2008 BCSC 509 Notenbomer v. Andjelic

Before: The Honourable Madam Justice Morrison

Reasons for Judgment

Counsel for the Plaintiff	Derek M. Mah Angela Price-Stephens
Counsel for the Defendant	Kevin A. Cantelon Lynn Scrivener
Date and Place of Trial:	March 31, April 1, 2, 7, 8, 2008
	Vancouver, B.C.

[1] This is a personal injury claim brought by the plaintiff, Yvonne Hendrika Notenbomer, following a motor vehicle accident that occurred August 8, 2004. A vehicle driven by the defendant, Simo Andjelic, rear-ended the plaintiff’s car. Liability is not in issue, only damages.

[2] The plaintiff, born March 30, 1963, was 41 years of age at the time of the accident, and is now 45. She works as a senior commercial lines insurance underwriter.

[3] Ms. Notenbomer claims she is permanently disabled, and unable to work full time. She alleges that because of the accident, she now suffers daily from continuous low back pain that travels from hip to hip, stiffness with a burning mid-back pain at the end of each day. She also claims continuous sciatic pain in her left leg from her toes up to her hip on a continuous basis, constant right leg numbness, and a constant numbness in the left leg and left low back, with occasional pain following a left disc herniation and surgery. Finally, she contends that she also suffers daily from depression and fatigue.

Background Facts

[4] Approximately a year before the accident, in August 2003, the plaintiff developed a low back pain. She believes it might have been from lifting a heavy suitcase on her return from a trip to Las Vegas with her mother. The initial back ache kept getting worse, from August to October; the plaintiff found she was becoming hunched over and could hardly walk. The pain was in her right hip, right buttocks and down her right leg. On October 16, 2003 she had a CT scan which showed a right L5/S1 herniated disc.

[5] On October 1, 2003 the plaintiff left work and went on short term disability for the back pain. She went for physiotherapy, which was not helping much with the pain. She testified she was taking many hot baths. She was then referred to Dr. Schweigel Sr., an orthopaedic surgeon and saw him on October 3. Because of his busy practice, she would have to wait one and a half years for surgery, so she was referred to his son, Dr. Robert Schweigel, also an orthopaedic surgeon, whom she saw on January 23, 2004 for the first time. He recommended a series of epidural cortisone injections to alleviate the pain. She had four injections, which helped somewhat, but she was still experiencing right leg pain.

[6] The plaintiff also changed family doctors at that time, and began seeing Dr. John Hunter on April 15, 2004. He remains her family doctor. Dr. Schweigel also remains her consulting orthopaedic surgeon.

[7] By the summer of 2004, prior to the accident on August 8, the plaintiff had indicated that she wished to have surgery on L5/S1 to alleviate her pain. She was still unable to return to work. Surgery on the right disc herniation was scheduled for November 18, 2004. It was estimated by Dr. Schweigel that she could be back to work six to eight weeks following surgery. Post-surgery rehabilitation had been discussed, and Dr. Schweigel favoured walking as the best form of rehabilitation after surgery.

[8] During that summer of 2004, Dr. Schweigel also booked an MRI for the plaintiff’s back for September 1, 2004.

[9] Then the motor vehicle accident occurred on August 8, 2004. Ms. Notenbomer was driving her Volkswagen Jetta and was hit from behind by the defendant who was driving an SUV. The plaintiff was stopped for a pedestrian when she was hit.

[10] On impact, Ms. Notenbomer was thrown forward and her head was then thrown backwards, and the headrest, which was apparently properly adjusted, came down on impact. At the time of the accident, Ms. Notenbomer was heading to Dr. Hunter’s office, so she continued on there. In the accident her foot had been caught and her knee had been knocked into the steering column. She had pain in her neck, leg and shoulder areas. She was advised by the doctor to go home and rest, to take anti-inflammatory medication and alternate heat and ice.

[11] Two days later, on August 10, she returned to see Dr. Hunter, who noted that for the first time there was low back pain and left side sciatica pain. Her back pain then has been described as pain from hip to hip across the back. Prior to the accident, Ms. Notenbomer testified that she had not experienced this hip to hip back pain, and no pain on her left side or left sciatica pain; only the right buttock and right sciatica pain before the accident.

[12] On September 1, 2004 the MRI went ahead as scheduled. This showed “broadbased left posterolateral disc protrusion at L3/4.” It also indicated, “no disc protrusions at L5-S1.” It should be noted that on October 16, 2003 the CT scan had shown no disc protrusion at L3/4.

[13] In the weeks following the accident, Ms. Notenbomer described increasing severe pain and limitations to her activities. She testified that prior to the accident, she was hunched over, and, using a clock as an analogy, her degree of being hunched over was compared to 5 past 6. After the accident, she said it was from 10 to 15 minutes past 6. Her problems after the accident were also noted by others, including her long time best friend and roommate, Lisa Schwenneker.

[14] After the accident, the plaintiff began to use a cane, and then graduated to using a walker. If she went to Wal-Mart, she would have to do her shopping in an electric buggy. She was no longer able to push a grocery cart, as she had been before the accident.

[15] Dr. Schweigel performed surgery on the right L5/S1 herniated disc on November 18, 2004, as previously scheduled. He also injected a cortisone shot into the L3/4 left disc at the time of surgery. Ms. Notenbomer was overnight in hospital, released the next day. She testified she felt great, and there was no pain anywhere. The right leg was fine, the sciatic pain had gone from the right leg. However, the second day after surgery, she said that sciatica came back on the left side. Then all the pain came back, and by Christmas 2004, she could only shop by using a wheelchair.

