ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-0382-00
DATE: 2015 Nov 10

BETWEEN:

WADE BRETT COBB and ERICA MAE COBB

Plaintiffs

– and –

THE ESTATE OF MARTIN T. LONG

Defendant

K. Bonn, for the Plaintiffs

S. Baldwin, for the Defendant

HEARD: October 2, 2015

Belch, J.

THRESHOLD MOTION DECISION

BACKGROUND

[1] The plaintiffs in this action are Wade Cobb and his wife Erica. The defendant is the Estate of Martin T. Long. On July 8, 2008, Wade Cobb was operating his truck on a public road when Martin Long, impaired by alcohol and driving his truck, exited his driveway, failed to stop his truck before entering the public roadway and both trucks were involved in what has been described as a frontal collision. Martin Long was charged with impaired driving and later convicted on his plea of guilty. Wade Cobb was taken to hospital with injuries, transferred to a second hospital, and released the next day. Erica brings her claim pursuant to the Family Law Act.

[2] Wade Cobb sued seeking compensation for the injuries received together with claims for past and future income loss, household maintenance and repair. The four week trial was heard by a court composed of judge and jury.

[3] The defence brings this motion on “threshold” arguing Mr. Cobb has not suffered a permanent impairment of an important physical, mental or psychological function. The plaintiff opposes the motion.

[4] For the reasons that follow, I am satisfied Wade Cobb has suffered a permanent serious impairment of an important bodily function.

THE LAW

[5] The Insurance Act, (Act), https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html, in particular section 267.5(5), provides there shall be no liability for non-pecuniary loss resulting from a motor vehicle crash unless, as a result of the crash, the injured person has died or has sustained (a) permanent serious disfigurement; or (b) a permanent serious impairment of an important physical, mental, or psychological function. Regulation 381/03 of the Act defines permanent serious impairment of an important physical, mental or psychological function.

[6] Section 4.2 of the Regulation stipulates 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; or (iii) substantially interfere with most of the usual activities of daily living, considering the person’s age. The Regulation provides, 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 reasonable efforts to use the accommodation to allow the person to continue employment; (iv) be important to the usual activities of daily living, considering the person’s age. Finally, part 3 of the Regulation provides, 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.

[7] Section 4.3 sets out the types of evidence that must be called. A plaintiff must show evidence from physicians to explain the nature of the impairment, its permanence, the specific function that is impaired and the importance of that function to the person. Specifically, and I paraphrase here, the person shall adduce evidence of one or more physicians, in accordance with this section, that explains, the nature of the impairment, the permanence of the impairment, the specific function that is impaired; and the importance of the specific function of the person. The evidence of the physician 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 shall be based on medical evidence in accordance with generally accepted guidelines or standards of the practice of medicine. 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. Finally 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.

EVIDENCE

[8] The plaintiff testified following the collision, he exited his truck to check on his four year old son who was seat belted in the rear seat. He himself was feeling pain in his back and neck; he had a headache; he was put in a neck brace; and transported by ambulance to hospital and then transferred to another hospital where a CT scan revealed no bones were broken. He testified he was fearful, particularly about his son, having recently lost a daughter to cancer. His daughter did not respond to his attempt at resuscitation on the drive home from a Toronto hospital. Dr. Nemeth testified given his unsettled childhood and the recent death of his daughter, he was more vulnerable to the impact of this collision.

[9] Before the accident, he had recently started his own construction company and was busy finishing a home restoration job. After the accident and before returning to the job, he took two weeks off because he was in pain. Knowing he needed to finish the job, he pushed himself, only to feel worse. He was not sleeping, his hips were bruised, his body felt jammed up and he experienced pain in his face, neck and back. The court heard evidence from his family physician who had referred him for psychiatric help and pain counselling. Erica testified she took him to urgent care in Kingston because of his expressed suicidal tendencies.

[10] Eventually, with the help of two others, he finished the house project, but turned down other job offers. The court received expert testimony that his employment in construction involved heavy lifting, however, testing revealed he could only do medium lifting comfortably. He eventually left the psychiatric counselling he had been receiving, advising it only made him feel worse. He stopped taking his medications, followed a spiritual path, and began juicing, taking supplements, vitamins, etc. This is but a thumbnail sketch of the evidence heard from the plaintiff, his wife, and his medical experts. He also called former co-workers or employers who testified he was not the person he had been and could not work at his former level of employment. A kinesiologist testified that while he could do medium lifting, i.e., he had the capacity that was not to say he could sustain that medium level for any appreciable period of time.

