COURT FILE NO.: 1704/17

DATE: 20221125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Martin Zmarzly

Plaintiff

• and –

Qi Cong Huang

Defendant

David Derfel and Diana Edmonds, for the Plaintiff

Catherine Bruder and Katrina Bekkers, for the Defendant

HEARD: November 15, 17-19, 22-26, 29-30 December 1-3, 7-10, 2021 February 8, 2022

JUDGMENT

Overview

[1] On June 13, 2017, Martin Zmarzly was seriously injured in a motor vehicle accident. He broke his back.

[2] Mr. Zmarzly was driving home from work when his pickup truck was struck by another truck. He was taken to the hospital by ambulance. He was in great pain. Eventually, after several days, he was diagnosed with an unstable spinal fracture. He received a posterior fusion and instrumentation for a T10-T11 vertebral body fracture.

[3] Mr. Zmarzly claims that he continues to suffer significant back pain, left knee pain, neck pain, frequent headaches, numbness from his left elbow down to his fingers and balance issues. He also experiences anxiety and depression. As a result, his ability to operate his business and earn income has been compromised as has his daily life.

[4] The defendant says Mr. Zmarzly has fully recovered.

[5] Liability is admitted.

Issues

[6] The plaintiff invites the Court to answer the following questions:

1. Did Mr. Zmarzly suffer a permanent and serious impairment of an important physical, mental or psychological function (the “threshold” question)?

2. Was this impairment caused by the defendant’s negligence?

3. What damages did Mr. Zmarzly suffer as a result?

The Evidence

Admissions

[7] The following relevant facts about the accident have been admitted:

1. The parties were involved in a motor vehicle accident that happened on June 13, 2017.

2. The defendant was operating a 2007 Ford F150 that he owned at the time of the accident.

3. The plaintiff was operating a 2017 Toyota Tundra at the time of the accident.

4. The defendant was traveling east on 9th Line approaching the intersection with County Road 27 in Simcoe County in the moments before the accident.

5. On County Road 27, there is a single lane for vehicles traveling north and a single lane for vehicles traveling south.

6. On 9th Line, there is a single lane for vehicles traveling east and a single land for vehicles traveling west.

7. The intersection had a stop sign for vehicles traveling east and west on 9th Line.

8. Vehicles traveling north and south on County Road 27 did not have a stop sign or any type of traffic control at the intersection.

9. The defendant came to a stop at the intersection and then proceeded into the intersection where he stopped again.

10. When the defendant stopped a second time at the intersection, half his vehicle was past the stop line and partially into the traveled portion of County Road 27.

11. While stopped in the intersection, it was the defendant’s intention to travel through the intersection and continue traveling east on 9th Line.

12. While partially in the traveled portion of County Road 27, the defendant hit the gas hard and struck the plaintiff’s vehicle that was traveling north in the northbound lane of County Road 27.

13. The plaintiff was wearing his seatbelt.

14. The defendant heard the plaintiff’s vehicle’s horn.

15. After the impact the defendant’s vehicle remained at the northwest portion of the intersection facing south.

16. As a result of the accident, the defendant’s vehicle was declared a total loss.

17. As a result of the accident, the plaintiff’s vehicle was declared a total loss.

18. Immediately following the accident, the plaintiff was taken by ambulance from the accident scene to Stevenson Memorial Hospital.

19. On or about June 22, 2017, the plaintiff was transferred from Stevenson Memorial Hospital to St. Michael’s Hospital.

20. On or about June 26, 2017, at St. Michael’s Hospital the plaintiff underwent a T9 - T12 posterior fusion and instrumentation for T10/11 vertebral body fracture which was performed by Dr. Jefferson Wilson.

21. At the time of the accident and until now the plaintiff is the sole shareholder, director, and officer of Kartofel Inc.

22. The plaintiff received the available limits of medical and rehabilitation benefits from his no-fault accident benefits insurer.

23. The plaintiff does not have any collateral benefits for medical and rehabilitation expenses and income loss.

Martin Zmarzly

Evidence in Chief

[8] Martin Zmarzly was 41 years old at the time of the accident. He lives alone on a one-acre property in Cookstown, Ontario. He is divorced and has two children, a 25-year-old son, Sebastian, and a 21-year-old daughter, Olivia.

[9] Mr. Zmarzly has worked in construction since he graduated from university with a degree in music. He began as a floor tile installer and eventually worked his way up to be a site-supervisor and project manager for commercial jobs looking after projects up to $500,000.

[10] In May 2016, one year before the accident, Mr. Zmarzly started his own construction business, Kartofel Inc., specializing in commercial flooring and renovations. He worked long days. Typically, he left home around 6:00 am and returned around 7:00 to 8:00 p.m. Kartofel’s work was in Toronto, mainly downtown. Travel time was 3 to 4 hours each day.

[11] During the day, his work involved attending job sites to prepare estimates, meeting with customers and supervise subtrades. In the evenings, he would do about two to three hours of paperwork each night. There was also a physical component to his work. He regularly picked up and delivered materials to job sites, including tile, flooring, and heavy bags of adhesive and grout. At times, he would assist his subtrades with their work. He did whatever was needed to get the job done on time.

[12] Kartofel’s customers were satisfied. Projects were completed on budget often ahead of schedule.

[13] Before the accident, the value of Kartofel’s jobs was from $100,000 to $300,000. The most profitable jobs were office retrofits. Mr. Zmarzly’s plan was to expand to larger jobs, from $300,000 to $600,000. He knew this would require him to invest more time and hire more employees. He planned to work until he was 65.

[14] Before the accident, Mr. Zmarzly enjoyed an active social life and many outdoor activities, including hunting, fishing, snowmobiling, riding all-terrain vehicles (“ATVing”) and motorcycling. He regularly went on short and long motorcycle trips with his friends. In the winter, he and his friends went on long snowmobile trips driving up to eight hours and then snowmobiling for two to three days. Mr. Zmarzly travelled frequently with his friends and family, across Canada and to the United States. He visited his parents in Florida twice a year, sometimes flying down and driving back with them. Mr. Zmarzly was independent in his housekeeping and home maintenance.

[15] Mr. Zmarzly was able to recount what happened in the accident in some detail. He described seeing the other truck before the collision and the impact. He remembered his truck rolling over a couple of times, and the airbags going off; he described being removed from his truck by firefighters and being transported to hospital.

[16] Mr. Zmarzly described the severe pain he endured while in hospital and being transferred to another hospital for an MRI. The pain was like a “hot lava” sensation. It was several days before an unstable fracture of his spine was diagnosed. After undergoing surgery, he remained in St. Michael’s Hospital for about a week before being transferred to West Park Hospital for two weeks of recovery and rehabilitation.

[17] After discharge from Westpark, Mr. Zmarzly returned to his home where he was cared for by his parents for two months. About three months after the accident, his father started driving him to job sites. Mr. Zmarzly experienced guilt. His back pain remained at about 5/10 until about four to five months after the accident. He was fearful of tripping and falling because of poor balance so he bought a cane which he continues to use “if things get bad.”

[18] Mr. Zmarzly described his other symptoms after the accident. Apart from the pain in his back, he had pain in his left knee if he stood or walked for a long period of time. He never had problems with his knee before and only noticed that it was a problem after surgery. Mr. Zmarzly experienced pain in his neck when he turned it to the left or with any abrupt movement, but he did not seek any help as aches and pains were to be expected after surgery. He had headaches every couple of days or so, lasting 2 to 4 hours. He had never previously suffered from headaches. The headaches came with the anxiety he was experiencing about what his work. Although not painful, his left arm was numb from his elbow to the fourth and fifth finger.

[19] Over time, these symptoms have improved, but they have not gone away. Sitting or lying in one position for a long period of time is an issue. Sitting is more painful than standing. His left knee has improved, but he still experiences pain when he is on his feet too long. It begins in his back and then migrates to his left knee. He still experiences neck pain when he is in a vehicle too long (more than two hours). He continues to have headaches, every second or third day and lasting about four hours. They come more frequently because he’s worrying more. Back pain remains a problem. By limiting his work, he can keep the pain to 3/10. If the pain reaches 5/10, he knows he must stop working before it reaches10/10. The numbness in Mr. Zmarzly’s left arm has not changed since the accident. As a result, there are certain things he carries only with his right arm.

[20] Mr. Zmarzly takes Oxycontin[^1] for his knee pain, neck pain, headaches and back pain or if it is hard to fall asleep or relax. In the past three months, he has used Oxycontin two to three times per week depending on his workload.

[21] He does not believe there has been any investigation into his knee pain, neck pain or his headaches. He thought there was some investigation into the numbness in his left arm, but he did not think there were any findings.

[22] Mr. Zmarzly still has balance problems. If he stands on one foot, he tends to fall over. This has not changed since the accident. Balance is the main thing he works on in physiotherapy because he does not want to fall and further injure himself. Balance problems affect him from the moment he wakes up in the morning. Everything he does takes more time than it did before the accident.

[23] When asked about his post-accident outdoor activities, Mr. Zmarzly said he can go for walks for up to 30 minutes and he can still go swimming. He tried to return to his other former activities, but it was too painful. He tried to ATV and snowmobile, but it was too bumpy. He experienced sharp pain through his back followed by the “hot lava” sensation, reminding him of the pain right after the accident. He made several attempts to ATV and to snowmobile, once a year after surgery and again after physiotherapy but the most he could do was 15 to 20 minutes because of the pain.

[24] He has not returned to hunting because he cannot climb trees. Since his balance has improved somewhat, he can go fishing in a boat with his father. An hour is the maximum as he cannot stand and stretch in the boat without making his father nervous.

[25] He has attempted motorcycle riding. If he rides longer than an hour he is in pain. He can no longer go on day-long or multiple-day rides. The farthest he motorcycled after the accident was Kingston. He had to sleep over and come back the next day.

[26] His social life has changed since the accident. He no longer joins his friends and coworkers doing outdoor activities. He experiences guilt and sadness. Because he is working less, he has fewer meals out with coworkers. Going out and meeting with people involves a lot of driving, which he tries to avoid. He would rather stay home and sit in his own chair than drive to somebody else’s house and drive back home in pain.

[27] From September to December 2017, Mr. Zmarzly worked about 20% of his pre-accident workload, about 20 hour per week. During that period Mr. Zmarzly hired Adrian Lasage to pick up and deliver material to job sites and do other heavy work that Mr. Zmarzly could not do. Mr. Lasage continues to be employed by Kartofel. In 2017, Mr. Zmarzly also hired his friend Joe Cutone of Kevlar Contracting, an experienced site supervisor, to look after jobs on site in Mr. Zmarzly’s absence Mr. Cutone still assists with supervising when needed.