[16] Yvonne Notenbomer is a tall woman, 5 foot 10. Her roommate, Lisa Schwenneker, testified that the plaintiff was so hunched over after the accident that people could not tell how tall she was. Both Ms. Schwenneker and the plaintiff testified as to the extreme amount of pain that the plaintiff was in. She was sweating, and had trouble making it to the bathroom without a walker.

[17] Normally someone who sleeps without any difficulty, Ms. Notenbomer was having problems sleeping at all during the night. She would get up and take hot baths in the middle of the night to try and alleviate the pain. She was unable to do her normal activities within the home, such as cleaning, or caring for her small dogs. Both roommates have two Chihuahuas each. The burden for all that care fell on Ms. Schwenneker, and to a certain degree, still does.

[18] Further, Ms. Notenbomer was gaining weight, due to her inactivity, and this did not bode well for her second surgery, which had been booked by Dr. Schweigel for May 12, 2005. That was surgery for the left L3/4 disc herniation. After that surgery, Dr. Schweigel told Ms. Notenbomer that that disc was “huge”. That surgery did not go as well or have the desired results as the first surgery.

[19] A nerve sac was torn during the second operation. This resulted in total bed rest for the plaintiff in the hospital for four days, with her head tilted down in the bed. Dr. Schweigel confirmed that the L3/4 disc herniation was larger than the right disc herniation. He was of the opinion that the left disc herniation was caused by the accident. In argument, counsel for the defence accepted that this was the case. And certainly the evidence bears that out.

[20] At the time of the second surgery in May 2005, the plaintiff testified she could only stand, and walk somewhat. She could not sit. Following surgery, she testified she had a migraine for days. She had had to be catheterized after the surgery because of complete bed rest. After four days in hospital, Ms. Notenbomer then went to her mother’s home for further recovery. She was unable to climb stairs, and her meals had to be brought to her. She found that her right leg was stronger, but her left leg was weak. She still had the hip to hip pain in her back which had been there before surgery. She had a total lack of feeling in her left leg.

[21] Dr. Schweigel advised physiotherapy, which the plaintiff did. She was also doing water exercises in a pool, which she began in the winter of 2005, to try and rehabilitate her left leg. She had no strength in that leg. The right leg was not giving her a problem at that time.

[22] In November 2005, the plaintiff began a graduated return to her work as an insurance broker. This is a sedentary position. She was doing more walking, and by January 2006, she was working three and four days a week. She still had her lower back pain, from hip to hip. But her right leg was all right, and she was able to use it as strength for trying to strengthen her left leg. She was going to water aerobics in the evening after work.

[23] Then in January 2006, while in the pool, the plaintiff felt that she “pulled” something. In her testimony in court, she said it was as if “something popped”. She called Dr. Hunter, her family physician and also Dr. Schweigel. From that point on, she said her sciatica started coming back.

[24] Because of this relapse, the plaintiff again ceased working, in February 2006. Around this time Dr. Hunter put Ms. Notenbomer on a nerve blocking drug similar to Lyrica. This was primarily for her right leg neuropathic pain. By May, Dr. Hunter reduced the dosage of the drug, because of the side effects the plaintiff was experiencing.

[25] The pain the plaintiff was experiencing around February 2006 was sciatica coming back on her right leg. She testified it felt like a coat hanger was pushing up from her toes into her ankles and on up her leg. This was a different pain from her previous sciatic pain, before the accident, which had begun at the top of her leg and moved on down, rather than the opposite. This time it was an intermittent type of pain, pulsing, and very sharp at times. She lost feelings in her toes and her foot, and said they felt numb, like freezing at a dentist’s. By February 2006, once she was off work, she began epidural injections again, and working out with her physiotherapist, whom she still sees.

[26] For the plaintiff, the side effects from the nerve blocking drugs like Lyrica were dizziness, fatigue, lack of concentration, lack of coordination, resulting in her dropping things, and memory loss. By May of 2006, Dr. Hunter had reduced the nerve blocking drug because of these side effects. Lyrica was substituted for the previous nerve blocking drug on July 20, 2006.

[27] Without Lyrica, the plaintiff reported to Dr. Hunter that her pain was 10 out of 10. With Lyrica, it would be approximately 4 out of 10. Ms. Notenbomer referred to Lyrica as “my back to work drug”, as it has allowed her eventually to return to her job, although still not on a full time basis. In August 2006 the plaintiff attempted again a graduated return to work. She was working two hours each day for two days a week, at the beginning.

[28] Meanwhile, a second MRI was done on the lumbar area on June 8, 2006. Dr. Schweigel last saw the plaintiff on June 19, 2006.

[29] Ms. Notenbomer’s father became very ill in October 2006, and he has not been able to return to his home since. Apparently he requires nursing care for the rest of his life. This was a difficult time for the plaintiff.

[30] In early 2007, Ms. Notenbomer and her friend and roommate, Lisa Schwenneker, closed an enterprise that they had begun in 2000. After some years of volunteering their time with rescue dogs, they had formed their own rescue group in 2000 and incorporated a society for the purpose. This was a rescue group for Chihuahuas. Both had contributed a great deal of work, time and energy into their project, but found they were eventually unable to continue and had to close their dog rescue activities in early 2007. The plaintiff was unable to do such volunteer activities as she had before the accident.

[31] Since August 2006, the plaintiff has gradually worked her way back into her job. She is presently working four days a week, Monday and Tuesday, with Wednesday off, and then Thursday and Friday. She finds this schedule very tiring for her; she worked better when it was only 3 ½ days a week. Ms. Notenbomer testified she would be unable to work three or four days straight, but requires that day in between to be able to work as long as she is. Full time work would be five days a week, and she is unable to do that.

[32] On December 21, 2007, Dr. Hunter prescribed an anti-depressant drug for the plaintiff, having diagnosed her with depression. She continues on that drug, Citalopram.

