January 1, 2009 By: Peter J.E. Cronyn
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As counsel who represented one of the parties in the case of Monks v. ING1 at trial and appeal, I cannot say that I possess any more insight into what the decisions say than any other counsel in the field. But it does appear that the decisions both at trial and on appeal have attracted a fair amount of attention – both positive and negative. From what I have read and heard, there is perhaps being more read into the decision than was intended but this is not the first time this has happened nor will it be the last.

What I propose to do is tell the story of Suzanne Monks and what hurdles she faced in this litigation. It is my view that her unique circumstances (and hers were unique for certain) dictated the ultimate result. Only time will tell whether this result will be viewed as precedent or distinguished on its unique facts.

Facts

These basic facts are taken from the evidence given at trial.

Suzanne Monks-Perrozino was born on September 29, 1955. She is married to John Perrozino and they have two sons. She is a registered nurse. While she has held many jobs over her life, the most significant employment positions she has held were as a nurse, a rehabilitation consultant and an insurance adjuster.

Ms. Monks was involved in three motor vehicle accidents and the following are brief summaries of those events:

  1. February 12, 1993 – the vehicle being driven by Ms. Monks was broadsided by another vehicle on Highway 401, west of Kingston.
  2. vehicle in St. Basile le Grand, Quebec.
  3. December 23, 1998 – This collision occurred in Erie, Pennsylvania, when Ms. Monks lost control of her vehicle and struck a bridge abutment on an icy road.

Following the 1993 accident, Ms. Monks suffered whiplash-type symptoms. The evidence is that they were relatively minor in nature, of short duration and for all intents and purposes had little impact on what ultimately has transpired.

The symptoms arising out of the1995 accident were also related to the cervical spine. They were more serious, of longer lasting duration and had a continuous impact on Ms. Monks’ life up to the 1998 accident. She was, however, continuing to work and carrying on most of the activities she had done prior to this accident, albeit with some restrictions. She had been seen by a neurosurgeon, Dr. Howard Lesiuk and a neurologist, Dr. Pierre Bourque and had had MRI’s taken in 1996 and 1997. While her condition gave rise to serious risks and choices, she still did have a choice and the recommendation to her from Dr. Lesiuk and Dr. Bourque was to proceed conservatively – i.e. do not undergo surgery at that time.

The 1998 accident exacerbated the symptoms Ms. Monks had leading up to that accident. Her condition deteriorated rapidly through 1999. The MRI taken in June 1999 disclosed further damage to her cervical spine and some spinal cord edema or damage. This led Dr. Lesiuk to change his recommendation from conservative treatment to surgical intervention. It was his advice, which was unchallenged by any of the experts called at trial, that if she did not proceed with the surgery, she would most certainly have progressed to a condition of quadriplegia.

As a result, Ms. Monks underwent decompressive surgery in September 1999 (from the anterior). The surgery would not improve her condition but the hope was that it would prevent any further decline. Dr. Lesiuk described the surgery as a success from the surgical perspective in the sense that the desired decompression was achieved. However, from a symptomatic perspective, it was not a success. Ms. Monks’ condition was worse following the surgery. The pre-existing conditions either remained the same or deteriorated and she had a bundle of new symptoms.

Her condition continued to deteriorate in spite of extended efforts on her part to rehabilitate. As a result, she was advised by Dr. Lesiuk that she should undergo further decompressive surgery (this time from the posterior). Again, the intended purpose of the surgery was not to bring about any improvement but rather to forestall any further decline. This surgery took place in January 2001. Again, Dr. Lesiuk described the surgery as successful in that the desired decompression was achieved. However, again the surgery had no impact on the symptoms.

Ms. Monks condition has gradually deteriorated to the point that she is now described as having quadraparesis (weakness of all four limbs). Her mobility has declined since the operations from using a walker, to a scooter to a powered wheelchair.

