As patients under a doctor’s care, when they recommend treatment to help manage our condition or assist in our recovery, we usually make an effort to comply as best as we can.
When an insurer is responsible for paying accident benefits or other damages, they will likely monitor a claimant’s actions to gauge whether they are taking reasonable steps to get better and minimize their losses. Noting that the patient is following (or has followed) their doctor’s orders is often an essential factor in the insurer’s decision to continue or end ongoing payments, or in how they will calculate any settlement offer.
But what happens if a patient does not fully comply with a doctor’s recommended treatment program? And, what if the failure to comply is not simply a matter of choice on the part of the patient? What if there are barriers to accessing these treatments?
Treatment Compliance and Invisible Disabilities on Personal Injury Claims
Howie, Sacks, & Henry LLP recently represented a client at trial who did not completely follow a doctor’s treatment plan for what we, and ultimately the presiding judge, believed were justifiable reasons. While Moustakis v. Agbuya, 2023 ONSC 6012 (CanLII) is significant for a number of reasons, the judge’s decision on what constitutes “reasonably participating in treatment” could have important implications for future threshold cases. If the defence argues that failure to adhere to a proposed treatment plan should limit damages or prevent a plaintiff from being designated as having a permanent and serious injury, this decision may offer an example of how a disability in itself can limit the extent to which a plaintiff can participate in their own recovery.
In this blog post, we outline how “invisible disabilities” can impact a person’s ability to actively comply with all proposed treatments, why “reasonably participating in recommended treatment” does not necessarily mean participating in “all suggested treatments,” and how a plaintiff’s truthfulness ought to be assessed when considering credibility in the context of their injuries.
Do the plaintiff’s injuries meet the threshold for non-pecuniary damages?
On January 9, 2016, Kyriaki “Cindy” Moustakis was involved in a motor vehicle accident. Liability for the accident was admitted by the defendant, and a 12-day jury trial was set to decide issues relating to the plaintiff’s alleged damages relating to soft tissue injuries, chronic pain, and psychological injuries.
The parties agreed that the jury would consider questions relating to general damages, past income loss and future income loss or loss of earning capacity. The jury ultimately awarded damages for pain and suffering in the amount of $100,000, damages for past lost income in the amount of $105,000, and damages for loss of future income/loss of earning capacity in the amount of $125,000.
As the jury deliberated, Justice Loretta P. Merritt heard a threshold motion brought forward by defence counsel. The defendant argued that Cindy’s injuries did not meet the required threshold to permit non-pecuniary (non-calculable) damages to be awarded. The threshold to receive damages for non-pecuniary losses such as pain and suffering is “a permanent serious impairment of an important physical, mental or psychological function.”
In motivating their threshold argument, the defendant argued that “Cindy was an unreliable historian, gave contradictory and inconsistent evidence, was not candid with her doctors and did not follow their advice.” The defence counsel asked the judge to give credence to its expert witness, Dr. Ross, who opined that after a year, Cindy had returned to her pre-accident status of having an Adjustment Disorder.
The plaintiff’s position was that her injuries and resulting impairments are permanent, serious, and important. To support her positions, the plaintiff relied on the opinions of her treating psychiatrist Dr. Teshima and litigation expert Dr. Gerber.
Functional abilities pre- and post-accident
To assess whether Cindy suffered a permanent serious impairment of an important mental or psychological function, the judge reviewed evidence about her pre-accident and post-accident functioning.
Prior to the accident, Cindy led an active social life, spent time with her family, and contributed to the household by doing chores. She had been employed as a mystery shopper (observing and reporting on a business’s premises and operations while undercover). She was also very active in politics both through paid work and as a volunteer.
At trial, the judge and jury heard that Cindy had been treated regularly by a psychiatrist, Dr. Teshima, for a variety of emotional and stress related issues, including PTSD from childhood trauma and on-going interpersonal issues at home and at work. Dr. Teshima had not diagnosed Cindy with any psychiatric condition or illness, nor had he prescribed any medication. Having seen her regularly for about 12 years, the psychiatrist noted that she had been improving prior to her accident, (she was more consistently employed, functioning independently, coping with interpersonal conflicts, and not having any PTSD symptoms). Gradually making progress towards her life goals, Cindy appeared optimistic and positive to him.
