Stevenson v Thompson, 2017 ABQB 451

Court of Queen’s Bench of Alberta Citation: Stevenson v Thompson, 2017 ABQB 451 Date: 20170725 Docket: 1001 07991 Registry: Calgary Between: Margaret Stevenson Plaintiff - and - Katherine Thompson Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.G. Park _______________________________________________________ [ 1 ] The Plaintiff, Margaret Stevenson [Stevenson], now a 54 year old Calgarian was sitting in the driver’s seat of her parked car in a shopping mall in Calgary, Alberta, on August 12, 2008.

She was early for an appointment and she passed time by reading a book while seated with her back against the driver’s door and her legs extended over the driver’s front seat and over the front passenger’s seat. Her seatbelt was not latched as the engine was not running. As she placed the book onto the dashboard, her car was struck by a motor vehicle driven by the Defendant, Katherine Thompson [Thompson]. At the time of the impact Stevenson testified she was swinging her right leg off the front seat to place it into the foot well under the steering wheel.

Her left leg was already down in the foot well at the time of impact. The Thompson vehicle hit the Stevenson vehicle on an angle. It was a low impact collision although Thompson allowed the impact could have pushed Stevenson’s vehicle one foot to one foot and a half after the impact. At the time of the impact Stevenson’s body was twisted as she was returning to a normal seated position as a driver. As a result of the impact Stevenson’s body moved back and forth in the driver’s seat. [ 2 ] Although she felt no initial pain other than being shocked, Stevenson suffered injuries in this collision.

In this trial she claims

damages for her pain and suffering, loss of enjoyment of life, loss of past income, loss of earning capacity, loss of housekeeping capacity, costs of future care, and special damages resulting from the injuries. [ 3 ] Stevenson’s vehicle was an older model and while it could be driven, the damage to the right front bumper was sufficient enough to make it not economical to repair it.

She was paid $1,000 in compensation for the vehicle which was deemed to be a “write- off”. [ 4 ] Stevenson alleges she suffered a sprain/strain WAD II type of injury which has failed to heal resulting in development of a long term chronic pain syndrome. As a result she maintains she suffers from ongoing pain and dysfunction in her neck, back and shoulder. Stevenson claims this chronic pain syndrome has limited her lifestyle.

She further alleges this chronic pain syndrome has increased in magnitude due to the other stressors in her life which she had been experiencing before and continues to experience after the accident [the index accident]. [ 5 ] After completing educational training at Bow Valley College she has held a number of employment positions. In 2005 she obtained full-time employment with the Government of Alberta. Since the index accident she complained she cannot pick up or lift heavy boxes. She indicated she has difficulty in sitting due to pain in her lower back and up her right thigh caused by the index accident.

As a result of this pain she has moved to various departments within the government. She testified despite the ongoing pain she can manage her present sedentary employment position. [ 6 ] Her treatment for her injuries has been primarily conducted by Dr. Lana Cosman, a chiropractor and an acupuncturist. Dr. Lana Cosman’s husband, Dr. Ernie Cosman, has provided complementary treatment to Stevenson by coordinating conventional chiropractic care in the form of manipulation, massage therapy, stretching and exercise. Stevenson credits the assistance of both Drs.

Cosman in providing her the ability to keep working in the face of the pain she has experienced and continues to experience. [ 7 ] She described her lifestyle prior to the accident as one of continual physical activity. Stevenson advised she frequently hiked, quadded on all-terrain vehicles, biked, boated, fished, snowmobiled, skied, and danced with no physical problems or participation issues. Since the index accident she has been unable to enjoy these activities. Stevenson further finds reading difficult due to her head being lowered while in a reading position.

As a consequence her neck becomes sore and she develops headaches. She testified that physical activities not only give her pain but they cause her to become frightened due to an anticipation of forthcoming pain. According to her the only present physical activity in which she can become engaged at present is slow walking. [ 8 ] Stevenson noted an increase of at least 60 pounds in her weight since the index accident. She attributed the increase due to her forced inactivity caused by her injuries. [ 9 ] In her mind, her health prior to the accident presented no ongoing problems.

Stevenson had experienced some gynecological problems which were resolved. In 2002 she was diagnosed with a hyperthyroid condition which caused a high heart rate, fatigue, shakiness, a rapid drop of weight and aversion to heat. After undergoing an ablation of her thyroid in 2004 she found her condition changed to one of hypothyroidism. Stevenson advised she presently takes medication to maintain a sufficient level of control to stabilize her thyroid condition.

According to her testimony she experiences no current difficulties due to her hypothyroidism. [ 10 ] Stevenson testified in November of 2004 she was hospitalized for 2 weeks in the Rockyview General Hospital in Calgary as a result of an adjustment disorder diagnosis and depression. She attributed that diagnosis to her concerns for her aunt who was suffering from dementia; her role as a care giver for her physically incapacitated mother; and an unemployment status. After her hospital discharge for the adjustment disorder she received treatment for a further month as an outpatient.

She believed the treatment caused her to feel somewhat better. [ 11 ] Stevenson admitted in her testimony she experienced some prior accidents. In December of 2004 she was sitting on a snowmobile when it broke through the ice on a creek. As a result she suffered lower back pain, shoulder pain, neck pain, tingling in her legs and headaches. Stevenson did not believe those injuries suffered gave rise or contributed to the injuries suffered in the index accident. [ 12 ] Stevenson was injured in another minor motor vehicle accident in December 2006 when she was an occupant of one of the 2 vehicles involved.

As a result she was not able to work on the day of December 15, 2006. She claimed any injuries she received in that accident did not endure for any length of time. Stevenson was diagnosed with a whiplash injury but she did not seek any follow up treatment. [ 13 ] Although she complained of low back pain and tingling in her right thigh in a visit to her general practitioner, Dr. Curtis, in November of 2007 she testified she had no enduring back pain prior to the index accident. Dr. Curtis noted a reduced range of motion without midline tenderness. He prescribed Tylenol #3.

Stevenson did not seek any further treatment for this complaint. [ 14 ] As well in November 2007 Stevenson was diagnosed with a gallbladder attack which caused her pain in the right upper quadrant. After receiving a prescription for pain medication she did not seek any further treatment for this diagnosis. [ 15 ] On March 19, 2008 Stevenson attended upon her chiropractor, Dr. Ernie Cosman, reporting pain in her right pelvic region. He diagnosed it as a misalignment in her right sacroiliac joint. Again she sought no further treatment for this complaint. [ 16 ] She saw Dr.

Lana Cosman, a partner in the Mayfair Chiropractor Clinic with Dr. Ernie Cosman, in the spring of 2008 with complaints of headaches, low energy, stress, sleeplessness, digestive problems and a desire for a cessation of smoking. Acupuncture was used by Dr. Lana Cosman. This was not a treatment for musculoskeletal pain or injury. Five acupuncture treatments were provided. Unfortunately the treatments were not totally successful in that Stevenson resumed her smoking. [ 17 ] On June 22, 2008 Stevenson was forced to enter her home through a kitchen window as she forgot her house keys.

She slipped upon entering and fell on the floor. She saw a Dr. Mah soon thereafter. Stevenson complained to him of neck stiffness, headache, left wrist pain, nausea, sleeplessness, vision problems, numbness in the right hip, bruising on the forearms and weakness in her left hand. He

diagnosed neck stiffness with a reasonable decreased range of motion, pain with flexion, extension and rotation. He described it as a whiplash injury. Muscle relaxants and anti-inflammatory were prescribed with an unremarkable x-ray demonstrating no fracture, dislocation or soft tissue injury. Stevenson did not seek any further treatment. [ 18 ] She denied having any ongoing health problems emanating from that fall. Indeed she testified she felt “good” by August of 2008 respecting her physical and mental health.

Stevenson advised she was not suffering from any ongoing chronic musculoskeletal related difficulties at that time. [ 19 ] Although Stevenson felt no immediate pain other than shock after the index accident, she advised shortly after she experienced a headache, stiffness in her neck, upper and lower back pain, right shoulder pain, lower leg and her right thigh tingling. Stevenson ingested some Advil and went to bed. That night was one of intermittent sleep due to the pain. [ 20 ] The next morning she was still in pain. She did go to her employment but soon after arriving she left and attended upon Dr.

