CITATION: Ramrup v. Lazzara, 2015 ONSC 2573
COURT FILE NO.: 686/10
DATE: 2015/04/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Nadira Ramrup
Robert W. Vitols and David Strangio, for the plaintiff
Plaintiff
-and-
Alphonso Lazzara, Venice Auto Inc. and Skyview General Contracting Ltd.
Brian A. Foster and Catherine McIntosh, for the defendants
Defendants
HEARD: April 14, 2015
Rady J.
Ruling on Threshold Motion
Introduction
[1] Following my charge and while the jury was deliberating, the defendant argued the so-called threshold motion. The jury reached a verdict while the motion was being argued. As a result, the motion was adjourned until after the verdict was received.
[2] The jury concluded that the defendant, Mr. Lazzara, was 100% at fault for the accident. The jury awarded Ms. Ramrup $1053 for general damages and $38,500 for past wage loss. She was awarded nothing for special damages or for future loss claims.
[3] Following the jury’s discharge, the parties resumed their submissions on the motion.
[4] I am not bound by the implied findings of the jury respecting the significant credibility issues raised during this 30 day trial. It is clear that the legislation charges the trial judge with responsibility to determine the threshold motion, although it must be observed that there is an obvious overlap between the findings to be made by the motions judge and the jury: Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719 (C.A.).
The Legislation
[5] The accident in this case occurred on February 21, 2009 and is therefore governed by Bill 198. The relevant sections of the act are reproduced below.
Definition of 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:
a) 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.
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,
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 of 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.
(6) This section applies with respect to any incident that occurs on or after October 1, 2003.
The Case Law
[6] Remarkably, after more than twenty years and the various incarnations of the Insurance Act, the decision in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.) remains the starting point in the analysis of whether the plaintiff has suffered permanent serious impairment of an important physical, mental or psychological function.
[7] The Court articulated the three-part inquiry to be undertaken:
Has the injured person sustained permanent impairment of a physical, mental or psychological function?
If yes, is the function which is permanently impaired important? 3. If yes, is the impairment of the important function serious?
[8] Justice Leach, in a comprehensive decision in Mayer v. 1474479 Ontario Inc., 2013 ONSC 6806 (S.C.J.) discussed and summarized the many cases following Meyer that have dealt with s. 4.2(1) and the principles that emerge. See paras. 18, 19 and 20 of his decision. I keep those principles in mind during the following analysis.
[9] The Supreme Court of Canada has recognized that chronic pain and related medical conditions do exist, notwithstanding the persistent suspicion of malingering. By definition, chronic pain usually lacks objective findings and is diagnosed based on a patient’s subjective complaints. Consequently, the credibility of the claimant takes on considerable importance. Some courts have suggested credibility can assume paramount importance: Murcell v. Leclair, [2009] O.J. No. 4809 (S.C.J.); Smith v. Declute, [2012] O.J. No. 2644 (S.C.J.); Jennings v. Latendresse, [2012] O.J. No. 5892 (S.C.J.); Gill v. Sivaranjan, 2015 ONSC 841 (S.C.J.). That having been said, collateral sources of information – usually from friends, an employer, co-workers and family – are also an important consideration. These witnesses can provide corroborative evidence of a claimant’s change in function. Typically, they are have no interest in the outcome of the litigation, which can enhance their credibility.
[10] Therefore, the testimony of lay witnesses can assist the plaintiff, even when there may be reason to question the latter’s credibility. So, for example, in Adams v. Taylor, [2013] O.J. No. 5958 (S.C.J.), while the court expressed reservations about certain parts of the plaintiff’s evidence (i.e. job references, work record, job application and activities shown in surveillance), ultimately the “testimony of several … 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”. Importantly, the trial judge noted that unlike other credibility cases, this one lacked “a clear basis on which [the court] can find the plaintiff is falsifying her complaints and injuries.”
The Evidence
[11] I do not intend to review the evidence in great detail but rather will attempt to give an overview of the evidence heard over the course of some 28 days.
[12] Ms. Ramrup testified that she was involved in two motor vehicle accidents in 1998 and 1999, following which she was diagnosed with chronic pain in her neck and low back. Notwithstanding the diagnosis, however, Ms. Ramrup said that she was fully functional in all activities of daily living. She was gainfully employed as a very successful recruiter and she enjoyed a wide variety of leisure activities including rollerblading, hiking, walking, fishing, travelling and so on. She was particularly proud of her gardens and it appears that she had a “green thumb”. She and her partner, Jarrod Talbot, began their own company, TNT Recruiting Inc., in 2005 which she testified was successful until a downturn in the automotive industry in 2008 caused TNTs revenues to be adversely affected.
