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Future Loss of Capacity

I have had to have shoulder surgery as a result of my crash. I am back at work and earning more money than I was before my crash but I work in an industry that in historically unstable. What if I lose my job and can’t find another one because my injuries make me less attractive in my field of work.

In the recent judgement of Mitchell v. Martin (2016 BCSC 1544) the plaintiff, a tree faller in his mid 40’s, was awaiting return to work from a serious leg injury which occurred in 2007. The hope was for him to begin work mid August, 2009, after almost two years on WCB. On August 12, 2009, Mr. Mitchell was in a crash which resulted in a shoulder injury that eventually required surgery to repair it.  At the time of the trial he was again working as a tree faller but was a partner in a company and had taken on the additional duties of supervisor of his crew of 45 contractors. He was suffering no loss of income as he receives a set daily rate for tree falling and supervisor duties, a rate which was more than he had been earning pre WCB incident.  Despite not having any ongoing losses, Mr. Mitchel claimed he had ongoing limitations in his right shoulder which cause him to stop and stretch periodically and rest to get the pain to calm down. He claimed to be 15% less productive.

After consideration of the evidence, Madam Justice Young ruled on future loss of capacity:

[124]     I accept the evidence of the plaintiff and his description of his ongoing limitations. I prefer the opinion of Dr. Sohmer as it relates to the plaintiff’s ongoing limitations. Dr. Sohmer provided a more detailed physical examination. I am persuaded by the evidence of muscle atrophy five years post‑surgery that the plaintiff experiences shoulder fatigue. Dr. Sohmer places more weight on the plaintiff’s subjective complaints, whereas Dr. Regan is quite dismissive of them, referring to them as “perceived disability”. The plaintiff is a credible witness and by all accounts, a hardworking, stoic individual who has returned to a very physically demanding line of work despite two significant injuries. I get the impression from him that he would much rather be out in the woods working than sitting in a courtroom describing his aches and pains.

[125]     I reject the claim that the logging partnership is losing money because of the plaintiff’s injuries. There is no evidence to support this claim.

[126]     The prospect of future surgery because of progressive arthritis is too speculative to be compensable. I have accepted Dr. Sohmer’s evidence that the damage to the glenoid surface was a direct result of the Accident and not wear and tear, but I have not accepted the fact that future surgery is a substantial possibility related to the Accident that will result in loss of earnings. I have compensated the plaintiff for future pain from early arthritic changes in his award for non‑pecuniary damages.

[127]     The plaintiff is not currently suffering a pecuniary loss and so a loss of earning capacity award in this case does not lend itself to mathematical precision. That is not, however, the end of the analysis. The plaintiff is not in the same position he was in before the Accident.

[128]     If the logging partnership between the plaintiff and Mr. Trembley continues, the plaintiff may not suffer pecuniary loss because of his skills in supervising, log grading and negotiating new contracts. However, looking back over the five pre‑Accident years, two of the companies he worked for were forced to close their operations due to a downturn in the forestry industry. It is a real and substantial possibility that this might happen again and that the plaintiff may, in the future, have to look for work as a faller or in some other capacity. As a middle‑aged worker with physical limitations, he is less marketable. The significant leg limitation is being compensated and does not factor into my decision. His right shoulder limitation is less significant but does render him less marketable. He has other skills that may off‑set these limitations but he is less productive falling trees than he was before this Accident.

[129]     Applying Brown at para. 105, I conclude that:

a)    the plaintiff has been rendered less capable overall of earning income from all types of employment;

b)    the plaintiff is less marketable or attractive as a potential employee because of his fatiguing shoulder;

c)     the plaintiff has lost the ability to take advantage of all job opportunities that might otherwise have been open; and

d)    the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[130]     Using the capital asset approach, I award the plaintiff a further $45,000 for loss of future earning capacity to compensate him for being less marketable overall for falling positions in the future, if he is forced to compete in the labour market, which is a real and substantial possibility in the forestry industry.

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