Ernie Cosman. Her reported symptoms were recorded as headache in the frontal side of the head radiating down her neck and low back pain. Dr. Cosman was unable to provide any manipulative treatment due to the acute presentation. It was different from her previous attendances which were related to tightness and posture. She was referred to a physician in an after-hours clinic. The attending physician identified reduced shoulder abduction and pain and tenderness in the paracervical and occipital muscles, and tenderness in the intrascapular region.

He prescribed medication, an x-ray of her cervical spine and recommended physiotherapy. [ 21 ] On August 14, 2008 she again saw Dr. Cosman with complaints of increased pain in the neck, upper back, lower back, arm and hand. [ 22 ] Dr. Cosman advised chiropractic treatment, acupuncture treatment and exercise involving stretching which would alleviate her pain complaints.

His objective findings in the cervical spine included global loss of range of motion, marked in terms of right lateral flexion and rotation, palpable swelling, marked myospasm in the anterior, lateral and posterior paraspinals tissue (right worse than left), radiating arm pain and palpation and compression, and positive Adson’s and Wright’s testing. His objective findings in the lumbar spine were greatly reduced extension and right lateral flexion and extension, right-sided spasm, and loss of joint play in the right-sided facet joints.

In the right wrist, he noted objective findings regarding weakness of the flexor and extensor muscles. Dr. Cosman diagnosed a grade II sprain/strain of the lumbar, cervical and thoracic spine, and WAD III of the right cervical spine. [ 23 ] Stevenson attended upon Dr. Lana Cosman for acupuncture treatment on August 18, 2008. Dr. Lana Cosman testified that her primary treatment goal was reducing inflammation and pain by applying needles to various trigger points and acupuncture points.

She viewed Stevenson’s post-collision consultation as an acute pain presentation, markedly different from her pre-collision attendances. [ 24 ] In September or October of 2008, Dr. Ernie Cosman provided Stevenson with a stretching regimen. [ 25 ] Her medical caregivers recommended she not work. As a result, she did not work until October 20, 2008. After October 20, 2008, Stevenson returned to her employment on an increasing graduated basis. On January 26, 2009 she resumed full-time employment. Her most severe pain occurred in the first few months post-accident.

Her severe headaches initially occurred 4 – 5 times per week for 2 – 6 hours duration. Today, Stevenson’s headaches increase in severity as the work week progresses. [ 26 ] Due to her inability to experience a full night’s sleep, she consulted a Dr. Flemons. Obstructive sleep apnea was ruled out. Stevenson believes her sleep difficulties are caused by her recurring pain levels. She takes Advil at night to alleviate the pain and to assist her in achieving a better sleeping experience. [ 27 ] In addition, Stevenson has developed carpal tunnel symptoms. Dr.

Flaschner, a physiatrist, on May 10, 2010 diagnosed her with carpal tunnel syndrome. Her chiropractor, Dr. Ernie Cosman, diagnosed her with repetitive strain injury. These diagnoses are distinct from her index accident injury and are not caused by it. Stevenson testified she experienced difficulties in lifting boxes due to the index accident and that difficulty arose before the carpal tunnel syndrome diagnosis. [ 28 ] At her workplace Stevenson reported she cannot deal with file folders due to the necessity of reaching overhead to remove them or replace them.

Stevenson testified any repeated lifting causes her back, neck and arm to become sore. In turn this soreness interferes with her ability to work at a normal pace. [ 29 ] At home her husband does approximately 80% of the indoor and outdoor tasks. Stevenson is able to do some cooking, washing cutlery and dusting. According to her since the index accident, this is a new arrangement in chore-sharing. Before the index accident she advised she used to do 50%. [ 30 ] As a result of her acupuncture and chiropractic treatments, she presently owes $41,105.20 plus GST to the Mayfair Chiropractic Clinic.

She believes two days of acupuncture treatments per week would be adequate to treat her injuries in the future. [ 31 ] Stevenson acknowledged she experiences numerous stressors in her life but she believes she remains free from depression. [ 32 ] January 22, 2013 saw her involved in a slip and fall incident on ice. It was not a severe accident according to her testimony. [ 33 ] Another slip and fall on ice happened on January 29, 2016. She saw Dr. Ernie Cosman on February 2, 2016 and reported she injured her right forearm and the right side of her back.

Her testimony indicated the pain lasted for a few days. [ 34 ] On February 14, 2014 she was in another motor vehicle collision. It resulted in pain at her left sacral base. She advised the pain resolved within 1 – 2 days. [ 35 ] On November 5, 2013 she fell on her stairs. This fall resulted in an increase of pain. [ 36 ] On November 13, 2014 she was involved in another motor vehicle accident. She received a concussion and soreness in her

neck and back area. It aggravated the injuries suffered in the index accident. She testified by February of 2016 that increased pain level had diminished to the level of her ongoing pain before the November 13, 2014 accident. [ 37 ] In addition to her accidents after the index accident, she was hospitalized on March 13, 2012 for symptoms associated with a stroke event. The symptoms were found to be stress related.

The medical staff suggested Stevenson stop smoking and lose weight. [ 38 ] It is noted following her mother’s death in 2011, Stevenson lost 3 months away from work. [ 39 ] Stress has continued to play a large role in her life. In addition to her mother’s death, she experienced stress in a child custody case when she and her common-law husband were awarded custody of her 4 year old great-niece. [ 40 ] Throughout her periods of stress and absence from work, Stevenson’s physical condition remained consistent.

She did not attend for massage, her chiropractic treatments remained sporadic, and she continued to attend acupuncture one to two times per week, reporting ongoing headache and pain in her neck, low back, and hip. Dr. Lana Cosman frequently noted “WAD” under the “assessment” heading on her chart notes. She gave evidence at trial that these notations mean that she attributed Stevenson’s symptoms to the injuries sustained in the index accident. [ 41 ] With respect to Stevenson’s long-term recovery prospects, Dr.

Lana Cosman testified by 2014 there was steady improvement but such improvement was slow and fragile, and repeatedly aggravated by ordinary activities of daily living. She noted Stevenson’s function was largely pain limited. Dr. Lana Cosman indicated Stevenson required twice weekly treatments in order to keep the pain manageable and allow her to function at work and at home.

Cross-Examination of Stevenson [ 42 ] Stevenson admitted her weight at the time of the index accident was 190 pounds and not the weight of 130 – 140 pounds as she testified earlier in her examination-in-chief. [ 43 ] She further admitted her earlier testimony that her weight gain was related to the index accident was incorrect. [ 44 ] Stevenson agreed her physicians were having a difficult time in finding the correct dosages for her thyroid condition diagnosed in 2004.

She further agreed achieving a correct dosage is nearly impossible for her. [ 45 ] She admitted for some unknown reason, she has not attended all her blood tests relating to her thyroid condition. Further she admitted in the past she failed to take her thyroid medication on a daily basis as required.

She advised that failure occurred as a result of a faulty memory. [ 46 ] Stevenson admitted her treating physician advised her that failure to take her thyroid medication could compound her depression issues. [ 47 ] However it is noted by July 2014 Stevenson began to demonstrate good compliance with her need to take her daily thyroid medication. [ 48 ] With respect to her prescribed anti-depressant medication she testified she dislikes taking it due to her belief she does not require the medication to feel better. Stevenson advised her depression difficulties arise on a seasonal basis due to stress.

She pointed to a difficult workplace environment and problems with her adopted great-niece as stressful issues which caused her to miss nearly a year of employment in 2013 and 2014. She was unable to remember whether she was prescribed anti-depressant medication in that stressful year. [ 49 ] She did admit she received counselling in that year of unemployment to develop coping strategies in order to better process her ever-present stress.

Her chiropractic records noted an increase in symptoms when she finds herself in a stressful situation. [ 50 ] In response to cross-examination she did admit, when she weighed 200 pounds prior to the index accident, her hikes were four hours in length but could not be categorized as tough, uphill hikes. [ 51 ] Stevenson agreed her major complaints of lower back pain, shoulder and neck pain, tingling in legs, and headaches in 2004, while less severe today, are located in the same area of her body both then and now.

In 2004 her chiropractic records revealed stress related tightness through the spine related to her health disorder of thyroid difficulties. [ 52 ] In June of 2009, after the index accident, Stevenson described herself suffering from a burning pain on her spine between the shoulder blades. [ 53 ] Stevenson admitted her chiropractic records stated she was experiencing steady improvement six weeks after the index accident with progression to light strengthening exercises combined with increased daily living activities.

