Shaw v. Mkheyan, 2017 ONSC 851
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: FRANKLIN SHAW, Plaintiff
AND:
VAZGEN MKHEYAN and ELENA BABKINA, Defendants
BEFORE: Justice Glustein
COUNSEL: James K. Fireman and Jason Jagpal, for the plaintiff
Mark Elkin and Rabeena Mussalin, for the defendants
HEARD: January 31, 2017
REASONS FOR DECISION – threshold motion
Nature of motion
1The plaintiff Franklin Shaw (“Shaw”) brings this action for damages as a result of a motor vehicle collision which occurred on January 26, 2009. On January 30, 2017, the jury returned its verdict and ordered the following as damages arising out of the accident (i) $54,500 for general (non-pecuniary) damages, (ii) $0 for past income loss, (iii) $0 for pension loss, (iv) $22,500 for future health care costs, and (v) $3,000 for future housekeeping expenses.
2After the verdict, the defendants brought a “threshold motion” for a declaration that Shaw’s claims for non-pecuniary loss and future care costs are barred on the basis that his injuries do not fall within the exceptions to the statutory immunity provided for in ss. 267.5(3)(b) and 267.5(5)(b) of the Insurance Act, RSO 1990, c. I.8 (the “Act”) and the applicable regulations.
Applicable law
3I adopt and rely upon the thorough analysis of the law concerning the statutory regime, onus, and requirements to establish the “threshold” of a “permanent serious impairment of an important physical, mental or psychological function” under ss. 267.5(3)(b) and 267.5(5)(b) of the Act (the “threshold provisions”) as set out by Firestone J. in Jugmohan v. Royle, 2015 ONSC 1497 (SCJ) (“Jugmohan”), at paras. 3-24, affirmed 2016 ONCA 827. I do not repeat his cogent review in these reasons.
4In the present case, the defendants submitted to the jury, and to this court on this threshold motion, that Shaw had failed to establish that his left knee injury and other injuries were caused by the accident. This causation submission was implicitly rejected by the jury, who awarded damages after my instructions to determine, when assessing damages, whether any damages were caused by the accident, on the basis of a “but for” causation test and considering the “thin skull” and “crumbling skull” principles.
5Under the threshold provisions, despite a jury’s consideration of the evidence and implicit finding on causation (sometimes explicit if asked about causation as a jury question), the trial judge must also determine the same causation issue. In order to obtain damages for non-pecuniary loss and past or future health care costs, the threshold provisions require not only that a plaintiff establish that the damages meet the “threshold” requirements of a “permanent” and “serious” impairment of an “important” physical, mental or psychological function, but also that the “damages for non-pecuniary loss” or “damages for expenses that have been incurred or will be incurred for health care” are damages “from bodily injury … arising directly or indirectly from the use or operation of the automobile”.
6The causation test requires the plaintiff on a threshold motion to establish, on a balance of probabilities, that his or her impairment was caused by the accident in question (Dinham v. Brejkaln, 2005 CanLII 46749 (ON SC), 2005 OJ 5409 (SCJ), at para. 8; Saleh v. Nebel, 2015 ONSC 747, at para. 20). Causation is established on a “but for” test (Clements v. Clements, 2012 SCC 32, at paras. 8, 13).
7The trial judge is not bound by the verdict delivered by the jury. However, the verdict is a factor the judge may consider in deciding the threshold motion (Jugmohan, at para. 9). As the Court of Appeal held in Kasap v. MacCallum, 2001 CanLII 7964 (ON CA), 2001 OJ 1719 (CA) (“Kasap”), a trial judge deciding the threshold motion is not bound by any implied finding of credibility of the jury (Kasap, at para. 8).
The issues on this motion and the positions of the parties
8The defendants admitted liability for the accident. The only issue before the jury was the assessment of damages, which in the present case required the jury to determine whether the accident was the cause of at least some of Shaw’s injuries. The defendants submitted at trial that the injuries were caused by Shaw’s preexisting osteoarthritis in his left knee and back. Shaw submitted at trial that the accident converted his asymptomatic preexisting arthritis to symptomatic arthritis.
a) The left knee injury
9On this threshold motion, the defendants acknowledge that if the accident caused bodily injury to Shaw’s left knee, then such damages would meet the “threshold” of “permanent serious impairment of an important physical, mental or psychological function”. That position was reasonable given the uncontested evidence that (i) Shaw had two knee surgeries after the accident (a total knee replacement and a patellar resurfacing); (ii) Shaw walks with a limp and at a slow pace even though he previously enjoyed brisk walks; (iii) Shaw cannot do heavier household chores such as mowing the lawn, gardening, and shoveling snow; (iv) Shaw is no longer active and outgoing but instead spends most of his time on the main floor of his home watching television as he has difficulty climbing stairs; (v) Shaw is likely to require further left knee surgeries in the future; and (vi) it is not likely Shaw’s pain in his left knee will abate.
10Consequently, if the accident caused the left knee injury, it would not be necessary to consider any other injuries from a threshold perspective (either on causation or degree of impairment).
11The issue on this threshold motion with respect to Shaw’s left knee injury (as it was before the jury for the assessment of damages) was whether that injury arose “directly or indirectly from the use or operation of the automobile”, i.e. whether the accident caused the left knee injury.
12On this threshold motion, the defendants submit that the left knee injury was not caused by the accident. The defendants submit that Shaw did not meet his onus, as a plaintiff, to establish causation on a balance of probabilities. In particular, the defendants submit that the evidence at trial including expert opinion demonstrates that Shaw’s left knee injury arose because of Shaw’s preexisting osteoarthritis and was not an injury ”arising directly or indirectly from the use or operation of the automobile”.
13Shaw submits that the evidence at trial including expert opinion demonstrates that Shaw’s left knee injury was caused by the accident. Shaw relies on his preexisting osteoarthritis to submit that based on the evidence at trial including expert opinion, his “asymptomatic” osteoarthritis in his left knee became “symptomatic” as a result of the accident.
b) The lower back injury
14With respect to Shaw’s injury to his lower back, the defendants submit that Shaw did not comply with s. 4.3(2)(b) of the regulation governing Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96 (the “Regulation”), which mandates that a person claiming that the damages fall within the statutory exception based on the threshold requirements “shall adduce evidence of one or more physicians, in accordance with this section, that explains … the permanence of the impairment”. The defendants submit that Shaw led no evidence from a physician on whether Shaw’s injury to his lower back was permanent.