[28] In 2018, Mr. Zmarzly was able to increase his workload to 30 hours, to about 40% of his prior contribution. He worked about 20 hours on site and 10 hours doing paperwork at home. At present, he limits himself to a maximum of 30 hours per week but tries to only schedule 20 hours. His paperwork takes longer to complete, and he makes mistakes. His invoicing is delayed. As he is on site less frequently, deadlines are not always met and the quality of Kartofel’s work has declined. His crews do not work as hard or as efficiently.

[29] Before the accident, Kartofel got jobs because of its competitive low bids. After the accident, Mr. Zmarzly often relies on Mr. Lasage or Mr. Cutone to attend sites for estimates. They make mistakes. Kartofel’s quotes are not as accurate and successful bids are not as profitable. Kartofel is not being asked to submit as many quotes as before the accident. Mr. Zmarzly senses that some of Kartofel’s former customers are awarding larger contracts to other companies. Kartofel now gets more smaller jobs, under $100,000, mainly flooring jobs that are less profitable.

[30] Mr. Zmarzly finds it is much harder to do his work now. He procrastinates. His mood has changed. He has no patience. In 2016-2017, Kartofel was making 20-30% profit. Today, it is just breaking even. Kartofel is getting smaller jobs. His workers are making money, but Kartofel is not. Kartofel is wholly dependent on its line of credit to finance its jobs.

[31] The pandemic had a significant effect on Kartofel’s business. At least 50% of its work instantly stopped, including Pearson Airport, City of York retirement homes and Toronto Hospital. Office work was also affected. There was a lot less estimate work, and no work was being done downtown during the first phase of the pandemic. This lasted for approximately one year from April 2020.

Cross-examination and re-examination

[32] In cross-examination, Mr. Zmarzly confirmed that since being discharged from hospital he has had the following complaints, with only minor improvement:

1. left knee pain

2. neck pain

3. headaches every couple of days, three to four hours in duration

4. numbness from his left elbow down to his fourth and fifth fingers

5. balance issues

6. requires a cane, from about six months after discharge until the present, from time to time.

[33] He has also become depressed and anxious because of the accident and has developed some problems sleeping.

[34] He confirmed that these problems have had a negative impact on his business, his relationships and have prevented him from participating in all his leisure activities.

[35] Mr. Zmarzly knew it was important that the doctors and assessors he spoke with after his accident receive a complete and accurate medical history from him. He was repeatedly asked if he was truthful and honest with his doctors and assessors regarding his medical history. He said that he was. Yet, when confronted with evidence that contradicted him, he admitted he was not.

Sleep apnea

[36] Mr. Zmarzly did not tell his assessors, Dr. Muller and Dr. Finkelstein, that he was diagnosed with obstructive sleep apnea in September of 2014.

Viagra

[37] Mr. Zmarzly testified that in the two years prior to the accident he took no medication other than blood pressure medication. When it was suggested that he did, he asked to be reminded. Then he admitted that he had been prescribed Viagra, but denied that it was prescribed on a regular basis. Only when confronted with evidence that he had picked up Viagra prescriptions eight times in the two years prior to the accident, including less than one month before, did he admit that he had been prescribed Viagra on a regular basis. He did not disclose this to Dr. Muller or Dr. Finkelstein.

Marijuana

[38] Mr. Zmarzly occasionally smoked marijuana before the accident. Possession was still illegal at the time. He denied smoking marijuana when asked by Dr. Hassan at Stevenson Memorial Hospital. He agreed that he was not truthful. This was an “error” on his part, he said, but he did tell all the other doctors the truth about his recreational drug use. Then it was suggested that he had also denied using any illegal drugs when asked by Dr. Bodenstein. He agreed. It was another “error” on his part.

Varicose veins

[39] Mr. Zmarzly was asked if he had any other health problems before the accident. He answered, “I think the only thing I sometimes complained to the doctor is like when I do my long hours standing on the feet, things like that but nothing out of the ordinary or a specific point I remember.” He confirmed that this was his evidence under oath.

[40] When asked about being diagnosed with varicose veins by his family doctor, Dr. Anosike, in February 2015, he agreed that he was and that this was a health problem. He then agreed that he saw Dr. Rapanos, a vascular surgeon, in November 2017, about his varicose veins, but adamantly denied complaining of pain. He claims his varicose veins were only an aesthetic concern. When confronted with Dr. Rapanos’ reporting letter stating he complained of a “dull achy pain, heaviness and itchiness of the legs”, he said he had no memory of that, but if it was in the letter, it would be true.

[41] Mr. Zmarzly agreed that Dr. Rapanos reviewed treatment options: compression stockings or surgery. Mr. Zmarzly agreed he was to choose which treatment he wished to pursue and then to go back to Dr. Rapanos. He did neither.

Use of a cane

[42] Mr. Zmarzly said he had trouble walking after the accident. However, he agreed with the discharge summary report from West Park dated July 12, 2017, which states that he was able to ambulate independently without gait aids and could use stairs without gait aids. Mr. Zmarzly was not prescribed a cane. He bought one on his own. He was concerned about falling down the stairs and re-injuring himself when he had been too long on his feet. He does not know if he told any of his health care professionals about using a cane. He did not remember using his cane when he saw Dr. Finkelstein. He did not remember telling Dr. Finkelstein he was using a cane for heel pain. He had no response to Dr. Finkelstein’s comment that the way he was using the cane did not make sense.

Headaches

[43] Mr. Zmarzly confirmed he has had headaches since the accident, and they last about three to four hours at a time. They were on and off. Asked if they came months, weeks or days at a time, he answered that the headaches definitely started months after the accident.

[44] Mr. Zmarzly did not recall mentioning his headaches to Dr. Wilson when he saw him a year after the accident. He explained that maybe it was because the headaches did not start until six months to a year after the accident. Mr. Zmarzly agreed that he told Dr. Muller and Dr. Finkelstein all his complaints due to the accident, but he did not mention his headaches to either of them. Perhaps it was because he was not experiencing headaches when he was assessed by Dr, Muller in November 2019, or when he saw Dr. Finkelstein in July 2020.

Left arm numbness

[45] Mr. Zmarzly confirmed that he has numbness in his left arm from his elbow down to his fourth and fifth fingers because of the accident. He confirmed that this was a new complaint, and he did not remember having this complaint before. When it was put to him that he had gone to his doctor three years before the accident complaining of pain and numbness in his left forearm, Mr. Zmarzly said he had no recollection of that.

[46] Mr. Zmarzly did not remember seeing Dr. Lang, a physiatrist who performed an EMG and nerve conduction study on November 19th, 2014. He denied that was true because he did not remember it. Mr. Zmarzly was confronted with Dr. Lang’s report. The report recorded that Mr. Zmarzly told Dr. Lang that he had three-month history of intense, aching pain in his forearm that was limiting his ability to lift heavy items. He did not remember that. Mr. Zmarzly maintained that prior to the accident he had no issues lifting heavy items. He denied telling Dr. Lang that he works in construction but is a project manager and did not do much heavy work. He always did heavy lifting. Mr. Zmarzly did not recall being diagnosed by Dr. Lang with a conduction block of his radial nerve.

Dr. Wilson and restrictions

[47] Mr. Zmarzly saw Dr. Wilson for follow-up appointments after his surgery in August 2017, December 2017 and June 2018. Mr. Zmarzly does not recall what he told Dr. Wilson in August 2017. However, he did agree that Dr. Wilson’s note of the visit would be accurate. The note states that Mr. Zmarzly had minimal back pain. Mr. Zmarzly then said he does not agree with the note because he was in a lot of pain at the time. Dr. Wilson told him to go to the Emergency Department or contact Dr. Wilson if he had any additional problems. Mr. Zmarzly did not go to Emergency nor contact Dr. Wilson, but he continued to have back pain.

[48] Mr. Zmarzly’s evidence is that Dr. Wilson told him he was not to lift anything over 20 pounds. He followed that restriction and continues to do so to this day. According to Mr. Zmarzly, Dr. Wilson has never lifted that restriction. Mr. Zmarzly adamantly denies that Dr. Wilson cleared him to do all his pre-accident activities.

[49] Mr. Zmarzly’s last appointment with Dr. Wilson after the surgery was on June 27, 2018. Dr. Wilson reported that Mr. Zmarzly was doing exceptionally one year after his spinal fusion and stated, “I have no specific restrictions to place on him at this juncture.”

[50] Mr. Zmarzly remembered this conversation with Dr. Wilson that day and was certain that the 20-pound restriction was never lifted. According to Mr. Zmarzly, with regard to resuming his former activities, Dr. Wilson suggested that Mr. Zmarzly take up chess. Mr. Zmarzly recalled that Dr. Wilson told him that it was not that Mr. Zmarzly could not physically do his former activities, but he could fall and injure himself.

[51] It was put to Mr. Zmarzly that he was doing dead lifts with 30 pounds in December 2017 and step-ups with 32 pounds in February 2018 during physiotherapy at Neurocore. Mr. Zmarzly explained that when he is doing physiotherapy, he is not subject to the restriction because he is under supervision. He agreed that he was not correct when he said that he did his best never to lift more than 20 pounds.

[52] Mr. Zmarzly was also referred to a July 6, 2018 Neurocore physiotherapy note, stating “Disappointed w MD’s recommendations re: leisure activities (appt w surgeon last week) surgeon lifted all restrictions but to proceed with caution + to progress gradually.” Mr. Zmarzly’s only response to the note was to say that he always proceeds with caution.

[53] Dr. Wilson was not called as a witness. Apparently, he was unavailable.

Left knee pain

[54] Mr. Zmarzly confirmed his left knee pain began after the accident, and before he returned to work. However, in his examination for discovery in June 2018, Mr. Zmarzly stated that his problem with his left knee started about six months prior. It flared up with exercise or walking. His knee was not a factor in the six months following surgery. He had stated that he did not know if his knee problem was accident related. Mr. Zmarzly agreed that his answers given under oath on his examination for discovery were true. He disagreed with the suggestion that his evidence keeps changing. After all he has been through, he said he cannot say exactly when his knee pain started.

