IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150204

Docket: S23810

Registry:
Chilliwack

Between:

Michelle Dawne
Worobetz

Plaintiff

And

William Ray Fooks

Defendant

Before:
The Honourable Mr. Justice Joyce

Reasons for Judgment

Introduction

[1]            
The plaintiff, Ms. Worobetz, a 45 year-old married mother of three
children, claims damages as a result of a motor vehicle collision (“Accident”)
that occurred on January 21, 2010, when the vehicle she was driving was struck
from behind by a vehicle being driven by the defendant, Mr. Fooks.

[2]            
Ms. Worobetz claims that as a result of the Accident, she sustained
injuries to various parts of her body that have left her with debilitating
chronic pain and partially disabled from work in her career as an at-home teacher
and supervisor of other at-home teachers.

[3]            
Ms. Worobetz claims non-pecuniary damages for pain, suffering and
loss of amenities of life. She also claims pecuniary damages for past loss of
earning capacity and future loss of earning capacity. In addition, Ms. Worobetz
claims damages for the cost of future care and special damages.

[4]            
The defendant admits that his negligence caused the Accident, but says
that the collision was of a minor nature. He denies the severity of the
injuries claimed by the plaintiff and denies that the Accident caused injuries
of the sort that could have resulted in her alleged chronic pain. He submits
that the plaintiff suffered minor soft tissue injuries only.

[5]            
The defendant denies that the plaintiff has suffered a past loss of
wages or loss of opportunity to earn income. He denies that she has any ongoing
disability and disputes any future loss of earning capacity as a result of the Accident.
The defendant disputes that the plaintiff has established a need for most of
the future care items that she claims and says that what she really needs is to
improve her strength and conditioning.

The Accident

[6]            
On January 21, 2010, at about 6:00 p.m., Ms. Worobetz was driving
her 1997 passenger van westbound on 1^st Avenue in Chilliwack, B.C.,
taking her son to his music lesson at a music school on 1^st Avenue. Ms. Worobetz
came to a stop on 1^st Avenue, intending to turn left, into the lane
entrance to the music school. She had activated her left-turn indicator. The
roads were damp, but not icy.

[7]            
Mr. Fooks was also driving westbound on 1^st Avenue in
his 2000 Chevrolet Cavalier, taking his son to the hockey arena where his son
was to play hockey. His daughter was also in the vehicle.

[8]            
The posted speed limit on 1^st Avenue is 50 km/h. Just before
the collision, Mr. Fooks took his attention from the road when he tried to
change the music in his CD player. His son alerted him to the impending
collision but, by the time Mr. Fooks looked up, he was too close to stop
and his vehicle struck the back of Ms. Worobetz’s vehicle.

[9]            
The parties disagree as to the speed of Mr. Fooks’ vehicle at the
time of the collision and the severity of the collision. Ms. Worobetz
testified that she saw Mr. Fooks’ car in her rear view mirror as he
approached quickly from behind before she felt the impact, which she described
as a “smash”. Ms. Worobetz testified that she believed her vehicle was
pushed forward. Contents in a compartment in the dash flew into the middle of the
van. She described it as a hard impact.

[10]        
Ms. Worobetz’s vehicle sustained damage to the right rear as well
as the frame, causing the sliding door and front passenger door to not operate
properly. Her vehicle was written off by ICBC.

[11]        
Mr. Fooks testified that he believed that he had been travelling at
the speed limit and that when he looked up and saw the car about one and a-half
car lengths in front of him, he braked and tried to swerve to the right. In
cross-examination, he admitted that he may have been exceeding the speed limit.
He was concerned about being late for his son’s hockey game. Mr. Fooks
believed his speed had slowed to about 25 km/h at the time of impact but on
cross-examination, admitted that he could not be certain of his speed at the
time of impact.

[12]        
Upon impact, Mr. Fooks’ daughter, who was sitting in the back seat
without her seat belt on, flew forward but fortunately was not injured. Mr. Fooks
did not have the damage to his vehicle appraised. He said that a headlight was
smashed, the front bumper was dislodged and the hood was crumpled. Although he
drove the car from the scene and took it home, the next time he tried to start
the car, it would not run. Mr. Fooks sold the car for scrap value.

[13]        
In my opinion, it is likely that Mr. Fooks understated the impact
of the collision. In my view, it is probable that he was travelling at or close
to 50 km/h when he struck the back of Ms. Worobetz’s vehicle considering
how close her vehicle was to him when he first saw it and tried to avoid it. I
am satisfied that the impact was sufficient to cause structural damage to both
vehicles, including bending the frame of Ms. Worobetz’s van. It was not,
in my view, what could be described as a minor impact.

Plaintiff’s Health and Activity Level Prior to Accident

[14]        
In the years before the Accident, Ms. Worobetz had the following
health issues:

·      
In 2002, she experienced a peripheral neuropathy that caused pain
in her hands and legs, but she testified that she recovered from that condition
within about a year.

·      
In 2007, Ms. Worobetz complained of pain in the left side of
her neck. Dr. Stopforth sent her to see a general surgeon, Dr. Schwartz,
and to an endocrinologist. Neither of those specialists gave expert opinion at
this trial. However, the plaintiff agreed that Dr. Schwartz saw her to
investigate a four-month history of intermittent pain/tenderness in her right
neck. Ms. Worobetz saw Dr. Schwartz on December 7, 2007. Dr. Schwartz
suspected thyroiditis, although he did not arrive at a definitive diagnosis. It
seems, however, that during the course of the investigation of the neck pain Ms. Worobetz
was ultimately diagnosed with a thyroid condition for which she was prescribed Synthroid,
a synthetic hormone.

·      
In May 2007, Ms. Worobetz experienced pain under her left
breast, which was investigated by an abdominal CT scan and by a gastroscopy. The
cause was not definitively diagnosed, but was thought to be musculoskeletal in
origin. Dr. Stopforth sent Ms. Worobetz for physiotherapy and
chiropractic treatments, prescribed an anti-inflammatory gel and ultimately
cortisone injection.

·      
At one period of time in 2007, Ms. Worobetz complained to Dr. Stopforth
of feeling tired and, after sending her for some blood tests, he prescribed
iron supplements.

·      
In November 2007, Ms. Worobetz sought treatment from Dr. Stopforth
because of problems with stomach acid reflux.

·      
Ms. Worobetz also complained of abdominal pain in the fall
of 2009 and underwent a CT scan which did not reveal the source of her
discomfort.

[15]        
Ms. Worobetz testified that prior to the collision she was in
reasonably good physical condition. While she was not involved in any sports per
se, she walked five days per week and exercised with an elliptical trainer
and treadmill machine.

[16]        
Ms. Worobetz testified that before the Accident she did most of the
shopping, cooking and housework. Ms. Worobetz used to enjoy going to the
movies and going to church with her family. She and her family used to visit
her parents at their home at Shuswap Lake.

[17]        
Ms. Worobetz testified that she and her husband had a good
relationship, with the usual ups and downs that are common in most marriages.
She was an active mother.

Plaintiff’s Symptoms, Injuries and Treatment

[18]        
Immediately after the collision, Ms. Worobetz pulled her vehicle to
the side of the road. She said she was shaken. She called her husband, who
calmed her down. Ms. Worobetz testified that she felt immediate pain in
her neck and upper back, and developed a very bad headache. That evening, Ms. Worobetz
felt pain in her low back.

[19]        
The day after the Accident, Ms. Worobetz went to see her family
doctor, Dr. Stopforth, complaining of pain down the right side of her neck
and spine. On examination, the range of motion of her cervical and lumbar spine
was normal. Dr. Stopforth diagnosed soft tissue injury and recommended
massage therapy, and then physiotherapy, to mobilize her spine. Dr. Stopforth
also prescribed muscle relaxant and pain reliever medication.

[20]        
About four days later, she developed pain in her jaw and hip.

[21]        
Over the course of the next several months, Ms. Worobetz continued
to experience pain in her neck, jaw, shoulder, lower back, hips and buttocks.
She has seen a number of medical specialists and received various treatments
for her symptoms, including the following:

·      
seven massage therapy sessions from February 2, 2010 to March 11,
2010;

·      
42 physiotherapy treatments between March 2010 and November 2010;

·      
an individualized exercise program from June 2010 to September
2010;

·      
seven acupuncture treatments between July and September 2011;

·      
TMJ physiotherapy between September 2013 and October 2103;

·      
32 chiropractic treatments between November 2010 and January 2012;

·      
three chiropractic treatments in April 2011;

·      
Active Release Therapy in April 2011;

·      
use of a dental appliance for a time starting in March 2013;

·      
a home stretching and exercise program;

·      
trigger point injections in the neck area in December 2011;

·      
piriformis muscle injection in January 2012; and

·      
Botox injections in her neck region in October 2012, January
2013, March 2013 and August 2013.

[22]        
Ms. Worobetz has tried numerous medications for relief of her pain
symptoms and symptoms of depression. For pain relief, she has taken Emtec,
Tramadol, Gabapentin and Nortriptyline, as well as non-prescription medication.
She has been taking Cymbalta for symptoms of depression since about May 2014. Ms. Worobetz
had first been prescribed Cymbalta in 2010, but she and her husband made the
decision not to take it.

[23]        
Ms. Worobetz was scheduled to undergo radiofrequency lesioning in
her neck.