15The defendants rely on the decision of Milanetti J. in Sherman v. Guckelsberger, 2008 OJ 5322 (SCJ), at para. 108, that a physician’s evidence is mandatory to establish each of the requirements under s. 4.3(2)(b), including the permanence of the injury.
16Shaw acknowledges that he did not call evidence from a physician that Shaw’s lower back injury was permanent. However, Shaw relies on evidence from the defendants’ medical expert who stated that once a person has low back pain, it will always return.
Analysis
17There are two issues on this threshold motion:
i) Did Shaw establish that his left knee injury was caused by the accident, i.e. whether Shaw’s left knee injury was a “bodily injury … arising directly or indirectly from the use or operation of the automobile”; and
ii) Did Shaw adduce evidence from a physician as to the permanence of his lower back injury.
18I address each of these issues below.
Issue 1: Causation of the left knee injury
19For the reasons I discuss below, I find that Shaw established that his left knee injury was caused by the accident. Both the expert and other medical evidence, as well as the other evidence at trial, support such a finding.
a) Expert and medical evidence
20Shaw led expert evidence from Dr. David Backstein, recognized as one of the leading orthopaedic surgeons in North America with demonstrated surgical and research expertise in arthritis.
21The defendants led expert evidence from Dr. Hugh Cameron, also a leading orthopaedic surgeon with expertise in arthritis.
22The issue of causation was the subject of expert evidence at trial. Dr. Backstein’s opinion was that the force of the accident converted Shaw’s asymptomatic arthritis in his left knee into symptomatic arthritis, causing Shaw’s left knee pain and two left knee surgeries.
23Dr. Cameron’s opinion was that Shaw’s left knee injury arose as a result of Shaw’s preexisting osteoarthritis and was not caused by the accident.
24For the reasons that follow, I prefer the evidence of Dr. Backstein to that of Dr. Cameron.
25Both experts considered Shaw’s preexisting osteoarthritis.
26Dr. Backstein fairly acknowledged that at the time of his first assessment of Shaw on October 31, 2011 he did not have Shaw’s July 26, 2008 x-ray showing arthritis in his left knee. However, Dr. Backstein’s evidence was that at the first assessment (i) he had assumed that Shaw had preexisting osteoarthritis given Shaw’s age (58 years old) at the time of the accident; and (ii) he had reviewed Shaw’s April 30, 2009 x-rays from shortly after the accident which revealed moderate to severe tricompartmental arthritis in the left knee and lumbar spine arthritis, both of which could not have developed to that extent only after the accident.
27Dr. Backstein’s evidence was that he had concluded at the first assessment that he was “certain” that both Shaw’s left knee and lumbar spine had underlying osteoarthritis prior to the accident.
28Consequently, I accept Dr. Backstein’s evidence that his opinion on causation at the time of his first assessment would not have changed if he had known of the July 26, 2008 x-ray. That x-ray was fully consistent with the assumptions he made and the conclusions he drew from the April 30, 2009 x-rays. Dr. Backstein’s opinion did not change when he later obtained the July 26, 2008 x-ray.
29Dr. Cameron gave evidence that based on the July 26, 2008 x-ray which showed that Shaw had tricompartmental osteoarthritis in his left knee, it was his opinion that Shaw’s left knee injury was not caused by the accident since osteoarthritis is “relentlessly progressive”.
30Dr. Backstein disagreed with Dr. Cameron’s opinion that osteoarthritis is relentlessly progressive. Dr. Backstein’s opinion is that many people with osteoarthritis have no pain (“asymptomatic”), let alone necessarily require total knee replacement surgery as did Shaw.
31This was a critical causation issue in this matter.
32Dr. Cameron provided no basis to support his conclusion that once a patient is diagnosed with arthritis, the condition would necessarily get worse, let alone be “relentless” as he described it.
33On the other hand, Dr. Backstein gave detailed evidence about his experience as an orthopaedic surgeon. His evidence was that people can have osteoarthritis and not be aware of it since it does not necessarily become symptomatic.
34Dr. Backstein’s evidence was that osteoarthritis was common for someone of Shaw’s age (58 years old) at the time of the accident. In Dr. Backstein’s experience, this did not mean that arthritis in this age group would necessarily be symptomatic.
35Dr. Backstein gave the example of a patient who had arthritis in both knees but only saw him because of a complaint in one knee. In Dr. Backstein’s example, the other knee had no symptoms but the osteoarthritis had progressed to the same extent in both knees.
36Dr. Cameron’s opinion that any person with osteoarthritis would inevitably suffer the type of pain which Shaw endured, without any triggering event, is not consistent with Dr. Backstein’s unchallenged direct experience in this area or with Dr. Backstein’s uncontested opinion that most people at age 58 have some degeneration caused by osteoarthritis but that such arthritis is not necessarily symptomatic.
37Dr. Backstein’s opinion is that osteoarthritis is not “relentlessly progressive” and can be asymptomatic until an event happens that converts the arthritis to symptomatic. Dr. Backstein’s opinion conforms to his experience as a leading orthopaedic surgeon. Dr. Backstein was not cross-examined on his experience. I prefer Dr. Backstein’s evidence to the unsupported comments of Dr. Cameron.
38The second area of dispute between Dr. Backstein and Dr. Cameron was as to the degree of force required to cause arthritic pain.
39Dr. Cameron’s evidence was that in order for the accident to have caused Shaw’s osteoarthritis, Shaw would have needed to “smash” his knee so severely in the accident that he would have been in severe pain and thought that his knee was broken. Dr. Cameron’s opinion was that a bump of the knee would not even be sufficient.
40Since there was no evidence that Shaw’s pain reached such a level after the accident, Dr. Cameron concluded that the injuries to Shaw’s left knee were not caused by the accident.
41Dr. Backstein disagreed with Dr. Cameron’s opinion. Dr. Backstein’s opinion was that only a “very minor force” would be required to convert asymptomatic arthritis into symptomatic arthritis. Dr. Backstein’s opinion was that the force from a car accident, even if a minor accident, could be sufficient.
