Repin v. Aam Ventures Ltd

2020 BCSC 227 Repin v. Aam Ventures Ltd

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Repin v. Aam Ventures Ltd, 2020 BCSC 227 Date: 20200221 Docket: M154760 Registry: Vancouver Between: Christine Repin Plaintiff And Nicholas Morrow and AAM Ventures Ltd. doing business as MFI Mobile Finance Defendants Corrected Judgment: This judgment was corrected in Exhibit "A" on April 7, 2020. Before: The Honourable Mr Justice Crerar Corrigendum Reasons for Judgment Counsel for Plaintiff: Leonard P. Kompa T. Bhullar, A.S Counsel for Defendants: Jason Z. Murray Kemily Ho Place and Date of Trial: Vancouver, B.C. January 6-10, 2020 January 13-15, 2020 January 27-28, 2020 Place and Date of Judgment: Vancouver, B.C. February 21, 2020 Place and Date of Corrigendum: Vancouver, B.C. April 7, 2020 I. introduction [1] This trial arises from a motor vehicle accident that occurred on July 7, 2014 at the corner of Third Avenue and Columbia Street in Kamloops (the "accident"). [2] The defendants admit liability. They also concede that the plaintiff sustained "whiplash-type, soft-tissue injuries resulting in the exacerbation of already debilitating present neck pain and back pain as well as exacerbation of her psychological condition resulting in an adjustment disorder, with mixed anxiety and depressed mood." [3] The primary issue at trial was how much of the plaintiff's current physical and mental state is attributable to the accident,

and how much is attributable to the various pre-existing conditions from which she suffered before the accident. [4] Almost exactly a year before the accident, while working in an elder care facility, the plaintiff fell and injured her left shoulder, arm, and neck (the "workplace injury"). She filed a WorkSafeBC ("WCB") claim, leading to lengthy proceedings including several reviews and two appeals. The considerable WCB file provides a compelling snapshot of her medical condition in the year immediately before the accident. It also provides compelling evidence of the plaintiff's varying disclosure of her workplace injury to the many medical professionals who have treated her since July 2013, her non-disclosure of the motor vehicle accident to WCB, and her limited disclosure of her pre-accident conditions to the doctors who provided medico-legal opinions on her behalf at trial. II. ISSUES [5] The issues remaining for determination are: i. did the accident cause the injuries of which the plaintiff now complains? ii. in light of her pre-existing conditions, what damages should be awarded? III. facts A. The plaintiff [6] The plaintiff is now 61 years old. At the time of the accident she was 54 years old. [7] In 1990 she started training as a licensed practical nurse, but dropped out of those studies. In 2010 she once again studied to become licensed practical nurse, and obtained

her license. She then very briefly practised in that area, as set out below. [8] In 2003, she married Vladimir Polkanov. They have no children. [9] Like his wife, Mr Polkanov has had a sporadic employment history. He has not worked regularly since 2009. [10] In 2016, two years after the accident, they moved back to the plaintiff's hometown in Crescent Valley, British Columbia, where they live today. They live in the house that the plaintiff grew up in. She inherited the house from her mother, who died on July 20, 2014, just after the accident. B. The plaintiff's employment history [11] The plaintiff has a disparate and sporadic employment history. [12] In 2010, 2011, and 2012 the plaintiff subsisted solely on employment insurance benefits. She earned $7,858 in 2013. Since July 2013, she has subsisted largely on WCB benefits flowing from the workplace injury. She presently receives roughly $1,000 a month in WCB payments. [13] In her 20s she worked in a food fruit packing house in Naramata. She then spent most of 30s and early 40s working as a housekeeper or housekeeping manager at various hotels and hostels around British Columbia. [14] She was unemployed between 2001 and 2004. [15] In 2003, at the age of 44, she took a residence manager course. From 2004 to 2009 she served as a residence manager with her husband, predominantly at a high-rise apartment in the West End of

Vancouver. [16] They left that position in September 2009. The evidence was vague, but it seems that she left involuntarily, or at least on poor terms with her employer. [17] In 2009 they moved back to Crescent Valley. There, they lived with the plaintiff's mother. [18] In September 2010, at the age of 51, Ms Repin completed the licensed practical nurse course. [19] Unfortunately, this training has not provided steady employment. She was unable to secure employment in the field until February 2013. Her employment insurance file includes a mandatory job search log, completed by the plaintiff. It indicates that she had to approach some 100 employers, in British Columbia, Alberta, and the Northwest Territories, before being hired. [20] This futile search was surprising. At the time, demand for licensed practical nurses, in elder care facilities and elsewhere, was high, as acknowledged by Dr Van den Berg, a vocational evaluator who provided an opinion for the plaintiff, when presented with Government of Canada job bank trend analysis documents. [21] In January 2013, Ms Repin and her husband moved to Penticton where they served as residence managers at an apartment. They were terminated during the probationary period, after less than three months. [22] From February to March 2013 Ms Repin also worked as an on-call practitioner nurse for a care home in Penticton. She was terminated

there as well during the probationary period, after only a few shifts, apparently for failing to properly report a resident's fall. [23] She held another on-call licensed practical nurse position, but quit after a few shifts to start work in Kamloops. C. July 2013: the workplace injury [24] On June 11, 2013 Ms Repin accepted a position as a nurse practitioner at an elder care residence in Kamloops operated by Kolbina Care for Seniors. The couple moved to Kamloops. [25] Unfortunately, that position was also short-lived: she was again dismissed during her probation period, after having worked only a few shifts. [26] Her first paid day of work for Kolbina was July 14, 2013. [27] On July 15, 2013 she injured herself at work. She reported that she had squatted down to assist a fallen resident, who then pushed the plaintiff over. [28] Ms Repin worked on her next shift, two days later. The next day she found the pain too much, and called in sick on July 20, 2013. [29] On July 24, 2013, Kolbina dismissed the plaintiff. Kolbina alleged that she had made errors in medication management and dispensation, and had failed to properly follow procedures and policies. D. The WCB proceedings [30] On July 16, 2013 the plaintiff applied for compensation to WCB for her workplace injury. [31] The plaintiff has spent much of her time between July 2013 and April 2018 seeking compensation for her

workplace injury. [32] The WCB file adduced as evidence at trial fills a three-inch binder containing some 600 pages. The total WCB file runs some 2,000 pages. [33] On August 15, 2013 the WCB Board accepted the plaintiff's claim for a left shoulder sprain. It agreed to pay health care expenses, but not wage loss benefits. [34] The plaintiff did not agree with WCB's initial assessment. On September 5, 2013, she wrote to WCB requesting a review. She reported on her condition: · Now still an excruciating pain-many other symptoms. Now unable to work due to injury. · Now not able to work because of excruciating pain in [her] shoulder/radiating to neck, it is impossibly difficult to look work for present time; · Still cannot lift left shoulder and arm, feels like an elephant standing on it; · Sharp excruciating shooting pain from shoulders into neck area with strong headaches, dizziness, lightheaded; · Left side of face has some twitching and pins and needles feeling; · Constant feel of Needles and pins down into arm and into neck area; · Feels like a knife in shoulder blade area (worse at night); · Sometimes spasms or strong throbbing in shoulder area; · Can bend elbow but now elbow starting to feel painful; and · At night pain worse hard to get nights rest therefore, tired, listless, irritable. [35] In her September 24, 2013 and October 10, 2013 letters to WCB seeking wage loss

benefits, the plaintiff wrote: I still have immobility in my shoulder, excruciating pain from shoulders and neck, migraines, dizziness, face twitches, pins and needles and wrist, and goes numb. [36] On October 2, 2013 the WCB review officer confirmed the Board decision to pay health care expenses but not wage loss benefits. [37] WCB referred her to Drake Medox Health Solutions ("Drake"). On December 5, 2013, the plaintiff reported to Drake that she had "extreme symptoms of depression." She said that her sleep was poor: she "wakes up at least four times per night" as a result of the workplace injury. She reported a significant amount of pain in her neck, shoulder, wrist, and elbow. She said that she frequently felt dizzy. She also reported several post-workplace injury bouts of severe vertigo. She exhibited signs of serious depression, stress, anxiety, and fear. [38] Ms Repin's reports of her condition to WCB are recorded in its call log. These include: · December 5, 2013: "History positive for right ear Menyards [sic] (different from Vertigo) - but this was different. Attack lasted longer. With Menyards symptoms are maybe once a year and last 5-10 minutes and has never had to go to the hospital for treatment Never had an attack of vertigo as she did. Has had three episodes October 11 - went to hospital; then about a week after she fell and was just sitting on the couch in the

room started to spin." · January 7, 2014: "Having pins and needles, feeling really dizzy today and unsure what that is from - dizzy and HA [headache]. HA coming from her neck. Back of her head hurts. Left side, and head is effected [sic] - feels imbalanced "; · February 27, 2014: " Had a bad night - shoulder spasm - wakes her up most nights"; · March 31, 2014: " Loss of balance when walking. Memory. Headaches always there. Not able to think clearly..."; "Relays pain as being the primary concern, as well as her hands going numb. Inability to walk properly and appearance of looking drunk when she walks. Reports that she feels as though her foot has touched the ground when it in fact has not and she will stumble. Does not think she would be hired due to these concerns and presentation."; · June 3, 2014: "Said she has been getting a lot of vertigo and nausea - went to see Dr. Nowak and was even worse after " [39] On May 2, 2014, ten weeks before the accident, the plaintiff complained to Dr Jozef Nowak, a specialist in physical medicine and rehabilitation, of the following: · deterioration of her condition due to being provided "the wrong exercises"; · taking Cyclobenzaprine and Zopiclone; · right sided tinnitus and hearing loss; · pain in the left forearm as feeling of "broken glass" rated at "severity of this pain at 8/10"; · examination complaints of dizziness and nausea; and ·

"terrible headaches" over her temples and headaches that remain unchanged regardless of whether she takes ibuprofen. [40] On June 26, 2014, 11 days before the accident, WCB informed the plaintiff that it considered her injuries to have resolved, and that her benefits would be terminated, effective June 15, 2014. E. Pre-accident emergency room visits [41] Between the workplace injury and the accident, from July 2013 to July 2014, the plaintiff visited the Royal Inland Hospital Emergency Ward at least 17 times. At these visits she complained of left arm pain radiating into her neck, dizziness, vomiting, nausea, vertigo, general weakness, "pins and needles" in her neck and left shoulder, stomach pain, throat pain, difficulty swallowing, hypertension, imbalance, and difficulty with walking. [42] For example, on October 13, 2013 she went to the emergency room of the Royal Inland Hospital by ambulance with extensive nausea, vomiting, and dizziness. At trial, she described this as a "bad Ménière's spell".[1] F. July 2014: the accident [43] The accident occurred very near the Royal Inland Hospital at approximately 11 AM on July 7, 2014. It was a clear, sunny day. [44] The plaintiff was driving her 1993 Dodge Shadow eastbound down the steep hill of Columbia Street. She stopped at the lights to turn left. She heard a squeal. She had enough time to think, "someone is driving fast." She

then felt the defendants' 2018 Dodge Ram truck hit the rear end of her vehicle. [45] The impact jostled the plaintiff, although no part of her body struck the inside of her vehicle. The plaintiff did not lose consciousness. She was able to exit the vehicle on her own. [46] She says that she felt immediately nauseous, with a "terrible headache". She also felt extreme sharp pain in her neck and upper shoulders. There was a lesser pain in her lower back. [47] An ambulance attended and brought her to the hospital. She was put in a neck brace and on a stretcher as a precaution. She was released after a few hours. [48] The damage to the two vehicles is almost imperceptible on the photographs of the two vehicles. The defendants' Dodge Ram truck suffered minor damage to the front bumper, grill, and driving lights. The repair estimate was $1,435. The plaintiff's car was still drivable after the accident. Given its age, the plaintiff did not bother spending the money to repair it. Two years later she drove the car from Kamloops to Vancouver and sold it. G. WCB proceedings after the accident [49] The narrative returns to the plaintiff's 2013 - 2018 proceedings with WCB for compensation. [50] After the accident, the plaintiff sought review of the WCB Board's June 26, 2014 decision to terminate her benefits. In August 2014 the plaintiff sought further wage loss compensation. She retained

counsel. Her counsel's October 20, 2014 letter to WCB reports that she was suffering from neck pain, as well as vertigo, dizziness, nausea, and vomiting, caused by the workplace injury. [51] On October 24, 2014 the plaintiff's review was dismissed, and the June 26th decision affirmed. [52] The plaintiff appealed that decision to WCAT. [53] To that end, the plaintiff herself retained Dr Gurdeep Parhar, a general practitioner who owns several medical businesses, to provide an expert report to submit to WCB for the appeal. She had first visited Dr Parhar on August 8, 2014, a month after the accident. On January 14, 2015 Dr Parhar assessed her at his C.O.R.E. Medical Centre. [54] Dr Parhar's 2015 WCB Report sets out the plaintiff's self-report of the medical complaints attributable to the workplace injury: 1. difficulty falling asleep and difficulty remaining asleep; 2. difficulty with activities of self-care, including washing her hair and putting on a shirt; 3. effects to her self-image/self-esteem; 4. inability to do household chores, cook, clean, vacuum, wash dishes, do laundry, or carry groceries and that her husband was performing those activities; and 5. her ability to participate in activities with friends, including her inability to clean or cook and thus invite her friends or family over for meals or social events. [55] The report further states that "[c]ertainly at the

