Adams v. Taylor
Ontario Reports
Ontario Superior Court of Justice,
P. Smith J.
December 20, 2013
118 O.R. (3d) 389 | 2013 ONSC 7920
Case Summary
Insurance — Automobile insurance — No-fault provisions — Threshold requirements — Plaintiff diagnosed as suffering from chronic pain by two psychiatrists, orthopedic surgeon and her family doctor — Medical evidence of those doctors meeting requirements of s. 4.3(3) of O. Reg. 461/96 — Evidence establishing that plaintiff had sustained permanent serious impairment of important physical function — Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96, s. 4.3(3). [page390]
The plaintiff brought an action for damages arising out of a 2009 motor vehicle accident. The defendant brought a motion for a declaration that the plaintiff's claim for non-pecuniary damages and health care expenses was barred as she had failed to establish that her injuries met the threshold requirements in s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8. The plaintiff adduced evidence that she had been diagnosed as suffering from chronic pain by two psychiatrists, an orthopedic surgeon and her family doctor.
Held, the motion should be dismissed.
The medical evidence provided by the plaintiff did not fail to meet the requirements of s. 4.3(3) of O. Reg. 461/96 on the grounds that the doctors were not trained for and experienced in the assessment or treatment of the type of impairment that was alleged. The evidence established that the plaintiff had sustained a permanent serious impairment of an important physical function.
Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446, 110 D.L.R. (4th) 354, 67 O.A.C. 134, 17 C.C.L.I. (2d) 1, 48 M.V.R. (2d) 1, 45 A.C.W.S. (3d) 1136 (C.A.), apld
Other cases referred to
Ahmed v. Challenger, [2000] O.J. No. 4188, 100 A.C.W.S. (3d) 1065 (S.C.J.); Brak v. Walsh (2008), 90 O.R. (3d) 34, [2008] O.J. No. 1173, 2008 ONCA 221, [2008] I.L.R. I-4685, 60 C.C.L.I. (4th) 165, 234 O.A.C. 229, 164 A.C.W.S. (3d) 906; Del Rio v. Lawrence, [2009] O.J. No. 676 (S.C.J.); Golab v. Schmidt, 2007 12206 (ON SC), [2007] O.J. No. 1412, 47 C.C.L.I. (4th) 212, 156 A.C.W.S. (3d) 910 (S.C.J.); Hayden v. Stevenson, 2009 31990 (ON SC), [2009] O.J. No. 2571, 75 C.C.L.I. (4th) 149, [2009] I.L.R. I-4850 (S.C.J.); MacKinnon v. A.J. Bus Lines Ltd., [2010] O.J. No. 2018, 2010 ONSC 2802, 97 C.P.C. (6th) 153 (S.C.J.); Morrison v. Gravina, 2001 62749 (ON SC), [2001] O.J. No. 2060, [2001] O.T.C. 383, 29 C.C.L.I. (3d) 129 (S.C.J.); Nissan v. McNamee, 2008 20345 (ON SC), [2008] O.J. No. 1739, 62 C.C.L.I. (4th) 135, 167 A.C.W.S. (3d) 990 (S.C.J.); Rizzo v. Johnson (2006), 2006 34452 (ON SC), 82 O.R. (3d) 633, [2006] O.J. No. 4143, 151 A.C.W.S. (3d) 1139 (S.C.J.); Tulloch v. Akogi (2007), 2007 58408 (ON SC), 85 O.R. (3d) 793, [2007] O.J. No. 3232, 163 A.C.W.S. (3d) 827 (S.C.J.)
Statutes referred to
Insurance Act, R.S.O. 1990, c. I.8, s. 267.5 [as am.], (3) [as am.], (5) [as am.], (b)
Rules and regulations referred to
Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96, ss. 4.1, 4.2 [as am.], (1), (1)(1)(i), (ii), (1)(2)(i), (iii), (iv), 4.3(1), (3)
MOTION for a declaration that the plaintiff had failed to meet the threshold requirements in s. 267.5(5)(b) of the Insurance Act.
Andrew Elias, for plaintiff.
Thomas Barber and Jaime Wilson, for defendant.