Stevenson maintained she strictly adhered to performing her daily prescribed stretches after the index accident. She somewhat agreed that both examiners, who were charged with performing a functional capacity evaluation on her, indicated she was not able to really demonstrate those stretching exercises very well. Stevenson attributed her inability to demonstrate those exercises to pain. [ 54 ] While Stevenson advised she was honest in her reports of her health to her physicians, she did testify she forgot to advise Dr. Flaschner of her history of anxiety and depression. Dr.

Flaschner’s note from 2011 indicated while she reported grief secondary to her mother’s death, she discussed with him that she had no history of any mood disorder. Stevenson advised it was not her intention to fail to disclose everything to Dr. Flaschner. [ 55 ] In a similar vein Dr. Flaschner’s note further advised there was no reported history of ongoing symptoms and there was no

reported history of any prior motor vehicle collisions. [ 56 ] In another report generated by Dr. Flaschner on December 11, 2014 he noted Stevenson denied any history of depression or anxiety prior to the index accident. His report reflected her advice to him she has experienced post-index accident depression due to change in her life. In his notes he reported her advice that she currently feels worthless and only semi-productive compared to the days prior to the index accident. [ 57 ] She admitted she failed to mention to Dr. Flaschner about her 2004 hospitalization for depression in Rockyview Hospital.

Yet she agreed she advised Dr. Flaschner her subsequent depression was due to the index accident. Further in her 2014 appointment with Dr. Flaschner she failed to advise him she had just completed her one year stress leave from work. Earlier, about 2-1/2 months before her 2014 appointment with Dr. Flaschner, she had advised Dr. Spivak, a psychiatrist retained by the disability insurance company for her work leave, that the 1 year stress leave was due to work stress and stress with her adopted great-niece. She was not able to provide an explanation as to her failure to advise Dr.

Flaschner about her 2004 hospitalization. Further she could not provide a reason as why she would give 2 completely different versions regarding the cause of her depression. Dr. Spivak reported she advised these 2 stressors, the work stress and the stress related to her great-niece, exacerbated her pre-existing issues which resulted in her belief, she could no longer function at work. She described to him significant worsening concentration, anger, impaired sleep and frequent rumination over the stressors. Dr. Spivak believed she was experienced adjustment disorder with mixed anxiety and depression.

He came away with the impression her symptoms were improving. [ 58 ] Under cross-examination, Stevenson testified she told her functional capacity evaluator, Ms. Brennan, on December 10 and 11, 2012 that she occasionally performed a few neck, low back and arm stretches for a 5 second duration. Stevenson further reported no specific strengthening exercises. She indicated she used a core stability ball and a Thera-band for a period of time. However that use stopped. [ 59 ] In 2015 she reported she started 40 second duration stretches.

Stevenson advised she now uses the core ball at home and work on an intermittent use basis. [ 60 ] Stevenson testified that Ms. Brennan told her light lifting would be okay but Ms. Brennan believed Stevenson was capable of doing heavier lifting. [ 61 ] In further cross-examination, Stevenson did not remember Dr. Flaschner advising her to see a physical therapist to develop a cardiovascular, stretching and resistance training program as a foundation for her long term symptomatic management.

It is noted Stevenson did not see a physical therapist. [ 62 ] She testified under further cross-examination she believed her chiropractic, acupuncture and massage treatments were sufficient. Stevenson went on to state she agreed with Dr. Flaschner’s observations that her chiropractors had shown her appropriate stretching and strengthening exercises. Yet she admitted at December of 2012 she was not carrying out those exercises as effectively as she should have. [ 63 ] Under cross-examination Stevenson testified she was not aware of Dr.

Flaschner’s recommendation that she undertake an ambitious exercise program to help her manage her body weight, high blood pressure, sleep disturbance, stress and chronic pain. [ 64 ] Stevenson advised in response to further cross-examination that in February 2010 Dr. Flaschner’s consultation reports set out his advice to her to undertake physical therapy and active rehabilitation. However, it was her testimony that she did not recall Dr. Flaschner giving her that advice. [ 65 ] Under further cross-examination, Stevenson did not recall whether she provided advice on or about March 9, 2010 to Dr.

Flaschner to enable him to record a note in his charts to the effect that she had been receiving acupuncture on a regular basis and was going to start an active rehabilitation program very shortly. [ 66 ] In a like manner under cross-examination, Dr. Flaschner’s report of May 10, 2010 was pointed out to her.

He wrote: She does not have a regular active rehabilitation program and I gave her a note to take to physical therapist for some education re: stretching and strengthening for the right shoulder girdle and upper extremity. [ 67 ] In response Stevenson testified she did not recall getting that note. [ 68 ] It was pointed out to Stevenson in cross-examination that Ms. Ball, Thompson’s functional capacity evaluator, noted upon observing Stevenson at an assessment, Stevenson appeared to have difficulty recalling her exercises and those she did recall, she performed poorly. Further Stevenson agreed that Ms.

Ball advised in her report that Stevenson could do more than what Stevenson self- reported. She testified Ms. Ball did not discuss that observation with her. [ 69 ] Stevenson advised under cross-examination in all likelihood Dr. Ernie Cosman suggested he could provide her with exercises. As a result, Stevenson testified she would have received exercises from him. [ 70 ] She admitted she decided to continue on with the chiropractic care rather than do the physical therapy and active rehabilitation.

Her determination to continue with the Mayfair Chiropractic Clinic resulted in an initial bill for $45,000, subsequently reduced to the claim for $41,105.20 as part of her claimed damages in this trial. Yet she admitted her condition has not improved much as a result of that treatment. Stevenson had no answer to why over the last eight years she did not reach the conclusion her chiropractic treatment plan appeared not to be working and maybe she should follow her doctors’ suggestions for exercise and physiotherapy. [ 71 ] In this connection, she was cross-examined on a further report of Dr.

Flaschner of October 7, 2011. It stated: Treatments have included naturopathic assessment, chiropractic treatment ongoing currently once every three weeks and acupuncture

once to twice per week. Despite prescription provided for physical therapy and active rehabilitation program, Ms. Stevenson has not seen a physical therapist. [ 72 ] I note the naturopathic assessment was for her thyroid condition. [ 73 ] In response, Stevenson testified she did not recall speaking to Dr. Flaschner regarding the necessity of proceeding with the physical therapy and active rehabilitation. Similarly, she advised under cross-examination that she did not recall discussing with Dr. Curtis or Dr. Flaschner the advice, as recorded in Dr.

Flaschner’s December 11, 2014 notes, that her best interests would be to attend at the Calgary Chronic Pain Centre for interdisciplinary pain management. Stevenson advised she has never attended at that particular pain clinic. [ 74 ] A number of cross-examination questions were posed to her respecting Dr. Lana Cosman’s chart notes on her attendances ranging from February 2009 to June 2016. The questions related to Stevenson representing to Dr. Cosman increased stress in her life and experiencing increased pain.

In response to the questions, Stevenson testified she did not see any connection between stress and her subsequent pain. [ 75 ] Another cross-examination question related to her purported stroke being ultimately diagnosed as a stress reaction. In response Stevenson admitted she periodically consulted a behavioural therapist in the offices of Dr. Curtis. [ 76 ] In cross-examination, Stevenson testified she did not provide an accurate answer when she testified in Questioning in this action under

Part 5 of the Alberta Rules of Court on November 11, 2011. Her Questioning testimony indicated that she had never injured her back or had any problems with pains in her back prior to the index accident. She admitted at trial that it was not an accurate answer. Further, it was brought out that at a subsequent Questioning on March 29, 2016, she answered “no” to a question whether she had experienced any slips or falls since her last Questioning.

In her trial cross-examination she admitted she did have some slips and falls since the November 11, 2011 Questioning. [ 77 ] She further admitted in cross-examination when she had testified in her March 29, 2016 Questioning that she had experienced no slips and falls since her last Questioning, she told her chiropractor on that same day about a slip and fall in Mexico. In her cross- examination she testified she could not hazard a guess as to why she did that. Trial Re-Examination [ 78 ] In re-examination she testified stress brings her more pain.

She believed she had all her symptoms resolved from her earlier accidents by the date of the index accident. Donald Falk [ 79 ] He has been a very compatible and extremely close and loving common law husband of Stevenson for 13 years. [ 80 ] He noted before her thyroid diagnosis his wife was a very active and upbeat person who was engaged in many activities. After her thyroid difficulties, he found her to have less drive to engage in activities. She was less positive and upbeat.