[11] Given the nature of defence questioning and the evidence called, this motion on threshold was anticipated. I will refer to specific medical testimony shortly, however, one defence witness, a psychiatrist, had administered a psychological test known as Sims and testified while he could not make a diagnosis that the plaintiff was a malingerer, the test revealed certain characteristics which according to the wording of the DSM, suggested “a strong reason to suspect the plaintiff was malingering.” That was not a diagnosis he could make, pointing out such a conclusion fell to the jury in its finding of facts.

[12] The defence attempted to paint a picture of the plaintiff as a person who was not badly injured in the accident, had no broken bones, was able to shingle a roof after the accident, chose to discontinue his medication and leave psychiatric counselling, started a martial arts school and introduced photographs from the school’s website showing the plaintiff’s involvement in physical exercise. It established the plaintiff might have received some relief from a medical procedure known as a rhizotomy and most likely could have been employed as a site supervisor, a position he had once held and which paid considerably more money than he had earned in his construction business. In addition, the plaintiff had since 2008 been a volunteer firefighter, a physically demanding job.

THE COMPETING THEORIES

[13] The court did not receive testimony from an accident re-constructionist, but it did hear the competing theories of the medical experts. Firstly, Dr. Michael Ford, a spine trauma surgeon said passengers in cars involved in accidents are well contained within the car thanks to today’s safety features. It was his opinion this collision, being a frontal impact collision, excluded a whiplash injury which is more typically seen to be the result of a rear end impact. It was his opinion that at impact, the plaintiff’s chin would be thrown forward and his sternum would act like a head rest preventing the whiplash injury. Given his physical examination revealed no obvious distress, and the plaintiff’s CT scan was normal, and by his theory whiplash was excluded, he concluded there was no link between the plaintiff’s complaints and the motor vehicle accident.

[14] Dr. Ford testified it was not his role to determine whether the plaintiff had suffered pain and even if he had, he offered he could not determine the pain was definitely linked to a motor vehicle accident because 50% of the population has neck or back pain at some point in their lives. He remarked, “It’s a condition of life like getting gray hair and wrinkles.” He agreed there was no other record of neck pain. He testified, upon learning there are no bone issues requiring surgery, he refers patients suffering pain to physiatrists and medical practitioners specializing in treatment of pain at Sunnybrook. He did not deny the plaintiff had suffered soft tissue injuries, but was concerned with the delay in the timing of the complaints to the family doctor as it was his experience that pain is immediate.

[15] On the other hand and appearing for the plaintiff, Dr. Gordon Ko, a physiatrist at Sunnybrook, with a sub-specialty of pain including neuropathic pain testified the plaintiff had his foot on the brake at the moment of impact, therefore, the force of the collision travelled up his right leg into his right sacroiliac joint, explaining why he suffers low back pain mainly on his right side. In addition, there are the mechanics of this collision where there is an acceleration/deceleration type injury, the person’s head goes back-and-forth, the airbag goes off and throws the head back quickly, applying force on the facet joints. Given the results of diagnostic nerve block testing on the plaintiff, he concluded this plaintiff had suffered injury not visible on standard MRI, x-ray, or CT scans, to his facet joints which he attributed to the motor vehicle collision. The collision caused pain for which the plaintiff has and will continue to receive treatment. Given it has been seven years since the accident Dr. Ko concluded recovery was unlikely. His prognosis was guarded. He was of the opinion the plaintiff has a serious permanent impairment and that was his conclusion when his first assessment was prepared in 2011 and it is still his conclusion today. With the exception of the injuries to the plaintiff’s hands, all of the other reported symptoms related to the motor vehicle accident, however, “if there had been pain prior to the motor vehicle accident, you would want to know because it might be less likely that it was accident related.” Having said this, there was no entry in the medical records nor the OHIP decoded summary which mentioned neck pain and he concluded on the balance of probabilities, the pain was caused by the accident.

