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Loss of Capacity

I am earning substantially more than I was previous to my crash however, that is due to my work ethic and motivation. Also, while I am able to work my full time hours with struggle and accommodation from my employer, I find myself unable to take as much overtime on as I would like. I’m worried that the courts won’t see my future losses because I work so hard to minimize my current losses.

The plaintiff in O’Brien v. Cemovec (2016 BCSC 1881) whose General Damages I summarized previously suffered injuries to his neck, shoulders, knees, wrists, and mid-back which resolved within a few months of the July 15, 2012, crash. The injuries to his low back and his intermittent left leg numbness remained ongoing and were expected to remain without improvement. Previous to the crash Mr. O’Brien was a healthy and fit 19 year old working full time as a shunt truck driver earning $15.30/hour for Parsec Intermodal of Canada. Shunt truck drivers work in rail yards moving the shipping containers to the rail cars. The job is very physically demanding. As a result of his injuries Mr. O’Brien was off work for two and a half months following the crash. He returned on a three week graduated schedule. He missed no additional shifts as a result of his injuries. In 2014, he trained as a crane operator and worked as both a crane operator and shunt truck driver for 8 months. His wage had increased to $17.20/hour. The position of crane operator exacerbated his back spasms due to prolonged sitting in a cramped space. He left that employment when he found a shunt truck driver job at CN Rail which paid $30.44/hour.

At trial, Mr. O’Brien testified that elements of his current work exacerbated his low back pain. While he managed complete all of his regular shifts, it was not without hard work, perseverance, and accommodation from his employer. There were times when Mr. O’Brien would be assigned to lighter driving work if there was another employee available for the heavier work. At times Mr. O’Brien was able to work some overtime shifts but he had also had to turn many opportunities for overtime down.

Justice Pearlman had to consider the evidence when determining what missed overtime shifts Mr. O’Brien would likely have worked if not for his injuries. Because Mr. O’Brien had kept no record of the shifts offered and declined while at Parsec the evidence was insufficient to support that portion of his claim for lost overtime.  However, Mr. O’Brien did present evidence in support of his claim for lost overtime while at CN Rail. Justice Pearlman considered the overtime log presented and determined the likelihood of what percentage of shifts were likely turned down for crash injuries versus which shifts were turned down for other reasons. It was an award which amounted to approximately $8,000/year. As this was an ongoing loss, it was one that was considered when awarding Future Loss or Earning Capacity. In addition, the Plaintiff presented evidence showing he was on a seniority list to take a higher paying position as a crane operator, a position he was unlikely to take due to his low back pain being exacerbated by prolonged sitting.

When assessing Future Loss of Capacity, Justice Pearlman considered both the positive and negative contingencies which would affect this young man’s future. His assessment and ruling are as follows:

[144]     The plaintiff submits that one starting point for the assessment of his loss is the present value of overtime income foregone to age 65.  At a rate of about 22 shifts per year at overtime pay of $45.66 per hour, this would represent an annual loss of approximately $8,000.  If one assumed a consistent loss of opportunity to perform overtime from age 23 to age 65, and applied the present value multiplier of 30.9941, (based on the prescribed discount rate of 1.5%), the result would total $247,952.

[145]     However, had the plaintiff not been injured, it is probable that as he aged, acquired a home of his own, and perhaps took on the responsibilities of raising a family, he would choose to work less overtime.  Later in his career, he might work no overtime at all.  Mr. Villella testified that many of the equipment operators he supervises, and particularly those who are older, and have spouses or families, choose not to work overtime. The availability of overtime may also fluctuate from year to year.

[146]      If one calculates the plaintiff’s loss of overtime at a steady rate of $8,000 per year to age 40, the present value of his loss would be approximately $119,000.

[147]     The plaintiff is on a seniority-based eligibility list for appointment as a heavy equipment operator.  There is a real and substantial possibility that his low back pain will prevent him from advancing to that position.  In that event, he would lose the additional $2 per hour earned by heavy equipment operators.   That would result in a loss of approximately $4,000 per year, exclusive of overtime.  Based on a 40-hour work week, and applying the present value multiplier of 30.9941 to age 65, the result would be a loss of $123,976.  That amount would be reduced if no crane operator’s position becomes available until later in the plaintiff’s career. There is also the contingency that, absent the accident, the plaintiff would relinquish the crane operator’s position before he reached age 65.

[148]     Here, the plaintiff is a young man who, as a railway equipment operator must perform physically demanding labour.  He experiences constant low back pain of varying intensity and often struggles to complete his shifts. I find his persistent low back pain has rendered him less capable overall from earning income from the types of employment, involving physical labour, for which he is qualified.

[149]     Mr. O’Brien works for an employer who provides some accommodation, when the demands of the workplace permit.  His supervisor regards him as a valued employee.  However, in the event of lay-offs or the restructuring of CN’s rail yard operations, Mr. O’Brien may find himself in the job market before his intended retirement at age 65.  In that event, his perseverance, and his dedication to his work will be an asset.  However, it will probably take him longer to secure a new position than if he had not suffered his low back injury.  He is now less marketable or attractive as an employee to potential employers than if he had not been injured.

[150]     The plaintiff has lost the ability to take advantage of job opportunities that involve greater physical demands than his current occupation.  He is probably not capable of the prolonged sitting required for the crane operator’s position.

[151]     On the other side of the ledger, it is possible that the plaintiff’s career with CN will continue uninterrupted, and that in time he may be promoted to one of the less physically demanding supervisors’ positions.

[152]     Nonetheless, as a result of his persistent symptoms and poor prognosis, the plaintiff’s competitive employability is compromised.  Mr. O’Brien is no longer as valuable to himself as a person capable of earning income in a competitive market as he was in his pre-accident condition.

[153]     In short, the plaintiff has suffered the impairment of a capital asset − his capacity to earn income.

[154]     In assessing damages for loss of future earning capacity, I also bear in mind that the plaintiff’s future employment may be disrupted by strikes, lock-outs, or illness unrelated to the accident, for which the defendants have no obligation to compensate Mr. O’Brien.

[155]     Taking both negative and positive contingencies into account, on the capital approach, I find that a fair measure of the plaintiff’s loss of future earning capacity is $100,000, an amount roughly equivalent to eighteen months of the plaintiff’s current income.

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