[1] P. SMITH J.: — Deborah Adams brings this action for damages arising out of a motor vehicle accident that occurred on April 5, 2009 in the City of Ottawa. [page391]
[2] Following my charge to the jury, the defendant brought this motion for a declaration that the plaintiff's claim for non-pecuniary damages and health care expenses is barred by her failure to establish that her injuries fall within the exception to s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8. The motion is commonly referred to as a "threshold motion" requiring a determination of whether the plaintiff has sustained a "permanent, serious impairment of an important physical, mental, or psychological function".
The Legislation
[3] Under s. 267.5(3) and (5) of the Insurance Act, persons involved in motor vehicle accidents are exempt from civil liability unless the plaintiff can show that, as a result of the accident, she suffered a "permanent, serious impairment of an important physical, mental or psychological function". This section imports three requirements: (a) the impairment must be permanent; (b) the impairment must be of an important function; and (c) the impairment must be serious.
[4] Section 4.2 of Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96 and Ontario jurisprudence has expanded on these requirements. A permanent impairment must be one without a determinant end, but may be intermittent in its effects. What is considered "important" may vary depending on the circumstances of the plaintiff. For an impairment to be serious, it need not absolutely prohibit the plaintiff from partaking in certain activities; it is sufficient that the impairment renders the activities very difficult and unpleasant. Finally, where the existence and nature of an impairment is established largely on subjective reporting by the plaintiff, credibility becomes very important in determining a s. 267.5 threshold motion.
[5] Section 267.5 of the Insurance Act provides:
267.5(3) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
[page392]
(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
[6] O. Reg. 461/96 clarifies the definition of, criteria for and evidence required to show a "permanent, serious impairment of an important physical, mental or psychological function":
4.1 For the purposes of section 267.5 of the Act"permanent serious impairment of an important physical, mental or psychological function" means impairment of a person that meets the criteria set out in section 4.2.
4.2(1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- The impairment must,
i. substantially interfere with the person's ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue employment,
ii. substantially interfere with the person's ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
iii. substantially interfere with most of the usual activities of daily living, considering the person's age.
- For the function that is impaired to be an important function of the impaired person, the function must,
i. be necessary to perform the activities that are essential tasks of the person's regular or usual employment, taking into account reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue employment,
ii. be necessary to perform the activities that are essential tasks of the person's training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person's impairment and the [page393] person's reasonable efforts to use the accommodation to allow the person to continue his or her career training,
iii. be necessary for the person to provide for his or her own care or well-being, or
iv. be important to the usual activities of daily living, considering the person's age.
- 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.
(2) This section applies with respect to any incident that occurs on or after October 1, 2003.
EVIDENCE ADDUCED TO PROVE PERMANENT SERIOUS IMPAIRMENT OF AN IMPORTANT PHYSICAL, MENTAL OR PSYCHOLOGICAL FUNCTION
4.3(1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person's claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.
(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person.
(3) The evidence of the physician,
(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.
(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function. [page394]
(6) This section applies with respect to any incident that occurs on or after October 1, 2003.
The Three Part Test -- Case Law
[7] I do not accept the defendant's argument that case law prior to the enactment of the recent regulation is irrelevant (Nissan v. McNamee, 2008 20345 (ON SC), [2008] O.J. No. 1739, 62 C.C.L.I. (4th) 135 (S.C.J.); Hayden v. Stevenson, 2009 31990 (ON SC), [2009] O.J. No. 2571, 75 C.C.L.I. (4th) 149 (S.C.J.); MacKinnon v. A.J. Bus Lines Ltd., [2010] O.J. No. 2018, 2010 ONSC 2802 (S.C.J.)).
[8] Justice Morissette in Nissan concluded at para. [37]: "In summary, most of the regulation does not appear to support any significant change in the interpretation of the threshold. In general terms, it suggests at best some clarification of the law regarding accommodation." At para. 14, she stated: "there are some changes from the existing case law suggested by the wording of the definitions now found in the regulations . . . However . . . efforts to reframe the broad approaches that have been applied since Meyer, should be resisted."
[9] The three-part test set out by the Court of Appeal in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446 (C.A.) remains the standard despite the passage of Bill 198. The following three questions are considered in sequence:
(1) Has the injured person sustained permanent impairment of a physical, mental or psychological function?
