Threshold Motion Dismissed on Small Jury Award for Chronic Pain
Car insurance premiums are an important public policy consideration, even in light of the compensatory rationale underlined in tort law. In Ontario, the legislature has created a balance through s. 267.5 of the Insurance Act and its Regulations, which creates a “threshold” before which an injured person can receive damages after a motor vehicle collision.
Although brought into statute through Bill 198 in 2002, the test used on this threshold precedes the amendments and can be found in Meyer v. Bright, as follows:
(i) Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?
(ii) If yes, is the function so impaired an important one?
(iii) If yes, is the impairment of the important function serious?
A motion dismissing an action on the basis that a plaintiff has not met this test is often brought by defence counsel as a means of creating immunity to liability. Absent such a motion, a judge is required to conduct this assessment even after a finding of liability by a jury.
The Ontario Superior Court of Justice recently released a decision in Maxwell v. Luck on a relatively small jury damages award, but dismissed the threshold motion and awarded the damages comprised largely of future income loss and general damages.
Justice Howden heard evidence from an orthopedic surgeon specializing in the area of chronic pain assessment, as well as a spine and trauma surgeon who did not specialize in chronic pain, brought by the defence.
The orthopedic surgeon stated that the plaintiff was permanently disabled for the rest of her working life due to chronic neck pain, pain in the upper back, and headaches. Her functions as an exotic dancer were impaired because she could no longer do the “high-energy, high flexibility dancing” she did before to support herself.
The defence trauma surgeon, however, believed the plaintiff had recovered from her injuries with no objective mechanism for causing her pain. This sentiment is not uncommon for many in the medical industry, who can often dismiss chronic pain as an artificial illness.
Pain, however, is a subjective experience.
The perpetual nature of chronic pain has itself been held to meet the permanence requirement of the threshold. Justice Roccomo stated in Hartwick v. Simser, [2004] O.J. No. 4315,
87 It is now trite law that chronic pain arising from injury sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future, will meet the requirement of “permanence” in the threshold: see Bos Estate v. James (1995), 28 C.C.L.I. (2d) 166 (S.C.J.); May v. Casola, [1998] O.J. No. 2475 (Ont. C.A.); Altomonte v. Matthews, [2001] O.J. No. 5756 (S.C.J.).
88 In Meyer, supra, it was held that an “important” bodily function is one that plays a major role in the health, general well-being and way of life of the particular injured plaintiff. The determination of what is an important function invokes a subjective analysis, as there are bodily functions important to some but not to others.
89 The more litigious component of the threshold test surrounds the question of what functional limitations will constitute a “serious” impairment. It is now clearly established that one who can carry on daily activities, but is subject to permanent symptoms including sleep disorder, severe pain, headaches, having a significant effect on the enjoyment of life, will demonstrate symptoms constituting a serious impairment. Ongoing and debilitating pain, even in the absence of objective findings by medical experts, will constitute serious impairment: see Chrappa v. Ohm, [1996] O.J. No. 1663 (S.C.J.); Skinner v. Goulet, [1999] O.J. No. 3209 (S.C.J.); May v. Casola, supra.
[emphasis added]
The legislation only requires an interference with a substantial ability, not a complete inability. A slightly lower threshold is used for activities of daily living, because s. 4.2(1) of the Regulation uses the word “most,” as opposed to the interference with employment or training. However, this interference should be more than just “frustrating and unpleasant” and should be an interference “beyond the tolerable to the serious.”
An injury has been considered serious by cases even if a plaintiff returns to work. The focus should be the effect on the person’s life. In this case, the plaintiff was no longer able to engage in recreational horseback riding, for example, in addition to having her career derailed.
Justice Howden referred to the Supreme Court of Canada decision in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54 (CanLII):
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.
[emphasis added]
Justice Howden highlighted the jury charge provided for assessment of medical examinations:
The opinion of a doctor may be based entirely on objective symptoms revealed through observation, examinations, tests or treatments, or the opinion may be based entirely upon subjective symptoms…in part upon objective symptoms and in part upon subjective symptoms.
He preferred the evidence of the chronic pain specialist, who had confirmed the plaintiff’s symptoms through objective observation that the defence physician failed to even attempt,
[21] …I do not accept [his] opinion nor do I sense that [he] has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof. Nevertheless they are very real to the patient.
Finally, Justice Howden considered Strangis v. Patafio, where the plaintiff relayed that he felt like “less of a man” due to his injuries. Justice Corbett did not find the plaintiff in that case met the threshold, as some injuries which cause permanent pain are not compensable,
33 The intent behind the threshold is clear: people are required to bear some non-trivial non-pecuniary losses arising from car collisions without compensation. The policy debate behind this provision is one which has been ongoing for many years. It is not for the court to read down the provision to apply it only to trivial functional impairments: that is not the language of the section, and clearly not the legislative intent.
Justice Howden would have assessed damages at a higher range than the $108,000 awarded, he acknowledged that this plaintiff met the threshold for compensation despite approaching the non-trivial non-pecuniary losses enunciated in Strangis.
