IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151222

Docket: 95136

Registry:
Kelowna

Between:

Andrea Carlisle

Plaintiff

And

Aida Vanthof

Defendant

Before:
The Honourable Mr. Justice G.P. Weatherill

Reasons for Judgment

Introduction

[1]            
This is an assessment of damages arising out of a rear-end motor vehicle
accident that occurred on May 21, 2010, at the intersection of 16th Avenue and
240th Street in Langley, British Columbia (“Accident”).

[2]            
Liability for the Accident has been admitted.

[3]            
The plaintiff suffered soft tissue type injuries that she says developed
into a chronic pain condition. This condition has significantly impacted her
previously active lifestyle and continues to require treatment.

[4]            
The plaintiff claims general damages, past and future loss of earnings
and earning capacity, special damages, cost of future care and loss of
housekeeping capacity.

Background

[5]            
The plaintiff is 34 years of age. She was born and raised in the White
Rock/Surrey area to parents who were active and enjoyed the outdoors.
Activities growing up included camping, beach activities, swimming and
kayaking. The plaintiff and her siblings assisted their parents with household chores.

[6]            
The plaintiff was an active and bright girl. She skipped grade 3 and
graduated from high school in 1998 at the age of 17. She was somewhat shy
during her high school years and was not involved in high school sports. She
normally socialized with friends.

[7]            
Her employment started at age 12, babysitting for her aunt and later a
number of other parents. She would often babysit during weekends.

[8]            
At age 15 she began working for the Great Pacific Forum, a hockey facility
in the Langley area, doing administrative work. She later worked for Dick’s
Lumber in its administrative offices and then at Gold’s Gym in Surrey, where
she was introduced to fitness. At Gold’s Gym she managed the administration
department for some 5,000 members.

[9]            
She soon immersed herself in fitness and gym activities. She typically
worked-out six days per week either on her own or with personal trainers.

[10]        
In October 2004, she decided to move to Kelowna. She wanted to enjoy the
hiking, biking, weather, mountains, water sports and other outdoor living that
the Kelowna area offered.

[11]        
She found it difficult to find employment and settled on a job as a
bartender, a job she did not enjoy. Through a friend, she obtained employment
with “Swift Trade” doing day trading on the New York Stock Exchange. Her
typical day had her trading from 5:00 a.m. to 1:00 p.m. Monday to Friday and
bartending from 9:00 p.m. to 3:00 a.m. Thursdays to Sundays. She worked as a
bartender for about one year and for Swift Trade for approximately 8 months.

[12]        
In early 2006, she moved back to the Vancouver area to work with her
then boyfriend, who was an owner of Twin Tiger Clothing and Jewelry. She was
the sales representative for the United States eastern seaboard. Her duties
included finding new accounts and attending trade shows. She enjoyed the work
and the travel.

[13]        
In September 2009, she enrolled in a two year full-time distance education
program through Grant McEwan University to become a Registered Hearing
Instrument Practitioner (“RHIP”). She continued working for Twin Tiger while at
school.

[14]        
In December 2009, she decided it would be helpful for her career to work
at a hearing clinic, quit Twin Tiger and started full-time work at a local Island
Hearing Clinic as a customer care representative. She worked full-time during
the days and took her on-line courses and studied during the evenings.

[15]        
In addition, she continued to maintain a high level of fitness and at
the time of the accident was in the best shape of her life. She had no
restrictions.

a.       May 21, 2010 Accident

[16]        
The Accident occurred while the plaintiff was driving to a birthday
party her friends had planned for her. She was driving her newly purchased 2006
Volkswagen from her parents’ home in Surrey to Kelowna to attend the
celebrations. The traffic was heavy because it was a long weekend. She was
travelling on 16th Avenue and was approaching the intersection of 240th Street.
Traffic was stopped for some distance ahead. She stopped behind a trailer. She
looked in her rear-view mirror and saw a vehicle “flying” towards her. It was obvious
the vehicle was not going to stop. There was some space between her car and the
trailer in front so she pulled over as much as she could to the left,
continuing to look in the rear-view mirror. She knew she was going to be struck
and braced herself. The impact pushed her into the trailer and some two car
lengths ahead. The vehicle that struck her was still pushing her forward. It
was on fire and she was concerned it was going to explode. The defendant’s vehicle
then crossed over two lanes of traffic and went into the ditch.

[17]        
Damage to the plaintiff’s Volkswagen was over $11,000. The defendant’s
car, a 2004 Chevrolet, was a total loss.

[18]        
Immediately on impact, the plaintiff had a headache from the base of her
neck to above her eyes. The ambulance attended. She did not want to go to the
hospital. She did not have any broken bones and thought that she would be fine.
Someone gave her a ride to her parents’ home. Although she wasn’t feeling
particularly well, she assumed her recovery time would be brief because she was
in such good physical shape. She went to her family doctor who referred her to
massage therapy. It would be over a week before she could get in. In that week,
her symptoms got progressively worse to the point that she was in agony by the
time of her first massage therapy appointment. She was experiencing pain in her
low back, hip, pelvis, groin, upper neck and shoulders. Her neck felt like it
was on fire, her thigh joints felt that they were out; they felt like it was
bone on bone. The symptoms radiated into her legs and arms.

[19]        
The pain in her neck, upper back, shoulder areas, head, low back and
hips continued unabated. She had trouble concentrating, sitting or lying down.
She was not able to sleep very well. She felt useless at work.

[20]        
The Grant MacEwan College transcripts show that she struggled with her
marks after the Accident. She was just scraping through. For one course, she
had to go before the student board to persuade them to pass her. She did not
want to quit her job at Island Hearing Clinic because she needed the money.

[21]        
Her early medications included Percocet, which made her groggy and she
used it sparingly. Her doctor switched her to Flexeril, which helped with the
pain but exhausted her. Other medications did not seem to help much either. Her
online research persuaded her that the medications she was taking were likely
aggravating her pre-existing ulcerated proctitis condition so she reduced her
intake.

[22]        
By August 2010, she realized she couldn’t continue working and go to
school full-time. She was exhausted and in pain by the end of each work day. She
had no energy and was struggling to do her school work. Her request of Island
Hearing Clinic for reduced work hours was declined. She quit that job so she
could concentrate on her studies. She remained off work for approximately 7
months. Her net wage loss associated with that time away from work has been
agreed at $13,600.

[23]        
For about a year after she quit Island Hearing Clinic she lived off her
credit cards. She took a break from the treatments she was getting because of
the expense.

[24]        
Although she was able to study longer and take breaks, she still found
it difficult to concentrate and stay focused because of the pain. She did not
sleep well and found it hard to absorb new information.

b.       Employment at Connect Hearing

[25]        
Connect Hearing (“Connect”) is owned by a large publicly traded company
involved in many aspects of the hearing aid business, including the manufacture
of hearing aids. It has approximately 130 clinics across Canada, including
several in the Okanagan.