42Consequently, it was Dr. Backstein’s opinion that the force of the car accident converted Shaw’s asymptomatic arthritis to symptomatic arthritis.
43Again, for the reasons I discuss below, I prefer the opinion of Dr. Backstein.
44Dr. Cameron did not address in his evidence whether the same force (i.e. smashing the knee) would be required to cause osteoarthritis from a car accident if the person had preexisting osteoarthritis.
45On the other hand, Dr. Backstein’s evidence was that a direct impact to the knee was not required to convert asymptomatic arthritis to symptomatic arthritis. Dr. Backstein discussed his experience as an orthopaedic surgeon in which patients with asymptomatic arthritis would then have symptomatic arthritis as a result of a minor force which did not require a direct impact, such as running up stairs or twisting a knee. Dr. Backstein’s opinion was that “as is quite common, the arthritis was not symptomatic until after the accident”.
46Dr. Backstein was challenged on his conclusion since (i) Shaw told Dr. Backstein that Shaw had struck his knee against the dashboard in a high speed accident and (ii) those facts were not established at trial.
47The defendants relied on (i) Shaw’s evidence at examination for discovery that he had only struck his head against the headrest, but did not strike any other body part, and (ii) Shaw’s evidence at trial that he did not know the speed of the defendants’ car.
48Shaw’s evidence at trial was that he had felt a very heavy impact which tossed him backwards and forwards. However, Shaw agreed in cross-examination that the accident could be described as a “fender-bender”.
49It is not clear what Shaw understood by the meaning of the term “fender-bender”. In fact, the damage was to his vehicle’s fender. Consequently, Shaw may have felt a heavy impact even while accepting the description given by defendants’ counsel. There was no evidence as to the force that a bumper could absorb without a passenger feeling a heavy impact due to an accident.
50Further, Shaw was cross-examined on his evidence that the accident caused a heavy impact, given that the property damage to Shaw’s vehicle was $1,700 and photographs of the bumper on Shaw’s vehicle did not show significant property damage.
51However, any inconsistency, if at all, in Shaw’s testimony as to the “high speed” of the defendants’ vehicle, striking his knee on the dashboard, or whether there was a “heavy” impact was not relevant to Dr. Backstein’s opinion.
52Dr. Backstein reasonably agreed that Shaw had reported the accident as a “high speed” collision in which Shaw had struck his knee against the dashboard. Dr. Backstein had set out Shaw’s account of the accident in his report.
53However, at all times during his examination-in-chief and on cross-examination, Dr. Backstein maintained the same conclusion he had reached as of his initial assessment, i.e. that even fairly minor injuries can convert asymptomatic arthritis to symptomatic arthritis, by causing cartilage to die or degenerate which will not regenerate. Consequently, a high speed accident, striking the knee, or serious property damage would not be required for the accident to cause the injury. The force of even a minor accident could be sufficient.
54Given that Shaw’s only complaint of left knee pain prior to the accident was in July 2008 and it had been resolved with anti-inflammatory medication, Dr. Backstein maintained his conclusion that it was the force of the accident that converted Shaw’s asymptomatic arthritis to symptomatic arthritis.
55Dr. Backstein fairly acknowledged that his report was prepared on the assumption that the accident was “severe” since he was told by Shaw that his car was struck by a “fast moving” car. Dr. Backstein acknowledged that he described the accident in his report as occurring when the defendants’ car “slammed” into Shaw’s vehicle.
56However, I do not agree with the defendants’ submission that Dr. Backstein’s evidence was “partisan” as a result of the above comments. Dr. Backstein understood that Shaw had struck his knee from a fast-moving car and described the accident in terms consistent with his understanding.
57Dr. Backstein’s consistent evidence was that the issue of causation, however, did not necessarily depend on the speed of the vehicle. Dr. Backstein noted that neither the monetary amount of property damage nor the physical condition of Shaw’s car would alter his opinion, as set out in his evidence-in-chief, that a minor impact resulting in fairly minor injuries could convert asymptomatic arthritis to symptomatic arthritis.
58Dr. Backstein’s evidence was consistent that the impact to cartilage necessary to cause cells to die and generate pain could arise from the force of a rear-end accident without direct impact to the knee. His evidence was that a rear-end accident would create “far more than enough energy” to cause the type of minor injury necessary to convert asymptomatic arthritis to symptomatic arthritis, even if the vehicle was not travelling fast.
59I accept Dr. Backstein’s evidence since it is consistent with his experience as an orthopaedic surgeon which he discussed. In particular, Dr. Backstein’s experience is that minor force without direct contact (such as running up stairs, twisting a knee, or stepping into a pothole) can convert asymptomatic arthritis to symptomatic arthritis.
60Consequently, I accept Dr. Backstein’s evidence that while he assumed the facts about the accident since Shaw gave them to him, those facts were not a necessary component of causation. His evidence on cross-examination was consistent. While his opinion was prepared on the information provided to him, it was “not necessarily confined to that” since Dr. Backstein’s opinion from the outset was based on the minor force required to convert asymptomatic arthritis to symptomatic arthritis.
61Dr. Cameron provided no evidence on the issue of the force required to convert asymptomatic arthritis to symptomatic arthritis. Even if Dr. Cameron could be taken as concluding that “smashing” the knee would be required for someone with preexisting arthritis, i.e. that such a person could only obtain post-traumatic arthritis if he or she felt as if the knee was broken, Dr. Cameron gave no basis for that opinion.
62I accept Dr. Backstein’s opinion that Dr. Cameron’s conclusion that osteoarthritis from a car accident can only occur if a person (i) smashes his or her knee and (ii) suffers such pain that the person could not even move the knee, is not consistent with Dr. Backstein’s experience (again unchallenged) that such a degree of force and agony is not required. That was shown by the examples from Dr. Backstein’s treatment of patients as I discuss above.
63I also find that Dr. Backstein’s opinion is consistent with the evidence of Dr. Samji who was Shaw’s treating family doctor.
64Dr. Samji confirmed that in the three years prior to the accident, Shaw only once complained of left knee pain. Dr. Samji’s notes only went as far back as September 2005 when he moved his office location.
65On July 19, 2008, during a general physical, Shaw reported that he had pain in his left knee for two weeks. Dr. Samji prescribed Mobicox, a non-steroidal anti-inflammatory for 15 days and ordered x-rays which were taken on July 26, 2008. The x-rays showed tricompartmental osteoarthritis in Shaw’s left knee.