[55] Mr. Zmarzly was also asked about knee pain that he had complained of during physiotherapy at Neurocore in April 2018. The Neurocore note recorded Mr. Zmarzly reporting that he had just returned from a trip down south, and that he had done a lot of walking for three days. Initially, Mr. Zmarzly was uncertain as to which trip was being referred to. He then agreed that he had travelled to a car auction in Pennsylvania, and he agreed with the note stating his belief that the knee pain may have been caused by the workout he had done the day before or by all of the walking and driving he had done. Mr. Zmarzly further agreed that on May 25, 2018, he was jogging, walking and skipping at Neurocore and was “feeling good.”

Hours worked

[56] Mr. Zmarzly confirmed that before the accident, he worked a minimum of 60 hours per week, leaving his home at 6:00 a.m. and returning at 7:00 to 8:00 p.m. He worked five or six days per week. He did about 10 to 14 hours of paperwork at home each week. He disagreed that he disclosed to Tanja Jakovljevic or Andy Beecroft that he worked eight hours per day, as stated in their functional assessments. He appeared confused when confronted with their reports.

[57] Mr. Zmarzly was also referred to his examination for discovery transcript from June 2018, in which he stated that the 60 hours per week that he worked before the accident included 20 hours of driving and 10 hours of paperwork. Mr. Zmarzly agreed that those hours were correct.

[58] Mr. Zmarzly confirmed his evidence that he was eager to work more hours to earn more money and build his company. He was then referred to his examination for discovery transcript in which he was asked if he started his own company to make more money or to have more independence or to have better hours, to which he had answered, “better hours and independence.” Mr. Zmarzly explained he wanted better hours and a better lifestyle, which had nothing to do with reducing his hours.

Travel and leisure activities

[59] Mr. Zmarzly was asked in cross examination what kind of travel he had done since the accident, whether he had travelled “all over.” His answer was clear, “Only between my house, my work and my parents' cottage.”

[60] Then, when asked if he had travelled outside the province he answered, “Yes. We went to Pennsylvania.”

[61] Asked if there was anywhere else, he answered, “I went to Florida to visit my parents.” Asked how many times, he recollected he went to Florida twice.

[62] He was then asked more questions about his travels. Mr. Zmarzly acknowledged that he went on the following trips:

[63] September 2017 – Victoria, British Columbia

Three months after the accident he travelled to British Columbia where rented a vehicle and travelled over 1,000 miles over a five-day period, He was the driver for 25% of the 1,000 miles. Initially, Mr. Zmarzly testified he went to British Columbia two years after the accident and denied he had travelled to British Columbia within four months of the accident. He then agreed with his statement in his examination for discovery that he travelled to B.C in the first year after his accident for a vacation with his children to visit a friend. Then he changed his evidence again to say that he travelled alone to see the friend. When Mr. Zmarzly learned that the trip had been claimed as a business expense, Mr. Zmarzly stated that it was a business trip, to meet an investor and discuss a new project. After the business meeting, Mr. Zmarzly rented a car and visited with a friend in B.C. The car rental was personal, but it was charged to the business. That was a mistake he said.

[64] January 2018 – Florida

Mr. Zmarzly flew to Orlando on a business trip to attend a construction expo and then rented a vehicle and drove to Sarasota to visit his parents.

[65] January 2018 – Kapuskasing

Mr. Zmarzly travelled more than 800 km by car to Kapuskasing, Ontario to go snowmobiling.

[66] March 2018 – Haileybury

When asked whether he travelled in March 2018 to Haileybury to go snowmobiling, Mr. Zmarzly said that the Haileybury trip was to Barry’s Bay to visit his friend Joe Catalano. When referred to Visa accounts showing Haileybury which is nowhere near Barry’s Bay, Mr. Zmarzly was not sure if this was a snowmobiling trip. He could not recall. Haileybury is more than 400 km from Cookstown.

[67] April 2018 – Harrisburg, Pennsylvania

He travelled by car to Harrisburg to attend a car auction which with a friend.

[68] May 2018 – Nova Scotia

[69] July 2018 – Ellicottville, New York

[70] August 2018 – Newfoundland

[71] September 2018 - North Bay

Mr. Zmarzly went on a motorcycle trip to at least as far as North Bay. When he stopped in to get his motorcycle washed at the Barrie Harley Davidson dealer, he described the motorcycle trip as a “long one.”

[72] September 2018 – Niagara Falls

[73] October 2018 – British Columbia

[74] November 2018 – Barry’s Bay - hunting

[75] January 2020 – Florida

[76] January 2020 – Barry’s Bay

[77] February 2020 - Haileybury

Lay witnesses

Family and friends

[78] Olivia Zmarzly is Mr. Zmarzly’s daughter. She has a close relationship with her father. He opens up more to her than to others. Since the accident, her father has not been as happy as he was before. He is more depressed. He does not express as much pride in his work. Before the accident, they would go ATVing and snowmobiling together. Since the accident, they have done neither. Sometimes her father uses a cane. He cannot lift as much. He tells her about his pain. Olivia Zmarzly was not cross-examined.

[79] Urszula Zmarzly is Mr. Zmarzly’s mother. She testified about how hard it was to see her son in such extreme pain in the hospital. She and her husband cared for him when he came home from the hospital. He cannot do bathroom cleaning, but she believes he can manage cooking. She still assists her son with cleaning and some cooking. He cannot bend. He cannot lift things. Before the accident he was a very happy person. He enjoyed life every day. Now his life has changed completely. He is not the same. Urszula Zmarzly was not cross-examined.

[80] Jerzy Zmarzly is Mr. Zmarzly’s father. He and his wife lived with Mr. Zmarzly after the accident for two months. He drove Mr. Zmarzly to job sites from August to October 2017. He still helps his son when needed. He knows his son is always in pain but does not want to complain. His son is sad that he cannot help his parents as he did before the accident. Jerzy Zmarzly used to enjoy fishing with his son, but his son does not fish anymore. Jerzy Zmarzly was not cross-examined.

[81] Wojtiech Zmarzly is Mr. Zmarzly’s brother. In 2019, he was hired by Mr. Zmarzly to work for Kartofel to deliver material, remove debris, meet with contractors and be present on site. Wojtiech Zmarzly testified that Mr. Zmarzly is limited in the things he can do now at work. He is not the same person as before the accident. He used to be a very nice guy. He was very loved and respected by his workers. He got along with everyone. He was a go-getter. After the accident, Wojtiech Zmarzly says, it always seems like something is troubling Mr. Zmarzly. He cannot sit or stand for long periods. Wojtiech Zmarzly was not cross-examined.

[82] Giovani Marotta has been friends with Mr. Zmarzly for ten years. Before the accident, the two frequently went on motorcycle trips together, including one long trip every year from Thursday to Sunday. Mr. Marotta has motorcycled with Mr. Zmarzly since the accident, but Mr. Zmarzly has not gone on any of the annual motorcycle trips. Their last motorcycle trip was to the Muskokas. Every time they stopped for fuel, Mr. Marotta observed that Mr. Zmarzly would have to sit because he was in pain. Before the accident, they snowmobiled together, but Mr. Marotta has not snowmobiled with Mr. Zmarzly since the accident. Before the accident, Mr. Marotta would refer work to Mr. Zmarzly. Since the accident, Mr. Zmarzly’s demeanour has changed. He does not jump out of his truck like he used to. Over the past year, Mr. Zmarzly has stopped returning calls and has stopped accepting referrals. Mr. Marotta was not cross-examined.

[83] Giuseppe Catalano is one of Mr. Zmarzly’s closest friends and has known him 18 to 20 years. Mr. Catalano employed Mr. Zmarzly as a supervisor before he started Kartofel. Mr. Zmarzly was a jolly and peaceful person. He was physically very capable. He never missed a day’s work due to an injury. He never missed a deadline. The installers who worked for Mr. Catalano all spoke positively of Mr. Zmarzly.

[84] Mr. Catalano and Mr. Zmarzly did a lot of hunting, snowmobiling, ATVing and motorcycle trips together. Before the accident, they probably saw each other once a week. They would go out together on Sundays on their motorcycles. They went on annual motorcycle trips together. At least once a month they would get together for a weekend with other friends. In the past eight months, however, they have seen each other probably only twice. They no longer see each other because they no longer go riding or ATVing together. They have not done a motorcycle trip together for two years. Mr. Zmarzly cannot go out on long snowmobile rides. Because of his back pain, he had to stop. Mr. Catalano has hunted with Mr. Zmarzly since the accident, as recently as this fall’s deer season at Mr. Catalano’s property in Barry’s Bay. They hunted Monday, Tuesday and Wednesday. Mr. Zmarzly did not climb up to his deer stand.

[85] Mr. Catalano believes that Mr. Zmarzly is not the same person he was before the accident. Mr. Zmarzly cannot do the things he did before the accident. Mr. Catalano can tell that Mr. Zmarzly is in pain. Mr. Catalano sees him wincing when he moves. He believes Mr. Zmarzly “pushes things under the rug” so people will not know what he is going through.

Kartofel

[86] Wesley Myles is the Chief Executive Officer of Clifton Blake Asset Management, a private equity firm and developer and one of Kartofel’s customers. Mr. Myles knows how demanding the work is for a commercial project manager, physically and mentally. Intense coordination is required. Mr. Myles has worked with Mr. Zmarzly from 2006 until recently. Before the accident, Mr. Zmarzly was one of the better contractors he worked with. Mr. Zmarzly was a “dynamic individual.” Mr. Myles knew if he called Mr. Zmarzly at any time, he would receive a call back within 15 minutes. He was “a joyful guy”, hardworking with a good sense of humour. He saw him doing lot of heavy work. Physical work is always required of a supervisor on site. Mr. Zmarzly’s reputation before the accident was “getting it done.” He always got things done.

[87] Since the accident, Mr. Zmarzly is not the same person he was before. His energy level is not the same. He has cut down on the amount of work he has taken on with Clifton Blake. He has given up certain work types that he used to do. Before, he was building his company, building his network. Now, Mr. Zmarzly is just coordinating flooring trades, a subset of what he used to do. Before the accident, Mr. Myles gave him “full-on jobs.” Not now. Mr. Zmarzly is not willing to take on that work at the moment, and Mr. Myles is not sure he would be prepared to give it to him. On the job site now, Mr. Zmarzly is simply coordinating. Other workers do the physical work. Mr. Zmarzly no longer works with the same intensity.

