$92,000 Diminished Capacity Award Despite “80-90%” Recovery From Chronic Soft Tissue Injuries

Reasons for judgment were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered but lingering soft tissue injuries and chronic pain following a collision.

In the recent case (Bhumrah v. McLeary) the Plaintiff was injured in a collision caused by the Defendant.  The Defendant accepted fault for the rear end crash.  The collisions resulted in soft tissue injuries.  Despite enjoying “80-90%” recovery the Plaintiff had lingering chronic pain and depression secondary to these injuries.  The injuries were “expected to continue, to some degree, into the future as well. “.

The Plaintiff was employed as commercial transport mechanic.  He missed considerable time from work but eventually was able to return.  Despite this there was evidence that the lingering injuries were not particularly compatible with work of this physicality.   In assessing damages for diminished earning capacity at $92,000 Madam Justice McDonald provided the following reasons:

[54]         After considering all of the evidence, I find that the Accident caused Mr. Bhumrah injuries, including his depression, which have become chronic. These injuries are expected to continue, to some degree, into the future as well. Mr. Kowalik described that Mr. Bhumrah’s physical limitations make his current job a less than ideal fit for his functional capacity.

[55]         Mr. Bhumrah’s pain from his physical injuries is intermittent depending on what he is doing. He also continues to seek treatment for his mental health, and he suspects, and I agree, that his physical injuries have made him less able to cope with life’s common stressors, such as financial and family issues.   …

[67]         In assessing future loss of earning capacity, I must take into account the additional contingency that Mr. Bhumrah’s future employment aspirations involve moving into a management position. Mr. Bhumrah has considerable experience with union duties, and he is a bright, hard-working employee. He tendered several letters from his employer congratulating him on his years of exemplary service. Therefore, in assessing the loss of earning capacity, I must weigh the possibility that Mr. Bhumrah could achieve his goal of working in management.    

[68]         Mr. Kowalik assessed Mr. Bhumrah as best suited to sedentary to medium strength category jobs. Importantly, he concluded that Mr. Bhumrah’s job as a commercial transport mechanic exceeded the strength category that Mr. Kowalik has assessed him as best suited for. From a vocational perspective, Mr. Kowalik concluded that Mr. Bhumrah’s competitive employability in any occupation has been compromised due to his residual physical limitations.

[69]         Taking all of the evidence into account, and weighing the various positive and negative contingencies, I have concluded that there is a real and substantial possibility that Mr. Bhumrah’s pain and limitations from the Accident will impair his ability to perform his job as a commercial transport mechanic or to work at a job that exceeds his assessed strength category. However, I am also satisfied that there is a real and substantial possibility that Mr. Bhumrah will achieve his career goal of moving into a management position within a reasonable period of time.

[70]         I have concluded that there is a substantial possibility that Mr. Bhumrah will suffer a future loss of earning capacity until he is able to achieve his goal of moving into a management position. Until Mr. Bhumrah is able to move into a management position, I find that his ongoing symptoms and his reduced functional capacity are likely to impair his future earning capacity as a heavy transport mechanic.

[71]         I assess this loss of capacity at $14,000 per year for up to seven years and after that, I find it more likely than not that Mr. Bhumrah will have moved into a management role. Therefore, using the present value table multiplier of 6.5982 for seven years at 1.5%, in accordance with s. 56 of the Law and Equity Act, R.S.B.C. 1996, c. 253, and the Law and Equity Regulation, B.C. Reg. 352/81, as amended by B.C. Reg. 74/2014, which provide that the discount rate used to calculate the present value of future earnings is 1.5%, I arrive at $92,000 as the rounded assessment of the present value of Mr. Bhumrah’s loss of future earning capacity.

bc injury law, Bhumrah v. McLeary, diminished earning capacity, Madam Justice McDonald

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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