Superior Court of Justice
CITATION: Galloway v. State Farm Mutual Automobile Insurance, 2016 ONSC 6843
COURT FILE NO.: CV-13-277-00
DATE: 2016 Nov 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRIS GALLOWAY Plaintiff
– and –
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant/Moving Party
COUNSEL:
P. Brioux, for the Plaintiff
T. McCarthy and C. Mak, for the Defendant/Moving Party
HEARD: October 26, 2016 at Kingston
Tranmer J.
DECISION ON MOTION FOR SUMMARY JUDGMENT
[1] The defendant moves for summary judgment dismissing the plaintiff’s claims for income replacement benefits, a catastrophic injury designation and general damages for the insurer’s mishandling of his claim. If the defendant is successful on each of these issues, the action would be concluded.
[2] The claim arises out of a motor vehicle collision which occurred January 12, 2007. The defendant is the plaintiff’s accident benefits insurer. The defendant paid accident benefits to the plaintiff, including medical and rehabilitation benefits in the order of $4400, housekeeping benefits in the order of $4500 and paid for assessments in the approximate amount of $38,000. The insurer also paid income replacement benefits to the plaintiff in the order of $60,000 for approximately 6 years, terminating them in 2012.
THE LAW
[3] The applicable law is set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, in particular at paragraphs 49 and 50:
49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
50 … When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
CLAIM FOR GENERAL DAMAGES
[4] The Statement of Claim makes the following claims, in this regard:
a. Para. 1a, general damages in the amount of $5 million for negligence and breach of contract; and
b. Para. 11, further, the plaintiff seeks damages for breach of contract and for negligence against the defendant for its mishandling and unfair and deceptive practices in managing his no-fault accident benefit claims.
[5] The defendant’s position is that the plaintiff’s benefits were dealt with in accordance with the legislation and based on the medical evidence that was available to it. In particular, the income replacement benefits were terminated based on the opinions of Dr. Dinsdale and Dr. Stewart. The defendant also points out that although the plaintiff is in receipt of CPP benefits, those benefits are available regardless of whether any disabilities suffered were caused by the subject motor vehicle collision. The defendant was not a party to the CPP claim, and the CPP decision is not in evidence before me.
[6] The plaintiff’s position is that there is evidence that in October of 2008, the defendant questioned whether the insured’s condition was related to the subject motor vehicle collision. Nevertheless, benefits were paid and the plaintiff relied on those benefits being paid. This created a reliance on the part of the plaintiff.
[7] It is common ground that the payment of benefits was interrupted at times, but then reinstated up until November 15, 2012 when the payment of all benefits was stopped, based on the medical evidence available to the defendant.
[8] I find that clearly there is no evidence on the record before me to support the plaintiff’s claim for general damages as pleaded. Accordingly, the defendant has satisfied me that there is no genuine issue for trial in this regard and the claim in this regard is dismissed.
DESIGNATION OF CATASTROPHIC IMPAIRMENT
[9] A catastrophic impairment is specifically and strictly defined in the statutory accident benefits schedule, as an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th ed 1993, results in 55% or more impairment of the whole person, be the impairment psychological or physical or a combination of both; or an impairment that results in a marked impairment or in extreme impairment due to mental or behavioural disorder.
[10] On October 18, 2011, Dr. French prepared an executive summary concerning the multidisciplinary “Catastrophic Assessment Determination”. The team of assessors had reached the final, conclusive opinion that the plaintiff did not exhibit a catastrophic impairment as a result of his involvement in the subject collision. The team consisted of an orthopedic surgeon, a psychologist and an occupational therapist. Neurologist, Dr. Esmail, concluded that the plaintiff’s medical difficulties were unrelated to the motor vehicle collision and further that the posttraumatic headaches that did result from the collision amounted to a whole person impairment rating at 3%. Dr. Dean was of the opinion that from a purely musculoskeletal perspective the plaintiff whole person impairment was 4%. The subsequent report dated December 19, 2011 prepared by Dr. Hope, a neuropsychologist, did not alter the opinion.
[11] In this case, the plaintiff relies upon the opinions of Dr. Riopelle dated February 14, 2011 and of Dr. Hamilton dated September 7, 2016. However, these experts state their opinion that the plaintiff is “functionally catastrophic”, with no reference to the specified criteria as defined in the statutory accident benefits schedule.
