Bumstead v Dufresne, 2015 ABQB 787

Court of Queen ’ s Bench of Alberta Citation: Bumstead v Dufresne, 2015 ABQB 787 Date: 20151210 Docket: 0701 08714 Registry: Calgary Between: Brian Kenneth Bumstead Plaintiff - and - Fannie Dufresne and Jane Doe Defendants _ ________________________________________ ______________ Reasons for Judgment of the Honourable Madam Justice K.M. Horner _________________________________________ ______________ I. Introduction [ 1 ] This is a personal injury action brought by Brian Kenneth Bumstead (the “Plaintiff”) against Fannie Dufresne (the “Defendant”).

The Plaintiff’s vehicle was struck from behind by the Defendant on September 9, 2005. Liability is not an issue. [ 2 ] Causation and damages are the primary issues in dispute. Parties took opposing positions on the extent of the Plaintiff’s injuries and whether those injuries arose as a result of the motor vehicle accident. [ 3 ] Litigation has progressed over a number of years. In addition to this action, the Plaintiff also pursued an action against his disability insurer (the “Insurance Action”).

The Insurance Action was settled before this trial began. [ 4 ] Since the motor vehicle accident in 2005, the Plaintiff has made three attempts to return to work. These efforts were not successful. To date, he has not returned to work of any kind. He alleges that chronic pain resulting from the motor vehicle accident is his primary barrier. [ 5 ] The Plaintiff has been living on social assistance. As a consequence of his financial limitations, he has moved a number of times since the collision.

At the time of the trial, he resided in rural British Columbia in modest rental accommodation. [ 6 ] The Plaintiff has been seen by numerous medical professionals, including a number of specialists, for assessment and treatment. Further, as a result of the two litigation actions, the Plaintiff has been assessed by numerous medical professionals for independent medical examinations (“IMEs”).

[ 7 ] Voluminous medical records and expert reports were submitted. They provided data and analysis to aid this Court in determining the nature of the Plaintiff’s injuries, the extent to which those injuries were caused by the motor vehicle accident, and the degree to which those injuries have affected his day to day function and ability to return to work. [ 8 ] Another critical piece of evidence presented at trial was a series of surveillance videos that show the Plaintiff performing a variety of tasks over a period of approximately 18 months.

These tasks include driving, grocery shopping, and completing extended mechanical work on his truck. II. Facts A. The Collision [ 9 ] On Friday, September 9, 2005, the Plaintiff was driving southbound on Highway 22 near the Town of Cochrane in a 2001 Chevrolet half ton truck. The Plaintiff had come to a stop at an uncontrolled intersection due to a car in front making a left turn. His vehicle was rear ended by the Defendant who was driving a 1999 Toyota Tercel. The Defendant admits that she struck the Plaintiff’s vehicle. [ 10 ] Neither the police nor an ambulance attended the scene of the collision.

Neither party required emergency medical attention. [ 11 ] The particulars of the accident are disputed, with the Plaintiff’s recollection differing greatly from the Defendant’s and from the opinion of experts. The Plaintiff emphasized that his recollection must be considered in the context of the accident. The Plaintiff was stopped on a highway where vehicles travel at highway speeds. He reported seeing the Defendant’s vehicle in his rear view mirror as it crested a hill.

When he glanced back again, he noted that the Defendant had closed half the distance and realized that the Defendant would not be able to stop in time to avoid hitting the rear of his truck. [ 12 ] The Plaintiff estimated the Defendant’s speed on impact to be 50 - 70 km/h. He recalled that his truck was hit twice and pushed 40-50 feet into a ditch on the right. The Plaintiff stated that his truck suffered damage to the drive train or 4 wheel drive.

He also recalled that the hood of the Defendant’s vehicle was crumpled such that almost the entire engine was visible and the hood was pushed into the windshield, obscuring the driver’s view. [ 13 ] The Defendant denied that the Plaintiff’s vehicle was struck twice and that the hood of her vehicle was badly damaged. On the contrary, she testified that her vehicle was drivable after the accident until an antifreeze issue required her to leave it at a nearby Petro Canada Station.

She further denied that the Plaintiff’s truck moved on impact. [ 14 ] The Plaintiff’s recollection is generally unsupported by expert engineering evidence from both parties. Both expert engineering reports stated that the change in speed experienced by the Plaintiff’s vehicle upon impact was much less than the Plaintiff alleges. Their reports are supported by photographs and damage estimates for the vehicles, none of which support the Plaintiff’s version of the collision.

The vehicle damage documentation as summarized in the expert engineering reports indicates that the Plaintiff’s truck had the rear bumper, left license light and left bed outer panel replaced. Repair invoices for the Plaintiff’s vehicle totalled $986.40. The Defendant’s vehicle had its front bumper, head lamp assembly, right radiator, right fender panel, hood, driver belt and right front door shell replaced.

The expert engineering reports and the vehicle damage documentation support the Defendant’s recollection of a collision of the minor rear end variety. [ 15 ] In addition, the Plaintiff testified that the Defendant was emotional and upset after the collision. This was denied by the Defendant and a friend of hers who testified that she met with the Defendant later that evening.

The Defendant suffered no injury in the collision and described the contact between the vehicles as a “bump”. [ 16 ] While the particulars of the collision are in dispute, the significance of the factual disputes in this case can be narrowed to their relevance in determining the nature of the injuries suffered by the Plaintiff and the extent to which such injuries affected the Plaintiff’s ability to return to work.

The Defendant submitted that the Plaintiff intentionally catastrophizes a relatively minor accident in order to support his reported severe soft tissue injuries and inability to work at any time afterward. B. Pre-Accident History [ 17 ] The Plaintiff alleged that he led an active lifestyle prior to the collision. He reported to have excelled at sports from a young age and asserted that he continued to participate in baseball and hockey leagues in the 1990’s.

However, the only witness called to testify about the Plaintiff’s recreational pursuits admitted that he had not seen the Plaintiff for several years prior to the accident. [ 18 ] The Plaintiff did not complete high school as he chose to work in the family plumbing business. However, he later completed his high school equivalency and obtained certification as a plumber, obtaining the status of Journeyman Plumber. Further, he obtained certification to work on wells and medical gas connections. He also certified in basic welding. [ 19 ] The Plaintiff enjoyed a varied career as a plumber.

He started out in the family business. Then, early in his career, he was a “named hired” in a trade union. Being a “named hired” was a prestigious distinction that reflected positively on the Plaintiff’s abilities, especially at such an early stage in his career. [ 20 ] The Plaintiff and his wife owned their own plumbing business starting in 1992 or 1993. Initially, the Plaintiff was the only tradesperson working in his business while his wife at the time handled the other aspects of the business including bookkeeping and customer relations.

The business flourished and eventually had 5 - 6 employees in addition to the Plaintiff. [ 21 ] The dissolution of the Plaintiff’s business coincided with a divorce in 1996 from his wife, who subsequently moved to Ontario

with his two children. The Plaintiff submitted that he could not continue operating his business as he could not keep up with the tasks that his ex-wife had handled.

However, on cross-examination, he admitted that the business encountered problems due to his ex-wife’s actions, including the misappropriation of funds and the misapplication of expenses in the business. [ 22 ] After the dissolution of his business, the Plaintiff was reported to have worked as a commercial pipefitter acquiring work through his union hall, and through employers directly. [ 23 ] As will be detailed further below, Workers’ Compensation Board (“WCB”) records showed that the Plaintiff was injured in June 2000. When he returned to work in June 2001, he secured employment doing instrumentation work.

Instrumentation work was described to include the construction, maintenance, and modification of things such as pneumatic controls at gas plants. The skills and knowledge involved are within the realm of the Plaintiff’s experience as a plumber and pipefitter. [ 24 ] The Plaintiff ultimately secured employment with Enerflex Systems Ltd. (“Enerflex”) in September 2001, performing instrumentation work for the four years prior to the collision.

The Plaintiff’s job at Enerflex was reported to have included travel to remote field facilities. [ 25 ] With the exception of three unsuccessful attempts to return to work, the Plaintiff has not worked since the collision. [ 26 ] As part of his divorce, the Plaintiff entered into a maintenance agreement with his ex-wife. Dr. Suffield, one of the IME physicians, reported that the Plaintiff acknowledged his wages were being garnished at the time of the accident and that he found it “tough” to live on what remained. Dr.

