Camacho v Lacroix, 2023 ABKB 610

Court of King’s Bench of Alberta Citation: Camacho v Lacroix, 2023 ABKB 610 Date: 20231101 Docket: 1101 02884 Registry: Calgary Between: Katia Camacho Plaintiff - and - Timothy Lacroix Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice N.E. Devlin _______________________________________________________ I. Introduction [ 1 ] The Plaintiff, Katia Camacho, was involved in a rear-end motor vehicle collision on March 25, 2009, that occurred along 17 th Avenue Southwest in Calgary. Some fourteen years later, her action came before this Court for trial.

Early in the trial, the Defendant, Timothy Lacroix, admitted liability. What remains in issue is Ms Camacho’s damages. [ 2 ] Ms Camacho claims to suffer chronic pain, particularly in her neck and right shoulder, along with right arm weakness and tingling, headaches, sleep disruption, concentration and memory issues, and a temporomandibular joint (“TMJ”) soft tissue injury requiring a splint. II. The Collision [ 3 ] Ms Camacho was driving her 2002 Land Rover Freelander along 17 th Avenue when she stopped mid-block for a pedestrian crossing the road. Mr Lacroix was behind her in his 2007 Pontiac Torrent.

He could not stop in time and rear-ended Ms Camacho’s vehicle (the “Collision”). [ 4 ] The impact from the Collision was of moderate intensity. The photographs show that both vehicles sustained damage above the level of a mere fender-bender. On Ms Camacho’s vehicle, the rear-mounted spare tire was bent into back door. The fender and grill of Mr Lacroix’s vehicle were broken apart, with damage extending into the radiator area.

Repair costs were $3,822.16 for Ms Camacho’s vehicle and $8,523.43 for Mr Lacroix’s vehicle. [ 5 ] At trial, Ms Camacho described the impact of the Collision as follows: Like a really hard force, pushed me from my chair, make my head bounce back and forth, and it was really strong to make me – even my glass – my sunglasses flew – came off from my face and hit the – the front of my car. And I was wearing my seatbelt. It was enough for the make me a mark on my chest, the seatbelt, because (INDISCERNIBLE) somebody pushing me with a really, really strong force.

[ 6 ] Mr Lacroix’s description of the Collision was unremarkable. He “felt the jolt or impact” but said that he was not thrown in any direction in the vehicle and that no part of his body struck any part of the vehicle. He did not recall whether his seatbelt locked up. [ 7 ] Neither party sought medical attention at the scene, and both went on their way. Ms Camacho testified that she spoke to Mr Lacroix in the immediate aftermath of the Collision and told him that she had a headache and was really nervous. Mr Lacroix testified that he asked Ms Camacho how she felt and that she seemed fine at the time. III.

The Plaintiff [ 8 ] Ms Camacho was 32 years old at the time of the Collision and is now 47 years old. [ 9 ] Ms Camacho was born in Barranquilla, Colombia on July 3, 1976, into a professional family. She was trained as a doctor and graduated from medical school in Columbia in 1999. She enrolled in the army, which was a requirement for obtaining her medical license. She worked initially in a small town in a remote area. At one point, she was kidnapped by the FARC guerillas and held hostage for 12 days. During this period, one of her fellow hostages was raped and killed in front of her.

Following her release, she moved around to different cities in an attempt to avoid guerilla activity. [ 10 ] During Ms Camacho’s time with the army, she sustained an injury. A soldier dropped a grenade on some rocks which caused shrapnel that hit Ms Camacho in the forehead. She described the injury as a “kind of cosmetic thing” and not a traumatic injury. In 2010, she was referred to a plastic surgeon to remove scar tissue resulting from that injury. [ 11 ] In December 2005, Ms Camacho came to Canada as a refugee, following her brother who was also a physician and had qualified to practice medicine in Canada.

At that time, she spoke minimal English, so she enrolled in language classes. She found work as a personal care assistant in a nursing home, primarily working night shifts. [ 12 ] Ms Camacho acknowledges that she had episodes of severe depression prior to the Collision. The first of these occurred when she was 17 years old and in her first year of university in Columbia. She described being very stressed. She attempted to take her life by consuming Tylenol tablets. She had a further bout of serious depression when she was 22.

She discovered that her father was having an affair and that he no longer wanted to continue to financially support her studies. Despite these adversities, she completed her education. [ 13 ] Ms Camacho suffered a third major depressive episode in Columbia when she and her then husband decided to separate but were forced by circumstances to continue living under the same roof for approximately three months. She described feeling “hopeless, useless, and very depressed,” but not suicidal.

However, during a medical history taken after she moved to Calgary, Ms Camacho described being hospitalized for cutting her wrists. Ultimately, she moved back to her parents’ home. [ 14 ] Ms Camacho’s mental health struggles continued after she came to Canada. The stress of being in a foreign place, working and studying constantly, sleeping poorly, and suffering continuing marital difficulties with her estranged husband who remained in Columbia took a toll. [ 15 ] In March 2008, there was a very serious incident that led Ms Camacho’s roommate to call police and paramedics to take Ms Camacho to hospital.

There is some dispute as to precisely what occurred. Ms Camacho testified that she was considering hanging herself with a rope but denied actually attempting suicide. However, hospital records indicate that she had attempted to hang herself with a belt and that there were ligature marks around her neck. She was certified under the Mental Health Act and hospitalized for approximately a week. [ 16 ] I find that this incident was a full-blown suicide attempt as described in the hospital records. Ms Camacho’s reticence about this deeply personal event is understandable.

I do not find that she wilfully misled the Court. Rather, I find that she is not a reliable reporter of her medical history in the area of mental health. Her evidence may well accord with the construct of these events in her memory, but it is not consistent with the objective evidence regarding the severity of the situation. [ 17 ] In September 2008 there was another incident stemming from a disagreement that Ms Camacho had with her roommate. Police records indicate that Ms Camacho had taken a number of pills with alcohol and was miming stabbing herself in the thigh with a kitchen knife.

She was taken to hospital but was released within 24 hours. Ms Camacho acknowledges being depressed at that time but denies taking pills or threatening to kill herself. [ 18 ] On February 15, 2009, Ms Camacho attended at the Sheldon Chumir Health Centre due to a work accident the previous day where she had fallen on her outstretched right hand. The physician’s notes indicate that she had reported a sore right shoulder. She was given a physician’s note indicating that she would require light duties at work for two weeks even though she was left-handed.

She testified that there were no light duties available, so she was given a few days off work instead. On February 20, 2009, she followed up with her family physician, Dr Darwish. She reported to him that the right shoulder pain was almost resolved. [ 19 ] Ms Camacho suffered workplace injuries on two other occasions, both of which occurred after the Collision. In February 2011, she was attacked by a resident at the nursing home where she worked and sustained various scratches and bruises and a twisted arm.

In May 2012, she injured her lower back, though the evidence relating to the circumstances are somewhat unclear.

Ms Camacho testified that she was trying to prevent a resident from falling, but the incident report states that she twisted her back trying to avoid the resident when he became aggressive. [ 20 ] In August 2012, Dr Darwish, completed a Workers’ Compensation Board form indicating that Ms Camacho had no current complaints and was not prevented from performing her work. [ 21 ] Despite the effluxion of time since the Collision and the extensive and multifaceted treatment Ms Camacho received, Ms Camacho testified that she continues to suffer from a number of symptoms, including headaches, pain in her back and shoulder, difficulty

sleeping, trouble with concentration and memory, and pain in her jaw. Because of her TMJ issues, she continues to wear a night guard and avoids “hard food.” She takes several medications, including gabapentin and Tylenol for pain, and levothyroxine for thyroid issues. She has also taken the antidepressant venlafaxine “on and off.” [ 22 ] It appears from the record that there have been significant gaps in Ms Camacho’s treatment.

For example, between 2013 to 2016 when she was living in British Columbia and Saskatchewan, Ms Camacho testified that she did not see any specialists and did not receive any physiotherapy or massage treatment. IV. Post-Collision Treatment [ 23 ] Several health care professionals testified with respect to treatment Ms Camacho received following the Collision. Some of those witnesses were qualified as experts and others testified in their capacities as Ms Camacho’s treatment providers. Mr Lacroix takes issue with the testimony of some of these witnesses, particularly Ms Nguyen and Dr Vant.

