Moukhine vs Collins 2012
Moukhine v. Collins
Serguei Moukhine, Plaintiff, and
Gerard F. Collins and Michelle C. Collins, Defendants
 B.C.J. No. 150
2012 BCSC 118
British Columbia Supreme Court
Vancouver, British Columbia
J.E. Watchuk J.
Heard: May 2-6, 9-13 and 16-20, 2011.
Judgment: January 26, 2012.
Damages — Types of damages — For personal injuries — Considerations — Extent of incapacity — Loss of earning capacity — Special damages — Past loss of income — Expenses and expenditures — Non-pecuniary loss — Pain and suffering — Action for damages for personal injuries suffered in a 2007 motor vehicle accident allowed — Plaintiff, 53, was a computer programmer earning $93,000 annually — Since the accident, plaintiff could no longer concentrate and could only work part-time — Plaintiff suffered Visual Vestibular Mismatch in accident which was likely permanent — Plaintiff was awarded $90,000 in non-pecuniary damages, $218,000 for past loss of income, $335,000 for loss of earning capacity and $2,714 for special damages.
Action for damages for personal injuries suffered in a 2007 motor vehicle accident. The plaintiff was rear-ended by the defendant. At the time of the accident, the plaintiff was 53 years old. He was a computer programmer and earned about $93,000 annually. Prior to the accident, the plaintiff enjoyed many outdoor activities and dancing. After the accident, the plaintiff experienced headaches, nausea and a sore neck. He also complained of dizziness and that objects were spinning in front of his eyes. The plaintiff could not return to work as he could not concentrate. Since the motor vehicle accident, the plaintiff was unable to run or jog, ski, play soccer, dance, kayak, or rollerblade. The medical evidence indicated that the plaintiff sustained a vestibular injury as a result of the collision. The plaintiff continued to work from home as he was unable to work full-time. He now earned about half of his pre-accident salary. The plaintiff was no longer able to participate in many outdoor activities.
HELD: Action allowed. The court accepted the medical evidence that the plaintiff had Visual Vestibular Mismatch as a result of the accident which had not resolved. It was unlikely that there would be further significant improvements to the plaintiff’s condition or symptoms. Non-pecuniary damages of $90,000 were awarded. The court also accepted that the plaintiff suffered from dizziness which prevented him from working as a computer programmer. The plaintiff’s past loss of income was determined to be $218,000. Considering that the plaintiff’s vestibular abnormality was likely permanent, there was a substantial possibility that he would continue to experience income loss indefinitely into the future. The value of the plaintiff’s loss of income earning capacity was determined to be at $335,000. He was awarded special damages of $2,714.
Counsel for the Plaintiff: Y. Gertsoyg.
Counsel for the Defendants: W.N. Fritz, P.R. Simard.
Reasons for Judgment
TABLE OF CONTENTS
A. Prior to the motor vehicle accident
B. The Motor Vehicle Accident
C. After the MVA – Evidence of Mr. Moukhine
D. The Evidence of the Plaintiff’s Family
E. The Evidence of the Plaintiff’s Friends
F. Video Surveillance Evidence
C. Dr. Donald W. Stewart
D. Dr. Alister Prout
E. Dr. Neil S. Longridge
F. Dr. Roy O’Shaughnessy
G. Dr. Beckman
H. Dr. Eytan David
SUBMISSIONS OF THE PARTIES
- i. Non-Pecuniary Damages
- ii. Past Wage Loss
- iii. Loss of Income-Earning Capacity
- iv. Special Damages
J.E. WATCHUK J.
1 This is a claim for damages arising out of a motor vehicle accident which occurred on April 23, 2007, in Vancouver, British Columbia. The plaintiff Serguei Moukhine was driving to work when he was rear-ended as he was stopped waiting to turn left onto Marine Way.
2 Liability is admitted and the trial proceeded as an assessment of damages.
3 The major issues are the injuries sustained by Mr. Moukhine and the damage to his balance system resulting from those injuries. Wage loss, past and future, is in issue.
A. Prior to the motor vehicle accident
4 At the time of the accident Mr. Moukhine was 53 years old. He was born in 1953 near Moscow and graduated from Moscow State University, Department of Computers in 1975. He received his Ph.D. in computer science.
5 His work history includes working as a computer programmer in physics near Moscow, in Switzerland, and then in Germany.
6 In 1999 Mr. Moukhine immigrated to Canada and became a resident of Vancouver.
7 His first job in Canada was in the IT department of Future Shop which was later sold to Best Buy. In 2005 that IT department was outsourced to Accenture Inc. where Mr. Moukhine remains employed as a senior application developer.
8 He is married and had two daughters. The younger daughter, Anastasia, is a math teacher in Vancouver. His older daughter died from cancer in January 2010.
9 At Accenture Mr. Moukhine developed a system to help other computer systems interact with each other. He was also involved in the architectural part of the work, which includes creating products and setting standards for the users of the products.
10 Mr. Moukhine’s normal office hours prior to the motor vehicle accident were eight hours per day when car pooling and ten to twelve hours a day when he was not car pooling. He also often worked from home on evenings and weekends. He liked his job.
11 Mr. Moukhine enjoyed many outdoor and physical activities including running almost every morning, hiking, biking, kayaking, rollerblading, downhill skiing, and ballroom dancing. He participated in a soccer group once a week with his friends from work. His last ski trip was a month before his collision, in March of 2007.
12 Prior to the accident Mr. Moukhine was in good health. He had had some problems with cholesterol, lower back pain and his prostate. His regular doctor was a homeopathic doctor, Dr. Ovodova.
13 There was one pre-accident complaint of fog in the head by Mr. Moukhine to Dr. Ovodova two years before the accident. This clinical entry was preceded by words to the effect of: Stress at work of wife. Everything normal. Myocardit in the past. There was no accompanying complaint of dizziness or imbalance. No work was missed.
B. The Motor Vehicle Accident
14 The motor vehicle accident (the “MVA”) occurred as Mr. Moukhine was driving his Honda Accord vehicle, car pooling with two co-workers, on his way to work on the morning of Monday, April 23, 2007. He was stopped at a t-intersection at Nelson and Marine waiting for the traffic to clear to make a left-hand turn from Nelson onto Marine Way. He was leaning forward and looking left when he saw a gap in the traffic and started to move his foot from the brake to the gas. At that moment he was struck from the rear by a Ford Ranger pickup truck operated by the defendant, Gerard Collins. He believes that he probably hit the headrest with his ear but does not recall. His vehicle was pushed forward two to three meters.
15 After the accident Mr. Moukhine got out of the car, exchanged information with the other driver, and because his car was drivable and his work was close, he drove to work. There was $7,500 dollars worth of damage to his vehicle on the rear left side which was pushed in.
C. After the MVA – Evidence of Mr. Moukhine
16 Mr. Moukhine testified that immediately after the impact he felt stressed, like he had the flu. That feeling continued throughout the day. He tried to work but found it pretty much impossible as the screen in front of his eyes was shaking and it was hard to concentrate or think.
17 When he got home that evening he still felt the flu-like symptoms in his head and a bad headache had started.
18 He had not told his wife that he had been in a motor vehicle accident. His wife gave him some naturopathic medication for the headache. As the medicine did not help and she noted that he was pale, his wife had him call their homeopath, Dr. Ovodova. It was on overhearing this conversation that she learned that Mr. Moukhine was in a collision and that he was advised to go to hospital.
19 The next day he went to the hospital as a result of the headache. At the hospital he was given Tylenol and told to go to his family doctor if the symptoms got worse.
20 He testified that at work the next day the screen was shaking in front of his eyes and he could not concentrate. He stayed at work the whole day because he was car pooling.
21 He developed a noise in his ears, or tinnitus.
22 He recalls that the date following, or the third day after the accident, he stayed home because he was feeling very bad. Many things started happening that day: objects were spinning in front of his eyes, he had a headache, a pain in his left ear and temple and at the lower left side of his head and neck and that his spine was painful. He was dizzy and nauseous. As he could only concentrate for five to ten minutes at a time, he was unable to work from home and spent most of the day in bed.
23 He first saw Dr. Stewart on Monday, May 1, 2007. Dr. Stewart was Ms. Moukina’s family physician prior to this collision, but had not previously treated Mr. Moukhine.
24 Mr. Moukhine recalls that he took a taxi to the doctor, from Coquitlam to West Broadway, but the evidence is not clear as there is no taxi receipt. His symptoms on that visit were objects spinning, nausea, and headaches as well as a sore neck.
25 Early on, Mr. Moukhine had considerable difficulty driving, and had to take a taxi to several appointments.
26 The day after the appointment with Dr. Stewart, objects were again spinning, and the dizziness and nausea continued. He got tired very easily and found it difficult to concentrate. As Dr. Stewart had recommended that he not lay down, he tried to be active as much as he could. The maximum that he could walk was 30 minutes, then after lying down on the grass he would try to continue. He attended the hospital again the next week as his headache was very bad and his wife was concerned that he had lost consciousness. An ambulance took him to Eagle Ridge Hospital where he reported still having a headache, nausea, and being unstable and shaky. A CT Scan was done at the hospital.
27 Two days later, Mr. Moukhine felt even worse. He had a bad headache. His wife thought that he may have passed out and called an ambulance. He was taken to Eagle Ridge Hospital, where complaints of headache, nausea and changes in coordination were noted. The diagnosis was “post-concussion symptoms”.
28 The spinning of objects lasted for about five to ten minutes at a time for three to four weeks.
29 In July 2007, on Dr. Stewart’s referral, Mr. Moukhine saw Dr. Longridge, who is a specialist in otolaryngology. At that time he still had headaches, dizziness, and had spinning inside of his head, but not objects spinning in front of him. His main concern was not being able to concentrate or “think through” when doing work or anything on the computer. The treatment prescribed was exercises in order to train the vestibular system.
30 Mr. Moukhine was not able to return to work since concentration was only possible for ten or fifteen minutes. He did work from home over the internet. He continued to try to advise his colleagues by e-mail.
31 As he and his wife had a pre-planned trip to Hawaii, they went to Hawaii in the summer of 2007. He felt better there, soaking in the warm water and being more active.
32 In August he went to see Dr. Prout, a neurologist. At that time he had some headaches, dizziness and nausea. His main concern remained that he could not work on the computer or concentrate or think clearly. His headaches were better at that point than before. Dr. Prout noted some improvement, but “a sense of dizziness suggesting a degree of visual vestibular mismatch”. He was the first to offer this diagnosis.