Her symptoms are as follows:

  • Quadraparesis
  • Chronic pain in her neck and shoulders
  • Neurogenic pain across her back and down through her arms
  • Extreme fatigue
  • Upper and lower extremity numbness, loss of range of motion, strength and dexterity
  • Gait ataxia – decreased balance, trunk strength and stability
  • Gastrointestinal dysfunction – persistent nausea and vomiting
  • Neurogenic bladder – requires catheter management
  • Neurogenic bowel – requires digital evacuation and enemas
  • Decreased concentration and poor short term memory
  • Sleep apnea/Narcolepsy type symptoms
  • Depression

Her condition continues to decline and there is no certainty that her symptoms and complications have halted where they are today.

As a result of these conditions, she has a multitude of needs by way of medication, rehabilitation, assistive devices, vehicular and home modifications, therapies and attendant care.

The only two accidents which were relevant to the case were the 1995 and 1998 accidents. In both cases, only statutory accident benefits were available to Ms. Monks. The 1995 accident occurred in the province of Quebec and even though the liability for the accident rested entirely with the young man who rear-ended Ms. Monks, no tort claim could be advanced because the law of the jurisdiction where the accident occurred applied and the law of Quebec prohibits bringing lawsuits for damages arising out of motor vehicle accidents. With respect to the 1998 accident, it was a single-vehicle accident and Ms. Monks was the driver.

Ms. Monks applied for benefits from Zurich Insurance, her insurer at the time of the 1995 accident. The insurance regime in effect at the time of that accident was Bill 164. Zurich denied that it had any responsibility to pay any benefits to Ms. Monks arising out of the 1995 accident and litigation ensued. Ultimately, Zurich settled its claim with Ms. Monks on the eve of trial on April 29, 2002. The money received by Ms. Monks at that time was the first money she received from Zurich at any time following the 1995 accident. The parties agreed to the following breakdown:

a) Loss of Income Benefits:

ii. for past benefits (IRB) – $100,000.00

ii. for future loss of earning capacity (LEC) – $500,000.00

 

b) Supplementary Medical Benefits:

i) for past benefits – $40,000.00

ii) for future medical expenses – $150,000.00

 

c) Future Rehabilitation Benefits:

i) for home renovations – $75,000.00

ii) for housekeeping – $110,000.00

iii) for future attendant care – $300,000.00

Ms. Monks had also applied to ING Insurance for benefits following the 1998 accident. That accident was governed by a different insurance regime – Bill 59. ING did provide benefits to Ms. Monks on an on-going basis leading up to the settlement of April 29, 2002. However, ING always took the position that it was doing so on a without prejudice basis. It was ING’s intention to seek indemnity from Zurich for whatever benefits it had paid to Ms. Monks.

To that end, ING had itself added as an intervenor to the litigation between Ms. Monks and Zurich Insurance on July 27, 2001. ING participated in that litigation right up to the settlement between Ms. Monks and Zurich.

In late 2001, Zurich Insurance and ING Insurance entered into an agreement whereby, amongst other things, ING would acquire all of the personal lines insurance of Zurich Insurance effective April 1, 2002. Ms. Monks’ 1995 policy was one such policy. The settlement funds referred to above were in fact paid to Ms. Monks in April, 2002 by way of a cheque from ING not Zurich.

ING made a ‘strategic decision’ not to pursue Zurich for any benefits it had paid to Ms. Monks or on her behalf. It was clear that by April, 2002, they would have simply been taking money from one pocket and putting it in another.

Instead, ING chose to terminate all benefits payable to Ms. Monks and to claim back from her what it alleged to have been overpayments on their part. This was done by way of a letter dated May 31, 2002.

ING took the position at that time that the CAT DAC which was delivered 10 months earlier “concluded that you are not catastrophically impaired on the basis of the December 23, 1998 accident”. It must be pointed out that the wording in the conclusion of the CAT DAC was in fact: “we cannot reliably conclude that this patient is catastrophically impaired on the basis of the December 23, 1998 accident.”

