On top of the initial period of time off work following my crash, I have had to take sick days here and there to recover from my injuries. I haven’t been keeping track of my crash related sick days. Is the recording of sick time taken on my pay stubs enough to prove my loss?
In the 2016 case Mohamud v. Yu (2016 BCSC 1138) the courts were asked to consider an appropriate award for past income loss for the plaintiff after she was injured in two separate collisions. Ms. Mohamud had been unable to work for one week following each collision. She testified that, in addition to those initial periods off work, approximately 60% of the time she was away from work after the collisions was also related to her injuries.
Throughout the trial, Ms. Mohamud was shown to be a poor historian who, both in court and to her treatment team, often exaggerated her symptoms, confused the injuries she sustained in the collisions with other injuries, and failed to report a potentially significant intervening event (a fall). Her credibility was summarized as follows:
[43] As indicated above, the plaintiff made inconsistent statements not only to various medical professionals but also within her testimony in court. I do not say that she did this in an overtly dishonest way. My impression is that she has confused a number of symptoms she has had over the years with those related to her injuries and has come to believe that all of her ongoing pain stems from these accidents.
When putting forth her claim for past income loss Ms. Mohamud relied simply on her own estimation of what percentage of her total sick time was as a result of her crash injuries and symptoms. She had not kept track, while taking time off work, which sick day was for which medical issue. She provided no evidence beyond her estimation of 60% of her total sick time being collision injury related.
Madam Justice Fisher weighed the plaintiff’s claims against her credibility issues and awarded only 1,376.00 of the $4,150.40 past income loss that was claimed:
[85] This past wage loss is not hypothetical, and the plaintiff must prove on a balance of probabilities that this loss was caused by the defendants. There was no evidence from either employer about the plaintiff’s sick hours and the basis for them. Given my concerns about her evidence and my findings about her injuries, I have very little confidence in the plaintiff’s estimation.
[86] The plaintiff is entitled to past wage loss for the one week following each accident that she was unable to work at Vancouver Coastal Health. In the absence of a subrogation agreement with Mosaic, the plaintiff is not similarly entitled since she suffered no wage loss from that job. I am not satisfied that she has established any further past loss of wages as a result of the accidents beyond a minimal amount. I award her 10% of the balance of sick leave from Vancouver Coastal Health (over and above the week taken following each accident). Vancouver Coastal Health calculated this past loss as $531.01 for the week following the first accident and $591.70 for the week following the second accident, for a total of $1,122.71 (rounded to $1,123). To this I will add $253, being 10% of the Vancouver Coast Health sick leave balance of $2,533.81, for a total pass wage loss of $1,376.
Perhaps if Ms. Mohamad had visited her doctor when needing additional time of work or even kept a journal of her injuries and sick days, the judge would have had more to base her opinions on than just Ms. Mohamad’s estimations so long after the fact.
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