Tyrell v. Bruce, [2010] O.J. No. 5245 (S.C.J.).
The defendants brought a motion alleging that the plaintiff failed to meet the threshold pursuant to section 267.5(5) of the Insurance Act.
The plaintiff was taken to hospital the night of the accident and released. He did not see his family doctor for 2 months. He continued taking courses at college and worked a telemarketing job and at a convenience store for a period of time. Over the years, he saw several health care providers and reported to them complaints of pain in his head, neck, shoulders, back, legs, knees and ankles. Various x-rays and MRIs showed no other evidence of injury other than soft tissue strain and sprain. The court held that most of the medical evidence relied on subjective reporting by the plaintiff, and the plaintiff was not a believable person. The plaintiff recorded four rap music videos which had been placed on YouTube which showed him able to walk and move about without difficulty. His explanation was that it was a good day for him.
The court found that the plaintiff claimed to be injured when it suited him; for example, when he was receiving Ontario Disability Support Program Benefits. On the other hand, when he ran into a legal problem with the criminal justice system he got a letter from the health care provider to say that he was financially independent and working.
The court held that the plaintiff had not proven on a balance of probabilities that he had a permanent, serious impairment of an important physical, mental or psychological function.
Credibility of the plaintiff is extremely important. Tyrell shows that presenting facts from a variety of sources, such as medical records, social services records, social networking and the internet can go a long way in assisting the defence.
A weekly update of cases pertaining to the practice of insurance defence.
Showing posts with label Chronic Pain. Show all posts
Showing posts with label Chronic Pain. Show all posts
January 5, 2011
July 23, 2009
Chronic Pain - Non-Pecuniary General Damages $175,000
Degennaro v. Oakville Trafalgar Memorial Hospital, [2009] O.J. No. 2780 (S.C.J.).
Is this the new high water mark for chronic pain?
"171 I am persuaded that the range for non-pecuniary loss for Ms. Degennaro, urged upon me by Mr. Kwinter, is appropriate. I will award Ms. Degennaro $175,000 for non-pecuniary loss.
172 It is clear that Paul Degennaro and the children have suffered a loss of guidance, care and companionship as a result of the injury to Ms. Degennaro. I will award Mr. Degennaro $65,000 for his claim under the Family Law Act. I will award each child $25,000."
It will be interesting to see if this decision gets appealed or stands.
July 20, 2009
Definition of Chronic Pain from the Supreme Court of Canada
This is not a new decision but worth re-reading.
"Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing Workers' Compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians." (underlining added)
Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at para. 1 (Gonthier J.).
"Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing Workers' Compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians." (underlining added)
Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at para. 1 (Gonthier J.).
July 14, 2009
Is chronic pain a foreseeable injury? (post-Mustapha)
In the recent decision, Degennaro v. Oakville Trafalgar Memorial Hospital, [2009] O.J. No. 2780 (S.C.J.), the Court considered the issue of reasonable foreseeability and chronic pain in the light of the Supreme Court of Canada's comments on this issue in Mustapha, [2008] 2 S.C.R. 114.
Gray J., considering whether chronic pain is a foreseeable injury in light of Mustapha, noted that: "There is obviously a subtle distinction between a person of less than ordinary fortitude who suffers damage that is not foreseeable, and a person of ordinary fortitude who suffers damage that is more serious than expected."
In Degennaro the plaintiff developed chronic pain after an injury that resulted in a fractured sacrum. The fracture healed but her pain got worse. There was no objective reason for the continuing and worsening pain. The eventual conclusion of her treating physicians was that the plaintiff had developed fibromyalgia. Although it was in dispute at the trial, the Court concluded that the chronic pain was caused by the same fall that had resulted in a fractured sacrum.
The Court then had to consider whether the chronic pain was foreseeable. This is what Gray J. wrote at paras 158-163.
158 In Mustapha, supra, the Supreme Court of Canada analyzed the issue. In that case, the Court held that it was not reasonably foreseeable that the plaintiff would suffer serious mental injury as a result of seeing flies in a bottle of water that he was about to install for a customer.
