CITATION: Parmar v. Beach, 2017 ONSC 7810
COURT FILE NO.: 83415/13
DATE: 20170109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMARJIT PARMAR
Plaintiff
– and –
JOSHUA BEACH
- and -
JOANNE BEACH
Defendants
D. SCHELL,
M. BENZAQUEN
For the Plaintiff
S. SANDHU,
S. REISLER
For the Defendants
HEARD: December 8, 2016
s.J. WoODLEY
reasons for decision re threshold motion
[1] The plaintiff brought an action before a jury for damages for injuries sustained in a motor vehicle accident that occurred on May 4, 2011. Following delivery of the jury’s verdict, this threshold motion was brought pursuant to the Insurance Act, R.S.O. 1990, c. I.8 and Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, SOR/461-96 (O. Reg. 461/96).
[2] This motion will determine whether the plaintiff is entitled to damages notwithstanding the jury’s verdict since relevant provisions of the Insurance Act and O. Reg. 461/96 provide that before the plaintiff can receive an award for general damages and health care expenses, she must prove that she meets the “threshold” as defined in ss. 267.5(3) and (5) of the Insurance Act and corresponding sections of O. Reg. 461/96. In particular, s. 267.5(15) of the Insurance Act reads:
[T]he trial judge shall determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has... sustained
(b) Permanent serious impairment of an important physical, mental or psychological function.
[3] The motion was heard following receipt of the jury’s verdict as per Kasap v. MacCallum (2001), 2001 7964 (ON CA), 144 O.A.C. 369 (C.A.) wherein the Court of Appeal held that that the jury’s verdict is a factor that a trial judge may consider with respect to the threshold motion. On that basis, the verdict of the jury formed part of my independent determination of whether the threshold has been met in the circumstances of this case. The jury delivered their verdict on December 8, 2016 in the form of answers to the following questions:
Question 1: Did the plaintiff sustain any injuries in the motor vehicle accident of May 4, 2011?
Answer: Yes.
Question 2: If the answer to Question 1 is Yes, at what amount, if any, do you assess the damages of the plaintiff caused by the injuries sustained in the motor vehicle accident of May 4, 2011?
Question 2(a): General damages – pain and suffering and loss of enjoyment of life?
Answer: $10,000.00
Question 2(b): Past loss of income – from January 1, 2016 to date?
Answer: $0
Question 2(c): Future loss of income – from the date of trial to June 30, 2019 and pension reduction from June 30, 2019 to June 30, 2031?
Answer: $0
Question 2(d): Past medical and rehabilitation expenses to date?
Answer: $7,133.13
Question 2(e): Future medical and rehabilitation expenses – from the date of trial to June 30, 2031?
Answer: $30,000.00.
[4] Following delivery of the above verdict, the defendants sought a ruling that the plaintiff had not satisfied the threshold and was therefore not entitled to receipt of any amount for damages or health care expenses. In support of the motion, counsel for the defendants filed a Statement of Law and Book of Authorities. Counsel for the plaintiff accepted this Statement of Law as accurate (as did the court), and as a result, much of it has been reproduced here.
Relevant Statutory Provisions
Prohibition of Claim for Health Care Expenses
[5] Section 267.5(3) of the Insurance Act states:
Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
Prohibition of Claim for Non-Pecuniary Damages
[6] Section 267.5(5) of the Insurance Act states:
Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,
a) permanent serious disfigurement; or
b) permanent serious impairment of an important physical, mental or psychological function.
Statutory Definition of Permanent Serious Impairment
[7] Sections 4.1 and 4.2 of O. Reg. 461/96 provide the following definition of permanent serious impairment of an important physical, mental or psychological function:
4.1 For the purposes of section 267.5 of the [Insurance] 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.
4.2(1) A person suffers from a permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- The impairment must be,
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,
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 career training, or
iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.
- 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 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.
- 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,
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.
The Applicable Law
[8] In assessing whether an impairment meets the statutory requirements, courts have adopted and applied the three-pronged test established in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.). As noted by Jennings J. in Ahmed v. Challenger [2000] O.J. No. 4188 (Sup. Ct.), the correct approach in an assessment of this nature is to sequentially answer the following questions:
Has the injured person sustained permanent impairment of a physical, mental or psychological function?
