees including 4 or 5 apprentices. He is a journeyman cabinet-maker, and was responsible for supervising all the apprentices. He, too, testified that the work is physically demanding. He was impressed by the plaintiff's work ethic and her determination to succeed. He said that the plaintiff often worked together with Mr. Modeland during the last two months of Mr.

Modeland's work at Levan, often in an upstairs part of the shop. He went here 2 or 3 times each day for 5 or 10 minutes each time. He observed no problems in the plaintiff carrying out the work, and observed no pain behaviours on her part. He was unaware of any persisting injury. He testified that as her immediate supervisor, it was Mr. Modeland's duty to report any injury issues relating to the plaintiff, and that Mr. Modeland never reported a problem. [102] The office manager, Ms. Tina Donauer, testified that she was in charge of occupational health and safety at Levan. She received no reports of injury concerning the plaintiff. [103] There is no doubt that the plaintiff was genuinely injured in the accident. She was assessed at the walk in clinic on the day of the accident, and soon afterwards by Dr. Phord-Toy. However, following her physiotherapy treatment on November 7, 2008, she had no medical treatment for her accident injuries for six months until she saw Dr. Phord-Toy on May 6, 2009 following the workplace accident. Thus, there are no medical records during this time period, and she sought no treatment. In some cases this might not matter very much. In the context of this case, I interpret her decision not to continue with physiotherapy treatment or to see her doctor after her return to work in January 2009 as an indication that her condition was tolerable and not as

bad as the plaintiff has made out. Her stated reasons for declining to continue with the physiotherapy treatments are not persuasive. [104] It is odd that if the plaintiff would attempt to lift the heavy roll of marmoleum by herself when she was still suffering from significant neck, shoulder and back pain. [105] After the plaintiff's return to work about two weeks after the accident, and prior to the workplace accident April 28, 2009, she was able to work full time, 8 hours per day, in a physically demanding job as an apprentice cabinet-maker. She also successfully completed level two of her apprenticeship training, including a substantial component of shop work. In May and June, 2009 she completed level three of her coursework, and reported for duty at Levan Millwork on June 29, 2009, apparently fit for work in her own view. [106] The plaintiff's mother testified that she and her husband came from her home in Terrace to the Lower Mainland in March or April 2009, at the time of the plaintiff's move from her Boundary Road apartment to Port Coquitlam. They helped her move. She testified that she observed pain behaviours by her daughter and a lack of her former energy. [107] The plaintiff's brother, Stewart Dube, testified that he frequently saw the plaintiff in the months following the motor vehicle accident, and that she was in much pain, and needed help with household chores

and grocery shopping. His evidence was unclear and contradictory concerning what period of time he was speaking of. He incorrectly recalled that she was residing in Port Coquitlam after her return from Kelowna. He incorrectly recalled driving her to an appointment with a chiropractor during the January and April 2009 period. His evidence is not reliable and I am unable to place much weight on it. [108] Her next significant employment after Levan was more than a year later, when she worked as a cabinet-maker at 5ive West in Delta from September to December, 2010. As noted, she testified the effects of her accident injuries were not as severe as they had been when she was working at Levan Millwork in early 2009. No corroborative evidence was adduced concerning effects of her injuries while working at 5ive West. [109] There is also no corroborative evidence from her employer or her co-workers, or her brother, concerning her alleged difficulties with her work at Uni Construction. What is clear is that she has been steadily employed in the physically demanding work of cabinet-maker since July, 2011. Her work tolerance seems to be good, as she has worked full-time, with no loss of work due to her injuries. Generally the work is eight hours per day, but some days are 10 or 12 hours. She testified that she needs to take regular breaks during her work. In my view that is not uncommon

for workers in physically demanding occupations, as is working with a degree of pain, as Mr. Modeland acknowledged. [110] The fact is that the plaintiff has been able to work full-time, and sometimes overtime, without interruption whenever work has been available to her since about two weeks post-accident. In some cases such conduct might reflect stoicism on the part of an injured person but I am not able to make that finding in this case. [111] I also take into account that the plaintiff has generally sought little treatment for her injuries, and also generally not followed the advice of her doctor to get more exercise. These facts tend to suggest that her complaints of pain are not as serious or as debilitating as she suggests. [112] Overall, I formed the impression that the plaintiff has a tendency to exaggerate the effects of the accident. She is somewhat over-sensitive and over-focussed on her accident injuries and on her pain. D. Non-Pecuniary Loss [113] I accept that the plaintiff suffered significant soft-tissue injuries in the accident. She was healthy prior to the accident. [114] In relation to the question of whether the injuries she currently complains of stem from the motor vehicle accident or the subsequent workplace injury, I place considerable weight on the opinion of Dr. Mark Phord-Toy, who struck me as a careful and reliable witness. Dr. Phord-Toy saw her soon