[12] Dr. Spiller, a neurologist, who had treated the plaintiff for three years at the time, signed an application for determination of catastrophic impairment on June 8, 2011. She checked the boxes setting out the above definitions for catastrophic impairment on the application form. However, in her report of March 16, 2009, she attributes the plaintiff's cognitive difficulties to the result of prolonged seizures, which occurred after the collision, not to the collision. In her report of August 31, 2012, she changes her opinion to indicate that the unprovoked seizures that he suffered after the collision were the result of head trauma that he acquired at the time of the collision. In that report, she states, “given he cannot look after himself independently, he would not be able to obtain or maintain employment.” However, in the same report, Dr. Spiller states “I think Christopher would be a liability in any job unless it involved repetitive work, afforded close supervision, with no need to work at heights, with electrical tools and would not cause any safety issues if he made a mistake.” Such work is comparable to the work that he had prior to the collision which was serving meals to inmates in a penitentiary.
[13] Dr. Spiller, apart from checking off the boxes on the form in 2011, provides no evidence setting out why or how the plaintiff meets the legislated definition of catastrophic impairment or her qualifications to make a decision in this regard. In that regard, this case is similar to Stewart v. State Farm 2012 ONSC 2615.
[14] Apart from Dr. Spiller checking the boxes on the Application for Determination of Catastrophic Impairment, there are no facts or expert opinion that establishes that the plaintiff meets the definition.
[15] I find that the defendant has met the onus on it to establish that there is no genuine issue for trial on the question of catastrophic impairment and therefore, the claim in this regard is dismissed.
[16] In respect of both the claims for general damages and catastrophic determination, the Hryniak test is met by the defendant and the motion is granted dismissing those claims by the plaintiff.
CLAIM FOR INCOME REPLACEMENT BENEFITS
[17] The relevant legislation provides that the insurer is not required to pay an income replacement benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience.
[18] The evidence is that the plaintiff completed grade 12, but has not completed any other education or received any special training subsequent to high school. Prior to the collision, he worked in several jobs which involved working in kitchens. At the time of the collision, he was employed as a member of the kitchen staff at the Kingston Penitentiary delivering trays to the inmates. Prior to the collision, the plaintiff was diagnosed with hydrocephalus, which resulted in his having a shunt installed. Prior to the collision, the plaintiff had suffered a single seizure when he was 12 years of age. Approximately one year after the collision, he suffered two seizures in fairly quick succession. His mother indicated that following those two seizures, she noticed that he had significant memory problems, headaches, difficulties with conversation, found it hard to focus, was disorganized and easily confused. She swore that as of October 19, 2016, he required constant supervision to assist him with cognitive and behavioural deficits. She said that was a far departure from his pre-accident functioning. At the time of the collision, the plaintiff would have been 22 years of age.
[19] The defendant submits that the plaintiff’s condition does not meet the statutory definition and further that there is no evidence that the plaintiff’s difficulties were caused by the motor vehicle collision as opposed to his pre-existing psychological challenges. It relies on the opinion of Dr. Dinsdale in his report of August 27, 2012, that the mild head trauma experienced by the plaintiff in the collision would have resolved completely and been without meaningful impact on the course of his pre-existing seizure disorder. Dr. Dinsdale was of the opinion that the insured did not suffer a complete inability to engage in any employment to which he was reasonably suited by education, training or experience. “Mr. Galloway had neurological problems prior to the accident. The accident has not added directly to his neurological burden”.
[20] The defendant also relies upon the opinion of Dr. Stewart, who states in his report of September 15, 2014, that there is no clear evidence that the plaintiff suffered a significant head injury in the accident. “A seizure disorder developed long after the accident - possibly a recurrence of previous seizures, along with status epilepticus. I do not believe that seizures post-accident were a result of this accident in any way”. He was of the opinion that cognitive impairment was the result of brain injury due to the status epilepticus. He found no clear record that the plaintiff's cognitive function or psychological behaviour changed significantly as a result of any injuries in the accident. He was of the view that from a neurological point of view, there was no significant continuing abnormality resulting from this accident. “This young man requires continued care for his shunt in his seizure disorder; however, these are not related in any way to this accident. From a neurological point of view, there is no reason why he cannot return to his pre-accident activities, including vocational and avocational activities”.
[21] The plaintiff submits that he is disabled within the meaning of the legislation and that there is evidence that this condition was caused by the motor vehicle collision. Such evidence includes the following.
[22] In 2008, Dr. Spiller stated that prior to the accident, the plaintiff only had seizures in the context of hydrocephalus but since the accident, they have become unprovoked. She indicated there was literature of patients with pre-existing epilepsy having more frequent seizures after mild head trauma. “Whether this increase frequency was due to the stress of being in the accident or because of mild cerebral insult cannot be determined from this study”.