[13] Ms. Ramrup began to look for alternate employment. She worked briefly for Canada Post over the 2008 Christmas season, on a contract position with Head-to-Head Recruiting, for two days as a crossing guard and for a short period of time at a beer store in Bolton. She said that any complaints of pain were controlled by over-the-counter medication such as Advil gel caps.
[14] She acknowledged that she had raised the possibility of qualification for long term disability benefits with her family physician in January and February 2009 but said that this was a discussion about something that might happen in the future rather than an immediate plan.
[15] The motor vehicle accident that gives rise to this lawsuit occurred on February 21, 2009. The vehicle that she was driving was rear-ended by a vehicle operated by Mr. Lazzara. By all accounts, the impact was relatively minor although Ms. Ramrup testified that she thought the impact was big at the time. She has since learned it was not. She said that she felt like she had been hit by a bus.
[16] Officer Ruffa, who was dispatched to investigate testified that he did a quick scan for damage to the vehicles when he arrived and concluded that the accident was minor. He considered Ms. Ramrup’s vehicle to be driveable. He spoke to each driver independently and noted that each told essentially the same story. He concluded that no charges were warranted as a result of the accident. Mr. Talbot arrived at the scene and the jury heard from Officer Ruffa about their interaction. Mr. Talbot was apparently unhappy that Mr. Lazzara was not being charged. The officer recorded that Mr. Talbot said Mr. Lazzara was “shady” and “hiding something” and he spoke derisively of the York Regional police.
[17] The jury heard evidence from two expert mechanical engineers. They reached somewhat different conclusions, although they were not significantly apart. Mr. McCarthy, who testified on behalf of the plaintiff, considered tests conducted by the Insurance Institute for Highway Safety. He also reviewed the damage repair estimate to the Ramrup vehicle. He concluded that the vehicle driven by Ms. Ramrup had likely sustained an impact severity of greater than 10 kms per hour. He thought that her vehicle likely sustained a change in speed greater than 9.6 to 12.9 kms an hour although he could not estimate by how much. He further concluded that because of Ms. Ramrup’s pre-existing medical condition and her reported body/head position at the time of the accident, her potential for new injury or any increase in the severity of her existing condition could not be assessed. However, he considered that it was very likely she would have had a higher potential for injury than a healthy individual.
[18] Mr. Kodsi testified on behalf of the defence. He also considered the IIHS crash tests although he considered relied on different exemplar vehicles than those preferred by Mr. McCarthy.
[19] In his opinion, the Ramrup and Lazzara vehicles likely experienced speed changes of 10 kilometers per hour or less. He concluded as follows:
• the vehicles likely contacted in an offset rear-end collision given the licence imprint of the Lazzara vehicle on the rear bumper of the Ramrup vehicle;
• the vehicles and occupants likely experienced a speed change of about 10 kilometers an hour or less; and
• the forces experienced by the driver of the Honda would have been similar to or lower than the forces experienced by human test subjects where only a few reported minor, transient injuries.
[20] Mr. McCarthy was critical of the studies to which Mr. Kodsi referred. He felt that they were not representative of someone like Ms. Ramrup because the subjects were males, involved in the insurance industry who were expecting an impact.
[21] Following the accident, Ms. Ramrup declined to be transported to hospital in the ambulance that had been summoned. At this time, she had secured a contract of employment with Claude Chapman and Associates in Winnipeg. She was making arrangements to relocate there in the month prior to the accident. She negotiated the terms of her compensation package with Derek Miller, a representative of the company. She would be involved recruiting activities similar to the work that she had done in the past. She said that she was excited about the opportunity. She was scheduled to fly to Winnipeg on February 22nd and it was for this reason that she declined to attend hospital by ambulance. She was reluctant to take the time that she anticipated would be required for a visit to the emergency room.
[22] She and her partner drove some considerable distance to a clinic that had been recommended to them by Ms. Ramrup’s brother. As it happened, the clinic was a chiropractic facility and Ms. Ramrup was assessed by a chiropractor by the name of Mazzarella, who completed a disability certificate on her behalf, setting out a treatment plan for submission to her insurer. The jury heard briefly about an investigation the was being conducted into the facility and Dr. Mazzarella’s concerns. It also heard about Ms. Ramrup’s subsequent communication with her insurer complaining that she was under duress at the time of the visit. She made overtures respecting a speedy settlement of her claim.
[23] Ms. Ramrup and her partner returned home. But late that evening, she presented at the emergency department of the Orangeville Hospital complaining of neck, back and left arm pain. It appears from the hospital note that Ms. Ramrup described being struck by a vehicle travelling 80-90 kmh. X-ray studies of the cervical and lumbar spines showed no significant abnormality. She was given some Percocet and Ativan and was discharged.