In regard to medical/rehabilitation benefits, ING noted that on the basis of the report of a home modification expert retained by ING dated May 29, 2001, home modifications would cost $146,911. It was noted that Ms. Monks had received $75,000 toward home modifications in the settlement with Zurich and therefore, ING chose to pay the amount of $50,786.88 to Ms. Monks which represented the balance owing for medical and rehabilitation benefits to the limit of $100,000 for a non-catastrophic impairment.

In regard to attendant care, ING took the position that it only had the obligation to provide attendant care benefits for 104 weeks in the case of a non-catastrophic impairment. It also took the position that any amounts which Ms. Monks had received in the Zurich settlement were deductible from what ING would be obliged to pay. As a result, ING informed Ms. Monks that she was required to repay the amount of $33,064.37.

In regard to housekeeping, ING took the same position that no benefits were payable after 104 weeks and also that the amounts received in the Zurich settlement were deductible and so it claimed a further repayment from Ms. Monks in the amount of $1,811.00.

At the beginning of trial counsel for ING stated that it would not be pursuing these two claims. However, between May 31, 2002 and the commencement of trial, no letter had been sent to Ms. Monks to this effect and no one from ING had advised her or her counsel that ING would not be continuing to seek repayment of these amounts until then.

In regard to income replacement benefits, ING noted the $600,000.00 received by Ms. Monks for income benefits in the Zurich settlement. ING took the position that these benefits were deductible from the income replacement benefits she had received from ING and accordingly sought repayment of $17,730.44. ING immediately commenced to deduct 20% from the amount it was paying for income replacement benefits in order to recover this amount.

Prior to this time, Ms. Monks and ING had reached agreement that the weekly income replacement which was attributable to the loss of income sustained following the 1998 accident was $340.96. Following the May 31, 2002 letter and right up to the first day of trial, ING continued to deduct 20% from this weekly amount on the basis of the argument presented in the May 31, 2002 letter. On the first day of trial, ING agreed that the weekly income replacement benefit should have been $340.96 all along and repaid all of the amounts held back since May 2002 with interest. As a result, ING agreed that Ms. Monks was entitled to continue to receive an IRB in the amount of the $340.96 per week and that should be part of the judgment.

The trial was heard in Ottawa by Justice Paul Lalonde commencing in January 2005 and lasted 8 weeks. Justice Lalonde released his judgment on June 15, 2005. ING appealed the decision and the appeal was heard in November 2007. The unanimous decision of the Court of Appeal was written by Justice Cronk and was released on April 14, 2008. The Court of Appeal upheld the trial decision in all respects except for the premium awarded on costs (which they overturned by virtue of the decision in Walker v. Ritchie2 which was released after the trial).

Relief Sought

The relief sought at trial was as follows:

a) a declaration that Suzanne Monks sustained a “catastrophic impairment” as defined in the Statutory Accident Benefits Schedule as a result of the motor vehicle accident of December 23, 1998;

b) a declaration that Suzanne Monks was entitled to receive from ING the statutory benefits which a catastrophically impaired person is entitled to receive pursuant to the SABS, including but not limited to:

  1. Income Replacement Benefits
  2. Medical and rehabilitation expenses
  3. Attendant care benefits
  4. Housekeeping and home maintenance expenses
  5. Expenses of visitors
  6. Caregiver benefits
  7. Costs of examinations, and
  8. Case manager services.

c) an order that ING pay to Suzanne Monks all amounts for any such enumerated statutory benefits owing to her from May 31, 2002 to the date of trial;

d) an order that ING pay interest on all such amounts which were owing since May 31, 2002 pursuant to s. 46 of the SABS;

e) an order that ING pay to Suzanne Monks on an on-going basis all amounts for any such statutory accident benefits as were proven at trial;

f) an order that ING pay aggravated damages to Suzanne Monks.