Suffield also noted that the Plaintiff’s obligations continued after his disability insurance benefits stopped. The Plaintiff acknowledged at trial that the bulk of his settlement in the Insurance Action went towards paying child support. Enerflex records entered at trial stated that Alberta Justice Maintenance Enforcement was garnishing the Plaintiff’s wages. Records entered at trial from the Insurance Action corroborated these deductions. C. Previous Injuries [ 27 ] The Plaintiff sustained a number of work related injuries throughout his career. The submissions of both parties provided a

summary of some of these injuries. [ 28 ] Prior to the year 2000, the parties do not materially dispute the nature of the Plaintiff’s injuries and his subsequent recovery. However, for accidents occurring from 2000 onward, the Defendant disputed the characterization of the Plaintiff’s injuries and his recovery from them. a. June 2000 [ 29 ] The Plaintiff was reported to have sustained an injury to his right groin on June 8, 2000 while hoisting up a bucket of bolts. Assigned to light duties, he resumed his work until June 13, 2000 when he experienced an increase in pain and was taken off work.

Initially, the Plaintiff’s family doctor at the time, Dr. Stewart, described the injury as a groin strain. Later, an MRI completed on October 5, 2000 revealed a fraying of the right inguinal ligament. [ 30 ] The Plaintiff received physiotherapy treatments at Cochrane Physiotherapy and later at Huron Physical Rehabilitation while he was visiting Ontario.

Upon his return to Alberta, the Plaintiff continued physiotherapy with Columbia Rehabilitation Centre from November 2000 until January 2001. [ 31 ] During physiotherapy, the Plaintiff reported pain and discomfort on the right side of his low back in addition to his right groin. He suffered a set-back in his recovery and an aggravation of symptoms when he slipped while using a treadmill during treatment. Upon discharge in December 2000, the clinic reported that he was continuing to have symptoms of right groin pain.

The Plaintiff was then diagnosed in January 2001 with an injury to the adductor musculature of his right leg. This diagnosis was confirmed after a bone scan and the muscle strain was expected to “... settle eventually within the next 2-6 months.” [ 32 ] Records from the Columbia Rehabilitation Centre indicated that the Plaintiff “[h]as shown inconsistent performance as [his] return to work date approached.

Client has ++trouble effectively managing stress – tends to come out in “physical” complaints.” However, records closer to discharge noted that the Plaintiff “... states he is quite anxious to get back to some kind of work.” [ 33 ] As a consequence of the Plaintiff’s ongoing limitations, his projected track through the WCB system was to facilitate a return to work in a different capacity than he had been working pre-injury. As a result, the Plaintiff secured employment doing instrumentation work as noted. The Plaintiff was off work for a total of nearly one year due to the right groin strain. b.

November 2001 [ 34 ] In November 2001, shortly after commencing employment with Enerflex, the Plaintiff sustained an injury while using a wrench. He reported pain in his mid-back and between his shoulder blades and attended physiotherapy and work conditioning therapy. The Plaintiff was unable to work until December 2001, when he returned on modified duties. In January 2002, the Plaintiff commenced work conditioning; he returned to work on February 4, 2002 with restrictions prohibiting heavy lifting for one week. The WCB report noted that a total of 66 disability days were paid. c.

September 2002 [ 35 ] In September 2002, the Plaintiff attended at the office of Dr. Kong, a chiropractor. His complaints included a severe low back ache, pain in the left leg and foot, symptoms in the right arm and hand, and complete numbness in the left leg. It was reported that symptoms had been occurring over the course of the last two years and getting worse, especially with weather changes. His symptoms

were reported to have resolved after two chiropractic treatments. Neither Dr. Kong nor the Plaintiff pursued further treatment. It did not appear that the Plaintiff missed work due to this complaint. d. September 2003 [ 36 ] In September 2003, the Plaintiff was injured at work while picking up a flange. He continued working, but the next day, he felt a sharp pain in his right low back and thigh while picking up another flange. The Plaintiff saw Dr. Kong, who placed him on lifting restrictions at work. It did not appear that the Plaintiff missed work as a result of this injury.

However, through WCB, the Plaintiff received 4 weeks of chiropractic treatments with Dr. Kong. A progress report from Dr. Kong dated October 21, 2003 indicated that the Plaintiff was not prevented from performing pre-accident work and was not on any work restrictions. Dr. Kong’s discharge report dated November 7, 2003 stated: “Patient has returned to pre-injury status”. The WCB report noted zero disability days were paid. e. April 2004 [ 37 ] On April 17, 2004, the Plaintiff injured his right shoulder at work when a wrench slipped.

He continued working, but the pain became worse during the evening and he sought medical attention the following day. On April 19, 2004, the Plaintiff returned to work on modified duties. He attended physiotherapy and returned to work in a pre-accident capacity on May 31, 2004. The WCB report noted zero disability days were paid. f. Parties’ Positions Respecting Previous Injuries [ 38 ] The Defendant noted that these workplace injuries were largely soft tissue injuries and frequently involved complaints substantially similar to those reported after the accident, particularly back pain.

Furthermore, the Defendant questioned the Plaintiff’s recovery from these prior injuries. The Defendant highlighted the spontaneous occurrence of complaints in September 2002 without any identifiable injury or triggering event. [ 39 ] The Plaintiff maintained that he had no ongoing musculoskeletal condition or chronic health condition of any description at the time of the collision. Further, the Plaintiff stated that he had no recorded injuries or complaints related to his back in the two years preceding the collision.

The Plaintiff submitted that he achieved complete recoveries and a return to normal function in respect of each injury. D. Immediate Post-Accident Medical Events [ 40 ] As noted above, neither party required emergency medical attention at the scene of the accident. Indeed, the Defendant never required medical attention as a result of the collision. [ 41 ] Although the Plaintiff recalled no pain or discomfort initially, he reported that his symptoms progressed as time went on. He reported that the evening after the incident he started to feel soreness and stiffness in his low back.

Despite increasing pain, he returned to work on Wednesday of the following week as scheduled. The Plaintiff and a coworker drove to Haver, Saskatchewan. The Plaintiff alleged that his junior drove and completed the majority of the work, while his pain limited him to a supervisory role. He returned home on Friday, a week after the accident, stayed home over the weekend, and called in to work sick on the following Monday. [ 42 ] The Plaintiff sought medical attention first from Dr. Kong, a chiropractor, on September 20, 2005. A report by Dr.

Kong dated May 1, 2010, stated that the Plaintiff’s “[c]hief complaint expressed at the time of examination was moderate-severe pain localized in the mid back and lower back.” Dr. Kong suspected disc herniation in the lumbar region, which was confirmed by an MRI conducted on November 8, 2005. Dr. Kong felt this protrusion impacted the upper back and neck. Dr. Kong treated the Plaintiff on and off from September 2005 to September 2008 during which time the Plaintiff did not improve at all.

Rather, he reported having good days and bad days. [ 43 ] On September 22, 2005, the Plaintiff sought medical attention from Dr. Foster, his family physician. In a letter dated March 24, 2007, Dr. Foster wrote: He went to see his chiropractor, Dr. E. Kong on Tuesday September 20, 2005, with some initial relief of symptoms. He missed work beginning September 12, 2005. On examination, he moved slowly and stiffly. Forward lumbar flexion was good with reduced extension (by 50%) and reduced right lateral flexion (about 25%). Neurological examination was normal. He was felt to have a lumbar strain injury – WAD II.

He was to continue with chiropractic treatments and take NSAID’S for pain. [ 44 ] Dr. Foster went on to state that he continued to follow the Plaintiff every 1-3 weeks while he received chiropractic and physiotherapy treatments. E. Attempts to Return to Work a. First Attempt: November 2005 [ 45 ] Dr. Foster stated in his letter dated March 24, 2007 that, by November 2005, the Plaintiff “... had improved enough to try to return to modified work (sedentary duties).” [ 46 ] This first attempt was unsuccessful as the Plaintiff’s pain limited his performance at work. Dr.

Foster wrote: [The Plaintiff] found however, that the 1-½ hour drive to work and back made his back pain much worse. He complained of an aching back with shooting pains into his legs. His employer would not accommodate 4-hour/day sedentary work, so he did not return to work (as

of November 3, 2005). [ 47 ] Following the Plaintiff’s first attempt to return to work, Dr. Foster referred the Plaintiff to Ms. Denise Brochu-O’Neill, a physiotherapist, for further treatment. Treatments commenced in December 2005. [ 48 ] In February 2006, the Plaintiff’s insurer, the Alberta Motor Association, referred him to Dr. Cundal for an IME. Dr. Cundal recommended more aggressive physiotherapy. [ 49 ] Physiotherapy treatments with Ms. Brochu-O’Neill continued until June 2006, then ceased as the Plaintiff was contemplating a move out of Cochrane. Ms.

