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Loss of earning capacity for one day per week missed

How does a court assess the value of future missed work?  If I continue to miss one day of work per week due to my injuries, how will that be quantified?

In this week’s Supreme Court decision (Woelders v. Gaudette, 2016 BCSC 1066), the plaintiff was an elementary school teacher, who was unable to work more than four days per week at the time of trial. She suffered from headaches and pain in her neck/upper back/right shoulder region and her face and jaw. Her symptoms had reached a chronic point by the time of the trial – 8 years after injury in a rear-end collision. The plaintiff sought a significant award for loss of future earning capacity. Despite agreeing that she had incurred nearly $40,000.00 in past income loss, ICBC argued that there was no likelihood of future loss of earnings – even though this woman’s work week had diminished by a full day. In recognizing the barriers posed by chronic pain and its potential to wear on the victim over time, Madam Justic Balance awarded $175,000.00 in loss of future earning capacity. She provided the following reasons:

[138]     The lingering after‑effects of the Accident will likely continue to pose a barrier to Ms. Woelders’ capacity to work more than four days per week indefinitely into the future.  There is a strong likelihood of a real and substantial possibility that she will not be able to manage an additional day of work per week, except perhaps in infrequent short spurts of several weeks or a few months at a time.  On the other hand, the episodic flares that Ms. Woelders will likely experience while working a four day week may, at times, require her to decrease her workload, at least on a temporary basis.  The prospect that her injuries will ever improve to a point where she can continuously teach on a full‑time basis is a faint one.

[139]     It is a matter of common experience that, over time, ongoing pain can have a detrimental effect on a person’s capacity to work.  This holds true even in circumstances where the employer is prepared to make accommodations that may help to ameliorate the pain: Morlan v. Barrett, 2012 BCCA 66 at para. 41.  As I noted in Suthakar v. Humble, 2016 BCSC 155, the logical extension of that common experience is that the detrimental effect may be accelerated or more profound where an employer is not prepared to make workplace accommodations, or where the accommodations do not provide the beneficial effects to the extent expected or, I would add, where the nature of the employment tasks can only be accommodated so far.

[140]     The Accident is plainly responsible for an impairment of Ms. Woelders’ future earning capacity, with a high chance of a real and substantial possibility that her diminished capacity will continue to manifest into the future indefinitely.  The evidence also amply demonstrates a real and substantial possibility that Ms. Woelders’ impaired earning capacity caused by the Accident will generate a pecuniary loss to her long into the future.  How then to fairly quantify her loss? 

[141]     One of Mr. Benning’s calculations quantified Ms. Woelders’ future loss as a public school teacher on the premise that she could only work four days a week rather than five, yielding an estimated loss of $251,635 (including her loss of pension benefits).  He made explicit allowance for the usual negative contingencies such as labour force participation, unemployment, part‑time work and survival.  As I understand it and for reasons that were not explained, the labour force data that Mr. Benning applied pertained to males who hold a master’s degree.  I am mindful of that fact.

[142]     Mr. Benning’s estimation presumes that, without the Accident, Ms. Woelders would have taught full‑time until her retirement at age 65.  However, she testified that both she and her husband intended to retire at age 57.  There is no indication that her retirement plan had changed in the aftermath of the Accident.  The difference between the present value of Ms. Woelders’ without-Accident full‑time earnings to age 57, and her with-Accident earnings working only four days a week to the same age, is $206,093.  That amount would need to be adjusted upward somewhat to reflect her net loss in her pension plan benefits.  Ms. Woelders’ loss would be significantly greater were she to be compelled to reduce her work commitment to three days per week because of her injuries.

[143]     Ms. Woelders’ career ambitions went beyond the classroom.  She testified of her intention to work at the school board office or in an administrative role working with technology, which would have dovetailed nicely with the focus of her master’s degree.  Another of her goals was to become a principal or vice‑principal, however, she explained that those positions were not available to a teacher who could not work full‑time.  No evidence was adduced as to the qualifications and work experience necessary to be a likely candidate to obtain any of those positions (beyond working full‑time), the availability of such positions or the degree of competition in respect of securing one.  While I find that these were Ms. Woelders’ genuine pre‑Accident career aspirations, there is no cogent evidence to assess how realistic a prospect one or the other of them might be.  I share the defendant’s view that this possibility is too speculative to raise a real and substantial possibility for the purpose of assessing Ms. Woelders’ future loss.

[144]     I agree with Ms. Woelders’ submission that the assessment of her future loss of earning capacity ought to be based on the earnings approach.

[145]     Bearing in mind the applicable legal principles in light of the evidence and weighing the pertinent contingencies, I conclude that the sum of $175,000 is the present value of a fair and reasonable measure of Ms. Woelders’ future loss.