33 At Dr. Stewart’s recommendation Mr. Moukhine attended a chiropractor to treat the pain in his neck and upper back. After that treatment, his headaches became much less frequent and the pain in his neck stopped.
34 As a gradual return to work was suggested by Dr. Stewart, he was given a schedule of three hours a day, three days a week. On October 29, 2007, he went back to work but after two hours, he found himself so exhausted that he could not continue to work, although with people seeking his advice, he stayed three hours. At the end of that time he had to drive 45 minutes to get home. He felt it unsafe to drive in that exhausted condition. Although he was able to drive to work by this point, he found that the drive further exhausted him and reduced the number of productive hours that he could devote to work.
35 As a result of that experience, his employer accommodated him and allowed him to work from home on a schedule that he could handle.
36 The schedule at home commenced with half an hour of work and then a long rest of two to three hours. After half an hour of work he found it difficult to concentrate, had heaviness in his head, found it difficult to remember even simple things, and felt dizzy and nauseous. Although it was slow at first, he was eventually able to increase the time that he was able to work.
37 On November 8, 2007, Mr. Moukhine attended Dr. Longridge’s office for a balance test. The testing included putting cold water in his ear. It revived a lot of the sensations from after the accident, including objects spinning and a strange sensation as if wearing glasses that are too strong. The spinning symptoms lasted for four days.
38 When he saw Dr. Stewart on November 15, 2007, it was recommended that he take some time off work.
39 Mr. Moukhine saw the neurologist Dr. Spacey in December. His main concern was not being able to “think through” or concentrate for a significant period of time. He also felt nausea, spinning inside his head and some headaches.
40 Mr. Moukhine attempted to return to work from home in January 2008 again on a schedule of working one half hour and stopping for two to three to hours before working again for another half hour. His ability gradually improved so that he could work longer hours, 45 minutes to 60 minutes, with shorter breaks. He found one hour of work with two hours of a break to be the best schedule.
41 Mr. Moukhine described his symptoms at this time as having a heavy head, like cotton in his head. He would try to think and could not. He found it difficult to remember things, to make judgments and to concentrate. He also had rotations and dizziness and nausea if he pushed himself too much. As a computer programmer, Mr. Moukhine described that he had to be clear of mind as a result of the nature of programming because if a mistake is made, it takes days to find the mistake.
42 Mr. Moukhine described his symptoms as follows in evidence in chief:
|Q||Now, if you could describe how you feel at the time that you — you need to stop work?|
|A||Uh, well, my head, it would become heavy and it was a feeling, like, you have some cotton in your head. Something like, you know — I don’t know, it’s difficult to explain. Something like you — you are trying to think through and you cannot really go through this. And it makes you difficult to remember things and then makes it difficult to make good judgment of what you are doing again and really difficult to concentrate is the problem.|
Anyways, so when those — this heaviness in the head and inability to think clearly happens, also have some other symptoms. Those, like — like, could be like dark in the eyes and feeling again, this, like if you wear strong — strong glasses. And, like feeling of kind of partition inside your head and some type of — well, I don’t know. It’s much always — also the dizziness. And I figured if I trying to push myself too much, then after business I would have diarrhea and sometimes get some headaches, as well.
|Q||Now, when you talk about dizziness, what symptoms of dizziness do you mean? Or what forms of dizziness?|
|A||Well, by dizziness, I mean, well, you have this feeling of heaviness in your head and the feeling kind of a spinning inside your head. And I might get the feeling of kind of instability. Well, actually when I was doing some, like, physical activity it could also be some light — light-headedness.|
43 Mr. Moukhine describes dizziness as a heaviness in his head, a spinning in his head, instability, and light-headedness when doing physical activity.
44 In cross-examination he gave this description:
|Q||Okay. I’m going to suggest to you that it’s not the dizziness that’s limiting you, is it?|
|A||And what it is?|
|Q||No, I’m just suggesting to you it’s not just – – it’s not the dizziness that limits you from working full time, do you agree or disagree?|
|A||Uh, I’m not a doctor unfortunately.|
|Q||No, but you are an individual and you do know how you feel?|
|A||I — I — I — know that what happens is that I’m getting symptoms of like heaviness in my head and like dark in my head and it’s – – it’s getting more – – more difficult to concentrate, to think things through and to remember things. And then it might also give the nausea. And that – – the thing that at that point I cannot think through properly and I cannot, like, make proper decisions. That’s what stops me from doing my work.|
|Q||Well, I’m just trying to do it a different —|
|A||Unfortunately, all the symptoms, they come all together|
|Q||I’m trying to do it a different way.|
|Q||All I’m saying to you is the dizziness is not what limits you from working to full time, is it?|
|A||Uh, this is – – this feeling of- – of like, heaviness in my head and feeling the – – the difficulty [indiscernible/coughing] right and difficulty to – – to think through and difficulty to remember, which bothers me that I – – that I have to stop working. But all this comes together, these difficulties.|
|Q||Okay. You were examined for discovery on the 21st day of March 2011? Correct?|
|A||Right. I don’t remember the date.|
|Q||I’m going to show you a transcript and you can refresh your memory with that.|
|Q||Did you affirm to tell the truth in that examination for discovery?|
|Q||Okay. Sir, if I can take you to page 181 of the transcript.|
|A||One hundred and?|
|Q||One eight one.|
|A||One eight one. Yes.|
|Q||[As read in]:|
|Q||Okay. Is there no dizziness involved here when you are working on the computer?|
|A||Well, it is. Well, sorry. Well, it is. It is also like if other effects is dizziness and nausea but well, I can somehow live with this. I mean, in the sense that I can still continue working if I only had dizziness and nausea.|
|Q||Okay. And if I can summarize what I believe you said in your direct examination, what’s limiting you from your work is your inability to concentrate, your inability to think clearly, a heaviness in the head which you — at times you have described in direct examination as a like flu sensation, correct?|
|A||Sorry, sorry, what sensation?|
|Q||Like a flu sensation? Like the flu?|
|Q||Yeah, okay. And at times, I’d suggest to you you’ve different descriptions for all of this? You’ve at times, referred to it as “clouds in your head”?|
|Q||You’ve referred to it as, “cotton in the brain”?|
|A||It’s hard to describe.|
|A||It is hard to describe.|
|Q||I know. But I’m going to suggest to you that one constant descriptor that you’ve used many times and again and again is, “Fog in the head”?|
|A||Maybe, I –I don’t remember that.|
|Q||Okay. Well, you used it with Dr. Beckman on at least three occasions it’s in his report?|
45 Earlier in the discovery, in answer to question 385, also read in at this trial, Mr. Moukhine was asked:
|385||Q Okay. This heavy head or fog in the head that you describe, this is what’s keeping you from working full time?|
46 In 2008 Mr. Moukhine and his wife travelled to Cuba for a vacation. While he was there he felt quite a bit better and was able to do some of the exercises given to him by Dr. Longridge for balance, including being able to throw and catch small objects.
47 In 2009 Dr. Longridge conducted more tests including one involving a shaking platform. The symptoms during that test were similar to those he suffered after working on a computer: spinning in the head, heaviness in the head, nausea and shakiness.
48 With regard to work, at that time he was attempting to work for three hours per day.
49 In later 2008 and 2009, he commenced treatment with a physiotherapist, Nicola Accera at NeuroMotion. His physical condition became better after some initial set-backs but he still had the same problem with concentration.
50 In April and May 2010, Mr. Moukhine went to Hawaii with his wife after his daughter passed away. He was allowed by his team leader at work to work from there for a month. As he was in the middle of an important project at the time, he had to work as much as he could. He started at 7:30 a.m. and would work until 11:00 p.m. for a total of about four to five hours of work.
51 Since the motor vehicle accident. Mr. Moukhine is unable to run or jog, ski, play soccer, dance, kayak, or rollerblade. He is able to do simple hikes without much elevation and with rest breaks.
52 After the accident, he was able to drive only for 10 to 15 minutes before needing a rest of 5 or 10 minutes. That gradually improved. He is now able to drive for an hour. He was unable to do any housework for the first month or two, then could wash dishes and do minor household repairs. After a year he could mow the lawn. Now he can do quite a lot at home including cutting down a tree although it takes longer than it used to before the accident.
D. The Evidence of the Plaintiff’s Family
53 The evidence of Marina Moukina, Mr. Moukhine’s wife, is that she met her husband in 1980. She is also a computer programmer with a Master’s degree. She worked as a programmer in Russia and in Canada until 2005.
54 She describes life with Mr. Moukhine prior to the motor vehicle accident as his being in perpetual motion and always energetic. He felt that he was the luckiest person because his job was his hobby as he was so fanatic about programming.
55 He was always an active person who loved car trips, cross-country skiing, bicycling, hiking, soccer, kayaking, ballroom dancing, and downhill skiing. He did most of the house renovations after they bought their house in 2000. Prior to the motor vehicle accident, she says he was a person who liked the active life a lot. His health prior to the motor vehicle accident was mostly fine although there were minor problems such as myocarditis and a blood pressure problem at one time.
56 Prior to the motor vehicle accident, he had no problems with balance. He had been a gymnast when younger, and had never reported nausea or dizziness.
57 With regard to work, he liked his work so much that he would not stop working until she reminded him. It was also his hobby. He often got calls at home at night if other co-workers were having difficulties. Before the accident he was the architect who designed major projects. Now he is mostly a consultant.
58 Since the accident his personality has changed. He tries to do his best and remain optimistic.
59 Although the ability to watch television was not mentioned by the doctors, Ms. Moukina noted the difficulties of her husband with television. It is improved now from after the accident but still creates problems.
60 As Ms. Moukina does not drive, she has relied on Mr. Moukhine for the driving in the family. His ability to drive has improved since the accident but she still worries about his ability to drive for long distances.
61 Ms. Moukina describes her husband before and after the motor vehicle accident as two different people. Before the accident he was sharp-minded, quiet, organized, with an incredible ability to work and socialize and enjoy life. He just could not sit still. Now, for the most part, his life is sitting still and resting. There is much less socializing. She sees that there is almost no fun left; although he can enjoy nature and communicate with their cat, life is not what it was before.
62 The evidence of Anastasia Moukina, Mr. Moukhine’s daughter, who is 29, is that her father was always active: skiing weekly in the winter, hiking, including the Chief at Squamish, rollerblading, playing tennis and camping. She describes his personality prior to the motor vehicle accident as being a healthy, happy guy who loved his job and loved computing. He was a wonderful skier, able to do the black diamond runs. When camping he would climb trees. On family motor vehicle trips, her father would drive 99% of the time.
