COURT FILE NO.: CV-08-00354066

DATE: 20120606

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michael Smith, Plaintiff

AND:
Matthew DeClute, Daimler Chrysler Financial Services Canada and the Personal Insurance Company of Canada, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Dimple Verma, Counsel for the Plaintiff
Brian Bangay, Counsel for the Defendants DeClute and Daimler Chrysler

HEARD: May 22, 2012

ENDORSEMENT

[1] The Plaintiff, Michael Smith (“Mr. Smith”) was involved in a motor vehicle accident on July 7, 2006 in which he sustained personal injuries. He brings this action for damages arising from the injuries. The trial took place before a jury commencing April 30, 2012, with the jury retiring to consider its verdict on May 22, 2012. At the close of the evidence, counsel for the Defendant brought the within motion for a determination as to whether or not the Plaintiff’s injuries fit within any of the statutory exceptions to the general immunity afforded to defendants under Section 267.5(3) and (5) of The Insurance Act, R.S.O. 1990, c. I.8 commonly known as a “threshold motion”. These sections of the Act provide that the owner of an automobile is not liable in an action for non-pecuniary losses unless the injured person has sustained “permanent, serious impairment of an important physical, mental, or psychological function”.

[2] This accident occurred in 2006 and is, therefore, governed by Regulation 381/03 which is known as Bill 198. As I noted in Ali v. Consalvo [1], “Bill 198 contains a deductible of $30,000 for damage assessments less than $100,000 (with no deductible for claims assessed in excess of $100,000). Regulation 381/03 contains definitions of the “threshold”, defining which impairments are serious, what functions are important and what the definition of permanent is. It also mandates the evidence that must be called, and from whom, in order to succeed in establishing an exemption, as set out in s. 4.3. A Plaintiff must adduce evidence from physicians to explain “the nature of the impairment, its permanence, the specific function that is impaired and the importance of that function to the person.”

[3] In order to be successful in establishing an entitlement to an award for general damages under section 267.5 of the Insurance Act, a Plaintiff must demonstrate that he has sustained injuries that have resulted in a permanent, serious disfigurement or a permanent, serious impairment of an important physical, mental or psychological function. Ontario Regulation 381/03 sets out definitions:

Section 4.2(1) states that a person suffers from permanent serious impairment of an important physical, mental or psychological function if the impairment substantially interferes with most of the usual activities of daily living, considering the person’s age.

Section 4.2(2) states to be an important function the function must be necessary for the person to provide his or her own care or well-being or be important to the usual activities of daily living, considering the person’s age.

Section 4.2(3) states that for the impairment to be permanent, the impairment must have been continuous since the incident and must, based on the medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, continue to meet the criteria in paragraph 1 and be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Background

[4] The Plaintiff was born in 1981 and, at the time of the accident in 2006, he was 25 years of age. He lived at home with his parents and worked as a cook at Brasserie Frisco, a job he had held for approximately four months.

[5] Prior to the accident Mr. Smith had been involved in a number of fights as a result of which he sought medical treatment. However, he did not have any prior problems with his neck or back, nor had he experienced emotional problems. He acknowledged that he was a regular user of marijuana and alcohol before the accident although he did not agree that he had a problem with substance abuse. This was a central issue in the trial. He was very active in sports prior to the accident and he enjoyed camping on a regular basis. He assisted his parents with household chores such as yard work, shoveling the driveway and cleaning the house.

[6] Primarily because of his low back pain, Mr. Smith stated he was unable to return to work as a cook until early 2009. Since that time, he has continued to work in this capacity at different locations. Since July 2011, the Plaintiff has been working as a cook at Oliver and Bonacini on a full time basis and his evidence at trial was that he plans to continue at this job.

[7] The Plaintiff married in October 2010. His wife testified that he is unable to do the activities that he used to engage in before the accident, including various sports, camping and assisting with household duties.

The Medical Evidence

[8] Following the accident, the Plaintiff was taken by ambulance to Sunnybrook Hospital where he was assessed and released. He had a fractured rib and strains to his neck and back. The first medical treatment that he secured was 12 days following the motor vehicle accident when he was assessed by his general practitioner, Dr. Carmichael. He was advised to take physiotherapy and to remain off work for six to eight weeks. He was given a strong pain killer.