Mr Lacroix submits that that they were “obviously sympathetic” to Ms Camacho and “acted more as advocates rather than objective expert witnesses.” I do not agree. With the exception of Dr Darwish, none of Ms Camacho’s treatment providers were qualified as experts and only testified to their experience with her. I find that each of them attempted to report accurately their recollections of Ms Camacho’s treatment, which was no simple task given the intervening passage of time. A. Uyen Nguyen [ 24 ] Ms Uyen Nguyen is a physiotherapist who treated Ms Camacho shortly after the Collision.

Ms Camacho presented with predominant symptoms of pain on her right side with tightness and stiffness in her neck and back. While at the early acute stage, it is difficult to make a diagnosis because “everything is so sore” and the underlying cause can be masked by the surface soreness and inflammation, Ms Nguyen’s notes indicate a diagnosis of WAD 2, being whiplash associated disorder at grade 2 on a scale of 4. Ms Camacho’s subjective reporting was consistent with Ms Nguyen’s objective observations. [ 25 ] Ms Nguyen provided 21 treatments to Ms Camacho, which was the maximum that was covered by insurance.

She described Ms Camacho as very compliant and anxious to be back at work. In her concluding report at the end of the treatments, Ms Nguyen noted that Ms Camacho still had stiffness in her neck, pain in her jaw, and headaches. She testified that “...as we were treating the ongoing issues, underlying issues continued to surface.” She was unable to identify the root cause of Ms Camacho’s symptoms. It was her understanding that Ms Camacho was unable to afford more physiotherapy treatments, but that Ms Camacho would follow up with a doctor about ongoing pain in her jaw.

Ms Nguyen gave Ms Camacho an exercise program to continue at home. B. Dr Nidal Darwish [ 26 ] Dr Darwish was Ms Camacho’s family physician until Ms Camacho moved to the United States and treated Ms Camacho both before and after the Collision. He has a very large practice and retained no memory of her beyond what was contained in his chart notes. He acknowledged that he was unaware of Ms Camacho’s March 2008 suicide attempt. [ 27 ] With respect to treatment after the Collision, on April 2, 2009, Dr Darwish saw Ms Camacho and noted that she was attending physiotherapy.

He prescribed an anti-inflammatory and a muscle relaxant. On April 17, 2009, he saw Ms Camacho and noted that she continued to have neck pain. He prescribed Tylenol 3 and referred her to Dr Van Goor who, as he understood it, dealt with musculoskeletal pain and accidents. Dr Van Goor has passed and was unable to testify.

I do not find that this impaired my understanding of the case to any material extent. [ 28 ] On August 17, 2009, Dr Darwish referred Ms Camacho to a plastic surgeon with respect to the grenade shrapnel injury to Ms Camacho’s forehead. [ 29 ] With respect to the February 2009 shoulder injury Ms Camacho sustained at work, Dr Darwish opined that the injury had resolved almost completely prior to the Collision, with only some mild tenderness remaining.

This was consistent with Ms Camacho’s reporting to Dr Darwish. [ 30 ] Dr Darwish was qualified as an expert in the field of general medical practice to give medical and diagnostic opinions. He provided a report that he authored in 2014 in which he concluded that Ms Camacho suffered continuous back pain secondary to the Collision. He characterized it as chronic pain and noted that it affected her daily activities, her work, and her emotional state.

His professional opinion was that “patients such as Ms Camacho who suffer from chronic neuropathic pain of the neck, shoulder, and upper back for a long period of time have a poor outcome.” In light of this conclusion from 2014, Dr Darwish testified that he would not be surprised to hear that Ms Camacho continues to suffer from chronic pain in her neck, shoulder, and upper back. C. Dr Ted Vant [ 31 ] Dr Vant is a family physician with a special interest in motor vehicle accidents.

He practices at the Accident Rehabilitation Centre (“ARC”), which he described as “a multidisciplinary centre whose sole purpose is to deal with individuals who have been injured by a motor vehicle collision.” On Ms Camacho’s initial visit to ARC on October 2, 2009, Dr Vant noted Ms Camacho’s current complaints included C-spine headaches, right arm discomfort and numbness, and T-spine bilateral erector spinus spasm. He noted trigger points in Ms Camacho’s trapezius and infrascapular areas. He noted that Ms Camacho had been discharged from physiotherapy after 21 treatments and was still symptomatic.

His notes indicate that Ms Camacho’s x-rays were normal but that an MRI of Ms Camacho’s cervical spine performed on October 10, 2010, showed “bulging of the annulus fibrosus at C3-4, C4-5, and C5-6,” which indicates that there had been injury to that area. He diagnosed a WAD 2 injury.

[ 32 ] Because of her right arm issues, Dr Vant referred Ms Camacho to Dr McNeil for nerve testing. Dr Vant testified that this testing showed that the problem was not with the ulnar nerve in Ms Camacho’s elbow, which indicated to him that the problem was in the cervical spine. [ 33 ] Dr Vant described the various treatments Ms Camacho received at ARC, which included further physiotherapy and massage. The physiotherapy notes indicate that Ms Camacho was provided with resistance bands for exercising at home.

Dr Vant noted that the massages Ms Camacho received were not pleasant and relaxing, but rather involved aggressive and painful techniques such as active release. [ 34 ] In addition to physiotherapy and massage, Ms Camacho was given more invasive treatments. Dr Vant performed trigger point injections and referred Ms Camacho elsewhere for both facet joint injections and radiofrequency ablations, all of which he described.

Trigger point injections involve injecting freezing into specific muscles with a “reasonable amount of force.” Facet joint injection involves inserting a needle into the facet joint under fluoroscopic guidance, and both freezing and corticosteroid injected. Ablation involves inserting a needle past the facet to the nerve and heating the needle to 50 – 80 degrees Celsius to thermocoagulate the nerve. The idea behind this technique is to cauterize the sensation in the nerve for pain management purposes without impairing motor function.

The technique is non-permanent, as the nerve regenerates, usually in a manner which makes subsequent ablations more difficult. [ 35 ] Dr Vant was shown the cervical facet joint injection reports from EFW Radiology. He noted that these injections are painful, but that the freezing offers some relief. The hope is that the corticosteroid will provide further relief over time. However, regardless of the extent of relief, this technique can be performed only every three months.

Ms Camacho had some improvement with the facet joint injections, but not long-lasting relief. [ 36 ] In 2011, a medial branch block procedure was performed on Ms Camacho as a diagnostic measure to determine if ablation was appropriate. Dr Vant was asked about a report of that procedure prepared by Dr PS Ubhi, who was not called to testify. Under “Interpretation”, Dr Ubhi’s report states as follows: There is no electrophysiological evidence to suggest the presence of an entrapment neuropathy in the upper extremities.

There is no evidence to confirm a diagnosis of either carpal tunnel syndrome or an ulnar neuropathy on either side. There is no evidence to suggest the presence of a single level acute radiculopathy however there are some changes that are apparent in all of the muscles tested that appear to be chronic in nature. She does have changes that suggest the presence of damage to the cervical roots likely at the root level as opposed to more distally. She also has myofascial trigger points in a lot of the shoulder girdle and neck muscles and I feel that her symptoms are predominantly coming from these muscles.

Correlation of these findings with her MRI and other investigations and clinical examination is recommended. [ 37 ] Dr Vant reviewed the reports of the ablation procedures, noting that one of the doctors who performed that procedure also indicated that there appeared to be damage to the cervical roots. Dr Vant explained that this means that Ms Camacho’s pain “is initiated by the cervical roots leading to neck discomfort, right shoulder pain, right arm weakness.” [ 38 ] An ARC record dated April 9, 2015, indicated that the ablation was helpful for approximately a year, but that the pain subsequently returned.

Dr Vant referred Ms Camacho back to EFW Radiology for a repeat procedure. A further MRI was required prior to the repeat procedure. [ 39 ] In late 2016, Dr Vant noted that Ms Camacho continued to have substantial discomfort and limitation in both her cervical spine and her right shoulder and arm.

Pain relief from the ablations lasted less than a year and facet joint injections were required between ablations. [ 40 ] In all, the ARC records show that Ms Camacho had eight trigger point injections, seven facet joint injections, two medial branch blocks, and two radiofrequency ablations. [ 41 ] Dr Vant also noted that Ms Camacho complained of pain in her jaw. He referred her to Dr Shariff, a specialist in TMJ disorder. He acknowledged that he did not refer her to a psychologist or psychiatrist for chronic pain counselling and that he was not aware of her prior suicide attempt. D.

