Simms v. Alzawad

2022 BCSC 2125 Simms v. Alzawad

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Simms v. Alzawad, 2022 BCSC 2125 Date: 20221206 Docket: M174551 Registry: Vancouver Between: John Simms Plaintiff And Mohammed Alzawad Defendant Before: The Honourable Mr. Justice Blok Reasons for Judgment Counsel for the Plaintiff: G. Kehler Counsel for the Defendant: G. Ginter Place and Dates of Trial: Kamloops, B.C. March 29, 30 and 31; April 1, 6 and 7, 2022 Supplemental Submissions Received: April 22 and May 9, 2022 Place and Date of Judgment: Vancouver, B.C. December 6, 2022 I. Introduction [1] John Simms was injured in a motor vehicle accident that occurred on September 25, 2016 in Vancouver, British Columbia. Liability is admitted by the defendant and so these reasons for judgment address damages only. [2] The primary issue on damages is the degree to which the plaintiff's injuries have impaired, and will impair, his earning capacity. II. Plaintiff's Case A. The Plaintiff Background [3] The plaintiff, who at trial was 56 years old, was born and, up to age nine, raised in Stephenville, Newfoundland, a town with a present-day population of about 6,000. His parents separated when he was three years old. When he was nine, he moved with his mother to Nova Scotia, and then to Manitoba, where he graduated from high school. He said that although he graduated, he had struggled at school. [4] After that, he worked at a mine in

Manitoba, at ski resorts in Alberta, then back to Stephenville, in security work in Toronto, and again back to Stephenville, where he was in the military reserves. In the reserves, he obtained some medical training and subsequently worked as an ambulance attendant in Stephenville. [5] In 1994 he moved to British Columbia, where his sister had settled. He said his ambulance attendant career in Stephenville was "stagnant" at that time. He stayed with his sister for three or four months while he looked for work. [6] The plaintiff obtained work in the security field, then secured a job with Home Depot, stocking shelves, where he stayed about a year. He moved to hardware chain Revy, where he worked as a forklift operator and night crew team lead. [7] The plaintiff was selected by Revy to be part of a crew involved in the opening of a new store in Winnipeg. Once the store was opened, he was assigned to head a small department within the store, with led to a promotion to department manager. As department manager, he was responsible for scheduling the five or six employees within his department, ensuring product was on shelves and displayed properly, and supervising the order clerk. [8] A further position arose when Revy opened a new store in Regina and engaged him as a zone manager. He was at this location from 2004 to 2006. A similar position arose in Langford, and the plaintiff was

successful in securing a zone manager position there. He was there from 2006 to 2008. He had some "issues" with the store manager during that time, which resulted in the plaintiff taking three months off work on stress leave. On his return, he found he had been replaced. A request for severance was declined. [9] Around this time he became engaged, but he described the relationship as a "complicated" one. [10] The plaintiff returned to the Vancouver area in 2009, where he obtained work as a special events first aid attendant and sometime supervisor at the Convention Centre, which paid $15 per hour. He then became a deputy venue manager and held this position until the Olympics, when his role reverted to event shift supervisor. After the Olympics he worked at Fairmont Hotels for a few months. [11] In March 2011 he was hired by S.N. Transport, the company that operates hospital transfer vehicles. He obtained a Class 4 driver's licence in order to qualify as a driver, and worked there from 2011 to 2016. He was promoted to lead driver after a time. He had a regular partner, Chantelle Doyon, with whom he worked for about two years. He said the job paid well ($16 per hour to start; $21.47 per hour at the time of the accident), as he earned 20 hours of overtime pay every two weeks. Social and Recreational Life [12] The plaintiff said he was very active once he returned to the Vancouver

area. He went on seawall walks and bicycling with his sister, and climbed the Grouse Grind. He joined the YMCA and worked out there. He was carrying excessive weight and he was motivated to get in better shape. He weighed about 230 pounds at the time of the accident. [13] From about 2013 onwards, he had a regular routine of going to the gym or swimming in the morning and then working the afternoon shift. In 2014, he completed the BMO half-marathon. [14] The plaintiff also enjoyed travel: a three week trip to Australia, a canoe trip with his sister and, in 2015, a 45-day walking journey on Spain's Camino Santiago. Pre-Accident Health [15] The plaintiff was involved in a rear-end car accident in 2006, which injured his right shoulder blade. He had physiotherapy on his shoulder for about a year. He was never treated for any neck injury as a result of that accident and he did not have any headaches. [16] He acknowledged a history of back spasms, usually caused by lifting something. He said this could be asymptomatic for a long time and then flare up. [17] In the year prior to the subject accident, he had a "tennis elbow" problem, which caused symptoms from his elbow to his little finger. The problem resolved. He said this was a different problem than the thumb problem that arose after the subject accident. [18] The plaintiff said he had suffered from headaches in November 2015,

which were stress-related and caused by conflict with another employee. He was treated for high blood pressure. The symptoms resolved when the other employee resigned. He had no headaches at the time the subject accident occurred. The Accident [19] On the day of the accident, Mr. Simms was proceeding on 12th Avenue in Vancouver, returning home after working a shift as a driver of a hospital transfer vehicle. At a point near Main Street, traffic stopped abruptly and so Mr. Simms also stopped his vehicle abruptly. He saw in his mirror that the vehicle behind him continued to approach, and he braced for the resulting impact. [20] He was "a bit shaken up" but "got his bearings", put his vehicle in park and had a short discussion with the other driver. They then pulled over and exchanged information. Mr. Simms took photographs of both vehicles. He then phoned his supervisor to report the accident, as it involved a work vehicle. He told his supervisor that his thumb was "really sore". Post-Accident Symptoms [21] Ms. Simms went home after the accident, had dinner and then laid down. He woke up at 3 am and noted his left hand had no strength. He felt stiff and sore from head to toe and his neck was sore. He also had headaches which at times were "throbbing". He visited a doctor later that day and was advised to take time off work. [22] He said he felt nauseated and disoriented at one

point, which frightened him. He again attended on his doctor, who told him to take a few weeks off work. He continued to have problems with nausea, headaches and concentration. The headaches were severe; he was unable to focus on television and he found himself unable to do anything other than very basic tasks. [23] WorkSafeBC stepped in at that point and evaluated him for admission to a brain injury clinic. He was accepted for admission to that clinic in November 2016 and was treated there for three months. He was left "feeling better" with the headaches and neck pain, although he still had neck pain. He said "my brain was better". He was "now functional" and could exercise. Return to Work [24] At the beginning of February 2017 the plaintiff began a gradual return to work at his employment, with the lighter work of wheelchair transfers, rather than stretcher transfers. However, he said the employer treated him differently by assigning him to an older vehicle with an old ramp. He felt singled out. [25] He was still dealing with neck symptoms, which varied with his work duties. On "light days", his neck was "just a bit stiff" by the end of the shift. Although he still had headaches they were not debilitating. The main issue was with his neck. [26] He continued with his job, but at some point he exercised one morning and felt the same type of nausea and headaches he had

experienced before. He saw his doctor. He told his employer he was unable to focus and so he could not drive safely. He went on EI for three months. [27] In May 2017 he was well enough to run again in BMO half-marathon. At that point he only had minor neck irritation and minor headaches. He emphasized that he had regulated his training very carefully. He relapsed again in June 2017, resulting in a further spell on EI. [28] In August 2017 he returned to work, but he was assigned work as an assistant, not a driver, and required to use a device known as a "stair chair", which is heavy work. His employer told him he had been "terminated" as a lead driver. His headaches and neck pain returned with the stair chair work. He again saw his doctor and WorkSafeBC also intervened, this time referring him to a pain management clinic. [29] The pain management clinic, like the brain injury clinic, involved full-time attendance. He was taught how to strengthen his neck and manage his pain. He had therapy from occupational therapists and physiotherapists. After three months of treatment at the pain clinic his symptoms settled down, and his headaches were no longer debilitating. His neck pain was still an issue, but it was better. [30] The plaintiff returned to work at S.N. Transport. This time he was assigned as a driver. However, he found his symptoms returned due to the need to make shoulder

checks while driving. He had "pounding headaches" every day. He found he was largely unable to do anything other than his work shifts. Any activities he was able to accomplish were done to a lesser degree. [31] The plaintiff continued his work with S.N. Transport for about a year. He left that job in February 2019. Retraining [32] The plaintiff's doctor suggested a change of career. The plaintiff agreed and so he discussed retraining options with WorkSafeBC. They conducted a functional capacity evaluation, which revealed that the plaintiff could not rotate his head back and forth as this brought on headaches. WorkSafeBC concluded he could not continue as a driver. [33] The plaintiff's headaches settled during the time he was off work. [34] WorkSafeBC thought the plaintiff might be suitably employed in office administration, so they sent the plaintiff to a computer course to upgrade his skills. This course ran from September to December 2019. The plaintiff had difficulty completing the course, as his neck pain and headaches returned. The plaintiff was accommodated by reducing attendance to just three days a week and supplying him with a tutor and an ergonomic chair and keyboard. The plaintiff testified that his symptoms were settled on his days off, but he had flareups on instruction days. [35] Even though the completion date for the course was extended to August 2020, the

plaintiff did not complete it. By that point, he had returned to live in Newfoundland and was doing the course work from home. Other Work [36] The plaintiff sought work locally in Newfoundland. He was hired as a clerk at a grocery store, a role he said was "more a greeter" than a clerk, but his symptoms flared and he lasted just two shifts. [37] He then applied for a position as a care aide for a 28 year old autistic person and was engaged on a trial basis. The trial went well. He has worked at that position since. It pays $15.55 per hour for a 30-hour week. His net pay is about $800 every two weeks. The plaintiff is one of six workers who provide the client with 24 hour care. [38] The plaintiff works four days each week, with shifts that begin at 9 am. He ensures the client takes his medications and eats, and he takes him on activities. The plaintiff described the job as "essentially babysitting". Although the client is fairly "high level" in terms of functioning, the client does not understand social rules and so the plaintiff acts as the client's social interface. There is no lifting or carrying involved with this work. He noted he has only had one headache flareup while working in this role. [39] The plaintiff plans to continue with this line of work, or similar work. He notes there are other adults in the community who need light-duty care and he believes he may be able to

