2008 BCSC 1436 Heimdallson v. Heimdallson

Before: The Honourable Mr. Justice R.R. Holmes

Reasons for Judgment

Counsel for the Plaintiff:	Kevin F. Church
Counsel for the Defendant:	Gwen Ginter
Date and Place of Trial:	August 25-26, 2008
	Kamloops, B.C.

INTRODUCTION

[1] The plaintiff’s action which proceeded subject to Rule 66 claims damages as a result of injury he sustained as a passenger riding in a vehicle driven by the defendant, his wife. The accident occurred November 15, 2005 on Canim Hendrix Road, at or near 100 Mile House when their vehicle left the roadway and rolled onto its roof. Specifically the plaintiff seeks non-pecuniary damages for pain, suffering and loss of amenities as well as damages for loss of earnings or earning capacity past and prospective.

[2] Liability for the accident is admitted.

[3] At the date of the motor vehicle accident the plaintiff was 40 years of age, married to the defendant, and they had a son less than a year old. The family resided near 100 Mile House and the plaintiff was the proprietor of a home based computer support business named “ComputerSmith”. The plaintiff was also actively engaged with a community project attempting to bring high speed internet service to the Forest Grove and surrounding area. It was intended that the plaintiff would operate the service as a commercial venture.

INJURY AND TREATMENT

[4] The plaintiff had no immediate symptoms of injury at the scene of the accident but was concerned that his infant son be medically checked so the family attended the hospital at 100 Mile House by ambulance. There is no record, nor does the plaintiff’s evidence support that he was medically examined or treated at the hospital.

[5] At the time of the motor vehicle accident the plaintiff was returning home after an earlier visit to a chiropractor, Dr. Carson, at 100 Mile House. The plaintiff had attended on Doctor Carson for treatments since August 30, 2005.

[6] The plaintiff’s evidence was he only went to the chiropractor at his wife’s request and that the treatment he sought was for neck pain and headaches. A Patient Information Form the plaintiff filled out on his first visit however referred to back pain complaints and not to the neck pain or neck pain stiffness options provided on the form.

[7] The plaintiff testified the chiropractor asked about prior complaints so he told him about a previous accident, eighteen years past, which left him with some residual pain at waist level and to the back of his leg area but he had learned to live with the condition. He provided no plausible explanation for omitting any reference to neck pain in light of his evidence that was the reason he was seeking treatment.

[8] The plaintiff did not see a doctor for motor vehicle related injury complaints for several months but he continued appointments with the chiropractor, Dr. Carson following the November 15, 2005 accident although it is uncertain which visits were accident-related. The plaintiff recalls that prior to the motor vehicle he feels he had progressed to requiring only maintenance chiropractic treatment but after the motor vehicle accident he regressed to more frequent treatments.

[9] The clinical records of Dr. Geerts, his family physician, indicate the plaintiff was a “no show” for appointments scheduled for November 18 and 29, 2005. The plaintiff testified he must have changed or cancelled in advance of these appointments and denies he would simply not show up for a scheduled appointment.

[10] He attended for an appointment November 22, 2005 which was for an unrelated ear problem, but presumably he would have mentioned if he was suffering an injury from a recent motor vehicle accident. It remains unexplained why a notified cancellation or change of appointment time would be recorded as a “no show”.

[11] The plaintiff did not miss any of his scheduled work related appointments following the accident but perhaps re-arranged some of the times. He makes no claims for loss of income in this initial post accident period.

[12] In the week post-accident, the plaintiff was quite active, including some physically hard work without apparent symptoms of a back injury. He now recalls that he had difficulty lifting his son for a week or two, which his wife said she observed. The symptom of injury to his back the plaintiff first recalls was of pain or discomfort which occurred after prolonged sitting or inactivity. The plaintiff’s evidence is this was a different type of pain in a different part of his back then the residual pain from the accident from his youth which he had “…learned to live with.”

