COURT FILE NO.: CV-13-494077

DATE: 2022-09-27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHOBA KOLAPULLY

Plaintiffs

– and –

LYNDA MYLES and TORONTO TRANSIT COMMISSION

Defendants

Dahab, M. and Kaur, A. for the Plaintiff

Townsend, C. and Styler, D. for the Defendants

HEARD: June 29, 2022

THRESHOLD DECISION

P.T. Sugunasiri, J.:

Overview:

[1] On March 6, 2012, Ms. Kolapully was on her way to catch a bus to the library when she was struck by a TTC bus as she crossed Ellesmere Road at Nielson. Ms. Kolapully was taken to the Rouge Valley Hospital where she underwent emergency surgery to repair an open left ankle fracture. The parties agree that she also suffered a mild concussion, a laceration over her left eyebrow and a fracture of the left tibial spine and left and right fibular heads. The jury ruled that Ms. Kolapully was 25% at fault but awarded her $175,000 in general damages. Under the Insurance Act (“Act”),[^1] only plaintiffs who demonstrate that they have suffered a serious and permanent impairment of an important physical, mental or psychological function are entitled to recover general damages (also known as “non-pecuniary loss”).[^2] The Defendants submit that Ms. Kolapully does not meet the statutory threshold and is not entitled to general damages. Ms. Kolapully submits that her injuries have led to post-traumatic osteo-arthritis, chronic pain and depression which are permanent and serious impairments that substantially interfere with her activities of daily living.

[2] Ms. Kolapully has persuaded me on a balance of probabilities that the accident caused permanent and serious impairments of important physical functions. I explain below.

Analysis:

The Threshold

[3] The accident was on March 6, 2012. The automotive insurance regime that applies is Bill 198,[^3] which amended sections of the Act, and O. Reg. 461/96 as amended by O. Reg. 381/03.[^4] The following statutory threshold from the Act applies to a claim for non-pecuniary damages:

267.5(5) 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.

[4] This means the onus is on Ms. Kolapully to prove on a balance of probabilities that her “bodily injuries” arose directly or indirectly from the use or operation of an automobile, and that as a result, she sustained permanent and serious impairment of an important physical, mental or psychological function.[^5] If she is unable to do so, subsection 267.5(5) shields the Defendants from the obligation to pay any general damages to Ms. Kolapully.

The accident caused physical injuries

[5] There is no dispute that Ms. Kolapully sustained physical injuries from the accident. Ms. Myles struck her while turning right onto Ellesmere from Neilson Road. Once struck, Ms. Myles secured the bus and went to see what happened. She found Ms. Kolapully lying on the ground on her back, awake, and crying. The paramedics on the scene noted that she was confused, complained of pain in both legs and had a 1 cm laceration to her left eyebrow. She was taken to Rouge Valley Hospital where she was admitted for an open left ankle fracture and a fracture of the left tibial spine and left and right fibular heads. She required immediate ankle surgery and a blood transfusion due to blood loss from the multiple fractures.

Ms. Kolapully’s injuries have led to post-traumatic arthritis which is permanent

[6] Having found that Ms. Kolapully suffered physical injuries because of the 2012 accident, analysing the threshold test set out in the Act requires the court to sequentially answer three questions[^6]:

a. Has Ms. Kolapully sustained permanent impairment of a physical function? Yes.

b. If yes, is that function an important one? Yes.

c. If yes, is permanent impairment of the important function serious? Yes.

A. Ms. Kolapully has sustained a permanent impairment of a physical function

[7] Sections 4.1-4.3 of O. Reg. 461 to the Act define “permanent” as an impairment that is continuous since the accident. Further, based on the medical evidence, it is expected not to substantially improve, and continues to substantially interfere with most of the person’s usual activities of daily living. Firestone, R.S.J. recently summarized the applicable tests and jurisprudence and confirms that the word “permanent” does not mean forever. Instead, it requires a weakened condition that is expected to last into the indefinite future that is medically corroborated.[^7] To that end, the Plaintiff called Dr. Getahun to confirm the permanence of her orthopaedic impairments. The Defendants tendered Dr. Bogoch to counter Dr. Getahun. While Dr. Bogoch concluded that Ms. Kolapully’s orthopaedic injuries had resolved, Dr. Getahun concluded that she has permanent impairments. More specifically, in his March 12, 2020 assessment, Dr. Getahun concluded that Ms. Kolapully sustained a serious injury to her left ankle with continued restricted range of motion amounting to an impairment and altered gait. Further, after ordering an x-ray which he tendered at trial, Dr. Getahun identified objective irregularities in the ankle joint and knee that were consistent with post-traumatic osteo-arthritis.