take on another client. Emotional Effects [40] The plaintiff said he is "up and down" emotionally since the date of the accident. He is depressed when his symptoms are bad and it is a challenge to get up in the morning. He says he has "lost a bit of myself" and is constantly reminded of what he now cannot do. [41] He received counselling during the time he attended the pain management clinic, as he was going through a period of depression then. [42] On one occasion in 2017 he was taken to hospital by his brother in law. The plaintiff had a relapse and lost track of time and lost consciousness due to a panic attack. He was taken to hospital, where he was diagnosed with an anxiety attack. Post-Accident Activities & Housekeeping [43] As noted earlier, he completed the BMO half marathon in May 2017. Otherwise, he never got back to the same activity level he had prior to the accident. He attempted the Grouse Grind a few times, but found it too challenging. [44] He noted his weight has increased from his pre-accident 230 pounds to his current 255 pounds. [45] On his days off, the plaintiff goes for walks. He would like to engage in running, hiking and bicycling again, but he can only do these for short periods. He said his neck is his "alarm bell" and he stops when it starts to tighten up. [46] Prior to the accident he did all housekeeping tasks without any issues. After the accident

he performed housekeeping tasks "in increments" by doing one task, resting, and then doing another. Treatments [47] The plaintiff said he would like to take the Botox treatments recommended by Dr. Robinson. He has not had the funds to pay for that treatment himself. [48] He has had physiotherapy, chiropractic treatments and massage treatments. He said chiropractic and massage helped, but it was only temporary. Physiotherapy (which included acupuncture) was best for flareups, as symptoms eased after two or three visits. Cross-Examination [49] In cross-examination, the plaintiff said: a) he moved to Newfoundland in June 2020. He drove there from British Columbia, which took seven or eight days; b) as zone manager in both Regina (2004-2006) and Langford (2006-2008) he was in charge of three store departments with 15 to 20 employees, including three department supervisors. He agreed he excelled there, and gained skills in human resources, customer service and marketing. He said, however, the computer skills involved with those roles were very limited and confined to the hardware chain's own system; c) in those roles he was very good with people and with resolving problems, and he is still good at those things; d) his income at S.N. Transport fell from $49,000 in 2014 to $42,000 in 2015. His income in 2013 had been even more than that. He said there was a lot more overtime then; e)

he acknowledged an April 2016 first quarter bonus assessment from S.N. Transport that indicated he was "not willing to do extra hours" and "complains all the time". He did not recall those comments but did not contest they were made; f) he agreed that his first quarter bonus assessment from 2017 indicated he was meeting all required work standards at S.N. Transport; g) he suffered from periodic low back pain prior to the accident and sought treatment for it. There were back injuries at work in both 1995 and 2014, and he also had a separate flareup in 2014 caused by running; h) he had incidents involving headaches prior to the accident. He attended at hospital emergency on one occasion, where his headaches were ascribed to high blood pressure. He had another bout of headaches in February 2016, at which time he told the attending physician that he suffered from "frequent headaches". He said this related to stress at work; i) he agreed that from 2019 to the date of the accident, his outings were either done on his own or were confined to those with his sister, her husband or his work partner, Ms. Doyon, and this was the same situation post-accident; j) he agreed he had a full memory of the accident and its aftermath, and he had the presence of mind to take photographs; k) his incident of disorientation came four days after the accident, during his morning routine of getting coffee

from a nearby shop; l) he was assessed at the brain injury clinic in November 2016 and then started on a six-week program. During that time he was offered work with an event company, whose manager had said there would always be a place for him there. The plaintiff acknowledged he was looking for alternate work before he had tried any return to work at S.N. Transport; m) he returned to work at S.N. Transport in late January 2017 on reduced hours, a weight restriction and a wheelchair vehicle assignment. This meant he was the driver as this vehicle did not require a partner; n) by February 2017, he was picking up short overtime shifts on his days off; o) he completed the BMO half-marathon in May 2017. He completed it in a time that was four minutes faster than it had been in 2014; p) he applied for a bus driver position on the Sunshine Coast in February 2017, but he did not get the position. He agreed he was then confident enough in his physical capabilities to apply for the job; q) he had counselling in April 2017 towards the goal of quitting drinking altogether; r) his symptoms returned in June 2017 as a result of a workout. He went off work and applied to WorkSafeBC for reinstatement of his income benefits. His application was declined. It was at that point that he had a "panic attack" and attended at hospital; s) in September 2018, when he was back working full-time, he

attended at hospital emergency complaining of "chest pains and palpitations". He was checked out and found to have an excessive heart rate. His treatment was delayed a week while physicians attempted to reduce his high blood pressure. He came under the care of a cardiologist, who put him on beta blockers, and the problems resolved. He acknowledged that these cardiology problems were stressful; t) he went off work again in February 2019, and was formally terminated in April 2019 when the employer concluded he could not return to work as a driver. He agreed this was a shock; u) he started again with counselling, where he opened up about some childhood issues; v) by August 1, 2019, he was on two heart medications, but he was working out and running. Although he managed to complete the Grouse Grind a couple of times, his time was over three hours; w) in summer 2019, WorkSafeBC asked him to take a retraining program in administration. He thought he was more of a "people person" and not suited to a desk. He agreed he told Dr. Robinson that this line of work was "not really my interest"; x) the retraining program was at a location that was a 35 minute commute from his home. Other than a two-day functional capacity evaluation, he had not been in any programs from February to September 2019; y) he attended the retraining program for five days the first week, but reduced this to three

days in weeks two and three. He was given a tutor on October 8, 2019. There was a break in December and January, and he again had custom tutoring from March to May 2020; z) he was assessed by neurologist Dr. Robinson on February 19, 2020. In advance of that assessment the plaintiff was asked to document any headaches from September 2019 onward. This calendar he created shows there were days he had no headaches, with some two-week periods with no headaches, which the plaintiff said "would not be unusual". He agreed he had a three-week headache-free period in November 2019. He noted he was not working as a driver during this time, though he acknowledged he was driving to and from the training location each day; aa) he told Dr. Robinson that he felt the headaches had resolved after the pain clinic treatments and felt he could return to work full-time; bb) he told Dr. Robinson he could finish the administration course, but instead he quit and drove across Canada to return to Newfoundland. He said he was not interested in a desk job; cc) he inquired about a patient transfer job in the nearby town of Cornerbrook, but there was nothing available. That job involved both security work and room to room transfer duties. He doubts he could do this job, given his limitations. He says he is restricted to two hours of activity; dd) in 2015, he managed on earnings of $42,000, but he was not

financially secure prior to the accident; ee) the care aide team where he currently works has evening workers whose duties are lighter than his. There are no openings for those positions at this time, but they may come available; ff) he also babysits for his stepsister, but "watching television is about it"; and gg) since moving to Stephenville in June 2020 he has had three physiotherapy visits and three or four chiropractic visits, but no counselling, and he does not take any prescription medications. B. Collateral Witnesses Chantal Doyon [50] Ms. Doyon is a friend, former co-worker and former work partner of the plaintiff. She first met the plaintiff while both worked at Home Depot in 1994. She said they became "fast friends" and have remained friends ever since. [51] They both obtained employment with S.N. Transport. Ms. Doyon worked there from 2011 to 2014, and in the last year she was there Mr. Simms was her work partner. He was the lead driver and she was the stretcher assistant. [52] From 1994 to 2010, Ms. Doyon and her then husband socialized frequently with the plaintiff. Following her separation from her husband in 2010, she and Mr. Simms continued to socialize and they went on hikes together, including climbing the Grouse Grind regularly. She estimated she hiked "the Grind" with Mr. Simms once every two or three weeks. She said Mr. Simms had no difficulties with

these hikes. After his accident, however, Mr. Simms was limited in what he could manage in the way of walks and they had to look for bus stop benches for him to sit down. [53] When working together at S.N. Transport they arranged their schedule to work the noon to 10 pm shift as that shift typically had no overtime work. She said Mr. Simms had no physical difficulties at work and he was happy with his job. [54] In 2012, Ms. Doyon, Mr. Simms and his sister Elizabeth Killon went touring in Australia. They walked extensively, five or six hours each day. Mr. Simms had no physical difficulties on that trip. [55] Ms. Doyon's contact with Mr. Simms was much reduced after 2015, as she was in a new relationship. They kept in touch by telephone and email, although they maintained their tradition of taking each other out for dinner on birthdays. [56] Ms. Doyon described Mr. Simms as being "always chipper" prior to the accident, although she acknowledged in cross-examination he was not chipper when he left his hardware chain job (which, according to Mr. Simms, he left in 2008). He was unhappy with the way he was being treated there. [57] Ms. Doyon said that after the accident, she could sense the plaintiff's frustration due to his limitations. She said "his tone was a little blue". [58] In cross-examination, Ms. Doyon acknowledged she did not see Mr. Simms much between 1996 and perhaps