[24]        
Despite the medical treatments, at the time of trial, Ms. Worobetz
was still complaining of frequent pain in the right side of her neck, jaw and
face, right shoulder blade and upper back, lower back, hips and buttocks. She
says that there is no real pattern to the pain, although prolonged sitting or
walking aggravates the pain in her low back and hips. She also complains of
fatigue, irritability, depressed mood and difficulty sleeping.

[25]        
Ms. Worobetz testified that the injuries she suffered in the Accident
have impacted most of her activities of daily life. She cannot go on lengthy
walks. She finds it difficult to travel in a car for extended periods of time
and is now nervous when she is in a car. She found it particularly distressing
that she could not shop with her daughter for a graduation gown. She does not
go out in the evenings and does not spend as much time with her friends as she
did before the Accident. She finds it difficult to sit in a movie theatre,
where she cannot easily get up and move around. Her children now are less
likely to invite friends to come over because the noise causes her discomfort.

[26]        
Ms. Worobetz now finds shopping, cooking and housecleaning more
difficult and her husband has had to assume a greater role in those activities.
She testified that there is greater conflict in her relationship with her
husband and their intimacy has suffered. However, she and her husband remain
committed to one another and are confident that their marriage will survive the
strains placed upon it by Ms. Worobetz’s condition.

Review of Plaintiff’s Medical Evidence and Functional Capacity Evaluation

Dr. L. Viljoen

[27]        
Dr. Viljoen is Ms. Worobetz’s current family doctor, having
taken over Ms. Worobetz’s general care from Dr. Stopforth in March
2012, after Dr. Stopforth moved to South Africa. Dr. Viljoen was
qualified as an expert in family medicine.

[28]        
In her report dated February 13, 2014, Dr. Viljoen expressed the
following diagnoses:

·      
chronic soft tissue pain to the right side of the neck face and
shoulder, for which the likely diagnosis is chronic myofascial pain syndrome,
soft tissue pain with trigger points in the muscles or fascia that can give
rise to referred pain in other areas;

·      
soft tissue pain in the lower back and right buttock area, which
is potentially related to, or generated by, the facet joints;

·      
right buttock pain, which is likely related to a piriformis syndrome
(a neuromuscular disorder caused by pressure or irritation of the sciatic nerve
by the piriformis muscle); and

·      
some tenderness over the greater trochanters and iliotibial
bands, raising the possibility of trochanteric bursitis (inflammation of the
trochanteric bursa) with Iliotibial Band Syndrome (inflammation of the iliotibial
band).

[29]        
With regard to prognosis, Dr. Viljoen offered the following
opinion:

It is my opinion that Mrs. Worobetz
will continue to struggle with chronic pain. She has made little to no progress
over the last 4 years in terms of pain experience. During her last appointment
with me in February 2014 she complained of nearly all the same symptoms she
complained of March 2012 when I first saw her. ln the patient’s own words there
has been almost no improvement in pain symptoms over the last 4 years. She has
furthermore continued to struggle with mild mood symptoms throughout the time
she has been my patient. Due to the chronicity of the symptoms and only mild to
moderate benefit from adequate medical therapies, I suspect that she will
continue to have chronic pain. As mentioned before she did have some benefit
with therapies like Botox injections, trigger point injections, a piriformis
muscle injection and did report improvement of strength and general
conditioning with physical therapy. She also had mild improvement in symptoms
since starting Nortriptyline, but not without side effects. Although I do not
believe that the patient will recover to her preinjury level of functioning, I
am hopeful however that she will continue to have some benefit from the
interdisciplinary therapies and treatments rendered at the Jim [Pattison]
Outpatient Pain Clinic and that we will be able to maintain her current level
of functionality.

Dr. A. MacInnes

[30]        
Dr. MacInnes is an expert in the area of anaesthesiology and pain
management. His practice is based at the Jim Pattison Outpatient Care and Surgery
Centre in Surrey, British Columbia.

[31]        
Dr. MacInnes is a treating physician for Ms. Worobetz. Ms. Worobetz
was referred to him in November 2013 for assessment of chronic pain.

[32]        
In his report dated March 14, 2014, Dr. MacInnes offered the
following diagnoses:

The current diagnoses for Ms. Worobetz,
based on my assessment, include; chronic mechanical neck pain, cervicogenic
headache, whiplash-associated disorder (Grade II) and chronic myofascial pain
syndrome. I am unable to comment at this time on Ms. Worobetz’s lower body
symptoms as we have not completed assessment of this area.

[33]        
It is Dr. MacInnes’ opinion that Ms. Worobetz’s current
chronic pain is due to the Accident. He stated:

Prior to the motor vehicle accident on January 21, 2010, Ms. Worobetz
did not have a history of chronic pain. She reported intermittent pain in the
cervical spine region, however, this was self-limiting and did not cause her
disability.

Since the motor vehicle accident Ms. Worobetz
has developed constant painful symptoms throughout the cervical, thoracic and
lumbar spine areas. These symptoms are most severe in the cervical spine and
shoulder girdle region. She reported headaches which were diagnosed previously
as cervicogenic in nature. These symptoms are now chronic and again likely
mechanical or musculoskeletal in cause. Since these symptoms have developed
since the accident, it is my opinion that the motor vehicle accident is most
likely responsible for the current constant, daily symptoms and their
associated disability.

[34]        
Dr. MacInnes offered a possible explanation for Ms. Worobetz’s
chronic and wide spread symptoms that involves a mechanism beyond simply
localized soft-tissue injury. This process is referred to as central
sensitization, which Dr. MacInnes described as follows:

Central sensitization is a phenomena in chronic pain where
the brain and its associated pain pathways respond in a heightened way to both
painful and non-painful stimuli. This change is caused by a modification of
neural connections within the brain and spinal cord, known as neuroplasticity.
Central sensitization has been identified and studied in many chronic pain
conditions including; chronic, whiplash-associated disorders, chronic low back
pain, chronic knee pain and fibromyalgia to name a few.

It is my opinion that Ms. Worobetz’s
heightened response and difficulty with management of her symptoms may be
attributed to this process. I believe that the motor vehicle accident initiated
central sensitization of her nervous system. These changes that have occurred
in her body secondary to the motor vehicle accident are permanent. They will
likely make Ms. Worobetz’s management of her current conditions more
resistant and challenging. These changes may cause a heightened response,
increased symptoms and further disability to future injuries throughout her
body as well.

[35]        
Dr. MacInnes noted that there is an association between mood
disorders and chronic pain, and that patients with untreated mood disorders are
likely to have poorer functional outcomes and quality of life. He is of the
view that the Accident contributed to psychological symptoms displayed by Ms. Worobetz
after the Accident and that it is important that she be further assessed and
treated, if necessary.

[36]        
Dr. MacInnes is of the opinion that Ms. Worobetz suffers
functional impairment as a result of the Accident, and believes that her
current level of disability will probably remain given that her symptoms have
persisted with little improvement for over four years. He is of the view that
it will be difficult for Ms. Worobetz to maintain regular employment, even
in a sedentary job since prolonged sitting aggravates her symptoms.

[37]        
It is Dr. MacInnes’ opinion that Ms. Worobetz has reached
maximum medical improvement and that there is only a low possibility of
complete resolution of her chronic pain symptoms. He believes that it is very
likely that she will have exacerbations of her current pain in the future.

[38]        
In terms of his recommendations for future treatment, Dr. MacInnes
recommends that Ms. Worobetz remain as active as possible and remain as
physically fit as possible. He also recommends monitoring of her psychological
status and treatment as required.

[39]        
Dr. MacInnes is embarking on a trial of radiofrequency lesioning of
medial branch nerves. The decision to undertake this trial was as a result of
some temporary remediation of pain from medial branch blocks. Dr. MacInnes
described the process of radiofrequency lesioning and its potential for
relieving Ms. Worobetz’s symptoms as follows:

Radiofrequency lesioning is a
palliative procedure that uses radiofrequency energy to produce heat and burn
the tissue next to where the needle tip is placed. For this procedure the
needle is placed adjacent to the medial branch nerve. The medial branch nerve
provides sensory information from the facet joint. After completing this
procedure we have essentially stopped the conduction of a sensory (pain) signal
travelling from the joint to spinal cord and brain for interpretation. This is
not a permanent procedure, as the nerve will regenerate over time, typically
after 6-18 months. At that time the procedure can be repeated as needed as part
of a patient’s pain management strategy.

[40]        
Dr. MacInnes thought that this treatment might provide a 70% chance
of 50% improvement in Ms. Worobetz’s neck symptoms.

Dr. M. Sudol

[41]        
Dr. Sudol is a specialist in Physical Medicine and Rehabilitation. Dr. Sudol
initially saw Ms. Worobetz on referral from her family doctor on November
8, 2011, and saw her on a number of occasions thereafter.

[42]        
Over the course of her treatment, Dr. Sudol administered or caused
to be administered a number of trigger point injections (injections of local
freezing) in Ms. Worobetz’s low back, hip, thigh, neck and shoulders. The
injections gave partial and temporary relief only.

[43]        
In her report dated March 10, 2014, Dr. Sudol expressed her opinion
that Ms. Worobetz suffered a musculoligamentous injury to her cervical
spine. She also believes, based on the positive effect of the medial branch
block, that it is likely Ms. Worobetz has a component of mechanical (i.e.
joint) neck pain from the C5-6 level.