[24] Ms. Ramrup testified that by the following morning, she was in considerable pain. She required wheelchair transportation while at the airport. She made the trip to Winnipeg but felt so unwell that she was unable to report for duty and ultimately she returned home a day or two later. Ms. Ramrup did not return to work and she has been unemployed since the time of the accident.
[25] Ms. Ramrup saw her family physician for the first time following the accident on March 3, 2009. She was subsequently discharged from his practice in April 2009 because of a difference in treatment philosophy. She began to see Dr. Romanescu who treated her for her complaints of chronic pain. Dr. Romanescu took a leave of absence at some point and Ms. Ramrup began to visit a walk-in clinic where she was frequently seen by Dr. Trigazis. He, too, treated her complaints of chronic pain. Ms. Ramrup then returned to Dr. Romanescu when she returned to practice and continued to receive treatment for a period of time until Dr. Romanescu also discharged her from her practice because of concerns about narcotic abuse. Ms. Ramrup was then cared for by Dr. Tita and mostly recently by a chronic pain specialist, Dr. Kim.
[26] Ms. Ramrup was prescribed OxyContin for pain control by Dr. Gagnon, Dr. Romanescu, Dr. Trigazis and Dr. Tita. All of the doctors recorded concerns respecting drug seeking behaviour. Dr. Kim is attempting to wean Ms. Ramrup from narcotics by reducing her prescriptions over time while endeavouring to increase her function.
[27] Following the accident, Ms. Ramrup testified that she has lived in essentially unremitting pain in all parts of her body for which she receives only temporary relief from narcotic medication. She said that she used cocaine on occasion to see if it provided pain relief. She described herself as limited in her activities of daily living. She no longer cycles or rollerblades and she walks very little. She does some shopping on good days but certainly not as she did before the accident. She and her partner travel little. She feels that the pain she suffers prevents her from working in any gainful employment. As I say, she has never returned to work nor attempted to do so. She walks with a pronounced limp.
[28] She is unable to look after household tasks and her gardens have become overgrown with weeds. She does little cooking. She sleeps on the main floor of her home because she finds the stairs difficult to negotiate. She has had several falls.
[29] In her lawsuit, Ms. Ramrup advanced a significant claim for general damages, past wage loss, special damages, loss of future income and for future care services.
[30] The plaintiff called a number of collateral witnesses to testify with respect to her function, both before and after the accident.
[31] Mr. Talbot, who is Ms. Ramrup’s partner, testified that she was energetic, aggressive, successful, exuberant and active when he met her in 2004. He described rollerblading, walking, hiking, fishing and other leisure activities that they enjoyed before the accident. They travelled frequently. They had a busy social life. They had purchased a trailer in Magnetowan where they travelled on weekends and holidays. Ms. Ramrup enjoyed fishing there. He testified that Ms. Ramrup looked after the majority of housekeeping tasks.
[32] He described her as completely changed after the accident. She was described as less outgoing. She does not leave their home unless absolutely necessary. She no longer gardens. They do not entertain. He does the housework.
[33] Mr. Talbot’s mother, Catherine Talbot, also testified about her observations. Prior to the accident, she considered Ms. Ramrup to be very energetic and capable of heavy physical work. She described how Ms. Ramrup helped dig the trailer out of the mud and relocated to a new site. Following the accident, she described her as tired, withdrawn and inactive.
[34] Both Mr. Talbot and Mrs. Talbot received compensation from Ms. Ramrup’s insurer for services they provided to her after the accident, including for housekeeping and personal care.
[35] Ms. Ramrup’s sisters, Indira Johnson and Patricia Christie, testified about their observations before and after the accident. The couple’s real estate agent, Sara Fleming and their neighbor, Gloria Fantauzzi testified about their perception of Ms. Ramrup before and after the date of the accident. I do not intend to review their evidence in detail. Suffice it to say that their evidence supported the contention that there was change in Ms. Ramrup’s level of function following the accident as compared to prior to the accident.
[36] Rebecca Summerfield worked with Ms. Ramrup at a recruiting firm in 2004. Ms. Ramrup also stayed with her on several occasions during the course of the trial. Ms. Summerfield described Ms. Ramrup as a very successful recruiter who taught her everything that she knew. She was described as “obnoxiously energetic”. Ms. Summerfield lost touch with Ms. Ramrup after 2004 and only recently re-connected with her. She described her as tired, walking slowly and that she had to help her out of bed in the morning.