[9] The Plaintiff testified that over the next six months, his neck pain and rib pain settled down but his low back pain continued unabated on a constant basis, running into his right leg at times. Eventually, he developed depression and was prescribed anti-depressants by his family doctor. In March 2007, the Plaintiff underwent an MRI which Dr. Carmichael testified did not demonstrate abnormalities with respect to the lower back. There was a small disc protrusion higher up at T-12. While Dr. Carmichael was aware the Plaintiff used marijuana on a social basis, he was not aware of the extent of his drug use before or following the motor vehicle accident.

[10] At the end of 2007, Dr. Carmichael was referred Mr. Smith to a psychiatrist, Dr. Kiraly, who diagnosed a chronic pain syndrome and recommended he undertake some treatment and cease his use of marijuana. He agreed that the Plaintiff did not comply with his recommendations and he did not return for treatment.

[11] The Plaintiff was assessed by a psychologist, Dr. Keeling, who assessed Mr. Smith at the request of his lawyer in December 2010. Although Dr. Keeling was qualified as an expert by the Court and made a diagnosis of chronic adjustment disorder and chronic pain disorder which he attributed to the motor vehicle accident, I attach very little weight to this opinion. Dr. Keeling never met the Plaintiff and had scant documentation when he formed his opinion. He acknowledged that a Master’s student in his office met with Mr. Smith and administered the tests. Dr. Keeling’s involvement was limited to a telephone discussion with Mr. Kadiss [the student] before coming to his diagnosis. Dr. Keeling was unaware of the Plaintiff’s use of narcotics and he agreed in cross examination that a substance abuse mood disorder can have many of the same features as a pain disorder.

[12] The Plaintiff’s ongoing complaint from the time of the accident up to and including his testimony at trial was of constant, severe, unrelenting pain in his low back which ran into his right hip and was disabling. There had been no change in the low back pain despite treatment.

[13] Mr. Smith had another MRI done of his lower back in 2010. A moderate disc protrusion was noted at T12-L1. Dr. Carmichael sent the Plaintiff to a neurologist, Dr. Borrett, and to a neurosurgeon, Dr. Macdonald. Both of these specialists felt that from a medical perspective, there was nothing to account for the pain complaints that Mr. Smith was making. Dr. Macdonald noted that the disc bulge was at a much higher level than the location of his low back pain and it did not explain the type of symptoms the Plaintiff said he was experiencing.

[14] Dr. Kadish, the orthopedic surgeon retained by the solicitor for the Plaintiff, whose report was read into evidence, was of the view that the Plaintiff had sacroiliitis and radiculopathy. In his report, he stated,

Mr. Smith has been left with ongoing severe chronic continuous right gluteal pain and intermittent pain radiating down the lateral aspect of his right thigh. Clinical assessment today is strongly suggestive of a severe right sacroiliitis and a right lumbar radiculopathy with restricted straight leg raising on the right and right lower extremity weakness…..He is, in my opinion, suffering severe impairments due to both his right sacroiliitis and his right lumbar radiculopathy. There impairments both constitute serious and permanent impairments of important physical functions. These impact severely on his pre-accident activities of daily living including work, housekeeping, home maintenance and recreational activities.

[15] Medical evidence was called by the defence at the trial. Dr. Ford, an orthopedic surgeon with a subspecialty in spines, testified that he assessed the Plaintiff in January 2011. He found nothing objective to explain the low back complaints made by the Plaintiff. He disagreed with the opinion of Dr. Kadish. According to Dr. Ford, both of these conditions would be demonstrated on the MRI and they were not.

[16] Dr. Furlong, the psychiatrist retained by the defence testified that, in his opinion, Mr. Smith did not have disabling depression, and he did not have a brain injury of any significance. According to Dr. Furlong, the Plaintiff’s biggest problem was his drug use which pre-dated the motor vehicle accident. From a psychiatric perspective, Mr. Smith did not have a disabling disorder.

Analysis

[17] There was, as there often is in personal injury cases, a wide disparity in the medical opinions. The Plaintiff’s orthopedic surgeon felt the Plaintiff had two residual serious impairments caused by the motor vehicle accident: right sacroiliitis and right lumbar radiculopathy. He opined that these injuries severely impacted on his activities including work, home and recreational. Dr. Ford was of the view that there was nothing objective to account for the Plaintiff’s complaints of severe constant low back pain. Dr. Kiraly was of the opinion that the Plaintiff had chronic pain and a head injury along with depression. Dr. Furlong testified that there was no psychiatric diagnosis that was applicable to the Plaintiff.

