In a recent decision in British Columbia, published April 11, 2023 and referenced as Pidwerbesky v Brunetti, 2023 BCSC 556 (CanLII), we are going to review the future loss of income capacity in which the Court awarded $1,457,193.00 to the claimant under this head of damage.
The claim involved a young female Plaintiff who was 32 years old at the time of the collision which took place on December of 2018. The Defendant vehicle ran a red light causing the claimant’s vehicle to strike it in a t-bone type crash. The impact was severe, causing the Defendant vehicle to roll-over.
Prior to the collision, the claimant was an active, happy and motivated individual who was in good health and had no physical limitations. She worked in medical clinics doing administrative work, and transitioned into a senior leadership team assistant at a local hospital. Her interest in the medical field grew, and returned to school to become a licensed practical nurse with intentions of becoming a registered nurse. Just prior to the collision, in fact, the claimant had registered for an 18 month LPN Program. Her goals were to pursue a Bachelor of Science in Nursing Degree.
The claimant sustained a permanent disability in this crash. The key injuries suffered by the claimant was a herniated disc at L5-S1 causing severe low back pain in which two surgeries for repair were unsuccessful. This specific injury has rendered the claimant completely and permanently disabled from working.
The arguments raised at trial by the defence related to causation of the herniated disc. The Defendants argued, that, on the basis that the herniated disc is caused by the collision, the value of this claimant’s claim is in the range of $550 to $660K in total.
The Plaintiff’s position regarding quantum for loss of future earning capacity alone was $2.4 million. The Court awarded $1,457,193.00 under this head of damage primarily because it accepted the contingency that there was a 75% likelihood that the claimant would be able to return to part-time, sedentary work in her field.
The Court was of the view that the motor vehicle collision was the sole cause of the claimant’s herniated disc and awarded a total of $1,793,168.47, the breakdown of which is noted below:
|Past loss of income||$90,301.68|
|Future loss of income earning capacity||$1,457,193.00|
|Cost of future care||$17,110.00|
Future loss of income earning capacity
Referenced cases that identify the approach under this category are noted below:
- Ploskon-Ciesla v. Brophy, 2022 BCCA 217 at paras. 7 – 10
- Dornan v. Silva, 2021 BCCA 228;
- Rab v. Prescott, 2021 BCCA 345;
- Lo v. Vos, 2021 BCCA 421;
- Kringhaug v. Men, 2022 BCCA 186
The cases references to establish the third step of the relatively likelihood of future events or contingencies are:
- Steinlauf v. Deol, 2022 BCCA 96;
- Dornan v. Silva, 2021 BCCA 228;
There were two competing reports from Occupational Therapists. The Court accepted the OT evidence of the Plaintiff for the following reasons:
- The Defence OT did not reassess the Plaintiff after the second surgery;
- Second, there was a Physiatry assessment after the assessment of the Defence OT. The said Physiatrist opined that the Claimant was wholly impaired from most life activity.
- Finally, the opinion by the Defence OT that the Plaintiff may work in her capacity of LPN (which was based on evidence of self-report, was inconsistent with the fact that the Claimant had actually stopped working as an LPN as a direct result of the injuries. The Court also indicated that in the Defence OT assessment, there was evidence that the Claimant did not meet all the strength demands of a LPN other than “light” duties.
The functional limitations noted are:
- Less able to compete;
- Less valuable to herself as a person capable of earning income in a competitive labour market;
- Less marketable;
- Less attractive as an employee to potential employers.
The Court concluded that there has been a significant impairment of the capital asset in this case. The Claimant will no longer be able to pursue her education to become a registered nurse. She is unlikely to ever work full time. Therefore, the test that must be established, that there is a real and substantial possibility of a pecuniary loss, has been met.
In determining the value, the Court needs to assess the relative likelihood of future events or contingencies. We will extract the arguments raised by both counsel:
- Had intentions of pursuing higher education and definitive plan for career path – and income for that path should be used to assess this loss;
- LPN education would have completed, allowing her to work full time by as an LPN in Jan 2020;
- Two years as an LPN would have followed;
- Four years Bachelor of Science would have followed after that for an RN;
- Would have worked as an RN until age 65.
- Claim for 10% in overtime pay in each year;
- Claim for 10% in other premium pay;
- Claim for Municipal Pension Plan as contributions would have continued.
- Claimant is competitively unemployable in any capacity as a nurse
- Claimant is competitively unemployable in any other capacity, including sedentary work.
Risk only contingencies and choice contingencies were discussed.