She demonstrated less energy, more sadness and insomnia. [ 81 ] Upon her thyroid ablation being completed he observed she almost became her original self. Her activity level increased. [ 82 ] He advised prior to the index accident, they shared all domestic tasks equally although he did more of the outdoor tasks and she did more of the indoor tasks. [ 83 ] Falk testified her slip and fall accidents prior to the index accident did not lead to anything more than short term problems.

He believed her to be in good health prior to the August 12, 2008 index accident. [ 84 ] Since the index accident, he observed she has become very sad, upset, anxious and unable to do most physical acts. [ 85 ] He reported he has been doing most of the household chores subject to Stevenson completing some light chores. He noted she is restricted in providing care and enjoying play with their adopted great-niece due to her physical limitations. Instead, he provides most care to the young girl. [ 86 ] Falk noted her neck pain, back pain and hip pain flared up anytime she tried to do anything physical.

Recreational activities were restricted to short walks. Anything more strenuous produced her complaints of severe pain. He advised voicing such complaints is a distinct change for her in that she used to be a “trooper” who did not complain. [ 87 ] Finally Falk noted her November 2014 motor vehicle accident resulted in some injuries which have been resolved.

She has returned to the level of health experienced by her shortly before the November 2014 accident occurred. [ 88 ] Under cross-examination Falk advised Stevenson takes chiropractic and acupuncture treatments due to her trust in both Cosman chiropractors and their treatments which tend to alleviate her pain and allow her to function. [ 89 ] Tellingly, he advised Stevenson does not like to take medications of any type unless she is compelled to take them and she agrees with the doctor’s advice. [ 90 ] Finally, he noted stress experienced by her results in tenseness, soreness and pain.

Dr. Glenn Curtis [ 91 ] He is Stevenson’s experienced general medical practitioner, who has treated her for 18 years. He related her minor motor vehicle accident of December 2006 resulted in Stevenson experiencing minor headaches, a sore neck and sore low back. [ 92 ] He testified prior to her 2004 thyroid difficulties she was a healthy woman. Her hyperthyroid condition and subsequent medical treatment turned it into a hypothyroid condition. The latter caused her to gain weight despite her best efforts to control it.

The hypothyroid condition has proven most difficult to regulate medication. [ 93 ] He noted prior to the index accident, Stevenson reported distress respecting her weight, her job, her fatigue, her self-image and anxiety. She was taking an anti-depressant to correct her low mood. Her depression had become more prominent in recent years. [ 94 ] In that connection, she was admitted in 2004 to the Rockyview General Hospital due to difficulties with sleep, an increase in agitation and depressive symptoms. He noted she was diagnosed with an adjustment disorder with major depression.

Her thyroid condition contributed to her admission. As well, stresses in her life relating to interpersonal issues contributed to her admission. On her discharge, it appeared her disorder with depressive symptoms was resolved. [ 95 ] He testified an event occurs in her life and it will quite frequently result in symptoms of clinical depression. He further noted chronic pain could be a stressor. Chronic pain overlaps as a part of a circle with sleep and mood.

He advised chronic pain was not a factor contributing to her 2004 hospital admission. [ 96 ] He advised that it was his understanding that on July 3, 2008 Stevenson presented herself to a family health clinic. She reported an earlier accident in her home where she fell from the kitchen table. She reported neck stiffness and pain with flexion extension, rotation and lateral flexion. He advised on none of her visits upon him prior to the index accident did she complain of musculoskeletal pain, neck, back, shoulder or hip pain. [ 97 ] On August 21, 2008 he saw Stevenson following the index accident.

She complained of a severe headache which would last all day. She complained of tightness in her mid-back and discomfort in her lower back. He indicated that she felt pain going into her right hip area. He advised his examination of her neck and shoulders, found her range of motion was limited to 50% of normal in all directions. He noted no mid-line tenderness in the cervical spine and the neck. Dr. Curtis observed a very tight right trapezius and levator scapular muscle. He noted no mid-line tenderness in her mid-back. He found a marked tenderness over the right para-spinal muscles and rhomboid.

Her low back had a range of motion of 50% of normal. Dr. Curtis observed no mid-line tenderness but he observed muscle tenderness in her right quadratus lumborum and paraspinal region. He advised her not to return to work. [ 98 ] 2 weeks later she attended at his office and reported significant headaches, neck discomfort and mild and low back pain. He found no evidence of neurological or bony injury. [ 99 ] He advised her to return to see him on a semi regular basis due to her involvement with Dr. Cosman. [ 100 ] On January 29, 2009, Dr. Curtis saw Stevenson again.

She reported her low back pain was getting worse and reported still reoccurring pain in the neck. [ 101 ] In March of 2011 he noted the death of Stevenson’s mother became a major stressor to her. She experienced difficulties with her sleep, suffered anxiety and depression. Chronic pain was present in the background. Grief counselling assisted her recovery. [ 102 ] He testified that after the index accident, Stevenson had difficulty in sleeping. He indicated sleep deprivation is a major trigger for clinical depression.

Part of the problem with sleep deprivation is the pain that Stevenson was experiencing which in turn was keeping her awake. He indicated that pain, mood and sleep are all vitally interlinked. He advised the major factor which placed her in the hospital was stressors in her life which were in her personal relationships. He further indicated that chronic pain was not a factor in 2004. [ 103 ] He indicated prior to her November 13, 2014 accident, Stevenson was stable and able to work with limitations on heavy lifting and bending. She was reasonably functional at work and at home.

Her recreational activity and household chores were restricted. She experienced the same symptoms as a result of the November 13, 2014 accident as she experienced in the index accident. However he noted she made a full recovery from the November accident and she returned to her baseline level of injury from the 2008 index accident. [ 104 ] He testified that she reported to him that her chiropractic and acupuncture treatments helped control her pain. [ 105 ] Under cross-examination he advised she did not always attend for her laboratory examinations.

He stated failing to take thyroid medication can compound depression. Dr. Curtis indicated active exercise programs are a standard part of whiplash injury treatments. [ 106 ] Under further cross-examination he advised that he did not know if she was taking the anti-depressant medication he prescribed for her. He did advise the treatment plan for the index accident did include physiotherapy. He further advised that he received a note from Dr. Cosman that Stevenson was improving steadily and was enroute to a relatively standard recovery from a whiplash injury. [ 107 ] Dr.

Curtis did advise in his experience there were very few accidents which occurred where a person was sitting sideways without being seat-belted. [ 108 ] Dr. Curtis advised that active exercises are a standard part of treatment of a whiplash injury. [ 109 ] Finally he advised that irregular use of her thyroid medication would compound her depression. Dr. Ernie Cosman

[ 110 ] Dr. Ernie Cosman was Stevenson’s chiropractor. He advised the purpose of chiropractic treatment is primarily to restore motion, proper mobility to the soft tissue and spinal tissues. Proper motion provides improved healing with better strength and stabilization. [ 111 ] Dr. Ernie Cosman worked in a clinic with his wife, Dr. Lana Cosman, who primarily provided Stevenson with acupuncture treatments. [ 112 ] He provided details of an appointment with her on December 13, 2004.

She complained of a dull pain across her shoulder blades, neck stiffness and weather related migraines, strain in the side and low back, tingling in the hips, right elbow pain, lateral epicondylitis. He understood this involved a fall by Stevenson through ice. [ 113 ] Stevenson advised him her past health history included neck pain, upper arm pain, wrist pain, upper back pain, lower back pain and headaches. She advised because of her thyroid condition general fatigue and weight fluctuations occurred. He noted she exhibited a postural tightness type condition.

He recommended yoga to keep the spine moving. [ 114 ] On March 19, 2008 he met Stevenson and provided her with what he called a “tune up” to deal with stiffness down the right pelvis region and the posterior pelvic region. [ 115 ] He provided testimony of her initial August 14, 2008 attendance upon him and her complaints resulting from the index accident. He described it as an acute injury presentation. Her complaints involved the following: neck pain, headaches, upper back pain, right arm pain, left arm pain, hand pain, lower back pain, right leg pain into the toes. [ 116 ] Dr.

Cosman detailed his findings and diagnosed it as follows: Cervical spine: • marked loss of range of motion • Palpable swelling in the right upper cervical spine; • Marked mild spasm of the right greater to the left anterior lateral and posterior paraspinal tissues; • Radiating arm pain with lateral cervical spine palpitation, cervical distraction and cervical compression; • Some weakness in right wrist. Lumbar spine • Marked decrease in extension and right lateral flexion, right rotation of the lumbar spine, moderate flexion and left movements.

