2008 BCSC 1237 Kop v. Lobb

Before: The Honourable Mr. Justice Curtis

Reasons for Judgment

Counsel for the Plaintiff, Marcelle Allaire, formerly Marcelle Kop	Albert Berns
Counsel for the Defendant	Nicholas A. Mosky
Date and Place of Trial:	May 12 – 16, 2008
	Victoria, B.C.

[1] Marcelle Allaire, who was formerly Marcelle Kop, claims damages for personal injuries that she alleges were caused by a motor vehicle collision December 30, 2002. Liability for the collision is admitted but the nature and extent of the injuries alleged is in issue.

[2] The collision occurred when Marcelle Allaire was driving east on Goldstream Avenue to drop her daughter at a friend’s residence. She was driving her 1985 Crown Victoria. Irene Lobb was driving her 1991 Toyota Tercel with her five-year-old grandson in the back seat. She turned back to say something to her grandson and when she looked forward again saw Ms. Allaire’s car stopped in front of her. She braked and collided with the back of the Allaire vehicle. She estimated her speed to be 40 km/h before she applied her brakes. The Toyota Tercel suffered a sizeable dent in its front bumper just to the passenger side of the licence plate, which cost $483.73 to repair. The Crown Victoria had a dent which caused a wrinkle in the top of its large chrome bumper which cost $53.08 to repair. Of the four persons involved in the collision, only Ms. Allaire claims to have been injured by it. That and the minor nature of the damage to her car is no doubt a part of the reason for the wide divergence of positions taken by the parties on this claim.

[3] On December 30, 2002, Marcelle Allaire was 34 years of age. She had children approximately 14, 11 and 9 years of age, was married to Edward Kop who operated Eddy’s Electric, and worked as a medical office assistant four days per week.

[4] Ms. Allaire had graduated from Belmont Secondary School in Langford in 1986. She began working as a waitress when she was 15. She was interested in nursing but had been told there was a two-year wait list. She applied for the nursing course but began a medical office assistant’s course by correspondence in September 1986 while continuing to work as a waitress. The medical office assistant course was completed in 1987 but she did not get her diploma until 1989. Her first child was born prematurely at 27 weeks May 20, 1988 and required a great deal of special care. Realizing she would have to stay home to care for her child, Ms. Allaire started a day care when her daughter was about seven months old around the end of 1988. She ran the day care with between three to seven children for five years. She received a call from the nursing college in 1988 but was unable to attend because of the need to stay home with her daughter. She went to work as a medical office assistant in 1998 when her youngest child was about four, and in 1999 began working with her current employer, limiting her employment to three days per week because of her children. She and her husband had agreed that she could go back into the work force when their youngest was in pre-school.

[5] By all accounts, Marcelle Allaire was a high energy person, kept her house in show home condition, and was a valued employee. She enjoyed gardening and jogged three to five times per week for half an hour or more. In addition, she was very active with her children’s baseball, being a “dugout mum”.

[6] Marcelle Allaire has testified that when Ms. Lobb drove into her car December 30, 2002, her car was forced forward about half a car length. She said her head went forward and back very quickly but her head and body did not strike anything in the car. She said she had her seat belt on from which she suffered bruising. She testified she had incredible pain right away between her shoulders and neck and across her chest. She said her vehicle had a huge dent between the rubber bumper pads. Despite the level of pain she described, she did not seek immediate medical attention but chose to drive home and rest, and reported the accident to the police the next day. She worked for four hours December 31, but took sick time from January 6 – 10. Her first medical attendance was a walk-in clinic January 2, 2003 because she could not reach her family doctor, Dr. Hugh Down, who she saw January 9, 2003.

[7] The defendant, Irene Lobb, gave evidence that immediately following the collision, she apologized to the plaintiff, and that her impression from the conversation was that everybody was fine. Neither she nor her grandson travelling with her were injured.

[8] Dr. Hugh Down and his wife Karin share a medical practice. They had been family physicians to Marcelle Allaire for some time prior to the collision. Dr. Down’s note of the January 9^th visit was:

She was rear ended by a Toyota Tercel reported by her to be travelling perhaps 50 kilometres per hour. The vehicle sustained some mild damage to the centre of the rear bumper. At the time, she did not hit her head nor sustain any loss of consciousness. Soon after the accident, she developed pain in her neck and upper body region. She went to a Walk In Clinic for assessment on January 2, 2003. X rays were ordered of the cervical and thoracic spine which showed no acute changes and incidentally noted mild disc degeneration at the C5-6 level.

