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Loss of Income Earning Capacity for Full Time Teacher

I’ve been able to remain teaching full time since my crash. My doctor feels I would benefit from a reduced work week. Will the courts agree with that opinion? How will they assess my future losses?

The recent case of Kodelja v Johal (2017 BCSC 164), summarize here for general damages, dealt with the future earning capacity of a teacher who continued to work full time, five days per week, after the crash. At the time of trial the plaintiff was still suffering from daily dull headaches, and mild to moderate pain in her neck, shoulder, and back. The opinion of her family doctor, an opinion supported by the vascular surgeon hired by the plaintiff, was that a four day work week would be more appropriate for someone with Ms. Kodelja’s injuries. They plaintiff argued that working four days a week would allow her a break from the activities that exacerbate her myofascial pain syndrome. It would also give her the time she would need to receive ongoing treatment and participate in an exercise program.

Justice Masuhara considered the expert opinions but found they did not take into account the plaintiff’s flexible work situation and schedule. While the evidence was not supportive of the reduced work week, Justice Masuhara found that there was a claim for future loss of capacity in that the plaintiff perceived herself as less valuable at earning an income. She was awarded $50,000 under this head of damages.

[89]         A reduced work week recommendation can be found in Dr. Tai’s report of June 14, 2016.  The specific recommendation did not arise from a discussion with the plaintiff.  Dr. Tai had to that point never inquired as to what time off Ms. Kodelja may get throughout the school day.  Dr. Tai was unaware that the plaintiff had eight, 50-minute preparation sessions a week; that she had 12 sick days a year; or that she was entitled to three personal days off.  I also note that her school has provided her with equipment to assist her at work, e.g. an ergonomic chair and laptop stand.

[90]         In the same vein, as revealed by his testimony, Dr. Salvian in recommending the four-day work week did not have an appreciation of the non-class time available to Ms. Kodelja as described above. 

[91]         I also note that she has considerable flexibility in whether to stand, sit, or reposition herself in the classroom. 

[109]     As discussed earlier, I am of the view that the evidence is not sufficient to support Ms. Kodelja’s claim that a four-day work week is required.  Further, I do not find that there is a real and substantial possibility of the plaintiff leaving her job to find one where she could work only a four-day week.  My view is that she is capable of performing her duties at her school into the foreseeable future.

[110]     However, I am of the view that the plaintiff probably meets some of the considerations in Brown, including that she at least perceives herself as being less valuable to herself as a person capable of earning income and that she has been rendered less capable overall from earning income from all types of employment.

[111]     I therefore assess damages at $50,000