[37] Derek Miller spoke of his observations of Ms. Ramrup on the three days that she was undergoing training in anticipation of her new position in Winnipeg, immediately before the February accident. He described nothing untoward in his observations.
[38] There was also a great deal of medical evidence. Dr. Gagnon treated Ms. Ramrup prior to and following the motor vehicle accident. Dr. Romanescu and Dr. Trigazis testified about their treatment of Ms. Ramrup. The court heard from Dr. Mazzarella and Dr. Rom, two chiropractors who provided assessments and, in the latter case, ongoing treatment. Dr. Kim testified about his efforts to decrease Ms. Ramrup’s level of narcotic medication and attempts to increase function.
[39] Dr. Guscott, a psychiatrist and Dr. Garner, a physiatrist, both conducted independent medical examinations on behalf of the plaintiff. Dr. Tepperman, a physiatrist, and Dr. Reznek, a psychiatrist, did assessments on behalf of the defence. All four doctors testified.
[40] Dr. Guscott testified that he has diagnosed Ms. Ramrup as suffering from chronic pain and having a serious impairment in her social and occupational. He considers that she is currently unemployable and likely to remain so in the future. He considers that she has limited function. The video surveillance did not cause him to change his view.
[41] Dr. Garner testified that the plaintiff has good days and bad days consistent with chronic pain. On good days, she attempts to undertake activities. The surveillance videos did not alter his opinion. Indeed, he considered they demonstrated that Ms. Ramrup has good and bad days. He described her limp as related to her chronic pain and did not believe the variability in her gait pattern was significant.
[42] Their opinions stand in contrast to those of Dr. Tepperman and Dr. Reznek. It is fair to say that Dr. Tepperman and Dr. Garner have areas in which they agree. For example, they agree that Ms. Ramrup probably sustained soft tissue injuries in the February 2009 accident. However, Dr. Tepperman considered that Ms. Ramrup’s pre-existing chronic pain was fair more significant than Ms. Ramrup, Dr. Gagnon, Dr. Guscott or Dr. Garner were prepared to acknowledge.
[43] He was particularly puzzled by the limp exhibited by Ms. Ramrup for which there is no organic explanation. He noted its variability and inconsistency, which he concluded made no sense. He disagreed with Dr. Garner’s view that inconsistency is consistent with chronic pain. I pause here to note that several doctors, including Dr. Garner, noted no evidence of wasting in the right thigh, which supports a conclusion that the leg is being used. Dr. Tepperman also commented on Ms. Ramrup’s unusual use of a cane although he conceded that she might not have received appropriate training.
[44] Dr. Reznek concluded that there was an element of malingering in Ms. Ramrup’s presentation as a result of his assessment and in particular, his administration of a test which he said is designed to detect malingering.
Analysis
[45] I have concluded that Ms. Ramrup does not meet the statutory threshold. I am driven to this conclusion because the evidence of Ms. Ramrup and that of her partner, Mr. Talbot, is lacking credibility in very significant ways. I will also elaborate on the reasons for my conclusions below.
[46] I have considered the evidence of the independent lay witnesses who all struck me as honest, decent people who were doing their best to relay their observations. However, also for reasons which I will also elaborate below, I have concluded that their evidence, while credible, lacks reliability.
[47] Finally, I am not persuaded that the forces in the collision were sufficient to have caused the injuries and the symptoms of which Ms. Ramrup now complains. I recognize and accept that injuries can occur even in relatively low impact collisions. However, there are many reasons in this case to conclude that collision was not of a sufficient magnitude to cause the injuries and symptoms reported by Ms. Ramrup.
[48] Ms. Ramrup was an unusual witness. She was very emphatic and dramatic, even histrionic in her presentation, prone to great exaggeration of her symptoms and disabilities, while significantly underplaying the level of her pre-accident functional limitations. She was very vague in response to questions relating to her pre-accident health and responded repeatedly “I don’t know” or “I don’t remember.” However, she had better recall of events post-accident. Her evidence was undermined time and again by reference to the documentation available. A few examples are outlined below.
[49] Ms. Ramrup was in two motor vehicle accidents in 1998 and 1999. She said that she had chronic neck and back pain because of the 1998 accident but, as I say, she testified that the pain was well controlled and that she was fully functional, living a busy and vibrant life.
[50] She saw a psychologist, Kate Partridge, in 2005 for four sessions complaining of anxiety and work-related stress.
[51] She was treated for anxiety pre-accident and for chronic low back pain and neck pain at the Trafalgar walk-in clinic in London and by Dr. Gagnon in Bolton. She was prescribed Xanax for anxiety at the time of her initial visit with Dr. Gagnon in December 2007 and several times in 2008. She was prescribed two different anti-depressants: Fluoxetine in May 2008 and Cymbalta in January 2009.