Brochu-O’Neill recommended that the Plaintiff continue therapy after relocating, but the Plaintiff did not pursue such treatment. b. Second Attempt: July 31 – August 9, 2006 [ 50 ] At Dr. Cundal’s recommendation, a Functional Capacity Evaluation (“FCE”) was completed by Ms. Sabrina Blacklock of NRCS Inc. on July 5, 2006. This FCE indicated that the Plaintiff was able to return to work performing duties at a “Light-Medium strength level on an occasional basis”. [ 51 ] The Plaintiff commenced a gradual return to work

schedule on July 31, 2006, but this second attempt to return to work was also unsuccessful. The Plaintiff aggravated his back on August 9, 2006 while pulling a wrench. Later that day, the Plaintiff worked in the office performing paperwork but he reported that this further aggravated his back and he did not return to work. Dr. Foster’s letter dated March 24, 2007 described this second attempt to return to work as follows: On June 27, 2006, [the Plaintiff] underwent a Functional Capacity Assessment. He was felt to be able to perform duties of a Light- Medium strength level on an occasional basis. A gradual return to work

schedule was recommended which began July 31, 2006. August 9, 2006, he aggravated his back pulling a wrench. He attempted to return to work but was unable to complete a return to work. September 20, 2006, he was prescribed Gabapentin for pain relief, which did help his pain control, but he continued off work. [ 52 ] Following this second unsuccessful attempt to return to work, Dr. Foster referred the Plaintiff to the Canadian Back Institute and, as noted above, prescribed Gabapentin for pain relief. The Plaintiff could not be seen by the Canadian Back Institute until 2007.

During this time, he continued to be off work but was not attending physiotherapy or any other treatment to improve his condition. [ 53 ] After his second failed attempt to return to work, the Plaintiff was referred by his counsel to Mr. Timothy Hall, an occupational therapist with Work Abilities Ltd., for an additional FCE. The Plaintiff was assessed on August 31 and September 1, 2006, one year post accident. The FCE report listed a number of recommendations, stating in part: In

summary, [the Plaintiff] demonstrated functional capabilities that will support part-time work at a light exertion level providing he is not required to work in awkward postures for more than brief periods and he is allowed to change job duties as he requires to perform tasks involving postural changes. Although Ms. Blacklock opined in her July 5, 2006 Functional Capacity Assessment report, [the Plaintiff] could return to light work on a part-time basis she did not indicate the type of employment for which his capabilities were considered feasible. In my opinion, the results of Ms.

Blacklock’s testing clearly indicated [the Plaintiff] could not return to his pre- accident employment as a Pipefitter without significant modifications to his job duties… [ 54 ] Mr.

Hall went on to state: 1. [The Plaintiff’s] functional capabilities are considered feasible for him to return to work 6 hours per shift, 3 days per week providing his employer can accommodate his current demonstrated capabilities ... 2. [The Plaintiff] should be encouraged to participate in vocational counselling to assist him in identifying alternative jobs that are suited to his current functional capabilities 3. [The Plaintiff’s] functional capabilities are not considered feasible for him to complete some homemaking chores and house, yard, and vehicle maintenance tasks ... [ 55 ] Mr.

Hall’s FCE report noted numerous limitations for the Plaintiff in the types of job duties he could perform. In particular, his report recommended vocational counselling, noting that the Plaintiff was unlikely to return to his pre-accident employment as a pipefitter. [ 56 ] As a result of Dr. Foster’s referral to the Canadian Back Institute, the Plaintiff met with Mr. Robert Jacobsen, a physiotherapist at National Spine Care on January 22, 2007. Following a series of assessments and treatments, Mr. Jacobsen reviewed the Plaintiff’s case with Dr.

Hurlbert, who recommended epidural injections and a referral to a chronic pain program. The Plaintiff was seen on March 4, 2008 by Dr. Hurlbert for an IME at the request of the Plaintiff’s disability insurer in the Insurance Action. [ 57 ] An epidural injection was given in August 2007 by Dr. Frizzell with limited effect, providing only short term pain relief. Pursuant to Dr. Hurlbert’s second recommendation, Dr. Foster made a referral to the Calgary Chronic Pain Centre in April 2007. The Calgary Chronic Pain Centre had a long waiting list and the Plaintiff could not be seen by their doctor, Dr.

Reddy, until June 2008. c. Third Attempt: January 2008 [ 58 ] While waiting for the Calgary Chronic Pain Centre, the Plaintiff’s disability insurer requested another course of physiotherapy. The Plaintiff met with Gillian Taylor, a physiotherapist at the Canadian Back Institute. Following a series of assessments and treatments, it was recommended that the Plaintiff attempt another return to work at a “light NOC level” job. [ 59 ] The Plaintiff commenced a third return to work with Enerflex in January 2008, doing work of a clerical nature. On his second

day, the Plaintiff was limited by a flare-up of pain. Dr. Foster subsequently recommended that he cease working. [ 60 ] In a letter dated February 5, 2008, Dr. Foster wrote: [The Plaintiff] appears to be severely restricted in his activities because of his pain. A trial of sedentary duties was unsuccessful. He does not appear able to fulfill the return to work

schedule as planned for him. It appears that he will not be able to return to his previous work. At this time it is not clear what he will be able to do. His prognosis is guarded. I expect it will take some months more to get his pain under reasonable control. His limitations at that time will need to be determined. [ 61 ] Since the third failed attempt to return to work, there have been no further formal efforts to facilitate the Plaintiff’s return to work. F.

Ongoing Medical Treatments and Assessments [ 62 ] Amidst attending medical assessments and treatments and attempting to return to work, the Plaintiff relocated a number of times. In 2006, he sold his home at Ghost Lake, Alberta to purchase a home in High River. This purchase fell through and the Plaintiff then resided with a friend. In the spring of 2008, he lived briefly in Exshaw, Alberta. By the summer of 2008, he moved to Golden, B.C., where he lived in a motor home as he found it difficult to live on what he was getting from social assistance.

His disability insurer ceased payments to him in April 2008. [ 63 ] In the fall and winter of 2008, the Plaintiff house sat for a friend in Nakusp, B.C. By the summer of 2009, he moved his motor home to Nakusp, B.C. Later in 2009, he sold his motor home to move into a rental home in New Denver, B.C. [ 64 ] Despite moving to British Columbia, the Plaintiff continued to travel to Calgary to attend medical appointments at the Calgary Chronic Pain Centre.

Clinic records indicated that the Plaintiff attended approximately once a month from July 3, 2008 until about September 2010. [ 65 ] Since 2008 the Plaintiff has also seen physicians at the Saddle Mountain Medical Clinic in New Denver, B.C. As well, the Plaintiff has been seen by Dr. Goplen in Kelowna, B.C. and Dr. Trow in Salmon Arm, B.C. Medical records indicate that Dr. Trow has been providing left sacroiliac joint injections that have been improving the Plaintiff’s pain and function.

Records indicate that this procedure provides short term pain relief and the Plaintiff has been receiving these injections on a scheduled basis. Dr. Trow’s findings are set out in more detail below. G. The Surveillance Video [ 66 ] The Defendant’s evidence included surveillance video of the Plaintiff recorded at various times from December 2007 to July 2009. [ 67 ] The Defendant particularly emphasized surveillance footage from March 7, 2008. This footage showed the Plaintiff in an alley, performing mechanical work on his vehicle for approximately three hours.

It displays the Plaintiff maneuvering around his truck and he is seen in sustained positions of standing, kneeling, stooping, and crouching. Multiple times, the Plaintiff is seen bending at the waist, twisting his torso, squatting, and working with heavy objects. In particular, the footage shows the Plaintiff using a manual jack to lift up his truck, remove and mount tires on his truck, and work within the wheel/brake assembly for a sustained period of time. The Plaintiff does not appear to be in pain, working slowly, or taking extended breaks.

Rather, his movements appear fluid and he is observed sustaining static positions over extended periods of time. [ 68 ] Furthermore, the footage from March 7, 2008 extends into the evening where the Plaintiff is observed shopping at a grocery store. He is seen reaching over a counter to grab items. He walks at a brisk pace with no visible signs of impairment. Further, he walks out of the store with bags of groceries held in both hands, continuing at a brisk pace. [ 69 ] While the March 7, 2008 footage is particularly significant, the video surveillance includes footage taken over a relatively long period of time.

Generally, the Plaintiff is observed functioning and moving fluidly. For instance, there are numerous sequences over a number of days that show the Plaintiff at the grocery store without any obvious impairments or pain. In a sequence from February 28, 2008, the Plaintiff is seen walking in and around the Harry Hayes building in Calgary with no observable impairments. In contrast, the Plaintiff is observed in rare sequences to be limping or walking at a slower pace, suggesting pain and some degree of impairment.