If yes, is the function which is permanently impaired an important one?
If yes, is the impairment of the important function serious?
[9] It is clear from Leach J.’s decision in Mayer v. 1474479 Ontario Inc., 2013 ONSC 6806, 27 C.C.L.I. (5th) 147 that while each of the three criteria set out in s. 4.2(1) of O. Reg. 461/96 must be satisfied, the sub-components of the first two criteria are disjunctive. The first two criteria will be satisfied if any of the sub-components indicated therein are true. However, the third criterion demands satisfaction of all its indicated sub-components for the impairment to be deemed permanent.
[10] Leach J. provides a noteworthy summary of the law in Mayer v. 1474479 Ontario Inc. At para. 18, he offers the following commentary on the first criterion which is substantial interference:
a. Generally speaking, a serious impairment is one which causes substantial interference with the ability of the injured person in question, (and not some other objectively discernible “reasonable person”), to perform his or her usual daily activities or to continue his or her regular employment. See Meyer v. Bright, supra, at pp.10-11, and Lemire v. Roztek Ltd., [1997] O.J. No. 2307 (Gen.Div.), at paragraph 110.
b. A claimant must do more than simply experience ongoing pain or discomfort to bring herself within the statutory exceptions permitting litigation. It is apparent that the Legislature intended injured persons to bear some interference with their enjoyment of life without being able to sue for it, and only a “serious” impairment will qualify. Tolerable symptoms that still permit a claimant to function well do not bring a claimant within the statutory exceptions. However, symptoms that go beyond the tolerable and significantly impair a plaintiff’s enjoyment of life will be sufficiently serious. A court must look at the totality of evidence, whether medical or lay, to assess and determine whether the interference with the plaintiff’s life is substantial. A person who can carry on daily activities, but is subject to permanent symptoms that have a significant effect on his or her enjoyment of life, (e.g., because of sleep disorder, headaches, dizziness and nausea), must be considered as having sustained a serious impairment, in the sense required. See, for example: Meyer v. Bright, supra, at p.19; May v. Casola, [1998] O.J. No. 2475 (C.A.); Hartwick v. Simswer, [2004] O.J. No. 4315 (S.C.J.); Frankfurter v. Gibbons, 2004 45880 (ON SCDC), [2004] O.J. No. 4969 (Div.Ct.); Pinchera v. Langille, [2005] O.J. No. 521 (S.C.J.), aff’d [2006] O.J. No. 3948 (C.A.); and Vancsody v. Wrightman, [2012] O.J. No. 6517 (S.C.J.).
c. A change in job function or efficiency is sufficient to constitute a substantial interference with the ability of an injured person to continue his or her employment. Similarly, frustration of an injured person’s chosen career path generally should be considered a serious matter. See, for example: Patterson v. Sindall, [1999] O.J. No. 3992 (C.A.), at paragraphs 13-16; and Guerrero v. Fukuda, [2008] O.J. No. 3799 (S.C.J.), at paragraph 19, aff’d [2010] O.J. No. 2903 (C.A.).
d. Activities of “daily living” to be considered in this context are wide-ranging, and include not only employment activities and household responsibilities, but also the ability to socialize with others, have intimate relations enjoy one’s children, and engage in recreational pursuits. See Brak v. Walsh (2008), 2008 ONCA 221, 90 O.R. (3d) 34 (C.A.).
[11] At para. 19, Leach J. noted the following in relation to the second criterion – importance of function:
a. Not every function that is impaired is important. The Court must consider whether the bodily function is important to the injured person in question. See Meyer v. Bright, supra, at p.8.
b. The court must consider the effect the relevant bodily function has upon the plaintiff’s way of life in the broadest possible sense. See Nissan v. McNamee, 2008 20345 (ON SC), [2008] O.J. No. 1739 (S.C.J.).