[33] Other medications that the plaintiff continues to take are Naproxen, Oxycodone, Oxycodone and Acetaminophen, Lyrica, Endocet. She also takes Percocet, a narcotic, for pain, as required.

The Trial

[34] The trial took place over five days, with nine witnesses being called, including the plaintiff. Three close friends of Ms. Notenbomer were called. Melody Chandra has been a close friend for 30 years since they were together in high school. She testified that the plaintiff had changed since the car accident, and was no longer the happy go lucky person that she once knew.

[35] Up until 2003, Ms. Chandra said that she and the plaintiff saw each other six to eight times a month, and were involved in a lot of activities through work and leisure. These activities included taking lots of walks, cooking classes, lunches and dinners, dancing, taking insurance courses, and being with other friends. Then from the summer of 2003 up to August of 2004 when the motor vehicle accident occurred, they would see one another four to six times a month. But since the accident, they have seen much less of one another.

[36] Ms. Chandra testified that Ms. Notenbomer cannot sit in the theatre, or go for walks as they used to. That she is still pretty hunched over and she is aware of the plaintiff’s concern over her medications. As for the changes that she has noticed, she said there were “a lot”. Ms. Chandra testified that the plaintiff walks a great deal slower, and sometimes stumbles. She cannot lift things as she has before, and her personality has changed. Instead of a happy person, she is cranky, depressed, frustrated and clearly on medications.

[37] When asked if these changes in the plaintiff have affected their friendship, Ms. Chandra admitted that Ms. Notenbomer was “not as much fun to be around”. She observed that the plaintiff does not have much of a social life anymore, that she stays home a lot.

[38] The second friend to testify was Elizabeth Holcombe. She has been a friend and co-worker for 17 years. The plaintiff has always been a bubbly outgoing person according to Ms. Holcombe. They used to spend a lot of time together, and went to Hawaii on one occasion. They went on walks, dinners, to Bingo, and generally did a lot together.

[39] Then Ms. Holcombe had two children. She took time off work for that. So she did not see the plaintiff as much, although they stayed in touch. They have a lot of friends in common. Ms. Holcombe was aware of the motor vehicle accident when it occurred.

[40] Once the plaintiff came back to work in August of 2006, Ms. Holcombe began to see her regularly at work. They now work for the same company. At first, Ms. Holcombe said the plaintiff was only coming back for one or two hours a day, but now is back working four days a week. They both work at the same job.

[41] A special u-shaped desk was provided at work for the plaintiff in October 2007. The company moved the plaintiff’s desk next to Ms. Holcombe’s. The plaintiff’s desk features a hydraulic lift so that the plaintiff can stand while she is working on her computer. She is unable to sit for any length of time. Ms. Holcombe observed that in August of 2006 she had a cane, and she was “not the same Yvonne”. Ms. Holcombe found Ms. Notenbomer slow, and she looked to be in pain a lot. Where the plaintiff always used to be very bubbly, she was no longer that.

[42] Ms. Holcombe testified the plaintiff’s walking has now improved, and she believes that the new desk has made a difference. But she has observed the plaintiff to be heavily medicated, and still in a lot of pain. Some days are better than others. Some days she is more heavily medicated than others. Ms. Holcombe has noticed an improvement, but says that the plaintiff is still quite slow, for example, going up stairs. And she still cannot sit all day. She notices the plaintiff finds standing is easier.

[43] The plaintiff has indicated to Ms. Holcombe that the plaintiff is concerned about her work. She notes that Ms. Notenbomer checks her own work continuously, and now doubts her abilities. That she does not have the same mental ability that she had before the accident. For someone who could and would make friends with everybody previously, Ms. Holcombe says that the plaintiff is different emotionally now. In the view of Ms. Holcombe, the plaintiff struggles to come in every day to work, because Ms. Notenbomer does not want to stay at home.

[44] In cross-examination, Ms. Holcombe was asked if the plaintiff’s father’s illness had upset her, and she agreed that it had, because it was very sudden. But she believes that the plaintiff’s concern has evened out now, and it is not so pressing.

[45] I found Ms. Holcombe to be an excellent and observant witness, and probably in an excellent position to observe the plaintiff in the course of a working day over this last year or two.

[46] Ms. Notenbomer’s closest friend since age 15, Lisa Schwenneker, testified that they have been roommates for the past 20 years, since the age of 24. They have been best friends since the age of 15.

[47] Her testimony is that the plaintiff still cannot bend. Lisa Schwenneker does most of the housework; she did most of the lifting and moving in their recent move to a condo that has been purchased by Ms. Notenbomer and her mother.

[48] According to Ms. Schwenneker, Ms. Notenbomer is living with pain every day. She has extreme mood swings, and is not easy to live with. She is “no longer the happy, easygoing person.” The plaintiff loves her job, according to her roommate, and has taken all her courses in insurance so that she could be promoted. She does not want to quit work.

[49] Ms. Schwenneker observes that the plaintiff does not usually sit. She has to lie down, or remain standing. She does not contribute any change of personality to the plaintiff’s father’s illness. But she says there has been a change in personality and attributes that to the pain. The plaintiff complains of pain, particularly with regard to her right foot and left leg. In the evening after work, the plaintiff is tired and sore and does not go out in the evening. She takes more medication, stretches out and lies down.

[50] Yvonne Notenbomer gave evidence. She is a tall, well groomed, attractive woman of 45, who speaks well, and was a good historian, in my view. I found her credible. She was very responsive to questions, and unguarded in her replies. There were glimpses of the sunny personality that her friends testified about, and some evidence of her sense of humour; it was not hard to envisage her working well with people as presumably one must as an insurance underwriter.