A sequence from July 10, 2009 shows the Plaintiff limping while walking at a guarded pace. [ 70 ] As will be discussed, there was conflict among the medical experts at trial about the meaning of the Plaintiff’s apparent pain free behaviour in changing the brake pads in his truck on March 7, 2008 as well as at other times in the video. III. Issues [ 71 ] As in all personal injury cases, due to the minor nature of the collision, the self-reporting nature of the Plaintiff’s injuries and abilities and some medical opinion that the Plaintiff’s pain may be exaggerated, the issues are: 1.

Is the Plaintiff a credible witness? 2. What injuries did the Plaintiff suffer in the collision? 3. Are all of the Plaintiff’s medical complaints causally connected to the collision?

4. If the Plaintiff suffered injuries that are causally connected to the collision, what is the quantum of his damages? IV. Review of Expert Evidence [ 72 ] Both parties submitted comprehensive expert reports and a number of experts testified at trial. The following is a non- comprehensive list of medical practitioners the Plaintiff saw for assessments, including IMEs: • Dr. Cundal, Physician & Orthopaedic surgeon, February 24, 2006 for an IME • Sabrina Blacklock, June 27, 2006 for an FCE • Dr.

Cundal, Physician & Orthopaedic surgeon, July 19, 2006 for an IME addendum • Tim Hall, Occupational Therapist, September 1, 2006 for an FCE • Dr. McDougall, Physician, August 21, 2007 for an IME • Dr. Zabrodski, Physician, February 1, 2008 for an IME • Dr. Hurlbert, Physician & Ph.D., March 4, 2008 for an IME • Dr. Atkinson, Registered psychologist and vocational rehabilitation consultant, March 11, 13, 14, and 24, 2008 for an employability assessment • Mary-Alice Brennan, Physiotherapist, March 8 and 9, 2010 for an FCE • Dr.

Suffield, Chartered psychologist, on March 18, 25, 26, and 27, 2010 and August 3, 2010 (Telephone) for a neuropsychological/vocational assessment • Dr. Johnston, Orthopaedic surgeon, March 24, 2010 for a hip assessment • Dr. Bauman, Orthopaedic surgeon, May 3, 2010, for an IME • Dr. Atkinson, Registered psychologist, May 9 and 10, 2010 for a subsequent employability assessment • Dr. Flaschner, Physician, July 6, 2010 for an IME • Dr. Richardson, Orthopaedic surgeon, August 16, 200, for an IME • Dr. Dalby, Psychologist, August 26, 2010 for a neuropsychological assessment • Dr.

Flaschner, Physician, March 5, 2012 for another IME [ 73 ] In addition, since the accident, the Plaintiff has seen the following professionals for assessment and treatment: • Dr. Kong, Chiropractor, from September 20, 2005 to March 2012 • Dr. Foster, Family physician, from September 22, 2005 to August 21, 2008 • Denise Brochu-O’Neill, Physiotherapist, December 2005 to June 28, 2006 • Emily Witcher, Cochrane Chiropractic and Massage for massage therapy, from October 18, 2006 to November 7, 2006 • Robert Jacobsen, Physiotherapist, January 22, 2007 to February 2007. • Dr.

Fizzell, August 15, 2007 for epidural steroid injections • Gillian Taylor, Physiotherapist, from November 19, 2007 to December 28, 2007; • Dr. Reddy, Physician, Calgary Chronic Pain Clinic from July 3, 2008 to September 2010 • Saddle Mountain Medical Clinic, December 2010 ongoing at time of trial • New Denver Medical Clinic, December 2010 ongoing at time of trial; • Dr. Goplen, Neurosurgeon, February 21, 2011 for a consult • Dr. Hinton, Chiropractor, September 21, 2011 for treatment until ongoing at time of trial • Dr.

Trow, Physician, for treatment and injections starting in January 2012 [ 74 ] In addition, the parties provided reports from engineering experts with respect to the circumstances of the accident and from economic experts with respect to the Plaintiff’s damages. What follows is a

summary of the expert evidence presented in expert reports and trial testimony. I note that in many cases, the experts commented on one another’s reports, leading to some overlap and cross-

referencing in the following

summary. A. Engineering Experts 1. Dr. Good: Plaintiff’s Engineering Expert [ 75 ] Dr. Good is a professional engineer with a Ph.D. in mechanical engineering. He has a special expertise in injury biomechanics, injury causation, and occupant kinematics and dynamics. He also has a M.Sc. in health studies. He prepared a rebuttal report dated June 8, 2012. [ 76 ] Neither vehicle was available to be inspected. Instead, Dr. Good’s report relied on reports, photographs and professional documents (e.g. Insurance Institute for Highway Safety reports). His

summary stated in part: 8.01 Mr. MacInnis [Defence expert] opined that the collision severity of the Bumstead 2001 Chevrolet S10 pickup truck was 4 – 7 km/h. Much of the data relied upon indicates that Mr.

MacInnis has underestimated the collision severity of the subject vehicle at the lower end of the range. 8.02 Based on the most relevant available data, the minimum collision severity experienced by the Bumstead vehicle was likely between 4.1 and 5.7 km/h. 8.03 Based on the same data, the Bumstead vehicle may have sustained a collision severity up to or higher than 7 km/h and possibly as high as 9.5 km/h 8.04 The subject incident is consistent with field data indicating that a small portion of the exposed population may sustain long term Whiplash Associated Disorder (WAD) symptoms following a low-speed rear-end collision. 8.05 The subject incident is consistent with field data indicating that a small portion of the exposed population may sustain long term lumbar strain symptoms following a low-speed collision. 8.06 Should the occupant brace against the floorboards or brake, there is a mechanism to load the sacroiliac joint during the rebound phase of impact. [ 77 ] In addition, the report highlighted the following observations: 7.34 When investigating WAD symptoms in low speed, rearend collisions, comparisons are drawn between the specifics of the collision experienced by the occupant and symptoms of occupants observed in field studies.

Field studies of vehicles equipped with electronic data recorders subjected to rear end collisions have correlated WAD injury symptoms, particularly those of the neck, with collision severity. Researchers found that for occupants sustaining a collision severity between 0 – 5 km/h, the majority of occupants did not sustain a WAD injury; however, some sustained WAD symptoms that lasted less than 1 month.

For occupant [sic] sustaining a delta-v between 5 – 10 km/hr, the majority sustained no symptoms; however, some occupants experienced WAD symptoms lasting less than one month, some experienced WAD symptoms from 1 to 6 months and some experienced symptoms lasting greater than 6 months. … [Footnotes omitted.] 7.37 It is our understanding that [the Plaintiff] may have had some pre-collision back symptoms. The TRL study found that long-term disability from lower back symptoms was significantly correlated with pre-collision back problems.

This indicates that the collision may aggravate prior lower back pathologies to chronic conditions. [ 78 ] These observations indicated that the extent of the injury claimed by the Plaintiff was unlikely but possible, especially given the probability that the Plaintiff had pre-collision back problems. [ 79 ] Dr. Good adopted his report at trial. On cross-examination, he agreed that the field studies to which he referred did not include victims who had not experienced neck injury incidental to one ton impact collision. 2. Mr. MacInnis: Defendant’s Engineering Expert [ 80 ] Mr.

MacInnis is an engineer who specializes in vehicle accident reconstruction. He prepared a number of reports at the request of Defendant’s counsel. [ 81 ] The first report is dated May 10, 2011 and was prepared after reviewing of copies of appraisals and repair invoices for both vehicles, colour photographs of the repaired Toyota, excerpts from the Examination for Discovery of the Plaintiff and published vehicle information. In addition, “[a]n exemplar Toyota Tercel was examined, measured, and photographed by SAMAC Engineering personnel at Diamond Auto Auctions in Calgary on 02 May 2011.

The incident location was not examined in preparation of this report, and both vehicles were repaired prior to our involvement.” In addition, both vehicles were comprehensively assessed to determine replaced components.

This report stated the following conclusions: 6.1) The Dusfresne Toyota likely sustained a primarily rearward speed change of 7 to 13 km/h. 6.2) The Bumstead Chevorlet likely sustained a primarily forward speed change of 4 to 7 km/h. 6.3) [The Plaintiff] could have sustained the same collision severity from placing his vehicle into reverse, letting the car idle rearward without braking and then striking a concrete wall. 6.4) If [the Plaintiff] had been driving a car, then the impact with the Dusfresne Toyota would have caused minimal damage, to the

extent that some impacts of similar severity require no repairs at all. [ 82 ] A second report dated September 25, 2011was provided in rebuttal to Dr. Good’s report. This report stated in part: Mr. Good stated that SAMAC’s reported range of 4 to 7 km/h underestimated the collision severity sustained by the Bumstead Chevrolet (conclusion 8.01). His opinion was that the Chevrolet may have sustained a collision severity up to or higher than 7 km/h and possibly as high as 9.5 km/h (conclusion 8.03). Mr. Good is incorrect.

