Court File and Parties

COURT FILE NO.: CV-11-2584-00 DATE: 2016 06 21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DEYANA MAMADO Plaintiff

J. Patrick Brown/Josh Nisker Lawyers for the Plaintiff

- and -

ALLEN FRIDSON and NEW HORIZONS CAR & TRUCK RENTALS LTD. Defendants

Blair Nitchke/Kellie Redmond Lawyers for the Defendants

HEARD: June 14, 2016

RULING ON THRESHOLD MOTION

Baltman J

Background

[1] The plaintiff was injured in a six car pile-up on November 1, 2010, near the intersection of Avenue Rd. and St. Clair Ave. W. The defendant driver went out of control, careening into several vehicles. The plaintiff was the rear seat passenger in one of the cars. Her vehicle sustained three impacts – one from the back, one from the side near where she was seated, and one to the front.

[2] On the eve of trial the Defendant admitted liability for the collision. The plaintiff’s claim for general and special damages was heard by the jury. While the jury was deliberating counsel argued the “threshold” motion before me, namely whether or not the plaintiff’s claim for general damages is barred by s. 267.5(5) of the Insurance Act, which requires the plaintiff to demonstrate she has sustained a “permanent serious impairment of an important physical, mental or psychological function.”

[3] The plaintiff is currently 27 years old and single. At the time of this accident she was working full time as a receptionist, earning $17 per hour, and was taking a night course in psychology at Ryerson. She was active and for the most part in good health. She lived with her family and enjoyed a good relationship with them.

[4] Since the accident she has not returned to any form of gainful employment. On several occasions she attempted unsuccessfully to resume post-secondary studies. She is now more emotionally distant from her family and lives with them solely on the weekends, and with a close friend during the week.

[5] The Defendant conducted surveillance of the plaintiff on 26 days over a four year period, none of which it relied upon at trial.

[6] Before the jury returned with its verdict on damages I informed counsel that I found in favour of the plaintiff on this motion, with reasons to follow. These are my reasons.

The Test

[7] As delineated in Meyer v. Bright, [1993] O.J. No. 2446 (C.A.), the burden is on the plaintiff to prove on a balance of probabilities that she has satisfied the following questions, sequentially:

1. Has the plaintiff sustained a permanent impairment of a physical, mental, or psychological function?
2. If yes, is the function which is permanently impaired an important one?
3. If the answer to question two is yes, is the impairment of the important bodily function serious?

Issue #1: Has Ms. Mamado sustained permanent impairment of a physical, mental or psychological function?

[8] Where injuries from an accident result in chronic pain and limited function that is unlikely to improve within the indefinite future, the requirement for permanence has been met. Moreover, there is no requirement that there be objective findings to show permanence: May v. Casola; Rizzo v. Johnson, [2006] O.J. No. 4143, para. 11; Adams v. Taylor 2013 ONSC 7920, para. 11; Hartwick v. Simser.

[9] Nor is it necessary to demonstrate that the plaintiff’s injuries will last forever, until death. Rather, they must be expected to last indefinitely: Brak v. Walsh, 2008 ONCA 221, para. 4; Giordano v. Li, 2014 ONSC 7516, para. 11.

[10] In this case there is strong medical evidence that Ms. Mamado’s impairments are permanent. Dr. Tom Chen, a physiatrist, assessed Ms. Mamado in July 2013 and March 2016. He diagnosed her with:

a) Sprain and strain injuries of the spine and limb muscles; b) Knee contusion and dysfunction at the left knee; c) Post-traumatic insomnia; d) Post-traumatic headache; e) Chronic pain disorder, and f) Symptomatic flares of degenerative disc disease in the spine.

[11] He concluded that all of these conditions were the result of the accident. He also found that the plaintiff’s fall down several stairs in 2012, which resulted in two fractures to her left foot, stemmed from the weakened knee caused by the accident.

[12] In Dr. Chen’s opinion, Ms. Mamado’s impairments were permanent. While he anticipated that treatment might improve her levels of function, her overall prognosis was poor.

[13] Dr. Wendy Chan, a psychologist, diagnosed Ms. Mamado with:

a) Major Depressive Disorder b) Somatic Symptom Disorder (i.e. Pain Disorder), and c) Post-Traumatic Stress Disorder.

[14] She concluded all these conditions arose from the car accident, which had left Ms. Mamado “significantly traumatized”. She opined that while Ms. Mamado would benefit from treatment she would not be cured, and that in fact most patients with her symptomatology do not show substantial improvement.

[15] It is not only the plaintiff’s assessors who identified permanent impairments. Dr. Joel Jeffries, a psychiatrist retained by State Farm (the accident benefits insurer), assessed Ms. Mamado in July 2014. He diagnosed a Somatic Symptom Disorder and an Adjustment Disorder with cognitive difficulty, which he opined resulted from the accident. He stated that Ms. Mamado had clearly not reached pre-injury status at the time of his assessment. Although he thought she might get better with appropriate intervention he noted there was no guarantee. He anticipated that Ms. Mamado would remain “significantly dysfunctional” for at least a further 18 months, but added that “after such a long illness she may well have reached maximum medical improvement.”

