Court File and Parties
COURT FILE NO.: 12-56112 DATE: 2017/04/13 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
TATIANA NEMCHIN Plaintiff – and – YVONNE GREEN Defendant
Counsel: Joseph Obagi and Adam Aldersley, for the Plaintiff Thomas Ozere and Kim Dullet, counsel for the Defendant
HEARD: March 31, 2017
RULING
Motion No. 6 Threshold – s. 267.5 of the Insurance Act
CORTHORN J.
Introduction
[1] The defendant brought this threshold motion following the conclusion of the evidence at trial and prior to the return of the jury with their verdict. The defendant seeks a declaration that the plaintiff has not suffered a permanent and serious impairment of an important physical, mental, or psychological function as a result of the motor vehicle collision in which she was involved on December 1, 2010 (the “collision’).
[2] In response to the motion the plaintiff argues that the credible evidence at trial fully supports a finding that the plaintiff’s injuries arising from the collision satisfy the threshold criteria. The plaintiff asks that the motion be dismissed.
[3] At the conclusion of the motion, I reserved my decision and advised that I would deliver written reasons. These reasons are being released subsequent to the return of the jury’s verdict.
Disposition
[4] For the reasons set out below, I find on a balance of probabilities that the plaintiff has, as a result of the collision, suffered a “permanent, serious impairment of an important physical, mental or psychological function”, within the meaning of section 267.5 of the [Insurance Act][2]. The defendant’s threshold motion is dismissed.
Preliminary Issue - Causation
[5] The defendant raised the issue of causation as a defence to the action and identified causation as a preliminary issue on the threshold motion.
The Positions of the Parties
a) The Defendant
[6] The defendant’s position is that applying the “but for” test [1] to this matter supports a finding that the post-traumatic stress disorder (“PTSD”) and major depression from which the plaintiff suffers were not caused by the collision. The defendant submits that if it is determined that the plaintiff does not satisfy the “but for” test, it is not necessary to carry out the threshold analysis.
[7] The defendant submits that the PTSD and major depression with which the plaintiff was diagnosed following the collision are caused by other factors. The defendant points to the following:
- The plaintiff was diagnosed with PTSD in the early 1990’s. The symptoms of PTSD from which the plaintiff suffered following the collision and from which she continues to suffer are the same as the chronic, pre-existing PTSD symptoms.
- The cause of the PTSD includes the assaults, of which the plaintiff was a victim, and other events from her teenage years.
- The plaintiff received EMDR, a known treatment for PTSD, in the 1990’s.
- The plaintiff applied to the Criminal Injuries Compensation Board in the late 1990’s. In doing so she referenced one of the assaults from her teenage years and symptoms which persisted to the date of her application.
- Other stressful events or situations were occurring in the plaintiff’s life in 2009, 2010 and early 2011. Those events and situations include:
- Work-related stress reported to the plaintiff’s family physician in 2009;
- Work-related stress in the plaintiff’s job at the National Capital Commission (“NCC”) as of the fall of 2010 and reported in hindsight following the collision; and
- Difficulty with an intimate encounter in January 2011 with the plaintiff’s fiancé.
- PTSD is a condition which ‘waxes and wanes’, as a result of which the re-emergence in late 2010 and early 2011 of symptoms of PTSD cannot be attributed to the collision alone, if at all.
[8] The defendant relies extensively on the opinions expressed by Dr. Richard Hershberg, the psychiatrist who conducted a defence medical examination in September 2014. His evidence is discussed in greater detail below.
b) The Plaintiff
[9] The plaintiff’s position is that Dr. Hershberg’s evidence is lacking in credibility and is not to be accepted. The plaintiff submits that the evidence of the three physicians who testified on behalf of the plaintiff is to be preferred over that of Dr. Hershberg. These physicians (a family physician and two psychiatrists) each expressed the opinion that the collision is the cause of the PTSD and major depression from which the plaintiff was diagnosed following the collision and the symptoms of which she continues to experience.
Analysis
a) Evidence of Dr. Hershberg
[10] In his report prepared following the defence medical examination, Dr. Hershberg did not include a diagnosis of the plaintiff’s injuries resulting from the collision. When giving evidence at trial, he acknowledged that it was an oversight on his part not to include a diagnosis in his report.