after the motor vehicle accident and soon after the workplace accident. Dr. Phord-Toy's opinion is that, "Ms. Fifi's injuries were the direct result of her car accident on October 8, 2008." [115] On the basis of all of the evidence, including all of the medical evidence, I accept that the workplace injury caused an aggravation to her accident injuries, but that the workplace injury has not been a significant factor in her condition since that time. [116] I accept that at the time of her testimony at trial, in January 2012, in excess of three years post accident, she was still suffering from soft tissue injuries to her neck, back, shoulders, arms and hands resulting from the accident. She has headaches but these are infrequent and of relatively short duration. Her major ongoing complaint is of pain. She is not at risk of developing degenerative arthritis or disc disease in future arising from the accident injuries. There is no evidence that the accident injuries will result in any long-term consequences to her health. [117] In view of my conclusion that her complaints are somewhat exaggerated, it is difficult to assess the true extent and degree of the plaintiff's ongoing pain and disability resulting from the accident injuries. What is clear to me is that they are not as significant as the plaintiff has stated. It is also clear that other than for the first two to three weeks

post-accident, her injuries have never been seriously disabling. I note her testimony that her injuries had improved by the time she returned to work at Levan in January 2009 and had improved further when she worked at 5ive West in the fall of 2010. I find that her injuries have gradually been improving with time. [118] I find that at the time of trial, the plaintiff is continuing to suffer from some relatively minor ongoing symptoms arising from the accident injuries. The plaintiff's accident injuries are not significantly limiting, in terms of household or recreational activities, or occupationally. I find as well that her injuries are unlikely to result in any significant ongoing disability of any kind. The evidence does not support any substantial concerns in relation to the plaintiff's future medical condition. [119] In addition to her physical complaints, the accident resulted in psychological consequences. Dr. Phord-Toy diagnosed what he termed "adjustment disorder" with depressive symptoms. He says the depressive symptoms are primarily low mood, poor energy, lack of concentration, feelings of hopelessness and low self-esteem. Dr. Phord-Toy states that the adjustment disorder and depressive symptoms are related to factors of chronic pain, the plaintiff's employment and vocational problems, and poor sleep. Dr. Caillier diagnosed "chronic pain syndrome" with psychological,

emotional, and physical factors. She noted that her "pain is diffuse and superficial" and that this is "in keeping with a chronic pain syndrome as well as an underlying psychological and emotional content to her pain." She states that the plaintiff has a mood disorder and is depressed. [120] Dr. Caillier refers extensively to the plaintiff's difficulties in pursuing her apprenticeship and in relation to employment. The plaintiff advised Dr. Caillier that she was the only person in her fourth level apprenticeship class who was not employed. In her testimony, Dr. Caillier said that the plaintiff's unemployment was a factor in her mood problems. In other words, the evidence of both Dr. Phord-Toy and of Dr. Caillier is that the plaintiff's psychological problems are related at least in part to the employment difficulties she has had. [121] Dr. Boyle's view is that the plaintiff would be able to continue to work as a cabinet-maker long term. As noted, the opinions of Dr. Phord-Toy and Dr. Caillier were somewhat guarded in terms of her ability to work as a cabinet-maker. In my view, recent events have demonstrated conclusively that the plaintiff is in fact able to work as a cabinet-maker. [122] The plaintiff is now the head cabinet-maker at Uni Construction. She is employed full-time, and earns $22.00 per hour, which is the highest wage she has ever made. She loves wood-working. She