[51] Her testimony was corroborated in almost every aspect by the testimony of her family physician, Dr. John Hunter, her orthopaedic surgeon, Dr. Schweigel, and her three close and long time friends. All of those witnesses were in excellent positions at different times to observe the plaintiff, both before and after the accident.

[52] While there may have been glimpses of a sunny or bubbly personality in the plaintiff, a look at her activities before and after the accident reveals much of the frustration and concerns voiced by the plaintiff in her testimony. Before the accident, Ms. Notenbomer enjoyed walking, cooking, socializing, water aerobics, lunches, dinners, frequent holidays, often to far away places, an annual trip to Las Vegas with her mother, and taking a number of insurance courses. She also is an admitted “great shopper”, and this constituted a lot of her activities, particularly with her friends. She was deeply involved in her dog rescue work, and being with her friends from work as well. She did swimming, boating, karaoke, attended jazz concerts, had season tickets to the Stanley Theatre, and did volunteer work in other areas than the dog rescue.

[53] Ms. Notenbomer said she always slept well. She did her share of housework, cared for the dogs in their apartment, and enjoyed her work. She testified she went to school “a lot”, and took usually two courses a year to proceed in the insurance industry. In short, she was a lady on the move, highly social.

[54] Now, the plaintiff walks slowly, cannot lift to any degree, and according to her friends and even herself, is no longer a happy go lucky person. She cannot sit for any length of time, and does much of her work standing. She will take a walk during her lunch break because she cannot sit and eat her lunch. She requires a hydraulic lift for her desk in order to work. She cannot sleep because of her discomfort and pain, and still takes many hot baths to alleviate her pain. She cannot fully care for her dogs, and cannot bend as she used to. She is in chronic pain that never goes away. She is unable to do her share of the housework, and is on serious medications daily. She suffers from depression now. She does not go out at night because of fatigue and pain.

[55] According to Dr. Hunter, “most chronic pain results in depression.” It is his belief that her continuous pain is the cause of the plaintiff’s current depression.

[56] Both Dr. Hunter and Dr. Schweigel have seen the plaintiff frequently, especially Dr. Hunter. There has been no suggestion that the plaintiff is otherwise than a truthful historian with regard to her pain and progress.

[57] Dr. Ramesh Sahjpaul saw the plaintiff once, on June 12, 2007, and his report is dated August 15, 2007. He also testified. He was qualified as an expert neurosurgeon, with particular expertise in the diagnosis and treatment of spinal injuries, and specifically spinal soft tissue injuries, disc herniations and nerve damage caused by motor vehicle accidents. Both Dr. Sahjpaul and Dr. Padilla agreed that when a disc is removed a period of convalescence would normally be anywhere from six to ten weeks. And that there should not be any permanent disability after that time.

[58] It must be noted that the plaintiff has a degenerative disc disease in her lumbar spine. Dr. Schweigel’s report of November 17, 2006 noted that she had this degenerative disc disease, and that this was causing her to have some mechanical back pain. “Bending, lifting and twisting are more likely to aggravate her back pain. This mechanical back pain is not related to the motor vehicle accident but is a problem that pre-existed the motor vehicle accident.”

[59] The plaintiff was unaware that she had degenerative disc disease in her spine before the accident, although the CT scan on October 16, 2003 showed degenerative changes to the plaintiff’s lumbar spine area. However, there is no evidence that these degenerative changes were either symptomatic or causing any pain or were disabling to the plaintiff. Dr. Schweigel testified that the pre-existing pain in the right buttocks of the plaintiff was due to the right disc herniation, not the spine itself.

[60] According to Dr. Hunter, Dr. Schweigel and Dr. Sahjpaul, a neurosurgeon, degenerative disc disease is common in most people, and, often, asymptomatic. It was Dr. Sahjpaul’s opinion that if not for the motor vehicle accident, he felt the plaintiff would not have had significant problems with her spine in the future. That only a small proportion of people who have similar degenerative disc disease end up with symptoms.

[61] Dr. Julio Padilla, a neurosurgeon called by the defence, was of the opinion that the degenerative disc disease was a factor in the source of back pain for the plaintiff.

[62] Three reports of Dr. Ian Turnbull were placed in evidence, although Dr. Turnbull was not available for cross-examination, as he was on vacation. It was Dr. Turnbull’s opinion that the L3/4 disc herniation was not caused by the motor vehicle accident. Dr. Sahjpaul disagreed with that statement. And it is now admitted by the defence that indeed the motor vehicle accident did cause the L3/4 disc herniation.

[63] The evidence of Dr. Sahjpaul and Dr. Padilla is pertinent to the issue of whether the right L5/S1 disc herniation was made worse by the accident. The defence relies on the evidence and report of Dr. Padilla, and the reports of Dr. Turnbull. Dr. Padilla’s report is dated June 20, 2005. He did not interview or see the plaintiff at any time. Dr. Turnbull saw the plaintiff on January 29, 2008 and his reports are dated January 28, 2008, February 4 and March 4, 2008.

[64] Dr. Turnbull’s report of March 4, 2008 states, in part: “Her ongoing back pain is attributable to the longstanding degenerative condition of her spinal column. Her symptom of tingling and pain in the right foot is the result of a disc herniation that was present prior to the MVA.”

[65] In his report of June 20, 2005, Dr. Padilla concluded that the plaintiff’s back pain as well as any symptoms on the right side that may present themselves in the future would not be related to the motor vehicle accident and he looked to the “multilevel disc degeneration” that was revealed in the MRI of September 1, 2004. He assumed that all the plaintiff’s pre-existing low back pain plus any symptoms on her right side were “clearly pre-existing and possibly not related to the motor vehicle accident of August, 2004.” Dr. Sahjpaul disagreed with that.