[88] Adriano Verre is a general contractor doing commercial interior alterations. Mr. Verre is a part-owner of his company and a site manager. Prior to his accident, Mr. Verre hired Kartofel to do commercial washroom and kitchen renovations, including flooring, wall tiles and quartz countertop installations. He has seen Mr. Zmarzly deliver material and help unload boxes of tiles and bags of mortar and grout. A box of tiles weighs about 50 to 60 pounds. A bag of mortar or grout weighs about the same. Prior to the accident, the quality of Kartofel’s work was excellent. Kartofel’s prices were competitive. Mr. Verre did not look to other companies. Before the accident, Kartofel was doing all of Mr. Verre’s company’s washrooms and kitchens. The largest project that he gave to Kartofel was worth close to $200,000, over six months.

[89] Since Mr. Zmarzly’s accident, Mr. Verre has not hired Kartofel. When Mr. Zmarzly was out of work for a period, immediately after the accident, Mr. Verre had to look elsewhere.

[90] Stan Woodfine is the owner of All-Winn Construction which specializes in interior office “buildouts.” Mr. Woodfine has known Mr. Zmarzly for more than ten years. Kartofel did work for All-Winn. He has seen Mr. Zmarzly working on job sites. Mr. Woodfine described Mr. Zmarzly as a “hands-on guy” before the accident, moving flooring and other material. Mr. Zmarzly was extremely easy to deal with and was always available. After the accident, Mr. Woodfine has not seen Mr. Zmarzly as much on site. Reaching Mr. Zmarzly by phone is more difficult. Mr. Zmarzly’s conversational tone is more stressed. His workers handle the materials. Mr. Woodfine was not cross-examined.

[91] Giuseppe Cutone owns Kevlar Construction. He has known Mr. Zmarzly for about 13 to 15 years. He knew Mr. Zmarzly in his former position as a project manager and interacted with him daily. Kevlar Construction also did work for Kartofel. Mr. Zmarzly was great to work with. He was very knowledgeable and had a very good demeanor. Mr. Cutone helped to supervise sites when Mr. Zmarzly was unable to after the accident. Mr. Zmarzly is not the same person anymore. He cannot do what he did before the accident.

[92] Adrian Goldenberg is a general contractor and owns AB Construction. He has known Mr. Zmarzly for about ten years and has worked with him. Before the accident, Mr. Zmarzly regularly came to job sites, delivered materials, helped with installation and demolition and clean-up. He would see Mr. Zmarzly helping his crew unload material. If his crew needed something, Mr. Zmarzly would get it. Since the accident, Mr. Zmarzly does not do the same things. He has lost a lot of his drive. He keeps things short on site because he is in pain. He is not the person he was. Mr. Goldenberg has gone snowmobiling with Mr. Zmarzly since the accident.

[93] In a very brief cross-examination, Mr. Goldenberg confirmed that AB Construction sent Kartofel about $172,000 in work in 2018, and about $200,000 in work in 2019. He was pleased with Mr. Zmarzly’s work and continues to send Kartofel business.

[94] In July 2018, Mr. Zmarzly hired Adrian Lesage to do the physical work that Mr. Zmarzly could no longer do. Mr. Lesage does all the heavy work, including material pickups, deliveries and dump runs. He could see that Mr. Zmarzly is aggravated and in pain; he is irritable and no longer a jovial fellow.

[95] In cross-examination, Mr. Lesage agreed that he did not really know Mr. Zmarzly before the accident and only got to know him in July of 2018.

[96] Ms. Prosper was employed as Kartofel’s bookkeeper. She kept track of all invoices and expenses using QuickBooks. Kartofel’s fiscal year is from September 1 to October 30. There are no cash transactions. Ms. Prosper’s bookkeeping records were used to prepare the corporate tax returns and there were no tax reassessments.

[97] QuickBooks financial reports were filed on consent, including balance sheets and profit and loss statements, detailed sales reports by customer and by item, and a Summary of Kartofel Financial Statements 2016 – 2020.

Dr. Emeka Anosike

[98] Dr. Anosike has been Mr. Zmarzly’s family physician since before the accident. His independent recollection of Mr. Zmarzly’s medical history was limited. Most of his testimony depended upon his referring to his clinical notes and records for Mr. Zmarzly. Mr. Zmarzly had not seen Dr. Anosike in person for two years because of the pandemic.

[99] Dr. Anosike recalled that Mr. Zmarzly had reported back pain to him, but he could provide little detail and there was almost nothing recorded in his notes about Mr. Zmarzly’s complaints of back pain. There is no mention of back pain on July 10, 2017, when Mr. Zmarzly saw Dr. Anosike after his surgery to have his staples removed. The first reference to back pain does not appear in Dr. Anosike’s notes until May 28, 2018, when Dr Anosike wrote “Mr. Zmarzly working hard with physio; elicits back pain from previous spine.” On March 25, 2020, he wrote “back pain acts up and uses prn oxcocet with good effect.” Dr. Anosike acknowledged that he did not record all of his discussions with Mr. Zmarzly about his back pain.

[100] On September 11, 2017, Mr. Zmarzly saw Dr. Anosike about his varicose veins and was referred to Dr. Rapanos. On January 22, 2018, when Dr. Anosike first prescribed Oxycodone for Mr. Zmarzly, his notes state: “Varicose veins - pain and discomfort increased after the days on his feet” and “Recommended Compression Stockings.” Dr. Anosike’s evidence at trial was that he prescribed Oxycodone to Mr. Zmarzly on that day for back pain. However, back pain is not reported his notes for that visit.

[101] In August 2019, Dr. Anosike referred Mr. Zmarzly back to Dr. Wilson because of his back pain. In November 2019, Dr. Anosike noted that Dr. Wilson’s office was triaging end of August bookings. Yet, there was no evidence that Mr. Zmarzly saw Dr. Wilson again. Dr. Anosike had no further referral notes from Dr. Wilson.

[102] Dr. Anosike continues to prescribe Oxycodone for Mr. Zmarzly’s back pain. There are notes recorded of the prescription renewals, but no notes with the renewals mentioning back pain.

[103] Dr. Anosike’s records from September 2014, record that Mr. Zmarzly complained of numbness and pain in his lateral left forearm that was aggravated by lifting or grabbing. Dr. Anosike referred Mr. Zmarzly to Dr. Lang.

[104] Dr. Anosike also confirmed previous complaints and diagnoses relating to hypertension, obesity, elevated cholesterol, mental health and sleep apnea. There were no complaints by Mr. Zmarzly to Dr. Anosike after the accident of headaches, neck pain, knee pain or balance issues.

Experts

[105] Several expert reports were filed on consent. Six experts testified. Their qualifications were recognized on consent.

Reports

[106] I have considered the following reports.

[107] An In-hospital Functional Assessment was prepared on June 26, 2021 by Tanja Jakovljevic, a registered nurse, to establish Mr. Zmarzly’s functional status related to his reported pre-accident personal care, homemaking and home maintenance activities.

[108] In-home Functional Assessments were prepared by Andy Beecroft, an occupational therapist, on July 14, 2017 and December 5, 2017 (an update).

[109] Mr. Zmarzly reported that he had seen a specialist about his varicose veins which he had prior to the accident. There is no reference to Mr. Zmarzly needing or using a cane.

[110] Alex Bergin, a physiotherapist, provided his Future Physiotherapy Recommendations in a letter dated December 5, 2019, and prepared a physiotherapy report on April 30, 2018.

[111] Carolyn Seaquist, CPA, prepared a Cost of Care Report, dated December 10, 2019, that calculated the present value for the Future Medical and Rehabilitation Costs, a 5% allowance for financial management and administration, future medical and rehabilitation costs and Future Housekeeping and Home Maintenance costs.

Rena Neufeld

[112] Ms. Neufeld performed an Occupational Therapy In-home Functional Assessment in September 2019. Her opinion is informed by information she received from Mr. Zmarzly. Her review includes information regarding his medical records, observations of him as he engaged in activities around his household and physical measures of his range of movement. She also administered a series of “inventories.”

[113] She considered, what she described as, subjective findings and objective findings. Subjective findings are based on what Mr. Zmarzly tells her. Objective findings were based on her “eyeballing” measurements of Mr. Zmarzly’s range of motion. Except for his back, he had a full range of motion. Her objective measurements take into account restrictions, as reported to her by Mr. Zmarzly. Although she did not do a lifting test, Mr. Zmarzly told her that he was restricted to lifting no more than 20 pounds.

[114] Her assessment does not mention knee pain or neck pain.

[115] In Ms. Neufeld’s opinion, some of the barriers preventing Mr. Zmarzly from resuming his pre-accident personal care tasks and activities of daily living were:

• Vertebral fractures and subsequent spinal fusion surgery following accident

• Ongoing lower back pain, buttock pain and medical restrictions (lifting)

• Numbness of left upper extremity

• Decreased - range of motion of trunk, sitting tolerance, walking tolerance, ability to kneel, ability to lift, balance

• Ongoing - lower back and buttock pain and medical restrictions (lifting), headaches and dizziness, sleep difficulties and fatigue, cognitive and emotional impairments

• Score of moderate disability on the Oswestry Disability Questionnaire

• Score below normal range on the Montreal Cognitive Assessment (24/30)

• Score of 35.8% on Disabilities of the Arm, Shoulder and Hand

• Score in moderate range on functional subscale of Henry Ford Headache Inventory

• Score of moderate anxiety on Beck Anxiety Inventory

• Score of moderate depression on Beck Depression Inventory

[116] Considering these barriers, along with the severity of Mr. Zmarzly’s injuries, his physical and emotional impairments, and the heavy and repetitive nature of some of Mr. Zmarzly’s home making and personal tasks, Ms. Neufeld concluded that homemaking and attendant care assistance was justified and necessary.

[117] She recommended various assistive devices including a grab bar, bathmat, sock aid, dressing stick, long handled tub scrubber and toilet brush. A cane is not listed in the recommended assistive devices or anywhere else in the report.

[118] She recommended attendant care services for bathroom cleaning, toenail care, bed making, linen changes and meal preparation. A total of 9.33 hours per week.

[119] She also recommended housekeeping services for: dishwashing, vacuuming, mopping, dusting, garbage removal, gardening, lawn care and snow removal. A total of 9.75 hours per week, not including lawn care and snow removal.

[120] Ms. Neufeld opined that Mr. Zmarzly would benefit from

• occupational therapy

• physiotherapy

• massage therapy

• rehabilitation support worker to facilitate return to social and leisure activities

• involvement of a psychologist

• ongoing follow-up with surgeon and family physician

• referral to a neurologist is recommended for further investigation of client’s headaches, dizziness, balance impairments and numbness of left upper extremity

• referral to an audiologist is recommended for further investigation of client’s changes in hearing

• neuropsychological testing is recommended due to cognitive impairments and reduced Montreal Cognitive Assessment score (24/30)

• a home modification assessment is recommended as home modifications may be required to increase client’s safety and accessibility within his home

[121] Ms. Neufeld provided cost estimates for all her recommendations.

