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The Case of the Bad Case

The plaintiff, Michael Smith, in the case of Michael Smith vs Matthew DeClute, Daimler Chrysler Financial Services Canada and the Personal Insurance Company of Canada failed to pass the Bill 198 threshold.  In fact, the entire plaintiff’s case did not seem to go so well at all – and in the end was dismissed. It was a case, in my opinion, that should have never gone to trial. There were probably offers exchanged at some point – and there is no question in my mind that the plaintiff should have settled his case.

Michael was involved in a collision in July of 2006 and started a lawsuit for compensation. His trial took place before a jury in April of 2012. As is normal with car accident cases, at the close of the evidence, the lawyer for the Defendant brought a threshold motion to ask the Court whether the plaintiff sustained a “permanent, serious impairment of an important physical, mental, or psychological function”.

For those of you that do not know – in order to be successful in establishing an entitlement to an award for general damages under  the insurance act a Plaintiff must demonstrate that he has sustained injuries that have resulted in a permanent, serious disfigurement or a permanent, serious impairment of an important physical, mental or psychological function.  Click here for more information.

 So what happened in this case? Here was a bit about Michael:

  • he was 25 years old
  • he lived at home with his parents
  • he worked as a cook
  • he had been involved in a number of fights as a result of which he sought medical treatment
  • He did not have back or neck problems prior to the accident 
  • he did not experience emotional problems
  • he was a regular user of marijuana and alcohol
  • he was very active in sports prior to the accident
  • he loved camping
  • he helped his parents with chores around the house such as yard work, shoveling and cleaning the house
  • he was unable to return to work as a cook until early 2009 because of back pain
  • he since July 2011 the he had been working as a cook at Oliver and Bonacini on a full time basis and his evidence at trial was that he planned to continue at this job.
  • he married in October of 2010
  • his wife testified that he was unable to do the activities that he used to engage

Michael’s medical story

Post accident he went to Sunnybrook Hospital where he was assessed and released. He had a broken rib and strains to his neck and back. He went to his family doctor 12 days later. Physiotherapy was recommended and also that he remain off work for six to eight weeks.  He was given a strong pain killer.

Later that same year his neck pain and rib pain settled down but his low back pain was undiminished and on a constant basis with pain running into his right leg at times.  Eventually, he became depressed and was prescribed anti-depressants by his family doctor.

In March 2007, the Plaintiff had an MRI which was unremarkable.

He was referred to a physiatrist who diagnosed a chronic pain syndrome and recommended treatment and stop the marijuana. Unfortunately Michael did not comply with his medical recommendations and he did not return for treatment.

Michael’s lawyer sent him for an independent psychological medical legal assessment in December 2010.

There was a problem with this. Dr. Keeling was qualified as an expert by the Court and made a diagnosis of chronic adjustment disorder and chronic pain disorder which he attributed to the motor vehicle accident – but the  Judge attached very little weight to this opinion. Why?

  • Dr. Keeling never met the Plaintiff and had limited documentation when he formed his opinion – there was no ongoing psychological clinical notes and records to review since Michael did not attend for psychological treatments.
  • A Master’s student, and not Dr. Keeling met with Mr. Smith and administered the tests.
  • Dr. Keeling’s involvement was limited to a telephone discussion with Mr. Kadiss [the student] before coming to his diagnosis.
  • Dr. Keeling was unaware of the Plaintiff’s use of drugs and under cross examination and he agreed that substance abuse mood disorder can have many of the same features as a pain disorder.

Michael did have another MRI done of his lower back in 2010 that showed a disc protrusion at T12-L1.

His family doctor sent him to see a neurologist and a neurosurgeon who both felt that from a medical perspective, there was nothing to account for the pain complaints that Michael was making. One of the two noted that the bulge was not in the location that would produce all of the pain in the areas that Michael was experiencing.

Michael’s lawyer then sent him to see an orthopedic surgeon for a medical legal assessment. He noted that Michael had sacroiliitis and radiculopathy. That surgeon noted specifically that:

“Mr. Smith has been left with ongoing severe chronic continuous right gluteal pain and intermittent pain radiating down the lateral aspect of his right thigh. Clinical assessment today is strongly suggestive of a severe right sacroiliitis and a right lumbar radiculopathy with restricted straight leg raising on the right and right lower extremity weakness…..He is, in my opinion, suffering severe impairments due to both his right sacroiliitis and his right lumbar radiculopathy. There impairments both constitute serious and permanent impairments of important physical functions. These impact severely on his pre-accident activities of daily living including work, housekeeping, home maintenance and recreational activities.”

 An orthopedic defence medical expert was commissioned by the lawyer for the defendant. That expert found nothing to explain Michael’s pain.

A psychiatrist also retained by the defence testified that Michael did not have disabling depression, and his biggest problem was his drug use which pre-dated the motor vehicle accident.

The Court’s Decision

  • The Court found that there was obvious wide disparity in medical opinions.
  • The Judge noted that The Plaintiff’s drug use, both before and after the motor vehicle accident, was of importance in this case;
  • Credibility was also a serious issue;
  • There was evidence that the Plaintiff was not compliant with the recommendations of his treatment providers;
  • His reasons for the cessation of certain jobs were contradicted by the evidence of the employers ;
  • Surveillance showed him walking from the Eaton Centre for three and a half kilometers, which took more than an hour – and he did not limp; it undermined his testimony
  • Nothing on his MRI’s supported the diagnosis given by the plaintiff’s experts
  • He was far from a reliable historian and did not make an impressive witness on his own behalf.
  • There were inconsistencies with his evidence
  • He was hostile and argumentative during cross examination
  • His doctors said he was better
  • Despite his complaints of pain, he underwent no treatment in the last four years
  • His evidence with respect to his employment was inconsistent
  • He was not candid with doctors and did not comply with their recommendations
  • He gave inaccurate information to doctors – a lot of which had to do with his use of alcohol and marijuana

Michael’s wife and parents testified that he could not do the activities he used to engage in before the accident, but the Judge unfortunately did not find that this was the reality or that it was related to injuries from the collision.

The Judge found that that was nothing of an orthopaedic nature that accounted for the Michael’s described pain; nor was there anything of a psychiatric diagnosis that would assist Michael in establishing that he had suffered a permanent impairment of a psychological function.  There was a real issue about the etiology of whatever depression-like symptoms Mr. Smith exhibited, in light of his excessive drug use and alcohol consumption.

 Michael did not sustain a “permanent, serious impairment of an important physical, mental, or psychological function” and unfortunately his action was dismissed. 


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