current time, with the current status of Christine's left shoulder condition, she is totally disabled from returning to work as a licenced practical nurse in a long-term care facility." [56] Ms Repin drafted her own February 15, 2015 submissions and March 30, 2015 rebuttal submissions to WCAT. She submitted that her workplace injury made it "highly implausible" that she could return to work. She sought continued wage loss benefits, a permanent partial disability assessment, and a loss of earnings assessment. She included with her submissions the report of Dr Parhar. [57] On September 24, 2015 WCAT referred the claim back to the WCB Board to consider whether the workplace injury had caused an aggravation to her pre-existing rotator cuff tear and moderate to severe acromioclavicular (shoulder) joint osteoarthritis. Its decision was largely based upon the report of Dr Parhar, who had so opined. [58] On November 5, 2015, the WCB issued its determination. Again, it largely agreed with Dr Parhar's opinion. It concluded that the aggravation of the plaintiff's pre-existing left shoulder conditions caused her to be disabled from work beyond June 14, 2014. [59] On January 20, 2016 WCAT accordingly varied the WCB Review Division decision of October 24, 2014. [60] From March 7, 2015 to March 13, 2018, Dr Parhar completed ten WCB Form- 11 Physician's Progress Reports for the plaintiff's

ongoing claim. In each of those reports he attested that the plaintiff was not "medically capable of working full duties, full-time" because of "left shoulder rotator cuff tear - left shoulder pain".[2] None attribute this disability to any aspect of the motor vehicle accident, or even mention the accident. [61] From 2016 to 2018, the dispute between the plaintiff and WCB was whether she was temporarily or permanently disabled; whether she would be entitled to receive ongoing vocational rehabilitation services and benefits; and the total amount of monthly payments she would receive from WCB. This correspondence and documentation occupies the next 1.5 inches of the WCB exhibit binder. [62] Ultimately, WCB determined that the plaintiff had suffered a permanent disability with respect to use of her left shoulder, including reaching up with her left hand. WCB calculated the disability at approximately 21 percent of total disability. [63] From 2016 to 2018, the plaintiff continued to assert that she was permanently disabled. She attributed the conditions about which she now complains at trial solely to the workplace injury. In her Request for Review dated August 3, 2017, for example she complains of "other medical conditions pertaining to the chronic pain such as myofascial pain syndrome and depression that have occurred as a result of the July 15, 2013 work injury " [64] On August

14, 2017, the plaintiff wrote to WCB of the physical and psychological effects of the workplace injury: The constant severe pain, lack of strength, lack of mobility, and knowledge that I am now unable to work as a Nurse have given me severe psychological damage, as the dream of my life has been taken away with this incident. After becoming a nurse, the incident on July 15, 2013, crossed out all my dreams and hopes and left me as a person with deep depression as well as constant pain; therefore, it wasn't a discovery for me that the following doctors noted: December 16, 2013, Mr. Greg Scriver, M. Ed., Registered Clinical Counsellor, Scriver Consultants, Kamloops, BC, wrote: ' client exhibiting signs of serious depression, stress, anxiety and fear.' May 2, 2014, Dr. Nowak, D, Physiatrist, Kelowna, BC, wrote: " the pain could be related to some anxiety, or even depression " December 01, 2016, Dr. D. Gil. MD, Castlegar Medical Associates ("CMA"), Castlegar, BC, wrote: "Anxiety/depressions: counselling recommended." January 24, 2017, Mr. B. Hill, WCB CM, wrote: "Ms. Repin it was noted in the Pain Management Program that you had some signs of depression. If you are interested I am prepared to offer you some resiliency counseling for adjustment to injury [65] On September 1, 2017, WCB granted $793.56 per month as an award for loss of function. [66] Apart from providing a snapshot of

her self-descriptions of her medical condition attributable to the workplace injury as opposed to the motor vehicle accident, the ongoing WCB saga emphasizes two important points that bear upon the plaintiff's credibility. [67] First, while she is seeking compensation for WCB after the motor vehicle accident, she never informs WCB of the motor vehicle accident. Nor does Dr Parhar in his multiple reports for WCB. The plaintiff only acknowledges it on January 4, 2017, when WCB raises the issue with her. [68] Second, the plaintiff continues to draft sophisticated letters and submissions synthesizing WCB policy, medical reports, and advocacy that belie her presentation to doctors, and to the Court, that she suffers from severe mental and psychological impediments. IV. credibility and reliability A. Law [69] The injuries in this case are soft tissue injuries. There is no external indication of those injuries: they cannot be detected with an MRI, x-ray, or other device. Thus the six expert medical reports adduced in this trial by the plaintiff all rely primarily upon the plaintiff's self-report of her pain symptoms. In such circumstances, credibility findings assume a heightened importance. [70] The court must be "exceedingly careful" when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or

usual recovery. As McEachern CJ stated in Price v. Kostryba (1982), 70 BCLR 397 (SC), citing his earlier decision in Butler v. Blaylock Estate, [1981] BCJ No. 31 (SC): An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence - which could be just his own evidence if the surrounding circumstances are consistent - that his complaints of pain are true reflections of a continuing injury. [italics added] [71] Price must be read with more recent authority that recognizes that even minor motor vehicle accidents can cause long-term and debilitating soft-tissue injuries. For example, in the recent case of Sekhon v Gill, 2019 BCSC 811 at para 39, N. Smith J tempers Price: Medical knowledge has obviously advanced in the almost four decades since Price was decided. In this case, there is expert evidence of an identified medical/psychological condition--chronic pain syndrome--that explains the persistence of the plaintiff's symptoms. [72] In Kallstrom v. Yip, 2016 BCSC 829, Kent J states: [329] Much scepticism, some might say cynicism, can accompany claims that significant injury has been sustained as a result of a minor MVA, and particularly so where there is little objective evidence of physical injury and where

complaints of pain persist far beyond what most observers might consider to be "normal". It must be remembered, however, that not everybody has the mental or physical constitution of a rugby prop forward. [73] Kent J also notes (at para 335) that the Butler decision cited in Price was later overturned: Butler v. Blaylock Estate, [1983] BCJ No. 1490 (CA), where the Court stated: [12] With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of that appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms 'will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely'. [13] It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the

plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff's emotional or psychological makeup and does not result directly from objective symptoms. [74] In Karim v. Li, 2015 BCSC 498, Abrioux J (as he then was) usefully summarized the principles to be taken into account in assessing credibility: [88] As Madam Justice Dillon noted in Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, aff'd 2012 BCCA 296: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis (1926), 31 O.W.N. 202 (Ont. H.C.);

Faryna v. Chorny (1951), 1951 (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A.) [Faryna]; R. v. S. (R.D.), 1997 (SCC), [1997] 3 S.C.R. 484 (S.C.C.) at para.128). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time (Faryna at para. 356). [89] In addition, the following principles should be taken into account by the trier of fact: - no one can expect compensation in the absence of convincing evidence that complaints of pain are true reflections of a continuing injury: Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.); - every injured person has a different understanding of his or her own complaints and injuries and it falls to judges to translate injuries to damages: Price at 397; - where there is little or no objective evidence of continuing injury and where complaints of pain persist for long periods extending beyond the expected resolution, the court should be exceedingly careful to assess assertions in light of the surrounding circumstances including the medical evidence: Price at 399; Tai v. De Busscher, 2007 BCCA 371 at para. 41; - it is the doctor's function to take the patient's complaints at face value and offer an opinion based on them and it is for the court to assess credibility. If there is a medical or other reason for the doctor to suspect

the plaintiff's complaints are not genuine, are inconsistent with the clinical picture or are inconsistent with the known course of such an injury, the court must be told of that. But it is not the doctor's job to conduct an investigation beyond the confines of the examining room: Edmondson v. Payer, 2011 BCSC 118 at para. 77, aff'd 2012 BCCA 114; and - in the absence of objective signs of injury, the court's reliance on the medical profession must proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries: Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1127 at para. 73, aff'd 2011 BCCA 516. [75] If the plaintiff's account of his or her change in physical, mental, and or emotional state as a result of the accident is not convincing, then the hypothesis upon which any expert opinions rest will be undermined: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431 at paras 15, 49-50. B. The witnesses [76] Mr Repin generally presented as a sympathetic witness. At times she broke down in tears, and her sadness about her current state appeared genuine. [77] Her memory was inconsistent. Her recall was generally vague. When pressed on certain difficult aspects of her evidence, she usually claimed that she could not remember. But at times

her memory was crisp, particularly when mentioning an employer who had allegedly mistreated her, or about the many doctors who did not give proper credence (in her view) to her professed physical complaints. She was also unwilling to acknowledge certain facts, even when squarely contradicted by documents. Examples include her termination from past employment, as well as her statements about her pre-accident health. At such times, her tone would rapidly switch from ethereal to irate. [78] Mr Polkanov also initially presented as a sympathetic witness. On cross-examination, however, he also seemed to display selective memory, professing not to remember certain things, or asking for repetition or clarification. An example was the proposition that his wife had visited many different doctors and made many trips to the emergency ward from 2013 onwards. When pressed, he, like Ms Repin, appeared indignant that people could question any aspect of his wife's injuries, her WCB claim, their assertions in this litigation, or their sincerity about obtaining employment. Like her, he at times disagreed with propositions put to him in cross-examination even where such disagreement flew in the face of the established evidence. One example was his bristling at the proposition that he and his wife had had difficulty finding employment. [79] The Court has only the testimony of the plaintiff and her

husband to rely on with respect to her pre- and post-accident state. She called no independent witnesses. In her trial brief she had listed two witnesses who had apparently worked with the plaintiff in the 1990s. She admitted that she had not seen them since that time. In the end, they were not called. C. The documents [80] The Court's credibility findings against the plaintiff and her husband arise more from the juxtaposition of her present complaints with the documents, particularly the WCB submissions drafted by the plaintiff and her past medical reports. Those documents work against the plaintiff's substantive claim, as well as her credibility and reliability. [81] The plaintiff presented as a two very different persons in writing and in testimony. Her presentation and claims of mental frailty, and general imprecision of memory were belied by her copious submissions in the WCB proceedings. On cross-examination, her husband stated that while he occasionally proofed and made suggestions on draft submissions, they were predominantly drafted by the plaintiff. [82] An example is attached as Appendix "A". It is a letter Ms Repin wrote to WCB on November 23, 2017: over two years after the accident. This letter, as well as others, shows that she is well able to absorb, synthesize, and argue not only medical opinions and charts but also WCB policy. That letter undermines her medical

experts' opinions on the effects of the accident on her mental health and abilities. It also undermines her own credibility. It also emphasizes the tenacity with which she pursues compensation for her injuries. [83] More importantly, the WCB file also indicates that many of the severe symptoms that she now complains of and attributes solely or primarily to the motor vehicle accident, were in fact strongly symptomatic before the motor vehicle accident, and, in some cases, even before the workplace injury. Her own words describing her physical conditions to WCB undermine her trial assertions that she was generally healthy and functioning before the accident. [84] Further, the WCB file indicates that she kept the motor vehicle accident a secret from WCB. In the end, in January 2017, WCB asked Ms Repin about the accident: she did not raise it herself. Her explanation at trial was that she assumed that WCB, with access to PharmaNet records, would have known about the accident. [85] This non-disclosure is troubling, given her active and aggressive pursuit of compensation from WCB throughout this period, and her obligation to regularly report to WCB on her medical status and her ability to return to work. It is even more troubling, given her submission to WCB of multiple medical records and reports that themselves do not mention the accident apparently because, with the key exception

of Dr Parhar, Ms Repin herself appears not to have mentioned the accident to those medical practitioners. [86] Equally concerning, the plaintiff's medical and WCB records establish what appears to have been a deliberate plan by the plaintiff to maintain two separate and distinct files of medical complaints, by seeing separate doctors for her workplace accident and for her motor vehicle accident. The plaintiff explained this with words to the effect of "when you go to the doctor's office, there is a sign that says "only one medical issue at a time."" The only treating doctor who seems to have had knowledge of both the workplace injury and the motor vehicle accident before 2017 is Dr Parhar. These reasons will return to Dr Parhar's reports, below. V. CAUSATION A. The law [87] The law of causation is well established. The plaintiff must establish on a balance of probabilities that the defendant's negligence caused or materially contributed to an injury. If the defendant's negligence is one cause of an injury, or if it exacerbates or aggravates an existing condition, then the defendant is liable for causing the resulting injury: Athey v. Leonati, [1996] 3 SCR 458 at para 47. The defendant's negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation need not be determined by scientific precision: Athey at paras