Straight leg raise is positive for back pain on the right – 1/3 motion of the right leg; • Reflexes and strength intact – right lumbosacral facet joint play loss. [ 117 ] He diagnosed her as suffering from a sprain and strain – grade 2 for the lumbar thoracic cervical spine with a 25% tearing of the muscles, tendons, ligaments and joint capsules. [ 118 ] Finally he diagnosed a whiplash associated disorder of type 3. His goal would be to decrease swelling, increase range of motion and decrease spinal spasm.

For his treatment, he recommended massage and acupuncture, lighter therapies, chiropractic and physiotherapy to follow. [ 119 ] Dr. Ernie Cosman expected a return to normal on essential activities within 3 to 4 months. [ 120 ] In his testimony he provided snapshots of his findings and advice to her upon her subsequent attendances through the following months. [ 121 ] On August 21, 2008 he was advised by Stevenson that she tried to work and could not.

He found swelling still palpable on the right upper cervical spine, with a very sore neck. [ 122 ] In September of 2008 he found a marked spasm through the middle thoracic spine and lumbar spine. He provided some hands- on manipulation treatment. His goal was to try to get the neck moving and obtain a pain free range of motion. He noted she was receiving massage and acupuncture. [ 123 ] On October 15, 2008 he noted that she had an aggravation from lifting a 20kg box of kitty litter.

The aggravation was a back strain. [ 124 ] On November 17, 2008 he noted he was seeing some improvement in her condition. [ 125 ] On December 15, 2008 he spoke to her about physiotherapy for stabilization. He noted he had given her quite limited exercises for strengthening and improving her range of motion. [ 126 ] In December of 2008 he made a notation that she slipped and aggravated her injuries which resulted in increased back pain and headaches. However he reported Stevenson advised she was feeling better even after the slip. [ 127 ] In January of 2009 he noted she slipped on ice.

She had middle back pain as a result. On January 19, 2009 he found her neck

was improved but her arms were going numb with certain sleep positions. He testified she started full-time work on January 19, 2009. [ 128 ] In February of 2009 he noted that her neck and arm pain were flaring up again. [ 129 ] On March 4, 2009 he noted she again fell on ice. Her symptoms increased with this fall. [ 130 ] On March 25, 2009 he observed she had increased tissue flexibility and compliance. He was adding exercises for her to do and she was trying to do more rehabilitation. [ 131 ] On April 29, 2009, he noted that she experienced another slip on the ice. This caused a low back aggravation.

Although he was seeing her less, he believed he was giving her a high level of care which to him was justified. [ 132 ] On May 9, 2009 Dr. Cosman noted Stevenson’s alignment was improved and she continued to move well. He provided strengthening exercises for her shoulder. [ 133 ] On September 9 th, 2009 he was advised that she was involved in a boat riding incident. She was jostled in the boat. As a result it produced an aggravation of neck pain and an aching arm. [ 134 ] In December of 2009 he observed her carpal tunnel condition which was a Workers’ Compensation Board issue.

It was related to repetitive tasks at work. He found that it was a different injury to the whiplash injury attributable to the index accident. [ 135 ] On August 10, 2010 he noted Stevenson was experiencing neck pain, low back pain, middle back pain, headache, right arm pain and spinal aggravation.

He noted that her mother became ill in July of 2010 and the pain may have been due to aggravation and stressors in Stevenson’s life. [ 136 ] On December 14, 2010 she advised him of experiences of pain with stretching. [ 137 ] On January 25, 2011, Stevenson advised she had pain in her right shoulder and arm and had difficulty in sleeping. He observed this sleep difficulty had been present for the last 2-1/2 years. [ 138 ] On October 25, 2011, he found that she had better alignment although she had increased back pain.

He decreased his chiropractic treatments as of that date. [ 139 ] In November of 2012 he noticed that Stevenson had acute low back pain. He observed he was not seeing a lot of change in her subjective complaints. [ 140 ] On June 22, 2013 Stevenson slipped while she was alighting from her truck. He noted that was another aggravation. [ 141 ] On November 13, 2014 she was involved in another motor vehicle accident. Her subjective symptoms were low back pain, neck pain, right arm pain, right hip pain radiating into the lateral right thigh, right lower thoracic spine pain and a sore wrist.

By January or February of 2015 her low back pain was her chief complaint. Dr. Cosman advised at that date those injuries had returned to the pain level she was experiencing immediately prior to the November 2014 accident. [ 142 ] Under cross-examination, Dr. Cosman advised that a number of treatments were related to the second accident being November of 2014.

He further advised that some of her earlier complaints from the index accident had been absent for some time and they re- emerged after the November 2014 motor vehicle accident. [ 143 ] He noted that Stevenson’s hypothyroid condition is a major component of her health history. [ 144 ] His cross-examination revealed that in October of 2008 he advised her that she needed to improve her mobility and strength. He hoped that Stevenson would follow his recommendation. He indicated exercise assists rehabilitation. He testified he discussed exercise regularly with Stevenson. Dr.

Cosman advised he did not know what she performed with regard to stretching and strengthening. He indicated that his clinic provided a series of isometric and movement exercises to her. Finally he noted she was making a slow progression in that she was a long term case with respect to her whiplash injuries. He indicated that he was trying to encourage her to be as active as possible in that activity is a very important component to her overall health. Dr. Lana Cosman [ 145 ] Dr. Lana Cosman is a chiropractor who practices mainly in the area of acupuncture.

She described acupuncture as a way of reducing muscle spasm, muscle tightness, improving blood-flow, reducing pain and promoting healing. She believed it was good adjunctive care with manipulative chiropractic care. She indicated that acupuncture is effective for subjective pain which does not resolve initially with manipulation chiropractic therapy. [ 146 ] On June 6, 2008 Dr. Lana Cosman noted Stevenson attended at her office with a complaint of a frontal headache. Dr. Cosman noted that post-index accident Stevenson’s headaches were in the sub occipital and occipital regions.

She also indicated on June 6, 2008 Stevenson had complaints of neck and shoulder pain and energy issues derived from poor sleep and poor digestion. [ 147 ] On August 28, 2008 Stevenson reported to Dr. Lana Cosman that she had a headache, neck pain and back pain. Dr. Cosman observed Stevenson was experiencing much pain. [ 148 ] 2 or 3months after the index accident, Dr. Lana Cosman found Stevenson was recovering very slowly. She reported Stevenson would perform an activity and the injuries would be aggravated. Dr. Cosman advised activities of daily living often aggravated Stevenson’s condition.

She indicated that situation still persists today. In that connection Dr. Lana Cosman advised Stevenson presently

receives acupuncture treatment approximately once per week on the average. [ 149 ] By January of 2103, Dr. Lana Cosman observed Stevenson still complained of low back pain, neck pain and headache. Dr. Cosman advised that her acupuncture was pain-control oriented. She indicated Stevenson was mildly improving but required a lot of treatments in order to move her to a functional level. The treatment frequency was then approximately twice per week. [ 150 ] By July of 2013, Dr. Lana Cosman found Stevenson’s active range of motion was improving. [ 151 ] At February 2014, Dr.

Lana Cosman noted again, Stevenson was slowly improving. [ 152 ] By July of 2014, Stevenson had lost six pounds. Dr. Lana Cosman noticed an improvement in the low back pain. She also advised that Stevenson reported her self-esteem had improved. Dr. Lana Cosman testified stress caused Stevenson to experience more pain. [ 153 ] With respect to the second motor vehicle accident of November of 2014, Dr. Lana Cosman advised she provided really aggressive daily treatment to Stevenson. That treatment resolved those injuries. [ 154 ] By April 22, 2015, Dr. Lana Cosman noted Stevenson’s low back had improved.

However there were still subjective complaints regarding the right shoulder and neck. [ 155 ] Dr. Lana Cosman testified absent regular acupuncture Stevenson has subjective complaints, mobility difficulties and reduction in happiness. To avoid increased symptoms Stevenson requires weekly acupuncture treatment at a minimum. [ 156 ] Dr. Lana Cosman advised that Stevenson has experienced a number of slips and falls over time. Each slip and fall resulted in some type of aggravation of Stevenson’s index accident injuries. [ 157 ] Dr. Lana Cosman observed Stevenson experiences much subjective stress in life.