[8] I prefer Dr. Getahun’s evidence. He conducted a thorough review of Ms. Kolapully’s medical records and his own physical examination. Dr. Getahun’s conclusions were not largely based on Ms. Kolapully’s self reported complaints (which the defence argues are overstated) but rather on his own examination and x-rays. One main point of difference between Dr. Bogoch and Dr. Getahun is on range of motion. Dr. Bogoch concluded that Ms. Kolapully had a “normal” range of motion but did not specify what “normal” meant. In contrast, Dr. Getahun provided comparative numbers in range of motion as between Ms. Kolapully’s right and left ankles after conducting active range of motion testing. In other words, he did not have Ms. Kolapully demonstrate her own range of motion – rather, he moved the joint himself to assess it. He explained that this process provides a more accurate picture of range of motion. He explained that there was a significant difference in both the dorsiflexion and plantar flexion. Dr. Getahun also observed an irregular gait after 30 metres worth of repetitive walking in his hallway. Mr. Townsend’s cross-examination did not shake the value of Dr. Getahun’s testimony – Dr. Getahun did not believe Ms. Kolapully to be exaggerating her limp knowing that Dr. Getahun was assessing her gait. I accept Dr. Getahun’s assessment. Finally, Dr. Getahun had the benefit of objective x-rays to conclude that Ms. Kolapully had developed post-traumatic osteo-arthritis which would likely degenerate. At trial Dr. Getahun explained the x-rays, which showed irregularity in the tibial surface at the fracture site compared to the same site in the uninjured right ankle. Dr. Bogoch did not opine on these x-rays. The Defendants had failed to make a timely request for them, and I ruled it was too late for Dr. Bogoch to supplement his opinion. The Defendants did have the x-rays for the purposes of cross-examination.

[9] Dr. Getahun explained that this objective evidence of osteo-arthritis is consistent with both Ms. Kolapully’s “good days and bad days” pain complaints and her description of a dull ache, as well as his observation of her irregular gait after 30 metres. He concluded that Ms. Kolapully has multiple impairments arising from the left ankle injury with a poor prognosis due to the development of post-traumatic osteo-arthritis which cannot be corrected by surgery. He also noted that he has examined Ms. Kolapully three times over nine years, and after having reviewed the findings of the other orthopaedic specialists, including Dr. Paitich and Dr. Thompson, her restricted range of motion in her left ankle, evidence of arthritis and altered gait have not materially changed over the years. According to Dr. Getahun, this fits the definition of permanence in the AMA Guide. I accept his opinion. Overall, I found Dr. Getahun to be a credible and reliable witness who readily agreed with Dr. Bogoch when warranted, precisely identified their points of disagreement, and carefully explained the basis of the disagreement in medical terms. I accept his view that Ms. Kolapully’s ankle impairment permanently affects physical functions like walking, shopping and doing household chores.

[10] Similarly, Dr. Getahun concluded that Ms. Kolapully’s left knee injury from the accident is a permanent impairment of a physical function. She complains of pain in the knees especially after walking for more than 20 minutes and long periods of standing. Dr. Getahun explains that the x-ray of Ms. Kolapully’s left knee aligns with her complaints. He displayed the x-rays at trial and showed the irregularity in the tibial plateau of the left knee, which he testified was displaced by about 3 mm. Dr. Paitich and Dr. Bogoch had diagnosed Ms. Kolapully with an undisplaced or minimally displaced fracture of the tibial eminence of the left knee. Dr. Getahun explained that while 3 mm is not surgically significant, it is consistent with the development of post-traumatic osteoarthritis. Dr. Getahun notes that even Dr. Smith, the surgeon who fixed Ms. Kolapully’s meniscal tear in the left knee, indicated that Ms. Kolapully had developed osteoarthritis after the fracture caused by the accident. The difference between the left and right knee was clear from the xrays explained by Dr. Getahun. I accept Dr. Getahun’s explanation of the significance of the difference in terms of Ms. Kolapully’s prognosis and with respect to the permanence of her injuries.