13-17. [88] The primary test for causation asks: "but for the defendant's negligence, would the plaintiff have suffered the injury?" This test recognizes that compensation for negligent conduct should only be made where there exists a substantial connection between the injury and the defendant's conduct: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras 21-23. [89] Tortfeasors must take their victims as they find them, and are liable even if the plaintiff's injuries are more severe than they would be for the average person: the thin skull rule: Athey at para 34. [90] In Yoshikawa v. Yu (1996), 21 BCLR (3d) 318 (CA) at paras 12- 13, Lambert JA summarized the principles to be applied in assessing claims of psychological injury: a) The plaintiff must establish that the pain, discomfort or weakness is "real" in the sense that the victim genuinely experiences it. b) The plaintiff must establish that his or her psychological problems have their cause in the defendant's unlawful act. c) The plaintiff's psychological problems do not have their cause in the defendant's unlawful act if they arise from a desire on the plaintiff's part for such things as care, sympathy, relaxation or compensation. d) The plaintiff's psychological problems do not have their cause in the defendant's unlawful wrongful act if the plaintiff could be expected to overcome them by his or her own inherent resources, or

"will-power". e) If psychological problems exist, or continue, because the plaintiff for some reason wishes to have them, or does not wish to end, their existence or continuation must be said to have a subjective, or internal, cause. f) If a court could not say whether the plaintiff really desired to be free of the psychological problems, the plaintiff would not have established his or her case on the critical issue of causation. g) Any question of mitigation, or failure to mitigate, arises only after causation has been established. h) It is not sufficient to ask whether a psychological condition such as "chronic, benign pain syndrome" is "compensable". Such a psychological condition may be compensable or it may not. The identification of the symptoms as "chronic benign pain syndrome" does not resolve the questions of legal liability or the question of assessment of damages. i) It is unlikely that medical practitioners can answer, as matters of expert opinion, the ultimate questions on which these cases often turn. j) There must be evidence of a "convincing" nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the recovery period, but the plaintiff's own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose. k) The general principles which apply in relation to causation in

law will apply to psychological injury as they apply to physical injury. B. Positions of parties and overview of decision [91] The plaintiff argues that although she had pain and discomfort and functional limitations due to pre-existing left shoulder injury and the workplace injury, they were aggravated or exacerbated by the accident. Further, the accident caused increased pain and discomfort in other parts of her body over and above her left shoulder, left neck area and left arm. The accident also exacerbated and aggravated pre-existing medical conditions, caused soft tissue injuries to her right shoulder, right neck and lower back, worsened her chronic pain issues, worsened her headaches, including the frequency and intensity of migraine headaches, worsened sleep issues, worsened somatic symptom disorder issues, and worsened mood issues such that she now suffers from major depressive disorder. In addition, she claims the accident caused or contributed to cognitive dysfunction, defects or deficiencies such that she suffers from a form of mild traumatic brain injury, and caused post-traumatic stress disorder (PTSD). She also says the accident caused driving anxiety such that she could not drive for two years, and now can only drive a short distance or time. Finally, the plaintiff argues that her medical evidence, particularly the opinion of Dr Parhar, indicates that her current

physical and mental conditions render her more susceptible to future injury. [92] The defendants concede that the accident, coupled with her failure to seek psychiatric or psychological treatment, likely exacerbated her pre-existing physical and psychological issues, including chronic pain, osteoarthritis, Ménière's disease, tinnitus, dizziness, nausea, headaches, migraines, depression and somatic symptom disorder, and struggles with sleep. The defendants also accept that as a result of the accident the plaintiff suffered additional soft-tissue injuries to her neck and back. They acknowledge that the plaintiff is entitled to some modest damages to represent this minimal worsening of her psychological and physical state from the already poor pre-accident baseline. They contend that it has had no effect on other pre-existing conditions, including her tinnitus, vertigo, and nausea. [93] The defendants differ from the plaintiff primarily with respect to the extent of the aggravation caused by the accident. The defendants argue the plaintiff was in an extremely poor state before the accident, and the accident did not change her conditions or life prospects significantly. To the extent the accident exacerbated her symptoms, it did so only to a very limited extent. [94] For the reasons that follow, I generally agree with the defendants, based on the pre-accident medical records, the

plaintiff's own descriptions of her workplace injury, and the present medical reports. The evidence suggests the accidents caused some soft-tissue injuries, but only a modest deterioration of her pre-existing physical and psychological conditions. The plaintiff has failed to demonstrate that accident worsened her condition in any significant way. I will consider the evidence of the plaintiff's injuries in more detail below. C. The plaintiff's conditions before the workplace injury and the accident [95] The parties and the medical expert witnesses agree that the plaintiff suffers from a complicated constellation of mental and physical injuries, most of which were present and chronic before the accident. [96] Even before the workplace injury, the plaintiff suffered from several health conditions. In 2012 she was diagnosed with Ménière's disease. She has also suffered for some time from tinnitus, hypertension, pre-diabetes, incontinence, headaches, light sensitivity, and sleep difficulties. [97] On November 19, 2009 the plaintiff underwent a CT scan of her head. A likely mild brain atrophy or pseudo-atrophy was reported. D. The plaintiff's evidence at trial [98] With respect to the allegedly aggravated physical manifestations, including increased shoulder, neck, and back pain, increased and worse headaches, tinnitus in both ears, and worsening of incontinence, the plaintiff

largely relied upon her own evidence, coupled with an inference that these symptoms were caused by the accident as she says they worsened after the accident. As noted above, no one else except her husband testified as to her pre-accident conditions and lifestyle. [99] In her direct examination, the plaintiff contrasted her symptoms before and after the accident. As a high-level contrast, she says that she was able to function more or less normally before the accident, notwithstanding her symptoms. She was independent and able to do housework, cooking, and shopping. She enjoyed gardening, walking, and socializing with friends. She enjoyed cycling and driving. [100] She says that must now rely upon her husband for almost all household chores. He must accompany her to all medical appointments, and monitor and administer her medications. On the rare occasions she drives, she can only do so when accompanied by her husband; even then she suffers from a PTSD level of anxiety. [101] She says that before the accident, her mood was bubbly and optimistic. After the accident, she grows irritable and impatient, especially with herself. She cries easily. [102] Her medical conditions set out below, particularly her dizziness and incontinence, coupled with her inability to perform household tasks including cooking and cleaning, have destroyed her desire to socialize. [103] While her left

shoulder hurt both before and, more so, after the workplace injury, after the accident both shoulders hurt as well as her neck, particularly at the back. She complains of severe and constant pain in her lower back. She also complains that her leg and right thigh hurt, and that they did not before the accident [104] With respect to the ringing in her ears, she said that it was confined to her right ear; after the accident, both ears suffered ringing. [105] She testified that the dizziness and vertigo manifested themselves differently before and after the accident. Before the accident, she could feel the attacks coming on, and they was generally manageable. Further, the vertigo attacks were rare: only twice a year. After the accident, the dizziness and vertigo occur three or four times a week. It requires her to walk with a cane (outside her home) or a walker (in her home). Her imbalance is triggered by something bright or colourful moving in front of her. She says that she began suffering from problems with her balance one week after the accident. [106] She testified that before the accident, she only suffered ordinary headaches; after the accident, she started to have migraine headaches. She also complains that while her headaches before were occasional, after the accident they are constant. Sometimes the headaches are so bad that she must lie down. [107] Before the accident,

her nausea was of a different character and was manageable. Now her nausea is more regular and acute, often accompanying her headaches and vertigo. That said, while she initially vomited once a week, now ginger tea can limit the vomiting episodes to three or so times a year. [108] Before the accident, the plaintiff suffered from insomnia only one to three times a month. She could generally stay asleep after falling asleep. After the accident, she always has difficulty sleeping. She is less able to fall asleep and, even then, wakes up several times a night. [109] She reports that she can no longer focus for a sustained period. She must read items two or three times in order for it to sink in. She often has difficulty in finding words. She is scatterbrained and will forget what she is doing mid-task. She cannot remember she took her medications or not. Her husband reported that she at times forgets her native tongue of Russian. E. Her pre-existing state: WCB records [110] As set out above, in her many communications and applications to WCB between 2013 and 2018, the plaintiff took the consistent position that she was completely disabled due to the workplace injury. [111] The substantial WCB file, partly quoted above, provides ample documented evidence of her pre-accident condition. This evidence suggests that the plaintiff in her testimony exaggerated the extent to which the

accident aggravated her conditions. [112] The 2013 workplace injury aggravated a pre-existing rotator cuff tear in her left shoulder. The injury also aggravated her pre-existing osteoarthritis, with migraines, face twitches, and feeling of pins and needles in her wrist, hand numbing, nausea, vomiting, dizziness, and acute pain in her shoulder, neck, and upper back. Her shoulder pain became chronic. [113] The workplace injury also developed or exacerbated mental health problems. These included anxiety and depression. The plaintiff argued, and Dr Muir and Dr Kiraly agreed, that the workplace injury could have caused a somatic symptom disorder, with an obsessive fixation on her pain and injuries. This in turn creates greater anxiety, exacerbating the pain that the person feels: somatic symptom disorder often presents itself as a vicious cycle. This disorder was manifest in her frequent visits to doctors as well as the emergency ward of the Royal Inland Hospital. [114] In short, the plaintiff's self-reports of her pre-accident conditions and symptoms, to WCB and to multiple physicians, confirm that many of the conditions that at trial she attributed primarily to the motor vehicle accident, were already well entrenched before the motor vehicle accident. F. Expert opinions 1. The plaintiff's medical opinions [115] The plaintiff's medical opinions all suffer from a near-fatal problem,

which cannot be attributed to the physicians themselves. Those doctors were provided limited or no medical documentation pre-dating the motor vehicle accident.[3] They were provided no documents setting out the plaintiff's contemporaneous description of her pre-accident conditions that she at the time attributed to the workplace injury.[4] On cross-examination, Drs Kiraly and Medvedev acknowledged, properly, that such records could have had a significant bearing on their opinions. Given the size of the WCB file, how could they have not had a profound effect? [116] As a specific example of the limiting effect of the doctors' minimal exposure to the plaintiff's file, Dr Kiraly acknowledged that the 2009 CT scan, which reported mild brain atrophy, would have been relevant for his opinion. He also acknowledged that her pre-accident complaints and behaviour, as recorded in the May 2, 2014 report of Dr Nowak, which Dr Kiraly never received, was consistent with depression and somatic symptom disorder.

2. The plaintiff's physical condition [117] I generally accept the analysis and conclusions of the defendants' medical expert Dr Leith, an orthopedic surgeon. In contrast to the plaintiff's retained expert witnesses, Dr Leith had more complete access to the plaintiff's pre-accident medical file. [118] Dr Leith confirms that the accident did not result in any orthopedic injury to the plaintiff: it caused no structural injury to the musculoskeletal system. Based on his examination of the plaintiff, he opined that the accident caused some additional strain and pain to the neck and back regions, and a typical whiplash presentation. Most of the physical symptoms were simply continuations of those already documented in relation to the workplace injury and other pre-existing conditions. Dr Leith also opined that other physical manifestations, such as dizziness, tinnitus, nausea, and bladder problems, pre-existed the accident and are not attributable to the accident. He concluded that: The lack of change in the examination findings with the report of worsening symptoms would suggest that this change is more subjectively based not related to any organic problem with the musculoskeletal system . [119] Dr Farraday, a general practitioner who provided a report for the plaintiff, agrees that the plaintiff likely sustained soft-tissue neck and left shoulder strains in the accident. He

concluded, however, that the medical evidence indicates that the cervical spine and left shoulder conditions had likely returned back to their pre-baseline state. He ultimately concludes that "based on the similarity of her pre-accident and post-accident physical examination findings, it will be difficult to conclude that there has been any significant change in her cervical spine and left shoulder conditions as a result of the motor vehicle accident." 3. The plaintiff's psychological condition [120] The plaintiff's primary impairments were psychological. The plaintiff's pain manifestations were out of proportion to her physical state. As noted by Dr Leith: Ms. Repin's current presentation appears to be out of proportion to the examination findings and imaging findings. Something other than physical injury or damage has manifested the diffuse symptoms to multiple body locations. I am not able to identify the cause of these other problems and I am not able to explain the degree of disability exhibited by Ms. Repin from these problems as well as the accident related soft tissue problems. [121] Although the medical opinions are of limited use to the Court in determining the extent to which the accident may have exacerbated her conditions, the medical experts are in general agreement about her current state: she meets the diagnostic criteria for PTSD, major depressive disorder,

somatic symptom disorder, and chronic pain. [122] Of course, the fact that the plaintiff's injuries and pain symptoms largely emanate from psychological causes rather than physical causes makes them no less compensable to the extent that they were caused or worsened by the accident. Dr Muir recognizes that while the manifestation of somatic symptom disorder is an exaggerated focus on physical pain, it is nonetheless a real condition: "she's not making it up." It was not controversial that the notion of chronic pain reflects the inherently idiosyncratic experience of pain and ability to cope with that phenomenon. [123] The defendant's medical experts also opined that these conditions were largely manifest before the accident. For example, Dr Muir, called by the defendants, opined that they largely developed after the workplace injury. He points in part to the plaintiff's multiple visits to the emergency ward as an indication that her somatic symptom disorder was already severe. As set out above, the plaintiff's medical experts were not provided sufficient documentation to assess the relative severity of her psychological conditions, but generally acknowledged, especially when presented with pre-accident medical records, that she could have been suffering from all of these conditions before the accident. In cross-examination, Dr Kiraly acknowledged her "pre-existing significant