is happy in her work. She is happy to have a good job, with good pay. It is clear that the plaintiff's circumstances have dramatically improved. [123] A significant aspect of the opinions of Dr. Phord-Toy and Dr. Caillier regarding the psychological consequences of the accident relates to the plaintiff's employment and career difficulties. The improvement in her circumstances could only have a very positive effect on her condition and prognosis, particularly in relation to her mood. This too supports the view that the plaintiff's prognosis is more favourable than that suggested by Drs. Dr. Phord-Toy and Caillier. [124] Dr. Caillier states in her report (written July 18, 2011) that Ms. Fifi's neck, back and shoulder pain would continue, beyond the next 12 months, with fluctuation in her symptoms depending on her mood and sleep. She was somewhat less positive concerning complete resolution of her headaches, and the numbness and tingling in her arms and hands. Dr. Phord-Toy offered no specific time-frame for her ongoing symptoms. Both of these doctors commented that improvement in her condition was possible with treatment, most especially active rehabilitation and exercise. [125] I find that the residual effects of the plaintiff's injuries will likely continue for one or two years from the time of trial, but will continue to diminish further with the passage of time, and with

appropriate treatment such as active rehabilitation and exercise. Following this period, any residual complaints will not be significant. [126] In Carter v. Zahn, 2012 BCSC 595 I set out the legal principles applicable to assessment of damages for non-pecuniary loss as follows: [112] The general principles relating to assessment of non-pecuniary loss are set out in the decision of the B.C. Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 [Stapley], at paras. 45 and 46: [45] Before embarking on that task, I think it is instructive to reiterate the underlying purpose of non-pecuniary damages. Much, of course, has been said about this topic. However, given the not-infrequent inclination by lawyers and judges to compare only injuries, the following passage from Lindal v. Lindal, supra, at 637 is a helpful reminder: Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual's loss is the key and the "need for solace will not necessarily correlate with the seriousness of the injury" (Cooper-Stephenson and Saunders, Personal

Injury Damages in Canada (1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a "tariff". An award will vary in each case "to meet the specific circumstances of the individual case" (Thornton at p. 284 of S.C.R.). [Emphasis added.] [46] The inexhaustive list of common factors cited in Boyd that influence an award of non-pecuniary damages includes: (a) age of the plaintiff; (b) nature of the injury; (c) severity and duration of pain; (d) disability; (e) emotional suffering; and (f) loss or impairment of life; I would add the following factors, although they may arguably be subsumed in the above list: (g) impairment of family, marital and social relationships; (h) impairment of physical and mental abilities; (i) loss of lifestyle; and (j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (QL), 2005 BCCA 54). [113] The list of factors set out in Stapley is undoubtedly useful in assessing the plaintiff's non-pecuniary loss. Based upon the comments in Lindal v. Lindal, [1981] 2 S.C.R. 629, the overriding consideration is "[a]n appreciation of the individual's loss" (Stapley, at para. 45). As a result, the award will vary in each case to "meet the specific circumstances of the individual case": Stapley, at para. 45. [127] The plaintiff argues that

non-pecuniary damages should be in the range of $65,000 to $80,000. The plaintiff submits that the following authorities offer guidance: 1. Marchand v. Peterson, [2011] B.C.J. No. 1209, 2011 BCSC 852; 2. Raun v. Suran, [2010] B.C.J. No. 1068, 2010 BCSC 793; 3. Jackson v. Mongrain, [2010] B.C.J. No. 2634, 2010 BCSC 1866; 4. Bergman v. Standen, [2010] B.C.J. No. 2395, 2010 BCSC 1692; 5. Esau v. Myles, [2010] B.C.J. No. 55, 2010 BCSC 43; 6. Ashmore v. Banicevic, [2009] B.C.J. No. 302, 2009 BCSC 211; 7. Ruscheinski v. Biln, 2011 BCSC 1263; 8. Wiener v. Ralla, [2009] B.C.J. No. 2456, 2009 BCSC 1743; 9. Boyle v. Prentice, [2010] B.C.J. No. 1694, 2010 BCSC 1212; and 10. Trites v. Penner, [2010] B.C.J. No. 1251, 2010 BCSC 882. [128] The defence cited the following authorities in relation to the assessment of non-pecuniary loss: 1. Goertz v. Kujala, 2006 BCSC 667; 2. Job v. Van Blankers, 2009 BCSC 230; 3. Mak v. Eichel, 2008 BCSC 1102; and 4. Marcelino v. Francesutti et al, 2002 BCSC 1711. [129] The cases relied upon by the plaintiff all involve chronic or permanent injuries. Reflecting the nature of the injuries sustained and the indefinite negative prognosis, in all of these cases substantial awards were made for loss of earning capacity, and in some cases awards were also made for loss of homemaking capacity. Non-pecuniary awards in many of these cases were also supported by evidence