[26]        
Mr. Tek Manhas managed 18 Connect clinics in the Okanagan/Kootenay
region and was in charge of hiring, firing, bonuses, promotions and lateral
transfers within his region.

[27]        
His evidence was that Connect is a profits driven business that expects its
clinics to meet stringent budgetary targets. Each RHIP is required to sell 300
hearing aid units annually. The salary range for an RHIP in his region was from
$55,000 to $80,000, plus bonuses. Because of a glut of RHIPs on the market, the
starting salary has recently reduced to $48,000.

[28]        
The ability to achieve sales goals is often dependant on the location of
the clinic, the number of appointments the RHIP is able to generate, sales
abilities, mood, health etc.

[29]        
As the manager for the region, it was his practise to give annual raises
to all staff. The plaintiff was no exception.

[30]        
Connect’s “flagship” clinic in the Okanagan is the Mission clinic. It is
very busy and consistently performs well for the company. Its two RHIPs consistently
meet budgetary goals and receive bonuses. It is common for the RHIPs in the
Mission clinic to earn $1,500 – $1,800 per month above their base salary.

[31]        
In March 2011, the plaintiff started her RHIP practicum with Acoustica
Hearing in White Rock. Most of the practicum was job shadowing. She also acted
as a receptionist. She completed the academic portion of her hearing aid
practitioner’s course at the end of April 2011.

[32]        
She wasn’t happy with Acoustica because the clinic wasn’t very busy,
averaging only two appointments per day. She started looking elsewhere and
applied for a position at Connect’s Westbank clinic in British Columbia. Even
though she was still doing her practicum, Mr. Manhas hired her to run the
Westbank clinic at $55,000 per year, a substantial increase over Acoustica’s
salary. He was the plaintiff’s immediate supervisor from 2012 to January 2015,
when he left Connect.

[33]        
The Westbank clinic was not a busy clinic so it was a good place for the
claimant to get her feet wet. She started on August 3, 2011, while still taking
her practicum.

[34]        
She has been employed there ever since. Her hours of work are 9:00 am to
4:30 pm, Monday to Friday. She is entitled to three weeks paid vacation.
Commissions are paid on a predetermined formula for selling hearing aid units
and are paid monthly. Bonuses depend on her meeting the quota of 300 units per
year. Neither commissions nor bonuses are guaranteed.

[35]        
Connect Hearing tracks the number of appointments and hearing aid
evaluations that each clinic does on a daily basis. The plaintiff is assessed
and rated based on her performance, the hearing examinations and the number of
hearing aid units sold.

[36]        
Until she received her qualifications, she was shadowed by an audiologist
from another of Connect Hearing’s local clinics, who received credit for any
hearing aid sales that occurred.

[37]        
In early 2012, the plaintiff obtained her full certification as an RHIP
and was then given full credit for hearing aid sales at the Westbank clinic.

[38]        
Based on Mr. Manhas’ observations of the plaintiff’s capabilities,
he estimated the plaintiff has the potential to make $80,000 per year.

[39]        
On April 15, 2013, the claimant received her first pay raise to $60,000
per annum. She received another raise in April 2014, to $62,098.

[40]        
The plaintiff’s sales performance and that of the Westbank clinic was
consistently below what Mr. Manhas expected. Although she was very strong
on the technical side of the business, had good knowledge of the industry, knew
the business, instruments and clients, she was not meeting hearing aid sales’
expectations.

[41]        
Mr. Manhas typically spent one day every second week at the
Westbank clinic. Some days he observed the plaintiff to be struggling physically.
She looked fatigued and exhibited signs of being in pain. She was sometimes
moody. If her mood was good, he noted her sales were up. If she was moody, her
sales declined. He noted that between appointments she would sometimes rub her
neck and pace the hallways.

[42]        
Although he was aware of the plaintiff’s accident, he was not aware of
the details. He didn’t ask and she didn’t volunteer.

[43]        
In February 2014, one of the RHIPs at the Mission clinic left. Mr. Manhas
considered moving the plaintiff to Mission to replace him and discussed the
move with the plaintiff. He felt it would be a good fit for her. She turned
down the transfer.

[44]        
In addition to working at the clinic, the plaintiff is expected to
attend various seniors’ and community centres to put on free hearing clinics
and promote Connect Hearing and herself. Since being employed with Connect
Hearing, she has not been able to meet the targets assigned to the Westbank
clinic. Approximately one month prior to the trial, her direct supervisor
requested that she work longer hours, including opening for four to five hours
on Saturdays, in order to meet quota. She declined. She was having a hard
enough time managing her current work schedule and was exhausted at the end of
the day. She did not view additional hours as an option. She didn’t explain to
her supervisor the reason she declined. She was worried that if she told her
supervisor that she was in pain and exhausted she may be let go.

[45]        
The plaintiff has not met her budget expectations since she began
running the Westbank clinic. She has recently been told by her new supervisor
that she is not performing up to standard and will have to take steps to
improve. Her salary has been negatively impacted by her performance, which she
relates to coming to work exhausted and in pain. She stated this was unusual
because in every other job she has ever had, she was promoted very quickly
because of the good work she did. Two to three days per week she is in
significant pain and feels like a robot, on auto pilot and going through the
motions.

[46]        
Her original goal with Connect Hearing was to get transferred to the
Mission or Penticton clinics very quickly because those clinics are very
profitable and she expected she could quickly be earning in the $80,000 per
annum range. Because those clinics are so busy, she has not pursued
opportunities to be transferred to them because she knows she could not perform
to the level expected of her.

[47]        
Competition in the hearing aid industry is brisk. There are two clinics
near her Westbank clinic that compete with her. Head-hunting for good RHIPs is
fierce. She has not been head-hunted and she does not expect to be because her
sales have not met expectations.

[48]        
If she is having a particularly bad day, she tells the receptionist not
to book walk-in patients. She must also attend therapy appointments, which
require her to leave work early. She uses a heating pad and Tylenol while at
the office and sleeps with ice on her neck.

[49]        
The plaintiff’s receptionist sees the plaintiff walking stiffly, rubbing
her neck and exhibiting facial expressions consistent with somebody not feeling
well. She looks tired and piqued on occasion and often takes medications. She has
also seen her using an electric heating pad around her neck. The plaintiff
would sometimes ask her not to book appointments.

[50]        
The plaintiff tries not to miss work unless the pain is so severe she
cannot go. She estimates she has missed only two to three days over the last
couple of years, preferring to “suck it up” and do the best she can.

c.       Travel, Social and Recreational Activities

[51]        
The plaintiff loves to travel and since the accident has taken frequent
vacations. In July 2010, she went to San Diego with her sister and roommate for
four days. In October 2010, she took a break from school and travelled to
Singapore for one week. In February 2011, she travelled to Egypt and England for
three weeks. In July 2011, she went to Mexico for one week with her mother and
sister. In July 2012, she went to a family wedding/back-to-back holiday for one
week in each of Hawaii and Cuba. In May 2013, she went to Thailand for a three
week holiday with her roommate. In February/March 2014, she went to
Australia/Bali and in December 2014, she travelled to south-east Asia for three
weeks.