66Dr. Samji’s uncontested evidence was that by the time Shaw returned nine days later on July 28, 2008, Shaw advised him that his left knee felt better. Dr. Samji understood that the left knee had responded well to the anti-inflammatory medication. Shaw raised no other concerns about knee pain until after the accident.
67In cross-examination, the defendants sought on several occasions to obtain an opinion from Dr. Samji that the references to osteoarthritis he made in his notes after the accident demonstrated that Dr. Samji had concluded that the injury to the left knee was caused by Shaw’s preexisting condition. Dr. Samji responded that he did not reach such a conclusion.
68In particular, when asked whether he was “attributing” Shaw’s left knee pain to his preexisting osteoarthritis in his notes after the accident, Dr. Samji disagreed. His evidence was that he was “making a notation that [Shaw] has a preexisting problem” and that it could be “contributory” to his pain. Similarly, Dr. Samji’s evidence was that he would normally expect recovery from the injuries suffered by Shaw in the accident to resolve within 12 weeks, “if there is no preexisting problem”.
69The defendants returned to other references to osteoarthritis in Dr. Samji’s notes, again asking Dr. Samji to state that he had reached the opinion that Shaw’s left knee injury was caused by the preexisting arthritis. When asked if the left knee injury was the “result” of the arthritis, Dr. Samji’s response was that he noted it because he was aware of the “existence” of the condition.
70The issue in the present case is not whether Shaw had preexisting osteoarthritis in his left knee. He did. The issue is whether Shaw, through the expert evidence of Dr. Backstein, established that the injury to the left knee arose as a result of the accident.
71For the above reasons, I accept Dr. Backstein’s evidence on causation.
b) Evidence of the witnesses at trial relevant to causation
72The defendants submit that the evidence at trial established that Shaw did not injure his left knee in the accident and that as such, Shaw did not establish that the accident caused his left knee injury. I do not agree.
1. Condition of the left knee prior to the accident
73Shaw and his daughters Thema and Folayan gave unchallenged evidence that Shaw was active before the accident. He was a “fast walker” and his children had difficulty keeping up with him when they walked together. He was an active gardener, tilling the soil for his wife, Dorett, as they worked in the garden.
74Shaw was able to do heavy chores such as mowing the lawn and shoveling snow. He would play soccer and go swimming with friends. Shaw enjoyed going with his family to the local Professor’s Lake to swim, play volleyball, or picnic. Folayan’s evidence is that she thought her father was “strong”.
75Shaw would regularly cook and particularly enjoyed making Jamaican dishes.
76Thema and Folayan both remembered Shaw as being in good health without any complaints of pain prior to the accident.
77Shaw rarely missed work as a bus driver for the Toronto Transit Commission (“TTC”), except on an occasional day basis for common illnesses. The evidence was uncontested that Shaw loved his job as a TTC driver, frequently telling his children about the people he met and his day at work. He emphasized the importance of work to his children.
78Dr. Cameron speculated that Shaw may have had left knee pain before the accident but did not report it (outside the one occasion in July 2008). Dr. Cameron’s speculation is unsupported by any evidence.
2. Condition of the left knee after the accident
79The defendants submit on this motion (as they did before the jury) that the evidence supports findings of fact that Shaw did not have any significant pain with his left knee until 2011, which the defendants submit was caused by the preexisting osteoarthritis.
80I do not agree. I find that Shaw established, on the balance of probabilities, that he had left knee pain immediately after the accident and thereafter on an ongoing basis.
81On this threshold motion (as was also submitted before the jury on the issue of causation), the defendants rely on four principal submissions with respect to the condition of Shaw’s left knee after the accident:
i) There was no record of Shaw’s knee pain in the emergency department records immediately after the accident on January 26, 2009;
ii) While having physiotherapy treatment between February and May 2009, Shaw did not raise any concern of left knee pain and did not receive treatment for his left knee pain;
iii) On May 1, 2009, Shaw advised assessors at “P.A.T.H.” on his assessment to determine whether he could return to work at the TTC (the “PATH assessment”) that he “only has slight low back pain now”, felt “much better” and had a sitting and standing tolerance of “three hours plus”. Shaw was also able to perform well on a physical abilities test which included many lifting, carrying, and pushing tests; and
iv) From the date of the accident, Shaw did not note any pain in his medical records except for a February 23, 2009 and April 15, 2009 visit to Dr. Samji, and then not again for a year at two visits to Dr. Samji in March and April 2010, and then not again until a visit with Dr. Samji in April 2011.
82I address each of these submissions below.
A. Emergency department records
83It is not disputed that there was no note in the emergency department records of Shaw having knee pain. Shaw agrees that he did not raise his knee pain with the emergency department physician. However, on the evidence at trial, I accept that Shaw did have knee pain after the accident.
84I accept Shaw’s evidence that he felt a dull pain in his knee after the accident but did not mention his knee pain at the emergency department since he thought it would go away in an hour or two. Shaw’s evidence was that he felt significant pain in his neck and back and was dizzy and disoriented. He advised the emergency department doctor of his significant areas of pain. His evidence that the “dull pain” in his left knee “wasn’t something of my concern at that time” is credible and consistent with other evidence at trial.
85Shaw’s evidence is consistent with Folayan’s evidence that when Shaw and Dorett returned from the hospital (i) Shaw looked “shaken up” and was walking “slowly”; and (ii) Shaw was focused on taking care of Dorett.
86Also, Thema’s evidence was that Shaw was walking stiffly when he came home on the evening of the accident.
87I accept Shaw’s evidence that he was focused on Dorett, since she was screaming in pain about her neck and back. Shaw had to flag down a TTC bus to call for the ambulance and police because the defendant driver hesitated for 10 or 15 minutes when Shaw asked him to call, since the defendant driver was concerned about a claim being made against his insurance policy and wanted to avoid such a claim.
88Consequently, I do not accept the defendants’ submission that the lack of a note in the emergency department records means that Shaw did not have pain in his left knee after the accident. Shaw’s evidence is consistent with the circumstances surrounding the accident, and I accept Shaw’s evidence that he did not mention his left knee pain as it was a dull pain which he thought would go away in an hour or two.
