Loye v. Bowers

COURT FILE NO.: 681-17

DATE: 13/12/2019

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carlo Loye, Plaintiff

AND:

George William Bowers, Litigation Administrator for the Estate of Laurie Bowers, deceased. Defendant

BEFORE: Turnbull, J.

COUNSEL: Georgiana Masgras and Kevan Wylie, Counsel, for the Plaintiff

Elisabeth van Rensburg and Rachel Pano, Counsel, for the Defendant.

HEARD: December 13, 2019

Reasons for Decision

TURNBULL, j.

[1] The parties have just finished a civil jury trial relating to a personal injury claim brought with respect to a motor vehicle accident which occurred December 26, 2015. The jury is deliberating as I receive submissions from counsel with respect to the statutory "Threshold" issue which I am obliged to consider pursuant to S. 267.5 of the Insurance Act, R.S.O 1990, c.I.8 and the applicable regulations.

[2] The plaintiff has been suffering from osteo-arthritis in his right shoulder since at least 2010. The evidence of his family physician confirms that he complained of right shoulder pain and limitation of movement fairly regularly. An x-ray taken in 2012 showed advanced osteo-arthritic changes in the right shoulder with marked narrowing of the joint space.[^1] In 2013, he was referred to an orthopedic specialist for assessment. In July 2014, the plaintiff underwent endoscopic surgery to the right shoulder to assist him with some of his symptoms. Due to ongoing pain and limitations with his shoulder, his employer allowed him to return to work as a machinist on modified duties in September 2014 and he worked on modified duties to the time his employment was terminated three months after the motor vehicle accident which is the subject of this action.

[3] The plaintiff alleges that in the subject motor vehicle accident, he exacerbated the problems he had been enduring with his right shoulder. While he stated he suffered a soft tissue injury to his neck, it has largely resolved. The issue which is front and centre for the jury is his right shoulder. He seeks an award for general damages for pain and suffering and loss of enjoyment of life. He further seeks damages for loss of competitive advantage.

[4] The defendant argues that the plaintiff has not proved on a balance of probabilities that he has suffered a permanent serious, impairment of an important physical, mental or psychological function as defined under S. 267.5 of the Act and sections 4.1, 4.2 and 4.3 of O.Reg.461/96 as amended by O.Reg. 381.03.

[5] Sections 4.1 and 4.2 of the Regulation provide direction on determining the "Threshold" issue. Section 4.3 identifies specific evidence which must be adduced to meet the threshold:

4.1 For the purposes of section 267.5 of the Act,

"permanent, serious impairment of an important physical, mental or psychological function means impairment of a person that meets the criteria set out in section 4.2

[6] Section 4.2 then specifies the criteria that must be met for each element of the threshold test. Section 4.3 then specifies the evidence which must be adduced to prove that the plaintiff has suffered a permanent, serious impairment of an important physical, mental or psychological function. S. 4.3(2) requires the plaintiff to adduce evidence of one or more physician that explains:

(a) The nature of the impairment;

(b) The permanence of the impairment;

(c) The specific function that is impaired;

(d) The importance of the function to the person.

[7] Section 4.3(3) requires the physician providing that information to be trained for and experienced in the assessment or treatment of the impairment that is alleged and the opinion shall be in accordance with generally accepted guidelines or standards of the practice of medicine.

[8] Most importantly in this case, section 4.3(4) requires the physician to conclude in his/her opinion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

[9] The plaintiff called one medical expert witness, Dr. West, to opine on causation and the nature of the plaintiff's injuries sustained in this accident. He stated that the accident exacerbated the plaintiff's pre-existing, fourth stage osteo-arthritic right shoulder. He stated that the prognosis for the plaintiff was "guarded". He did not differentiate between the pre accident function of the plaintiff's right shoulder and that function after the accident.

[10] On review of the evidence heard in this matter, I am not satisfied that the plaintiff has proved on a balance of probabilities that he has suffered a permanent, serious impairment of an important physical, mental or psychological function as a result of this motor vehicle collision. In my view, the evidence at most points to a possibility that his pre-existing problems with his right shoulder were aggravated for a period of time by the subject motor vehicle accident.

[11] I reach that conclusion based on review of the evidence and list just some of the major pieces of evidence that lead me to that conclusion:

a. The plaintiff told the investigating officer at the scene that he had suffered no injuries.

b. The plaintiff told the intake employee at Traffic Defenders on December 29, 2016, three days after the accident, that he had not been injured in the accident.

c. The plaintiff had been diagnosed prior to the accident with severe, end stage level four osteo-arthritis of the right shoulder as early as 2012.

d. The plaintiff was already working at his labouring job at Linemar on a modified duties basis before the subject accident.

e. The plaintiff returned to work at Linemar in January 2016 (shortly after the accident) and continued doing that work until he was terminated on or about March 15, 2016 for reasons unrelated to any physical limitations doing his job.

f. The x-rays of January 6, 2016 and December 6, 2016 confirm virtually the same findings in the plaintiff's right shoulder as were visualized in the x-ray taken August 24, 2012.

[12] The most that the plaintiff has proven is that based on the findings in an MRI of his right shoulder taken on February 29, 2016, he possibly had three tears in his rotator cuff of that shoulder. Dr. Marks stated that if a tear was suffered in an accident, most people would immediately feel pain. He further stated that the tears demonstrated in the rotator cuff were not substantial and are often found in people who suffer from severe osteoarthritic shoulder disease such as the plaintiff. Dr. Abdella, the plaintiff's family physician stated that it is difficult to say whether the tears are new (accident related) or older (pre-dating the accident). He did not that Dr. Hupel's operative note from the laporoscopic procedure he did on the plaintiff's right shoulder in July 2014 did note that no tear in the cuff was visualized during that procedure. Dr. Marks stated that often tears in the rotator cuff are not "picked up" until an MRI is done.

[13] The plaintiff has not proven on the balance of probabilities that he has suffered, as a result of this motor vehicle collision, permanent, serious impairment of an important physical, mental or psychological function. Furthermore the specific questions required to meet the threshold test were not directly and specifically posed and answered by Dr. West (the plaintiff's expert witness) or Dr. Abdella, his family physician.

Conclusion:

[14] The plaintiff's claim for non-pecuniary damages is dismissed on the basis that his injuries do not fall within the exceptions to the statutory immunity provided for in s. 267.5 (3) and (5) of the Insurance Act, R.S.O, 1990, c. I.8 and the applicable regulations.

Turnbull, J.

Released: December 13, 2019

[^1]: Exhibit 40.