Applicant fails on the issue of causation - Threshold motion granted - Grieves and Parsons, 2018 ONSC 26

April 03, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Grieves and Parsons, 2018 ONSC 26 (CanLII)

Date of Decision: January 2, 2018
Heard Before: Charney J

SUPERIOR COURT OF JUSTICE

THRESHOLD MOTION: did plaintiff suffer permanent and serious impairment; current deductible taken from total pecuniary settlement; plaintiff mush show he has sustained permanent and serious impairment in order to fall within exceptions to statutory immunity of the Insurance Act; chronic pain

This case is jury trial involving a claim for personal injury by JG, arising out of a motorcycle accident on July 24, 2012. Liability in the action was admitted by Parsons. There is no dispute that JG was injured in the accident. The dispute related to the seriousness and the duration of his injuries. The issues at trial were limited to causation and damages.

JG sought damages for past and future lost income and for general damages for pain and suffering and loss of enjoyment of life. While the jury was deliberating, Parsons brought what is commonly referred to as a “threshold motion” for a declaration that JG’s claim for non-pecuniary loss is barred on the basis that JG has failed to establish on the evidence that, as a result of the collision, he has sustained a permanent, serious impairment of an important physical, mental or psychological function. JG must meet this threshold does to fall within the exceptions to the statutory immunity provided for in s the Insurance Act and the applicable regulations and thereby entitled to a non-pecuniary damages award.

On December 12, 2017 the jury returned its verdict and awarded JG $50,000 for general damages. After taking into account the current deductible provided in the regulations, this would entitle JG to non-pecuniary damages of $12,615 if he meets the statutory threshold.

The parties dispute the seriousness and duration of injury from the motorcycle accident and whether that injury led to JG’s lost income and other damages in the following years. The parties dispute whether JG’s current impairments were the result of the motorcycle accident.

JG alleges that pain he has experienced, and which continues to this day was caused by the injury on July 24, 2012. He alleges that as a result of that motorcycle accident he developed pain in his right shoulder and left knee, and that pain got worse over time, and, notwithstanding appropriate medical treatment and his best efforts to continue working, eventually prevented him from working as a truck driver and enjoying his regular leisure and recreational activities like motorcycle riding. He alleges pain, weakness, loss of terminal range of motion and lack of endurance, which make it impossible for him to continue his job as a truck driver. He cannot engage in heavy lifting, overhead activity, climbing and any forceful use of his upper extremities. He has chronic pain that accounts for these functional limitations.

The defendant alleges that much of the pain that JG has and continues to experience were the result of other factors such as a pre-existing injury to his left shoulder, an injury to his right knee, the development of cellulitis, and the natural aches and pains that accompany aging, including osteoarthritis in both knees and his left shoulder. It was these injuries together with the nature of his work as a truck driver that led to his weight gain and other medical conditions like diabetes, and high blood pressure. The defendant takes the position that these conditions would have developed even if JG had not been injured in the motorcycle accident, and it is these conditions, and not the accident, which prevent him from continuing in his employment as a truck driver.

Also relevant to this analysis is the oral ruling Justice Charney issued on December 11, 2017, which  held that JG had taken the position during discoveries that his claim related only to his right shoulder and not to his left shoulder. As a result of this ruling, Justice Charney instructed the jury that, to the extent that the jury concludes that any of JG’ damages resulted from his left shoulder injury, they must conclude that they were not caused by the motorcycle accident of July 24, 2012. That ruling must also apply to this threshold motion.

Justice Charney reviewed the relevant statutory and regulatory provisions that applied in the case including the Insurance Act, and the Family Law Act, and also reviewed the definitions and thresholds that must be met in order to determine whether JG makes the case of causation. Justice Cahrney also reviewed the law in the case relating to threshold motions and principles. He noted that previous decisions have established that,

“In rendering its threshold decision, the Court is not bound by the jury verdict.  However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion.  See:  DeBruge v. Diana Arnold, 2014 ONSC 7044 (CanLII), 2014 ONSC 7044 (S.C.J.) at para. 10.”

The burden of proof to establish that JG’s impairments meet the statutory exceptions or “threshold” rests squarely with JG, and form a three-part inquiry: 

a)        Has the injured person sustained permanent impairment of a physical, mental or psychological function?
b)        If yes, is the function impaired important?
c)        If yes, is the impairment of the important function serious?

JG was 51 years old at the time of the motorcycle accident on July 24, 2012. He is currently 56 with a grade 8 education. He worked as a truck driver for 30 years before the accident. He is left arm dominant.

Prior to the motorcycle accident JG complained about pain in his left shoulder. The progression of this pain is of central significance to this case.  The first medical record of the complaint was nearly a year before the motorcycle accident when he saw his family doctor on April 7, 2011. An x-ray of his shoulders showed osteoarthritis in both. He complained that his left shoulder pain was present all of the time, including at night. His family physician referred him to an orthopaedic surgeon, Dr. Lobo, in February 2012. Dr. Lobo diagnosed left acromioclavicular (“AC”) joint osteoarthritis and recommended surgery. All this occurred before the motorcycle accident.  JG did not have the surgery. While his left shoulder was painful, he had no functional limitations and it did not prevent him from doing his job. He declined the surgery because he felt that he could not afford to take time off work.

There is no dispute that JG sustained a physical injury as a result of the motorcycle accident on July 24, 2012. He was diagnosed with a left knee injury and a right shoulder injury: a tear to the lateral collateral ligament of his left knee, and traumatically induced rotator cuff tendinopathy in his right shoulder. He complained that both his left knee and right shoulder were painful. He did not sustain any fracture, and he was released from the hospital about 1.5 hours after he was admitted. Prior to the accident he worked long hours (up to 16 hours a day) as a trucker and was usually only home on weekends. His primary recreational activity was motorcycle riding with his wife, which they did nearly every weekend. He also participated in household chores including cleaning and mowing the lawn. He continues to participate in the same household chores today, although he has had to modify his approach to account for his pain.