establishing that the sustained injuries would continue to interfere with the plaintiff's participation in sporting and other recreational activities that the plaintiff had once enjoyed. Given my findings, the cases cited by the plaintiff do not offer useful guidance as to the proper quantum of non-pecuniary loss that should be awarded to the plaintiff in this case. [130] As noted, the defence submits that an appropriate award for non-pecuniary loss is in the range of $20,000 to $25,000. The cases cited all involve mild to moderate soft tissue injuries which substantially resolved by the time of trial. None involved awards for future loss. Marcelino is quite dated. These cases all involve somewhat less significant consequences than in the case before me. [131] Upon consideration of the whole of the evidence, in my view the sum of $42,000 represents a fit and proper amount of compensation for the plaintiff's non pecuniary loss. In making this assessment I have considered a several cases which more closely approximate the case at bar in respect to the nature of the injuries, the prognosis and the impairment to the plaintiff's lifestyle: Noriega v. Lewars, 2008 BCSC 1405; Perry v. Ismail, 2012 BCSC 123; Lee v. Jarvie, 2010 BCSC 1852; Haines v. Shewaga, 2009 BCSC 340; Kosoric v. Maitland, 2009 BCSC 108. E. Loss of Earning Capacity - Future [132] The plaintiff argues that she should

be awarded $150,000 to $250,000 for loss of future earning capacity. She argues that a reduction in earnings of $10,000 per year results in a present value loss of $250,000. [133] The plaintiff argues that she suffers pain and restriction in her work as a cabinet-maker at Uni Construction. She has hand stiffness, neck, back and shoulder pain, and has to take breaks. She has diminished energy. She suffers from occasional headaches (about once in two weeks, lasting about an hour). She argues that on the basis of the opinion of Dr. Caillier, her pain will continue indefinitely. She argues that the work involved as a cabinet-maker is physically demanding, and that it is reasonable to conclude that her future earnings as a cabinet maker will be reduced due to her ongoing pain and limitation of function. [134] She argues that the accident injuries have caused: 1. a general loss of opportunity and reduction in the range of vocational alternatives available to her; 2. a loss of opportunity within her profession as a cabinet maker - especially if it is a busy shop or a shop which requires heavy lifting or overtime; 3. a risk of further time off from work from time to time due to pain and fatigue; 4. an inability to work regular overtime; 5. a reduced chance of being promoted because of decreased job performance; 6. a risk of her having to change careers because of her pain symptoms and

because of safety concerns - especially because of the problem with her hands while working with saws and other equipment such as sanders and routers; 7. a loss due to the period of re-training (if necessary) required as a result of a change of career - say 2-4 years; 8. a loss due to the risk of having to change jobs and finding new jobs which pay less; and 9. a loss due to the risk of periods of time off work because of future treatment such as active rehabilitation program or a chronic pain program. [135] Apart from the loss of 12 days of pay immediately after the accident, there is no evidence of loss of earnings prior to trial. The plaintiff has always been able to do whatever work has been available. Her present earnings are higher than she has ever enjoyed in the past. [136] I am not satisfied that the plaintiff has established that she is suffering from any significant incapacity in her work at Uni Construction, presently. As noted, there is no corroborative evidence from her employer in this regard. Her own evidence is not entirely reliable. [137] As I have said, the evidence generally, including the medical opinions, does not support a significant risk of future occupational disability or limitation. I have found that the plaintiff's current symptoms are not currently disabling or limiting and will improve in the future with treatment. The plaintiff's arguments for future loss are speculative in nature, and do not have an adequate evidentiary basis for an award to be made. [138] In summary, the plaintiff has not established "that there is a real and substantial possibility of a future event leading to an income loss" arising from her accident injuries: Perren v. Lalari, 2010 BCCA 140, at para.

32. F. Past Loss of Opportunity to Earn Income [139] The plaintiff claims for the sum of $5,000 to $10,000 for past loss of opportunity to earn income, during the period of June 2009 to September, 2010. This was the period of time following her lay-off from Levan Millwork June 29, 2009 and her employment with 5ive West in September, 2010. The claim is unusual. The plaintiff claims that due to the accident, she lost the use of her mother's vehicle, which was wrecked in the accident. I have to infer that as ICBC submits payment for the vehicle went to her mother, as the owner. The plaintiff purchased another car with borrowed funds in the fall of 2009, but the car was vandalized. The plaintiff argues that by April 2010, she was forced to move back to Terrace because she could no longer support herself in the Lower Mainland. The fact is, however, that she was able to return in September 2010 when work at 5ive West became available. [140] On the evidence I am not satisfied that the plaintiff has proven that the loss of use of the car resulted in an income loss. There is no evidence to support this. In my view, her unemployment was caused entirely by other factors. [141] I note as well that there is no pleading to support such special damage. It was not mentioned in the plaintiff's opening. It seems to have been advanced for the first time in the plaintiff's final submissions. This