2008, as he moved to Winnipeg in 1996 and thereafter moved to Regina and the Victoria area. He returned to Vancouver in later 2008 or 2009. During these years she only saw him when he came to Vancouver to visit his sister. They did keep in touch by phone and email, however. Terry Killon [59] Mr. Killon, a retired airport worker, the plaintiff's brother-in-law. He is married to the plaintiff's sister Elizabeth. He has known the plaintiff for about 30 years. For a number of years the plaintiff lived in an apartment on the same floor as the Killons. He said that after the plaintiff moved to Vancouver he and the plaintiff were both "family and friends". [60] Mr. Killon said they went on walks, hikes and bike rides weekly and they occasionally hiked the Grouse Grind or other hikes. One year they hiked the entire "Camino" (the Camino de Santiago) in Spain, which took 45 days. [61] Through all these activities he did not notice Mr. Simms having any physical difficulties. [62] When asked to comment on his mood, Mr. Killon said prior to the accident the plaintiff's mood was generally good and he had a good sense of humour. He also said Mr. Simms had depressive episodes once in a while. [63] After the accident, Mr. Simms was "feeling the effects" and they did not do nearly as many activities or do activities for as long as he had done them before. He also did not go out nearly as much

and he was a lot more depressed than before. [64] Mr. Killon and his wife visited the plaintiff after the latter moved to Newfoundland. He and his wife went on several longer hikes, but the plaintiff only joined them for one shorter one. He said the plaintiff seemed "a bit more lethargic" than before, and he was watching more television. [65] In cross-examination, Mr. Killon acknowledged he only saw the plaintiff a handful of times from 1996 to 2006, as the plaintiff was living in Winnipeg, Regina and Victoria during those years. [66] Mr. Killon was aware the plaintiff had completed the BMO half-marathon in 2014 as he had gone on a few training runs with the plaintiff leading up to that event. He was aware that the plaintiff had also completed the same half-marathon in 2017. Elizabeth Killon [67] Ms. Killon is the plaintiff's older sister. She is older than the plaintiff by about two years. She said that she and her brother have always been very close. [68] Although the plaintiff lived elsewhere for many years, she saw him once a year and they spoke to one another regularly. She saw him more often once he moved to Victoria. He moved to Vancouver around 2009, and in 2010 he moved into an apartment on the same floor as their own. He lived there 10 years. [69] Ms. Killon said the plaintiff was engaged to a woman when he was in Victoria, but that relationship ended. She said the

plaintiff was upset and "really depressed" when it ended. [70] During the years he lived in the same building, the plaintiff regularly came over for coffee in the mornings, although in cross-examination she acknowledged this was probably mostly on weekends. They also did a lot of activities together: walks, hikes, the Grouse Grind, bicycling and canoeing at Bowron Lakes. They did activities together two or three times a week when she was in town. She said she "got him into running" and they did runs together as well. Both trained for and completed the BMO half-marathon in 2014. [71] They travelled together on trips to Australia, Ireland and Scotland. They did a lot of walking on those trips. [72] Ms. Killon said she never noticed the plaintiff having any physical difficulties or limitations. She said he had always been an active person, and he had a YMCA membership and attended there regularly. She also said that, pre-accident, the plaintiff was "fairly easygoing" and laughed a lot. [73] Ms. Killon believed the plaintiff liked his job at S.N. Transport, and particularly liked interacting with the patients, although there were occasional issues at work. At one point he had difficulties with the work partner that was assigned to him, but this was for a short time only and he recovered back to his usual self. [74] After the accident, the plaintiff's activities were greatly

reduced. He would join her for a 30-minute walk, and she would go on for two hours. He did not hike the Grouse Grind. When they visited him in Newfoundland in summer 2021, she and her husband went on several hikes, but he joined them for just one walk. He does not do any running anymore. [75] After the accident he expressed frustration at his limitations, and he was frustrated and depressed if he became unwell after some activity and had to lie down. He feels sad because he feels he misses out on the things he used to do. [76] In cross-examination, Ms. Killon acknowledged that the plaintiff was currently working less than full time, noting that he works on Monday, Tuesday, Thursday and Friday of each week. She felt his current job was well-suited for him and he enjoyed it. He also enjoys living in Newfoundland. C. Dr. Gordon Robinson - Neurologist [77] Dr. Robinson is a neurologist who has a special interest in headache disorders. He assessed the plaintiff on February 19, 2020 and wrote a report dated April 1, 2020. His assessment was an in-person assessment that lasted three or four hours. [78] In his report, Dr. Robinson provided a thorough review of the plaintiff's medical history, noting his physical complaints, particularly headaches, and incidents of feeling disoriented or being "in a fog". As part of his examination of the plaintiff, Dr. Robinson administered some

screening tests, the scores from which revealed mild anxiety, moderately severe depression and severe impacts of headaches. At trial, Dr. Robinson said that during his examination, the plaintiff appeared anxious and showed "signs of an anxiety disorder". [79] In the opinion section of his report, Dr. Robinson said he did not believe the plaintiff suffered any damage to his nervous system in the accident. He said: Although diagnosed by his family physician as having sustained a "concussion" there is no evidence of traumatic brain injury. He did not strike his head or lose awareness at the time of the collision. He has consecutive memory and acted in a goal directed manner at the scene. His cognitive symptoms did not appear until days after the collision and were probably related to the distracting effects of pain and psychological distress. Although not impossible I believe that it is unlikely that he sustained a mild traumatic brain injury. I believe that the diagnosis of "concussion" probably represents a misattribution of symptoms often referred to as the post-concussion syndrome. However, identical symptoms may be present in patients with pain, mood and sleep disorder even without trauma. [80] Dr. Robinson noted the plaintiff had some pre-accident history of headache. Although the plaintiff attributed this to hypertension (which was diagnosed and treated at the time), Dr.

Robinson said that large-scale studies do not support mild to moderate increases in blood pressure as a causative factor in headache. In cross-examination, Dr. Robinson said the plaintiff showed a pre-accident predisposition to headache that was "probably due to an inherent migraine disorder". [81] Dr. Robinson concluded: Although not impossible I believe it unlikely that he would have developed constant headache had the [accident] not occurred. There is a clear temporal relationship between the development of headache and the trauma that indicates the probability of a causal role. I believe that his history, examination and investigations are consistent with a diagnosis of persistent posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the September 25, 2016 motor vehicle accident. [82] In his report, Dr. Robinson made a number of comments about headache generally, as follows: a) headache related to head and neck injury may be present from the outset or gradually develop in the weeks and months following injury; b) many patients will have a constant background discomfort upon which moderate to severe headache episodes may occur. Triggers or aggravators of the condition often include physical activities requiring repetitive neck movement or the need to maintain a fixed neck position; c) the underlying cause of onset of chronic pain following

neck injury is unknown. Research suggests there are complex psychobiological factors surrounding the acute injury that may be responsible for changes in the neurological processing of sensory impulses within the pain system; and d) the treatment of chronic headache related to head and neck trauma is usually difficult. As yet, there is no physical therapy that has found to be curative. At most, patients will experience temporary benefit, but therapy can also aggravate symptoms. [83] Dr. Robinson concluded that there was no treatment advice to give other than recommending the plaintiff maintain an active lifestyle, as regular exercise and improving general fitness may increase the sense of wellbeing and the ability to cope with pain. He noted there were some medications the plaintiff could try, but he said his experience was that these medications are usually unhelpful in the treatment of posttraumatic headache. [84] Dr. Robinson said the plaintiff might also try Botox injections, noting that Botox would be a "reasonable consideration" for treatment. Although Botox is a common treatment for migraine headaches, it may have positive results for posttraumatic patients as well. In his testimony, he said the prospect of improvement with Botox in the plaintiff's case was "not probable" but "highly possible", which he explained meant perhaps a fifty-fifty prospect of some symptom

relief. He noted that its cost of $425 to $850 every three months might be prohibitive for some. [85] Dr. Robinson also referred to some psychological factors in the plaintiff's case: Although I would defer to a psychiatrist or psychologist I believe that he did develop a generalized anxiety disorder after the motor vehicle accident. His anxiety has improved however he continues to have symptoms of depression. These appear to be situational occurring as a result of the impact of his accident related symptoms on his work and recreational activities. [86] As for prognosis, Dr. Robinson said the plaintiff "will probably continue to have posttraumatic headache indefinitely", though he may improve with the suggested treatments together with changes in his life situation (moving back to Newfoundland) and employment. [87] In cross-examination, Dr. Robinson acknowledged that headache symptoms are subjective, and he accepts the complaints that patients report to him unless there is an obvious misrepresentation. He acknowledged that the plaintiff reported periods of time when symptoms were minor or absent and he was functioning well or reasonably well "for days and weeks". Dr. Robinson noted the plaintiff relapsed in June 2017 in an episode Dr. Robinson said was "clearly a panic attack", which resulted in the plaintiff attending St. Paul's Hospital. [88] Dr. Robinson said he "did not

understand the plaintiff's clinical course" as it is "really unusual to do so well and then relapse to symptoms he seemingly recovered from without having undergone another trauma". He said the best he could do was to attribute the relapse to the anxiety event. D. Dr. Zohar Waisman - Psychiatrist [89] Dr. Waisman evaluated the plaintiff by way of a virtual psychiatry assessment on November 28, 2021 and he prepared a report dated December 30, 2021. [90] Dr. Waisman said the plaintiff reported sadness and depression, anxiety, irritability, anhedonia (a lack of interest in pleasurable activities), low self-esteem, low energy level, fragmented sleep, poor concentration and weight gain, among other things. Though fully independent of all activities of daily living, he is often not motivated to undertake them. [91] Dr. Waisman opined that the plaintiff was suffering from symptoms of a chronic pain disorder, which under the DSM-5 is classified as somatic symptom disorder. This disorder is where an individual has significant focus on physical symptoms to the point that it causes major emotional distress and problems functioning. [92] Dr. Waisman also considers the plaintiff to be suffering from an adjustment disorder as he adjusts to the circumstances of his life. This is a group of symptoms that can occur after an individual goes through a stressful life event. [93] Dr. Waisman's