[11] I find that Dr. Getahun’s evidence was not shaken on cross-examination. While he agreed that Ms. Kolapully has not needed either ankle replacement nor knee replacement surgery and that such interventions are rare, the type of ankle injury sustained by Ms. Kolapully typically leads to continued pain, arthritis and a limited range of motion in the joint. Further, Dr. Getahun indicated that one of the risk factors for ongoing issues is the degree of structural healing that can occur. He testified that there are things a surgeon can control and things that he cannot. Despite the adept surgery by Dr. Thompson, a surgeon cannot control an articular surface. In Ms. Kolapully’s case, her injury is to the smooth shiny articular surface which cannot be repaired. With respect to the knees, on cross-examination Dr. Getahun agreed with the surgeons that Ms. Kolapully has reached surgical or radiographic recovery but that does not mean that she has recovered or will recover her range of motion, have a normal gait and be pain free. Based on the totality of the evidence including the evidence that I have highlighted, Ms. Kolapully has suffered permanent impairment of a physical function.

B. Ms. Kolapully has sustained a permanent impairment of an important physical function

[12] For the function that is impaired to be important, the function must be important to the usual activities of daily living, considering the person’s age. The determination of whether the impaired physical function is important is a subjective one and must consider Ms. Kolapully’s way of life in the broadest sense.[^8] In my view, Ms. Kolapully has suffered a permanent impairment of an important physical function. Her ability to walk and stand without pain is important to her daily living, which entails cooking, cleaning, shopping, socializing, and now taking care of her grandchild. These activities are fundamental to Ms. Kolapully’s life, and I am persuaded she can no longer do them without significant difficulty. Prior to the accident, Ms. Kolapully was a vibrant and active woman. She had immigrated to Canada just before the accident. Ms. Kolapully described a good life in both Dubai and India. She was active in the community, loved travelling and was the primary caregiver for her two daughters. Prior to that she worked as a clerk in her father’s business. After coming to Toronto in August of 2011, Ms. Kolapully was excited to explore the city and did so using the TTC. At that time her daughter Ashwini was already in University and Shalini was in high school. Ms. Kolapully was responsible for meal preparation, household chores and grocery and clothes shopping. Her husband did not join the family until they moved to Fort McMurray in 2014. At the time of the accident Ms. Kolapully was on her own with her daughters.

[13] After the accident, Ms. Kolapully moved to Fort McMurray where her husband got a job. She testified that she was not able to explore her new surroundings because of pain in her knees and ankle. She would go for walks with her husband on a nearby trail but only the flat trail. She was not able to explore the other trails that she otherwise would have walked before the accident. Ms. Kolapully also testified that her husband and daughter Shalini had to assist with household chores much more and that she relied on them for tasks beyond simple cooking and cleaning. Her husband drives her to the grocery store and does the laundry and the heavier lifting in the home. When going to the store Ms. Kolapully indicated that she could only carry a few items. Ms. Kolapully has not worked outside the home since arriving in Canada except for a small 8-hour volunteer position at a seniors’ home in Scarborough shortly before the accident in 2012. Ms. Kolapully consistently complained to the numerous medical assessors that she had pain when she walked more than fifteen or twenty minutes and that her standing tolerance was similar before pain set in. She noted that there were good days and bad days and sometimes she experienced inflammation in her knees and ankle. In the Defendants’ view, Ms. Kolapully’s answers were different depending on whether the medical practitioner was an assessing doctor or a treating doctor. Even if I accept the Defendants’ observation, my own assessment of Ms. Kolapully’s testimony is that she had an honest belief that she had ongoing pain from the fracture sites. Once coupled with Dr. Getahun’s conclusion that it is medically reasonable for Ms. Kolapully to have pain as reported, I am satisfied that Ms. Kolapully’s physical injuries are affecting her usual activities of daily living. Further, Ms. Kolapully reported knee and leg pain to her treating family physician in Fort McMurray as early as 2015, which led Dr. Akinjise to diagnose fibromyalgia and refer her to a rheumatologist.