[52] She was seen by a crisis intervention team at the Orangeville Hospital on October 28, 2008. She was described as “upset and crying and feeling she was going to die”. The hospital note lists her medical history as having been in three car accidents in 1997 and 1999 after which she developed fibromyalgia, herniated discs in her back and chronic fatigue. The note records that Ms. Ramrup lived in a large home by herself and that she broke up with a boyfriend of two years two years previously. The disposition report reads as follows:
CIW consulted with Dr. Graham who had prescription ready for her and was going to arrange ultrasound which she appeared to want however Pt left prior to picking the prescription or app’t up. It is unclear why she would do this when she was adament [sic] about her medical condition and she appears to have sabotaged herself. earlier in the interview she was encouraged to return if her health continued to be problematic. She was also encouraged to see her GP.
[53] She was in another accident on Highway 400 in 2013 in which the vehicle in which she was driving south was side-swiped by a truck, causing her car to spin out and come to a stop in the northbound lanes of the highway against a fence. She denied suffering any injuries in the accident and there is corroboration for that evidence in Dr. Tita’s records at the time. Dr. Tita does not note any complaints in her records.
[54] Dr. Gagnon testified about his treatment of Ms. Ramrup prior to the accident in February, 2009. I noted in my charge to the jury that I found Dr. Gagnon’s evidence curious in the sense that there seemed to be a disconnect between the complaints that he recorded in his notes and what he was prepared to testify about at trial. I found his evidence at trial to be strangely muted. Expressed another way, his written notes prior to the accident might be interpreted as reflecting a much more impaired patient than he described in his trial testimony.
[55] I acknowledge that Dr. Gagnon testified that he has an independent recollection of three important visits made by Ms. Gagnon – the day he discharged her from his practice and on the visits immediately prior to and after the motor vehicle accident. I accept that it is likely that he does have an independent recollection of these visits for several reasons. First, he was early in his practice. He had only recently begun to treat patients. Secondly, he has only discharged some 15 patients from his practice over the course of the last eight years and it seems reasonable to conclude that Ms. Ramrup would remain in his mind. I also accept that given Ms. Ramrup’s dramatic personality, she probably created a lasting impression. It was quite telling that during cross-examination, Dr. Gagnon responded to a question from Mr. Foster with “Have you met her?” The clear implication of his response was that Ms. Ramrup is prone to exaggeration. Nevertheless, I find it difficult to accept that he has an independent recollection of various complaints and discussions that are not reflected in his notes. It must also be said that Dr. Gagnon’s note-taking at the time was terse in the extreme and would be of little assistance in refreshing his memory.
[56] In any event, turning to his notes and records, Dr. Gagnon first saw Ms. Ramrup on December 14, 2007. He prescribed her Voltrex, Zomig and Xanax for anxiety.
[57] He saw her again on May 5, 2008 and noted that the patient was in for follow-up of medications and she “wants to get meds for pain and for chronic back pain from mva”. At this time, the doctor prescribed Fluoxetine (an anti-depressant), Percocet and Tramacet (both pain killers) and Xanax (for anxiety).
[58] The doctor first prescribed Oxycodone on May 15, 2008 at the 5 mg level to be taken three times a day.
[59] On June 10, 2008, he noted that the patient was in for a renewal of her prescription and she had complaints of pain. He noted that she told him that she had been diagnosed with chronic pain, chronic fatigue syndrome and fibromyalgia. The plan notes reveal that a narcotic contract was signed that day (although one is not found in the doctor’s file) and there was a discussion about the need for her to access her old records. At this visit, Dr. Gagnon prescribed OxyContin, a 10 mg tablet to be taken twice per day, as well as a 5 mg tablet of Oxycodone, also to be taken twice per day.
[60] On June 23, 2008, Dr. Gagnon noted that the patient had “gone through a great deal of medication in the past 12 days”. He noted that the patient had complaints of chronic pain syndrome. She confessed to getting “street narcs” for months prior to seeing him. The doctor noted that he spoke with her former doctor and “seems legit MVA’s times two in one year”. He prescribed 40 mgs of OxyContin to be taken twice per day and OxyIR, 10 mgs to be taken twice per day.
[61] On July 16, 2008, the patient was in for a refill of her medications. He noted that she had finished them all by that time.
[62] On August 12, 2008, Dr. Gagnon noted that she looked unwell and fatigued. He prescribed OxyContin, 80 mgs to be taken three times daily and a 10 mg OxyIR tablet to be taken twice per day.
