If I am forced to change careers as a result of my injuries, will I be compensated? What if I managed to stick it out in a physically demanding career for years after the crash? What if I choose a new career that pays substantially less than my old one?
In the case of Park v. Donnelly (2017 BCSC 778) released earlier this week, the plaintiff (Mr. Park) held a Red Seal ticket in sprinkler fitting. He suffered a shoulder injury in motor vehicle collision. A few months after the collision, he went to work as a pipefitter in Northern Alberta. He endured the long hours of this work for a year, despite the pain in his shoulder, then had surgery. He returned to work in the expected time after surgery, and continued this work for several more months, despite persistent pain and limitations. He was then assessed by an occupational therapist, who measured his functional capacity. He was able to perform virtually all the demands of his physical role, with the exception of overhead testing, where his results barely met industry standards. Had his results been 1.5% lower, he would have failed the industry standards.
Mr. Park then returned to see the orthopaedic surgeon who had performed the surgery, and mentioned that he was considering a change in vocation to something less demanding. The orthopaedic doctor noted his ongoing pain, saying that a reduction in functional demands would go a long way in optimizing the outcome of the patient’s left shoulder injury and its treatment, and that he was supportive of this process. Shortly thereafter, Mr. Park changed careers to a role in hospitality management – falling back on his experience in the hospitality industry when he was younger.
At issue was whether it was reasonable for Mr. Park to stop working as a pipefitter and change to a career in hospitality management. The defence argued that his decision was not reasonable, and that they should not be liable for his decision to change to a career such a different level of pay. They argued that he failed to mitigate his losses.
The judge concluded on all the evidence that his shoulder injury was directly affected by the nature of his heavy and overhead pipefitting work. Mr. Justice Voith concluded that Mr. Park’s decision to change careers was reasonable and appropriate, ultimately awarding him $250,000.00 to compensate for the future losses he would suffer as a result of changing careers. In reaching this decision, he considered the following factors, and the obligations on a plaintiff like Mr. Park:
[81] I am satisfied that it was reasonable and appropriate for Mr. Park to decide to leave his career as a sprinkler or steam fitter. This is so for several reasons. In McCullum v. White, 2016 BCSC 569 at para. 109, I said, that the law expects “a reasonable level of resourcefulness, resilience and initiative” from a plaintiff following an injury.
[82] The law does not, however, require a relatively young plaintiff to endure comparatively significant and consistent levels of pain, on account of their employment, into the foreseeable future. The question is not whether a plaintiff has in the past been able to endure their pain or whether they can in the future work through their pain. The question, instead, is what is, in all the circumstances, reasonable. That question will depend, inter alia, on the particular plaintiff, the plaintiff’s age, the nature of their injuries, the demands of their employment and the prospect of accommodation within that employment.
[83] These factors, individually and in combination, support Mr. Park’s decision. He is a young man who worked in a physically demanding line of work where the specific requirements of that work directly impacted on his injury and caused him consistent and ongoing pain.
[84] In Parypa, the court addressed an injured plaintiff’s obligation when seeking alternate future employment through a mitigation lens. Mitigation, however, requires a plaintiff to act reasonably and not perfectly; see Janiak v. Ippolito, [1985] 1 S.C.R. 146 at para. 33 Cummings v. Hitt, 2015 BCSC 530 at para. 106, and Savage v. Townsend, [1998] B.C.J. No. 2190 at para. 89.
[85] I further consider that Mr. Park’s decision to move into Hospitality Management was reasonable. He has experience in such work. He has shown aptitude for it and he enjoys it. Notwithstanding some limitations in his general learning ability Mr. Nordin, who is also a vocational rehabilitation consultant, considered that Mr. Park’s decision was a reasonable employment option. So too did Ms. Gallagher though, as I have said, she considered that other options were also available to him.
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