63 Since the accident, he is able to walk about half an hour before he becomes pale and dizzy and has to sit down. On the trip to Fairmont, B.C. in 2009 he relied on her for most of the driving.
E. The Evidence of the Plaintiff’s Friends
64 Mr. Moukhine’s friend Elina Kapoustina has a Master’s degree in computer science. She met Mr. Moukhine in 1999 when they both worked at Future Shop. They have since kept in touch as family friends.
65 She describes Mr. Moukhine before the collision as being active and happy, skiing or hiking every weekend and running almost every morning before work. He was a key player on the Future Shop soccer team, practicing and competing in tournaments. His personality prior to the motor vehicle accident was happy, open, enthusiastic, and energetic.
66 Mr. Moukhine was recognized by his employer for the quality and complexity of his work. He was named to an elite group of key IT people. He was passionate about his work.
67 Ms. Kapoustina was in the vehicle, carpooling with Mr. Moukhine as he drove to work on the morning of the collision. She testified that the collision has had a great impact on his life. At first he found it hard to walk, but over time that improved so now he can go on longer walks. She does not see him running or skiing or hiking. He does not dance at their parties. Last year he missed her wedding in Whistler as a result of not feeling well which was unusual for him. He has had to hire people to do some of the work on his house.
68 As a general observation, she describes Mr. Moukhine as a person who was so full of life, but now is like a wilted flower.
69 Alexander Khrissanov is a friend of Mr. Moukhine and a computer programmer. They worked together for five years.
70 Mr. Khrissanov described Mr. Moukhine as one of the best specialists in the field that he has seen. Everyone respects him.
71 Before the accident they often spent time together kayaking, skiing, hiking and rollerblading.
72 Since the accident, Mr. Khrissanov understands that Mr. Moukhine has quit all sports.
F. Video Surveillance Evidence
73 Mr. Moukhine was surveilled on four occasions: November 15, 2007, May 10, 2009, June 5 to 7, 2009 and March 20, 2011.
74 The initiation of surveillance by the defendants on November 15, 2007 was purely coincidental.
75 The plaintiff’s evidence was that as a result of the caloric test of November 8, 2007, he suffered vertigo for a period of four days. This was a set-back, and led to his seeing Dr. Stewart on November 15, 2007. Dr. Stewart, that day, was of the view that Mr. Moukhine needed to immediately stop the gradual return to work that he had commenced on October 29, 2007.
76 The defendants’ investigator, Mr. Palm, observed Mr. Moukhine and his wife depart their residence at 8:27 a.m. and arrive at Dr. Stewart’s at 9:33 a.m. after 66 minutes without a rest. Ms. Moukina said that this exceeded her husband’s capacity to drive on that day. Mr. Moukhine said that he was not sure if he stopped, and might have driven without stopping.
77 In the video clip when Mr. Moukhine comes out of Dr. Stewart’s office, he drives to Gastown for another appointment. He is shown leaving the parkade at the waterfront and walking to the homeopath’s office.
78 The video clip of 1:54 p.m. shows Mr. Moukhine accurately parallel parking his car across the street from Dr. Stewart’s office.
79 The return trip home commences leaving Dr. Stewart’s office at 2:11 p.m. They arrive home at 3:34 p.m., or in 84 minutes. Ms. Moukina’s evidence is that this exceeded Mr. Moukhine’s then limit by 34-44 minutes. The investigator has no note of a stop.
80 The explanation of Mr. Moukhine is that with the 84 minute trip, they must have stopped along the way since the usual time is 55-65 minutes and the usual route home is with a stop.
81 The abridged video of May 5, 2009 shows Mr. Moukhine and Ms. Moukina out for the day.
82 On June 5, 2009 the plaintiff worked three hours and then proceeded with a home improvement project, using what is commonly referred to as a chop saw, squatting, crouching, or bending over.
83 On June 6, 2009 Mr. Moukhine is shown as he hops up onto a chair, motions with his arms, hops down, moves the chair, and then repeated the process.
84 On June 7, 2009 video, Mr. Moukhine stepped onto a refrigerated display case in a busy store and reached up to locate an item.
85 The last video is of the day of March 20, 2011. Mr. Moukhine and Ms. Moukina drove from their home in Coquitlam to Mission. After spending time at their place of worship, they drove east to Harrison, shopped, and then drove back to Coquitlam. They stopped at a gift shop, a deli, a gas station, while waiting for a train, and at a market.
86 The plaintiff called as witnesses Dr. Stewart, his general practitioner, and Dr. Longridge, Mr. Moukhine’s treating otolaryngologist. Reports from Dr. Prout and Dr. Spacey, neurologists to whom Dr. Stewart referred him, were filed.
87 Dr. David, an otolaryngologist, was called as a witness for the defendants. He saw Mr. Moukhine on one occasion and wrote a full report. In addition Dr. Beckman, a neurologist, testified about his report. The defendants filed a report from Dr. O’Shaughnessy, a forensic psychiatrist.
88 Medical terms are frequently used in the reports and evidence of the doctors. The descriptions of the terms below are taken primarily from the evidence of Drs. Longridge and David who are both otolaryngologists. They are intended as an aid and do not purport to be a medical dictionary.
* The balance system is comprised of three parts: The skin on one’s feet and joints; vision; and the vestibular system or inner ear.
* BPPV or Benign Paroxysmal Positioning Vertigo is a disorder of the inner ear caused by calcium particles becoming detached and floating into the canal. It is accompanied by a form of eye movement referred to as positioning nystagmus.
* Computerized Dynamic Posturography (CDP) test is a six-part test used to measure the ability to balance. It was developed by NASA and is used worldwide. It is also referred to as the SOT or Sensory Organization Test.
* CVEMP or the Cervical Vestibular Evoked Myogenic Potential is a balance system test which became available in November of 2010.
* Hallpike Manoeuvre is a test which assists in identifying Benign Paroxysmal Positioning Vertigo. It is also referred to as the Dix-Hallpike.
* Dizziness is a non-specific term which indicates a substantial incapacity of the balance system. It can be spinning vertigo which is described by the international sign of a swirling hand. It can be described as light-headed or heavy-headed and it can be accompanied by vomiting. It generally is a miserable feeling.
* Labyrinthe is the balance mechanism inside the inner ear.
* Nystagmus is an involuntary beating eye movement, either fast or slow. It has different forms including spontaneous, induced, positional and positioning.
* Otolaryngology is a medical specialty concerned with diseases and disorders of the ear, nose and throat including balance disorders.
* Tinnitus is a noise heard when there is no sound. It is significant if it is persistent and intrusive. It is frequent with ear disease, including trauma.
* VEMP is Vestibular Evoked Myogenic Potentials, which is an electrophysiologic test of otolith function.
* Vertigo indicates spinning or having one’s surroundings spin around them.
* Video Oculography balance testing includes a caloric component which can simulate dizziness.
* VVM or Visual Vestibular Mismatch occurs when dizzy symptoms are induced by activities around a person such a striped carpet or activity in shopping malls. It is accompanied by dizziness, imbalance and nausea. One of the instigators is the use of a computer. Visually induced vertigo and visually induced dizziness are new terms being used internationally.
C. Dr. Donald W. Stewart
89 Dr. Stewart is Mr. Moukhine’s general physician. He first saw Mr. Moukhine eight days after the accident, on May 1, 2007. At that time he reported soft tissue injuries to the cervical spine, dorsal spine and lumbar spine. He also reported dizziness and nausea.
90 On the first visit, Dr. Stewart noted true vertigo, with the room spinning around the patient. On neurological examination there was no nystagmus noted.
91 Dr. Stewart diagnosed the dizziness as a “likely traumatic injury to the labyrinth causing dizziness and nausea, so called concussive labyrinthine injury”. With regard to a note of cerebral concussion, Dr. Stewart stated in his first medical legal report dated January 28, 2008 that:
Although he did not strike his head and was not unconscious but due to the heavy forces involved in this collision the brain likely shifted inside the skull, striking the back and the front of the skull causing edema. Symptoms of concussion.
92 From May 25 to June 6, 2007, Dr. Stewart noted that Mr. Moukhine continued to experience pain in the back of the head and dizziness with all movements. He also noted:
… great difficulty with balance and concentration, and memory, difficulty remembering recent events. He had brain fog and feelings of confusion most of the time. Even after walking for 15 minutes he found it necessary to lie down as he felt weak and dizzy.
93 The MRI scan of the head done on July 11, 2007 was normal.
94 Dr. Stewart referred Mr. Moukhine to a neurologist, Dr. Prout, and to Dr. Longridge.
95 On October 18, Dr. Stewart discussed with Mr. Moukhine his returning to work on a graduated schedule starting October 29. Mr. Moukhine was concerned about returning to work with severe headaches, but planned with Dr. Stewart a trial on a schedule of three days at three hours per day increasing to five days at five hours per day by the week of December 10. However when that schedule was attempted, Mr. Moukhine had great difficulty due to headaches and lack of mental clarity.
96 Dr. Stewart noted that after the caloric testing performed by Dr. Longridge on November 8, 2007, the dizziness and headaches again became much worse.
97 On November 15, 2007, Dr. Stewart recommended that Mr. Moukhine stay off work completely until the dizziness became less severe. His notes from that day state:
… Brain fog + lack of mental clarity from Traumatic Brain injury + concussion as well as labrythine disturbance. … The prognosis is good for resolution of soft tissue injuries. … The prognosis is guarded for the injury to the labrynth. … It is now 7 month and the dizziness is still quite severe.
98 Although Dr. Stewart stated during cross-examination that with the plaintiff’s condition on November 15, 2007, he should not have driven a car that day, there is no mention of driving in his notes.
99 In his testimony, Dr. Stewart clarified his statements regarding driving to mean that he could not drive without rests as his report indicates that Mr. Moukhine could not drive for six months.
100 When seen by Dr. Stewart on January 17, 2008, the dizziness was slightly less but it increased markedly with intense concentration as required in Mr. Moukhine’s computer work. He was still experiencing headaches. Dr. Stewart also noted that he could not drive his car, do household chores or recreational activities. He commented that:
The accident had a profound effect on all aspects of his life reducing it to an extremely poor quality.
101 By February 28, 2008, the dizziness had decreased allowing Mr. Moukhine to work for a total of 3 hours per day. Throughout 2008 Mr. Moukhine’s ability to work was limited to 1 hour three times a day with 2 to 3 hours of rest in between.