[14] The Defendants vigorously cross-examined Ms. Kolapully and I found her to be a truthful and reliable witness. In particular the Defendants showed Ms. Kolapully video surveillance footage taken during several days when Ms. Kolapully was flown into Toronto by the Defendants for defence medicals between March 24 and 31, 2015. In the surveillance Ms. Kolapully can be seen walking to a grocery store with a trundle, shopping for some items, and returning home with those items. The surveillance did not capture how much Ms. Kolapully bought and put in her trundle. Regardless, I do not find the footage particularly persuasive. Ms. Kolapully testified that she had no choice but to shop on those days so that she could eat. At the time, her daughter Shalini with whom she was staying was busy and often out in the evenings. In the eight days that she was in Toronto, the videographer captured Ms. Kolapully going to a No Frills and stopping in at a convenience store to inquire about the availability of stringhoppers. The footage is consistent with Ms. Kolapully’s account that she did go to the grocery store out of necessity, that she had good and bad days of pain, and that she did nothing else. The videographer was outside of the building for the remainder of the time and did not capture Ms. Kolapully doing anything else. If the surveillance shows anything, it is that Ms. Kolapully was not engaging in the usual activities that she enjoyed before the accident – namely taking the TTC to explore the city and visit the library. Further, I agree with counsel for the Plaintiff that surveillance of Ms. Kolapully while visiting Toronto for defence medicals is not an accurate snapshot of her engaging in activities of daily living.

[15] Ms. Kolapully’s daughter Ashwini Prakash also testified about Ms. Kolapully’s activities of daily living and the impact on her. In particular Ms. Prakash was questioned about Ms. Kolapully’s involvement in her wedding that took place in November of 2019. Ms. Prakash testified that her mother had limited involvement in her wedding and only did what was minimally required as the mother of the bride in a Hindu wedding. She was in the receiving line but was in pain for parts of the wedding and had to stay seated in between her mother of the bride duties. This, Ms. Prakash stated, was unlike how her mother would have been before the accident. She described her mother as a dynamic, energetic, active woman prior to the accident.

C. Ms. Kolapully has sustained a permanent and serious impairment of an important physical function

[16] Similarly, I conclude on a balance of probabilities that Ms. Kolapully’s impairment is serious. As described above, I accept her evidence that she is substantially impeded in every aspect of her activities of daily living because of her physical limitations. Beyond the physical limitations described, the physical impairments have led to what Dr. Getahun has diagnosed as chronic pain syndrome and what Dr. Gerber, a psychiatric expert, has identified as Persistent Somatic Symptom Disorder with Predominant Pain and Major Depressive Disorder. Dr. Gerber was the only independent psychiatric expert who testified at trial, and I accept his diagnosis. In other words, not only have Ms. Kolapully’s physical limitations led to serious and permanent physical impairments that substantially hinder her activities of daily living, but they have also led to psychological impairment so much so that Ms. Kolapully had a suicide attempt in June of 2015 followed by counselling by Amy O’Reilly, Ms. Tamara Austin and Dr. Ambersano. Ms. Kolapully testified that it was her sense of hopelessness from the ongoing physical impairments and feeling like a burden on her family that led to the suicide attempt. Of note was the testimony of the defence neuropsychologist, Dr. Dowhaniuk, who stated that he found no evidence of malingering and suggested that at least some of Ms. Kolapully’s experience of pain was informed by her anxiety and likely somatic disorder. Dr. Gerber squarely concluded that Ms. Kolapully’s those psychological impairments were caused by the accident and the ongoing physical impairments.

Conclusion:

[17] I dismiss the Defendants’ motion and conclude that Ms. Kolapully has sustained a permanent and serious impairment of an important physical function such that she is entitled to the non-pecuniary damages awarded by the jury.

Justice P.T. Sugunasiri

Released: 2022-09-27

[^1]: Insurance Act, R.S.O. 1990, c. l.8. [^2]: Act, ss. 267.4-267.12. [^3]: Bill 198, Keeping the Promise for a Strong Economy Act (Budget Measures), 2002, S.O. 2022, c. 22. [^4]: Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96 as amended by O. Reg. 381/03 effective October 1, 2003. [^5]: Meyer v. Bright, 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129, 110 D.L.R. (4th) 354 (Ont. C.A.), at para. 50. [^6]: Meyer at para. 24; Shipley v. Virk, 2017 ONSC 4941 at para. 15. [^7]: Ibid. [^8]: Arteaga v. Poirier, 2016 ONSC 3712 at paras. 14-15; Meyer at para. 25.```