Vincent Yip

[122] Mr. Yip is a physiotherapist. In December 2020, he completed a Functional Capacity Evaluation and a Job Site Assessment. Mr. Yip describes Mr. Zmarzly as a self-employed owner/flooring installer, but his evaluation assumes Mr. Zmarzly works as a flooring installer, based on what Mr. Zmarzly told him. Because of the accident, Mr. Zmarzly can no longer do the heavy flooring work and has had to hire three employees and rely on sub-trades to do that work.

[123] The Chief Complaints/Symptoms section of his report lists: lower back pain, left knee pain, left upper extremity numbness (left elbow and fourth and fifth fingers), headaches and sleep disturbance. There is no mention of a cane being used.

[124] Mr. Yip determined the physical demands for a flooring installer, taking into account equipment and materials used, as well as the tasks involved. Mr. Yip also relied on the National Occupational Classification (NOC) 7295 Floor Covering Installers. He then conducted a physiotherapy assessment, followed by a standardized Work Well functional test. Mr. Yip was satisfied that Mr. Zmarzly gave his full effort on the assessments and that the results accurately reflect his functional capacity.

[125] Mr. Yip concluded that Mr. Zmarzly did not meet the strength, positional and coordination demands required to return to his pre-accident work as a Floor Covering Installer. Specifically, his functioning is limited for standing, walking, ladder climbing, lifting, carrying, pushing/pulling, sustained forward bending, reaching below bench level, and kneeling.

Dr. Eyal Bodenstein

[126] Dr. Bodenstein provided his opinion as Mr. Zmarzly’s treating psychologist. He was qualified as an expert to provide his psychological assessment, diagnosis and recommended treatment for Mr. Zmarzly. He acknowledged that he was not qualified to provide an opinion as to the origin of pain or the veracity of pain complaints. Dr. Bodenstein authored a psychological assessment report and treatment plan dated December 6, 2017, the purpose of which was to determine any psychological impairment caused by the accident, to explore if Mr. Zmarzly could benefit from treatment and propose reasonable and necessary psychological intervention. He also prepared a psychological progress report on November 17, 2021.

[127] Dr. Bodenstein referred Mr. Zmarzly to Robert Brown, a Road Safety Consultant and Driver Rehabilitation Specialist. Mr. Brown did not give evidence, but prepared a passenger, driver and pedestrian reintegration assessment report dated May 2, 2018, that was made an exhibit and on which Dr. Bodenstein relied. Mr. Brown’s report is based on self-reporting by Mr. Zmarzly and Mr. Brown’s observation of his driving and as a passenger. In his summary of his findings, Mr. Brown confirms that Mr. Zmarzly suffers from traffic related anxiety as a driver, passenger and pedestrian. Mr. Zmarzly reported that he had resumed driving, but not as comfortably, confidently, or frequently as before the accident. Before the accident, he drove a vehicle approximately 48 to 50 hours per week. After the accident, he drives approximately 16 hours per week. He reports experiencing situational anxiety, through exposure to traffic, and anticipatory anxiety, anxious feelings, and thoughts prior to vehicular travel.

[128] Mr. Brown recorded what he was told by Mr. Zmarzly and what he observed when Mr. Zmarzly was driving. Mr. Zmarzly listed his “anxiety provoking” traffic situations that included: approaching and entering intersections, stops, busy city traffic and lane changes. Mr. Zmarzly also identified one “avoidance” situation, which he will not do: “long distance driving (absolute maximum of 3 hours).” Mr. Zmarzly responded positively to the recommendation of treatment by training and coaching and was ready to engage to feel more comfortable, confident, and less anxious as a driver, passenger and pedestrian. There was no evidence that Mr. Zmarzly pursued the recommended treatment by Mr. Brown.

[129] Initially, in December 2017, Dr. Bodenstein diagnosed Mr. Zmarzly with Adjustment Disorder, Specific (isolated) phobias (automobile anxiety-driver) and Other Sleep Disorders. In forming his opinion Dr. Bodenstein relied on a diagnostic interview with Mr. Zmarzly in September 2017 and psychometric measures completed by Mr. Zmarzly. He also reviewed the In-Hospital Functional Assessment dated June 16, 2017 and considered the cognitive and emotional problems that Mr. Zmarzly had reported in that assessment.

[130] In October 2019, he conducted further diagnostic interviews, reviewed additional medical documents and had Mr. Zmarzly complete psychometric measures again. He also took into account the psychotherapy sessions Mr. Zmarzly had been attending with him since 2018. The psychometric measures revealed “severe range” for depression (an increase over his initial score that fell in the moderate range), moderate level for hopelessness (an increase over his initial score that fell in the minimal range) and moderate range for anxiety (an increase over his initial score that fell in the minimal range).

[131] In December 2017 and October 2019, Dr. Bodenstein administered the Personality Assessment Inventory (PAI), “a comprehensive inventory of adult personality that yields various scales that assess validity of presentation, the presence and severity of various clinical syndromes, interpersonal style, and orientation to treatment.” The validity indexes are designed to assess factors that could distort the results of testing, including failure to complete test items properly, carelessness, reading difficulties, confusion, exaggeration, malingering, or defensiveness. Mr. Zmarzly’s scores for these indicators were in the normal range, confirming that “Mr. Zmarzly answered in a reasonably forthright manner and did not attempt to present an unrealistic impression that was either more negative or more positive than the clinical picture would warrant.” In Dr. Bodenstein’s opinion, Mr. Zmarzly’s answers were truthful, straightforward and consistent with no exaggeration of symptoms.

[132] In October 2019, Mr. Zmarzly advised Dr. Bodenstein that he was unable to stand for even five minutes because of back pain and that he had not resumed riding an ATV, a snowmobile or motorcycle and had not resumed hunting.

[133] In February 2021, Dr. Bodenstein prepared a Psychological Progress report and Second Treatment Plan. At this point, Mr. Zmarzly had completed twelve psychological therapy sessions. In forming his opinions, Dr. Bodenstein again relied upon his diagnostic interview and therapy sessions with Mr. Zmarzly and psychometric measures completed by Mr. Zmarzly. The psychometric measures revealed moderate range for depression (a return to the same range as during his initial assessment), minimal level for hopelessness (a return to the same range as during his initial assessment) and mild range for anxiety (still an increase over his initial score that fell in the minimal range).

[134] In his testimony, Dr. Bodenstein confirmed his original diagnosis of Adjustment Disorder with mixed anxiety and depressed mood, and Specific (isolated) Phobias (automobile anxiety-driver). Dr. Bodenstein recommended ongoing psychological therapy and assessment as reasonable and necessary to address anxiety, depression and pain management. In Dr. Bodenstein’s opinion, Mr. Zmarzly has minimized his difficulties and is suffering more than he is willing to show. He puts on a happy face despite being overwhelmed.

[135] In Dr. Bodenstein’s opinion, Mr. Zmarzly has a serious psychological impairment. The combination of pain, frustration, depression and anxiety as a result of the accident has adversely affected his ability to do his job and enjoy his social life. Although Dr. Bodenstein is recommending treatment, he not expect significant change.

Dr. Paul Muller

[136] Dr. Muller is a neurosurgeon. He provided his opinion regarding Mr. Zmarzly’s diagnosis, the nature and extent of his impairments, the cause of his impairment and on issues relating to the threshold.

[137] Dr. Muller assessed Mr. Zmarzly on November 22, 2019. Mr. Zmarzly identified the following complaints:

• pain around the left torso and rib area

• sleep disturbance as a consequence of the torso pain

• numbness in both buttocks

• numbness in the left forearm and hand

• general balance difficulty, a disequilibrium when he moves quickly

• left knee pain and soreness.

[138] Mr. Zmarzly’s complaint of torso pain was described by Mr. Zmarzly as a recurrent radiation of a hot painful sensation around the left torso, rib area, similar to the pain he experienced after the accident and before surgery. It is made worse by twisting and turning. It wakes him up at night and prevents prolonged sitting. It can be severe for several minutes and occurs one to ten times per day.

[139] The sleep disturbance related to the torso pain was not discussed by Dr. Muller apart from noting that it occurred because of the pain. Mr. Zmarzly experienced when he moved in bed.

[140] Dr. Muller was asked about the “burning” that Dr. Muller mentioned Mr. Zmarzly experiencing in his buttocks. However, Dr. Muller had made no mention of Mr. Zmarzly experiencing “burning” in his buttocks. It was numbness in his buttocks that Mr. Zmarzly complained of. Nevertheless, Dr. Muller responded to the question without clarifying whether he was commenting on numbness or burning. He assessed it as a subjective symptom not yet diagnosed. He stated it caused no functional difficulty. It may raise a question relating to the lumbar spine and soft tissue injury. Dr. Muller did not say that buttock numbness was caused by the accident.

[141] With respect to the numbness Mr. Zmarzly complained of in his left forearm and hand, Dr. Muller wondered if it was related to an ulnar radiculopathy or neuropathy. He was unsure. He was aware, however, that Mr. Zmarzly had complained of the same numbness in 2014. Dr. Muller had reviewed Dr. Lang’s October 2014 report. The x-ray image referenced in that report identified a small ossification in Mr. Zmarzly’s elbow. In Dr. Muller’s opinion, this may be an early manifestation of diffuse idiopathic skeletal hyperostosis (“DISH”). Dr. Muller did not think that there was a functional impairment related to the arm and hand numbness.

[142] The general balance difficulty which Mr. Zmarzly complained of was addressed by Dr. Muller only in the context of a possible head injury. Dr. Muller diagnosed Mr. Zmarzly as having had a concussive head injury with signs of post concussive syndrome, some alterations in cognition and a sense of reduced memory. However, he concluded that his diagnoses of post-concussion syndrome had resolved by the time he saw Mr. Zmarzly.

[143] Dr. Muller did not pursue Mr. Zmarzly’s complaint of left knee pain and soreness, noting that there was nothing obviously identifiable as the source of that knee pain. He expressed no opinion on it.

[144] In addressing the pain that Mr. Zmarzly complained of in his left torso and rib area, Dr. Muller provided a detailed explanation of the injury Mr. Zmarzly’s back. Considering the medical reports and the images taken of Mr. Zmarzly’s back, Dr. Muller the identified five fractures:

1. a fracture of the anterior osteophyte

2. a rupture of the anterior longitudinal ligament with associated splaying of the disc

3. a splitting or splaying of the disc space and tearing of the annulus fibrosus

4. a fracture of the end plates on either side of the disk

5. a fracture on both sides of the facet joint

[145] Dr. Muller observed that the six vertebrae above the fracture were fused into a solid boney mass as a result of the DISH osteophytes. He also identified a bone fragment.