102 In late 2008 and early 2009 Mr. Moukhine began seeing Dr. Nicole Acerra, a physiotherapist at NeuroMotion Physiotherapy Clinic, who works with head positioning exercises to improve the functioning of the labyrinth. Exercises initially made the dizziness worse but by March 5, 2009, the dizziness was beginning to decrease again and by mid-May his ability to work was back to 1 hour three times a day. It is noted that therapy also assisted his tolerance for driving.
103 As of June 25, 2009, Mr. Moukhine had completed the treatment with NeuroMotion and was able to turn his head from side to side without dizziness. His capacity to work remained at 1 hour at a time before needing a rest. Work beyond 1 hour at a time aggravated the dizziness.
104 By January 2010, Mr. Moukhine’s working capacity was at 1 hour and 20 minutes three times a day before the dizziness increased. On March 11, 2010, Dr. Stewart noted that Mr. Moukhine’s ability to work was not improving and he felt discouraged and frustrated. If he worked over 1 hour the dizziness and headache increased. The limitation again remained at 1 hour three times per day.
105 In May 2010 when Mr. Moukhine was in Hawaii he worked hard to complete a project with a deadline. At that date, Dr. Stewart also noted that the soft tissue injuries were approximately 90% resolved. There was a diagnosis of a cerebral concussion and post-concussion headaches, a concussive labyrinthine injury and severe ongoing dizziness.
106 In his report dated May 17, 2010, Dr. Stewart noted that the total disability was from two days after the accident on April 23, 2007 until October 29, 2007 when Mr. Moukhine returned to work on a reduced work schedule from his home office. The partial disability continues from October 29, 2007.
107 In July 2010, Dr. Stewart noted a slight improvement as in hot weather there was a general feeling of wellbeing and reduced dizziness. In August 2010, the work schedule was 2 hours work and 2 hours off with that schedule repeated for a total of 4 hours work per day. There was continuing dizziness.
108 Dr. Stewart noted that Mr. Moukhine has a “marked[ly] decreased capacity for work due to his injuries.” In noting that he is well motivated to work more, Dr. Stewart testified that that comment originates in his observations of Mr. Moukhine’s frustration as a result of him being a well educated gentleman with a Ph.D. who had been working for ten years at a high level on stimulating projects. His observation was that Mr. Moukhine wanted to get back to working on the top level projects and was frustrated at being stuck.
109 In October 2010, Dr. Stewart noted that the usual work schedule is 3.5 hours per day before causing Mr. Moukhine extreme mental fatigue, an inability to focus and concentrate, and a decrease in memory.
110 The prognosis in Dr. Stewart’s last report dated January 21, 2011 is that “there has been very little improvement in the dizziness [and] in his capacity to work. It is likely that there has been a permanent injury to the labyrinth and it is unlikely to recover.”
111 The conclusion in that report states:
The accident of April 23rd 2007 is directly responsible for the soft tissue injuries to his neck as well as the labyrinthine concussive injury and ongoing dizziness. He has marked decreased capacity for work due to his injuries. This is quite legitimate. He is well motivated to work more and get back to his previous work capacity but due to the way the dizziness becomes worse with mental work, he simply cannot. Working beyond his usual 3-1/2 hours per day causes him extreme mental fatigue and inability to focus, concentrate and he experiences decreased memory. He also experiences general malaise and weakness and he must lie down and rest.
D. Dr. Alister Prout
112 Dr. Prout is a neurologist who saw Mr. Moukhine at the request of Dr. Stewart. He wrote a report dated August 21, 2007.
113 The symptoms noted by Dr. Prout are primarily headaches and dizziness. The dizziness suggested a degree of Visual Vestibular Mismatch.
114 As he did not seem to lose consciousness, it is unlikely that he suffered a concussion. Dr. Prout stated that he was optimistic that Mr. Moukhine would be returning to work in six months.
E. Dr. Neil S. Longridge
115 Dr. Longridge is the head of the division of otolaryngology at the University of British Columbia. He is also a member of the Bàràny Society, which is the premier world society on investigation of balance disease.
116 Prior to Dr. Longridge’s first report dated September 9, 2009, he saw Mr. Moukhine on July 24, November 8 and November 22, 2007, February 5, June 24 and September 18, 2008 and February 5, 2009.
117 On the first visit Mr. Moukhine reported to Dr. Longridge that he initially had dizziness in episodes lasting up to an hour with, as Dr. Longridge noted, an associated vertiginous rotatory spinning sensation. In addition to this he was aware of a constant, slight, mild rotatory dizziness much of the day, perhaps eight hours of the day when he was up and about. His balance was not quite as good as it had been. When working on a computer he would have trouble looking at it because of the dizziness.
118 On July 24, 2007, Dr. Longridge formed the impression that he had “dizziness which was a significant and intrusive complaint with a mild persistent ongoing dizziness much of the day most days with acute episodes of vertigo occurring once a week lasting about an hour”. Some balance rehabilitation exercises were prescribed to optimize function.
119 On November 8, 2007 Mr. Moukhine had Video Oculography balance testing which includes a caloric sensation which stimulated the dizziness he had experienced the first few weeks after the accident. The results were normal. Dr. Longridge concluded that the rotatory nature of his dizziness arose from the balance system of the inner ear as a result of Mr. Moukhine’s reaction to the test. Balance exercises were again encouraged.
120 In his September 19th report, Dr. Longridge noted that:
His episodes of dizziness are rotatory in character and were simulated by the sensation induced during the caloric part of the Video-Oculography (VOG) test undertaken at my request on November 8, 2007, in the Neuro-Otology Unit at Vancouver General Hospital. The similarity of his complaints to the feeling induced by the caloric part of the Video-Oculography (VOG) test means that it is probably arising from the balance system, probably of the inner ear. Results on this test were within the normal range. This is frequently the case in someone who develops dizziness post trauma
121 Through September 18, 2008 Dr. Longridge noted that the symptoms persisted unchanged. Mr. Moukhine had found some information on the internet on the use of hyperbaric treatment as a therapy, but Dr. Longridge explained that there was no easily effective therapy available. Rehabilitation was again encouraged.
122 When Mr. Moukhine saw Dr. Longridge on February 5, 2009, he requested and Dr. Longridge permitted him to undertake the therapy for Benign Paroxysmal Positional Vertigo or BPPV although Dr. Longridge was of the opinion that was not the disorder as the duration of the spells were significantly too long. Although he felt it unlikely that Mr. Moukhine would benefit, the treatment was harmless and he encouraged him to undertake it.
123 In his first report of September 9, 2009, Dr. Longridge was of the opinion that the dizziness was probably arising from the balance system, probably the inner ear. As the onset of the complaints was subsequent to the accident and the complaints were absent prior to the accident and in the absence of any other satisfactory explanation, his opinion was that the accident is the probable cause.
124 During the period until the first report, Dr. Longridge noted some improvement in the dizziness symptoms but also noted that there was still difficulty with dizziness in specific circumstances with rapid close movements such as cleaning a skillet. The main limitation was the dizziness induced by computer use. Dr. Longridge wrote:
Frequently this is seen in people who have Visual Vestibular Mismatch.
Visual Vestibular Mismatch refers to a condition where the patient develops symptoms which are distressing and bothersome. Anyone who has been sitting at a traffic light on an incline and suddenly notices that they are falling back down the incline and rapidly slams their foot on the brake has experienced a situation where a car next to them is in fact moving slowly forward and they misinterpret this and think that they are going backwards. This is a visual vestibular mismatch situation. The individual has had an awareness of visual information misinterpreted into the feeling that they are moving. This is a physiological visual vestibular mismatch. The condition of visual vestibular mismatch which is abnormal or pathological is of similar distressing symptoms induced by a situation where normal people do not get symptoms. Where there is a lot of movement around the individual this causes confusion, distress and dizzy symptoms. The reason for this dizzy symptomatology is that the information from the balance system of the ear, as the patient is moving, does not synchronize or mesh with the information that the patient receives from their own vision resulting in awareness that there is a difference between the two and a sensation of dizziness is produced. Particular situations where this occurs are ones with a lot of movement. Characteristically rippling water and also the standard situation of a lot of movement in a supermarket or shopping mall produces awareness of dizziness. The bright light in these circumstances is frequently complained of. People around the patient are moving relatively indiscriminately and this results in a dizzy sensation. This patient has ongoing symptoms of this disorder. They are limiting him and stopping him returning to normal function. He is managing to work somewhat, but his reduced duration of computer time is a significant handicap.
Unfortunately, this patient has ongoing dizzy symptoms subsequent to a motor vehicle accident in which he was involved. This accident was, by his description, significant, and the difficulties he has are long-term. My experience with dizziness is that it can be expected to improve for a period of two years following an accident and whatever remains at the end of that time is probably going to be present on a long-term, permanent, basis. These present complaints are long-term.
125 The tinnitus was noted to be mild and not a major handicap.
126 Dr. Longridge provided four further reports regarding Mr. Moukhine. The report dated January 14, 2010 describes the CDP test which was undertaken on December 9, 2009 in the Neuro-Otology Unit at Vancouver General Hospital. The patient stands with feet slightly apart looking at a visual surround of clouds and blue sky in increasingly difficult balance circumstances.
127 The equipment was developed for NASA and was used to test astronauts after being in space. The patient is asked to maintain his stance and the amount of swaying which occurs is measured. Characteristic patterns of abnormality are recognized. The results of this test were abnormal indicating that Mr. Moukhine has difficulty maintaining stance particularly in the most difficult condition, but also with a composite score below the accepted limit for normal. Dr. Longridge characterized these findings as objective and confirmatory of a measured abnormality of the balance system which is supportive of Mr. Moukhine’s complaints. The test results support Dr. Longridge’s opinion that Mr. Moukhine has dysfunction of his balance system.
128 The report of Dr. Longridge dated May 5, 2010 responds to the report of Dr. David dated January 5, 2010. Dr. David stated that there is raw data confirming a diagnosis of BPPV. Dr. Longridge responds that by definition, Mr. Moukhine does not have BPPV.
129 The reason for the response is that a diagnosis of BPPV requires dizziness when the nystagmus is visualized in the patient. There was no dizziness at the same time as the nystagmus, and Dr. Longridge also noted that the dizzy spells of Mr. Moukhine were too long to be related to BPPV.
130 Dr. Longridge also commented on Dr. David’s critique of the CDP test. He stated that over the last 15 years the knowledge of this technique has expanded and this testing is now done throughout the world on a standardized system. He quotes an authoritative 2008 article by Cohen and Kimball which concludes that the CDP is an effective and informative method of measuring the balance system.
