Plaintiff awarded $75,000.00 for a broken leg in trip over broken Oakville sidewalk.

Oakville Lawyers $75,000 awarded to Plaintiff for Broken Leg

sidewalk cracked ledgeA Oakville Court awarded a plaintiff, Ms. Elizabeth Ann Riehl $75,000.00, amongst other damages, for a broken tibial plateau and loosened front teeth.  The tibial plateau, or the actual diagnosis of an undisplaced fracture of the medial tibial plateau which, in common parlance, is a crack in the head of the tibia extending into the knee joint. (**Picture not actual site of occurrence)

Elizabeth was 41 years old at the time of her trip and fall.  She lived with her husband and son on Main Street West in Oakville.  On June 19, 2007 she was scheduled to start work at 6:00 a.m.  She left her apartment at 5:45 a.m.  She was walking north along the centre of the sidewalk on the west side of Main Street West, heading for the bus stop at Osler Drive.  The weather was clear and mild, she was wearing sensible walking shoes, carrying a backpack with library books in it, and a purse which did not affect her balance or the way she fell.  There were no witnesses to the accident.

Elizabeth tripped over an elevated crack in the sidewalk, which unfortunately neither she nor the adjuster measured.  No one knew the actual precise height of the crack by the time the case got to court.

The plaintiff attended the hospital and was discharged with a leg cast from her groin to her ankle.

She and a friend took pictures of the area in which she fell and provided them to the Risk Management Department at the City of Oakville.

The City then referred the matter to independent claims adjuster Robert Phipps.

The Oakville Court’s decision

In these types of cases, against the municipality, the onus is on you, the plaintiff, to prove on a balance of probabilities, the state of disrepair of a roadway.  The plaintiff, you, is also required to prove on a balance of probabilities, that the non-repair of the road way was the cause of the accident in question.  Once these requirements are met, the onus then shifts to the municipality to prove, on a balance of probabilities, that the condition that the non-repair existed notwithstanding all reasonable efforts on the part of the municipality.

The questions posed to the Court were the following:

  1. Did a state of disrepair exist?
  2. Was this state of disrepair the cause of the plaintiff’s injuries?
  3. Has the defendant met the onus of proving a defence under section 44(3) of the municipal Act?
  4. What are the damages?

With respect to the first question, the Court found that neither party took measurements of the height differences between the two sides of the crack.  There were photos taken that were in existence.

Have you tripped over a broken sidewalk? Please contact one of our lawyers for more information. You may be entitled to compensation.

A project manager from Oakville’s Public Works Department was involved in analyzing information and developing work plans to invest efficiencies and, in particular, trip hazards on municipal sidewalks.  There was testimony which indicated that a grinding machine was used by the City of Oakville to smooth out trip hazards.  This grinder could be effectively used to chip of the surfaces to correct discrepancies of up to 25mm (about an inch) to eliminate tripping hazards.  That project manager than testified that the defects of 25mm or more are placed on a asphalt sheeting list.  Temporary asphalt patch would then be placed to alleviate the vertical separation by creating a ramp and making the defect safe.

The judge found that the photographs taken show that the asphalt patch was either old or disintegrating and it was never properly applied because it did not reach the margin on the height side of the cracks.  Essentially the Judge found that the plaintiff met the onus of proving on a balance of probabilities that the sidewalk was in a state of disrepair.

With respect to question 2, or whether or not the state of repair caused the plaintiff’s injuries, the Judge found that it was not disputed that the fracture of the tibial plateau and loosening of her front teeth were caused by the trip and fall on the sidewalk.  However, he found that she contributed to her injuries at the rate of 25%.

With respect to question 3, or has the defendant met the onus of proving a defence under section 44(3) of the Municipal Act (the city argued that it took reasonable steps to prevent the default from arising).  The Judge found that the defendant knew the area was in a state of disrepair.  It had attempted an asphalt patch for the crack, which caused the plaintiff’s fall.  It had replaced part of the sidewalk a short distance south of the spot where she had her accident.  It had been involved in infrastructure work at the intersection of Main Street West and Osler Drive in Oakville shortly before her accident.  The Judge found that, in his view, The City of Oakville failed to establish that defence on a balance of probabilities.  The sidewalk in question is a high pedestrian traffic area, a fact acknowledged by the project manager for The City of Oakville.  The intensity of the pedestrian traffic was a factor, in the Judge’s view, in assessing the adequacy of the defendant’s response in dealing with the defects and trip hazards.