[146] Dr. Muller described extra boney material on the left side of the intervertebral frenum level. This is significant because it is where the nerve root exits the spinal cord to form one of the peripheral nerves that goes to the ribs, flank and chest wall. He believes that this boney material is related to the disc or facet fracture and may have resulted in compression of the nerve root. This would explain the pain and lava like sensation that Mr. Zmarzly complains of.

[147] In Dr. Muller’s opinion, one of the traumatic effects of the left facet fracture Mr. Zmarzly suffered is a T10 radiculopathy. The nerve roots have been affected and this causes pain. The surgery appropriately stabilized his spine, but there was no decompressive component to the surgery to minimize the effect on the nerves in the area. Decompression is taking away bone to give the nerves and other structures more room. His interpretive opinion is that there is probably still some irritation of the nerve root which would cause the pain. However, Dr. Wilson also explained that pain can become sensitized such that the pain persists even after the original thing that caused it has disappeared.

[148] From the medical history and imagery alone, Dr. Muller cannot say with certainty whether Mr. Zmarzly has DISH or ankylosis spondylitis. More testing and investigation would be required to confirm a diagnosis. However, from a practical surgical point of view, it makes little difference. Both conditions end up causing or potentially causing some spinal deformity. Ankylosis spondylitis tends to cause a forward bending deformation, and DISH tends to fuse the spinal canal. Patients who have either condition are more susceptible to the effects of trauma. A rigid structure tends to break rather than bend.

[149] In addition to reviewing Mr. Zmarzly’s medical records, Dr. Muller considered his observations and examination of Mr. Zmarzly. He considered Mr. Zmarzly’s history and what he was told by Mr. Zmarzly.

[150] Dr. Muller stated that Mr. Zmarzly exhibited no sign of pain behaviour or exaggeration. An example of pain behaviour would be when a patient reports profound pain when being touched or manipulated in a way that clearly should not result in pain. Pain, Dr. Muller explained, is a subjective phenomenon. It can have organic origins and be very real. It can also have psychological origins and yet be just as real. Dr. Muller uses a variety of assessment methods to determine whether a patient’s pain complaints are legitimate. In Dr. Muller’s opinion, Mr. Zmarzly presentation was genuine, and his pain complaints were legitimate.

[151] In Dr. Muller’s opinion, Mr. Zmarzly would have carried on as he had in 2017 before the accident, if the accident had not happened. He concluded that Mr. Zmarzly cannot do the things he did before the accident as a result of the pain he is experiencing from the accident. He does not have the stamina he had before. He cannot do the physical activities he did for work or enjoyed for leisure. He cannot lift as much. So, for example, it is reasonable that he cannot shovel snow, which entails a lot of lifting. It is reasonable that he cannot garden. That entails a lot of stooping. His upper limit for lifting would probably be 30 pounds. His lifting or bending limit is reasonably determined by his pain. If he experiences back pain, he should limit his activity, particularly lifting and stooping.

[152] Dr. Muller does not anticipate Mr. Zmarzly will have impairments related to DISH as he gets older. His impairments are from the accident, and they are likely to be permanent.

Dr. Joel Finkelstein

[153] Dr. Finkelstein is an orthopaedic surgeon who specializes in the area of spine trauma, fractures and degenerative issues of the spine. He has performed over 3,600 spine operations.

[154] Dr. Finkelstein assessed Mr. Zmarzly on July 7, 2020. He was the only witness called by the defence.

[155] Mr. Zmarzly identified the following complaints to Dr. Finkelstein:

• left side back and lateral ribcage and mid-back area pain that travelled up and down the whole left side of his body

• numbness in buttocks

• numbness in the left forearm and hand

• soreness in his left heel left knee pain and soreness

• soreness in the back of left knee

• intermittent neck pain

[156] Dr. Finkelstein reviewed Mr. Zmarzly’s medical history including documents, imaging and clinical notes. He interviewed Mr. Zmarzly and did a physical examination, including a neurological examination.

[157] In Dr. Finkelstein’s opinion, Mr. Zmarzly had fully recovered from his surgery. His fractures had healed, and his rehabilitation was complete. His recovery was consistent with Dr. Finkelstein’s expectations and experience with this type of surgery. He would expect him to heal well with little long-term impairment. There was no restriction on Mr. Zmarzly returning to his pre-accident activities. Whatever Mr. Zmarzly did before the surgery, in Dr. Finkelstein’s opinion he could do after the surgery.

[158] Mr. Zmarzly’s complaints of pain were not due to the accident or the surgery. In Dr. Finkelstein’s opinion, his ongoing pain was more related to the DISH than specifically due to the accident or the fracture. Mr. Zmarzly’s has an arthritic degenerative condition that may be a cause of pain. DISH and the associated pain were not caused by the accident. Back pain is common, and it is more common in persons with DISH who are overweight.

[159] There is no permanent and serious impairment of a physical function in Dr. Finkelstein’s opinion. Any impairment Mr. Zmarzly suffered was only temporary.

[160] Dr. Finkelstein’s offered his opinion on the fractures identified by Dr. Muller and whether Mr. Zmarzly had suffered a facet fracture. After receiving submissions at the conclusion of trial, I ruled that I would not admit Dr. Finkelstein’s evidence whether Mr. Zmarzly had a facet fracture. I am not relying on his opinion in this regard in my decision.

[161] Dr. Finkelstein found that Mr. Zmarzly does not have radiculopathy. His pain is inconsistent with radiculopathy pain, which follows a nerve route distribution. The pain described by Mr. Zmarzly that travels up and down the left side of his body is not from radiculopathy.

[162] There was no relationship between the heel pain described by Mr. Zmarzly and the accident. His left knee pain was not a radiculopathy pain. It was not neurologic. It could be related to varicose veins.

[163] There was no apparent injury to Mr. Zmarzly’s neck apart from his self-report of neck pain.

[164] Although Mr. Zmarzly reported numbness in his buttocks, Dr. Finkelstein was also asked about Mr. Zmarzly’s buttock pain. It was not caused by the accident.

[165] The arm and finger numbness were complained of by Mr. Zmarzly prior to the accident. It was unrelated to the accident.

[166] In Dr. Finkelstein’s view, Mr. Zmarzly had a stable fracture. Dr. Finkelstein would not have operated. However, he respects Dr. Wilson’s decision. There can be a difference of opinion about the stability of this fracture and the need for surgery. The surgery may have helped with pain relief. The surgery immobilized the fracture. In any event, Mr. Zmarzly has fully healed.

[167] Dr. Finkelstein recognized that pain is the subjective report of a patient. He cannot tell how much pain a patient is experiencing. He is not a pain expert. Mr. Zmarzly says he has symptoms, and he may have symptoms, but Dr. Finkelstein is not prepared to say that there is any impairment related to those symptoms. A person’s impairment, Dr. Finkelstein explained, is based their functionality, what a person can do.

[168] According to Dr. Finkelstein, a person who suffers from chronic pain is someone who says they have pain for an extended period. However, if he cannot find an organic or objective basis for the pain then, in his opinion, there is no impairment. Impairment is based on objective findings. Whereas pain is a subjective self-report.

Analysis

Did Mr. Zmarzly suffer a permanent and serious impairment of an important physical, mental or psychological function (the “threshold” question)?

The applicable statutory and regulatory provisions under the Insurance Act

[169] Before any award can be made for health care expenses or general damages, I must determine whether Mr. Zmarzly has met the “threshold” under the Insurance Act. Section 267.5(15) of the 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.

[170] Sections 267.5(3) and 267.5(5) prohibit claims for health care expenses and non-pecuniary damages:

267.5(3) 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.

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.

[171] Sections 4.1 and 4.2 of O. Reg. 461/96 define “permanent serious impairment of an important physical, mental or psychological function”:

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.

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:

1. 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.

2. 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.

3. 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.

[172] Sections 4.3 of O. Reg. 461/96 sets out the evidence that must be adduced to support a claim under s.267.5 of the Act:

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(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.

(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

[173] The Ontario Court of Appeal in Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.) has set out a three-part inquiry to assess whether a plaintiff falls within one or more of the statutory exceptions in 267.5 of the Insurance Act:

1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?

2. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one?

3. If the answer to question number 2 is yes, is the impairment of the important bodily function serious?”

[174] In a recent decision of this court, W.D. Black J. provides a helpful review of the law with respect to the application of the Meyer v. Bright test. In Sanson v. Paterson, 2022 ONSC 2972, at paras 414-425 he writes:

[415] In applying the threshold test, the case law has emphasized that courts should focus on the “effect of the injury” more than the “type of injury”. For example, in Valentine v. Rodriguez‑Elizalde (2016 ONSC 3540) Justice Firestone (as he then was) wrote, at para. 39, that “[i]t is the ‘effect of the injury’ on the person and not the ‘type of injury’, or labels attached to it, which should be the focus of the threshold analysis.” (See also Malfara v. Vukojevic, 2015 ONSC 78, at para. 23.)

[416] The onus of proof on a threshold motion is on the plaintiff to establish, on a balance of probabilities, that her alleged injuries fall within the statutory exceptions in the Insurance Act and that the injuries were caused by the motor vehicle accident in question. The test for causation is the “but for” test as formulated in Clements v. Clements (2012 SCC 32, [2012] 2 S.C.R. 181).

[175] With respect to whether an impairment is “permanent”, he states

[417] Dealing first with the question of whether an impairment is permanent, s. 4.2(1) of O. Reg. 461/96 provides that the impairment must have been continuous since the accident, and that medical evidence of the impairment must demonstrate that there will not be further improvements and that the impairment will affect the ability to work, train for work, or partake in the activities of daily living.

[418] This Court has held that “permanent” does not mean “forever”, but rather for “the indefinite future”. In Grieves v. Parsons (2018 ONSC 26), Justice Charney described “permanent” as follows, at para. 14:

While the word ‘permanent’ does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit.”

