Background

In 2018, Cantini Law Group went to court for another client. Mrs. Karen Matthews, 48 years old, was injured in a rear-end motor vehicle accident. Unfortunately, she was already suffering from the sequelae to a workplace back injury sustained several years prior. Although she had returned to full-time employment between the two events, she continued to take some fairly potent medication for her condition. However, her workplace accident had considerably limited her job options as she could no longer perform the duties of that employment. She had thus been compelled to find work in a less physically demanding environment but she had managed to remain on the labour market despite her vulnerable state.

     When the car collision happened, some 7 years after the workplace injury, she worked as a front-end customer service clerk in a bakery. She also remained the central pillar to her family, taking care of a disabled war veteran and bringing support to her children and grandchildren. The family was not financially secured, relying mostly on a war veteran’s disability pension and Mrs. Matthews’ own low-paying job income to make ends meet. Her education was limited to a grade 9 level. Despite her condition, she regularly worked overtime hours to help bring home more money. The family managed: except for a car loan, it was debt free but without any substantial savings. After the workplace accident, its situation was certainly assisted by the WorkSafe NB coverage for her medication.

     To complicate things further for Mrs. Matthews, the rear-end collision was at low speed, while she was in a merging lane waiting to cut into traffic. Her car had sustained visible but relatively small damage. So, when Mrs. Matthews was placed on medical leave, unable to return to work, of course the defendant argued that it was due to her workplace injury. The Defendant argued, namely, that such a low velocity impact could not cause the type of disability claimed by Mrs. Matthews even if she had been able to sustain full-time employment up to the time of the car accident. She went the extra step of hiring two accident reconstruction experts and a biomechanical expert to dispute the nexus between the collision and the disability.

     To add to Mrs. Matthews’ misfortune, WorkSafe NB piled on another layer when it decided to terminate her medical coverage. Relying on a medical note from her family physician seeking to increase the dosage of her medication, it took the position two years after the car collision that her condition was now the result of that accident. Mrs. Matthews did benefit from the Section B medical coverage for four years, but that eventually ran out as well. For some time, the Section B insurer even terminated her weekly indemnity benefits, forcing her to file an action for reinstatement. Thus, from a family would could scrape by and at least pay the essential bills at the time of the car accident, it quickly ran into financial troubles.

     With minimal income, the end of medical coverage and increased medical expenses, Mrs. Matthews was compelled to contract high-interest loans to survive. She did not bother to file a motion for advance payment of special damages. The defendant had already shown resilience in her fight of the claim by all means possible. Lengthy video surveillance had been obtained; she had first denied any liability for the accident, before admitting to it shortly before trial but maintaining denial that the collision was the cause of the injury; plus retaining two accident reconstruction experts and one biomechanical expert.

     Hence, it is in that context that a trial in the matter was held in December 2018 with claims for general damages, loss of income, valuable services and costs of care. The evidence and arguments revolved mostly around issues associated with the pre-existing condition, i.e. causation, medical coverage, extent of injuries, etc., and Mrs. Matthews’ credibility. Judgment was rendered on June 20, 2019 (2019 NBQB 127). The decision was favorable to Mrs. Matthews and so, proving her resilience once again, the defendant followed suit with an appeal. It was heard by telephone conference on May 21, 2020(due to the Covid19 outbreak) and a unanimous decision rendered on July 30, 2020 (2020 NBCA 52). The result remained favorable to Mrs. Matthews; her battle has not been wasted as the decision formulates a series of interesting statements that may be useful for future plaintiffs.

Thin Skull vs. Crumbling Skull

Mrs. Matthews admitted that she suffered from a pre-existing back condition, due to the prior workplace injury. The defendant invoked it in two ways: (1) to dispute that the accident was the cause of the disability, and, if it were, (2) to dispute the extent of the damages that could be claimed as a result thereof. Mrs. Matthews argued that her prior injury had made her vulnerable to subsequent accidents and was thus entitled to full compensation as a thin skull victim (see “The Vulnerable Victim: Thin Skull vs. Crumbling Skull Cases”). Because the effects of the workplace accident were still active, the defendant argued that the crumbling skull rule should apply instead.

     It is worth noting that Mrs. Matthews benefited from the strong evidence of her family physician who had treated her for many years and had seen her through her workplace injury all the way until about one year before the trial. His medical notes were detailed and extensive. The trial judge wrote as much in his reasons for judgment (paras 51-52). The family physician testified that her prior injury increased the susceptibility of her back to further injuries. Her chronic pain expert and biomechanical expert supported that testimony. The defendant presented no evidence to show that Mrs. Matthews’ prior condition was degenerating or would, at some point in time, lead to the same result as she was then experiencing. The only legal issue was whether an active condition caused by a prior event fell into the thin skull rule, or the rule only applied to dormant natural conditions.

     Both the trial judge and the unanimous Court of Appeal confirmed that Mrs. Matthews’ case fell into the thin skull scenario. It did not matter that her condition was active, it was not degenerating at the time of the car collision. The motor vehicle accident is what had rendered her unable to work. Although the pre-existing condition was factored in the assessment of the damages, they were not apportioned (or reduced) according to the two separate events. Mrs. Matthews was entitled to a full compensation. The decision did not break new grounds as prior judgements proceeded along similar lines: Blackwell v. Bona (1981), 36 NBR (2d) 410 (CA); Adams v. Paquet (1986), 77 NBR (2d) 37 (QB); Crawford v. Galbraith (1995), 165 NBR (2d) 339 (QB); Hickey v. Savoie, 2012 NBQB 120. The award for pain and suffering was($75,000).