131 The report of Dr. Longridge dated February 8, 2011 was written as a result of the request for a re-evaluation with respect to ongoing symptoms of dizziness and tinnitus.
132 The tinnitus is not intrusive or significant. Mr. Moukhine continues to take naturopathic therapies to assist with his symptoms.
133 The dizziness and some heaviness of the head occurs if he goes for a walk of 45 minutes or more. Nausea and sometimes diarrhea develop if he uses a computer for more than the present maximum of three hours per day.
134 The opinion of Dr. Longridge at this date was:
This patient’s symptoms persist largely unchanged now almost four years post accident. It is unlikely that there will be significant further improvement in the future. His complaints are significant and intrusive. I stand by the statements made to you in my report September 9, 2009, with respect to this patient’s complaints of tinnitus and dizziness.
135 The last report by Dr. Longridge is dated April 19, 2011 was written in response to a request for him to review the report of Dr. Beckman dated March 1, 2011.
136 With regard to Dr. Beckman’s statement that there has not been any objective evidence of vestibulocerebellar disorder, Dr. Longridge responded with reference to the measured abnormality on the CDP test taken December 9, 2009. That test was repeated March 31, 2011 and on that date the test was in the normal range. However, a new test, the CVEMP test, was also undertaken on the same day. The new balance system test had become available since December 9, 2009. This test was abnormal which suggests that there is something wrong with the right saccule of the inner ear. This is an objective test and “this measured abnormality indicates malfunction of the right inner ear”.
137 Dr. Longridge concluded by stating:
The objectively measured findings confirm that the patient has a measured abnormality of balance function and therefore, the complaints of difficulties with visually induced symptoms related to computer use have laboratory support.
This patient’s symptoms persist largely unchanged now almost four years post accident. It is unlikely that there will be significant further improvement in the future.
F. Dr. Roy O’Shaughnessy
138 Mr. Moukhine was referred to Dr. O’Shaughnessy by the defendants for an independent psychiatric assessment to determine if he has suffered any mental disorder or brain injury as a result of the injuries sustained in the motor vehicle accident of April 23, 2007.
139 In his report dated June 21, 2010, Dr. O’Shaughnessy discussed the concern as to whether Mr. Moukhine had a concussion as a result of the accident. He concluded on the basis of Mr. Moukhine’s report to him that there was no evidence of any loss of any consciousness, loss of awareness, or amnesia and his review of other medical records confirmed that there was no amnesia, but rather “simply the reaction to an unexpected event such as this”.
140 With regard to whether there was a concussion based on the symptoms reported, Dr. O’Shaughnessy discussed this as a “very gray area insofar as there are multiple different schematas for determining whether a person has had a concussion”. From the doctor’s review of Mr. Moukhine and the other material, he did not think that Mr. Moukhine actually had a concussion although he respects Dr. Stewart and Dr. Spacey, another consulting neurologist, who thought that he possibly had a concussion because of the other complaints.
141 Dr. O’Shaughnessy’s evidence was that most of the symptoms, for example the dizziness, are due to vestibular difficulties. The headaches are likely cervicogenic and the problems with concentration seem to be related to the fatigue and dizziness. There is no impairment in cognitive function.
142 The report of Dr. O’Shaughnessy concluded that the accident resulted in soft tissue injuries as well as vestibular difficulties which are not within the area of psychiatric expertise and do not require treatment psychiatrically.
G. Dr. Jeff H. Beckman
143 The report dated March 1, 2011, from Dr. Beckman was written in order to give a neurologic opinion with regard to injury sustained by Mr. Moukhine’s motor vehicle accident on April 23, 2007.
144 Dr. Beckman commented that both reports at Eagle Ridge Hospital refer to headaches being the major complaint, and there is no report of vertigo on review of the hospital records eleven days following the accident. He noted that Mr. Moukhine still has dizziness and problems with concentration, memory and fatigue.
145 The report concluded that there is nothing to suggest that a concussion was sustained and that the headaches would be compatible with cerviocogenic headaches also known as a mild whiplash injury. Dr. Beckman understood that the headaches seemed to have nearly resolved by three months following the accident and expects that he should have been able to return to part-time work after those three months. After six months following the accident most likely Mr. Moukhine should have been able to do his previous job on a fulltime basis.
146 Dr. Beckman did not feel that the symptoms of subjective memory and concentration difficulties were a result of a traumatic brain injury. He stated that there has not been any objective evidence of vestibulocerebellar disorder, but only subjective complaints.
147 Dr. Beckman agreed with Dr. O’Shaughnessy’s interpretation that perhaps Mr. Moukhine over-interprets some relatively normal phenomena.
H. Dr. Eytan David
148 The objective of the report of Dr. David dated February 5, 2010 was to establish whether there is medical evidence of causal connection between the motor vehicle accident and the auditory vestibular (hearing/balance) complaints. Mr. Moukhine attended for one appointment with Dr. David during which his history was taken and neurotologic testing was conducted. Dr. David is a specialist in otolaryngology and is a member of the Scientific Review Board for the Journal of Otolaryngology.
149 In his report Dr. David stated his impressions as follows:
S.M.’s history, medical documentation, clinical examination and objective examination are suggestive of resolved posttraumatic right benign paroxysmal positional vertigo (BPPV). S.M. describes onset of episodic rotary hallucination approximately seventy-two hours post-MVA. He describes duration on the order of seconds to minutes of each episode, no attendant hearing loss or change in tinnitus. He describes daily such symptoms mainly on lying back in bed lasting the order of several weeks. This clinical history is suggestive of BPPV which he is characterized by discrete episodes of rotary hallucination on turning the head, classically on lying down and rolling over in bed. The short duration of symptoms, lack of other focal neurologic symptoms is commonly associated with BPPV.
150 He stated that this “constellation of symptoms is suggestive of posttraumatic BPPV in its onset, character, duration and resolution”. He went on to state that Mr. Moukhine described his current balance functioning as good overall and describes mild symptoms of imbalance. The term “suggestive of” is not the same as “diagnosis”.
151 There was no evidence of ongoing BPPV at the clinical neurotologic examination conducted at the appointment with Dr. David. However on reviewing the raw data from the Dix-Hallpike maneuver conducted by the office of Dr. Longridge in November 2007, Dr. David concluded that a diagnosis of right Benign Paroxysmal Positional Vertigo (BPPV) was present at that time. The basis for his conclusion was the fatiguing nystagmus in the Hallpike hanging right position. He concluded that “this data is sufficient to diagnose BPPV at the time”. There was no vertigo accompanying the nystagmus in that test.
152 In his testimony Dr. David stated that it is not necessary to have the concurrent symptom of rotary hallucination, or vertigo, on turning the head when lying down during the test at the time that the nystagmus is observed. He stated that BPPV can be diagnosed without rotary hallucination on turning the head. He testified that nystagmus in the Hallpike position can only be caused by BPPV and that nystagmus in the Hallpike position is diagnostic of BPPV without concurrent rotary hallucination.
153 In this case Dr. David concluded that the criteria were met because of the history taken from Mr. Moukhine which stated that the vertigo in that position lasted minutes. Although in cross-examination Dr. David agreed that at the time of related head position, rotary hallucination of less than 1 minute, or measured in seconds, is suggestive of BPPV, there was no reference in his notes of Mr. Moukhine having reported such symptom lasting only seconds.
154 In summary, Dr. David stated that Mr. Moukhine presented with post-traumatic symptoms suggestive of BPPV which followed “expected clinical course and resolution within several weeks”. He describes BPPV as a “benign and self-limiting disorder.” He stated that there is documentation of BPPV in November of 2007 but no further medical documentation of subsequent BPPV symptoms or physical signs on examination. He concluded that the post-traumatic, in order words, attributable to the motor vehicle accident, right BPPV has resolved and “there is no evidence of other discrete inner ear dysfunction” and “no ongoing auditory vestibular contraindication and to return to full function.”
155 With regard to the CDP test, Dr. David’s opinion was that it is not a useful stand alone diagnostic tool although it can be used to follow improvement over time or detect patterns of malingering.
156 Although Dr. David took a history including Mr. Moukhine’s complaints of “a heavy head”, it did not form a part of his diagnosis as a result of his clinical judgment. His report does not address the ongoing difficulty with computer use.
157 The report of Dr. David does not contain discussion of the vestibular mismatch addressed by Dr. Longridge or suggested by Dr. Prout. He stated that it is not a diagnosis.
158 Dr. David stated that there are many causes for a label of dizzy, not just vestibular. Dr. David does not agree with Dr. Longridge that light-headed is one way of describing dizziness.
159 Dr. David agreed in cross-examination that vestibular symptoms can be spinning or non-spinning and that spinning symptoms equate to vertigo. The definition or understanding of the term dizziness is in its infancy and has not been adequately addressed. The terminology and vocabulary is problematic and the inaccuracy of patient self-reports is frequent, with less than 30% accuracy in this field.
160 With regard to the usage of the terms “dizziness” and “vertigo”, the doctor was of assistance to the Court. Dizziness is a generalized imbalance or spatial disorientation, while vertigo includes movement of the visual surround. He explained that they are tough labels and that the frequent imprecision in usage can lead to a wrong diagnosis. The words are used by different people in different ways.
161 In conclusion of his cross-examination Dr. David agreed if the symptoms of Mr. Moukhine are permanent, the problem is permanent. He could not say that the problem is vestibular.
SUBMISSIONS OF THE PARTIES
162 There is no dispute between Mr. Moukhine’s health care providers and the medical experts retained by the defendants that Mr. Moukhine sustained a vestibular injury as a result of this collision. The diagnosis of the injury is in dispute.
163 Two objective tests have confirmed Mr. Moukhine’s vestibular dysfunction.
164 Given the objectively measured vestibular abnormality, and the medical opinion of ongoing partial disability with no likelihood of significant further improvement, it is evident that Mr. Moukhine will continue to experience income loss indefinitely into the future.
165 The undisputed consensus of Mr. Moukhine, his family, friends and co-workers is that he loved his work, was very good at it, and worked very hard at it.
166 In January 2008, Mr. Moukhine returned to work, and has since, by trial and error, found the optimum work times and the optimum break times that he can manage with his vestibular dysfunction.
167 The case closest although not completely on point is the decision in Edwards v. Marsden, 2004 BCSC 590, where Visual Vestibular Mismatch was combined with psychological injuries, and non-pecuniary loss was assessed at $100,000.