[9] There was no note of headaches reported at that visit.

[10] Dr. Down’s report of June 1, 2006 continues as follows:

She was assessed on three occasions in the office in January 2003 with the symptoms of pain in the neck shooting into the right arm, headaches and muscle spasm. She was too uncomfortable to work at this time, and it was suggested she take some time off work. Muscle relaxants provided to her by the Walk in Clinic physician were not tolerated, therefore, she was given a prescription for Vioxx and Tylenol 3 for pain relief. At this time, her examination showed her to be generally uncomfortable, she had tenderness to her upper back and cervical area more so on her right. She had reduced right lateral flexion and right rotation of the neck, although she seemed to have grossly normal range of motion in her thoracic and lumbar spine and shoulders. Her reflexes appeared normal and symmetric.

She initially tried some physiotherapy, but was intolerant to this due to an exacerbation of her symptoms. Subsequent to that, she started treatments with a Kinesiologist and continues with this. Because of ongoing symptoms of daily headache and persistent neck pain exacerbated by activities, she was assessed by Dr. Lynne MacKean September 20, 2005. Dr. MacKean did not suggest any other diagnostic possibilities and suggested a trial of Lyrica for her pain, (she previously was intolerant to a trial of amitriptyline). She was recommended to continue with a Kinesiologist for regular stretching and strengthening exercises. She was also referred to Dr. Dan Vincent for possible nerve blocks in her neck region to help provide pain relief.

Dr. Vincent assessed Mrs. Lop March 2, 2006. His impression, I believe, was of post traumatic cervicogenic strain and associated headaches and he elected to try some cervical nerve blocks on Mrs. Kop. I have no further notes from Dr. Vincent nor have I heard from Mrs. Kop in the interim so I have no information to provide as to how effective this treatment was.

I should note that because of persistent visual “spots” when she looked upwards, she was assessed by an ophthalmologist, Dr. Jana Janda, in October 27, 2004. At that time, her visual examination was normal and Dr. Janda felt that it was most likely her symptoms were the result of her motor vehicle accident related injury. Upon Dr. Janda’s recommendations, a CT angiogram of the carotid and vertebral arteries was performed to exclude any blood flow abnormalities. This test was performed November 17, 2004 and was reported as normal.

[11] The doctor’s note of January 13, 2003 refers to “worsening pain” and January 29 “still bothered by H/A’s (headaches)”, “sore post neck”, “Rt arm consistent ache”. The July 2, 2003 notes refer to “persistent H/A’s”, and goes on to note, “H/A’s soft tissue tenderness Post MVA – persistent but slowly resolving” and refers to likely resolution in 6-18 months.

[12] A complete physical assessment done October 8, 2003 notes “H/A gone on elavil. Physically doing well” and refers to her being off Vioxx taking Amitriptyline and another medication.

[13] Ms. Allaire continued with her employment as a medical assistant. In 2002, she had missed five days of work prior to the accident. In 2003, she missed eight and a half days; in 2004, nine days, three because of a hand operation; and in 2005, five and a half days.

[14] In July 2005, Ms. Allaire reduced her work from four days per week to two days which she said was on account of pain. There is no evidence of her being advised this was medically necessary.

[15] In October 2005, Marcelle Allaire and Edward Kop agreed to a legal separation, although they continued to live together in the family home until July 2006 when she moved out. Ms. Allaire testified that Mr. Kop abused alcohol and was abusive. She said he wrote multiple bad cheques on their joint account, grew marihuana in the garage despite her protests (for which he was charged), and had multiple impaired driving charges. After she moved out in July 2006, she said he became vindictive, manipulated legal papers to remove her name from the title to the family home and ran the business, Eddy’s Electric, into the ground. He paid spousal and child support at first but stopped paying in March 2007. She testified the separation was not nearly as stressful as the living with him while she covered up his drinking for years.

[16] Dr. Down wrote in his June 1, 2006 report:

It is now approximately 3 ½ years post motor vehicle accident and neck injury. I last saw Marcelle in the office for assessment October 26, 2005. In the previous three years, this injury has had a significant impact on her life. She has had to modify her recreational activities as they significantly exacerbate the degree of neck pain and headache. As well, she has elected to work part time, two days a week, as her symptoms were so exacerbated by full time work as a receptionist. She has remained motivated and committed to regular exercise and strengthening activities and has continued to use the services of a kinesiologist. As it has been helpful for her, I would recommend that she continue with this program on an as needed basis. Notes from Dr. Vincent stated that she has had some benefit from Lyrica, and I would also recommend its continued use if she has found it beneficial. I have no information in hand presently whether or not her nerve blocks through Dr. Vincent’s office have been helpful to her. Since it is now three and one half years post injury and according to my notes she still has reasonably significant symptoms, I am unable to comment as to when her symptoms may actually completely resolve. I think we are just going to have to watch her and support her and hopefully over time she will continue to get some symptom resolution.