(2) If yes, is the function which is permanently impaired an important one?
(3) If yes, is the impairment of the important function serious?
(See, also, Ahmed v. Challenger, [2000] O.J. No. 4188, 100 A.C.W.S. (3d) 1065 (S.C.J.); Morrison v. Gravina, 2001 62749 (ON SC), [2001] O.J. No. 2060, 29 C.C.L.I. (3d) 129 (S.C.J.); Nissan, supra; Hayden, supra; MacKinnon, supra; Del Rio v. Lawrence, [2009] O.J. No. 676 (S.C.J.).)
1. What is a "permanent" impairment?
[10] To be considered permanent, an impairment must be continuous since the accident, and must, based upon medical evidence and subject to the plaintiff reasonably participating in recommended treatment of the impairment, not be expected to substantially improve. The impairment must continue to meet the criteria of serious impairment and must be expected to continue without substantial improvement when sustained by persons in similar circumstances. [page395]
[11] There is no requirement that there be objective findings to show permanence. It is well established that chronic pain will meet the requirement of permanence for the purposes of the threshold (Tulloch v. Akogi (2007), 2007 58408 (ON SC), 85 O.R. (3d) 793, [2007] O.J. No. 3232 (S.C.J.)).
[12] Nor is there a requirement to demonstrate that the plaintiff's injuries are perpetual. The requirement of a permanent injury is "met when a limitation in function is unlikely to improve for the indefinite future": Brak v. Walsh (2008), 90 O.R. (3d) 34, [2008] O.J. No. 1173, 2008 ONCA 221, at para. 4. In Nissan, supra, Justice Morissette held that a continuous impairment may not necessarily be the same as an "unbroken chain" of impairment.
2. Is there an impairment of an important function?
[13] This part of the analysis is subjective and qualitative and asks whether the impaired function is one that is important to the plaintiff, having regard to the individual as a whole. Is the function necessary to perform the activities that are essential tasks of the plaintiff's regular or usual employment, taking into account reasonable efforts to accommodate her, and her reasonable efforts to use that accommodation? Is the function necessary for the person to provide for her care or well-being, or important to the plaintiff's usual activities of daily living, considering her age? Each case will be as different as plaintiffs may enjoy different activities and interests, and may have different employment.
[14] If the bodily function is important to the particular injured person, then the bodily function in question is an important one within the meaning of that expression contained in s. 267.5(5) (Meyer v. Bright, supra; Rizzo v. Johnson (2006), 2006 34452 (ON SC), 82 O.R. (3d) 633, [2006] O.J. No. 4143 (S.C.J.); Tulloch, supra; Golab v. Schmidt, 2007 12206 (ON SC), [2007] O.J. No. 1412, 47 C.C.L.I. (4th) 212 (S.C.J.)).
[15] In determining whether a function is important to a person's employment, it is necessary to consider the specific person's job. In determining whether a function is important to a person's activities of daily living, it is important to consider the specific activities that the person engages in.
3. Is the impairment "serious"?
[16] At this step of the analysis, the court must determine whether the permanent impairment of the plaintiff's function is serious.
[17] An impairment is serious if it substantially interferes with the plaintiff's ability to continue her regular or usual employment, despite reasonable efforts to accommodate her and [page396] despite her reasonable efforts to use the accommodation to allow her to continue employment. Alternatively, an impairment is serious if it substantially interferes with most of the plaintiff's usual activities of daily living, considering her age.
[18] The phrase "substantial interference" does not mean a complete inability to carry on employment or one's usual activities of daily living. Each case will need to be decided on its own facts and an assessment made of the nature of the impairment and how it impacts on the life of the plaintiff. Does the impairment substantially interfere with the overall normal daily life or employment of the plaintiff?
[19] For some plaintiffs with chronic pain, it may be possible for them to do all of the things that they did before the injury on an occasional or limited basis. The requirement that the impairment be "serious" may be satisfied even though, through determination, the plaintiff resumes the activities of employment and the responsibilities of the household but continues to experience pain. (See Brak v. Walsh, supra.)
