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When Chronic Pain Makes Hard Work Harder

In this week’s case, the court considered what to award a young lawyer for her loss of capacity after she was injured in two motor vehicle collisions (Harry v Power at al 2017 BCSC 2618).  The plaintiff, Ms. Harry,  had missed just two days of work – one after each collision.  Her income had grown year-over-year since the collisions (although, as the court noted, that’s to be expected for an associate at the beginning of their career) and she had been meeting her billing targets.  A partner at her firm testified that he had no concerns about Ms. Harry’s work, but that she did sometimes seem distant or distracted.

Ms. Harry (along with her legal assistant and the medical experts) dispelled the notion that she must be doing fine if she could manage to work 10 hour days.  She testified that taking time off to rest and recuperate simply had not been an option for her as a junior associate who had upcoming trials and other litigation matters to attend to.   She struggled with significant pain at work – she would use a yoga mat in her office to stretch out throughout the day, used a sit/stand desk, wore a neck compress, and would frequently leave the office for therapy appointments.  She went to work earlier in the day to make up for missed time.  She testified that while she was meeting her billing targets, she wasn’t meeting her personal goals – and that she would be billing more if she wasn’t injured.  The partner at her firm testified that there was more work available to her, if she had the capacity to take it.

The defendants argued that Ms. Harry had not proved that a real and substantial possibility of any future losses, given that Ms. Harry had, since the accident, steadily increased her billable hours and salary and not taken any time off for rehabilitation.  Further, no medical professional had said that she was limited in her work.

Justice Winteringham awarded the plaintiff $105,000.00 in loss of capacity based on a $6,000.00 annual loss of billings through to the end of her career.  After noting the “great steps” Ms. Harry had taken to continue performing as a litigator, Justice Winteringham noted that clearly the plaintiff’s earning capacity had been reduced:

130]     I am satisfied based on the totality of Ms. Harry’s evidence and the medical evidence presented that there is a real and substantial possibility of a future event leading to income loss.  In other words, I am satisfied that there is cogent evidence that demonstrates Ms. Harry’s earning capacity has been reduced, even though she presently earns more than she did before she was injured.  That is because the uncontradicted evidence shows that Ms. Harry could be billing more (and hence entitled to increased compensation based on her compensation package) but for the need to rest, lay down, attend medical appointments, and otherwise manage her pain.  It is that finding that distinguishes Ms. Harry’s case from those relied on by the defendants. 

[131]     In addition, she has testified that she will try the medial block treatment.  Dr. Rickards testified that she would be required to take time off work if she underwent this treatment.  There is also evidence that she will likely experience an earlier than average physical decline as she ages.  In my view, these events (missing work for medical treatments, reduced billings albeit working full-time, physical decline as she ages) are not speculative and each is supported by the totality of the evidence presented. 

[132]     I am satisfied that Ms. Harry has established that there is a real and substantial possibility of a future loss of capacity to earn income.