Nursing Home Negligence

Nursing Home Negligence

There comes a time in a person’s life, where they or their family members need to decide if a long-term facility, such as a nursing home, is the right move. One needs to be ensured that they will be taken care of in a nursing home and that no negligence will occur. Families worry about their loved ones just as much, and it is important for all that their mother, father, grandparents or any other relative is safe in a nursing home and does not fall victim to nursing home negligence. Although there are many fantastic nursing homes out there, there are many cases of nursing home negligence. In today’s era of aging baby boomers, nursing homes will only get busier, and thus more negligence cases may arise.

Nursing Home NegligenceNursing home negligence can be physical or emotionally caused. For example, in 2013, CTV news reported that an 85 year old woman was being mistreated in a nursing home in Peterborough Ontario. She was seen having a feces-covered rag waved in her face and also having her diaper changed with the door wide-open. There were also suspicious circumstances surrounding a black eye and bruises. Another example of nursing home negligence includes a growing concern regarding residents being given potentially lethal anti psychotic drugs, which can be used to help aggression and acting out. There are certain types of these drugs that can cause severe adverse reactions and many residents, who are not even prescribed these drugs, have been victim to this adverse reaction as they have been ingesting the drug. Other types of nursing home negligence include dropping residents, yelling at residents, neglecting residents and leaving residents unattended for hours upon hours, which can create bedsores. According to the Long-Term Care Homes Act, Nursing homes have a zero-tolerance policy for any time of negligence or abuse. Therefore,  if negligence occurs, those people injured, should be compensated.

Nursing homes are expected to provide a safe environment for those living there, and many are! A nursing home should be a clean, happy and pleasant place where people can live without worry of negligence. However, if you are a resident of a nursing home, or you are a loved one of a nursing home resident, that has been victim to nursing home negligence, do not hesitate to contact our personal injury law firm to find out what your legal rights are.

The Dreaded Pothole Situation

Car Accidents and Potholes

They seem to be everywhere. They cause bumps, delays and even car accidents. What are they? They are the dreaded potholes.

After the winter we have just had, it seems that the pothole situation is at an all-time high. They are causing damage to vehicles and causing car accidents if someone loses control when hitting a pothole.

If your car has been damaged in an accident caused by a pothole, or simply by the pothole itself, what are your avenues to seek compensation for such damage from the accident? Can you hold the municipality responsible for any damage that was caused to your vehicle due to a pothole? It is important to understand the standard of care for a municipality as it relates to potholes and any damage to vehicles or accidents potholes may cause.

Justice Leach of the Ontario Superior Court of Justice spoke to this issue in the recent decision of McLeod v. General Motors of Canada Limited et al., 2014 ONSC 134. This case was about a young woman who was driving her vehicle on a country gravel road when she lost control of her vehicle and had a car accident due to potholes on the road. She sustained serious and life-threatening injuries as a result of the car accident. The young woman began an action against the rural municipality.

Justice Leach determined that the action should be dismissed. This means that the municipality would not be held responsible for the accident caused by the potholes. For the municipality to be responsible, certain things must transpire. They are the following:

Potholes

  1. Official Complaints to the Municipality should be made.

This does not mean complaining around your city or town, but actually submitting formal complaints to the municipality about the potholes.

  1. The condition of the road must be in a state of disrepair.

A road that is in a reasonable condition, does not count! For instance, a gravel road is expected to have bumps and holes and thus it is not in a state of disrepair.

Additionally, these two points have to coincide. What this means is, even if the road is in disrepair, the municipality can rely on the defence that it had no knowledge of the defect and thus it is not held responsible for any accident.  The municipality has the responsibility to take reasonable steps to prevent the defect from arising by having regular systems of grading and it must meet the minimum standards of inspection and pothole repair. If it does these things, it may not be held responsible for any accident and/or damage that may occur as a result of potholes.

Potholes are going to continue to be the bane of many peoples’ existence. They are something that we all have to live with, however they should be fixed as soon as reasonably possible by the municipality. You have the responsibility to avoid dangerous accident-causing situations, if possible and you must make formal and detailed complaints about potholes, so that if any damage occurs because that pothole has not been reasonably fixed, you will have avenues of recourse!