problems." [124] A review of the voluminous pre-accident medical reports included in the WCB file, coupled with the expert opinion evidence, indicates that the somatic symptom disorder and depression were already severe before the accident. While the accident likely has worsened it, it merely elevated the condition slightly above an already high baseline. [125] For example, Dr Faraday, a general practitioner who provided an opinion for the plaintiff, acknowledged that the plaintiff's pain reports were excessive for the physical manifestations of her ailments. In this, he adopted and endorsed the observations of Dr Nowak, who saw the plaintiff 10 weeks before the accident, that Ms Repin's "reports of pain are out to proportion to findings on her x-rays," and that she presented "quite emotionally distraught and tearful," and recommended that Ms Repin "might benefit from being assessed at a Mental Health Department." [126] The primary manifestation of PTSD put forward at trial was driving anxiety. The plaintiff is still able to drive, however. I agree with the opinion of Dr Muir that the plaintiff falls short of a PTSD diagnosis; I also find that the plaintiff's evidence put forward in support of a PTSD diagnosis is exaggerated. I further find, based on the opinion of Dr Muir, and the evidence as a whole, that any symptoms ascribed to PTSD could also be ascribed to the

pre-existing severe somatic symptom disorder, possibly in combination with depression: the plaintiff's anxiety focuses not on the accident itself but rather on her perceived injuries. [127] In testimony and in argument, plaintiff's counsel placed great weight on the theory that the plaintiff may have suffered a concussion or a mild traumatic brain injury in the accident. Dr Faraday provided the primary expert opinion in support of this theory; he opined that a possible concussion caused ongoing symptoms of cognitive dysfunction, headaches, dizziness and nausea. Dr Kiraly, a psychiatrist, confirmed that based on what he knew of the plaintiff, her symptoms could meet the diagnostic criteria for mild traumatic brain injury. [128] There was no direct evidence that the plaintiff struck her head in the accident or that she lost consciousness. She herself said so after the accident. The paramedics who first attended to her reported that she was alert, and able to answer questions, with a perfect Glasgow Coma Scale score; there was no sign of a concussion. But those paramedics did not arrive until six or seven minutes after the accident: perhaps she suffered a concussion during this temporal gap? [129] Apart from speculation, the other basis for the concussion theory was the plaintiff's difficulty in recalling the accident, as well as her later presentation of psychological conditions

to medical practitioners, both treating and expert. The plaintiff's experts referred to her low post-accident test scores on psychiatric tests, and hypothesized that her mental condition is worsening as a result of the accident. Dr Kiraly described her score on the Beck Global Assessment of Functioning test as "worryingly low": a score that would usually prompt hospitalization. She also scored 19/30 on the Montreal cognitive assessment test: a bare pass. This also caused Dr Kiraly and Dr Muir concern: such scores would usually indicate a patient suffering from dementia.[5] [130] I do not place much weight on this evidence, for several reasons. First, Dr Muir noted that the plaintiff's dire Beck and Montreal tests results did not reflect the person he interviewed. It is possible that she, deliberately or unconsciously, underperformed on the Beck and Montreal tests. She scored 21/30 on the Rey test used to assess effort and detect malingering: a bare pass. Second, the assertion of severe cognitive impairment is also contradicted by the plaintiff's ability to carry out her extensive campaign for WCB benefits, with tenacity, sophistication, and eloquence, well after the accident and into this litigation. [131] Further complicating the plaintiff's proposition that the accident is primarily to blame for her current cognitive state is the fact, acknowledged by Dr Faraday in

cross-examination on his concussion theory, that the specific combination of medication taken both before and after the accident by the plaintiff (specifically Zopiclone, Tylenol 3, and Cyclobenzaprine) can cause many of the symptoms of cognitive impairment complained of by the plaintiff. Dr Muir notes that where a patient has cognitive issues, the medication history is very important. [132] On the whole of the medical and other evidence, including the plaintiff's own evidence of the accident, it is unlikely that the accident caused a concussion or mild traumatic brain injury to the plaintiff. Most compellingly, in addition to the evidence cited above, the plaintiff's medical expert best suited to diagnose a concussion -- Dr Medvedev, the neurologist -- did not diagnose the plaintiff with a concussion. In cross-examination, Dr Medvedev responsibly agreed that the plaintiff's complex pre-accident physical and psychological conditions would make it difficult to provide a concussion diagnosis. G. Dr Parhar [133] The plaintiff's main evidence with respect to physical injuries attributable to the accident were two medico-legal expert reports of Dr Gurdeep Parhar (the "BCSC Parhar Reports"). In the 2016 report, Dr Parhar sets out a list of 29 "diagnoses that would best describe the conditions that would have resulted from the motor vehicle collision of July 7, 2014." These include:

aggravation of pre-existing asymptomatic osteoarthritis (degenerative arthritis) of the cervical spine; aggravation of pre-existing asymptomatic osteoarthritis (degenerative arthritis) of the lumbar spine; musculoligamentous injuries of the cervical, thoracic, and lumbar spine; muscle tension; right and left shoulder muscle strain; right and left elbow contusion; left wrist strain/sprain; right and left hand contusion; musculoligamentous injuries of the right and left hip and right thigh; right and left leg contusion; right and left knee contusion/strain; left ankle sprain; left foot contusion/strain; right and left temporomandibular joint (TMJ) dysfunction (jaw joint dysfunction; post-traumatic vertigo (dizziness); post-traumatic tinnitus (ringing in the ears); depressed mood; anxiety; and sleep disturbance. [134] In his 2018 report, Dr Parhar adds a 30th diagnosis: "traumatic brain injury with post-concussion syndrome." [135] The defendants submit that Dr Parhar's opinions should be afforded no weight in this proceeding. They argue that Dr Parhar's reports and actions reveal him to be an advocate, inconsistent with his duty to assist the court as an impartial expert. [136] As noted above, Dr Parhar has a double connection with the plaintiff. The plaintiff herself initially retained Dr Parhar to provide an expert report for her WCB proceedings. He first saw the plaintiff on

August 8, 2014. On January 14, 2015 he assessed the plaintiff and authored a report. In that WCB report, Dr Parhar opined that: .certainly at the current time, with the current status of Christine's left shoulder condition, she is totally disabled from returning to work as a licensed practical nurse in a long-term care facility. [137] In his January 2015 WCB Report, Dr Parhar states, under the heading of "Past Medical History": She has not had similar injuries prior to the work incident of July 15, 2013. Christine does not have any other health conditions. [emphasis added] [138] This statement is strange, as she had suffered the motor vehicle accident only five months previously, just before Dr Parhar became her treating physician. As Dr Parhar notes in his separate medico-legal report for this litigation, the plaintiff told Dr Parhar of the motor vehicle accident on her first visit. [139] This statement is even stranger, given Dr Parhar's own extensive direct experience with WCB. For five years he served as a WCB medical advisor. For nine years he served as the first medical coordinator for WCAT. He knew that WCB would have been very interested to know about other possible causes of the plaintiff's ongoing physical complaints in assessing its obligation to provide compensation. He knew that WCB is vulnerable to non-disclosure by an injured worker when assessing the extent to

which the disability is attributable to a workplace injury, and assessing whether it is obliged to pay for that disability. [140] The WCB Parhar report also makes erroneous statements about the plaintiff's past occupational history. It states that she had attended college to become a doctor of naturopathic medicine, and that she had served as a licensed practical nurse since 1991. It also states that Ms Repin was terminated from Kolbina without explanation. All of these statements are false. [141] The BCSC Parhar Reports repeat some of these incorrect statements about the plaintiff's education and professional history. They state, again, that the plaintiff completed college, and that she had been working as a full-time nurse since 1991. [142] Dr Parhar confirmed that the plaintiff was the sole source of these false statements. In a supplemental report dated December 2, 2019, he retracted the statements, attributing them to typographical errors. [143] I agree with the defendants that the BCSC Parhar Reports should be afforded little weight, for several reasons in addition to those just recited. [144] First, I agree that his report provides the list of 30 diagnoses without offering or undertaking substantive independent reasons or analysis. To be useful and admissible, an opinion must be more than a conclusory assertion on causation. It must provide reasoning that links the

facts, test results, and observations that support its conclusions on whether the accident caused the injuries: Perry v. Vargas, 2012 BCSC 1925 at paras 123-124; Rule 11-6(1)(f). [145] Instead, the diagnoses are primarily based upon acceptance of the plaintiff's self-reporting at face value, coupled with reviews of medical charts of other doctors. Even where Dr Parhar appears to show independent examination and analysis, his conclusions remain primarily based on the plaintiff's self-reporting: the plaintiff describes pain when certain parts of her body are palpated by Dr Parhar. [146] The 2018 BCSC Report's additional diagnosis of traumatic brain injury provides an example of Dr Parhar's tendency to adopt the analysis of other doctors without independent analysis or consideration. On cross-examination, Dr Parhar denied that he had merely adopted the opinions of Dr Faraday and Dr Kiraly on this point. But as his 2018 report provides no explanation or analysis on this new diagnosis, which, as a general practitioner, he would not likely be able to provide, it would seem that he is doing just that. [147] Second, I agree with the defendants that in writing his BCSC Reports, "Dr Parhar seemingly erased his own knowledge of Ms Repin's pre-Accident condition." To be fair, the BCSC Parhar Reports do mention the workplace accident a few times. But the reports fail to provide any analysis

of how and to what extent the workplace accident, and, for that matter, her other pre-existing conditions, bear upon the diagnoses he now attributes to the accident. Nor do they set out in detail the extent of her pre-existing conditions to present a fair, complete, and balanced picture of the plaintiff in a manner that would assist the Court. [148] This failure is inexcusable. Dr Parhar is not a one-off medical expert retained to provide a report. As her treating physician, and as the author of several medical reports on her behalf, Dr Parhar knew far more about the plaintiff's condition than he set out in his BCSC reports. [149] The BCSC Parhar Reports provide a misleading portrait of the plaintiff's "Past Medical History." The section briefly refers to the workplace injury, and also refers to gastroesophageal reflux disease, without elaboration. It then makes the broad and misleading statement that: Prior to the motor vehicle collision of July 7, 2014, Christine had been well. She had not had any similar injuries prior to this motor vehicle collision of July 7, 2014. [emphasis added] [150] The WCB Parhar Reports make a similar misleading statement, ignoring any motor vehicle injuries, as quoted above. [151] On cross-examination, Dr Parhar admitted having used "bad wording" and that "in hindsight [he] could have chosen better words" because what he had meant to say is that

the plaintiff had not had similar injuries before the accident. On cross, he conceded, much more accurately than his report conveys, that Ms Repin's pre- and post-accident conditions are "complicated." [152] The BCSC Parhar Report then makes the broad and inaccurate statement that "[s]he does not have any other medical conditions" and that before the motor vehicle collision, she did not have problems with pain, bladder control problems, headaches, room spinning, nausea, fatigue, sadness, mood swings, decreased sleep, ringing in her ears, or insomnia. To be fair, some of these statements may be attributable to non-disclosure by the plaintiff to Dr Parhar, or Dr Parhar's incomplete review of the plaintiff's voluminous medical file. But whatever the source, this inaccuracy significantly undermines the reliability and utility of his reports. [153] A further example of Dr Parhar's blurring of the effects of the accident, the workplace injury, and other pre-existing conditions emerges from a comparison of the BCSC Parhar Reports and the WCB Parhar Reports. Each of these reports sets out the impacts (of the accident and the workplace injury respectively) on the plaintiff's personal, family, and social life. This section of the BCSC Parhar Report closely resembles that of the WCB Parhar Report. This is not in itself surprising, insofar as the workplace injury is to some extent

indivisible from the motor vehicle accident injuries. But the BCSC Parhar Reports do not provide any distinction or analysis. Instead, under each of these categories, the BCSC Parhar Reports state, unequivocally: Opinion: It would be my opinion that Christine's [personal life] challenges were directly a result of the injuries she had sustained in the motor vehicle collision of July 7, 2014. [emphasis added] [154] Third, as alluded above, it is difficult to rely on the BCSC Parhar Reports in light of his complete silence on the motor vehicle accident in his WCB Report and his ten WCB Physician's Progress Reports. On cross, Dr Parhar explained that he was only focusing on the workplace accident in these documents. This is difficult to believe, especially given his long relationship with WCB as well as the fact that he was actively treating and providing medico-legal reports to the plaintiff simultaneously with respect to the workplace injury and the motor vehicle accident. Dr Parhar appears to have chosen what to include in any given report based on the desired legal outcome of his patient before each forum. [155] William v. British Columbia, 2005 BCSC 131 sets out the key duties of an expert witness providing opinion evidence to the court: [31] It is essential that a person called to give expert evidence be independent and impartial. Such a person is called to assist the court

in areas that require expertise. The court must be able to rely on the opinions expressed as those of the expert and no one else. Those opinions cannot be influenced by the adversarial demands of the litigation nor by the demands of counsel retaining the expert: Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. [32] In National Justice Compania Naviera SA v. Prudential Assurance Co Ltd ("The Ikarian Reefer"), [1993] 2 Lloyd's Rep 68, QBD (Com Ct), Cresswell J. said the following concerning the duties and responsibilities of expert witnesses: B. THE DUTIES AND RESPONSIBILITIES OF EXPERT WITNESSES The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan, [1981] 1 WLR 246 at p 256, per Lord Wilberforce).