Dr George Deimel [ 42 ] Dr Deimel is a physiatrist in Arkansas to whom Ms Camacho was referred in 2019. He described his initial review of Ms Camacho’s case. Unfortunately, an error resulted in him being provided with a thoracic rather than a cervical MRI. Nevertheless, he diagnosed Ms Camacho with cervical radiculopathy, which is a nerve root issue. He concluded that the pain around her shoulder blade was referred neck pain. [ 43 ] Dr Deimel ordered a cervical MRI which was performed on January 19, 2023, shortly before trial.

He described the main finding from that MRI as “moderate to severe right C5-6 neural foraminal stenosis secondary to disc osteophyte formation and right uncovertebral hypertrophy.” When asked to put this in less technical terms, he stated: I would tell the patient is you have bone spurs.

So you have a disc bulge and you have bone spurs and those two things are heading in the opposite – are heading towards each other and the nerve is caught in between. [ 44 ] Dr Deimel stated that these were “objective findings on the MRI that supports [Ms Camacho’s] cervical radicular pain complaints.” Dr Deimel confirmed his conclusions by performing the Spurling’s maneuver. Dr Deimel recommended an interlaminar epidural steroid injection, which involves going inside the spine and injecting steroids as close to the nerve roots as possible. This was performed shortly before trial.

Ms Camacho developed a headache, which indicated leakage of the cerebral spinal fluid. This was addressed buy performing an epidural blood patch, in which her own blood was injected into her spine, forming a clot that stopped the

leakage. [ 45 ] With respect to the genesis of her injuries, Dr Deimel stated as follows: Yeah. I mean, there’s certainly the mechanism of injury in question from the previous motor vehicle crash, and these findings can certainly be correlative. You know, again, I think – when I look at it, it is, you know, where is her – so I have to start at the other end. I don’t start with what happened. I start with what is happening and I kind of work my way backwards. And so she comes in with these pain complaints and I have to decide, well, where could that pain be coming from.

And again, her symptoms have just been very consistent to me of what she was feeling. And it was very – I felt straightforward from the very beginning that this was a neck and nerve root issue. And so that’s what led to the cervical spine MRI. And so – and the cervical spine MRI showed findings that would indicate a breakdown of that segment at the level that would cause all these symptoMs And so if we take another step back as, well, what can cause that whiplash injury, absolutely. And it’s – it’s not like the rest of her spine is affected.

It is primarily in that one level that is matching up again very consistently with our pain complaints. So it’s not like she has a horrible degenerative spine. It is really isolated to that one level. E. Dr Shairoz Meghji [ 46 ] Dr Meghji is a general dentist. She first met with Ms Camacho on November 13, 2009. She testified that Ms Camacho did not tell her of any pre-existing problems. Her examination indicated that Ms Camacho had good oral hygiene and some cracked molars. She also noted that Ms Camacho had been having a TMJ problem and she intended to refer her to Dr Shariff for that.

Dr Meghji’s treatment plan included some fillings, at least one crown, extraction of a wisdom tooth, and a night guard. Ms Camacho saw Dr Meghji for several appointments in respect of this treatment plan. [ 47 ] Dr Meghji testified that she had had a number of patients who had sustained broken teeth in motor vehicle accidents, and she felt that there was trauma to Ms Camacho’s teeth that stemmed from the Collision. During cross-examination, she acknowledged that she had not seen Ms Camacho prior to the Collision and could not be certain that the Collision was the cause of the cracked molars.

She agreed that Ms Camacho’s bite was normal but was deviating when she opened her mouth, which could be a muscular problem. She acknowledged that Ms Camacho showed some slight bruxism. [ 48 ] Dr Meghji was unaware of Ms Camacho’s suicide attempt or of the injury to her face from the grenade. F. Dr Galib Shariff [ 49 ] Dr Shariff is a dentist who practices primarily in the field of TMJ disorders. Ms Camacho was referred to him by both Dr Vant and Dr Meghji.

Dr Shariff saw Ms Camacho in January 2010 for a single visit. [ 50 ] Dr Shariff testified that when he sees patients who have been in motor vehicle accidents, he has them complete a form to try to determine which of their symptoms are pre-existing. Since he saw Ms Camacho, his office has modified the form because it was confusing to patients. [ 51 ] Dr Shariff concluded that 69% of Ms Camacho’s jaw pain was due to the Collision. He noted some slight chipping and wear on Ms Camacho’s teeth. He measured the extent to which she was able to open her mouth, which appears to have been roughly normal.

He diagnosed Ms Camacho with temporomandibular disorder but did not treat her. His proposed treatment included physiotherapy and a night guard. V. Medical Experts [ 52 ] In addition to Ms Camacho’s treatment providers, each side called one witness who was qualified as a medical expert. A. Dr Maryana Apel [ 53 ] Dr Apel was called by Ms Camacho and was qualified as an expert in the field of chronic pain and physical medicine and rehabilitation. She provided an independent medical examination report dated January 17, 2015.

She based her opinion on a questionnaire completed by Ms Camacho, an interview, and physical examination. She diagnosed Ms Camacho with myofascial chronic regional pain syndrome of the upper right quadrant. [ 54 ] During cross-examination, Dr Apel was asked about the injury to Ms Camacho’s right shoulder that was sustained before the Collision. Her opinion was that the injury was unrelated to Ms Camacho’s ongoing complaints because it was a different type of injury. [ 55 ] Dr Apel drew a distinction between subjective and objective findings.

For example, while she acknowledged that determinations about pain are largely based on a patient’s self-reporting, trigger points have objective characteristics. Waddell signs can also be used to determine if a patient’s pain is non-anatomical. She repeats her testing in different ways with some distraction of the patient’s attention to see if the presentation is consistent. [ 56 ] When asked about Ms Camacho’s prior mental health issues, Dr Apel testified that certain emotional difficulties make it easier to develop chronic pain.

If a person already has emotional difficulties such as depression, anxiety, or post-traumatic stress disorder and becomes injured, the chance of that person developing chronic pain is greater. Emotional difficulties and pain tend to act reciprocally, making it important to treat both. Pain and poor sleep have a similarly reciprocal relationship. [ 57 ] She put the relationship as follows:

Because pain is suffering. So if we have more suffering before, additional suffering makes – it is just not a simple sum. And the same as afterwards. But afterwards now we have already pain, so now if you have previously poorly controlled psychological issue, now it’s even more difficult to control them. Because now you have another – another significant problem to conquer. [ 58 ] Dr Apel testified that the criterion for diagnosing pain as chronic used to be a duration of six months, but more recently has become three months.

She stated that if a person has pain for years, sensitization develops in which the body’s neural pathways are changed and the person becomes more sensitive to potentially painful stimuli. At that point, a cure is unlikely. [ 59 ] Dr Apel expressed concern about over-reliance on “passive interventional treatment” such as physiotherapy or massage and the proper role of treatments such as trigger point injections, facet joint injections, and ablations. The placebo effect is a factor in the perceived success of these treatments.

Ablation does not leave the treated nerve permanently insensate; in her words, “nerve grows back.” She opined that these treatments provide only temporary benefit and should be used to create a pain-free window for more active rehabilitation. She stressed the importance of a general exercise program of cardiovascular conditioning, core strengthening, and stretching. Ms Camacho told her that her exercise was limited to jogging. B. Dr Richard Wei-Chi Hu [ 60 ] Dr Hu was called by Mr Lacroix and was qualified as an expert in the fields of orthopaedics, spinal disease, and spinal injury.

He provided an independent medical examination report dated April 18, 2017, based on an examination of Ms Camacho on March 13, 2017. His opinion was that Ms Camacho had suffered a WAD 2 injury to the cervical spine, but that the symptoms of that injury had resolved by March 2012 and were not a persistent effect of the Collision. Rather, her reported persistent symptoms were the result of degenerative changes in her neck. [ 61 ] Dr Hu testified that he found Ms Camacho’s range of motion very good. He did note local tenderness but said that it was not severe.

When asked about Ms Camacho’s arm pain, Dr Hu opined that, while that type of symptom can arise from the neck area, it is more commonly located in the elbow. Dr Hu was asked about Ms Camacho’s suicide attempt. He stated that hanging can give rise to injury to the musculoskeletal structures of the spine and described the result of hanging as “a combination of injury to the muscle, ligament, tendons, as well as the bones in the neck.” [ 62 ] Dr Hu reviewed the reports of both Dr McNeil and Dr Ubhi and asserted that both indicated no evidence of neurological abnormality.