[17] In June 2006, Ms. Allaire was treated for stress and adjustment disorder. Also in June 2006, she was involved in a motor vehicle accident that did $2,295.16 damage to a Ford Focus. She testified she suffered no injuries from that collision.

[18] Marcelle Allaire tried physiotherapy on four occasions but discontinued the treatment because she felt worse after them. She was referred to Dr. Vincent, a specialist in Anesthesiology and Interventional Pain Management, from whom she received injection therapy as described in his reports of September 28, 2006 and February 12, 2007. His opinion is that she continues to suffer from “unresolved post traumatic cervicogenic headaches characterized by persistent identifiable sources of pain arising from C2-3 and third occipital nerves of the cervical spine.” In his February 12, 2007 report, Dr. Vincent states:

Although she does not have any specific neurological injuries, for example, disc herniation with nerve root compression, she is nonetheless quite symptomatic and is unlikely to change in the foreseeable future. Her prognosis therefore is guarded with respect to full recovery of neck symptoms.

Under cross-examination, Dr. Vincent agreed that it is often difficult to diagnose the true source of pain. He testified his prognosis was for gradual recovery.

[19] Ms. Allaire continued injection therapy with Dr. Svorkdal when Dr. Vincent went on medical leave beginning with an injection April 16, 2007. Dr. Svorkdal like Dr. Vincent, is a specialist in anesthesiology and pain management. His diagnosis of Ms. Allaire’s headache pain was “bilateral occipital neurologic”. Asked if the motor vehicle accident was the cause of her pain, he said, “It is possible.” He agreed her response has been optimistic to date.

[20] Ms. Allaire testified that immediately after the injection therapy she feels numb. When the local anesthetic wears off, she feel like she has been beaten over the head for several days, following which, the treatment gives her about four weeks of relief by dulling the pain.

[21] Dr. Down in his last report of March 29, 2007 states:

Ms. Kop’s current symptoms are persistent daily headaches. The pain can occur anywhere from the upper thoracic region of her back to the base of her occiput. The pain seems to be exacerbated by prolonged use of that body area. Her work as a medical receptionist exacerbates the pain and she has previously had to limit the amount of the time she works. Presently, she has been back working full time since December 2006. She is exercising and keeping active as tolerated. She is unable to run or do any exercises that cause any jarring of the neck area.

Current treatment includes ongoing trigger point injections every 6 to 8 weeks. Ms. Kop finds these provide reasonable pain relief for about four weeks. She is continuing regular use of ibuprofen 200-400 mg. orally three times daily, and oral Lyrica 150 mg. at bedtime. She has found any manual/physio therapy exacerbates her symptoms.

Overall, it is now more than four years since her initial injury. She still has significant neck pain and headaches that are occasionally severe enough to cause her to miss a day at work (perhaps one day per month at present). Ms. Kop is presently gainfully employed, and remains active. Her problem is that of chronic ongoing neck pain and headaches. It is difficult to predict her ultimate outcome. Her pain four years post injury is still significant, therefore likely will continue to bother her for at least a few more years. Whether or not she is permanently affected, I am unable to predict. Her long term prognosis is guarded. As she is receiving benefit from ongoing trigger point injections and her current medical regimen, I would recommend she continue. Ongoing treatment will likely be long term (ie. years, not months). As to other possible future treatment possibilities, that will come from the pain control specialist’s recommendations.

[22] Marcelle Allaire was also given a neuropsychological assessment by Dr. Allison, a registered psychologist. Dr. Allison’s report of October 3, 2007 states:

This neuropsychological assessment has documented the following:

Strengths

1) Average general intelligence;

2) Average attentional skills in general – i.e. simple, sustained, selective and divided attention;

3) Average language knowledge and skills, including verbal fluency;

4) Average abstract problem solving ability;

5) Average visual learning and memory and good recognition memory;

6) Excellent motor speed and eye-hand coordination;

7) Essentially normal emotional status.

