The Ontario Superior Court in Solanki v. Reilly[1], 2021 ONSC 6694 recently considered whether two Plaintiffs sustained permanent and serious impairments of important physical, mental or psychological functions caused by a motor vehicle accident in accordance with the Insurance Act.
Facts
On December 25, 2012, a family of six went on a holiday excursion. Unfortunately, during their holiday celebration, a motor vehicle collision occurred in which the two Plaintiffs – a grandmother and her adult son – sustained serious injuries.
The accident occurred when the Plaintiffs’ vehicle was struck on the front driver side by the Defendant vehicle. It was a low speed collision with minimal damage to both vehicles. At the time of the accident, the Plaintiffs’ vehicle was driveable and neither Plaintiff sought immediate medical attention. The next morning, both Plaintiffs suffered from worsening pain symptoms and sought medical assistance.[2]
Issue
Whether each Plaintiff sustained a permanent and serious impairment of an important physical, mental or psychological function as a result of the accident.
Analysis
a) The Plaintiff Adult Son
The Court concluded that the Plaintiff adult son (“Plaintiff son”) sustained permanent serious impairments of important physical, mental or psychological function as a result of the accident. [3]
The totality of the medical evidence, as well as testimony from lay witnesses, indicated that the Plaintiff son made persistent efforts to return to work. For example, he attempted to mitigate his losses by twice changing positions in his company and received assistance from his co-workers with heavier tasks. The Court also noted that the Plaintiff’s chronic pain and depressive symptoms caused him to significantly withdraw from his family life and hobbies.[4]
The Court acknowledged questions raised by the Defendant as to the evolution of the Plaintiff son’s back injury due to medical evidence of pre-existing back pain. However, the Court noted that the medical evidence stated that his back pain was triggered by the Plaintiff son’s gun belt and much of that pain decreased after he was provided with a more flexible Velcro-based gun belt.[5]
Further, the Court found that the Defendant’s theory suggesting that the Plaintiff must have recovered because he returned to work three months after the accident and worked for two years uninterrupted, omitted the factual chronology of the Plaintiff son’s efforts and struggles.[6] After the accident, the Plaintiff son remained off work for three months, but testified he was forced to return prematurely because he was the sole provider for his extended family. In an effort to continue working, he successfully applied for a different position within his company as a driver with the hope that his new position would help lessen his pain symptoms. However, due to continued pain symptoms he was unable to continue as a driver and applied for a demotion to his previous position as ATM tech because he trusted that his co-workers would assist him with carrying out the heavier aspects of that job. In addition, medical evidence demonstrated that the Plaintiff son made consistent efforts to improve with continuous rehabilitation and treatment after the accident. During this time, for example, he attended physiotherapy and massage therapy with little benefit. By 2018, the Plaintiff son’s condition deteriorated to the point where his co-workers and union representative suggested that he stop working and go on disability.[7]
As such, the Court found that the Plaintiff son experienced a permanent impairment of an ‘important’ function. His back pain, sleep and mood dysfunction interfered with his ability to perform the essential tasks of his employment and caused him to withdraw from family and avocational activities.[8] Evidently, his diagnosed chronic pain syndrome and related impairments disrupted his career path as a security technician. These impairments qualified as ‘serious.’[9]
b) The Plaintiff Grandmother
The Court concluded that the Plaintiff grandmother also sustained permanent serious impairments of important physical, mental or psychological function as a result of the accident.[10]
The Court acknowledged the Defendant’s concerns over the fact that the Plaintiff grandmother had several known health issues prior to the accident, which included shingles, diabetes, hypothyroidism, hypertension and arthritis affecting her knees. She also had documented findings of right frozen shoulder and degenerative changes that required arthroscopic right shoulder surgery. About one month before the subject accident, her family physician noted that the Plaintiff reported a painful left shoulder for the previous six weeks. [11]
Following the accident, the Plaintiff grandmother complained right-sided chest pain and back pain. She suffered a fracture of her right rib. Shortly after her family physician noted she had continued pain and reduced pain in her left shoulder. Two years after the accident, she underwent arthroscopic surgery on her left shoulder. Due to a combination of cartilage damage in the Plaintiff grandmother’s left shoulder, as well as pre-existing arthritic and degenerative changes on both shoulders, she testified that she was unable to carry on her housekeeping tasks or personal care because of pain and limitation from the accident.[12]
The Court relied on medical evidence from two orthopedic surgeons who opined that the Plaintiff grandmother’s pre-existing degenerative changes and arthritis in her left shoulder rapidly deteriorated and were rendered more symptomatic as a result of the accident.[13]
Ultimately, the Court found that the Plaintiff grandmother sustained a permanent serious impairment of an important physical function in her left shoulder, which substantially interfered with her daily household activities and her self-care. Therefore, her impairment qualified as ‘serious.’[14]
Conclusion
In total, the Plaintiffs were awarded over $880,000 in damages.
The decision in Solanki v. Reilly reveals that despite pre-existing physical impairments, a finding of a permanent serious impairment of an important physical, mental or psychological function may be established if the totality of the evidence verifies that the corresponding injuries, impairments and functional limitations in a person’s employment and/or activities of daily living were caused or exacerbated by the subject motor vehicle accident.
[1] Solanki v Reilly, 2021 ONSC 6694.
[2] Ibid at para 1-5.
[3] Ibid at para 102.
[4] Ibid at para 7.
[5] Ibid at para 26-28.
[6] Ibid at para 90-91.
[7] Ibid at para 91.
[8] Ibid at para 95-97.
[9] Ibid at para 100-101.
[10] Ibid at para 196.
[11] Ibid at para 152.
[12] Ibid at para 153-156.
[13] Ibid at para 172-181.
[14] Ibid at para 193-203.