He stated that this implies that the origin of Ms Camacho’s symptoms is unclear. [ 63 ] Dr Hu noted that the medical records indicate periods in which Ms Camacho was not in pain. He pointed to a physiotherapy note dated May 22, 2009, in which Ms Camacho reported that her neck was feeling great and was not painful. Further physiotherapy notes from December 2009 indicated significant improvement. By contrast, Ms Camacho had reported to Dr Darwish in September 2009 that she was in pain.

From this, Dr Hu concluded as follows: So, the sort of presentation and pain symptoms are of an upward spike, and then a downward improvement. And, so, that pattern of up and down variability is not usually related to an acute injury or the effects of an acute injury. It is much more representative of the sort of wear and tear process we go through in our lives. And the spiking of symptoms. And, so, the fact that she’s had significant improvement or, in fact, reported no pain, implies that any of the acute symptoms that she might have had from the collision have – had resolved.

And that potentially into the future that a waxing and waning kind of process may occur because we all do experience that as time goes on. [ 64 ] Dr Hu commented on Ms Camacho’s MRIs from October 10, 2010, July 2015, and March 2016, noting some mild disk bulging, but no neurological compression in all three. He found no evidence of cervical nerve root compression. Ms Camacho’s MRI from January 19, 2023 showed degenerative change that had not previously been reported. This confirmed his opinion that there was an ongoing degenerative process.

His prognosis was that Ms Camacho would continue to experience up and down symptoms that represented a degenerative aging process. He opined that the most effective treatment for this was maintaining a focus on physical activity and that there were no indications for more invasive management. [ 65 ] During cross-examination, it was put to Dr Hu that on April 16, 2012, Ms Camacho had reported being in pain when she attended for a facet joint injection, which was after Dr Hu opined that she had recovered.

Dr Hu was asked if this was because of a new injury, the waxing and waning to which Dr Hu had referred, or because Ms Camacho had not in fact recovered from the Collision. Dr Hu acknowledged that it was impossible to tell definitively. [ 66 ] Dr Hu acknowledged that he did not perform the Spurling’s maneuver on Ms Camacho and stated that this was because “It’s a painful procedure, and I try to avoid irritating nerve symptoms that may already be there.” VI. Findings [ 67 ] Ms Camacho is an intelligent and hardworking woman who has had a difficult life interspersed with traumatic events.

However much sympathy one may have for her, she is entitled to compensation only if the evidence she has put before the Court establishes on a balance of probabilities that she has injuries that were caused by the Collision. [ 68 ] Mr Lacroix cited several cases that he referred to as “similar fact cases on causation.” In each case, the plaintiff’s credibility was at issue because of inconsistencies and/or exaggerations in their evidence. In each case, the Courts found that the plaintiff’s ongoing complaints could not be attributed to the accidents at issue.

I do not find those cases analogous to the matter before me. [ 69 ] The evidence from Ms Camacho and her treatment providers demonstrates that Ms Camacho has ongoing symptoms. While Ms Camacho is not an accurate historian in respect of her mental health episodes, I accept that she has had ongoing pain and difficulties with sleep and concentration. Ms Camacho’s description of her current symptoms provides an accurate picture of what she experiences. I

have no hesitation in finding that she is not malingering. [70] The gaps in Ms Camacho’s treatment records sometimes makes it difficult to know what, if any, treatment Ms Camacho waspursuing. As Dr Hu pointed out, there have been times when Ms Camacho has reported an amelioration in her symptoms. Nevertheless,she has repeatedly sought out invasive and painful treatment. I find that this is consistent with a genuine experience of, and desire toalleviate, ongoing pain. [71] Ms Camacho’s evidence is consistent with that of her treatment providers.

The injections and ablations provided reliefconsistent with the diagnosis of cervical radiculopathy. Most significantly, Ms Camacho’s symptoms are consistent with Dr Deimel’sfindings on the 2023 MRI and on his performance of the Spurling’s maneuver. [72] I reject Dr Hu’s conclusions. He was unable to explain why Ms Camacho would continue to subject herself to painfultreatments years after the point he opined that her symptoms had resolved.

He acknowledged that he was unable to determine whetherher ongoing pain should be attributed to a new injury, degeneration, or a continuation of the problems arising from the Collision. He alsofailed to perform the Spurling’s maneuver that Dr Deimel testified confirmed cervical radiculopathy. I find unsatisfying his explanationthat he was trying to avoid irritating nerve symptoms that might already be present given that his task was to evaluate Ms Camacho’sexisting condition.

He also could not adequately account for the ostensibly linear connection between the Collision, Ms Camacho’songoing complaints of pain that were consistent with a cervical nerve injury, Dr Ubhi’s diagnosis of cervical spine damage in 2011, andthe physical observations on the 2023 MRI consistent with observable physical change in the very structure from which the complained-of pain would emanate. [73] Mr Lacroix pointed to Ms Camacho’s use of medications that had not been prescribed to her. In particular, he focused on MsCamacho’s use of clonazepam that she obtained from her mother in Colombia.

He noted that Dr Apel testified that clonazepam can causesome of the same symptoms Ms Camacho attributes to the Collision, including drowsiness, poor concentration, and memory problems.Ms Camacho asserts that there is no evidence that she has taken non-prescribed medications since March 2008.

She insisted that sheobtained clonazepam from her mother only while she was in Colombia and did not use it when she was in Canada. [74] It is clear that Ms Camacho has in the past used medications that were not prescribed for her, and her recitation of themedications she has taken at various times is often vague and confused.

As with descriptions of her mental health, I find that MsCamacho is not an accurate historian in this regard. [75] Mr Lacroix argues that because Ms Camacho is an unreliable historian, combined with the fact that she has engaged in selftreatment, it is difficult to obtain a clear history of her pre-existing medical issues and treatment, and likewise difficult to obtain a clearhistory of her post Collision issues and treatment. I agree that the poor quality of Ms Camacho’s narrative makes tracking her treatmenthistory more difficult.

However, I do not find it fatal to her claims of chronic pain or the causal link between that pain and her sleep andcognition complainants. [76] Taking all of the evidence before me into account, I find that Ms Camacho does suffer from chronic pain. I accept Dr Apel’sconclusion that she has myofascial chronic pain syndrome and Dr Deimel’s conclusion that this stems from an injury to the C5-6 cervicalspine. [77] Having accepted that Ms Camacho suffers from chronic pain, I also find that her chronic pain is causally linked to theCollision.

To be compensable, Ms Camacho’s chronic pain must be causally linked to the Collision. There appears to be no dispute thatMs Camacho is required to demonstrate that she would not be suffering from chronic pain “but for” the Collision: Athey v Leonati, (SCC), [1996] 3 SCR 458. [78] I find that causation has been proven on balance of probabilities. Dr Deimel found abnormalities in Ms Camacho’s cervicalMRI and testified that “I think that there is probably association with the accident reported.” His findings are consistent with Dr Ubhi’s2011 report indicating damage to the cervical roots.

I reject Dr Hu’s assertion that Dr Ubhi noted no neurological abnormality and hisconclusion that Ms Camacho’s symptoms are associated with aging. [79] Mr Lacroix implies that Ms Camacho suffers from a “crumbling skull.” While his argument is not explicit, Mr Lacroixsubmits that Ms Camacho would have suffered chronic pain in any event, presumably because of her mental health challenges and/or thealleged pre-existing degeneration in her spine.

If Mr Lacroix was negligent and Ms Camacho suffered from a pre-existing condition, MrLacroix would not be liable for any debilitating effects of that pre-existing condition that Ms Camacho would have experienced anyway.If there is a measurable risk that any pre-existing condition would have detrimentally affected Ms Camacho regardless of Mr Lacroix’snegligence, this can be taken into account in returning Ms Camacho to the position she would have been in but for the Collision: seeAthey at para 35. [80] Dr Hu was the only doctor who said he saw prior degenerative changes on Ms Camacho’s scans.

Since I have rejected DrHu’s findings, Mr Lacroix has not proven the existence of such a pre-existing degenerative condition. [81] Ms Camacho argues that she is not a “crumbling skull” plaintiff, but a “thin skull” plaintiff and therefore Mr Lacroix musttake her as he finds her. She submits that, while her mental health could impact the severity of her chronic pain, there is no evidence thatshe would inevitably have suffered from chronic pain but for the Collision. She relies on the evidence of Dr Apel and Dr Darwish tosupport her position. [82] I find that the “thin skull” principle applies in this case.