[13] The plaintiff received no medical treatment for several months post accident and during that period he was able to accomplish a good deal of physically active work related to acquiring, fabricating and assembling, repairing, and site locating equipment necessary for the construction of towers necessary for signal transmission for the high speed internet project. The plaintiff was able to perform physically demanding work and his posturally related back pain symptoms appeared to diminish.

[14] The community backed internet project was intended to provide a high speed connection for residents in the 100 Mile House, Forest Grove and Canim Lake area. The internet feed would be supplied by Telus to a base 200 foot tower from which it would be further distributed to area residents by transmission over a network of five line-of-sight satellite distribution towers.

[15] The plaintiff would be responsible for the necessary start-up capital costs and the ongoing operating costs of the system which he would build with the help of community volunteer labour. The plaintiff projected that revenue from area resident subscribers would repay the capital costs and ongoing operational expense and would, over time, provide him a profit as the operator.

[16] The plaintiff testified he received a very positive indication of support from area residents wanting to become subscribers. A few pre-paid their subscription and that money was used by the plaintiff to help finance the capital start up costs.

[17] Based on the indication of enthusiastic community support a financial forecast was prepared based on a model developed by Telus. The plaintiff estimated the first year of operation would see approximately one-hundred twenty residential subscribers with the addition of an approximate fifty more over the following two years, which it was estimated by the plaintiff would, when projected further over a six-year period, provide a flow of earnings before tax and amortization expense averaging approximately $50,000 a year.

[18] In fact what occurred is that there were only eleven subscribers in the first year and only thirty at the time of trial which was about four months shy of two years.

[19] This progression would indicate a drop in earnings before tax and amortization expense averaged over six years to about $12,500 a year.

[20] The plaintiff tenders this evidence in support of his claim to a significant loss of earning capacity.

[21] The plaintiff was the person who climbed the towers to facilitate their construction by hoisting and guiding successive sections in place, fastening, securing and bracing them and ultimately installing the necessary communications equipment. Volunteer workers assisted the plaintiff from the ground. The main tower was higher and heavier than the satellites and it was supported by placing a series of guy wires. The satellite towers were smaller, lighter, narrower, and free-standing. The site of the Canim Lake satellite in particular was in a very remote area of difficult terrain.

[22] The climbing and working above ground in the erection of the towers was difficult, demanding and dangerous work. The plaintiff wore a safety belt but it provided no back support and did not allow him to work from a seated posture. The plaintiff therefore was compelled to work from a very awkward and confining position that was posturally stressful to his back.

[23] Dr. Raghavan, a specialist in physican medicine and rehabilitation, recognized the need for the plaintiff to use a proper harness with back support and seating posture. The plaintiff requested the I.C.B.C. pay the cost of purchase and they declined. Inexplicably the plaintiff continued to work on the towers without obtaining an appropriate work harness.

[24] The plaintiff’s evidence is that on three or four occasions while working above ground on the towers he experienced a back spasm and had to stop work. His evidence is also that he could only work two or three hours without coming down to the ground to rest and relieve his back strain and a significant amount of time was lost because of the number of trips required climbing the towers.

[25] It was a back spasm in September 2006 while he was erecting the base tower that led him to see a medical doctor for the first time about what he alleges was a motor vehicle accident injury received some nine months earlier. He saw Dr. Geerts who referred him to Dr. Raghavan, who saw him in consultation October 30, 2006 and again for review in February 2007.

[26] The central issue in this action is one of causation, and whether the episodes of back pain and decreased stamina that limited the plaintiff’s ability to work above ground on the towers which commenced many months after the motor vehicle accident were caused or contributed to by injury in the motor vehicle accident of November 15, 2005.

[27] The plaintiff relies upon the opinion of Dr. Raghavan. Dr. Raghavan examined the plaintiff October 30, 2006 on referral by Dr. Geerts and in his report to Dr. Geerts he succinctly summarized the plaintiff’s condition:

Mr. Heimdallson is a 41-year-old male patient who developed mechanical back pain following a motor vehicle accident. His back pain is manifested mainly as a sitting intolerance. He remains physically very active, and all of these physical activities do not reproduce the pain. Clinical examination was unremarkable with very good flexibility of his lumbosacral spine. There was no evidence of any localized tenderness or any evidence of myofascial pain.