[44]        
It is Dr. Sudol’s opinion that Ms. Worobetz will probably
continue to be symptomatic, but she is hopeful that with exercise, use of
ongoing medications and radiofrequency lesioning, Ms. Worobetz will have
some improvement in her pain symptoms. She notes, however, that the treatments
are not curative and only provide temporary improvement.

[45]        
Dr. Sudol is also of the opinion that as a result of the Accident, Ms. Worobetz
probably suffered musculoligamentous injuries through her lumbar area and
pelvic girdle, which is the cause of her ongoing hip and buttocks pain.

[46]        
Dr. Sudol thinks that Ms. Worobetz may have a component of
underlying mechanical back pain from her lumbar spine, which may show mild to
moderate improvement with treatment, such as medial blocks, and with physical
conditioning and ongoing exercise.

[47]        
Dr. Sudol expects Ms. Worobetz to continue to have headaches
but is hopeful that the treatments being undertaken by Dr. MacInnes and Botox
injections thereafter, as required, will help with the ongoing headache
symptoms.

[48]        
Dr. Sudol is of the opinion that because of her ongoing pain
symptoms Ms. Worobetz will continue to have limitations in: prolonged
sitting due to buttock, pelvic and low back pain; prolonged walking due to her
back and hip girdle symptoms; lifting due to her back pain; and any lifting,
carrying or overhead activities, as well as computer work and typing due to her
neck pain.

Dr. C. Watt

[49]        
Dr. Watt is a specialist in Sports Medicine. He provided two
reports, one dated May 4, 2012, and one dated January 7, 2014.

[50]        
In his first report, Dr. Watt identified the following conditions
which, in his opinion, were caused by the Accident:

·      
post-traumatic myofascial pain syndrome (defined as a regional
soft tissue pain syndrome associated with the presence of a trigger point in
the involved muscle);

·      
generalized anxiety disorder;

·      
post-traumatic stress symptoms (although she did not meet the
criteria for a diagnosis of post-traumatic stress disorder);

·      
iliotibial band syndrome; and

·      
piriformis syndrome.

[51]        
Dr. Watt was of the view that Ms. Worobetz had probably
reached maximal medical improvement at the time he gave his first report. He
stated:

It is my opinion that she has
probably reached maximal medical improvement with respect to her pain symptoms.
She has had appropriate and adequate treatment over the past two years since
the motor vehicle accident. To the best of my knowledge she has been compliant
with all aspects of treatment with the possible exception of the prescription
for antidepressant medication. Her pain symptoms have not changed in any
significant way over the past six months despite adherence to a reasonable
exercise program. In view of the chronicity of her symptoms despite an
appropriate rehabilitation program, in my opinion it is more likely than not
that she is going to continue to experience chronic pain involving her neck,
back and hips. Therefore, it is my opinion, that she should be considered to
have permanent impairments of each of these areas resulting in permanent
partial disability.

[52]        
Based upon his review of the medical evidence, his examination, and a
consideration of functional test data obtained by Mr. C. Nguyen, Dr. Watt
offered his opinion that Ms. Worobetz was able to continue working as a
part-time online home support teacher (up to 15 hours per week), but that it
was unlikely that she would be able to work full time (37.5 to 40 hours per
week). It was his opinion that Ms. Worobetz’s future employability was
significantly and adversely affected for any jobs requiring more than light
physical demands for activities such as lifting, pulling, pushing, carrying,
reaching, as well as squatting, stooping, kneeling, crawling and climbing.

[53]        
In his second report, Dr. Watt referred to additional materials
that had been provided to him since his first report and additional treatments
that Ms. Worobetz had undergone. His opinion with respect to the
conditions that Ms. Worobetz was suffering due to the Accident did not
change, nor did his opinion that she was at a maximum level of recovery.

[54]        
Dr. Watt remained of the opinion that Ms. Worobetz was capable
of working as a part-time online home support teacher for up to 20 hours per
week. In his view, she was physically able to work at a teaching position
outside the home on a part-time basis, up to 20 hours per week, preferably if
she worked half-days.

Review of Defendant’s Medical Expert

Dr. M. Grypma

[55]        
The defendant provided an expert report from Dr. Grypma, an
orthopaedic surgeon, who reviewed the medical records relating to Ms. Worobetz
and examined her on March 19, 2014.

[56]        
In his report, Dr. Grypma noted what he believed to be some
non-organic signs and inconsistent findings:

·      
Ms. Worobetz told him that she was pain free with respect to
her neck symptoms for five years prior to the Accident but, in 2008 and 2009,
complained of right sided neck pain;

·      
Ms. Worobetz told him that physiotherapy treatments did not
help, but the records of Fraser Valley Physiotherapy and Rehabilitation Centre
on August 6, 2010, record that Ms. Worobetz reported increased strength
and decreased pain levels;

·      
Dr. Grypma noted inconsistency in Ms. Worobetz’s
tenderness of her hips;

·      
Dr. Grypma noted that Dr. Watt noted that Ms. Worobetz
complained to him of excruciating pain when laying down each evening; however,
laying down takes most of the stress off the back and hips and should result in
less pain than standing and sitting; and

·      
Dr. Sudol described that on March 10, 2014, Ms. Worobetz
had tenderness involving the C4 and C6 paraspinal muscles, as well as C5-C7
centrally and tenderness of a trapezius muscle. However, when Dr. Grypma
examined Ms. Worobetz on March 18, 2014, there was no tenderness to any of
these structures.

[57]        
In the section of his report headed Impressions, Dr. Grypma
provided the following opinions and statements:

According to the clinical records, prior to the motor vehicle
accident Ms. Worobetz had long-standing right-sided neck discomfort, which
radiates up into the jaw and into the right ear. This was documented by Dr. Grills
on January 8, 2008. I found Ms. Worobetz’s current symptoms today are
quite similar to the symptoms that she had on January 8, 2008. Therefore, it
would be wise to consult an endocrinologist to see if it is possible that her
current symptoms could be due to thyroiditis and not due to an injury.
Clarification will be necessary.

On examination, today, Ms. Worobetz demonstrates good
level of function with some limitations of neck extension and right rotation.
However, when Ms. Worobetz saw Dr. Sudol there was normal range of
motion to the neck on November 8, 2011. This would suggest that Ms. Worobetz
may have developed degenerative changes or osteoarthritis, which is limiting
her current range of motion. However, the early records following the accident
including January 22, 2010, February 2, 2010, February [sic] 2010 all indicated
normal range of motion. With normal range of motion, this would suggest that a
significant injury is unlikely.

The physical examination, to the shoulders today was normal.
Therefore, an injury to the shoulders is very unlikely.

Regarding the lower back pain, Ms. Worobetz
likely sustained a Grade 1 soft-tissue injury to her lower back secondary to
the motor vehicle accident.

[58]        
Dr. Grypma stated that he could find no evidence of any structural
injury. In his opinion, a musculoligamentous injury is highly unlikely. He
stated that a musculoligamentous injury would result in severe immediate pain
requiring an immediate emergency room visit. He was also of the opinion that an
injury to the right buttock area is very unlikely since there was no onset of
pain until about six weeks after the Accident.

[59]        
Dr. Grypma noted that Ms. Worobetz has had thorough
investigations of her neck, upper back, lower back and pelvis, which failed to
show abnormal pathology. He went on to state:

…However, the facet joints all
appear to be normal. Therefore, I am not clear how the lower back pain is due
to facet joints other than the fact that Ms. Worobetz may be developing
osteoarthritis. However, in the absence of injury to the facet joints,
osteoarthritis from this motor vehicle accident is highly unlikely.

[60]        
Dr. Grypma admitted that the concept of central sensitization,
described by Dr. MacInnes, is outside of his area of expertise.

[61]        
In summary, Dr. Grypma’s opinion was that Ms. Worobetz’s
symptoms of neck and upper back pain are not likely due to the Accident, and
are more likely due to deconditioning secondary to inactivity.

[62]        
Likewise, he was of the view that Ms. Worobetz’s symptoms of
enduring back pain and buttock pain are not likely due to the Accident and are
more likely due to:

(a)      deconditioning;

(b)      being overweight;

(c)      poor posture; and/or

(d)      degenerative changes or
osteoarthritis.

[63]        
As far as any ongoing treatment is concerned, Dr. Grypma eschews
any passive treatment and recommended exercise. He said that Ms. Worobetz
is severely deconditioned and the more activity she does, the better she will
be.

[64]        
Dr. Grypma opined that Ms. Worobetz had a period of total
disability due to the Accident of four to six weeks, with partial disability for
another two to four weeks. He states that:

In the absence of structural
damages, disability is unlikely. Ms. Worobetz’s perceived disability
appears to be disproportionate to her physical findings.

Plaintiff’s other evidence relating to her condition

Mr. Worobetz

[65]        
Mr. Worobetz was 50 years old at the time of trial and is a
computer programmer, employed by the City of Chilliwack. He will be eligible
for a pension when he is 65 years old, in 2029.

[66]        
Mr. Worobetz gave the following evidence of the changes that he has
noticed in his wife since the Accident. She was always a driven, hard-working
person, and her energy level and physical ability was quite strong. Since the Accident,
she does less housework and less exercise, and tends to go to bed earlier. She
uses medications and topical medications for pain and does stretching exercises,
but without sustained relief. She is less able to be active and involved with
the children, which has affected their relationship. He said that she is less
able to handle situations and her mood is generally low. Mr. Worobetz has
had to take on more of the household responsibilities such as shopping, cooking
and washing clothes.