[66] I found Dr. Sahjpaul’s report of August 15, 2007 to be compelling. His evidence confirmed and amplified his report. That report stated, in part:

E. My diagnosis is soft tissue injuries to the lumbar spine, referable to the motor vehicle accident in question, traumatic left L3-4 disc herniation causing left L4 nerve root pain and contributing to low back pain. In my opinion, it is also possible that the motor vehicle accident may have negatively impacted on the eventual outcome from the right L5-S1 disc herniation. The preoperative CT scan did show a focal disc herniation at the right L5-S1 level. This was confirmed on the post motor vehicle accident MRI scan. It is conceivable that the force that was sustained during the motor vehicle accident could have further damaged the compressed right S1 nerve root. In other words, were it not for the accident, her outcome from the right L5-S1 discectomy may have been better.

F. The injury sustained in the accident, in my opinion, is an extension/flexion forced vector imparted to the lumbar spine. As mentioned above, it is my opinion that this injury caused the left L3-4 disc herniation in addition to causing soft tissue injuries to the lumbar spine (in addition to causing pain to her knees, legs, and feet, as described in the body of this report). As indicated in the paragraph above (E) this mechanism could have negatively impacted the outcome from her right L5-S1 disc surgery.

G. The only condition pre-dating the accident is the presence of the right L5-S1 disc herniation.

H. It is my opinion that the MVA could have negatively impacted on the outcome from the right L5-S1 discectomy. Although the MVA did not render the disc herniation any larger, I cannot rule out the possibility that the nerve itself was negatively impacted by the disc herniation.

I. My prognosis for Yvonne’s back pain and symptoms is guarded. It is my opinion that she will be left with permanent back pain and permanent leg symptoms which can consist of pain or sensory motor deficits.

J. She has ongoing back pain and ongoing right leg pain which, in my opinion, is neuropathic pain. She also has some ongoing sensory symptoms involving her left leg and some mild left leg pain. In my opinion, the low back pain and the left leg symptoms are referable to the motor vehicle accident. It is also my opinion that a portion of her ongoing right leg pain is referable to the motor vehicle accident.

K. Yvonne is currently working 3 ½ days a week but does so with difficulty. It is my opinion that she will be faced with permanent restrictions with regards to the duration of her workweek, especially if her vocation requires her to sit for prolonged periods of time or lift objects weighing more than 20-40 lb on a repetitive basis.

L. Yvonne has self-limited her leisure activities. For example, she cannot walk her dog as strenuously as she used to. She has also gained weight. It is my opinion that the pain she has and will be left with will restrict some of her future leisure activities, such as engaging in sports, exercise routines, etc.

M. Treatment recommendations are limited to further conservative measures. She may benefit from physiotherapy to promote core strength and lumbar range of motion, and massage therapy usually helps soft tissue injuries. She may require homemaking assistance in the future, as I suspect she will experience exacerbations of back pain from time to time which will make it difficult for her to function. She should continue Lyrica for her right leg neuropathic pain. I cannot prognosticate as to whether she will need Lyrica on a short-term or a long-term basis.

N. It is my opinion that Yvonne will be left with permanent back pain. This will result in some limitation of her vocational potential, especially as it relates to jobs that require a lot of sitting, repetitive twisting or turning of the lumbar spine, or lifting.

[67] With regard to the report and evidence of Dr. Padilla, where there is a difference of opinion between Dr. Padilla and Dr. Sahjpaul, I accept the opinion and evidence of Dr. Sahjpaul. Dr. Padilla did not have the benefit of examining or interviewing the plaintiff, and I note that his report was done approximately one month after the second surgery. I accept the evidence of Dr. Sahjpaul, not only given his expertise, but also applying the test of common sense to his findings.

[68] Dr. Turnbull was not present to give evidence, and one of the principal findings of his reports related to L3/4, which has now been disregarded not only by the plaintiff but also by the defence. I attach little weight to the reports of Dr. Turnbull under these circumstances, and given all of the other evidence in this trial.

The Position of the Plaintiff

[69] Yvonne Notenbomer claims she is permanently disabled, due to injuries caused by the accident of August 8, 2004. She is not able to work full time, and has suffered past wage loss, and is entitled to future wage loss as well as future care. The injuries caused by the accident include right Achilles tendon strain, mild-moderate neck/upper back strain, and right knee contusion. In addition, headaches that were more frequent, due to the accident. The tendon strain was resolved in two to four weeks, and the neck/upper back strain and right knee contusion were resolved in four to eight weeks. None of these injuries have any long term effects.

[70] A more serious injury is the moderate/severe low back strain. This involves a new pain in the lower back that the plaintiff experienced after the accident that went from hip to hip in her lower back, and then began to continue on down her left leg. She has experienced permanent burning pain with regard to the mid-back. Her pain has caused her to become hunched over to a greater degree after the accident, and she had to rely on a cane and walker following the accident.

[71] Counsel for the plaintiff contends that the defendant’s position that this is due to degenerative disc disease is not supported by the evidence, and particularly the evidence of Drs. Hunter, Schweigel and Sahjpaul.

[72] The next injury is a disc herniation to the left L3/4 lumbar region. It is acknowledged by both parties now that this is the result of the motor vehicle accident. This injury would not have occurred without the accident.

[73] A further injury is the exacerbation of the right L5/S1 disc herniation. The original disc herniation in this area occurred before the accident, and after the accident, on November 18, 2004, there was surgery for the right disc herniation. The surgery was successful, and the pain of the right sciatica nerve and the right buttock pain were resolved by the surgery. However, in January 2006, there was a relapse when the plaintiff was doing her water exercises, and different symptoms began with a sciatic-type pain that began at the plaintiff’s toes on her right side and went up the right leg. The plaintiff says this is a new right sciatica pain, which is still present, which is causing her considerable pain and discomfort; this new pain is due to the accident.