formal diagnosis was "somatic symptom disorder with predominant pain, moderate and an adjustment disorder with mixed anxiety and depression. He said the prognosis is "guarded", which he later explained means further treatment is necessary and a clearer prognosis cannot be stated at this point. [94] Dr. Waisman said that from a psychiatric perspective, the plaintiff requires weekly psychotherapy for one year, and then as needed. He also requires participation at a multidisciplinary chronic pain management program. [95] In testimony, Dr. Waisman noted that while the plaintiff has had therapy in the past, it was not sufficient because he only received a couple of treatments and, in Dr. Waisman's view, he should receive counselling with a Ph.D.-level psychologist who can "focus on the complexities". Cross-Examination [96] Dr. Waisman acknowledged that his assessment of the plaintiff was done by video and lasted about an hour. He agreed that the rapport gained from an in-person assessment is much stronger, but said this assessment was done at a time when masks were mandatory and a virtual assessment is better than an in-person assessment where the individual wears a mask. [97] Although the plaintiff received counselling in 2017 in order to become abstinent of alcohol in light of a binge drinking problem from years ago, Dr. Waisman linked that worry to the stress associated with the

accident and his symptoms. [98] Dr. Waisman acknowledged that he noted "normal childhood" despite notes showing emotional issues linked to emotional abuse and his mother's own mental health issues, but he said "this was years ago". He felt the plaintiff's issues arising from his relationship breakdown (2008) and work stress (2015) were more relevant. He felt the childhood issues were not issues that contribute to his current problems. [99] When questioned about the ways in which there were "substantial interference" in the plaintiff's life due to his psychological difficulties, a necessary component of adjustment disorder, Dr. Waisman said he was not assessing these activities as such, but instead was assessing the plaintiff's motivation to engage in these activities. Later, he noted he did mention the plaintiff's occupational impairments in his report. [100] Dr. Waisman saw no need to inquire about the plaintiff's cardiac problems or concerns, or other substantial health issues, as these were not issues that were properly discussed in a psychiatric report. He also felt it would have been "highly inappropriate" for him to have asked the plaintiff about his post-accident medical history. He said it is "impossible to delineate" what psychiatric issue might be due to what health issue. He did ask the plaintiff why he was worried, to which the plaintiff replied that it was being

unable to work or to sustain employment. [101] Dr. Waisman acknowledged some different observations or reports recorded by Dr. Robinson, but noted that these were made at a different time. When it was suggested "something must have happened" between those times, Dr. Waisman said "what changed is he was caught in a cycle. He had better times, then increased activity, and then he fails". [102] Dr. Waisman was questioned about the diagnostic criteria for somatic symptom disorder, which includes a persistent level of anxiety over health and excessive time and energy spent on health concerns. Dr. Waisman thought attempts at exercise might qualify as "excessive time and energy" in terms of that criteria. He acknowledged he did not note anything about the exercise routine the plaintiff had after he moved to Newfoundland. III. Defence Case A. Samantha Gallagher - Vocational Rehabilitation Consultant [103] Ms. Gallagher assessed Mr. Simms on February 20, 2020 and provided a report dated April 4, 2020. The plaintiff did not require Ms. Gallagher to attend the trial for cross-examination, so her report was admitted without calling her to testify. [104] Ms. Gallagher's assessment of the plaintiff involved testing and an interview over the course of four hours. The testing revealed low scores for spelling and math computation (these were at the elementary school level), sentence

comprehension at the Grade 12 level, and sight reading at the post-secondary level. Results from an intelligence test suggested he would be capable of college-level programs. [105] Ms. Gallagher noted that the plaintiff's score on a test or tests of effort was "outside the accepted limits', indicating his scores may not be a valid representation of his abilities. [106] Ms. Gallagher noted she did not have current reports on the plaintiff's symptoms and limitations, so she relied on the plaintiff's self-report and the reports from his WorkSafeBC file. She took his limitations to be an "inability to perform tasks requiring repetitive and/or sustained neck flexion, extension and/or rotation and limitations with tasks requiring sustained forward and lateral reaching, which forces the neck into mild flexion." [107] From this, Ms. Gallagher concluded that it is unlikely the plaintiff would be able to perform an administrative position on a full-time basis. I note that the WorkSafeBC retraining program was focused on this sort of work. [108] Ms. Gallagher noted that the plaintiff's past experience has been in retail sales management, sales and security. She felt he should be encouraged to explore occupations in sales, including wholesale sales, which would offer him the opportunity for postural flexibility through the day and utilize both his customer service skills and his now

upgraded computer skills. His customer service skills would also render him suitable for customer service positions, including those associated with hospitals. Finally, he could pursue employment in security, focusing on positions that allow him to move about during the day. [109] Ms. Gallagher listed the low, high and median salaries for these types of occupations. Median hourly wages ranged from $12.00 per hour to $18.71 per hour. [110] Ms. Gallagher said "there are several positive prognostic factors which suggest Mr. Simms will be able to make a successful and durable return to employment". These were: (1) the plaintiff's demonstrated motivation to return to work; (2) he was (then) taking further training, which would improve his overall employability; and (3) the plaintiff had taken steps to contact prospective employers in Newfoundland, where he planned to move and look for work. She described his demonstrated motivation to return to work as "significant". [111] Ms. Gallagher concluded as follows: In summary, as a result of the motor vehicle accident in question Mr. Simms will likely be unable to return to his pre-accident employment. However, throughout his career Mr. Simms has developed a variety of transferable skills including sales skills, customer service skills and experience working as a security guard which will likely enable him to find less physically demanding

work that will be more in keeping with his present abilities. In addition, Mr. Simms has undertaken training to improve his computer skills and thus his overall employability. B. Dr. Tamir Ailon - Neurosurgeon [112] Dr. Ailon conducted an in-person examination of the plaintiff on February 21, 2020 and prepared a report dated March 26, 2020. His qualifications as a neurosurgeon were not challenged. [113] In his report, Dr. Ailon reviewed the plaintiff's pre and post accident medical and work history. In terms of work history, he understood the plaintiff to have stopped work permanently on February 2, 2019 and not to have worked since. [114] Dr. Ailon conducted a focused neurological and musculoskeletal examination of the plaintiff, noting normal findings except for cervical spine range of motion, which he found reduced by 10 to 20 percent. [115] Dr. Ailon provided the following diagnoses: (1) chronic mechanical neck pain; (2) cervicogenic or tension headaches; (3) left finger spasm and pain - resolved; and (4) mild traumatic brain injury (concussion) - resolved. [116] Given the timing of onset and the absence of any relevant pre-existing injuries, he concluded the accident was the cause of the plaintiff's neck pain and headaches. He noted that post-accident imaging did not reveal any acute structural abnormalities or their sequelae. [117] Dr. Ailon felt the plaintiff's headaches

and associated dizziness, nausea and concentration and memory difficulties, were consistent with mild traumatic brain injury, or concussion. He noted that these symptoms resolved through his head injury treatment and had resolved prior to his first gradual return to work. [118] Dr. Ailon concluded the plaintiff's thumb and left arm symptoms to be likely unrelated to the accident. [119] As for the plaintiff's neck problems, Dr. Ailon noted that his course of recovery has been "fairly atypical". He said it was very uncommon to have extended periods without symptoms followed by recurrence. He said, "I cannot provide a clear explanation for the atypical nature of this clinical course". [120] As for prognosis, Dr. Ailon said: Based on Mr. Simms' current status, it would appear unlikely that complete resolution of his persistent symptoms or even durable improvement will occur in the foreseeable future. However, the high degree of variability in his symptom severity over the past 4 years and, in particular, the history of multiple previous episodes where he has been asymptomatic or minimally symptomatic, would suggest that he may reach such a state again. It is difficult to prognosticate in cases such as this where the recovery course does not fall within the spectrum of expected trajectories. [121] As for treatment, Dr. Ailon said: Ongoing participation in self-directed exercise is

appropriate and constitutes the mainstay of managing chronic pain symptoms. The goal is not pain reduction per se but rather improvements in general conditioning and functional capacity. Passive therapies that Mr. Simms has used, such as massage therapy and IMS have no supporting level I [clinical trial] evidence. On the contrary, such modalities have been shown to prolong recovery, possibly by reinforcing the sick role. Accordingly, they should be avoided or used judiciously for severe pain flares. I see no role for neurosurgical consultation or intervention at present or in the foreseeable future. [122] In cross-examination, Dr. Ailon agreed that with two more years having passed since his assessment, the plaintiff's current state is probably the best predictor of his future state. He also agreed that often there is a psychological component to chronic pain and that it may overlap, or be interwoven, with physical components. He acknowledged that, as a neurosurgeon, he does not address psychological factors and these are left to others to assess and address. IV. Positions of the Parties A. Plaintiff [123] The plaintiff says that prior to the accident he was an active, healthy 51 year old man who worked at a job he enjoyed. The neck pain and headache symptoms caused by the accident limit him in all important areas of his life - work, social interactions and physical activity -

and his resulting psychiatric issues impair those aspects even further. Each time he attempted a return to work, or a return to physical activity, he suffered setbacks. He is now limited to very sedentary work. [124] The plaintiff has also suffered an adverse impact to his homemaking capacity. Although he is still capable of performing household tasks, he now has to pace himself and so the tasks take more time. He is also looking to move in with roommates in order to share the housekeeping work. The plaintiff submits that although this loss can be compensated by way of a separate award, in this case it should be reflected in the award of non-pecuniary damages. [125] The plaintiff submits his accident injuries and the resulting impacts on his life warrant an award of non-pecuniary damages between $120,000 and $140,000. He cites the following cases in support: De la Garza v. Carson, 2018 BCSC 1858; Bruno v. Diamzon, 2014 BCSC 1270; Slater v. Gorden, 2017 BCSC 2265; Bieling v. Morris, 2021 BCSC 1905; and Bott v. Thomson, 2021 BCSC 1270. [126] The plaintiff calculates past income loss by taking the difference between the earnings he would have had and the earnings he did have. He derives the former by taking his annual earnings ($53,000) and multiplying by 6.25 years, bringing about a total of $331,250. He calculates the latter by adding up his employment earnings over the same