As explained below, the SAMAC range of 4 to 7 km/h is conservative and the collision severity the Bumstead Chevrolet sustained was likely less than 6 km/h. [Emphasis in original.] The only significant damage to the Bumstead Chevrolet was the steel bumper face bar and one of the two brackets which fastened the bumper to the frame rails (Figure 1).

None of the other components would have provided structural support. [ 83 ] This rebuttal report then described the damage done to the Chevrolet: Given the similar construction of the bumpers, the 6.3 km/h collision severity required to deform the MEA bumper would had to have been greater than that required to cause the smaller Bumstead Chevrolet deformation. Thus the collision severity sustained by the Bumstead Chevrolet would have been less than 6 km/h.

Although SAMAC could have used a range of 4 to 6 km/h (or less) for the Bumstead Chevrolet in our report, the range was expanded to include 7 km/h in order to be conservative – thus a collision severity of 4 to 7 km/h. [ 84 ] Essentially, the rebuttal report stated that the change in speed estimated by Dr. Good was higher than the upper end of the conservative range of Mr. MacInnis’s values. Given this, the rebuttal report referenced the collision severity chart in Dr. Good’s report and concluded that with Mr. MacInnis’s values, the risk for injury was lower than indicated in Dr.

Good’s report. [ 85 ] At trial, Mr. MacInnes confirmed his conclusions and was unshaken on cross-examination. B. Medical Experts 1. Plaintiff’s Medical Experts a. Dr. Kong [ 86 ] Dr. Kong is a chiropractor who operates out of the Cochrane Chiropractic Centre. He was the first medical professional to assess the Plaintiff following the motor vehicle accident. [ 87 ] Dr. Kong had active involvement with the Plaintiff even before the accident, having treated the Plaintiff for low back pain in 2002 and 2003. [ 88 ] After the accident, the Plaintiff attended with Dr. Kong multiple times a month.

Billing records indicate that Dr. Kong first saw the Plaintiff on September 27, 2002. The Plaintiff did not see Dr. Kong between January 2008 and September 2008. The final date billed is March 8, 2011. [ 89 ] The diagnosis portion of Dr. Kong’s report dated May 1, 2010 stated the following: In the view of the subjective symptoms, objective findings and diagnostic imaging it is my clinical impression that [the Plaintiff] as a result of the accident has caused a disc herniation at the L4-5 and L5-S1 region. This as a result, [sic] [the Plaintiff] has been suffering from a L5 and S1 radiculopathy.

This is most likely caused from the disc herniations at these levels. Also as a result of the injury, the following has occurred: 1. W.A.D. III to the thoracic and lumbar spine. 2. Muscle spasms of the cervical, thoracic and lumbar paraspinal musculature secondary to the strains, sprain and joint dysfunction, with trigger points (areas of more intense localized spasm) resulting in referred pain patterns. 3. Cervicogenic cephalgia secondary to: 1) muscle spasm 2) mental stress from the physical discomfort of the muscle strains and ligamentous sprains. 4.

Segmental joint dysfunction at the various vertebral segments. 5. Ligamentous instability of the sacro-iliac joint. The soft tissue injuries in addition to the multiple vertebral dysfunctions account for his symptoms. [ 90 ] The report described treatment as follows: The specific treatment that has been provided and indicated was specific chiropractic joint manipulation using the Arthrostim, which is a non-manual, low force technique so as not to contribute to the joint instabilities, mobilization and ice therapy. Active Release Technique was also utilized to address the soft tissue components.

Our treatment goal was directed at relieving the joint dysfunction, relieving the pain and stiffness that accompanies and to restore normal joint range of motion, which has been somewhat successful up to date. … he has been involved in a home exercise program that consisted of the treadmill, exercise bike, core strengthening and partial push- ups.

[ 91 ] Dr. Kong stated that the “…prognosis for a full and complete recovery is poor.” He further noted that: Overall, as a result of the motor vehicle accident, his condition has had an enormous impact upon his lifestyle as well as to his career. It is highly expected that the areas of injury will continue to remain areas of greater risk for future troubles and as such will continue to need ongoing care. Frequency of care is estimated at once every 2 week and would be permanent. [ 92 ] Two assessments performed by Dr. Kong nearly 8 years apart stand in contrast.

A Revised Oswestry Low Back Pain Disability Questionnaire was completed on September 27, 2002. This questionnaire stated that the Plaintiff has had low back pain for “2 years”. It also noted numbness in the Plaintiff’s left forearm, left hamstring, and left foot. As well, aching was reported at his right hip. This suggests that the motor vehicle accident was not the Plaintiff’s first episode of low back pain.

Notable responses circled on the questionnaire included: “Traveling: Pain restricts all forms of travel.”; “Changing Degree of Pain: My pain is gradually worsening.”; “Pain Intensity: The pain comes and goes and is moderate.”; and “Lifting: I can lift heavy weight; but it causes extra pain. Depends”. [ 93 ] Another Revised Oswestry Low Back Pain Disability Questionnaire was completed on April 21, 2010. This questionnaire did not indicate how long the back pain had persisted and whether it was the first episode of back pain.

However, in comparison to the responses circled on the previous questionnaire, the responses on this questionnaire stated: “Traveling: Pain restricts all forms of travel.” [same as before] and “Changing Degree of Pain: My pain is gradually worsening.” [same as before] and “Pain Intensity: The pain comes and goes and is severe.” [worse than before] and “Lifting: I can only lift very light weights, at the most.” [worse than before]. [ 94 ] Dr. Kong’s report dated May 1, 2010 indicated that there was a WCB claim in 2003, and treatment associated with this.

The report stated that: “The injury occurred on September 26, 2003 and by October 23, 2003 he was discharged from care and at that time had returned to pre-injury status and the condition had fully resolved.” The report did not comment on the Plaintiff’s functional and medical status in 2002 when the Revised Oswestry Low Back Pain Disability Questionnaire was completed. [ 95 ] At trial, Dr. Kong confirmed that he made a diagnosis of WADII thoracic strain and a WADII lumbar strain not related to past low back issues.

Based on the Plaintiff’s relatively quick past rate of recovery and new, more severe symptoms, he concluded these injuries were attributable to the accident and not just a reoccurrence of prior low back issues. Dr. Kong was one of the only practitioners the Plaintiff saw in the first few years after the accident who noted neck pain. Dr. Kong felt this was due to referred pain originating with the lower back pain. As a result of the disc bulge confirmed by an MRI in November 2005, Dr.

Kong opined that the Plaintiff would suffer further deterioration of his joints in the future which could be attributed to the accident. b. Dr. Foster [ 96 ] Dr. Foster is a medical doctor operating a private family practice in Cochrane. Dr. Foster was the first medical doctor to see the Plaintiff following the accident. Patient records indicated that the Plaintiff began seeing Dr. Foster around June 2000 and continued until March 2009, as often as a few times a month. Following the accident, as a family physician, Dr.

Foster was heavily involved in the oversight of the Plaintiff’s care. [ 97 ] In a letter dated March 24, 2007, Dr. Foster reported: “[The Plaintiff’s] prognosis is guarded as he made inconsistent progress towards recovery. At present, he is left with ongoing low back and upper leg pains.” [ 98 ] In a subsequent letter dated February 5, 2008, Dr. Foster noted that he had “[…] been seeing [the Plaintiff] more frequently since he began his physiotherapy treatments at CBI, December 7, 2007. At this time, [the Plaintiff] stated that his back pain had worsened significantly.

Recently, on January 22, 2008, he complained of low back and right buttock pain, aching in his legs especially at night, some right heel numbness in the morning, and sharp right leg pain when pushing off his leg while walking. He had no clear radicular symptoms. Because of his pain, his exam was limited. He has poor range of motion of his lumbar spine limited by pain.” [ 99 ] In this second letter, Dr.

Foster stated that the Plaintiff had been referred to the Calgary Chronic Pain Centre, but likely would not be seen until June 2008.When commenting on the Plaintiff’s prognosis and potential to return to work, his recovery was noted to be limited by pain. “[The Plaintiff] appears to be severely restricted in his activities because of his pain. A trial of sedentary duties was unsuccessful. … His prognosis is guarded. I expect it will take some months more to get his pain under reasonable control. His limitations at that time will need to be determined.” [ 100 ] At trial, Dr.