[67]        
Mr. Worobetz testified that he and his wife now only go for short
walks and she is fatigued by the end of the walk. Mr. Worobetz used to
encourage his wife to be more active but is now more likely to suggest rest to
ease the pain because exercise did not work. He said that when Ms. Worobetz
completed the exercise program with the kinesiologist, she tried to do her
exercises. She is not lazy. He thinks she is “maxed out”.

[68]        
Mr. Worobetz testified that their plan had been that Ms. Worobetz
would return to full time work when the children got older. He said it is
difficult living on his salary alone.

[69]        
Mr. Worobetz was not in favour of his wife using Cymbalta because
of concern that it affects the brain. He viewed it as a last resort. He wanted
to try other things, to see if some more natural treatment might work, before
using the drug.

[70]        
Mr. Worobetz confirmed that the incident following the birth of
their youngest child in 2002, when Ms. Worobetz developed pain in her
hands and feet, lasted a few months, but resolved and was not a problem at the
time of the Accident.

[71]        
In cross-examination, Mr. Worobetz agreed that leading up to the Accident
Ms. Worobetz was struggling with the home schooling and with the family.

Ms. Santschi

[72]        
Ms. Santschi is the mother of three children and a neighbour to Ms. Worobetz.
She became familiar with home schooling through Ms. Worobetz and decided
to home school her own children. Ms. Worobetz is her support teacher and
they became friends.

[73]        
Ms. Santschi said that before the Accident, Ms. Worobetz was
outgoing, happy, sociable and involved in home school activities. Now, she
mainly talks about her discomfort and does not appear to be a very happy
person. I think it was with some difficulty, given their friendship, that Ms. Santschi
testified that Ms. Worobetz is no longer a good support teacher. She is
less likely to call on her for advice. She said she planned to ask for a
different support teacher, although Ms. Worobetz was not aware of this
before Ms. Santschi testified at trial.

[74]        
Ms. Santschi testified she has not seen much of Ms. Worobetz
in the past couple of years on a social basis but, about a month prior to trial,
she went to a movie with her and noticed that Ms. Worobetz was
uncomfortable sitting in the theatre.

[75]        
Ms. Santschi testified that she finds it depressing to be around Ms. Worobetz
because she is very negative, cries often and complaints a great deal about her
neck and back.

Mrs. Wedgewood

[76]        
Mrs. Wedgewood is Ms. Worobetz’s mother. She testified about
the changes she has observed in Ms. Worobetz since the Accident. She
described how Ms. Worobetz used to drive with her children to her home
near Shuswap Lake and spend five to seven days at a time. While there, Ms. Worobetz
would hike, walk and jog. She would help around the house and before leaving
would vacuum the house, clean the bathrooms and do the laundry.

[77]        
Mrs. Wedgewood said that her daughter can now barely walk up the
stairs. She often sits with a hot pad or a cold pack and appears to be in pain
all the time. Mrs. Wedgewood said that her daughter is more impatient and
has lost her vibrancy. She described her walking like an “old woman”.

Analysis

Causation and Non-pecuniary Damages

[78]        
The defendant relies heavily on the opinions of Dr. Grypma to
submit that Ms. Worobetz suffered, at most, only a minor soft tissue
injury to her neck and back. The defendant submits that Ms. Worobetz
should have recovered by October 2010, a month after she was discharged from
the Individualized Exercise Program at Fraser Valley Physiotherapy &
Rehabilitation Centre that she attended. The defendant refers to the evidence
and report of Mr. Derksen, a kinesiologist who saw Ms. Worobetz at
the time of her discharge from the program. In his report under the heading,
Subjective Findings, Mr. Derksen noted:

Ms. Worobetz reports that she has noticed improvements
in her general level of fitness conditioning, strength, and flexibility since
initiating the program. She explains that she has experienced an increase in
right shoulder symptoms over the last 2 weeks that are unrelated to her
original symptoms. She states that her physiotherapist diagnosed her with a
right shoulder “subluxation” with an insidious onset. This increase in right
shoulder symptoms over the last 2 weeks has limited her progress.

Currently, Ms. Worobetz is reporting neck, jaw, low back
and upper back symptoms. On the VAS, she rates these symptoms at 3-4.5/10
(unchanged from intake) and describes them as periodic. Ms. Worobetz
explains that her symptoms improve after exercising but when at rest she states
that her symptoms overall are unchanged from intake. She states that she has
frequent headaches in the back of her head. She relays that her neck range of
motion has increased, her core strength has improved, and her cardiovascular
conditioning has improved. She explains that she has been wearing a lumbar
support belt for the past week which was recommended to her by her
physiotherapist. In order to gain relief, Ms. Worobetz reports the use of
pain medication.

Overall, Ms. Worobetz enjoyed attending the program and
will be continuing with her exercise program.

[79]        
Mr. Derksen also reported that active range of motion tests of Ms. Worobetz’s
cervical spine, shoulder girdle and thoracic spine were within normal limits
and pain free. Active range of motion tests for her lumbar spine were within
“expected limits” with symptoms reported at the end range of flexion and left
side rotation.

[80]        
The defendant submits that given the lack of objective physical evidence
of an ongoing injury, Ms. Worobetz has not proven that her ongoing
subjective symptoms are caused by the Accident. The defendant says the only
connection between the ongoing complaints and the Accident is temporal, yet the
objective physical examinations fail to reveal anything wrong with Ms. Worobetz
physically after the Accident. The defendant adopts the opinion of Dr. Grypma
that Ms. Worobetz’s enduring pain is likely due to deconditioning
secondary to inactivity. The defendant says this is borne out by the result of
the Individualized Exercise Program – upon completion of the program, Ms. Worobetz
was stronger, more conditioned and feeling better, but after she stopped
attending the program and did not fully maintain her exercises, her
conditioning got worse and her complaints increased. The defendant submits that
Ms. Worobetz would have continued to recover if she had been diligent with
the exercise program at home, which she was not, and had regularly attended at
a gym, which she did not.

[81]        
The defendant submits that the following caution given by McEachern C.J.
in Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) is apt:

[5]        In Butler v. Blaylock, decided 7^th
October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s
argument that a defendant is often at the mercy of a plaintiff in actions for
damages for personal injuries because complaints of pain cannot easily be
disproved. I then said:

I am not stating any new principle when I say that the court
should be exceedingly careful when there is little or no objective evidence of
continuing injury and when complaints of pain persist for long periods
extending beyond the normal or usual recovery.

[82]        
The defendant also refers to White v. Stonestreet, 2006 BCSC 801,
where the court considered the reliability of a temporal connection in finding
causation. At paras. 74-75, Ehrcke J. wrote:

[74]      The inference from a temporal sequence to a causal
connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name.
It is sometimes referred to as the fallacy of post hoc ergo propter hoc:
“after this therefore because of this.”

[75]      In searching for
causes, a temporal connection is sometimes the only thing to go on. But if a
mere temporal connection is going to form the basis for a conclusion about the
cause of an event, then it is important to examine that temporal connection
carefully. Just how close are the events in time? Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?

[83]        
The defendant also submits that Ms. Worobetz failed to follow
medical advice to treat her symptoms of depression by using Cymbalta and
attending counseling and that either this failure broke the chain of causation
between the Accident and Ms. Worobetz’s chronic pain or, alternatively,
she failed to mitigate her damages, which would be less if she had followed the
medical advice.

[84]        
Dr. Stopforth suggested as early as August 2010 that Ms. Worobetz
take Cymbalta because of the symptoms of depression that she was experiencing.
He also suggested that she undertake counselling. However, Ms. Worobetz
was reluctant to follow that advice because her husband was against it, due to
the stigma that might be attached to seeking treatment for psychological
problems.

[85]        
The defendant suggests that Ms. Worobetz’s symptoms of pain in her
neck are due to her hypothyroidism. However, Ms. Worobetz testified that
the pain that she experienced in her neck around the time she was diagnosed
with her thyroid condition was different in nature from that which she
experienced following the Accident: it was in the front of her neck, as opposed
to the side and back. I accept that evidence. I am not satisfied that Ms. Worobetz’s
hypothyroidism was not properly managed with medication and I am not satisfied that
the neck pain experienced by her following the Accident was caused by an
imbalance of her thyroid.

[86]        
Ms. Worobetz submits that the evidence, on the whole, proves on a
balance of probabilities that her ongoing symptoms and disabilities were caused
by the Accident. She refers to Wallman v. John Doe, 2014 BCSC 79, in
which the court summarized the “but for” test of causation at paras.438-439 as
follows:

[438]    The plaintiff must show on the balance of
probabilities that he was injured by and his injury would not have occurred but
for the defendants’ negligence. The “but for” test must be applied in a robust
common sense fashion. There is no need for scientific evidence of the precise
contribution the defendants’ negligence made to the injury: Clements v.
Clements [2012] 2 SCR 181 at paras 8-9.

[439]    Causation is to be
decided on the whole of the evidence: Hoy v. Harvey, 2012 BCSC 1076.
Here, as in many personal injury cases, the evidence of injury consists of the
subjective history of the plaintiff, the collateral evidence of his wife,
friends and former co-workers, as well as the findings and opinions of several
medical and engineering experts.

[87]        
Ms. Worobetz submits that but for the collision of January 21,
2010, she would not be in the condition that she is in today.

