Pain and Suffering from Car Accident? Claims Denied.

Case Summary:


McNamee v. Oickle, 2020 ONSC 1380 (CanLII), – John’s Case

McNamee v. Oickle, 2020 ONSC 2371 (CanLII), – Catharine’s Case

In Ontario, when you are hurt in a car accident, you can claim pain and suffering damages for the physical and emotional problems suffered, arising from the accident.

However, in order to actually receive pain and suffering damages, you must, at Trial, get past two hurdles:

  1. You must have at least one injury which is a “permanent serious impairment of an important physical, mental or psychological function”; and
  2. Your awarded will be reduced by a deductible which is currently approximately $39,500 (if your damages are less than $131,000).
    1. This means that if you are assessed $70,000 for pain and suffering damages, that the defendant only pays you $30,500 (because there is a $39,500 deductible that gets applied, first).

If on the 1st factor (i.e. permanent serious impairment, etc) the plaintiff fails to prove to the Court that their injury is sufficient, then zero pain and suffering damages are payable.

Issue in Dispute Here

      – a husband (John) and wife (Catharine) were hurt in a car accident and both of their actions went to Trial.  Both faced threshold motions (which is a motion to determine if you ‘pass’ or ‘meet’ the threshold in the 1st factor, above).

John’s Case:

Does the plaintiff, John McNamee, have serious/permanent enough injuries to be entitled to pain and suffering damages?

Sadly for Mr. McNamee, the answer from the Trial Judge was “no”.  So he was not entitled to any pain and suffering damages.

Some relevant facts:

  • This was a 2014 car accident resulted in soft tissue injuries;
  • John had chronic pain in his neck and back and severe headaches dating back to workplace injuries in 2004 and 2005, which appears symptomatic just prior to this accident.  He claims the same injuries in this action.
  • John continued to work post-accident, apparently full-time, in a government position.

[24]         The pre-accident employment file also contains a significant history of workplace accommodations and functional limitations – including functional abilities forms completed by his physicians prior to the motor vehicle accident. The employment file also outlines a long history of absenteeism in the years leading up to the motor vehicle collision.

[47]           ….But for his absence for unrelated knee surgeries, his workplace absences have declined since the subject motor vehicle accident and he has even received recognition for his workplace recommendations. Since 2007, his employer has, and continues, as recently as 2018, to accommodate him for medical reasons. He agreed that his employer is “flat-lining” the organization and that fewer promotions are available.

[48]           The evidence at trial is that Mr. McNamee continues to socialize with friends; he is able to complete lighter housekeeping tasks, care for himself, prepare food, shop, drive, take care of others in his family, spend time with his wife, children and friends, travel extensively,  participate in activities while travelling, attend sporting events as a spectator and do some light woodworking such as making gifts for his work friends. Mr. McNamee’s sons testified that they were doing household chores before the accident and that their father had already stopped coaching them before the accident.

Catharine’s Case:

Does the plaintiff, Catharine McNamee, have serious enough injuries to be entitled to pain and suffering damages?

In the threshold ruling, the Trial Judge extensively reviewed the evidence at Trial, including the following:

The Evidence at Trial

A.     Catherine McNamee’s pre-accident history

Alcohol Use Disorder

[18]           There was extensive evidence at trial regarding Catherine McNamee’s pre and post-accident alcohol consumption. In January 2012, Ms. McNamee attended an alcohol cessation program at the Royal Ottawa hospital (ROH). She attended this program because her husband was complaining about her alcohol use.

[19]           Ms. McNamee described her drinking pattern at that time in the following way. She would come home from work between 5:30 and 6:00 p.m. and start drinking while preparing dinner. She would continue drinking for the balance of the evening. She would sit in her lazy-boy chair and watch television and drink. She and Mr. McNamee sat in separate rooms because they did not like the same TV programs.

[20]           The ROH notes record a twenty-year history of alcohol use and that Ms. McNamee was by that time consuming 1.5 liters of alcohol per day during the week and 2 liters per day on weekends for a total of 82 standard drinks per week. Ms. McNamee described herself as a functioning alcoholic and admitted that she craves alcohol when she stops drinking. She suffers memory lapses while she drinks and that remains true to today. She did not complete the ROH program. She has never sought treatment for her alcohol use disorder until very recently.

[21]           Dr. Ken Suddaby, the expert psychiatrist called on her behalf, agreed that her pre and post-accident diagnosis for alcohol use disorder was in the severe range.  This was the opinion of Dr. Michael Ross, the psychiatric expert called on behalf of the Defendant.

                *****

[40]           I find the evidence of Ms. McNamee’s post-accident employment to be significant. Ms. McNamee returned to work within days of the accident and she functioned well at work, missing only a day here or there and sometimes leaving work early. Ms. McNamee had a high level of responsibility for a wide range of professional and personal duties in the dental practice of Dr. Espie. She managed all aspects of the dental practice including assisting Dr. Espie in her divorce case. Ms. McNamee testified that Dr. Espie started to change after her divorce in November of 2014 when Dr. Espie then became abusive.