Although this is a minor damages award, it does indicate that judges can and should go beyond the medical evidence to consider the qualifications of the experts specifically for the medical conditions experienced by a plaintiff. Chronic pain should be understood and assessed comprehensively, and where this is not done so, such evidence should be discounted accordingly.
RE: “The defence trauma surgeon, however, believed the plaintiff had recovered from her injuries with no objective mechanism for causing her pain. This sentiment (no objective determinants – no valid pain complaint) is not uncommon for many in the medical industry, who can often dismiss chronic pain as an artificial illness.”
This defence expert has a long history of painting injured claimants as malingerers and vilifying those in pain as fakers – despite repeated rebukes from triers of fact for having done so (examples below) – and despite a “long line” of case law refuting this insurer-friendly sentiment.
P.S. and T.T.C. (Markel) [+] Arbitration, 1994-05-04, Reg 672.
Final Decision, appeal rendered
Relevance 9. FSCO 2533.
The majority of doctors who saw the Applicant (and all of those who treated her) are convinced of the genuiness of her complaints. The exception to these largely uniform medical views are the opinions of Dr. Ford and Dr. Furlong, two specialists who examined the Applicant at the request of the Insurer. They both questioned the diagnosis, cause and the genuiness of the Applicant’s complaints. Dr. Michael Ford is an orthopaedic specialist. He examined the Applicant on October 28, 1992. His report is marked Exhibit 11. Dr. Ford’s report was not limited to the June 1991 accident, but to the effect of the three accidents, viewed globally. He testified at the hearing. Dr. Ford found no objective sign of organic injury or indication of musculoskeletal pathology, and felt that the Applicant’s complaints were “more diffuse and bizarre” than those of other chronic pain sufferers. He concluded that the Applicant was either “frankly malingering” or had “some bizarre psychosomatic, psychological, abnormality”, unrelated to any of the accidents. Dr. Ford based his assessment of possible malingering, in part, on the Applicant’s elaborate hairstyle, which he assumed she had done herself. He felt that her well-groomed physical appearance was not in keeping with her history of severe depression or functional limitations. This assumption turned out to be incorrect, as the Applicant testified that she was wearing a wig so that she did not have to groom her own hair. Dr. Ford indicated that his speciality was orthopaedic medicine and not psychiatry, and he deferred to the specialists in the diagnosis of any psychiatric disorder or psychological condition. I agree that the Applicant’s psychiatrists are more qualified to opine as to her mental or psychological health, and I place more weight on their opinions in this area.
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https://www5.fsco.gov.on.ca/ad
Alobic and Maplex General [+] Arbitration, 2000-02-09, Reg 776/93.
Final Decision
Relevance 10. FSCO 154.
Further, it submits that after examining Mr. Alobic on August 19, 1996 at its request, Dr. Michael Ford, orthopaedic surgeon, concluded that “(t)he nature of his condition (was) such that there (was) no need to impose any medical restrictions and any disability (was) secondary to his subjective report of pain for which there (were) no objective determinants.”
https://www5.fsco.gov.on.ca/ad
L.F. and State Farm – Appeal [+] Appeal, 2004-06-03, Reg 403/96.
Relevance 9. FSCO 1775.
I need not decide whether the Insurer’s non-compliance precluded its reliance on the report, because I am not persuaded the Arbitrator erred in finding Dr. Hershberg’s report unhelpful or in dismissing Dr. Ford’s report. I agree with the Arbitrator that the underlying basis for Dr. Ford’s opinion that Mr. F needed no “further formal medical rehabilitation” was “his view that there are no objective determinants for [Mr. F’s] subjective report of pain.” [See note 56 below.] The Arbitrator did not err in concluding that this “cannot be the end of the analysis.” [See note 57 below.]
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Note 56: Arbitration decision, p. 60.
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Note 57: A long line of FSCO decisions have affirmed the approach set out in Quattrocchi and State Farm Mutual Automobile Insurance Company , (OIC A-006854, September 29, 1997), the case cited by the Arbitrator.
https://www.canlii.org/en/on/onsc/doc/2014/2014onsc7179/2014onsc7179.html?searchUrlHash=AAAAAQATIiBEci4gTWljaGFlbCBGb3JkIgAAAAAB
Maxwell v. Luck, 2014 ONSC 7179 (CanLII)
3. Is the impairment serious?
[18] The court heard from the defence expert medical witness, Dr. Michael Ford, a spine and trauma surgeon at Sunnybrook dealing with serious fracture cases. He is still active as a surgeon and does a significant amount of medico-legal assessments. He does not practice in the area of chronic pain but he is experienced in assessing it as an orthopedic surgeon. He categorically dismisses chronic pain complaints unless, as he said, he can see or understand the mechanism causing the complaint. He dismissed Dr. Alpert’s opinion as supposition.