period, which total $157,249. The difference is $174,000 (rounded). This is his claim before taxes. [127] The plaintiff calculates loss of future earning capacity by taking the same without-accident annual earnings of $53,000, subtracting his current annual earnings of $24,969.56, deriving a consequent annual loss of $28,030.44, and applying the appropriate multiplier to age 70 to bring about a present value of future income loss of $179,619.06, or $180,000, rounded. [128] Cost of future care is claimed for attendance at a pain clinic ($12,525), counselling ($1,764 initially claimed, but revised to $7,800) and regular Botox injections for life ($424 to $850 every three months), for which the present value ranges from $8,577 to $17,155. [129] The plaintiff says special damages totalling $34,596.38 are agreed. Two further claims are not. These related to certain health care payments and vocational rehabilitation payments made by WorkSafeBC. The disputed items total $21,949.86. [130] The following is a summary of the plaintiff's claim: Non-pecuniary damages: $120,000.00 to $140,000.00 Past loss of capacity: $174,000.00 Loss of future earning capacity: $180,000.00 Cost of future care: $14,000.00 to $28,000.00 Special damages: $56,546.24 Total $ 544,546.24 to $578,546.24 B. Defendant [131] The defendant accepts that the plaintiff suffered soft tissue injuries to his neck and left

thumb and that he has experienced post-traumatic headaches as a result of his neck injuries. However, the defendant takes a different view on damages. [132] The defendant notes the plaintiff's work history includes a fair number of job changes and periods of time off work. The defendant also emphasizes the fluctuating course of the plaintiff's headaches, noting that the plaintiff had no incapacitating headaches in the six-month period between September 2019 and February 2020. The defendant also noted the apparent psychological component to the plaintiff's symptoms, as identified by Dr. Robinson, which appears to have improved substantially since his move to Newfoundland. [133] The defendant submits that the plaintiff failed to mitigate his damages by failing to take the Botox injections recommended by Dr. Robinson. [134] The defendant submits an award of non-pecuniary damages in the range of $50,000 to $65,000 would be appropriate in this case, citing Clubine v. Paniagua, 2018 BCSC 146; Szostakiwskyj v. Launay, 2020 BCSC 653; and Haskett v. Frame, 2021 BCSC 1151. [135] As for past income loss, the defendant assesses this loss using different time periods. He takes no issue with the loss associated with the period September 26, 2016 to January 31, 2017, and calculates that loss at $17,296 based on earnings of $4,324 per month. The second period of loss is from June 2017 to

February 2, 2018, a period of seven months. Using the same monthly income figure, that loss totals $30,268. [136] The defendant does not accept any loss associated with the period from February to June 2020, noting that the plaintiff stopped working after working for a full year. The defendant says the plaintiff did not establish the need to go off work at that point, and he also submits that the plaintiff has failed to demonstrate that he was incapable of working at any occupation during that time. The defendants says that should the Court find it was reasonable for the plaintiff to go off work in February 2019, the assessed loss should reflect his residual earning capacity. In this regard, the defendant also notes the plaintiff did not return to employment of any sort because he was enrolled in an administrative assistant course in September 2019, a course in which he had no interest and which he ultimately failed to complete. Should a loss be established, the defendant says this 15-month period ought to be assessed on the basis of $2,000 per month. [137] For the post-June 2020 period, there should be no award at all. The plaintiff relocated to Newfoundland at that time and self-limits his work to 30 hours per week. [138] As for loss of future earning capacity, the defendant concedes the plaintiff has been rendered less capable overall from earning income from all types of

employment, but argues that the plaintiff is not as limited as he says. Here, the defendant notes there is no proof he cannot work as a driver; to the contrary, he demonstrated the ability to drive long hours by driving from Vancouver to Newfoundland, a trip of many days. The defendant also notes the plaintiff did not produce the functional capacity evaluation which the plaintiff said led to his conclusion that he was not able to work as a driver. The defendant also notes the several alternative positions identified by Ms. Gallagher as being suitable for the plaintiff, but not pursued by the plaintiff as he had evidently made up his mind to return to Newfoundland by that point. [139] The defendant says that, should the Court conclude an award is warranted for lost future earning capacity, it should reflect one year's earnings ($45,000). [140] On cost of future care, the defendant submits the only item warranting consideration is the cost of Botox injections. If the Court finds the plaintiff would undertake this treatment then the sum of $2,550 would be an appropriate award. [141] On special damages, the defendant concedes an award of $29,809.75 is justified. The remainder of the claims have not been proven. [142] The following is a summary of the defendant's position on damages: Non-pecuniary damages: $50,000 to $65,000 Past loss of capacity: $47,564 to $77,564 Loss of future

earning capacity: $0 to $45,000 Cost of future care: $2,550 Special damages: $34,596 Subtotal: $134,710 to $224,710 Less 20% for failure to mitigate, applied to non-pecuniary damages and loss of earning capacity ($10,000 to $22,000) Total: $124,710 to $202,710 V. Discussion A. Credibility [143] I found the plaintiff to be reasonably credible, in that he testified about events as he recalled them, and he was forthright about such matters as his pre-existing back problems. However, I was not convinced that his recollection of events was always accurate or complete. By way of example, he testified in direct that he suffered from headaches in November 2015, but said these were due to conflict with another employee and high blood pressure, and once he was treated for high blood pressure, the headaches ceased. However, in cross-examination he acknowledged another bout of headaches in February 2016, again due to work-related stress, at which time he told the attending physician that he suffered from "frequent headaches". [144] He also acknowledged having further problems with blood pressure in September 2018 when he attended at a hospital emergency department with complaints of a "panic attack". I appreciate that he attributed this panic attack to WorkSafeBC's denial of further income benefits, which would have been no small thing, but clearly his issues with high blood pressure did

not end with the treatment he received in November 2015. [145] I note that work-related stress and conflict appears to have been a sometime feature of his work history, as exemplified by workplace conflict, a three-month stress leave and his apparent dismissal by Revy in 2008, stress-related headaches caused by workplace conflict in November 2015, and his work difficulties in February 2017 when he was left feeling "singled out" and "treated differently" by his employer. Although he testified he loved his job there, this appears to be contradicted by the fact that in April 2016 - mere months prior to the accident - he was noted by his employer as complaining "all the time" and "not willing to do extra hours". [146] I also note that although the plaintiff said his neck and headache symptoms caused him to have difficulty completing the office administration course, which initially ran from September to December 2019, the headache diary he kept did not list any days where his headaches were "incapacitating", the majority of the entries categorized any headaches as "mild" and there were two and three week periods where he listed no headaches at all. [147] In summary, while I accept that the plaintiff's reports of his accident-related injuries, symptoms and course of recovery are largely accurate, his tendency to discount positive aspects suggesting recovery or improvement, as well

as other problems in his life, means I have been cautious in assessing and accepting all aspects of his testimony. B. Analysis and Findings [148] From the evidence as a whole I am satisfied that the plaintiff suffered a whiplash-type injury in the subject accident, which left him stiff and sore and caused severe headaches. He also suffered a thumb injury, although there was little evidence led about that. He was unable to work from the accident date (September 25, 2016) to the beginning of February 2017. At that point he was able to work with only minor difficulties, and he was active to such an extent that he ran a half-marathon in May 2017. However, he also had three relapses where the worst of his symptoms returned. From the evidence, it appears these occurred in spring 2017, June 2017, and late fall 2017. Following a course of treatment at a pain management clinic, he returned to work and remained steadily employed for about a year, but ultimately he ended his employment in February 2019. [149] WorkSafeBC funded a retraining course in office administration, which was scheduled to run from September to December 2019. The plaintiff did not complete the retraining course despite both the assistance of a tutor and the extension of the course to August 2020. Instead, he relocated to Newfoundland, where he secured a job as a care aide, working 30 hours each week. [150] The

medical evidence is largely consistent. Dr. Robinson, who focused on the plaintiff's headaches, said: Although not impossible I believe it unlikely that he would have developed constant headache had the [accident] not occurred. There is a clear temporal relationship between the development of headache and the trauma that indicates the probability of a causal role. I believe that his history, examination and investigations are consistent with a diagnosis of persistent posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the September 25, 2016 motor vehicle accident. [151] In cross-examination, Dr. Robinson said the plaintiff showed a pre-accident predisposition to headache that was "probably due to an inherent migraine disorder". In his report, he also said: Although I would defer to a psychiatrist or psychologist I believe that he did develop a generalized anxiety disorder after the motor vehicle accident. His anxiety has improved however he continues to have symptoms of depression. These appear to be situational occurring as a result of the impact of his accident related symptoms on his work and recreational activities. [152] Dr. Ailon noted that the plaintiff had reduced range of motion of 10 to 20 percent in his cervical spine. He concluded that the plaintiff suffered a concussion in the accident and said the accident was the cause of the