This stress causes muscle spasm and the shoulders to hunch. Dr. Lana Cosman advised that hunching is a physical manifestation of stress. [ 158 ] Dr. Lana Cosman advised that stress affects sleep. As a consequence Stevenson becomes tired, complains of headache, neck pain and back pain. Dr. Lana Cosman believes the acupuncture treatment helps Stevenson for one or two days by increasing functional capacity. [ 159 ] Dr. Lana Cosman testified that Stevenson’s pain perception with the amalgamation of emotion increases the likelihood of increased pain perception. Dr. Flaschner [ 160 ] Dr.

Flaschner is a specialist physician in physical medicine. He is an accredited physiatrist. He is the Medical Director of the multidisciplinary Pain Clinic and holds a position at the University of Calgary in the Clinical Neuroscience Department. His practice deals with nerve and muscle disorders. He receives referrals for pain conditions and complex pain issues. He was qualified as an expert in physical medicine and rehabilitation and as an expert in chronic pain. [ 161 ] He testified either high or low velocity motor vehicle collisions are a major source of trauma.

Velocity and weight do not necessarily have a huge impact. He indicated it was the individual’s experience and a number of psychological factors which seemed to have the greatest influence of outcome following whiplash injuries. Anxiety, depression, fear of movement, self-efficacy (the belief you will get better) all have a huge impact on long-term outcomes following whiplash injuries. [ 162 ] He defined chronic pain as pain that persists for more than 6 months or beyond the expected time of recovery. [ 163 ] He initially saw Stevenson at the request of the Workers’ Compensation Board.

She had developed sensory symptoms – numbness and tingling in her hands. As a result of his examination he determined she suffered from carpal tunnel syndrome. He offered to see her for an evaluation of her regional neck and shoulder girdle pain. [ 164 ] He provided a report of February 2, 2010. In it he observed a loss of range of motion of the neck due to Stevenson’s report of pain. He found many tender points at the neck and shoulder area and upper extremities.

He found fairly diffuse soft tissue pain through the right arm and also in the posterior neck and shoulder girdle on the right side more than on the left side. Dr. Flaschner prescribed medication and made a recommendation for Stevenson to attend physical therapy with regular stretching. [ 165 ] He next saw her on March 9, 2010. At that time she reported the same symptoms of neck pain, posterior shoulder girdle and right arm pain. He indicated Stevenson advised him at that time she was going to start an active rehabilitation program. She advised him that she was continuing acupuncture treatment. [ 166 ] Dr.

Flaschner indicated the desired approach to soft tissue injury is to try and improve people’s fitness, flexibility and strength which in turn will increase the range of motion. He further advised that anxiety and depression have a huge negative impact on long-term outcomes for soft tissue syndrome. It helps if the patient has a level of general fitness, engages in general exercise and does not suffer from sleep deprivation. [ 167 ] On May 10, 2010 he again saw Stevenson. He noted that her ongoing symptoms were continuing. She advised him that the acupuncture was helping.

At that time he gave her trigger point injections and spoke to her about the importance of the rehabilitation program. He gave her a note to take to a therapist and he provided her an anti-inflammatory medication. [ 168 ] He testified that he did not realize until after he went through her documentation that Stevenson had issues with depression. He

indicated his prior information was the history she provided to him. [ 169 ] Dr. Flaschner advised Stevenson’s symptoms increased through the work week such that on Thursday and Friday she would have difficulty tolerating her activities of daily living. He indicated she represented to him that she walked 5 blocks to work in the morning and 1 mile around her neighbourhood at home. He indicated that she advised that she obtained exercises from her chiropractor. [ 170 ] Dr. Flaschner testified her perceived impairment was high.

He advised Stevenson felt her ongoing symptoms were very intrusive in multiple domains of her life. He indicated Stevenson believed her pain affected her quality of life. [ 171 ] He indicated he did not find a new injury occurred in the accident of November 2014. [ 172 ] Dr. Flaschner further noted that hypothyroidism can be associated with musculoskeletal manifestations. He noted with Stevenson’s hypothyroidism the chances are that it contributed to her carpal tunnel syndrome. However, Dr. Flaschner noted her thyroid disorder was not a new condition. It commenced in 2004.

He noted further in his testimony Stevenson had a history of depression and no significant musculoskeletal complaints between 2004 to 2008. As a result he concluded the hypothyroidism and depression did not appear to be associated with any kind of chronic pain condition. [ 173 ] He indicated the hypothyroidism was a pre-existing condition which did not appear to be associated with musculoskeletal complaints. The accident was an event which was a turning point and it was associated with the onset of her symptoms.

He concluded the accident was the inciting event which led to the subsequent chronic pain condition. [ 174 ] Dr. Flaschner went on to note that after the 2008 index accident, there were documented reports of significant pain complaints, a further loss of motion and muscle tension or spasm. [ 175 ] His testimony indicated his original medical report of 2011 remained unchanged despite any opinions rendered by Drs. Bauman, Chui and Atkinson.

He noted that medical literature suggests higher rates of chronic symptoms following multiple musculoligamentous sprains/strains could be a contributing factor to a chronic pain condition. [ 176 ] In cross-examination he did agree that Stevenson denied a history of depression to him. He advised that had he known about her history of anxiety and depression, he could have obtained some counselling for her. Dr.

Flaschner indicated that he would depend on the family physicians to deal with mood disorders. [ 177 ] He advised that he wished Stevenson would do some stretching, physical therapy and engage in a more active lifestyle. He advised that people who are fitter and more active seem to do better in the long run. [ 178 ] Under further cross-examination he noted that Stevenson had other caregivers. He examined her in the role of a physiatrist to fulfill the role of a diagnostic analysis of her condition. Dr. Flaschner testified Stevenson decided on her treatment options.

In this case he noted Stevenson relied on chiropractic care. He indicated he was not aware if Stevenson was doing her exercises. [ 179 ] It was his testimony that if you were not better by 6 months, chances are that you would be left with some residual symptoms. Finally he advised that Stevenson has a very high level of perceived disability. Mary-Alice Brennan [ 180 ] Ms.

Brennan was declared to be an expert in functional capacity evaluations, cost of future care analysis and physiotherapy. [ 181 ] She prepared a functional capacity evaluation report dated March 7, 2013 based on her assessment of Stevenson conducted on December 10 and 11, 2012. She explained it is a standardized process of assessing an individual’s functional capabilities with respect to the entire body. The assessment was generated through a thorough review of Stevenson’s perception of her abilities and restrictions as a result of her injuries.

Questions were posed on Stevenson’s pain and how such pain interfered with her ability to function. Questions on past health treatments and any consequent benefits or difficulties arising therefrom were put to Stevenson. Stevenson’s perception of her treatment needs or difficulties was canvassed. Issues of Stevenson respecting current medications, housekeeping capabilities, workplace difficulties, and social or recreational activities were investigated in the interview. A physical examination involving observation of any real or perceived physical limitations was conducted.

Functional formal testing of Stevenson’s bodily capabilities or failings also took place. Finally, this total body assessment was compared to standardized methods of observation criteria to determine whether Stevenson was providing a genuine and cooperative effort. Such comparison was important in order to ensure Stevenson’s information, which was primarily subjective, is reliable, truthful and valid. [ 182 ] As a result of the information, Mr. Brennan was able to make predictions on Stevenson’s ability to function in her particular environment and lifestyle.

These predictions provided a foundation for an analysis of any necessary assistance Stevenson required to enable her to carry on the lifestyle she enjoyed prior to the index accident. It is a current assessment of Stevenson’s function and ability to meet the demands of her daily living activities, now and possibly in the future, depending on the future status of her health. Ms. Brennan testified she believed the functional capacity evaluation on Stevenson could be considered valid. [ 183 ] It was Ms. Brennan’s impression that Stevenson had a high degree of perception of the pain she experiences. Ms.

Brennan attributed such a high perception to Stevenson’s high levels of diagnosed anxiety and depression. Such anxiety and depression tend to provide an individual with more significant levels of pain perception which in turn can interfere with the ability to function in all areas of life. [ 184 ] Ms. Brennan noted Stevenson felt she had improved somewhat with past and continuing acupuncture treatment. Stevenson advised overall her symptoms are improved somewhat although she still reported ongoing right low back pain, neck pain, headaches, right arm pain, sleep disturbance and ongoing depression.