[11] Dr. Hershberg’s evidence at trial with respect to a diagnosis of and cause for the plaintiff’s condition was, in summary, as follows:
- He agreed with the diagnosis of PTSD. However, the collision is not the sole contributing factor to the PTSD. A number of other factors, including the pre-existing PTSD, contributed to the symptoms from which the plaintiff suffered following the collision.
- In the period following the collision, what had been believed to be dormant symptoms of PTSD re-emerged, including intrusive thoughts and flashbacks to the historical assaults.
- The symptoms which arose following the collision were an exacerbation of pre-existing PTSD. The exacerbation, to the extent it occurred because of the collision, was not permanent.
- Anxiety related to the motor vehicle collision emerged, including in-vehicle anxiety. However, this anxiety was short-lived and relatively minor. The anxiety resolved, given that the plaintiff was able to resume driving after the collision. The anxiety is neither serious nor disabling.
[12] The defendant asks the Court to accept the evidence of Dr. Hershberg and conclude that the collision is not the cause of the impairments.
[13] For a number of reasons I find that Dr. Hershberg was not a credible witness. I turn first to his substantive evidence with respect to his examination of the plaintiff, the conclusions he reached, and the opinions he expressed. What follows are but a couple of examples, from the substantive portion of Dr. Hershberg’s evidence with respect to the diagnosis of the plaintiff’s condition, that give rise to my findings on the issue of his credibility.
[14] First, in cross-examination, Dr. Hershberg was taken through five factors upon which he relied in support of his opinion with respect to (a) the cause of the PTSD and (b) the exacerbation of pre-existing PTSD. With respect to each of the five factors, Dr. Hershberg acknowledged one or more of the following:
- He had incomplete information, because he had not fully delved into the particular subject matter;
- His understanding of the facts was inaccurate; and
- The historical information demonstrates that the plaintiff was, prior to the collision, able to handle positions of responsibility.
[15] Second, although Dr. Hershberg acknowledged that the collision was sufficiently significant to be a factor in the exacerbation of the PTSD following the collision, he remained steadfast in his opinion that alternate causes of the exacerbation existed. He identified three alternative causes: 1) the historical assaults; 2) the plaintiff’s dissatisfaction with and uncertainty as to her job at the National Capital Commission (the “NCC”) at the time of the collision; and 3) the plaintiff’s relationship with her fiancé. On cross-examination, Dr. Hershberg admitted the following:
- There was no evidence of any ongoing symptoms of PTSD in the period from 2000 to 2010;
- The plaintiff never said that she was dissatisfied with her job at the NCC or that it was stressful for her that her contract with the NCC might be ending in March 2011.
- He did not have any evidence upon which he based his opinion that the plaintiff’s relationship with her fiancé contributed to the re-emergence of the PTSD.
[16] There are other aspects of Dr. Hershberg’s evidence which give rise to my finding that he was not a credible witness. In his single-page curriculum vitae, Dr. Hershberg identifies as his present status that of “Senior Psychiatrist, 30 years as Consultant to the Neuro-rehabilitation, Musculo-Skeletal, Respiratory Rehabilitation and Long-Term Care Units” at the West Park Hospital (“West Park”).
[17] That entry in Dr. Hershberg’s curriculum vitae leaves the reader with the impression that Dr. Hershberg remains an active member of the professional staff at West Park. When testifying on the voir dire with respect to his qualifications, Dr. Hershberg gave no evidence to detract from that impression. His evidence was, “I’m still on staff at West Park Hospital”. He did not qualify that statement in any way whatsoever.
[18] On cross-examination, it was drawn to Dr. Hershberg’s attention that the website for West Park does not identify him as a physician on staff. In response, Dr. Hershberg testified that he is identified as either a member of either the “consulting staff” or the “associate staff”. His evidence was that he is not a member of the active treating staff at West Park. He also testified that he attends at West Park only once every four to six weeks.