[12] In relation to the third criterion which is permanence, Leach J. noted at para. 20:
a. The term “permanent” does not necessarily mean strictly forever until death. Rather, it means “lasting or intending to last or function indefinitely as opposed to temporarily”, or “lasting or meant to last only for a limited time”. It therefore “bears the sense of a weakened condition lasting into the indefinite future without any end limit, as opposed to one predicted to have some defined end”. For example, see Bos Estate v. James, 1995 7162 (ON SC), [1995] O.J. No. 598 (Gen.Div.), Altomonte v. Matthews, [2001] O.J. No. 5756 (S.C.), and Brak v. Walsh, supra.
b. Permanence of injury also is established where a limitation in function is unlikely to improve for the indefinite future. See Hartwick v. Simswer, supra, Rizzo v. Johnson (2006), 2006 34452 (ON SC), 82 O.R. (3d) 633 (S.C.J.), and Brak v. Walsh, supra.
c. Although there may be situations where the permanent nature of the impairment is readily apparent, (e.g., complete loss of a limb or eye), other cases demand appropriate evidence that a condition will continue into the indefinite future. Mere passage of time, without evidentiary criteria to gauge or assess its significance, (e.g., a medical perspective regarding the injuries sustained and expectations of recovery in the normal course of events), is insufficient to establish a substantial possibility that the impairments are permanent. The question of whether or not an impairment is permanent should be determined on the basis of objective medical evidence. See Seguin v. Vandinther, [2002] O.J. No. 3719 (S.C.J.), at paragraphs 41 and 43.
[13] Though the “existence of injury and impairment, and causation of such injury by the relevant accident” are not listed as criteria for meeting the statutory threshold, Leach J. describes them in para. 21 as “additional pre-conditions” under the Insurance Act. He elaborates on judicial interpretation of these “pre-conditions” in para. 22:
a. As indicated in the primary legislative provisions set forth above, the threshold exceptions for litigation created by s.267(3) and s.267.5(5) of the Insurance Act, supra, are entirely dependent on the existence of an injury and associated impairment, the qualities and impact of which then are examined to determine whether or not the threshold has been met. Both the existence and extent of an alleged injury and associated impairment therefore necessarily form a fundamental component of what a plaintiff must establish to demonstrate satisfaction of the litigation threshold.
b. The presence of “objective findings” may make it easier to establish injury and impairment in the sense required, but the existence of such findings is not necessary. The reality is that some injuries can be diagnosed based on objective findings, while others must be based on a patient’s subjective complaints. The “threshold” legislation does not change the process by which courts traditionally have weighed and assessed evidence to make determinations about the existence, nature and extent of injury. See Meyer v. Bright, supra, and Chrappa v. Ohm, [1996] O.J. No. 1663 (S.C.J.).
c. The Supreme Court of Canada has recognized the reality of chronic pain and related medical conditions, but simultaneously has acknowledged that, by definition, the existence of chronic pain is not supported by objective findings at the site of an injury, (at least under current medical techniques), such that those suffering from chronic pain often are subjected to persistent suspicions of malingering; see Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, [2003] 2 S.C.R. 504. In the context of “threshold” determinations, where the existence and extent of injury and associated impairment are therefore highly dependent on subjective reports of chronic pain, (on which treating physicians and others rely), credibility of the claimant often assumes paramount importance. See, for example, Murcell v. Leclair, [2009] O.J. No. 4809 (S.C.J.), Smith v. Declute, [2012] O.J. No. 2644 (S.C.J.), and Jennings v. Latendresse, [2012] O.J. No. 5892 (S.C.J.).
[14] Lastly, Leach J. offers some insight on how causation is treated in the context of a threshold analysis at para. 23:
a. As also indicated in the legislative provisions set forth above, the threshold exceptions for litigation created by s.267.5(3) and 267.5(5) of the Insurance Act, supra, each effectively incorporates a causation requirement. In particular, the exceptions do not apply unless the specified impairments exist or occur “as a result of the use or operation of the automobile”. Demonstration of causation therefore is included in the elements a plaintiff must establish to satisfy the threshold for litigation.
b. The plaintiff’s burden in that regard is reinforced by the provisions of s. 4.3(1)(4) of O.Reg 461/96, which provides that the evidence of a physician shall be adduced in support of any claim that the threshold has been satisfied, and must include a conclusion that the impairment was directly or indirectly sustained as the result of the use or operation of an automobile.
c. Causation in the context of “threshold” determinations should be determined by application of the same legal principles outlined by the Supreme Court of Canada for resolution of causation issues generally; see Bisier v. Thorimbert, 2006 33773 (ON SC), [2006] O.J. No. 4026 (S.C.J.). This would include the Supreme Court’s relatively recent pronouncements and clarifications in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.
d. In the context of “threshold” determinations, adequate proof of causation also may turn significantly on the credibility and reliability of a claimant; e.g., where the claimant provides a subjective account alleging that his or her symptoms were brought about by the underlying accident and not by some other stressful event. See, for example, Tassone-Legace v. Vavala, [2002] O.J. No. 2220 (S.C.J.).