Foster confirmed that the Plaintiff’s initial complaints were of a lumbar strain which he felt to be a WAD II as the Plaintiff had no trouble walking and no structural injury. Over time and after many other consults and three failed return to work attempts, Dr. Foster was guarded in his prognosis for the Plaintiff. c. Ms. Brochu-O’Neill [ 101 ] Ms. Brochu-O’Neill is a physiotherapist with a practice in Cochrane. The Plaintiff was referred to her by Dr. Foster. The Plaintiff saw Ms.

Brochu-O’Neill from December 2005 to June 2006 at a frequency of 2-8 times per month. [ 102 ] The Plaintiff reported to her complaining of pain in his low back along the centre to his mid back, with muscle spasms and tightness. The pain would on occasion radiate to his glutes and left thigh and foot. An MRI of November 8, 2005 confirmed nerve impingement at L4/5. She diagnosed the Plaintiff with a WAD III whiplash as a result of the nerve impingement. She felt that the Plaintiff was sincere and suffering; her testimony at trial reflected this. [ 103 ] A letter dated February 27, 2008 provided details of Ms.

Brochu-O’Neill’s initial impressions. It indicated that a physical examination was completed on December 12, 2005. Her observations included: walking for more than twenty minutes aggravated his low back pain, sitting in lumbar flexion eased his back pain, and standing was very uncomfortable in his low back. Ms. Brochu-O’Neill stated: “His lumber Rom [range of motion] was limited in all ranges. Lumbar Extension was 5% with no pain, Flexion was 50% with pain …”.

[ 104 ] Ms. Brochu-O’Neill also noted that: “I believe [the Plaintiff] had preexisting factors that affect his back status (i.e. stenosis, osteoarthritis, mesomorph and general deconditioning). However, he reports to not having low back pain or the neurological signs prior to his motor vehicle accident.” [ 105 ] Treatment included a variety of different modalities. However, Ms.

Brochu-O’Neill stated that “[The Plaintiff] was inconsistent with attending the Core Classes.” Her report also noted that: “[The Plaintiff] had times [where] he was responding well to treatment [where] his pain was markedly lower, his ADL [activities of daily living] improved, his Lumbar ROM and core strength improved and objective signs were resolving. Then he would have periods of increased neurological signs and low back pain.” [ 106 ] The Plaintiff’s last session was on June 28, 2006 when his anticipated relocation to High River led to his discharge from physiotherapy. Upon discharge, Ms.

Brochu-O’Neill concluded that: “Significant concerns remained and I believed he still needed physiotherapy, and to continue on a strength and conditioning program.” Consequently, this report stated: “A prognosis is very difficult to make due to the individual rate of healing and the many outside influences that can affect the problem. Undoubtedly, this patient will need to continue with a home program outlined to him to maintain the results gained during physiotherapy.” [ 107 ] It does not appear that the Plaintiff made efforts to continue the progress Ms. Brochu-O’Neill felt he had made during physiotherapy. d.

Mr. Hall [ 108 ] Mr. Hall is an occupational therapist who claims to have performed 1400 FCEs and 450 worksite analyses. He assessed the Plaintiff on August 31 and September 1, 2006 for a FCE at the request of the Plaintiff’s counsel. Mr.

Hall’s report provided a vocational status review: [The Plaintiff] reports his problems with lower back pain and pain radiating into the legs prevent him from performing the following job activities: Driving for longer periods, standing for longer periods, doing heavier manual handling, and working in awkward postures for longer periods. [The Plaintiff] reports since his initial layoff from work, he has missed almost 1 year of work due to his problems and his last working day performing full job duties was prior to the MVA. [The Plaintiff] states his current vocational goal is to remain off work until his problems are resolved. [ 109 ] Further, Mr.

Hall’s report described the Plaintiff’s function in other areas of his life. For instance, the Plaintiff stated that he was able to complete all self-care activities (such as personal hygiene, dressing, etc.), but was unable or had difficulty with homemaking, home and yard maintenance, mobility, and leisure. In particular, the FCE noted: [The Plaintiff] reports he resides on his own, in a rented basement suite. He states he is responsible for homemaking and vehicle maintenance tasks.

He also states lower back pain and pain radiating into his legs prevents him from working in awkward postures, mowing the lawn, doing garden work, shoveling snow, and doing home renovation work. [ 110 ] The FCE performed by Mr. Hall included a physical component that evaluated the Plaintiff’s abilities over a period of two days. During this time, pain was reported to be a limiting factor: [The Plaintiff’s] reported symptoms and demonstrated pain behaviours during the evaluation correlated with the biomechanical forces associated with the test or activity underway.

In the opinion of the evaluator, [the Plaintiff’s] symptom report and pain behaviors indicate he has developed reasonable coping strategies to deal with pain, although pain continues to limit most functional activities. [ 111 ] Mr. Hall’s report also commented on the Plaintiff’s motivation and consistency of effort, stating that “… [The Plaintiff] provided a genuine effort during the evaluation and the capabilities listed below represent a reasonable estimate of Functional Capacity.”.

The report noted the following physical limitations: [The Plaintiff] demonstrated the following limitations in flexibility: -Cervical ranges were demonstrated with essentially normal flexibility except for neck backward bending that was mildly restricted. -Trunk ranges were demonstrated with essentially normal flexibility except for trunk side-bending either way that was mildly restricted and trunk extension that was moderately restricted. -Upper extremity ranges were demonstrated with essentially normal flexibility. -Lower extremity ranges were demonstrated with essentially normal flexibility except for hip internal rotation bilaterally that was mildly restricted. [The Plaintiff] reported pain in his low back was the main limiting factor during flexibility testing. [The Plaintiff] demonstrated the following limitations in muscle strength: -Trunk strength was rated as able to resist against maximum force for trunk flexion and rotation either way.

-Hand strength was rated as exceeding age and gender related norms for gripping and pinching with either hand. [The Plaintiff] reported no significant problems during muscle strength testing. [ 112 ] The FCE report also listed a number of recommendations for the Plaintiff in his vocational and personal roles. These recommendations were generally consistent with Dr. Dalby’s findings, made nearly four years later and set out later in these reasons. The report concluded: In

summary, [the Plaintiff] demonstrated functional capabilities that will support part-time work at a light exertion level providing he is not required to work in awkward postures for more than brief periods and he is allowed to change job duties as he requires to perform tasks involving postural changes. [ 113 ] At trial, Mr. Hall confirmed that while being tested the Plaintiff demonstrated pain behaviours and complained of lower back pain when asked to kneel and squat. He confirmed that the Plaintiff did not complain of neck, hip or groin pain at any time during the assessment. Mr.

Hall recalled that the Plaintiff advised him his pain limited him in looking after his truck such that he could not even change the oil. Mr. Hall noted that the Plaintiff’s muscle tone was normal and that he encouraged the Plaintiff to attend vocational counselling as he was employable doing light work. e. Mr. Jacobsen [ 114 ] Mr. Jacobsen is a physiotherapist at Canadian Back Institute in Calgary. He saw the Plaintiff very briefly from January 2007 to February 2007 as a referral from Dr. Foster. A spinal consultation was completed on January 22, 2007.

On this first examination, the working diagnosis was “mechanical back pain”. Surgery was not recommended. Mr. Jacobsen stated: As [the Plaintiff] demonstrates a specific identifiable mechanical pattern to his symptoms, it is felt he is an excellent candidate for an active rehabilitation program.

I have instructed him in a self-directed mobilization program stressing restoration of lumbar extension as a pain control technique. … Currently I anticipate he will experience a gradual decrease in the frequency and intensity of his symptoms over the next six to eight weeks. [ 115 ] In a subsequent letter dated February 1, 2007, Mr. Jacobsen stated that “… [the Plaintiff] is demonstrating an intolerance to a conservative treatment program.” Mr.

Jacobsen then suggested “… conferring with our surgical consultants with regard to treatment options such as an epidural injection and/or referral to a chronic pain program.” Mr. Jacobsen consulted with Dr. Hurlbert who recommended a referral to a chronic pain program and epidural steroid injections. [ 116 ] At trial, Mr. Jacobsen confirmed that the Plaintiff presented with low back pain that radiated into his glutes and both thigh areas.

He felt that Plaintiff could recover with an active rehabilitation program but stated that the Plaintiff could not tolerate the original recommended program or a relaxation of it. f. Dr. Zabrodski [ 117 ] Dr. Zabrodski is a physician with a certificate of special competency in emergency medicine and certification in occupational medicine. The Plaintiff was assessed on February 1, 2008 for an IME at the request of his counsel. Dr.