The plaintiff suffered a fracture of the tibial plateau of the left knee extending into the knee joint.  An orthopedic surgeon testified on behalf of the plaintiff and found that she had pre-existing osteoarthritis in both knees and opined that the accident probably accelerated her osteoarthritis by five to ten years.  She would likely require surgical management in the form of a knee replacement within approximately fifteen to twenty years from the date of the injury.  She would perhaps require one or two knee replacements in her lifetime.  The plaintiff was in a full cast from groin to ankle initially and then received a removable splint afterwards.  The first six weeks of her post-accident was non-weight bearing followed by six weeks of progressive weight bearing.  The Judge assessed her compensation for pain and suffering at $75,000.00.  The Judge also awarded the plaintiff $5,324.00 for past loss of income.  The Judge did not award anything for future housekeeping given that there was no functional capacities evaluation performed.  The judge set aside $30,000.00 for future loss of income, which would be approximately one year of the plaintiff’s wages.

These were all subject to 25% discount given the contribution to her injuries.

 

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Plaintiff with Serious Knee Injury Passes Threshold

Oakville Lawyers Serious Knee Injuries

The Court rendered another decision regarding whether or not the plaintiff suffered a permanent and serious impairment of an important physical, mental or psychological function. If you have been in any type of motor vehicle please check out this link for more information on the threshold and what it is.

In the case of Ivens v. Lesperance the plaintiff, Shawn Ivens, was 41 years old.  On November 2, 2007 he was involved in a motor cycle accident.  Prior to this Mr. Ivens had a serious motor cycle accident in 1999.  He broke both his ankles requiring surgery and was off work for three and a half months.  He had continued pain in his ankles.  He had an open accident benefit file for quite some time.  His insurance carrier provided him with a hot tub, riding lawn mower and other assistive devices to help him with his home maintenance and his pain.  He kept working as a car salesman after his first accident although his sales continued to increase.  Mr. Ivens also enjoyed numerous outdoor activities with friends and family members.  He very much enjoyed motorcycling, snowmobiling, mountain biking, boating and body building.  In fact, he acted as a personal trainer for friends.  At one point Mr. Ivens moved dealerships from Midland to Barrie and his customers followed him.  He seemed to be considered a fantastic sales person.  He was one of the top six sales people in an eighteen person sales force at the dealership in Barrie in which he was working.

knee injuryAfter the accident, Mr. Ivens was taken to the hospital by ambulance.  He was in considerable pain and was diagnosed with an undisplaced fracture of the right knee.  Throughout the following year it was noted that Mr. Ivens had trouble walking and could not fully flex his knee.  There was not much more that the orthopedic surgeons were able to do for him as the left knee remained stiff.  He attempted to return to work in the spring of 2008 but was unsuccessful.  Unfortunately he was not able to return to work as a car salesman until 2011.

In 2009 it was noted that he started going back to the gym slowly and was able to flex to 80 or 90 degrees.

In March of 2009 began to complain of back pain.  An MRI was ordered and it was learned that he had a compression fracture, possibly from wedging or crushing.  There was no report of back pain immediately following the accident and it was acknowledged that the back injury could have happened before or after the accident in question.  Mr. Ivens gave evidence at trial that he suffered continuous pain, depression, sleep disorder and the loss of ability to enjoy recreational activities that occupied most of his pre-accident life.

He had friends and family members testify, as well as his family doctor and various experts to comment on his pain and pain management.

The defence lawyer challenged Mr. Ivens credibility on a number of fronts.  It was put to him during the trial that he was lying or exaggerating with respect to a number of issues.  He was challenged on whether or not he had a mortgage on his house.  He was challenged that he only saw the physiotherapist a few times.  The Judge noted that subsequent evidence showed that he had visited the physiotherapy clinic over 40 times.

He did exaggerate his income in interviews with the number of medical service providers, a characteristic perhaps not uncommon for people earning commission sales, said the Judge, who also noted that it was clear chronic pain was subjective and that it was easy to envision situations where an individual may exaggerate pain in seeking some economic advantage.  However in this case, Mr. Ivens complaints had an objective component as well as subjective report of pain.

The Judge’s decision on the threshold

According to all medical records, Mr. Ivens knee continued to be bothersome and was a source of much of his pain complaints.  It was the source of much of the functional capacity limitations that Mr. Ivens had.  Surveillance was shown at trial but the Judge noted that there was no evidence that he was seen doing any type of high level of activity he previously enjoyed.  He was walking around a dealership.  He used a golf cart to get around the large properties that the dealership maintained for their inventories of cars.

In short, the Judge concluded that the plaintiff did sustain a permanent and serious impairment to an important physical, mental or psychological function.  With respect to permanent, the judge noted that the knee injury had not resolved notwithstanding medical intervention.  It was unlikely that his knee injury would improve, he may suffer from arthritis, and he may need further surgical interventions in the future.  The unresolved knee problems and the chronic pain serve to explain his depression, even if diagnosed as mild.  With respect to an important function, the Judge noted that Mr. Ivens returned to work with accommodation from his employer, used a golf cart, did not work the long hours he previously put in, could not stand for a long period of time, could not perform many of the housekeeping tasks he previously looked after, and he could not engage in high levels of physical activity he previously enjoyed such as weight training, snowmobiling, bicycling and other outdoor activities with family and friends.