[41]           Ms. McNamee did not take any extended time off work until the winter of 2014-2015 when she took a compassionate leave to spend time caring for her mother who had been diagnosed with cancer and who had limited time to live. Ms. McNamee was very close to her mother and that they were best friends. Dr. Charania’s clinical notes of January 19, 2015 and June 23, 2015 contain notations of additional stressors including a friend who is very sick, Ms. McNamee’s torn ACL, a sister who was living on the street, and her father with Parkinson’s disease.

[42]           Ms. McNamee eventually quit her job because of Dr. Espie’s conduct and she advised Service Canada that she had left the job as a result of this abuse and not as a result of a motor vehicle accident.

[43]           Ms. McNamee had subsequent employment with Dr. Bracanovich. That position also required high levels of responsibility. In April of 2016, there was an issue with a patient who had been very critical of her. Ms. McNamee felt that Dr. Bracanovich did not support her in that dispute. She stayed on for a few months and then she eventually left that job.

[44]           She then worked for another dentist. The prior office manager had not done a good job and the accounts receivables were out of control. Ms. McNamee put everything in order. The business was expanding. That dentist was under a lot of stress and tension was increasing. That employment was terminated on February 28, 2017 as the dentist could no longer afford her services. 

[45]           Ms. McNamee was back to work in December of 2017.  Once again, there were problems with patient records and patient files; a situation that she resolved. She helped prepare the office to go paperless. She encountered staff resistance. By November of 2018, the dental practice was growing but the dentistcould no longer afford to continue her employment.  She last worked on January 3, 2019.

[46]           In summary, Ms. McNamee worked in demanding jobs for almost five years after the accident. Every doctor that she had worked for had been very pleased with her work. None of the reasons for the termination of her employment were related to her accident-related injuries.

[47]           Ms. McNamee testified that she could not face another job; she claimed to be suffering from deeper depression. She was drinking more. She sufferedfrom anxiety.

[48]            Dr. Ricci, Dr. Suddaby and Dr. Kevin Smith, the experts called by the Plaintiff, concluded that Ms. McNamee had “excessive absences” from her employment. That was not the evidence at trial. Dr. Suddaby conceded that his notes did not support that conclusion.

The Trial Judge ruled against the Plaintiff on this motion, as follows:

Conclusion

[69]           In my opinion, Ms. McNamee’s claim fails on the issue of causation. I prefer, on balance, the expert opinion of Dr. Ross that Ms. McNamee’s injuries as a result of the accident were resolved by the Fall of 2014.  Dr. Ross did not seek to discredit Ms. McNamee and consistently referred to her a credible witness. His opinion is more closely aligned with the entirety of the evidence presented at trial.

[70]           Dr. Ross concluded that Ms. McNamee’s decline in her functioning was not related to the motor vehicle accident. Dr. Ross concluded that Ms. McNamee’s injuries were not of the kind led to the progression described by others. He said it was more probable than not that she would be where she is today even without a motor vehicle accident. In his view, the motor vehicle accidents did not provide a material contribution to her impairment.

[71]           For these reasons, I concluded that Catherine McNamee’s claim does not fall within the statutory exceptions in s. 267 (3) and (5) of the Insurance Act and the Defendant’s motion is granted.

Other Aspects of these Cases

[4]               On February 21, the jury returned its verdict wherein they awarded Mr. [John] McNamee $15,000 for general damages; $2,500 for past loss of housekeeping and home maintenance capacity; $0 for past medication and $3,100 for past massage and physiotherapy. They awarded Ms. [Catharine] McNamee $2,500 for her loss of care guidance and companionship of Mr. McNamee pursuant to s. 61(2)(e) of the FLA.

The Trial Judge had ruled on a preliminary motion by the plaintiff, Catharine, who sought to call as witnesses:

  • 4 psychologists
    • 2 psychiatrists
    • 2 occupational therapists
    • pain specialist
    • family Dr.
    • chiropractor
    • psycho-vocational assessment
    • vocational expert
    • actuary

the trial Judge ruled that the plaintiff, Catharine, could call:

  • one psychiatrist
  • one psychologist
  • one occupational therapist

In a decision mid-Trial, the Trial Judge determined whether enough evidence had been adduced to allow questions to be put to the jury on the issues of:

[1]               This is my ruling with respect to the questions to be put to the jury. For the most part, counsel have come to an agreement with respect to a substantial number of the questions. I was asked to rule on whether to allow questions be posed to jury with respect to Catherine McNamee’s claim for damages:

•         for future treatments costs for physiotherapy

•         and future costs of medication

[2]               I was also asked to rule that there was no reasonable evidence that would allow the following questions to be posed to the jury with regard to John McNamee’s claim for damages:

•         For future treatment costs for physiotherapy;

•         future costs of medication;

•         future treatment costs for massage therapy;

•         past income loss, loss of economic opportunity and or loss of competitive advantage;

•         and future income loss, loss of economic opportunity and or loss of competitive advantage.

Unfortunately for the plaintiff, the Trial Judge ruled that no questions could be put to the Jury for any of these issues.

For a historical review of the issue of threshold motions, see one of my prior blogs on this subject.

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