[ 185 ] Stevenson detailed to Ms. Brennan an inability to perform heavier chores inside and outside of her house and engage in dynamic recreational activities. [ 186 ] In addition, Stevenson reported she experiences difficulties with personal care and physical activities of daily living. In fact there was no activity that Stevenson perceived she did not have difficulty in performing. [ 187 ] Ms. Brennan advised some of Stevenson’s functional limitations are related to the condition of her right arm and hand.

The latter condition, being caused by existence of the carpal tunnel syndrome, is not casually related to the index accident. However, Ms. Brennan noted in turn, that the right arm is connected to the right shoulder which was injured in the index accident. As a result it is not easy to isolate the condition of the right arm and hand as being solely responsible for those functional limitations generated through the use of the right shoulder, arm and hand. [ 188 ] Ms. Brennan advised that to date Stevenson has not hired any cleaning help.

Instead Stevenson reported she is now restricted to doing approximately 20% of the inside and outside routine chores while her husband completes the remaining 80%. [ 189 ] Ms. Brennan prepared a cost of future care report, which detailed items, services and equipment required and recommended by some healthcare providers to manage the pain or the disability related to the injuries Stevenson suffered in the index accident. [ 190 ] Ms.

Brennan noted the physical examination findings supported the subjective pain complaints but she went on to note in terms of range of motion, Stevenson had slightly reduced neck, shoulder, forearm and wrist mobility. [ 191 ] She further observed Stevenson’s demonstrated and reported limitations were consistent with the document review, physical findings and other information gathered within the context of the functional testing. [ 192 ] The crux of Ms. Brennan’s report is set out at page 20 under a heading entitled, “Summary and Recommendations” in the functional capacity evaluation report filed as an exhibit.

Katherine Thompson [ 193 ] Thompson testified she backed her car out of a parking stall in the shopping mall and she scraped the front end of Stevenson’s vehicle with the back end of the driver’s side of her vehicle. She estimated her vehicle travelled 15 feet before the impact. She estimated her vehicle speed at 5 kilometers per hour before impact. There was no damage to her car. She did not know if her vehicle pushed Stevenson’s vehicle. She did allow that Stevenson’s vehicle could have been pushed 1 foot to 1-1/2 feet. Thompson did not know Stevenson’s seated position. Dr.

Chui [ 194 ] He was qualified as an expert in family medicine and an approved designate under the Minor Injury Regulation , Alta Reg 123/004 under the Insurance Act , RSA 2000, c 1 - 3. He examined Stevenson on April 11, 2013 which was over 4-1/2 year's post-index accident. He testified his examination showed some minor tenderness on the back and around the right side of her neck. The diagnosis was a lower back strain and right shoulder strain, both grade 2. Dr. Chui found his diagnosis fell under WAD II in the Minor Injury Regulation .

He found she did not have a serious impairment but only a mild to moderate impairment at the time of his examination. [ 195 ] Under cross-examination he admitted he had no specific training to become an approved designate under the Minor Injury Regulation other than his experience in medical practice and through independent medical examinations. He received no training on how to conduct a certified examination. He admitted he was not aware of the definition of mild, moderate and severe impairments under the Minor Injury Regulation when he made his report.

He was only aware that a minor strain was in the Minor Injury Regulation . He did not assess for chronic pain as he was not an expert in chronic pain and he was not asked to conduct such an assessment. Dr. Bauman [ 196 ] Dr. Bauman is an experienced orthopedic surgeon who was declared to be an expert in orthopedic surgery, orthopedics and trauma on muscles, bones, joints and associated tissue and structures. He sees patients who present with chronic pain but he refers them to a physiatrist or a rheumatologist for treatment. [ 197 ] He saw Stevenson in April of 2012.

He noted her complaints stressed ongoing issues regarding her neck, right arm and back. The neck on her right side became tense at times dependent on her sleep patterns but could move freely with no discomfort. Her right arm troubled her with numbness of her fingers and tingling radiating up to her shoulder. She was beset with a constant backache, centred in the right lower back region. [ 198 ] Dr. Bauman noted the absence of physiotherapy treatment which he described as the main stay of treatment for soft tissue issues. He noted she demonstrated excellent pain-free range of neck and upper limb movement.

She appeared to walk, hop and squat normally. Dr. Bauman observed no postural abnormality, no slouch or neck rigidity. No tenderness or muscle spasms were noted. Her range of motion was described as excellent. [ 199 ] Compression and traction on her head and neck revealed some expression of subjective pain from Stevenson. Dr. Bauman advised there should be no pain on traction. He suggested her reaction might be a symptom magnification or over-reaction. [ 200 ] His neurological examination revealed no muscle wasting and good motor power in her upper extremities. The AC joints were

normal. She exhibited overall good range of motion with good strength. He found some lack of the terminal part of forward elevation and internal rotation of the rotator cuff muscle which might suggest a diagnosis of tendonitis commonly seen in middle age. No pertinent findings were revealed respecting the lumbar spine other than some minor tenderness over the right sacroiliac area. She exhibited good and fluid range of motion in that area. He found no specific physiological problems in her lower body. [ 201 ] Dr.

Bauman opined the chiropractic treatment notes and the x-ray of the cervical did not demonstrate any significant disruption of the spinal ligaments. [ 202 ] He noted Dr. Curtis’ findings were consistent with some soft tissue injuries of a minor strain type. [ 203 ] Dr. Bauman noted there appeared to be an absence of any nerve root injury, which is an important consideration for an orthopod. He further noted the arm pain and numbness appeared some period of time post-accident. As a result he believed those symptoms were not a result of the accident.

Further, he believed the accident would not produce the carpal tunnel syndrome. [ 204 ] In essence, Dr. Bauman concluded Stevenson sustained a minor injury of a soft tissue strain. [ 205 ] He advised depression will exaggerate or exacerbate any existing symptoms and conversely existing symptoms will cause depression. [ 206 ] He would not have suggested any manipulative chiropractic treatment for soft tissues. Soft tissue injuries heal within a reasonable period of time. [ 207 ] He found Stevenson’s pain was fairly diffuse and non-specific.

Her pain related to posture, activity, wear and tear and the spine due to the aging process. [ 208 ] Dr. Bauman found no objective evidence of injury to the musculoskeletal system or the neurological system. He found no evidence of myofascial pain syndrome due to the absence of any hyper-irritable trigger points necessary to make a myofascial pain syndrome diagnosis. [ 209 ] Finally he opined as a consequence of the accident, there are certainly no indications for her passive treatment modalities for acupuncture and chiropractic attention. [ 210 ] Under cross-examination, Dr.

Bauman advised if a patient was referred to him with some vague aches and pains, he would exclude any organic basis for their existence and if their symptoms were significant enough and disabling enough he would arrange for a referral to a physiatrist. [ 211 ] He admitted if he had seen a functional capacity evaluation report on Stevenson, he would review it and take it into consideration. [ 212 ] He agreed Stevenson had persisting complaints of neck and back pain for some time post-index accident. [ 213 ] He advised there are three degrees of soft tissue injury – minor disruption, partial disruption and complete disruption of tissues. [ 214 ] Dr.

Bauman disagreed with Dr. Flaschner’s diagnosis of chronic myofascial pain due to Dr. Flaschner’s failure to mention any of the of the hallmarks of such a diagnosis – namely, trigger points. Dr. Bauman advised his literature mentioned trigger points are necessary to diagnosis regional chronic myofascial pain. However, Dr. Bauman admitted he would defer to Dr. Flaschner’s opinion. Dr. Atkinson [ 215 ] Dr. Atkinson is an experienced educator and practitioner in rheumatology.

He defined rheumatology as being a sub-speciality of internal medicine focusing on diseases of the musculoskeletal system He regularly sees patients with osteoarthritis (wear and tear of the joints) and patients with rheumatoid arthritis which is 1% of the population. He as well sees patients with degenerative disease of the spine and sees a significant proportion of patients who have soft tissue pain. He advised that soft tissue conditions are as follows: • Tendonitis; • Inflammation of ligaments; • Myofascial pain; • A more diffuse disorder, fibromyalgia. [ 216 ] Dr.

Atkinson testified it is unknown what causes chronic pain. He went on to state that there are lots of things about pain and the workings of the human brain that are not understood. [ 217 ] Dr. Atkinson was declared an expert in rheumatology, a medical internist, and an expert in the etiology and treatment of soft tissue and joint pains including musculoskeletal pain. [ 218 ] He testified that chronic pain is pain that persists for a long period of time. He described myofascial pain as a chronic painful muscle condition associated with localized areas of muscle tenderness, referred to as trigger points.