The Position of the Plaintiff
[20] The plaintiff submits that she has sustained a permanent, serious impairment of an important physical, mental or psychological function and meets the threshold in several ways, including under s. 4.2(1)(1)(i) and (ii), as well as subsection 4.2(1), 2(i), (iii) and (iv).
The Position of the Defendant
[21] It is the submission of the defence that the plaintiff has not proven all of the three criteria for impairment as required by s. 4.2(1).
[22] Defence maintains that the plaintiff has failed to satisfy the evidentiary requirements of s. 4.3(1) of the regulation.
[23] I do not accept the argument of the defence that the medical evidence provided did not meet the requirements of s. 4.3(3) in that the physician(s) were not "trained for and experienced in the assessment or treatment of the type of impairment that is alleged". In my view, to read the regulation in this fashion would place too high a standard of medical proof on a plaintiff. Medical evidence was provided by two physiatrists, one orthopedic surgeon and a family doctor, and, in my view, meets the requirement of the regulation.
The Evidence
[24] The plaintiff testified that she suffered the following injuries/symptoms as a result of the motor vehicle accident: [page397]
chronic pain in her neck, both shoulders, upper back and lower back;
-- referred pain into her arms;
-- referred pain into her buttocks and legs;
-- difficulty sleeping and disturbed sleep;
-- fatigue and lack of energy;
-- difficulty maintaining prolonged positions;
difficulty with sustained and repetitive tasks, including difficulty bending, reaching and lifting;
difficulty with extended periods of standing, sitting and walking;
difficulty completed daily tasks such as bathing, self-care and housekeeping; and
feelings of worthlessness and uselessness arising from her disabled condition.
[25] I am satisfied that the evidence establishes that the plaintiff's impairment is permanent. She has been diagnosed as suffering from chronic pain by two physiatrists, Dr. Kleinman and Dr. Ismail, by an orthopedic surgeon, Dr. Schatzker, and by her family doctor, Dr. Garber.
[26] Dr. Max Kleinman testified that the plaintiff was suffering from chronic myofascial sprain and strain to the cervical thoracic and lumbosacral spine with associated mechanical neck and back pain, right shoulder soft-tissue pain and strain. He concluded that Ms. Adams had sustained a permanent, serious impairment of an important bodily function that was caused by the 2009 motor vehicle accident.
[27] Dr. Kleinman concluded that Ms. Adams is unable to return to work and is now completely disabled from any heavy work in that she is unable to sit for a long period of time, stand for a long period of time or do any repetitive activity.
[28] Both Dr. Kleinman and Dr. Farooq Ismail, the physiatrists who completed an independent examination at the request of the defence, indicated that the prognosis for Ms. Adams was guarded. Dr. Schatzker, an orthopedic surgeon, stated that "the prognosis for resolution of the pain syndrome is poor".
[29] Dr. Gayle Garber, the plaintiff's long-term family physician, also testified. It was her opinion that the plaintiff was suffering from chronic pain, that she was permanently [page398] disabled, and that her injuries/symptoms were related to the 2009 accident.
Is there an Impairment of an Important Function? Is the Impairment Serious?
[30] Dr. Kleinman testified that Ms. Adams sustained a permanent, serious impairment of an important function that was caused by the 2009 motor vehicle accident.
[31] The evidence of Dr. Kleinman, Dr. Garber, Carol Kelly and David Antflick is that Ms. Adams' injuries/symptoms are serious and substantially interfere with important functions in her life. Their evidence was that she has permanently lost her ability to continue work and that she cannot perform the essential tasks of her regular employment as a personal care aide.
[32] With respect to the plaintiff's ability to provide for her own care and well-being and substantially perform the usual activities of daily living, the evidence of several witnesses (Vickie Hearn, Howard Taylor, Carol Kelly, Jewel Crann) corroborated the testimony of the plaintiff, which was that she can perform some of the moderate to light tasks to some degree but that she is otherwise substantially impaired from carrying out her usual activities of daily living.
[33] Dr. Kleinman and Dr. Garber also testified regarding the substantial interference of Ms. Adams' injuries on aspects of her life, including work, housekeeping tasks, recreational activities, mood and general mobility.