If you have sustained personal injury from an accident or car accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Beware: Social Media and the Courtroom

Social Media can be a Plaintiff’s Enemy

Facebook has taken over the globe in unimaginable proportions. Many people use Facebook daily, especially for posting photographs of fun nights out with friends and family vacations. Privacy settings can be set quite high; however it is important to know there might always be a way around privacy settings. As an injured party, Facebook and other social media websites may become your enemy.

When you are involved in an accident, personal injury has been sustained, and a law suit has commenced, it is important to take into consideration that surveillance may be placed upon you. Another consideration to be made is that, after an accident, the opposing side may very well do investigating by way of social media sites too. When you have suffered personal injury from an accident, be sure to take extra precaution of what you are posting on these websites, because any inconsistencies between what you are saying and what is being shown, may be brought to light, despite those photographs not actually depicting the true extent of your pain from your accident injury that you may have most of the time.

Counsel has not been afraid to use Facebook and other social media cases for credibility issues during questioning and in Court for people who are claiming pain and suffering from injuries sustained in an accident.  In the Ontario Superior Court of Justice case, Kourtesis v. Joris, a young woman’s photograph postings led to her claim for damages for pain and suffering to be dismissed. The young woman claimed her social life had been ruined by the accident and subsequent injuries; however Facebook photographs depicted her out partying with friends. This led to the demise of her “ruined social life” claim and in the end, undermined her claim to have suffered other problems from the accident.

Despite irrelevant searches being looked down upon, Courts have tended to find that photographs relevant to accident injury claims on social media sites should be disclosed. For instance, if you manage to climb the tallest mountain, this should be made known. Lying and hiding those facts, even if you do have legitimate injuries, could lead to your case failing in every way. If you are on social media websites, be careful as to what you post, even if you are not part of a law suit. You never know how people may gain access to your profiles and nothing is off limits if it is relevant to your case. Always tell the truth and admit, for example, if your injuries from an accident do not cause you constant limitations and pain.

If you have sustained personal injury from an accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.

 

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Watch out for that Tree: Personal Injury and Property Damage

Falling trees causing personal injury and property damage

Fallen Tree on roadIt has been an icy winter to say the least. Personal injury and property damage have been sustained due to icy trees falling on cars, houses and people. However, trees do not only fall in the winter and falling trees can cause personal injury and property damage at any point during the year. What responsibility do you, as a property owner, have if a tree has fallen onto a neighbor or a neighbor’s property causing personal or property damage? On the other hand, what avenues of recourse do you have as a personally injured person or a person who has sustained property damage, against your neighbor?

If your neighbor’s tree falls on your house, or your car, the following should be taken into account: Many times, a tree falling on your property will be covered by insurance. There are times, when this is not the case and therefore neighbors begin law suits for personal injury and property damage against other neighbors. A 1996 Ontario Superior Court Decision, ruled that a neighbor, whose tree fell onto Mr. and Mrs. Parent’s property causing damage to their home and snowmobile, was not responsible for the damage. The judge reasoned that growing a tree is a natural use of the land and the owner of that land is under no obligation to his or her neighbor with respect to what is growing on his or her land. The neighbor has a responsibility to protect him or herself from personal injury or property damage. However, if an owner knows of, or can plainly see, warning signs that the tree is, for instance, decaying, they must take steps to ensure the tree is not hazardous to others.

There is also a British Columbia Court of Appeal case that involves a tree falling onto a woman’s property after a wind storm. The owners of the tree were found responsible for the damage, because the neighbor had warned them about the condition of the tree, and despite that, they did nothing to avoid the hazard. Therefore, to avoid property damage, and at times personal injury, it is important for everyone involved to be responsible property owners.

If you sustain personal injury due to a tree falling on you and it is a fluke accident, do you have any means of compensation? In some cases, personal injury from a tree falling can even result in death, which was the case of a Port Colborne woman. She was driving by in her car this winter when a tree, due to natural phenomenon, fell upon her car, crushing it and causing her fatal injuries. Again, insurance routes are available to most. As well, if the tree was not owned by a civilian, the City (or Town) has responsibility to ensure the safety of their property-this is true of trees, and even pot holes. If these avenues are unable to be used, or if they have been exhausted, legal action may need to be pursued.

Know your legal options and if you have experienced personal injury, do no hesitate to contact our personal injury law firm to find out about your legal rights.

 

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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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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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