He advised when one presses on these trigger points, they can cause referred pain in a specified area. [ 219 ] Dr. Atkinson testified that on a spectrum of soft tissue pain you have localized myofascial pain at one end and at the other end

you have a more diffuse myofascial pain which is called fibromyalgia. He further indicated that biopsies of tender areas show no pathology or disease. The tender areas emit pain impulses which are amplified and perceived as pain in the brain (amplification syndromes). He testified that people who have serious injury or damage to tissue and have chronic pain can certainly have central sensitization. [ 220 ] Dr. Atkinson referred to two studies conducted on demolition derby drivers and their associated neck pain.

He noted the collisions [expected and unexpected] occurred at speeds reaching a maximum of 40 kilometers per hour.

He advised that the studies showed that in those circumstances chronic neck pain or chronic musculoskeletal pain did not exist after one or two weeks. [ 221 ] He next referenced a radial neck surgery study of 200 patients who did not experience chronic musculoskeletal pain after healing from their surgeries. [ 222 ] He found it peculiar that a person would develop myofascial pain syndrome in mild whiplash injuries, involving stretching or spraining of the ligaments and muscles supporting the neck, following a minimal car accident.

He related one never sees myofascial pain syndrome following sprains or strains of other body parts such as ankles. [ 223 ] He referenced Sir Austin Bradford Hill, an epidemiologist and a statistician, who developed the 7 rules of causality. [ 224 ] Dr. Atkinson noted Stevenson had a number of medical conditions prior to the index accident. He advised the most striking medical condition was Graves disease – an overactive thyroid gland which was treated by ablation. Ablation caused her to become hypothyroid and she needed thyroid hormone replacement.

He testified her doctors had a difficult time in titrating the appropriate dosage to reach the desired therapeutic range. He advised Stevenson was receiving huge doses of thyroid hormones. [ 225 ] He testified that hypothyroidism can cause fatigue and malaise. It can affect cognitive abilities and can aggravate or cause depression. Long periods of being subject to hypothyroidism can cause muscle aches, stiffness and joint pain. It can magnify those conditions. He advised that hypothyroidism can cause carpal tunnel syndrome. [ 226 ] Dr.

Atkinson noted Stevenson had a long history of adjustment disorder and depression with a number of stressors in her life, such as a battle over the custody of her great-niece and change of working hours which made it difficult to pick up her great-niece from daycare. He indicated that anxiety and depression can magnify pain from any source. [ 227 ] He noted as well Stevenson had a history of poor sleep. He advised sleep deprivation can magnify pain. [ 228 ] Dr. Atkinson referenced Stevenson’s fall from a kitchen table.

His opinion indicated such a fall would be much more severe than a trivial parking lot accident. While I allowed the question, I place no weight on the doctor’s opinion. He was not qualified as a bio- mechanical engineer. He did not know the various physical factors involved in either the index-accident or the kitchen table fall. He did not know how far she fell or how she fell from the kitchen table. The parameters of the hypothetical question posed to him were vague and sketchy. His evidence was based on a foundation that it was merely common sense.

But I note his evidence was based on speculation cloaked in the mantra of common sense. His evidence in comparing the two accidents was not based on hard facts. His evidence in assuming Stevenson had no treatment after the table fall was again based on speculation in the absence of facts. [ 229 ] On his examination of Stevenson and from his review of her records, he diagnosed her to have suffered a whiplash associated disorder of her neck in the index accident. He characterized it as a WAD II whiplash initially.

Later, in response to a question posed by me in the trial, he changed his evidence to categorize it as a WAD I whiplash at the most. He advised a WAD I whiplash is a pain in the neck with no limitation of movement. A WAD II whiplash he defined as a pain in the neck with limitation of movement. [ 230 ] Dr. Atkinson’s evidence indicated the whiplash caused pain and some limitation of motion and tenderness of her paracervical muscles. At most Dr. Atkinson believed it was a minor sprain of the soft tissues of her cervical spine for which she should have recovered in a number of weeks.

He found no scientific reason for a mild cervical sprain to lead to chronic pain. [ 231 ] He noted at the time of his examination of her she had symptoms of chronic regional myofascial syndrome in her neck, upper back and right lumbar region. Localized areas of deep muscle tenderness were present. [ 232 ] Dr. Atkinson testified the question which needed to be addressed related to the cause of her symptoms. He referenced the 7 rules of causality as set out in Sir Austin Bradford Hill’s work of Rules of Scientific Evidence to Determine Causality Proc. Royal SOC Med 1995; 58: 295-300.

The first rule looks to the presence of any evidence from experiments in humans. Dr. Atkinson advised there have been no studies which have identified a chronic, painful muscle pathology following trauma in whiplash patients. [ 233 ] Rule 2 is not applicable in this case. [ 234 ] Rule 3 asks whether the temporal relationship is correct. Dr. Atkinson answered the event of the index accident was not the cause of Stevenson’s chronic regional myofascial syndrome. [ 235 ] The 4 th rule involves a dose-response gradient.

This relates to correlation between the intensity of the index accident and the intensity of the symptoms. Dr. Atkinson testified there was no dose-response gradient because in his opinion a very trivial accident caused significant pain. [ 236 ] Rule 5 asks whether the association makes epidemiological or biological sense. As a scientist he found it defies logic that a trivial bump could cause total body pain. [ 237 ] Rule 6 asks whether the association is specific. He testified that is not the case here in that most myofascial pain seen in medical practice is of unknown cause.

Myofascial pain is a common condition. He further testified the etiology of myofascial pain syndrome is unknown. This area of his testimony causes me some difficulty with respect to his application of the 7 rules to the question of what is the cause of her symptoms. His evidence indicated she had symptoms of chronic myofascial syndrome at the time of his

examination. Yet in his application of rule 6 he testifies most myofascial pain is of unknown cause. If it is of unknown cause, he cannot apply the 7 rules to identify the cause of her symptoms. Without being able to identify the cause he is unable to rule out or opine that his WAD II or WAD I diagnosis was not the cause of her chronic pain symptoms. [ 238 ] Finally rule 7 relates to whether the association is analogous to previously proven causal associations. In this connection he advised no such analogy exists in the literature.

He concluded there is no evidence that trauma causes myofascial pain syndrome. [ 239 ] In essence he testified the alleged relationship between the index accident and the myofascial pain syndrome fails each of the 7 rules of causality. [ 240 ] I note that his seven rules of causality apply to a test for causality from a medical view used by epidemiologists. In my view his medical rules of causality are not similar to or applicable to the legal test for causality. [ 241 ] Dr. Atkinson further admitted he had a hard time understanding how acupuncture can be beneficial in any way at all.

He indicated it reminded him of medicine’s medieval concepts of the Middle Ages. Dr. Atkinson referenced a British Medical Journal 2009

article which concluded it is uncertain whether needles placed at any site reduces pain independently of the psychological impact of the treatment ritual. [ 242 ] Dr. Atkinson commented Stevenson’s many psycho-social issues may be contributing to her symptoms. He gave evidence of symptom expectation in people suffering from whiplash. He indicated in today’s culture the term “whiplash” is ingrained in our vernacular resulting in people expecting to get long term pain. He observes society seems to have conditioned people for such expectations.

However I note there was no evidence adduced of his expertise in the psychological or sociological aspect of today’s culture respecting society’s expectations. Accordingly I find this evidence is outside of his area of expertise and I attach no weight to it. [ 243 ] Dr. Atkinson commented on Stevenson’s numerous chiropractic treatments which he believed did not appear to provide any lasting relief. [ 244 ] He noted her long history of anxiety and depression was a significant aggravating factor in her chronic pain.

Further he found Stevenson’s profound hypothyroid condition would aggravate her musculoskeletal aches and pains. [ 245 ] Dr. Atkinson found it peculiar that a person would develop myofascial pain syndrome in a mild whiplash injury involving stretching and straining of the ligaments and muscles supporting the neck following a minimal car accident. [ 246 ] Under cross examination Dr.

Atkinson testified that any treatment for patients with chronic pain that helps relieves symptoms of pain and helps make them more functional is a good thing, even if it is temporary. [ 247 ] Under cross examination it was pointed out to Dr. Atkinson that his Demolition Derby Study was flawed in that the study itself indicated there were various sources o

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