plaintiff's neck pain and headaches. However, he also said the plaintiff's recurrent headaches were not the result of concussion but were either cervicogenic headaches or tension headaches, or a combination of both. [153] Dr. Ailon commented on the plaintiff's unusual or atypical clinical course with its "high degree of symptom variability" and extended symptom-free periods followed by recurrence. Dr. Robinson made essentially the same observation. [154] I pause to note that Dr. Robinson did not agree that the plaintiff suffered a concussion in the accident. He noted there was no blow to the head and no loss of consciousness or awareness at the scene or in the aftermath. Instead, he concluded the headaches were due to whiplash or soft tissue injuries to the neck. [155] Although it probably does not matter much whether the plaintiff suffered a concussion in the accident given that both Dr. Robinson and Dr. Ailon concluded his headaches were caused by the whiplash injury, I conclude he likely did not. In this regard, I prefer Dr. Robinson's opinion as he examined the issue more thoroughly than did Dr. Ailon. I also note that in coming to his conclusion Dr. Ailon referred to the immediate or near-immediate onset of concussion-like symptoms, whereas Dr. Robinson relied on the fact that cognitive symptoms did not appear until days after the accident, which I find better accords with

the actual evidence at trial. [156] Both Dr. Robinson and Dr. Ailon expressed concerns about possible psychological factors. While deferring to mental health professionals on the subject, Dr. Robinson said he suspected the plaintiff developed a generalized anxiety disorder following the accident, though it had improved, and the plaintiff continues to have symptoms of depression. Dr. Ailon said he could not provide a clear explanation for the "atypical nature" of the plaintiff's clinical course, but agreed there is often a psychological component to chronic pain. [157] Dr. Waisman concluded the plaintiff has somatic symptom disorder and an adjustment disorder with mixed anxiety and depression. He recommended the plaintiff undergo psychotherapy. [158] Regrettably, I must remark that Dr. Waisman's opinion evidence suffered from some notable deficiencies. His opinions were conclusory in nature. He did not set out the facts and assumptions he used to formulate his opinions, at least not properly, and he was notably defensive and obstinate when defence counsel tried to explore the underpinnings of his opinion. His attempt to justify his diagnosis of somatic symptom disorder was weak at best. The diagnostic criteria for that disorder include (to paraphrase) both a persistent level of anxiety over health and excessive time and energy spent on health concerns, to the point of

significant impairment in various important areas of functioning, but the most Dr. Waisman could point to on "excessive time and energy" were the plaintiff's attempts to exercise, which have been fairly minimal and certainly not significant in terms of their effect on daily life or important areas of functioning. He also dismissed out of hand the relevance of other potential stressors in the plaintiff's life, including the plaintiff's cardiac scare in November 2018. For all of those reasons, I am unable to accept Dr. Waisman's psychiatric diagnoses. [159] However, in light of the plaintiff's testimony about mood problems, the mental health observations of the other medical professionals and Dr. Waisman's note of the plaintiff's current symptoms, I do accept that there is a psychological component to the plaintiff's presentation, and so I accept Dr. Waisman's recommendation that the plaintiff would benefit from psychotherapy. [160] From all of this evidence I conclude that the plaintiff has chronic neck pain and associated headaches that are recurrent in nature and which appear to have a psychological component insofar as they also tend to recur in times of stress or anxiety. Based on the opinions of both Dr. Ailon and Dr. Robinson, I expect that the plaintiff's symptoms will continue indefinitely, although they may moderate with treatment, particularly the psychotherapy

recommended by Dr. Waisman and possibly the Botox injections recommended by Dr. Robinson. [161] I also accept that the plaintiff's neck pain and headaches have restricted his physical and social activities and caused him to suffer from low mood, frustration and anxiety. On the matter of physical activity, I suspect that some of his activity restriction has been due to fear of relapse rather than actual physical incapacity, given that his headache diary shows periods of time during which he recorded no headaches. C. Non-Pecuniary Damages [162] I begin with a discussion of the cases cited by the parties. Perhaps unsurprisingly, I found the plaintiff's cases to reflect injuries and consequences more serious than those in the case at bar and the cases cited by the defendant to reflect the opposite. [163] I will address the plaintiff's cases briefly, with the related non-pecuniary awards in brackets. In De La Garza ($115,000), Slater ($135,000) and Bruno ($120,000), each of the plaintiffs were in constant pain and were found to have a number of serious psychological disorders as a result of the accident. This is not the case here, as Mr. Simms has had periods of time during which he has been at least somewhat symptom-free and I have found the plaintiff's claim of identifiable or diagnosed psychological disorders to be unproven, although I accept that he has suffered from anxiety and

depression in the lay sense of those terms. I also note the plaintiff in Bruno was unable to work, unlike the situation here. Bieling ($165,000) is also a case where the plaintiff was in constant pain. She could not continue her work as a cleaner and had to hire replacement labour to do her work. Although Bott ($125,000) appears to involve injuries similar to the present (neck pain and chronic headaches), as well as reduced work hours, the plaintiff in that case was 26 years old, much younger than Mr. Simms. Also, although this is not entirely clear, it appears that in Bott the plaintiff's headaches were much more frequent than those of Mr. Simms. [164] Turning to the cases cited by the defendant, in Clubine ($55,000) the plaintiff suffered neck and back injuries which caused headaches and tinnitus. Only his neck pain continued by the time of trial. He was able to continue his drumming hobby, go on hikes, play tennis, socialize actively and do all but the heaviest household work and landscaping. In Szostakiwskyj ($65,000), the plaintiff suffered a whiplash injury that caused some back pain but also caused low level, constant neck pain, with intense pain on certain movements. However, the plaintiff was able to swim substantial distances multiple times each week and was able to engage in "ambitious walks or hikes", albeit on a slower basis. In Haskett ($60,000), the plaintiff was

found to have "some degree of chronic headache, and neck and back pain", but he still rode a bicycle, was able to swim a mile, "walk as far as he likes" and engage in weightlifting, although the latter was done at 80 percent of his pre-accident capacity. [165] It is clear that the defendant's cases involved injuries and consequences substantially less serious than those in the present case. [166] The plaintiff submits that his claim for loss of homemaking capacity ought to be reflected in the non-pecuniary award. The defendant argues that such an award is typically reserved for cases where the plaintiff derives particular enjoyment from a well-kept household. [167] In Kim v. Lin, 2018 BCCA 77, the court said: [33] 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 [Liu v. Bains, 2016 BCCA 374], "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": at para. 26. [168] In this case, the plaintiff testified that he is still able to carry out all housekeeping tasks, but his tolerance for those activities is limited to two hours. He did not say that there has been any effect on his enjoyment of a clean and tidy household, or that there are tasks he now cannot do, but merely that cleaning takes longer. [169] Given these circumstances, I conclude that the plaintiff's loss of housekeeping capacity is relatively modest, and to the extent there has been a loss of capacity I have taken it into account in my assessment of non-pecuniary damages. [170] From the cases cited by the parties, and taking into account the various factors set out in Stapley v. Hejslet, 2006 BCCA 34, I conclude that the reasonable range of non-pecuniary damages in this case is between $80,000 and $100,000. I assess non-pecuniary damages in this case at $95,000. D. Failure to Mitigate [171] The defendant submits the plaintiff has failed to mitigate his losses because he did not undertake the Botox injections recommended by Dr. Robinson in his report of April 1, 2020. [172] The plaintiff notes that the efficacy of Botox injections is not certain and, in any event, these are directed at only one component of the plaintiff's problems, his headaches.

Botox injections offer no prospect of relief for the plaintiff's neck problems or psychological issues. [173] It is trite law that the onus is on the defendant to prove that the plaintiff could have avoided all or some of his loss. To do that, the defendant must show: (1) the plaintiff acted unreasonably in declining recommended treatment; and (2) the extent to which the plaintiff's damages would have been reduced had he acted reasonably: Chiu v. Chiu, 2002 BCCA 618, at para. 57. [174] In Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144, the court held that onus is on the defendant to prove that the likelihood the course of action the plaintiff refused to undertake is more than merely "some likelihood of substantial benefit", or a "reasonable treatment to try, which might afford some relief". In that case, the trial judge found that recommended treatments were "not necessarily curative, they reduce the inflammation ... Sometimes the relief is only temporary but sometimes the injections bring long term benefits". [175] The situation here is very similar. In his report, Dr. Robinson said Botox injection "may be helpful in headache related to head and neck trauma". He said "headaches and neck pain may be less severe for up to 3 or more months following administration" and, if there is a substantial positive response, the treatments could be repeated. In his

testimony, Dr. Robinson was asked about the likelihood of an improvement of symptoms, and he said it was "not probable, though it was highly possible". He then added that "maybe 50 percent would respond". Given this evidence, I find the situation indistinguishable from that in Gregory, where the prospects for improvement were found to fall short of the necessary level of proof. [176] I conclude the defendant has failed to prove a failure to mitigate. E. Past Income Loss/Loss of Capacity [177] The contest in this case focuses on the degree to which the plaintiff's earning capacity has been impaired by his accident-related injuries and symptoms. The assessment of this loss is not an easy task. [178] The plaintiff's approach assumes that all periods of post-accident unemployment and all earnings shortfalls are attributable to the accident. The defendant's approach halts the period of recovery at the beginning of February 2019, when the plaintiff left his employment at S.N. Transport. [179] I am not satisfied that either approach is appropriate here. The plaintiff's approach fails to address the plaintiff's residual earning capacity and periods of largely unexplained unemployment, while the defendant's approach fails to address the plaintiff's manifest loss of earning capacity. [180] I begin my analysis by noting that this is a case that would have benefitted greatly from a