[16] Dr. Lawrie Reznek, a psychiatrist, testified for the defence. It was this witness, who on the basis of certain DSM criteria, suspected the plaintiff was a malingerer although never made that diagnosis. He testified the reasoning for the suspicion was the sheer number of inconsistencies he identified in the plaintiff’s history which he concluded added up to the plaintiff wanting to convey a much rosier picture of his past so he could be in a position to say the present problems or complaints he was experiencing could be traced to the motor vehicle accident. It was his evidence the common psychiatric conditions that follow motor vehicle accidents are either adjustment disorder, post-traumatic stress disorder or pain disorder. He also looked for clinical or major depression and did not find any evidence the plaintiff was depressed, likewise, he did not have a true adjustment disorder but perhaps a minor mood disorder and he could not find any symptoms of post-traumatic stress disorder either. In summary, he did not believe the plaintiff had any psychiatric diagnosed impairment related to this motor vehicle accident.

[17] Dr. Zohar Waisman, also a psychiatrist, was called on behalf of the plaintiff. He knew the plaintiff had also experienced back pain in 2004, but was of the opinion this pain did not interfere with his working. He was also aware of the family physician’s medical record that the plaintiff had always lived with some pain and if the plaintiff’s work history had been sporadic, that medical reference might have been important, however the plaintiff’s work history was not sporadic. “Unfortunately, there is no objective test that measures pain; pain is subjective.” It was his opinion the plaintiff was not a malingerer. He concluded the plaintiff had severe depression. He found there was a strong connection between the death of the plaintiff’s daughter and this motor vehicle accident. It had triggered flashbacks.

[18] Further, the problem as this witness saw it was the inability of the plaintiff to regulate his emotions, the pain, the depression. It is a vicious cycle and very difficult to break. The nerve block injections offer temporary relief of a chronic issue. As for the future, was the plaintiff’s problem going to resolve? It was his opinion the condition was chronic. “There will be periods when the symptoms are better; others when they are worse” and he did not see the problem resolving. He was of the opinion the plaintiff was vulnerable and the accident magnified his condition. “Events shape people.” This plaintiff has a good work ethic and started his business when the motor vehicle accident shattered his dreams and aspirations. He tried and failed and spiraled into pain which is now chronic. There is no standard pattern. This is his pattern; he made efforts to get better - he failed, he tries to function – fails, he tries to function again only to fail again and this leads to chronic despair. This witness found the plaintiff had a major depressive episode, severe, and in addition, system disorder.

WAS THE PLAINTIFF A MALINGERER?

[19] Much of the experts’ evidence dealt with the condition of malingering. It began with Dr. Reznek a psychiatrist called by the defence. This witness suggested because his was a medical/legal report, he had to be cognizant of the DSM criteria and if certain criteria had been identified, the wording of the DSM manual could lead to a finding “there was a strong reason to suspect the plaintiff was malingering” although that was an issue for the jury. This suggestion caused both counsel to question every psychologist and psychiatrist who testified about malingering. The court learned of the psychological tests usually applied i.e. Sims, PAI. The jury were led through the testing, the scores, and what they stood for, questionnaires, however, in the end, not one of the expert witnesses including Dr. Reznek concluded the plaintiff was a malingerer.

ANALYSIS AND CONCLUSION

[20] The court will focus on the evidence of the physicians called as the Act and its regulations require a plaintiff adduce evidence from physicians addressing the nature of the impairment, its permanence, the function that is impaired and the importance of the function to the person. Further, it is to be the evidence of a physician who is trained and experienced in the assessment or treatment of this type of impairment and the evidence shall include a conclusion that the impairment was directly or indirectly sustained as the result of the use or operation of an automobile.

[21] The court heard conflicting medical opinions.

[22] Dr. Ko, a psychiatrist and pain specialist suspected the source of the pain was the facet joints. Dr. Shapero operates a pain clinic offering treatment including injecting patients to help diagnose the source of pain. He carried out diagnostic nerve block testing on the plaintiff and discovered a “profound response” when anesthetic was injected at the higher level of the facet joints. Dr. Ford, a spinal surgeon suggested such injections offered limited relief and injecting a saline solution might produce the same results. I am satisfied whatever solution is injected, it is important the plaintiff obtains relief. The evidence is the plaintiff does obtain relief and he continues to get the treatment on a regular basis.

[23] Dr. Ford testified the CT scans of the plaintiff were normal. Dr. Ko testified x-rays, MRIs, and CT scans do not always “pick up” the injuries to facet joints and that is why diagnostic nerve block testing takes place.

[24] As well as depression, the plaintiff suffers from pain and not bone issues. Dr. Ford testified, in his practice, if there is no evidence of broken bones but pain exists. he refers the patient to a pain specialist.

