Posted: June 15, 2017
By: Steve Rastin

While the jury was deliberating at the conclusion of a 2017 trial, Nemchin v. Green, the defendant brought a threshold motion, seeking a declaration that the plaintiff had not suffered a permanent and serious impairment of an important physical, mental or psychological function as a result of the car accident and was therefore not entitled to non-pecuniary damages. The defendant’s argument centered on the issue of causation and the “but for” test for causation; specifically, the defendant asserted that the plaintiff’s PTSD and depression was not directly caused by the collision.

The defendant asserted that the plaintiff’s PTSD was, in fact, caused by other factors, including assaults she had previously been a victim of, other traumatic events that occurred in her teenage years, work-related stress, and a difficult intimate encounter with her fiancé. The defendant also argued that the plaintiff had previously been diagnosed with PTSD in the 1990’s and many of the symptoms she experienced after the collision were the same as her pre-existing PTSD symptoms.  

The defendent further argued, since PTSD is a condition with symptoms that tend to ‘wax and wane’, the re-emergence of the plaintiff’s symptoms after the collision could not necessarily be attributed to the accident. The defendant relied heavily on the opinion of an expert witness for the defence, Dr. Hershberg, who testified that the plaintiff’s PTSD was not necessarily a direct result of the collision. The plaintiff disagreed with this conclusion and stated that Dr. Hershberg's evidence lacked credibility; the plaintiff pointed to the evidence from three physicians (two psychiatrists and her family doctor), each of whom testified that her PTSD stemmed from the car accident.

Justice Corthorn agreed with the plaintiff and found that there were several reasons why the defence’s psychiatrist was not a credible witness.  The first reason was that, during cross-examination, Dr. Hershberg was questioned on the five factors he relied on to support his opinion regarding the plaintiff’s PTSD, but for each of these factors, he admitted that he either had incomplete information because he hadn’t fully delved into the issue; his understanding of the facts was inaccurate; and/or there was historical evidence indicating that the plaintiff was able to handle positions of responsibility prior to the accident.

Another basis for questioning Dr. Hershberg’s credibility was the fact that he exhibited an unwavering opinion that there were alternative causes that exacerbated the plaintiff’s PTSD, despite acknowledging that the accident was a sufficiently significant event to have exacerbated the condition.  The psychiatrist stated that other likely causes of the PTSD were the past assaults, the plaintiff’s dissatisfaction and uncertainty with her job, and her relationship with her fiancé. However, on cross-examination, Dr. Hershberg admitted that the plaintiff exhibited no ongoing symptoms of PTSD in the ten years prior to the accident and also never stated that she was dissatisfied by her job or stressed by her work contract.  The psychiatrist also admitted that he had no evidence on which to base his opinion that the plaintiff’s relationship with her fiancé contributed to her PTSD.

Justice Corthorn found that there were some discrepancies in Dr. Hershberg’s stated qualifications or curriculum vitae (CV), particularly his current job title, a fact which also reflected negatively on his credibility. In his CV, Dr. Hershberg identified his job status as Senior Psychiatrist, with 30 Years as Consultant to the Neuro-Rehabilitation, Musculo-Skeletal, Respiratory Rehabilitation and Long-Term Care Units at West Park Hospital. This description gave the impression that Dr. Hershberg was currently an active member of the professional staff at the hospital, an impression he confirmed when testifying. However, under cross-examination, it was uncovered that Dr. Hershberg was, in fact, not an active treating staff member at the hospital; 80-90 percent of his income in the previous five years came from conducting defence medical examinations, which he did not note in his CV.

By contrast, the judge found the evidence of the three doctors who testified on behalf of the plaintiff, to be far more credible. The first witness was the plaintiff’s family physician, Dr. Assemi, who initially diagnosed the plaintiff as suffering from acute stress, after the collision. Only after a sufficient amount of time had passed and the plaintiff’s symptoms persisted, did the doctor diagnose her with PTSD, at which point he referred her to a trauma therapist and a psychiatrist. Justice Corthorn judged Dr. Assemi to be a credible witness who was thorough in his assessment.

The judge also found the evidence of the plaintiff’s treating psychiatrist, Dr. Roy, to be credible; however, Justice Corthorn applied less weight to this evidence than to Dr. Assemi’s testimony.  Although Dr. Roy was an expert in PTSD, his work in the field dated back only to 2013 and the majority of his work had been with military veterans suffering from PTSD.  The judge found that Dr. Roy’s anecdotal examples of devastating battlefield events were in no way similar to the plaintiff’s experience, and while the judge found this witness to be genuine and credible, he did not give a lot of weight to his evidence in making his decision.

Justice Corthorn also reviewed the evidence of Dr. Evans and found her to be a credible witness. Dr. Evans is a psychiatrist who was hired by the plaintiff’s long-term disability (LTD) benefits insurer to assess whether she could potentially return to work, and based on Dr. Evans’ opinion, the insurer continued to pay LTD benefits to the plaintiff. The judge found Dr. Evans to be a particularly credible witness because she was objective and forthright in giving her opinion and, as a representative of the insurer, she had no reason to be biased or to advocate for the plaintiff.  

Based on the evidence from the plaintiff’s three expert witnesses, Justice Corthorn was satisfied that causation had been proven, and had it not been for the collision, the plaintiff would not have suffered the PTSD and depression symptoms with which she had been diagnosed.

On the matter of the threshold motion, Sections 267.5(3) and 267.5(5) of the Insurance Act requires the plaintiff to prove, on the balance of probabilities that she has sustained “a permanent serious impairment of an important physical, mental or psychological function”. The defendant argued that any impairment the plaintiff suffered due to the collision was neither permanent, serious nor continuous, and further, the plaintiff failed to participate in recommended treatment. 