[52]        
She stated that on all occasions the airplane flights were very hard on
her because of her inability to move around. She took medications and needed a
day or two upon arrival to recover. She did not participate in as many of the
day trips or sightseeing excursions as she otherwise would have done.

[53]        
She testified that her social life has significantly reduced since the
accident. She testified that she stays home most work nights. The pain she is in
takes the desire or enjoyment out of being social.

[54]        
Since moving to Kelowna, her recreational activities have also significantly
declined, although she continues to go to the gym and does what she can to try
and stay active. The duration and intensity of her work-outs are reduced from
before the accident. For example, she used to be able to do 100 push-ups. She
now cannot do any. If she overdoes her gym or other activities, she pays for it
later. She hired a trainer who made constant adjustments to her work-out plan.
She continues to try new things; however, some exercises cause too much pain.

[55]        
She has a “cruiser” style bike that she takes on easy rides with her
friends. On one occasion, a dog ran out in front of her while she was on a bike
path and she went off an eight-inch curb and jarred her neck. Her neck seized
for about four – six weeks. She attributes the major impact of a minor event to
her accident-related fragile neck. She tried running on one occasion but had to
quit. She does not partake in power water sports, snowboarding, downhill or
cross-country skiing because of the pain. Hiking has also been significantly
reduced. She is able to paddleboard.

[56]        
She describes her current social life in Kelowna as mostly sedentary.
The people she enjoys being with are active, athletic people because that is
who she was prior to the accident.

[57]        
She does her best to put on a brave face. Some of her friends understand
her condition, some do not. She described a break-up with a boyfriend over her
fear of riding a moped. She previously had no concerns about riding a
motorcycle and, in fact, used to ride a Suzuki 600.

[58]        
She resides with her best friend, Becky April, in a house that Ms. April
owns in Kelowna. Ms. April does all the outdoor and indoor housework,
including yard work, vacuuming, washing windows and floors. To make up for
that, the plaintiff does other things such as buying Ms. April dinner and
presents.

[59]        
She feels emotional and depressed about her condition. Her emotions ebb
and flow with how she is feeling. She feels extremely frustrated and tries to
imagine what it would be like to not be in pain. She is now used to the pain
and is determined to stay positive. Her objective in continuing with treatments
is to try to get her old life back.

d.       Medical Assessments and Treatment Modalities

[60]        
The plaintiff has been treated and assessed by a number of medical
practitioners including Dr. Underwood (physiatrist), Dr. Etheridge
(chronic pain specialist), Dr. Darby (family medicine), Melanie Bos
(Occupational Therapist), Benjamin Work (Registered Massage Therapist), Dr. Meckling
(neurologist) and Dr. Gross (physiatrist).

[61]        
She remains symptomatic and restricted in her activities, and is moody
and frustrated as a result. As Dr. Etheridge explains, the emotional
distress that comes with chronic pain and loss of function requires a grieving
process to accept.

[62]        
Mr. Work noted a decrease in the normal neck range of movement,
tight muscles, a generally restricted range of movement, hyper-tonicity in the
back muscles, “ropey” muscles (meaning the muscles feel abnormally tight) and
muscle twitches on touching trigger points. He also noted increased breathing
and grimacing that were consistent with the plaintiff being in pain.

[63]        
Her treatments have included Botox injections, massage therapy, IMS,
acupuncture and nerve blocks.

[64]        
In total, she has received 189 treatments. Although they have helped
periodically to various degrees, she continues to be symptomatic. Some days are
relatively good days and she is able to manage and function at work and home. Other
days are not so good. Depending on her activities, she can experience
excruciating pain where her muscles feel as though they are on fire.

[65]        
The best she has felt since the accident is when she is sick in bed,
sedentary and not doing much of anything.

e.       The experts

[66]        
There is not much controversy in the medical evidence. All who have
assessed the plaintiff agree that she is suffering chronic pain caused by the injuries
from the Accident.

 i.  Dr. Etheridge

[67]        
In May 2015, she saw Dr. Etheridge, a chronic pain specialist.

[68]        
Dr. Etheridge testified that the plaintiff’s presentation was
objectively consistent with someone suffering chronic pain. His observations
included a head forward posture and central nerve sensitization, which are
commonly seen in people with chronic myofascial or whiplash neck pain. The
resulting poor posture could be contributing to some of her ongoing neck pain.

[69]        
There were trigger points in the neck, shoulders, back and hips, with
referred pain down her arms. Her responses followed anatomically correct lines.
He felt she had facet joint pain in the C2-4 area and myofascial pain
throughout her neck, back, and hips.

[70]        
He suggested nerve blocks to help him with his diagnosis. The objective
was to freeze the nerves supplying the painful facet joints by injecting an
anaesthetic into the surrounding area.

[71]        
On June 22, 2015, he performed ultrasound guided needle injections into
her neck facet joints, freezing the joints. Following this treatment she felt
“drunk” and frozen for about two hours. Then major pain set in. Her neck pain
felt like she received a “karate chop”. She did not think the nerve blocks were
helpful.

[72]        
On October 7, 2015, she had a follow-up assessment with Dr. Etheridge.
She told him that the nerve blocks did not work. Dr. Etheridge explained
that even if she had relief for a few hours following the initial injection, she
may be a candidate for rhizotomies.

[73]        
She was persuaded to have a second set of nerve blocks. Dr. Etheridge
injected her left hip and neck. Her left hip felt normal after the injection
and the relief lasted for a few hours. The pain in her neck disappeared, not
returning until approximately four days before the trial.

[74]        
Dr. Etheridge believes that image-guided prolotherapy may help her
symptoms. Prolotherapy is a technique used for soft tissue damage where
dextrose is inserted in the joint, “tricking” the body into thinking there is a
new injury and promoting the body to heal. The procedure tends to tighten up
laxity in joints.

[75]        
If prolotherapy doesn’t help, he feels the plaintiff is a candidate for
facet rhizotomies, a procedure that kills the nerves. Although the nerves would
slowly grow back, he believes rhizotomies would give her relief lasting some 6
– 12 months, depending on how fast the nerves grew back. She would then return
to the pre-rhizotomy pain base line. Although not a cure, he believes rhizotomies
would give her 50% relief in neck pain.

[76]        
She would need rest and time off work. Her pain would then be reduced by
approximately 50%. Although generally considered to be safe, rhizotomies aren’t
without risk.

