Judge rejects Insurer's Hired-Gun Expert and agrees that Plaintiff's Knee Injury meets Threshold for Damages

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The 2017 civil action," Shaw v. Mkheyan," arose when the injured plaintiff brought a claim for damages against the Defendants, as a result of a 2009 motor vehicle collision between the parties. At the conclusion of the trial, the jury awarded the Plaintiff general (non-pecuniary) damages, as well as damages for future health care costs and future housekeeping expenses.

Under the threshold requirement pursuant to the" Insurance Act, in order for an individual to receive damages for a non-pecuniary loss and/or health care costs, the Plaintiff " must establish that they have suffered a "permanent serious impairment of an important, physical, mental or psychological function" and also, that their injury was the direct or indirect result of the accident.

Following the jury's decision, the Defendants brought a threshold motion, seeking a declaration that the Plaintiff's claims for non-pecuniary damages and future care costs should be barred on the basis that the Plaintiff's injuries did not fall within the statutory threshold requirements. Although the Defendants accepted liability for the car accident, they argued that the Plaintiff's injuries were not, in fact, the result of the accident" but rather, were due to pre-existing osteoarthritis in the Plaintiff's left knee and back. The Plaintiff disagreed and asserted that the accident caused his (previously asymptomatic) osteoarthritis to become symptomatic.

The Defendants acknowledged that if the accident was the cause of the Plaintiff's left knee injury, then his injury would meet the permanent and serious impairment threshold. During the trial, it was" uncontested that the Plaintiff had required two knee surgeries since the accident, walked with a limp and could no longer perform the heavier household chores he was previously able to do. However, the Defendants" contended that the accident was not the cause, directly or indirectly, of the knee injury, and further argued that the Plaintiff did not meet the onus to establish causation on a balance of probabilities. The Defendants also relied on the evidence of their expert witness, who testified that the Plaintiff's knee injury was the result of his pre-existing osteoarthritis. The Plaintiff challenged the Defendants' arguments with his own expert witness testimony that submitted that the knee injury was the result of the accident. Justice Glustein was therefore tasked with deciding whether or not the Plaintiff had successfully established that his left knee injury was a result of the motor vehicle accident. The jury, which had awarded the Plaintiff general damages, had already been convinced of this; nevertheless, a judge is not bound by the jury's decision in a threshold motion. In this case, however, Justice Glustein concurred with the jury. Justice Glustein began his analysis by explaining why he accepted the evidence of the Plaintiff's expert witness, rather than that of the Defendants'. Both expert witnesses acknowledged the Plaintiff's pre-existing osteoarthritis but disagreed about the role it played in the latter's injury post-accident. Dr. Cameron, who testified on behalf of the defence, was of the opinion that the Plaintiff's left knee injury was not caused by the accident but rather his existing osteoarthritis, which the doctor testified was "relentlessly progressive". Dr. Backstein, who testified on behalf of the Plaintiff, disagreed with Dr. Cameron's opinion, noting that many people with osteoarthritis have no pain, much less end up requiring total knee replacement surgery, as did the Plaintiff. Justice Glustein found Dr. Cameron's opinion unconvincing as he provided no facts to support his conclusion, while Dr. Backstein gave detailed evidence based on his experience as an orthopedic surgeon. In his conclusion, Dr. Backstein stressed that osteoarthritis was not "relentlessly progressive" as Dr. Cameron claimed and the condition can be asymptomatic until an event happens that converts it to symptomatic. In Dr. Backstein's opinion, the car accident was the causal event - this" was another point of dispute between the two doctors, particularly with regards to the degree of force necessary to cause arthritic pain.

Dr. " Cameron argued that for the accident to have caused the Plaintiff's injury, he would have needed to smash his knee so severely that he would have been in severe pain and would have believed his knee to be broken. Evidence from the accident made it clear that this was not the case. Dr. Backstein disagreed with Dr. Cameron's opinion and argued that a "very minor force" could convert asymptomatic arthritis to symptomatic arthritis. As with the previous issue, Justice Glustein accepted Dr. Backstein's conclusion rather than Dr. Cameron's because once again, the Defendants' medical expert did not provide detailed evidence to support his conclusion, when compared to Dr. Backstein's substantiating evidence.

The judge also noted that Dr. Backstein's conclusion was consistent with the evidence of the Plaintiff's family doctor, Dr. Samji. Dr. Samji confirmed that in the three years prior to the accident, the Plaintiff complained of left knee pain only once and was treated with simple anti-inflammatory medication. The Plaintiff did not complain of knee pain again until after the accident. The Defendants submitted four key factors in their threshold motion, to support their belief that the Plaintiff's knee injury was not the cause of the accident but rather, due to his pre-existing osteoarthritis, as follows.
  1. There was no record of the Plaintiff having knee pain in the emergency department records immediately after the accident.