The defendant stated that the impairment was not continuous because the plaintiff opened a yoga studio in 2011, which she continued to run until 2014.  The defendant also noted that, in a 2012 letter to the plaintiff's LTD insurer, Dr. Assemi had expressed the opinion that there were no medical barriers preventing her from returning to her job. Then, in February 2016, Dr. Roy expressed the opinion that the Plaintiff’s PTSD and major depression were in partial remission. Finally, the defendant brought attention to the fact that the plaintiff worked full-time as an assistant to her yoga instructor, for a few months in 2016.

In support of the argument that the plaintiff failed to participate in the recommended treatment, the defendant noted that the plaintiff delayed almost four and a half years before taking prescribed medication as a form of treatment.  Then, after experiencing gastrointestinal side-effects, she did not pursue methods of reducing these side-effects but rather, simply discontinued the treatment. The defendant also noted that following the collision, the plaintiff completed training as a life coach; continued to drive and travel extensively; attended and organized yoga events and retreats; and worked in a variety of different positions. The defendant argued that these activities indicate that any impairment the plaintiff may have experienced from the collision was neither permanent nor serious.

The plaintiff asserted that the defendant’s approach to the threshold issue was a “check-off-the-box” approach and she argued in favor of a more holistic three-part test approach. Relying on the decisions in Keam v. Caddey and Bos v. James, the plaintiff noted that the injured person and the effect of the injury on their way of life must be assessed as a whole and in the broadest sense. She also argued that although she continued to work, maintain a social life and carry out daily personal activities, the extent to which she did those things was substantially different from pre-accident to post-accident.

The plaintiff addressed each of the specific arguments made by the defendant. First, she pointed out that Dr. Evans expressed the opinion that she is totally disabled in terms of being unable to return to her job. Dr. Evans also stated that the Plaintiff is unable to engage in any position proportionate to her education, training and/or experience and is instead, more capable of working in an easier, part-time setting.

The plaintiff also submitted that her family doctor'diagnosis changed since September 2012 (in the report referenced by the defendant). Dr. Assemi’s opinion changed because he noted that the plaintiff’s condition did not progress or improve over time, as expected. By the time of the trial, Dr. Assemi’s opinion coincided with that of Dr. Evans. The plaintiff also noted that she did not run the yoga studio alone and was assisted by a number of volunteers. Further, although Dr. Roy expressed the opinion that there was some improvement in the plaintiff’s condition, he was cautious in his diagnosis, noting the chronic nature of the plaintiff’s symptoms and that the plaintiff had not reacted well to the medication.

Finally, the Plaintiff argued that her decision to reject the prescribed medication and instead choose cognitive therapy was seen as a reasonable choice by Dr. Assemi and Dr. Roy. More importantly, there was no evidence to suggest that if the plaintiff had taken her medication, her condition would have improved.

Justice Corthorn began his analysis by noting that the work carried out by the plaintiff after the collision in no way equaled her pre-collision occupation.  The yoga studio allowed the plaintiff flexibility in terms of the number of hours worked and the nature of her work; the plaintiff was not able to continue in the role at the yoga studio. Based on the evidence of experts and participating witnesses, the plaintiff is not expected to be able to return to gainful employment, except for part-time work with flexibility in the hours worked.

When deciding on a threshold motion, a judge may consider the jury’s verdict. In the current action, the jury awarded the plaintiff $600,000 in damages for loss of income, which represents a significant loss of income, considering the plaintiff was 48 at the time of the trial and income earning is normally calculated to the age of 65.  The jury also awarded the plaintiff $125,000 for general/non-pecuniary damages (for loss of enjoyment in life), $13,500 for immediate therapy and $30,000 for cost of future treatments.  In making his decision, the judge also gave consideration to the fact that, in addition to the impact on her ability to work, the plaintiff’s social activities were impaired due to her PTSD and major depression symptoms, as her social circle and activities were significantly narrowed since the collision.

Referencing Meyer v. Bright, the judge acknowledged that there is a subjective element to a threshold analysis and that what constitutes as a ‘serious’ impairment will vary among plaintiffs -- the key element is the detrimental effect the impairment has on the life of a particular plaintiff.  After considering all the evidence, Justice Corthorn ruled that the plaintiff had suffered ‘important’ and ‘serious’ impairments of physical, mental or psychological function, as per section 267.5 of the Insurance Act.

On the question of whether the plaintiff’s impairment is permanent, the judge stressed that in this context,  ‘permanent’ does not necessarily mean until death. Justice Corthorn referenced Jugmohan v. Royle, where the court found, “permanent impairment means a weakened condition lasting into the indefinite future without any end or limit”. On this basis, Justice Corthorn noted that the plaintiff’s symptoms and condition had already persisted for more than six years, despite her altered lifestyle. Further, the consensus opinion for the physicians who testified on behalf of the plaintiff was that she needed to continue therapy for an indefinite period; without treatment, there was a risk that her condition would deteriorate and her PTSD and depression symptoms will likely persist; and even with treatment, she was not expected to be able to work in gainful employment in the future.  In consideration of all these facts, Justice Corthorn concluded that the plaintiff’s impairment was permanent.  Accordingly, the defendant’s threshold motion was dismissed.

The effects of a personal injury are not always physical or easily visible. Being the victim of an accident can sometimes lead to significant mental and emotional trauma that lasts for many years, and victims have a right to be compensated for the psychological injuries that result from an accident, just as for their physical injuries.

At Rastin & Associates, we have witnessed first-hand the emotional and psychological toll for car accident victims, and have helped many injured persons successfully claim damages for PTSD and other debilitating psychological injuries. If you or someone you love was injured and you wish to claim damages for physical or psychological injuries, call Rastin today for frank assessment of your case.

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


 
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Posted under Car Accidents, Personal Injury