Evidence that must be adduced
[15] The burden of proof rests with the injured person to establish that, on a balance of probabilities, her claims satisfy the threshold. Where the plaintiff fails to discharge the onus of bringing her alleged impairment within the statutory exception, her action for general damages and health care expenses must be dismissed: Meyer v. Bright, at pp. 27-28.
[16] Section 4.3(2) of O. Reg. 461/96 holds that for a plaintiff to prove that her impairment meets the threshold, she must adduce evidence of one or more physicians to explain:
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person.
[17] Moreover, ss. 4.3(3) and (4) of O. Reg. 461/96 state that the evidence of the plaintiff’s physician(s) shall:
(a) be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged;
(b) be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine; and
(c) include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.
[18] Finally, s. 4.3(5) of O. Reg. 461/96 requires the plaintiff to adduce corroborating evidence.
[19] Although the threshold is the primary issue, the analysis must also consider whether the plaintiff has, on a balance of probabilities, proven that her alleged injuries and impairment were caused by the motor vehicle accident in question: Dinham v. Brejkaln (2005), 2005 46749 (ON SC), 33 C.C.L.I. (4th) 263, at para. 20 and Saleh v. Nebel, 2015 ONSC 747, at para. 6.
[20] Finally, where a plaintiff’s complaints are subjective in nature, credibility is of primary importance in assessing the threshold: Djermanovic v. McKenzie, 2014 ONSC 1335, 32 C.C.L.I. (5th) 96, at para. 40.
Application of the Law to the Facts
[21] Upon application of the legal principles expressed in s. 267(15) of the Insurance Act and its corresponding regulations, I am satisfied on the evidence heard during this trial that the plaintiff, Amarjit Parmar, sustained a permanent serious impairment of an important physical, mental or psychological function due to the May 4, 2011 accident. The following supports this conclusion:
(a) The evidence of the plaintiff, Ms. Parmar, who testified that she was involved in an automobile accident on May 4, 2011 when she was 62 years old.
i. At the date of the accident the plaintiff was principal of Westway Junior School where she had worked since September 1, 2009. Ms. Parmar testified that she was an active principal, one who mentored teachers, engaged parents, and interacted with students during and after school hours. The plaintiff further testified that though her hours were long she was always eager to go to school. Prior to the accident she arrived at school between 7:30-8:00 a.m. and left after 6:00 p.m. Ms. Parmar testified that the manner in which she performed her duties as principal changed dramatically after the May 4, 2011 accident. For example, she was no longer able to participate in physical activities with the children as her pain required her to sit for long periods of time. She said these changes caused a noticeable spike in her stress levels. This testimony was supported by two teachers, Ms. Zogala and Ms. Schilling, who worked for Ms. Parmar before and after the accident.
ii. The plaintiff testified that she intended to work for as long as possible and at least until age 70. However, she testified that due to radiating pain caused by the injuries suffered in the May 4, 2011 accident she retired earlier than planned. Three of the plaintiff’s doctors, being Dr. Carlos Yu, Dr. Joseph Wong and Dr. Thomas John, supported the plaintiff’s testimony that her December 31, 2015 retirement was due to the injuries suffered in the May 4, 2011 accident. No one, however, provided any corroboration of her plan to retire at age 70 and the plaintiff’s own evidence in this regard was vague.
iii. Prior to the May 4, 2011 accident the plaintiff testified that she was very healthy and had no complaints outside of the usual aches and pains and minor ailments. She did most of the household work including cleaning, cooking and gardening. She visited family members regularly, played with her grandkids, and even cooked for school events. She hosted parties for friends and family, and also travelled extensively. The plaintiff claimed that after the accident she ceased all the above physical activities and spent most of her time attempting to convalesce. This evidence was corroborated by the plaintiff’s daughters, Surita and Karan and her co-workers, Ms. Zogola and Ms. Schilling.