[25] It was Dr. Reznek’s evidence the psychiatric conditions that commonly follow motor vehicle accidents are adjustment disorder, post-traumatic stress disorder, pain disorder, and either clinical or major depression. He concluded the plaintiff had not suffered any psychiatric diagnosed impairment related to this motor vehicle accident. He had no reason to dispute Dr. Farewell’s (also a psychiatrist) earlier assessment that when he observed the plaintiff, it was likely the plaintiff was suffering from a major depressive disorder. He was aware Dr. Nemeth, a psychologist diagnosed the plaintiff with a major depressive episode/mild. On the other hand, Dr. Waisman found a major depressive episode, severe and a system disorder.

[26] The Regulations require for the impairment to be permanent, it must be 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. The defence points out the following: the plaintiff did not continue the psychiatric counselling with Dr. Farewell; he stopped taking the prescribed medications, preferring to follow a spiritual path and to take of supplements; and he did not receive treatment in the form of a rhizotomy. However, evidence received by the court suggested the counselling made him feel worse. He stopped taking the prescribed medications it is true, however, medical testimony suggested there has been a shift in thinking and that pills might not help those suffering with chronic pain. Finally, the plaintiff chose to receive continuing facet injections to obtain pain relief and these injections were recognized as a form of treatment although their beneficial results were short lived in comparison with the rhizotomy procedure.

[27] While Drs. Reznek and Ford found no links between the plaintiff’s condition and the motor vehicle accident, Dr. Ko concluded there was a direct link between the plaintiff’s condition and the motor vehicle accident as there had been no evidence of neck pain prior to the accident and the accident had been the only intervening event. Dr. Waisman concluded the plaintiff had been vulnerable before the accident, the accident occurred and it was responsible for the pain which led to chronic pain and depression followed.

[28] Chronic pain satisfies the requirements of permanence for the purposes of the threshold. As stated in paragraph 87 of Hartwick v. Simser, [2004] O.J. No. 4315,

87 It is now trite law that chronic pain arising from injury sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future, will meet the requirement of "permanence" in the threshold.

[29] Although prior to the accident, the plaintiff had not worked within his own construction business for a long standing period of time, I am satisfied the business was operational and the evidence tendered established the plaintiff could not now do the heavy lifting that he once did and the heavy lifting is part and parcel of that business. This has frustrated his career path.

[30] Could the plaintiff be accommodated within his construction business by hiring others to do the heavy lifting? This, of course, would come at an expense which might affect the profitability of the business. In the case of Tennant v. Fariba, [2013] O.J. No. 1260, the court found the injuries met threshold and in addressing accommodation and threshold, the court noted:

44 … He cannot work the way that he did before as a flooring installer in his own business. He now tends to rely more on subcontractors to do the heavy physical work that he could do before. He cannot do the heavy lifting and repetitive work involving his arms and legs that he did before this accident. He is right hand dominant and cannot use his right arm as he did before to install flooring material and he cannot use his left knee also as he did before. … He did not suffer from these types of problems before the accident but has experienced all of these difficulties since December 8, 2006.

[31] Wade Cobb finds himself in similar circumstances following the July 8, 2008 accident. He too is right hand dominant and it was established during the trial that his right arm is now weaker than the left suggesting there is something wrong with the right side of his body. Dr. Ko gave his explanation for the damage to the right side of the plaintiff’s back.

[32] Erica Cobb, the spouse of Wade, testified the accident had fundamentally changed her husband.

[33] In summary, I am satisfied Wade Cobb has suffered a permanent serious impairment of an important bodily function. He has suffered and continues to suffer chronic pain. He cannot perform the physical requirements associated with his construction business. His career path has been frustrated which is unusual, given his past work ethic. The only major change in his life was the motor vehicle accident. Mr. Cobb bears no responsibility for this accident; Martin Long was solely responsible and he acknowledged his responsibility by pleading guilty to a charge of impaired driving. The accident occurred seven years ago and during this period of time, the plaintiff has attempted to cope with the fallout from the accident. I am satisfied his impairment is permanent.

[34] Accordingly, the defence application requesting the court find that Mr. Cobb has not suffered a permanent impairment of an important physical, mental or psychological function is dismissed.

Honourable Mr. Justice Douglas M. Belch

Released: November 10, 2015