Zabrodski’s report of that assessment stated: [The Plaintiff] reports depending on the time of day or whether he is having an acute exacerbation of back or leg pain, his sitting and standing tolerance will vary from 10 minutes to one hour. His walking tolerance will vary from less than one block to nine blocks. When not having a flare-up, he can generally be reasonably functional in terms of basic self care activities, grocery shopping, etc. for 3-4 hours in the morning. He reports that carrying two bags of groceries in each hand is uncomfortable but can be tolerated for short distances.

He reports a comfortable driving tolerance of one half-hour to one hour, providing he uses an appropriate back support while driving. [ 118 ] The report listed the following diagnoses: 1. Cervical musculoligamentous sprain/strain – partial resolution 2. Lumbar sacral musculoligamentous sprain/strain – unresolved – complicated by the development of chronic mechanical lower back pain and: 3. Regional myofascial pain syndrome 4. Central nervous system ‘sensitization’ 5. Probably neuropathic pain component 6. Deconditioning. [ 119 ] Ultimately, the report concluded that the Plaintiff was suffering from chronic pain.

Dr. Zabrodski also made a number of comments about symptom magnification: There was no evidence of symptom magnification, inconsistent findings on physical exam or other behaviors to suggest intentional misrepresentation of the reported symptoms. ...

The pain pattern that has emerged despite three core stability exercise attempts and numerous attempts at returning to work is clearly not just “mechanical back pain.” There appears to be both a neuropathic and central sensitization component leading to the development of a chronic pain condition that is not simply ‘deconditioning’ even though this is a contributing factor to his current functional limitations. ... In my opinion, while the examinee clearly has chronic pain, he does not (yet) present with the behavioural features typical of a so called chronic pain syndrome.

In my opinion, particularly in view of what is now understood in the 21st century regarding the physiology of chronic pain, this is not simply a case of deconditioning and maladaptive coping behaviours. (Although, he is clearly a risk for developing these behaviours while awaiting treatment.) [ 120 ] The IME consisted of many inventories/tests, including the Revised Oswestry Function Test, the results of which were as follows: Traveling: Pain restricts all forms of travel. Changing Degree of Pain: My pain is gradually worsening.

Pain Intensity: The pain is moderate and does not vary much. [and] The pain comes and goes and is severe. [Two responses were selected] Lifting: I can only lift very light weights, at the most. [ 121 ] The responses above were nearly identical to the 2010 test administered by Dr. Kong. This suggests similar functional status in the categories of travelling, changing degree of pain, pain intensity, and lifting. Both the 2008 and 2010 scoring indicated lower function than the 2002 test in the above categories. [ 122 ] Dr. Zabrodski stated that the Plaintiff was neither able to take

part in the return to work program with an eventual return to work at his former job nor able to return to work at Enerflex in a light duties capacity. [ 123 ] Dr. Zabrodski’s report stated as follows with respect to treatment plan, work capacity and prognosis: In my opinion, attending a multidisciplinary, long term chronic pain program to comprehensively address his chronic pain, deconditioning and the resultant psychosocial impact on function is the only remaining viable treatment. ... At this time, [the Plaintiff], in my opinion, is not considered fit to work even in a sedentary capacity.

With further improvement and treatment subsequent to his recent treatment induced exacerbation of lower back and leg pain, he may be able to return to appropriate modified light duty or sedentary self paced work on [a] part-time basis initially, possibly full time eventually. Such work should not [be] safety-sensitive in nature. ... Extended treatment, numerous exercise programs and several attempts to work have failed. In my opinion, a complete symptomatic recovery or return to his physically demanding job cannot be reasonably expected to occur. The scientific medical literature is very clear in this case.

An individual with low back pain post injury who has not returned to their date of accident job by two years has a LESS THAN 1% chance of doing so in the future. In my opinion, in view of multiple failed attempts at rehabilitation and return to work, the probability of success in the future in this regard is closer to 0% rather than 1%. [ 124 ] At trial, Dr. Zabrodski testified that the Plaintiff did not appear to be magnifying his pain and that he could not find any reason for the Plaintiff not to want to get back to work. g. Dr. Atkinson [ 125 ] Dr.

Atkinson is a registered psychologist and vocational rehabilitation consultant. Dr. Atkinson assessed the Plaintiff on March 11, 13, 14 and 24, 2008 for an employability assessment dated April 14, 2008. In addition, a rebuttal report dated September 23, 2010 was completed in response to Dr. Suffield’s August 2010 report. Dr. Atkinson did not meet with the Plaintiff again to complete this rebuttal report. Dr.

Atkinson did meet with the Plaintiff on May 30, 2012 to complete another employability assessment. [ 126 ] During the initial interview, concerns were noted in the categories of: headache, walking, sleeping, concentration, memory, fatigue, sense of taste, recreational pastimes, household chores, social activities, shopping, and routine maintenance.

Specifically, the Plaintiff reported that: “Now, he finds he [cannot] carry more than two bags of groceries, hence he needs to shop more frequently.” and that “He has stopped changing filters on his car and other duties checking under the hood, etc.” [ 127 ] During the assessment process, the Plaintiff was reported to have experienced pain which limited his ability to be tested. For instance, after his first day, “[h]e was scheduled to return the following day, but telephoned to request postponement due to increased pain symptoms the following morning.

Therefore, [the Plaintiff] was seen over the course of three separate half-days thereafter, at his request.” [ 128 ] Dr. Atkinson’s report described a number of tests that were administered. One of them was the General Aptitude Test Battery (GATB), used to measure vocational aptitude. The report stated: Overall, [the Plaintiff’s] measured vocational aptitudes were weaker than expected considering his employment history. In seven of nine areas, he performed below expectations, with particular weakness identified in all areas of psychomotor functioning.

Review of his protocol revealed generally poor speed and reasonably consistent accuracy. … While [the Plaintiff] may have greater abilities than he was able to demonstrate, his ability to work efficiently was likely influenced by his pain and discomfort, and perhaps to some degree by his vision since he did not have his eyeglasses with him during these procedures.

[ 129 ] The Chronic Pain Coping Inventory (CPCI) was also administered, which indicated: ... [The Plaintiff] used an average number of Wellness-Focused coping behaviours, compared to pain patients. His lowest score occurred in the Task Persistence scale. This scale is thought to measure the extent to which an individual continues ordinary activity despite his or her pain. [The Plaintiff’s] Task Persistence score did extend into the Clinically Elevated range, suggesting he may sometimes abandon effort prematurely.

His score on the Exercise/Stretch scale indicates [the Plaintiff] may already use these techniques to some advantage. [ 130 ] The Battery for Health Improvement 2 (BHI-2) was administered to assess disability perception: [The Plaintiff’s] validity profile suggests that he may have a slight tendency to emphasize his concerns be clearly understood by others. Thus, there is likely to be a slight negative bias to his report about his current situation.

On the physical scales, [the Plaintiff’s] scores reflected a very high degree of functional complaints, suggesting elevated and persistent pain and impairment in multiple areas of his life and his identity. He is likely to view himself as unemployable and may have limited motivation to change. [ 131 ] Dr. Atkinson also assessed the Plaintiff using a Rehabilitation Checklist, stating: Overall, [the Plaintiff] believes that, since being injured, his physical condition has severely worsened and his emotional condition has moderately worsened. Further, he expects his overall condition to worsen in the future.

He endorsed the belief that he will never be well enough to carry out most of his normal activities or roles. He further believes that it will take considerable time to be well enough to return to some type of work, likely on a part-time or modified basis. [ 132 ] Finally, Dr. Atkinson’s report included a

summary of the Plaintiff’s emotional/personality functioning based on the results of three assessments: the Beck Depression Inventory – II, the State-Trait Anxiety Inventory, and the Personality Assessment Inventory: [The Plaintiff] appears to view himself in a variable pattern ranging from periods of pessimism and self-doubt to periods of relative self- confidence and self-satisfaction. Current circumstances may be responsible for such fluctuations, which in any case are comparable to those experienced by most adults.

During stressful situations he may be particularly prone to be self-critical, uncertain, and indecisive. Individuals with similar results are typically seen as experiencing notable distress that is related to situational stressors. [The Plaintiff’s] interest in and motivation for psychological treatment appears below average compared to that of adults who are not being seen in a therapeutic setting. [ 133 ] Dr.

Atkinson’s report was positive and optimistic about the Plaintiff’s pre-injury employment potential and career prospects, stating in part: From a Vocational perspective, in my opinion, there is no reason to assume that [the Plaintiff] could not have continued to pursue a career as a Plumber/Pipefitter as he indicated had been his desire.

Indeed, considering all of the above information, in my opinion, had [the Plaintiff] not developed his functional limitations consequent to his back injuries as well as his ongoing pain, it is very likely that he would have continued to work as an Plumber/Pipefitter as he had done in the past. [The Plaintiff’s] prospects for continual employment at Enerflex would be termed as good. [ 134 ] The report recognized the Plaintiff’s efforts in rehabilitation and return to work programs: Review of available documentation indicates that both attending medical practitioners and consultative medical examiners agree that, as a result of the incident in question, [the Plaintiff] suffered soft tissue injuries to his lumbar region.

