1989 S.H. 67788 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jerome Hiltz and Kenneth J. McNab Defendant HEARD: Before the Honourable Chief Justice Constrance R. Glube in Halifax, Nova Scotia, December 18th, 1992 DATE: January 12th, 1993 COUNSEL: Kevin Coady, for the Plaintiff R. Malcolm MacLeod and David Blaikie, a/c, for the Defendant 1989 S.H. 67788 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jerome Hiltz and Kenneth J. McNab C.J.T.D.: This is an action to determine the quantum of general damages as a result of a motor vehicle accident on June 28th, 1988 between a motor vehicle driven by the plaintiff, Jerome Hiltz and a motor vehicle owned and operated by the defendant, Kenneth McNab. Mr. Hiltz is claiming damages for personal injuries. Liability has been admitted by the defendant and special damages have been resolved between the parties. Mr. Hiltz, age 33, is married with three children, ages 7, and 2. He has Grade 10 education plus two years vocational school training and has been working for 15 years. For the past seven years he has worked for Autohaus Martins Inc., Volkswagen dealer located in Dartmouth, Nova Scotia. At the time of the accident, he worked as technician which involved body work including heavy frame work, panel replacement and painting. In March 1989, he became supervisor which changed his job in some respects although he still filled in as technician when someone was absent or on vacation. At discovery he said the job was lot different. At trial he said that is not the whole picture; he has paper work and involvement with customers, but he still does physical work. On the day of the accident shortly after 5:00 p.m, Mr. Hiltz was proceeding towards Halifax on the A. Murray McKay Bridge, on his way home from work. He was in line of cars and noted some difficulty further ahead. When the four cars immediately ahead of him stopped quickly, he was able to stop without any collision, however, as he was braking his car, he glanced in his rear view mirror and upon realizing that the car behind him could not stop in time, he braced himself by stretching out his left leg. The collision tapped the Hiltz motor vehicle into the car ahead resulting in minor damage to the front of his motor vehicle, namely, scrape on his bumper and crack under his signal light. The rear‑end collision resulted in his exhaust being knocked off, the splash pan rolled under, the bumper cracked and subsequently, leak was found in the gas tank. The damage totalled around $1,200.00. He claims the next time he drove the vehicle, he noted that the driver's seat was twisted, that is, the left side was bent back three or four inches. Mr. McNab testified he had started to slow down and believes his vehicle was travelling at 10 to 15 kilometres per hour when the collision occurred. Although his car suffered damage, he suffered no personal injuries and considered it simple fender bender. Mr. Hiltz banged his head in the accident which he said made his head ring, but at the time, it was his only discomfort. He and Mr. McNab both got out of their vehicles, inspected them and drove them off the bridge, stopping on the other side to exchange names. Mr. Hiltz proceeded to drive to see his brother who was welder, and they examined the car again. He then drove home without any problems. Upon arriving home, he had shower and went to sit on the couch. He became very shaky and upset and when he stood up, his left knee went numb. That evening, he went to see Dr. Michael Allen, his family doctor, who determined that nothing was broken and recommended that he take Tylenol, and use heat and cold if he continued to be bothered. Mr. Hiltz recalled remaining home from work for three or four days immediately following the accident, returning to work for three for four days, and then being off work for three or four weeks. He stated his whole body became numb, his neck was very sore, the muscles in his back were swollen, he had headaches, his left shoulder was sore, and his left hip was tingling. According to the records of his employer, Mr. Hiltz did not work the four days immediately following the accident, he returned to work on July 5th and was not off work again until July 22nd, when he was off for period of three weeks and day. Mr. Hiltz denies any prior history of pain in his hip, buttocks or groin. He described that on one occasion in the year before the accident, he got kink in his neck when he turned his head too fast; after wearing collar for day, the problem was corrected. He denied having any previous back pain, however, on June 15, 1988, Dr. Allen's reports show he was in his office complaining of muscular aches in his lower back as result of strenuous work on his lawn. Before the accident, in addition to the heavy work involved in his employment, Mr. Hiltz was generally involved in outdoor sports, including fishing, motor cycling, skidooing, hunting and playing organized baseball. Since the accident, those activities have been greatly restricted. He no longer drives motorcycle, skidoo or street bike because it causes pain in his hip and back. He cannot swing baseball bat because the motion causes pain and he has to carry lighter gun when he goes hunting. Long swims also bother him. He does more fishing now than other outdoor activities. He cannot run, do any fast activities, push car at work, or do any heavy lifting. At home, his activities are also curtailed. He finds roughhouse play with his children difficult, he cannot bathe