[19] On cross-examination, Dr. Hershberg’s attention was drawn to the fact that he did not have the correct name of the facility on his curriculum vitae. The facility is now called the West Park Health Care Centre. Dr. Hershberg gave no explanation as to why he did not use the correct name of the facility.
[20] I note that Dr. Hershberg’s curriculum vitae is dated December 2014. I infer from the date of the document that it was produced together with Dr. Hershberg’s first report in this action, which is dated December 2014.
[21] Dr. Hershberg testified that for the past five years or so, 80 to 90 per cent of his income has been generated from conducting defence medical examinations – for defendants in litigation or for insurers in responding to claims. He estimated that (a) as of 2014 he did 80 to 90 assessments per year and (b) in the five years leading up to the date of trial he had done 400 to 500 assessments in total. He charges $600 per hour for his services.
[22] In cross-examination, Dr. Hershberg acknowledged that his curriculum vitae does not portray the extent to which he has been doing assessments for the past five or more years.
[23] Dr. Hershberg’s experience in conducting assessments includes doing other types of assessments within the motor vehicle insurance system and the Workplace Safety and Insurance context. The majority of the information about Dr. Hershberg’s assessment work appears in his curriculum vitae under the heading “Ontario Insurance Commission” (the “Commission”). I find that the appearance created by the manner in which that work is described and included in the curriculum vitae is that the work is in some way done under the auspices of the Commission. In addition, the manner in which that work is described and is included in the curriculum vitae serve to downplay the prevalence in Dr. Hershberg’s work of the defence medical examinations and assessments for insurers.
[24] Based on Dr. Hershberg’s level of experience in conducting defence medical and other assessments, I draw the following inferences:
- He is aware that his qualifications are not likely to be tested on cross-examination unless and until the dispute proceeds to trial or to an arbitration;
- He knows that a copy of his curriculum vitae is provided with his reports when they are served on an opposing party and may be provided to the Court in the course of litigation, the latter including for the purpose of pre-trial conferences;
- He understands that the contents of his report are considered, at least in part, in light of his qualifications and experience as set out in his curriculum vitae;
- He is aware that the contents of his report may play a role in the settlement positions adopted by parties to a dispute; and
- He is aware that the contents of his report, including in the light of his experience as detailed in his curriculum vitae, may contribute to settlement recommendations made by judges and others presiding over pre-trial and other forms of settlement conferences.
[25] It is troubling to me that Dr. Hershberg, carrying out the type of work that he does and understanding the purpose served by his curriculum vitae and reports, is not more careful with respect to the accuracy of and the impression left by the information set out in his curriculum vitae.
[26] I am also concerned by the lack of attention to accuracy demonstrated by the manner in which Dr. Hershberg dealt with the mechanics of the collision – both when he interviewed the plaintiff and when giving evidence at trial. Dr. Hershberg testified that he made notes while interviewing the plaintiff. At the end of the day on which the examination was conducted he would, as was his practice, have dictated his report relying at least in part on his notes.
[27] Dr. Hershberg’s evidence was that the plaintiff told him that she saw the defendant’s vehicle as it was “beginning to drift” into the plaintiff’s lane of travel. Dr. Hershberg included that information in his December 2014 report under the heading “Accident Event”. In cross-examination, Dr. Hershberg acknowledged that he has nothing in his interview notes to the effect that the defendant’s vehicle “drifted” into the plaintiff’s lane of travel. He acknowledged that as a result either the report is or his notes are in error; he is unsure as to which of them is in error.
[28] Dr. Hershberg acknowledged that he did not seek clarification from the plaintiff and therefore he does not have all of the details as to how the collision occurred. Yet, he also acknowledged that it was important to have an understanding of the moments before the collision. Despite the importance of those moments, Dr. Hershberg did not ask the plaintiff how she felt in those moments.
[29] I find that Dr. Hershberg was cavalier in his approach to the requirement to be accurate with respect to his curriculum vitae, when obtaining information from the plaintiff during the examination, and in reporting as to the information he obtained from the plaintiff.
[30] For all of the reasons set out above, not only do I find that Dr. Hershberg lacked credibility as a witness, I find that he was not a reliable witness.
