COURT FILE NO.: 06-23676 DATE: 2012-12-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LISA JENNINGS Plaintiff

• and -

DONALD LATENDRESSE Defendant

COUNSEL: Lou Ferro, for the Plaintiff Valerie Hoag, for the Defendant

HEARD: November 23, 2012

RULING ON THRESHOLD MOTION

CAVARZAN J.

1The plaintiff, Lisa Jennings, was involved in a motor vehicle accident on April 9, 2005 in which she sustained personal injuries. The defendant, Donald Latendresse, admitted liability for the rear end collision. Jennings claims damages arising from the injuries.

2The trial proceeded before a jury over a period of nine days commencing on November 13, 2012. The defendant brought this threshold motion as soon as the jury had retired to consider its verdict.

3This accident having occurred in 2005 is governed by the provisions in legislation, known as Bill 198, which came into effect on October 1, 2003.

4The expression “threshold” refers to the requirements in s. 267 of the Insurance Act, R.S.O. 1990, c.I.8 that a “protected defendant” is liable for non-pecuniary loss or for health care expenses only if the injured person has died or has sustained permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function.

5The position of the plaintiff is that although she has a significant pre-accident medical history, she was symptom free and functioning normally at work and in her activities of daily living at the time of the motor vehicle accident.

6The defendant acknowledges that the plaintiff sustained injuries in the accident, but maintains that she was well on her way to recovering her pre-accident condition when she unilaterally stopped attending recommended therapy and returned to work. She worked full time for a period of eighteen months. In the circumstances, as confirmed by the medical evidence, the claimed impairments are not permanent.

7O.Reg. 461/96 provides the definition of permanent serious impairment of an important physical, mental or psychological function. In particular, s. 4.2(1)3 provides that:

3. For the impairment to be permanent, the impairment must,

i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,

ii. continue to meet the criteria in paragraph 1, and

iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Background

8The plaintiff was 25 years of age at the time of the motor vehicle accident; she is currently 33 years of age. She has a grade 13 education. Financial constraints caused her to abandon further studies undertaken by her at Mohawk College. According to testing done preparatory to trial, she is of above average intelligence.

9Since leaving school she has been employed in a series of jobs, mostly in sales, but including work in manufacturing at a company called Zenon Environmental where she sustained a workplace injury to her right wrist. After a period of rehabilitation she returned to Zenon, but left again for maternity leave and the birth of her son Cody in November, 2003. When maternity leave ended in December, 2003 she did not return to Zenon. Instead, she found work with bill collection agencies ARC (Accounts Recovery Corporation) in January, 2004 and then at ICC (Inter Canada Credit) until the accident of April 9, 2005.

10At ARC and ICC, her principal duties involved contacting debtors by telephone, a task which she found to be quite stressful. Cody, who turned out to have ADD (attention deficit disorder) and showed serious signs of aggressive behavior, was another significant stressor in her life.

11On April 9, 2005, she was able to drop off her passenger and then drive to her own home. Her immediate symptoms were: sore neck; her head was hurting – the right side of her face and jaw had hit the steering wheel; she was a bit nauseated; she was upset, confused, and had difficulty sleeping.

12The next morning she attended a walk-in clinic where she was assessed and told to take Tylenol. On the following day, Monday, she attended at her family doctor who referred her to physiotherapy and chiropractic treatment which commenced within days of that referral.

13Ms. Jennings’ complaints at the time of her first treatments by Dr. Misale (chiropractor) were:

• Headaches daily (varying in location and intensity);
• Pain in the right side of the lower jaw;
• Painful neck and shoulders with tingling down the arms;
• Sore upper back, mid back and lower back with pain down the legs;
• Sore knees and calves;
• Whole body pain.

14Dr. Misale (chiropractor) treated Ms. Jennings. He testified that his expectation was that she would respond normally to treatment and recover. On April 18, 2005, he had noted that the anticipated length of treatment would be of a duration of from nine to twelve weeks. By June 8, 2005, only two months after the accident, the plaintiff was reporting a fifty percent improvement in her symptoms. In a June 30, 2005, disability certificate Dr. Misale noted a revised anticipated duration of treatment of one to four weeks.

15By September, 2005, some five months post-accident, Ms. Jennings returned to her job as a debt collector. ICC had ceased operations. She joined a company called ARO Collections and worked there full-time from September 2005 until March 2007, a period of 18 months. She stopped working in 2007, ostensibly on the advice of her family doctor, Dr. Miller, and has not worked since that time; nor has she attempted to find employment at all since that time.