them and he cannot do things around his home such as painting, building rock wall, making beds or taking out the garbage. He no longer helps his friends repair their homes and he no longer works on race cars. He has played golf once year and claims he "paid" for it with pain later. He has also water skied. year after the accident, he took long motor vehicle trip to Niagra Falls, but was in considerable pain throughout, and no longer takes long drives. Even one hour drive causes him problems. Following the accident, Mr. Hiltz was initially seen by Dr. Allen. He had three or four prescriptions for Tylenol 3, however now he just takes Extra Strength Tylenol. Dr. Allen arranged x‑rays and physiotherapy starting on July 22nd, 1988. He received 48 physiotherapy treatments in 1988 and 113 in 1989. These included exercises, cold and heat treatments, electrical impulses, acupuncture and manipulation. Because he was good employee, his employer allowed him to come in early and take an hour or an hour and half off for his treatments or other medical appointments. In 1990, he was placed on home exercise program. Except for the three week period in August 1988, he has not missed any work as result of his injuries. Because of continuing problems, Dr. Allen referred Mr. Hiltz to Dr. Robert K. Mahar, specialist in physical medicine and rehabilitation. The first visit was on December 19th, 1988. Up until July 1991, Mr. Hiltz had thirteen office visits with Dr. Mahar. Following one further visit in October, 1992, Dr. Mahar prepared final report for court. In December 1990 and September 1992, Mr. Hiltz was also seen on two occasions for assessment by Dr. Reginald Yabsley, an orthopaedic surgeon. These appointments were arranged by the defendant. When asked to compare his condition today to six months after the accident, Mr. Hiltz claims that sometimes it is no different; although there is improvement, he has not recovered. Strenuous work still causes pain. lie claims he has pain daily, mainly first thing in the morning and after work. When he gets up, he spends five minutes stretching and after work he lies on the floor and does stretching exercises. He is concerned that turning his neck the wrong way will cause his condition to flare up and holding his arms out for long periods, for example, to paint car, or sitting for any lengthy period causes pain in his back. Except for his left hip, the most pain is in his shoulders and neck; the muscles in his neck and upper back swell daily causing "pulling" feeling which makes him want to bend over. Initially, his left hip did not cause much problem, but then it got worse. He had sharp pains in his testicles for several months, very sore hip joint for six months, his left buttocks was very tender and he got relief by lying on his back with his feet up. Four to six months after the accident, the pain, which was initially intermittent, moved into his groin area. He believes that his personality has changed; he is moody and not the nice, outgoing guy he used to be. When he is in pain, he becomes more easily aggravated, and as result, he cannot handle his children as well. His home exercises involve lot of stretching, tightening and relaxing muscles. He performs the program diligently at home in the morning and in the evenings and sometimes during the day at work. To perform the exercises requires one or two hours day which takes prime time away from his wife and children. Tanya Hiltz, his wife, testified that before the accident, he was quite active without any physical restraints or complaints. He was involved in outdoor activities including motorcycling, baseball, downhill skiing and bowling. He was easy‑going and easy to get along with, always jumping in to help out. Since the accident, he has to try harder, he is moodier, and he turns over certain responsibilities to her, such as bathing the children, because he is not as mobile. When he comes home after work, she can tell by looking at him that he is not happy and that he is in pain. He does his exercises almost every day and she often assists him in doing them. Mrs. Hiltz started back to university in September. Although she had originally planned to wait until all the children were in school, both she and her husband believe that he cannot continue in his current work. She anticipates that there will be role change. Although she always wanted to go to college, she is now obligated to do so, acknowledging it will probably take five years or more before she is ready for employment. On January 16th, 1992, Mr. Hiltz had another motor vehicle accident. His car hit head on the side of car which cut across his path and stopped in front of him. Initially, he noticed his neck was sore and his shoulders were swollen. He claims that his back was sore for four days, but after seven to ten days, the muscle pain went back to where it was before the accident. As stated, Dr. Mahar first had contact with Mr. Hiltz at the request of his family doctor in December of 1988. There are number of letters from Dr. Mahar to Dr. Allan in 1989, 1990 and 1991. The three medical reports prepared for the court are dated October 31st, 1989, July 10th, 1991 and October 18th, 1992. Dr. Mahar described soft tissue injury which was related to the motor vehicle accident including: "Musculotendinous/ligamentous injury to anterior aspect of the left hip. Musculotendinous/ligamentous injury to left thoracic and lumbar paravertebral musculature. Musculotendinous/ligamentous injury to