Issue #2: Is the function which is permanently impaired an important one?

[16] In determining whether the bodily function which has been impaired is important, the court must consider its importance to the injured person in question. The analysis is subjective and considers the individual as a whole. Each case will be different as plaintiffs may be engaged in different employment, activities and interests: Adams, para. 13;

[17] In this case the question is easily answered in the affirmative. At the time of this accident, Ms. Mamado was a young, single woman working full-time, attending school in the evening, and happily engaged in her spare time in a variety of hobbies and interests, including recreational sports and social outings. In other words, her life consisted of work, school and play.

[18] I recognize that there were gaps in both her employment and academic pursuits before this accident. She began her job at Universal Fire, where she was employed at the time of the accident, only 3 months prior, and before that she was unemployed for approximately 8 months. But that was preceded by a two year period of employment at Toys “R” Us from June 2007 until May 2009, which garnered exemplary praise from her manager, and another short stint there in December 2009. While her ultimate field of employment may have been uncertain, she was by and large gainfully employed.

[19] At the same time she was attempting to upgrade her academic credentials. School had never been easy for her; her family, who immigrated to Canada from war-torn Iraq when she was four years old, did not speak English at home. Ms. Mamado was diagnosed with a learning disability and proceeded through public school with an IEP (independent education plan). Her marks were middling. However, she had a strong interest in the field of psychology, and was considering obtaining a psychology degree as a possible stepping stone toward a career as a social worker or childcare worker. On the evening the accident occurred she was on her way to her Monday night course in psychology at Ryerson. Importantly, she was pursuing this course at the same time that she was working full-time, demonstrating considerable energy and initiative.

[20] The evidence shows that both her work and school pursuits have been heavily impaired as a result of this accident. To her credit, in 2013 she completed a bridging course at York University, which got her into the psychology program there. She took an introduction to psychology course in the fall of 2013 but because of her injuries she could not put in the effort needed. She ended up with an “E” grade.

[21] Over the next few years she attempted other courses at York University but was eventually forced to drop them all because of her injuries. According to Drs. Chen and Chan, she is unlikely to have the stamina or mental concentration needed for such endeavours in the foreseeable future.

[22] Given the pivotal importance that both work and school played in Ms. Mamado’s life at the time of this accident, I conclude that the permanent impairment of those functions satisfies the second criterion.

Issue #3: Is the impairment of the important bodily function serious?

[23] So far I have concluded that Ms. Mamado sustained permanent impairment of two important functions, namely work and school. The issue now is whether either of those impairments is serious.

[24] In determining whether an impairment of an important function is serious, the court must consider whether the impairment is serious to the injured person in question. The same impairment may have a minor effect on one person but be devastating to another. A serious impairment is one which causes substantial interference with the ability of the injured person to perform her usual daily activities or continue her regular employment. Modest interference is not enough; the effect must be intolerable: Rizzo, paras. 25-30; Valentine v. Rodriguez-Elizalde, 2016 ONSC 354, paras. 37-38.

[25] I am satisfied that the injuries the plaintiff sustained in this accident have rendered both work and school intolerable, and that her impairment is therefore serious. Dealing first with Ms. Mamado’s employment, Dr. Chen explained that her impairments prevent her from resuming her pre-accident job as a receptionist, or any comparable employment. Although she may be able to find some part-time or occasional employment, in the real world she will not be a competitive candidate. Dr. Chan echoed that, predicting that the likelihood of her returning to any employment for which she is qualified by her background is poor.

[26] Both Doctors Chen and Chan also concluded that as a result of her impairments Ms. Mamado was unable to resume her academic studies. Dr. Chan explained that even accounting for the fact that she was only an average student in high school, had this accident not happened she should have been able to manage one university course. Although Ms. Mamado expresses interest in going back to school, Dr. Chan recommended that she first obtain treatment. Even with treatment her prognosis is still poor.

[27] The vast changes identified by Drs. Chen and Chan were corroborated not only by Ms. Mamado but also by the people who knew her before and after the accident: her friend, Justin Heaton-Dewitt; her sister, Athor Mamado; her former manager, Nancy De Santis, and her family physician, Dr. Jonathan Peck. I found them, on balance, to be fair and credible witnesses who provided a detailed and compelling view of how dramatically Ms. Mamado’s life has deteriorated since this accident.

