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Does your injury meet the threshold?

In order to obtain damages for non-pecuniary loss and past or future health care costs, the threshold provisions require not only that a plaintiff establish that the damages meet the “threshold” requirements of a “permanent” and “serious” impairment of an “important” physical, mental or psychological function, but also that the “damages for non-pecuniary loss” or “damages for expenses that have been incurred or will be incurred for health care” are damages “from bodily injury…arising directly or indirectly from the use or operation of the automobile”.

The Plaintiff, 58 year old Franklin Shaw, brought an action for damages as a result of a rear-end motor vehicle collision with minor property damage.  Mr. Shaw suffered from pre-existing osteoarthritis in his left knee.  He claimed the collision caused his asymptomatic left knee to become symptomatic.  On January 30, 2017, the jury returned its verdict and ordered $54,500 for general damages; $0 for past income loss; $0 for pension loss; $22,500 for future health care costs and $3,000 for future housekeeping expenses.

The defendants submitted at trial that the injuries were caused by Mr. Shaw’s pre-existing osteoarthritis in his left knee.  After the verdict, the defendants brought a “threshold motion” (Shaw v. Mkheyan, 2017 ONSC 851) for a declaration that Mr. Shaw’s claims for general damages and future care costs were barred on the basis that his injuries did not fall within the exceptions to the statutory immunity provided for in sections 267.5(3)(b) and 267.5(b) of the Insurance Act, RSO 1990, c. I.8 and the applicable regulations (the “threshold provisions”).

The evidence at trial and on the threshold motion showed that Mr. Shaw had two knee surgeries, walked with a limp and at a slower pace, could no longer do heavier household chores, was no longer active and outgoing, would likely require further left knee surgeries in the future, and it was not likely Mr. Shaw’s pain in his left knee will decrease.  The issue on the threshold motion with respect to Mr. Shaw’s left knee injury (as it was before the jury for the assessment of damages) was whether that injury arose “directly or indirectly from the use or operation of the automobile”, i.e. whether the accident caused the left knee injury.

It should be noted that causation is established on a “but for” test (Clements v. Clements, 2012 SCC 32).  Further, the trial judge is not bound by the verdict delivered by the jury.  But, the verdict is a factor the judge may consider in deciding the threshold motion.

On this threshold motion, Justice Glustein highlighted the importance of trial evidence and went through the expert opinion evidence, medical documentation and lay witness evidence in great detail to reach a decision.

At trial, Mr. Shaw led evidence from Dr. David Backstein, recognized as one of the leading orthopaedic surgeons in North America with surgical and research expertise in arthritis.  Dr. Backstein’s opinion was that the force of the accident converted Mr. Shaw’s asymptomatic arthritis in his left knee into symptomatic arthritis causing Mr. Shaw’s left knee pain and two left knee surgeries.

The defendants led expert evidence from Dr. Hugh Cameron, also a leading orthopaedic surgeon with expertise in arthritis.  Dr. Cameron’s opinion was that Mr. Shaw’s left knee injury arose as a result of Mr. Shaw’s pre-existing osteoarthritis and was not caused by the accident.

Justice Glustein preferred the evidence of Dr. Backstein to that of Dr. Cameron.  Dr. Backstein’s opinion was that many people with osteoarthritis have no pain, let alone necessarily require total knee replacement surgery as Mr. Shaw did.  Dr. Cameron provided no basis to support his conclusion that once a patient is diagnosed with arthritis, the condition would necessarily get worse, let alone be “relentless” as he described it.  On the other hand, Dr. Backstein gave detailed evidence about his expertise as an orthopaedic surgeon.  His evidence was that people can have osteoarthritis and not be aware of it since it does not necessarily become symptomatic.

Most interestingly, Dr. Backstein’s evidence was that a direct impact to the knee was not required to convert asymptomatic arthritis to symptomatic arthritis.  He discussed his experience as an orthopaedic surgeon in which patients with asymptomatic arthritis would then have symptomatic arthritis as a result of a minor force which did not require a direct impact, such as twisting a knee.  A high speed accident, striking the knee, or serious property damage would not be required for the accident to cause the injury.  The force of even a minor accident could be sufficient.  Dr. Cameron provided no evidence on the issue of force required to convert asymptomatic arthritis to symptomatic arthritis.

Justice Glustein also did not accept the defendants’ submission that the lack of a note in the emergency department records meant that Mr. Shaw did not have pain in his left knee after the accident.  Mr. Shaw’s evidence at trial was consistent with the circumstances surrounding the accident and Justice Glustein accepted Mr. Shaw’s evidence that he did not mention his left knee pain as it was a dull pain which he thought would go away in an hour or two.  Ultimately, the defendants’ motion was dismissed.

A good takeaway from this decision is that plaintiff’s counsel should not underestimate the importance of the evidence that is led at trial on “permanent” and “serious” impairment.

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