[28] Dr. Raghavan recommended physiotherapy, and the use Advil or Tylenol as required.

[29] Dr. Raghavan was not specifically asked to give an opinion regarding causation of the plaintiff’s mechanical back pain that he diagnosed but he assumed from what he was told it flowed from injury in the motor vehicle accident of November 15, 2005. Dr. Raghavan did not see, nor was he advised of the content, of Dr. Carson’s records that tended to contradict some parts of the oral medical history given by the plaintiff. In particular the records of the chiropractor, Dr. Carson, record his treatments of the plaintiff prior to the motor vehicle accident, including a treatment on the day of the accident, and a continuation of treatments thereafter.

[30] On April 18, 2008 the plaintiff was seen for an examination on behalf of the defendant by Dr. Duncan Laidlow a specialist in Rehabilitative Medicine and he was provided with medical records of the plaintiff that Dr, Raghavan had not viewed. Dr. Laidlow was also more focused on the issue of the causation of the plaintiff’s back problem.

[31] Dr. Raghavan and Dr. Laidlow are agreed on a diagnosis for the plaintiff of mechanical lower back pain. Dr. Laidlow also diagnosed lateral epiconylitis of the plaintiff’s left elbow the symptoms of which appear to have arisen after the plaintiff had seen Dr. Raghavan. That is not an injury claimed for in this action and in any event in Dr. Laidlow’s opinion was not related to the motor vehicle accident.

[32] The plaintiff denied to Dr. Laidlow any history of lower back or elbow pain prior to the motor vehicle accident of November 2005. Dr. Laidlow specifically asked the plaintiff about seeing Dr. Carson, the Chiropractor:

I did note that he has seen Dr. Carson, a chiropractor, prior to the accident and I asked him why he was attending Dr. Carson. Michael told me that he was attending Dr. Carson because his wife had asked [him to] go, but that he had no real reason for going. I did go over that point several times.

[33] Dr. Laidlow is of the view the plaintiff’s mechanical back pain definitely predates the motor vehicle accident of November 15, 2005.

[34] Dr. Laidlow’s review of Dr. Carson’s records of his treatment of the plaintiff from September 15, 2005 to the date of the accident read:

The entry on November 15, 2005, from Dr. Carson, seems to indicate that Michael had been complaining that he had been sore and it looks as thought the treatments were directed at the neck, mid back and lower back areas. When one looks at the chiropractic records, from November 15, 2005 to December 15, 2005, they seem very similar to the records present before his accident and indeed on December 15, 2005 the chiropractor noted that Michael was “pretty good”.

[35] Dr. Laidlow opined that:

The most reasonable explanation for his back pain is that he had back pain prior to the accident and continued to have back pain when he was forced to be in awkward postures for prolonged periods of time or when he was forced to sit for prolonged periods of time. I canot relate the back pain that he has now at this time to the accident in any way, shape or form.

[36] It is Dr. Laidlow’s opinion that any significant injury to the plaintiff’s back would have manifested itself within the first few days of the accident whereas the evidence is he remained physically active and symptom-free.

[37] I conclude the plaintiff has failed to prove on a balance of probabilities the back pain he experienced after commencing the above-ground work in erecting the towers commencing in the fall of 2006 was caused or contributed to by injury he received in the motor vehicle accident of November 15, 2005.

[38] Neither Dr. Carson, the chiropractor, nor Dr. Geerts, the family physician, gave evidence or tendered reports despite the very contentious causation issue in this action. Dr. Carson’s records recording the plaintiff’s history and the treatment he received were highly contradictory to the plaintiff’s evidence and the explanations of the plaintiff make no sense even with allowance that he is a poor historian.

[39] I conclude the plaintiff had an existing problem of back pain, symptomatic at the date of the motor vehicle accident, for which he was receiving chiropractic treatments prior to the subject motor vehicle accident of November 15, 2005. I accept the motor vehicle accident exacerbated that pre-existing condition for a period of time, and the symptoms were manifested when lifting weight and by postural discomfort caused from prolonged sitting or immobility.

