CITATION: Pupo v. Venditti, 2017 ONSC 1519
COURT FILE NO.: 4795/12
DATE: 2017-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Deano J. Pupo, Plaintiff
- and -
Samantha Venditti and Karen Venditti, Defendants
Counsel: Christopher A. Richard, for the Plaintiff Gary R. McCelland, for the Defendants
HEARD: March 3, 2017
BEFORE: The Honourable Justice D. L. Edwards
DECISION ON THRESHOLD MOTION
[1] The plaintiff, Dean Pupo, brings this action for damages arising from a motor vehicle collision that occurred on May 12, 2010. On March 2, 2017, the jury returned its verdict and awarded $150,000 for general damages and zero for past and future housekeeping.
[2] After the jury delivered its verdict the defence counsel brought a threshold motion for a declaration that the plaintiff’s claim for non-pecuniary loss is barred on the basis that his injuries do not fall within the exceptions to the statutory immunity contained in s.267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 (“the Act”) and the applicable regulations.
The Applicable Legislation and Regulations
[3] Section 267.5 of the Act applies to motor vehicle collisions on or after October 1, 2003.
[4] Section 267.5(5)(a) and (b) of the Act provide that the owner of an automobile is not liable in an action for non-pecuniary loss unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”
[5] Effective October 1, 2003, O. Reg. 381/03 amended O. Reg 461/96.
[6] O. Reg. 381/03 added new section numbers 4.1, 4.2 and 4.3 to O. Reg. 461/96. These sections help define the meaning of the wording contained in s.267.5(b) of the Act, namely “permanent serious impairment of an important physical, mental or psychological function,” and confirm the evidence which must be adduced to prove that the statutory exception or “threshold” has been met.
[7] Section 4.1 of O. Reg. 461/96 states that “[f]or the purposes of section 265 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.”
[8] Prior case law is of assistance in determining what constitutes permanent, serious, continuous injuries: See Sherman v. Guckelsberger, [2008] O.J. No. 5322 at 142, Nissan v. McNamee 2008 ONSC 20345, [2008] O.J. No. 1739, (2008), 62 C.C.L.I (4th) 135 (S.C.) at para. 37.
[9] In Meyer v. Bright (1993) 15 O.R. (3d) 12 (C.A.), the Court of Appeal outlined the three-part inquiry to be undertaken in the threshold analysis as follows:
Has the injured person sustained permanent impairment of a physical, mental or psychological function?
If yes, is the function which is permanently impaired important?
If yes, is the impairment of the important function serious?
[10] Under s. 4.2(1)3 of O. Reg. 461/96, for the impairment to be “permanent”, 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.
All of these components must be satisfied: Sherman, at paras. 142 and 146.
[11] The word “permanent” does not mean forever, but it does require that the impairment last into the indefinite future as compared to a predicted recovery period with an end date : See Bos v. James (1995), 1995 ONSC 7162, 22 O.R. (3d) 424 (Ont. Gen. Div.), p. 169 and 170, Skinner v. Goulet, [1999] O.J. No. 3209 (S.C.), at para. 33; Brak v. Walsh, 2008 ONCA 221, 90 O.R. (3d) 34, at para. 4.
[12] Under s. 4.2(1)2 of O. Reg. 461/96, 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,
ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account the reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
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.
[13] In Ahmed v. Challenger, [2000] O.J. No. 4188 (S.J.), at para. 18 the court refers to Meyer and emphasized the necessity of distinguishing between functions which are important to the injured person and those that are not.
[14] The test of whether the impaired function is “important” is a qualitative test: Page v. Primeau, 2005 ONSC 40371 at para. 32.
[15] Under s. 4.2(1)1 of O. Reg. 461/96, to be “serious” the impairment must:
i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite recent efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, 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 his or her training, or
iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.
[16] The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself: Meyer, paras. 28-36; Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.), at para 56.
[17] Regarding the degree of impairment in the plaintiff’s daily life which is necessary in order to be serious, it must go beyond tolerable: Frankfurter v. Gibbons (2004), 2004 ONSCDC 45880, 74 O.R. (3d) 39 (Div. Ct.), at paras. 22-24.
[18] It is “the effect of the injury” on the person and not the “type of injury” or labels attached to it which should be the focus of the threshold analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the way the plaintiff has been impacted. The threshold determination is to be done on a case by case basis: Meyer v. Bright supra, at para 12.
[19] The onus of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests with the plaintiff: Page v. Primeau.
[20] The trial judge is not bound by the jury verdict: DeBruge v. Diana Arnold, 2014 ONSC 7044. The verdict is, however, one factor the judge may consider, but is not bound to consider in coming to the ultimate conclusion on the threshold motion: Kasap v. MacCallum, 2001 ONCA 7964, [2001] O.J. No. 1719 . It will only be the exception case whether the judge should decide the threshold motion contrary to the jury’s verdict: G.W. v. Rawlins, 2016 ONAC 705 at para 14.
The Facts
[21] At the time of the motor vehicle collision, Mr. Pupo had been working for 2 years as a meat cutter at Pupo’s Food Market, a store where his father worked and was an approximately 1/3 owner.