[88]        
I accept Ms. Worobetz’s submission and reject that of the defendant
for a number of reasons.

[89]        
I am satisfied that Ms. Worobetz was generally in good health at
the time of the Accident and was not suffering from the symptoms which she has experienced
since the Accident. While Ms. Worobetz did suffer from neck pain which
radiated into her face for a period time in 2007, she described it as a pain in
the front part of her neck and of a different kind than the neck pain she
experienced following the Accident. I am satisfied the neck and face pain that
she experienced prior to the Accident was probably the result of her thyroid
condition, which has been stabilized and maintained with Synthroid. She had not
experienced neck pain for a considerable period of time prior to the Accident.

[90]        
The imaging studies of Ms. Worobetz’s low back did show some
evidence of minimal degenerative changes which may have predated the Accident,
but she had not been experiencing any low back pain prior to the Accident. Dr. Grypma
suggests that Ms. Worobetz may be developing osteoarthritis. However, given
the mild degenerative changes and the onset of quite severe low back and
buttocks pain quite soon after the Accident, I question that possible
explanation.

[91]        
Dr. Grypma’s opinion appears to be based substantially on two
things: first, the lack of evidence of any structural injury; and
second, her lack of conditioning and mild obesity. Dr. Grypma suggests
that if Ms. Worobetz had suffered an injury other than a mild soft tissue
injury, she would have experienced immediate pain of such intensity that she
would have sought out immediate attention at an emergency room. I am not
persuaded, however, that a person need sustain a serious structural injury in
order to develop serious and chronic pain following a trauma such as an Accident.
There are simply too many cases where persons have been found to have developed
chronic back pain following a motor vehicle accident in the absence of objective
evidence of structural damage to accept Dr. Grypma’s bald proposition.

[92]        
Dr. Grypma’s opinion that Ms. Worobetz suffered only a mild
injury that would have healed completely within a few months is contradicted by
the evidence of Ms. Worobetz concerning her symptoms and how they affected
her functioning, which is supported by the evidence of a number of other specialists
who have treated Ms. Worobetz and followed her progress over a long period
of time.

[93]        
In my opinion, it is a relevant factor that Ms. Worobetz developed
her pain complaints very soon after the Accident and that they progressed, with
little change, until the present time. I accept that a mere temporal connection
between an accident and the development of pain is not determinative by itself
that the Accident caused the pain, but it is, nonetheless, a relevant factor. I
also accept that the court must be cautious in relying on the subjective
complaints of a patient, where there is no other objective evidence to support
those complaints.

[94]        
However, in this case, there is more evidence than simply subjective
complaints and a temporal connection between those complaints and the Accident.
I accept that Ms. Worobetz’s symptoms of pain are real and honestly felt.
The manner in which they have impacted her functioning is supported by evidence
of her husband, mother, co-worker and the woman for whom Ms. Worobetz acts
as a support teacher. There is a strong body of expert opinion evidence in this
case from specialists in a number of fields to support a finding that Ms. Worobetz’s
ongoing pain was caused by the Accident. Those specialists have spent a great
deal of time examining Ms. Worobetz, investigating her complaints and
providing treatment. In my respectful view, their evidence is to be preferred
over that of Dr. Grypma, who conducted a single, rather brief examination
and a review of her medical records.

[95]        
Dr. MacInnes, in particular, puts forward an explanation as to how Ms. Worobetz
could have developed the pain at various sites in her body as a result of a
rather modest soft tissue injury that one would ordinarily think would resolve
quite quickly: central sensitization. Dr. Grypma admits that he is not
qualified to comment on that topic, so he is not able to agree or disagree that
it is a reasonable explanation for Ms. Worobetz’s continuing symptoms.

[96]        
In summary, I find that but for the Accident, Ms. Worobetz would
not be suffering the ongoing symptoms that she feels and her daily activities
of life and ability to work would not be affected the way they are. She is less
able to enjoy the social and recreational pursuits that she used to enjoy. She
is less able to carry out the functions of a mother and wife, compared to her
life before the Accident. She no longer has the same ability to work at her
chosen career as a teacher because of the Accident.

[97]        
Based on the evidence as a whole, I am satisfied that it is unlikely
that Ms. Worobetz will recover completely and become symptom-free and
fully functioning. Having said that, it seems to be universally accepted by all
of the doctors that it is important that Ms. Worobetz become and remain as
physically active as possible. She will do her body no harm and it is certainly
possible that her overall pain level will be lessened or, at least will become
more tolerable, if she attains optimum fitness.

[98]        
Ms. Worobetz did make some gains in her general feeling of well-being
when she was actively involved in the formal exercise program. When she
completed the formal program, she continued with some of the exercises, but not
all of them and not to the degree she had participated while in the program. In
my opinion, it is understandable that Ms. Worobetz and her husband have
been discouraged by the fact that none of the many treatment modalities
attempted have led to a “cure” and that she has not been as active as she
should be. But, I am not satisfied that she has failed to mitigate her loss to
any significant degree. No one, other than Dr. Grypma, suggests that
exercise will provide a cure.

[99]        
Similarly, Ms. Worobetz resisted taking the anti-depressant
medication, Cymbalta, for some time before she recently relented and began taking
it. She and her husband were concerned about possible side effects and the
stigma attached to anti-depressants. It is not clear yet whether that
medication is having any positive effect. In any event, it will not provide a
“cure”. In my view, the defendant has not proven a failure to mitigate by
resisting taking the Cymbalta.

[100]     I turn
then to consider the quantum of damages that will provide proper compensation
for Ms. Worobetz’s pain, suffering and loss of enjoyment, and loss of
amenities. It is trite law that while other cases may provide some guidance,
each award must be made with reference to the particular circumstances of the
case. The following non-exhaustive list of the factors that the court may
consider in determining the amount of the award was given in Hartnett v.
Leischner & ICBC, 2008 BCSC 1589 at para. 81:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of
pain;

(d)      disability;

(e)      emotional suffering;

(f)       loss or impairment of
life;

(g)      impairment of family,
marital and social relationships;

(h)      impairment of physical and
mental abilities;

(i)       loss of lifestyle; and

(j)       the
plaintiff’s stoicism (as a factor that should not, generally speaking, penalize
the plaintiff).

[101]     Ms. Worobetz
seeks an award of $100,000 under this head and refers to the following cases: Freeland-Clayton
v. Murphy, [1997] B.C.J. No. 1705 (S.C.) ($110,000 = $152,000 in 2013
dollars); Neumann v. Eskoy, 2010 BCSC 1275 ($90,000 = $97,000 in 2014
dollars); Paller v. Regan, 2013 BCSC1672 ($85,000 = $86,300 in 2014
dollars); Mirisklavos v. Manhas, [1996] B.C.J. No 2038 (S.C.) ($85,000 =
$120,000 in 2014 dollars); Cebula v. Smith, 2013 BCSC 1939 (S.C.) ($150,000).

[102]     The
defendant submits that an appropriate award of non-pecuniary damages would be
in the lower end of the range of $25,000 to $72,000. This range is based upon
the opinion of Dr. Grypma and the following cases: Fancello v. Meketich,
[1996] B.C.J. No. 1451 (S.C.) ($35,000 = $49,000 in 2014 dollars); Harrison
v. Ashenhurst, [1993] B.C.J. 2609 (S.C.) ($50,000 = $73,000 in 2014 dollars);
McCulloch v. Isaac, 2013 BCSC 1319 ($25,000).

[103]     I have
considered the cases put forward by counsel but see little point in reviewing
them in detail in these reasons, given the individual nature of the assessment
of non-pecuniary loss. Suffice it to say that the cases cited by the defendant,
deal with situations where the degree of pain, suffering and impact on the
plaintiff’s life were considerably less than in the present case. That is, of
course, in line with the opinion of Dr. Grypma, but I have rejected that
opinion and preferred the expert evidence tendered by Ms. Worobetz. On the
other hand, the cases cited by Ms. Worobetz represent situations of
greater impairment and disability.

[104]     In all of
the circumstances, I conclude that an award of $90,000 would provide fair
compensation for Ms. Worobetz under this head of damage.

Past Loss of Earning Capacity

Legal Principles

[105]    
In Rowe v. Bobell Express Ltd., 2005 BCCA 141, Smith J.A. defined
past income loss at para. 30 as follows:

[30]      Thus, in my view, a
claim for what is often described as “past loss of income” is actually a claim
for loss of earning capacity; that is, a claim for the loss of the value of the
work that the injured plaintiff would have performed but was unable to perform
because of the injury.

[106]    
In Hardychuk v. Johnstone, 2012 BCSC 1359, the stated the test
for assessing the value of past loss of earning capacity at paras. 175 –
178 as follows:

[175]    An award of damages for loss of earning capacity,
whether in the past or the future, represents compensation for a pecuniary
loss. The goal is to restore the plaintiff to the position he or she would have
occupied but for the defendant’s negligence. Accordingly, compensation for past
loss of earning capacity is to be based on what the plaintiff would have, not
could have, earned but for the accident-related injuries: Rowe v. Bobell
Express Ltd., 2005 BCCA 141; M.B. v. British Columbia, 2003 SCC 53; Gregory
v. Insurance Corporation of British Columbia, 2011 BCCA 144.