Issues

While the case involved numerous issues of interest to those practicing in the field of accident benefits, in my view the novel issues and the ones which have attracted the most attention are the following:

  1. Declaratory Relief – it was argued by ING that the court only had the jurisdiction to make a declaration as to the rights under the policy and if it was favourable to the plaintiff then the parties would have to return to the procedures provided for in the regulations to determine what was owing under the policy.
  2. Causation – ING accepted that Ms. Monks had sustained ‘catastrophic impairments’ as defined in the SABS; however, it took the position that the December 23, 1998 accident did not materially contribute to that condition.
  3. Directly Caused – it was argued by ING at trial that the SABS provides benefits only for impairments which are caused ‘directly’ by an automobile accident. ING argued that the majority of Ms. Monks’ catastrophic symptoms were as a result of the two surgeries and not the automobile accident.
  4. Interaction with Zurich Settlement – Ms. Monks had settled her SABS claims under the Zurich policy in regard to the 1995 accident and she had placed the funds into a structured settlement. ING argued that it did not have to pay any benefits until such time as the Zurich benefits were exhausted. If that argument was not accepted, then the judge had to deal with how compensation from the two policies would interact.

Trial Decision

Declaratory Relief

At the opening of the trial, ING brought a motion for a determination of what relief the court could award. ING argued that the only authority Justice Lalonde had was to decide if a declaration should issue as to whether Ms. Monks was entitled to benefits on a catastrophic basis. It was argued that benefits are due and payable only when they are shown to have been reasonable, necessary and incurred. As such, it was argued the court could only determine if the December 1998 accident was causally connected to the ‘catastrophic impairments’ and then the plaintiff would have had to follow all of the procedures in the regulations to prove her expenses were reasonable, necessary and incurred.

It was argued on behalf of Ms. Monks that because ING had denied her any further coverage as of May 2002, it would have been absurd for her to continue to follow the procedures set out in the regulations as each and every submission for payment would have been met with a response that it was denied because she was not catastrophic due to that accident. It was the argument of the plaintiff that if the court decided that the December 1998 was causally connected to the ‘catastrophic impairments’ then it was also in the position to determine what amounts were due and owing as of the date of trial, given that the plaintiff was in a position to present the evidence of her expenses under each heading up to that time. It was argued that if the insurer was wrong in its decision to deny benefits, it could hardly then insist on compliance with the regulations when its decision had frustrated that process in the first place. To do so would have led to multiplicity of proceedings, delay and extra cost to the plaintiff, all of which would have been unfair in the circumstances. Justice Lalonde agreed with the plaintiff’s position on this.

What appears to have been the more controversial order is the decision of Justice Lalonde that he had the authority to decide what benefits Ms. Monks would be entitled to on an on-going basis following the trial. In that regard, he followed the decision of the Court of Appeal in Coombe v. Constitution Insurance Co.3. That case was one of the early decisions made under the initial no-fault scheme in Ontario. It related to income replacement benefits and the finding of the Court was that the plaintiff was totally and permanently disabled from work caused by the automobile accident. The insurer argued that the plaintiff only had the entitlement to benefits payable up to the date of the declaration and that he would have to bring another suit for each payment thereafter as it became due. The Court disagreed with this position and found that once having declared that the plaintiff met the pre-condition of total and permanent disability, he was entitled to receive weekly benefits until such time as it could be shown that he was not so entitled.

In this case, it was argued by Ms. Monks that she had a cluster of medical conditions which required certain medical and rehabilitation treatments along with on-going attendant care. The evidence from her doctors would disclose that these needs were reasonable and necessary. Accordingly, it was the argument of the plaintiff that she should not have to continue to return to arbitration or court to have this determined over and over when it was clear that the test for reasonableness and necessity had been met. It was not argued on behalf of Ms. Monks that the judgment of the court should order quantities or costs of the medicines, treatments and care in advance. She would still have to submit bills once incurred or make arrangements with ING to pay them on her behalf. But if she was able to satisfy the court that these on-going needs were reasonable and necessary, then she should not have to go through that process again unless her condition changed.

