ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 49090/07
DATE: 2013/10/29
BETWEEN:
ANDREW MIKOLIC
Frank Burns, for the Plaintiff
Plaintiff
- and -
DAVID TANGUAY and CORRIE ALBANO
Brian Banfield, for the defendant, Corrie Albano
Defendants
HEARD: October 22, 2013
Arrell J.
Introduction:
[1] The defendant, Corrie Albano, brings this motion to dismiss the plaintiff’s claim pursuant to s. 267.5(5) of the Insurance Act, R.S.O. 1990 C.1.8, as amended, on the basis that the injuries do not meet the statutory threshold.
[2] This action arises out of a motor vehicle accident which occurred on June 10, 2005. This matter was tried before a jury and the motion was argued while the jury deliberated.
Facts:
[3] The plaintiff sustained a comminuted fracture of his clavicle that required internal fixation. That fixation was removed approximately four years post surgery. The plaintiff has been left with a large scar to the left shoulder area.
[4] The plaintiff was 34 when this accident occurred. He was employed as a general contractor with skills as a drywaller. His earnings were speculative as he did a great deal of work in cash which he did not report to Revenue Canada. In any event, he was able to persuade his own insurer, Aviva, to provide IRB payments, past and future, of approximately $150,000 over a number of years.
[5] The evidence is overwhelming from both plaintiff and defendant doctors that the fracture healed well. The evidence is equally overwhelming that this plaintiff developed chronic pain with the usual symptoms of depression, withdrawal socially, headaches, some mild cognitive deficits, lack of motivation and sleep disruption.
[6] The vast majority of medical evidence, from both plaintiff and defence doctors, is that the plaintiff’s pain is real and genuine to him. His ability to work as a drywaller is compromised. I find as a fact that to be true.
Position of the Parties:
[7] The plaintiff argues that his injuries are serious and permanent. They are as a result of the accident.
[8] The defence argues that the plaintiff is not credible and since his pain complaints are subjective, they should not be accepted. It further argues any impairment of the plaintiff’s bodily function is not an important one, nor is the impairment serious.
Analysis:
[9] The onus is on the plaintiff to persuade the court on a balance of probabilities that his injuries meet the threshold set out in s. 267.5 of the Insurance Act, supra.
[10] I am satisfied that the plaintiff has met that onus.
[11] The plaintiff had a significant fracture which required an internal fixation, the subsequent removal of that hardware and he has been left with a scar clearly visible when he is without a shirt. I have found as a fact that he continues to have pain, depression and cognitive impairments with various other symptoms. It is not necessary for me to decide if he also has a mild brain injury or PTSD.
[12] The plaintiff has had these problems for eight years. The evidence from almost all of the medical witnesses and the vocational assessor confirms that any improvement is doubtful given the type of symptoms and the length of time they have lasted.
[13] The evidence also indicated, which I accept, that if there was to be any improvement, it probably would not be significant.
[14] I conclude, based on the medical evidence that I accept, that the injury to the plaintiff of chronic pain with the various associated symptoms already mentioned is permanent.
[15] The evidence was well-established that the plaintiff was an active, vibrant, fun-loving, social person prior to the accident. He worked and he had rental properties he was improving for rent or re-sale. He enjoyed sports, the outdoors, motor cross, automobiles and vacations in Florida. There is no evidence of any health issues prior to the accident.
[16] I conclude that since the accident he has become dysfunctional in his employment, home-life and intimacy with his common law spouse. He has become depressed, withdrawn, unmotivated and basically spends his day, according to the evidence, sitting in his Lazy-boy chair in front of the TV. He does virtually none of the things he did prior to the accident. He no longer socializes with family or friends and, as a number of lay witnesses said, he is no longer fun to be with and they avoid him.
[17] I accept the evidence of the plaintiff as it relates to his pain, dysfunction, depression and inability to work, as do the vast majority of medical practitioners who assessed him. I have less confidence in his credibility regarding his earnings pre accident, given the state of his tax returns. That, however, is not an issue on this motion.
[18] The surveillance produced by the defence was extremely limited in duration and was only a small fraction of time encompassing the eight years that have elapsed since the accident. The surveillance showed the plaintiff driving for three or four minutes, standing and talking, while others worked. It also showed him eating at a restaurant with a close friend and enjoying the encounter.
[19] I conclude the surveillance was of no real probative value and certainly did not alter my impression that the plaintiff has chronic pain.
[20] I agree with Sedgwick J.:
...chronic pain arising from injury sustained in a motor vehicle accident and resulting in limitation of function which is unlikely to improve for the indefinite future meets the requirement of “permanent”...
Page v. Primeau, [2005] O.J. No. 4693 (S.C.J.) at para. 30
[21] I conclude this plaintiff’s injuries from this accident meet that definition of permanent and I so find.
See also Beader v. Evans, 2012 ONSC 5781
[22] The defence case law presented to me is quite distinguishable on the facts of those cases from the one at bar. The dysfunction of those plaintiffs appeared less severe and the medical opinions much more divided on whether the pain was real to those plaintiffs. Most importantly, the trial judges in those cases did not believe their respective plaintiffs and the subjective complaints they made. That is not the finding I have made regarding Mr. Mikolic. As well, Mr. Mikolic has not refused any treatment offered or recommended to him by his treating physicians, other than missing the last two or three sessions with Dr. Vigna because of the length of travel to attend.
[23] I conclude that the bodily function that is impaired is indeed important to Mr. Mikolic. As was stated in Meyer v. Bright, 1993 3389 (ON CA), [1993] O.J. No. 2446 (O.C.A.) regarding an important bodily function:
...what must be considered is the injured person as a whole and the effect which the bodily function involved has upon that person’s way of life in the broadest sense of that expression.
[24] I conclude Mr. Mikolic’s injuries involve his total body function and have affected his entire way of life in a profound way when compared to his life and functioning prior to the accident. Needless to say, I conclude for the same reasons as already stated that the impairment of his overall functioning is serious.
[25] The jury awarded the plaintiff general damages, past loss of income, future loss of income and future care costs. The amounts were relatively modest, however, such an award indicates the jury’s opinion that Mr. Mikolic’s ability to earn income in the past and into the future has been compromised some eight years after the injury was sustained and that he will require some future medical care.
[26] The motion of the defendant is dismissed with costs. The parties have agreed to forward written submissions on or before November 30, 2013 on the issue of costs of the entire trial and the costs of this motion can be included in those submissions. All such written submissions are to be forwarded to me, at my chambers at the Court House, 70 Wellington Street, Brantford, Ontario, N3T 2L9. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
Arrell J.
Released: October 29, 2013
COURT FILE NO.: 49090/07
DATE: 2013/10/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW MIKOLIC
Plaintiff
- and -
DAVID TANGUAY and CORRIE ALBANO
Defendants
REASONS FOR JUDGMENT
Arrell J.
Released: October 29, 2013