[177]    The burden of proof of actual past events is a
balance of probabilities. An assessment of loss of both past and future earning
capacity, however, involves consideration of hypothetical, not actual, events.
The plaintiff is not required to prove hypothetical events on a balance of
probabilities. Rather, the future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation: Athey; Falati v. Smith, 2010 BCSC 465; aff’d 2011 BCCA
45.

[178]    As with the loss of
future earning capacity, the court’s task is to assess damages for past loss of
capacity rather than to calculate them mathematically. Allowances for
contingencies should be made and the award must be fair and reasonable taking
into account all of the circumstances: Falati.

[107]     The
plaintiff must, therefore, prove on a balance of probabilities, that the
defendant’s negligence caused or contributed to a loss of opportunity to earn
income, but when assessing the quantum of that loss, the plaintiff need only
establish that there was a real and substantial possibility of a hypothetical
past event occurring but for the injury.

[108]     I am
satisfied on the evidence that the Accident impaired Ms. Worobetz’s
ability to earn income as a teacher. The injuries rendered her less capable of
working as much at her career as she would have been able to work but for the Accident.

[109]     Ms. Worobetz
testified that she has not been able to take on as many students as planned
because of her symptoms. She finds it particularly difficult working at a
computer to do report cards, even though she has an ergonomic desk. She said
that she has turned down work as a supervising teacher.

[110]     It is
clear that the assessment of a loss of capacity is far from an exact science.
On the other hand, it has to be based on more than mere arbitrary guesswork.
The court must consider all the evidence and, as best as it can, weigh positive
and negative contingencies to arrive at a result that is fair to both parties.

Ms. Worobetz’s Actual Employment History Prior to Trial

[111]     In
assessing Ms. Worobetz’s past loss of earning capacity, it is relevant to
consider her actual employment history before the Accident and up to the date
of the trial.

[112]     Ms. Worobetz
graduated from high school in 1987 in a French Immersion program. She went on
to study at the University of Victoria, where, in 1991, she obtained her B.A.
with a major in French. It was there that she met and married her husband.
After graduating, Ms. Worobetz and her husband went to France for a period
of time, where Ms. Worobetz taught English in a French high school. Ms. Worobetz
obtained her teaching certificate from Simon Fraser University in 1994. She and
her husband then spent approximately two years in Japan where Ms. Worobetz
taught English.

[113]     In 1996, Ms. Worobetz
and her husband returned to British Columbia. Their first child was born in
October 1996. Ms. Worobetz made the decision not to seek a teaching
position, but remained at home to care for their child. She also did some
French tutoring. In 1998, Ms. Worobetz gave birth to her second child.

[114]     In 2001, Ms. Worobetz
began home-schooling when her youngest child was in kindergarten. She continued
home schooling until September 2002, when she took time off because of the
neuropathy. Her husband took over the home schooling. By September 2003, Ms. Worobetz
was home schooling two children and by September 2007, she was home schooling
all three of her children. As a home school teacher, Ms. Worobetz worked
with a support teacher, who provided reviewed work plans, assessed the
performance of the children and wrote report cards to comply with the Ministry
of Education requirements.

[115]     The situation
changed in September 2008 when Ms. Worobetz began to function as both the
home school teacher for her three children, as well as a home school support
teacher, through Heritage Christian Online School (HCOS). Ms. Worobetz was
paid approximately $1,200 per year, per child, for the children she supervised,
including her own children.

[116]     Ms. Worobetz’s
eldest child began attending a conventional high school for the 2010/2011
school year. This left Ms. Worobetz home schooling her two youngest
children, as well as being the support teacher for those two children. That was
her situation at the time of the Accident.

[117]     Ms. Worobetz’s
middle child was enrolled in a public school in 2011. She took on the role of support
teacher for two additional children for the 2011/2012 school year.

[118]     During the
2012/2013 school year, Ms. Worobetz continued to home school her youngest
child and acted as the support teacher for three other children, all of whom
were the children of her next door neighbour. That situation continued for the
2013/2014 school year.

[119]    
Ms. Worobetz’s earnings in the seven years prior to trial were as
follows:

Ms. Worobetz’s Stated Intentions but for the Accident

[120]     Ms. Worobetz
testified that her intention had been to take on a greater number of students
as support teacher through HCOS, as she ceased home schooling her own children.
She testified that her plan was to supervise five in total (including her two
youngest children) starting in September 2010, when her eldest moved to a
conventional school and 10 in total (including her youngest child) in 2011 when
her middle child went to a conventional school. She said that 10 students was
an important demarcation line because it enables a supervising teacher at HCOS
to receive benefits. Ms. Worobetz testified that in the years 2012/2013
and 2013/2014, it had been her intention to be a supervising teacher for 15
students in total (including her youngest child).

[121]     Ms. Worobetz
testified that her intention, once the youngest child moved on to middle school
in 2015, was to move into the classroom as an elementary school teacher in a
French immersion program, where she hoped to work until she was 65 or 67.

[122]     Ms. Worobetz
provided evidence of her estimated past loss of earning capacity through an
economist, Mr. C. Peever, based on the foregoing hypothetical events and
the following additional facts and assumptions:

(a)      Ms. Worobetz
would have earned income at the following “per student” rates:

·      
$1,245 in 2009/2010;

·      
$1,245 in 2010/2011;

·      
$1,270 in 2011/2012;

·      
$1,270 in 2013/2013; and

·      
$1,270 in 2013/2014.

(b)      In
accordance with her contracts, Ms. Worobetz’s pay was reduced by $480 in the
2009/2010 school year for two online courses taken and was reduced by $245 in
the 2010/2012 school year for one online course taken. In the 2013/2014 school
year, Ms. Worobetz’s pay was reduced by $500 for two online courses taken
and by $50 for one “Rosetta Stone student”.

[123]     Using
these facts and assumptions, and Ms. Worobetz’s actual earnings, Mr. Peever
estimated Ms. Worobetz’s gross past loss of earning capacity to the date
of trial to be approximately $40,321. After accounting for income tax, Mr. Peever
estimated the past loss to be $36,246.

[124]     In
assessing the quantum of the past loss of earning capacity, I must assess the
likelihood that Ms. Worobetz would have taken the amount of additional
work as a support teacher that is assumed, if she had not been involved in the Accident.

[125]    
In the years prior to the Accident, there were times that Ms. Worobetz
struggled with some health issues and emotionally. In 2007 and 2008, she had a
period of neck pain that was apparently associated with her hypothyroidism. In
2007, she had complaints of pain under her breast, which was investigated but
not diagnosed. In 2009, she suffered from epigastric pain. There were times
that Ms. Worobetz found her role as mother and teacher very demanding and
difficult. In an article she authored in December 2009, she wrote:

I want to fix my kids, and once I fix them I want them to
stay fixed.

Don’t they realize that life would run so much more smoothly?
Our school boxes would get checked according to schedule. We wouldn’t have to
fight the same battles over and over again about attitude, clothes, friends,
treating each other with kindness and respect… Mom would be at peace, maybe
even breaking out in smiles a little more often, and not speaking with that
strained, stressed voice. Joy would be the reigning emotion in the household.

This is our ninth year of
homeschooling, and I can honestly say that it has been the most difficult year
yet for me. We’ve had other difficult years, such as the one where I got so
sick after my youngest was born that I couldn’t walk or use my hands properly
for months and my husband had to leave his job to take over my work in the
home. This year seems so much harder, though, and maybe it’s just because I’m
in the midst of it and can’t see very far past my own headspace.

[126]     I am
satisfied that Ms. Worobetz’s capacity to work as a teacher was impaired
by the Accident and that there is a real and substantial possibility that, if
she had not been injured in the Accident, Ms. Worobetz would have taken on
more students in a supervisory role as her own children moved into conventional
schooling. However, I am doubtful that she would have increased her load to as
many as 15 students. I think it far more likely that, once she had 10 students
and became entitled to benefits, she would have continued at that number before
making a decision whether to return to the classroom or remain as a part-time
working mother, enjoying the benefit that comes with part-time work, while also
bringing in a secondary income for her family.

[127]     Thus, it
is my view that a more reasonable assessment of Ms. Worobetz’s past loss
of opportunity can be based on the premise that she may well have supervised 10
students in 2012/2013 and 2013/2014.

[128]     I would,
therefore, reduce the “without accident earnings” for those years by a third.
Based on Ms. Worobetz’s contract for 2012/2013, I estimate that her
monthly salary (over 12 months) would have been approximately $1,048 with 10
students, compared to approximately $1,572 with 15 students, a difference of
$524 per month. I would, therefore, reduce Mr. Peever’s gross estimate
over the period from September 2012 to June 2014 (22 months) by $11,528 to
$28,793. If I reduce that amount for income tax in the same proportion as Mr. Peever
reduced his estimated loss, the net past loss of earning capacity is estimated
at approximately $26,000.

[129]     In my
opinion, an award of that amount will provide fair compensation for Ms. Worobetz’s
past loss of income capacity.

Future Loss of Earning Capacity

[130]    
In Hardychuk, Dickson J. set out the principles to be applied in
considering a claim for loss of future earning capacity at paras. 192 –
197:

[192]  A claim for loss of future earning capacity
raises two key questions: 1) has the plaintiff’s earning capacity been impaired
by his or her injuries; and, if so 2) what compensation should be awarded for
the resulting financial harm that will accrue over time? The assessment of loss
must be based on the evidence, and not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to case: Brown
v. Golaiy (1985), 26 B.C.L.R. (3d) 353; Pallos v. Insurance Corp. of
British Columbia (1995), 100 B.C.L.R. (2d) 260; Pett v. Pett, 2009
BCCA 232.