iv. The plaintiff testified that she had been in car accidents in 1991, 2001 and 2008. However, any resulting injuries were minor in nature and/or resolved by May 4, 2011. Dr. Yu’s medical records corroborated this information.
v. As for the May 4, 2011 accident, the plaintiff testified that she was rear ended and felt a large jolt. Although she felt no pain initially (just panic and anxiousness) within a few hours she was nauseous and had sharp pains in her neck and shoulder on her right side. Her husband took her to a walk-in clinic where she was seen by Dr. D.S. Lee whose notes state: “severe head ache pain in neck and shoulders – Tylenol 3 and follow up with Dr. Yu”.
vi. Liability for the accident was admitted by the defendant driver.
vii. Following the May 4, 2011 accident, the plaintiff said her head and neck pain were constant but varied depending on time of day and activity. Due to movement issues on her right side, the plaintiff suffered compensatory pain. The plaintiff had difficulty lifting things, pushing and pulling heavy things, and reaching up on shelves. Despite treatment, she continues to experience pain during these kinds of tasks or actions. This testimony was corroborated by the plaintiff’s daughters Surita and Karan, her co-workers Ms. Zogala and Ms. Schilling, and by the various treating physicians’ medical notes, records and reports. For example, Dr. Yu’s notes dated May 9, 2011 read: “A: whiplash, cervical, new”, S: “no distress in arms; history of same injury 1991-1992; right side of neck”; O: “decrease range of motion in neck; stiffness in the neck; par cervical muscle spasms; right side worse P: “require physio” – consult: whiplash injury cervical spine Physiotherapy”.
viii. The plaintiff testified that she has suffered psychological difficulties, such as a fear of being rear-ended even as a passenger. The plaintiff’s daughters testified that she has become quite anxious since the accident. The plaintiff testified that her memory has also been negatively affected. This information was confirmed by a teacher, Ms. Schilling and appears in various treating physicians’ records including Dr. John and Dr. Yu. Dr. Yu’s notes dated July 4, 2011 state that the plaintiff was very stressed, worried about pain, and also looked exhausted and unkempt.
ix. The plaintiff stated that her temperament has changed as she is now easily irritated which strains her familial relationships. This information was confirmed by her daughters, Surita and Karan.
x. The plaintiff obtained the following treatment:
Dr. Kuk performed physiotherapy during November 2012;
Dr. Singh performed acupuncture and curative injections between December 2013 - January 2015;
Dr. John performed four separate treatments of Botox injections for ongoing headaches, numbness, and ongoing pain especially on the right side between June 2016 - October 2016;
Dr. Robbie Berman performed ten rounds of chiropractic adjustments and soft tissue massage between November 2013 - March 2016; and
Indian alternative and naturopathic medical treatment, including massage therapy, yoga, meditation and herbal naturopathic pain medicine.
xi. Dr. Yu treated the plaintiff on a regular basis up to the date of trial. Dr. Yu testified that the plaintiff retired due to an inability to cope with the neck pain from the accident. Dr. Yu characterized the plaintiff’s desire and ability to work after the accident as “a testament to her will to recover and be productive”. However, he stated that the plaintiff “may never recover” or full rehabilitation will take years due to her age.
(b) Dr. Wong is a rehabilitation and chronic pain specialist. He examined the plaintiff on September 11, 2015. Dr. Wong was certified by the court as an expert, under r. 53 of R.R.O. 1990, Reg. 194: Rules of Civil Procedure, to provide testimony in the areas of rehabilitation medicine and chronic pain. Dr. Wong was the only medical expert who testified. I found his evidence to be both credible and reliable.
i. From his examination Dr. Wong determined that the plaintiff has a myofascial injury of the neck and cervical spine and has cervicogenic headaches due to her neck injury. Dr. Wong stated that the myofascial injury was connected to the spine. Dr. Wong further testified that the plaintiff’s insomnia may be a symptom of post-traumatic stress disorder triggered by the accident.
ii. Dr. Wong stated that Ms. Parmar has a permanent injury of the soft tissues from the May 4, 2011 accident.
iii. Dr. Wong’s final opinion was that Ms. Parmar had a permanent and serious impairment of an important physical function caused by the accident as it has lasted in excess of four years and affects all aspects of her life. As for the plaintiff’s continued ability to work as a principal, Dr. Wong expressed the opinion that Ms. Parmar retired due to an inability to function with the pain from the injuries sustained in the accident. Dr. Wong testified that her future treatments should include: psychological treatment, sleeping pills, anti-depressants, and pain medication. Dr. Wong’s expert opinion was that the plaintiff has chronic pain syndrome and will require medications, physiotherapy and Botox injections for life.