For the purposes of the trial, Ms. Monks had had a cost of care report prepared. That report provided an opinion as to what her needs had been up to trial and on an on-going basis thereafter. It also provided details of collateral benefits that were available to Ms. Monks up to trial and which should be deducted from any amount owing by ING. Because ING had denied any further coverage in May 2002, Ms. Monks was left to her own devices to provide for her medications, rehabilitation, treatment and attendant care. The report provided by the future cost of care expert provided an independent opinion that the expenses actually incurred by Ms. Monks up to trial were consistent with the expert’s analysis as to what was reasonable and necessary.

One of the arguments by counsel for ING was that Ms. Monks had been well compensated in the Zurich settlement and that there was no need for any further contribution from ING. As a result, the future cost of care report was also tendered to demonstrate that in spite of the Zurich settlement funds, there still was a significant shortfall in terms of Ms. Monks’ needs. Counsel for ING argued that the future cost of care report demonstrating the magnitude of her future needs was prejudicial to its case. Justice Lalonde observed that the evidence of the Zurich settlement and the argument of ING that this settlement was sufficient to meet her needs was just as prejudicial to Ms. Monks, if not more so, and accordingly he allowed the report to be tendered as evidence.

Counsel for ING argued that the plaintiff was seeking the same relief as was being sought in the case of Monachino v. Liberty Mutual Fire Insurance Co45. The difference was that there had been evidence to demonstrate that the plaintiff in both cases had been incurring the expenses on a regular basis and intended to continue to do so.

In the same manner, the case of Ms. Monks was anything but moot. The medications, treatments and care used by Ms. Monks had been incurred by her on a regular and on-going basis for several years even without certainty of receiving further compensation from ING. Given her condition, there was absolutely no evidence that her needs would change except for the worse. She testified that she needed these items, used them and provided the underlying reasons for them as did her doctors and future cost of care expert. In those circumstances, the reasoning in the Monachino case had no application. Justice Lalonde determined that he had the jurisdiction to make an award such as the one in Coombs and that it would depend on the evidence. In the end, he was satisfied that the on-going needs of the plaintiff had been established as reasonable and necessary but that she would have to submit them for payment by ING when actually incurred.

Causation

Much of the evidence at trial was devoted to the issue of causation. At the time of the trial, the case of Resurfice Corp. v. Hanke6 had not reached the Supreme Court. But given there was ample evidence that both the 1995 and 1998 accidents had contributed to Ms. Monks’ condition, it was a classic case for the application of the test in Athey v. Leonatti7.

There was no dispute between the parties that the test in Athey could apply to SABS cases in determining causation and indeed the prior case law had fairly well established that point clear. Athey stands for the proposition that the “but for” test is the general rule for determining causation but when that is unworkable, as long as there is a material contribution which is “outside the de minimus range” then liability will follow. The key points from Athey are:

  • Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury
  • The general, but not conclusive, test for causation is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant
  • The "but for" test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury
  • The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision. It is essentially a practical question of fact which can best be answered by ordinary common sense. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.
  • It is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.
  • The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm
  • If the law permitted apportionment between tortious causes and non-tortious causes, a plaintiff could recover 100 percent of his or her loss only when the defendant's negligence was the sole cause of the injuries. Since most events are the result of a complex set of causes, there will frequently be non-tortious causes contributing to the injury. Defendants could frequently and easily identify non-tortious contributing causes, so plaintiffs would rarely receive full compensation even after proving that the defendant caused the injury. This would be contrary to established principles and the essential purpose of tort law, which is to restore the plaintiff to the position he or she would have enjoyed but for the negligence of the defendant.

