IN THE SUPREME COURT OF BRITISH COLUMBIA
Biefeld v. Neetz,
2016 BCSC 689
Claire A. Biefeld
Jessica Lynn Neetz
The Honourable Madam Justice Adair
Reasons for Judgment
Counsel for the Plaintiff:
D.N. Osborne and J.
Counsel for the Defendant:
R. Moen and M.
Place and Date of Trial:
July 13-17, October
Place and Date of Judgment:
April 20, 2016
On September 7, 2007, the plaintiff, Claire Biefeld, was involved in a
motor vehicle accident while driving on Highway 1 near Kamloops, B.C. I will
refer to this as the Accident or the September 2007 Accident. Ms. Biefeld
asserts that, as a result of the Accident, she suffered a number of injuries,
including to her neck, left shoulder, left arm and left hand. She says that
her symptoms eventually caused her, in October 2014, to leave a job she loves.
Ms. Biefeld says further that, as of trial and as a result of her injuries, she
continues to experience serious and debilitating symptoms and pain,
particularly in her left arm and shoulder, and that, based on all of the
medical evidence, the prognosis for any improvement is poor. In addition to
non-pecuniary damages, Ms. Biefeld seeks compensation for past income loss,
loss of future income earning capacity, cost of future care and special
The defendant admits that her negligence caused the Accident. Moreover,
the defendant does not dispute that, as a result of the Accident, Ms. Biefeld
suffered injuries, in particular soft tissue injuries to her neck and shoulder,
and that Ms. Biefeld was totally disabled for five weeks after the Accident.
The defendant also accepts that, as a result of the Accident, Ms. Biefeld now suffers myofascial pain and other
symptoms, particularly in her left arm and shoulder. Thus, the defendant does
not dispute that Ms. Biefeld is entitled to compensation for the injuries she
suffered in the Accident and for losses caused as a result.
However, the defendant disputes that the injuries suffered by Ms.
Biefeld in the Accident have caused all of the difficulties and losses Ms.
Biefeld claims that she has suffered in the past and will likely suffer in the
future. In particular, the defendant says that the fact that Ms. Biefeld
continued to work in her pre-accident occupation for seven years after the Accident
demonstrates her functional ability to perform her job duties. The defendant
says that Ms. Biefelds employment for seven years post-accident is
inconsistent with Ms. Biefelds current claims that, because of injuries
suffered in the Accident, she has sustained a loss of income in the period from
October 2014 to trial, and has also sustained a loss of future income earning
Ms. Biefeld was born in September 1959, in Calgary, and is the youngest
in a family of four children. She has maintained a close relationship with her
older sister, Jeanette Ketch, who testified at trial. She is right-handed.
Ms. Biefeld went to high school in Duncan, B.C. However, she did not
complete Grade 11 because of problems with math, and left school in about
1975. A few years later, Ms. Biefeld was able to obtain her high-school
equivalency through courses at Malaspina College in Nanaimo.
In 1977, Ms. Biefeld met Wayne Bergman, and they began a long-term
common-law marriage a few years later. In the late 1970s and into the 1980s, Ms.
Biefeld worked at various jobs, including waitressing and running a day care.
She and Mr. Bergman had two children, a son, Kyle, born in October 1983, and a
second son, Aaron, born in April 1986.
In the early 1990s, Ms. Biefeld ran a house-cleaning business. She then
returned to Malaspina College and, in March 1994, she obtained a Teachers
assistant diploma. This qualification then allowed Ms. Biefeld to work as what
was then referred to as a teachers assistant, and is sometimes also referred
to as a special education assistant. The job is now referred to as a
certified educational assistant or CEA. In these Reasons, I will use the
term CEA to describe the position.
In September 1994, Ms. Biefeld was hired to work as a CEA in Vavenby,
B.C. In 1995, she worked as a CEA in both a secondary school and an elementary
school in Clearwater. Throughout her career as a CEA, Ms. Biefeld preferred to
work in an elementary (rather than secondary) school, and with younger
students. Ms. Biefeld is about 5 feet 3 inches tall, with a relatively slight
build. She found that older students were too big for her.
In 1996, Ms. Biefeld and her family moved to Kamloops, to a 3,300 square-foot
home on a third-of-an-acre lot. Ms. Biefeld very much enjoyed looking after
the house and the property, and by all accounts was very good at it.
After the move to Kamloops, Ms. Biefeld was hired as a CEA with Dallas
Elementary School, and, for the most part, she worked at Dallas Elementary
through to 2012. However, from time to time, Ms. Biefeld was bumped out of
her position at Dallas by members of her union who had more seniority, and she
then took positions at other elementary schools. For example, she worked at Beattie
Elementary School for the school year beginning September 2000.
In 1999, Ms. Biefeld and Mr. Bergman separated. Ms. Biefeld was then
unhappy and dissatisfied in the relationship. Mr. Bergman worked in the timber
and logging industry and was away from home a great deal, and Ms. Biefeld felt
that he was not supportive of her. She left the family home. Mr. Bergman
remained there with the couples two sons. As Ms. Biefeld recalled, her
children were angry with her, and it was not a happy time. While Ms. Biefeld
and Mr. Bergman were separated, there were issues with Ms. Biefelds attendance
at work, and her frequent absences created significant conflict with school
Ms. Biefeld had also met someone, Allan, on-line. He was from
Connecticut, and moved to B.C. sometime in 2000. Ms. Biefeld and Allan were
married here. However, the marriage was a brief one.
Ms. Biefeld described herself during this period as feeling very
emotional and in a bad state of mind, although at other points in her evidence
she described her emotional health at this time as fine. She was never formally
diagnosed with or treated for depression.
In early November 2000, while Ms. Biefeld and Allan were still together,
they were involved in a motor vehicle accident on the Coquihalla Highway (the
November 2000 Accident). The car in which they were travelling hit black
ice, rolled over and landed in a ditch. At trial, Ms. Biefelds memory of this
event was surprisingly vague. However, with the assistance of some documents,
she recalled that, following this accident, she had complaints of shoulder and
back pain. In fact, as of the November 2000 Accident, Ms. Biefeld was on sick
leave from her position at Beattie Elementary. As best as Ms. Biefeld could
recall, the reason was because she was having problems with her back. Ms.
Biefeld remained off work into February 2001, and she reported continued
problems with her left arm and shoulder. When she returned to work, she
continued to be in conflict with the principal at Beattie and some of her
colleagues there. Ultimately, Ms. Biefeld was asked to leave the school.
Eventually, Ms. Biefeld returned to work as a CEA at Dallas.
By the spring of 2002, Ms. Biefelds personal life had improved
significantly. Allan was out of the picture. Ms. Biefeld and Mr. Bergman
reconciled, and Ms. Biefeld moved back into the family home. Ms. Biefeld had
also recovered from the effects of the November 2000 Accident.
According to Ms. Biefeld, Mr. Bergman and Aaron Bergman, for the next
five years or so, until the September 2007 Accident, life for Ms. Biefeld and
her family carried on relatively uneventfully. When she was not working, Ms.
Biefeld pursued favourite activities around the family home, such as gardening
and mowing the lawn. In the winter, and because of Mr. Bergmans frequent
absences, she looked after clearing the driveway of snow. Inside the home, she
was an immaculate housekeeper. Although Ms. Biefeld and Mr. Bergman did not
have a particularly active social life, they enjoyed activities such as hiking
and fishing together, and going for walks. Ms. Biefeld also enjoyed swimming.
Ms. Biefeld and Mr. Bergman went out for dinner and brunch together frequently,
and travelled to visit friends. Ms. Biefeld was physically active and exercised
Ms. Biefeld was also happier in her work. She completed a number of
training programs related to her position as a CEA (for example, in non-violent
crisis intervention training, in seizure management and an applied behaviour
analysis workshop). She also obtained her level 1 first-aid attendant
certificate, which entitled her to a small bonus (about $0.30 per hour on her
hourly wage rate) as a first-aid attendant at her school.
On September 7, 2007, Ms. Biefeld was driving her car (a 2002 Mazda
Protege, with a manual transmission) and travelling in the right lane on
Highway 1, approaching the turn-off at Aberdeen. Without warning, her car was
hit on the drivers side by the defendants vehicle. Ms. Biefelds car spun
across the highway towards the median and ended up in the grass near the
turn-off. As Ms. Biefeld recalled, the impact of the collision was severe.
She immediately felt sore. Coincidentally, her stepson arrived quickly at the
scene and called an ambulance. When the ambulance arrived, Ms. Biefeld was put
in a neck collar and placed into the ambulance on a stretcher. She was taken
to Royal Inland Hospital.
As Ms. Biefeld recalled, at the hospital, her neck was very sore and her
left leg was also very sore. She had x-rays and then was discharged home. She
recalls that she was in a great deal of pain.
Ms. Biefeld saw her family doctor, Dr. Shirley Sze, within a few days of
the Accident. Ms. Biefeld recalled that, when she saw Dr. Sze, she was still
in a great deal of pain, particularly in her neck, shoulder and left arm. Dr.
Sze diagnosed Ms. Biefeld as suffering central trapezius and lumbar muscle
strain and she recommended physiotherapy. Ms. Biefeld was given some
medication (including Flexeril or cyclobenzaprine) for pain and also given some
neck exercises. Ms. Biefeld saw Dr. Sze again about a week later. On
examination, Dr. Sze noted limited flexion, extension and lateral rotation.
She changed one of Ms. Biefelds medications (although cyclobenzaprine
continued to be prescribed) and referred Ms. Biefeld for physiotherapy. Ms.
Biefeld was also referred to a physiatrist, Dr. Calder, for nerve conduction
studies based on what was suspected might be a C7 brachial plexus injury.
According to Ms. Biefeld, about two or three weeks after the Accident,
she was still in extreme pain. She also recalls having some numbness and
tingling in her fingers.
Ms. Biefeld again saw Dr. Sze on October 9, 2007. On examination, Ms.
Biefelds left trapezius muscle was still swollen and tender, as were the left
posterior cervical muscles. Ms. Biefeld was unable to lift her left arm above
60 degrees and there was tenderness in the upper left arm. Dr. Sze diagnosed
left rotator cuff strain and left-sided trapezius and cervical strain. Dr. Sze
agreed with Ms. Biefelds request to return to work, and outlined a gradual
Ms. Biefeld returned to work on October 12, 2007, about 5 weeks after
the Accident. According to Ms. Biefeld, although she was still somewhat sore,
she wanted to return to work. However, according to Ms. Biefeld, she had
problems doing her job. For example, Ms. Biefeld said that she was unable to
do any lifting because she found it too painful. On the other hand, her
position at that time did not require lifting.
As Ms. Biefeld recalled, over the next few months, and into 2008, she
experienced some improvement in her symptoms. However, certain problems,
particularly around the left side of her neck, her left shoulder and arm,
Ms. Biefelds sleep was disturbed because of pain. Dr. Sze prescribed a
medication (amitriptyline) to help her sleep, but after trying it, and despite
Dr. Szes recommendation that Ms. Biefeld take the medication as prescribed to
normalize her sleep patterns, Ms. Biefeld decided against taking it because she
did not like the side effects. When Ms. Biefeld saw Dr. Sze in mid-February
2008, Dr. Sze diagnosed resistant soft tissue pain, especially left trapezius
and posterior cervical muscles. Dr. Sze recommended that Ms. Biefeld continue
physiotherapy and strengthening exercises.
Dr. Miranda du Preez (who later became Ms. Biefelds family physician)
saw Ms. Biefeld on April 2, 2008. The purpose of the visit was to obtain a
note to continue with physiotherapy. In Dr. du Preezs opinion, it was
necessary for Ms. Biefeld to continue with physiotherapy because she had
residual soft tissue pain, especially over the left trapezius muscle. Dr. du
Preez recommended that Ms. Biefeld continue with physiotherapy twice a week
until pain free.
However, according to Ms. Biefeld, she was not able to lift her left arm
or keep it up. She found that she could not lift heavy items. She was unable
to perform routine housekeeping tasks such as vacuuming and washing floors.
Although she was still making meals, washing dishes and doing laundry, Ms.
Biefeld found that her left arm was very sore. She was continuing to take cyclobenzaprine
regularly, for pain and to help her sleep. By the summer of 2008, although Ms.
Biefeld was off work, problems persisted. She found that she was unable to mow
the lawn because of pain in her left arm. She was no longer able to swim
because of pain. On the other hand, that summer, Ms. Biefeld went on a trip to
Europe with her father for a couple of months.
Dr. du Preez became Ms. Biefelds family physician in August 2008, when
Dr. Sze retired from practice. Dr. du Preez saw Ms. Biefeld towards the end of
September in relation to Ms. Biefelds complaints of ongoing left shoulder and
neck pain radiating into the upper arm. Dr. du Preez diagnosed Ms. Biefeld as
suffering from nerve pain, and prescribed the medication Lyrica. When Dr. du
Preez next saw Ms. Biefeld in mid-January 2009, Ms. Biefeld reported no
improvement in the neuralgic pain. Dr. du Preez then diagnosed Ms. Biefeld as
suffering a chronic pain syndrome as well as mild rotator cuff strain.
Sometime during the summer of 2009, Dr. du Preez referred Ms. Biefeld to
a program called Bounce Back for some cognitive behavioural therapy. Ms.
Biefeld took advantage of this referral. As Ms. Biefeld recalled, she had a
course of counselling by telephone for what she thought was about eight weeks.
Ms. Biefeld recalled that she found the counselling helpful. At trial, Ms.
Biefeld was unable to recall the surname of the counsellor. As of trial, Ms.
Biefeld has not had any face-to-face counselling, nor has Dr. du Preez made
another referral. At her examination for discovery in March 2013, Ms. Biefeld
expressed the view that she did not need any psychological counselling.
According to Ms. Biefeld, in the period between September 2008 and June
2012, while she was working at Dallas, she was working with pain and limitations
in the use of her left arm. She said that she did not perceive any improvement
in her pain level. Repetitive movements would hurt her arm. Lifting her left
arm would cause excruciating pain in her neck and shoulder and numbness in
three of her fingers. Looking down to read or work with students would result
in extreme pain in her neck. She did her best to avoid lifting anything
heavy, and also to avoid anything that required use of her left hand and arm. She
continued to take cyclobenzaprine, as prescribed by Dr. du Preez. According to
Ms. Biefeld, she was unable to sleep without this medication.
