Judge agrees with experts that a change in career is a real and substantial possibility for the plaintiff.
MK v. JE, 2021 BCSC 797
The Reasons for Judgment of The Honourable Mr. Justice Wilson were given on April 28, 2021, at Kelowna, British Columbia.
The plaintiff, MK, now 38 years of age, was involved in two motor vehicle collisions in September and November of 2011. The defendants have admitted liability. The issue at trial is an assessment of the plaintiff’s damages. Mr. K seeks damages for loss of both past and future income, cost of future care, non-pecuniary damages and special damages. His primary ongoing complaint is lower back pain which radiates into his right leg. He works as a custodian for the local school board, a position which he held at the time of the collisions. He is very concerned that he will have to find a new career.
Dr. Michael Boucher, a medical doctor with a practice focused on chronic pain medicine, diagnosed the plaintiff with both chronic pain and Chronic Pain Syndrome, “a psychosocial diagnosis which makes it even more difficult for the patient to overcome or deal with their chronic pain”. In order for a diagnosis of Chronic Pain Syndrome, at least three of the six major characteristics of the syndrome must be present. In Dr. Boucher’s opinion, Mr. K presents five of the six criteria.
Dr. Christopher Watt, Occupational Medicine Specialist, opined that Mr. K is at maximum medical improvement with respect to the pain in his neck, upper back and lower back and he considers his condition to be permanent. He made recommendations, including a progressive exercise program, but he noted that while improved conditioning would not be curative, it could improve function. Nevertheless, Dr. Watt was of the view that the plaintiff was not well suited for the position of a school custodian and recommended vocational counselling and rehabilitation.
Dr. Randall Locht “…concluded that there is no specific identified reason for the plaintiff’s pain reports in terms of organic tissue pathology. He, therefore, concludes that the pain is contributed to by other factors, including central sensitization and a psychological overlay. … Dr. Locht’s recommendations are very similar to those of Dr. Watt.”
Mr. Justice Wilson found that “the evidence of the medical experts was largely consistent.” He goes on to say that he found “the plaintiff to be a credible witness, and I accept that he suffered and continues to suffer from the pain and the symptoms he described to both the medical practitioners and the Court.… I am satisfied that there is a real and substantial likelihood that the plaintiff will need to give up his job as a school custodian at some point in the future. Both Dr. Boucher and Dr. Watt expressed this opinion during their evidence, and Dr. Lichtenstein [the plaintiff’s family doctor] was clearly concerned as long ago as 2013 when she raised the subject.”
Summary: Past loss of income – $17,993.50; Future income loss – $90,000.00; Costs of future care – $5,000.00; Non-pecuniary damages – $100,000.00; Special damages – $13,275.87; for a total award of $226,269.37