B. Physiotherapy notes
89Again, it is not disputed that (i) there is no reference in the physiotherapy notes between February 2, 2009 and May 7, 2009 about any knee pain; and (ii) Shaw did not receive physiotherapy treatment for his left knee during that time.
90However, I do not find that such evidence leads to the conclusion that Shaw did not injure his left knee in the accident or did not suffer left knee pain during that time period.
91The uncontested evidence at trial is that from the date of the accident, Shaw was prescribed a series of painkillers and anti-inflammatory medication to address the complaints that he had about his neck and back. The uncontested evidence of all of the medical witnesses is that those medications would be effective in dealing with pain arising from the left knee, just as it had been effective after Shaw’s one complaint of left knee pain in July 2008.
92Shaw’s evidence was that even after taking pain medication, he noted that the pain in his left knee was gradually getting worse after the accident. His evidence is confirmed by his visit to Dr. Samji on February 23, 2009, three weeks after beginning physiotherapy, in which Shaw reported that he was suffering pain in both “knee joints”.
93Dr. Backstein was not challenged on his opinion that the delay in reporting knee pain from the accident until February 23, 2009 was not significant since the anti-inflammatory medications prescribed by Dr. Samji had worked in the past and as such the anti-inflammatory medication Shaw was taking for his neck and back pain was keeping his knee pain at bay.
94Dr. Samji’s uncontested evidence was that the various anti-inflammatory medication he prescribed such as Voltaren, Celebrex, and Mobicox are all similar with respect to their effect on arthritic pain.
95With respect to the February 23, 2009 visit to Dr. Samji, the defendants submit that the fact that Shaw reported pain in both knee joints demonstrates no causation from the accident. However, that position is inconsistent with the expert evidence.
96Dr. Backstein’s evidence was that the asymptomatic arthritis in Shaw’s left knee became symptomatic as a result of the accident. Reporting pain in both knees does not alter that conclusion. Shaw reported pain in his left knee.
97Also, the evidence does not support the defendants’ submission that the lack of any reference to left knee pain or treatment in the records of his attendances at physiotherapy (approximately 3 times per week for 12 weeks between February 2, 2009 and May 7, 2009) demonstrates that Shaw was not suffering left knee pain. Again, the jury did not accept this evidence as demonstrating no left knee pain and I agree.
98Shaw’s initial physiotherapist assessment was on February 2, 2009, two days after his visit with Dr. Samji and a week after the accident, during which time he was taking prescription painkillers and anti-inflammatory medication that were keeping his knee pain at bay.
99It is not disputed that Shaw would have been asked at the initial physiotherapy assessment to discuss his injuries arising from the accident. However, after the initial assessment, there was no further review with him about the scope of his injuries. The evidence is that the physiotherapists worked towards improving the conditions reported at the initial assessment.
100It is not disputed that Shaw was free to raise the issue of his knee pain during his physiotherapy treatments at any time. However, his failure to do so does not demonstrate a lack of pain.
101As I discuss above, all of the medical experts and treating doctors agreed that anti-inflammatory medication would assist in pain management for the left knee. Shaw’s complaints of neck, shoulder and back pain were the issues he raised at the initial assessment.
102Shaw’s recognition of left knee pain is recorded by Dr. Samji as of February 23, 2009, after three weeks of physiotherapy, and is consistent with Shaw’s evidence that his left knee pain became worse on a gradual basis.
103Shaw returned to see Dr. Samji on April 15, 2009 (more than two months into his physiotherapy treatment) and reported that he continued to have left knee pain. Dr. Samji prescribed an additional 15 days of anti-inflammatory medication to address the pain.
104Shaw’s evidence is also consistent with the uncontested evidence of Folayan.
105Folayan’s uncontested evidence was that she saw her father rubbing his knee after the accident, and that Shaw asked Folayan to rub cream on it to alleviate the pain.
106On all of the above evidence, I accept Shaw’s evidence that he had left knee pain even though he did not seek treatment for it at physiotherapy.
C. The PATH Assessment
i. The issue
107At trial, and on this threshold motion, the defendants relied significantly on the PATH assessment conducted on behalf of the TTC on May 1, 2009. The PATH assessment was mandatory for Shaw to pass if he was going to be permitted to return to work, and included two assessments – one related to physiotherapy-based issues (pain, range of motion, etc.), and the other based on kinesiology-based issues (ability to move, push, pull, carry, etc.).
108At the PATH assessment, Shaw told the PATH assessors that he “only has slight low back pain now”, felt “much better” and had a sitting and standing tolerance of “three hours plus”. Shaw was able to pass the physical abilities component of the PATH assessment which included many lifting, carrying, and pushing tests.
109The defendants ask this court (as they asked the jury) to find that Shaw had no left knee pain as of May 1, 2009. The defendants submit that the court should find Shaw told the truth to the PATH assessors and was able to pass the physical components requirements because his left knee was pain-free. Consequently, the defendants rely on the PATH assessment to submit that the accident did not cause the injuries to Shaw’s left knee.
110The defendants further submit that if the court finds that Shaw did not tell the truth to the PATH assessors, then he lied to the jury when he said that he did tell the PATH assessors the truth and, as such, his evidence as to his left knee pain should not be accepted.
111Shaw submits on this motion (as he did before the jury) that on a full review of his evidence in examination-in-chief, his evidence in cross-examination, and the other evidence relevant to the time period immediately before and after the PATH assessment, the court should find that (i) Shaw told the PATH assessors that he had little or no pain and felt much better because he needed to go back to work and knew that if he told them the truth about his pain, he would not be able to return to work; (ii) Shaw passed the physical abilities test despite his pain or because he took significant pain medication to sedate his pain; and (iii) Shaw did not try to mislead or lie to the jury.
112For the reasons that follow, I find that Shaw’s submissions are supported by the evidence. I review below Shaw’s evidence about the PATH assessment in his examination-in-chief and on cross-examination, and the other evidence relevant to the PATH assessment including evidence from the time period immediately before and after the assessment relevant to whether Shaw had left knee pain at the date of the PATH assessment.
ii. Evidence in examination-in-chief
113In his examination-in-chief, as I will review below, Shaw’s evidence was that he told the PATH assessors what was required to get his job back, given the significant financial difficulties he faced. In essence, the evidence before this court and the jury from his examination-in-chief was that Shaw (i) misrepresented his pain and abilities to the PATH assessors so that he could return to work and (ii) took very significant pain medication before the test so that he could pass the physical requirements.