[77]        
As he described it, pain is a limiting factor for the plaintiff, with
her brain telling her body to keep still. There is no cure for chronic pain and
he doesn’t expect she will ever be at the point of having no pain. With the
treatment he has recommended, he expects some improvement in the medium and
long term but the neck pain is chronic and will fluctuate with her level of activity.

 ii.       Dr. Gross

[78]        
Dr. Gross is a physiatrist and assessed the plaintiff on June 9,
2015, at the defendant’s behest.

[79]        
He discussed her reduced range of motion:

“Indeed she has pain that has
resulted in a loss of range of motion of the cervical spine and intermittent
headaches. This is a measurable impairment. This represents scar in the tissue
and can be quantified using the American Medical Association guides. Typically
this is a measurable impairment of 2% whole person impairment for the scar.”

[80]        
He sums up his medical assessment of the plaintiff this way:

“Given the length of time, I concur Ms. Carlisle has
chronic pain. However, she does not have chronic pain syndrome. Chronic pain
syndrome represents disabling pain whereby individuals fail to reach the
desired level of functional return vocationally and avocationally. Chronic pain
represents injury to the tissues as described by diagnosis and measureable loss
(impairment)….

To repeat myself, the pain she
experiences is indicative of the permanent injury she sustained to the soft
tissues and with an active sports medicine model program, she should be able to
return back to her avocational activities in an unlimited manner without fear
of worsening her pain”…

[81]        
He was optimistic that with the implementation of an active sports
medicine model program she would be able to return to most of her pre-accident
activities without fear of worsening her pain. He agreed that prolonged sitting
without an opportunity to move around would increase pain and that a return to
full functional activities may be limited by pain.

[82]        
He opined that sharing homemaking duties with someone was reasonable.

[83]        
He agreed with intermittent physiotherapy, massage therapy, acupuncture
and other modalities when her pain was exacerbated.

[84]        
For Dr. Gross, the plaintiff’s challenge is not curing the pain so
much as it is attempting to improve her function. He recommended a sports
medicine and controlled exercise program using various modalities such as
massage or physiotherapy as needed. He preferred a home-based exercise program
with all practitioners/clinicians working and communicating together.

[85]        
Although he did not recommend rhizotomies or prolotherapy, he did not
rule them out as interventions that could assist. He felt rhizotomies would not
be suitable for the plaintiff because of the two-four weeks recovery that would
be needed where she would be non-functional. He agreed, however, they were
still a valid option.

[86]        
Although not a proponent of prolotherapy, he has patients who have
benefited from it with improved function.

[87]        
He agreed that given it has now been over five years since the Accident,
the healing process has long ago completed and she has now plateaued. Chances
are slim that her pain and impairment will improve.

[88]        
He agreed that chronic pain can cause problems with concentration,
decreased mood, lack of endurance, fatigue and sleep issues.

 iii.      Dr. Underwood

[89]        
Dr. Underwood is a physiatrist who assessed the plaintiff at her
counsel’s behest on June 20, 2013. She also testified.

[90]        
She noted that the plaintiff has a longer neck than normal which
increased the risk of injury from a rear-end collision. Her assessment
disclosed a number of other objective abnormalities including an externally
rotated right leg, decreased balance, reduced range of movement in her neck,
back and pelvis and a rotated right pelvis.

[91]        
In her opinion, the claimant’s symptoms were entirely consistent with
injuries from the accident. Her chronic pain was due to soft tissue damage and
irritation of the facet joints in her neck, cervicogenic and occipital
headaches secondary to her neck injury, shoulder and forearm pain likely
resulting from ongoing periscapular and neck issues, asymmetry of her low back
and hip, sacroiliac joint and lumbosacral region.

The Plaintiff’s Position

[92]        
The plaintiff received soft tissue injuries to her neck, shoulders, low
back and hip. While initially expected to resolve in the normal course, the
injuries have settled in and become chronic.

[93]        
She has occipital headaches associated with increased neck pain, chronic
neck pain with increased intense flare-ups depending on her activity level,
upper trapezius pain, peri-scapular pain, chronic lower back pain and pain into
the S-I joints, bilateral hip pain and hamstring muscle pain.

[94]        
She continues to have trouble sleeping and has developed chronic
insomnia.

[95]        
The medical evidence suggests that part of the problem is that the
plaintiff has a long neck, which exaggerated the effect of the whiplash injury
and could explain her ongoing symptoms that continue to affect her day-to-day
activities, work performance, social life and recreation. She has lost
commission income from her employment and declined a lateral transfer to the
more lucrative Mission clinic in favour of the quieter Westbank clinic that she
is better able to manage. She argues this loss will carry forward into the
future.

[96]        
She says she has followed the advice and recommendations of all her
treating practitioners with minimal improvement. She is prepared to try
anything to help with the pain and is desirous of proceeding with the rhizotomies
and nerve blocks that have been recommended.

[97]        
She says that although she enjoys travelling and has travelled extensively
since the accident, her travel must be put in perspective. She finds the
flights long and painful. After arriving at her destination, it generally takes
a few days of relaxation and reduced activities before she is able to enjoy the
holiday. She needs pain medication frequently and usually feels exhausted. In
short, she can’t enjoy her travel as much as her companions and as much as she
would but for her injuries.

The Defendant’s Position

[98]        
The defendant argues that the plaintiff’s loss of function has been
grossly exaggerated and although she continues to live with some degree of
pain, she leads a healthy, social, vocational and recreational life, perhaps
only minimally slowed down by her pain.

[99]        
The plaintiff has continued to perform as well as could be expected of
any RHIP at the Westbank clinic, would not have accepted a transfer to the
busier Mission clinic in any event of the Accident, and has suffered no past
loss of earnings beyond the agreed past wage loss of $13,600. She has not
proven any loss of future earnings or earning capacity. Although she agrees
that some allowance should be made for ongoing therapies, the plaintiff should
not proceed with nerve blocks or rhizotomies because her current level of
functioning does not warrant the risk or the cost.

[100]     The
defendant argues that the plaintiff has painted a much more pessimistic picture
of the continuing effects of her injuries and functional disability that is, in
reality, the case.

[101]     She argues
that the plaintiff has done very well in her career as an RHIP, especially
considering she was still taking her practicum and was underqualified when she
started in August 2011. She has been working full-time since then with very
little time off, and there is no evidence linking the loss of earnings she claims
to her injuries. Since she started, the Westbank clinic has had increased
competition from nearby clinics. It is likely the Westbank clinic is performing
as well as it can in any event of the plaintiff’s difficulties.

[102]     It is
unlikely the plaintiff would have been transferred to the “flag ship” Mission clinic.
Mr. Manhas’ evidence was biased and should be treated cautiously. It is entirely
possible that the plaintiff was happy at the Westbank clinic because she had freedom
and could take time off. She did not want to transfer to a far busier clinic
and be under a microscope.

[103]     She argues
that the plaintiff hasn’t proven her claim of lost commissions and bonuses from
hearing aid sales and has no claim for lost past or future earnings beyond what
has been agreed.