What is the difference between these two contingencies?
Risk only contingencies: account for the probability that a BC female will be forced into unemployment or part-time work
Choice contingencies: account for a person choosing not to participate in the workforce. This type of contingency may not apply in situations where one can prove that the Claimant was committed to their career and have continued to work and that a Claimant would not have “voluntarily” left the work force.
- The Claimant would not have pursued a Bachelor of Science in Nursing degree;
- Would not become an RN (as she was doing her LPN at age of 32) therefore unlikely;
- Would not have returned to school at 36 for a 4 year program;
- There is no evidence to suggest she would have gained admission into such a program;
- Should deduct both Risk and Choice contingencies;
- The Claimant has demonstrated a good work ethic and motivation;
- The Claimant has significant administrative experience and skills;
- No expert has expressed the opinion she will never work again;
- There are routinely available for workers in the health sector of sedentary job with accommodations;
- There is evidence that the administrative jobs the Claimant has had in the past in the health sector have paid about 75 percent of an LPN position.
- Defence position is that the award under this category should be in the range of $327,500 and $433,000.
This decision offered very detailed reasons by the Court which stated that the defence analysis does not adequately reflect the impact of the claimant’s functional limitations and guarded prognosis.
The Court used the earnings approach.
Below, is the analysis of the Court which is a good read:
 I will start my analysis by assessing Ms. P’s likely without-Accident future earnings.
 In my view, there is a real and substantial possibility that Ms. P would have achieved an RN degree in accordance with the timeline posited by her counsel, but the likelihood she would have done so is far from certain. I accept that she is a hard-working, motivated, and determined person, and that she has the intellectual capacity required to complete a nursing degree. However, she is also realistic and practical, as reflected in her decision to start with an LPN diploma because of a concern about making the four year commitment to become an RN, which would have required her to incur significant student loan debt.
 I am doubtful that Ms. P could have worked more than the odd shift as an LPN while also completing the degree. Ms. S, who is a clinical instructor of nursing degree students, testified that it would be very challenging to work part-time as an LPN and also complete the degree requirements. It is very likely that Ms. P would have had to incur significant student loan debt to complete the degree and, given her age, there is a real and substantial possibility she would have decided against doing that. This conclusion is also supported by the evidence of Mr. W who identified Ms. P’s age and the cost of education as barriers to her retraining.
 There is no evidence in the record on which to assess the likelihood of Ms. P getting into a degree program, but it is reasonable to infer that gaining admission is not a certainty. Accordingly, even if she was prepared to incur the cost, there is a real and substantial possibility that she would not have gained admission.
 In all the circumstances, I assess the likelihood that Ms. P would have completed a degree in nursing and become an RN had the Accident not occurred, at 25 percent. I am satisfied that absent the Accident there is a near certainty that Ms. P would have completed the LPN program by late 2019 and started working full time as an LPN in January 2020.
 I am satisfied that it is a near certainty that but for the Accident, Ms. P would have chosen to work full time to age 65, would have taken advantage of some overtime opportunities and opportunities to earn premium pay, and would have remained a member of the MPP. I accept her evidence about her commitment to work in general, and in the health care sector in particular. She has proven herself to be a committed and hard-working person, who valued her career. There is very little chance she would have voluntarily pursued a different type of work or left the workforce. In all the circumstances, I am satisfied that when assessing her without-Accident capacity it is necessary to apply risk-only contingencies. In my view, it would not be appropriate to also apply negative-choice contingencies unless positive contingencies associated with future promotions are also applied. I am also satisfied that it is necessary to include an additional amount of earnings for overtime and other premium pay, but it is not reasonable to quantify this at 20 percent each year solely on the basis that this is the amount she earned in 2021.
 Ms. C’s methodology was not challenged by the defence. Given the findings outlined above, it is appropriate to assess Ms. P’s without-Accident earning capacity by starting with Ms. C’s estimates for the LPN to age 65 scenario, adjusted for risk-only contingencies but adding only a total of 10 percent for overtime and premium pay, and then grossing that up by 25 percent of the difference between that amount and the estimates for the RN scenario, but including only 10 percent for overtime and premium pay, to reflect the 25 percent likelihood that Ms. P would have become an RN.