[31] Leaving aside the concerns with respect to credibility and reliability, there is the matter of the weight to be given to Dr. Hershberg’s evidence. I give Dr. Hershberg’s evidence much less weight than the evidence of the other psychiatrists who gave evidence at trial. He was for five years the Head of the Department of Geriatric Psychiatry at the Toronto East General Hospital. His area of practice was never focussed on PTSD. Dr. Hershberg acknowledged that he has not published generally or specifically on the subject of PTSD.
b) Evidence of Drs. Assemi, Roy, and Evans
[32] On the issue of causation, the plaintiff relies on the evidence of her family physician (Dr. Assemi), her treating psychiatrist (Dr. Roy), and the psychiatrist (Dr. Evans) who conducted an examination on behalf of the plaintiff’s long-term disability benefits (“LTD benefits”) insurer Sun Life.
[33] In reports they had prepared and/or when giving evidence, each of the doctors opined that the cause of the plaintiff’s PTSD symptoms and major depression in the weeks, months, and years following the collision was the December 1, 2010 collision. In cross-examination they were each presented with information about the collision or the plaintiff’s history that they did not have when they first (i.e. before trial) expressed the opinion that the collision caused the PTSD symptoms and major depression. The additional information did not cause any one of them to change their respective opinions. Each of the physicians identified in general terms that the additional information provided was consistent with their understanding of the plaintiff’s pre-collision medical history and the events of the collision itself.
[34] Dr. Assemi was the most familiar with the plaintiff, having been her family physician for approximately five years when the collision occurred. Dr. Assemi was cautious in his approach to a diagnosis following the collision. He assessed the plaintiff as suffering from acute stress immediately following the collision. Only with the passage of time and with the persistence of symptoms did Dr. Assemi diagnose the plaintiff as suffering from PTSD.
[35] Dr. Assemi appeared to be knowledgeable in addressing the PTSD once diagnosed. He referred the plaintiff to a trauma therapist and to a psychiatrist, the latter to address the possibility of treatment in the form of prescription medication. In making those referrals, Dr. Assemi covered what the psychiatrists who testified explained are the two forms of treatment typically considered for PTSD.
[36] Dr. Assemi had not previously given evidence in court. I found him to be a credible witness who, although defensive at times in cross-examination, in no way attempted to embellish the scope of his expertise. He presented as a thorough, concerned, and considerate family physician.
[37] I found Dr. Roy to be credible generally. However, I give his evidence less weight than that of Dr. Assemi. Although qualified as an expert in PTSD, Dr. Roy’s experience in that field dates only since 2013. The majority of his experience stems from his work with military veterans who suffer from PTSD. When testifying Dr. Roy used adjectives such as “very” or “very very” frequently, as a result of which much of his testimony came across as ‘in the extreme’. Adding to the extreme nature of Dr. Roy’s evidence were anecdotal examples that were almost entirely of horrific battlefield events. It is difficult to give Dr. Roy’s evidence context when dealing with the collision which, from a physical damage perspective, was a minor collision.
[38] I have no doubt that Dr. Roy is passionate and earnest in assisting patients, including the plaintiff, who suffers from PTSD. It was, however, difficult to balance some of Dr. Roy’s nuanced answers, in particular to questions posed in cross-examination, with the more animated and emphatic portions of his testimony. In summary, I do not find Dr. Roy lacking in credibility in the same manner as I do Dr. Hershberg. However, I place less weight on the evidence of Dr. Roy than I do on the evidence of Dr. Assemi.
[39] Dr. Evans saw the plaintiff on only one occasion. She was retained by the plaintiff’s long-term disability benefits insurer (“LTD insurer”) to assess the plaintiff and provide an opinion as to the plaintiff’s potential to return to gainful employment. On the basis of the opinions expressed by Dr. Evans, the LTD insurer continued to pay long-term disability benefits to the plaintiff.
[40] I found Dr. Evans to be a credible witness. She was both careful and forthright in answering questions on cross-examination. For example, she was not pressed into answering a question in the absence of all of the parameters required to permit her to express an opinion on the subject matter of the question. She had no reason to ‘advocate’ for the plaintiff and, in my view, she did not do so.
