Fridays with Rogers Partners

October 09, 2022

At our weekly Friday meeting, Taya Rosenberg discussed the Ontario Superior Court’s threshold motion decision in Kolapully v. TTC et al., 2022 ONSC 5473.

Facts

On March 6, 2012, Ms. Kolapully, the plaintiff, was crossing the road at a corner when she was struck by a turning TTC bus. Ms. Kolapully was taken to the hospital where she underwent emergency surgery to repair an open left ankle fracture. She also suffered a mild concussion, a laceration over her left eyebrow and a fracture of the left tibial spine and left and right fibular heads. At trial, the jury found that Ms. Kolapully was 25% at fault for this accident, but awarded her $175,000 in general damages.

Issue

The issue before the court was whether Ms. Kolapully had suffered a serious and permanent impairment of an important physical, mental or psychological function, as per the test in section 267.5(5) of the Insurance Act.[1]  This statutory provision states that only plaintiffs who demonstrate that they have suffered such an impairment are entitled to recover general damages. This test places the onus of proof onto the plaintiff, on a balance of probabilities.

The Plaintiff submitted that her injuries led to post-traumatic osteoarthritis, chronic pain, and depression, which were permanent and serious impairments that substantially interfered with her activities of daily living. It was the position of the Defendants that Ms. Kolapully did not meet the statutory threshold and was therefore not entitled to general damages.

Analysis

In considering the section 267.5(5) threshold test, the Court of Appeal in Meyer v. Bright, 1993 CanLII 3389 (ONCA), determined that the appropriate approach to cases considering this statutory threshold is to answer three questions:

  1. Has the plaintiff sustained permanent impairment of a physical function?
  2. If yes, is that function an important one?
  3. If yes, is permanent impairment of the important function serious?[2]

The Impairment was Permanent

In the case of Ms. Kolopully, who was not working before the accident, pursuant to section 4.2(1) of Regulation 461/96 under the Insurance Act (“the Regulation”), the impairment must substantially interfere with most of the usual activities of daily living, considering the person’s age.[3]

According to sections 4.2(3) of the Regulation, for an impairment to be “permanent”, the impairment must:

  1. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
  2. continue to meet the criteria in paragraph 1, (i.e. substantially interfere with usual activities of daily living), and
  3. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

Justice Sugunasiri noted that “permanent” does not mean forever, but instead only requires “a weakened condition that is expected to last into the indefinite future that is medically corroborated.”[4]

On this point, the Plaintiff called Dr. Getahun to provide expert evidence confirming the permanence of her orthopaedic impairments. The Defendants called Dr. Bogoch to provide expert evidence disputing Dr. Getahun’s conclusions.

While Dr. Bogoch opined that Ms. Kolapully’s orthopaedic injuries had resolved, Dr. Getahun concluded that she had permanent impairments. More specifically, Dr. Getahun concluded that Ms. Kolapully sustained a serious injury to her left ankle with continued restricted range of motion amounting to an impairment and altered gait. Further, an x-ray identified objective irregularities in the ankle joint and knee that were consistent with post-traumatic osteo-arthritis. 

Justice Sugunasiri preferred Dr. Getahun’s evidence. Dr. Getahun was able to show that Ms. Kolapully’s left ankle injuries fit the definition of permanence through largely objective evidence:

  • Dr. Getahun conducted a thorough review of Ms. Kolapully’s medical records and his own physical examination.
  • Dr. Getahun was able to provide comparative values in the range of motion as between Ms. Kolapully’s right and left ankles after conducting active range of motion testing. In contrast, Dr. Bogoch concluded that Ms. Kolapully had a “normal” range of motion but did not specify what “normal” meant.
  • He also noted that he had examined Ms. Kolapully three times over nine years, and after having reviewed the findings of the other orthopaedic specialists, her restricted range of motion in her left ankle, evidence of arthritis, and responding altered gait had not materially changed over the years.
  • Dr. Getahun’s conclusions were not largely based on Ms. Kolapully’s self-reported complaints, (which the defence argued were overstated), but rather on his own examination and x-rays.