Discussion

[104]     This is a chronic
pain case. Although objective indicators consistent with pain might exist, for
the most part whether someone is suffering from pain is a subjective measure.
How pain affects someone is particular to that person.

[105]     The
central question is how have the plaintiff’s injuries affected her
vocationally, socially and recreationally over the past 5 ½ years and how will
they affect her in the future. The key to answering this question is in
assessing the plaintiff’s credibility when she describes how her injuries have
affected her function.

[106]     In most
respects, I found the plaintiff to be a credible witness and I accept her
evidence that she continues to suffer the effects of the injuries from the Accident.
I accept that her pain has essentially remained constant since the Accident,
with varying degrees of severity. As is usual with these types of injuries,
some days she is affected more than others.

[107]     My
impression of the plaintiff is that she is intelligent, hardworking and capable.
She is probably well liked by her superiors, who continue to push her to sell
more hearing aid units.

[108]     She is
also a socialite. Her Instagram photos confirm, and she does not deny, that she
has a social life that includes numerous wine tours, trips, dinners out and
general socializing.

[109]     The
medical evidence is more or less consistent that the plaintiff has developed
chronic pain from the Accident. The controversy is how it affects her function.

[110]     I find on
the balance of probabilities that the plaintiff suffered moderate soft tissue
injuries to her neck, upper back, shoulder muscles, low back, hip and S-I
joints as a result of the Accident and that the injuries have not healed. They
have developed into a chronic pain condition that is likely to continue into
the foreseeable future.

[111]     I accept
that the plaintiff continues to suffer widespread pain. The fact that she is
able to continue working and maintain some degree of social, recreational and
travel does not tell the full story. She does these activities at a price.

[112]     Before the
Accident, she was in excellent physical shape and was able to function at a
high level without restriction. She must now pick and choose her activities. Pain
continues to cause fatigue and sleep deprivation. She takes pain medication and
relies on massage and physiotherapy. If she works a full day, her gas tank is
empty and she doesn’t have the energy to do more. If she travels, she must rest
and recover before she can move on. Others provide assistance that she didn’t
need before.

[113]     I accept that
the plaintiff’s pain continues to affect her function on a daily basis and that
it will probably affect her indefinitely.

[114]     The
defence placed over 100 photographs of approximately 400 obtained from the
plaintiff’s Instagram/Facebook accounts into evidence. They chronicle a portion
of the plaintiff’s life, including social activities and vacations, from July
2013 through August 2015. They dovetail with the plaintiff’s evidence and for
the most part are benign. They confirm her evidence that she continues to
maintain a social life despite continuing pain. A few of the photographs that appeared
to be inconsistent with her evidence that she leads a somewhat sedentary
lifestyle were explained away in a satisfactory manner.

[115]     The
plaintiff is prolific with posting photos on her social media accounts. I infer
from the sheer volume that her habit is to create a pictorial history of
enjoyable activities with friends, travel, dinners and wines tours when they
occur. The plaintiff is someone who posts everything to social media as a way of
letting her friends know what she is doing on a regular basis and I am
satisfied that all the activities she has done in the past two years have been
covered by those postings. Photographs that are inconsistent with her described
abilities would likely have been posted. None apparently were.

[116]     The
plaintiff does not deny that she is carrying on with her life, including being
active with her friends on weekends and other occasions. She does not suggest
that she is an invalid.

[117]     This case
is not about what the plaintiff can do, it is about what the plaintiff cannot
do and how her injuries have and will affect her.

[118]     The
evidence from those that know her leads me to conclude that although
functional, the plaintiff is performing in a reduced capacity than she would
otherwise be performing if uninjured.

[119]     The plaintiff’s
presentation to all the doctors who have assessed her was that of a person
suffering symptoms of pain in her neck, shoulder, back and hip regions.

[120]     Dr. Underwood
suggested that the fact that the plaintiff has a longer than average neck may
be part of the explanation for ongoing symptoms. I accept that theory.

General Damages

[121]    
A consideration of general damages includes the inexhaustive factors
described in Stapley v. Hejslet, 2006 BCCA 34 at para. 46:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

(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.

[122]     The
plaintiff submits that an award of $120,000 for non-pecuniary damages is
appropriate in this case. She relies on the following decisions:

 a. J.D. v.
Chandra, 2014 BCSC 466;

 b. Johal
v. Meyede, 2013 BCSC 2381;

 c. Camilleri
v. Bergen, 2015 BCSC 124;

 d. Culos
v. Chretien, 2012 BCSC 1050; and

 e. Kirkham
v. Richardson, 2014 BCSC 1068.

[123]     The
defendant submits that an award of $50,000 would be more appropriate in these
circumstances. She argues that the plaintiff’s claims mostly relate to
recreational activities and Dr. Gross suggests her condition will improve.
The defendant relies on the following decisions:

 a. Parker
v. Shah, 2013 BCSC 1599;

 b. Rogalsky
v. Harrett, 2014 BCSC 1255; and

 c. Love
v. Lowden, 2007 BCSC 1007.

[124]     I accept
that the plaintiff continues to suffer the consequences of the Accident and
that her condition has developed into one of chronic pain. If she is relatively
sedentary, her pain is manageable. If she is active, the pain flares up
significantly. Her quality of life may suffer depending on how active she is.

[125]     None of
the specialist or medical practitioners recommended that the plaintiff restrict
her activities. Her condition will wax and wane to different degrees, depending
on the day and her activities, but it will continue to haunt her indefinitely. She
will not be cured.

[126]     The
recommended prolotherapy treatments and rhizotomies will probably help reduce
her symptoms to some degree, but the evidence, which I accept, is that the pain
will eventually return to the base line pain after a period of 6 – 12 months.

[127]     As Drs.
Underwood and Gross put it, it is not so much about the pain the plaintiff
experiences as it is her ability to function in life. It is important for her
to stay as active as possible and gauge the effect a particular activity will
have later.

[128]     At age 34,
the plaintiff is relatively young. She is single and since becoming active in
outdoors and gym based activities, she is attracted to likeminded men. Her
inability to perform at the level she did before the Accident has had an impact
on her. She is understandably frustrated that she can look forward to a life of
reduced activity and pain.

[129]     She
described her life as completely different from her pre-accident life which is
somewhat of an exaggeration. Instead of the gym/fitness based lifestyle, she
now often spends her weekends at wineries. She used to love the gym because of
the high energy and good mood she got from working out. She now feels lethargic
and is often not in a very good mood.

[130]     Ms. April
said the plaintiff’s level of fitness has significantly decreased since the
Accident. She often coaxes her to go out when she is not in the mood, sometimes
insisting that she do so. She notes that the plaintiff, although reluctant,
will go out with her to spend time socializing and leave for home earlier than Ms. April.
Some days are better days than others. She comes home from work fatigued and
often rests or has a hot bath. Her daily allocation of energy is zapped by the
end of a work day. My impression was that Ms. April performs the lion’s
share of the heavier work around the house.

