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Psychological Injury and an Inability to Work

I don’t think I can return to my former career after a car crash.  Will I be awarded the value of my salary over the rest of my career?  How will the court decide what’s fair?

In a recent judgment of the British Columbia Supreme Court (Mullens v Toor 2016 BCSC 1645) the 33-year-old plaintiff claimed she was effectively disabled from working in her former job as a result of injuries she suffered in a car crash.  While she did have some physical ailments, including ongoing headaches and neck and back pain, she was also experiencing the effects of an adjustment disorder with mixed anxiety and depressed mood as well as somatic symptom disorder.  The plaintiff had received a great deal of passive therapy to treat her physical ailments, but very little psychological care other than intermittent anti-depressant use.

Prior to the crash, the plaintiff was a manager of a department at a bank.  She claimed she was unable to return to this work, and that her plan was to take the 4.5 years of schooling necessary to obtain a Master’s degree in counselling, from which point onwards she would work part-time as a counsellor.   Neither her contention that she was only able to work part-time nor her contention that she could no longer work in banking were supported by the medical evidence.

Justice Verhoeven wrote the following in considering an award for loss of capacity:

[181]     Her psychological injury remains, and is severe. She continues to have significant physical complaints and limitations.

[182]     In my view it is likely that if the plaintiff obtains proper treatment, even now, she could return to her former career in banking as manager of client care, services with RBC. From there, she could with continued recovery go on to become a branch manager. In particular, the plaintiff has not established that her current medical condition necessitates the need for a career change. There is no medical or other opinion to this effect. She has been recently been offered work at a lower level than her past position. She refused to consider it as she considers the work humiliating. However, as the defendants submit, only 2.5 months before the accident, she held a hybrid position with RBC that included working as a teller. It is unclear whether returning to RBC would actually entail a reduction on her responsibilities, as the matter has not been explored with RBC.  However even if returning to work involves some diminution in her responsibilities, and perhaps only temporarily, her refusal to consider such options is unreasonable. Even a position with reduced responsibilities, if that is what is entailed, could be a first good step to re-entry to the work force and resumption of her career. Her best interests lie in making every effort to return to banking.

[183]     There is a risk that even with proper treatment and with a full effort on her part, she will not successfully return to her former position. It is possible that her work capacity will remain somewhat constrained. It is possible that she will not advance to the extent that she would have had she not been injured.

[184]     I accept that the plaintiff has established a modest but nonetheless real and substantial risk that due to her accident injuries she will not be able to return to her former career in banking, and also that the accident injuries could limit her opportunities for advancement.

Justice Verhoeven awarded the plaintiff $350,000.00 for her loss of capacity, but reduced it by 50% to $175,000.00 for her failure to mitigate (that is, her failure to seek psychological treatment, which may have improved her condition such that she would have no future loss).