the left iliocostal thoraces or rhomboid muscle." He also described possible pars interarticularis defect at L5‑Sl with spina bifida occulta (developmental abnormalities) which was not related to the accident. Dr. Mahar believes the left hip injury was caused when Mr. Hiltz braced his leg with the knee extended, resulting in symptoms of tingling, discomfort, sharp pain in his knee and pain in his left hip and groin. This resulted in degree of shortening of the anterior aspect of the left hip and the groin area in the front. He found decreased range of motion in the left hip compared to the right which he attributed to soft tissue contracture or shortening because no other cause has been found. There is no bone or joint disruption. The injury to the left thoracic and lumbar relate to muscles on the left side of the mid‑back (thoracic) and low back (lumbar) which Dr. Mahar related to the motor vehicle accident. Also, on the left side further up, he described soft tissue injury extending up the side into the shoulder blades. In his opinion, there was common theme with fairly continuous pain from the low back extending up along the spine and into the left shoulder. The left low back and mid‑back and the scapula recovered at greater rate than the left hip region. He described that currently, the greatest discomfort suffered by Mr. Hiltz is in the anterior aspect of his hip. He also has pain in his buttocks and numbness, his left shoulder aches and pain goes up to his neck. He found that Mr. Hiltz was essentially unchanged from 1991, but his back and shoulder did improve between 1988 and 1990. Initially, Dr. Mahar considered the soft tissue injury suffered by Mr. Hiltz was between moderate and moderately severe, closer to moderate. In 1991, he reported significant improvement of the shoulder blade pain. Because of the continuing hip pain, he ordered CAT scan of the left hip. The 1991 report seems to indicate that things were settling down. It refers to reassessment in April 1990, when there were no significant complaints of pain in the neck or low back region, however, the left shoulder blade continued to cause trouble and there was residual left buttock pain and episodic pain in the front part of the left hip which mostly occurred when Mr. Hiltz was standing immobile. In November, 1990, he continued to have episodes of pain in the left buttock radiating down from the left hip into the left knee. The doctor felt Mr. Hiltz had developed some shortening of the soft tissues about the anterior aspect of the left hip, the left side of the low back and the thoracic musculature. The range of the left hip improved to normal with physiotherapy but it then showed mild restriction of external rotation following some months of only home exercises. As previously stated, he attributes the degree of decreased external rotation range of the left hip to the soft tissue injury. In 1991, his prognosis was that Mr. Hiltz would continue to have episodes of discomfort which might require periods of physiotherapy in the future; this could persist for several years, perhaps permanently, but Dr. Mahar had no way to corroborate or refute that impression. In his 1992 report, it was Dr. Mahar's opinion, that Mr. Hiltz has not fully recovered from any of his injuries; that he will continue to have discomfort in his hip although his neck could resolve itself. The neck, shoulder and back injuries do not indicate any accelerated risk of developing arthritis. Although the left hip causes the most concern, there is no evidence of degenerative deterioration in the hip, and Dr. Mahar agreed that Mr. Hiltz is not at any increased risk of tendency to arthritis of his hip, back and neck. The x‑rays, bone scan and two CAT scans did not demonstrate any significant bone/joint injury or inflammation which would corroborate predisposition to degenerative disease of the left hip. Relying on Mr. Hiltz's statements that the second accident was resolved in seven to ten days, he concluded that it caused no long term effects. His 1992 report concluded by saying that there was no significant risk of requiring surgery, that Mr. Hiltz is motivated, enjoys his work and would be able to continue to perform his duties on regular basis with discomfort from time to time. Except for continuing the home exercise program with physiotherapy as necessary for symptomatic relief, no further treatment or investigations were required. Although Dr. Mahar believes that Mr. Hiltz's work increases his pain and if he was doing lighter work, he would probably suffer less discomfort, the doctor has never advised him not to work. In the doctor's opinion, working is not causing any deterioration of his condition; he is not disabled from performing his job at the present time. Although Mr. Hiltz has pain at the end of each day, he gets through the day and puts up with the pain. Dr. Mahar found his activities do not result in any increased damage to Mr. Hiltz; he has no occupational limits and there is nothing he is doing which he should not be doing. In accepting that his lifestyle at home has been altered because he is unable or less able to do the things he wants to do, the doctor found these limitations consistent with the injuries he suffered. Dr. Mahar considers that Mr. Hiltz has been an excellent patient who does his home exercise program regularly and in this respect, considers him to be the most motivated person he has seen. Dr. Mahar acknowledged that what Mr. Hiltz told him about doing his