According to testimony from people who knew Cindy in professional and personal capacities prior to the accident, by all accounts she changed dramatically after January 9, 2016. Cindy became very fearful of leaving the house. She found crossing streets and being at intersections particularly difficult. Her attempts to continue working and volunteering had not been consistently successful. Cindy testified that she had become depressed and felt “stuck,” lacking motivation, sleeping for 16-18 hours a day, and maintaining poor personal hygiene. She reported unresolved pain in her back, shoulders, arms, and neck despite two years of post-accident physiotherapy, massage therapy and psychotherapy treatment.
Dr. Teshima diagnosed Cindy with PTSD from the accident, and noted increasing depressive symptoms. Eventually, he diagnosed her with Major Depressive Disorder, a permanent diagnosis with fluctuating symptoms. Cindy was prescribed five different antidepressants in the years after the accident. Dr. Teshima’s prognosis for Cindy was guarded. He described Cindy as much less functional and noted that while there was room for improvement given that there are proposed treatments that Cindy has not tried, he was uncertain about the degree of improvement possible given her past difficulties.
Another psychiatrist who assessed Cindy, Dr. Gerber, was called by the plaintiff as a litigation expert. Based on his review of her medical records, two assessments of Cindy, and discussions with people who had known Cindy pre- and post-accident, he diagnosed Cindy with moderate to severe Major Depressive Disorder, persistent Somatic Symptom Disorder (previously known as Chronic Pain Disorder) with predominate pain, and PTSD symptoms. Dr. Gerber noted the accident was the clear precipitant to her developing those conditions, but explained that she was predisposed to having more problems given her difficulty coping with stress before the accident. His prognosis was also guarded, and he expressed concern for a time in the future when Cindy may come to realize that her hopes and goals for life would no longer be achievable.
A psychiatric expert for the defence, Dr. Ross, diagnosed Cindy with an Adjustment Disorder based on his in-person assessment and review of her records. Dr. Ross opined that Cindy had returned to her pre-accident condition after one year.
However, Justice Merritt noted that this assessment was based largely on an erroneous assumption that Cindy’s decision to give up a position on a political party’s local executive was because she was overwhelmed. Moreover, Justice Merrit noted that Dr. Ross found Dr. Teshima’s records to be illegible at times, and “may have wrongly concluded that Dr. Teshima diagnosed Cindy with anxiety and depression before the accident.”
Preferring the plaintiff’s expert opinions over Dr. Ross’s opinion, and factoring in Cindy’s own testimony, and the witnesses who knew Cindy pre- and post-accident, Justice Merritt decided that Cindy had sustained a permanent impairment of a mental or psychological function and her impairment substantially interfered with her ability to live and work as she had before.
The tremendous weight of an invisible disability.
In so many personal injury cases involving mental health conditions, the extent and implications of invisible disabilities are critically important to understanding a plaintiff’s functional abilities and prognosis. Cindy’s case was no different.
The court heard that Cindy had followed some, but not all, of the treatments recommended by her doctors. Further rehabilitation, cognitive behavioural therapy, and more psychotherapy could potentially help moderate her debilitating symptoms. Had Cindy sought out and been reasonably participating in recommended treatments in an attempt to manage and improve her condition? This was a key question to answer before determining whether Cindy’s impairment could be considered permanent.
Not much existing case law has dealt with this aspect of meeting the threshold for non-pecuniary damages. As a result, Justice Merritt’s decision to give weight to Dr. Teshima’s explanation for why Cindy had not exhausted all recommended treatments could be important for future cases where a mental health condition’s symptoms impact adherence to treatment plans.
In her decision, Justice Merritt wrote: “Cindy explained that despite wanting to participate in more treatment, she has not
done so because she feels stuck. Dr. Teshima explained that Cindy feels stuck because she struggles with motivation, she is unsure what to do, she has been socially isolated for years, and she lacks energy to do things. He says the symptoms themselves are a barrier to treatment (emphasis added). Cindy is depressed and less able to do things and less able to pursue treatment. He described it as a vicious cycle.”