Despite these problems, Ms. Biefeld was able to continue in her position
as a CEA at Dallas. Those she worked with were, generally speaking, unaware of
her situation unless she discussed it with them directly. For example, Ms.
Penny Marr, a kindergarten teacher at Dallas who had Ms. Biefeld working as a
CEA in her classroom from September 2009 to June 2010, knew about the Accident
because Ms. Biefeld told her at the beginning of the school year. As Ms. Marr
recalled, Ms. Biefeld mentioned that there was a problem with her shoulder. However,
during that school year, Ms. Marr did not recall any issues or problems about Ms.
Biefelds attendance at work, and so far as Ms. Marr could recall, Ms. Biefeld
never sought any special treatment or allowances in the classroom. The main
physical requirement for Ms. Biefeld in her capacity as the CEA in Ms. Marrs
classroom was an ability to sign for a hearing-impaired student.
Ms. Michelle Bell was the learning assistance resource teacher at Dallas
from 2006 to 2012, and was responsible for supervision of and scheduling
(subject to the principals direction) of CEAs at the school, including Ms.
Biefeld. She was aware of the Accident when it happened, although, as of
trial, she conceded that her memory for details that far back was not very
good. As Ms. Bell recalled, there were some physical things that Ms. Biefeld
was no longer able to do after the Accident, but she described the heavy
lifting part as being about 1% of the CEAs job. Ms. Bell also recalled that,
when she was talking to Ms. Biefeld, Ms. Biefeld would often be rubbing her
shoulder. Ms. Bell also mentioned that, although Ms. Biefeld did not complain,
she seemed less happy and more irritable, although she also described Ms.
Biefeld before the Accident as somewhat gruff.
In any event, when Ms. Biefeld returned to Dallas after the Accident, Ms.
Biefeld was not required either to lift or restrain children. If a child
needed to be lifted or restrained, there were other CEAs available to step in.
Ms. Biefeld could not recall having to call on another CEA for assistance in
that respect. She acknowledged that she was never required to type in her
position as a CEA. Rather, she was required to keep a student log book, and
she acknowledged that she was able to make the handwritten notes without
In November 2009, there was an incident involving a school bus. The bus
was taking Ms. Marrs class to a concert, along with Ms. Marr, Ms. Biefeld and
some of the parents. The bus had pulled out of the school parking lot, and
slowly travelled a short distance down the street. When the bus attempted to
make a right turn, it hit a fire hydrant, which caused the bus to tilt
slightly. Ms. Biefeld was sitting next to a student, and pulled her away from
the window, across her lap and into the aisle. Everyone got off the bus
safely. However, according to Ms. Biefeld, moving the student was quite
painful for her and it aggravated her left shoulder pain. She paid a visit to
Dr. du Preez in relation to the incident. Nevertheless, Ms. Biefeld did not
believe that the bus incident had any lasting effect on her, and she did not
miss any work because of it. (I conclude that Dr. du Preez was in error in
recording that Ms. Biefeld was off work for 25 days.)
However, in Ms. Biefelds last year at Dallas (September 2011 to June
2012), there was a conflict with another CEA in Ms. Biefelds classroom. The
conflict had been brewing for some time. Ms. Biefeld and the other CEA did not
like one another. Both Ms. Biefeld and the other CEA wished to work with a
hearing-impaired girl in the class. This was the student with whom Ms. Biefeld
had worked during the 2009-2010 school year, and Ms. Biefeld also had a
relationship with the girls foster mother. However, the other CEAs signing
skills were considerably superior to Ms. Biefelds and that made her a more
suitable match. The friction between Ms. Biefeld and the other CEA led to
other problems. The conflict escalated to the office of the principal, Ms.
Linda Hneeda. From Ms. Hneedas perspective, the stand-off between the two
CEAs was unacceptable, and she took the necessary steps to deal with it, in the
interests of the schools students. On the other hand, Ms. Biefelds
perception is that Ms. Hneeda added heavy lifting as a job requirement for
her CEA position, knowing that Ms. Biefeld would be unable to fulfill it and as
retaliation for Ms. Biefeld complaining about Ms. Hneeda to her union. The
complaint was based on Ms. Biefelds belief that Ms. Hneeda had gossiped to
other staff members about Ms. Biefelds situation, after Ms. Biefeld had
confided in her, something that Ms. Hneeda denied doing. Ms. Biefeld left
Dallas at the end of the school year in June 2012.
In any event, Ms. Biefeld had no difficulty finding another CEA
position, at another school in the Kamloops district, R.L. Clemitson, where she
began working in September 2012. She was one of four CEAs there. Clemitson
was about five minutes further away from Ms. Biefelds home, as compared with
Dallas, so it was very slightly less convenient. However, at Clemitson, Ms. Biefeld
was doing the same tasks as she had done in her accommodated position at Dallas.
There was no lifting required. As she had been at Dallas, Ms. Biefeld was also
one of the first-aid attendants at Clemitson. According to Ms. Biefeld, even
though it was not officially part of her job, a couple of times she had to
restrain children, which resulted in extreme pain in her shoulder and left
arm. However, Clemitsons principal, Ms. Darlene Gordon, did not recall Ms.
Biefeld ever coming to her with concerns about her ability to do her job. As
Ms. Gordon recalled, Ms. Biefeld never asked for any kind of special treatment.
Ms. Gordon recalled that Ms. Biefeld was very skilled in her work and, until
the fall of 2014, seemed happy at the school.
Ms. Biefeld, as always, had the summer of 2014 off. However, according
to Ms. Biefeld, when she returned to work in September 2014, she was in a great
deal of pain, which she described as excruciating. She was having continued
problems sleeping. According to Ms. Biefeld, she could do very little with her
left arm because of the pain and there was (as she described it) a lot of
swelling in her arm. As far as Ms. Biefeld was concerned, she was getting
Ms. Biefeld then decided to stop work because she felt she could no
longer cope. She went to see Dr. du Preez in October 2014. According to Dr.
du Preez, Ms. Biefeld told her that she wanted to go off work because working
significantly worsened her pain. On examination, Dr. du Preez noted that Ms.
Biefeld was upset, crying and depressed. Among other things, Dr. du Preez
noted that Ms. Biefelds left trapezius muscle and supraspinatus muscle were
swollen, with severe hypersensitivity and tenderness, and she suspected
fibromyalgia. She wrote a note for Ms. Biefeld saying that she was completely
unable to work due to pain, swelling and inability to use her left arm.
Ms. Biefeld then went to see Ms. Gordon to communicate her decision to
leave work. Ms. Biefeld was assessed for long-term disability benefits in
October 2014, and (after the prescribed waiting period) went on long-term
disability in March, 2015. She was on long-term disability as of trial.
According to Ms. Biefeld, since stopping work, and despite (since the fall
of 2014) using a Fentanyl patch prescribed for her by Dr. du Preez, she is
still in a great deal of pain, which is worst at the end of a week. She feels
upset, anxious and depressed that she is no longer working, because (as she
explained) she loved her job as a CEA. However, she also says that she wants
to be 100% before she returns to work. Ms. Biefeld acknowledged that, before
stopping work in October 2014, she did not discuss any possible modifications
to her position with anyone, and the idea of reducing her hours or job-sharing
did not occur to her. She said that it was not because she was not interested
in part-time work; rather, she wanted to be better before going back to work.
According to Ms. Biefeld, she continues to have problems sleeping.
Since the September 2007 Accident, her intimate relationship with Mr. Bergman
has suffered, and they have slept in separate bedrooms for some years. Ms.
Biefeld can perform simple tasks, such as washing her hair, only with
difficulty because of the pain in her left shoulder and arm. In the kitchen,
she is unable to lift pots or a full kettle, which takes two hands. She is
unable to wash floors or clean the bathrooms. Vacuuming and laundry are
difficult. She is no longer able to garden. Since the Accident, she has
essentially stopped reading, an activity that she used to enjoy, because
looking down causes pain in her neck and holding a book up causes pain in her
left arm. Essentially, anything that requires the use of her left arm is
difficult and painful. Ms. Biefeld described her pain level in the morning as
about a 5 out of 10, and if she uses her left arm too much, the pain gets
worse. She says that, when driving, the pressure from the seat belt is painful,
although she continues to drive her manual transmission Mazda. Ms. Biefeld
says that she can no longer do exercises at home and cannot lift weights
because of pain. She is unable to lift her grandchildren. According to Ms.
Biefeld, she went as far as she could with physiotherapy and massage therapy,
but nothing had any lasting benefit. She said that she felt better when she
was not attending therapy.
Three people who know Ms. Biefeld very well testified at trial: Mr.
Bergman, Ms. Ketch and Mr. Aaron Bergman.
Mr. Bergman was born in 1952 and, as of trial, was a self-employed
businessman. He has plans to retire probably around age 67. Mr. Bergman
indicated that he and Ms. Biefeld have given some thought to downsizing from
their current home, but that it would be hard to leave the place they have
lived in for so long.
According to Mr. Bergman, prior to the Accident, Ms. Biefelds physical
health was always great. She was physically active, and the activities they
pursued together included swimming, biking, tennis and fishing. Until they
separated in 1999, Mr. Bergman described Ms. Biefeld as a happy person, a great
mother and great with children. Mr. Bergman acknowledged that he worked away
from home a great deal, leaving Ms. Biefeld to look after everything, which she
As Mr. Bergman recalled, he and Ms. Biefeld were separated for about
three years, and he did not have much contact with her during that time. He
did not know about the November 2000 Accident, for example. According to Mr.
Bergman, once Ms. Biefeld moved back to the family home, her health was good
and she appeared much happier than before the separation. They did many things
together, including camping, fishing, motorcycling and walking. Rather than
leaving Ms. Biefeld to do everything, Mr. Bergman started doing more things
around the property. Ms. Biefeld kept the house immaculate.
As Mr. Bergman recalled, at the beginning after the Accident, Ms.
Biefeld was able to manage her pain. However, as the years went on, it became
harder for her. His perception was that she was on more and different
medications. She was not able to do as much. As Mr. Bergman recalled, Ms.
Biefeld seemed forgetful and she was in poor physical shape. By the end of a
work week, she looked exhausted. In the earlier years after the Accident, Mr.
Bergman felt that Ms. Biefeld was able to recover during the time off in the
summer. However, at the end of the school year in 2014, she was, in his words,
barely making it. As Mr. Bergman recalled, by September 2014, the pain was
too much for Ms. Biefeld. He said that, even with a little bit of housework, Ms.
Biefelds left arm became swollen and she was in pain.
Mr. Bergman talked about the periods when Ms. Biefeld was taking
Lyrica. He described Ms. Biefeld on Lyrica as a snarly mad woman, and
described her behaviour as scary. He said, when she went off that
medication, it was better.
Mr. Bergman confirmed that he and Ms. Biefeld are no longer able to
share the same bed, and that their intimate relationship is now almost
non-existent. He said that he was always worried about hurting her.
According to Mr. Bergman, since Ms. Biefeld stopped work, she appears
worse physically. He described her as feeling frustrated because she is not
working and is in pain. He is worried about Ms. Biefeld becoming addicted to
her medications. Mr. Bergman said he has not pressed Ms. Biefeld to return to
work, because, financially, it is not necessary for her to do so (contrary to
what Ms. Biefeld suggested in her evidence). He just wants Ms. Biefeld to be
healthy and happy.
I turn next to Mr. Aaron Bergman.
As of July 2015, Aaron Bergman was living with his parents in Kamloops,
after living on his own for about four years. He recalled that, in the years
prior to the Accident, and after Ms. Biefeld moved back to the family home, she
was doing well. He recalled that she was quite active around the house and
yard. He recalled that his parents would go for walks together, and Ms.
Biefeld also went hiking and swimming. The garden, which Ms. Biefeld looked
after, was beautiful. As Aaron Bergman recalled, before the Accident, his
mother was happy.
He remembered seeing Ms. Biefeld in the hospital immediately after the Accident,
and described it as pretty harsh. As he recalled, since the Accident, his
mother appeared physically drained and sore all of the time. He recalled that
his mother was no longer able to garden or do outside chores, and inside, the
house was no longer as clean as it had been. According to Aaron Bergman, his
mother appeared depressed. He mentioned that he could not even give her a
proper hug, because if he squeezed her too hard, it would be painful for her.
According to Aaron Bergman, since he has returned to live at home, his mother
appears to have gotten worse. As far as Aaron Bergman could recall, even after
the Accident, his mother never talked about retiring and she loved her job.
Ms. Ketch has lived for some time in the Clearwater area, where she
currently works as a chef. She described her relationship with Ms. Biefeld as
a close one. When both she and Ms. Biefeld were living in the Clearwater area,
they would see one another every day. When Ms. Biefeld moved to Kamloops, she
drove to visit Ms. Ketch about once a month. Ms. Ketch described Ms. Biefelds
health prior to the Accident as good. As Ms. Ketch recalled, although Ms.
Biefeld had a difficult time after the November 2000 Accident, she recovered in
six months or so.
Ms. Ketch said that, since the Accident, Ms. Biefeld has continued to drive
to Clearwater, on her own, to visit. During the spring and summer, the visits
are about once every six weeks. They are less frequent in the winter because
of weather. Ms. Ketch described Ms. Biefeld as always seeming a little
stressed from pain, and that she did not seem to be herself. From Ms. Ketchs
observations, Ms. Biefeld looked tired and in pain. She recalled that Ms.
Biefeld complained frequently about not being able to do things.
Opinion evidence from five medical doctors was tendered at trial. Four
(Dr. du Preez, Dr. Anthony Salvian, Dr. R. Douglas Hamm and Dr. Christopher
Robertson) testified as witnesses in the plaintiffs case. Dr. Russell
OConnor, who had originally been retained by plaintiffs counsel to carry out
independent medical assessments of Ms. Biefeld (and did so), testified as a
witness in the defendants case. Other than Dr. du Preez, all of the doctors
were retained to carry out independent evaluations of Ms. Biefeld in connection
with this litigation. There were no issues regarding the qualifications of
each of the doctors to give opinion evidence in this action.
Apart from Dr. Robertson, all of the medical doctors called by the
plaintiff prepared multiple expert reports. Dr. Robertson prepared a single
report. Dr. OConnor prepared two reports.
Generally speaking, the medical experts agree that the September 2007 Accident
caused Ms. Biefelds injuries, which, in turn, have led to her current
problems. Generally speaking, the medical experts agree that the prognosis for
Ms. Biefeld, in terms of complete recovery, is poor. The main area of
disagreement between Ms. Biefelds experts and Dr. OConnor concerns what could
possibly be accomplished for Ms. Biefeld, in terms of improving both her
physical health and functioning, and her psychological health, with true,
sustained active rehabilitation and proper counselling.