Total Disability

Another area heavily disputed by the defendant was whether Mrs. Matthews was totally disabled as a result of the accident. This is where her credibility was attacked. Extensive video surveillance was presented to discredit the claim. Among other things, the images showed Mrs. Matthews walking along the street carrying a grocery bag in one hand, grocery shopping with two grandchildren, mowing the front lawn with an electric lawnmower, holding a grandchild in her arms, etc. Reliance was also placed on Mrs. Matthews’ own vocational expert’s testimony that she could perform the work of a front-end customer service clerk on a part-time basis.

     In the end, the video surveillance proved to be probably more useful to Mrs. Matthews than to the defendant. It showed her switching the grocery bag from hands in a short span of time, often lifting grocery bags one at a time with both hands, bending to scan grocery items directly on the kart instead of picking them up, massaging her lower back after standing for an amount of time, telling her grandson to ‘get off’ the shopping kart, mowing the lawn in a stop-and-go effort that seemed to be a struggle and anything but graceful, etc.

     As for the vocational expert’s testimony, when red in its proper context, it supported a finding of total disability in light of all the other medical and functional evidence. Namely, a functional capacity evaluation had already stated that Mrs. Matthews could not perform her pre-accident job, which was a front-end customer service clerk, the same type of position that ‘on paper’ she could perform on a part-time basis. Given her age, level of education and physical limitations, retraining was not an option. The family physician had expressed a clear opinion that she was not able to return to work in any capacity. The defendant presented no evidence to contradict the testimonies presented in support of Mrs. Matthews’ case.

     The trial judge, supported by the unanimous Court of Appeal, concluded that Mrs. Matthews was totally disabled from returning to work. While the workplace injury had brought her close to the cliff, it is the car collision that had tipped her over. Ultimately, “despite any apparent inconsistencies in her testimony and recollections of events”, which were either insignificant, irrelevant or explainable by the nature of her injuries or the medication (para 6), Mrs. Matthews was found to be “an impressive plaintiff” (para 7). Her efforts following the workplace accident, both at work and at home, “were not only commendable but frankly, quite impressive” (para 13). The attack on her credibility failed miserably.

Medical Coverage

Another issue related to her pre-existing condition was the medical expenses incurred by Mrs. Matthews as a result of WorkSafe NB’s decision to terminate her coverage. Arguably, but for the car collision, WorkSafe would have continued to pay her medication as long as she would have needed it. The question became whether the defendant was liable for the expenses no longer covered.

     The trial judge acknowledged that Mrs. Matthews’ coverage termination by WorkSafe NB was questionable. Her workplace injury had not settled after the car collision, but had instead been overtaken by a new layer of symptoms. However, her coverage would not have been terminated but for the second accident and that made the defendant fully liable for the medical expenses incurred after the expiration of the Section B medical coverage. Implicit in that decision is the absence of obligation on Mrs. Matthews to sue WorkSafe NB for reinstatement.

     Again, the decision on this point did not break new grounds. For example, courts have already held that plaintiffs are entitled to lost employment insurance benefits when terminated because of an accident: Haché v. Centre de loisirs de Paquetville (1984), 58 NBR (2d) 262 paras 30-31 (QB); L’Huillier v. Keary (1990), 109 NBR (2d) 350 para 5 (QB). They have also held that there is no legal obligation to sue the Section B insurers that deny coverage in order to claim damages from the tortfeasor: Marney v. Bannister (1986), 68 NBR (2d) 253 (QB); Desroches v. Roussel (1986), 69 NBR (2d) 209 (QB); Gallman v. Archibald (1989), 93 NBR (2d) 198 (QB); Morris v. Collette, 2003 NBCA 35 paras 16-22. Courts allow claims for loss of insurability when a plaintiff becomes uninsurable as a result of an accident.

Interest on High-Interest Loan

In addition to the lost medical coverage, Mrs. Matthews argued that the court should take into account the rate of the high-interest loan contracted to pay medication costs when setting the interest payable on the special damages pursuant to s. 45 of the Judicature Act, RSNB 1973, J-2 (see “Claiming Interest Incurred on Loans”). She relied on the broad discretionary power of the trial judge in this respect without seeking the full interest paid on the loans as of right. The record already revealed the difficult financial situation faced by the household due to the accident. Namely, Mrs. Matthews had testified to the bank seizing her car after the accident because of her inability to make the payments.

     After reviewing all the circumstances of the case, the trial judge accepted to consider the rate of the high-interest loans to inform his decision as to the rate of interest to be applied on that part of the special damages consisting of the costs of medication. Without awarding the full rate, he applied a rate of 16% charged on the loans, as opposed to the two percent rate applied to the other special damages. The failure to seek an advance payment did not deter the presiding judge, or the unanimous Court of Appeal, given the adversarial position taken by the defendant throughout. To force such a motion in those circumstances would not serve the purpose of the Rules of Court.

Final Determination

In final analysis, the trial judge essentially accepted the claim as put forward on behalf of Mrs. Matthews. He awarded the following amounts, all upheld by the unanimous Court of Appeal:

General Damages$75,000.00
Past loss of Income (PLI)$111,264.65
    Interest on PLI$17,246.02
Past Valuable Services (PVS)$12,270.00
    Interest on PVS$1,901.85
Past Medication (PM)$18,676.18
    Interest on PM$11,555.89
Future Loss of Income$218,413.32
Future Valuable Services$25,069.20
Future Cost of Care$137,561.46
TOTAL:$628,958.57

This paper is offered for the purpose of discussion only. It does not constitute legal advice and its distribution does not create a solicitor-client relationship. Please consult a lawyer if you require legal advice.