Weaknesses

1) Relatively weak working memory and decreased speed of processing on more complex tasks;

2) Weak flexibility of attention and poor visual-spatial problem solving skills (secondary to impulsive responding);

3) Variable auditory learning and memory (with scores ranging from the lowest end of the average range to well within the average range).

It is notable that all of these weaknesses were found on the second morning of testing, when she reported feeling tired and very sore secondary to the efforts of the previous day. These findings are entirely consistent with her report of having more difficulty with her attention and her memory when she is feeling sore or tired. Unfortunately, Ms. Allaire experiences marked physical discomfort and fatigue for two weeks out of every seven, both before and after her nerve block injections. She denied having any noticeable difficulties with her attention or her memory prior to the motor vehicle accident of December 30, 2002, and clearly did not require nerve block injections for pain control prior to this accident. Her complaints of pain in her neck and of headaches were reported within days of this accident and have been consistent since that time. As these results demonstrate, Ms. Allaire’s cognitive skills in the areas of attention, speed of thinking, and memory are vulnerable to the effects of increased pain and fatigue, such as she experiences on a chronic basis. It is therefore my opinion that these weaknesses are the secondary results of the pain and disturbed sleep which have been evident since this motor vehicle accident.

In terms of prognosis, it is likely that Ms. Allaire will continue to experience this pattern of reduced cognitive abilities for two weeks out of every seven for as long as she continues to experience marked levels of pain. I cannot offer statements regarding her pain.

At this time, Ms. Allaire would have marked difficulty achieving success in her pre-accident goal of pursuing courses in Nursing. Courses in this area require the individual to have good learning and memory, intact attention, and good speed of thinking on a daily basis and do not allow for repeated periods of time when the individual is not able to function at a high level. Indeed, moving to any job other than the one with which she is familiar would be difficult for her for the same reasons. The reason that she has been able to continue working at her current level is due to her detailed knowledge of the job and its somewhat repetitive nature. She should be commended for continuing to work in spite of experiencing significant levels of physical discomfort and fatigue.

[23] Dr. A.E. Wahl, an orthopaedic surgeon, assessed Marcelle Allaire November 29, 2007 at the request of the defendant’s counsel. In his report of that date, Dr. Wahl gives the opinion that :

I am unable to provide a definable aetiology for this lady’s persisting chronic pain syndrome. Based on the facts described above, I would doubt that this accident resulted in any objective anatomic injury which could be the source of this clinical syndrome.

Dr. Wahl agreed that “there is no argument about the fact that she is experiencing pain”. He was unable to offer any diagnosis for the condition because he found himself unable to determine the cause.

[24] The plaintiff’s position is that her pain and attendant difficulties to date are all caused by the December 30, 2002 collision. Her claim on that basis as presented by counsel is:

General damages	$80,000 to $100,000
Past wage loss	$24,000 less 30% for taxes
Special damages	$602.09
Future loss, loss of earning capacity	$75,000 to $100,000

[25] The defence position is that the collision caused a mild soft tissue injury which largely resolved by October 2003, on the basis of which a reasonable award is in the range of $22,000 to $35,000 for general damages, $102.09 for special damages and no amount for past or future wage loss.

[26] I have some difficult in assessing Ms. Allaire’s evidence. She describes the resulting dent in her car as huge, yet it does not look like that in the pictures and the cost to repair was estimated at only $53. She said she was in incredible pain immediately after the accident, yet Ms. Lobb spoke to her and was under the impression everyone was fine. No ambulance was called, nor did she seek immediate medical attention which I would expect would happen if the pain was immediately “incredible” and “excruciating”. On the other hand, I have no doubt that Ms. Allaire suffered pain caused by the accident which, as documented by the medical reports, gradually got worse over the ensuing weeks. I also have no doubt that Ms. Allaire continues to have pain to this day – it seems to me on looking at her that it is written in her face. As Dr. Vincent testified, people do not go for injection therapy unless they have pain. Furthermore, there is evidence from her mother, her friend and her employers that she is not the high energy person she once was. The difficulty is to assess the degree to which the collision is the cause of her pain and the true effect of that upon her life. There is a tendency to attribute a multitude of difficulties following a car accident to that one cause when often there are many.

[27] The initial evidence of Ms. Allaire’s injury and its initial progress does not suggest she suffered an injury that would be troubling her to the extent she now describes more than five years later.