Dr. Du Preez is a family physician and was qualified to give opinion
evidence in the area of general practice medicine.
Dr. du Preezs first report, dated January 31, 2009, provides a
narrative of Dr. Szes diagnoses and treatment of Ms. Biefeld immediately
following the Accident and in the months thereafter, based on Dr. du Preezs
review of Dr. Szes clinical records, and Dr. du Preezs opinion based on her
own examinations of Ms. Biefeld.
As of her January 31, 2009 report, Dr. du Preezs opinion was that Ms.
Biefeld had reached:
maximal recovery, as this has now
become a chronic pain syndrome. She will most likely have permanent pain and
disability of her left arm and shoulder with decreased range of motion of the
shoulder and decreased grip strength of the left arm.
I dont think that surgery is [an] option. I have ordered CT
scans . . . and have also referred her back to Dr Jill Calder for further
assessment and management plan. I suspect that she will recommend further
conservative therapy, similar to what has been done so far. The dosage of
Lyrica can still be increased significantly, providing that the patient is
willing to take her medications as prescribed and can tolerate the
side-effects, predominantly drowsiness.
Dr. du Preez provided a second report, dated February 20, 2012, in
response to a request from Mr. Osborne. Dr. du Preez begins with a Summary of
the facts and professional opinions. In this section, Dr. du Preez summarizes
information she has taken from a variety of clinical records, including Dr. du
Preezs own examination findings, diagnoses and treatment recommendations as
she examined Ms. Biefeld from time to time. Among other things, Dr. du Preez
recorded that Ms. Biefeld was also referred for fascet [sic] joint injections,
but did not have a great benefit from it. Dr. du Preez is mistaken in her
conclusion that Ms. Biefeld received such treatment. Although it was
recommended for her, Ms. Biefeld did not accept the recommendation.
Dr. du Preez diagnosed Ms. Biefelds symptoms as follows:
– Complex, chronic pain syndrome
of the neck and left arm.
– Soft tissue injuries to the
neck and left sided brachial plexus with initial neuropraxis and ongoing
– Underlying fibromyalgia,
complicated by the soft tissue injuries sustained in the MVA.
– left sided rotator cuff
– Depression with anxiety features, precipitated and
worsened by chronic pain and sleep disturbances as well as treatment
In Dr. du Preezs opinion, as a result of the Accident, Ms. Biefeld
sustained soft tissue injuries to her neck and left-sided brachial plexus. In
the November 2009 bus incident, Ms. Biefeld sustained a left-sided rotator cuff
sprain and re-injured the soft tissues of her neck as well as the brachial
plexus. In Dr. du Preezs opinion, Ms. Biefeld had also developed depression
with anxiety features, precipitated and worsened by chronic pain and sleep
disturbances, as a result of the Accident.
With respect to a prognosis, Dr. du Preez stated that, in her opinion:
[I]t is more likely than not that
[Ms. Biefeld] will not have any further recovery, as her condition has become
chronic and no treatment has been successful in completely managing her symptoms
and disabilities since 7 September 2007, despite numerous attempts in physical
and medical treatment modalities.
She will therefore have continued disabilities in the areas
of her life . . . .
Concerning future employment, Dr. du Preez stated:
[I]t is my professional opinion that [Ms. Biefelds]
opportunities will be severely limited. She is unable to do any lifting,
pushing, pulling or carrying with her left arm. She is unable to keep her left
arm above her head for any length of time and she is unable to do any
repetitive movements. She is therefore basically limited to doing her current
job with restriction, as accommodated by her current employer.
Dr. du Preez recommended that Ms. Biefeld be referred to a pain
specialist, for investigation of possible underlying fibromyalgia. (Such a
referral was never made.) She recommended that Ms. Biefeld try the medication
Cymbalta, to address her chronic pain, sleep disturbance and depression. Dr.
du Preez said that it might also be beneficial for Ms. Biefeld to be
evaluated and treated by a psychologist specializing in cognitive behavioural
therapy and chronic pain. This was something that Dr. du Preez mentioned could
be done at the Welcome Back Clinic in Kamloops, and, generally, she recommended
a referral to that Clinic. Dr. du Preez expressed the view that Ms. Biefeld might
also find benefit from TENS treatments and spending time in a hot tub on a
regular basis. Finally, Dr. du Preez made recommendations concerning what, in
her opinion, Ms. Biefeld would require for future care.
Dr. du Preezs final report is dated February 14, 2015. Her diagnosis
of Ms. Biefelds symptoms remained the same as in her February 20, 2012 report,
as did her opinions concerning causation, the effect of Ms. Biefelds symptoms
on her activities of daily living and employability, and the prognosis. Dr. du
Preez noted that Ms. Biefeld told her that she had to trade in her standard
transmission car for an automatic, which had a big financial impact. In
fact, as of trial, Ms. Biefeld was continuing to drive her 2002 Mazda.
Dr. du Preez again noted that Cymbalta would be a good treatment option
for Ms. Biefelds chronic pain, sleep disturbance and depression, but that Ms.
Biefeld had not tried the medication because of fear of potential side-effects
and the inability to afford the medication. Dr. du Preez noted the various
pain medications that had been prescribed for Ms. Biefeld, but observed that Ms.
Biefeld seems to be very susceptible to developing side-effects and then
prefers to discontinue the medication, despite some improvement in symptoms.
Dr. du Preez noted that Ms. Biefeld was currently using cyclobenzaprine as
needed for muscle spasms and a Fentanyl patch every 72 hours for pain relief. Dr.
du Preez repeated her observation that it might also be beneficial for Ms.
Biefeld to be evaluated and treated by a psychologist specializing in cognitive
behavioural therapy. She repeated the opinions she expressed in her second
report concerning Ms. Biefelds future care needs.
Dr. du Preez concluded her third report by saying:
It is clear from reviewing the previous and current evidence
that the patients condition has become chronic and that there has been
virtually no improvement in her symptoms or ability in the past 3 years. I
therefore do not expect any further improvement.
Dr. Salvian is a specialist in vascular medicine, with a special
interest and experience in the diagnosis, prognosis and treatment of, and
fitness for employment of individuals with, thoracic outlet syndrome. He was
qualified to give opinion evidence in those areas.
Dr. Salvian examined and assessed Ms. Biefeld on September 15, 2010 and
January 30, 2015, and prepared two lengthy reports, dated November 10, 2010 and
March 30, 2015, respectively, in respect of those assessments.
In his November 10, 2010 report, Dr. Salvian diagnosed Ms. Biefelds
intermittent headache and left-sided neck and shoulder pain as most likely
caused by myofascial or fibroligamentous injury. He explained that the pain is
due to differential muscle spasm and injury of the ligaments, facet joints and
muscles of the upper back and neck, particularly in the range of the trapezius
and rhomboid muscles. He said that, in his experience, this type of chronic
neck and upper back pain is a common sequelae of this type of flexion
extension injury. In Dr. Salvians opinion, Ms. Biefelds complaints of pain
in her left arm, radiating from the neck to the shoulder and down the arm, and
associated with numbness and tingling in her fingers, were most likely caused by
brachial plexus irritation, or, in other words, post-traumatic thoracic
outlet syndrome with irritation of the nerves of the brachial plexus. In Dr.
Salvians opinion, the November 2000 Accident was unlikely to have caused or
contributed to this condition.
Dr. Salvian summarized his opinions as follows:
[I]t is my opinion that Ms.
Biefeld suffered a significant flexion extension injury at the time of the
motor vehicle accident of September 7, 2007 and that this resulted in injury to
the left sided paraspinal muscles, particularly the trapezius, scalene and
pectoralis minor muscle, which resulted in the rapid onset of irritation of the
nerves of the brachial plexus . . . .
. . .
Ms. Biefeld would not have developed these symptoms of pain
radiating down the arm and numbness and tingling into the fingers had she not
been involved in the motor vehicle accident of September 7, 2007.
With respect to a prognosis, Dr. Salvian said:
The symptoms of . . . post traumatic thoracic outlet syndrome
will not be cured by conservative therapy. [Ms. Biefeld] may be able to cope
by modifying her lifestyle as I have recommended above but she will not be able
to go back to her previous activities. If she is forced back to activities
that require heavy lifting or overhead use of the [left] arm or prolonged
repetitive activities, this will exacerbate her underlying neck pain and left
arm symptoms and may result in chronic pain syndrome, which needs to be avoided
at all costs.
Dr. Salvian also made some treatment recommendations for Ms. Biefeld.
He recommended Feldenkreis type physiotherapy, which, Dr. Salvian explained,
is aimed at improving the patients posture and focusses on abdominal breathing
and avoiding strain on the neck muscles. He recommended that Ms. Biefeld
continue to take cyclobenzaprine at night. He recommended that Ms. Biefeld be
seen again by a rehabilitation specialist, particularly one who has expertise
in the use of either Lidocaine or Botox injections into the paraspinal muscles
to relax spasm. Among other things, he recommended that Ms. Biefeld should
avoid heavy lifting with her left arm and avoid driving for more than 30 to 40
minutes at a time. In Dr. Salvians opinion, Ms. Biefeld would need assistance
with household tasks such as vacuuming and heavy cleaning, and would also need
assistance with activities such as gardening. Dr. Salvian said that he
believed Ms. Biefeld was depressed and somewhat discouraged, and he
recommended counselling and perhaps medication if necessary. He also
recommended that Ms. Biefeld see a kinesiologist or personal trainer to
improve her overall general conditioning and develop an aerobic exercise
program which will allow her to increase her fitness and avoid strain on the
left sided neck muscles.
Dr. Salvian prepared a brief report dated May 29, 2012, based on his
review of the results of a CT scan report and an MRI of Ms. Biefelds brachial
plexus. He stated that these results did not change the opinions he stated in
his November 10, 2010 report.
In Dr. Salvians final report, dated March 30, 2015, he was asked first
whether there had been any change in his opinions regarding his diagnoses of Ms.
Biefelds conditions and symptoms arising from the September 2007 Accident, as
compared with his November 10, 2010 report. Dr. Salvian said:
It remains my opinion that Ms.
Biefeld has a chronic myofascial pain syndrome of the left neck and upper back
region with secondary headache.
It is my opinion that these
symptoms have deteriorated and she has developed a more central chronic pain
syndrome. I am not a chronic pain specialist and I cannot comment as to the
possible diagnosis of fibromyalgia or a central pain syndrome. It would be
useful to have an opinion from a chronic pain specialist.
However, I have seen hundreds of
patients with whiplash flexion extension injuries of the neck and upper back. It
is my experience that a small percentage of patients will develop chronic
myofascial pain syndromes which become severe and debilitating.
It is my opinion that this is the case with Ms. Biefeld.
At trial, Dr. Salvian was asked about a possible diagnosis of
fibromyalgia for Ms. Biefeld. He had recorded in his clinical notes of his
examination of Ms. Biefeld his opinion that Ms. Biefelds chronic pain in her
left arm was unlikely to be fibromyalgia, since the pain did not appear to
affect anything other than the left arm, shoulder and anterior chest. He said
that patients who have multiple areas of chronic pain and a chronic pain
syndrome may have fibromyalgia. However, typically, such patients have
multiple tender points throughout the body, which Ms. Biefeld did not have.
Dr. Salvian reaffirmed that:
[I]t remains my opinion that the numbness, tingling and paresthesias
in Ms. Biefelds left arm are due to post traumatic thoracic outlet syndrome
with irritation of the brachial plexus. It is my opinion that her symptoms
have deteriorated and she has developed more of a chronic pain syndrome and
Although Dr. Salvian acknowledged that he was neither a psychiatrist nor
a psychologist, he said that it was my opinion as a physician that Ms. Biefeld
is significantly depressed.
With respect to causation, Dr. Salvian stated that:
It remains my opinion that Ms. Biefeld developed the
myofascial neck pain and left sided post traumatic thoracic outlet syndrome
directly as a result of the September 7, 2007 motor vehicle accident and would
not have developed those symptoms had that accident not occurred.
There was, essentially, no change in Dr. Salvians opinions concerning
limitations on Ms. Biefelds daily activities and household tasks, recreational
and social activities, and her employability, as compared with his November 10,
2010 report. With respect to employability, Dr. Salvian stated that, in his opinion,
the only job possible for Ms. Biefeld would require that she not use the left
arm for any significant activity.
With respect to his prognosis for Ms. Biefeld, Dr. Salvian said:
My opinion with respect to Ms. Biefelds outlook has not
materially changed. Ms. Biefeld, in fact, continued to work and tried to
modify her activities but despite that she has deteriorated to having a more
significant chronic pain syndrome involving the left arm. It is my opinion
that this worsening of symptoms is a concern and that unless she can follow
behaviour modifications, ie., avoid any significant overuse of the left arm
with elevation or repetitive activity, then her chronic pain syndrome will worsen
and become very debilitating.
Dr. Salvian stated further:
I would reiterate my opinion is
that if Ms. Biefeld simply tries to carry on despite the ongoing neuralgic
pain in the left arm, that she will simply eventually fail and be unable to do
those activities which require overhead use or repetitive activities or heavy
lifting with the left arm. This will result in a worsening chronic pain
It needs to be taken into account that in Ms. Biefelds field
of being a teaching assistant for children with disability, she would require
significant patience and presumably a degree of being up beat. When one has
chronic pain syndrome, patients are often irritable and this particular type of
job would be difficult.
Dr. Salvian continued to recommend ongoing conditioning and exercises
for Ms. Biefeld, to try and improve her overall physical abilities while
avoiding further injury to the left neck and arm, as well as Feldenkreis
Dr. Hamm is a specialist in occupational medicine, and was qualified to
give opinion evidence in that area, including concerning Ms. Biefelds fitness
Dr. Hamm carried out his first assessment of Ms. Biefeld on December 17,
2010, and his first report is dated January 25, 2011.
Dr. Hamm stated:
Ms. Biefeld presents with a stoic, rather downcast manner.
Although she presents herself as able to manage her emotional condition on her
own and does not want to use medications, I think it would still be worthwhile
for her to have a professional psychological or psychiatric assessment to see
if any further treatment options are available to improve her adjustment
reaction with depression mood. There is likely an interaction between her
chronic pain and her mood and any measures that could improve her mood could
benefit her pain management.
