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Loss of Capacity for a Stoic Grandmother

If I am barely holding on despite working reduced hours, will I get compensated for the chance that I’ll be unable to continue holding on in the future?

Last week’s summary looked at this same case (Beaton v Perkes 2016 BCSC 2276), but focused on the pain and suffering aspect of the judgment. Today, I will look at the loss of capacity award.

The plaintiff quit high school a few credits short of earning her diploma. At the time of the collision she was 52 years old, and she had been employed as a laundry technician for 13 years. In the years leading up to the collision, she worked full time. She had low back and knee complaints which required her to work modified duties and take pain medication (25 mg of Lyrica), but did not require reduced hours.

After the collision, her daily dose of pain medication increased to 300 mg per day of Lyrica (12 times the amount she took pre-collision). Despite the pain medication, her symptoms forced her to reduce her work from full time to 32 hours per week.  Both sides agreed that her net income loss to the date of trial was $33,181.34. At issue was her future loss of capacity.

She was 56 years old at the time of trial, and told the court that she intended to work to age 65 or 67. Mr. Justice Voith accepted that she planned to work to age 65, given her history of physical problems and the demanding nature of her work. The parties agreed that $54,220.23 represented her reduced capacity to work – based on the ongoing reduction in hours. Plaintiff counsel argued that some further provision should be awarded to account for the possibility that her hours would reduce further or she would be forced to retire earlier than planned. In concluding that a further sum of $20,000.00 was reasonable in the circumstances, Mr. Justice Voith made the following comments:

[65]         There are virtually no positive contingencies at play in assessing Ms. Beaton’s future losses. There is no evidence that suggests her condition will improve. Her skills and education are limited. There was no suggestion, for example, that she may be promoted or that she may find more lucrative employment.

[66]         Conversely, there are several relevant negative contingencies. There is a real prospect that Ms. Beaton may miss work or that she will not be able to continue to work. She is, at present, simply holding on. She is consistently working through her pain in circumstances where many individuals would succumb to that pain. Dr. Loewen, as I have said, only supports her continuing to work because it is good for her mental health.

[67]         In addition, Ms. Beaton and Ms. Nendza confirmed that there is no prospect of Eco-Tex making any further accommodation for Ms. Beaton. The job Ms. Beaton presently holds is the least demanding form of work that the company can offer her.

[68]         Furthermore, the medical evidence suggests that her condition may worsen, she may have more pain and that she is now more susceptible to further trauma.

[69]         I accept that Ms. Beaton’s lower back condition or difficulties may resurface, in any event, in the future. That condition has, however, been largely static and dormant for about six years.

[70]         Counsel for the plaintiff suggested that a further sum of about $20,000, representing approximately eight months’ salary, be added to Ms. Beaton’s award. In simple terms, such an addition would recognize that Ms. Beaton might either miss about eight months of work on account of her injuries, in the next nine years of work or that she might be forced to leave work eight months before she would have otherwise retired. I consider that there is a substantial possibility of either of these things occurring. Indeed, I consider this prospect, based on the whole of the evidence, to be relatively conservative. Dr. Loewen expressly opined that he believed Ms. Beaton may be required to end her employment “because of her growing inability to complete the required tasks”. Dr. Grover foreshadowed a similar possibility. Nevertheless, this is the award that Ms. Beaton’s counsel advanced and that the defendants addressed in their submissions.

[71]         Accordingly, I award Ms. Beaton $75,000 on account of her future wage loss and loss of capacity.

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