may help to explain why there is minimal evidence regarding this claim, and no actual evidence as to repayment for the value of the vehicle. Perhaps for the same reasons there are unanswered questions as to the plaintiff's efforts to mitigate such loss. [142] In the circumstances, I do not need to consider whether the claim is compensable as a matter of law, a question about which I have some considerable doubt. I have noted that the insurers for the defendant presumably compensated the owner of the car. Moreover, the claimed loss arises essentially from the plaintiff's impecuniosity, not the accident injuries. G. Past Wage Loss [143] The plaintiff claims for $1,423.50 for lost wages for 12 days post accident. The defence contends that only $952.64 is recoverable. The defence appears to be arguing that overtime pay lost due to the accident is not compensable. I see no reason why it should not be. The defence also argues that compensation should be net of all deductions that would have been made on the pay. The largest deduction would have been for income tax. The plaintiff argues that she would have paid little or no tax for 2008. I accept this. There is no evidence and there were no submissions concerning the other minor deductions. I find that the plaintiff's compensable loss is $1,423.50, as claimed. H. Cost of Future Care [144] The plaintiff claims for $50,000 to $55,000

for what are described in her submissions as costs of future care. [145] Specifically, $45,166 is claimed as the cost of re-training from her work as a cabinet-maker to that of technology instructor in the field of cabinet-making at BCIT. $20,550 is claimed for future medical treatment or expense. These amounts are then reduced somewhat to the claimed amount of $50,000 to $55,000, I presume to account for contingencies. [146] The plaintiff argues that there is a substantial possibility that she will be unable to continue in her work as a cabinet-maker due to her ongoing symptoms and pain which interfere with her employment, and safety concerns due to her symptoms, particularly numbness, tingling, and pain and stiffness in her hands. [147] The plaintiff testified that she has a career aspiration of becoming a technology teacher at BCIT. [148] On the whole of the evidence and in particular my conclusion that the plaintiff is capable of continuing in her career as a cabinet-maker, no compensation is justified for a possible career change. [149] As I said previously, I place no weight on the portions of Mr. Hunt's report where he recommends that she consider a career change. [150] The medical and treatment costs claimed are as follows: 1. Fitness membership and Aquafit: $550; 2. Personal Training: $900; 3. Psychologist: $1,750; 4. Chronic Pain Program: $16,350; and 5. Medication:

$1,000. [151] The purpose of the award for costs of future care is to restore, as best as possible with a monetary award, the injured person to the position he or she would have been in had the accident not occurred. The award is based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff: Gignac v. Rozylo 2012 BCCA 351, at paras. 29-30, citing Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) and Aberdeen v. Zanatta, 2008 BCCA 420. [152] In my view, exercise therapy is a reasonable and appropriate treatment and expense. These expenses are amply supported by the medical opinions. [153] Dr. Phord-Toy continues to recommend a program of active rehabilitation, such as KARP. Dr. Caillier also recommends and active rehabilitation program. She refers to at least 16 - 18 sessions with a kinesiology-based exercise trainer. She also recommends a program of independent exercise of at least three to four times per week within a gym of pool environment. [154] No costing for KARP or similar rehabilitation is provided in the cost of care report prepared by Mr. Hunt. I assume that may be because no such program is available in Terrace. Mr. Hunt advises that there are no registered kinesiologists available in Terrace. He has therefore provided costing for a personal trainer and a gym membership. [155] It is sometimes