114In his examination-in-chief, Shaw gave evidence which demonstrated that he had not been honest with the PATH assessors since he needed to return to work.
115The evidence was uncontested that Shaw had only 130 days of “sick benefits” available under which he would receive 75% of his wages, and he had approximately 30 days remaining of those benefits by the date of the PATH assessment. Shaw’s uncontested evidence was that Dorett had also been injured in the accident and had been previously been working as a personal support worker but was still off work when Shaw went to the PATH assessment.
116Shaw’s evidence was that he did not want to go back to work, but “going back to work was a necessity because my bills were piling up”. Shaw gave evidence that the TTC required that he pass a “physical”.
117Shaw’s evidence in his examination-in-chief was that his knee and back pain continued to bother him by May 1, 2009, the date of the PATH assessment.
118Shaw’s evidence in his examination-in-chief was that he took a “couple” of Tylenols to sedate the pain.
119Further, Shaw’s evidence-in-chief was that he did not tell the PATH assessors about his pain. Shaw said that “I felt that if they knew [about his pain] I wouldn’t go back to work at that specific time and that would hurt me very bad financially”.
iii. Evidence in cross-examination
120When asked a general question unrelated to the PATH assessment, Shaw stated in cross-examination that he always told his doctors and treatment providers the truth and did not lie deliberately to any of his doctors. While I note that the PATH assessors were neither Shaw’s doctors nor his treatment advisors, it became clear on Shaw’s cross-examination that his evidence was that he told the PATH assessors the truth as well.
121Shaw was then referred to the “PATH summary report” which was described accurately by defendants’ counsel as being located in a “TTC file with some medical material”. Again, there was no direct reference to the PATH assessment being the assessment that Shaw had to pass to return to work at the TTC.
122Shaw was first asked if he knew what PATH was, and answered that he did not know. That was a reasonable answer since one would not expect Shaw to know what “PATH” was, let alone that PATH conducted the assessment for the TTC, particularly as he was cross-examined at trial eight years after the accident.
123Shaw was then cross-examined as to whether he recalled being evaluated by the two assessors from PATH, Mr. Lyeo (a physiotherapist) and Ms. Gillstrom (a kinesiologist). Shaw stated that he remembered seeing them and was truthful with them. At this point in the cross-examination, Shaw had not been advised that the assessment at issue was the one he was required to pass by the TTC to return to work.
124It is not reasonable to find that Shaw remembered these two individuals in particular when he was not referred back to the purpose of the assessment (i.e. to return to work). Just as Mr. Lyeo and Ms. Gillstrom had no personal recollection of Shaw, it is not reasonable that Shaw would remember any particular individual assessor from a single assessment unless the context was put before him.
125Shaw was then taken through parts of the PATH report. He remembered being asked questions and doing some tests. It was at this point in the cross-examination that Shaw was asked about statements he made as recorded by the PATH assessors, including statements that he could sit and stand for three hours plus with no pain, felt “much better”, and “only has slight low back pain” of 1 or 2 out of 10 “on occasion”. Shaw’s evidence on cross-examination was that he was truthful when he made those statements.
126With respect to the physical tests which required Shaw to lift, squat, and climb stairs, the evidence was that Shaw passed all the tests and was permitted to return to work without limitation.
127However, in cross-examination, Shaw’s evidence was that he took three Tylenols to sedate his pain so that he could “manage” the test.
128Consequently, there was inconsistency between Shaw’s evidence from his examination-in-chief and his cross-examination. He was clear in his evidence-in-chief that he told the PATH assessors what was necessary for him to return to work and took pain medication to pass his physical tests. In cross-examination, he said that he told the PATH assessors the truth about his pain although he reiterated that he passed his physical tests by taking significant pain medication.
iv. Other evidence relevant to the PATH assessment
129Shaw’s evidence discussed above must be considered in the context of all of the other relevant evidence about the PATH assessment, including his concerns about returning to work, his pain immediately before and after the assessment, as well as his pain upon his return to work which caused him to take a significantly longer work day just so that he could manage his pain.
130In his March 30, 2009 note, Dr. Samji recorded Shaw’s comment that he had been off work since January 27, 2009. At the March 30, 2009 visit, Dr. Samji suggested that Shaw could seek modified work as of April 6, 2009 for four hours per day, then increasing one hour per week.
131On April 15, 2009, two weeks prior to the PATH assessment, Shaw advised Dr. Samji of his left knee and low back pain, and Dr. Samji assessed Shaw’s range of motion in his lower back at 55-60%. That left knee pain had been present for over two and a half months since the accident. Despite taking a combination of prescription pain killers, over the counter pain killers, and prescription anti-inflammatories, Shaw’s knee pain remained.
132At the April 15, 2009 visit, Dr. Samji prescribed a 15 day supply of Mobicox and suggested the use of Tylenol or acetaminophen.
133In Dr. Samji’s notes of Shaw’s April 15, 2009 visit, he recorded that Shaw had sought to return to work but no modified work was available. At that visit, while reporting his pain, Shaw also advised Dr. Samji that Shaw was to be assessed by a TTC “company therapist” on May 1, 2009.
134On April 29, 2009, two days before the PATH assessment, Shaw was assessed on behalf of his insurer. Dr. Henderson, the chiropractor who conducted the assessment, agreed that Shaw reported achiness, tightness and sharp pain in his low back.
135In his cross-examination, Dr. Henderson agreed that Shaw told him at that insurance assessment that (i) he “wishes to return to work” and (ii) his assessment to return to work would be two days later.
136Ms. Gillstrom, who was one of the PATH assessors, testified that anti-inflammatories and pain killers can help with pain and inflammation. All of the experts and treating doctors testified to the same effect.
137The evidence was not contested that there was no drug testing at the PATH assessment.
138In light of that evidence, the defendants did not call any evidence to support a theory that someone with Shaw’s complaints could not have passed the physical portion of the PATH assessment, let alone if taking significant pain medication.
139On May 7, 2009, less than one week after the PATH assessment, and two days before he returned to work, Shaw reported constant lower back pain to his physiotherapist, Dr. McCrae.