With respect to whether or not his impairment was serious, the Judge noted that the plaintiff’s employer did accommodate him, but now he is in the bottom third of the sales force for the dealership.  Because he is on commission, it is up to the plaintiff to seek out clients and work with clients to compete on the sales of vehicles.  The sales manager noted that Mr. Ivens was “no longer on top of his game”.  Also, because he was no longer able to participate in outdoor activities with friends he was missing out on the usual activities of daily living which he enjoyed not only for recreation, but as a source of contacts for his commission sales employment.

The judge noted that he was satisfied that Mr. Ivens’ physical impairments coupled with chronic pain substantially interfered with his activities of daily living.

 

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What is this “threshold” that lawyers keep talking about???

Oakville Lawyers Car Accidents and the “Threshold”

We often make case comments about the Bill 198 threshold.   Based on this our clients have asked us for a better definition of the threshold.

The threshold applies if you were involved in a collision involving the use or operation of a motor vehicle as defined by the Insurance Act.  We may or may not have discussed this with you, but victims that are injured as a result of the carelessness or negligence of someone operating a motor vehicle are technically not allowed to claim compensation for pain and suffering unless he or she has met a certain “threshold”.

If you have been in a car accident, motorcycle accident or any other type of motor vehicle accident it is important to get the right advice. Contact us to learn your rights.

In other words you cannot sue anyone that has caused you injury in Ontario unless your injuries fall within a certain “classification”.  The “classification” or threshold is defined as:

“did the plaintiff (you) sustain a permanent and serious impairment of an important physical, mental or psychological function as a result of a motor vehicle accident in which he or she (you) was involved in”. 

You may initially think that yes, I have absolutely sustained a permanent and serious impairment of an important physical, mental or psychological function, but the reality is that these words are complexly defined within the context of personal injury law.

threshold poster

How does this affect you? 

The rule states that an injured victim in a motor vehicle accident is barred from suing an at-fault operator of a motor vehicle unless they in fact fall within certain exceptions.  You have the burden of establishing that you fall within all of these exceptions.

How do I do this?

A plaintiff (you) must lead evidence from physicians and health advisors to explain the nature of your impairment, its permanence and the specific functions that are impaired and the importance of the functions to you. If your case ends up going to Court, evidence will be asked of your doctors, health practitioners, rehabilitation people, occupational therapists, psychologists, psychiatrists, specialists in the medical field.  Opinion evidence will be asked of experts that you have seen or will see as set up by your lawyer and the opposing lawyer.

At the end of your case a jury will retire to determine how much compensation it will pay you.  When the jury retires the lawyer that represents the insurance company will then have the right, under the Insurance Act, to ask the judge whether or not he or she believes by the evidence you produced that you suffered a permanent serious impairment of an important physical, mental or psychological function within the meaning of the Insurance Act.  The jury will not hear this question.

At that time the Judge will dissect the words permanent, serious, impairment and important function.  These words will be defined in detail by the Judge that hears your case.  The Judge will then come to an answer as to whether or not yes or no he or she believes that you sustained a permanent and serious impairment on an important physical, mental or psychological function within the meaning of the Insurance Act.

What does serious mean?

Serious is normally defined three different ways.

  1. The first is whether or not an impairment substantially interferes with the person’s ability to continue his or her regular employment despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use accommodations to allow the person to continue employment;
  2. An alternative with respect to whether or not an impairment is serious also lies with whether or not that person is able to continue training in a field in which he or she was being trained in before the incident;
  1. The third alternative lies with respect to the definition of serious, that is whether or not impairments have substantially interfered with most of the activities of daily living of the victim, considering his or her age.  The daily activities, which are not defined in the Insurance Act have been defined by Judges in the past as being recreational activities, social activities, housekeeping activities and family activities.  This is why you have been asked, or will be asked about this at your examination for discovery. Also, when defence lawyers hire surveillance companies to survey you, it is often to dissect or take apart the daily activities to show that you do not suffer from a serious impairment or that your daily living is not affected by the accident.

What does the word important mean?

For the function that is impaired to be an important function, that function must be necessary to perform the activities that are essential to your regular or usual employment or necessary to perform the activities that are essential to your training in a career in a field in which you were being trained in before the accident.  For a function that is impaired to be an important function, that function must also be necessary for you to provide for your own care or well-being or be important to the usual activities of daily living, considering your age.  The same categories for daily living apply as above.

What does the word permanent mean?