[34] Carol Kelly was called as an expert in occupational therapy and as a certified life care planner. Ms. Kelly spent three days in Newfoundland at the home of the plaintiff and testified as to her observations, essentially assessing how Ms. Adams was able to perform the day-to-day tasks of living. Her evidence was corroborative of the plaintiff's testimony regarding her physical limitations, pain and inference with the tasks of daily life.
[35] David Antflick, an expert in the field of vocational assessment and rehabilitation also assessed the plaintiff. It was his evidence that the plaintiff "remains unable to work due to her physical limitations and inability to engage in any prolonged posture. She also is anxious and depressed and has little to no hope she will be capable of any employment."
[36] In his report, Mr. Antflick stated:
I think her accident related impairments substantially interferes with Ms. Adams' ability to continue her regular, usual employment. I think she has accident related injuries/ impairments that affect her ability to perform the activities that were essential tasks of Ms. Adams's regular or usual employment. I also think her complaints have been continuous since the [page399] accident and after three years one cannot expect her to substantially improve. I think she has suffered in the accident a permanent serious impairment of an important physical, mental and psychological function. I think she has suffered a substantial inability to perform the essential activities of her pre-accident employment and I think she is incapable of performing the essential activities of any employment that is suited to her education, training and experience.
Credibility
[37] The position of the defence is that the plaintiff is not credible and, because much of her case is founded on her self-reports, she has failed to meet the legislative threshold of proving a permanent, serious impairment of an important physical, mental or psychological function.
[38] The basis for the defence argument that the plaintiff is not credible relates primarily to
-- surveillance video evidence;
contradictions in evidence given on Ms. Adams' examination for discovery and testimony at trial;
use of her sister and daughter as references without indicating to her prospective employer the nature of her relationship with them;
describing her daughter as her supervisor at work to a prospective employer when her daughter had never worked with her or been her supervisor;
editing of her resume to remove any reference to prior employment at Eastern Health because of a poor work record;
falsely reporting that she had been offered a job at Eastern Health before returning to Newfoundland after the 2009 accident.
[39] I have carefully reviewed the cases, to which the defence has referred, where the plaintiff failed to meet the threshold burden because of lack of credibility. All of these cases can be distinguished on their facts. This case, unlike those upon which the defence relies, lacks a clear basis on which I can find that the plaintiff is falsifying her complaints and injuries.
[40] It is true that the plaintiff was less than truthful about her job references, work record and job application. It was also my observation from watching the surveillance videos that, with respect to the days on which the videos were taken, it would be [page400] difficult to conclude that the plaintiff was experiencing any physical impairment.
[41] However, I cannot find that that plaintiff is misrepresenting her injuries and symptoms, which is what this case is about. To do so would unfairly ignore the credible evidence of many witnesses and their observations, compiled over many years, that verify the plaintiff's testimony.
[42] By way of example, the evidence of Jewel Crann was that she and the plaintiff worked and socialized together before and after the accident. Her testimony was that the accident dramatically changed Ms. Adams from a healthy, happy and hardworking PCA, who loved to socialize and enjoyed many activities, to an unhappy person, unable to complete her own housekeeping chores, frequently in pain and unable to enjoy the many activities in life, including visiting friends and family. I also found the plaintiff's sister, Nora Squires, credible, and her evidence corroborated that of Jewel Crann.
[43] Further, the extensive clinical records introduced as exhibits are also confirmatory of the plaintiff's evidence and medical condition, as is the testimony of Carol Kelly, who spent three days observing Ms. Adams in a wide variety of circumstances.
[44] The medical evidence of Dr. Kleinman and Dr. Garber confirms that the plaintiff does have chronic pain. Dr. Ismail also noted that, to the plaintiff, her symptoms were real.
[45] On balance, despite the plaintiff being untruthful as described above, the testimony of several other witnesses and the health records and documentation filed as exhibits provide sufficient evidence that the plaintiff has sustained a permanent serious impairment of an important physical function.
Conclusion
[46] On my review of the evidence, the plaintiff has met the burden of proving on a balance of probabilities all of the requirements of s. 267.5(3) and (5) of the Insurance Act, and ss. 4.2 and 4.3 of O. Reg. 461/96, and that she has sustained a permanent serious impairment of an important physical function.
[47] Accordingly, the motion is dismissed.
Motion dismissed.
End of Document