[131]     It is
telling that in the years the plaintiff and Ms. April have resided
together, the plaintiff has never shovelled snow. Ms. April does that
chore. Ms. April also mowed the lawn (at their old home) and either does
the heavier chores herself or hires them out. When they moved to their present
home in downtown Kelowna, Ms. April did all the packing.

[132]     The
plaintiff is still active, but the frequency, duration and type of activities
have changed. She has adjusted to her new, functional limitations and does the
best she can with her new life.

[133]     I assess
general damages at $90,000.

Past Wage Loss/Loss of Opportunity

[134]     The
parties agreed to the plaintiff’s net past wage loss from the Accident to
August 3, 2011, when she began her job at the Westbank clinic. They have
quantified it at $13,600.

[135]     The
parties do not agree on the plaintiff’s past wage loss from that point to the
date of trial.

[136]     The
plaintiff argues that she should be assessed an amount that would fairly
reflect her inability to sell hearing aid units at a level she says she would
have been able to at both the Westbank clinic and the Mission clinic from 2012
to the trial, but for her injuries. She claims $40,000 for that loss.

[137]     The
defendant says that this claim has not been proven and there is no basis for
making such an award. Other than generalities, there is no connection between the
plaintiff’s actual hearing aid sales versus potential sales, and the ongoing
issues she has from the Accident.

[138]     Firstly, I
accept that the Westbank clinic has been consistently underperforming and not
meeting the quota set for it by Connect. I also accept that the plaintiff’s
chronic pain plays a role in that underperformance.

[139]    
Common experience tells us that stable but persistent energy-draining
pain takes its toll on a daily basis and can affect a person’s ability to work
as efficiently or enthusiastically as he or she could if pain free. It will
affect performance. The comments of Frankel, J.A. in Morian v. Barrett,
2012 BCCA 66 at paras. 39 – 41 are apposite:

[39]      As previously mentioned, the trial judge gave two
reasons for finding that there was a real and substantial possibility that
fibromyalgia would shorten Ms. Morlan’s working career. The first reason
was based on what he described as “common experience” that a person with a
stable but persistent energy-draining condition will find it more difficult to
continue working as he or she grows older. The second reason, based on Dr. Beck’s
evidence, was that there was a substantial possibility that Ms. Morlan’s
condition would worsen over time.

[40]      With respect to the first reason, the appellants
submit that it was not open to the trial judge to have regard to “common
experience” as there was no evidence to support this being so. I disagree.

[41]      Accepting that, to use
the expression used at trial and at the hearing of this appeal, Ms. Morlan’s
condition had “plateaued”, the fact remains that she would forever suffer from
debilitating chronic pain along with headaches, symptoms that could be reduced,
but not eliminated, by medication. In other words, throughout each and every
day of her life, Ms. Morlan would have to cope with some level of
discomfort. In my view, it was open to the trial judge to find—essentially as a
matter of common sense—that constant and continuous pain takes its toll and
that, over time, such pain will have a detrimental effect on a person’s ability
to work, regardless of what accommodations an employer is prepared to make. Indeed,
with regard to Ms. Morlan, this is reflected in Ms. Craig’s report: 
see para. 34 above.

[140]     Earlier
this year, the plaintiff was approached by her current supervisor and asked to
work extra hours and weekends to try and improve the clinic’s sales. Without
stating her reasons, she declined. Her evidence was that she does not want her
superiors knowing the extent of her chronic pain and how it affects her. She
puts in her seven hours of work and at that point she has expended her energy. She
goes home, relaxes, decompresses and recharges for the next day.

[141]     Sleep
continues to be a major problem for the plaintiff. Her restlessness was
confirmed by her roommate, who hears her get up in the night. She tried
sleeping pills but they made her feel groggy and “drugged” during the day.

[142]     Any loss
of earnings she has had from August 4, 2011, to the date of trial cannot be
calculated. It must be assessed.

[143]     On a
balance of probabilities, I accept that she has been unable to work as
efficiently and effectively as she could have but for her injuries. Prior to
the Accident she excelled in her previous jobs. Her injuries have slowed her
down and her performance has been average at best. She describes it like going
from getting “A’s” to getting “C’s”. It is not who she is.

[144]     Having
regard to the defence argument that because of the competition in the Westbank
area, it is possible that the Westbank clinic is performing as well as it could
despite the plaintiff’s injuries, I am satisfied that although the plaintiff
has suffered a past loss of earnings/earning capacity, it is not as high as she
suggests.

[145]     I assess
that loss at $10,000.

Special Damages

[146]     The
parties have agreed that the plaintiff has incurred the net amount of
$12,941.88 in out-of-pocket expenses for treatment and other assistance since
the Accident, which has included massage therapy, physiotherapy, chiropractic
treatment, orthotics and an ergonomic desk.

[147]     Save for
orthotics in the amount of $519.91, the defendant concedes the plaintiff has
proven these expenses are reasonable and were necessarily incurred as a result of
the plaintiff’s injury.

[148]     The
defendant argues that there was no evidence linking the orthotics to the
Accident.

[149]     I agree.

[150]     Special
damages are awarded in the sum of $12,421.97.

Future Loss of Earning Capacity

[151]     The
principles are set out by the Court of Appeal in Perren v. Lalari, 2010
BCCA 140 and Graydon v. Harris, 2014 BCCA 412.

[152]     Entitlement
to an award for future loss of earning capacity is a two-step process. Firstly,
the plaintiff must always prove that there is a real and substantial
possibility of a future event leading to an income loss. If that burden is not
overcome, that is the end of the matter and no award may be given. If there is
such a possibility, then the second step requires an assessment of the loss.
Depending on the facts, the assessment may be made by either an earnings
approach or capital asset approach.

[153]    
The Court of Appeal recently articulated the test in Gillespie v.
Yellow Cab Company Ltd., 2015 BCCA 450:

[34]      There are two stages in assessing a loss of
income-earning capacity claim. The first is to establish entitlement. The test
for a future loss is whether there is a “real and substantial possibility of a
future event leading to an income loss.” If the plaintiff discharges that
burden of proof, the second task is to quantify the loss on either an earnings
approach or a capital asset approach: Perren at para. 32.

[35]      It is undisputed that a
necessary step in the analysis is made out on the evidence. Mr. Gillespie
suffered injuries which compromised his ability to do his job as confidently
and efficiently as he did before the accident. Moreover, his injuries led him
to change the type and amount of work he took on. Certainly, the type and
amount of work he did was reduced in fiscal 2010, 2011 and 2013. The evidence
also established a real and substantial possibility that the type and amount of
work he did could be affected in the future because his injuries would likely
continue to affect him. The question is, though, whether the evidence
establishes a real and substantial possibility that his loss of functionality
impaired his earning capacity. Because Mr. Gillespie derived his income
from the profits of MG, this amounts to asking whether the changes in Mr. Gillespie’s
capacity to work affected and continued to affect the profitability of MG.