For an impairment to be permanent the impairment must have been continuous since the accident and must, based on medical evidence and subject to you reasonably participating in recommended treatment of the impairment be expected to not substantially improve.  Also, the impairment must be an impairment that is expected to continue without substantial improvement when sustained by persons in similar circumstances.  This means that at some point a doctor must say that despite your participation in therapy, your injury is not getting better, and he or she does not think that it will substantially improve to any better degree.

Conclusion

Out of all of this it is important to take several things away.

  1. Medical evidence, in addition to other evidence, must support (it is legislated!) your claim that you have sustained a permanent serious impairment of an important physical, mental or psychological function.
  2. Most people fall within the category of injuries interrupting their daily activities.  It is important that you keep notes to tell us how your injuries have interfered with your social, recreational, household or family activities.  This means that if you are subject to permanent symptoms such as sleep disorder, severe neck pains, broken bones, disc herniation, disc bulges, torn tendons and ligaments, metal or hardware that has been surgically involved with healing your fractures or anything that has a significant impediment on your enjoyment of life can be considered a serious impairment.  A Court will always look at your activities and your daily living prior to the car accident, and after the car accident to determine whether or not you meet this threshold.

 

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How is your loss of income determined if you cannot work because of your injuries?

If you are injured by the carelessness or negligence of another person you have a civil right to claim damages. There are various types of damages (or compensation) that you can claim, one of which being the loss of income – either past, future or both.  You might ask the question how is this determined or played out? How will all this be figured out and calculated?

 

 young man in wheelchairThe first thing that you must understand is that there are several types of law that lawyers practice.  Some practice criminal, some practice administrative and some practice civil law.  Litigation falls into civil law and personal injury falls into litigation.  Within the context of civil law you must be able to prove, in most circumstances, that you have been wronged.  You do this by proving this on a balance of probabilities (ie. 51%.) It is quite divergent from the term “beyond a reasonable doubt”, which is how criminal law is proved.

Within the context of litigation, or civil law where one must prove his or her case on a balance pf probabilities, There are certain exceptions to this and one is future income loss.

If you have suffered a loss of income because someone else has caused you injuries please fill out the contact form and a lawyer will get back to you within a few hours to discuss your situation.

Future income loss is not to be proved on a balance of probabilities but rather the plaintiff must establish that there is a “real and substantial risk” of future losses.  This threshold was set out in a case over 15 years ago which told us that a plaintiff only need to establish that there must be “reasonable chance” that a future loss will occur. In essence, there must be a real and substantial “possibility” that this will occur.

There is a semantic distinction between the words “probabilities” and “possibilities” but this is not so decisive.  A jury must conclude that, at the time of a case, there was a “real and substantial possibility of risk” that some event in the future would cause a loss of income- i.e. your bad injuries.  Doctors that are not sure that injuries will cause a loss or interruption of earnings will always seem to say that “anything is possible in the future” but unfortunately this will not meet an injured person’s burden.  The case of Greenhalgh v. Duoro-Drummer (Township) told us that what quantifies as real and substantial has not been substantially discussed.  This tells us that the issue will be determined on a case by case basis.

How do we put this in perspective?

In the case of Pearsell v. Welsh and Irvine the Court looked at this exact issue.  The plaintiff in the case broke her ankle quite badly.  She continued to complain of consistent and persistent pain symptoms with extended hours on her feet.  The plaintiff worked in the service industry as a cook.  An orthopedic surgeon gave an opinion in that case and that opinion was that because of her ankle injury, the plaintiff had at least a 20% chance of developing arthritis.  Another doctor that was hired by the insurance company, gave evidence that the plaintiff had less than a 20% chance of developing arthritis in the future.

The Judge ruled that a 20% risk or anything approaching a 20% risk on the facts of that case is a real and substantial risk of arthritis interrupting income earning potential.  The risk was not speculative or trifling.  It is important to note that as in injured plaintiff you must demonstrate the real and substantial risk by leading medical evidence on how your injuries will impact your working life and the ability to earn income.  In this case, the orthopedic surgeon, Dr. Zarnet, testified that because of her injury and the possibility of arthritis, the plaintiff’s working life would be shortened.  It was found that the plaintiff had met her burden on establishing a real and substantial possibility of future income loss.  The evidence was not closed to de minimis (not trifling) because of the medical evidence adduced, the risk was not speculative. It was simply “possible” that, based on the medical evidence that was lead, that there was a 20% chance of a real and substantial risk that her arthritis would case an interruption of her income earning potential.

If you have been injured by someone else’s carelessness or negligence and you believe that you will have a shortened working life, possible early retirement, economic losses, you will be competitively disadvantaged in the labour force or you have any type of injury which would affect your ability to earn income, then you must lead proper medical evidence on how your injuries will impact your ability to earn an income.  Claiming loss of income, both past and future, is a right that you have, always, as an injured victim.