appropriate to apply a specific contingency reduction in relation to future care costs if there is evidence that the plaintiff will decline to incur the expense: Gignac, paras. 51 - 54. Although the plaintiff has generally not followed the advice she has received in the past regarding exercise, in my view no contingency reduction is appropriate in relation to the exercise therapy. At trial the plaintiff emphatically stated that she was willing to engage in whatever treatment would improve her condition. The addition of a personal trainer may assist with apparently needed motivation. The expense is very modest. I will allow the costs claimed for personal training, a fitness membership and Aquafit. [156] Dr. Caillier recommends that the plaintiff be assessed by both a psychiatrist and a psychologist with respect to her mood. Psychiatric treatment would be covered by B.C. Medical, according to Mr. Hunt's cost of care report. He advises that there are two registered psychologists in Terrace. Dr. Phord-Toy states that counselling with a psychologist for building up her self-esteem and self-worth may be of benefit. [157] In my view, as I have stated, the improvement in the plaintiff's career and employment circumstances has likely had a very beneficial effect on her mood. [158] Nevertheless, the plaintiff continues at trial to complain of ongoing pain and limitation of function. In

my view her present complaints are exaggerated. However, I agree with Drs. Phord-Toy and Caillier that psychological counselling could benefit the plaintiff. I note once again that the cost is relatively modest and the service is available in Terrace. The claimed cost of psychological counselling will be allowed. Again, in my view, no specific contingency reduction would be appropriate. [159] Dr. Caillier recommends that the plaintiff attend a pain clinic. This would require attendance in the Lower Mainland. Dr. Caillier mentions St. Paul's Hospital Pain Clinic in her report. Mr. Hunt advises that this clinic is covered under the B.C. Medical Services Plan on referral from a treating physician. There is a three year wait to enter the program. Various private clinics are available. Each would involve staying in the Lower Mainland for 4 to 6 weeks while participating in the program. The costs claimed are $11,500 for the treatment program, and $4,850 for transportation and accommodation. [160] Dr. Phord-Toy, who knows her best, was not enthusiastic about the pain clinic option. He states that it might be necessary if all other management options are unsuccessful. He would not pursue it as an initial step. In his view, addressing the plaintiff's physical concerns through active rehabilitation is a higher priority. [161] I am not satisfied that the expense of a pain clinic is

reasonably necessary in all the circumstances of this case, including in particular the nature of the plaintiff's condition. The plaintiff has already improved in terms of occupational performance well beyond the guarded medical opinions, without any treatment at all, other than medication. If the plaintiff diligently adheres to the recommended exercise program together with psychological treatment and counselling, further improvement can be expected. [162] Moreover, I doubt that the plaintiff would participate in such treatment. Doing so would require several weeks in the Lower Mainland, and a significant absence from work. The plaintiff is a dedicated worker and I doubt whether she would disrupt her work for this purpose. Thus, in any event, a substantial contingency reduction would be applied. [163] The plaintiff claims for $1,000 as the present value of the cost of non-prescription analgesic medications at $50 per year, to age 80. She testified that she sometimes takes two tablets of Tylenol after work. The frequency was not stated. She smokes marijuana at night-time to help her sleep but there has been no medical advice for this. [164] Dr. Boyle's opinion supports the need for non prescription anti-inflammatory medication. In my view $250 represents a generous estimate of the future cost of over-the-counter medications that are reasonably required. I. Special Damages [165]

The plaintiff claims for $250 as the cost of the five physiotherapy sessions she had in April and May, 2011. The defence contends that the physiotherapy is not related to the accident injuries, and unreasonable. [166] Dr. Phord-Toy's report says that on April 4, 2011 he recommended that she "continue with an active physiotherapy program". As I noted previously, there is a lack of clarity in the evidence as to whether the physiotherapy the plaintiff received at this time was the kind of treatment that Dr. Phord-Toy had in mind. I think it more likely that Dr. Phord-Toy was referring once again to an active rehabilitation program such as KARP. However the plaintiff testified that she was referred for this physiotherapy by Dr. Phord-Toy. She also testified that it provided some relief. I am satisfied that the plaintiff incurred the expense in a genuine effort to get better, and that she understood that it was recommended by her doctor. There may have been some miscommunication between her and Dr. Phord-Toy. The wording used in his report is also somewhat ambiguous. Nevertheless, in my view the expense was reasonable, and is compensable. VI. Conclusions and Summary [167] In summary, the plaintiff will have judgment for the following amounts: 1. Non-pecuniary loss $42,000.00 2. Past wage loss $1,423.50 3. Cost of future care $3,450.00 4. Special damages $250.00 Total $47,123.50 [168] The plaintiff is entitled to costs, subject to any submissions the parties may wish to make in that regard. The parties may, within the next thirty days, make arrangements with trial scheduling for oral or written submissions regarding costs or any matter requiring clarification arising out of these reasons. "Verhoeven J."