ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-07-086123-00
DATE: 20130220

BETWEEN:

Brenda Shepstone, Chantel Shepstone, minor by her Litigation Guardian, Brenda Shepstone, and Shirley Shepstone

Plaintiffs

– and –

Troy Cook, Dennis Hickey, and Aviva Insurance Company of Canada

Defendants

Heikki Cox-Kikkajoon, for the Plaintiffs

Blair Nitchke, for the Defendants, Dennis Hickey and Aviva Insurance Company of Canada

Troy Cook, in person

HEARD: December 17, 2012

REASONS FOR DECISION

EDWARDS j.:

Overview

[1] At the completion of the evidence and after the jury had rendered its verdict, Ms. Nitchke brought a motion, commonly referred to as “threshold motion”, seeking a declaration pursuant to section 267.5(5) of the Insurance Act, R.S.O. 1990, c.I. 8, as amended (the “Act”), that the plaintiff’s injuries do not meet the statutory threshold and therefore her entitlement to recover damages for non-pecuniary loss is barred. The determination of whether or not the plaintiff’s injuries pass the statutory threshold will also impact on the plaintiff’s entitlement to claim healthcare expenses. If the plaintiff’s injuries do not meet the statutory threshold then the plaintiff’s entitlement to claim damages for past and future healthcare will be barred pursuant to provisions of section 267.5(3) of the Act.

[2] If the defendant’s motion is successful, it will have the effect of negating any recovery for damages awarded by the jury in this case. After approximately four weeks of trial, the jury returned with a verdict finding the defendant, Troy Cook, 100 per cent liable for the plaintiff’s injuries and assessed the plaintiff’s general damages at $7,500.00 and the plaintiff’s claim for future care costs at $7,500.00. The jury made no award with respect to the plaintiff’s claims for future loss of income. The jury also denied the plaintiff any award for past and future claims for housekeeping expenses.

[3] For the plaintiff to recover general damages and damages for future care costs, the plaintiff must demonstrate that she has sustained an injury that has resulted in either a permanent serious disfigurement (which does not apply to the facts of this case) or that she had suffered a permanent serious impairment of an important physical, mental, or psychological function.

[4] In order to be successful in her claim for general damages and future care costs, the plaintiff must meet the definition provided by Ontario Regulation 381/03, which provides:

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 persons 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 persons 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, they 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 a person in similar circumstances.

Background

[5] The plaintiff was born in May 1967. She has a seventeen year old daughter. She had worked in various jobs, most recently, prior to the subject motor vehicle accident, she had worked at the Honda assembly plant in Alliston, Ontario.

[6] The plaintiff has been involved in two motor vehicle accidents. The first occurred in 2000. The second, being the subject motor vehicle accident, occurred on January 24, 2006. I will refer to the 2000 accident as the “first accident” and the 2006 accident as the “second accident”.

[7] It is clear from the medical evidence that, as a result of the first accident, the plaintiff suffered a significant injury to her right shoulder that required an operation to her rotator cuff. The plaintiff was treated by Dr. Robyn Richards, a noted expert with respect to upper extremity injuries, both with respect to the injuries suffered in the first accident and the second accident. The plaintiff was seen by Dr. Richards approximately two weeks prior to the second accident. When she was seen by Dr. Richards on January 16, 2006, Dr. Richards noted that she was “significantly symptomatic with regards to the injuries that she sustained in a motor vehicle accident which occurred on December 9, 2000 (the first accident)”. At the time of this assessment, just prior to the second accident, the plaintiff was having pain over the inferior aspect of her shoulder on a daily basis. Dr. Richards noted that she still required the assistance of her boyfriend, or a neighbour, to assist her with respect to snow shovelling and heavy yard work. Dr. Richards was of the view that the plaintiff had suffered a significant and severe right shoulder injury as a result of the first accident and that she remained, as of two weeks prior to the second accident:

Significantly symptomatic and should be considered at this junction to have a permanent disability as outlined previously together with permanent occupational, recreational, and household limitations as outlined previously.

The Medical Evidence

[8] As a result of the second accident, the plaintiff asserted that she had suffered an exacerbation of the injury to her right shoulder and that she had also suffered a significant exacerbation of the injury to her low back. It was acknowledged that there had been some complaints of low back pain as a result of the first accident but that, for the most part, any problems with her low back had cleared up by the time of the second accident.