If you have ever suffered from severe depression, Cindy’s words may ring true to your own experience. Feeling “stuck” due to lack of motivation and energy is a very real, and very significant obstacle for people battling depression in seeking treatment as comprehensively and consistently as they might want.
It’s doubtful anyone would expect a person in a full body cast to get out of bed, head to a gym, and start working on weight-bearing exercises. We understand that such a level of disability would prevent participation in such treatment even if the person was fully committed to following whatever their doctor recommended to heal.
Yet when a disability is invisible, some people may question whether any obstacle exists at all? Why would a person suffering from depression not just go to therapy if they were really interested in doing something to improve their condition?
Unfortunately, some symptoms of depression put sufferers in a figurative invisible full-body cast. Simply getting out of bed some days can be an immense struggle. And, even if a person is able to get up and has some limited function, they may be unable to remove the invisible backpack, filled with invisible rocks that creates a drag on anything they want or hope to do.
While Cindy has suffered terribly and struggled (and may continue to struggle) greatly to do certain things while in a depressive state, we hope knowing that her contribution to case law (which may help other plaintiffs with similar self-limiting invisible disabilities) will bring her some comfort.
Plaintiff credibility
Objective testing methods are not available for many/most soft tissue injuries, chronic pain, psychological injuries, or other types of invisible disabilities. Establishing the credibility of the plaintiff is critically important for her counsel. In contrast, defence counsel will likely probe for evidence of inconsistencies, exaggerations, or unreliable memory.
In Cindy’s case, Justice Merritt noted the defendant raised several issues that could undermine her credibility, including:
- Discrepancies in the description of her injuries at various times;
- Inaccurate statements to many people about how much weight she had gained since the accident;
- Failure to produce some records or call some witnesses; and
- Self-limiting behaviour during a Functional Abilities Evaluation.
Justice Merritt explained that she did not find that these issues significantly undermined Cindy’s credibility because:
- She found only “relatively minor differences in the descriptions of her injuries;”
- She was satisfied with Cindy’s explanation as to why she inaccurately estimated her weight (Cindy based her estimation on her inactivity, binge-eating, and the tightness of her clothes);
- She did not agree that failure to produce some records or call some potential witnesses is evidence of an inconsistency; and,
- She heard testimony from the person conducting the Functional Abilities Evaluation that people can self limit due to pain.
In finding Cindy to be a credible witness, the judge:
- Noted the jury “clearly accepted her evidence;”
- Found that none of the experts (called by both the plaintiff and the defendant) had suggested she was malingering or exaggerating her injuries in any way;
- Explained that in the few instances where Cindy lied to Dr. Teshima or others, it was “primarily to present herself in a better light than she actually was;” and,
- Believed “Cindy’s evidence about her pre-accident and post-accident condition, which speaks to the main issue on this motion, was largely corroborated by the lay witnesses, her treating psychiatrist, and the records.”
In civil actions, plaintiffs sometimes worry about how the defence may seek to undermine their credibility as a witness. We are all human, and as a result we may err at times. But, as this case demonstrates, credibility is established through context, corroboration, and understanding whether any inconsistencies go to the heart of the contested issues in dispute or indicate intentional dishonesty that would be an affront to the court.
An important case for the books
When it comes to consulting case law in preparation for civil actions, personal injury lawyers may want to bookmark Moustakis v. Agbuya 2023 ONSC 6012.
Beyond the issues discussed in this blog post, we’ve already written about an important ruling in this case. The court declined to qualify an expert witness who, on the face of it, had demonstrated expertise in a specialized area of medicine due to evidence pointing to the potential for advocacy and expertise drift. Moreover, in future blog posts we’ll outline important rulings on adverse inference and questioning a plaintiff on Statutory Accident Benefits Schedule (SABS) payments accrued or applied through a settlement.
Undoubtedly, the facts in this case factored into each of these rulings. However, Justice Merritt’s background in tort matters gave her a strong understanding of the relevant statutory and case law, and related concepts. The depth of this familiarity is quite evident in the questions she posed during the trial and at voir dire, and in the reasoning provided for her rulings.
Most personal injury claims are settled out of court and going to trial is the exception, not the rule.
But the types of rulings that emerge from trials such as this one can have a significant impact on how other similar cases are litigated, whether at the negotiating table or in court.
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