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Earning capacity may be diminished even if client can still work in chosen career: lawyer

Chronic shoulder pain can make plaintiff less marketable as psychiatric nurse: case

Earning capacity may be diminished even if client can still work in chosen career: lawyer
Erik Magraken is managing partner at MacIsaac & Company

For an injury with a poor prognosis for further recovery, even a modest impairment in working capacity can amount to significant financial losses when spread out over a lifetime, Erik Magraken, managing partner at MacIsaac & Company, has said.

“Recognizing the real-world value of these losses is important when negotiating the resolution of an injury claim or when litigating it to conclusion,” said Magraken to Canadian Lawyer.

Personal injury lawyers should consider exploring how injuries can compromise a client during their working years to determine if there is a diminished earning capacity. This examination is important because even when a client can continue working in their chosen career or profession, their earning capacity may still be impacted, wrote Magraken, in a blog post summarizing the Bhumrah v. McLeary, 2021 BCSC 285 case.

The case involved an April 2018 motor vehicle accident in which the defendant’s car struck the pick-up truck where the plaintiff, who was 30 years old at the time, was sitting on the front passenger seat while stopped at a red light. The plaintiff did not go to the hospital or immediately seek treatment following the accident.

The Supreme Court of British Columbia found that the plaintiff had established on a balance of probabilities that she experienced specific injuries caused by the accident. The injuries included chronic right shoulder pain, thoracic spine sprain/strain and myofascial pain syndrome, as well as headaches and paresthesia, which have since been resolved.

The plaintiff also suffered from psychological injury, but this was not solely caused by the accident since, at the time, the plaintiff was dealing with stressful work incidents and hostility from her employer, which exacerbated her symptoms but which did not break the chain of causation. Thus, the defendant was still liable, the court concluded.

The court awarded the plaintiff $80,000 for future wage loss, $55,000 for non-pecuniary damages, $18,147.44 for the cost of future care, $6,000 for past and future loss of housekeeping capacity and $1,882.60 for special damages, amounting to $161,030.04 in total damages. The court did not grant damages for past wage loss.

On the issue of loss of future earning capacity, the court found that, even though the plaintiff has so far continued full-time with her nursing program and with her part-time employment, there was a real and substantial possibility that a future event would lead to income loss. This finding was based on the totality of the evidence, including uncontradicted medical evidence of a partial physical disability caused by the accident. The chronic pain and physical limitations relating to the plaintiff’s shoulder could make her less marketable as a psychiatric nurse, the court said.

The court found that, once the plaintiff has become a psychiatric nurse after the completion of her program, she would be able to return to work at 95 per cent full-time capacity. The court considered competing contingencies to arrive at $83,195, which it rounded out to $80,000. The court’s assessment considered the possibility that she would have to reduce her work hours because of her injuries and the counter-possibility that she would continue full-time hours in a position not requiring a physical component.

On the issue of non-pecuniary damages, the court decided that $55,000 would adequately compensate the plaintiff for her pain and suffering, as well as her loss of past and future enjoyment of life, considering the relevant authorities and factual findings. While the plaintiff would be limited to a certain extent in her daily activities, her prognosis for a full recovery was not bleak, the court said.

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