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Proving future loss of earnings

If you missed work initially after injury, does that prove you’ll miss work in the future? What if your recollection about ongoing missed work is unreliable and your worries about your current role are unsubstantiated?

In this week’s case of Martin v. Dardengo 2016 BCSC 1371, the 24-year-old plaintiff was injured in a rear-end collision. He was overweight and unfit at the time of the collision. He worked at Vitera, as a grain terminal head “cleanerperson” in a union context. He was off work for two months after the collision, returning to light duties on medical recommendation. Upon returning to work, he used a calendar to record days in 2012 and 2013 for which he worked less than a full day of work and why (injuries, illness, etc.). He did not maintain a calendar of the same in 2014 and 2015.

In assessing fair compensation for his injuries, Mr. Justice Jenkins was satisfied by the calendar record keeping of the plaintiff that he had missed 89 days of work in 2012 and 2013 and used the rates argued by the defendant to determine the loss over those days. With regard to 2014 through to the date of trial in 2016, he ruled that the plaintiff had not proven income loss incurred in those years:

[62]        Beyond these amounts, Mr. Martin’s evidence as to whether he missed days of work in 2014, 2015 and 2016 as a result of the accident was far from convincing and did not take into account days lost for reasons other than for the injuries. No award for past wage loss will be made for these dates.

He then turned to the plaintiff’s claim that he had a loss of future earning capacity. The plaintiff argued that a capital asset approach should be used, and the loss should be assessed as the equivalent of 2-3 years’ of his current earnings be awarded (an amount of $175,000.00).

Mr. Justice Jenkins noted that four sick hours were taken in 2015, according to payroll records. There were no missed hours of work in 2014 according to the payroll records (despite the plaintiff’s testimony that he missed “maybe a handful” of days of work due to his injuries). Further, the plaintiff’s concern about losing his current role was unsupported.

The judge’s observations below show his evaluation of the evidence, and conclusion that there was no evidence before him of a possible event that would lead to future income loss.  In rejecting the claim for loss of future earning capacity, he made the following remarks:

[67]        According to Mr. Martin’s pay stub dated August 28, 2015, he had missed four sick hours during 2015 (Ex. 3, Tab 37, p. 18). The pay stubs for 2014 do not appear to show any sick days or missed days of work. In his testimony, he stated that he missed “maybe a handful” of days due to his injuries. Although he may on occasion still suffer some back pain, that pain has clearly not had a significant impact on his ability to work in 2014 and 2015 or if he is suffering pain, he has been able to manage the pain. He also testified that he worked as much overtime as he could in 2015 due to his spouse’s sickness which allowed her to take time off work.

[68]        Further, Mr. Martin was promoted to the position of Grain Inspector 1 in November of 2013, and although in his evidence he expressed concern that his Grain Inspector 1 designation may not continue, it should be noted that he has continued in that position for a period of over two years as of the date of trial with no indication that his position will be taken away from him. It is also worth noting that the grain inspector position represents a promotion and higher rate of pay for Mr. Martin. It is also a much less physically demanding role and he finds it more interesting.

[69]        In 2014, Mr. Martin’s assessed income according to his CRA assessment was $94,534. In 2015, according to his pay stubs, through the pay period ending October 17, 2015, Mr. Martin had earned $87,021, at which pace his income would have exceeded $100,000 for the calendar year 2015.

[70]        In 2011 Mr. Martin had earned $84,854. In 2012 he earned $86,699 to the date of the accident on December 13, 2012. In 2013, Mr. Martin earned $53,648.13 after deducting his disability payments but adding back a gross wage loss for which he is being compensated in his past wage claim of $30,246 he would have an income for 2013 of $83,894.

[71]        Mr. Martin has not provided evidence of any plans he may have had to change occupation or employer. Presumably he is well thought of by his employer as he has worked at the grain terminal since October of 2008, has established seniority and is accumulating a pension. There is no evidence of a future possible event which would lead to any loss of income.

[72]        Considering the incomes of Mr. Martin above, both before and after the accident, Mr. Martin is earning considerably more than he was up to the time of the accident. He has a better, less physically demanding job, job security in a union position and has given no evidence to establish he may not be able to continue other than mere speculation well into the future.

[73]        Finally, as addressed above Mr. Martin’s evidence that he continued to miss work in 2014 and 2015 was not convincing. The same issue arises when the possibility he will miss work or refuse overtime in the future. These amounts over 37–47 years of work were the primary basis for the loss of future earnings figures provided to the court.

[74]        Accordingly, the claim for future loss of earning capacity is dismissed.


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