[28] She did not seek medical attention immediately after the collision and was able to drive her car home. She worked for four hours December 31^st, went to a walk-in clinic January 2, 2003 and saw her doctor January 9^th, 2003. She took sick time from January 6^th- 10th, 2003 for which she was paid and continued on with her regular work schedule thereafter until July 1, 2005 without any significant increase in her sick days.

[29] Dr. Down’s note of January 9^th, 2003, 10 days after the accident is, “H/A’s – a bit improved.” and “neck/upper back post MVA – improving, now fit to try and return to work.” In July 2003, Dr. Down noted her headaches were persistent but slowly resolving and at that date was of the opinion that her condition would resolve within 6 – 18 months which would be two years from the date of the collision. A complete medical done on Ms. Allaire October 3, 2003 notes with respect to her headaches that she is “doing well”. For some reason, the course of her condition reported thereafter appears to have altered. In May of 2004, she is reporting dark sports in her visual field since the collision whenever she looks up and in October 2004 what her doctor records as sounding like chronic crepitus in her neck. By August 2005, she is reporting headaches daily and informed her doctor she has reduced her work to two days per week because of her headaches.

[30] Dr. Down attributes her continuing problems to the motor vehicle accident as does Dr. Vincent. Dr. Svorkdal, however, who is currently treating Ms. Allaire when asked if the motor vehicle collision was the cause of her pain said only, “It is possible.” Dr. Wahl, the orthopaedic surgeon, writes in his report of November 19, 2007:

I am unable to provide a definable aeteology for this lady’s persisting chronic pain syndrome. Based on the facts as described above I would doubt this accident resulted in any objective anatomic injury which could be the source of this clinical syndrome.

It is clear from the medical evidence that headaches can be caused by tension or other physical conditions.

[31] Ms. Allaire bears the onus of proving that the condition for which she seeks compensation was on the balance of probabilities caused by the December 30^th, 2002 collision. I find on the evidence that she did suffer a mild to moderate soft tissue injury to her neck and back as initially diagnosed in her early months of treatment by Dr. Down which was caused by the collision. I am not persuaded, however, on the balance of probabilities, that her condition caused by the accident injuries extended beyond the two year period initially foreseen by Dr. Down. She was clearly on a course of recovery in that two year period. What happened thereafter has not been proven to have been caused by the December 30^th, 2002 collision.

[32] I assess Marcelle Allaire’s general damages for a mild to moderate soft tissue injury to her neck and back extending over a period of two years at $30,000.

[33] I am satisfied on the evidence that the opportunity of becoming a nurse was lost through other causes. To begin with, at 19 years of age, she had a premature child which required her to forego her career ambitions and stay home. Even though she had taken the medical office assistant course, she did not work in that field until about 1998 when the youngest of her three children was about four and she was about 30. Her husband agreed to support her in her further studies but she did not embark on these in the four years she worked as a medical assistant prior to her injury. In 2005, her marriage, which had been very stressful, came to an end following which the family business failed and her husband stopped paying support. During all that time, there was a two to three year waiting list to get into the nursing course. Ms. Allaire would have had to upgrade to get into the course which she had not done. The course itself takes four years and costs about $10,000 per year. Most students taking the course end up $40,000 in debt. There was no realistic possibility in the circumstances that Ms. Allaire would have taken the nursing course following December of 2002 even if she had not been involved in the accident.

[34] There is a claim for past wage loss of income caused by her injuries. In the 2002 year when she was working four days per week, she took five sick days. The sick days taken the following years did not increase markedly. According to her records, her income was as follows:

Total

2002 Pediatric Consultants $23,349 $23,349.00

2003 Pediatric Consultants $26,079 $26,079.00

2004 Pediatric Consultants $27,079.94 $28,426.94

Western Trade Consultants $ 1,347.00

[35] I have found the defendant liable for Ms. Allaire’s condition for the two years following the accident. She received sick pay for the time she took off work and there is no evidence she would benefit from buying back her sick time. The evidence before me does not show that Ms. Allaire took time off work because of her injury for which she was not paid. I find Ms. Allaire has not proven that she suffered any wage loss to date that was caused by the accident.

[36] Defence counsel has sought a 40 percent reduction in the award because Marcelle Allaire did not take the physiotherapy recommended. She tried physiotherapy and found it too painful. There is no evidence that she would have recovered faster had she taken physiotherapy and I decline to make any reduction in the award for that reason.

“V.R. Curtis J.”

Citation:	*Kop v. Lobb,*
	2008 BCSC 1237