[18] The Plaintiff’s drug use, both before and after the motor vehicle accident, was of importance in this case. As well, the Plaintiff’s credibility was seriously in issue. There was evidence that the Plaintiff was not compliant with the recommendations of his treatment providers. He gave various reasons for the cessation of certain jobs which were contradicted by the evidence of the employers. During the course of the trial, a surveillance tape was played which showed Mr. Smith walking from his house to the Eaton Centre, a distance of some three and one-half kilometers, which took more than an hour. During this time, he did not exhibit a limp. Later, he was seen in a park with a friend, throwing rocks and generally fooling around.

[19] The leading decision on the “threshold” issue remains Meyer v. Bright [2] in which the Court set out the questions that must be considered when determining whether or not the Plaintiff falls within one of the statutory exemptions:

(a) Has the injured person sustained a permanent impairment of a physical, mental or psychological function?

(b) If yes, is the function which is permanently impaired an important one?

(c) If yes, is the impairment of the important function serious?

[20] Mr. Smith was far from a reliable historian and did not make an impressive witness on his own behalf. There were many inconsistencies in his evidence and he refused to concede points which clearly contradicted his testimony. For example, he denied any improvement in his lower back pain despite the records of the physiotherapist Lee and Dr. Bourassa which clearly indicated he told them he was significantly improved within a year of the accident. He was hostile and argumentative while under cross examination. Despite the professed severity of his complaints, the Plaintiff has undertaken virtually no treatment in the last four years, which is most curious.

[21] While the Plaintiff claims that he was unable to work due to his accident-related injuries until 2009 and that his ability to work on a full time basis as a cook in the future has been compromised, the evidence does not support this contention. He worked two jobs for a period of time in 2009 and currently, he is working at the most remunerative job he has ever held and works all of the hours that are offered to him.

[22] He was not candid with his doctors and did not comply with their recommendations in many instances. He gave inaccurate or incomplete information to doctors, particularly with respect to his use of marijuana and alcohol. The surveillance tape undermined his testimony at the trial and the history he provided to many of the doctors.

[23] Briefly put, the Plaintiff’s evidence was neither credible nor consistent. As a result, I cannot rely on Mr. Smith’s self-reports of the pain and limitations he currently suffers as a result of the accident. I am simply not persuaded of the veracity of his evidence.

[24] I turn now to the medical evidence from the trial. Given the nature of the low back complaints made by Mr. Smith, the evidence from the orthopedic surgeons must be scrutinized. Both Dr. Kadish and Dr. Ford were qualified to offer expert opinions to the Court in the area of orthopedic surgery. The doctors do not agree on causation.

[25] Dr. Kadish diagnoses sacroiliitis and right-sided radiculopathy while Dr. Ford can find no explanation to account for Mr. Smith’s pain complaints. Where the evidence of the two surgeons differs, I prefer the evidence of Dr. Ford. He is more qualified to opine on injuries to the spine, having done a fellowship in spinal surgery. Dr. Kadish is a general orthopedic surgeon as opposed to a sub-specialist. I found Dr. Ford to be a knowledgeable, articulate witness who understood his obligation was to assist the Court. In my opinion, Dr. Ford was impartial and unbiased and of great assistance to the Court.

[26] I accept Dr. Ford’s evidence that he rejected the diagnosis of sacroiliitis and radiculopathy because there was nothing on the MRI to support these diagnoses. Further, he testified that if the Plaintiff did have these conditions, he would have a profound limp and there was no evidence of this during the extensive surveillance that was undertaken and shown to the Court.

[27] The Plaintiff bears the onus of establishing, through the evidence, that he has sustained an injury that surpasses the statutory exemptions. While he and his parents and his wife testified that he cannot do the activities he used to engage in before the accident, I do not find that this is the reality or that it is related to injuries from the collision.

[28] My view is strengthened by the medical evidence which I accept and reject the assertion that there is anything of an orthopaedic nature that accounts for the Plaintiff’s described pain; nor is there anything of a psychiatric diagnosis that would assist the Plaintiff in establishing that he has suffered a permanent impairment of a psychological function. There is a real issue about the etiology of whatever depression-like symptoms Mr. Smith currently exhibits, in light of his excessive drug use and alcohol consumption.

[29] The Plaintiff has failed to establish on a balance of probabilities that his injuries constitute one of the exemptions set out in the legislation. Therefore, the motion by the Defendant is granted. The Plaintiff’s action is dismissed.

D.A. Wilson J.

Date: 20120606

[1] Ali v Consalvo (2009), 2009 CarswellOnt 604 (S.C.J.)

[2] Meyer v. Bright 1993 3389 (ON C.A.)