[19] Dr. Ford gave this plaintiff a very cursory examination. It was his last appointment of the day. He took Ms. Maxwell’s history in ten to fifteen minutes and the physical examination consisted of Dr. Ford watching her walk, do a neck extension and neck rotation. He never palpated her so he could not have found what Dr. Alpert says he found as his own objective findings during his examination. He found that:
• she had a decreased range of motion doing different movements -he saw these as significant and in the 40% to 70% range;
• she had muscle tightness and tenderness to the touch in the cervical area from C2 to C6 – he could feel the tautness and ropiness in the muscles and ligaments there;
• she had tenderness to palpation over the occipital nerves.
[20] These findings were dismissed by Dr. Ford. He saw this case as simple and uncomplicated, where there were no objective mechanisms causing pain, therefore there could be no valid complaint. He understood that she had stopped working because of her pregnancy and that her complaints from the car accident in 2007 had long since resolved.
[21] If he had asked a few questions about these answers, he probably would have learned that she could not do the strenuous dances that success at her job demanded, being very dependent on tips; she could no longer do the one recreational activity she loved, horse-riding, though she did try and was hit in the head once and fell off a second time. Dr. Ford simply dismissed Ms. Maxwell and wrote a report concluding without even a full examination of the patient, that any complaints she had now must come from her prior or other medical history without any analysis as to what exactly in her past would have caused them but the 2007 collision; all other previous traumas were reported and the treating doctor or chiropractor could see no reason to follow up other than to suggest some rest. I do not accept Dr. Ford’s opinion nor do I sense that Dr. Ford has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof. Nevertheless they are very real to the patient. In finding as I do, I am not to be taken to take away from Dr. Ford as an excellent spinal surgeon who works with serious trauma patients often derived from serious fractures, and displacement and other severe physical trauma. But I question his expertise in the area of chronic pain due to his offhand examination, his failure to test by palpation or to observe a variety of movements, and his very brief approach to her medical history which is by no means a simple one to understand, both orally and through the many records from the treating practitioners.
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https://www.canlii.org/en/on/onsc/#search/type=decision&sort=citationCount&all=%22%20Dr.%20Michael%20Ford%22
Baines v. Hehar, 2011 ONSC 1842 (CanLII) — 2011-03-23
Superior Court of Justice — Ontario
[72] Dr. Michael Ford is an orthopedic spine and trauma surgeon. Dr. Ford saw Ms. Baines for a defence medical examination on 26 April 2007. His findings on assessing range of motion were entirely normal. He described his assessments as involving simple tests but tests that are sensitive to finding of significant pathology. He found no muscle wasting and no significant pathology.
[73] Dr. Ford’s opinion was strictly limited to musculoskeletal issues. He said that at best, Ms. Baines might have had some soft tissue injuries resulting from this accident. He added that, invariably, healing follows the initial inflammatory process for such injuries and typically healing occurs within six weeks.
[74] Dr. Ford stated that there does not seem to be any evidence to require the imposition of restrictions on Ms. Baines’ normal activities of daily living, work and recreational included.
[75] Dr. Ford stated repeatedly that the pathophysiology of injury and repair requires that pain coming on much later cannot be causally connected to injury from an accident.
[76] Dr. Ford declined Ms. Baines’ invitation to agree that soft tissue injury from a motor vehicle accident like the one in question can come back, on and off, throughout a person’s life. Absent ligament damage or fractures, which do not apply to Ms. Baines, injuries do not, in his opinion, produce pain coming and going indefinitely.
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https://www.canlii.org/en/on/onsc/doc/2012/2012onsc6105/2012onsc6105.html?searchUrlHash=AAAAAQATIiBEci4gTWljaGFlbCBGb3JkIgAAAAAB
George v. Landles, 2012 ONSC 6105 (CanLII)
[12] At the request of the Defendant, the Plaintiff met with an orthopaedic surgeon, Dr. Michael Ford on February 21, 2012. Dr. Ford prepared a report dated February 21, 2012. Dr. Ford opined that the Plaintiff demonstrated all of the hallmarks of a chronic dysvascular limb. He opined that her left ankle and left foot pain are unrelated to the motor vehicle accident and are secondary to Peripheral Vascular Disease. He thought the disease was related to the Plaintiff’s long history of smoking.
[13] Significantly, Dr. Ford is the first physician to diagnose vascular disease. In a further note dated October 23, 2012, Dr. Ford advised that the Plaintiff’s condition would best be assessed by a vascular surgeon and that she should have Dopplar studies completed beforehand.
[24] The Plaintiff has confirmed, through counsel, that the most significant of her injuries, in terms of general damages, loss of income and future care costs, are the injuries to her lower left leg and foot. Causation remains a live issue. Dr. Ford has opined that the cause of the injuries is vascular disease unconnected to the accident in issue. He is the first physician to render such an opinion.
[25] The cause and extent of the Plaintiff’s leg injury is central to this case. Dr. Ford’s assessment is certainly plausible. But he is an orthopaedic surgeon. Despite comments by Plaintiff’s counsel that Dr. Ford is able to provide evidence about the vascular nature of the impairment, I am not convinced that he is. Ultimately it will be up to the trial judge to determine the scope of Dr. Ford’s expertise. Given Dr. Ford’s own admission that this issue is best assessed by a vascular surgeon, I am of the view that this issue is best assessed by a vascular surgeon.