  2. After the accident and while undergoing physiotherapy treatment between February and May 2009, the Plaintiff did not mention left knee pain or seek treatment for it.

  1. For the P.A.T.H. assessment to determine whether the Plaintiff could return to work, he told the assessors that he had only slight back pain and felt much better. He was also able to do well on the physical abilities test.

  2. After his initial report of pain in the months after the accident, the Plaintiff did not mention any pain to his family physician for another year and then not again until the following year.

Justice Glustein addressed each of the Defendants'" submissions. Regarding the fact that the Plaintiff did not report any knee pain to the emergency department in the aftermath of the accident, the judge accepted the Plaintiff's reasoning for why that was so. The Plaintiff testified that he did not mention the knee pain because at the time he only felt a dull pain in his knee, which he assumed would go away in a few hours. More importantly, he was far more concerned with the significant pain he felt in his neck and back at that time, which he did report to the emergency doctor. Justice Glustein accepted that with everything that was going on at the time, including the Plaintiff's concern for his wife who had also been involved in the accident, it was reasonable that the Plaintiff did not realize that the pain his knee was significant enough to mention.

Regarding the Defendants' argument that the Plaintiff neither mentioned," nor sought treatment for, his left knee during physiotherapy sessions, the judge accepted the Plaintiff's explanation that the painkillers and anti-inflammatory medication he'd been prescribed for his neck and back pain in the aftermath of the accident, were effective in dulling any pain arising from his left knee. However, the Plaintiff testified that even after taking the pain medication, he noticed that the pain in his left knee was gradually getting worse. The judge noted that this was corroborated by the Plaintiff's visit to his family doctor, three weeks after he started physiotherapy, when he reported pain in his knee.

On the P.A.T.H. issue, Justice Glustein once again accepted the Plaintiff's explanation and disagreed with the Defendants'" submission that it proved the latter did not have a left knee injury. The Plaintiff admitted that he lied to the assessors about the extent of his pain as he knew if he'd been honest, he would not have been allowed to return to work. The Plaintiff stated he needed to work as his bills were piling up and his wife was also not working as a result of the accident. The Plaintiff further admitted that he was able to pass the physical test with the help of heavy medication he took to dull the pain.

Justice Glustein noted that the Plaintiff's explanation aligned with other evidence, such as the medical report from Dr. Samji in which the doctor assessed the Plaintiff's range of motion in his lower back at 55-60% and found that his the left knee pain was still present, two and a half months after the accident. Also, soon after his return to work, the Plaintiff chose to work a split shift, where he took a three to four hour break between his early and late shifts as opposed to the hour and hour and a half breaks he had previously taken. In essence, it meant he was now working 11 to 12-hour shifts instead of his previous 9-hour shifts. The Plaintiff did this to help alleviate the lower back and left knee pain he was still experiencing. The judge accepted that there would be no other reason for the Plaintiff to change his shift in that manner and accepted his reason for misleading the P.A.T.H. assessment.

Regarding their final submission, the Defendants argued that since the Plaintiff only visited his family doctor on two other occasions after his initial visits, each a year apart, this meant that the Plaintiff did not have left knee pain due to the accident. Justice Glustein rejected this submission, noting that the evidence showed that the Plaintiff continued to have knee pain after 2009, as he complained of it to Dr. Samji on all of his subsequent visits. There were also multiple visits in 2010 and 2011 and it was this continued pain that eventually caused Dr. Samji to refer the Plaintiff to an orthopedic specialist, which ultimately resulted in two knee surgeries. Justice Glustein concluded that there was no question, based on the evidence, that the Plaintiff's left knee injury was permanent, serious and affected important functions in his life. On this basis, the judge found that the accident did cause the Plaintiff's left knee injury by converting his asymptomatic osteoarthritis to symptomatic osteoarthritis. Justice Glustein ruled to dismiss the Defendants' threshold motion.

Being the victim of a motor vehicle accident due to another person's negligence can have devastating effects on your life long after the accident. If you were injured and would like to file a claim for owed damages, call a knowledgeable car accident lawyer at Rastin today. At Rastin & Associates, we have years of experience successfully helping injured persons receive the compensation they deserve, during what is often a very difficult and challenging time.

You can call us at " 844-RASTIN1 or " email Rastinlaw.com


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