[63] Dr. Gagnon made arrangements for Ms. Ramrup to attend the Greenspoon Pain Management Center. His file reveals a note from the Center advising that Ms. Ramrup had been referred for “headaches, neck pain and back pain” but she did not attend her appointment scheduled for August 13, 2008.
[64] Her prescriptions were renewed on September 3, 2008, October 10, 2008 and November 3, 2008.
[65] On November 7, 2008 Dr. Gagnon recorded that Ms. Ramrup was in for review and “feeling much better” and there are “patient/doctor trust issues regarding truth-telling as well.” This appears to be a reference to Ms. Ramrup’s narcotic use. Dr. Gagnon had prescribed her OxyContin and OxyIR in the months prior to this visit. There are cryptic references throughout Dr. Gagnon’s notes to concerns about drug-sharing between Ms. Ramrup and her partner, issues that are repeated in Dr. Romanescu’s clinical notes and records. Dr. Gagnon was unaware of Ms. Ramrup’s October 28, 2008 visit with the crisis intervention team at the time of this appointment.
[66] On November 27, 2008, Ms. Ramrup was in early for her medication refill. Her husband was noted as having his own prescription now. As I say, there was some concern about drug-sharing. She was prescribed OxyContin 80 mg tablets three times daily as well as OxyIR, a 10 mg tablet to be taken twice per day. The doctor noted that her pain was at a minimum and that she was “not feeling unwell at all”.
[67] On December 15, 2008, she was in early again for medication renewal and that it was necessary to “establish a dose with the husband, get them on regular meds and stop sharing”. The doctor recorded that she was “overall reasonably well”. Her prescription was renewed as before.
[68] On January 7, 2009, the doctor noted that Ms. Ramrup was “not feeling well at all these days, is thinking that she wants long term disability”. She was given a renewed prescription for OxyContin and OxyIR as well as Cymbalta, which is an anti-depressant but which Dr. Gagnon noted has an added benefit of helping chronic pain symptoms. A 50 mcg Fentanyl patch was also referenced but not prescribed.
[69] Dr. Gagnon and Ms. Ramrup both testified that long term disability was something that was contemplated for the future in the event that Ms. Ramrup could not work rather than an immediate plan. I cannot accept this evidence. It flies in the face of the note itself which is phrased in the present tense and not the future.
[70] Moreover, and importantly, on January 8, 2009, Dr. Gagnon filled out an application for an accessible parking permit on behalf of Ms. Ramrup. He described her as “severely limited in the ability to walk due to an arthritic, neurological, musculoskeletal or orthopedic condition”. Dr. Gagnon, in his testimony, seemed to downplay the significance of this document. He said that given Ms. Ramrup’s complaints of chronic neck and back pain, a fall in a parking lot might cause her more difficulties than someone without those complaints. Ms. Ramrup was asked about this form. She appeared not to be familiar with it and seemed to suggest that it was the doctor’s idea.
[71] I pause here to note that at some later point the application was returned as incomplete. By then, Dr. Romanescu had assumed Ms. Ramrup’s care. She completed the form. Ms. Ramrup signed, dated and submitted it and in due course a permit was issued.
[72] On January 27, 2009, Dr. Gagnon noted that the patient was “here for prescription and to fill-in forms for disability”. He noted that it was necessary to get the old records from her former physician. He was aware that she was scheduled to start a new job in Manitoba. Her prescriptions for OxyContin and OxyIR were renewed.
[73] The timing of this note coincides with Ms. Ramrup’s negotiations with Derek Miller with respect to the terms of her employment with Claude Chapman & Associates. She advised Mr. Miller in January 2009 that she had cancelled the existing disability and benefits plan that she had with TNT and that she required a new one to be put into place. She was able to negotiate a waiver of the customary waiting period for qualification for benefits. This, it seems to me, supports the conclusion that an application for long term disability benefits was under active consideration at the time.
[74] On February 17, 2009, Dr. Gagnon noted that Ms. Ramrup was there for medication renewal and that she “was not enjoying her job, exhausted at the moment”. He also noted that she was having “a hard time with her job. Not sleeping well, although pain bearable. Uncertain whether she can do job for long. May consider long term disability. Chronic pain syndrome. Need to get old doc’s notes for disability”. At this visit, the OxyContin 80 mg tablet was prescribed to be taken four times per day and the OxyIR three times per day. This note also supports the conclusion that active contemplation of long term disability was underway.
[75] The evidence established that this visit occurred at the end of Ms. Ramrup’s first day of training for the Winnipeg position. She was obliged to drive to Oakville for training, a one and a half hour drive from her home. Ms. Ramrup did not enjoy the training and she considered it unnecessary.