16Ms. Jennings met her current spouse in February, 2008. They now have two children, a son born in July, 2009 and a daughter born in March, 2011.

17Her current income totals $2,830.00 per month comprising $2,100.00 from ODSP (Ontario Disability Support Program) and $730.00 per month in baby bonus payments. While working full-time her monthly earnings had been between $1,700.00 and $2,000.00.

18Ms. Jennings’ pre-accident history showed that she had significant medical issues which compromised her ability to work and to function. She was off work for eleven months because of chronic tendonitis (carpal tunnel) from December, 2002, until November, 2003. Her work as a debt recovery officer made her anxious and stressed. She was diagnosed with chronic anxiety and was prescribed medication for that condition (Celebrex).

19Included in her pre-accident medical history were complaints about headaches from tension at work, problems with her knees, problems with her right shoulder and back pain.

The Medical Evidence

20The plaintiff called to testify on her behalf four psychologists, four chiropractors, an occupational therapist, a pain specialist (Dr. Marshall), and a neurologist (Dr. Rathbone). Her family doctor at the time of the motor vehicle accident has since died. Her current family doctor was not called to testify.

21The defendant called a kinesiologist, a physiatrist, a neurologist and a psychologist to testify for the defence.

22The diagnosis of chronic pain is not disputed. The central issues in this case are the cause of that condition and whether or not the condition is permanent.

23Initial treatment plans for the plaintiff involved physiotherapy through chiropractic manipulation, massage, exercise and hydrotherapy. Dr. Misale was the first chiropractor to treat her. As noted above, only two months post-accident, the plaintiff reported a fifty percent improvement in her symptoms.

24Dr. Lawrence Tuff, a psychologist who received a treatment plan for a DAC (Designated Assessment Centre) assessment in November, 2005, approved the treatment plan as appropriate. He opined that the plaintiff was likely to respond to treatment, and noted that she had already improved based on the treatments received to date.

25Dr. Dougherty, the second treating chiropractor (September, 2006 to October, 2007), was told by the plaintiff that she was getting better. The role of a treating chiropractor is to restore the plaintiff’s pre-accident functionality. Dr. Dougherty acknowledged on cross-examination that the plaintiff did not tell him about her history of back pain and headaches prior to the accident. She told him that she had undergone minor knee surgery but that otherwise she was one hundred percent healthy.

26This is the first example of many in which the plaintiff was less than forthcoming with medical practitioners when giving her medical history. She told Dr. Devlin in 2008 that her pre-accident health was “awesome”.

27Contrary to her statements to Dr. Misale and Dr. Dougherty, she told Dr. Stewart (neurologist) in 2012 that physiotherapy had not been helpful. In 2008, she had told Dr. Devlin (physiatrist) that the physiotherapy treatment received had made no change.

28Dr. John Crawford, a chiropractor in Guelph, and a DAC assessor, reported in June, 2005 that the following symptoms were experiencing relief from treatment and were resolving: WAD II (neck pain and movement); cervicogenic headache; and mechanical low back pain. He commented that “no further treatment is recommended at this time.”

29Doctors Park and Marshall who practiced at the Centres for Pain Management did nerve block injections on the plaintiff in March, 2006 (cervical spine) and October, 2007 (lumbar spine) respectively, which gave the plaintiff some relief.

30Dr. Marshall reported that his physical examination of the plaintiff on October 23, 2007, revealed the following: no apparent distress; normal vital signs; normal motor strength in the upper and lower extremities; normal deep tendon reflexes; no atrophy or fasciculations of the muscles; and full range of motion of the neck, shoulders, hips and knees.

31In this case as well, the plaintiff made no reference to her carpal tunnel problems / chronic tendonitis when Dr. Marshall took a medical history from her.

32The plaintiff attended for six sessions of psychotherapy with Dr. Sharma (psychologist) in 2005. Dr. Sharma’s report of August 24, 2005 cited the following conclusions from the testing done: acute pain (less than six months); adjustment disorder (depression and anxiety); irritability and anger; and motor vehicle passenger travel phobia.

33In this instance, as well, the plaintiff did not reveal significant aspects of her pre-accident circumstances including chronic anxiety and the use of Celebrex, the stress caused by Cody’s developmental issues, and the facts that she angered easily and cried easily.