(c) Dr. John is a specialist in physical medicine and rehabilitation. Dr. John first examined Ms. Parmar on December 9, 2013, following a referral from a neurologist - Dr. Crisp.
i. Dr. John determined that the plaintiff suffered severe myofascial strain injuries to her neck, shoulder girdle and to a lesser extent the lower back region as a result of the May 4, 2011 accident. He further determined that the plaintiff has ongoing myofascial pain affecting the right side of her head, neck, shoulder girdle and lower back regions.
ii. Dr. John’s medical opinion was that the plaintiff requires three to four Botox injections each year for an indefinite period to assist with her headaches and neck pain. Dr. John stated that his 30 years of experience enabled him to state with certainty that the plaintiff’s injuries stem from the May 4, 2011 accident. Finally, Dr. John stated that the reason the plaintiff quit working was because she could not continue due to her injuries. I found Dr. John to be a dedicated physician and strong witness whose evidence proved both reliable and credible. Dr. John’s answers to the questions posed by defence counsel strengthened his credibility
without raising any concern of bias.
(d) Dr. Irina Safir, a family physician, was called by the defence to testify as to an insurance examination she conducted of Ms. Parmar on June 20, 2012 in connection with the car accident of May 4, 2011.
i. At that time Dr. Safir diagnosed the plaintiff as having sustained a soft tissue injury of the neck, upper back, shoulders, upper extremities and non-specific headaches. Although Dr. Safir advised that the plaintiff did not, in her opinion, demonstrate significant actual impairments or limitations she admitted that she had not examined the plaintiff since June 2012. Dr. Safir testified that she saw 25 patients a day in the course of her practice. I found Dr. Safir’s responses to questions about her reasons for refusing to approve further treatment illogical and evasive. I did not find Dr. Safir to be a credible witness nor did I find her testimony reliable.
[22] The plaintiff’s evidence regarding her injuries was consistent and credible. Her evidence was supported by her daughters, co-workers, knowledgeable medical physicians, as well as an independent r. 53 medical expert. No evidence was raised at trial to dispute to the plaintiff’s claims regarding the nature or extent of her injuries or the fact that the injuries were caused by the May 4, 2011 accident.
[23] The plaintiff, of course, has the burden of proving that her claim falls within the legislated threshold exceptions. As stated above, the first two criteria, substantial interference and importance of function, will be satisfied if any of the sub-components indicated therein are true in a given case. The third criterion, permanence, requires the satisfaction of all its indicated sub-components.
[24] Again, the principles for determining whether the three criteria are met can be found at paras. 18-20 of Mayer et al. v 1474479. As well, para. 22 offers relevant and applicable commentary from the Supreme Court of Canada on judicial consideration of credibility in cases where threshold determination relies on subjective reports of chronic pain to prove the existence and extent the injury and impairment.
[25] Overall, I find that the evidence advanced by Ms. Parmar, her family members and co-workers, treating physicians and the medical expert satisfies the criteria in Mayer et al. v 1474479.
[26] I am therefore satisfied that the plaintiff has met the onus of proof by establishing that she sustained permanent injuries as a result of the May 4, 2011 accident. I likewise find that the criteria for substantial interference and importance of function have been met.
[27] Based on the evidence, Ms. Parmar has sustained permanent injuries as a result of the May 4, 2011 accident, including soft tissue injuries to her back, neck and shoulder, which have developed into a chronic pain syndrome. These injuries affect her ability to have a full range of movement on her right side including her neck, shoulder, shoulder girdle and upper back. Additionally, I accept that Ms. Parmar suffers from myofascial headaches and chronic pain syndrome which contribute to a constellation of symptoms including irritability, fatigue, low mood and cognitive difficulties. These injuries and impairments are supported by the evidence which I have outlined above.
