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Proving past income loss (wage loss from the date of injury to the date of trial)

How do I prove that I suffered income loss after I was injured?  What if I think I could have been promoted if I wasn’t missing shifts and turning down overtime?

In a recent decision of the BC Supreme Court (Watkins v Harder 2016 BCSC 2078), the plaintiff was injured in a collision, suffering with chronic neck and back pain at the time of trial. She alleged that if the collision had not occurred, she would have worked approximately 40 of regular time per week, plus 8-10 hours of overtime. She claimed that her injuries caused her to miss work and restrict her hours, and because of the related absence from work, she lost the opportunity to become a full-time employee (claiming a loss of additional wages and benefits).

The records indicated that she had missed 116 days of work, and without adding the overtime or alleged missed promotion, her losses for the 116 days were a gross $16,226.64. Based on the missed overtime and missed promotion, the plaintiff sought $50,000.00 in compensation for her past income loss. The defence argued that she should be awarded approximately $17,000.00 for her missed days and her lost holiday pay – arguing that she had not proven that her lack of promotion was caused by the collision, and that her injuries were not the only reason she restricted her hours.

Mr. Justice Gaul was presented with two witnesses from the plaintiff’s work: an HR Manager (Ms. Grieve), and a labourer/co-worker of the plaintiff (Ms. Hilier).  The HR manager was the plaintiff’s witness, but her evidence varied from the plaintiff’s on a key point. The plaintiff maintained that two part-time employees were promoted to full-time status during the time she was absent from work – and the HR manager said no part-time employees were promoted during this period. They also disagreed as to the timing of a collective bargaining agreement that allowed part-time employees to voluntarily restrict their hours.  In denying the speculative aspects of the plaintiff’s claim, Mr. Justice Gaul summarized the evidence that he accepted, and set out the threshold for proving a loss of past earning capacity based on what would have been earned, not what could have been earned:

[51]         In my opinion, Ms. Grieve was a convincing witness. She testified in a fair and objective manner and had no reason to colour her evidence in favour of either party. She understandably and quite reasonably relied upon company records to prepare her evidence, whereas Ms. Watkins and Ms. St. Hilaire relied solely upon their recollections. Overall I found Ms. Grieve to be a more reliable witness, and where there was a clash between her evidence and that of Ms. Watkins or Ms. St. Hilaire, I found Ms. Grieve’s evidence to be more persuasive.

[52]         I accept that Ms. Watkins was away from work for approximately six months immediately following the Accident. I also accept Ms. Watkins’ evidence that after her return to work in September 2012, she missed the occasional work shift because of the ongoing pain she continued to feel. What I do not accept is Ms. Watkins’ evidence or argument relating to her promotion to full-time status. In this regard, I find Ms. Grieve’s evidence more convincing. More to the point, I accept Ms. Grieve’s evidence that no part-time employee was promoted to full-time status during the period Ms. Watkins was absent from work. I also find that Ms. Watkins voluntarily chose to restrict her hours of work in March 2015 for reasons that included but went beyond the ongoing difficulties she was having recovering from her Accident injuries. For example, Ms. Watkins was in a new relationship and had recently become engaged. Also, her child was getting older and becoming more active. I am not convinced that the only reason Ms. Watkins chose to restrict her availability for work was because of the challenges she was having managing her injuries.

[53]         The law is clear that a plaintiff is entitled to compensation for past loss of earning capacity based on what would have been earned, not could have been earned, but for the injuries sustained (see:  Rowe v. Bobell Express Ltd., 2005 BCCA 141). In my view, Ms. Watkins is entitled to be compensated for the known quantity of work and associated benefits she lost from the date of the Accident to her return to work. That amount is satisfactorily described in Ms. Grieve’s evidence. Moreover, while it is unclear what additional overtime would have been available to Ms. Watkins, given the seasonal vagaries of Vantage Foods’ operations, I accept that she would have worked some overtime during this period. I also accept that she would also have sometimes worked at the higher paying position of acting lead hand. As for the period of time between her return to work and the date of the trial, I accept that Ms. Watkins lost some hours of work because of her Accident related condition. I repeat, however, that I do not accept that her voluntary restriction of hours is solely attributable those injuries.

[54]         In my opinion a fair award for her loss of past income and her loss of past opportunity to earn income would be $20,000.

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