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Loss of capacity where income increases post-injury

If I am promoted post-injury, but I cannot keep up and am seeking a demotion – is there a recoverable loss?  What if the demotion hasn’t happened yet, and might not result in a reduction of my pay?

In a recent 2017 decision of the British Columbia Supreme Court of Resendiz v. D’Alessandro 2017 BCSC 1274, the plaintiff was injured in a collision which caused him soft tissue injuries, chronic pain, and PTSD. He worked as a business analyst for Community Futures with the Government of Canada. Immediately after the collision, he took two weeks off work, then used sick days thereafter to cover days missed as a result of his injuries. He was awarded the amount he claimed ($13,854.00) for this loss. Justice Steeves then considered his claim for future loss of earning capacity.

Post-injury, the plaintiff was promoted to a supervisory position, and his earnings increased. He told the court that he struggled with the role and responsibilities (due to injuries), and he reported to his own supervisor that somebody else should take over the role. Nonetheless, at the time of the trial, he was still working in this role. Despite his consistent work, enjoyment of the job, and surviving a large cut to his department, Justice Steeve accepted that the plaintiff’s earning capacity was indeed impacted. He concluded that the plaintiff was “less marketable or attractive as a potential employee and had lost the ability to take advantage of all job opportunities that might otherwise have been open”. Absent his present position, there was a real and substantial possibility that his employment opportunities would be curtailed by his injuries. In assessing the loss as 7.5% of his total earning capacity, Justice Steeves provided the following reasons:

[142]     As noted in the authorities, quantifying this loss is not an exact exercise, especially in cases where the plaintiff continues to work. In Dabu a medical expert recommended reducing the 54-year-old plaintiff’s work by one day a week and that resulted in a conclusion that there was a 20% loss of future income. In Lafond there was evidence that the 57-year-old plaintiff’s income would be reduced by 20-33% as a result of an accident. In O’Brien a number of contingencies were reviewed including the ability to work overtime in the future and restrictions on the ability to advance to a higher position. These were balanced with the possibilities of the 23‑year-old plaintiff working uninterrupted and being promoted to a less physically demanding position. A figure roughly equivalent to 18 months income’ was used in O’Brien.

[143]     The plaintiff here is 37 years old. He submits that he should be compensated for a 10% loss of future income because he could not work at the supervisory position in April 2016 and that would have given him a 10% increase in pay. There was some confusion in terms of the total amount that the plaintiff says he is entitled to based on a 10% loss. According to my calculations it would add up to $168,000 between now and the time the plaintiff reaches the age of 65. As above there is reason to question that calculation because the plaintiff continues to do some supervisory duties and he continues to receive the pay increase from 2016. According to the plaintiff there are discussions underway to relieve the plaintiff of his supervisory responsibilities. That may be a negative contingency but it has not occurred and no evidence was presented to suggest that the plaintiff’s salary is expected to decrease as a result.

[144]     Bearing in mind all of the positive and negative contingencies, I conclude that damages for loss of future earning capacity as a result of the July 2013 accident should be calculated at 7.5% loss of earning capacity and not 10% as the plaintiff claimed. Based on the plaintiff’s 2016 income level at $60,000 and assuming retirement at age 65 this amounts to a total of $126,000 for the loss of his earning capacity as a result of the accident.

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