Dr. Hamm diagnosed Ms. Biefeld with: post-traumatic left regional
scapulohumeral myofascial pain; and an adjustment disorder with depressed
mood. In his opinion, she also had features of a left thoracic outlet
syndrome, although he said that he would defer to Dr. Salvian on that
diagnosis. In Dr. Hamms opinion, those conditions more likely than not arose
from the September 2007 Accident. In Dr. Hamms opinion, the conditions
resulted in limitations to Ms. Biefelds personal life and her employment, and,
in particular, Ms. Biefeld was less able to tolerate routine household
activities and had restrictions in some aspects of her work as a CEA. Further,
in Dr. Hamms opinion, it was more likely than not that the injuries would
adversely affect Ms. Biefelds future recreational activities and other
In Dr. Hamms opinion, Ms. Biefeld was likely to experience long-term
symptoms and related restrictions that would adversely affect some types of
employment and recreational activities. He did not think that Ms. Biefeld was
capable any longer of work that required more than sedentary physical demands
with her left arm, and was not able to tolerate bilateral upper limb activities
with medium to heavy strength requirements. He noted:
Since her work as a [CEA] may require episodic forceful upper
limb activities, she will need accommodated work to minimize such demands e.g.
avoid working with children who require restraint or physical support.
As of the date of this report, Dr. Hamm did not think that Ms. Biefeld
would require ongoing care or assistance with her activities of daily living.
However, in his opinion, she required assistance with respect to both regular
and heavier household work and yard work from the date of the Accident to the
date of the report, and would require such assistance for the foreseeable
Dr. Hamm next assessed Ms. Biefeld on February 18, 2015 and prepared a
report dated March 5, 2015.
Dr. Hamm noted that Ms. Biefeld demonstrated decreased left upper limb
power and has more restriction in her neck and left shoulder movements than
when I last saw her in December of 2010. He said that Ms. Biefeld continued
to have some findings of left thoracic outlet syndrome. He reaffirmed his
diagnoses of left neck and shoulder girdle myofascial pain syndrome and situational
adjustment disorder with depressed mood. He again expressed his opinion that
these conditions have arisen due to the September 2007 Accident. He
expressed the opinion that Ms. Biefeld is now more restricted in her
functional tolerance than she was at the time of my last assessment, and more
restricted in her abilities to carry out her former housekeeping activities.
Dr. Hamm said:
In my opinion, Ms. Biefelds
condition since the motor vehicle collision . . . is responsible for her
current disability regarding her employment as a teaching assistant as well as
her household activities. . . .
In my opinion, my prognosis is
unchanged from that provided in my January 25, 2011 independent medical
examination report. I expect that Ms. Biefelds condition will continue to
adversely affect her vocational, domestic, and recreational opportunities for
the foreseeable future.
I think that it is more likely
than not that Ms. Biefelds condition will adversely affect her with regard to
employment, housekeeping, recreation, and social activities into the future.
In my opinion, Ms. Biefeld is
unlikely to be able to return to her chosen career as a teaching assistant
because of her chronic upper limb pain. She will also be restricted in seeking
competitive employment within her skills, training, and experience that require
use of her left upper limb. . . .
. . . Since her overall condition
has worsened since the last time I saw her, I do not foresee a significant
clinical improvement in the foreseeable future. In my opinion, Ms. Biefeld
will likely remain restricted in attempting competitive employment. This, of
course, is a source of discouragement and depression for Ms. Biefeld, and I
think that she would benefit from professional psychological counselling to
help her deal with her mood.
Finally, I think that Ms. Biefeld would be a good candidate
for a multidisciplinary pain management program since I do not think that there
is a cure for her pain and so she will have to cope with it as best she can
in the long term.
Dr. Hamm mentioned that, since the fall of 2014:
Ms. Biefeld has been using Fentanyl patches to help with her
pain management, but this does not fully relieve her chronic pains. She
continues to feel disheartened and is at a loss for what to do for her pain.
At trial, Dr. Hamm was asked for his views about Ms. Biefelds use of
Fentanyl patches. He agreed that, in the treatment of chronic pain, the
general thinking is that, if possible, it is best to avoid the use of a
narcotic such as Fentanyl. He said that there are other drugs, such as
anti-inflammatories, that you would try with a patient before going to a
Fentanyl patch. Dr. Hamm described Fentanyl as a late-stage remedy and
something that represented a fairly extreme way of controlling pain. He
observed that you don’t have much option to come back after you’re taking Fentanyl.
Dr. Hamms final report, dated April 17, 2015, is very brief. It
appears he was asked to review Dr. Salvians March 30, 2015 report. Dr. Hamm
says that he agrees with the opinions expressed by Dr. Salvian.
Dr. Robertson is a psychiatrist and was qualified to give opinion
evidence in that area. He carried out an independent medical evaluation of Ms.
Biefeld on March 26, 2015. His report is dated April 17, 2015.
Dr. Robertson noted that Ms. Biefeld experienced depressive symptoms in
the early 2000s, in the context of the November 2000 Accident and her
separation from Mr. Bergman. However, in Dr. Robertsons opinion, while Ms.
Biefelds recurrence risk for difficulties with depression might have been
higher than that of the general population, it did not appear likely that she
would have experienced significant difficulties with depressive or anxiety
symptoms in the absence of the September 2007 Accident.
Robertson did not see symptoms that would meet the criteria for a clearly
delineated Major Depressive Episode since the Accident. In Dr. Robertsons
opinion, although Ms. Biefeld has symptoms of Generalized Anxiety Disorder,
Panic Attacks and some post-traumatic stress disorder, she did not meet the
diagnostic criteria for any of these specific disorders. In his opinion, the
best diagnosis to assign to Ms. Biefeld would be Adjustment Disorder with
Mixed Anxiety and Depressed Mood. He noted that:
Her depressive symptoms have fluctuated over time following
the accident. They have worsened significantly since she has gone off work and
are now in the moderate range based on history, collateral and self report.
Robertson noted further:
Ms. Biefeld does not appear to
have been significantly limited in her ability to do her work from a mental
health perspective from the time of the accident until she went off work.
Since she has gone off work, however, her symptoms have
worsened. . . . Currently, the impact of her depressive and anxiety symptoms
and her pain on her cognitive functioning would significantly impair her
ability to retrain for and function in another career and potentially impact on
her ability to return to her own work. As well, her increased depressive and
anxiety symptoms would likely impact on her ability to maintain emotional
control at work.
respect to causation, Dr. Robertson stated:
The main cause of Ms. Biefelds depression and anxiety
symptoms are the physical pain and limitations that she has experienced
following the accident and their impact on her functioning and more recently on
her ability to continue in her job. For a time, some mood swings were caused
by a medication she was on, pregabalin. The fentanyl patch which she has
started more recently may be contributing as well. . . .
 In terms
of prognosis, Dr. Robertson said:
With depressive and anxiety
symptoms already worsening since she left work, it is likely that they will
continue to worsen.
Even with aggressive treatment of
her mood and anxiety, if she is not able to work or do the things that she
would like socially or recreationally due to physical reasons, she will still
be at risk for a future depressive or anxiety disorder. These increased mood
and anxiety symptoms will further impact on her vocational, social and
recreational functioning and also likely further worsen her pain experience.
If her physical pain and limitations improve, and she is able
to return to work, then her mood and anxiety symptoms will also likely improve.
regard to psychological treatment, Dr. Robertson recommended that Ms. Biefeld
see a psychologist for treatment of depressive and anxiety symptoms and chronic
pain, and he recommended approximately 15-20 sessions initially. He indicated
further that, if Ms. Biefeld were to develop a major depressive episode, more
treatment may be needed.
regard to medications, Dr. Robertson said:
I am generally not a proponent of long-term opiate use for
chronic pain due to the possibility of developing tolerance and addiction and
their impact on mental health and overall functioning. I would suggest
starting nortriptyline at night at this point. Consideration of adding an SSRI
such as sertraline [Zoloft] to this or replacing it with venlafaxine [Effexor]
or duloxetine [Cymbalta] could be considered if her symptoms worsen.
 In his
oral evidence, Dr. Robertson confirmed that the use of the Fentanyl patch may
be contributing to some of Ms. Biefelds depressive and anxiety symptoms, and
observed that Fentanyl can have effects on energy and mood. He was not
supportive of Ms. Biefeld continuing to use a Fentanyl patch.
OConnor is a specialist in physical medicine and rehabilitation, and was
qualified to given opinion evidence in that area. He carried out independent
medical assessments on March 8, 2012 and March 30, 2015, and prepared two
expert reports accordingly. However, the plaintiff did not rely on Dr.
OConnors reports for her case. Rather, Dr. OConnors reports were entered
as exhibits, and Dr. OConnor was called as a witness, in the defendants case.
 In his
first report, dated March 8, 2012, Dr. OConnor diagnosed Ms. Biefeld as
suffering the following problems as a result of the September 2007 Accident:
strain to the neck.
She has gone on to develop chronic neck pain. This chronic
neck pain, in my opinion, is the result of chronic malpositioning, tension of
the neck and shoulder girdle muscles, and profound deconditioning. I agree
with Dr. Calder in that I do not think that she has a thoracic outlet
syndrome. Her examination today was not in keeping with this. . . . The
myofascial pain and tenderness around the neck and shoulder girdle, and the
abnormal positioning and posturing and how she holds her arm, is contributing
to her situation. These muscles are very weak, and she is not able to support
her body weight for more than just a few seconds. This degree of
deconditioning, with the chronic muscle tension on these muscles, is going to
lead her to continue to be symptomatic indefinitely unless this is addressed.
Despite the fact that it had been almost five years, she has
never really worked on a strength and conditioning program to any significant
degree. She has worked on physiotherapy, but she has not continued on with
strength and conditioning or actually gotten the muscles stronger, and the
majority of her therapy was actually passive.
. . .
2. Musculoligamentous strain to
the low back, resolved within several weeks to a month.
3. Left thigh strain, resolved
within days to weeks.
sprain. She has had a strain to the mid-back that, for the most part, has
resolved, but she is now left with chronic myofascial pain involving the
thoracic paraspinal muscles on the left.
 In Dr.
OConnors opinion, Ms. Biefeld was capable of full-time light and sedentary
work activities, and she was capable of returning to her domestic activities as
usual, albeit with some discomfort. He said that heavy activities, heavy
housework and heavy seasonal yard work, will require her to have to pace
herself or do these over short bursts of activity. Dr. OConnor continued:
However, with further strength
and conditioning of the neck and shoulder girdle, given how profoundly
deconditioned these are, there should be some improvement in her physical
capabilities. She has essentially stopped all exercise since the date of her
accident and has not gotten back to it. She previously was exercising three to
four days a week, usually four days a week. She needs to get back to this. If
she does, in my opinion, her symptoms would and should improve. It is unlikely
they are going to completely resolve given her longstanding history of chronic
pain; however, her functional capabilities should improve. . . .
Her fear and avoidance of pain has limited her recovery, in
my opinion. . . . I do think that she is going to be left with ongoing and
continued discomfort even in the best case scenario. However, it is still my
opinion that there is more likely than not going to be some improvement in her
physical capabilities and some mild reduction in her symptoms if she increases
her conditioning and strength of her neck and shoulder girdle, which are
respect to the prognosis, Dr. OConnor stated:
There is a range that one
typically sees when trying to predict or prognosticate after such an injury.
Poor prognostic factors for her are the duration of her symptoms to date, the
chronicity and severity that she continues to rate her pain, her pain behaviour
with splinting of the neck, shoulder, arm, and hand. The fact that very little
in the way of any of her therapies made a difference is also a poor prognostic
sign. . . . [T]he main activity that is going to make a difference is slowly
getting the shoulder girdle muscle moving again. Unfortunately, her fear of
movement, and splinting and habitual pattern of protecting the shoulder girdle
is going to make rehabilitation at this stage, and this far out from injury,
exceedingly difficult. For these reasons, it is more likely than not that she
is going to be left with ongoing pain in a permanent and chronic fashion
indefinitely. That is not to say that there is not room for improvement,
however. She has never really gotten the muscles in the neck and shoulder
girdle strong. There has been very little in the way of active
For that reason, I would say that there is at least a 30-40%
chance that with actual strength and conditioning of the neck and shoulder
girdle, her symptoms would improve to some extent. It is much more likely that
her level of physical activity would improve with this approach. Her muscles
are so weak that she can barely support her body weight for a few seconds.
This is quite weak when you consider she is a small or slight woman who is
OConnor made recommendations concerning a strength and conditioning program
for Ms. Biefeld, and included a description of specific exercises he
recommended be done. He recommended that she should have access to a
psychologist to work through her kinesiophobia, particularly of movement around
the left shoulder girdle. He recommended against passive therapy, particularly
in isolation. He also recommended keeping Ms. Biefeld off addicting
medications, including cyclobenzaprine, because, in his opinion, this would
only add to a deterioration of Ms. Biefelds overall level of function. In his
oral evidence concerning Ms. Biefelds use of cyclobenzaprine, Dr. OConnor
said that patients on such a medication tended to do worse, and he would
instead use something that would help with both pain and sleep but that would
not be habit-forming.
 In his
second report dated March 30, 2015, Dr. OConnor again set out his opinions and
conclusions regarding the problems and injuries Ms. Biefeld sustained as a
result of the September 2007 Accident. For example, with respect to Ms.
Biefelds neck pain, he said:
The neck pain in my opinion was related to musculoligamentous
strain to the neck and aggravation of some pre-existing degenerative changes at
the C5-6 and C6-7 levels. In my opinion, this has been flavoured by a
prominent emotional response to the accident and prominent pain behaviour, fear
of movement or kinesiophobia, and primarily passive treatments and lack of
return to activities as usual.
She is still profoundly deconditioned and the only real
active conditioning she did was six to eight sessions of active rehab after
which she quit because of aggravation of her pain. This would not be a long
enough course of active conditioning to have made any significant functional
gains in either her strength or her pain. Practically speaking, she would have
had to continue on with this for four to six months before she was going to
know whether with further strength and conditioning her symptoms would improve.
OConnor modified his opinion concerning the presence of thoracic outlet
syndrome. He confirmed in his oral evidence that, in his opinion, Ms. Biefeld
suffered post-traumatic thoracic outlet syndrome in her left arm as a result of
the September 2007 Accident. In his report, he said:
I do think that the thoracic outlet component is just one
small component, with the majority of the problem being her neck pain and
myofascial pain involving the neck and shoulder girdle as well as an intrinsic
shoulder problem itself.
