Applicant's Social Media Images Contradict Claims of Injury - Papamichalopoulos v. Greenwood, 2018 ONSC 2743 (CanLII)

June 12, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Papamichalopoulos v. Greenwood, 2018 ONSC 2743 (CanLII)

Date of Decision: April 30, 2018
Heard Before: Justice Master Abrams

LOSS OF FUTURE INCOME: applicant claims loss of future income based on four week stint at latest job; applicant has 6 employers in 13 years; applicant claims life inalterably changed due to pain;  defendant produces social media images; social media images contradict claims of disability;

Papamichalopoulos makes claim for past and future income loss of some $1.6 million, calculated on the basis of Papamichalopoulos’s “pre-incident earning capacity” of $110,000/year.  Papamichalopoulos’s pre-incident earning capacity was predicated on his base salary while employed by KIK Custom Products Inc. (“KIK”).  Papamichalopouloswas employed by KIK for a period of only four weeks.  He alleges that he was terminated by KIK because of the injuries that found this litigation and an inability to perform his duties as a result.  His expert opines that “[a]bsent the [i]ncident [here at issue], [Papamichalopoulos] would have continued working as a full-time purchasing manager at KIK…or an equivalent thereof until normal retirement at age 65”. In the 13 years prior to his appointment with KIK, Papamichalopoulos was employed by six employers. This information is derived from his resume.  It seems that he has not held any position for longer than about four years.

After being terminated by KIK, Papamichalopoulos worked) as a purchasing specialist—this for less than one year.  His surgery, at issue in the litigation, and convalescence took place during his employment with NCH. He was terminated by NCH.  He attributes his termination to the fact that he missed work because of the surgery. His income loss expert makes a like assumption.  NCH indicates that Papamichalopoulos’s termination was not as a result of any performance issues but, rather, as a result of its own corporate restructuring and that Papamichalopoulos told one of his supervisors that he was not in need of physical therapy and did not require any workplace accommodation.

The defendant is entitled to test the assumption that, but for Papamichalopoulos’s alleged injury, he would have continued earning a six-figure salary and that the loss of his employment at KIK and NCH is attributable wholly or in part to his injury.  To use the words of defendant’s counsel, the employment records and income tax returns sought will either support or undermine Papamichalopoulos’s expert’s assumptions by identifying “whether the six-figure salary he was briefly earning at KIK was representative of Papamichalopoulos’s earning capacity overall, and was not a statistical outlier;  and, whether factors personal to Papamichalopoulosother than the fact of his alleged injury stood to interrupt his continued employment at KIK”.  Income tax returns will contextualize the salary earned by Papamichalopoulos at KIK.

The Judge noted the the broad temporal scope of what is being soughtand that the retrospective look is to the period of employment first listed in Papamichalopoulos’s resume is appropriate.  If Mr. Papamichalopoulos held fewer jobs for longer, the temporal scope might have been shorter.  The court began by looking at Papamichalopoulos’s employment from 2001 onwards and tax returns for the period dating back to 2008.

Papamichalopoulosp claims that he continues to suffer from the injuries and they are permanent. He alleges being afflicted with stiffness, problems with balance and “great pain and suffering and profound physical and emotional shock”. He says that the quality of his life has been “irretrievably lessened” such that he will require assistance going forward.

The defendant’s investigator produced social media pages for Papamichalopoulos and his wife publicly posted. They show Papamichalopoulos riding a jet-ski, bending over at pronounced angles while lifting his spouse, driving, and holding up his then 2-year old son—all without any visible signs of discomfort.  These photographs depict a physically strong and active plaintiff and, as such, are relevant and open up line(s) of inquiry.

The nature of Papamichalopoulos’s allegations and the depictions set out in the photos that appear to be at odds with Papamichalopoulos’s allegations.

Photographs taken after the alleged incident are relevant to the effect (and its evolution) of the injuries on the plaintiff’s enjoyment of life;  and photographs taken before are relevant for comparison (see:  Morabito v. DiLorenzo, 2011 ONSC 7379(CanLII), at para. 5).

 “Where, [as here], in addition to a publicly-accessible profile, a party maintains a private Facebook profile….it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile.  A court then can order the production of relevant postings on the private profile” (Leduc v. Roman, 2009 CanLII 6838 (ON SC), 2009 CarswellOnt 843, at para. 30).

In 2011, Papamichalopoulosinjured his back.  Any imaging records in his Toronto Western Hospital medical file that may exist are to be produced as being relevant to the issue of causation.

In respect of the home equity claim, the issue settled during the motion—with Papamichalopoulos agreeing to advise by May 19/18 as to whether the claim will be pursued and, if so, to particularize the claim within 60 days thereafter.

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