The x-rays were given great weight. Dr. Getahun was able to explain that the x-rays showed irregularity in the tibial surface at the fracture site compared to the same site in the uninjured right ankle and also the irregularity in the tibial plateau of the left knee, which he testified was displaced by about 3 mm. While Drs. Paitich and Bogoch had diagnosed Ms. Kolapully with an undisplaced or minimally displaced fracture of the tibial eminence of the left knee, Dr. Getahun explained that while 3 mm is not surgically significant, it is consistent with the development of post-traumatic osteoarthritis.

The Impairment was of an Important Function

For the function that is impaired to be important, the function must be important to the usual activities of daily living, considering the person’s age.[5] Citing Meyer again, Justice Sugunasiri statedthat“the determination of whether the impaired physical function is important is a subjective one and must consider Ms. Kolapully’s way of life in the broadest sense.”[6]

In Her Honour’s view, Ms. Kolapully suffered a permanent impairment of an important physical function, which included her ability to walk and stand without pain after fifteen to twenty minutes. Justice Sugunasiri recognized that Ms. Kolopully’s ability to walk and stand without pain was important to her daily living, which included cooking, cleaning, shopping, socializing, and taking care of her grandchild.

Justice Sugunasiri accepted that these activities were fundamental to Ms. Kolapully’s life, and although Ms. Kolapully admitted that she had “good days and bad days”, Her Honour was persuaded that the plaintiff could no longer do these activities without significant difficulty.

The Impairment was Serious

Justice Sugunasiri concluded on a balance of probabilities that Ms. Kolapully’s impairment was serious, and accepted her evidence that she was substantially impeded in every aspect of her activities of daily living because of her physical limitations.

Unlike “impairment” or “permanent”, “serious” does not have a specific legal definition. Justice Sugunasiri looked at the impact that Ms. Kolopully’s impairments have had on her quality of life and her mental state.

Dr. Getahun diagnosed Ms. Kolapully with a chronic pain syndrome and Dr. Gerber, an independent psychiatric expert, identified this as “Persistent Somatic Symptom Disorder with Predominant Pain and Major Depressive Disorder.”

These syndromes and disorders, which stemmed from Ms. Kolapully’s physical impairments, led to Ms. Kolapully attempting suicide in June 2015. Ms. Kolapully testified that it was her sense of hopelessness from the ongoing physical impairments and feeling like a burden on her family that led to the attempt.

The defence neuropsychologist, Dr. Dowhaniuk, stated that he found no evidence of malingering and suggested that at least some of Ms. Kolapully’s experience of pain was informed by her anxiety and likely somatic disorder.

Dr. Gerber concluded that Ms. Kolapully’s psychological impairments were caused by the accident and her ongoing physical impairments.

Result

Justice Sugunasiri dismissed the Defendants’ motion, and concluded that Ms. Kolapully had sustained a permanent and serious impairment of an important physical function, and that Ms. Kolapully was entitled to the non-pecuniary damages awarded by the jury.

Takeaway

This case emphasized that “permanence” does not mean “forever,” but only a weakened condition, expected to last into the indefinite future, as long as this condition is medically corroborated. Additionally, the Court highlighted the fact that an “important” impairment is a subjective determination and will be in relation to the specific plaintiff.

[1] Insurance Act, R.S.O. 1990, c I.8.

[2] Meyer v. Bright, 1993 CanLII 3389 (ONCA), para. 16.

[3] O. Reg. 461/96, under  Insurance Act, R.S.O. 1990, c. I.8.

[4] Kolapully v. TTC et al., 2022 ONSC5473 (CanLII), para. 7.

[5] O. Reg 461/96, 4.2(1)(2).

[6] Kolapully, para. 12, citing Meyer, para. 25.