140On May 9, 2009, one week after the PATH assessment, Shaw did return to work. However, on his return to work, Shaw chose to work a “split shift” in which Shaw took a 3 or 4 hour break between his early and late shifts, unlike his prior break of 1 to 1.5 hours. In effect, Shaw chose to have a work day of 11 to 12 hours instead of 9 hours.
141There would have been no reason for Shaw to make the choice to work a split shift except to cope with the left knee and lower back pain he described upon his return to work.
142I accept Shaw’s evidence that he continued to have left knee pain at work. Shaw’s evidence was that his morning shifts at work were not as painful, since he took painkillers at night. However, his pain would get worse during the day as the bus would frequently bounce and be on uneven pavement, which would cause him more pain at the end of the day.
143Shaw’s evidence was that he experienced pain in his left knee because he had to use his knee to make signal changes, and his knee would have to remain stable most of the day. His evidence was that his left knee pain was constant.
v. Conclusions with respect to the PATH assessment
144The defendants rely on the evidence of Shaw in cross-examination to submit there can be no causation related to the injury to the left knee.
145The jury was faced with all of the above evidence when it found that damages ought to be awarded for pain and suffering and future care costs because the accident had caused the left knee injury. I am not bound by the jury’s decision. However, I agree that the appropriate factual finding from the above evidence is consistent with the implicit conclusion on credibility reached by the jury. I find that Shaw misrepresented his pain at the PATH assessment and was able to pass his physical tests despite his pain or because he had heavily sedated his pain.
146Shaw’s evidence that he took a “couple” or three Tylenols to pass the assessment and misrepresented his physical tolerances is consistent with the evidence about his pain before and after the assessment, and I accept Shaw’s evidence.
147It would not be logical that Shaw’s lower back pain as reported to the physiotherapists at all times throughout his treatment, and his left knee pain and lower back pain as reported to Dr. Samji two weeks before the assessment (for which he was prescribed anti-inflammatories) disappeared when Shaw was assessed by PATH on May 1, 2009, particularly when Shaw only returned to a split shift at work one week later.
148It would not be logical for Shaw to choose to increase his work day from 8 or 9 hours to 11 or 12 hours, unless he had the pain in his left knee and lower back as he described. It is not logical that he would not have had any pain at the May 1, 2009 PATH assessment and then ask to change his work shift in that manner one week later.
149Shaw’s evidence as to his financial circumstances and the need for him to return to work is not challenged. He had to support four children and a wife who had not returned to work. His sick benefits were about to expire. Shaw’s evidence is confirmed by Dr. Samji’s notes.
150There is inconsistency between Shaw’s evidence on cross-examination that he told the “truth” to the PATH assessors about his pain and abilities, when compared to his evidence in chief that he did not tell the PATH assessors about his pain because of his financial circumstances, and all of the other evidence described above.
151However, this does not lead to a finding as suggested by the defendants that Shaw’s evidence should be rejected on the basis that he was lying to the jury when he told them that he was truthful with the PATH assessors about his physical capabilities and pain. Shaw had already given evidence-in-chief explaining that (i) he had not told the PATH assessors about his pain since they would not have let him return to work and (ii) he had taken significant pain medication to sedate his pain. A deliberate attempt to lie in cross-examination by saying that he told the PATH assessors the truth would be inconsistent with what Shaw had already told the jury about the PATH assessment.
152In the face of all of the above evidence, this court (as the jury) had to consider the credibility of Shaw. I am not bound by any implicit finding of credibility. However, I again agree with the implicit finding of credibility on Shaw’s evidence from his examination-in-chief, and I find that Shaw did not have a deliberate intention to mislead the court or the jury. I accept his evidence as to the PATH assessment.
153The jury did not accept that the PATH assessment was a bar to the causation argument and I agree.
154Consequently, I find that Shaw was not truthful at the PATH assessment about his functional capabilities or his pain. I accept Shaw’s evidence that (i) he continued to have left knee (and lower back) pain at the date of the PATH assessment but did not tell the PATH assessors about that pain; and (ii) he passed his physical tests despite his pain or by taking significant pain medication.
D. Subsequent medical visits
155The defendants submit to this court (as they did before the jury) that, because after the April 15, 2009 visit Shaw only visited Dr. Samji a year later on two occasions in 2010 (in March and April) and then again a year later in April 2011, Shaw did not have left knee pain. However, that submission is not supported by the evidence.
156Ironically, Dr. Cameron’s speculation that a patient may have pain and not report it would assist Shaw’s position if he did not attend at his family doctor as frequently as the defendants submit would have been appropriate. I do not rely on such unfounded speculation of Dr. Cameron for the reasons I discuss above.
157However, the evidence which was before the court established that Shaw continued to have left knee pain after April 15, 2009 and through his visits with Dr. Samji in 2010 and 2011 that led to Dr. Samji’s referral of Shaw in July 2011 to Dr. Seligman (an orthopaedic specialist) for treatment of his knee and two knee surgeries, the first a total left knee replacement in January 2012 and the second a patellar resurfacing in April 2014.
158As I discuss above, during the time from his return to work until his left knee replacement surgery in January 2012, Shaw’s evidence was that he continued to suffer pain in his left knee at work, despite taking a 3 to 4 hour break between his shifts (which resulted in him having an 11 or 12 hour work day).
159Further, on each of Shaw’s subsequent visits to Dr. Samji, he complained of left knee pain.
160As a result of the March 30, 2010 visit, Dr. Samji ordered a repeat x-ray of the knee and lumbar spine. He prescribed more Voltaren (an anti-inflammatory medication).
161On the April 6, 2010 visit, Dr. Samji reviewed the x-rays with Shaw and noted that the left knee had arthritis and that it was worse on the inside than the outside. At that visit, Dr. Samji assessed Shaw’s range of motion in his knees at 70%.
162Approximately one year later, on April 23, 2011, Dr. Samji reported that Shaw continued to have left knee pain, and Dr. Samji prescribed Arthrotec.
163After a July 16, 2011 visit, when Shaw continued to report left knee pain, Dr. Samji’s evidence was that he referred Shaw to Dr. Seligman because of persistence of the pain in Shaw’s left knee and the presence of arthritic changes in his left knee.