OConnor stated further:
Regardless of the cause, it is my opinion that the patients
symptoms started immediately after the accident and have persisted since, and
are due to the accident.
OConnor also stated that Ms. Biefeld presently has moderate depression. He deferred
to others with expertise in the area whether the depression was related to the
September 2007 Accident.
regard to Ms. Biefelds disability, Dr. OConnor stated:
I agree with Dr. Hamms
assessment that there was a period of total disability of about five weeks and
partial disability that has persisted to date, with the limitations as outlined
in my report being in overhead reaching, grasping, pushing, pulling, or doing
repetitive tasks with that left shoulder, arm, and hand. I agree with his
assessment where he outlines that she will require assistance with household
domestic duties and heavier seasonal duties, as outlined in my report.
It is my opinion that she is
capable of light or sedentary work from a physical point of view. However, it
appears that her mood has significantly worsened with even more prominent pain
behaviour. She is having more pain with regards to her neck and shoulder
girdle but this is no different since being off work and it is my opinion that
she would be capable of work.
It is my opinion that she is
capable of returning to work if her work is able to make accommodations to
allow her to do light or sedentary-type activities that do not require heavy
lifting, bending, pushing, pulling, overhead reaching, or forceful heavy
repetitive tasks with that left arm. . . .
The Functional Capacity
Evaluation by Louise Craig outlined her limitations with repetitive reaching,
grasping, carrying, or lifting with the left arm. . . . It is more likely than
not that these limitations will be permanent. This does restrict her duties at
work to some extent but it is my opinion that, should she be allowed to
maintain light or sedentary duties at work in an ergonomic set-up, predominantly
using her right arm and using her left arm only for assisting tasks, she would
be capable of working as an educational assistant.
Indeed, since being off work and
not doing the types of duties that she was doing at work, her pain is
essentially the same despite being on a very strong Fentanyl narcotic. It is
unlikely that being off work is going to dramatically change her pain and in
fact the narcotic really has not changed her pain significantly and she is still
rating her pain at 8/10. For this reason, it is my opinion she would be better
off back at work. I would recommend aggressively treating her mood and getting
her off her narcotic.
If she does get back to work, she
will be less competitively employable than she was previously given her
restrictions, limitations, and accommodations that will need to be made to
allow her to maintain her employment.
. . .
. . . [S]ince going on the narcotic [Fentanyl] she is doing
less and less and is off work and has not gone back. I would get her off the
narcotic and encourage her to get back to a graduated return to work.
 In his
oral evidence, Dr. OConnor elaborated on his views about the wisdom of Ms.
Biefeld stopping work and being on Fentanyl. He was strongly against both, and
described the scenario as a slippery slope. He again observed that, whether Ms.
Biefeld was working or not, and despite using Fentanyl, her pain level was
about the same. In his opinion, one of the reasons Ms. Biefeld was doing worse
was the use of Fentanyl. In that respect, Dr. OConnor and Dr. Robertson agree.
Dr. OConnor acknowledged that, if Ms. Biefeld were to return to work, her
symptoms would worsen for a period of time, but it would be unlikely that she
would actually suffer more harm by getting back to work. If Dr. OConnor had
been Ms. Biefelds treating physician, and as a rehabilitation doctor, he would
focus on helping Ms. Biefeld to manage her symptoms so that she could be
mobilized, increase her activity level and get back to work.
respect to his prognosis for Ms. Biefeld, Dr. OConnor stated in his report:
She continues to have poor
prognostic factors including the chronicity and severity of her pain. Her
prominent pain behaviour, depressed mood, and the fact that she is now on
narcotics and her pain is no better are all very poor prognostic factors. Her
fear of movement, splinting, and habitual pattern to her shoulder movement last
time and this time was clearly going to make rehabilitation exceedingly difficult
and practically speaking at this point it is unlikely that she is going to make
any dramatic improvement, in my opinion.
As I mentioned before, it is my opinion that she is going to
be left with chronic pain indefinitely. There was not a sufficient enough
period of time of actually working on strength and conditioning to know whether
this would have led to further improvements with the passage of time. She
tolerated this poorly and stopped.
OConnor confirmed in his oral evidence that Ms. Biefelds chronic pain was not
going to go away. However, he also confirmed his opinion that Ms. Biefelds
time doing active rehabilitation was too short to know whether or not it was
going to help. He observed that, at the beginning, patients universally get worse
in the first few months. But if the patient can get past that, the patient
will do better. In Ms. Biefelds case (as with many patients), the pain made
her want to stop, and she did.
 In Dr.
There is a 40% chance that she
does not get back to work, however, given the combination of her chronic pain,
fear, anxiety, depressed mood, disturbed sleep, and neck, shoulder, arm, and
Getting her back to work is more likely going to take several
months over the next three to six months, getting her mood and pain under
better control and treatment, getting her activated doing a general exercise
program and avoiding the use of the arm or shoulder for now, just trying to get
her up and going again to try to get her back to gainful employment. There is
a very real chance that this does not occur even with the best of intentions
 In his
oral evidence, Dr. OConnor confirmed his opinion that the modifications and
accommodations that Ms. Biefeld had when she stopped work would have to be
maintained in order for her to be successful in returning to work. That was a
factor in Ms. Biefeld being less competitively employable. In his opinion,
there was about a 60% probability that Ms. Biefeld would be able to try to
return to work, but the return would need to be in an accommodated setting.
Some of the future care items recommended, such as the pain program and
kinesiology, could improve Ms. Biefelds chances of successfully returning to
work, although Dr. OConnor expressed some scepticism that Ms. Biefeld would
follow through with the recommendations.
OConnor strongly recommended that all narcotics (the Fentanyl patch in particular)
be discontinued. He (like Dr. Robertson) recommended trying either Cymbalta or
Effexor to treat both Ms. Biefelds mood and her pain. Dr. OConnor again
recommended that Ms. Biefeld try and get back to some form of regular exercise
and activity, and that she work with a psychologist in managing her pain.
addition to the medical doctors, Ms. Biefeld tendered opinion evidence from Dr.
Dean Powers, Ms. Louise Craig, Ms. Tanya Percy and Mr. Darren Benning. All of
these experts also testified at trial.
 Dr. Dean
Powers has been employed as a vocational rehabilitation consultant and
vocational therapist since 1980. His credentials include a Doctor of
Psychology from California Southern University. Dr. Powers was qualified as an
expert in vocational rehabilitation, qualified to provide opinion evidence
concerning Ms. Biefelds employability.
 Dr. Powers
assessed Ms. Biefeld on March 27, 2015 and prepared a report dated April 9,
 Dr. Powers
In my opinion, the September 7, 2007 MVA has significantly
narrowed the number of vocational options available to Ms. Biefeld. She has a
lengthy career as a Special Education Assistant with a strong commitment to her
job and her school. There is no indication that she would not have continued
in this role until retirement had the MVA not occurred. Despite workplace
accommodations and modifications, and a strong commitment to her chosen
occupation, Ms. Biefeld was unsuccessful in meeting the physical requirements of
her job as a [CEA]. She would require ongoing accommodations and restrictions
as a [CEA] which, given the inherent physical requirements of the position, is
not a realistic option. She would likely be relegated to working with special
needs children on a volunteer basis within a limited scope of practice, and,
from a psychological health perspective, I would encourage her to do so, with
the medical approval of her doctor. It has been over seven years post-accident
and her physiological and psychological issues remain unresolved. In my
opinion her vocational future and ability to earn a gainful wage have been
 Dr. Powers
made two recommendations with the goal of improving Ms. Biefelds functional,
psychological, and/or vocational outcomes. The first recommendation was to
address what Dr. Powers perceived to be Ms. Biefelds depression and anxiety.
In that respect (and like several of the medical experts), he recommended that
she be provided with ongoing psychological treatment to enhance ability for
future employment and/or avocational endeavors. The second concerned the
possible need for help for Ms. Biefeld in arranging volunteer positions or
employment in the future. Dr. Powers recommended that Ms. Biefeld would
benefit with a fund being provided so that she could access 20 hours of
vocational services from a vocational consultant.
cross-examination, Dr. Powers agreed that the average retirement age for
teachers assistants was about 62.
 Ms. Craig
is a registered physiotherapist, and has practiced as a clinical
physiotherapist for over 20 years. She has completed extensive post-graduate
studies in the areas of sports medicine, manual therapy and functional capacity
evaluations, and is certified as a functional capacity evaluator. Ms. Craig
was qualified to give opinion evidence concerning Ms. Biefelds functional
 Ms. Craig
assessed Ms. Biefeld on December 16, 2010, and prepared a report dated December
 In her
conclusions and recommendations, Ms. Craig stated:
1. In summary, during this
Functional Capacity Evaluation Ms. Biefeld did not meet the full physical
demands of her job as a Special Education Assistant (NOC # 6472). . . .
2. Ms. Biefelds options for work
are limited by increased symptoms during work intensive sitting, limited
reaching/handling tolerance and reduced capacity for lifting and carrying.
. . .
4. Ms. Biefelds possible options
for work, both in her field and outside her field have been dramatically reduced
by her injuries, symptom aggravation and physical limitations. Ms. Biefeld
would not, at present, be able to work in any occupation with light, medium or
heavy physical demands as this exceeds her safe strength capacity. She is
notably limited in her capacity to lift and carry, she does not tolerate
sustained work intensive postures, she has weakness of the left upper extremity
. . ., she has reduced cervical and left shoulder range of motion and she has
limited ability for reaching and handling, particularly at upper levels, she
has increased pain with walking and stair climbing.
. . .
6. An individualized
rehabilitation program guided by a physiotherapist, in accordance with the
following outline, is recommended. . . .
. . .
findings and clinical observations generally support Ms. Biefelds subjective
reports of pain and her perceived ability. Ms. Biefelds self-reports of
function and pain are consistent with objective observations of function and
are therefore considered reliable.
 Ms. Percy
is an occupational therapist, registered and in good standing with the College
of Occupational Therapists of B.C. and the Canadian Association of Occupational
Therapists. Since 1998, Ms. Percy has been certified as a work capacity
evaluator, and she has also been certified to perform functional capacity
evaluations. Ms. Percy was qualified to give opinion evidence concerning Ms.
Biefelds work capacity and future care needs.
 Ms. Percy assessed
Ms. Biefeld on April 26, 2012 and February 16, 2015, and prepared two reports,
dated June 21, 2012 and April 17, 2015, respectively.
 In Ms.
Percys first report, she expressed the following opinions concerning Ms.
Biefelds work endurance and work capacity:
In terms of overall work endurance
Ms. Biefeld is able to perform full time work meeting the limitations outlined
in this report. In terms of overall work endurance for employment as a [CEA],
it is my opinion that Ms. Biefelds current work schedule (28.75 hours per
week) represents the upper end of her work tolerances given the associated
. . .
[I]t is my opinion that the
accommodations and modifications made available to Ms. Biefeld in her current
employment are both appropriate and necessary. As a result, Ms. Biefeld has
reduced capacity for employment as an SEA both in her current work environment
but also if she were to change districts or seek other employment in this
field. . . .
. . .
While Ms. Biefeld indicates a commitment to continuing to
work in her current capacity, based on her evaluation and medical prognosis, it
is likely that she will continue to experience residual complaints as noted
above. If she were to experience any moderate to significant decline in the
function of her left upper extremity, it is my opinion that her ability to
sustain this type of work on a longer term basis would come into question.
 Ms. Percy
made future care recommendations for Ms. Biefeld as follows:
medical or rehabilitation services: for physiotherapy, massage therapy and acupuncture,
including initial treatment and then ongoing maintenance; a supported exercise
program, working with a kinesiologist (and including the purchase of some basic
equipment such as a theraband and light hand weights); occupational therapy
services for reviewing ergonomics in the home and workplace; and psychological
assistance with home and yard maintenance (which assumed lawn cutting 38 times
equipment and assistive devices, for items such as: a cervical pillow, a
blow-dryer stand, a one-handed kitchen helper kit and a writing slant board;
equipment for pain management (including heat and ice packs); and equipment and
assistive devices for work-related activities (e.g., an electric stapler, small
footprint keyboard, head set); and
general supplies such as prescription and non-prescription medications.
 In June
2012, Dr. Salvian was asked to review Ms. Percys first report, and to comment
on whether he endorsed the treatment and care recommendations as being
reasonable and medically necessary. In a brief report summarizing Ms. Percys
future care recommendations, Dr. Salvian said that he was in agreement with all
recommendations within this report and I would support them as being medically
indicated and reasonable.
 Dr. Hamm
was also asked to review and comment on Ms. Percys first report. In an
undated report (probably from 2012), Dr. Hamm takes issue with Ms. Percys
conclusion that Ms. Biefelds lawn would need to be cut 38 times a year. His
estimate was half Ms. Percys. Otherwise, he expressed the view that Ms.
Percys recommendations for housecleaning and homemaking assistance are
 Dr. OConnor
also reviewed Ms. Percys first report, and commented on it in his second
report. He said that Ms. Percys report outlined an appropriate and reasonable
assessment of Ms. Biefelds functional capabilities and was in keeping with his
assessment of Ms. Biefelds disability. He generally agreed with Ms. Percys
future care recommendations, although (like Dr. Hamm), he expressed scepticism
about the need for lawn cutting 38 times a year.
purposes of Ms. Percys second report, she was provided with copies of Dr.
Salvians report dated March 30, 2015 and Dr. Powers report dated April 9,
2015. She was not provided with a copy of Dr. OConnors report dated March
 Ms. Percy
stated, regarding Ms. Biefelds work endurance and her functional and work
In terms of overall work
endurance Ms. Biefeld does not presently demonstrate sufficient functional
tolerance for full-time work on a durable basis due to significant pain
complaints, sleep disruption, and associated functional limitations. She is
capable of part-time work (i.e., up to 4 hours of cumulative activity),
however, her functional limitations for reaching/handling tolerance, posture,
and strength, combined with chronic pain, psycho-emotional difficulties, and
sleep disruption, significantly limit her feasibility for employment on a
durable basis and her vocational options.
. . .
The results of [Ms. Biefelds]
re-assessment indicate a global reduction in physical and functional tolerance
for strength, mobility and postural tolerances that involve the neck and left
upper extremity, further limiting Ms. Biefelds ability to perform required
demands of her modified position as an SEA. . . . It is my opinion that she is
not capable of performing this work on a full or part-time basis and that her
medical prognosis suggests that this will be unlikely in the future, even with
further treatment directed at physical and psycho-emotional issues.