[22] Immediately following the collision Mr. Pupo complained of pain in his neck, which generated headaches, as well as pain in his left shoulder. He has received medication for those issues from the time of the accident until the present. He has periodically received physiotherapy and massage therapy as well. He continues to have this pain.
[23] Shortly after the accident, Mr. Pupo had a relapse and began to take illegal drugs again. Within four weeks of the accident he went to a homeless shelter, and then about 5 months later he entered a residential rehab centre. He remained in the program for one year, followed by an internship in that residential program for 6 months. He then completed 3 years of college and part of a year of university before returning to Niagara to work once again at the family business, Pupo’s Food Market.
[24] When he returned to Pupo’s in 2015 his father created a new job for him because the plaintiff was unable to resume his meat cutting job. Because of the pain in his neck and shoulder, and his shoulder instability, Mr. Pupo was unable to lift the meat carcasses. His new role involves rolling out a cart containing small meat packages of between 5 and 6 pounds. He then places the meat into the meat counter displays. This job was called a minimum wage job by the witnesses.
[25] Since 2015 Mr. Pupo has worked a split shift. He comes into work in the morning, and then after a few hours he goes home to lie down for a few hours. After this break, he returns to work for the balance of his shift.
Analysis
[26] I must answer three main questions:
a. Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?
b. If yes, is the function which is permanently impaired an important one?
c. If yes, is the impairment of the important function serious?
Question#1: Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?
[27] Mr. Pupo did not have any pre-existing injuries to the parts of the body that he injured in the motor vehicle collision.
[28] He testified about the type of pain that he has experienced on a daily basis since the accident, and how this limits him daily. His sister and father testified about the pain that they observed Mr. Pupo to be in.
[29] Mr. Pupo, his sister and father all testified how the pain limited his functioning in life. He could not lift heavy objects. He was tired; required frequent rests. His life was considerably different compared to pre-accident.
[30] The medical witnesses agreed that Mr. Pupo suffered from a soft tissue injury. Dr. Kouros, his family physician, and Dr. Theodoropoulos, who was qualified to give expert evidence with respect to orthopedic injuries and sports medicine, both testified regarding the chronic pain that Mr. Pupo endured. Dr. Theodoropoulos also said that it was unlikely that Mr. Pupo’s pain would end.
[31] The defence counsel notes that the jury did not grant anything to the plaintiff for past or future housekeeping, notwithstanding the plaintiff’s testimony that he had required this assistance, and continues to require it because of his impairment. This, in his view, implies that the jury concluded that Mr. Pupo’s impairment had ended.
[32] I am unable to clearly determine what the jury intended by its decision, and therefore decline to rely upon it in analyzing whether the impairment was permanent.
[33] I accept that Mr. Pupo is in daily pain from which there is no likely recovery period, and that it substantially interferes with most of his usual activities of daily living.
[34] I am satisfied that the plaintiff satisfied the evidentiary requirements of s.4.3 of O. Reg. 461/96.
[35] I am also satisfied that, without considering the meaning of accommodation, his impairment substantially interferes with his ability to continue his regular or usual employment. Later, I will address accommodation with respect to his employment.
Question #2: Is the function which is permanently impaired an important one?
[36] There are two distinct aspects to Mr. Pupo’s impairment.
[37] The pain that he endures has an overall limiting impact upon his life. He experiences daily headaches, as well as the pain. This tires him out, limiting his endurance and his interest in engaging in life.
[38] The second aspect of his impairment is that, because of his shoulder pain and instability, he is unable to lift heavy objects or to lift repetitively. As a former meat cutter and a former weight lifter, this limitation is an important one in Mr. Pupo’s life.
[39] Both aspects of his impairment affect how he functions in his daily life. He is less engaged in life as he is in pain and tired. Weight lifting was an aspect of his daily life. His goal of strengthening his body was something he pursed, but he is unable to do so because of his impairment.
[40] I find that the function which is impaired is an important one for the usual activities of daily life for someone who is Mr. Pupo’s age.
[41] Also, both aspects of his impairment prevent him from doing essential tasks of his regular or usual employment. He cannot lift the heavy carcasses of meat and cannot repetitively lift the meat.
[42] Later, I will address accommodation with respect to his employment.
Question #3: Is the impairment of the important function serious?
[43] In Lento v. Castaldo the court held that in determining whether an impairment of an important function is a serious impairment, the court must consider whether the function is serious to the injured person in question:
…generally speaking, a serious impairment is one which causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment. (1993), 1993 ONCA 3389, 15 O.R. (3d) 129 Ont. C.A.)
[44] Prior to the accident, Mr. Pupo had no pain issues; after the accident, he had debilitating pain. Since the accident, he has required rest periods throughout the day to help alleviate the pain. He required rest periods while at the homeless shelter which he entered within a month of the accident. He continued that pattern at the residential rehab centre where he resided for one year. He said that he required those breaks while he was at school for approximately three years after he left the rehab centre. Since returning to work in 2015, he splits his work shift up so that he can go home to rest.