Summary - Causation
[41] I accept the evidence of Drs. Assemi, Evans, and Roy and find that “but for” the collision on December 1, 2010, the plaintiff would not have suffered the PTSD and major depression with which she was diagnosed and the symptoms of which she continues to suffer.
Threshold Motion
a) Statutory Framework
[42] Sections 267.5(3) and 267.5(5) of the [Insurance Act][2] require the plaintiff to prove, on a balance of probabilities, that she has sustained “a permanent, serious impairment of an important physical, mental or psychological function” in order to recover damages for health-care expenses and non-pecuniary general damages, respectively. [2] Definitions of “permanent”, “serious impairment”, and “important function” for the purposes of section 267.5 of the [Insurance Act][2] are prescribed by sections 4.1 and 4.2 of the [Ontario Regulation 381/03][legislation-2] (the “Regulation”).
[43] There are evidentiary requirements with respect to the threshold. Section 4.3 of the [Regulation][legislation-2] provides that a plaintiff is required to adduce the evidence of one or more physicians to explain the nature of the impairment, the permanence of the impairment, the specific function that is impaired, and the importance of the function to the plaintiff.
[44] Despite the changes to the legislation over time and the regulation which defines some of the terms in the legislation, the 1993 Ontario Court of Appeal decision in [Meyer v. Bright][case-2] continues to be the case which governs the test to be met on a threshold motion. [3] The three-part inquiry to be undertaken on a threshold motion is 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?
b) The Positions of the Parties
i) The Defendant
[45] The defendant’s position is that to the extent the plaintiff suffered any impairment in her function following the collision, the impairment is neither permanent nor serious. With respect to the definition of “permanent” set out in section 4.2(1)3 of the [Regulation][legislation-2], the defendant argues that (a) the impairment has not been “continuous” since the collision, and (b) the plaintiff failed to reasonably participate in recommended treatment.
[46] In support of the lack of continuous impairment, the defendant focused on the following with respect to the plaintiff’s function:
- In the fall of 2011, the plaintiff opened a yoga studio, which she continued to run, for a total of 34 months, until the summer of 2014.
- In a letter dated September 2012 (21 months following the date of the collision), Dr. Assemi expressed the opinion, to the plaintiff’s LTD insurer, that there were no medical barriers to the plaintiff returning to her pre-collision position with the NCC.
- For a number of months in 2016, the plaintiff worked the equivalent of full-time hours as the assistant to her yoga instructor.
- As of February 2016, when the plaintiff was discharged from the care of Dr. Roy, he was of the opinion that the plaintiff’s PTSD and major depression were both in partial remission.
[47] The defendant submits that the plaintiff did not reasonably participate in recommended treatment because she did not take prescription medication when it was first recommended – delaying for 4.5 years before trying medication as a form of treatment. In addition, when the plaintiff tried the medication she did not, in the face of gastrointestinal side effects and despite the availability of the process known as “compounding” to offset the side effects, persist with that type of treatment.
[48] Dealing with the definition of “serious” set out in section 4.2(1)1 of the [Regulation][legislation-2], the defendant highlights that at no time following the collision did the plaintiff inquire as to the potential to receive accommodation in the workplace from the NCC. The defendant places this failure to seek accommodation against the backdrop of the plaintiff’s family doctor expressing the opinion in September 2012 that there were no medical barriers to the plaintiff returning to her pre-collision position with the NCC.
[49] The defendant also relies on the fact that following the collision the plaintiff completed training as a life coach.
[50] With respect to the plaintiff’s activities of daily living (“ADL’s”), the defendant submits that there is minimal, if any, interference in the plaintiff’s ADL’s. The defendant highlights that the plaintiff continues to drive, travel extensively (including to India and to Central America), attend and organize yoga events and retreats, and work in a variety of different positions.