34Exhibit 14 is the Assessment Report of May 31, 2012 commissioned by the plaintiff and completed by a team of experts comprised of a psychologist (Dr. Lorenz), a chiropractor (Dr. Tartaglia), and a career planner (Lisa Timmons). In essence, the conclusion of the report is that the plaintiff is permanently disabled from a psychological perspective which will substantially interfere with her ability to continue regular or usual employment and her ability to continue training for a career. A similar conclusion is arrived at concerning the plaintiff’s activities of daily living.

35The conclusions in this report are contradicted by the evidence led by the defence in this case, evidence which I find more persuasive for the reasons given later in this ruling.

36Dr. Lorenz discounted as not important to her the fact that Drs. Misale and Crawford say that the plaintiff showed improvement from the chiropractic treatment. Dr. Lorenz acknowledged that she would have been interested in the fact that the plaintiff had been off work prior to the accident due to carpal tunnel injury. She acknowledged as well, on cross-examination, that the plaintiff’s pre-accident diagnosis of chronic anxiety was more than a transitional condition.

37Significantly, she acknowledged that the plaintiff had exhibited pain behavior during testing; that a validity test suggested that she may have magnified her symptomatology; that she scored in the superior range or the high average range in tests of intellectual achievement; and that she would be able to engage in educational programs if she were able to control the pace, e.g. in on-line learning.

38Finally, she acknowledged that stressors such as plaintiff’s son Cody and the involvement of the Children’s Aid Society (CAS) had an impact on her ability to cope.

39Dr. Tartaglia performed a functional abilities evaluation and concluded that based on today’s [2012] results, “it appears that Ms. Jennings is not suitable to do the essential tasks of her occupation as a collection officer on a full-time basis”.

40Noting that the job of debt recovery officer is sedentary and involved no heavy lifting, he tested both her sitting and her standing tolerance. In the result he found that her sitting tolerance was 75 minutes (though she claimed a 30 minute limit) and her standing tolerance was 105 minutes whereas her self-perceived tolerance was from 15-20 minutes.

41These observations conform with the conclusion of Delissa Burke (kinesiologist), called by the defendant, that the plaintiff’s perception of her capacities is lower than what she demonstrated in the testing done by Ms. Burke.

42Dr. Rathbone, a neurologist, examined the plaintiff on March 7, 2011. His report (Exhibit 15) is entirely favorable to the plaintiff’s position. In my view, however, he has engaged in hyperbole by attributing every conceivable finding to the motor vehicle accident. For example, at page 18 of Exhibit 15 in listing conditions arising out of the accident, he includes “probably underlying cervical and lumbar facet joint injury”, and exacerbation of right knee dislocation.

43The facet joint injury as a cause of the plaintiff’s chronic pain complaints is mere speculation on his part. His statement at page 22 of Exhibit 15, in discussing Right Patellar Dislocation, that “she slammed her right knee on the dashboard due to the indexed accident” is not supported either by the plaintiff’s own testimony or by the medical documentation. Indeed, Dr. Devlin (physiatrist) testified that medical attention for the plaintiff’s knee pain commenced in July, 2006 and was not related to the motor vehicle accident.

44Dr. Rathbone listed “right knee subluxation (patellar joint dislocation)” as one of the conditions predating the accident. At page 22 of his report he states that:

I do not have sufficient evidence from the review of her medical records that she had a complete recovery prior to the accident or if she has sustained direct injury to the knee. However, she was wearing a knee brace at the time of her physical examination and said that her knee dislocates quite frequently due to the superimposed injury sustained from the indexed accident.

45If the plaintiff told Dr. Rathbone that her knee was injured in the accident, she made no mention of striking her knee on the dashboard in her testimony at trial. In cross-examination she agreed that she had hyperextended the knee in July, 2006, the same knee injured in a 1998 motor vehicle accident.

46At page 26 of his report, Dr. Rathbone notes in paragraph 15 that “most of her impairments were expected to improve”. “Unfortunately, Ms. Jennings did not see an improvement in her current physical examination and review of medical record [sic] is a good evidence of it.” The latter statements contradict what she told Drs. Misale and Crawford. Also, the medical records filed document her self-appraisal of a fifty percent improvement in her symptoms as a result of physiotherapy.

47Finally, at page 27 of his report Dr. Rathbone notes that “the review of medical reports clearly suggests that she participated fully in the recommended treatments.” The evidence at trial contradicts that conclusion in that it was established that she voluntarily terminated physiotherapy and psychotherapy and made no subsequent effort to continue with these therapies.

48In the circumstances, I accord little weight to the findings and conclusions of Dr. Rathbone.