 

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Plaintiff with asymptomatic degenerative shoulder injured in car accident denied compensation.

In the case of Iannarella v. Corbett the Court was asked to decide whether or not the plaintiff suffered from a permanent serious impairment of an important physical, mental or psychological function.

shoulder injury xrayIn other words, did the plaintiff pass the threshold test.  You can read more about the threshold test by clicking here. In short, if you are injured in a car accident or within the use or operation of any type of motor vehicle requiring insurance, our Provincial insurance system states that you are unfortunately prohibited from suing anyone that caused you injury unless you sustained a “permanent and serious impairment of an important physical, mental or psychological function”.  Medical evidence must be adduced to support your claim that you have suffered a serious permanent impairment of an important physical, mental or psychological function on a balance of probabilities.  You may think you have easily sustained this, and you may have, but legally speaking, the complexities of the threshold reach far beyond the normal common understanding of what the words mean in a conventional sense.

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In this case, the plaintiff Mr. Iannarella was involved in a car accident on February 19, 2008.  He hurt his neck, back and left shoulder.  The left shoulder was the major issue in this case.  The insurance company for the defendant took the position that Mr. Iannarella had long recovered from any injuries brought about by the accident and in addition, those injuries were pre-existing to a certain degree.

From the evidence of the family doctors that were called to trial, the judge was persuaded that Mr. Iannarella made no complaints of pain or limited functioning of his left shoulder before the time of the accident in question.  Also, Mr. Iannarella made no immediate complaints of pain after the accident relating to the left shoulder other than that he experienced pain in the left side of his neck and left trapezius that radiated down towards his left shoulder.  He did not complain of pain originating in his left shoulder from or shortly following the accident and he did not complain consistently to his family doctors of any significant pain or limitation of movement of the left shoulder at all.  About five months after his car accident he was complaining to pain symptoms that extended from his neck into his left shoulder and arm.  Further in the year an MRI was done and no neural impingement was found.  There were no objective signs of any physical disability.  There was mention of a partial tear.  One of the doctors explained that this tear to be  described as a mild inter-substance tear of the rotator cuff together with degenerative signs of the AC joint of the pre-existing pathology that could have predisposed him to the partial tear.

After hearing all of the evidence the Judge accepted that the plaintiff had a pre-existing by asymptomatic degenerative condition of the left shoulder.  Essentially what this means is that there was degenerative damage in the left shoulder (which is what we have as we get older and degenerate) that was asymptomatic (or without symptom).  That condition deteriorated over time following the accident.  Surgery was undertaken on the plaintiff’s shoulder which gave him some pain relief and increased range of motion.

The analysis of the Judge was not positive for the plaintiff.  The Judge noted the Mr. Iannarella did not make an impressive credible witness on his own behalf.  He gave inconsistent testimony and tended to overstate his limitations and understate his abilities.  He was often not responsive during cross-examination when he feared being tied down to a proposition he did not like.  He resisted answering or claimed that he did not understand the question or concept that had been addressed.  This was not good for the plaintiff.

The Law

The issue before the Court was whether the plaintiff sustained a permanent and serious impairment of an important physical, mental or psychological function.  The Judge canvassed the leading authority on the interpretation of the word threshold.  There are three questions that must be posed when considering whether a plaintiff falls within the ambit of one of these statutory sections relevant to the action.  The questions are

1.     Has the injured person sustained a permanent impairment of a physical, mental or psychological function?

2.     If yes, is the function one which is permanently impaired an important one?

3.     If yes, is the impairment of the important function serious?

The Judge, as common in other actions, started with whether or not the impairment of the important function was serious.

The definitions of whether or not your injuries are serious are set out in three different ways in the legislation.  The first is whether or not an impairment substantially interferes in a person’s ability to continue his or her regular employment despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use accommodation to allow the person to continue employment.  This unfortunately did not unfortunately did not apply to the plaintiff’s case because his regular and usual employment ended before his shoulder pain began.  As well no efforts were made on the plaintiff’s behalf to seek out accommodation in respect to any shoulder concerns prior to the time he was laid off from his job.  Doctors also agree that he was capable of returning to work as a forklift operator.

An alternative with respect to whether or not an impairment is serious also lies with a person’s ability to continue training for a career in a field in which the person was being trained for before the incident.  This did not apply to the plaintiff.

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The third alternative with respect to the definition of serious involves a consideration of whether or not impairments substantially interfered with most of the usual activities of daily living, considering his age.  The Judge found that the evidence presented in extent of pre-accident abilities and limitation as compared with post-accident abilities and limitations were so unclear as to prevent any useful analysis.  Daily living, can be described as an interruption/limitation of household, social recreational or family activities.

The Judge found that “given the nature and number of his health issues and functional limitations before the accident I do not accept that evidence”.