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc, [1987] 1 Lloyd's Rep 379 at p 385 per Mr. Justice Garland and Re J, [1990] FCR 193 per Mr. Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract form his concluded opinion (Re J sup).

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990 per Lord Justice Staughton) . [156] The BCSC Parhar Reports fall afoul of all of the above principles. [157] The defendants also argued that Dr Parhar failed to comply with the October 23, 2019 court order that he and his multiple medical businesses disclose "complete clinical records", including all records "relating to all treatment and consultation" and, expressly "all notes and forms completed by Dr Parhar regarding Ms. Repin, including, but not limited to, records related to an injury for which she has a WCB claim " In his initial disclosure pursuant to the order, Dr Parhar did not provide any of his WCB reports, his clinical notes of his 14 January 2015 examination of the plaintiff for the WCB report, or many of the medical investigation and consultation reports that helped form the basis of his January 2015 WCB Report. These included pre-accident hospital

records and the pre-accident reports of Dr J. Anderson and Dr Nowak. Also omitted were certain clinical records that extensively refer to the plaintiff's poor pre-accident condition, including "stabbing pain in the upper back," "lateral stiffness and pain in the neck resulted in decreased flexion," "myofascial pain," "fibromyalgia," and "chronic left shoulder pain/trapezius pain." The defendants provide a long and troubling list of documents and reports that Dr Parhar and his businesses failed to produce, in breach of the court order. [158] On cross-examination, Dr Parhar conjectured that their omission could be attributable to clerical error. While this is not an excuse, I am not prepared to make findings beyond that. On the evidence before the Court, I cannot reach the serious conclusion urged upon me by the defendants that Dr Parhar's failure to produce these documents was deliberate, motivated by a desire to keep them out of this litigation as they would undermine his BCSC Reports, and compromise the plaintiff's case. That said, the significant and widespread failures to comply with the court order provide yet another reason to place little or no weight on Dr Parhar's reports. H. Conclusion: injuries [159] As none of the plaintiff's medical experts were provided meaningful medical records or the plaintiff's self-reports for the period before the accident, and as they were

largely reliant upon the plaintiff's own unreliable self-reports of her present condition, none were able to convincingly opine that the accident significantly worsened her already poor pre-existing physical and psychological conditions. Given the plaintiff's complex interplay of physical and psychological pre-conditions, it is doubtful that the plaintiff's experts could meaningfully quantify the extent to which the accident exacerbated or aggravated her existing physical and psychological conditions. The difficulty of this exercise was further complicated by evidence that the plaintiff's conditions were naturally declining before the accident, both for reasons unique to her and because of the general aging process. [160] As set out above, I have preferred the medical opinions of Drs. Muir and Leith based on their own balanced analyses as well as the frailties of the plaintiff's expert reports. Based on the Muir and Leith reports, and the evidence as a whole, I find that the accident inflicted minor soft-tissue injuries on the plaintiff physically, and marginally aggravated some of the physical and psychological conditions which dated back to the workplace injury and earlier. But the plaintiff has failed to acquit her evidentiary burden of proving that any significant additional harm is attributable to the accident. [161] In other words, I find the accident only slightly

worsened the plaintiff's physical and psychological condition beyond what it would have been in any case, had the accident not occurred. The differential between her post-accident state and her pre-accident state, with its ongoing trajectory of poor mental and physical health and unemployment, is modest. Although the plaintiff has demonstrated causation to this limited extent, the assessment of damages, to which I now turn, will reflect this relatively modest differential. VI. damages A. Law [162] While causation concerns the legal causes of the plaintiff's injuries, the assessment of damages measures the extent of their loss: that is, the difference between their life as it is, and their life as it would have been, but for the negligence that caused those injuries. [163] Damages awards seek to place the plaintiff in the position they would have been had the defendant not been negligent: no better or worse. The defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would likely have experienced regardless of the defendant's negligence. The defendant is liable for the additional damage but not the pre-existing damage: Athey v. Leonati at paras 32-35. [164] As McLachlin, CJC stated in Blackwater v. Plint, 2005 SCC 58 at para 78: Even though there may be several tortious and non-tortious causes of injury, so long as

the defendant's act is a cause of the plaintiff's damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: [Athey v. Leonati]. [165] As L. Warren J explains in Abbott v. Gerges, 2014 BCSC 1329: [55] The fundamental principle in assessing tort damages is that the quantum should be that which is required to place the plaintiff in her original position; that is, the position she would have been in absent the defendants' negligence: Athey, at para.

32. This requires a determination of the plaintiff's position after the negligence and an assessment of what the original position would have been. The difference between these positions represents the quantum of the defendants' liability: Athey, at para. 32. [56] The defendants need not put the plaintiff in a position better than her original one and should not compensate the plaintiff for any damages she would have suffered anyway: Blackwater v. Plint, 2005 SCC 58, at para.

78. In determining the plaintiff's original position, it may be necessary to reflect any debilitating effects of a pre-existing condition, or a measurable risk that such a condition would have detrimentally affected the plaintiff in the future regardless of the defendant's negligence. This is the crumbling skull rule and, where applicable, it results in the damages award being reduced to reflect risks inherent in the plaintiff's pre-accident condition: Athey, at para. 35. [57] As explained in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670, at para. 48, a measurable risk need not be proved on a balance of probabilities: Whether manifest or not, a weakness inherent in a plaintiff that might realistically cause or contribute to the loss claimed regardless of the tort is relevant to the assessment of damages. It is a contingency that should be accounted for in the award. Moreover, such a contingency does not have to be proven to a certainty. Rather, it should be given weight according to its relative likelihood. B. Summary of positions of parties [166] Here, the plaintiff seeks damages of $729,648.14, as reflecting the extent of her loss attributable to the accident. In contrast, the defendants submit that the damages suffered by the plaintiff are appropriately compensated by an award of between $33,508.50 and $50,373. The parties' full positions on damages are

summarised below: Plaintiff Defendants Non-pecuniary damages $170,000 $40,000-$50,000 Net past wage loss $180,000 $0 Impairment of future income earning capacity $188,961 $0 Future cost of care $150,000 $4,678-$17,164 Loss of housekeeping capacity $30,000 $0 Special damages $10,687.17 $0 Reduction for failure to mitigate 0% -25% Total $729,648.14 $33,508.50-$50,373 [167] I will considered each of these potential heads of damage in turn. As an overarching principle, I reiterate that the accident only slightly worsened her physical and psychological conditions beyond what they would have been in any case had the accident not occurred. The differential between her post- and pre-accident state is modest. Given the negative contingencies weighing upon the plaintiff's prospects regardless of the accident, damages will be significantly discounted, and also modest. C. Non-Pecuniary Damages 1. Law [168] The oft-cited case of Stapley v. Hejslet, 2006 BCCA 34 at para 46 sets out a non-exhaustive list of factors to be considered when assessing non-pecuniary damages: · age of the plaintiff; · nature of the injury; · severity and duration of pain; · disability; · emotional suffering; · loss or impairment of life; · impairment of family, marital and social relationships; · impairment of physical and mental abilities; · loss of lifestyle; and · the plaintiff's stoicism.

2. Discussion and decision [169] The plaintiff's case law focused largely on plaintiffs suffering from somatic symptom disorder, accompanied, as it often is, by some combination of chronic pain, depression, and PTSD. Those cases set out a range for non-pecuniary damages of $110,000 to $185,000. [170] The plaintiffs in those cases, however, developed the somatic symptom disorder directly and primarily as a result of the accident in question. Those cases differ from the present case, where that disorder was well in place before the accident. Most of the plaintiff's authorities are also distinguishable in that the plaintiffs in those cases, in their 20s and 30s, were much younger than the present plaintiff, with more active lifestyles. [171] The plaintiff also emphasizes Kallstrom, where the plaintiff was awarded $180,000 in non-pecuniary damages for injuries that largely manifested themselves as chronic pain without an apparent physical cause. There the plaintiff had been involved in six motor vehicle accidents. At para 380, the Court set out the acute change inflicted on the plaintiff by those accidents: [380] This is a case where the need for "solace" is significant. Ms. Kallstrom has been converted from a happy, successful, active young single mother with a wide circle of friends into someone who suffers relentless pain and depression, is physically inactive, and has gained

considerable weight, has experienced a profound loss of self-esteem, has few friends beyond family, has been rejected by her son and who, as a result of all these things at least in part, has attempted suicide on at least three occasions. Ms. Kallstrom's dream of developing in her thirties a long term successful career, getting married and having several more children will never be realized. Her ability to form a long-term relationship, whether formally married or otherwise, remains significantly impaired ("I have so much baggage, who in their right mind would want to be with me?", she says rather forlornly). Her prospects for long-term happiness are poor. [172] The present accident has inflicted far less of a transformation on the plaintiff, who was 25 years older than Ms Kallstrom at the time of the accident. Most significantly, Ms Repin already suffered from most of the symptoms for which she seeks compensation at the time of the accident. These pre-existing conditions form part of her "original position", and should, accordingly, be taken into account in assessing the quantum of damages: Nikkhah v. Batin, 2019 BCSC 2223 at para 120. [173] In these circumstances, the cases cited by the defendants more closely resemble the facts of the present case. Uppal v. Judge, 2016 BCSC 642, for example, involved a 55-year-old plaintiff with pre-existing soft-tissue injuries and symptoms

of chronic pain, depression, and anxiety, which the accident at issue in that case significantly aggravated. The court awarded $65,000 in non-pecuniary damages. Similarly, Schnurr v. Insurance Corporation of British Columbia, 2015 BCSC 1630 involved a 50-year-old plaintiff who also suffered from a pre-existing chronic pain condition, as well as depression, and headaches. The Court found these conditions were aggravated by the accident in question to an extent that was "not inconsequential", and awarded $75,000 in non-pecuniary damages. [174] The present case also involves a plaintiff who was in her mid-50s at the time of the accident, and who suffered from chronic conditions that were aggravated by the accident in question. The difference between the plaintiff's pre- and post-accident condition in this case, however, is not as great as it was in Uppal and Schnurr. Ms. Repin's pre-accident condition was considerably worse than either of the plaintiffs in those cases. The accident, as I have already found, only mildly aggravated her pre-existing conditions, to the extent it aggravated them at all. In other words, Ms. Repin's quality of life was already seriously compromised prior to the accident and did not significantly change after it. [175] Taking account of the Stapley factors, and the comparator cases advanced by the parties, all in light of the plaintiff's conditions before

and after the accident, a non-pecuniary damages award of $40,000 is appropriate. This amount is sufficient to account for her soft-tissue injuries and the mild aggravation of some her underlying conditions as a result of the accident. D. Loss of past and future earning capacity 1. The plaintiff's position [176] The plaintiff argues that before the accident she was employable. Due to the accident she is no longer employable. She has suffered a past wage loss and an impairment of future income earning capacity.

2. The defendants' position [177] The defendants argue that the plaintiff has not established any loss of income attributable to the accident. Specifically, they argue that due to the poor state of the plaintiff's pre-accident mental and physical health, as well as her poor history of employment before the accident, there has been no diminishment in her earning capacity post-accident.

3. Law [178] Compensation for past loss of earning capacity is to be based on what the plaintiff would have, not could have, earned but for the injury that was sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para 30; M.B. v. British Columbia, 2003 SCC 53 at para 49. [179] As with other heads of damage, insofar as possible, the plaintiff should be put in the position that she would have been in but for the injuries caused by the defendant's negligence: Lines v. W & D Logging Co. Ltd., 2009 BCCA 106 at para 185. [180] The court should compare the likely future of the plaintiff's working life if the accident had not happened with the plaintiff's likely future working life after the accident: Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para 32. [181] Goepel JA sets out the principles for determining both past and future loss of earning capacity in Grewal v. Naumann, 2017 BCCA 158: [48] In summary, an assessment of loss of both past and future earning capacity involves a consideration of hypothetical events. The plaintiff is not required to prove these hypothetical events on a balance of probabilities. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. If the plaintiff establishes a real and substantial possibility, the Court must then determine the measure

of damages by assessing the likelihood of the event. Depending on the facts of the case, a loss may be quantified either on an earnings approach or on a capital asset approach: Perren v. Lalari, 2010 BCCA 140 at para. 32. [49] The assessment of past or future loss requires the court to estimate a pecuniary loss by weighing possibilities and probabilities of hypothetical events. The use of economic and statistical evidence does not turn the assessment into a calculation but can be a helpful tool in determining what is fair and reasonable in the circumstances: Dunbar v. Mendez, 2016 BCCA 211 at para. 21. [182] The final award must be fair and reasonable in all the circumstances. This assessment requires a very fact-intensive, case-specific inquiry. As the exercise requires the court to predict an uncertain future, comparison to other cases is of limited use: Gregory at para 33.