168 The Plaintiff says that he has suffered an injury of significance that affects his enjoyment of day-to-day life, as well as his ability to earn income and gain satisfaction from his employment. He attributes all of this to the motor vehicle accident, and theorizes that he suffers from a complaint known as Visual Vestibular Mismatch. He says these complaints are permanent, and there is absolutely no chance of recovery.
169 For this he seeks a substantial damage award.
170 The defendants concede that the plaintiff did suffer an injury for which he is entitled to damages. They say at best the plaintiff has established a soft tissue injury to the neck, shoulders, and upper back which in and of itself was not functionally disabling to any great degree, and headaches which resolved by June of 2010. The defendants also say that the plaintiff suffered episodic vertigo which resolved a few weeks after the accident itself.
171 The defendants say the plaintiff is deserving of, when compared with the plaintiff’s demand, a modest damage award.
172 Although the plaintiff presents to Dr. Stewart and Dr. Longridge as someone with a significant functional disability, when he does not know that he is being observed, he performs normally.
173 On the matter of motivation, Dr. Stewart, in the conclusion of his most recent reports states: “He is well motivated to work more and get back to his previous work capacity …”.
174 Dr. Longridge in his September 9, 2009 report stated that the plaintiff reported to him: “… he estimates rather than work a full day now he can work three hours and it has had a significant impact on his income.”
175 The plaintiff does not, on a cash flow basis, have any financial motivation to return to work. Since August 2007 his earnings have consisted of T4 earnings on which he pays tax, and long term disability which comes to him free of tax.
176 The analysis set out below demonstrates that after taking into account T4 income, deducting Federal and Provincial taxes and employment insurance premiums, and then adding back tax refunds and long-term disability (LTD) payments, there has been no substantial change in the plaintiff’s financial position.
177 It follows then that the plaintiff is not financially motivated as he has not been beset by any significant loss of income. It should be noted that the 2007 income included a vacation payout of approximately $11,124.
178 The defendants submit that a fair and reasonable award for non-pecuniary damages would be akin to a top-end moderate to severe soft tissue injury with total disability for a period of six to eight months, and residual complaints continuing for two to three years.
179 The highest award within the last three years is $70,000; Garcha v. Duenas, 2011 BCSC 365. The 58-year-old male plaintiff was, prior to the motor vehicle collision, a very hard working individual both at work and around the home. He became irritable, antisocial with his own family, and did nothing inside or outside of the house of significance.
180 The issue regarding the diagnosis of Mr. Moukhine’s symptoms is now whether he has VVM as diagnosed by Dr. Longridge or had BPPV which was Dr. David’s suggested diagnosis. The determination of that issue requires an analysis of his symptoms and an examination of the medical evidence.
181 Counsel for the defendants advises that the diagnosis changed as the case developed and proceeded to trial. At first this was a vestibular injury, but with the advent of Dr. David’s opinion there was a question of whether or not it was a psychiatric injury. With Dr. O’Shaughnessy’s opinion one had to turn to whether or not it was a neurological disorder, a concussion. This is important to this case, because the plaintiff’s descriptor of “fog in the head” may be consistent with Post-Concussion Syndrome.
182 Initially Dr. Stewart diagnosed his injury as a cerebral concussion. Dr. Spacey, a neurologist, reported on December 18, 2007 that his symptoms were compatible with a diagnosis of Post-Concussive Syndrome.
183 Dr. O’Shaughnessy, in a report dated June 21, 2010, was of the opinion that Mr. Moukhine did not have a concussion or any symptoms of Post-Concussion Syndrome as he did not have actual impairment in awareness, memory or consciousness. He thought that most of the symptoms were due to vestibular difficulties, and opined that the problems with concentration seemed to be related to complaints of fatigue and dizziness.
184 Since that time the evidence has become clearer that there was no loss of consciousness at the time of the impact. Based on that finding, the neurologist, Dr. Beckman, stated in a report dated March 1, 2011 that there was not a concussion. Later Dr. Stewart noted that the initial diagnosis of concussion may have been in error. I do not find that Mr. Moukhine suffered from a concussion as a result of the collision.
185 The symptoms experienced by Mr. Moukhine in the first days, weeks and months after the MVA on April 23, 2007 are only in issue in limited respects. There is a question on the evidence as to which days of the first week he stayed home from work, and on which day in the first week he first felt that the computer screen was shaking in front of his eyes. It is however accepted that he had true vertigo which commenced within days of the MVA and which lasted weeks to two months. For that period of time objects moved in front of his eyes.
186 The first symptom was a headache on the evening of the accident, April 23, 2007. When he went to Eagle Ridge Hospital emergency in the early afternoon of the second day he reported headaches and stiffness in the upper back.
187 Mr. Moukhine missed at least one day of work in the first week as a result of dizziness, nausea, headache and objects spinning. His recollection and the payroll records of the day or days missed is not clear. His reporting to Dr. Stewart of commencement of the rotational component of vertigo is different by a day from his evidence at trial. I conclude that by the third day he had the symptoms of full vertigo.
188 On his first visit to Dr. Stewart on Tuesday, May 1, 2007, vertigo was present and the diagnosis was of concussive labyrinthe injury. There were also symptoms of soft tissue injury.
189 On the second visit to the hospital on May 2, 2007, the intake records of the Emergency department noted concerns which included “headache worse, confused, uncoordinated”. The diagnosis was post-concussion symptoms.
190 The vertigo lasted for several weeks as Mr. Moukhine confirmed to Dr. Longridge on July 31, 2009. It returned for four days after the caloric test performed by Dr. Longridge on November 8, 2007.
191 When the vertigo stopped, the shaking of objects including the computer screen stopped as well. From this point onward to the present the symptoms were experienced by Mr. Moukhine internally. I conclude that after the vertigo stopped, the dizziness continued.
192 Those complaints are often described by Mr. Moukhine as “fog in the head” or “heaviness in the head”. The meaning of heaviness in the head was discussed in his examination in chief, cross examination and discoveries. The excerpts are set out in paragraphs 42, 44 and 45 above.
193 Heaviness of the head is how both Mr. Moukhine and Dr. Longridge have described one of the feelings that Mr. Moukhine experiences in his dizziness, in addition to spinning, light-headedness or disbalance.
194 Mr. Moukhine describes heaviness in the head preventing him from being able to work longer hours. Dr. Stewart reported dizziness as a symptom of Mr. Moukhine working too long. Dr. Longridge stated that heavy-headed is one of the indicators of dizziness and notes that dizziness is a non-specific term.
195 I find Mr. Moukhine to be a credible witness. I accept that his descriptions of heaviness or fog or, sometimes, mist in the head describe what is to the doctors a form of dizziness. I accept that this feeling and the inability to concentrate or “think through” prevents him from working at his job as a computer programmer for more time than he describes that he is now able to work.
196 In evaluating the evidence of Mr. Moukhine, I am mindful that English is not his first language. At times in his testimony he struggled to find the appropriate words to respond to a question. Prior to his injuries, he did not know the meaning of the word “nausea”.
197 In evaluating the consistency of reporting his symptoms and the doctors’ consideration of the symptoms, I am also mindful of the imprecision of the language and terms used in this area of medicine.
198 In finding Mr. Moukhine to be a credible witness I have considered the issue of his ability to drive and pattern of driving as shown on the surveillance videos, particularly the video of the drive on November 15, 2007, the day of the appointment with Dr. Stewart. There are some inconsistencies regarding his pattern of driving to Dr. Stewart’s and the homeopath and his ability to drive as described by him and his wife.
199 The investigator’s evidence was largely confined to his notes, which contain only the departure and arrival times. He stated that he does not have a recollection of whether they stopped or not, but assumes that they did not because he would have recorded a stop.
200 By November 15 Mr. Moukhine was able to drive a car. He drove to and from work, a 45-minute drive, on his attempt to return to the office on October 29. It was only for four days after the caloric test of November 8 that the full symptoms of vertigo returned. November 15 was one week after that test.
201 The evidence of Mr. Moukhine and his wife is that he required rest stops. I accept the evidence of the surveillance investigator that if there had been a stop on the drive to Dr. Stewart’s office on November 15 he would have recorded it. He did not record a stop, and I conclude that there was not a stop, but instead continuous driving which is consistent with the time taken by the journey. This is somewhat inconsistent with the evidence of Mr. Moukhine who said that he was not sure if he stopped.
202 Taking into account the extra time taken on the return trip and Mr. Moukhine and Ms. Moukina’s usual practice of stopping at a food store on the way home to Coquitlam, it is likely that he did take a rest break on the way home even though it was not noted by the investigator. The other videos of him driving clearly show rest stops in various forms.
203 In his report of January 28, 2008, Dr. Stewart indicated that Mr. Moukhine’s ability to drive was limited for six months following the collision of April 23, 2007, which would therefore be from April to October 2007, not to November. On the witness stand, Dr. Stewart clarified this as meaning the ability to drive without taking breaks.
204 The video of June 2009 which shows Mr. Moukhine doing household and yard work is not inconsistent with his evidence that he was able to go back to doing home maintenance projects after a year, and that his ability to do so continuously improved. As there is not a sufficient evidentiary basis to conclude that his use of a chop saw at that time is inconsistent, I decline to make any conclusions in that regard.
205 The surveillance evidence contradicts the plaintiff’s evidence only to the extent that I have concluded that the drive to Dr. Stewart’s office on November 15, 2007 occurred without a rest stop. This also exceeded his wife’s view of his ability to drive. His actions and appearance in the other videos are not such that I can, based on my observations, make findings that his evidence has been contradicted by the videos.
206 The symptoms in the first two months were: spinning of objects (or true vertigo), headaches, dizziness, nausea, lack of balance, inability to concentrate, tinnitus, sore neck and upper back, problems with ability to drive, and inability to work due to the headaches, dizziness, nausea and inability to concentrate.
207 Mr. Moukhine frequently described the improvements to his condition. That progress is reflected in the reports he made to Dr. Stewart and Dr. Longridge.
208 After two months at the most, objects ceased spinning and the vertigo did not recur except with the test of Dr. Longridge in November, 2007 and the initiation of treatment with NeuroMotion in late 2008 and early 2009. Tinnitus appears to have minimized within a few months. By June 2010 the headaches were mostly resolved and now occur rarely and only when Mr. Moukhine works too long. Also by June 2010 his neck was no longer in pain having been assisted by chiropractic treatments.
209 His balance and dizziness were assisted by the treatment at NeuroMotion. His balance is now relatively good and has sufficiently improved that he can again do some yoga balance exercises.