It is my opinion that . . . she
is no longer able to sustain employment due to her limited activity tolerance,
pain and sleep disruption. . . .
With respect to part-time work in alternate employment, while
Ms. Biefeld demonstrates sufficient physical tolerance to perform activity on a
part-time basis (i.e., up to 4 hours per day where sitting and standing are
combined), given the extent of functional limitations for reaching and
handling, static neck postures, prolonged or repetitive looking down (i.e. for
keyboarding, cash register), and even Sedentary strength work, combined with
the results of Dr. D. Powers vocational evaluation, it is difficult to foresee
any realistic employment options available to her. I agree with his opinion
that her vocational options are severely compromised.
 There were
a few changes in Ms. Percys recommendations concerning future care and
associated costs for Ms. Biefeld, as compared with her first report. In Ms.
Percys second report, and in addition to psychological counselling for Ms.
Biefeld, Ms. Percy recommended participation in a more intensive, multi-disciplinary
pain program. Ms. Percy agreed with Dr. Powers recommendation of vocational
rehabilitation services. Ms. Percys recommendations concerning medications
for Ms. Biefeld now included the cost of the Fentanyl patch. Generally
speaking, other recommendations were unchanged (although costs were updated).
Benning is an economist and was qualified to give opinion evidence concerning
future income loss multipliers, present value calculations and the calculation
of the present value of the cost of future care.
Benning prepared a report dated April 17, 2015 in which he estimated future
income loss multipliers for Ms. Biefeld. In a second report dated April 20, 2015,
Mr. Benning provided an estimate of the lump sum present value of future care
items, based on the items described in Ms. Percys April 17, 2015 report.
setting out my findings and conclusions concerning Ms. Biefelds injuries, I
will make some relatively brief comments on Ms. Biefelds credibility. My
comments are relatively brief because, although, in closing submissions, the
defendant attacked Ms. Biefelds credibility and reliability, the defendant did
not seriously challenge the medical opinions concerning: Ms. Biefelds
injuries and the consequences of those injuries; causation; and the prognosis
for Ms. Biefeld. The defendant did not argue that the medical opinions should be
given little (or no) weight because Ms. Biefeld was neither a credible nor
reliable witness. I note that in both in his second report and his oral
evidence, Dr. OConnor (now the defence expert) testified that it was the
September 2007 Accident that initiated the symptoms from which Ms. Biefeld was
suffering as of trial, and it was his opinion that Ms. Biefelds symptoms
started immediately after the accident and have persisted since and are due to
the accident. The defendant has not challenged these opinions. I accept
 In closing
submissions, Mr. Moen alluded to what he argued were an number of problems with
Ms. Biefelds evidence, in support of a more general argument that the court
should be particularly sceptical of Ms. Biefelds evidence concerning her
reasons for stopping work in October 2014, seven years after the September 2007
Accident, and her past and future income loss claims. For example, Mr. Moen
pointed to Ms. Biefelds evidence that she loved her job and wanted to continue
working, and contrasted that with the evidence that she was the one who
initiated going on long-term disability and did so without making any
investigation of the possibility of further accommodation from her employer or
part-time work. She also has made no inquiries about returning to work. Mr.
Moen noted discrepancies between what Ms. Biefeld told some of the experts (for
example, about the facet joint injections and giving up her Mazda for an
automatic transmission) and the facts that have come out during the trial. He
argues that Ms. Biefelds car trips to visit Ms. Ketch are inconsistent with
her claims that she is essentially totally disabled in the use of her left
arm. Mr. Moen submits that Ms. Biefelds explanations for her resistance to taking
medications (such as amitriptyline and Cymbalta) recommended for her, are
incompatible with her willingness to use a Fentanyl patch.
 In my
view, Ms. Biefeld is not a very reliable witness. She has a poor memory about
many things. For example, she could not remember the surname of her counsellor
at Bounce Back, even though (according to Ms. Biefeld), they interacted with
one another over a period of about eight weeks. She had difficulty remembering
dates and when events happened. Without mild leading from her counsel, Mr.
Osborne, during her examination-in-chief, Ms. Biefeld would have been unable to
say much about many details of her life. I acknowledge there are discrepancies
between statements Ms. Biefeld is reported as making to Dr. du Preez (for
example), and Ms. Biefelds evidence at trial.
 However, Ms.
Biefelds evidence concerning the injuries she suffered in the September 2007
Accident and how those injuries have affected her since is, in my opinion,
generally consistent with both the objective findings of the medical experts
and also their explanations of how the injuries Ms. Biefeld suffered have resulted
in the circumstances in which Ms. Biefeld found herself as of trial. Thus, Ms.
Biefelds evidence does not stand alone, and I consider her evidence on these
points to be credible and reliable. It is also supported by evidence from
non-expert witnesses, such as Mr. Bergman and Ms. Marr. It is true that Ms.
Biefeld accompanied her father on a trip to Europe in 2008, and has gone on
several vacations with Mr. Bergman. However, I do not consider those
activities to be inconsistent with Ms. Biefelds claims of chronic pain or with
the medical evidence. Suffering chronic pain does not rule out taking a
vacation with a spouse, although it may well make the experience less
enjoyable. It does not follow from the fact that an individual takes a
vacation, that the individual cannot be suffering chronic pain. Ms. Biefelds perseverance
for seven years after the Accident in a job she loved can be explained by the
sacrifice she was prepared to make to keep working, until, as far as she was
concerned (and with the support of her doctor, Dr. du Preez), it was no longer
tolerable physically and emotionally and she felt she must stop.
 I find
that, as a result of the September 2007 Accident, Ms. Biefeld sustained soft
tissue injuries to her neck, left shoulder, mid-back and lower back. She also
sustained a left thigh strain, which resolved within weeks. The soft tissue
injuries to her low back also resolved within a relatively brief period.
However, the soft tissue injuries to Ms. Biefelds neck and left shoulder were significant.
They developed into chronic myofascial pain, radiating from her neck to the
shoulder and down her left arm, an aspect of which has been post-traumatic
thoracic outlet syndrome on her left side. I find that, as a further
consequence of the injuries she suffered in the Accident, Ms. Biefeld has
developed chronic pain syndrome, kinesiophobia and depression, and has
developed the psychiatric condition referred to as an adjustment disorder with
anxiety and depressed mood. The opinions from the medical experts on these
points are consistent with the evidence from Ms. Biefeld that I accept.
 Further, based
on the medical opinion evidence, I find that the prognosis for further recovery,
more than seven and a half years after the Accident, is very poor. Ms. Biefeld
will be living with chronic pain permanently. The most that Ms. Biefeld can
expect is to be able to manage her symptoms by improving her physical fitness
generally with the help of active physical rehabilitation (among other things),
if she is prepared to accept such rehabilitation, and to address her emotional
and psychological symptoms through counselling and medication, if she is
prepared to accept such treatments. I find that improvement in Ms. Biefelds
emotional and psychological health is very much dependent on her ability to
manage her chronic pain. I find that the fact that, in the years since the Accident,
Ms. Biefeld has had little in the way of active rehabilitation will make
pursuit of such rehabilitation now much more difficult, with much less chance
 I find
that the injuries that Ms. Biefeld suffered in the Accident have affected,
negatively, virtually every aspect of her life. She has been unable to enjoy
restful sleep without medication. Her intimate relationship with her spouse
has essentially vanished. She is no longer able to engage in activities around
her home and property that gave her pleasure and satisfaction. She cannot lift
her grandchildren. In the fall of 2014, she felt that her chronic pain and her
inability to use her left arm normally left her no other choice but to leave a
job she had done for 20 years and that gave her much fulfilment. I find that,
as a result of the injuries she suffered in the September 2007 Accident, the
quality of Ms. Biefelds life, and her enjoyment of life, are significantly diminished.
purpose of non-pecuniary damages is to compensate the plaintiff for pain,
suffering, loss of enjoyment of life and loss of amenities. The factors to be
taken into account include: the plaintiffs age; the nature of the injury; the
severity and duration of pain; disability; emotional suffering; impairment of
family, marital and social relationships; impairment of physical abilities;
loss of lifestyle; and the plaintiffs stoicism (a factor that should not,
generally speaking, penalize the plaintiff). See Stapley v. Hejslet,
2006 BCCA 34, at paras. 45-46.
Osborne (for Ms. Biefeld) submits that an appropriate award for non-pecuniary
damages would be in the range of $130,000.
 In support
of his position, Mr. Osborne cites (among other cases): Eccleston v.
Dresen, 2009 BCSC 332 (plaintiff, 49 as of trial, suffered moderate
soft tissue injury to her neck and upper back, and developed chronic pain as a
result; she also developed depression as a result of her pain; court was
satisfied plaintiffs condition was permanent, although it could be improved
through psychotherapy and medication; non-pecuniary damages assessed at
$120,000 reduced by 10% to reflect contingency for pre-disposition to
depression and somatoform symptoms); Felix v. Hearne, 2011 BCSC
1236 (plaintiff, 44, suffered injuries to her left shoulder, wrist and ankle as
well as persistent pain in her neck and back; she also suffered from depression
and post-traumatic stress disorder; she took concrete steps towards
rehabilitation; however, her life had changed markedly since the accident, and
the court found that the combined effects of the physical and psychological
injuries were devastating to her personal and vocational life; non-pecuniary
damages assessed at $200,000); Marois v. Pelech, 2009 BCCA 286
(plaintiff, 55 as of trial, suffered soft tissue injuries to her neck and back,
and developed chronic pain disorder and chronic depression; assessment of
non-pecuniary damages of $130,000 at trial upheld on appeal); Morlan v.
Barrett, 2012 BCCA 66 (plaintiff was involved in two accidents in quick
succession on the same day; about nine months to a year after the accidents,
she began to develop diffuse chronic pain throughout her body and was diagnosed
with fibromyalgia; $125,000 in non-pecuniary damages awarded at trial and,
although described as generous, upheld on appeal); and Reynolds v. M.
Sanghera & Sons Trucking Ltd., 2014 BCSC 212 (plaintiff had
suffered the effects of serious and debilitating injuries to his neck,
resulting in dizziness and vertigo, for almost five years post-accident, and
the court found it likely his suffering would continue at a high level for the
foreseeable future; non-pecuniary damages assessed at $120,000).
 Mr. Moen
(for the defendant) submits than an appropriate award for non-pecuniary damages
in this case would be in the range of between $65,000 and $85,000.
 In support
of his position, Mr. Moen cites (among other cases): Bulatovic v.
Siebert, 2013 BCSC 240 (plaintiff, age 56 as of trial, who had
previously been active, able to manage work as a pastry chef and household
chores, healthy and pain-free, suffered soft tissue injuries; as of trial, and
more than two years post-accident, she was continuing to experience neck and
shoulder pain and headaches, and was in the small category of patients who would
not experience significant recovery, with a poor prognosis; her family life had
been negatively affected by the injuries; non-pecuniary damages assessed at
$65,000); Clark v. Kouba, 2012 BCSC 1607 (plaintiff, age 49 as of
trial and found to be a stoic individual, suffered soft tissue injuries that
resulted in chronic myofascial pain syndrome and were found to have affected
all aspects of her life; non-pecuniary damages assessed at $85,000); McConvey
v. Hart, 2013 BCSC 1058 (plaintiff, age 49 as of trial, suffered soft
tissue injuries to her neck, left shoulder, low back and ribs; she developed
myofascial pain syndrome in her neck and left shoulder, and continued to
experience headaches, diminished quality of sleep and related fatigue four
years after the accident; non-pecuniary damages assessed at $80,000); Carroll
v. Hunter, 2014 BCSC 2193 (plaintiff, certified general accountant, age
54 as of trial, suffered chronic myofascial neck and shoulder pain, persistent headaches
and sleep deprivation seven years after the accident; plaintiff also found to
have developed central sensitization of pain in her neck and shoulder region
and as a consequence, experienced abnormal and heightened sensations of
persistent pain; her prognosis was guarded; her work, social life and family
life were all adversely affected; non-pecuniary damages assessed at $100,000); Smith
v. Neil, 2015 BCSC 9 (plaintiff, age 56 as of trial, suffered soft
tissue injuries, including to her neck, left shoulder and low back, together
with pain-related headaches, four years after the accident; recreational
activities and household chores were more painful and difficult; non-pecuniary
damages assessed at $85,000); and Forder v. Linde, 2014 BCSC 1600
(plaintiff special education assistant, age 47 as of trial, suffered soft
tissue injuries to her neck and back, which (four years later) left her with
ongoing chronic headaches and chronic pain; she had been diagnosed with a
chronic major depressive disorder (although she resisted both the diagnosis and
treatment); non-pecuniary damages assessed at $100,000).
 Mr. Moen
submits that $100,000 must be considered the upper limit. He argues that in Forder
v. Linde, for example, the plaintiff was younger than Ms. Biefeld and,
on the facts, her functional abilities were worse than Ms. Biefelds.
 As Davies
J. observed in Reynolds v. M. Sanghera & Sons Trucking Ltd.,
at para. 50:
Other cases are of some, but limited, assistance in assessing
an award of non-pecuniary damages. Each person who endures a debilitating
injury is unique and the nature of the injuries suffered by plaintiffs and
their life circumstances will rarely be identical.
 I do not
find Felix v. Hearne to be of much assistance, given the facts in
this case as compared with the facts in that case. I note also that no one
appeared for the defendants on the damages assessment. Although Mr. Osborne
cited it to me in argument, he did not argue for non-pecuniary damages as high
as the $200,000 awarded in that case.
 On the
other hand, based on my findings above, the consequences to Ms. Biefeld of the
injuries she suffered in the September 2007 Accident have had a more
devastating effect on her life, as compared with the cases at the lower range
cited by Mr. Moen.
 The cases
I have found most helpful in considering an appropriate award of non-pecuniary
damages for Ms. Biefeld are Eccleston v. Dresen, Marois v.
Pelech and Carroll v. Hunter.
Biefeld has lived with significant chronic pain for over seven and a half
years. It has had a serious effect on her emotional well-being. Her
activities are now much more limited, and her enjoyment of life has been significantly
diminished, as compared with what they would have been but for the injuries she
suffered in the September 2007 Accident.
 I conclude
that an appropriate award for non-pecuniary damages in this case is $115,000.
 I heard
evidence from Ms. Sharlene Bowers, the director of Human Resources for
Kamloops/Thompson School District No. 73 (where Ms. Biefeld was employed)
concerning a number of aspects of Ms. Biefelds employment.