[23] In November of 2008, neurologist Dr. Carlen, reported that the motor vehicle collision clearly caused head trauma, which led to post-concussion headaches and behavioural changes. “Having the pre-existing hydrocephalus would make you more susceptible to later neurological problems in the motor vehicle accident also might have exacerbated his underlying seizure problem. The accident may have played a contributing role in his later seizure episodes but this is not clear and would be hard to establish definitively.” “His primary problem at the present time is post status epilepticus, impaired cognition, although this problem is not directly related to the motor vehicle accident.” “His prognosis is complicated by the cognitive impairment, which he suffered as a result of status epilepticus. The status epilepticus cannot be directly related to the motor vehicle accident.”
[24] In 2009, Dr. Spiller reported that as a result of the motor vehicle collision, the plaintiff had evidence of post-concussion syndrome with new onset dizziness, headache and personality change as well as worsening seizures including two episodes of status epilepticus. His cognitive difficulties are the result of the prolonged seizures, not the collision… His memory difficulties would make it impossible to perform the essential tasks of his employment… .” In 2012, Dr. Spiller’s opinion differed and she reported that after the accident, the plaintiff started having unprovoked seizures including two episodes of status epilepticus. The episodes of status epilepticus cause significant cognitive problems which improved somewhat with acquired brain injury rehabilitation. “I believe that these unprovoked seizures were a result of the head trauma he acquired at the time of the accident.”
[25] In 2009, Dr. Kim, physiatrist, reported that the plaintiff was currently suffering from generalized seizure activity which completely prevents him from engaging in any employment related activities and driving a motor vehicle. “With regards to the relationship between the motor vehicle accident in his epileptic seizures. This is beyond my expertise to determine, although based on review of the file material, there is no definite connection between the accident and status epilepticus.”
[26] In 2011, Dr. Riopelle does not relate the plaintiff’s disabilities to the collision, but notes progressive cognitive decline over the past three years. He is of the opinion that the patient is manifesting a neurological spectrum disorder.
[27] In October of 2011, Dr. Ilaqua, a clinical psychologist, reported that it appears likely that the accident is a factor in the onset of the seizures experienced in 2008.
[28] In his report of 2011, Dr. Hope, a neuropsychologist, concluded that the plaintiff was not likely to be suffering from any significant psychological symptoms that were materially related to the accident in question, and further that he was not suffering from any impairment with respect to adaptation, activities of daily living, social functioning, concentration, persistence and pace. Dr. Hope was of the opinion that the plaintiff did not meet the catastrophic impairment criteria from a psychological perspective.
[29] In her report of September 2016, Dr. Hamilton, a neuropsychologist, reported that it is outside the scope of her expertise to comment on any relationship between the seizures and the car accident.
[30] The plaintiff also points out that in his initial opinion of June 2011, Dr. Dinsdale was of the opinion that the collision did result in subsequent disability whereas in his opinion of August 2012, Dr. Dinsdale reported that the insured did not suffer a complete inability to engage in employment and further that the accident did not add directly to his neurological burden.
[31] The plaintiff also points out that for a considerable period of time post 104 weeks, the defendant accepted that the plaintiff met the definition for entitlement to income replacement benefits.
[32] In this case, I do not think the summary judgment process can achieve a fair and just resolution on the issue in this claim. The record does not permit me to make the necessary findings of fact, even if I utilize the additional powers available to the Court on a summary judgment motion.
[33] Given the conflicting medical opinion as to whether the plaintiff’s current disabilities are caused by the motor vehicle collision, I conclude that there remains a genuine issue for trial, in this regard. The evidence must be adjudicated upon with the full scrutiny that comes with a trial. Furthermore, it is my opinion that a trial is required on the issue of whether the plaintiff's condition such as is, or is not, found to have been caused by the motor vehicle collision meets the criteria for entitlement to income replacement benefits. I have already identified the conflicting medical evidence and his mother's evidence in this regard.
[34] For these reasons, I dismiss the motion for summary judgment in regard to entitlement to income replacement benefits. The action shall proceed on this issue alone.
[35] In accordance with the dicta of the Supreme Court of Canada in Hryniak v. Mauldin 2014 SCC 7, unless the parties show compelling reasons to the contrary, I will seize myself as the trial judge in this matter.
COSTS
[36] If the parties cannot agree on costs, after bona fide efforts to resolve same, the defendant may make written submissions restricted to 3 pages plus the costs outline within 10 days hereof, and the plaintiff may respond similarly, within 7 days.
Honourable Mr. Justice Gary W. Tranmer
Released: November 7, 2016
CITATION: Galloway v. State Farm Mutual Automobile Insurance, 2016 ONSC 6843
COURT FILE NO.: CV-13-277-00
DATE: 2016 Nov 7
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRIS GALLOWAY Plaintiff
– and –
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant/Moving Party
DECISION ON MOTION FOR SUMMARY JUDGMENT
Tranmer J.
Released: November 7, 2016