49A functional capacities evaluation completed in September, 2005 by Delissa Burke (kinesiologist) concluded that the result of tests conducted over a two-day period showed that the plaintiff’s abilities met or exceeded the requirements of performing clerical tasks with no substantial impairments.

50Dr. Michael Devlin (physiatrist) is an expert in physical medicine and rehabilitation. His report is dated September 25, 2008. He diagnosed chronic widespread pain being a subjective response to plaintiff’s own complaints of pain. The prognosis for abatement of the pain was poor; however, his suggestion for treatments that would permit her to function normally was a new drug, Pregabalin, and cognitive pain management.

51Dr. Devlin disagreed with Dr. Rathbone’s diagnosis of radiculopathy based on an EMG finding by Dr. Savelli, neurologist, of “evidence of chronic nerve root injuries from L4-5 and L3-4”. Dr. Devlin testified that the plaintiff had no findings on examination in keeping with radiculopathy. He testified that no examiner other than Dr. Rathbone found neurological deficiencies, that most such examinations produced normal results, and that Dr. Rathbone is an outlier in this respect. He noted that the report and findings of Dr. Stewart, neurologist, were normal.

52Dr. Stewart, an expert in neurology, examined the plaintiff on January 16, 2012. She described her pre-accident health as “awesome” and described her physiotherapy treatments as “not helpful”. When the plaintiff changed her family doctor from Dr. Wolos to Dr. Miller, an MRI was done which yielded normal results. A further MRI on August 13, 2008, revealed no significant abnormality. A further CT Scan on August 18, 2008, yielded similar results.

53An EMG of the lower limbs by Dr. Giammarco revealed no nerve injury. Obtained from Dr. Miller were a CT Scan of plaintiff’s neck and an MRI of her head, both of which were normal.

54Dr. Stewart diagnosed chronic pain syndrome, but noted that there has to be an explanation; however, none was found from physical examination. His opinion was that the cause was not physical; rather, it is the result of psychological stress at home and at work. He could find no neurological cause for the pain. In his view, pain usually gets better.

55Dr. Stewart’s opinion is that while the plaintiff has pain, he is unable to say that she is disabled. There is no evidence of physical damage and no disabilities in the neurological area to prevent the plaintiff from carrying on with her activities of daily living and working.

56In a follow-up report of April 17, 2012, after reviewing reports from Dr. Crawford and Ms. Gabriele (massage therapist) that two months post-accident the WAD II, the headaches and the mechanical low back pain were all resolving, he concluded that this reinforced his conclusion that there was no neurological damage.

57In a second follow-up report of September 12, 2012, after reviewing the Lesya Dyk report and the Lorenz/Tartaglia/Timmons report, he found that these also reinforced his opinion. There is no neurological basis for the plaintiff’s psychological problems.

58Dr. Stewart’s views were not effectively challenged on cross-examination. He stated that it was not reasonable to assume that the plaintiff had suffered a concussion and that the nausea she experienced was the result of concussion.

59Dr. Stewart called the view that microtrauma can cause pain, even though it is not visible, a theory. Significantly, he did not agree with the suggestion that interruption of treatment as progress was being made would cause relapse or loss of ground and a return to the original damaged condition. Finally, he disputed the notion and significance of so-called trigger points identified by chiropractors via palpation. He called that a theory and noted that one can find spots on the body that are hypersensitive.

60Dr. Stewart agreed that it was reasonable to accept that headache, neck and back pain were all caused by the accident. He noted, however, that recovery is expected. Initially, the plaintiff improved. Six years later she claims that her condition is worse.

61Dr. Shulamit Mor (psychologist) was qualified as an expert in clinical counseling, rehabilitation psychology and in preparing psychovocational assessments. She conducted a two-day assessment of the plaintiff in August 2012.

62Dr. Mor’s impression of the plaintiff was that she is talented, bright, has good social skills, and is not pain-focused. The testing revealed that from a vocational perspective she is a very capable young woman. She has transferable skills; she need not go to school to retrain for work; she is not particularly depressed, anxious or pain-focused; she can be a well-functioning young woman.

63The plaintiff is concerned about her pain and has developed sensibilities, but based on testing, there is no reasons why she cannot return to her pre-accident life. She worked the tests very quickly and accurately; she was very focused; she was very efficient.

64Regarding potential career paths, she can do most jobs suggested by Dr. Mor except for those of audiology technician and paralegal. If she chooses to go to college, she will do well.

65Dr. Mor’s opinion is that the plaintiff needs help in the form of psychological treatment and pain management to regain her pre-accident status.