After the accident he testified that he was unable to ride his motorcycle for nearly 5 years, and only got back on it this year. He purchased a motorcycle in the spring of 2017, and now only rides for about an hour once a month. JG testified that his left knee hurts and gives out when he walks.

Justice Charney reviewed the medical evidence in the case and noted that in 2014 JG was morbidly obese. JG’s family physician testified that JG told her in June, 2014 that his right shoulder was 90% better. JG attempted to work driving an automatic transmission truck for a different employer in July, 2015. He hoped that the automatic transmission would be easier because it did not require him to use his right arm to shift gears and left leg to work the clutch. He testified that he quit that job after only a couple of days because climbing in and out of the truck with a knee brace he wore on his left knee made his leg raw, and he had difficulty putting the tarp on and off the truck.

On cross-examination he acknowledged that this was the month in which he was diagnosed with an infection – cellulitis – in both his legs and he was hospitalized for 9 days. The swelling did not go down until October 2015.

Justice Charney found that the cellulitis, and his inability to work during this period, were not caused by the motorcycle accident of July 24, 2012.

In October 2015 JG was diagnosed with diabetes. The CNR of the family physician refer to concerns relating to JG’ weight gain, diabetes and lack of exercise.

In October 2015 JG began working for a third trucking company. In addition to driving the truck he was required to couple and uncouple the truck and trailer by cranking a dolly, a job that he explained required both arms to operate. He would sometimes have to lift heavy loads if they fell off the truck during delivery. He testified that he did not wear a seat belt so that he could stand up and stretch while driving.

JG continued working until May 10, 2017. He testified that he had to stop because the pain in both his left and right shoulder made it too difficult to drive the truck and perform the ancillary duties of the job. He stated that he thought his left arm was in pain because he overcompensated by using it instead of his right arm, which was injured in the motorcycle accident. The CNR from his family physician from June 2016 to August 2017 focus on left shoulder pain and weakness in his left arm. This is confirmed by his personal trainer, who began seeing JG in August 2017. She testified that JG’s left shoulder (which is his dominant arm) has very limited mobility and strength, and that his right shoulder is less limited.

JG testified that he did not want to get a job as a taxi driver, has recently qualified for a bus driver’s licence, but cannot drive for more than ½ hour without getting out to stretch. He wants to go back to driving a truck because that is all he knows. His limited education means that he is not qualified for any job requiring a high school diploma.

Justice Charney reviewed the extensive expert medical advice of contradictory nature. He the reviewed the Jury Verdict noting that while the Court is not bound by the jury verdict, the verdict is a factor the trial judge may consider in determining the issues on the threshold motion.

At trial JG sought damages for past lost income in the range of $215,000 to $245,000. He argued that all of his time off work between the July 2012 accident and the trial was caused by the accident.

The defendant acknowledged that JG was off work for approximately 6 months as a result of the accident (5 weeks immediately after the accident and approximately 5 months after the February, 2014 surgery), and took the position that his past lost income caused by the accident was limited to $47,692. The jury awarded $61,000 for past lost income.

JG claimed damages for future lost earnings (to age 65) in the range of $738,000 to $866,000. That claim was based on actuarial evidence of future income and the assumption that, as a result of his accident injuries, he could not return to his previous employment as a truck driver and would not be able to find any alternative employment. The jury awarded $90,000 for future lost earnings.

At trial JG claimed $140,000 to $160,000 for non-pecuniary damages.  The jury awarded $50,000 for general damages.

On the balance of the evidence and Justice Charney determined that the jury verdict reflects a result much closer to the position advanced by the defendant than to the position of JG in this case, noting the jury appears to have rejected JG’s position that the motorcycle accident on July 24, 2012 has resulted in a permanent impairment that will prevent him from working until his normal retirement age of 65.

The entire case hinges on whether JG has met all the requirements of s. 4.2 of O. Reg. 461/96 and the applicable jurisprudence which require that the impairment(s) be permanent, important and serious.

JG was diagnosed with chronic pain. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the manner in which JG has been impacted.  The threshold determination is to be done on a case by case basis.

Justice Charney accepted JG’s evidence that the pain that he now experiences prevents him from continuing his regular or usual employment.

From all accounts, JG enjoyed his work as a truck driver and gained substantial personal gratification from that work. Due to the nature of this work, which, at his last job, included driving for long periods of time and coupling and uncoupling the truck and trailer by cranking a dolly, JG is no longer able to perform this job since May 2017. His employer testified that a driver who is not able to couple and uncouple the truck and trailer could not perform the essential functions of the job, and that this limitation could not be accommodated at that job.  The medical evidence also indicates that JG’s current impairment is not expected to substantially improve. While experts disagreed regarding the cause of the impairment, they did not disagree about the prognosis.

The case is complicated by the fact that JG returned to work, and then stopped working, on three occasions after the accident. JG’s ability to temporarily return to work, however, is not fatal to his position on the threshold motion.

On balance Justice Charney determined that JG’s claim fails on the issue of causation. The evidence supports the defendant’s position that JG stopped working in May 2017 because of pain in his left shoulder, and that pain was the result of left shoulder osteoarthritis that first presented itself prior to the July 24, 2012 accident.

For these reasons JG does not fall within the statutory exception set out in s. 267.5(5) of the Act and Parsons’ motion to dismiss JG’s claim for non-pecuniary damages is granted.

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