[419] The plaintiff’s symptoms also need not be constant and the treatment need not be continuous without periods of relief. As Justice McKelvey wrote in Bishop-Gittens v. Lim (2016 ONSC 2887), at paras. 33-34:

[33] I accept that the plaintiff’s symptoms fluctuated. They varied both in terms of intensity and frequency. However, I reject the defence suggestion that the requirement for the impairment to be ‘continuous’ means that the symptoms must be constant and unrelenting…

[34] …The Regulation does not mean that a plaintiff is required to experience symptoms on a constant basis as suggested by the defence. Rather what is required is a pattern of continuing symptoms in the areas described by the plaintiff which may wax and wane over time but which persist on a long term basis.

[176] With respect to whether an impairment is of an “important function,” Justice Black states:

[420] In order for an impairment to be of an “important function”, the function in question must be necessary to perform the activities that are the 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 continue. Alternatively, the function must be necessary for the person to provide for her own care or well-being, or important to the usual activities of daily living, taking into consideration the age of the plaintiff. The regulation does not require all of these criteria to be met in order for the impaired function to be considered an “important function”.

[421] In Meyer, the Court defines the word “important” to refer to something of significant worth, and consequently, in order for the bodily function to be an important one, the impairment must be of a significant bodily function.

[422] The test as to importance is a qualitative test (Grieves, at para. 14). As the Court held in Adams v. Taylor (2013 ONSC 7920, at para. 13):

This part of the analysis is subjective and qualitative and asks whether the impaired function is one that is important to the plaintiff, having regard to the individual as a whole. Is the function necessary to perform the activities that are essential tasks of the plaintiff’s regular or usual employment, taking into account reasonable efforts to accommodate her, and her reasonable efforts to use that accommodation? Is the function necessary for the person to provide for her care or well-being, or important to the plaintiff’s usual activities of daily living, considering her age? Each case will be different as plaintiffs may enjoy different activities and interests, and may have different employment.

[177] With respect to whether an impairment is of an “serious,” he states:

[423] In order for an impairment to be “serious”, it must substantially interfere with the person’s ability to continue employment despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation; substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained; or substantially interfere with most of the usual activities of daily living, considering the person’s age. Again, the Regulation does not require that all three criteria must be met to establish a serious impairment.

[424] In Patterson v. Sindal (1999 CanLII 1665 (Ont. C.A.), at para. 16), the Court of Appeal for Ontario emphasized that the impact on the plaintiff’s future is a paramount consideration in determining if the impairment is serious:

Putting it another way, although the economic consequences of his injuries have to date been positive rather than negative, the impact on his future life, both vocational and recreational, by reason of the combination of his education, his age and his new physical limitations, may well be serious.

Assessing the evidence

[178] The court must approach cases involving pain carefully. In Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, [2003] 2 S.C.R. 504, the Supreme Court of Canada had this to say about chronic pain:

There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.

[179] Mr. Zmarzly’s evidence is central to this case. His complaints all relate to the pain he claims to have suffered from as a result to the accident. His subjective experience lays the evidentiary foundation to prove his injuries and impairments. However, I must consider all the evidence before me to determine whether he has sustained a serious and permanent impairment. I can accept all, some or none of the evidence from any witness. In considering the evidence and the weight that I will give to it. I must assess the reliability and credibility of the witnesses. The applicable principles for assessing reliability and credibility were succinctly stated by Watt J.A. in R. v. C. (H.), 2009 ONCA 56, 241 C.C.C. (3d) 45 (Ont. C.A.),

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

[180] Mr. Zmarzly’s evidence was fraught with inconsistencies. In his examination-in-chief, he presented himself as a cooperative and conscientious witness. He appeared to be providing sincere, honest and complete answers to the best of his ability. However, in cross-examination, when confronted with evidence that contradicted his initial evidence, Mr. Zmarzly’s responses and explanations were confusing and inadequate at best and untrue and misleading, at worse

[181] Mr. Zmarzly testified that he was honest and truthful with his doctors and assessors. He testified that he had provided them with a full and complete medical history. He knew it was important to do so. Yet, he failed to disclose his history of sleep apnea, his marijuana use, his Viagra prescription, his varicose veins, his arm pain and numbness. He was not candid with his healthcare practitioners, and he was not candid with the court.

[182] On September 19, 2017, he told Dr. Bodenstein that he suffered from anxiety in vehicles. Yet, on the next day, Mr. Zmarzly was in Victoria, British Colombia where he rented a vehicle and travelled over 1030 miles before returning on September 25. He made numerous long driving trips in 2018, almost monthly. Yet he had reported to Robert Brown, the driving instructor who assessed him on March 13, 2018, that his long-distance driving was something he “will not do.” He had an “absolute maximum of 3 hours.” When questioned in detail on the September 2017 trip to British Colombia, Mr. Zmarzly provided no less than four different versions of when and why the trip occurred. Each time he was contradicted with other evidence, he adapted his evidence to fit.

[183] He was asked specifically about his travel after the accident. He answered clearly, “Only between my house, my work and my parents' cottage.” However, when he was confronted with his Visa invoices, he acknowledged 14 trips between September 2017 and February 2020, including flights to British Colombia and Florida, as well as hunting, motorcycling and snowmobiling trips. Hunting, snowmobiling and motorcycling were all activities he previously said he had given up due to his pain.

[184] These are but a few examples of the difficulties with Mr. Zmarzly’s evidence. His evidence is unreliable. It is clear that he was prepared to change, or to “adapt”, his evidence to fit with other evidence. It is impossible for me to know the extent to which he “adapted” his evidence.

[185] It also clear, however, that he is prepared to say things that he knows to be untrue. He knew he did not tell his doctors and assessors his full medical history. He knew he had travelled frequently after the accident. He knew he had hunted, snowmobiled and motorcycled much more than he told the court. Not once did he offer a meaningful explanation for these inconsistencies, apart from a failure of memory. This calls into question Mr. Zmarzly’s credibility.

[186] I agree with the defendant’s characterization of Mr. Zmarzly’s evidence. It was inconsistent with his evidence on his examination for discovery, inconsistent with his reported activities, inconsistent with the testimony of other witnesses and inconsistent within his own evidence at trial.

[187] In considering the other evidence, I am mindful that must also consider the extent to which it relies on Mr. Zmarzly’s evidence.

[188] Turning to the expert evidence, Dr. Muller and Dr. Finkelstein had differing opinions as to whether there was an objective basis to explain Mr. Zmarzly’s pain. Dr. Finkelstein rejected Dr. Muller’s opinion that the pain could be attributed to radiculopathy and some irritation of the nerve root. Having carefully considered their evidence, I cannot conclude that there is an objective finding available explain Mr. Zmarzly’s pain.

[189] However, I do accept Dr. Muller’s opinion that Mr. Zmarzly’s left torso and rib area pain is legitimate, and that the pain is attributable to the accident. Dr. Muller was mindful of exaggeration and pain behaviour. Both he and Dr. Finkelstein recognized that pain could have organic and psychological origins. Dr. Muller understood that pain can persists even after the original thing that caused it has disappeared. I accept Dr. Muller’s opinion that Mr. Zmarzly’s back pain has reduced his stamina, as well as limited his work and leisure activities, particularly with regard to lifting and stooping.

[190] I reject Dr. Finkelstein’s opinion that, absent an organic or objective basis being identified for pain, there is no impairment. It is contrary to the principal recognized by the Supreme Court of Canada in Martin v. Nova Scotia.

[191] Dr. Bodenstein’s opinion is that Mr. Zmarzly has a serious psychological impairment as a result of the accident, a combination of pain, frustration, depression and anxiety that adversely affects his ability to do his job and enjoy his social life. Dr. Bodenstein does not expect significant change. I am satisfied that although Dr. Bodenstein’s opinion relied in part on information he received from Mr. Zmarzly in discussion, he also performed assessments that included validity checks. Dr. Bodenstein also met with Mr. Zmarzly for therapy. Dr. Bodenstein was satisfied that what he was told by Mr. Zmarzly was truthful, straightforward and consistent with no exaggeration of symptoms.

[192] I do not accept his conclusion with respect to Mr. Zmarzly’s anxiety as it relates to driving. It depends on the opinion of Robert Brown. Mr. Brown was a witness and was not qualified as an expert in this trial. The extent to which his opinion rests on information from Mr. Zmarzly cannot be tested.

[193] Dr. Muller’s evidence with respect to Mr. Zmarzly’s left torso and rib area pain, and Dr. Bodenstein evidence with respect to Mr. Zmarzly’s Adjustment Disorder with mixed anxiety and depressed mood satisfy the requirements of s. 4.3 of O. Reg. 461/96. I note that the Court of Appeal for Ontario has recognized that the evidence of a psychologist may be accepted under s. 4.3 of the Regulation. (See: Rodrigues v. Purtill, 2019 ONCA 740, at paras 7-14.)

[194] Section 4.3(5) of O. Reg. 461/96 requires Mr. Zmarzly to adduce evidence that corroborates the evidence of Dr. Muller and Dr. Bodenstein.

[195] Mr. Zmarzly’s family, friends, coworkers, clients and others he has worked with have all described Mr. Zmarzly as a different man after the accident. Fourteen witness who were close to Mr. Zmarzly gave very similar evidence describing him post-accident: he is depressed; he is stressed; he cannot lift; he used to be a nice guy; he always seems troubled; he does not want to complain; he pushes things under the rug; he is in pain; he winces. Before the accident he was hardworking; he was jolly and peaceful; he was physically capable; he never missed a deadline.

[196] I found Wesley Myles evidence to be particularly insightful. He was frank and candid. He knows the commercial construction industry well and knows the pressures and demands on a project manager. He knows Mr. Zmarzly. He spoke every highly of Mr. Zmarzly, as he was before the accident. He did not have the same praise for him after the accident. He is not prepared to give Mr. Zmarzly the same work, or the same size of jobs he did before. Mr. Zmarzly no longer works with the same intensity. His energy level is not the same. He is not the same man.

[197] Very few of these witnesses were cross examined. In my view, their impressions are valid. Although there were inconsistencies, overall, their evidence is not compromised by the unreliability of Mr. Zmarzly’s evidence. I find their evidence to be reliable and satisfies the requirement of s. 4.3(5) of O. Reg. 461/96.

[198] Considering the evidence of the assessors, it is much more difficult to determine the degree to which the evidence rests on unreliable evidence from Mr. Zmarzly. For example, Mr. Yip says Mr. Zmarzly told him he was a flooring installer; Ms. Neufeld relies almost completely on what Mr. Zmarzly tells her; the expert assessment reports rely on Mr. Zmarzly’s reported complaints.

[199] Vincent Yip’s opinion, Functional Capacity Evaluation and Job Site Assessment assume that Mr. Zmarzly was a flooring installer. He was not. He was a project manager. However, I do not believe this completely invalidates Mr. Yips functional capacity assessment.