[28] In relation to credibility, I found Ms. Parmar to be honest and forthright. All the doctors who assessed the plaintiff, including the defence insurance assessor physician, found her complaints to be genuine. There was no finding or suggestion by any of the treating or assessing physicians of exaggeration, malingering or false reports of subjective symptoms.
[29] Further, I note that all evidence, including all medical evidence, fully supported the plaintiff’s claim for injuries and ailments.
[30] Counsel for the defence urged me to consider the verdict of the jury and in particular the $10,000 award for general damages as evidence that the jury did not consider the plaintiff to have suffered a permanent serious impairment. With respect, I disagree.
[31] Members of the jury are prohibited from receiving insurance information relating to the defendants’ coverage including the fact that a threshold issue exists and/or a certain minimum amount of damages must be awarded before a plaintiff is entitled to receive any funds on account of general damages or medical expenses.
[32] Given that the jury had no information regarding either the threshold issue or the amount of damages that must be awarded to trigger payment – I will not infer that the amount of general damages awarded evidences the jury’s findings with respect to the severity of the plaintiff’s injuries. This is particularly true in the present case where the plaintiff’s counsel did not put a specific number to the jury for general damages and the defence put a maximum number of $10,000. Contrary to the defence submissions, the jury awarded the plaintiff the maximum award suggested to them. The award for general damages is not determinative of the threshold issue.
[33] The jury awarded no amount for past or future loss of income. With respect to this heading of damages I note that the plaintiff’s evidence was that she intended to work for as long as she could and at least age 70. Her daughters and co-workers testified that they were surprised that she retired in December 2015 and not June 2016. The plaintiff’s treating physicians felt that she retired due to her injuries but did not recommend that she retire.
[34] The plaintiff was clearly able to prove that the injuries suffered as a result of the May 4, 2011 accident substantially interfered with her ability to continue her regular duties and responsibilities as principal. However, the plaintiff was unable to prove (even on her own evidence) that she had a fixed intention to retire at age 70 and that any earlier retirement date would constitute a loss of income. The findings of the jury regarding this heading of damages is consistent with the evidence presented at trial and does not reflect the serious or permanent nature of the injuries or the effect that such injuries had on the plaintiff’s ability to fulfill her duties and obligations as principal following the May 4, 2011 accident.
[35] As for the remaining amounts awarded by the jury, the plaintiff was awarded $7,133.17 for past medical and rehabilitative expenses. This is the exact amount requested by the plaintiff. The jury further awarded the plaintiff the sum of $30,000 for future medical and rehabilitation expenses. This was the exact amount sought by the plaintiff for ongoing Botox therapy.
[36] With respect to the Botox therapy, the evidence of Dr. John, Dr. Yu and Dr. Wong was that the plaintiff would require Botox therapy for an indefinite period. The amount awarded by the jury supports the inference that the jury accepted the findings and recommendations of the medical expert and the treating professionals, Dr. John and Dr. Yu – which support a finding that the plaintiff suffered serious and permanent impairment which was expected to continue without substantial improvement.
[37] I am of the view that the jury verdict supports the conclusions reached herein regarding the serious and permanent nature of the injuries suffered by the plaintiff as a result of the May 4, 2011 accident.
Conclusion
[38] I am therefore satisfied that the plaintiff has met the onus and I find that the overwhelming evidence in this case establishes that as a result of the May 4, 2011 motor vehicle accident, the plaintiff suffered a permanent serious impairment of important physical, mental and psychological functions and has therefore met the threshold set by the Insurance Act and is therefore not barred from compensation for non‑pecuniary losses and health care expenses.
S.J. Woodley
Released: January 9, 2017
Parmar v. Beach, 2016 ONSC 7782
COURT FILE NO.: 83415/13
ONTARIO
SUPERIOR COURT OF JUSTICE
AMARJIT PARMAR
Plaintiff
– and –
JOSHUA BEACH
- and -
JOANNE BEACH
Defendants
REASONS FOR JUDGMENT
Justice S.J. Woodley
Released: January 9, 2017