[74] The plaintiff relies on Dr. Sahjpaul’s opinion, and says that his opinion makes ordinary common sense. That if the accident was forceful enough to cause a left disc herniation at L3/4, then the accident must have caused more harm to the already injured and vulnerable right L5/S1 nerve. On a review of the evidence, I conclude this is more probable than not.

[75] With regard to the issue of scar tissue, the plaintiff relies on the explanation of Dr. Sahjpaul that scar tissue forms following surgery; and that scar tissue formed around the right S1 nerve in response to the trauma of the accident as well as the surgery. But scar tissue itself would not definitely cause the pain experienced by the plaintiff. The presence of scar tissue can predispose the nerve to future problems. The force of the accident caused a double hit to the right S1 nerve, resulting in additional injury, more pain, and more potential for chronic pain.

[76] As a result of the accident, the plaintiff now suffers chronic pain. As of December 2007, Ms. Notenbomer was diagnosed with depression, which counsel for the plaintiff contends is due to the chronic pain. Chronic pain syndrome exists or can be diagnosed once an individual has pain for more than six months. According to Dr. Sahjpaul, this was the situation with Ms. Notenbomer.

[77] Dr. Hunter’s evidence confirms that Ms. Notenbomer has been in pain constantly more or less since the accident, and she is on multiple medications, including medications for pain and depression. In his experience as a family physician, for which he was qualified as an expert, he testified it was not uncommon for chronic pain patients to suffer from depression. He also noted the side effects from one or more of the medications included lack of concentration, lack of coordination, fatigue, dizziness and memory problems.

[78] For damages, the plaintiff claims non-pecuniary damages in an amount between $125,000 and $150,000. She also claims special damages in the amount of $7,828 for money spent on rehabilitation, medications, and modifications to her home. The modification that is in dispute was the installation of laminate flooring for part of her apartment.

[79] Ms. Notenbomer seeks an award of past wage loss of $73,090, and for loss of income earning capacity, the amount of $250,000.

[80] Ms. Notenbomer began in the insurance industry in 1985, first as a receptionist, and by 1999 to 2001, she began taking supplementary insurance courses. By 2002 she was earning $50,000 with Citadel Insurance. In May 2003, she received a letter from Citadel enclosing $300 in recognition of her completion of two FCIP courses (Fellow Chartered Insurance Professional of the Insurance Institute of Canada). The plaintiff continued to take insurance courses to further her career. She testified that by the end of 2006 or the beginning of 2007, she should have completed her FCIP (Fellowship of the Canadian Insurance Professionals), had she kept pace with others who had begun their courses at the same time that she had. She would have completed those but for the accident.

[81] The plaintiff points out that evidence has been given with regard to the effect that the medications have had on Ms. Notenbomer’s productivity. She is not able to work at the same level that she did before the accident; not the same number of days per week; not with the same concentration; not with the same speed and abilities. She is in constant pain, and she has restrictions on performing some of her work tasks, according to the report of the occupational therapist, Alison Henry.

[82] Ms. Henry’s report also opined that the plaintiff would have to be selective in choosing jobs within her physical capacity, and she would not be as competitive as others. She may also require accommodation from an employer, and she still has physical restrictions with regard to her decreased tolerance for sitting, standing, bending, crouching and kneeling. As well as lifting. There may come a time when an employer is not as willing to accommodate the plaintiff’s disability.

[83] Counsel contends all of this points to a loss of income earning capacity. The plaintiff is less capable of earning income from all types of employment, and is a less attractive employee to potential employers. She is in a competitive labour market, and is less capable of earning income now than she was before the accident.

[84] The plaintiff was very clear that she loves her work and loves to work. She does not want to cease working. She takes pride in her work, and enjoyment from working with her colleagues. She is not content to sit and collect disability benefits rather than working. There is a possibility that Ms. Notenbomer may become totally disabled in the future or she may have to return to a three and a half day week, rather than her present four day week.

[85] The plaintiff’s income tax returns reveal that in 2001 she earned $47,635, and in 2002, $52,797. In 2003 her earnings were less, $42,931, but she was off work from October 2003 due to the right disc herniation.

[86] The report of Darren Benning with PETA Consultants Ltd. was filed in evidence. He prepared a report with regard to past and future income loss. For his report, Mr. Benning assumed an annual base salary for the plaintiff as a commercial underwriter at Citadel Insurance (now taken over by AXA Pacific) would have increased from $50,000 in 2002 to $50,696 in 2007. He also assumed a salary increment amount for the year 2008, and made an allowance for a bonus equivalent to 5.8% of her base salary.

[87] Mr. Benning’s calculations for past net income loss, on the assumption that Ms. Notenbomer would have returned to work full time as of January 1, 2005, which would have been six weeks post-surgery of November 18, 2004, would total $86,549. Had she not resumed full time work until three months post-surgery, the amount calculated for past net income loss was $80,910. And finally, on the assumption that she would not have resumed full time work until May 18, 2005, six months post-surgery, the amount calculated was $71,802.

[88] Mr. Benning’s calculation of loss of future income assumed earnings in her first future year to be equivalent to $50,835, her assumed base salary, plus 5.8% as her assumed bonus for a total of $53,783. That was followed by the assumption that she would have followed the average age earnings profile of the above average Canadian female insurance underwriter throughout to her retirement age.

[89] The calculation of the lump sum present value of future without accident earnings as of the trial date, if Ms. Notenbomer were to retire at age 55 years, was $486,910; if retirement was at the age of 60 years, $669,530; for retirement at age 65, $809,125.