 Ms. Bowers
explained that there are about 200 CEAs in the School District. The basic
level of CEA is Level 3, and within that level, there are two categories: Level
3 behaviour and Level 3 personal care. Where a CEA is designated Level 3
behaviour, behaviour is the primary reason for the assignment. Similarly, if
the CEA is designated Level 3 personal care, personal care is the primary
reason for the assignment. About 80% of the CEAs are Level 3 behaviour,
while the remaining 20% are Level 3 personal care. If a student needed help
with toileting, for example, the student would be assigned a personal care
CEA. As of October 2007, Ms. Biefeld was employed as a Level 3 behaviour CEA,
and continued to be employed in that category through to October 2014. Ms.
Biefeld was never employed as a personal care CEA. Ms. Gordon confirmed that
all CEAs at Clemitson were Level 3 behaviour.
 CEAs are
members of a union, CUPE Local 3500.
 When Ms.
Biefeld stopped work in October 2014, she was earning $23.97 per hour, which
included the bonus paid to her as a first-aid attendant. She was also
receiving, as employee benefits, coverage under the Medical Services Plan, and
for dental and extended health insurance. These benefits were worth about
$3,000 annually. Ms. Bowers explained that, after an individual has been off
work on disability for a year, the individual can maintain her benefits but
will be invoiced for the cost. The amount Ms. Biefeld would be expected to pay
to maintain her benefits for the period September 2015 to August 2016 was
$3,161.02. With respect to dental insurance coverage in the first year an
employee is off work, Ms. Bowers explained that, once the employee has used up
all of her sick leave, the employee is then responsible to pay the premium for
dental insurance coverage.
 Ms. Bowers
explained that CEAs are paid for 10 months of the year (September to June), and
they are then laid off at the end of June. During July and August, CEA staff
can make use of vacation time, if it is available, or can apply for and collect
to Ms. Bowers, CEAs have the opportunity to work part-time and to job-share.
Ms. Lynn Shanko, one of the other CEAs at Clemitson while Ms. Biefeld was
working there, had job-shared for many years, and job-sharing is provided for
in the collective agreement. Ms. Bowers explained that, in elementary schools,
full-time hours for a CEA are considered to be 5.75 hours a day or 28.75 hours
for a five-day week. A part-time assignment would be 4 hours a day. According
to Ms. Bowers, a CEAs seniority can play a role in the opportunities
available, although qualifications are considered first, then seniority. As
Ms. Bowers recalled, by 2004, Ms. Biefeld was about two-thirds of the way up
the seniority ladder. I infer that, by 2014, Ms. Biefeld had even more
seniority. Among other things, her seniority would protect her from being
bumped out of positions, and she in turn could bump others with less
seniority. Ms. Bowers explained that, in order to take advantage of
opportunities such as job-sharing and part-time work, an individual who has
been on long-term disability must be able to come back to work. According to
Ms. Bowers, Ms. Biefeld never indicated an interest in exploring such
 Ms. Bowers
explained that, among other things, the School District has someone specially
assigned to carry out ergonomic assessments for employees, including for CEAs.
She indicated that it is not uncommon to do a job demand analysis for someone
returning to work from long-term disability, for example. No such analysis has
ever been done for Ms. Biefeld.
to Ms. Bowers, she was not told in 2014 about any problems Ms. Biefeld was
having performing her job. Ms. Bowers testified that, as of October 2015,
although Ms. Biefelds CEA position had been filled by a relief employee on a
temporary contract, it was still available for Ms. Biefeld to return to. Under
the collective agreement, a position is held for an employee for a year. Ms.
Bowers explained that, if the individual had not returned to work after a year,
she would discuss the situation with the union president. If there was going
to be a further short absence from work (a month or so), it is likely the
position would continue to be held open to accommodate that absence. However,
if, after a year, the employee was unlikely to return to work for an extended
period, then the position would be posted.
 Ms. Bowers
explained that, since Ms. Biefeld went off work in October 2014, there had been
no contact from her. However, that was not unexpected, since Ms. Biefeld had
been deemed disabled by the disability insurer and had not yet been cleared to
return to work. According to Ms. Bowers, her department would be contacted by
the disability insurer when Ms. Biefeld was due to return to work.
cross-examination, it was put to Ms. Bowers that the School District would
prefer not to retrain someone with thoracic outlet syndrome. Ms. Bowers
rejected the suggestion, and said this would amount to discrimination.
to Ms. Bowers, CEAs are eligible to retire at age 60.
parties agree that Ms. Biefelds income loss for the 5-week period immediately
following the Accident is $3,110.
 I turn
next to the period from October 20, 2014 to the date of trial.
Osborne argues that the evidence (including the School Districts disability
insurer accepting that Ms. Biefeld was disabled from working) clearly
establishes that Ms. Biefelds need to go off work in October 2014 was because
of the injuries she had been struggling with for seven years after the Accident.
Mr. Osborne submits that, had Ms. Biefeld been able to continue working for
that period (and based on her employment income from 2013), she would have received
$26,690 in salary and EI benefits. Ms. Biefeld therefore claims that amount
(less applicable taxes) as part of her past income loss to the date of trial.
 For the
defendant, Mr. Moen argues that, for this period, Ms. Biefeld has failed to
establish any entitlement to compensation. He submits that Dr. OConnors
evidence is fatal to this part of Ms. Biefelds claim, and notes that Ms.
Biefeld was able to function adequately in her accommodated position for over
seven years, before deciding that she no longer wished to work. Since stopping
work, Ms. Biefeld has gotten worse, not better. Mr. Moen points out that it
was Ms. Biefeld who initiated the request to stop work, when she saw Dr. du
Preez in October 2014, rather than a medical doctor recommending to Ms. Biefeld
that she stop work. Mr. Moen argues that this is a classic case of a
sympathetic family doctor accepting Ms. Biefelds decision, and a case of
 Mr. Moen
argues further that the evidence from Ms. Biefelds medical experts is
insufficient to support the conclusion that, in the period from October 22,
2014 to trial, she was unable to work at her CEA position at Clemitson. Mr.
Moen submits that none of Ms. Biefelds medical experts explicitly states that Ms.
Biefeld, as a result of the injuries she suffered in the September 2007
Accident, was or is unable to carry out the tasks required in her accommodated
CEA position, as it was in the fall of 2014. He notes, for example, Dr. du
Preezs opinion in her February 14, 2015 report that Ms. Biefeld is basically
limited to doing her previous job [i.e., CEA at Clemitson] with restriction, as
previously accommodated by her employer.
 Mr. Moen
submits that the evidence of Ms. Craig and Ms. Percy is of limited assistance
in this area, because they simply attempted to assess Ms. Biefelds functional
abilities against generic standards in the National Occupational Classification
(or NOC) for an educational assistant working without accommodation. However,
that was not the job that Ms. Biefeld was doing. Mr. Moen argues that what the
court needed to know is whether Ms. Biefeld was physically incapable of
performing her actual job, which required no lifting or restraining of
students. He says that the court cannot assess the reasonableness of Ms.
Biefelds decision to stop working in October 2014 in the absence of evidence
about the actual tasks she was, after seven years, no longer able to perform.
in Mr. Moens submission, Ms. Biefeld is required to take reasonable steps to
mitigate her financial losses: see, for example, Midgley v. Nguyen,
2013 BCSC 693, at paras. 279-282. On the evidence, many such steps were
available to Ms. Biefeld, including the rehabilitation recommended by Dr.
OConnor, the job-sharing and other opportunities (such as part-time work, or
work-place accommodation) described by Ms. Bowers.
 I find
that the reason Ms. Biefeld stopped work in October 2014 was as a result of the
effects of the injuries she suffered in the September 2007 Accident. Although,
as Mr. Moens points out, Ms. Biefeld had been able to continue working for
seven years after the Accident, I find that, as of October 2014, Ms. Biefeld
had, because of the continuing effects of the injuries (especially chronic
pain), reached the limit of what she could continue to tolerate, even part-time.
Even if, after stopping work, she had immediately engaged in an active
rehabilitation program, such as Dr. OConnor recommended, I find the
rehabilitation necessary to get Ms. Biefeld physically (and otherwise) fit for
work could have taken as long as six months, during which Ms. Biefeld would not
have been available for work. Even then, a successful outcome was not
guaranteed. Whether Ms. Biefeld could have earned some income by job-sharing
or part-time work is, in my opinion, speculative. Although I agree with Dr.
OConnor that stopping work made life worse, not better, for Ms. Biefeld, I
find that, by October 2014 and as a result of injuries she suffered in the
Accident, she was no longer fit to continue working.
 I find,
therefore, that Ms. Biefeld has demonstrated that, as a result of injuries she
suffered in the September 2007 Accident, she sustained a loss of income
totalling $29,800 (less applicable taxes).
 There are
two stages in assessing a claim for damages for loss of future earning capacity.
First, a plaintiff must always prove that there is a real and substantial
possibility of a future event leading to an income loss. If the plaintiff
satisfies that burden, then the second stage requires an assessment of the
loss. Depending on the facts, the assessment may be made by either an earnings
approach or capital asset approach. The former approach will be more useful
when the loss is more easily measurable. A plaintiff may be able to prove that
there is a substantial possibility of a future loss of income despite having
returned to his or her usual employment. However, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss. See Perren v. Lalari, 2010 BCCA 140, at para. 32.
pain will not always result in an award for future loss of earning capacity,
but the facts may demonstrate that a plaintiffs chronic pain will result in a
substantial possibility that her pain would adversely affect her ability to
work: see Clark v. Kouba, 2014 BCCA 50, at paras. 33-39.
Osborne submits that the medical opinion evidence, and the opinion evidence
from Dr. Powers, Ms. Craig and Ms. Percy, establishes that Ms. Biefeld is at
risk of significant income loss in the future. Based on the medical opinion
evidence, the prognosis for any improvement in Ms. Biefelds condition is
poor. Mr. Osborne submits that the medical opinion evidence supports the
conclusion that the Accident caused Ms. Biefeld serious and permanent physical
injuries and emotional and psychological difficulties that will dramatically
affect the scope of work she might possibly be able to obtain and hold in the
future. He argues that the evidence supports the conclusion that, in all
probability, there will be no significant improvement in Ms. Biefelds chronic
pain syndrome, such that her physical limitations will continue indefinitely,
with the result that her ability to obtain and maintain income-earning
employment in the future will be severely limited.
Osborne submits that Ms. Biefelds employment with the Kamloops School District
would have given her long-term job security, benefits and pension entitlements
to a retirement age of 65. Mr. Osborne says that the evidence from Ms. Biefelds
work colleagues support the conclusion that Ms. Biefeld was a skilled CEA. He
submits that, on the evidence, Ms. Biefeld probably would have continued
working as a CEA until age 65, but for the injuries she suffered in the Accident.
Osborne submits further that the overwhelming weight of the evidence is that Ms.
Biefelds ability to earn income in the future has been dramatically reduced,
with little prospect of improvement, as a result of injuries suffered in the Accident.
He estimates that Ms. Biefelds earning capacity has been damaged by as much as
85% to 90%, so that her options for either returning to work as a CEA or
maintaining any other form of steady employment in the future are severely
limited. He argues that, in the circumstances, Ms. Biefelds loss should be
assessed on an earnings approach, although the capital asset approach could
also be used.
 In Mr.
Osbornes submission, a fair award under this head of damages would be
$215,491. This starts with Ms. Biefelds full-year earnings in 2013 ($33,572)
and adds $2,645 for vacation pay. It assumes that Ms. Biefeld would not retire
until age 65. It uses a multiplier of $7,000 (between Mr. Bennings actuarial
multiplier of $8,437 and the economic multiplier of $5,268, for the year 2024,
when Ms. Biefeld turns 65) to take into account the seniority and job security Ms.
Biefeld had as a union member, and that the chance Ms. Biefeld would have
experienced any period of unemployment (but for the Accident) is remote. Mr.
Osborne submits that, in those circumstances, it would also be appropriate to
use the actuarial multiplier. Mr. Osborne makes a deduction of 15% to take
into account Ms. Biefelds residual earning capacity. He submits that Ms.
Biefeld should also be compensated for the loss of employer-funded benefits,
the present value of which (calculated to age 65, and using the same multiplier)
is $22,127. The total award would then be $237,618.
 Mr. Moen
argues that Ms. Biefeld should either receive no award, or only a relatively
modest award, for loss of future earning capacity.
 In Mr.
Moens submission, the evidence shows that, although many occupations would
likely be closed to her, Ms. Biefeld should be able to continue to work in her
accommodated CEA position. In his submission, there is no reliable evidence
about what tasks associated with that position she would be unable to do. Among
other things, Mr. Moen noted the evidence of Ms. Bell, to the effect that only
1% of the CEA job was physical. He submits that Ms. Biefeld cannot decide,
unilaterally, that she will not return to work until she is 100% better. She
conceded on cross-examination that this is an unrealistic expectation. In Mr.
Moens submission, by saying that she does not intend to return to work until
she is 100%, Ms. Biefeld has, in effect, declared her intention never to
return to work, because 100% recovery is highly unlikely. Mr. Moen argues that
the defendant should not have to bear the financial consequences of Ms. Biefelds
decision in this respect. Mr. Moen argues further that the defendant should
also not have to bear the financial consequences of Ms. Biefelds decision not
to engage in the type of rehabilitation recommended for her by Dr. OConnor,
and in that respect, she has failed to mitigate her damages under this head.
addition, in Mr. Moens submission, there is sufficient evidence to conclude
that Ms. Biefeld would retire at age 60 (not age 65). If she worked half-time
as a CEA (which Mr. Moen argues Ms. Biefeld ought to be able to do) to age 60,
her future income loss would be less than $60,000, as compared with Mr.
Osbornes submission that the loss should be assessed at over $200,000.
 I will
first address Ms. Biefelds likely retirement age.
 In my
opinion, it is more likely than not that Ms. Biefeld would retire at age 60,
rather than work until age 65, and that she would probably stop work after the
school year beginning September 2019 (the month in which she turns 60) and
ending June 2020. First, there is the age difference between Ms. Biefeld and
Mr. Bergman, and Mr. Bergmans evidence that he planned to retire at 67. At
that point, Ms. Biefeld would be 60. Moreover, there is no financial need for Ms.