thorough chronology, as I have had to sort out the essential chronology on my own. There is also a notable lack of detail about what was happening at certain points in time. The available evidence shows the plaintiff left S.N. Transport in early February 2019 and started employment retraining in September 2019 (something that WorkSafeBC recommended to him in summer 2019), but there was little said about what was happening or what the plaintiff was doing in terms of employment between those dates. Notably, in cross-examination the plaintiff agreed that on August 1, 2019 he told his doctor he was "training again" by running portions of the seawall and that he had climbed the Grouse Grind a couple of times, albeit with times exceeding three hours. This evidence suggests a capacity to work. [181] The plaintiff moved to Newfoundland in July 2020. Again, there is little evidence about what the plaintiff was doing between September 2020, when he started the retraining course, and July 2020, when he moved to Newfoundland, other than his somewhat limited efforts at the retraining course itself. It appears the plaintiff was content to collect WorkSafeBC benefits, as his testimony in cross-examination was to the effect that he went along with the office administration retraining course, despite his disinterest in that line of work, because he would otherwise have been cut off from further

income replacement benefits. [182] It is clear that the plaintiff had a residual capacity to earn income during the 17 months following the end of his employment at S.N. Transport. The fact that, once in Newfoundland, he secured employment involving 30 hours of work a week is some evidence of that, as is the fact that he was "training again" by running portions of the seawall and could complete the Grouse Grind even on the laboured basis he did. Despite his residual capacity to work, he did not work and he did not seek work, although at least a few months were spent attempting to complete the retraining course. In these circumstances, I do not see that it is reasonable to assess income loss for this entire period based on a complete inability to earn his former income, which is the approach advanced by the plaintiff. [183] The plaintiff's current work offers at least some measure of his residual earning capacity. His hourly earnings are 72 percent of his former earnings ($15.55 versus $21.47) and he is working 75 percent of his former hours, with the result being that he is earning 54 percent of what he earned at S.N. Transport. Based on the evidence as a whole, I conclude he is capable of working more than 30 hours each week, and here I note the plaintiff himself testified he might take on another client. I also conclude that he has unreasonably restricted the scope of jobs

available to him by moving to a location with fewer employment opportunities. Taking into account all of these considerations, I conclude that a fair assessment of the plaintiff's residual income earning capacity during this 17-month period is that it was 70 percent of his "without accident" earning capacity. [184] As a test of the reasonableness of that assessment, I have assessed the plaintiff's capacity based on an hourly wage of $18 per hour and a 35-hour work week. This results in a figure that is 73 percent of his former earnings. The figure of 70 percent, I conclude, is a reasonable weighted balance between the two capacity figures. I have also tested the 70 percent figure against the evidence generally. From those analyses, I conclude the 70 percent figure is a reasonable assessment of the plaintiff's residual earning capacity. [185] The parties are essentially agreed on the plaintiff's pre-accident monthly earnings insofar as they agree the plaintiff earned $38,912 from January 1 to September 25, 2016. The defendant divides that figure by nine, resulting in a monthly figure of $4,324 per month, but this is slightly less accurate than the plaintiff's calculation given that the plaintiff did not work the entire month of September. The plaintiff's calculation was based on days, not months, and results in a figure of $4,412 per month. I will use the latter figure. [186]

The next consideration is whether any part of the 17-month period should be excluded. I conclude that the period of time during which the plaintiff was most actively taking retraining ought to be excluded. I appreciate that the plaintiff was disinterested in office administration as a line of work, but despite that I do not think it unreasonable for the plaintiff to have embarked on that retraining course given that it was recommended to him by WorkSafeBC. [187] The course was to have taken three months, from September to December, but it was extended well into the following year. I acknowledge that the plaintiff testified about the difficulties he had with the course, even with a tutor that was assigned to him, but given his demonstrated residual work capacity I strongly suspect his inability to complete the course even with generous accommodations was due more to disinterest than to disability. In these circumstances I conclude that four months would be a fair period of time to allow for the completion of the retraining course. [188] The result of the foregoing analysis is that there are three periods of total income loss: (1) the accident date to the end of January 2017 (four months); (2) June 2017 to early February 2018 (seven months); and September 2019 to January 2020 (four months), which is the retraining period. I note the first two periods of loss were conceded by the

defendant. The gross loss for those periods is $4,412 x 15 months = $66,160. [189] For the remainder of the post-February 2019 period to the date of trial, the loss of earning capacity is 30 percent of the plaintiff's former earnings, as concluded earlier. Excluding the retraining period, the time periods involved are February to August 2019 (seven months) and February 2020 to March 2022 (26 months), for a total of 33 months. The calculation is $4,412 x 33 months x .3 = $43,679. [190] The total of those two figures is $109,839. I would round that to $111,000 to reflect the fact that in February 2017 the plaintiff returned to work on a graduated basis and likely worked reduced hours for a time. F. Loss of Future Earning Capacity Legal Principles [191] In Honeybourn v. Aghdasidehaji, 2022 BCSC 258, I summarized the legal principles applicable to loss of future earning capacity as follows: [129] The law applicable to loss of future earning capacity was summarized as follows in Villing v. Husseni, 2016 BCCA 422: [17] In order to receive an award for loss of earning capacity, a plaintiff must prove a real and substantial possibility that his or her earning capacity has been impaired: Perren v. Lalari, 2010 BCCA 140 at paras. 30 32 [Perren]. If the plaintiff has discharged the burden of proof, then the judge must turn to an assessment of damages. The assessment may be based on an earnings approach or a capital asset approach: Perren at para.

32. An earnings approach is most appropriate where the loss is more easily quantifiable. In general, a party may be forced to default to a capital asset approach where the loss is not easily quantifiable. [130] In a trilogy of cases, the Court of Appeal recently clarified the law relating to the assessment of future losses of earning capacity: Dornan v. Silva, 2021 BCCA 228 [Dornan]; Rab v. Prescott, 2021 BCCA 345 [Rab]; and Lo v. Vos, 2021 BCCA 421. In Rab, the court articulated a three-step process: [47] From these cases, a three-step process emerges for considering claims for loss of future earning capacity, particularly where the evidence indicates no loss of income at the time of trial. The first is evidentiary: whether the evidence discloses a potential future event that could lead to a loss of capacity (e.g., chronic injury, future surgery or risk of arthritis, giving rise to the sort of considerations discussed in Brown). The second is whether, on the evidence, there is a real and substantial possibility that the future event in question will cause a pecuniary loss. If such a real and substantial possibility exists, the third step is to assess the value of that possible future loss, which step must include assessing the relative likelihood of the possibility occurring - see the discussion in Dornan at paras 93-95. [131] Rab states that the first step (i.e. the

evidentiary inquiry) gives rise to the four considerations set out in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.) [Brown]. The questions are whether: 1) The plaintiff has been rendered less capable overall from earning income from all types of employment; 2) The plaintiff is less marketable or attractive as an employee to potential employers; 3) The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her, had she not been injured; and 4) The plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market. [132] In considering the second and third steps set out in Rab, hypothetical events are given weight according to their relative likelihood. A hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Turner v. Dionne, 2017 BCSC 1905 at para. 316, citing Athey v. Leonati, [1996] 3 S.C.R. 458 at para.

27. See also Dornan at paras. 93-94. Analysis [192] I begin with the Brown factors. In brief, I am satisfied that the plaintiff meets all of those factors. He has been rendered less capable overall from earning employment income, he is less marketable to potential employers, he has lost the opportunity to take advantage of all job opportunities that might otherwise have been available to him and he is less valuable to himself in a competitive labour market. [193] Second, I am satisfied that there is a real and substantial possibility of a future loss. Indeed, I am satisfied that a future loss is probable as the losses the plaintiff has incurred thus far are likely going to continue indefinitely to some degree. [194] There is no real disagreement between the parties on the first two stages of the analysis; the differing positions are at the third stage. The plaintiff advances this claim on the same basis as for the past loss of capacity claim, using a loss of income approach based on the difference between former and current incomes. The defendant challenges the plaintiff's asserted level of disability, arguing that: (1) the plaintiff demonstrated the ability to drive across Canada without apparent difficulty; (2) the plaintiff's subjective fears of symptom onset are not a sufficient basis for a loss of capacity claim; and (3) Ms. Gallagher, the defence vocational rehabilitation

consultant, identified a number of potential alternative careers for the plaintiff that pay more than his present position. The defendant argues that in light of these matters, the plaintiff's future capacity loss should be assessed on a lost capital asset basis, using a benchmark of one year's pre-accident income. [195] Dealing with those latter matters in turn, I accept that driving more or less in a straight line, as the drive across Canada would have been, is different from urban driving, where frequent shoulder-checking is required. It was shoulder-checking in particular that the plaintiff said created difficulties for him. Second, while I agree that some of the plaintiff's reluctance to engage in certain activities and certain types of work is based on subjective fears, it is also grounded in his experience that certain things aggravate his symptoms. Finally, as to Ms. Gallagher's alternative careers, I agree with the defendant that there are other employment positions available to the plaintiff, and within his reasonable capacity, that pay somewhat more than his current position. I also agree that he is likely capable of working more than 30 hours per week. I addressed both of those matters in the previous section of these reasons. I would add that I took Ms. Gallagher's median wage list and "high" wage list into account in that earlier analysis. [196] In his

calculations of future loss, the plaintiff used a present value multiplier applicable to retirement at age 70. I was unable to recall, or find, any reference in the evidence to the plaintiff's pre-accident retirement plans. The plaintiff argues that the multipliers take into account the average likelihood of continuing in the workforce in any given year, so it is appropriate to use 70 as a retirement date here. However, I conclude that the likelihood the plaintiff would have worked to age 70 is less than the average, and so I will assume retirement at age 67 for the purposes of the calculation. [197] Based on the earlier conclusion that the plaintiff has a residual earning capacity of 70 percent of his pre-accident capacity, the annual loss is $15,883 ($4,412 x 12 x .3). The present value multiplier is 5,919. The calculation of the present value of the future loss is as follows: $15,883/1,000 x 5,919 = $94,011. [198] As for contingencies, the multiplier I have used already takes into account the usual labour market contingencies, but I conclude there is a material prospect that, through treatments, therapy or otherwise, the plaintiff's condition will improve in a way that will allow him to earn somewhat more than I have provisionally assessed. Also, I conclude that, absent the accident, the plaintiff would have had occasional problems with back spasms, headaches and