210 Mr. Moukhine was able to drive more normally with breaks by October 2007. In 2009 he drove to Seattle with two stops. However, in 2009 he found the longer drive to Fairmont Hot Springs, B.C. difficult and relied on his daughter’s assistance. At the present time he can drive for about an hour without a break. He is able to do most of the home maintenance work that he did previously although it takes him longer.
211 In May 2010 when he was in Hawaii, Mr. Moukhine was able to work for longer hours. As he was involved in an urgent project and felt better in the warm weather, he worked for 74 hours over 14 consecutive days, or an average of 5.25 hours per day. That schedule was not sustainable when he returned home but gradually, over the four years, he has been able to work for longer hours at home.
212 The remaining symptoms and major concern of Mr. Moukhine throughout the four years following the accident as relayed by him to the doctors who examined him and to the Court has been his inability to use his computer for a significant length of time in order to work at his occupation of computer programmer.
213 At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two-hour rest, 45 to 60 minutes of work, then a rest, followed by another 30 to 45 minutes of work, for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating.
214 He remains unable to participate in most physical activity which was previously an important part of his life. He was an avid outdoorsman who enjoyed and excelled at outdoor sports. I accept the evidence of the plaintiff, his family and his friends that his life post-MVA does not include these activities. He is now able to walk with little elevation change whereas previously he hiked and climbed more vertical terrain. He no longer skis or kayaks. These activities require a healthy vestibular system.
215 I note that Mr. Moukhine has been reluctant to and has not taken medications offered to him by some of the doctors to alleviate some symptoms. Dr. Spacey suggested Amitriptyline for the symptoms of his headaches but he declined as he takes only homeopathic remedies. He also declined to take anti-depressants. There is no evidence of a medication that would affect or improve the VVM.
216 The issue of the diagnosis of the vestibular injury requires consideration of the opinions of Dr. Longridge and Dr. David. Each counsel provided submissions regarding the opinions of these expert witnesses.
217 It is submitted by counsel for Mr. Moukhine that the opinion of Dr. Longridge should be preferred for the following reasons. I summarise as follows:
Dr. Longridge’s opinion is consistent with the patient’s history, clinical data, objective testing and medical documentation.
Dr. David’s opinion is inconsistent with his own history.
– He takes no history of the patient’s vertigo lasting only seconds, and yet describes it as such in his opinion.
– He takes no history of the patient’s vertigo occurring on turning the head, and yet describes it as such in his opinion.
Dr. David’s opinion is also inconsistent with itself.
– He concludes that BPPV has resolved within weeks of the accident, and then diagnoses it based on a recording of nystagmus made long after the BPPV has ostensibly gone away.
Dr. David’s opinion on the relationship between BPPV and nystagmus, is inconsistent with the Manual of Electronystagmography.
– He states that nystagmus in BPPV can occur without vertigo, while the Manual of Electronystagmography states that for Benign paroxysmal-type positioning nystagmus, the response must be delayed in onset, transient, fatigable, and accompanied by vertigo
– Dr. David states that this Manual is authoritative but wrong, without citing what, if anything, has supplanted it.
Dr. David’s opinion is inconsistent with the Medical documentation on this patient.
– There is no finding of nystagmus requisite for BPPV, when the vertigo was most pronounced, and nystagmus ostensibly most apparent, namely upon the first visit to Dr. Stewart.
– The diagnosis of resolved BPPV does not account for persistent imbalance with rotary component “for much of the day, perhaps eight hours”, noted by Dr. Longridge upon first examination.
– The diagnosis of resolved BPPV does not account for symptoms of light-headedness and also heavy headedness reported to Dr. David upon his assessment; and
Most importantly, the diagnosis of BPPV does nothing to address the complaint of restricted computer use, which is Mr. Moukhine’s main problem.
Dr. David’s opinion of resolved vestibular injury is inconsistent with the objective findings of ongoing vestibular damage in this patient.
Dr. Longridge’s last test, the VEMP test, in his report of April 19, 2011 shows that: [… This test was abnormal. …]
– Dr. David’s VEMP test results appear to show a significant difference between the performance of the left and right ears, however, his test protocol is not designed to measure this difference.
Dr. Longridge has supplied and approved as authoritative, the Cohen and Kimble study accepted for publication by the refereed Journal of Vestibular Research in February of 2009, which confirms that SOT has moderately high specificity and moderate sensitivity. He states that the test is not a substitute for clinical judgment, but should be used in conjunction with it.
Dr. Beckman has confirmed that he refers patients requiring SOT testing to Dr. Longridge on occasion, and that he defers to Dr. Longridge’s opinion on the objectivity of this test result.
218 The following is a summary of the submission of counsel for the defendants with regard to the evidence of the two medical specialists:
There is no evidence linking “fog in the head” to dizziness or nausea.
The observation evidence [in the video surveillance] does not bear out that which the Plaintiff has told Dr. Longridge.
Dr. Longridge relies, as objective confirmation, upon the CDP/SOT results of December 2009.
– The fail on the December 2009 test was borderline at best. In assessing this as a fail Dr. Longridge exercised clinical judgment which he exercised in a different way in his published study. The exercise of clinical judgment ought to be consistent.
– Dr. Longridge ignores the pass on the CDP in March of this year.
– In so doing he ignores the reality that the first CDP/SOT result may very well have been a false positive.
Dr. Longridge relies upon a 2009 study which attributes high levels of sensitivity and specificity to the CDP.
– Dr. Longridge ignores the fact that the primary purpose of this study was to test the screening test held by the authors, and that the secondary object of this study was to determine which test or combination thereof would be best as a pre-screening for people before in-depth diagnostic testing.
Dr. Longridge rejects the Meta-Analysis of 1996 as being selective.
Dr. Longridge relies upon the CVEMP test results as confirmation of a vestibular abnormality.
– The results are borderline at best, not consistent with observations of the Plaintiff, and not consistent with Dr. David’s VEMP results which showed normal latency.
Dr. Longridge rejects the diagnosis of BPPV because the Plaintiff did not complain of dizziness upon administration of the Dix-Hallpike maneuver.
– Dr. Longridge relies on a report by another who is not before the Court. He also relies on a recording the first mention of which was in May of 2010 when he wrote his critique of Dr. David’s report of February 1, 2010. He also ignores that there is a difference between vertical and horizontal BPPV.
Dr. David’s opinion should be preferred because it is based entirely on evidence based medicine.
219 Having considered the submissions of counsel and the totality of the evidence, I prefer the diagnosis of Dr. Longridge. He examined and treated Mr. Moukhine from three months post MVA until April, 2011 — over the course of almost four years. He administered a number of tests over this time period. Two of those tests, in 2009 and 2011, had positive results indicating objective evidence of the disorder diagnosed. In evaluating those tests he applied his clinical judgment. The conclusion and diagnosis of Dr. Longridge was that Mr. Moukhine is suffering from VVM. I accept that conclusion.
220 Dr. David states that the symptoms of Mr. Moukhine are suggestive of BPPV which resolved within weeks or months. In making that diagnosis he relied primarily on the Hallpike Maneuver test done by Dr. Longridge in November 2007 which showed nystagmus when Mr. Moukhine turned his head while lying down. There was no vertigo experienced at the time of the nystagmus. Dr. David was firmly of the opinion based on his understanding of current diagnostic practices that vertigo accompanying the nystagmus is not necessary for the diagnosis of BPPV.
221 Dr. Longridge disagreed with the suggested diagnosis of Dr. David and states that a diagnosis of BPPV is not possible without brief periods of vertigo at the same time as the particular form of nystagmus. Both doctors relied on their understanding of current diagnostic procedures.
222 With regard to the issue of the accompanying rotational component, or vertigo, Dr. David relied on the history which he took of Mr. Moukhine. There is, however, no note made by him of Mr. Moukhine experiencing vertigo which lasted seconds or on turning his head. The factual basis for the diagnosis is not present.
223 In his report Dr. David concluded that the BPPV resolved within several weeks, and in cross-examination responded to a question regarding “weeks or months” before resolution. However, Dr. David relied on the results of the test conducted by Dr. Longridge in November 2007 which he stated were suggestive of a diagnosis of BPPV. A diagnosis or indication based on a test which was done more than six months after the accident is a test that was done at a time which, in Dr. David’s written opinion, is after the BPPV had resolved. It is inconsistent, and not in accordance with Dr. David’s evidence, that that test could have indicated a condition which by then had resolved.
224 The examination by and report of Dr. David did not take into consideration the major complaint of Mr. Moukhine — that he could not work at his computer for any extended period without exacerbating his symptoms of inability to concentrate and think. A condition which had resolved within weeks of April 2007 does not adequately explain the continuing symptoms which I accept are experienced by Mr. Moukhine four years after the MVA.
225 I conclude on the evidence as a whole that the Mr. Moukhine has proven that as a result of the MVA on April 23, 2007, he has Visual Vestibular Mismatch which has not resolved.
226 I accept Dr. Longridge’s opinion that it is unlikely that there will be further significant improvements to Mr. Moukhine’s condition or symptoms.
i. Non-Pecuniary Damages
227 As has been described above, this injury has had a significant effect on Mr. Moukhine. It has resulted in continuing dizziness, primarily when he works on the computer. He is now unable to work full-time in his professional capacity as a computer programmer. He is well-educated; he has been successful and accomplished at his job and was esteemed by his colleagues. He worked at a job he loved.
228 Mr. Moukhine is no longer able to participate in many outdoor activities that formerly formed an important part of his life, and he is not now the cheerful, outgoing and active person that he was before the accident.
229 The evidence of his wife, daughter and friends, Ms. Kapoustina and Mr. Khrissanov, was clear in describing the effect on him and his loss of enjoyment of life. Mr. Moukhine’s evidence was understated and demonstrated an unwillingness to complain or dwell on his limitations and inabilities. He could accurately be described as stoic.
230 I conclude that this motor vehicle accident has had very serious consequences for Mr. Moukhine. There was a total disability for six months. The soft tissue injuries and headaches were mostly resolved by June 2010. He is not yet fully recovered and is unlikely to recover from the Visual Vestibular Mismatch.
231 At the present time the symptoms of headaches, nausea, balance problems and dizziness recur if he works too long. Mr. Moukhine still works from home. He is able to work on a schedule that incorporates 60 to 90 minutes of work, a two hour rest, another 45 to 60 minutes of work, then another rest, followed by another 30 to 45 minutes of work for a total of 2.25 to 3.25 hours per day. He finds this restricted ability to work frustrating.