[51] In summary, the defendant submits that whatever impairment of function the plaintiff may have experienced subsequent to the collision, that impairment was neither permanent nor serious. As a result, the plaintiff has failed to satisfy the three-part test in [Meyer v. Bright][case-2].
ii) The Plaintiff
[52] The plaintiff submits that the defendant’s “check-off-the-box” approach to the threshold inquiry is to be rejected in favour of a “holistic” approach to the three-part test. In that regard the plaintiff relies on the unreported decision of Whitten J. in [Keam v. Caddey][case-6] [4] and the references therein to the decision in [Bos v. James][case-7] [5]. The plaintiff highlighted the following passage from [Bos][case-7], “A holistic approach was recommended in which what must be considered is the injured person as a whole and the effect which the bodily function involved has upon the person’s way of life in the broadest sense of that expression” [6].
[53] The plaintiff also emphasizes the subjective nature of the descriptor, “important” [7].
[54] The plaintiff submits that although she continues to try to work, maintain a social life, and carry out her personal activities of daily living, to the extent that she does so it is “night and day” when her pre-collision level of function is compared to her post-collision level of function.
[55] Responding specifically to the defendant’s position that the plaintiff’s ability to work is not impaired, the plaintiff relies on the following:
- It was the opinion of Dr. Evans, the psychiatrist who examined the plaintiff on behalf of her LTD insurer in the summer of 2016, that the plaintiff has been totally disabled from returning to her position at the NCC since January 31, 2012. [8] Dr. Evans also expressed the opinion that the plaintiff is unable to engage in any occupation commensurate with her education, training or experience. Lastly, Dr. Evans testified that in her opinion the plaintiff is capable of working in an “easy, part-time setting”.
- Dr. Assemi testified that over time he changed his opinion from that set out in his September 2012 report. He did so because the plaintiff’s condition did not progress and improve with the passage of time from 2012 forward. As of the date of trial, Dr. Assemi was of the opinion that the plaintiff is unable to return to work commensurate with her pre-collision job at the NCC and that she may not be able to return to work at all. To that end Dr. Assemi completed a form in early 2017 in support of the plaintiff’s claim for Quebec Pension Plan Disability Benefits.
- The plaintiff did not run the yoga studio by herself. She was assisted by a number of volunteers with respect to the administrative, promotional and physical aspects of running the studio. Teaching yoga classes gave the plaintiff a sense of calm.
- Dr. Roy expressed the opinion that there was an improvement in Tatiana’s condition both with respect to major depression and PTSD. Both conditions have ameliorated to some extent and are in partial remission. However, Dr. Roy’s prognosis for the plaintiff is guarded because (a) of the chronicity of the plaintiff’s symptoms and (b) the plaintiff was not tolerating medication well. Dr. Roy was not able to predict what things would be like for the plaintiff in the years immediately following her discharge from his care.
[56] With respect to the plaintiff’s decision to pursue cognitive therapy instead of persisting with prescription medication, the plaintiff’s position is that her decision in that regard was and remains reasonable in the opinion of both Drs. Assemi and Roy. In any event, there is no evidence upon which to base a finding that if the plaintiff were to take the medication her condition would improve to the point of eliminating most if not all of the impairments in her function.
b) Analysis
i) Nature of the Functional Impairment
[57] Sections 4.2(1)1 and 4.2(1)2 of the [Regulation][legislation-2] define the nature of the impairment required for threshold criteria to be met. The definitions of “impairment” and “important function” in combination address one or more of the injured person’s ability to:
a) Work, including taking into consideration the availability of accommodations in the workplace; b) Continue to train for a career, in a field in which the person was being trained prior to the collision, again taking into consideration the availability of accommodations in the training setting; c) Carry out his or her activities of daily living, including self-care and provision for well-being, taking into consideration the person’s age.
[58] I find that the work the plaintiff carried out following the collision does not in any way equate to her pre-collision position as the Co-ordinator of Sunday Bike Days and the Rideau Canal Skateway with the NCC. Both the yoga studio and the work for her yoga instructor gave the plaintiff flexibility in terms of the number of hours worked per week, when she worked, and the nature of the work done at any time.
[59] The evidence of the lay, expert, and participant witnesses supports a finding that despite this flexibility the plaintiff was unable to continue to function in either of those roles. The evidence also supports a finding that the plaintiff is and shall remain unable to return to regular and meaningful gainful employment other than on a part-time basis and with significant flexibility in her hours of work.