Whether or not the ultimate physical effects of Mr Lacroix’s conductcould have been foreseen, he will be liable for those effects so long as they flowed from Ms Camacho’s underlying condition as it existed when Mr Lacroix’s alleged negligence caused injury: Fridman’s The Law of Torts in Canada, 4th ed (Toronto: Thomson Reuters, 2020)at 537. [83] This is the principle I find applicable in this case. I accept Dr Apel’s articulate description of chronic pain as “suffering” andits links to the subject’s latent psychological condition. Ms Camacho had significant latent unhappiness long before the Collision, as

manifested in her suicide attempt. While I accept Dr Apel’s analysis that Ms Camacho’s chronic pain is exacerbated by her latent unhappiness and the traumas underlying her psychiatric problems, I find that Ms Camacho would not have developed chronic pain but for the Collision. Ms Camacho’s chronic pain is therefore causally linked to the Collision. VII. Damages [ 84 ] Having concluded that Ms Camacho suffered injuries that were caused by the Collision, I now turn to the question of damages. A.

Minor Injury Regulation [ 85 ] Somewhat late in the proceedings, counsel addressed the Minor Injury Regulation , Alta Reg 123/2004 ( “ MIR ”), which limits recovery for certain soft tissue injuries.

Mr Lacroix argues that Ms Camacho’s injuries fall within the purview of the MIR . [ 86 ] The relevant portions of the MIR are as follows: 1(h) “minor injury”, in respect of an accident, means (i) ... (ii) a WAD injury caused by the accident that does not result in a serious impairment and includes, ... any clinically associated sequelae of the ...WAD injury, whether physical or psychological in nature, caused by the accident that do not result in a serious impairment. (j) “serious impairment”, in respect of a claimant, means an impairment of a physical or cognitive function (

i) that results in a substantial inability to perform the (

A) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession, (

B) essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or (

C) normal activities of the claimant’s daily living, (ii) that has been ongoing since the accident, and (iii) that is expected not to improve substantially. (n) “WAD injury” means a whiplash-associated disorder other than one that exhibits one or both of the following: (

i) objective, demonstrable, definable and clinically relevant neurological signs; (ii) a fracture to or a dislocation of the spine.

(2) For the purposes of this Regulation, an injury in respect of an accident involving or surrounding the temporomandibular joint is a ... WAD injury unless the injury involves (

a) damage to bone or teeth, ... 3 For a ... WAD injury to be considered to have resulted in a serious impairment, the ... WAD injury must be the primary factor contributing to the impairment. [ 87 ] Where a claimant and a defendant disagree as to whether an injury is a minor injury, either party can seek to have the claimant examined by a certified examiner, as defined in the MIR : MIR s 8. The opinion of the certified examiner is prima facie evidence that the claimant’s injury is or is not a minor injury, as the case may be: MIR s 12. This procedure does not appear to have been followed in this case.

While both Dr Hu and Dr Shariff are certified examiners, their examinations were not conducted pursuant to a request under the MIR . Therefore, I must assess whether Ms Camacho’s injuries are minor injuries based on the record before me. [ 88 ] Where a claimant sustains more than one injury, each injury must be assessed separately to determine whether it is a minor injury: MIR s 2. [ 89 ] As set out above, Ms Camacho complains of chronic neck and shoulder pain, right arm weakness and numbness, and jaw pain that Dr Shariff diagnosed as a temporomandibular disorder.

With the exception of the TMJ issue, the medical evidence indicates that all of Ms Camacho’s symptoms derive from the damage to her cervical spine and should therefore be treated as one injury for purposes of the MIR analysis. [ 90 ] The medical professionals agree that Ms Camacho’s injury is a WAD injury. However, the MIR excludes from the definition of WAD injury a whiplash-associated disorder that exhibits objective, demonstrable, definable, and clinically relevant neurological signs.

[ 91 ] I find that Ms Camacho’s injury is excluded from the MIR definition of “WAD injury” and, by extension, from the MIR definition of “minor injury.” Dr Deimel testified that the 2023 MRI showed damage to Ms Camacho’s cervical vertebrae leading to nerve compression. This is an objective and clinically relevant neurological sign within the meaning of MIR s 1(n)(

i) and takes Ms Camacho’s claim outside the MIR . [ 92 ] Ms Camacho argued that Alberta courts have held that the MIR does not apply to chronic pain cases. With respect, that is an overinterpretation of the decisions. The cases simply say that the MIR does not apply to chronic pain consequent to a WAD injury that is itself excluded from the MIR , pursuant to its

definitions. Whether the intention and effect of the MIR is to capture chronic pain cases that lack an objectively observable medical foundation is a question for another day. B. General Damages [ 93 ] Ms Camacho seeks general damages in the amount of $200,000 and cites four cases in support of her claim. [ 94 ] In McCliggot v Elliott , 2022 BCCA 315 , the Court set out a non-exhaustive list of factors to be considered in arriving at an award of general damages: (

a) age of the plaintiff; (

b) nature of the injury; (

c) severity and duration of pain; (

d) disability; (

e) emotional suffering; (

f) loss or impairment of life; (

g) impairment of family, marital and social relationships; (

h) impairment of physical and mental abilities; (

i) loss of lifestyle; and (

j) the plaintiff’s stoicism. [ 95 ] In Russell v Turcott , 2009 ABQB 19 , the plaintiff had pre-existing depression and anxiety. She suffered from whiplash and chronic pain, among other effects. While the plaintiff had failed to pursue certain treatments, the Court found that this was due to impecuniosity resulting from her inability to work and awarded general damages (adjusted for inflation) of $150,463. [ 96 ] In Mason v Thompson , 2020 ABQB 76 , the plaintiff had significant pre-existing degeneration of his cervical spine but was asymptomatic at the time of the collision.

Like Ms Camacho, he underwent facet joint injections, medial branch blocks, and radiofrequency ablations, but had ongoing issues, including neck pain. He also underwent a discectomy fusion of his cervical spine. The Court awarded general damages of $183,208 (adjusted for inflation). [ 97 ] In Theobald v Coffey-Lewis , 2021 BCSC 2491 , the plaintiff was studying to become a registered nurse at the time of the collision and intended to work for a few years before returning to university to obtain a Master’s degree.

Despite two collisions, she was able to complete her nursing program, but was uncertain whether she would be able to meet the physical demands of the Master’s program. She also had a pre-existing chronic knee problem. The Court awarded general damages (adjusted for inflation) of $171,841. [ 98 ] Ms Camacho argues that her injuries are more severe than those in Russell and are similar to those in Mason and Theobald with the addition of fractured teeth and TMJ dysfunction. [ 99 ] Mr Lacroix argues that General Damages should be assessed between $25,000 and $40,000 with a reduction for failure to mitigate.

He cites two cases in support of his position. [ 100 ] In Sandhu v Morris , 2023 BCSC 35 , the plaintiff was injured while a passenger on a city bus. She had pre-existing neck pain, headaches, numbness, and tingling that occurred frequently as a result of an earlier collision. The Court awarded $40,000 in general damages for the transient exacerbation of the plaintiff’s pre-existing neck pain, headaches, tingling or numbness, and any soft tissue injuries caused by the earlier collision: para 121. [ 101 ] In Krawchuk v Mellor , 2003 ABQB 163 , the 23-year-old plaintiff suffered whiplash in a rear-end collision.

The Court found that the acute phase of physical injury lasted for about two months, but that the intermittent flareups lasted for seventeen months, and the mildly correlated depression lasted for twenty-two months. General Damages of $18,000 [$27,672.16 adjusted for inflation] were awarded, which was intended to reflect both that the continuing symptoms were intermittent rather than continuous in nature and that there was only mild correlation shown between the injuries and the depression: para 91. [ 102 ] I do not find these cases analogous to the matter before me.

Unlike Sandhu , Ms Camacho’s injuries are not an exacerbation of pre-existing conditions and unlike Krawchuk , her symptoms are not intermittent and have not resolved. [ 103 ] In addition to the cases cited by counsel, I have reviewed several other cases addressing neck injuries and chronic pain. The cases in which the courts have awarded non-pecuniary damages similar to what Ms Camacho is seeking involved more severe and multifarious injuries that resulted in more serious disability and inability to work. Without downplaying the extent of Ms Camacho’s

suffering, I find that she is below this threshold. [104] I acknowledge that the effects of Ms Camacho’s injuries have been significant and that she has sought and continues to seekpainful treatment for them. Nevertheless, taking into account the factors enumerated in McCliggott and the circumstances and decisionsin other cases, I find that her general damages claim is excessive. [105] In McConvey v Hart, 2012 BCSC 1058, the plaintiff suffered myofascial pain syndrome in the neck and shoulder that imposedphysical limitations, headaches, and loss of sleep.