4. Method of assessment [183] The plaintiff encourages the Court to award damages for loss of past and future wages based on the loss of a capital asset method as per Brown v. Golaiy (1985), 26 BCLR (3d) 353 (SC). In their alternative argument, the defendants agree that the capital asset approach would be appropriate, and argue for a nominal award. [184] The capital asset method is especially useful and typically used where the plaintiff is young, and has no established employment history: Sinnott v. Boggs, 2007 BCCA 267 at para 16. This of course does not describe the plaintiff, who has a long employment history: primarily one of unemployment. That said, where the loss "is not measurable in a pecuniary way", the capital asset approach may be more appropriate: Perren v. Lalari, 2010 BCCA 140 at para 12. [185] Brown at para 8 sets out the factors that typically inform the capital loss approach: a) whether the plaintiff has been rendered less capable overall of earning income from all types of employment; b) whether the plaintiff is less marketable or attractive as a potential employee; c) whether the plaintiff has lost the ability to take advantage of all job opportunities that might otherwise have been open; and d) whether the plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market.

5. Discussion and decision [186] With regret, I generally agree with the defendants' position. It is highly unlikely that the plaintiff will ever work as a licensed practitioner nurse. She admitted this at trial. The vocational expert called on her behalf at trial, Dr van den Berg, agreed that even without the accident, she would have had to switch to a less physically demanding vocation. While it is not determinative of this proceeding, it is telling that the WCB concluded on its medical evidence, as well as the plaintiff's repeated assertions that she was disabled, that the workplace injury rendered her 21% disabled: that is, functionally unable to perform the work of a licensed practical nurse or any manual labour, and most sedentary labour. In other words, she was already physically disabled from most work before the accident. [187] The plaintiff argues that the circumstances of her dismissal from Kolbina were unfair. That may well be the case. But the task before the Court is not to consider whether her dismissal was wrongful: it is to conduct an assessment of whether the plaintiff would likely find employment post-accident. Ms Macdonald from Kolbina confirmed that she would not provide a performance-based reference for the plaintiff to any prospective employer. A nurse dismissed based on allegations of medication errors and failures to follow procedures faces grim job

prospects, particularly where she has barely any experience in that field. [188] The plaintiff faces more general challenges in proving past or future employment prospects. Her job history is sporadic and unhappy: she likely cannot obtain a positive reference from any employer since the 1990s. Finding any employment at her age will be challenging. Her pre-existing physical and mental health challenges severely limit her employment prospects, regardless of the accident. Her pre-existing shoulder injury makes manual labour, or a return to her past employment of housekeeping, unlikely. Dr van den Berg agrees that she cannot work in any field requiring physical labour. He opined in his report that she could qualify for a sedentary position only if there is a significant improvement in her left shoulder pain: there is little prospect of such an improvement. Again, these conditions and impediments pre-date the accident. [189] The limited prospects for employment is evidenced by the complete unemployment of the plaintiff since the workplace injury, and indeed her very limited employment since 2009: she has worked for approximately 8 weeks over the past 11 years, holding down no job for longer than a few weeks. [190] Further, the plaintiff does not appear to have made any effort to find further employment since the accident. The only evidence of efforts to find employment after the

workplace injury was for an assistant teacher position at Selkirk College. There was no evidence of the potential pay, or her qualifications for the job, or her realistic prospects of being hired. In any case, she did not get the job. [191] That said, the plaintiff has indicated that she desires to work, and given her skills and training, she passes the threshold of a real and substantial possibility of future employment, albeit barely. Her grim prospects for future employment must be considered as heavily negative contingencies, allowing for only a modest award. [192] With an eye to all of the evidence cited above, and given the likelihood that the plaintiff would have been minimally employed from the accident date to the age of retirement regardless of the accident, and given the significant negative contingencies that she would not be employed at all, I award $20,000 as nominal compensation for loss of past and future earning capacity. E. Costs of future care 1. Law [193] In Mills v. Graham, 2019 BCSC 641, B. MacKenzie J summarized the principles governing an award future care costs: [118] An award of damages for future care is intended to improve or sustain the physical or mental health of the injured person in the context of post-accident life expectancy: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R.

229. As Bennett J.A. noted in Gignac v. Insurance Corporation of British Columbia, 2012 BCCA 351: [29] 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 would have been in had the accident not occurred. [30] The award is "based on what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff" [citations omitted]. [119] Justice Voith recently summarized the applicable test in Allen v. Parkeh, 2018 BCSC 126: [166] The test for establishing a claim for cost of future care is set out in Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (B.C.S.C.) at para. 211, aff'd (1987), 49 B.C.L.R. (2d) 99 (B.C.C.A.). That test is an objective one based on medical evidence. It is necessary for a plaintiff to provide a medical justification for claims for cost of future care and such claims must be reasonable. [120] In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.), McLachlin J. (as she then was) said: It follows that I must reject the plaintiff's submission that damages for cost of future care should take into account the cost of amenities which serve the sole function of making the plaintiff's life more bearable or enjoyable. The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff's

health. At the same time, it must be recognized that happiness and health are often intertwined. [121] In addition, I note that in Andrews, Dickson J. (as he then was) stated that damages for cost of future care must once again "be moderate and fair to both parties" (at 242). [122] In non-catastrophic cases, "a little common sense should inform claims for costs of future care, however such costs may be recommended by experts in the field": Flore v. Bampton, 2018 BCSC 721 at para. 211, citing Penner v. Insurance Corporation of British Columbia, 2011 BCCA 135 at para.

13. No award is appropriate for costs that a plaintiff would have incurred in any event: Shapiro v. Dailey, 2012 BCCA 128 at paras. 51-55. Moreover, future care costs must be likely to be incurred by the plaintiff, with the onus on the plaintiff to show there is a reasonable likelihood that the suggested services will be used: Lo v. Matsumoto, 2015 BCCA 84 at para. 20, and Izony v. Weidlich, 2006 BCSC 1315 at para.

74. In Izony, the court noted that if a plaintiff has not used a particular item or service in the past, it may be inappropriate to include it in costs in a future care award. Moreover, since damages for costs of future care are a matter of prediction, they cannot be measured exactly: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para. 21. [123] Finally, it is important to reiterate that what is required is medical justification for a given item, not medical necessity. All that is required is some evidence that the expense claimed is directly related to the disability arising out of the accident and is intended to ameliorate its impact: Harrington v. Sangha, 2011 BCSC 1035 at para.

151. While medical opinion evidence on the necessity of each claimed item is not necessary, there must be "evidence linking the physician's assessment of the plaintiff's injuries to the treatment": Hart v. Hansma, 2014 BCSC 518 at para. 161. [194] In Johal v. Meyede, 2014 BCCA 509 the Court directed trial courts to: a) ensure that there is an "evidentiary link between the caregiver's assessment of pain or disability and the recommended care"; b) have "regard for the real and substantial possibility that the expense will be incurred" and provide "an allowance for the contingency that the cost may not be incurred"; and c) ensure "that the specific amount awarded for each item claimed" is identified. [195] An assessment of damages for cost of future care is not a precise accounting exercise: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9 at para 21.

2. The plaintiff's position [196] The plaintiff provided no specific submissions on costs of future care. Instead she relies generally upon the expert report of Mr Kowalik, a kinesiologist with a specialty in functional valuation. Mr Kowalik made a single visit to the plaintiff's house, assessed her needs and capabilities, and in his resultant expert report sets out annual costs for treatments, therapies, medications, as well as home assistance, through adaptation, devices, and hired help. [197] To these costs, the plaintiff applies present value calculations performed by Mr Peever, an economist, to project the future cost to age 75. These future value costs total $157,852, which the plaintiff has rounded down for a claim of $150,000.

3. The defendants' position [198] The defendants return to their theme that the plaintiff's post-accident impairment is not significantly different from her pre-accident impairment: the purpose of a future care costs award is to restore, as best as possible with a monetary award, the injured person to the position she would have been in had the accident not occurred: no more, no less.

4. Discussion and decision [199] I generally agree with the position of the defendants. For the most part, the plaintiff has not discharged her evidentiary burden of showing that the recommended treatments and costs are attributable to the accident, rather than to her pre-existing physical and psychological state. [200] Mr Kowalik properly conceded that his assessment is based upon the day he assessed the plaintiff, and does not seek to parse out whether or to what extent the treatments address the difference between the plaintiff's pre-and post-accident conditions. Most of the medications set out in his report were already taken by the plaintiff before the accident, and presumably would have been purchased regardless of the accident. These include Zopiclone, Naproxen, Cyclobenzaprine/Flexeril, Diclofenac, Gravol, Tylenol, and ibuprofen (and variants). [201] Many of the tasks set out in the report were not specifically identified as necessary or even desirable by the plaintiff: these include trimming trees, a task hypothesized by Mr Kowalik based on his visit. The evidence also indicates that the plaintiff's husband would have performed many of the identified tasks in any case, such that it would be inappropriate to compensate the plaintiff. [202] The plaintiff and her husband testified that before the accident, she was generally able to perform household tasks, as well as all

self-care. This is belied once again by her own statements on her pre-accident condition, as seen in her WCB statements. For example, on December 5, 2013 she reported to WCB: Limited at home in doing even just the little things, like opening cans. Sometimes feels she is clumsy but then realizes it is more due to lack of grip strength. Anything fine motor does not even bother with the left, just uses her right. Finds using the left is just a pain so opts for using the right. Gets husband to do heavy lifting or pushing, he does the dishes. Husband has always done vacuuming. Driving with one hand, and drives slowly. Cannot go fast. If she dries fast, starts to feel dizzy. If in a lot of traffic, pulls over. When husband can, he will drive. [203] As a further example, Dr Parhar records in his January 14, 2015 WCB report the plaintiff's statements about the impact of the workplace injury on her home life: A. IMPACT ON PERSONAL LIFE Christine explained that the left shoulder injuries that began in July 15, 2013 have now affected her personal life such that she is having problems with activities of self-care, including washing her hair and putting on a shirt. She reported that her self-image/self-esteem has been affected due to her inability to work. B. IMPACT ON FAMILY LIFE Christine's left shoulder injuries have affected her family life such that she cannot do household chores,

cook, clean, vacuum, wash dishes, do laundry, or carry groceries. She explained that her husband is performing these activities. C. IMPACT ON SOCIAL LIFE Christine noted that the left shoulder injuries have impacted her ability to participate in activities with friends. She explained that she cannot clean or cook and therefore cannot invite her friends or family over for meals and social events. [204] I also agree with the defendants that it is inappropriate to include in the costs of a future care award particular items or services that the plaintiff has never used in the past, and that she will not be likely to use in future, even if recommended. There is no evidence that she has ever used exercise equipment at home, or attended fitness facilities; there is affirmative evidence that she avoided physiotherapy treatments even where recommended in past: she is unlikely to start now. I also agree with the defendants that it is inappropriate to claim the full cost of special products that substitute for product she would have to purchase in any case (such as a memory foam pillow). [205] Taking account of the plaintiff's evidentiary burden, I award costs of future care reasonably attributable to the accident as follows: Exercise home equipment $295 Heating pad $102 Foam pillow $978 (50% of claim) Tempurpedic mattress $3,570 (50% of

claim) Cane/walker $85 Kinesiologist: $747 Psychologist $11,301 (50% cost; remainder compensated by MSP) Rehabilitation Specialist $1,185 Venlafaxine Effexor $3,535 Total $21,798 F. Loss of homemaking capacity 1. Law [206] Kim v. Lin, 2018 BCCA 77 sets out the principles governing whether to make a loss of housekeeping award: [31] Loss of housekeeping capacity [is] just that, a loss of capacity, or the loss of an asset that should be compensated as a pecuniary loss regardless of whether the replacement services which are used to value the loss and determine the quantum of the award are actually purchased .Therefore, where a plaintiff suffers an injury which would make a reasonable person in the plaintiff's circumstances unable to perform usual and necessary household work - i.e., where the plaintiff has suffered a true loss of capacity - that loss may be compensated by a pecuniary damages award. Where the plaintiff suffers a loss that is more in keeping with a loss of amenities, or increased pain and suffering, that loss may instead be compensated by a non-pecuniary damages award. However, I do not wish to create an inflexible rule for courts addressing these awards, and as this Court said in Liu, "it lies in the trial judge's discretion whether to address such a claim as part of the non-pecuniary loss or as a segregated pecuniary head of damage 2. The plaintiff's position [207] The plaintiff provided no specific submissions on loss of housekeeping capacity. She claims $30,000.

3. The defendants' position [208] The defendants return to the plaintiff's status before the accident. Due to her diminished state, as well as their domestic arrangements, the plaintiff's husband already performed many of the household tasks. As further examples to those given above, while the plaintiff stated in direct-examination that she struggled with cleaning, laundry, and cooking following the collision, she admitted in cross-examination that she had difficulty with housework before the accident due to the workplace injury. The plaintiff admitted that she avoided the use of her left arm, and that Mr Polkanov was doing the "heavy dishes" and vacuuming. Mr Polkanov also testified that he largely took over the tasks of cooking, cleaning, laundry and shopping after the workplace injury and before the motor vehicle accident. [209] The defendants thus argue that the plaintiff has failed to establish the real and substantial possibility that the accident has materially diminished her pre-accident housekeeping capacity and that no damages should be awarded under this head. [210] In the alternative the defendants argue that any housekeeping award should be modest. They cite Liu v. Bains, 2016 BCCA 374 at para 33, where the Court endorsed the proposition that an award of $35,000 is at "the high end of the usual range" for loss of housekeeping capacity.