[154]     The
plaintiff is a career oriented woman who has seemingly found a job that she
enjoys. She has an outgoing personality and enjoys interacting with clients and
being out in the community.

[155]     While her
job as an RHIP is sedentary, with some medium aspects, some of the maneuvers
she is required to make during testing and fitting for hearing aids aggravate
her symptoms. The functional capacity evaluation performed by Ms. Bos in May
2013, discloses that she is functionally able to perform sedentary, light and
medium level work. She is not able to perform medium level work more than
occasionally.

[156]     Some days,
her lack of sleep, neck and headache symptoms make her less efficient and effective
at testing and selling. She describes it like going through the motions. On
occasion, she cancels prospective clients and/or rebooks them.

[157]     And at age
34, she is also young with a long working life ahead of her.

[158]     Her job at
Connect is to sell hearing aids. Her salary, commissions and bonuses are based
on meeting monthly and annual sales targets. Although she says her goal was to get
a transfer to the high producing Mission clinic and later become the area
manager for Connect, the evidence does not satisfy me on a balance of
probabilities that she would have moved from the Westbank clinic to the Mission
clinic had she not been injured. While her pain may have been one factor in her
decision to stay in Westbank, it was not the only or the driving factor. I
agree with the defendant that the move to Mission cannot be treated as anything
more than a remote possibility and that Mr. Manhas’ evidence in that
respect must be treated with caution.

[159]     She would
also have considered working overseas with her employer’s “Hear the World”
program, but now feels restricted to home because of the support system she has
in place.

Step 1 – Has the plaintiff proven that there is a real and substantial
possibility that she will suffer a future loss of income?

[160]     Yes.

[161]     Despite continuing
the work as an RHIP at the Westbank clinic, I have found that she continues to
do so suffering the effects of her chronic pain condition. She has a permanent
injury and suffers from permanent pain to varying degrees. This will limit her
ability to perform her job as effectively and efficiently as she could have,
had she not been injured.

[162]     Dr. Underwood’s
opinion, which I accept, is that she is at an increased risk for absence from
work as a result of pain.

[163]     Connect’s
focus is for its RHIPs to sell as many hearing aids as possible. Bonuses and
commissions are paid accordingly.

[164]     Although
most of the plaintiff’s earnings are from salary, a portion relates to
commissioned sales. I accept that, to some degree, her ability to sell hearing
aids, market and promote the Westbank clinic has been and will continue to be
compromised.

[165]     I find it
unlikely that Connect’s management is content with the plaintiff’s performance.
Her performance reviews rate her as average or below average. Her new
supervisors have expressed concerns that both the plaintiff and the clinic are
not making their respective annual targets. When the plaintiff was asked to
work longer hours and open the clinic on Saturday to boost sales, she declined.
I find that her reasons were in part related to her chronic pain and in part
related to her social life.

[166]     I also
find that the plaintiff’s performance at the Westbank clinic is inconsistent
with her pre-accident personality, abilities and work ethic. She has been a
hard worker from an early age. Had she not been dealing with chronic pain, she would
likely have met her sales targets and if not, enthusiastically worked extra
hours and on weekends to ensure she did.

[167]     Given the
permanent nature of her pain and the likelihood that she will be working less
effectively and enthusiastically in selling hearing aids than she would be had
she not been injured, I find that she has proven a real and substantial
possibility of a future loss of earnings.

Step 2 – How is the future loss best quantified?

[168]    
In my view, this case calls for the quantification of the award using
the “loss of capital asset” approach, rather than the loss of earnings approach.
This is because the plaintiff’s future loss, although proven, is not easily
measurable (Perren at paras. 12 and 32).

[169]     To
determine a loss of future earnings using the “loss of capital asset” approach,
the four factors from Brown v. Golaiy (1985), 26 B.C.L.R (3d) 353 at para. 8,
must be applied. They are as follows:

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

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

3.       whether 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.       whether the plaintiff is
less valuable to herself as a person capable of earning income in a competitive
labour market.

[170]    
 In this case, the plaintiff is less capable of earning income from
other types of employment in the hearing aid industry and other jobs she has
held in the fitness field. She is less attractive to herself because of her
limitations. She is overall less capable of earning income in a competitive
work environment.

[171]    
Her loss is not easily measurable. The approach used in Pallos v.
Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260, of
assessing the loss is the most appropriate. It suggests an award equal to “one
or more” year’s annual salary:

43        The cases to which we
were referred suggest various means of assigning a dollar value to the loss of
capacity to earn income. One method is to postulate a minimum annual income
loss for the plaintiff’s remaining years of work, to multiply the annual
projected loss times the number of year remaining, and to calculate a present
value of this sum. Another is to award the plaintiff’s entire annual income for
one or more years. Another is to award the present value of some nominal percentage
loss per annum applied against the plaintiff’s expected annual income. In the
end, all of these methods seem equally arbitrary. It has, however, often been
said that the difficulty of making a fair assessment of damages cannot relieve
the court of its duty to do so.

[172]     Given the
plaintiff’s young age and the possibility of continuing to be affected by
chronic pain throughout her working lifetime, my view is that something between
one and two years’ annual salary would be appropriate for a future award. In
making this assessment, I have considered the loss of future earnings
multipliers provided in Mr. Kevin Turnbull’s report. For every $1,000 per
year the plaintiff loses from the trial date to age 65, the present value is
$25,015. If, for example, her average loss of annual earnings from her chronic
pain was $3,000, the present value of her future loss would be roughly $75,000,
slightly more than one year’s salary.

[173]     Her loss
of future earning capacity claim is assessed at $75,000.

Cost of Future Care

[174]     The
plaintiff testified and I accept that she is prepared to do whatever it takes
to try and recover to her pre-accident base line. She recognizes that after
five years her chances are slim but wishes to continue treatments that she
finds beneficial and help her stay functional at home and at work. These
include ongoing massage therapy treatments (she describes massage therapy as
the “band aid” that allows her to continue working), physiotherapy treatments,
IMS treatments (although extremely painful) and medications. She has already
implemented other recommendations such as the use of a whole body support
pillow, lightweight vacuum, exercise foam roller, folding cart, thermal neck
and shoulder wrap. She is in the process of obtaining ergonomic office furniture
that was recommended by her occupational therapist and will be paid for by her
employer.

[175]     The
majority of homemaking activities are currently being performed by her roommate.
The plaintiff will require assistance once she moves out on her own.

[176]     Dr. Etheridge
has recommended rhizotomies at three levels in her neck. Although somewhat
anxious about the procedure from her own research, she has discussed the
procedure briefly with Dr. Etheridge and is prepared to try it. She is also
prepared to try prolotherapy as recommended. She is prepared to follow Dr. Etheridge’s
advice to help control her pain.