exercises depends upon whether he believes Mr. Hiltz or not. On the other hand, in Dr. Mahar's opinion, the pain Mr. Hiltz says he is suffering, is consistent with his physical findings, based upon the history and the context in which Mr. Hiltz described the pain. The doctor accepts his subjective complaints and agrees it is not his job to be sceptical of his patients. In the opinion of Dr. Mahar, Mr. Hiltz does not have myofascial pain (chronic pain syndrome), but his pain is chronic; he has permanent disability relating to avocational interests such as driving his motorcycle, playing with his children and the like. He considers that the pain which Mr. Hiltz suffers is mild to moderate, closer to moderate, acknowledging that it is subjective. Dr. Yabsley examined Mr. Hiltz in December 1990 and September 1992. During the first visit, he found Mr. Hiltz had full movement of both hips without pain. He found no traumatic features, that is, nothing to demonstrate post traumatic effect. Although he is unable to explain the cause of the limited external rotation of the left hip, he believes it results from possible narrowing of the hip joint which was not the result of any trauma from this accident; he did express concern that this may result in arthritis in later years. He found it highly unlikely that Mr. Hiltz suffered any structural damage or any major soft tissue injury in the 1988 accident. He explained that this type of collision causes the head to go back and there was nothing to indicate that his hip and knee were injured at that time. He understood that the groin pain started approximately four months following the accident, and although he accepted Mr. Hiltz's statement that he has this pain, in the doctor's opinion, it could come from the back or the hip. He explained the shaking following the accident as psychological reaction. In his opinion, none of the tests taken by Mr. Hiltz over the years reveal any demonstrable physical consequences of the accident. He believed Mr. Hiltz was good patient who went back to work even though he had symptoms, but he also believed that he was capable of doing the work. He found it significant that Mr. Hiltz only has to use Extra Strength Tylenol for the continuing hip pain. In his 1990 report Dr. Yabsley referred to Mr. Hiltz taking up water skiing again, and although it was not as often nor as comfortable as it had been previously, the doctor expressed the view that water skiing is vigorous sport which normally requires good conditioning. Although the second accident in 1992 was head on collision, Dr. Yabsley found some significance in the fact that Mr. Hiltz did not go to see Dr. Mahar, that he went to work the next day, did his exercises and got over the effects of the accident quickly. As stated, Dr. Yabsley was unable to find or identify the source of the pain complained of by Mr. Hiltz. He found Mr. Hiltz was forthright and highly motivated and he accepted that he has pain, but he does not agree that it is the result of any soft tissue injury from the 1988 accident. He did not discount Dr. Mahar's conclusion, stating it is just nuance of interpretation which is at variance. Although soft tissue injury is not unusual following motor vehicle accident, generally, it stabilizes within six months to several years. In this case, Mr. Hiltz continues to complain about pain four and half years after the accident and there is nothing to explain the cause of the pain. In Dr. Yabsley's opinion, further conventional medical treatment would not bring him any relief because there is nothing demonstrable to relieve. Dr. Yabsley describes Mr. Hiltz as healthy young male with various tender points which are not ascribable to any cause, who is not at greater risk of premature arthritis as result of the 1988 accident. He found that the one objective sign (the hip rotation), is not the result of this accident. Although Dr. Mahar described the pain suffered by Mr. Hiltz as mild to moderate, in the opinion of Dr. Yabsley, moderate pain would interfere in major way with Mr. Hiltz's work or personal lifestyle, thus, he considers the pain is no more than mild. In Dr. Yabsley's opinion, any soft tissue injury has healed. The continuing pain is "pain state" without any manifestation of residual soft tissue injury. This kind of pain responds to time and he is optimistic that Mr. Hiltz will soon be comfortable. He believes Mr. Hiltz is able to continue to participate in all the activities he wants to do. The difficulties which he is suffering at this time are subjective; he is focussing on himself, he has anxiety related to the accident and after four years, the pain is part of the overall syndrome of anxiousness and concern. In the doctor's opinion, since Mr. Hiltz can do things such as water skiing, although he has pain, his body is able to do these things without suffering any injury. Although Dr. Mahar has seen Mr. Hiltz over an extended period of time, and on many occasions, he too was unable to find any physical reason for the pain which Mr. Hiltz was suffering. accept that there is pain, but further accept that there is no physical basis as result of the accident which is causing the pain. During cross‑examination, it was pointed out to Dr. Mahar that only nine months after the accident, in March of 1989, Mr. Hiltz indicated that he was taking very little pain medication, and only had one bad day week, that on one occasion in the summer of 1989 he played golf and that his hip was more normal. It