[9] The Court received evidence from a number of medical experts. On behalf of the plaintiff, the court heard evidence from the plaintiff’s two family doctors, both of whom provided evidence with respect to her medical status prior to and subsequent to the second accident. Dr. Stewart was the plaintiff’s family physician prior to the second accident. Dr. Stewart testified that the plaintiff would have a permanent disability as a result of the injury to her right shoulder that would limit her ability to do anything above her shoulder or of a repetitive nature. Dr. Stewart was of the view that she had suffered a permanent disability as a result of the injuries suffered to her right shoulder in the first accident.

[10] Dr. Seward became the plaintiff’s family doctor in October 2004. Dr. Seward was of the opinion that the plaintiff’s right shoulder pain was chronic. Dr. Seward was cross-examined at length with respect to the frequency of the plaintiff’s visits to see him. It is particularly noteworthy that in 2008, the plaintiff only attended upon him with respect to one visit when she was complaining of low back pain; three visits in 2009 when she complained of back pain; and in 2010 and 2011 there were no visits in which the defendant made complaints of problems with low back pain. Only as this matter was coming to trial did the frequency of the visits by the plaintiff, with respect to low back pain, increase. In 2012, Dr. Seward commented upon consultations which took place in August, September, and November when the plaintiff was complaining of low back pain that necessitated the prescription of a narcotic patch. Dr. Seward also commented on a long-standing history of depression that was quite evident from his review of his clinical notes and records.

[11] Dr. Wong was qualified as an expert in physiatry and testified about the worsening of the plaintiff’s right shoulder condition, as well as her low back pain. Dr. Wong did not provide much of any assistance with respect to the issue of the permanence and seriousness of these injuries. Dr. Wong’s evidence also suffered from the fact that he did not have available to him, when he initially saw the plaintiff, the medical records with respect to the injuries she had suffered in the first accident. At no time, based on his review of his various reports, did he compare the injuries suffered in the first and second accident.

[12] Dr. Vandersluis is an orthopaedic surgeon who treated the plaintiff both with respect to the injuries suffered in the first accident, as well as the second accident. The plaintiff was referred to Dr. Vandersluis in May 2001 by Dr. Stewart. Dr. Vandersluis initially attempted conservative treatment and ultimately referred her for an MRI which, while negative, nonetheless caused Dr. Vandersluis to conclude that she had an impingement and rotator cup tendinitis. He injected cortisone, without any improvement in her symptomology. As a result, Dr. Vandersluis conducted a right shoulder arthrothscopy and subacromial decompression in the hope that it would alleviate the plaintiff’s severe right shoulder pain.

[13] Dr. Vandersluis, in cross-examination, agreed with the views that he expressed in a report that he had prepared in 2005, for plaintiff’s counsel in connection with the first accident. In that regard, he agreed that as a result of the injuries suffered in the first accident, she would not be able to do any job which involved repetitive overhead activity. He was also of the opinion that the injury to the right shoulder suffered in the first accident would affect her in her activities of daily living, housekeeping, home maintenance, and any occupation that she chose.

[14] Dr. Vandersluis saw the plaintiff after the second accident, only once, that being April 26, 2010. Dr. Vandersluis testified, in-chief, that after he reviewed the actual MRI of the plaintiff’s right shoulder, taken after the second accident, that she had suffered a partial thickness tear of her rotator cuff. He was of the view that this was a significant change from the injury that she had suffered in the first accident. It is noteworthy that Dr. Vandersluis came to this opinion only after he reviewed the actual MRI, essentially on the eve of his testimony at trial. He indicated that he felt that he was better qualified to review the MRI than the radiologist who had prepared a report, which had been relied upon by all of the experts who ultimately testified at trial. The MRI report does not refer to a partial thickness tear of the rotator cuff.

[15] I had an opportunity to assess the demeanour of Dr. Vandersluis and his evidence was given very much as an advocate on behalf of the plaintiff. I find it difficult to accept that Dr. Vandersluis, even though he is an orthopaedic surgeon, would be in a better position to interpret an MRI than a radiologist who is specifically trained to read and interpret an MRI. Dr. Cameron, who was called as a witness on behalf of the defence, was questioned with respect to whether or not a radiologist or an orthopaedic surgeon is in a better position to interpret an MRI. In that regard, Dr. Cameron was of the view that a radiologist is in the better position, not the orthopaedic surgeon.

