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Past Loss of Income

If I am able to work for a year or two after the crash and then quit, will I be compensated?  What if I thought I could push through and get better, but over time, my injuries make working unbearable? 

In the recent British Columbia Supreme Court case Chappell v Loyie (2016 BCSC 1722), the court opined on a significant past wage loss claim made by a plaintiff who was injured in a motorcycle collision in August of 2011.  The plaintiff was a firefighter who took about four months off immediately following the collision, then returned to work in January of 2012.  He struggled through work until March of that year, and then took sick leave for a further three months.  When he returned in June, he took a more sedentary position.  Even in the more sedentary position, he continued to find his work deeply difficult both physically and mentally.

Nonetheless, the plaintiff remained at work (with some days off here and there to deal with his injuries) for just over two years.  Over the course of those years, the plaintiff grew increasingly depressed.  His recovery had stalled and he continued to experience significant pain and limitations.  He felt “worthless” and was having trouble with anger and concentration.   In July of 2014, almost three years after the collision, he consulted with his doctor and took an extended sick leave.  By the time of trial in September of 2016, he still had not returned to work, and did not know what the future might hold for him.

The defendant accepted the plaintiff’s claim for wages up until he took sick leave in July of 2014, but argued that anything after that point was not justified – his employer had not required him to take sick leave.  Justice Fisher allowed the plaintiff’s entire past income loss claim:

[210]     In my view, Mr. Chappell was justified in taking sick leave at that time. He clearly struggled with his work after he first returned in January 2012. He was still experiencing significant pain that he was trying to control with narcotic medication. Within six months he realized he was no longer able to continue as Captain of Suppression and he was able, through his seniority, to make a lateral move to the position of Captain of Training, a more sedentary position. About a year later, in July 2013, he was also able, for the same reason, to be promoted to Battalion Chief of Training.

[211]     However, Mr. Chappell continued to struggle with various symptoms and had to take intermittent sick leave for the surgeries on his hands, right shoulder and the left knee arthroscopy. All of this took its toll on him. In early June 2014, the Deputy Fire Chief told him that his job performance was unsatisfactory, and by the end of that month he was “at his wit’s end” and obviously seriously depressed. When Dr. Polyrhonopoulos saw him on July 2, 2014, he thought that Mr. Chappell was unemployable due to the severity of his pain symptoms, his knee and shoulder problems and the need for orthopaedic surgeries, and his depression and anxiety. The doctor described this visit as a “defining day” when Mr. Chappell was experiencing a multitude of problems, and he recommended to the Delta Fire Department that Mr. Chappell should not work until released to do so by his orthopedic specialist following surgery. His note to the employer did not refer to the totality of the medical and emotional problems, some of which Mr. Chappell was apparently reluctant to reveal to his employer. I appreciate that by this time, Mr. Chappell was also experiencing symptoms in his left shoulder and right knee, but all of his other problems, particularly his depression, were clearly a major part of his symptomology.

[212]     The defendant suggested that Mr. Chappell had no intention of returning to work after June 2014 because he had already sold his home in Cloverdale and purchased the home at Sheridan Lake. I do not accept this. As Mrs. Chappell explained, their plan was to use Sheridan Lake as a vacation home and a place for her husband to get some peace and quiet. At the end of June, they signed a lease for a home in Delta very close to the fire hall, and they moved in there July 15. However, by that time, Mr. Chappell had booked off work and was waiting for surgery on his left knee, so he spent most of his time at Sheridan Lake, returning to the lower mainland for his surgeries and periods of rehabilitation. By the following summer, Mrs. Chappell reluctantly moved to Sheridan Lake to be with her husband, but their intention, while unclear, is not to stay there for the long term.

[213]     In my view, it is remarkable that Mr. Chappell was able to carry on with his employment for 2 ½ years. His tenacity in doing so demonstrates to me his commitment to the fire department and his desire to continue working there. Since June 2014, Mr. Chappell has had surgery on his left knee (September 2014) and right shoulder (August 2015), and in between surgery on his left shoulder (unrelated to the accident). In February 2016 he went on long term disability. There is no medical opinion that his overall condition had improved sufficiently as of the time of trial to return to work, although Dr. Miller expressed the view that Mr. Chappell should try a graduated return to work.

[214]     Accordingly, I am satisfied that Mr. Chappell is entitled to past wage loss that includes the period from June 30, 2014 to trial. I would not make any deductions for the period of time related to the left shoulder surgery given that the other problems were continuing throughout this period of time. The records from the Corporation of Delta establish a loss for this period of $273,168.50.

[215]     The total past loss of income to trial is $353,424. This is a gross figure, and I leave it to counsel to calculate the net loss after tax.

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