appears he was doing quite bit better at that time. Dr. Mahar's later reports seem to indicate Mr. Hiltz has more rather than less pain. Dr. Mahar's comment was that he accepts what his patient says to him about pain and that the pain was consistent with his injuries. During cross‑examination, Mr. Hiltz acknowledged that over the years he has bought and sold cars and sold his motorcycles, without declaring any of this income on his income tax. Also, prior to joining his present employer, while he was on unemployment insurance benefits he worked out of his own garage for six months doing body work and painting, again without reporting the income. Although acknowledge the attempt to challenge Mr. Hiltz's credibility, this does not really assist me in any way because everyone accepts, as do I, that Mr. Hiltz still has pain. After reading through all of the material which has been presented in evidence and listening to Mr. Hiltz and the two doctors, find that this was mild to possibly moderate injury in the first instance, which allowed Mr. Hiltz to continue with physically demanding work from the time he returned to work in August through to March when he became supervisor at which time his work became somewhat easier. Except for physiotherapy and medical appointments, he did not miss any time at work. Some of his activities have indicated that he has tried to return to what he was doing previously, such as game of golf once year and water skiing. He continues to hunt, although he hunts with lighter rifle. I accept that Mr. Hiltz still feels pain, but I find that this was a mild injury which has resolved itself except for the pain. Currently the pain has become learned pain; there is anxiety with it which should decrease and hopefully disappear now that the court action has reached conclusion. His pain does not restrict him from employment, although he considers that it restricts him from his recreational activities, resulting in the loss of enjoyment of some of those activities. accept that the pain which he has occurs on fairly regular basis and that his exercises seem to be of assistance to him. accept both doctors findings that no further treatment will assist Mr. Hiltz, and that the accident has not had any long term physical effects. The fact that Mr. Hiltz is so motivated is good sign. Now that this case is drawing to conclusion, am sure that within reasonable time his strong motivation will lead him to do what his body can stand without suffering any pain; otherwise, he is going to have to live with the pain and accommodate to it. conclude that the current pain is not the result of trauma suffered in the 1988 accident. In reaching these conclusions must now turn to the award of damages. Even if agreed with the plaintiffs position that his pain is the result of the ongoing effects of injuries suffered in the accident, in my opinion, it would be inappropriate to award damages on the basis of two separate and independent injuries. In reaching any conclusion on damages it is always of some assistance to refer to cases to learn what amounts are being awarded for general damages, acknowledging that each case is factually different from the other. However, cases are only guidelines for the court. Although counsel on both sides referred me to number of cases, which read, it is unnecessary to list them. In my opinion, Mr. Hiltz is left with myofascial or chronic pain, mainly relating to his left hip. He still suffers pain which restricts some of his activities causing loss of enjoyment. He does not have pain all day every day, but he exercises care in what he is doing because he fears he will cause himself more pain. Also his personality has changed and his recreational life has been affected. Taking all these factors into consideration, I assess general damages in the amount of $25,000.00. Counsel made submissions on pre judgment interest. There was no evidence which leads to the conclusion that the plaintiff was responsible for undue delay in bringing this case to trial. There will be no reduction in the number of years for the award of interest. In choosing the appropriate interest rate, in my opinion, the award of $25,000.00 reflects an award for chronic pain syndrome as suffered by the plaintiff as of this date and not four and a half years ago when the accident occurred. (See Kirk Singh, S.T. No. 03829, unreported decision November 25, 1992, p. 24.) To award full interest would amount to double recovery which should be avoided. The interest rate must be adjusted appropriately. (See Bush Air Canada, (1992) 109 N.S.R. 2d. 91. Interest shall be at 1/2% from June 28, 1988 to the date of judgment. If costs have not been resolved, counsel may file written submissions. Constance R. Glube Halifax, Nova Scotia 1989 S.H. 67788 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jerome Hiltz and Kenneth J. McNab Defendant DECISION OF GLUBE C.J.T.D.
The plaintiff claimed damages for injuries suffered as a result of his car being hit from behind. He had continued pain in the neck, shoulder, back and hip four and one half years after the accident. Throughout this period, the plaintiff missed only three days and then three weeks of work. The medical evidence conflicted as to whether the injuries were the cause of the continued pain. Awarding $25,000 valued at date of judgment with an adjusted interest rate. The court found the injury was mild and not the cause of the continued pain. The plaintiff was found to have chronic pain syndrome.