I tried so hard to continue on with my life after my crash. I returned to work full time and sought care. Nearly two years post crash, with my injuries not improving, I found myself depressed, stressed out, and on disability. Is it fair that I be compensated for my work disability even though my physical injuries, themselves, were not disabling? What about compensation for other impacts on my life that the physical injuries, themselves, were insufficient to be solely responsible for?
In the recent case of La Porte v. Earl (2016 BCSC 2298) the plaintiff was injured in December, 2010, when an F350 pick-up truck crashed into her car. She suffered soft tissue injuries to her shoulder, mid back, and hip through to her knee. The plaintiff, aged 59 at the time of the crash, was employed as a Handi Dart bus driver. The crash occurred on a Thursday and she was able to return to her job as a Handi Dart driver the following Monday. She worked full time until the following December, 2011, when her doctor directed her to take two weeks off for stress leave. The plaintiff testified that she found the demands of her job to be stressful after the crash due to the continuing pain in her shoulder and low back. She found herself less compassionate and less patient with her passengers. Her doctor described her as being tearful and anxious at the time she directed the stress leave. There was no improvement on returning to work two weeks later and she started to feel like she was “really losing it”. She was able to manage her job in the spring and summer following her return to work as the passenger loads were less during that period. However, when things picked up again in September, 2012, she again found herself struggling. She had an “emotional breakdown” at work which ended in co-workers finding her lying down in the back seat of the bus. She was told to go home, placed on LTD and had not returned to work since that day.
The issue before Jusitce Sewell was whether her injuries from the crash were such that they caused her to be unable to continue working. The medical evidence of the specialists were in agreement that the physical injuries were not enough that they alone would have prevented her from continuing in her position.
[61] Ms. La Porte was also examined by Dr. Wade, a rheumatologist, and Dr. Regan, an orthopedic surgeon, in appointments arranged by the defendants. Dr. Wade was of the opinion that Ms. La Porte’s physical complaints were caused or contributed to by the Accident. Dr. Regan was also of the opinion that the physical injuries were more likely than not caused by the Accident. However, Dr. Regan was of the opinion, as was Dr. Chu, that Ms. La Porte’s physical injuries alone should not have prevented her from continuing as a HandyDart driver.
[62] I accept that Ms. La Porte genuinely felt unable to cope with the demands of her job when she stopped working permanently in September 2012. The consensus of the medical practitioners is that Ms. La Porte’s physical injuries alone would not have prevented her from working as a HandyDart driver. Essentially therefore, the critical causation issue in this case is whether Ms. La Porte was experiencing psychological difficulties, and if so, were they caused or contributed to by the Accident.
Justice Sewell considered the psychiatric evidence before him which pointed to both cognitive deficits and psychiatric diagnoses post crash.
[97] There is no evidence that Ms. La Porte suffered a concussion or any brain injury in the Accident. If there is a substantial connection between her cognitive and memory deficits and the Accident, that connection can therefore arise only from the psychiatric conditions diagnosed by Drs. Ancill and Oluyede. However, neither doctor was able to explain how depression or anxiety could cause Ms. La Porte the cognitive and memory difficulties she exhibits. Dr. Ancill’s first report is dated January 30, 2013. He diagnosed a moderate Major Depressive Disorder, an adjustment disorder with anxiety (chronic type) and a pain disorder associated with both psychological factors and a general medical condition (chronic). At that time Dr. Ancill did not identify significant memory deficits associated with any of the diagnosed conditions.
As there was no evidence or a concussion or brain injury in the crash, the cognitive injuries would have to be looked at separate from the psychological injuries and their impact on her functioning.
[100] After considering all of the medical evidence, I conclude that Ms. La Porte’s cognitive difficulties are not caused by the Accident, but are more likely the early stages of a dementing process. I note that Dr. Oluyede’s prognosis is that Ms. La Porte is exhibiting cognitive impairment that will eventually lead to dementia. I conclude that her cognitive and memory problems are caused by her developing dementia and not the Accident.
[101] I do, however, accept Dr. Ancill’s and Dr. Oluyede’s opinions that Ms. La Porte is suffering from a major depressive disorder. I find that the major depression she exhibits is caused in part by the injuries she suffered in the Accident, and in part by her awareness of her increasingly declining cognitive abilities. I therefore find that the Accident is a cause of the moderate Major Depressive Disorder and that there is a substantial connection between the Accident and this disorder.
[102] I am satisfied that the depression and anxiety disorders caused by the Accident were a cause of Ms. La Porte’s being unable to continue in her employment beyond September 2012. I find that it was the combined effect of the pain she experienced from her physical injuries, the psychological injuries identified in Drs. Ancill’s and Oluyede’s reports and Ms. La Porte’s declining cognitive functioning that rendered her unable to work at that time.
[103] Therefore, before turning to an assessment of Ms. La Porte’s damages, I must determine how long she would have been able to continue working as a HandyDart driver or in any occupation, but for the Accident.
The plaintiff was 59 at the time of the crash. By the time of the 2016 trial she was 65 and had been off work close to four years. After considering the occupational requirements of her job as evidenced by an occupational therapist and certified capacity evaluator’s report and the effects of her cognitive decline separate from crash injuries, Justice Sewall concluded that, but for the crash, the plaintiff likely would have worked until 65 but not beyond. Therefore, she was compensated for past loss of income up until her 65th birthday.
When assessing general damages, the plaintiff pointed to her loss of enthusiasm for involvement in her church. She also did not find the same enjoyment in her job as she had pre-crash. She was suffering from significant sleep disturbances, mood disturbance, and anxiety surrounding motor vehicles. Justice Sewell found that her moderate Major Depressive Disorder “causes her to suffer symptoms that are far more disabling than those that would have been caused solely by the psychical injuries she sustained in the Accident.”
For these reasons the plaintiff was awarded $120,000 in general damages.
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