ONTARIO
SUPERIOR COURT OF JUSTICE
Court File No.: C-278-10
Date: 2014-02-28
BETWEEN:
MIRKO DJERMANOVIC
Plaintiff
– and –
PAUL McKENZIE and PHILIP McKENZIE
Defendants
Mark S. Grossman and Gretchen T. Reitzel, for the Plaintiff
Robert Rogers, for the Defendant
Heard: February 10, 11,12,13,14,18,19,20,21 and 24, 2014
The Honourable d.a. broad
Background
[1] The plaintiff brought an action for damages for injuries sustained in a motor vehicle accident which occurred in the City of Kitchener on January 10, 2009 in which the taxicab driven by the plaintiff collided with a vehicle driven by the defendant Paul McKenzie and owned by the defendant Philip McKenzie.
[2] Liability for the accident was admitted by the defendants and the action proceeded to a trial before a jury which lasted 10 days on the question of damages.
[3] At the completion of the evidence and before the jury rendered its verdict the defendants brought a motion for a declaration that the plaintiff had not established that his claim for damages and losses met the so-called "threshold" for recovery of non-pecuniary loss.
[4] Following argument of the motion I reserved my decision pending the jury rendering its verdict. The jury returned with a verdict assessing the plaintiff's general damages at $10,000, his past loss of income at $18,600 (which would be offset by the accident benefit payments received by the plaintiff, agreed by the parties to be in the aggregate sum of $18,600). The jury made no award with respect to the plaintiff's claims for future loss of income. No claim was advanced by the plaintiff for future care costs.
[5] If the defendants’ motion is successful the jury's award for general damages will be negated.
Legal Framework for Threshold Motion
[6] Pursuant to subsection 267.5(5) of the Insurance Act, R.S.O. 1990, c.I-8, as amended, there can be no liability for non-pecuniary loss resulting from a motor vehicle accident unless, as a result of the accident, the insured person has died or has sustained (a) permanent serious disfigurement (which is not the case here) or (b) a permanent serious impairment of an important physical, mental, or psychological function.
[7] For automobile accidents occurring on or after October 1, 2003, the regulation under the Insurance Act was amended to include definitions of "permanent,” “impairment” and “important function" and to set out the types of evidence that must be called, and from whom, in order to establish a permanent serious impairment of important physical, mental or psychological function.
[8] In summary, section 4.2 (1) of O. Reg 381/03 provides that a person suffers from permanent serious impairment of an important physical, mental, or psychological function if the impairment (i) substantially interferes with the person's ability to continue his or her regular or usual employment, (ii) substantially interferes with the person's ability to continue training for career in a field in which the person was being trained before the incident, or (iii) substantially interferes with most of the usual activities of daily living, considering the person's age.
[9] Section 4.2(2) provides that to be an important function, the function must (i) be necessary to perform the activities that are the essential tasks of the person's regular or usual 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, (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.
[10] Section 4.2(3) provides that for an impairment to be permanent, the impairment must (i) 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, (ii) continue to meet the criteria in para.(1), and (iii) be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
[11] Section 4.3 requires that a person shall adduce evidence of one or more physicians that explains (i) the nature of the impairment, (ii) the permanence of the impairment, (iii) the specific function that is impaired, and (iv) the importance of the specific function of the person. The evidence of the physician must include a conclusion that the impairment is directly or indirectly sustained as a result of the use or operation of an automobile, and in addition to the evidence of the physician, the person must adduce evidence that corroborates the change in the function that is alleged to be a permanent serious and paramount of an important physical, mental or psychological function.
[12] A three-pronged test has been established for the determination of a "threshold" motion, which has been that carried forward to the current regime mandated by the amendments under Bill 198 effective October 1, 2003, as follows:
(1) has the injured person sustained a permanent impairment of the 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 Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.) at para. 16)
Plaintiff’s Background and Accident
[13] At the time of the accident in January 2009 the plaintiff was 41 years of age. He is of Serbian ethnicity and was born and raised in Croatia in the former Yugoslavia. He completed a college course in Croatia in mechanics and, except for a year spent in compulsory military service, worked for his father in construction until the onset of the war in Yugoslavia in 1991. In 1995 he was forced to leave Croatia with his wife and young child for Serbia as refugees, and in 2000 the family gained admission to Canada as refugees.
[14] Upon arrival in Canada the plaintiff studied English for one year and subsequently took a truck driving course and worked as a truck driver for a little over a two years. After losing his position as a truck driver he obtained a license to drive a taxi and began working part-time as a taxi driver for various taxi owners in the City of Kitchener. He testified that for the last seven months of 2008 he worked full-time as a taxi driver in order to earn money which would eventually facilitate him buying his own taxi and license.