[193]  The assessment of damages is a matter of
judgment, not calculation: Rosvold v. Dunlop, 2001 BCCA 1.

[194] Insofar as is possible, the plaintiff should be
put in the position he or she would have been in, from a work life perspective,
but for the injuries caused by the defendant’s negligence. Ongoing symptoms
alone do not mandate an award for loss of earning capacity. Rather, the
essential task of the Court is to compare the likely future of the plaintiff’s
working life if the accident had not happened with the plaintiff’s likely
future working life after its occurrence: Lines v. W & D Logging Co.
Ltd., 2009 BCCA 106; Moore v. Cabral et. al., 2006 BCSC 920; Gregory
v. Insurance Corp. of British Columbia, 2011 BCCA 144.

[195]  There are two possible approaches to
assessment of loss of future earning capacity: the “earnings approach” from Pallos;
and the “capital asset approach” in Brown. Both approaches are correct
and will be more or less appropriate depending on whether the loss in question
can be quantified in a measurable way: Perren v. Lalari, 2010 BCCA 140.

[196]    The earnings approach involves a form of
math-oriented methodology such as i) postulating a minimum annual income loss
for the plaintiff’s remaining years of work, multiplying the annual projected
loss by the number of remaining years and calculating a present value or ii)
awarding the plaintiff’s entire annual income for a year or two: Pallos;
Gilbert v. Bottle, 2011 BCSC 1389.

[197]  The capital asset
approach involves considering factors such as i) whether the plaintiff has been
rendered less capable overall of earning income from all types of employment;
ii) is less marketable or attractive as a potential employee; iii) has lost the
ability to take advantage of all job opportunities that might otherwise have
been open; and iv) is less valuable to herself as a person capable of earning
income in a competitive labour market: Brown; Gilbert.

[131]    
Ms. Worobetz advances her claim for loss of earning capacity on the
following basis, as set out in her written submissions:

Mrs. Worobetz planned to homeschool her children to
middle school, at which point her children would attend at either a public or
private school. Mrs. Worobetz also planned to take on more students in her
role as a support teacher with HCOS. Mrs. Worobetz’s youngest child,
Johnathan, will enter middle school in the 2015/16 school year. At the time of
the Collision, Mrs. Worobetz intended to gradually increase the number of
students up to a maximum of 15 students. At HCOS the maximum number of students
per support teacher is approximately 40. Once Johnathan entered middle school, Mrs. Worobetz
planned to re-enter the classroom environment as a French or French immersion
teacher, in either the private or public school system.

Due to her injuries incurred in
the Collision, Mrs. Worobetz was unable to attain her employment goals.
She currently is a support teacher for 4 children, including Johnathan who she
continues to home school. Her injuries make it difficult for her to take on
more than four students and it is not anticipated that she will ever be able to
return to the role of a classroom teacher.

[132]     As I said
earlier, I accept that Ms. Worobetz’s capacity to work as a teacher was
impaired by the Accident. In assessing the loss of the future capacity, however,
I do not accept the assumptions that she puts forward.

[133]     First, I
am of the view that Ms. Worobetz would likely have retired at age 60
rather than working to age 66, even if she had not been involved in the Accident.
By that time, her husband likely will have retired, the children will be out of
school and I would expect that it is more likely that she will want to spend
her senior years with her husband rather than working. She and her husband live
a modest lifestyle and it does not appear to me that she will be forced to work
beyond age 60.

[134]     Second,
based on the medical evidence, I am not persuaded that Ms. Worobetz is
precluded from supervising 10 students per year. The maximum student load that
her employer permits an at-home teacher to supervise is 40 students. Ten
students per year clearly is only a part-time workload, which Dr. Watt
says Ms. Worobetz is capable of maintaining (up to 15 hours per week). Ms. Taekema,
who also works for HCOS, testified that she has 28 students whom she
supervises. She testified that she spends approximately 20 to 30 hours per
week, or about an hour per week per student, in her role as a teacher
supervisor plus additional time each term when report cards are being prepared
(three to four hours per student) and at the beginning of each year reviewing
student learning plans (two to three hours per student). Ms. Gould, who is
also a support teacher, testified that she has 14 students, including three of
her own, that she home schools. She testified that there are times that she
works five to 10 hours per week, except during report card time when she works
approximately 30 hours per week.

[135]     In my
view, Ms. Worobetz can likely manage the work load required to supervise 10
students, given that she will be able to space the work out during the day,
with breaks.

[136]     The third
assumption that I do not accept is that Ms. Worobetz’s stated intention to
become a teacher in either a private or public school is a certainty, although
I accept that there is a real and substantial possibility that she would have
done so.

[137]     Ms. Karradice,
who is the Director of Human Resources with the Chilliwack School District
(“District”), testified that French teachers are in demand. She testified that
there are approximately nine or 10 French immersion teachers in the District
and approximately 10 teachers who teach French as a second language. She
testified that French teachers are in high demand and expects to hire approximately
two teachers per year, over the next five or six years. For the last two
postings, there were approximately eight applicants for each posting. The key
criteria for selection for teaching an immersion class in the early grades are:
first, experience at the early primary level; and second, French language
fluency.

[138]     Ms. Karradice
also testified that the average retirement age for teachers in British Columbia
is 58.

[139]     Ms. Worobetz
has French fluency and experience as a home-school supervisor, but she has little
classroom experience. In seeking a position, she would likely have competed
with candidates with more experience.

[140]     I have
taken these various contingencies into consideration and, using the present
values for future loss of income provided by Mr. Peever, made an
assessment of Ms. Worobetz’s future loss as follows.

[141]     First,
with respect to the “with Accident” earnings, using Mr. Peever’s estimates
the present value of earnings, based on four students is $2,185 for the balance
of 2014, and $49,787 for the period from 2015 to 2030. If Ms. Worobetz has
10 students for the period from 2015 to 2030, and I apply a simple ratio, the
present value of the earnings would be $126,652 [(($49,787/4) x 10) + $2,185)].
If I add 10% to that figure for the value of benefits, which is the percentage
suggested by Mr. Peever, the total estimated “with Accident” future
earnings is approximately $139,318.

[142]     With
regard to the “without Accident” earnings, Mr. Peever estimates the
present value of earnings from 2015 to 2030 to be $565,182 based on a private
school position and $588,485 for a public school position.

[143]     Using Mr. Peever’s
figures, the estimates of the loss of the value of future earning capacity are
therefore:

Private school = $565,182 – $139,301= $425,881

Public school = $588,485 – $139,301= $449,184

[144]     The
foregoing estimates include an allowance of 10% for benefits. Mr. Peever’s
estimates have also been adjusted for “risk and choice” labour market
contingencies based on census data. Thus, they do not take into account the
fundamental risk or chance that Ms. Worobetz would not have become an at
school teacher, either by her own choice or by lack of success. Neither do the
foregoing estimates of loss take into account the chance that Ms. Worobetz
will not, in fact, be able to sustain a part-time work load of 10 students per
year.

[145]     For
example, if one assumes that there is only a two-thirds chance that Ms. Worobetz
would have become a full time teacher, but for the Accident, the estimates of
the loss, are $239,371 based on the private school scenario and $254,984 based
on the public school scenario.

[146]     However,
there is also a chance that Ms. Worobetz will not, in fact, be able to
work with 10 students. If one were to reduce that contingency to two-thirds as
well, the estimates of the loss are $285,340 based on the private school
scenario and $300,953 based on the public school scenario.

[147]     Recognizing
that the assessment of loss of future earning capacity is not an exact science,
nor a matter of pure mathematical calculation, and that positive and negative
contingencies cannot be predicted with certainty, and bearing in mind as well
that the award of compensation must be fair to both parties, I would assess Ms. Worobetz’s
loss of future earning capacity at $275,000.

Cost of Future Care

[148]     Ms. Worobetz
seeks a variety of future care items identified by Ms. L. Malinowski,
a certified occupational therapist. The future care items, some of which are
long-term measures, have a total present value of approximately $109,000.

[149]    
The test for the award of the cost of future care was stated by Bennett
J.A. in Gignac v. Insurance Corporation of British Columbia, 2012 BCCA
351 at paras. 29 – 30:

[29]      The purpose of the award for costs of future care
is to restore, as best as possible with a monetary award, the injured person to
the position he would have been in had the accident not occurred.

[30]      The award is “based on
what is reasonably necessary on the medical evidence to promote the mental and
physical health of the plaintiff” (Milna v. Bartsch (1985), 49 B.C.L.R.
(2d) 33 (B.C.S.C. and adopted in Aberdeen v. Zanatta, 2008 BCCA 420 at para. 41).

[150]     Thus,
there must be a medical justification for the claims of cost of future care and
the claims must be reasonable.

[151]     Ms. Malinowski
admitted in cross-examination that future care items should help Ms. Worobetz
control her symptoms, while allowing her to become more engaged in tasks. They
should minimize further deconditioning.

[152]     It is of
note that Dr. MacInnes stated in his report that it will be important for Ms. Worobetz
to maintain functional ability and general physical conditioning. He
recommended regular attendance at a fitness facility where she can continue to
work on maintenance of physical fitness and conditioning. He also recommended
that she have access to a kinesiologist or personal trainer to monitor and
guide her exercise and activities.