[177]     On average,
the time between treatments will be 12 – 18 months. The pain will come back
earlier.

[178]     Recommendations
for ongoing and future treatment were also made by Melanie Bos (occupational
therapist) in her report of June 30, 2014. Dr. Underwood agreed with them.
Like Dr. Underwood, Ms. Bos also recommended a program to exercise
and strengthen the plaintiff’s cervical region combined with education on her
posture. Ms. Bos didn’t believe the plaintiff would need a physiotherapist
on a regular basis after the program was set up. She would be able to do the
exercises on her own. She recommended assistance for the plaintiff if and when
she decided to get pregnant. She also felt that the plaintiff’s chronic pain in
the pelvis/hip region could complicate matters during any future pregnancy and exacerbate
her pain.

[179]     Other
recommendations include Botox injections, which were beneficial for her
previously.

[180]    
I have already determined that the plaintiff will continue to suffer
from the effects of this Accident indefinitely. She will need ongoing
treatment, medications and equipment to function at work, home, socially and
recreationally. The following future care costs are awarded based on the
recommendations in the medical evidence. I have used Mr. Turnbull’s May
21, 2015 report, Exhibit 1, Tab 6A, as a guide and have rounded the awards
either upwards or downwards as I felt appropriate:

a.       Physiotherapy and IMS

[181]     The
plaintiff has used and continues to use physiotherapy and IMS for pain control.
I agree with the recommendations for continued physiotherapy and IMS to treat
her chronic myofascial pain in the neck, shoulder and lower back muscles. However,
it should be tapered off after 10 years. Long-term needle treatments are not
recommended due to the likelihood of scar tissue build up. Ms. Bos
recommends 24 sessions per year, continuing for life. While I agree these
treatments should be available as needed, I am not persuaded she will need them
as often as Ms. Bos suggests. I allow $1,000 per year until age 50 ($16,000)
and $500 per year until age 65 ($7,500). By then the plaintiff will be
approximately 65 years of age. Using Mr. Turnbull’s report, I assess this
amount at $23,500.

b.       Massage Therapy

[182]     Ms. Bos
recommends 10-20 sessions per year at an average cost of $100/session. Dr. Etheridge
agrees that she will benefit from ongoing massage therapy. I allow 12 sessions
per year to age 65 and I assess this amount at $37,000.

c.       Medications

[183]     It is
reasonable to conclude that the plaintiff will continue to need Advil and
Tylenol for pain control as needed. Ms. Bos suggests $82.82 per year. I
allow $50 per year till age 65 and award the sum of $1,500 for medications.

d.       Equipment

[184]     Ms. Bos
recommends a whole body support pillow, thermal neck and shoulder wrap, light
weight vacuum cleaner, an exercise foam roller and core shorts. These items are
reasonable expenses to help the plaintiff function as she goes through life. These
items will wear out over time and will need to be replaced. I award the sum of
$2,000 for these items.

Ms. Bos also recommends ergonomic equipment to help her
function at work. The evidence is that Connect Hearing has or will be supplying
her with office equipment as needed and I decline to make any award for those
items.

e.       Rhizotomies

[185]     Dr. Etheridge
testified that if the plaintiff had good relief from nerve blocks, she would
benefit from facet joint rhizotomies, which he felt would improve her neck pain
and headaches. Access to rhizotomies through MSP is an issue. Privately, they
can be done for between $3,000 and $5,000 per treatment and can last for 12 –
18 months, with an expected 50% reduction of pain and corresponding increase in
function. Dr. Gross does not recommend she undergo prolotherapy or
rhizotomies because the time she will require off work to recover from them is
unwarranted. He would prefer that she continue with a formalized exercise
program. However, while the recommendations made by Dr. Gross would in
most cases be preferable over surgical intervention, I am satisfied that the
plaintiff has tried the kind of exercise Dr. Gross recommends without much
of an impact. This is a case where another alternative should be considered. The
plaintiff has testified that despite the risk associated with rhizotomies, she
would like to try them. I accept her evidence. I award the sum of $15,000 which
should cover the cost of a set of 3 – 5 rhizotomies. If they work as Dr. Etheridge
expects them to, the plaintiff will then need to request them through the MSP
system.

f.        Prolotherapy

[186]     Dr. Etheridge
recommends 8 – 10 image guided prolotherapy treatments into the C2-4 facet
joints. The plaintiff is prepared to undergo these treatments. The cost is $200
– $300 per treatment. The range of expense for these treatments is $1,600 –
$3,000. I allow $2,000.

g.       Review and reassessment of costs if and when the plaintiff becomes
pregnant or when she moves into her own residence

[187]     Ms. Bos
recommends an ergonomic assessment and education when she gets pregnant. Dr. Etheridge
agrees that would be reasonable. The recommendation is for 6 hours at $105 per
hour = $630. I agree this cost is reasonable and it is allowed. I do not agree
that home support services such as home maintenance or yard maintenance should
be awarded. This claim seems speculative and there is no evidence that the
plaintiff intends to purchase her own residence or move from her current accommodation
any time soon. If she gets married and has children, I have factored this sum
into her loss of housekeeping award.

[188]     In sum,
the plaintiff is awarded the following:

 a.       Physiotherapy/IMS:                       $23,500.

 b.       Massage Therapy:                        $37,000.

 c.       Medications:                                   $1,500.

 d.       Equipment:                                     $2,000.

 e.       Rhizotomies:                                 $15,000.

 f.        Prolotherapy Treatments:                $2,000.

 g.       Review/Reassessment:    $630.

 Total:                                            $81,630.

Loss of Housekeeping Capacity

[189]     The
evidence satisfies me that, although there is generally some overlap between a
specific future care cost award and loss of housekeeping capacity, an award
under this head of damages is appropriate in this case. The plaintiff is young
and is hopeful to marry and raise a family. She will continue to feel the
general effects of chronic pain and will be less efficient and effective in her
homemaking.

[190]     Further, Dr. Underwood’s
opinion, which I accept, is that she is at risk of exacerbation of pain due to
future pregnancy and that child care may exacerbate her pain.

[191]     I award
$10,000 under this head.

Summary

[192]     In sum,
the plaintiff is entitled to damages as follows:

 a.       General Damages:                                             $90,000.00

 b.       Past Wage Loss/Loss of earning
capacity:           $23,600.00

 c.       Special Damages:                                               $12,421.97

 d.       Loss of Future Earning Capacity:                         $75,000.00

 e.       Future Care Costs:                                             $81,630.00

 f.        Loss of Housekeeping Capacity: $10,000.00

 Total:                                                               $292,651.97

[193]     The
plaintiff is entitled to court order interest on her past wage loss/past loss
of earning capacity and special damages awards.

Costs

[194]     Subject to
any matters of which I am unaware, the plaintiff is entitled to Scale B costs
throughout.

“G.P.
Weatherill J.”