[16] On something so fundamental as whether or not the plaintiff’s injury to her right shoulder involved a partial thickness tear, testified to by Dr. Vandersluis, this court is of the opinion that if an expert is to be of assistance to the court, such an opinion should be expressed in a report that complies with the Evidence Act and the Rules of Civil Procedure. I accept the evidence of Dr. Cameron that a radiologist is in a better position to interpret an MRI and I do not accept the evidence of Dr. Vandersluis that the plaintiff has suffered a partial thickness tear of her rotator cuff.

[17] This court also heard evidence from Dr. Robyn Richards. As previously noted, Dr. Richards is well qualified as an orthopaedic surgeon, with a specialty in upper extremity injuries. Dr. Richards acknowledged that he had concluded that the plaintiff had suffered a permanent disability as well as permanent limitations as a result of the injury that she suffered in the first accident. He noted that the possibility for further surgery as a result of the first accident was set at five to ten per cent. With respect to the plaintiff’s present condition, now as a result of the second accident, Dr. Richards was of the view that the plaintiff’s possibility for further surgery was in the ten to twenty per cent range.

[18] Dr. Richards has testified on numerous occasions and, undoubtedly, is aware of his responsibilities as an expert. It is particularly noteworthy with respect to his medical legal report prepared in connection with the second accident, that he makes no reference whatsoever to the fact that the plaintiff had been involved in an accident in 2000. He also makes no mention of the fact that he had assessed the plaintiff in connection with the injuries suffered in the first accident. This is particularly noteworthy given that Dr. Richards was of the view that she was permanently disabled as a result of the injuries suffered in the first accident. The failure of Dr. Richards to make this disclosure in the medical legal report prepared for the purposes of the second accident, detracts from the credibility of his overall opinion.

[19] Dr. Richards confirmed in cross-examination that with respect to all four of the reports that he prepared in connection with the first and second accidents that, both prior to and subsequent to the second accident, she had a significant shoulder injury that had resulted in a permanent disability resulting in permanent limitations with respect to her housekeeping responsibilities and her occupational potential.

[20] The court also heard evidence from Dr. Hugh Cameron, who was qualified as an expert in orthopaedic surgery. Dr. Cameron commented on the injuries suffered in the first accident and was of the view that prior to the second accident, the restrictions from which she was suffering were permanent and were not going to go away.

[21] Dr. Cameron disagreed with Dr. Vandersluis and was not of the view that the plaintiff had a positive impingement of her right shoulder. Dr. Cameron rejected the notion that there was any evidence of a full thickness tear of her rotator cuff.

The Issue

[22] The fundamental factual issue that this court has to determine is whether or not the plaintiff has suffered a permanent serious impairment of an important physical, mental, or psychological function. This court received little in the way of any evidence suggesting that the plaintiff has suffered an injury that has resulted in a permanent serious impairment of a mental or psychological function. Undoubtedly, the plaintiff has had a history of depression which both predates the first and second accident. On the medical evidence I am not satisfied that the plaintiff has suffered a permanent serious impairment of a mental or psychological function. As to the physical injury suffered by the plaintiff to her shoulder and her low back the medical evidence again does not support a finding that the plaintiff suffered a permanent serious impairment of an important physical function.

[23] The plaintiff is presently being treated with a narcotic patch for her low back pain. The medical records from Dr Seward confirm she made virtually no complaint of low back pain from 2008 through 2011. Accepting that she has low back pain now, I do not accept, in the absence of ongoing complaints of low back pain for nearly 4 years that there is any causal relationship between the Plaintiff’s present low back pain and the second accident.

[24] As far as her right shoulder injury the evidence prior to the second accident confirms that she had suffered a permanent disability as well as permanent limitations to her right shoulder. This was confirmed by both Dr Vandersluis and Dr Richards. For reasons already noted I do not accept that the Plaintiff suffered a positive impingement of her right shoulder nor do I accept she suffered a full thickness tear of her right rotator cuff. The permanence of the injury to the right shoulder is the very same permanence found by Dr Richards and Dr Vandersluis in connection with the first accident.