66The trick is to help her realize that “pain” is not a terminal disease. Dr. Mor opined that there is no limitation from a psychological perspective to prevent plaintiff’s return to work and to her activities of daily living.

67Dr. Mor agreed, on cross-examination, that a multidisciplinary pain management program combining physical and psychological treatment was what she had in mind, followed by a return to work in stages.

68The Ontario Court of Appeal decision in Meyer v. Bright (1994) 1993 ONCA 3389, 15 O.R. (3d) 129 set out the questions that must be considered in 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?

69For the following reasons, I have concluded that the plaintiff has not met the criteria in s. 4.2(1)3 of the Regulations, supra, for the impairment to be permanent. The plaintiff bears the onus of establishing, through the evidence, that she has sustained an injury that satisfies the statutory criteria.

70The plaintiff’s pre-accident medical history showed that she had significant medical issues which interfered with her ability to work and to function. Her job as a debt recovery officer caused her considerable stress and anxiety. She had been diagnosed with chronic anxiety and had been prescribed medication for that condition.

71Post-accident, she experienced stress from several non-accident related sources including: ongoing issues with her mother; ongoing issues with her son Cody’s aggressive behavior and threats made by him to her personal safety, and the involvement of the CAS which removed Cody from the home and made him a Crown ward; her spouse’s health issues and unemployment; and her financial concerns.

72I agree with the defendant’s submission that, notwithstanding the motor vehicle accident, the plaintiff would have continued to face the above stresses in life.

73Functionally, Ms. Jennings is more capable than she is prepared to acknowledge. Drs. Misale and Crawford testified about improvement in her condition in the first two months after the accident. A functional capacity evaluation in September, 2005, concluded that she was able to do the essential tasks of her pre-accident employment. There are no physical indications of impairment. There is no neurological cause for any impairment. Dr. Devlin and Dr. Stewart rejected Dr. Rathbone’s findings. They testified that degenerative disc disease and Schmorls nodes occur naturally and are not necessarily the result of trauma nor are they necessarily the source of pain, it being acknowledged by the medical witnesses for both sides that there can be such changes without pain and pain without such changes.

74Ms. Jennings was approved to receive psychological treatment which occurred for a time with Dr. Sharma before she abruptly stopped attending. She did not establish a rapport with Dr. Sharma, but she did not seek out a new counsellor even when she was told that she could.

75Similarly, Ms. Jennings stopped physiotherapy in 2006 when she returned to work. In the absence of any evidence from her family doctors, apart from the clinical notes and records of her first family doctor (Dr. Wolos), there is no evidence that she pursued any more treatment.

76Throughout the trial, counsel for the plaintiff elicited from witnesses testimony about how Ontario’s no-fault legislative scheme is structured. Particular emphasis was placed on the fact that treatment plans submitted by treating professionals were rejected by the plaintiff’s own insurer and sent for further evaluation by a DAC.

77The defendant, Donald Latendresse, had no part in approving or denying any treatment for the plaintiff. Any consequences of decisions made by the plaintiff’s own insurer should not be visited on the defendant. The fact remains, nevertheless, that the plaintiff failed to follow up on psychological treatment and rehabilitation therapy that was in train and available to her at the time that she ceased attending.

78I have concerns about Ms. Jennings’ credibility as a witness. She gave inaccurate or incomplete information to doctors, particularly with respect to her pre-accident medical history and with respect to improvement in her symptoms as a result of physiotherapy. Dr. Marshall testified that she was advised to return for further nerve block injections but she never did so. Ms. Jennings told Dr. Devlin that she stopped nerve block injections when “they” (Drs. Park and Marshall) refused further treatment because of her failure to agree to take narcotic medications. Dr. Park is deceased and Dr. Marshall testified that his notes and records indicate only that she never returned for further treatment.

79The test results belie the plaintiff’s testimony about her capacity to function. I cannot rely on her subjective reports of the pain and the limitations she claims to continue to suffer as a result of the accident.

Conclusion

80The plaintiff has failed to establish on a balance of probabilities that her injuries from the accident are permanent. As a result, she has not brought herself within the exemption in the legislation.

81The motion by the defendant is granted. The plaintiff’s action is dismissed.

Cavarzan J.

Released: December 12, 2012

COURT FILE NO.: 06-23676 DATE: 2012-12-12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

LISA JENNINGS PLAINTIFF

• and –

DONALD LATENDRESSE DEFENDANT

RULING ON THRESHOLD MOTION

CARVARZAN J.

JC//dm