The judge also noted that surveillance was also disastrous to whether or not his injuries impacted negatively on his daily activities.  He was not able to find that the plaintiff had demonstrated a serious impairment of functioning.

With respect to the word “important”, the judge found that for the function that is impaired to be an important function, that function must be necessary to perform the activities that are essential to his regular or usual employment, or necessary to perform the activities that are essential to the plaintiff’s training for a career in a field in which he was being trained for before the accident, necessary to perform his own care and well-being or be important to the usual activities of daily living considering the person’s age.  The judge was unable to find that the plaintiff’s usual activities, considering his age, had been impaired by reasons of the shoulder injury that he acquired after the incident in question.

With respect to “permanent”, the judge noted that permanent does not mean forever but rather permanent is where an injury has been experienced continuously since the accident and must, based on medical evidence, subject to the person’s reasonably participating in the recommended treatment of the impairment be expected not to substantially improve.  The medical evidence did not support any issue of permanent impairment.

The plaintiff therefore was unable to establish the requirements for fundamental medical evidence to support the proposition that he passed the threshold.  Essentially, the plaintiff did not sustain a permanent serious impairment of an important physical, mental or psychological function.  The plaintiff’s claims for compensation for pain and suffering were dismissed.

 

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Homemaker fails car accident threshold test on unsual activities of daily living

In the case of Dahrouj v. Aduvala the Court was asked whether or not the plaintiff Ms. Dahrouj passed the threshold. If you read this blog once and a while you will know that in Ontario, you are barred from suing a driver that caused you injuries unless your injuries fall within certain “exceptions.”

The exceptions – set out here – are in summary that injuries must be that an injured person must sustain a permanent impairment of a physical, mental or psychological function.  The function that is permanently impaired must be an important one, and the impairment of the important function must be serious.  If an injured victim cannot prove that he/she falls into the exception than compensation for pain and suffering will not disallowed.

The plaintiff in this case claimed that as a result of her car accident she developed chronic pain syndrome.  She claimed that it had seriously impaired her physical functioning around her home and her social interaction within her community.  The defendant argued that she suffered minor soft tissue injuries that she fully recovered from several months post-accident.

The Car Accident

The accident occurred on October 10, 2007.  The plaintiff hurt her neck, left shoulder, low back, right leg and knee.  She suffered from headaches, difficulty sleeping, fatigue, depression and anxiety.  As a result of these injuries she alleged that she developed chronic pain syndrome and her homemaking and meal preparation activities both for her family and herself were significantly limited.  She required assistance to do many of the homemaking tasks and she argued that she required assistance for the rest of her life.

The defendant argued that her injuries caused a brief aggravation of well documented pre-existing injuries.  There were no ongoing physical injuries.  There was also no evidence of psychological impairment arising out of the car accident.

Threshold

After the trial, during deliberations the defendant sought a declaration pursuant to 267.5(5) of the Insurance Act that the plaintiff’s injuries did not meet the statutory threshold and therefore entitlement to recover general damages was barred.  The judge noted that under the Insurance Act, a person suffers from a permanent serious impairment of an important physical, mental or psychological function if the impairment substantially interferes with most usual activities of daily living considering the person’s age.  In our case, the plaintiff was a homemaker and did not fall within the exceptions provided for person’s who were employed or were training for a career at the time of the accident.

An important function, as described by the judge, is a function that is necessary for a person to provide for his or her own care or well-being or be important to the usual activities of daily living, considering the person’s age.

Permanent, as described by the judge, is based on medical evidence, an impairment that is expected not to substantially improve.

Analysis

The judge noted that the plaintiff was 48 years old.  She was a homemaker.  She was a single parent of a teenage son and daughter.  Post-accident she became considerably restricted in her social and household activities.

Unfortunately the evidence at trial disclosed that in the year leading up to the accident the plaintiff visited her family doctor on several occasions to complain of head, neck and back pain, which were similar to her post-accident pain.  After the accident she undertook two physiotherapy sessions and had the benefit of an occupational therapist help her regain function with her household activities however, she had never attended a pain clinic or received a psychiatric assessment or any psychological intervention.  Surveillance was arranged and the judge found that it was “devastating to her credibility and showed her to be capable of vigorous and sustained activity including stretching and lifting – the very activities which allegedly restricted her functioning as a homemaker.”  The video also showed her chopping ice and snow off of her car in the morning after an ice storm, pumping gas, reaching for groceries on an upper shelf, carrying plates of juice containers and bags up the steps to her home without assistance.

Experts were divergent on her assessment and contradicted the testimony of one another.

The plaintiff’s psychological functioning was briefly addressed by a psychologist who saw the plaintiff for one brief consultation.  He unfortunately did not see her medical records.  A diagnosis seemed to have been made too soon.