[25] In further support of my finding that the plaintiffs physical injuries do not meet the threshold I have considered the verdict of the jury in this case. While the jury is not asked to consider the statutory definition for a threshold injury the jury was asked by plaintiff’s counsel to make substantial awards for future losses. Implicit in such an argument is the suggestion that the plaintiff has suffered a significant injury that will have long lasting effects on the plaintiff well into the future.

[26] The positions of the plaintiff and defendant, as presented to the jury during the course of evidence, as well as the closing submissions, were diametrically at odds with each other. In his closing submissions, plaintiff’s counsel urged the jury to award general damages in the range of $75,000 to $125,000. With respect to the claim for future loss of income, it was suggested that the jury could make an award based on a loss of between $10,000 to $15,000 per year to age 55 or age 65. Clearly, if the jury had accepted this theory a substantial award would have been made for future loss of income. With respect to the claim for past and future housekeeping costs, plaintiff’s counsel urged upon the jury that they make an award of approximately $21,000 for past housekeeping and approximately $163,000 for future housekeeping costs. Finally, with respect to the claim for future care costs, plaintiff’s counsel suggested a figure of approximately $150,000.

[27] The contrast in the parties’ position can be seen when defence counsel urged upon the jury that they assess the plaintiff’s claim for general damages in the range of $4,000 to $12,000. With respect to the balance of the plaintiff’s claim, defence counsel essentially urged the jury to make no award whatsoever.

[28] The jury verdict makes quite clear that the jury did not accept the theory presented to them by plaintiff’s counsel. Equally, they have not accepted that the plaintiff’s injuries were of any great consequence. The most that can be inferred from a review of the jury’s verdict, is that the jury accepted that there was some minor exacerbation of the plaintiff’s medical condition, as it stood immediately prior to the second accident.

[29] The question of whether or not the plaintiff’s injuries “pass the statutory threshold” is an issue of law that is solely for the trial judge to determine. The Court of Appeal, however, has left open to a trial judge the ability to consider the jury’s verdict in deciding whether or not the plaintiff has suffered a permanent serious impairment of an important physical function. In that regard, the Court of Appeal in Kasap v. MacCallum 2001 7964 (ON CA), [2001] O.J. No. 1719, stated:

The legislature has left it to judges to determine whether the threshold has been met. This will often overlap a jury’s consideration; and particularly where the symptoms are subjective.

Nowhere does the legislature say that the judge is bound to consider the jury verdict much less that the judge is bound by any implied finding of credibility of the jury. By the same token, the legislation does not suggest that a trial judge cannot, in the exercise of judicial discretion, consider the verdict of the jury. The legislation is clear: The judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the trial judge…

[30] As trial judges, in opening comments to the jury and in our final charge, we tell the jury that they are the triers of fact, while we as trial judges determine the law. Clearly, as trial judges, we are bound as a matter of law to determine those facts which either support the plaintiff’s claim for a threshold injury or otherwise. There undoubtedly have been, and there undoubtedly will continue to be cases where the jury’s determination of the facts may be at odds with the trial judge’s determination of whether or not the facts support the evidence necessary to establish that the plaintiff has suffered a permanent serious impairment of an important physical function.

[31] On the facts before this court, given the diametrically opposed positions presented to the jury by counsel, it is clear to me that the jury did not accept that the plaintiff has suffered a serious injury, but rather simply concluded that the plaintiff suffered a relatively minor exacerbation of her medical condition as it existed immediately prior to the second accident. I have, in accordance with the guidance given to me in Kasap, supra, considered the jury’s verdict, denying any recovery for future loss of housekeeping services, as well as the relatively nominal awards made for general damages and future care costs in coming to the conclusion that the plaintiff’s injuries do not fall within the exception to the threshold set out in section 4.2(1)(1)(iii) of the Act. The effect of this finding is that the Plaintiff will make no recovery as against the defendants. With respect to the costs of this action, as well as this motion, the parties are to exchange written submissions. If counsel are unable to agree upon costs within fourteen days of the date of release of this endorsement submissions are to be filed with the trial co-ordinator’s office

Justice M.L. Edwards

Released: February 20, 2013