[15] Prior to the accident the plaintiff’s plan was to be a professional bodybuilder and to that end he trained heavily every day lifting weights, doing stretching exercises. He ran 10 km three times a week and swam for an hour twice a week. He did not describe bodybuilding as a hobby but as "his life".
[16] Prior to coming to Canada the plaintiff had engaged in martial arts, however he had not done so for some years prior to the accident. He was proficient in chess and played it regularly although not competitively. The plaintiff enjoyed good health prior to the accident attending with his family doctor only for periodic checkups and minor ailments such as eczema.
[17] At the time of the accident the plaintiff was driving 50 to 70 km/hour in a 70 km/hour zone. The defendant Paul Mckenzie was in the lane to the left of the plaintiff's vehicle indicating that he was turning left and evidently changed his mind and turned right into the plaintiff’s path. The plaintiff's taxi collided with the side of the Mckenzie vehicle. The airbags in the plaintiff's vehicle deployed and the plaintiff had to be extracted from the vehicle with the assistance of emergency responders. The plaintiff was taken by ambulance to St. Mary's Hospital. He complained to the ambulance personnel and to the emergency department personnel of pain in his right thumb and right knee.
[18] Commencing the day after the accident the plaintiff began experiencing pain in his neck and headaches. He first saw his family doctor Dr. H. Milio five days following the accident. The plaintiff testified that his complaints at that time were pain in his right thumb, right knee, upper back, shoulder, neck and headaches, however Dr. Milio’s notes did not make reference to complaints of pain in his upper back. Dr. Milio referred the plaintiff for physiotherapy and chiropractic care at the AIM Clinic in Kitchener. Mr. Milio made no reference to the plaintiff’s upper back in his referral note to the AIM Clinic. The clinical notes of the AIM Clinic were somewhat equivocal as the plaintiff points to diagrams which may be interpreted as referencing complaints of upper back pain, while no mention is made of pain in that area in the handwritten text.
[19] The plaintiff began feeling depressed by the spring of 2009 and he was prescribed antidepressant medication by Dr. Milio, together with pain medication and medication to assist with sleeping.
[20] In the spring of 2010 the plaintiff began receiving psychological therapy from a psychologist Dr. Cole, assisted by a social worker Linda Antoniazzi. Ms. Antoniazzi saw the plaintiff on a regular basis for approximately one year.
[21] In December 2011 Dr. Milio referred the plaintiff to a psychiatrist and by May, 2012 the plaintiff began seeing Dr. Desanka Krstich, a Serbian-speaking psychiatrist in Toronto and has continued to see her on a regular basis until the trial.
[22] The plaintiff testified that his ability to perform household tasks such as vacuuming, cleaning and cooking, as well as shopping for groceries including carrying grocery bags, was not adversely affected by the accident. However, he was off work following the accident and only returned on a part-time basis, working 5 to 6 hour shifts with frequent breaks, asserting that the pain in his upper back made it too difficult for him to sit for long periods of time in his taxicab. The plaintiff continued to meet four or five times per week to socialize with his best friend at coffee shops for two or three hours at a time.
[23] With the encouragement of Ms. Antoniazzi the plaintiff returned to working out at the gym, although he maintained that he could not lift the same weights in which he was able to previously. Prior to the accident he could bench press up to 300 pounds, and he stated that following the accident he was able to bench press 180 to 190 pounds. Prior to the accident he could perform the dead lift of about 200 kg (or more than 400 pounds) but could only do half that following the accident. He says he did not return to running or swimming.
Medical Evidence
[24] Dr. Dinesh Khumbare was requested by plaintiff's counsel to carry out an assessment of the plaintiff. The plaintiff was granted leave to file a report from Dr. Kumbhare as he testified that at the time of trial he had no independent recollection of examining the plaintiff. In his report Dr. Kumbhare felt that at the time of his examination of the plaintiff on October 31, 2012, he had ongoing symptoms of upper back pain and headaches directly related to the car accident. He stated that the impact of the symptoms experienced by the plaintiff had been significant and had affected his home life, his ability to work and his physical condition. He concluded that it is likely that the plaintiff will continue to have ongoing symptoms, deconditioning and associated psychological distress and described his prognosis as guarded. Although Dr. Kumbhare stated that the plaintiff’s loss of function will impact on his work life expectancy, he expected that his work life decrease would be modest, particularly if he increased his muscular strength, limits labour intensive positions and continues to receive periodic supportive care.
[25] Ms. Antoniazzi, the social worker who worked with Dr. Cole, who is a psychologist, testified that, at the time of their initial meeting him in the spring of 2010, the plaintiff suffered from Post Traumatic Stress Disorder (PTSD), a major depressive disorder, specific phobia, consisting of car anxiety, and pain disorder associated with both psychological factors and general medical condition. On a Global Assessment of Functioning the plaintiff fell in the range of 50 to 55, being between moderate and serious in psychological, social and occupational symptoms.