Conclusion

The Judge found that the threshold test had not been met.  The plaintiff did not prove that she permanently suffered from ongoing pain symptoms or other physical injury nor did such injury prevent her from carrying out regular household functions or from socializing in her community with relative at her mosque, which he would take to be important physical functions to which she normally engaged.

The Judge also addressed damages that were awarded.  The jury declined to award any sum for future loss of housekeeping services.  The jury did award $32,000.00 for past loss of housekeeping services and $50,000.00 for compensation for pain and suffering.  With respect to housekeeping, the Judge noted that while special damages are not subject to the threshold criteria (on general damages for pain and suffering) a question arises as to whether or not the Court could consider the jury’s verdict on the question of whether this homemaker suffered from a permanent serious impairment of a physical functioning required for homemaking activities.  He determined that a legislature had ultimately left it to judges to determine whether or not the threshold had been met.  This overlaps jury considerations particularly where the symptoms are subjective.

Essentially the judge was noting that the legislation was clear: a judge must decide the threshold motion and in doing so the judge is not bound by the verdict of the jury.  The timing of the hearing is at the discretion of the trial judge.

Accordingly, the plaintiff failed to prove on a balance of probabilities that her case fell within the exception to the threshold set out at s.4.2(1.1)(III) of the Insurance Act and the jury award of general damages for pain and suffering was disallowed.  Judgment was entered for the plaintiff for $32,000.00 which represented the jury’s award of special damages for the past loss of housekeeping services only.

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The Case of the Bad Case

The plaintiff, Michael Smith, in the case of Michael Smith vs Matthew DeClute, Daimler Chrysler Financial Services Canada and the Personal Insurance Company of Canada failed to pass the Bill 198 threshold.  In fact, the entire plaintiff’s case did not seem to go so well at all – and in the end was dismissed. It was a case, in my opinion, that should have never gone to trial. There were probably offers exchanged at some point – and there is no question in my mind that the plaintiff should have settled his case.

Michael was involved in a collision in July of 2006 and started a lawsuit for compensation. His trial took place before a jury in April of 2012. As is normal with car accident cases, at the close of the evidence, the lawyer for the Defendant brought a threshold motion to ask the Court whether the plaintiff sustained a “permanent, serious impairment of an important physical, mental, or psychological function”.

For those of you that do not know – in order to be successful in establishing an entitlement to an award for general damages under  the insurance act a Plaintiff must demonstrate that he has sustained injuries that have resulted in a permanent, serious disfigurement or a permanent, serious impairment of an important physical, mental or psychological function.  Click here for more information.

 So what happened in this case? Here was a bit about Michael:

  • he was 25 years old
  • he lived at home with his parents
  • he worked as a cook
  • he had been involved in a number of fights as a result of which he sought medical treatment
  • He did not have back or neck problems prior to the accident 
  • he did not experience emotional problems
  • he was a regular user of marijuana and alcohol
  • he was very active in sports prior to the accident
  • he loved camping
  • he helped his parents with chores around the house such as yard work, shoveling and cleaning the house
  • he was unable to return to work as a cook until early 2009 because of back pain
  • he since July 2011 the he had been working as a cook at Oliver and Bonacini on a full time basis and his evidence at trial was that he planned to continue at this job.
  • he married in October of 2010
  • his wife testified that he was unable to do the activities that he used to engage

Michael’s medical story

Post accident he went to Sunnybrook Hospital where he was assessed and released. He had a broken rib and strains to his neck and back. He went to his family doctor 12 days later. Physiotherapy was recommended and also that he remain off work for six to eight weeks.  He was given a strong pain killer.

Later that same year his neck pain and rib pain settled down but his low back pain was undiminished and on a constant basis with pain running into his right leg at times.  Eventually, he became depressed and was prescribed anti-depressants by his family doctor.

In March 2007, the Plaintiff had an MRI which was unremarkable.

He was referred to a physiatrist who diagnosed a chronic pain syndrome and recommended treatment and stop the marijuana. Unfortunately Michael did not comply with his medical recommendations and he did not return for treatment.

Michael’s lawyer sent him for an independent psychological medical legal assessment in December 2010.

There was a problem with this. Dr. Keeling was qualified as an expert by the Court and made a diagnosis of chronic adjustment disorder and chronic pain disorder which he attributed to the motor vehicle accident – but the  Judge attached very little weight to this opinion. Why?

  • Dr. Keeling never met the Plaintiff and had limited documentation when he formed his opinion – there was no ongoing psychological clinical notes and records to review since Michael did not attend for psychological treatments.
  • A Master’s student, and not Dr. Keeling met with Mr. Smith and administered the tests.
  • Dr. Keeling’s involvement was limited to a telephone discussion with Mr. Kadiss [the student] before coming to his diagnosis.
  • Dr. Keeling was unaware of the Plaintiff’s use of drugs and under cross examination and he agreed that substance abuse mood disorder can have many of the same features as a pain disorder.