159 At para. 14 of her judgment, McLachlin C.J.C. stated that a plaintiff is to be considered objectively, not subjectively. Thus, a plaintiff is not to be considered in the context of his or her own personal makeup, which may give rise to the specific injury suffered, but rather objectively. That is, one must ask what a person of ordinary fortitude would suffer.
160 At para. 16 of her judgment, McLachlin C.J.C., in a passage that has some significance for this case, stated:
Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability, "is not to be confused with the 'eggshell skull' situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected". Rather, it is a threshold test for establishing compensability of damage at law.
161 In my view, it is foreseeable that chronic pain may result from a physical injury. While the actual cause of chronic pain is not known, it is known that some people will develop chronic pain after physical trauma. Thus, chronic pain is foreseeable as falling within a range of consequences that may flow from a physical injury. This is a foreseeable consequence in a person of ordinary fortitude. Thus, in my view, the defendants must take the plaintiff as they find her. As noted by McLachlin C.J.C. at para. 16 of Mustapha, supra, this is simply a case where the damage inflicted has proven to be more serious than expected.
162 There is obviously a subtle distinction between a person of less than ordinary fortitude who suffers damage that is not foreseeable, and a person of ordinary fortitude who suffers damage that is more serious than expected. However, in view of the analysis in Mustapha, the distinction is real and must be respected. I have no doubt that Ms. Degennaro falls into the category of a person who is a person of ordinary fortitude who has suffered damage that is more serious than expected.
163 For the foregoing reasons, the chronic pain suffered by the plaintiff, Ms. Degennaro, was a foreseeable consequence of the incident that occurred in May, 1999, and the defendants must compensate her for it.
Gray J., considering whether chronic pain is a foreseeable injury in light of Mustapha, noted that: "There is obviously a subtle distinction between a person of less than ordinary fortitude who suffers damage that is not foreseeable, and a person of ordinary fortitude who suffers damage that is more serious than expected."
In Degennaro the plaintiff developed chronic pain after an injury that resulted in a fractured sacrum. The fracture healed but her pain got worse. There was no objective reason for the continuing and worsening pain. The eventual conclusion of her treating physicians was that the plaintiff had developed fibromyalgia. Although it was in dispute at the trial, the Court concluded that the chronic pain was caused by the same fall that had resulted in a fractured sacrum.
The Court then had to consider whether the chronic pain was foreseeable. This is what Gray J. wrote at paras 158-163.
158 In Mustapha, supra, the Supreme Court of Canada analyzed the issue. In that case, the Court held that it was not reasonably foreseeable that the plaintiff would suffer serious mental injury as a result of seeing flies in a bottle of water that he was about to install for a customer.
159 At para. 14 of her judgment, McLachlin C.J.C. stated that a plaintiff is to be considered objectively, not subjectively. Thus, a plaintiff is not to be considered in the context of his or her own personal makeup, which may give rise to the specific injury suffered, but rather objectively. That is, one must ask what a person of ordinary fortitude would suffer.
160 At para. 16 of her judgment, McLachlin C.J.C., in a passage that has some significance for this case, stated:
Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability, "is not to be confused with the 'eggshell skull' situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected". Rather, it is a threshold test for establishing compensability of damage at law.
161 In my view, it is foreseeable that chronic pain may result from a physical injury. While the actual cause of chronic pain is not known, it is known that some people will develop chronic pain after physical trauma. Thus, chronic pain is foreseeable as falling within a range of consequences that may flow from a physical injury. This is a foreseeable consequence in a person of ordinary fortitude. Thus, in my view, the defendants must take the plaintiff as they find her. As noted by McLachlin C.J.C. at para. 16 of Mustapha, supra, this is simply a case where the damage inflicted has proven to be more serious than expected.
162 There is obviously a subtle distinction between a person of less than ordinary fortitude who suffers damage that is not foreseeable, and a person of ordinary fortitude who suffers damage that is more serious than expected. However, in view of the analysis in Mustapha, the distinction is real and must be respected. I have no doubt that Ms. Degennaro falls into the category of a person who is a person of ordinary fortitude who has suffered damage that is more serious than expected.
163 For the foregoing reasons, the chronic pain suffered by the plaintiff, Ms. Degennaro, was a foreseeable consequence of the incident that occurred in May, 1999, and the defendants must compensate her for it.
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