[26] When Ms. Antoniazzi and Dr. Cole met with the plaintiff in February 2011 to conduct an assessment at the request of plaintiff’s counsel, they felt that his PTSD was mild and resolving, that his depression had reduced to moderate and resolving, that his specific phobia (car anxiety) had reduced to mild and resolving and that he continued to suffer from pain disorder, with very little change. They characterized his pain as chronic because it had persisted for more than six months.
[27] According to Ms. Antoniazzi and Dr. Cole, the plaintiff’s Global Assessment of Functioning score had, by February 2011, improved to 60 to 65, representing mild to moderate symptoms affecting psychological, social and occupational functioning. Ms. Antoniazzi characterized the plaintiff’s prognosis, as of February 2011, as “guarded” as he was not yet back at his pre-accident level of functioning.
[28] Dr. Milio testified as the plaintiff’s treating doctor with respect to his complaints, Dr. Milio’s diagnoses at the time and the treatment administered. He did not testify as an expert for the purpose of providing opinion evidence.
[29] Dr. Milio testified that in the spring of 2009 the plaintiff complained of depression and Dr. Milio concentrated on that, prescribing anti-depressants as well as various pain medications and medications to aid the plaintiff in sleeping.
[30] By January 2010 Dr. Milio considered that the plaintiff was suffering from chronic pain. In December 2011 he referred him to a psychiatrist. The plaintiff got in to see the psychiatrist Dr. Desanka Krstich in March, 2012.
[31] At that point Dr. Milio described himself as involved in coaching rather than in active treatment of the plaintiff as he was being treated at a pain management clinic as well as by a psychiatrist.
[32] Dr. Krstich testified as the plaintiff’s current treating psychiatrist, and not as an expert. She first saw the plaintiff in March 2012 and made a diagnosis that he was suffering from PTSD. She stated that due to traumatic experiences that he had in the former Yugoslavia the plaintiff was hypersensitive to trauma from the car accident. She stated that he also suffered from anxiety, depression, with symptoms of low energy, moodiness, lack of sleep and negative emotions, as well as chronic pain. She assessed him with a score of 50 to 60 on the Global Assessment of Functioning, being in the moderate range of symptoms. She stated that this diagnosis did not change throughout the time that she saw him until just prior to the trial. As Dr. Krstich was not qualified as an expert, she was not in a position to give an opinion on whether the plaintiff’s condition adversely affected his ability to work, and indeed she did not offer such an opinion. She was similarly not able to offer an opinion as to the plaintiff’s prognosis for the future.
[33] Dr. Gary Chaimovitz, a pschiatrist and Dr. Alfred Cividino, a rheumatologist, were called to testify on behalf of the defence.
[34] Dr. Chaimovitz assessed the plaintiff on October 25, 2011 and felt that, although the plaintiff had depressive and anxious symptoms, they did not meet the criteria for the existence of any psychiatric disorder. He was of the opinion that the plaintiff’s symptoms did not affect his functioning nor his ability to work. He found the plaintiff to be functional from a psychiatric perspective.
[35] In particular, Dr. Chaimovitz was of the view that the plaintiff’s symptoms were below the threshold for diagnoses of major depression and major anxiety. He also felt that the plaintiff’s symptoms did not satisfy the established criteria for a diagnosis of pain disorder.
[36] Dr. Cividino, who assessed the plaintiff on March 23, 2012, felt that he did not suffer from any musculoskeletal complaints, accident-related or otherwise, which would preclude him from returning to his pre-accident employment as a taxi driver and that his mid thoracic spine, or upper back, complaints were unrelated to the accident in question. In particular, he ascribed any upper back pain of which the plaintiff complained to his poor posture comprised of rounded shoulders with his head held forward. This posture commonly causes shoulder and upper back pain by placing pressure on the thoracic spine. He also pointed to the results of the MRI ordered by Dr. Milio which showed degenerative changes in the discs in the plaintiff’s spine, which were related to age and use, and had nothing to do with the accident.
[37] Dr. Cividino testified that although his primary area of interest for his research is in the area of inflammatory arthritis, he does see patients in his practice who suffer from chronic pain. He expressed the opinion that M. Djermanovic’s condition did not involve a case of chronic pain.
Analysis
[38] It is evident from a review of the case-law that, while a trial judge on a motion of this nature is not bound by the verdict of the jury, she or he is entitled to take the jury’s verdict into consideration. In Kasap v. MacCallum, 2001 7964 (ON CA), 144 O.A.C. 369 (C.A.) the Court of Appeal stated it as follows, at paras: 6 and 7:
The Legislature has left it to judges to determine whether the threshold has been met. This will often overlap a jury's considerations; 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.
[39] See also the recent cases of Falusi v. Cote 2013 ONSC 5334 (S.C.J.) at para. 12 and Mayer v. 14744879 Ontario Inc. 2013 ONSC 6808 (S.C.J.) at paras. 6-8.