[200] Mr. Yip assessment determined that as of December 2019, Mr. Zmarzly was capable of the following:

• a front carry of 50 lbs. for up to 5% of a normal workday

• carrying 40 lbs. in his right arm and 35 lbs. in his left for 5% of a workday

• carrying 40 lbs. from floor to waist for up to 5% of a workday

• carrying 25 lbs. from waist to crown for 5% of a workday

• and could sit, walk, stand or crouch, stair climb, and forward bend for up to 33% of a normal workday.

[201] Mr. Zmarzly was asked to rate his pain while being tested. He rated his lower back pain at 2 at the start and 6 at the end of the testing. Mr. Zmarzly reported increased symptoms during the following tasks:

• mid back pain during waist to floor lift

• Lower back pain during waist to floor lift, waist to crown lift, front carry, sustained elevated work, stair climbing and sitting

[202] Mr. Yip was confident that the results accurately reflect Mr. Zmarzly functional capacity. Mr. Yip concluded that Mr. Zmarzly did not meet the demands of to return to his pre-accident work as a floor covering installer. The difficulty, of course, is Mr. Zmarzly was not a floor covering installer. He did some of those tasks occasionally, but it is unknown if Mr. Yip would have reached the same conclusion if he had a correct understanding of the tasks actually associated with Mr. Zmarzly’s work as a project manager.

[203] I cannot conclude from Mr. Yip’s opinion that Mr. Zmarzly in incapable of performing all of his duties as a project manager. I have no opinion from Mr. Yip if Mr. Zmarzly is capable of performing 5% of the daily tasks of a flooring installer. I do accept Mr. Yip’s evidence that Mr. Zmarzly’s physical capacity to do flooring installer tasks is limited. By how much, I do not know.

[204] Similarly, I am not prepared to rely on the opinion and recommendations of Rena Neufeld. It is impossible to know how much she relied on unreliable information from Mr. Zmarzly, as well as how much she relied on complaints that may be accurate but were not confirmed by the evidence required under ss. (2) and (3) 4.3 of O. Reg. 461/96.

[205] Considering all of the evidence, I am satisfied that, as a result of the accident, Mr. Zmarzly has suffered a “permanent serious impairment of an important physical, mental or psychological function” as defined in s. 4.2 of O. Reg. 461/96 and required by ss. 267.5(3) and 267.5(5) of the Insurance Act, limited to Mr. Zmarzly’s left torso and rib area pain, as well as an Adjustment Disorder with mixed anxiety and depressed mood.

Was this impairment caused by the defendant’s negligence?

[206] Liability has been admitted. Mr. Zmarzly’s suffered a “permanent serious impairment of an important physical, mental or psychological function” because of the accident.

What damages did Mr. Zmarzly suffer as a result?

General damages - $190,000

[207] Mr. Zmarzly claims $190,000 for his general damages. The defendant submits that the appropriate range is $90,000-100,000.

[208] There is no dispute Mr. Zmarzly sustained a serious injury that required surgery. He suffered extreme pain for the first few days before undergoing a T9 - T12 posterior fusion and instrumentation for a T10/11 vertebral body fracture performed by Dr. Wilson.

[209] Mr. Zmarzly recovered well from the surgery. However, he continues to experience pain, which now appears to be chronic. The pain limits his physical activities. Before the accident, he had a very active life. He enjoyed hunting, fishing, ATVing, snowmobiling and motorcycling. These activities were also an important part of his social life. While I cannot rely on Mr. Zmarzly’s evidence that these activities have ended, I do accept the evidence of the other witnesses that were involved with him in these pursuits, that Mr. Zmarzly’s participation in these activities has been limited by his pain

[210] In Rizzo v. Marvos 2008 ONCA 172, the Court of Appeal for Ontario accepted a range of general damages for chronic pain cases of $55,000 to $120,000. I have considered all of the authorities provided to me. In my view, Hunt v. Martin, [2002] O.J. No. 3227 (S.C.J.) is closest on its facts to this case. In that case, $85,000 was awarded for general damages, $120,000 when adjusted for inflation.

[211] The appropriate award in this case for general damages for Mr. Zmarzly is $120,000.

Special damages

[212] Mr. Zmarzly is entitled to recover his expenses incurred as a consequence of the accident. I am not aware of any evidence filed in support of Mr. Zmarzly’s claim for special damages. I did not receive any submissions on the issue. I am prepared to receive brief written submissions, not more than 5 pages, if counsel cannot agree and there is a special damages claim outstanding.

Income loss

[213] Mr. Zmarzly claims his loss of income before trial and his future loss of earning capacity

[214] Mr. Zmarzly claims for loss of income and loss of earning capacity. Under s. 267.5(1) of the Insurance Act, he is not entitled to:

1. Damages for income loss suffered in the seven days after the incident.

2. Damages for income loss suffered more than seven days after the incident and before the trial of the action in excess of 70 per cent of the amount of gross income that is lost during that period, as determined in accordance with the regulations.

3. Damages for loss of earning capacity suffered after the incident and before the trial of the action in excess of 70 per cent of the loss of earning capacity during that period, as determined in accordance with the regulations.

[215] Mr. Zmarzly bears the onus of establishing a substantial possibility of a future loss of earning capacity or loss of competitive advantage [see Meyer v. Bright, supra]. I am satisfied that he has.

[216] I have carefully reviewed the summaries of Kartofel’s financial statements and supporting documents that were filed. I have considered Kartofel’s sales, expenses and salaries paid and management fees. Without an expert opinion, it is impossible for me to quantify the loss of profit as a consequence of the accident, and I am doubtful that an expert could. Kartofel existed for little more than a year before the accident occurred. I would expect that there is too little data and too many variables to draw any conclusions, even for an expert.

[217] However, I am satisfied that Mr. Zmarzly was left less capable of doing his job as a project manager due to the accident. The appropriate method to calculate that loss is using the capital asset approach. Mr. Wollach has used that approach to calculate Mr. Zmarzly’s past and future income loss. His calculations are based on adopting a “proxy” of the based on the inflation adjusted average wages and salaries of male, full-time construction managers in Ontario, as well as the information Mr. Zmarzly provided to him about the percentage of his contribution to the business.

[218] Mr. Wollach prepared schedules using the information he received from Mr. Zmarzly, that his pre-accident earning capacity was reduced by 90% to August 31, 2017, by 80% to December 31, 2017, and by 60% thereafter. Stated another way, his earning capacity after the accident, as claimed by Mr. Zmarzly, was 10%, 20% and 40% of his former capacity. There was no evidence to establish any basis for these percentages or how they were calculated.

[219] There was some confusing and inconsistent evidence from Mr. Zmarzly about the hours he worked before and after the accident. He settled on 60 hours worked per week before the accident, that included 20 hours driving and 10 hours doing paperwork at home. That leaves 30 hours working on site. Post-accident, Mr. Zmarzly’s evidence varied between 20 and 30 hours work per week with no evidence as to whether this included driving or paperwork. Apart from my finding that Mr. Zmarzly’s evidence was unreliable, it was also incomplete. There was nothing to corroborate his work hours before or after the accident and there was no evidence of how a proper percentage reduction in earning capacity was to be determined.

[220] Where the court is invited to assess damages based on expert opinions that rest on unreliable and unsupported assumptions, it faces no small challenge.

[221] In TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 at para. 61, Cronk J.A. summarized the proper approach in such circumstances:

It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence. Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff's loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases. The controlling principles were clearly expressed by Finlayson J.A. of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 112 O.A.C. 138 (Ont. C.A.), at para. 75, leave to appeal to S.C.C. refused, (1999), [1998] S.C.C.A. No. 516 (S.C.C.):

I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.

[222] Having determined that he has established a substantial possibility of a future loss of earning capacity, I fix Mr. Zmarzly’s damages at 30% of the amounts calculated by Mr. Wollach calculated, based upon Mr. Zmarzly’s retirement at age being 65.

[223] I award him $52,782 for past loss of income to November 18, 2021 and $381,047 for his future income loss.

Loss of housekeeping and home maintenance abilities measured by the cost to replace it in the past and future -$892,000

[224] As a result of the accident, Mr. Zmarzly has lost some housekeeping and home maintenance abilities. The evidence I have as to the value of that loss is wholly dependent on unreliable evidence from Mr. Zmarzly.

[225] I award Mr. Zmarzly’s damages for loss of housekeeping and home maintenance abilities at 30% of the amounts estimated by Ms. Neufeld and calculated by Ms. Seaquist, fixed at $267,589.

Future attendant care

[226] As a result of the accident, Mr. Zmarzly requires some limited attendant care. Once again, the evidence is wholly dependent on unreliable evidence from Mr. Zmarzly.

[227] I award Mr. Zmarzly’s damages for loss of housekeeping and home maintenance abilities at 20% of the amounts estimated by Ms. Neufeld and calculated by Ms. Seaquist fixed at $129,839.

g. Future care costs

[228] I am also satisfied that as a result of the accident, Mr. Zmarzly is entitled to some allowance for future medical and rehabilitation costs care. There is some independent evidence in support of this claim, but it still relies to some extent on the unreliable evidence from Mr. Zmarzly.

[229] I award Mr. Zmarzly’s damages for future care costs (inclusive of a 5% allowance for financial management) at 40% of the amount calculated by Ms. Seaquist fixed at $116,336.

Conclusion

[230] Mr. Zmarzly is awarded damages for his motor vehicle accident in the total amount of $1,067,647.00, summarized as follows:

claimed

awarded

a.

General damages for pain and suffering and loss of amenities and enjoyment of life

190,000

120,000

b.

Special damages for out-of-pocket expenses

19,000

c.

Past loss of earning capacity - using pre-accident earning capacity full-time construction manager

175,940

30%

52,782

d.

Future loss of earning capacity - using pre-accident earning capacity full-time construction manager

1,270,155

30%

381,047

e.

Loss of housekeeping and home maintenance abilities

891,964

30%

267,589

f.

Future attendant care

649,464

20%

129,893

g.

Future medical and rehabilitation costs (including 5% allowance for financial management)

290,841

40%

116,336

Total award:

1,067,647

[231] If the parties cannot agree on costs, I shall receive written submissions limited to ten pages from the plaintiff on or before December 12, 2022, and from the defendant on or before December 19, 2022.

November 25, 2022 Justice J.C. Corkery

[^1]: References to Oxycontin, Oxycodone and oxocet appear in this judgment as received in evidence.