[28] The Defendant called two expert witnesses to refute Ms. Mamado’s claims: Dr. Rajka Soric, a physiatrist, and Dr. Lawrie Reznek, a psychiatrist. Aside from the fact that neither expert addressed the threshold in their testimony, the evidence from both witnesses contains serious flaws:

Dr. Rajka Soric:

• Dr. Soric misread Ms. Mamado’s pre-accident medical history. She was convinced that in May 2010 Dr. Peck had noted that the plaintiff had “intractable” back pain before the accident, when in fact the note read “intermittent”. Dr. Soric conceded this error most grudgingly, and then insisted the error was irrelevant to her conclusion despite having previously emphasized it in her testimony;
• She had no recollection of how much time she spent reviewing Ms. Mamado’s brief and preparing her report;
• Several of the tests she claimed to have performed were not documented in her report;
• Dr. Soric appeared indignant when it was revealed that out of her income last year, which was in the range of $450,000 - $470,000, the majority came from assessments for defence lawyers and insurance companies. (She has never testified on behalf of a plaintiff, except on one occasion when the plaintiff also happened to be her patient). Incredibly, she is of the view that she can be seen as entirely neutral no matter to whom she owes much of her livelihood.

Dr. Lawrie Reznek:

• It is curious that the Defendants referred Ms. Mamado to Dr. Reznek, a psychiatrist, when none of her treating practitioners ever referred her to a psychiatrist and their own expert, Dr. Soric, recommended that she be seen by a psychologist;
• Dr. Reznek administered the SIMS test to Ms. Mamado (designed to detect malingering), and she scored 19. As her score was only slightly over the threshold of 16 (out of 75), he could not say on a balance of probabilities that it suggested exaggeration; he also admitted that her learning disability could have affected her performance on the test, and there are more extensive tests to detect malingering which he did not perform;
• Dr. Reznek said the only sure way to detect malingering is if you observe the claimant doing something she says she cannot; significantly, the Defendant did not provide him with any of the surveillance conducted;
• As for the “three strikes” he relied upon to conclude Ms. Mamado was exaggerating her symptoms, in cross-examination he agreed that (1) he would view anyone as suspicious who may be injured in an accident and end up before him for a medical-legal assessment; (2) he overstated her physical complaints, as she acknowledged some were “not constant” and that her pain was variable; and (3) he read Dr. Peck’s pre-accident note as stating she had “10” months of back pain, when in fact Dr. Peck wrote that she had a “few” months of back pain;
• He asserted repeatedly that if, as Ms. Mamado claimed, the accident triggered her depression and stress disorder, one should have seen evidence of that within the first three months following the accident. Then, in cross-examination, he admitted that in fact there was such evidence, as in January 2011 – two months after the accident – Dr. Andrew Shaul, a psychologist, documented that Ms. Mamado was suffering from depression, anxiety and other accident related symptoms. This error significantly eroded his opinion;
• Even though half of his time and two thirds of his annual income (of approximately $400,000) is devoted to medical-legal work for defendants, he insisted that does not influence him “in any way”.

[29] Even with those flaws, the core evidence from Drs. Soric and Reznek in fact supports the plaintiff. Dr. Soric agreed that Ms. Mamado was suffering from chronic pain. Although she would describe it more as a chronic pain “sensation” than a disorder, she allowed that a chronic pain sensation can be disabling and can prevent a person from returning to work or going to school.

[30] As for Dr. Reznek, although he did not feel Ms. Mamado satisfied the diagnostic criteria for major depression, post-traumatic stress disorder or pain disorder, he did feel that she had “real symptoms” and “real distress”.

[31] Defence counsel argued that the plaintiff has failed to pursue any form of accommodation, at work or at school. However, the plaintiff has limited sophistication in medical and rehabilitation issues. She has never been in a car accident before this one and never required any form of rehabilitative treatment. The numerous requests she and her counsel made to the accident benefit insurer for various forms of rehabilitation – including vocational assistance - were largely denied.

[32] In any case, the medical evidence indicates that the plaintiff’s impairments cannot reasonably be accommodated. Dr. Chen testified that in the competitive employment scene that currently exists, there is often very little tolerance for employees with disabilities who are perceived to “slow down the line”. He predicted most organizations will not see her as a competitive or attractive employment prospect.

[33] Finally, while the defence made much ado about the plaintiff’s pre-accident health, I find it has little if any relevance to this case. Of all the body parts she injured in this accident – neck, back, shoulders and left knee – only her back featured at all in any of the pre-accident medical records. Even then it was intermittent and never prevented her from carrying out any activities, including the very demanding physical tasks she performed for nearly two years at Toys “R” Us. In the five months preceding this accident her back was entirely asymptomatic. If anything, it amounts to a “thin skulled” back, in which case the Defendant is liable for aggravating it.

[34] Moreover, it is uncontroverted that before this collision she never required physiotherapy, massage treatments, chiropractic treatments, or psychiatric or psychological treatments. She never took anti-anxiety or anti-depressive medications before the collision. She never experienced headaches, depression or anxiety before the collision.

Conclusion

[35] For the above reasons I conclude that the plaintiff has sustained a serious impairment of an important physical, mental or psychological function as a result of the November 1, 2010 accident. As such she has discharged her onus to establish that her damages meet the statutory threshold.

Baltman J Released: June 21, 2016