[90] Using the table prepared by Mr. Benning, the plaintiff argues that a reasonable assumption would be that the plaintiff would work to age 60, and would have a 30% capacity reduction in her income, which would indicate a future income loss of just over $200,000. Added to that, counsel for the plaintiff argues there should be the equivalent of one year’s salary, in the event that there is total disability, for a total of $250,000 claim for loss of future earnings.

[91] There was also a report filed for cost of future care, also prepared by Mr. Benning of PETA Consultants Ltd. Dr. Sahjpaul recommended future treatment of physiotherapy to promote core strength and lumbar range of motion, plus massage therapy. He also indicated that the plaintiff may require homemaking assistance in the future. Further, the plaintiff should continue Lyrica for her right leg neuropathic pain.

[92] The occupational therapist was of the opinion that Ms. Notenbomer would require future physiotherapy, an exercise program of water aerobics, plus a personal trainer, homemaking services, pedicures, appropriate office equipment, back braces and supports, and prescription medicines. At the present time the plaintiff is taking Percocet, Oxycontin, Lyrica, Naproxen and Citalopram. Those cost $515 a month. Physiotherapy is $60 to $120 a month.

[93] Mr. Benning estimated the present value of those future care costs at $170,257, if there are no further homemaking services required; or $192,971, if Ms. Notenbomer lives alone in the future.

The Position of the Defence

[94] The defence contends that the accident did not aggravate the plaintiff’s pre-existing disc bulge at L5/S1. Rather, her past and future disability are a direct result of the pre-existing disc bulge at L5/S1, and/or the scar tissue at L5/S1.

[95] The defence points to the plaintiff’s health before the accident, that her health had deteriorated, she walked and moved hunched over. And would sweat a lot. This was due to the right disc bulge. Further, the plaintiff had gained weight after the accident, and had been gaining weight before the accident as well. The plaintiff’s right leg pain was such that even before the epidural shots were injected, she had set a date for surgery, November 18, 2004.

[96] In the view of the defence, the plaintiff’s right back injury, L5/S1, is easily triggered, and the plaintiff therefore comes under the definition of a crumbling skull. Those right-sided problems could be triggered by an everyday occurrence, such as a pulled muscle. Such as occurred in January 2006 during water aerobics.

[97] The defence contends that Dr. Sahjpaul’s report is based on incorrect assumptions, and that his report is ambiguous. The defence takes issue with both Dr. Sahjpaul’s report as well as Dr. Schweigel’s. Dr. Schweigel’s report does not say that the L5/S1 disc was aggravated by the accident, only Dr. Sahjpaul contends this. The MRI on September 1, 2004 does not show any aggravation of the plaintiff’s L5/S1.

[98] Dr. Schweigel in his evidence said that the plaintiff will have back pain as a result of her degenerative disc disease, and Dr. Schweigel in his November 17, 2006 report confirmed that the plaintiff has degenerative disc disease in her lumbar spine, and that this is causing her to have some mechanical back pain.

[99] The defence relies on the reports of Dr. Padilla and Dr. Turnbull, and the evidence of Dr. Padilla. That the plaintiff’s current right side pain is sciatic pain as a result of the scarring at L5/S1, not the accident. That scar tissue was found around the root of the S1 disc, as confirmed by the MRI of the plaintiff’s spine that was done on June 8, 2006. Further, it was Dr. Hunter’s evidence that the plaintiff is at significant risk for loss of work as a result of this L5/S1 disc injury with regard to her physical pain.

[100] On the issue of scar tissue, Dr. Padilla’s evidence was that when surgical interventions occur, scar tissue can potentially make matters worse. Dr. Schweigel confirmed that scarring is not unusual after surgery, even after completely successful surgery.

[101] According to the defence, it is the right-sided pain that is disabling the plaintiff, not the left side pain. And the right side pain was not caused by the accident, whereas the left side pain was. The plaintiff is taking Lyrica to stop the nerve pain, and that is with regard to the right side pain. The plaintiff confirmed in her examination for discovery on February 8, 2008 that her right-sided pain was worsening. And it was this pain that interrupted the plaintiff’s return to work.

[102] The defence contends that the plaintiff is not disabled by any problems on her left side, and further, that she is not completely disabled. She is able to do her job, with the assistance of medication, within her limitations. Nor is there any proof that she has lost any opportunity for promotion.

[103] The evidence of the plaintiff confirmed that a number of her colleagues at work only work four days a week, out of preference, and the employer is all right with that. She also indicated that the social aspect of her work that she enjoys is not seriously impaired by only working four days rather than five days. The plaintiff, by continuing to work only four days, would continue to enjoy full benefits. She would then continue to be free to pursue her other interests outside her work.

[104] In her cross-examination, the plaintiff admitted that she hopes to retire around age 55. At trial, the plaintiff said she understood the question to be how long did she hope to last until retirement, but that she would want to work much later. But the defence submits that this explanation makes no sense. The defence urges the court to reject the plaintiff’s explanation and accept the literal and simple interpretation of her words, that she hopes to retire at age 55.

[105] The defence questions the evidence of the three long term friends of the plaintiff, that their evidence is, in effect, unreliable, due to the closeness of their friendship with the plaintiff. That they are biased in favour of the plaintiff.

[106] On the issue of special damages, the defence rejects the claim for laminate floors as a necessary accommodation. The defence contends that the plaintiff would have installed such floors eventually for her dogs. Further, it is the evidence of both the roommate and the plaintiff that the roommate does the vacuuming and cleans up after the dogs, not the plaintiff.

[107] The defence rejects the evidence that the plaintiff is permanently disabled. Her job is not demanding and is well within her limitations. The plaintiff likely would have chosen to work four days a week regardless of her health, and she intends and hopes to retire at age 55. On the issue of causation, the defence relies on the recent case from the Supreme Court of Canada, Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333.

[108] In the Resurfice case, at paragraphs 21 and 22, the court stated, in part:

First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred....