[76] Dr. Gagnon saw her for the first time following the accident on March 3, 2009. He noted that an MRI should be arranged. He noted that she had been to three different physios and she had complaints of left arm pain.
[77] On March 9, 2009, his note makes reference to Ms. Ramrup being rude to his staff. He noted that she had a limp, could not walk any distance and her left arm hurt. OxyContin and OxyIR prescriptions were renewed to be taken four times and twice daily respectively.
[78] Dr. Gagnon saw her on April 2 and 24, 2009. He reduced the level of her OxyContin to the levels prescribed prior to the accident. He noted that Ms. Ramrup had failed to keep an appointment with a pain clinic. She was discharged from his practice on the latter date.
[79] Ms. Ramrup had a fall on the stairs of her home on April 27, 2009. She was transported to hospital by ambulance. The hospital record notes that Ms. Ramrup “has long standing deficits of the left leg and left back x 9 weeks for which MRI is pending”. I note, as well, that the record discloses “evidence from EMS and nurses suggests pt has misled us about …to obtain an MRI faster than available to her gp”. Ms. Ramrup refused to submit to blood work or a urine and drug screen. She discharged herself contrary to medical advice.
[80] There are numerous entries in the two volumes of medical records filed as exhibits at trial demonstrating Ms. Ramrup’s propensity to exaggerate. For example, Dr. Romanescu sent a letter to Ms. Ramrup on June 5, 2012 discharging her from her practice and outlining the reasons why. Ms. Ramrup responded the following day in a lengthy email setting out a point by point rebuttal. She referred to having “almost lost her life” to c. difficile and that her right leg is “(partially) paralyzed.”
[81] Dr. Schneiderman, a neurologist, commented that Ms. Ramrup demonstrated a “bizarre gait” and complained of a “non-organic form of diplopia.” Several other doctors noted complaints of double vision, which had no organic explanation.
[82] There is a hospital note from September 21, 2010 in which it is noted that Ms. Ramrup declined a social work consultation and saying she had a “half million dollar home, expensive clothing and a $5000 purse”. These are but a few examples of her propensity to exaggeration.
[83] As a result, given the significant dosages of OxyContin being prescribed, the recorded complaints of pain and a consideration of long term disability benefits, I cannot accept Ms. Ramrup’s evidence that she was fully functional and living a vibrant, active life prior to the February accident. Indeed, the objective evidence points in the opposite direction.
[84] Similarly, I found Mr. Talbot’s evidence to be difficult to accept. There is good reason to question his honesty.
[85] For example, he testified that TNT continues to be operational. He and Ms. Ramrup are equal partners. He has contracted his services to a company called Bing, for which TNT receives remuneration of $90,000 per year. Mr. Talbot was adamant that he was an employee of Bing when it is quite clear that he is an independent contractor. After protracted questioning, he finally conceded that income tax is not deducted from the payments directed to TNT by Bing.
[86] Mr. Talbot and Ms. Ramrup both testified that no corporate income tax returns have been filed for TNT since 2007. Nor have they not filed personal returns since 2009. They explained that any were financially unable to do so. It appears that at a minimum, the family unit is receiving $90,000 from Bing through TNT and they are paying no income tax. I find their explanation wholly unworthy of belief and in my view, it shows them to have a propensity for dishonesty.
[87] It must also be noted that Ms. Ramrup has never attempted to return to work. The vocational assessor, Mr. Mills characterized recruiting as a most sedentary occupation. It is difficult to imagine a more accommodating employer than TNT. Yet Ms. Ramrup has, according to her testimony, never tried to resume any aspect of recruiting after the accident.
[88] With respect to the collateral witnesses I have already mentioned, while I found them to be credible witnesses, their evidence is not reliable. None of the witnesses had any understanding of Ms. Ramrup’s pre-accident state of health and narcotic use. They were limited in the times that they could see or spend time with Ms. Ramrup. Consequently, these lay witnesses testified about their perceptions of Ms. Ramrup before and after the February 2009 accident. None of them were in a position to categorically say that the February accident was the cause of the changes that they observed.
[89] Ms. Christie and Ms. Fantauzzi had very limited occasions during which to see Ms. Ramrup. Ms. Summerfield’s saw her even less. She had lost touch with Ms. Ramrup for over a decade. She had no idea what had happened to Ms. Ramrup during those intervening years and she certainly could not comment on Ms. Ramrup’s level of function in the months before the accident. Ms. Ramrup’s sisters were similarly limited in their ability to observe her either before or after February. They both lived a considerable distance from her. Some of their evidence is contradicted by the documentation.