Results of the injuries included the development of muscle spasms in the lower back, sensory changes in the lower extremities, and complaints of lower back pain. Beyond those conclusions, there is a lack of consensus in the available medical information. [ 135 ] Dr. Atkinson highlighted the divergent conclusions of various medical professionals, including Drs. McDougall, Foster and Zabrodski and Mr. Hall, summarizing as follows: Available medical opinions outline a rather stark contrast regarding the ultimate effects of [the Plaintiff’s] injuries from the incident in question.

One analysis holds that [the Plaintiff] may return to his pre-injury job as soon as he has successfully completed a physical strengthening program to reverse the de-conditioning resulting from his accident. An alternative medical opinion holds that neuropathic and other pain conditions have not yet been successfully treated. This position holds that, until [the Plaintiff] enjoys significant improvement in control of his pain, for which there is no evidence of symptom magnification, he will have little chance of ever reversing the effects of his deconditioning.

This latter position also clearly states that, medically, [the Plaintiff] has suffered permanent physical limitations as a result of his injuries. Unfortunately, despite multiple efforts at physiotherapies, physical re-conditioning, medication therapies, chiropractic treatments, etc., [the Plaintiff] remains with functional restrictions and ongoing pain. According to this line of medical opinion, [the Plaintiff’s] current set of functional limitations reduces his employment options.

His injuries limit his tolerance for lifting, being immobilized for prolonged periods in any one position, standing with repetitive or prolonged forward flexion, repetitive use of the arms in certain positions, and working night shifts or significant periods of overtime. [ 136 ] Dr. Atkinson concluded that there was insufficient evidence to support symptom embellishment and that the Plaintiff’s employability had been severely limited as a result of the motor vehicle accident. Nevertheless, Dr.

Atkinson supported the Plaintiff’s re- entry into the work force with the appropriate supports and conditions in place: From the viewpoint of Vocational Rehabilitation, in my opinion, results of this evaluation find insufficient support for an

interpretation that conjectured “symptom exaggeration,” “symptom embellishment,” “illness behaviours,” “symptom limited,” or “symptom focused” characteristics account for [the Plaintiff’s] current condition. It is noted that Dr. McDougall, an orthopaedist, offered no information from any qualified mental health source as to even the potential for such emotional, cognitive, or behavioural conditions to exist. In my opinion, depending upon specific recommendations for whatever residual or refractory medical problems that may remain, at

graduation from a chronic pain management program [the Plaintiff] is likely to need the services of a job coach or vocational expert to help guide his return to work within whatever behavioural and/or cognitive parameters are assigned at that time. It should be understood that, within this medical scenario, [the Plaintiff’s] employment options will remain quite narrowly restricted. An extended job search is considered likely.

Even with completion of additional education and/or transition into a new field of work, [the Plaintiff] will still be forced to deal with some level of pain along with ongoing functional restrictions that are likely to negatively influence his employability and earnings in comparison to similarly trained peers. In my opinion, [the Plaintiff’s] employability potential has been severely restricted as a result of his condition. [ 137 ] As noted above, Dr. Atkinson’s September 2010 rebuttal report was generated based on document review only.

Generally speaking he concluded: “In my view, although there has been some significant new information generated the majority of such information has not contributed greatly to a better understanding of [the Plaintiff’s] residual employability.” Dr. Atkinson’s opinion remained largely unchanged: In

summary, after reviewing a volume of new information, some of which was quite helpful in documenting his condition after two years have passed from the time of my Employability Assessment of 2008, my opinion has changed in the direction that it now appears less likely that [the Plaintiff] will be able to sustain more than part-time employment in selected examples of entry-level, basic service occupations. [ 138 ] He concluded that the Plaintiff was not deliberately or intentionally exaggerating his pain. In reaching this conclusion, Dr. Atkinson repeatedly distinguished and criticized Dr.

Suffield’s report, largely by highlighting context. In particular, consistent with Dr. Dalby’s position, Dr. Atkinson criticized the use of the Fake Bad Scale: The primary validity scales of the MMPI-2 found no significant trends that [the Plaintiff’s] responses would reflect a motivation to present himself in a more negative or pathological perspective than would be apparent from his clinical symptoms. I concur with Dr. Suffield’s assessment of results from the FBS-Fake Bad Scale, to the extent that reported results fell near, but below the suggested cut- off score used for detection of possible malingering.

I would note it is my understanding that Dr. Butcher, who authored the computerized interpretive program used by Dr. Suffield, does not support the use of the FBS in his own system. [Emphasis in original.] [ 139 ] Dr. Atkinson’s third report, dated May 30, 2012, was generated after an assessment of the Plaintiff on May 9 & 10, 2012. As well, a number of documents and the video surveillance were reviewed. A similar battery of assessments was completed. While this third report changed Dr. Atkinson’s position, the change favoured the Plaintiff’s position. Dr.

Atkinson stated: It is clear that [the Plaintiff] has experienced a change in his employability. There now appears to be medical consensus that he cannot successfully return to any of his pre-injury employment positions, and most likely will need to consider part-time work at a sedentary level. [ 140 ] Dr.

Atkinson reviewed the factors limiting the Plaintiff’s employability including his age, experience, formal training, and education: Without significant improvement in management of pain and management of ongoing functional restrictions, from a Vocational Rehabilitation perspective, his capability for more than part-time employment in entry-level, basic service occupations would be considered questionable. In my experience, individuals with such difficulties are more likely to work for transient periods and find themselves outside the labour force at other times.

Without such improvement, I do not anticipate that [the Plaintiff] would be able to demonstrate and sustain sufficient engagement to be able to succeed at re-training efforts. With significant improvement in management of pain and management of ongoing functional restrictions, and with appropriate and timely vocational counseling, from the vantage point of Vocational Rehabilitation, [the Plaintiff] may yet be able to return to the competitive labour force in some limited, part-time employment in certain entry-level, basic service occupations.

Nevertheless, even with successful completion of a pain education and management program, and transition into a new field of work, [the Plaintiff] will still be forced to deal with some level of pain and ongoing functional restrictions that are likely to negatively influence his employability and earnings in comparison to similarly trained peers. [Emphasis in original.] [ 141 ] At trial, Dr. Atkinson presented as poorly prepared with difficulty recalling certain facts.

When confronted in cross-examination with the fact that the Plaintiff failed to mention spending 3 hours changing his brake pads just 4 days before his first appointment but told Dr. Atkinson that he had stopped changing filters and conducting maintenance on his truck due to pain, Dr. Atkinson attempted to rationalize this behaviour by stating that changing the brake pads was not what the Plaintiff meant when he said he had stopped performing routine work on his truck. This appeared to be bias in favour of the Plaintiff. Dr.

Atkinson agreed that the Plaintiff advised of his groin strain and one year off work from mid 2000 to mid 2001 and that it was relevant to his report but that he failed to mention in his first report. Dr. Atkinson did agree in cross-examination that the Plaintiff’s pain cannot be objectively measured and therefore could be feigned. h. Dr. Reddy [ 142 ] Dr. Reddy is a physician at the Calgary Chronic Pain Centre. His training is in chronic pain and anesthesiology. The Plaintiff’s active involvement with the Calgary Chronic Pain Centre took place from July 3, 2008 until about September 2010.

A letter dated January 21, 2010 from Dr. Reddy indicated that the Plaintiff had attended the clinic approximately monthly. Further, it stated that the Plaintiff reported no complaints of chronic pain prior to the accident. However, “[s]ince the motor vehicle accident, [the Plaintiff] has complained of persistent, constant pain that averages between 5 – 7 on the 10 point pain scale.

Intermittently he complains of marked muscle spasms that are 10 on the same pain scale that cause him to double over in severe discomfort.” [ 143 ] This letter stated that the “…initial assessment revealed marked left sacroiliac joint instability. His chronic low back pain is mechanical secondary to degenerative disc disease, myofascial pain syndrome, facet joint degeneration and sacroiliac instability. [The Plaintiff] suffers from persistent insomnia with restless leg syndrome. The most common cause of ligamentus instability of the

lumbopelvic area is secondary to trauma. It is important to know that this instability does not occur spontaneously.” Further, it is emphasized that: “This patient has developed a chronic pain syndrome secondary to his trauma.” [ 144 ] The Plaintiff’s treatments were reported to “…only provide partial temporary benefits.” The letter stated that “…[the Plaintiff] does not hav

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