4. Discussion and decision [211] I return to the near-impossible task of attributing future housekeeping costs to the accident, in contrast to housekeeping costs that would have been incurred in any case to assist the plaintiff in her diminished state regardless of the accident. [212] To her credit, the plaintiff has avoided duplication in her claim for cost of future care and her claim for loss of housekeeping capacity, limiting the latter to activities within the house. [213] Consistent with the findings that the accident has only put the plaintiff in a slightly worse position than she was in before the accident, I award damages for loss of housekeeping capacity at $10,000. G. Special damages [214] The plaintiff claims $10,687.14 in special damages. These consist of massage therapy, prescriptions, physiotherapy, transportation, chiropractics, acupuncture, travel expenses, food expenses, and hotel accommodations. They deduct ICBC Part 7 reimbursements. [215] The plaintiff provides no submissions on special damages, and did not seek to prove these special damages specifically or generally. Instead, she provided these claimed expenses on a five-page spreadsheet. There may be some original receipts somewhere in the binders of exhibits, but they have not been identified, cross-referenced, or proven by the plaintiff. Nor did the plaintiff testify as to the accuracy of the

spreadsheet, either with respect to the treatments having occurred, or the costs having been incurred. [216] The defendants argue that the claim for special damages should be dismissed. To this end, they cite Noble v. Bhumber, [1997] BCJ 2551, at para 65, where the Court denied the plaintiff's claim for special damages in relation to home care costs where there was no evidence led as to whether those costs were actually incurred: Where special damages are claimed it is incumbent upon the plaintiff claiming them, in order to meet the requisite standard of proof, to quantify those damages particularly where evidence of such quantum is readily available. Support for that position can, in my opinion, be found in the decision of Lord Goddard in the case of Bonham-Center v. Hyde Park Hotel (1948), 64 T.L.R. 177 (C.A.) where he stated at p. 178: Plaintiffs must understand that if they bring actions for damages it is for them to prove their damages; it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying "This is what I have lost, I ask you to give me these damages." They have to prove it. [217] Defendants' counsel apparently raised this position on the first day of trial, before the plaintiff took the stand. [218] As per Noble (and other cases such as Yeung v. Dowbiggin, 2012 BCSC 206), the plaintiff bears the onus of proving her

case. She could have and did not. No special damages are awarded. VII. Failure to mitigate [219] The defendants argue that any damages award must be reduced to reflect the plaintiff's failure to mitigate her damages by complying with the treatment recommendations of her own doctors. [220] Mullens v. Toor, 2016 BCSC 1645, aff'd 2017 BCCA 384, sets out the principles of mitigation: [102] The defendants bear the onus of establishing that the plaintiff failed to take reasonable steps that would likely have reduced her damages, as explained in Graham v. Rogers, 2001 BCCA 432, leave to appeal ref'd [2004] S.C.C.A. No. 467 (QL) at para. 35. [103] Questions of mitigation often arise when the plaintiff fails to undergo certain medical treatment or therapies. The test in those circumstances was explained in Gregory v. Insurance Corp. of British Columbia, 2011 BCCA 144 at para. 56 (see also Chiu v. Chiu, 2002 BCCA 618 at para. 57): I would describe the mitigation test as a subjective/objective test. That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment. The second aspect of the test is "the extent, if any to which the plaintiff's damages would have been reduced" by that treatment [Emphasis in original.] [104] In determining the reasonableness of a refusal of medical treatment,

the trier of fact will take into account the degree of risk to the plaintiff from the treatment, the gravity of the consequences of refusing it, and the potential benefits to be derived from it: Janiak v. Ippolito, [1985] 1 SCR 146 (SCC), at para. 31. [105] Questions of mitigation also arise in the context of a plaintiff's failure to return to work. In Parypa v. Wickware, 1999 BCCA 88, the Court stated: [67] These cases demonstrate that the trier of fact, in determining the extent of future loss of earning capacity, must take into account all substantial possibilities and give them weight according to how likely they are to occur, in light of all the evidence. However, in calculating such likelihoods, the plaintiff is not entitled to compensation based solely on the type of work she was performing at the time of the accident. There is a duty on the plaintiff to mitigate her damages by seeking, if at all possible, a line of work that can be pursued in spite of her injuries. If the plaintiff is unqualified for such work, then she is required, within the limits of her abilities, to pursue education or training that would qualify her for such work. If the plaintiff claims she is not able to mitigate by pursuing other lines of work or by retraining, she must prove this on a balance of probabilities. The requirement for mitigation is addressed by this court in Palmer, supra, at 59: A

plaintiff is not entitled at the cost of the defendant to say, "The only sort of work I like is such and such. I cannot do that. Therefore, you must give me sufficient capital to replace the income I cannot earn on that sort of job". What the respondent proved in this case was that he had lost his capacity to follow the sort of occupation he was pursuing at the time of the accident. But that did not prove, on a balance of probabilities, that he could not earn by pursuing some other sort of occupation, as much as before. [106] It is important in conducting the mitigation analysis not to confuse or conflate the issues of causation and mitigation; an assessment of any failure to mitigate and any consequent reduction of the applicable heads of damage occurs after causation is complete: see Wahl v. Sidhu, 2012 BCCA 111 at para. 58; Yoshikawa v. Yu (1996) 21 BCLR (3d) 318 (CA) at para. 12. [107] It is appropriate to consider the issue of mitigation separately in respect of each head of damage: Zawadzki v. Calimoso 2011 BCSC 45, at para. 164. [221] The defendants argue that the plaintiff failed to mitigate her damages by refusing to undergo medical treatment for her psychological condition as early as August 3, 2016, when Dr Parhar recommended psychological treatment in relation to symptoms that the plaintiff attributed to the accident: I would also be of the opinion that Christine

would benefit from ongoing psychological counselling sessions. The purpose of the counselling would be for Christine to learn coping strategies so that she can better manage her physical, psychological and cognitive challenges. [222] On Dr Parhar's advice, she went once to a psychological counsellor. She stopped after one visit. [223] The defendants note that almost every expert who has assessed the plaintiff since the accident has recommended that Ms Repin seek psychiatric care, as her psychological impairment has affected her overall functioning and pain management. These include the following experts who provided medical reports for the plaintiff herself: a) Dr Faraday April 11, 2017 report: "She has not wanted to take anti-depressant medication. Her depressive/anxiety symptoms have the potential to improve with further counselling." "She would benefit from an assessment by a psychologist, and treatment by means of psychological counselling. Her pain and mood are intertwined, and it is anticipated that with an improvement in her mood, her pain symptoms and function may also improve." b) Dr Van den Berg December 4, 2017 report: Ms Repin "would likely benefit from mental health counselling." He recommends clinical or psychological counselling. c) Dr Kiraly February 5, 2018 report states that Ms Repin would benefit from ongoing psychiatric care and that there has been

undertreatment. He notes that she is not on antidepressants and yet she is severely depressed. [224] These opinions are shared by the defendants' medical experts. For example, in his report of January 9, 2018, Dr Muir opines that much of Ms Repin's disability is related to her untreated somatic symptom disorder and adjustment disorder and that "if she continues to avoid addressing her mental health concerns, she will likely continue to deteriorate." [225] The plaintiff was aware of her own medical reports, and at least the medical report of Dr Muir well before trial. In her August 14, 2017 letter to WCB she herself quotes Dr D. Gil of Castlegar Medical Associates: "Anxiety/depressions: counselling recommended." That same letter also refers to the fact that WCB had offered to provide her "resiliency counseling for adjustment to injury" to address depression. In her November 23, 2017 letter (attached as Appendix "A") she refers to the Drake discharge report, which recommends a "pain management program to help her better address the psychosocial barriers related to pain in her injury." She never attended the recommended pain management programme, and left Drake after only one visit. [226] She also acknowledged on discovery in June 2018 that despite having read the reports of Dr Kiraly and Dr Muir, she had not sought out any psychiatric, psychological, or counselling

treatment. [227] The plaintiff provided no reply submissions on the issue of mitigation. [228] The defendants have acquitted their evidentiary burden of showing that the plaintiff has failed to mitigate her damages, on two counts: medical treatment and employment. [229] First, the medical evidence establishes that the dominant cause of her present complaints is psychological. The medical evidence further establishes that if the plaintiff had obtained proper psychiatric treatment or counselling, her condition would likely have improved; her failure to seek treatment has in fact worsened her condition. The benefit of psychological or psychiatric treatment is clear and not hypothetical. [230] Second, as set out above, the plaintiff has made no real effort to seek alternative employment. As evidenced by the thoroughness of her WCB submissions, she could have sought and perhaps found alternative employment, but did not. [231] In Mullens, the Court found that the plaintiff, who was diagnosed with depression following a motor vehicle accident, failed to mitigate, in part due to her failure to obtain full psychiatric treatment: [116] She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about

anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse. Long ago in Tully v. Hassell [1990] B.C.J. No. 550 Maczko J. stated: Her counsel argued that her reluctance to take psychiatric treatment was because she did not want to be perceived as having psychiatric problems. In this modern age such treatment does not have the stigma it once did, and I find that her refusal to take treatment is unreasonable and the defendant should not have to bear the cost of her refusal. [232] Due to this failure to mitigate, the Court reduced all but one head of damages by 50 percent. Future costs of care was reduced by 10 percent. [233] In this case, while the medical experts are united in recognizing that psychiatric or psychological treatment would assist the plaintiff, it is not clear how much such treatment would assist her. Given her complicated interplay of psychological and physical conditions, and the inherent complexity of her psychological state, this is

likely unknowable. I will thus reduce all applicable damages except for future cost of care by the more modest amount of 25 percent. [234] With respect to future cost of care, Verhoeven J in Mullens noted that "[t]here is less uncertainty in relation to these needs as they are projected on the basis of her actual current condition." I would follow his example, and apply only a 10% reduction. VIII. conclusion and costs [235] The plaintiff is awarded the following damages: after mitigation deduction Non-pecuniary damages $40,000 (less 25%) $30,000 Impairment of earning capacity $20,000 (less 25%) $15,000 Future cost of care $21,798 (less 10%) $19,618.20 Loss of housekeeping capacity $10,000 (less 25%) $7,500 Special damages $0 $0 Total $ 101,798 $72,118.20 [236] The defendants have indicated that they wish to make submissions on deductions to any award of damages based on s. 83 of the Insurance (Vehicle) Act, RSBC 1996, c. 231. [237] Counsel may confer as to whether submissions on deductions or costs are necessary and, if so, whether they will provide brief written submissions or schedule a time with the Registry to speak to those matters. "Crerar J" Exhibit "A" Christine Repin November 23, 2017 [Address redacted] Review Division (RD) BY FAX: 1-855-433-9728 WorkSafeBC (WCB) PO Box 2017 Stn Terminal Vancouver, BC V6B 3S3 Attention: Intake Officer Dear Sir/Madam, Re: Christine Repin Review of the Decision: R0229451 WorkSafeBC #13620743 Date of Decision: September 01, 2017

SUBMISSION Request for Review No. R 0229451 Decision Letter Dated: September 01, 2017

ISSUE Ÿ Whether a loss of earnings (LOE) entitlement should be given consideration. LAW 1. Workers Compensation Act (the "Act"), s. 23, and s. 96.

2. Rehabilitation Services and Claims Manual, Volume 11 (the "RSCM11"): · Chapter 5, Policy item #35.21 - Suitable Occupation 3. Section 23 (3) of the Act: · Policy item #40.00, Policy item #40.10, & Policy item #40.12 of the RSCM.11; · Policy item #96.30 - Disability Awards Decision-Making Procedures; · Policy item #97.34 - Conflict of Medical Opinion.