[60] In the context of a threshold motion, the trial judge is entitled to consider as a factor the jury’s verdict. The jury awarded the plaintiff the sum of $600,000 for loss of income. They did not provide the arithmetic calculation, if any, upon which that figure is based.
[61] As of the date of trial the plaintiff is 48 years old. Whether a retirement age of 65 or older is used, the figure of $600,000 represents a significant loss of income on an annual basis.
[62] I also find that the plaintiff’s social activities are impaired. As a result of the injuries sustained in the collision the plaintiff has significantly narrowed the scope of her social circle and the nature of her social activities. Whereas she once orchestrated and delighted in large social gatherings the plaintiff has, since the collision, shied away from them preferring quiet activities and solitude.
[63] In [Meyer v. Bright][case-2], the Court stated that analysis of what constitutes a serious impairment will vary amongst plaintiffs. The analysis will focus on the detrimental effect which the impairment has had upon the life of the particular plaintiff. As a result, there is a subjective component to the threshold analysis.
[64] The jury awarded the plaintiff the sum of $125,000 for general non-pecuniary damages. In addition they awarded $13,500 for the cost of immediate therapy (neuro-feedback therapy) and $30,000 towards the cost of future therapy.
[65] As already noted, the plaintiff’s PTSD and major depression have had a significant impact on her ability to work. In addition to the impact of the injuries on the plaintiff’s social life, as already noted, they have affected the quality of the plaintiff’s relationship with her partner, at the date of the collision, and now fiancé. Despite at one point considering separating, the couple remains together. The plaintiff’s fiancé testified and presented both as a strong support for the plaintiff and committed to the relationship for the long-term.
[66] In all of the circumstances, I find that the plaintiff has, as a result of the collision, suffered impairments of physical, mental or psychological function that are both “important” and “serious” within the meaning of section 267.5 of the [Insurance Act][2]. The final element of the threshold analysis – addressing the permanence of the functional impairment – remains to be considered.
ii) Permanence of the Impairment
[67] Section 4.2(1)3 of the [Regulation][legislation-2] states that for the impairment to be “permanent”, the impairment must:
i. have been continuous since the incident and must, based on the 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.
[68] “Permanent” does not mean strictly forever until death. [9] As noted by Firestone J. in [Jugmohan v. Royle][case-4], “[p]ermanent impairment means a weakened condition lasting into the indefinite future without any end or limit.” [10]
[69] The plaintiff’s symptoms and/or condition have persisted for more than six years despite the trauma therapy she has been receiving consistently in that period and despite the plaintiff’s altered lifestyle as it relates to work, travel, and social activities.
[70] Each of Drs. Assemi, Roy, and Evans expressed the opinion that their prognosis for the plaintiff is guarded. Dr. Evans and treating trauma therapist Lyn Williams-Keeler gave evidence as to the therapy the plaintiff requires and the potential benefits of it. In summary, their evidence was as follows:
- The plaintiff continues to require therapy to assist and support her in leading a good quality of life;
- If the plaintiff does not continue with therapy, there is the potential for her condition to deteriorate;
- Without therapy there is little, if any, prospect that the plaintiff will get better and, in that event, the PTSD will remain chronic and debilitating with respect to employment;
- Even with the pursuit of therapy, it is unlikely that the plaintiff will be able to return to gainful employment; and
- The plaintiff requires therapy for an indefinite period. The duration of therapy depends on how the plaintiff responds to the therapy she receives.
[71] In all of the circumstances, I find that the functional impairments sustained by the plaintiff satisfy the definition of “permanent”.
c) Summary – Threshold Criteria
[72] I find that the plaintiff has suffered a “permanent, serious impairment of an important physical, mental or psychological function” within the meaning of section 267.5 of the [Insurance Act][2].
Order
[73] For the reasons set out above, the defendant’s motion for a declaration that the plaintiff has not, as a result of the December 1, 2010 collision, suffered a permanent, serious impairment of an important physical, mental or psychological function within the meaning of section 267.5 of the [Insurance Act][2] is dismissed.
Madam Justice Sylvia Corthorn Released: April 13, 2017