Like Ms Camacho, these symptoms impacted all aspects of the plaintiff’s life,including work, recreation, and family activities. The Court awarded the present-day equivalent of $103,000 in General Damages. [106] In Chaudhry v Henville, 2021 BCSC 2318, the plaintiff had suffered a variety of pre-existing back pain symptoms togetherwith depressive disorders, placing her in a crumbling and thin skull category of claimants. The accident caused soft tissue injuries to herneck, back, shoulder, and hip. Lasting consequences included cervicogenic headaches.

The myofascial pain continued on an intermittent,chronic basis up to the time of trial, but was not totally debilitating. The symptoms and severity of the injuries described closely mirrorthose found in this case. The Court’s present-valued award for general damages amounted to just under $89,000. [107] In Gordon v Sexton, (NL SC), the plaintiff suffered a grade two whiplash injury, resulting in chronicmyofascial pain syndrome, with ongoing neck, shoulder, and lower back pain. The symptoms significantly impaired his active lifestyleand impacted on his ability work.

The Court awarded him the equivalent of $96,411 in general damages. [108] In Kodelja v Johal, 2017 BCSC 164, the plaintiff developed pain in her neck, shoulder, and upper back after a motor vehicleincident. She also got daily headaches which became quite severe and experienced tingling and numbness in her arm. While many of thesymptoms improved over time, she developed chronic myofascial pain syndrome with mild to moderate ongoing pain that had a moderateimpact on her future ability to earn income.

After trial, she was awarded the equivalent of $96,941 in general damages. [109] In Placzek v Green, 2012 ONCA 45, the Court upheld a general damage award of $110,430 in present terms for a plaintiff whosuffered acute cervical back strain. The injury led to chronic pain so severe that the plaintiff was unable to work except in a limitedcapacity. The chronic pain was found to be significantly disabling despite ongoing trigger point injections.

The pain and sufferingexperienced by the plaintiff in in Placzek were more severe than Ms Camacho’s, making this case an upper-end demarcation point forgeneral damages. [110] The assessment of general damages is a necessarily holistic and subjective task, but based on the authorities cited above, I findthat an appropriate award in this case is $95,000. C. Duty to Mitigate [111] Mr Lacroix argues that this award should be reduced by 25% for failure to mitigate.

Mr Lacroix relies on evidence that MsCamacho was instructed in June 2009 and again in December 2009 to continue with a home exercise program and Dr Apel’s evidencethat Ms Camacho told her the only exercise she did was jogging. [112] Ms Camacho argues that there is no evidence that she failed to follow the advice of her treatment providers. She notes that DrApel could not read the UThrive or ARC charts.

She submits that she should not be faulted for following the advice she received, even ifanother professional thinks that a different course of treatment would have been better. [113] Mr Steven McGregor is an occupational therapist and functional capacity evaluator. He is certified in life care planning, whichqualifies him to prepare cost of future care reports. He was qualified to give expert evidence in the fields of occupational therapy,functional evaluation and cost of future care as related to those areas.

In Mr McGregor’s report he indicated that Ms Camacho “has anexercise routine consisting of stretching, yoga and resistance exercises, which she obtained through her physiotherapist.” During cross-examination, Mr McGregor said that, based on what Ms Camacho had told him, his impression was that Ms Camacho had beenfollowing this routine. However, he later stated: ...oftentimes people have a – a program that they’ve gotten years earlier from their physiotherapist, but they’re not really compliant with,in terms of following exactly what was said, but they recall certain things that they’re doing.

So that may have been part of my thinkingprocess in terms of recommending some upgrading her exercise routine. [114] Ms Nguyen indicated in both her treatment notes and her report to Ms Camacho’s insurer that she had provided Ms Camachowith a home exercise program.

Given the acute phase of Ms Camacho’s injuries at that point, Ms Nguyen may not have put greatemphasis on that program, but it is clear that stretching at home was recommended. [115] Similarly, Dr Vant confirmed that the ARC records show that Ms Camacho received a set of resistance bands in December 2009and was directed to undertake a strengthening program using them.

Ms Camacho acknowledged in her testimony that she was givenadvice on how to use the bands and a foam roller and was told to use them as much as she could. [116] In Stevenson v Thompson, 2017 ABQB 451, the Court reduced the general damages award by 20% because of the plaintiff’sfailure to comply with medical advice. Part of that advice was to improve her conditioning and chronic pain through a regular andambitious program of exercise and stretching. The Court made these comments at para 400: Stevenson preferred to accept the acupuncture treatment and the manipulative chiropractic treatment of both Drs. Cosman.

This treatmentprovided her pain relief and allowed her to function. However, Dr Ernie Cosman provided her advice to exercise. He provided her withexercise prograMs She either refused to engage in such programs, or if she did engage in such programs, her time of engagement was bothirregular and of short duration. The expert witnesses testified physiotherapy is the golden rule of orthopedics. While pain relief isimportant, Stevenson had a duty to mitigate by following the almost unanimous advice of her medical caregivers to exercise in order toaddress her injuries. She did not. She failed to mitigate her losses.

[ 117 ] This case is not in the same category as Stevenson . While there are early indications that Ms Camacho was advised to undertake stretching and strengthening exercises, it does not appear to have been emphasized to the extent it was in Stevenson . That lack of emphasis may be related to the gaps in Ms Camacho’s treatment. Nevertheless, I am not prepared to find that she has disregarded advice to an extent that would justify reducing her general damages award. I am not satisfied that Ms Camacho had the capacity to do more or that it would have made any measurable difference to her outcome. D.

Past Loss of Income [ 118 ] Ms Camacho argues that her injuries have diminished her ability to work and have resulted in a delay in her becoming a physician. Mr Lacroix argues that Ms Camacho has worked almost continuously since the Collision and that the gaps in her employment were due to her moving to be closer to her brother, her marriage and move to Arkansas, and her nursing studies.

I note as well that Ms Camacho returned to Colombia for approximately three months to visit her dying father. [ 119 ] Ms Cara Brown was qualified to give expert evidence in forensic economics and quantifying economic losses and damages. Ms Brown prepared a loss of income and cost of care report dated March 31, 2015, and provided an updated report dated February 21, 2023. [ 120 ] Ms Brown testified that she did not calculate any loss of income for Ms Camacho for 2009 – 2013 because Ms Camacho stayed with the same employer and had accommodation.

It was not clear to Ms Brown that Ms Camacho’s income level in that position as a resident care aide had been negatively affected until 2013. I accept Ms Brown’s testimony on this point and will consider past loss of income only from 2013 to the date of trial. [ 121 ] Ms Camacho testified that she was employed as a resident care aide until October 2013. In late 2013 and early 2014, she was taking preparatory courses for the Medical Council of Canada examinations. In 2014, she moved to Comox, BC, where her brother had set up a clinic. She worked part-time for him and part-time in a nursing home.

Her brother paid her partially in cash and partially by helping her with expenses. She did not know what tax filings had been made. At some point, Ms Camacho moved to Regina, Saskatchewan, where she worked for four months in a nursing home. She returned to British Columbia in late 2015. She lived in Nanaimo and worked in a nursing home in Duncan and continued to assist her brother. [ 122 ] In September 2016, Ms Camacho’s father became ill, and she went to Colombia to be with him. He died in December 2016, and she returned to Nanaimo in January 2017.

Ms Brown testified that she was unaware of this trip and would have reduced her estimated income loss for that period by $5000-$6000 had she known of it. [ 123 ] Ms Camacho married her current husband on February 15, 2017, and moved to Arkansas around that time. For immigration reasons, she was unable to work in Arkansas until early 2019, when she received a work permit. She then worked for a little over a year.

Ms Brown testified that she inferred zero income loss in 2017 and 2018 on the assumption that Ms Camacho would have moved to Arkansas regardless of the Collision. [ 124 ] Ms Camacho worked full-time for a Dr Tejada in 2020-2021. She described her work as day shifts, more than 8 hours per day, 5 days per week. She left that employment because her online courses were requiring more of her time. [ 125 ] Ms Camacho was in Puerto Rico for her nursing studies from March to May 2021.