Biefeld to work. I think it unlikely that Ms. Biefeld would continue to work
after Mr. Bergman had retired, and that she would most likely retire at the
same time. In addition, retirement at age 60 is consistent with the statement
made by Ms. Biefeld to Ms. Percy about her intentions. Ms. Biefeld is eligible
for her pension at age 60. Dr. Powers confirmed that Statistics Canada data
showed an average retirement age of 62 for school support workers. I agree
with Mr. Moens submissions that Ms. Biefelds evidence at trial to the effect
that she intended to work until 65 was unconvincing. I find that her likely
retirement age is age 60.
 I turn
next to the question whether Ms. Biefeld has demonstrated a real and
substantial possibility of a future event leading to an income loss. In my
opinion, she has done so, and is therefore entitled to compensation for that
speaking, the predictions from the medical and other experts relating to Ms.
Biefelds ability to resume and continue employment are gloomy. Even Dr.
OConnor, who is less pessimistic than the others, accepts that Ms. Biefeld is
less competitively employable and that there is about a 40% chance that she
will never return to work.
 There is,
therefore, a consensus among the medical experts (including Dr. OConnor) that Ms.
Biefeld is less competitively employable than she was before the Accident,
because she now has restrictions, limitations, and accommodations that will
need to be made to allow her to maintain her employment.
 I find
that Ms. Biefelds employment opportunities generally, based on her age,
education and basic job skills, have been diminished as a result of the
injuries she suffered in the September 2007 Accident. In my view, it is also
important to consider this question in the context of Ms. Biefelds actual
employment as a CEA, a position her own medical experts acknowledge she could
perform (with accommodations). However, seven years after the Accident, Ms.
Biefeld was struggling to continue in her job on a full-time basis. Even Dr.
OConnor, who is critical of how Ms. Biefeld has managed her rehabilitation and
is strongly of the view that Ms. Biefeld should return to work, does not put
her chances of returning to work at more than 60%, and he would first put her
through a rehabilitation program of some months.
 I am therefore
satisfied that, as a result of injuries suffered in the September 2007
Accident, there is a real and substantial possibility of a future event
(chronic pain, at the least) leading to an income loss for Ms. Biefeld. I find
that Dr. OConnors prediction of a 60% chance Ms. Biefeld could return to
work, doing the type of work she was doing as a CEA at Clemitson, to be overly
optimistic, based on the other opinion evidence. On the other hand, I consider
Mr. Osbornes submission that there is only about a 15% chance of Ms. Biefeld
ever returning to work too pessimistic, because, on the evidence, there are
steps that Ms. Biefeld could take both to improve her fitness to work and to
earn income from employment, even if she does not return to work full-time.
 Based on
all of the evidence, I would put Ms. Biefelds chances of returning to work at
30% (as compared with Mr. Osbornes prediction of 15%).
 In my
opinion, an earnings approach (rather than the capital asset approach) is the
better approach to assess Ms. Biefelds loss, given her earnings history, and I
agree with using Ms. Biefelds 2013 earnings as the starting point. I also
agree with Mr. Osborne that using an actuarial (rather than an economic)
multiplier is appropriate here. Based on Table 1 in Mr. Bennings April 17,
2015 report, and my findings concerning Ms. Biefelds retirement age, I
conclude the appropriate actuarial multiplier is $4,778. I therefore assess Ms.
Biefelds loss of future earning capacity at $121,100, and the loss of employer-funded
benefits at $15,100.
purpose of an award for costs of future care is to restore, as best as possible
with a monetary award, the injured person to the position she would have been
in had the accident not occurred. The award is based on what is reasonably
necessary on the medical evidence to promote the mental and physical health of
the plaintiff. See Gignac v. Insurance Corporation of British Columbia,
2012 BCCA 351, at paras. 29-30.
 In order
for a plaintiff to successfully advance a cost of future care claim, it is not
necessary that a physician testify to the medical necessity of each and every
item of care that is claimed. But there must be some evidentiary link drawn
between the physician’s assessment of pain, disability, and recommended
treatment and the care recommended by a qualified health care professional.
See Gignac, at para. 31 (citing Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144, at para. 39). Thus, each
item sought by the plaintiff must be analyzed to determine whether there is
some evidentiary link between the physicians assessment of pain, disability
and recommended treatment and the care recommended by a qualified health
professional: Gignac, at para. 31. Since damages for cost of
future care are a matter of prediction, they cannot be measured exactly: see Krangle
(Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.
 Moreover, future
care costs must be likely to be incurred by the plaintiff. If a plaintiff has
not used a particular item or service in the past, or has declined in the past
to follow a medically recommended therapy or treatment, it may be inappropriate
to include its cost in a future care award. See Midgley, at
para. 336 and Penner v. Insurance Corporation of British Columbia,
2011 BCCA 135, at paras. 11-14. In Penner, for example, the
court observed (at para. 14) that a little common sense should inform claims
under this head, however much they may be recommended by experts in the field.
Biefeld says that she should be awarded $185,601 for costs of future care,
based on the medical evidence, the summary of costs set out in Ms. Percys
second report (with a reduction in the number of lawn cuttings per year) and
the present value calculations set out in Table 2 of Mr. Bennings April 20,
2015 report, as follows:
Physiotherapy – initial
annual for 3 years
annual from year 3
years 1, 10, 20
Occupational therapist (travel)
Psychological counselling pain program
annual to age 75
annual to age 70
Yard maintenance lawn (reduced from 38 cuts annually)
annual to age 70
Yard maintenance gardening and snow removal
annual to age 70
every 3 years
blow dryer stand
every 10 years
one-handed kitchen helper kit
every 5 years
wheeled pot holder
every 10 years
every 10 years
writing slant board
every 10 years
every 6 years
TENS unit batteries, electrodes
every 2 years
every 2.5 years
years 1, 10, 20
small footprint keyboard
years 1 and 10
miscellaneous equipment (headset, mouse)
defendant concedes that Ms. Biefeld is entitled to an award for future care.
However, the defendant argues that Ms. Biefeld has failed to justify as
reasonable a number of items and says further that there should be a very large
contingency deduction for others. For example, the defendant says that, based
on the evidence, there is real doubt whether Ms. Biefeld would attend
physiotherapy in the future, or make use of the services of a kinesiologist.
These are services that have been recommended to and for her in the past, but
she has not followed the recommendations. The defendant argues the same holds
true with respect to psychological counselling. The defendant says that, on
the evidence, neither occupational therapy nor vocational rehabilitation is
required. She notes Mr. Bergmans evidence concerning a possible future move
to Vancouver Island, so that the expenses associated with housekeeping for a large
house on a large lot in Kamloops are likely to be substantially reduced.
 With the
exception of Fentanyl, there is an evidentiary link between the medical
experts assessment of pain, disability and recommended treatment, and the
recommended care items. Doctors Salvian, OConnor and Hamm were all asked to
review Ms. Percys first report, and each of the doctors expressed the opinion
that the future care recommendations contained in it (apart from the lawn cutting)
were reasonable for Ms. Biefeld.
respect to Ms. Biefelds continued use of Fentanyl, both Dr. OConnor and Dr.
Robertson recommended against it. Dr. Salvians and Dr. Hamms views were also
negative. Dr. du Preez said very little about her prescription of this
medication for Ms. Biefeld, especially over the long term. Based on the weight
of the medical evidence, I have concluded that long-term use of Fentanyl cannot
be justified as an item of future care. I reduce the amount to $910, representing
the cost for 12 months.
respect to other items, although there is an evidentiary link, are these
expenses Ms. Biefeld is likely to incur? In my view, the answer with respect
to most of them is, at best, maybe. In my opinion, Ms. Biefeld has demonstrated
that she will ignore a recommendation if she does not agree with it or
concludes the effort is too much (for example, counselling or engaging in
active rehabilitation and physical exercise to improve her overall physical
condition and, probably, better manage her pain), despite the likely benefits.
 I do not
question the potential value to Ms. Biefeld of the various therapies
recommended for her. However, I think that it is unlikely that Ms. Biefeld
will pursue most of them, in particular: physiotherapy (initial and
maintenance), kinesiology, occupational therapy and psychological counselling.
With respect to active physical rehabilitation, for example, this has been
consistently recommended for her for years. However, Ms. Biefeld has not pursued
it. Rather, as Dr. OConnor observed, she tolerates the increased activity
poorly and stops; she has never engaged in such therapy for long enough to know
whether it would do her any good. I do not think there is more than a 50/50
chance that Ms. Biefeld will pursue such therapies in the future, despite the
consensus from the experts that she would benefit from them. Ms. Biefeld has
never shown any inclination to pursue further psychological counselling after
the relatively brief period of phone counselling through Bounce Back. She did
not say, for example, that she did not want to go to counselling because of a
possible stigma attached to it; rather she feels that she does not need
 In my
opinion, a reasonable contingency deduction for all of these items is 50%.
 I have
similar concerns about the multi-disciplinary pain program recommended. I do
not doubt that Ms. Biefeld would benefit from such a program. However, I doubt
her willingness to participate fully in it. Again, I conclude that a
reasonable contingency deduction is 50%.
respect to lawn cutting and gardening, these were activities that Ms. Biefeld
(rather than Mr. Bergman, for example) did because she enjoyed them. She has
been compensated for her loss of enjoyment through the award of non-pecuniary
damages. Ms. Biefeld is not the only person in her household responsible for
lawn cutting and yard maintenance. Mr. Bergman, as the other homeowner, is
also responsible and must share some of the burden of homeownership. In that
light, I consider the costs for these items to be too high. I consider a
reduction of these costs by 25% to be reasonable.
respect to housekeeping and seasonal cleaning, I accept that, as a result of
the injuries she suffered in the September 2007 Accident, Ms. Biefeld requires
and will use assistance with both. However, Ms. Biefeld is not the only person
living in the house, and, although Mr. Bergman may not meet Ms. Biefelds
standards, he still must expect to share some of the responsibility for
housekeeping. Whether Ms. Biefeld and Mr. Bergman will remain in the large
house in Kamloops is also uncertain. I consider a reduction of these costs by 15%
to be reasonable.
the amounts are relatively small, I am not persuaded that the costs of the
cervical pillow, blow dryer stand, wheeled pot holder, bowl holder or small
footprint keyboard are justified. For example, a cervical pillow has been
recommended for Ms. Biefeld since Ms. Percys first report. It is not a costly
item. Yet Ms. Biefeld has never felt the need to incur the expense for
herself. In my opinion, the other items (the one-handed kitchen helper kit,
the writing slant board, the electric accessories and miscellaneous equipment) are
similar, and justify a significant contingency deduction of 50%. Heat and ice
packs are likely to be items many households stock as a matter of routine first
aid. Although Dr. du Preez touched on the TENS unit briefly in her evidence
(along with a hot tub), I received no real explanation about how a TENS unit
works, what it might do for Ms. Biefeld and how she might use it. I have
concluded in that light that a contingency of 50% is justified.
therefore award cost of future care items totalling $124,255.50, as follows:
Physiotherapy – initial
Occupational therapist (travel)
Psychological counselling pain program
Yard maintenance lawn (reduced from 38 cuts annually)
Yard maintenance gardening and snow removal
blow dryer stand
one-handed kitchen helper kit
wheeled pot holder
writing slant board
TENS unit batteries, electrodes
small footprint keyboard
miscellaneous equipment (headset, mouse)
 Mr. Moen
made some relatively brief submissions that Ms. Biefeld had failed to take
reasonable steps in mitigation, and therefore, her damages should be reduced
accordingly. In his submission, there were two components to Ms. Biefelds
failure to mitigate: (a) her failure to follow recommended treatment; and (b) a
failure to seek lighter duty work or part-time hours (or both).
 In a
personal injury case in which the plaintiff has not pursued a course of medical
treatment recommended to her by doctors, and the defendant seeks to have
damages reduced on the basis that the plaintiff has failed to take reasonable
steps in mitigation, the defendant must prove two things: (1) that the
plaintiff acted unreasonably in not following the recommended treatment, and (2)
the extent, if any, to which the plaintiff’s damages would have been reduced
had she acted reasonably. The mitigation test is a subjective/objective test,
that is, whether the reasonable patient, having all the information at hand
that the plaintiff possessed, ought reasonably to have undergone the
recommended treatment. The second aspect of the test is the extent, if any, to
which the plaintiffs damages would have been reduced by that treatment. See Gregory,
at paras. 53 and 56.
 In my
opinion, the defendant has failed to meet her burden.
it could be criticized (and indeed was by Dr. OConnor), the medical advice
that Ms. Biefeld received in October 2014 from Dr. du Preez was to stop work. The
School Boards disability insurer accepted that Ms. Biefeld was disabled from
working, and placed her on long-term disability. I agree with Mr. Osborne that
the defendant made little effort to demonstrate that Ms. Biefelds conduct
following the September 2007 Accident resulted in a more limited recovery than
she otherwise would have had, had Ms. Biefeld pursued active rehabilitation
more vigorously, and accepted recommendations concerning medication. Even Dr.
OConnor was not optimistic that pursuit of active physical rehabilitation
would have made much difference, given Ms. Biefelds particular make-up and her
reaction generally to being injured, although it is something he would have
tried. Ms. Biefeld tried medications (such as Lyrica) that Dr. du Preez
prescribed for her, with a view to managing her pain symptoms. I have not been
persuaded that Ms. Biefelds reasons for stopping were unreasonable.
 I also
agree with Mr. Osborne that the defendant has failed to show how, if Ms.
Biefeld had acted differently, it would have improved her long-term medical
outcome (and also her ability to earn income).
I find that the defendant has not met the burden on her to prove that Ms.
Biefeld failed to mitigate her damages.
parties agree that Ms. Biefeld is entitled to special damages in the sum of
summary, I award damages to Ms. Biefeld as follows:
damages in the sum of $115,000.00;
loss to trial in the sum of $29,800.00 (less applicable taxes);
of future earning capacity in the sum of $121,100.00;
of employer-funded benefits in the sum of $15,100.00;
of future care in the sum of $124,255.50; and
damages in the sum of $5,902.94.
 I will
leave counsel to deal with applicable taxes on the award for income loss to
trial. If they are unable to reach agreement, they have liberty to apply.
 There will
be pre-judgment interest in accordance with the Court Order Interest Act,
R.S.B.C. 1996, c. 79.
Subject to any submissions that the parties may wish to make, Ms.
Biefeld is entitled to costs on Scale B. The parties are at liberty to make
arrangements to make submissions with respect to costs within 60 days of these
reasons. Submissions may be made in writing or orally, as the parties may