[90] The evidence that Ms. Ramrup was socially withdrawn and does not travel is at odds with repeated references in the physicians’ notes and records after February 2009, which show her travelling to various destinations in the United States as well as Cuba and Panama.
[91] With respect to the mechanics of the accident itself, in my view, Ms. Ramrup has exaggerated the nature of the impact. She testified in-chief that she considered the impact at the time to be traumatic and that it felt big. She has since learned that it was not. In cross-examination, she testified that she felt as if she had been hit by a bus. At her examination for discovery, she described the impact as shocking, traumatic and loud. When she went to the emergency department on the evening of the accident, she is recorded as telling the staff that she had been hit by a vehicle travelling 80 to 90 kms per hour.
[92] At trial, she testified that she did not recall if she saw skid marks made by the defendant’s vehicle. However, at an examination conducted under oath on behalf of her insurer, she testified that she saw skid marks behind her vehicle of 20 to 30 meters in length. None are noted in the police report.
[93] Officer Ruffa spoke of the interaction he had with Mr. Talbot at the scene of the accident. Although Mr. Talbot attempted to downplay that interaction, it is clear that he was persistent in his view that Mr. Lazzara should be charged. He told the officer that Mr. Lazzara was hiding something or was shady and he also said words to the effect “that’s York Regional Police for you”.
[94] Mr. Lazzara testified that Ms. Ramrup told him that she was not injured. Ms. DiCoppi witnessed the accident and testified that the two drivers came out of vehicles, they were exchanging information and everything was amiable. She was assured by both that they were fine and as a result, she departed.
[95] Mr. Talbot insisted that the vehicle had to be towed to a garage for inspection. Officer Ruffa did not consider that this was necessary. In order to give some context to this evidence, it is important to note that Mr. Lazzara testified that a tow truck operator came to the scene before police had arrived. At this time, he and Ms. Ramrup was exchanging insurance particulars. The tow truck operator appears to have insinuated himself into the situation and made some comment that might have led Ms. Ramrup to become concerned that her vehicle could have been damaged notwithstanding the low velocity forces of the collision. She was described by Mr. Lazzara as uncooperative thereafter.
[96] The two engineers were not significantly apart in their view of the forces involved in the collision. Mr. McCarthy is an impressive witness but his conclusions respecting the cost to repair the rear bumper are only best estimates, given that repairs unrelated to the accident were also undertaken.
[97] Finally, it is necessary to say a word or two about the surveillance evidence. I agree with Ms. McIntosh’s characterization of surveillance as a silent witness. I recognize that there were extensive efforts to capture Ms. Ramrup on video with only limited successes. However, the videos are particularly damning. On occasion, Ms. Ramrup is observed to be limping. On other occasions, she is walking apparently normally, albeit with slight pigeon-toed gait. Sometimes, she limps on the right side and other times, she limps on the left. I accept Dr. Tepperman’s opinion that the inconsistency of her presentation cannot be explained. I cannot agree with Dr. Garner that it is simply another manifestation of chronic pain.
[98] However, if I am wrong in rejecting Dr. Garner’s opinion, the videos make it quite clear that Ms. Ramrup is able to function at a much higher level than she was prepared to admit at trial. For example, there is a video showing her driving from her home in Bolton to Casino Rama in June 2009 – some four months after the accident. She was described by the private investigator as driving in an aggressive manner, changing lanes frequently in order to pass slower vehicles. On one occasion, she was filmed passing a vehicle on a two-lane highway that was divided by a solid yellow line. This hardly squares with Ms. Ramrup’s evidence that she is fearful of driving and rarely did so. In addition, she is observed at the casino where she played slot machines for a period of some four to four-and-a-half hours with no apparent difficulty.
[99] In summary, having considered all of the evidence, I am driven to the conclusion that Ms. Ramrup was significantly impaired in function prior to the February accident. She has failed to demonstrate on a balance of probabilities that the accident caused or materially contributed to a diminution in her function. The notes and records of various health care providers reveal an individual with a variety of physical and psychological issues prior to February 2009. They show that Ms. Ramrup was prescribed high doses of narcotics in the months before the accident and that she was contemplating long term disability, supporting the conclusion that she had significant levels of pain.
[100] The motion is granted.
“Justice H. A. Rady”
Justice H. A. Rady
Released: April 24, 2015
CITATION: Ramrup v. Lazzara, 2015 ONSC 2573
COURT FILE NO.: 686/10
DATE: 2015/04/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Nadira Ramrup
Plaintiff
- and –
Alphonso Lazzara, Venice Auto Inc. and Skyview General Contracting Ltd.
Defendants
RULING ON THRESHOLD MOTION
Rady J.
Released: April 24, 2015