She received her qualification in May 2022 and started working full-time as a dialysis nurse in a renal care centre on August 15, 2022. [ 126 ] Based on this timeline, I decline to make an award for past loss of income. I find that the gaps in Ms Camacho’s employment arose from causes other than the Collision. The evidence does not satisfy me that she has lost income over this period due to the Collision. Her life was in continual flux for reasons other than the Collision, she worked for much of this period, and there is insufficient evidence to find her earnings would have been different but for her injury. E.

Future Loss of Income [ 127 ] Ms Camacho argues that the Collision caused delay in her certification as a physician in Canada, with a large consequent loss of earning capacity. In Ms Brown’s economic analysis, sue assumed that, but for the Collision, Ms Camacho would have qualified to practice as a physician not later than July 2022. [ 128 ] Ms Camacho relies on Williams v Rosenstock , 2020 ABQB 303 .

In that case, the Court noted that“[a] person who has been injured by another person’s negligence is entitled to be restored, as much as possible, to the position they would have been had the negligence not occurred, but not more than that [citation omitted, my emphasis]” (para 406). Further, in determining the question of income, the ultimate question is whether the plaintiff has proven on a balance of probabilities that there is a real and substantial possibility, and not mere speculation that the loss will occur. The likelihood of the loss is reflected in the quantum of the award: para 410.

Future or hypothetical events with a real and substantial possibility of occurring are given weight according to their likelihood in an award for loss of income. An award may be scaled down to account for negative contingencies such as sickness or unemployment, or up to account for positive contingencies such as obtaining a promotion or getting a yearly cost of living increases: para 411. [ 129 ] Ms Camacho also relies on Johal v Fazli , 2021 BCSC 1896 . In that case, the plaintiff’s goal was to become a high school math teacher.

The Court found that, because of two motor vehicle accidents, she was delayed in completing her education and the subsequent practicum. The plaintiff ultimately did complete her education and become a teacher.

The Court accepted medical opinion evidence that the plaintiff likely would be able to work as a high school teacher, but at a reduced capacity and concluded that she had proved a real and substantial possibility of impairment to her future earning capacity. [ 130 ] In find that Ms Camacho has not established on a balance of probabilities that there was a “real and substantial possibility” that she would have been certified as a physician in Canada but for the Collision. I recognize that Ms Camacho was a qualified physician in Colombia prior to coming to Canada.

Nevertheless, the certification process in Canada is a significant hurdle. Ms Camacho had some

serious mental health challenges prior to the Collision that were related to stress. Additionally, Ms Camacho was unable to speak Englishwhen she arrived in Canada.

It was clear from her testimony that she continues to have difficulty with the language barrier 18 years later.While I would not go so far as to say that she could not have managed that stress and language barrier to the extent necessary to completethe certification process, I cannot characterize the possibility of her doing so as “real and substantial.” I find that the possibility is toospeculative to form the basis for a loss of future income award. [131] I admire Ms Camacho’s determination in the face of many hardships and challenges.

However, the evidence does not reveal thatshe was on a substantially clear trajectory to qualification as a physician in Canada before the Collision happened. The same pre-existingfrailties which likely caused this injury to magnify to the extent it has would have made the stress and strain of medical education andresidency formidably difficult for her. [132] While Ms Camacho may still achieve her goal of again working as a doctor, the evidence does not satisfy me that the Collisionimpacted the overall probability of that to a compensable degree.

To assume that Ms Camacho would have overcome her pre-existingobstacles and qualified as a Canadian physician would place her in a better position than she would have been in without the Collision.The law does not support or permit such an outcome. [133] Considering my decision on this point, the portion of Ms Brown’s loss of future income calculations that is predicated on theassumption that Ms Camacho would have become a physician does not assist.

Ms Brown’s alternative scenario in which Ms Camachocontinued to be employed as a residential care aide is also disregarded given her successful retraining as a nurse. [134] As a final alternative, Ms Brown calculated loss of future income on the assumption that Ms Camacho would continue workingin her present capacity as a nurse. I find that this is the scenario supported by the evidence. [135] I find that Ms Brown overestimated Ms Camacho’s level of disability.

I do not fault Ms Brown for this, but the result is that hercalculations are of less utility to me in arriving at an appropriate award. [136] Ms Brown based her calculations on the assumption that Ms Camacho is severely disabled, resulting in an earnings reduction ofeither 40% or 60%. Ms Brown based these figures and her underlying assumption of severe disability on Ms Camacho’s self-reporting ina questionnaire. While I accept that Ms Camacho has chronic pain and is not malingering, this assumed level of disability does not accordwith the evidence before me.

Dr Apel testified that pain questionnaires tend to keep a patient pain focused and can result in over-reporting. As well, I have already found that there are frailties in Ms Camacho’s self-reporting. [137] Ms Brown’s assumption of disability is also inconsistent with the evidence of Ms Camacho’s work history after the Collision.Ms Camacho is currently employed as a dialysis nurse in a renal care centre. While she testified to having difficulty with some of themore physical tasks required by that job, she is employed full-time.

The evidence shows that her current salary is almost exactly in linewith the average earnings for a nurse in Arkansas. [138] The evidence supports a finding that Ms Camacho’s condition likely diminishes her capacity to earn over time. The pain shesuffers is taxing. It reduces her capacity for work output and her for stress-resilience. I find that, but for the injury, Ms Camacho wouldlikely be able to work longer hours and leverage her superior prior qualifications for higher paying opportunities within nursing,especially going forward.

This is consistent with her proven profile as a determined and hardworking woman. However, her ability towork as much as she otherwise would is compromised to some extent by her chronic pain and related tiredness. [139] Given my necessary rejection of Ms Brown’s 40-60% disability assumption, I must determine a measure of disabilityattributable to the Collision that will accurately and fairly compensate Ms Camacho. It is a challenging task to translate into a concretenumber the holistic sense one gains from all of the evidence of Ms Camacho and her situation.

I must make the best estimate I can of MsCamacho’s future loss, based on the evidence before me. The assessment of loss must be based on the evidence, and not an application ofa purely mathematical calculation. Therefore, the assessment of damages is a matter of judgment, not calculation: McConvey v Hart,2013 BCSC 1058 at para 330. [140] The disability in this case is nowhere near half of Ms Camacho’s working capacity. The objective evidence of Ms Camacho’swork history does not support a claim of this magnitude. Conversely, the limitations Ms Camacho faces that are attributable to theCollision are not trivial.

I find that injuries from the Collision will give rise to a reduced ability to work resulting in a 15% reduction inearnings. From a holistic perspective, taking account of all the evidence I have seen and heard, I find that this degree of loss of futureincome has been proven on balance of probabilities. [141] In arriving at estimates of future loss of income, Ms Brown determined the present value of the loss and applied a tax gross-up.I am in no position to do either of those things The need for an evidential base on which to ground the computation of a tax gross-up isclear.

The calculations are too complex and various for a simple range of percentages to be used: K. Cooper-Stephenson, Personal Injury Damages in Canada (Toronto: Carswell, 1996) at 462. In Scarff v Wilson (1988), (BC CA), 55 DLR (4th) 247 at 261(BCCA), the Court determined that that it would not be prepared to award a percentage without first having a number of pro formcalculations being made in order to more accurately determine what the proper range of such an award should be. [142] Ms Camacho’s current salary, converted from US to Canadian dollars, is approximately $87,000 annually.

Ms Brown assumed aretirement age of 67. I will use the same assumption. Since Ms Camacho is now 47 years old, the loss of future income amounts to 15%of her $87,000 annual salary for each of the next 20 years. Therefore, the amount is (15% x $87,000) x 20 = $13,050 x 20 = $261,000. Ihave no actuarial evidence upon which to discount this to a present value, nor to account for future inflation or tax consequences.

Thebest I can do on the record before it is to find that these contingencies, running both ways, will generally neutralize one another, and thatthe award of $261,000 is proportionate to what has been proven. [143] For sake of completeness, I note that no loss of income percentage has been applied to the six months of work Ms Camacho hascompleted at her present nursing position, as there was no evidence led that she declined more lucrative opportunities during this period.

F. Cost of Future Care [ 144 ] Mr McGregor prepared both a functional capacity evaluation and a cost of future care assessment, dated January 7, 2015, and January 29, 2015, respectively. In both reports, he states that he referred to several medical, financial, and educational records. In his cost of future care assessment, he referred to Dr Apel’s January 12, 2015, report and her recommendations therein. [ 145 ] Mr McGregor also conducted a physical examination of Ms Camacho to determine her functional capacity.