4. Principles and Goals of Vocational Rehabilitation RSCM Volume 11. · Policy items C11-85.00, & C11-88.00.

ARGUMENT I respectfully would like to request a review of September 1, 2017 WCB decision. The WCB CM, ignoring a plethora of the WCB rules and polices, shows a blurry and deceptive approach to the file # 13620743, which is profoundly unjust; also, Mr. Hill, WCB Case Manager (CM), issued categorically a "rubber stamp-like verdict", but for all that he [the CM] suppressed objective evidence of the file # 13620743 and manipulated some groundless opinions. May 15, 2017, in his request for a Clinical Opinion from the WCB Medical Board Advisor (MBA), the CM wrote: "Left shoulder chronic pain syndrome" as "Aggravation of asymptomatic PE [pre-existing] left shoulder partial thickness rotator cuff tear and aggravation of PE asymptomatic moderate to severe AC[acromioclavicular] joint OA [osteoarthritis] (WCAT[Workers' Compensation Appeal Tribunal] Jan28/2016)." On the contrary, in his January 24, 2017 letter to me [Ms. Repin], page 3, the CM wrote: "Have any medical conditions been accepted as permanent" 'Yes'. Further, in the same letter, Mr. Hill, CM, wrote: I have accepted the following conditions as permanent: 'Chronic pain left shoulder' In her Memo to Mr. Hill, CM, dated August 8, 2016, when she gave over the file # 13620743 to Mr. Hill, CM, Ms. Susan Ferguson, previous WCB CM, wrote: "Left shoulder chronic pain syndrome has been accepted." The Clinical Opinion, which was requested

by Mr. Hill, CM, on December 5, 2016, on page 1, Issue/topic 2, notes: "We have accepted a chronic pain syndrome." In his approach to the file # 13620743, Mr. Hill, CM, has been discounting without any explanation the opinions of the WCB MBAs, WCB Review Officers of RD, other WCB CMs, and as well as Medical Doctors (M.Ds.) regarding Chronic/Myofascial Pain Syndrome of my left shoulder with its side effects. The CM also has ignored Osteoarthritis, Tendinitis, & Bursitis of my left shoulder by-passing the WCB policy item #97.34 - Conflict of Medical Opinion. Needless to say that the omitting, that has been done by Mr. Hill, WCB CM, of my [Ms. Repin] medical conditions, has already created its damaging effect, that is, the omitting of objective medical evidence from my file gave to Mr. Lee, the Disability Awards Officer (DAO), support to make the subjective May 18, 2017 WCB Disability Award Decision. The diagnosis pertaining to Chronic/Myofascial Pain Syndrome of left shoulder area was disregarded by the DAO as following: " pain complaints are proportionate with nature and extent of her impairment as a result of her injury." Also the DAO underestimated my medical conditions (Osteoarthritis, Tendinitis, & Bursitis of my left shoulder) basing my Disability Award (DA) on Permanent Function Impairment (PFI) only and Mr. Hill's January 24, 2017 report/letter. Further Mr. Hill, CM, in

his January 24, 2017 letter wrote: 'I have accepted the following conditions as permanent:' 'Aggravation of a pre-existing condition rotator cuff tear has become permanent (WCAT as per January 26, 2016).' With all due care to English I could not understand this statement, and neither could some M.Ds. whom I asked for a translation of the statement?! January 28, 2016, Ms. C.J. Katramadakis, Vice Chair WCAT, wrote: "I find the aggravation of the partial rotator cuff tear as well as the moderate to severe AC joint osteoarthritis condition combined with inflammation in the left shoulder (tendinitis/tendinopathy) were the cause of the worker's [Ms. Repin] ongoing pain. " Because the CM January 24, 2017 decision does not show any clarity in spite of January 28, 2016 WCAT decision, I am of the opinion, that Mr. Hill, WCB CM, accepted, or adjudicated nothing, and presently insists (the CM's September 01, 2017 letter) that I am able to work full time almost with no restrictions; therefore, my claim, unfortunately, is that the same place as it was in June 04, 2014, where Ms. M. Kennedy, former WCB CM, insisted: "I have determined that you do not have nay ongoing restrictions or limitations related to your injury that prevent you from performing your pre-injury job you [Ms. Repin] are considered able to return to your pre-injury job as of June 16, 2014." Four years later, Mr. Hill, CM,

said, almost the same, in his September 1, 2017 letter: "In your case, although you are unable to return to your pre-injury job, you are able to return to alternate suitable employment and restore your pre-injury earnings." It has become very confusing as Mr. B. Hill, CM, acknowledged the OA in the May 15, 2017 Clinical Opinion, page 1; on the other hand, in his [the CM's] January 24, 2017 letter, there is no mention of the OA at all?! If an official who knows and writes about the compensable illness (the OA) - but never considered it for compensation would it be an example of obstruction of justice? Has anybody read Ms. Ferguson's August 8, 2016 Memo for Mr. Hill, CM? In the Memo Ms. Ferguson, WCB CM wrote: "WCAT decision of January 28, 2016 accepted an aggravation of an asymptomatic PE left shoulder partial thickness RC tear and aggravation of PE moderate severe AC joint OA?" Valuable information for a WCB Review Officer (RO) would be the WCB RD decision of February 27, 2017, in which Mr. S. Ramdin, RO, wrote: "I note that aggravations to your pre-existing partial thickness rotator cuff tear and your pre-existing moderate to severe AC joint osteoarthritis, as well as chronic left shoulder pain have all been accepted on your claim." Although many MDs, who examined me from 2013 to 2017 personally, already come to these diagnoses, unfortunately, only in January 24, 2017, Mr.

Hill, CM, finally decided to mention some of them; however, the WCB CM still refuses to acknowledge and accept compensable group of illnesses (myofascial pain syndrome, tendinopathy, osteoarthritis, bursitis, and etc.) including high BP that according to the opinions of some MDs is coming from chronic pain syndrome of my July 15, 2013 left shoulder injury. If Osteoarthritis (moderate to severe) was aggravated/exacerbated by the injury and was accepted in my claim (file #13620743) would this be a temporary condition ever? It is very odd, however, that there is not one place in their (Mr. Hill, CM; Mr. Lee, DAO; Ms. L. Beck, VRC) reports any information about my current medical status which has been described by the following medical experts: · Dr. G. Parhar's continued F11 reports that note (the MD physically examined me [Ms. Repin]; see his updated Oct. 5, 2017 report): Is the worker now medically capable of working full duties, full time? "No" · October 25 ,2016 Pain Management Program (Lifemark Health) Discharge report, notes: Discharge Status: 'not fit to return to work.' · Dr. Dray's February 7, 2017 Permanent Function Impairment (PFI) Evaluation report, notes: 'swelling (upper arm @ 9cm from elbow crease, left 36 cm right 33cm) and muscle spasms' noted with 'Painful and severe restriction in left shoulder ' On the other hand, however, Ms. L. Beck, WCB Vocational

Rehabilitation Consultant (VRC), suggested to me on August 18, 2017, to get the job of a "bobcat driver" who is able to lift 50 lbs (see the file # 13620742, Memo, Job postings, pages 7, 14); Mr. Lee, WCB DAO, using not competent evidence, decided that I do not have any pain to be compensated; Mr. Hill, WCB CM, who never bothered to reply to my September 10, 2016 letter, suggests that I have no problem to look for any employment. Is it not mystifying when after being paid in the course of more than four years for (see November 05, 2015 WCB Determination letter) compensation which has common sense in regard with my compensable severe left shoulder injury (rotator cuff tear {r/c tear}, tendinopathy, osteoarthritis, bursitis, and etc.) - suddenly, however, it was suggested by Mr. Hill, WCB CM, to get employment full-time, full-duties to return to "Post Injury Earnings of $3,937.06 per month?" No one M.D. has confirmed yet that all the above (r/c tear, tendinopathy, osteoarthritis, bursitis, and etc.) have been cured and I can work full-time, full-duties! Is it now considered that the R/C tear, OA, Tendinopathy, and Bursitis have been cured by themselves? The August 2013 ultrasound, which was made because of my injured left shoulder, could not be incorrect?! Although the tendinopathy and r/c tear of my left shoulder were all visible on August 22, 2013 ultrasound, proper measures

had not been taken by Ms. M. Kennedy, WCB CM, to cure the left shoulder injury at that time; instead, I [Ms. Repin] was sent by WCB to Drake Medox for return to work program, which obviously made me worse (Drake Medox December 31 2013 Discharge report notes, "not fit to return to work.") In spite of the fact that Mr. Hill, WCB CM, avoids the CM has not replied on my Sept. 10, 2016 letter) to talk about my high blood pressure ("b/p") that started to occur after the work injury in 2013 (b/p reading on Dec. 22, 2013, was 180/100) together with new diagnosis as Myofascial Pain Syndrome (see Dr. Newmarch's December 22, 2013 report), it is quite obvious that to keep suppressing this evidence brings more harm to my health. Instead of a referral to an Orthopaedic Specialist and an MRI for my left shoulder as my left shoulder injury had been deteriorating (Myofascial Pain Syndrome, high b/p), Ms. M. Kennedy's strategy was for a quick rehabilitation and a quick return to work program; nevertheless, the same has happened now again with Mr. Hill, WCB CM. Mr. Hill, WCB CM, followed the VRC's report in his September 1, 2017 letter, and used the VRC's Return to Work (RTW) Plan and Labour Market Information (with flawed representation of my aptitudes) as the source for his September 1, 2017 decision. Though the VR programme started in January 2017, the RTW plan was delivered to me on August

29, 2017 (see my September 01, 2017 fax to the VRC). The VRC's August 21, 2017 letter, and her mound of research paperwork (Re: Labour Market Information in the file #13620743) which is at least ridiculous, but actually it is not pertaining to my left shoulder conditions and professional/vocational background (for example: bobcat driver as a part of skills needed in one of her papers)?! Section 23 (3) of the Act Policy, item #40.10 of the RSCM 2, under Assessment formula, states: Clause # 3. "In estimating what a worker is capable of earning after the injury, the Board gives regard to the evidence, including the medical evidence, of the limitations imposed by the compensable disability and the fitness of the worker for different occupations. The Board also gives regard to the evidence about the suitability of the worker for occupations that could reasonably become available." RSCM Volume 11, C11-88.00 states: The written rehabilitation plan. " outlines the supporting rationale, which makes the vocational good attainable. The plan will clearly document how the worker's vocational profile matches the targeted suitable occupation. A description of the worker's vocational profile will include objective, functional capacity, education, existing transitional skills or projected skills, aptitudes, training, interests and personal and occupationally significant characteristics." The

fact that the VRC's research showed not one position in my home area (Nelson, or Castlegar, BC), tends to support, more likely than not, there are no such positions and such employment in the vicinity of my home residency. Section 23(3) of the Act Policy item #40.12 of the Rehabilitation Services and Claims Manual (the RSCM 11) states: Guidelines in determining suitable and reasonably available occupations for a worker: "A reasonably available job is usually within a reasonable commuting distance of the worker's home." In terms of "Relocation", my WCB claim shows that I'm an almost 60 year old woman (D.O.B. Sept.1958) with many different health issues such as: Hypertension (b/p sometimes up to 200/110); newly diagnosed Diabetes (see Dr. B. Robinson's report dated July 28, 2017, Glucose readings sometimes up to 20.5mmol/L); a person who is designated as person with disabilities (PWD); a person with Menieres and unexpected/unexplained vertigo attacks; needless to say my limited functional abilities (' severe restriction in left shoulder range of motion ,' as per Dr. M. Dray's February 7, 2017 report). Is it reasonable or safe to decide/suggest for her [C. Repin] to move from her own home to some unknown city/town where she will have to pay rent with the risk to become homeless, which also creates a precedent for extreme stress and new illness? RSCM Volume 11. Principles and Goals

of Vocational Rehabilitation. Policy Item C11-85.00. Clause #6 states: "Effective vocational rehabilitation recognizes, within reason, workers' personal preferences." In terms of the RTW plan (for a Resident Manager), offered by the WCB VRC, it is very sad, but I cannot physically fulfill many of the duties for a Resident Manager (duties as such: cleaning, maintenance, snow clearing, lifting, bobcat driver, and etc.); therefore, a Resident Manager position/occupation would not be suitable occupation after my compensable injury. Section 23(3) of the Act. Policy item #40.12 of the RSCM 11, states. Guidelines in determining suitable and reasonably available occupations for a worker: "The worker has the skills, education and functional abilities that the occupation requires." I wonder how any Human Resources Officer would react on my interview if the employer requires a certification from a family medical officer about my medical conditions? The CM wrote in his Sept 1, 2017 letter: "Given the value of your loss of function award, (which is $808.00 monthly) the loss described above is not considered significant?!" The calculation that I am capable of earning, which was presented by the WCB CM's September 1, 2017 assessment, that is, "Post injury earnings: -- $3,937.06" is built on not credible evidence, and is a very strong overestimation of my future earning capacity.

FINDINGS REQUESTED I disagree with September 1, 2017 WCB decision, made by Mr. Hill, WCB CM, using the PFI method only, because of above mentioned reasons. I experience a significant LOE and would like to be considered to LOE assessment as exceptional case. Thank you. Sincerely, "Christine Repin" [1] In 2012 the plaintiff was diagnosed with Ménière's disease, an inner ear condition that can cause vertigo and dizziness. [2] Dr Parhar attributes the fact that he makes no mention of the motor vehicle accident, or other alleged symptoms or causes due to the limited space available on the standard WCB form, and the fact that he was focusing on the WCB claim alone. [3] The named counsel for the plaintiff was not involved in the solicitation or preparation of these reports, or in the development of this file generally. I understand that he was retained for the purpose of the trial. [4] The exception was Raph Kowalik: a kinesiologist who provided opinions on in-home functional capacity evaluation for the future cost of care assessment. He was provided clinical records dating back to July 2012, from multiple medical providers. Mr Kowalik of course did not offer a medical opinion, and expressly disavowed any ability to attribute aspects of the plaintiff's current impairments to any cause. [5] These tests were not administered by Dr Kiraly himself: he was only commenting on the scores.