work-related stress, each of which caused pre-accident difficulties at one time or another and which would have impacted his earnings to some degree. The assessment of these contingencies is necessarily speculative, but based on the evidence as a whole I conclude that reducing the future loss award to $85,000 would address these matters adequately. [199] Accordingly, I award $85,000 for loss of future earning capacity. G. Cost of Future Care [200] The plaintiff seeks an award to cover the cost of: (1) attendance at a pain clinic; (2) psychotherapy recommended by Dr. Waisman; and (3) Botox treatment. [201] The defendant agrees to the cost of a trial of Botox injections, but says the other items, though recommended, are problematic. While Dr. Waisman recommended attendance at a multidisciplinary pain clinic, there is no indication that this is any different from the pain clinic the plaintiff already attended. The defendant does not agree to the recommended psychotherapy because Dr. Waisman did not explain the expected outcome of this treatment. [202] I agree that a trial of Botox treatments is reasonable, but not the indefinite treatment claimed by the plaintiff as I am not entirely satisfied the plaintiff will take these treatments even if funded, and the efficacy of these treatments is uncertain. I allow these at $2,550, representing six treatments at the low end of the cost

range. [203] Dr. Waisman recommended psychotherapy on a weekly basis for a year, although his recommended duration of that therapy was obviously related to his diagnoses of somatic symptom disorder and adjustment disorder, which I have not accepted. I do not consider it necessary for Dr. Waisman to have stated the expected outcome of the therapy, as argued by the defendant, given that Dr. Waisman and two other medical practitioners felt the plaintiff would benefit from psychological help and given the obvious need for therapy based on the evidence generally. In light of the less serious nature of the proven psychological issues of the plaintiff, I would allow a sum for therapy at half of the amount recommended, using the cost of other therapy undergone by the plaintiff. The amount allowed is $3,900 ($150 x 26). [204] I do not allow any amount for attendance at a pain clinic. The plaintiff attended a pain clinic over a six-week period beginning in December 2017, and Dr. Waisman himself noted the positive results recorded in the discharge report. No rationale was provided for a second session at a pain management clinic. [205] The total amount allowed for cost of future care is $6,450. H. Special Damages [206] The plaintiff claims special damages totalling $56,546.24. Most of the expenses are sums paid by WorkSafeBC for medical and rehabilitation expenses. [207] In his trial

submissions, the defendant concedes expenses totalling $29,809.75, but says expenses relating to the plaintiff's retraining course (which includes the cost of adaptive aids), as well as health care costs incurred after November 2018, have not been justified and are therefore not recoverable. [208] Unhelpfully, later in his trial submissions the defendant says the sum conceded totals $34,596. No explanation is given for the differing figures. [209] The plaintiff submits that the provisions of the Workers Compensation Act, R.S.B.C. 2019, c. 1 [WCA 2019] grants WorkSafeBC the exclusive jurisdiction to direct and pay for any health care deemed necessary, and any sums expended must be included in any award for damages without the Court delving into the question of necessity or reasonableness of the expense or expenses. [210] The defendant submits that the WCA 2019 does not apply here because the applicable statute is the Workers Compensation Act, R.S.B.C. 1996, c. 492 [WCA 1996]. Analysis [211] The first step in the analysis is to determine which version of the statute applies here. By way of reminder, the accident in question occurred on September 25, 2016. The plaintiff commenced this action on June 2, 2017. The defendant points out that in his notice of civil claim, the plaintiff pleaded the provisions of the WCA 1996, not the WCA 2019. [212] The WCA 2019 came into force on April 6, 2020: B.C. Reg. 207/2019. [213] I conclude that the relevant statute is the WCA 1996. I agree with the defendant that legislation is not to be interpreted as having retroactive or retrospective effect unless that intent is clearly expressed: British Columbia v. Imperial Tobacco Ltd., 2005 SCC 49, at para.

71. No such intention is expressed in the WCA 2019, and so it is the WCA 1996 that applies here. [214] This conclusion eliminates some of the underpinnings of the plaintiff's argument, which was based on the cumulative effect of the following sections of the WCA 2019: s. 122(1) [exclusive jurisdiction to determine matters under compensation provisions]; s. 156(2) [the Board may provide health care deemed necessary]; s. 157(2) [all questions as to necessity, etc. of health care are to be determined by the Board]; s. 130(2) [the Board's right of subrogation]; and s. 133 [an award of damages must include health care provided under the statute]. Whether those provisions render the questions of reasonableness or necessity of WorkSafeBC health care costs beyond the jurisdiction of the Court is therefore not necessary for me to decide. [215] The relevant provision of the WCA 1996 is s. 10 (10)(a), which reads as follows: (10) In an action brought under this section, an award for damages is to include (a) health care provided under this Part [216] The plaintiff relies on Pinch v. Hofstee, 2015 BCSC 1888, a case decided under the WCA 1996, as offering support for his argument. In Pinch, the Court concluded there was a basis on which to find the claimed expenses were reasonable and necessary, but held, in the alternative, that the expenses were recoverable under s. 10(10)(a) of the WCA

1996. [217] The defendant notes that the situation in Pinch was complicated by the fact that two motor vehicle accidents were at issue. In the first accident, the defendant was not a "worker" under the WCA 1996, but in the second accident the other driver was a "worker", and so no action was commenced against him. Nonetheless, the plaintiff claimed that the health care expenses incurred by WorkSafeBC as a result of the second accident could be claimed as part of the damages available in the first accident because those expenses were indivisible from the damages caused by the first accident. [218] The defendant submits that Pinch actually refutes the plaintiff's argument because the Court in that case examined the reasonableness and necessity of the expenses at issue, something the plaintiff here argues the Court has no jurisdiction to do. [219] The defendant also refers to Lane v. Ou, 2019 BCSC 928, which involved a subrogated claim of about $37,000 on behalf of WorkSafeBC for medical treatments and a retraining course. The Court reduced that sum by $10,000, noting that the plaintiff's attendance at the retraining course, a pain program and a back injury program had been spotty due to his having prioritized another rehabilitation program instead. [220] The defendant argues that these cases demonstrate that: (1) a subrogated claim of WorkSafeBC is the same as any other

subrogated claim, with WorkSafeBC gaining no additional rights against the tortfeasor that the plaintiff does not already have; (2) a plaintiff advancing a WorkSafeBC subrogated claim has the burden of proving his claim for special damages, including any subrogated aspect of that claim; (3) the Court has jurisdiction to determine whether there is an evidentiary link between the injuries and the expenses claimed; and (4) s. 10(10)(a) of the WCA 1996 does not operate in a fashion that makes all WorkSafeBC health care costs automatically recoverable against a tortfeasor. [221] I agree with the defendant's submissions. Pinch and Lane do not support the proposition that WorkSafeBC health care expenses (which, in this case, include retraining expenses), are or were automatically recoverable under s. 10(10(a) of the WCA 1996 without proof of recoverability according to the ordinary principles applicable to special damages. I would add that there is nothing in s. 10(10(a) itself to that effect either as it is a provision that simply requires plaintiffs to include WorkSafeBC's subrogated claim in their claims for damages. [222] Accordingly, I now proceed to consider the reasonableness and necessity of the expenses at issue. Because of the defendant's differing figures as to the amounts conceded, and because the defendant did not use specific figures in his submissions (for example, he

said "a portion" of the $14,962.36 in rehabilitation expenses was in dispute), I am left with uncertainty as to which amounts are disputed. Accordingly, I will address the matter in general terms only. [223] The defendant objects to: (1) WorkSafeBC medical expenses incurred between November 6, 2018 and July 2019; (2) occupational therapy services; (3) psychological services; and (4) the retraining program. I will deal with these in turn. [224] In objecting to "medical services" from November 2018 to July 2019 it is not clear what this phrase is intended to mean, as it appears WorkSafeBC places expenses into three categories, "health care", "MSP" and "vocational rehabilitation". I see no reason, for example, why the plaintiff should be denied subrogated recovery for the plaintiff's accident-related visits to his family doctor during the time frame referenced by the defendant. [225] As for psychological services, there was evidence that the plaintiff received therapy or counselling for his accident-related mood issues. I have no difficulty in finding that psychological assistance was reasonable and necessary in the circumstances of this case. [226] I agree that the claim for the retraining program and related expenses is problematic given that the retraining program seems to have been particularly ill-suited to the plaintiff and office administration was a vocational field in

which the plaintiff had no interest. Perhaps it was justified or justifiable at the time, but without evidence to that effect, these costs must be disallowed. [227] The defendant also objects to occupational therapy costs. Given the situation of the plaintiff and his ongoing difficulties at work I am satisfied that it was reasonable to engage occupational therapy services, certainly for a functional capacity evaluation, which here appears to have been carried out over two days in February 2019. However, I would not allow those occupational therapy services relating to the implementation or monitoring of the retraining course. [228] I look to counsel to come to an agreement on the allowed amounts for special damages based on the findings I have made. Should they be unable to agree on the amount to be allowed, the parties have leave to appear before me to address the matter. VI. Conclusion [229] I assess damages in this matter as follows: Non-pecuniary damages: $95,000 Past loss of capacity (gross): $111,000 Loss of future earning capacity: $85,000 Cost of future care: $6,450 Special damages: TBD Total: $297,450 Plus special damages [230] Court order interest applies to the pecuniary awards. The parties have leave to address any matters necessary to finalize the award. [231] Unless there are matters the parties wish to bring to my attention, the plaintiff will have costs. "Blok J."