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.”

[109] According to the defence, there is conflicting medical evidence, and the facts of this case do not meet the requirements of the more permissive “material contribution” test, as set out in Athey v. Leonati, [1996] 3 S.C.R. 458. That test can only be used in very limited circumstances, inapplicable here.

[110] Further, the defence cites the decision of Bohun v. Segal, 2008 BCCA 23; our Court of Appeal quoted the following restatement from Barker v. Corus, [2006] UKHL 20, [2006] 3 All E.R. 785:

The standard rule is that it is not enough to show that the defendant’s conduct increased the likelihood of damage being suffered and may have caused it. It must be proved on a balance of probability that the defendant’s conduct did cause the damage in the sense that it would not otherwise have happened.

[111] The defence argues that the plaintiff has failed to discharge the burden to establish, on a balance of probabilities, that the accident did cause her ongoing right-sided symptoms. That it is not enough for her to establish that the accident could have or may have done so.

[112] On the issue of a “crumbling skull”, the defence says this applies to this plaintiff. That this rule recognizes a pre-existing condition and the defendant need not be obliged to put the plaintiff in a better position than her original position. The defendant is liable for additional damage, but not for any pre-existing damages.

[113] This is not a case of the plaintiff having a “thin skull”, according to the defence. In a thin skull case, the plaintiff may have a weakness or a susceptibility that is then activated as a result of the negligent action of the tortfeasor.

[114] Here, the defence says that the plaintiff suffered from a pre-existing degeneration in her spine, and this was not a latent or asymptomatic condition. She was disabled from her employment prior to her accident. The L5/S1 was actively symptomatic at the time of the accident. The defence says that because of this condition, there was a material risk that the plaintiff would have been adversely affected by her degenerative disc disease in the future, notwithstanding the accident. Therefore, the crumbling skull doctrine applies to this plaintiff. Thus, the plaintiff should only be awarded damages for the left-sided disc herniation.

[115] On the issue of damages, the defence contends non-pecuniary damages in the amount of $50,000 to $60,000 would be appropriate. Past wage loss damages should not exceed $20,000 to $25,000, given that no disability should be attributed to the motor vehicle accident until at least the beginning of 2005. The plaintiff’s surgery for the L3/4 disc herniation was on May 12, 2005, and according to Dr. Schweigel’s report, she would have been disabled from light work for at least six months, which would bring her to mid-November 2005. This would be the end of any past wage loss.

[116] Finally, the defence claims that all claims for special damages, future wage loss and cost of future care should be dismissed, as all of these relate to the plaintiff’s right-sided pain, for which the defendant is not responsible.

Conclusion

[117] I accept the evidence of the plaintiff and her witnesses, virtually without qualifications. There are problems with the evidence put forward by the defence, as I have noted.

[118] This is a plaintiff with a thin skull, not a crumbling skull. There was a pre-existing weakness before the accident, to the plaintiff’s right leg area due to the disc herniation at L5/S1. But I accept the evidence and opinion of Dr. Sahjpaul that the accident was of sufficient force to cause more harm to the vulnerable L5/S1 nerve.

[119] On causation, I am satisfied, on a balance of probabilities, that the motor vehicle accident of August 8, 2004, more likely than not, was the cause, or contributed to the injuries of the plaintiff. No other conclusion makes sense. The chronic pain would not have occurred except for that accident. I conclude, on a balance of probabilities, that the right-sided pain would not have recurred, but for that accident, and that the left-sided pain was due to the accident, without question.

[120] The plaintiff’s pain and her ability to move changed significantly after the accident. I agree with counsel for the plaintiff that there is no reliable evidence to indicate a measurable risk that the plaintiff would have suffered disabling back pain without the accident. Rather, the evidence for the plaintiff indicates that many people have degenerative disc disease, which is often asymptomatic. It was the opinion of Dr. Sahjpaul that with her degenerative disc disease, Ms. Notenbomer would not have had significant problems in the years to come.

[121] The defence argument that almost all of her problems in pain relate to the right side disc herniation ignores, for one thing, the plaintiff’s and her doctor’s evidence that she began to suffer for the first time hip to hip lower back pain within two days of the accident; and she continues to suffer pain in this area. That pain was never in existence before the motor vehicle accident. It is part of her chronic pain. It is too simple and somewhat misleading to simply refer to “left side pain” and “right side pain” with regard to this plaintiff. In any event, I conclude from the evidence of the plaintiff that both the left side pain and the right side pain, as well as the lower back pain are attributable to injuries suffered in the accident of August 8, 2004.

[122] I accept the plaintiff’s evidence that she would prefer full time work, five days a week, as she normally had worked; not three and a half or four days a week. She has never voiced such an intention, and that was never her history. Quite the opposite.

[123] In my view the plaintiff has been motivated throughout her injuries following the motor vehicle accident of August 8. She has followed instructions from all her health professionals, according to the evidence, and she has worked hard to try and eradicate her chronic pain. There is no evidence to conclude that the plaintiff’s depression is due to her father’s illness. This illness occurred in October 2006. It was difficult for her then. But she showed no signs of depression at that time. Not until over a year later in December 2007, when her depression was first diagnosed by her family doctor, who had been seeing her regularly.

[124] The injuries were caused by the negligence of the defendant. The plaintiff is entitled to damages.

[125] The plaintiff is entitled to the following damages:

(A) Non-pecuniary damages for pain and suffering	$100,000
(B) Special damages	7,828
(C) Past income loss	73,000
(D) Loss of income earning capacity	200,000
(E) Cost of future care	170,000
Total:	$550,828

“Morrison J.”

Madam Justice Morrison

Citation:	*Notenbomer v. Andjelic,*
	2008 BCSC 509