[45] He no longer carries on his pre-accident recreational activities.
[46] This has resulted in a substantial interference with his ability to perform his usual daily activities.
[47] On that basis, I find that the impairment of the important function is serious.
[48] I find that the plaintiff has proven that he suffers from a permanent impairment of an important function that is serious as it relates to the usual activities of daily living.
Regular or Usual Employment and Accommodation
[49] Counsel for the plaintiff also submits that Mr. Pupo has a permanent impairment of an important function that is serious as it relates to his regular or usual employment.
[50] Defence counsel disagrees and submits that Mr. Pupo has been accommodated by his employer, and his usual or regular employment has continued: He continues to work at Pupo’s; his duties have been altered to accommodate his physical inability to lift and cut meat.
[51] The plaintiff’s counsel asserts that, although Mr. Pupo continues to be employed at Pupo’s, his employment has changed qualitatively; he no longer is a meat cutter. Instead, he has a minimum wage job. In that sense, he is not engaged in his usual or regular employment. Counsel submits that he cannot be accommodated in a manner that allows him to continue to be a meat cutter.
[52] After considering the issue of accommodation, I am satisfied that, for the purposes of s.4.2, accommodation means accommodation made to allow the injured employee to continue with his occupation on a modified basis, and not accommodation to the extent that the employee is in fact performing a job of an entirely different profession, albeit with the same employer.
[53] Take the example of an electrician who works in a large automotive factory, and who is injured in a motor vehicle accident. As a result, he becomes colour blind and is unable to continue working as an electrician. The factory is a large one and there are other job opportunities with that employer. The employer allows the employee to become an assembly line worker. Even though his contract of employment remains with the same employer, the employee would no longer be carrying on or engaged in his regular or usual employment of an electrician for the purposes of s.4.2.
[54] In Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, 2016 CarwellOnt 8792, Justice Firestone states at paras. 84 and 85:
The evidentiary record confirms that the injuries and impairments have had and will continue to have, to some degree, a negative effect on the plaintiff’s ability to work post-accident as well as on her early potential in the future. This is reflected in the jury’s award for past loss of income and loss of competitive advantage. However, having regard to the requirements of s. 4.2(1), the evidence does not support the conclusion that the plaintiff’s impairments have substantially interfered with her ability to continue regular or usual employment on a full-time basis.
In addition s.4.2(1), as it relates to employment, requires a plaintiff to make efforts to use accommodation. An employer can only provide accommodation if efforts to request accommodation are made by the plaintiff. In this case the employers were not call to get evidence regarding any and all requests for accommodations made by the plaintiff; whether the employer provided accommodation; and whether reasonable efforts were made by the plaintiff to use the accommodation provided. Evidence of such accommodation efforts on the part of the plaintiff and employer are in specific requirements under the regulation.
[55] In the instant case, Mr. Pupo’s father testified about the plaintiff’s employment. He said that prior to the accident the plaintiff was a full meat cutter. He testified that since the accident, the plaintiff is unable to carry out the essential tasks of a meat cutter.
[56] The plaintiff’s father also stated that it was not possible to accommodate the plaintiff to allow him to continue as a meat cutter. Meat cutting is an occupation that requires the person to lift heavy slabs of meat on a repetitive basis. He stated that since 2015, he has observed his son trying to lift and cut heavy pieces of meat, unsuccessfully as he was in pain.
[57] Mr. Redican, who is a meat cutter at Pupo’s, estimated that as a meat cutter he lifts between 2000 to 5000 pounds of meat daily. He testified that prior to the accident the plaintiff was an excellent meat cutter, and since the plaintiff’s return in 2015, the plaintiff was unable to perform those duties. He said that since 2015 he had observed the plaintiff unsuccessfully attempt to cut meat.
[58] The plaintiff testified that he was unable to perform the essential tasks of a meat cutter. He could not lift the heavy meat carcasses, and he could not hold them on the table in the manner required to cut them on the band saw. Even the constant requirement to have the neck bent looking down at the meat caused him increased pain.
[59] Mr. Pupo has returned to work at Pupo’s, but in an entirely different capacity. I find that because of his impairment, he no longer is a meat cutter. He is no longer carrying on, or engaged in, his usual or regular employment of a meat cutter.
[60] I find that the plaintiff has proven that he has a permanent impairment of an important function, and which is serious as it relates to his ability to continue his regular or usual employment.
Summary
[61] For the foregoing reasons, the defence motion is dismissed.
[62] If the parties cannot agree upon costs of the action and this motion, the plaintiff shall provide written cost submissions within 21 days; the defendants’ submissions within 14 days and the plaintiff’s reply, if any, within 5 days. Cost submissions shall be limited to 3 pages.
D. L. Edwards J.
Released: March 6, 2017
CITATION: Pupo v. Venditti, 2017 ONSC 1519
COURT FILE NO.: 4795/12
DATE: 2017-03-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Deano J. Pupo, Plaintiff
- and –
Samantha Venditti and Karen Venditti, Defendants
DECISION ON THRESHOLD MOTION
D.L. Edwards J.
Released: March 6, 2017