164After his total left knee replacement surgery in January 2012, Shaw returned to the TTC in June 2012 with modified duties such as rear door loading of buses by checking transfers if the station was busy, customer service such as taking fares, and watching the subway for security purposes to see if any packages or other items were left behind. When Shaw assisted with loading a bus, he would have to sit and recuperate until the next bus came.
165After his left patellar resurfacing surgery in April 2014, Shaw returned to the TTC in April 2015 on a modified work basis and then drove a bus on a split shift until he retired on July 1, 2016.
166From his initial visit with Dr. Seligman, the evidence is that both before and after the total left knee replacement in January 2012 and after the patellar resurfacing in April 2014, Shaw consistently advised Dr. Samji and Dr. Seligman of his left knee pain. The record is replete with reports from both treating doctors that confirm that Shaw’s left knee pain continued to the present, with a last visit to Dr. Samji on September 28, 2016 in which the same pain is recorded.
167There is no dispute in the evidence that Shaw’s current left knee pain is permanent, serious, and affects important functions in his life.
c) Conclusion on causation
168On the basis of the above expert and other evidence, I find that Shaw met his burden of proof, on a balance of probabilities, that the accident caused Shaw’s left knee injury, by converting asymptomatic arthritis to symptomatic arthritis.
169The present case is unlike the facts in Jugmohan. In that case, Firestone J. found that there was no causation, based on evidence that the plaintiff had not only seen an orthopaedic surgeon before the accident, but that the orthopaedic surgeon had concluded, in a report dated seven years before the accident, that knee surgeries in both knees would be required. Firestone J. held (Jugmohan, at para. 29):
the report of Dr. Barrington to the plaintiff's family doctor dated April 18, 2001 is significant. It states in part that that the plaintiff continues to have problems in her knees, particularly on the left side and that she is headed for knee replacements before too long.
170In the present case, Shaw had one reported incident of left knee pain prior to the accident. Dr. Samji indicated that the left knee was better within nine days after the anti-inflammatory medication Mobicox was prescribed. There was no recurrence of the pain prior to the accident, and no record of any other complaint of pain in the left knee in the more than three years prior to the accident (which is as far back as available for Dr. Samji’s notes). Prior to the accident, there is nothing in Dr. Samji’s notes to indicate that he ever recommended, discussed, or even considered a referral to an orthopaedic specialist for Shaw.
171Further, the uncontradicted evidence is that in the time leading up to the accident, the one instance of reported left knee pain which had resolved had no impact on Shaw’s ability to work, do housekeeping and home maintenance activities and lead an active lifestyle.
172Each threshold motion must be determined on its own facts.
173Dr. Backstein’s opinion that many individuals Shaw’s age at the time of the accident have osteoarthritis and are unaware and can continue to lead an active lifestyle is confirmed by the evidence in this case. Shaw was doing that until the accident.
174Dr. Backstein’s opinion is that the existence of osteoarthritis in the knee does not mean that an individual will eventually have knee pain, let alone require a knee replacement. Osteoarthritis can be asymptomatic. That evidence is confirmed by Shaw’s lack of pain and lifestyle before the accident.
175Dr. Backstein’s opinion as to the force or impact required to convert asymptomatic osteoarthritis into symptomatic osteoarthritis is supported by the evidence in this case. I accept that a minor injury in response to energy or force from a minor car accident could cause such a conversion, and I find (as did the jury) that it did on the evidence in this case.
176For the above reasons, I find, as did the jury, that Shaw met his burden of proof and established that his left knee injury was caused by the accident.
Issue 2: Medical evidence as to permanence of Shaw’s lower back injury
177Given my conclusion on the first issue, it is not necessary for me to address the issue of whether Shaw can rely on Dr. Cameron’s evidence in cross-examination to satisfy the requirement of s. 4.3(2)(b) of the Regulation that Shaw adduce evidence of a physician that his lower back injury is permanent.
178Nevertheless, I address this issue as it was raised at the threshold motion.
179For the reasons I discuss below, I find that Shaw did not meet the requirement of s. 4.3(2)(b) of the Regulation. Dr. Cameron’s evidence does not constitute evidence from a physician that the lower back injuries caused by the accident were permanent.
180Dr. Backstein led no evidence as to whether the lower back injury was permanent. His only evidence was that there was a possibility surgery might be required for the lower back, without any opinion as to whether the injury would continue for an indefinite time period.
181On cross-examination, Dr. Cameron agreed that he had said in his report that if a person has a long-standing history of back pain, “it is obviously not going to go away and he will therefore continue to have intermittent back symptoms”.
182However, Dr. Cameron’s reference was in relation to his review of the past instances of recorded back pain for Shaw, which arose from a car accident in 1986 that had resolved five months later, as well as an OHIP record from August 2004 and an October 2005 complaint of low back pain.
183At no point did Dr. Cameron agree that the lower back injuries caused by the accident were permanent. While Dr. Cameron’s general statement referred to back pain recurring, he was clear on re-examination that while back pain might be expected to come back from time to time, he did not expect lower back pain from the accident to be permanent.
184In re-examination, Dr. Cameron was asked about his evidence summarized above. Dr. Cameron was then taken to the other point he had made in his report and agreed that after his comment in his report about recurring back pain, he had also stated “However, simple uncomplicated soft tissue strains do resolve”.
185Dr. Cameron’s evidence in re-examination was that the accident only generated “simple soft tissue” damage which he compared to a sprained ankle. Dr. Cameron’s opinion was that he would expect any lower back pain from the accident to resolve within six weeks from the accident.
186Consequently, I do not find that Dr. Cameron’s evidence was that the injuries suffered by Shaw to his lower back from the accident were permanent.
Order and costs
187For the above reasons, I dismiss the defendants’ threshold motion. Costs of this motion are to be addressed by the parties with their costs submissions for this action.
188If counsel are unable to agree on costs of the action, I will review written costs submissions of no more than 10 pages (not including a bill of costs) to be delivered by Shaw no later than March 1, 2017, with responding written costs submissions of the defendants to be delivered no later than March 15, 2017. A brief reply costs submission of no more than 3 pages may be delivered by Shaw no later than March 22, 2017.
189I thank counsel for their civility and thorough preparation throughout the trial.
GLUSTEIN J.
Date: 20170208