He testified that, in the course of that examination, she appeared to be making a genuine effort and did not appear to be exaggerating her level of pain or her movement restrictions. It was clear to him, however, that Ms Camacho had adopted numerous strategies to manage her pain. [ 146 ] Mr McGregor’s cost of future care report includes a table setting out a number of items and their estimated costs. Some of the items he identified are one-time purchases, some are annual costs, and some are initial amounts subject to later replacement costs.

Ms Brown calculated a present value for each of these items in her initial report. [ 147 ] Determining the cost of Ms Camacho’s future care is somewhat complicated by the passage of time since Mr McGregor and Ms Brown prepared these reports. Nevertheless, as a starting point, I will review each of Mr McGregor’s items based on the initial figures from him and from Ms Brown. a. Lyrica Mr McGregor allotted $1,176 annually for this medication, giving a present value in Ms Brown’s report of $31,775. I find this medication is necessary and the amount is reasonable. I allow it. b.

Ibuprofen Mr McGregor allotted $19.98 annually for this medication, giving a present value in Ms Brown’s report of $540. I find this medication is necessary and the amount is reasonable. I allow it. c. Botox Mr McGregor included Botox injections 3 to 4 times per year because Dr Apel recommended that Ms Camacho might try Botox. Dr Apel suggested that Ms Camacho might benefit from Botox injections in the most recalcitrant trigger points and that the injections should not be provided without a well established and consistently followed active daily stretching routine.

There is nothing before me to suggest that Ms Camacho has tried this particular treatment or that it would grant worthwhile relief. I am not satisfied that this item is appropriate or proven. I therefore disallow it. d. Active rehabilitation program and travel to/from Mr McGregor included this program offered through the Canadian Back Institute. He described the program as an outpatient, multidisciplinary program with daily attendance over four to six weeks that included a psychological component.

There is no evidence that Ms Camacho attended this program and since she no longer lives in Calgary, I do not consider it an appropriate inclusion and I disallow this item. Mr McGregor included exercise and counselling items elsewhere in his table. e. Exercise program with kinesiologist/exercise therapist (initial) In his report, Mr McGregor recommended that Ms Camacho continue with an appropriate exercise program. He agreed with Dr Apel’s recommendation for active rehabilitation with a biomechanically correct exercise program.

He opined that Ms Camacho requires sessions with an exercise therapist or Kinesiologist to help develop, implement, monitor, and revise her program routine. The goal is for Ms Camacho to improve self-management relative to her symptoms and functioning. I agree it is appropriate and I allow this item. f. Exercise program (annual review) Mr McGregor also recommended Ms Camacho’s exercise routine be reviewed annually to assist her with adapting and adjusting her exercises appropriately as she ages. These revisions are needed to ensure that she is exercising in a safe manner, given her diagnoses and ongoing symptoms.

It is appropriate and I allow this item. g. Massage therapy and travel to/from Mr McGregor referred to Dr Apel’s recommendation that occasional exposure to massage would be of benefit. He estimated 24 to 36 massage sessions annually. I find that 24 annual sessions more accurately reflects occasional exposure and I allow this item to that extent. h. Occupational therapy education Mr McGregor stated in his report: As a consequence of the accident, Ms Camacho is less efficient and less productive within her home. She is likely to have increased symptoms with repetitive tasks or tasks involving awkward postures.

Ms Camacho requires education regarding positioning, body mechanics, task organization and pacing, relative to her activities and pain management issues. These sessions should be provided by an occupational therapist within the client’s home. In my experience, given Ms Camacho’s situation, three sessions are required. I find that this is an appropriate item and I allow it. i. Psychological treatment and travel to/from

Mr McGregor noted that Dr Apel considered Ms Camacho’s under-reported psychiatric issues to be medically relevant. He included modest counseling services to assist Ms Camacho with learning additional cognitive behavioral pain management techniques. I am satisfied that counselling would be of benefit to Ms Camacho and I allow it. j. Ergonomic evaluation and education Both Mr McGregor and Dr Apel recommended ergonomic assistance for Ms Camacho. Mr McGregor has included a one-time ergonomic evaluation and I allow this item. k.

Occlusal splint Use of a splint was recommended by Dr Shariff for Ms Camacho’s TMJ disorder. This item is allowed. l. Bookstand and laptop desk stand Mr McGregor recommended these items to allow for better posture when Ms Camacho is reading or studying. These items are allowed. m. Resistance bands, exercise ball, and hand weights Both Mr McGregor and Dr Apel stressed the importance of exercise. These items are allowed. n. Elliptical machine Mr McGregor included an elliptical machine for aerobic exercise and assumed it would need to be replaced every 10 years.

His rationale was that such a machine incorporates upper extremity and shoulder movement, either passively or actively but that it would also allow Ms Camacho to get some aerobic exercise without using her arms if she needed to. While I appreciate that cardiovascular conditioning is an important part of a balanced exercise routine, I am not satisfied that an elliptical machine is a necessary and reasonable expense. Ms Camacho told Dr Apel that she was jogging. There is nothing to suggest to me that jogging is not a reasonable form of cardiovascular exercise for her. This item is disallowed. o.

Massager for home use, TENS machine and electrodes, heat pad, and Obus forme back support I am satisfied that all of these items are useful for providing Ms Camacho with pain relief and I allow all of these items. [ 148 ] In Ms Brown’s initial report, she included a table of the present value of each of the cost of care items identified by Mr McGregor. The total of those present values was $197,921, excluding housekeeping, which I will deal with separately. In Ms Brown’s updated report, she assumed past cost of care of $90,000 and future cost of care of $202,000 in Canada and $186,000 in Arkansas.

It is not clear to me what portion of those latter figures represents housekeeping. [ 149 ] Having removed from Mr McGregor’s cost of care table the items I consider unjustified and reduced the amounts associated with massage, I award Ms Camacho $99,250 for her cost of future care. G.

Housekeeping [ 150 ] In his functional capacity evaluation report, Mr McGregor stated as follows: With regard to managing household responsibilities, Ms Camacho is capable of performing regular tasks but is likely to experience an aggravation of symptoms associated with tasks such as vacuuming, washing windows or walls, and cleaning around awkward spaces such as in a bathroom. However, these are non-competitive chores and with improved body mechanics and pacing techniques she should be capable of cleaning her home. ...

In my view, she would benefit from education regarding positioning, body mechanics, task organization and pace, relative to her activities and pain management issues. [ 151 ] In his cost of future care assessment, he elaborated on this as follows: As a consequence of the accident, Ms Camacho is less efficient and less productive within her home. She is likely to have increased symptoms with repetitive tasks or tasks involving awkward postures. Ms Camacho requires education regarding positioning, body mechanics, task organization and pacing, relative to her activities and pain management issues.

These sessions should be provided by an occupational therapist within the client’s home. In my experience, given Ms Camacho’s situation, three sessions are required. The focus of the first two sessions should be on task organization, pacing and body mechanics, and the third session should review and emphasize body mechanic techniques. [ 152 ] Mr McGregor opined that it was reasonable to provide Ms Camacho with housekeeping services: It is appropriate for Ms Camacho to put her efforts towards pursuing her career as a physician and managing her health.

As such, it is reasonable to provide Ms Camacho with short-term housekeeping services while she is in her medical residency program. Many medical residents have 12-to-16-hour shifts, and work 60 to 80 hours per week, plus studying. Putting her efforts toward her education is a priority over taking additional time to clean her home.

Given that she is expected to live alone in a one-bedroom apartment, I have included only modest costs for these services for a period of three years, at which time she would have expected to implement adaptive strategies, improved pain management, and completed her education. [ 153 ] There are two problems with Mr McGregor’s assessment of Ms Camacho’s housekeeping needs. First, he assumed that Ms Camacho was living alone. She is now married, so that is no longer the case. Second, he assumed that she would require housekeeping services during the rigours of medical residency.

Ms Camacho has not satisfied me that medical residency is a realistic prospect for her.

As such, Mr McGregor’s underlying assumption is erroneous. Even assuming that Ms Camacho would be a medical resident, Mr McGregor indicated that housekeeping services would be required only for three years. [ 154 ] Mr McGregor based his assessment on the facts as presented to him at the time, so I do not fault him for these assumptions. They are simply not sustained on the evidence. No award is justified beyond the extensive supports to assist Ms Camacho in maintaining the house

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