[153]     Dr. Watt
reported that when he last saw Ms. Worobetz in January 2014, he was of the
opinion that Ms. Worobetz was capable of sitting, standing and walking
distances of 500 feet on level ground. She was capable of all limb coordination
activities and capable of light physical demands, i.e. lifting, pushing,
pulling and carrying up to 10 kilograms, occasionally. Dr. Watt noted that
Ms. Worobetz had only recently resumed exercising and was working out on
an elliptical trainer for about 15 minutes, four times per week and was doing
some stretching for about 10 minutes, four times per week. Dr. Watt
testified that this was at the low end of adequate. He noted that
deconditioning is a very common perpetuating factor of myofascial pain and
recommended increased exercise supervised by a fitness trainer.

[154]     The
defendant submits that a number of the care aids suggested by Ms. Malinowski
are not medically justified and would tend to contribute to further
deconditioning, rather than promoting greater fitness. I agree with that
submission.

Homecare and Personal Assistance Items

[155]     In
particular, I am not satisfied, based on the medical evidence, that the
following items and their costs are medically justified or reasonable, even
though individually many of them cost only a rather trivial amount:

·      
Long-handled scrubbers for shower, bath tubs and toilet bowl – I
am not satisfied that with reasonable assistance from her family for their fair
share of maintaining the cleanliness of the home, the use of spray or automatic
dispensing cleansers that persons commonly use on a daily basis on these
household fixtures and some provision for occasional heavy-duty cleaning, which
I agree is reasonable, that Ms. Worobetz has a need for these items.

·      
Long-handled duster – This would only be needed on an occasional
basis to dust things such as light fixtures, overhead fans, etc. which can be
done by the house cleaner.

·      
Light-weight portable mop – Ms. Worobetz would need a mop,
in any event. I am not satisfied that it is necessary to go to a specialty
rehabilitation store to find one that is light enough for normal use.

·      
Upright, light-weight vacuum cleaner – Ms. Worobetz has a
built-in vacuum system. In my view, for occasional “pick-ups” that may be
necessary outside of regular cleaning, a broom and dust-pan or “Dustbuster”
would be adequate.

·      
Long-handled reacher – The evidence does not establish why this
device is required. In any event, Ms. Worobetz is not disabled from
stretching and reaching. It is prolonged reaching that is difficult.

·      
Long-handled sponge for showering and long-handled razor – I am
not satisfied on the medical evidence that Ms. Worobetz has difficulty
with her personal care without these items.

·      
Gliding shelves – I am not satisfied that these are necessary by
any current or expected restrictions on her mobility, particularly with the
assistance that can reasonably be expected from her husband and children, and by
moving items that she frequently uses to higher shelves that are more
accessible.

·      
Plant pot elevators – These would simply raise the plants for
easier watering and weeding. Ms. Worobetz, apparently, has only a few
plants and I am not satisfied that her ability to water and weed a few plants
on an occasional basis is sufficiently compromised to justify this item.

·      
Heat and cold pads – I cannot find justification in the medical
evidence for these kinds of benign treatments.

·      
Airplane pillow – Ms. Worobetz does not travel much by
plane. In any event, a collar-like pillow is something that many travellers use
and I am not satisfied that its use is made any more necessary by this Accident.

·      
Reclining chair – I cannot find justification in the medical
evidence for this item. Ms. Worobetz does not need immobility in a
reclining chair. She is better served by frequent posture shifts.

[156]     I would
allow the claim for the following items, which I believe are justified and
would better enable Ms. Worobetz to deal with her symptoms and increase
her productivity:

·      
Postural pillow for sleep – $100 (difference in cost from regular
pillow) every three years;

·      
Postural pillow for driving – $50 every three years;

·      
Wheeled cart for going up and down stairs with groceries, books,
computer, etc. – $35 every five years;

·      
Anti-fatigue mat for kitchen –  $50 every five years; and

·      
Ergonomic chair – $100 and (difference in cost from regular
chair) every five years.

Housecleaning

[157]     I agree
that the claim for some periodic housecleaning for the “heavy housework” is
reasonable and is supported by the medical evidence, at least for so long as Ms. Worobetz
is expected to be working part-time. Ms. Malinowski recommends two to four
hours every two to three weeks, at a cost of approximately $22 to $26 per hour.
I believe an award based on two hours every two weeks, at a cost of $25 per hour
until age 60, is reasonable.

Rehabilitation

[158]     Ms. Worobetz
claims $756 for the cost of consultation with an occupational therapist with
regard to the selection and/or use of the various care aids that Ms. Malinowski
recommended. I have not allowed many of these aids. For those devices that I
have allowed, I am of the view that Ms. Worobetz can get appropriate
advice from the vendor regarding which type is best for her. I do not allow
this item.

[159]     Ms. Worobetz
claims the cost of 12 to 20 psychotherapy sessions at a cost of between $180
and $200 per session. Psychotherapy and/or counselling have been recommended to
Ms. Worobetz by her physicians in the past, but she has resisted
undertaking such treatment. In my view, it is likely that she would not engage
in psychotherapy in the future. Further, it is my view that while conditioning
and exercise will probably not restore her health completely, that is the area
that will do the most good and the area where Ms. Worobetz should focus. I,
therefore, propose to make an award for those items.

[160]     Even
though Ms. Worobetz has already undertaken an exercise program supervised
by a kinesiologist, I am of the view that she requires the assistance of a
personal trainer to get her back into a regular program of exercise and to
monitor her progress for a period of time. I am going to allow the cost of a
personal trainer for two one-hour sessions per week, for a period of 12 weeks,
at a cost of $25 per session and the cost of a gym pass until age 60, at a cost
of $460 per year.

Medications

[161]     Ms. Malinowski
has suggested that the following medications will be required by Ms. Worobetz
in the future based on the medical evidence:

·      
Extra strength Tylenol – 4 per day (1,456 per year) at a cost of
$12.50 for a 100 pill bottle: This over-the-counter medication is for pain
relief.

·      
Ibuprofen – 9 per week (468 per year) at a cost of $28 for a 250
pill bottle: This over-the-counter medication is for pain relief.

·      
Tylenol 3 – one per week (52 per year). This is prescription
medication for pain. The cost is said to be $15.36 per prescription, but the
number of tablets per prescription is not set out. It would not make sense that
this is a monthly prescription.

·      
Cyclobenzaprine – one per week (52 per year). This is
prescription muscle relaxant medication. The cost is said to be $14.50, but the
number of tablets per prescription is not set out.

·      
Clonazepam – one-half to one per night six nights per week
(156-312 per year). This prescription medication is used to treat seizures and
anxiety attacks, but is also used as a sleep aid. The cost is said to be $15.40,
but the number of tablets per prescription is not set out.

·      
HTP – one per night, five nights per week (260) per year at a
cost of $29.99 per bottle.

·      
Mag Sense – one container per month at a cost of $46.49 per
container.

·      
Therapain – one bottle every six weeks at a cost of $15.00 per
bottle.

[162]     Ms. Worobetz
claims a total of $43,509 for the cost of these drugs in the future.

[163]     None of
HTP, Mag Sense or Therapain is prescribed by Ms. Worobetz’s physicians and
I would not allow the future cost of those items.

[164]     As for the
other medications, Dr. Viljoen did not say what use was recommended. His
report merely said that Ms. Worobetz was using Tylenol and
anti-inflammatories on a daily basis and sometimes using Tylenol 3 and Cyclobenzaprine.
Dr. MacInnes set out the medications that Ms. Worobetz told him she
was taking. He does not make a specific recommendation as to medications or
dosage. He did suggest that Ms. Worobetz might try Nortriptyline, which
she apparently did use for a time, although it is not included in the drugs
claimed under the cost of future care.

[165]     Dr. Sudol
recommended that Ms. Worobetz try “mood medications”, but otherwise made
no specific recommendation as to medications that she required.

[166]     In his
first report, Dr. Watt suggested that Ms. Worobetz take psychoactive
medication, but noted her reluctance to do so. He did not comment specifically
in either report on whether her use of pain medication was reasonable.

[167]     I am
prepared to accept that it is reasonable for Ms. Worobetz to use the pain
medication and sleep aid medication, however I have two comments. First, I have
no doubt that Ms. Worobetz would have used pain relief on occasion, but
for the Accident, for aches and pains that everyone usually has from time to
time. Second, the cost of the over-the-counter medication can be reduced
significantly by buying in larger quantities, such as from a retailer like
Costco or Walmart.

[168]     Doing the
best I can with the evidence, I estimate that an allowance of $250 per year
would be reasonable for the annual cost for these medications.

Summary of Cost of Future Care

[169]     Applying
the present value multipliers provided by Mr. Peever at Table 2 of his
report to the foregoing amounts, I have determined the present cost of the
items of future care, which I would allow as approximately $28,200.

Special Damages

[170]     Ms. Worobetz
claims special damages of $6,621.44. The defendant does not challenge the
specific amounts of the special damages claimed, but submits that no special
damages should be allowed after October 2010, by which time, in the opinion of Dr. Grypma,
Ms. Worobetz was, or should have been, fully recovered. Having rejected Dr. Grypma’s
opinion in that regard, I allow the special damages as claimed.

Summary

[171]    
In summary, I allow Ms. Worobetz damages as follows:

“B.M.
Joyce J.”