 Ms. C’s estimate of without-accident future earnings (base pay) with risk-only contingency deductions in the LPN scenario is $1,330,405. I add 10 percent, or $133,041, to reflect the overtime and premium pay; Ms. C’s estimate of the net present value of the loss of MPP benefits in the LPN scenario adjusted for risks only which I calculate at $222,887 ($267,805 – $44,918); and Ms. C’s estimate of the net present value of the loss of CPP benefits in the LPN scenario adjusted for risks only which is $64,189. The sum of these amounts is $1,750,522. To that I add $131,260, which is 25 percent of the difference between that amount and Ms. C’s RN scenario but with only 10 percent for overtime and premium pay (($2,275,563 – $1,750,522) X .25), to reflect the 25 percent likelihood that Ms. P would have become an RN. On this basis, I assess Ms. P’s without-Accident capacity at $1,881,782.
 I turn now to Ms. P’s with-Accident, or residual, capacity.
 As I have said, I accept Ms. P’s evidence about her commitment to work in general, and in the health care sector in particular. She is a dedicated and hard-working person with initiative, who places a high value on a career. I am satisfied that she will be motivated to work, even with some ongoing pain. From the evidence of Ms. E and Ms. S it is apparent that she is highly regarded by her colleagues. Mr. W acknowledged that accommodations are routinely available for workers in the health sector. It is apparent from Ms. P’s evidence that casual and part-time positions are available in the health sector. In the circumstances, I am satisfied that opportunities to work will be available to Ms. P if she is physically capable of working.
 The expert evidence overwhelmingly supports the conclusion that Ms. P was not capable of working, in any capacity and to any degree, at the time of the trial. Dr. C opined that as at the date of his second report (July 6, 2022, two months after the second surgery), she was completely disabled from nursing and also not able to work in any job. After the first surgery but before the second, Dr. G expressed the opinion that Ms. P was no longer competitively employable as an LPN full time and was unlikely to be competitively employable full time in the future. At that time, he suggested it might be best for her to upgrade to an RN or find a job in home care or other types of nursing that do not require heavy lifting or repetitive bending. However, when he reassessed Ms. P two months before the second surgery but after the MRI showing a recurrence of the herniated disc, he considered her wholly impaired from most life activity. Ms. W’s opinion, expressed following a reassessment about six weeks after the second surgery, was that Ms. P no longer met the minimum functional capacity to work in any competitive occupation in a full or part-time capacity, including sedentary work.
 The more difficult question is whether there is a real and substantial possibility that Ms. P’s condition will improve enough to allow her to work to some extent. I have found that there is a real and substantial possibility that she will experience some improvement in her condition by about May 2024. No expert expressed the view that she is unlikely to ever be able to work again. She returned to the LPN program about six months after the first surgery. It is clear she was not able to meet all the physical demands of nursing on a sustainable basis at that time, but she was able to work to some extent. In June 2021, Ms. W’s view was that she could manage full-time work in a flexible, sedentary job. In March 2022, Mr. W’s view was that she would likely be able to obtain and maintain casual short-term administrative employment. In July 2022, after the second surgery, Dr. C’s view was that she probably would remain “permanently significantly disabled due to her chronic pain” and not able to return to working as an LPN or in any position with similar physical requirements, but he did not rule out sedentary work. This evidence satisfies me that there is a real and substantial possibility that her condition will improve enough to allow her to work in a flexible sedentary job on a part-time basis.
 Determining the likelihood of that outcome is very difficult. However, because of Ms. P’s motivated nature, I assess the likelihood to be relatively high. In all the circumstances, I find that there is a 75 percent chance that by about May of 2024, Ms. P will be capable of half-time, flexible, sedentary work.
 I turn now to quantifying that residual capacity in dollar terms. As mentioned, there is evidence that the administrative jobs Ms. P had in the past in the health sector paid about 75 percent of an LPN position. Ms. C estimated the future earnings of an LPN, including pension benefits, but excluding overtime and premium pay, at $1,617,481. From this, I conclude that a full-time, sedentary, administrative position in the health sector would generate future earnings (including pension benefits) of about $1,213,110 (75 percent of $1,617,481). If Ms. P worked half time, that would generate future earnings of about $606,555. I have found that there is a 75 percent chance that Ms. P will be capable of earning at this level by about May of 2024. In all the circumstances, I assess her with-Accident earning capacity at 70 percent of $606,555, or $424,589, to reflect the 75 percent likelihood that she will return to this capacity, the delay in her getting there (to about May 2024), and the likelihood that she will have future periods of unemployment due to pain flare-ups.
 A comparison of Ms. P’s likely without-Accident future earning capacity ($1,881,782) and her likely with-Accident earning capacity ($424,589) leads me to assess her damages for loss of future earning capacity at $1,457,193.
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