232 In considering the appropriate amount to award to Mr. Moukhine for non-pecuniary damages, I have considered all of the cases submitted by counsel. The cases which are most relevant are Edwards, and Garcha, submitted by the plaintiff and defendants respectively. In Edwards, the plaintiff suffered neurological damage and was awarded non-pecuniary damages of $100,000. In Garcha, the plaintiff suffered soft-tissue injuries and was awarded $70,000 in non-pecuniary damages. I find the injuries suffered by Mr. Moukhine to be more serious than those in Garcha, but not as serious as those in Edwards.
233 Each case is to be assessed on its particular facts. Considering all of the circumstances in this case including Mr. Moukhine’s age, the effects of the injuries sustained in the accident and Dr. Longridge’s opinion that the vestibular injury is likely permanent, I assess non-pecuniary damages at $90,000.
ii. Past Wage Loss
234 Mr. Moukhine has been unable to return to full-time work at Accenture since the accident in April, 2007. He continues to work part-time from home for the same employer.
235 The income loss began at the time that his Short Term Disability or Sick Pay Plan expired on August 6, 2007.
236 His income was largely protected in 2007 by sick pay, bonuses and vacation pay, but dropped to $32,000 in 2008. It increased to $42,000 in 2009 and to $47,000 in 2010. It has never reached more than half of what he used to earn. He has not received any further pay raises or promotions.
237 The defendants raise the issue of what is the best source of evidence on which to assess the Plaintiff’s loss. They submit that there is no reliable evidence in respect to the past loss of income because the evidence of the representative of the employer demonstrates that their books and records are in complete disarray.
238 The defendants submit that the best source of evidence can be found in the payroll statements and in particular the Plaintiff’s payroll statement for the 31st day of March, 2007. The Plaintiff’s then current rate of pay was $3,741.66 per pay period which equates to $7,483.32 per month. There are approximately 4.75 months between the 7th of August, 2007 and the 31st day of December, 2007. With that applied to the monthly rate, the gross loss is $35,545.77.
239 I prefer the submissions of the Plaintiff who relies upon the evidence of an economist, Robert Carson. In his report of May 18, 2011, addresses the entire period of loss. He calculated inflation-indexed gross past wage loss as being between $193,878 and $237,077, depending on whether Mr. Moukhine would have received the promotion that Adam Edwards was preparing for him, and whether he would have continued to receive larger bonuses.
240 With regard to the question of the amount of earnings, although the time records of the employer have errors, I accept that Mr. Carson’s calculation of earnings with the combined use of the pay statements, T4 earnings and income tax returns is the proper basis.
241 With regard to the issues of the raise and promotion, Mr. Moukhine’s former team lead, Adam Edwards, testified that Mr. Moukhine’s pay was approaching the maximum of his pay scale at level D in Accenture, and that in the spring of 2007, shortly prior to the collision, he was planning to start the process of applying for a promotion of Mr. Moukhine from level D to level C at Accenture.
242 The process would usually take an average of three to six months but could take longer. If successful, it would have resulted in a pay raise of approximately $10,000 for Mr. Moukhine. Although Mr. Edwards was unable to guarantee the promotion, he felt that he would be able to get it approved for Mr. Moukhine, given Mr. Moukhine’s work ethic and quality of work.
243 Mr. Moukhine was very well regarded at work. His former team lead, Adam Edwards, has described him as still the best programmer that he has ever worked with. His co-workers, Alex Khrissanov and Elena Kapoustina, have expressed high praise for his ability and contribution to the company.
244 His salary rose from $57,000 to $93,000 in six years.
245 The software, Event Handler, that he has designed, has stood the test of time, and still plays an important part in the company, lasting far beyond the average lifespan of company software.
246 I conclude on the evidence of Mr. Edwards and Mr. Moukhine’s co-workers, that he has proven that he would have received the promotion and raise. However, given that the promotion may have taken some time and that the economic situation in the year following the accident declined, I am not satisfied that the raise would have been immediate, or in 2008. Thus, the projection of Mr. Carson will be adjusted downward to allow for a raise in 2009 rather than in 2007.
247 I agree with the Defendant’s submissions there is only one bonus identifiable as being personal to the Plaintiff, the sum of $1,800.00 in 2007. The balance of the bonuses fall into two categories.
248 The first is the group bonuses. The Plaintiff is still a member of the group. He has continued to receive group bonuses. There is no evidence that what he has received is anything less than what he would have received “but for” the motor vehicle accident. It cannot be assumed that these bonuses have diminished.
249 The other bonus is a retention bonus and there is no evidence establishing its likelihood for Mr. Moukhine.
250 In order to assess past wage loss, Mr. Carson’s calculations are a helpful starting point. However, he did not include calculations for past wage loss taking into account that Mr. Moukhine would receive the raise but not the bonuses. In addition, he testified regarding an error in Table 3 in the revised tables.
251 Taking into account all of these factors, I assess past wage loss at $218,000 from August 2007 to trial.
iii. Loss of Income-Earning Capacity
252 Given the objectively measured vestibular abnormality, and the medical opinion of ongoing partial disability with no likelihood of significant further improvement, there is a real and substantial possibility that Mr. Moukhine will continue to experience income loss indefinitely into the future.
253 In Perren v. Lalari, 2010 BCCA 140, Madam Justice Garson reviewed the law regarding the methods of assessment of the loss of future income and loss of future income earning capacity. In her review she states:
 These cases, Steenblok [v. Funk (1990), 46 B.C.L.R. (2d) 133 (C.A.)], Brown [v. Golaiy (1985), 26 B.C.L.R. (3d) 353], and Kwei [v. Boisclair (1991), 60 B.C.L.R. (2d) 393], illustrate the two (both correct) approaches to the assessment of future loss of earning capacity. One is what was later called by Finch J.A. in Pallos [v. Insurance Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260] the ‘real possibility’ approach. Such an approach may be appropriate where a demonstrated pecuniary loss is quantifiable in a measurable way; however, even where the loss is assessable in a measurable way (as it was in Steenblok), it remains a loss of capacity that is being compensated. The other approach is more appropriate where the loss, although proven, is not measurable in a pecuniary way. An obvious example of the Brown approach is a young person whose career path is uncertain.
254 The conclusion of her analysis is as follows:
 A plaintiff must always prove … that there is a real and substantial possibility of a future event leading to an income loss. If the plaintiff discharges that burden of proof, then depending upon the facts of the case, the plaintiff may prove the quantification of that loss of earning capacity, either on an earnings approach, as in Steenblok, or a capital asset approach, as in Brown. The former approach will be more useful when the loss is more easily measurable, as it was in Steenblok. The latter approach will be more useful when the loss is not as easily measurable, as in Pallos and Romanchych [v. Vallianatos, 2010 BCCA 20].
(Emphasis in original.)
255 The defendant submits that the real possibility approach is not going to be of assistance in this case. That is so because Mr. Carson was asked to assume the 2006 and 2007 bonuses were indicative of future years. He has taken them into account when averaging out income in 2011 dollars of $102,247.
256 The defendants submit that a better approach is the capital asset approach as set out in Pallos, because of the Plaintiff’s capacity to work, for example in Hawaii in 2010.
257 I agree with plaintiff’s counsel that the work accomplished during the trip to Hawaii is evidence of his motivation to work. I find that despite what is an objectively measured vestibular abnormality, Mr. Moukhine is motivated to continue working to the best of his ability. The evidence of Dr. Stewart is also of assistance in describing the motivation, and the frustration when he was not able to work.
258 The considerations regarding the raise and the bonus have been addressed in the section above and apply equally to the loss of future income earning capacity.
259 In this case I find that Mr. Moukhine’s loss is “a demonstrated pecuniary loss [which] is quantifiable in a measurable way”. (Perren para. 12) He had steady, predictable employment in his field as a computer programmer. Thus the earnings approach is appropriate for use in the quantification of that loss.
260 The plaintiff also relies on the actuarial tools supplied by Mr. Carson in assessing this loss.
261 Given that Mr. Moukhine is now earning essentially half of what he used to, the plaintiff submits that the 50% loss rate in Mr. Carson’s example at Table 7 on page 10 of his report of February 4, 2011 is a useful starting point in the assessment of the impairment of the future income-earning capacity. I agree.
262 That table provides example calculations of future loss at 60% or 50% to ages 62.5, 65 and 70 with three absent accident current rates of pay used. The calculations most useful are for a 50% loss rate with work to age 65. The range given, depending on the rate of pay, is between $326,580 and $359,559.
263 In all of the circumstances, I assess the value of Mr. Moukhine’s loss of income earning capacity at $335,000.
iv. Special Damages
264 The claim for special damages is comprised primarily of claims for Manulife Financial and mileage charges, which are the largest part of the claim for transportation costs.
265 Mr. Moukhine is not seeking reimbursement for the cost of his homeopathic expenses.
266 The Defendants take issue only with the claim for mileage. They submit that there is no proper evidentiary foundation in respect to the distance and the per kilometer charge of 44 cents per kilometer. In addition, there is no consideration of mileage incurred in combined trips such as the Plaintiff going to Dr. Prout and Dr. Stewart in the same day, or to Dr. Stewart and the homeopath in the same day or any other joint trips to caregivers. There is no consideration of trips the Plaintiff would have had to make to Dr. Stewart’s “but for” the accident for the benefit of his wife. Further, there is no consideration for the cost that the Plaintiff would have had to incur to drive to and from work five days a week had this accident not occurred.
267 The balance of the special damages, $1290.85 is not in issue.
268 The Plaintiff revised his claim for mileage and now accepts 30 cents per kilometer, which is the rate paid to witnesses under the rules of Court. This results in a total amount claimed for mileage and other special damages of $2714.09.
269 I am satisfied that each of the claims for mileage is appropriate with regard to the destination and purpose of the trip.
270 Special damages in the revised amount claimed, $2714.09, are awarded.
271 In summary, the damages of the plaintiff are assessed as follows:
|-Non-pecuniary damages||$ 90,000.00|
|-Past loss of income||$218,000.00|
|-Loss of income earning capacity||$335,000.00|
|-Special damages||$ 2,714.09|
272 As Mr. Moukhine is only entitled to recover his net income loss, I direct counsel to carry out the necessary calculations, with such expert assistance as may be required, in order to determine the appropriate net loss. They may apply if they are unable to agree.
273 With regard to the matter of costs, my tentative conclusion is that Mr. Moukhine is entitled to his costs. If either side seeks a different result they should make submissions in writing within 21 days. Any responsive submissions should be filed within 15 days thereafter.