The determination of whether a material contribution has occurred or not is a factual one. In this case, Justice Lalonde concluded that on the evidence the December 1998 accident made a material and significant contribution to the catastrophic impairments suffered by Ms. Monks.

ING further argued that Ms. Monks should not be placed in a position better than her original position, since she had a pre-existing medical condition arising from the 1995 accident. ING argued that the case was a typical crumbling skull plaintiff and that it need only pay for injuries caused by the 1998 accident.

The Court in Athey also discussed the “thin skull” versus “crumbling skull” theories. Justice Major, in fact found that the case before the Court was in fact one of a “thin skull”. He described the “crumbling skull” theory as follows:

“The so-called "crumbling skull" rule simply recognizes that the pre-existing condition was inherent in the plaintiff's "original position". The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage.”

However, it was the argument on behalf of Ms. Monks that there is no room for the concept of the “crumbling skull” in accident benefits cases. The essence of the theory arises out of tort law which attempts to establish what damage a wrong-doer must pay to a party he or she injured by his or her negligence. As stated by Justice Major, a tortfeasor need only place a plaintiff in his or her original position. However, Justice Major stated that would involve making a deduction from the damage award for some percentage attributable to the pre-existing inevitable condition. There is no mechanism to do that in the context of accident benefits – either the insurer is required to pay benefits or not. There is no mechanism to reduce the benefits to some degree.

In accident benefits cases, it is a matter of a contract of insurance. The test is not whether the insurer need only place its insured in his or her original position. The test is whether the insurer is required to fulfill its contract with the insured and pay him or her the required benefits. Whether the insured would have experienced certain effects in any event is not relevant. The fact is that the insured experienced those effects when he or she was an insured of the insurer and as long as the insured event made a material contribution to the condition, then the insurer must fulfill its contract.

It is to be remembered that an insurer, unlike a tortfeasor, has the choice to accept an insured or not and has the ability to draft its insurance to exclude certain conditions or not. Albeit in the context of auto insurance, the policy wording and entire regime is as a result of a consensus reached by the various stakeholders; nonetheless, the insurers have always been one of the stakeholders participating in that process. In the end, insurance is the business of accepting and insuring risks and one of the risks accepted by all auto insurers is the pre-existing medical condition of each of its insureds. It is no answer for an insurer to say that its insured would have experienced these effects in any event; the fact is that they occurred during the period of time that it insured that individual and for one of the insured risks. This view had been expressed in a previously decided FSCO arbitration.

Justice Lalonde accepted this argument and agreed that there is no room for the “crumbling skull” theory in SABS cases. If causation is established, it is all or nothing.

Directly Caused

Counsel for ING had argued that many of the symptoms suffered by Ms. Monks were not “directly caused” by the automobile accident. ING argued that the December 1998 accident did not cause her to require surgery but rather simply caused a cervical sprain. It argued that the surgery was required before the 1998 accident or in the alternative was inevitable in any event. It further argued that many of the conditions which she suffered were not related to the spinal cord injury. In that regard, ING relied on the definition of “accident” in the regulation: “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device” (emphasis added).

On behalf of the plaintiff it was argued that the uncontroverted evidence of all of the experts called at trial was that MRI taken after the 1998 disclosed if surgery was not performed then Ms. Monks would slowly and ultimately be rendered quadriplegic. The surgery was done not to reverse the condition she had but in an attempt to forestall this inevitable result. The surgeries appear to have had some success in that regard but unfortunately for the most part Ms. Monks has been rendered quadriplegic.

The plaintiff also relied upon a line of cases which hold that where a person is injured during medical treatment or evaluation following an accident in which the person was originally injured, that person will be entitled to accident benefits even where the benefits are intended to address injuries resulting from the subsequent medical treatment or evaluation, so long as there is a sufficient causal connection to the original accident. The "later" injuries are to be treated as the "consequences" of the original injuries which arose from the accident — such consequences are eligible for accident benefits.9

Justice Lalonde accepted the plaintiff’s argument on th

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.