[40] The plaintiff’s credibility was seriously in issue and, due to the subjective nature of the plaintiff’s complaints consisting of soft tissue injuries, primarily to his upper back, headaches and PTSD, depression and anxiety, it was of primary importance to his case.
[41] It is clear from the verdict that the jury took a very sceptical view of the plaintiff’s credibility. In my view, the jury’s scepticism with respect to the plaintiff’s credibility was supported by the evidence.
[42] There was a serious inconsistency between the plaintiff’s evidence at trial and his evidence on discovery with respect to the frequency and duration of his headache symptoms in the period post-accident. Moreover, he was less than forthright with the professionals who examined him. For instance, his portrayal of himself to Ms. Antoniazzi as the primary support for his family led directly to her impression that the accident impacted on the plaintiff’s self-esteem by taking away his traditional role as the supporter of the family and requiring his spouse to assume that role. When confronted by the fact that the plaintiff had never been the primary support, with an extremely modest income ranging from approximately $1,600 to $4,000 per year from 2004 to 2007, and that his spouse had worked full-time following the first year after immigrating to Canada, Ms. Antoniazzi was forced, on cross-examination, to acknowledge that she had “concerns” with respect to one of the major underpinnings of her assessment of the impact of the accident on the plaintiff’s functioning.
[43] Similarly, the plaintiff reported to Dr. Kumbhare that prior to the accident he enjoyed training and competing in bodybuilding, chess, soccer and martial arts, which was information that Dr. Kumbhare relied upon in formulating his opinion. The evidence was clear that the plaintiff had not engaged in soccer and martial arts for some years prior to the accident, and most likely had not done so since he came to Canada in 2000, and had not competed in chess.
[44] Dr. Khumbhare, when reporting on the results of his testing of the plaintiff’s grip strength utilizing a Jamar Dynometer, stated that they indicated a sub-maximal effort on the part of the plaintiff.
[45] On cross-examination the plaintiff was often non-responsive and argumentative and refused to acknowledge facts which should readily have been acknowledged. Of particular concern with respect to the plaintiff’s credibility was the obvious disconnect between the physically fit and energetic individual depicted in the surveillance videos introduced into evidence by the defendants, engaged in vigorous and strenuous weight-lifting and stretching exercises, and carrying out his work as a taxi-driver lifting parcels and helping customers out of the vehicle, with no sign of discomfort with the plaintiff’s presentation in court. These surveillance videos were taken on September 17, 2010, October 15-16, 2010, February 15 and 22, 2012, May 1 and 3, 2013.
[46] I find that the plaintiff’s evidence was neither credible nor consistent. I am unable to place any reliance upon his self-reports of pain and impacts on his functioning as a result of the accident. Neither can I be confident of the veracity of his reporting of the history of his pre-accident work and other activities and his post-accident symptoms and limitations to Ms. Antoniazzi and Dr. Cole and to Dr. Kumbhare in order to permit me to rely upon Dr. Kumbhare’s opinion required by Section 4.3 of O.Reg 381/03.
[47] I accept the evidence of Dr. Cividino that the plaintiff’s upper back pain complaints were not accident-related, and in any event, did not preclude him from returning to his pre-accident employment as a taxi driver. I also accept the evidence of Dr. Chaimovitz that the plaintiff’s symptoms were below the threshold for diagnoses of major depression and major anxiety and that the plaintiff’s symptoms did not satisfy the established criteria for a diagnosis of pain disorder.
[48] The onus is on the plaintiff to establish, on a balance of probabilities, that he suffered injuries resulting from the accident that satisfy the criteria for the statutory exemptions from the general bar to recovery of non-pecuniary damages under the Insurance Act. The plaintiff has, on the evidence, failed to satisfy that onus and accordingly the motion of the defendants is allowed.
Deductible on Non-Pecuniary Damage Award
[49] Regardless of the foregoing finding on the defendants’ “threshold” motion, the jury’s award of $10,000 for non-pecuniary damages is reduced to zero by the application of the deductible pursuant to sub-subparagraph 3(i) B of subsection 267.5 (7) of the Insurance Act, set at $30,000 pursuant to s.5.1 of O.Reg. 461/96.
Disposition
[50] For the foregoing reasons the action is dismissed.
[51] If the parties cannot agree on costs, the defendants may make written submissions as to costs within 21 days of the release of these reasons for decision. The plaintiff has 14 days after receipt of the defendants’ submissions to respond. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D. A. Broad J.
Released: February 28, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MIRKO DJERMANOVIC
Plaintiff
-and-
PAUL McKENZIE and PHILIP McKENZIE
Defendants
REASONS FOR JUDGMENT
D. A. Broad J.
Released: February 28, 2014