[40] The pre-accident treatment appears to have continued post motor vehicle accident and the frequency might have increased. No medical treatment was sought nor received until the fall months of 2006. Medical appointments with the plaintiff’s family doctor for other matters make no mention of a motor vehicle accident or complaint of injury. Some medical appointments of the plaintiff’s doctor in November 2005 following the accident were not kept and noted by the doctor in the clinical record as “no show”. Clearly the plaintiff had access to medical treatment and could have attended a doctor for any injury in the motor vehicle accident had he wished.

[41] The plaintiff’s exacerbated back pain symptoms either resolved or significantly diminished within a few months of the accident. The plaintiff’s more serious complaints of back pain and spasm did not occur until months later when the communication tower assembly commenced. The work performed by the plaintiff in climbing and working above the ground on the towers would be very stressful to a person with a pre-existing mechanical back problem. The plaintiff also did some of the tower assembly work in extremely adverse weather conditions, cold and wet, and for extended periods of time without wearing a proper harness that would have allowed him to work from a back supported seated posture.

[42] The plaintiff makes no claim for loss of income attributable to the period immediately following upon the motor vehicle accident and for several months thereafter. The plaintiff does however appear to claim for a loss of earnings based upon a loss he alleges occurred because of delay that occurred in erecting the towers due to his inability to work above ground for the continuous number of hours required and that this delay in turn caused a “loss of confidence” amongst community residents and significantly reduced the subscriber base and the consequent earnings from providing an internet link.

[43] The basis of the plaintiff’s claim is not sustainable. The plaintiff has not proven the motor vehicle accident was the cause of his back problem affecting his ability to work above ground on the towers. The difficulty the plaintiff experienced after commencement of tower construction was from his back problem which pre-dated the motor vehicle accident of November 15, 2005, exacerbated by the strain imposed in the above-ground tower construction work.

[44] There were also many factors that limited the plaintiff’s ability to work on the towers apart from back pain. They include adverse weather, lack of volunteer labour, site access, equipment delay and repair and vandalism.

[45] I also find it difficult to accept that if the plaintiff had a limiting physical condition contributing to delay caused by his injury in the motor vehicle accident he would not report that to the community instead of issuing a stream of public relations type progress reports on his activity blaming many other factors but not that he was limited in his ability by injury which surely community members would appreciate and accept.

[46] The lack of subscribers that occurred may well have resulted from a faulty or overly optimistic original estimate and earnings projection.

[47] Finally the plaintiff in respect of a loss of income based claim seeks compensation for a future loss of earning capacity. I agree with counsel for the defendant that the plaintiff has not established he suffers from ongoing symptoms related to the accident and Dr. Laidlow’s opinion is that the plaintiff’s mechanical back pain has not been made worse because of the accident. The plaintiff pursues his trade of a skilled computer technician and there is no evidence of an inability to take advantage of any job opportunity for which he is reasonably suited [Moore v. Cabral, 2006 BCSC 920; Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.)]. The tower construction is complete.

[48] I do however accept the plaintiff did receive some injury in the motor vehicle accident of November 15, 2005. That injury was an exacerbation of a long-standing pre-existing back injury, and he is entitled to non-pecuniary damages for the exacerbation injury which I consider was resolved within approximately a year of the November 15, 2005 motor vehicle accident. He was restricted for a month or two following the accident in his ability to lift weights and for several months on a diminishing or sporadic basis and he was troubled by prolonged sitting or immobility. Treatment was by continuing chiropractic and exercise. He was able to perform his work and operate his business with minimal interference. I assess the plaintiff’s damages at $8,500, inclusive of minimal interference with earning ability or loss of business income.

[49] The plaintiff is entitled to his costs of the action.

“R.R. Holmes, J.”
The Honourable Mr. Justice R.R. Holmes

Citation:	*Heimdallson v. Heimdallson,*
	2008 BCSC 1436