Michael did have another MRI done of his lower back in 2010 that showed a disc protrusion at T12-L1.

His family doctor sent him to see a neurologist and a neurosurgeon who both felt that from a medical perspective, there was nothing to account for the pain complaints that Michael was making. One of the two noted that the bulge was not in the location that would produce all of the pain in the areas that Michael was experiencing.

Michael’s lawyer then sent him to see an orthopedic surgeon for a medical legal assessment. He noted that Michael had sacroiliitis and radiculopathy. That surgeon noted specifically that:

“Mr. Smith has been left with ongoing severe chronic continuous right gluteal pain and intermittent pain radiating down the lateral aspect of his right thigh. Clinical assessment today is strongly suggestive of a severe right sacroiliitis and a right lumbar radiculopathy with restricted straight leg raising on the right and right lower extremity weakness…..He is, in my opinion, suffering severe impairments due to both his right sacroiliitis and his right lumbar radiculopathy. There impairments both constitute serious and permanent impairments of important physical functions. These impact severely on his pre-accident activities of daily living including work, housekeeping, home maintenance and recreational activities.”

 An orthopedic defence medical expert was commissioned by the lawyer for the defendant. That expert found nothing to explain Michael’s pain.

A psychiatrist also retained by the defence testified that Michael did not have disabling depression, and his biggest problem was his drug use which pre-dated the motor vehicle accident.

The Court’s Decision

  • The Court found that there was obvious wide disparity in medical opinions.
  • The Judge noted that The Plaintiff’s drug use, both before and after the motor vehicle accident, was of importance in this case;
  • Credibility was also a serious issue;
  • There was evidence that the Plaintiff was not compliant with the recommendations of his treatment providers;
  • His reasons for the cessation of certain jobs were contradicted by the evidence of the employers ;
  • Surveillance showed him walking from the Eaton Centre for three and a half kilometers, which took more than an hour – and he did not limp; it undermined his testimony
  • Nothing on his MRI’s supported the diagnosis given by the plaintiff’s experts
  • He was far from a reliable historian and did not make an impressive witness on his own behalf.
  • There were inconsistencies with his evidence
  • He was hostile and argumentative during cross examination
  • His doctors said he was better
  • Despite his complaints of pain, he underwent no treatment in the last four years
  • His evidence with respect to his employment was inconsistent
  • He was not candid with doctors and did not comply with their recommendations
  • He gave inaccurate information to doctors – a lot of which had to do with his use of alcohol and marijuana

Michael’s wife and parents testified that he could not do the activities he used to engage in before the accident, but the Judge unfortunately did not find that this was the reality or that it was related to injuries from the collision.

The Judge found that that was nothing of an orthopaedic nature that accounted for the Michael’s described pain; nor was there anything of a psychiatric diagnosis that would assist Michael in establishing that he had suffered a permanent impairment of a psychological function.  There was a real issue about the etiology of whatever depression-like symptoms Mr. Smith exhibited, in light of his excessive drug use and alcohol consumption.

 Michael did not sustain a “permanent, serious impairment of an important physical, mental, or psychological function” and unfortunately his action was dismissed. 

 

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Health Canada Warning: Floyd Nutrition Bee Pollen Capsules

Warning: Bee Pollen Capsules contain hidden pharmaceutical ingredients (sibutramine and phenolphthalein) and health Canada has requested the Canadian distributor associated with the website www.floydnutrition.com to immediately stop sale and advertising of this product, and to remove these products from the Canadian market.

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Health Canada noted to be aware that this product has been found to contain hidden pharmaceutical drugs that may pose a dangerous health risks.

If you have taken this drug and you have suffered injury please report it to Health Canada immediately.

The problem with this product:

“ZXT Gold” bee pollen capsules are not authorized in Canada and have not been evaluated by Health Canada for safety, effectiveness, and quality. Health products that have been authorized for sale by Health Canada will have an eight-digit Drug Identification Number (DIN), a Homeopathic Medicine Number (DIN-HM) or a Natural Product Number (NPN) on the label. Some natural health products may have an Exemption Number (EN), which indicates that the product is legally available for sale while Health Canada is reviewing its application for licensing.

Sibutramine was previously used to treat obesity but is no longer authorized for sale in Canada because of its association with an increased risk of cardiovascular side effects such as heart attack and stroke. In addition to heart attack and stroke, side-effects associated with sibutramine include increased blood pressure and heart rate, dry mouth, difficulty sleeping and constipation.

Phenolphthalein was previously used as a laxative but is no longer authorized for sale in Canada because it may cause cancer. Additional side-effects associated with phenolphthalein include decreased blood pressure, skin rash and gastrointestinal bleeding.

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