Podleszanski v. Medley was a personal injury action arising out of a motor vehicle accident. Mr. Justice Alan W. Bryant ruled on a threshold motion brought by the defence while the jury was deliberating at trial. Holding that the plaintiff had a “particular vulnerability”, he ruled that the plaintiff’s injuries met the Bill 59 threshold.
The plaintiff’s vehicle had been rear-ended and the plaintiff suffered soft tissue injuries in various parts of his body, including his neck, back and shoulders.
At trial, the jury awarded $25,000 for non-pecuniary damages, $95,000 for loss of income and nothing for future income loss. (It is unclear whether this was before or after the statutory deductible.)
The plaintiff was a Polish immigrant who, at the time of the accident, worked as a shovelman on an asphalt crew. There was evidence that he had been a hard and reliable worker.
Medical evidence called by the defence at trial was to the effect that as a result of the accident, the plaintiff might have had a soft tissue injury to his neck and bruising of the sacrum, but that these injuries had long since healed. Even a doctor who examined the plaintiff at the request of his own counsel said that he could find no physical abnormalities and that the plaintiff “was an individual who has pain-focused behaviour and chronic pain syndrome”. However, that physician felt that the chronic pain syndrome prevented the plaintiff from performing the duties of his employment.
The plaintiff had been referred for psychological treatment as a result of his injuries, as he had experienced anxiety, depression and insomnia. The defence attempted to have a psychiatric assessment done but the plaintiff apparently believed that he was being mistreated by the examining psychiatrist. Justice Bryant said that “the length and type of psychiatric examination conducted by Dr. Notkin of a person of Mr. Podleszanski’s intellect and cultural background rendered Dr. Notkin’s assessment to be of little value to the court”.
The defence had surveillance videos of the plaintiff on the roof of his house, helping to lay sod in his yard and shovelling snow. The trial judge also found that the plaintiff had “provided incomplete medical histories and background information to some of the doctors which undermined his credibility”.
Justice Bryant said that the plaintiff “did not present well as a witness”. However, he went on to say that “the fact that the plaintiff’s soft tissue injuries are not objectively confirmed does not preclude recovery.”
Applying the threshold test in Meyer v. Bright, Justice Bryant found that the plaintiff met it:
The court finds that the plaintiff suffered soft tissue injuries as a result of the accident which he continued to suffer at the time of the trial. The plaintiff’s psychological condition (major depression and general anxiety disorder) was the result of the automobile accident and his particular vulnerability. The physical pain and psychological condition impair the plaintiff’s ability to return to his previous position or a similar type position. The plaintiff is capable of minimum wage employment that does not require heavy lifting (or where his employer accommodates his disability, as is the case with his present employer). The physical and psychological impairment interfered with the plaintiff’s ability to continue with his regular employment at Pave-All or at a similar physically demanding job and will continue for the foreseeable future.