The Court overtly accepted the Plaintiff’s expert testimony and criticized well-­known defence experts with regard to whether the Plaintiff’s injuries were minor and whether fibromyalgia can be caused by trauma.  

Jones v. Stepanenko, 2016 ABQB 295, per Madam Justice K.M. Eidsvik  

I. FACTS AND ISSUES  

The Plaintiff was a 19 year­ old nursing student at the time of the accident on September 18, 2009. She was stopped at a red light and was rear­-ended by the Stepanenko vehicle (operated by Jelena and owned by Nikolajs), pushing her into the vehicle in front of her. Both vehicles were severely damaged. The Plaintiff did not recall the impact and was not in immediate pain. She declined treatment by EMS, stating she was worried about cost. Her headache started that night and she saw her doctor and physio the next day, continuing with physio and massage therapy treatments into 2016.

One of the issues at trial was whether or not the Plaintiff’s injuries were minor according to the Minor Injury Regulation. The Defendants initially claimed it was but amended their argument after the trial evidence was closed and conceded that the cap did not apply.

Another issue was whether the Plaintiff’s fibromyalgia was caused by the accident. Again, the Defendants initially argued that the Plaintiff had recovered from her injuries after a short period of time and that her fibromyalgia was not caused by the collision. They amended this argument at the close of trial and accepted that the Plaintiff was suffering from fibromyalgia and chronic pain caused by the accident but argued her award should be in the range of the less serious chronic pain cases.

II. HELD: For the Plaintiff; $282,683.65 awarded in damages plus pre­-judgment interest

1. Were the Plaintiff’s injuries minor under the Minor Injury Regulation?

(a) The Defence IMEs claimed they were.

(i) The report of Dr. John Bauman (Calgary orthopedic surgeon) indicated that she had “no evidence of ongoing injury.”
(ii) Dr. Myron Stelmaschuk (an M.D. and Certified Medical Examiner) concluded that she suffered from a minor injury and that she had no serious impairment or disability.
(iii) Dr. Anthony Russell (Edmonton rheumatologist) noted that the Plaintiff might have had a WAD II type injury but it had settled by March 2010 and would be classified as minor in terms of the Regulation.

(b) On cross-­examination each of the defence IMEs were largely discredited.

(i) Dr. Bauman clarified his “no injury” conclusion meant no objective orthopedic injury and agreed the Plaintiff could still have been suffering from pain. The Plaintiff’s Section B benefits had been cut off as a result of Dr. Bauman’s report and Justice Eidsvik stated he had “forgotten his audience.”
(ii) Dr. Stelmaschuk admitted that his diagnosis of a minor injury was based on a medical model and not the definition in the Regulation. He stated that he had never found someone to suffer a “serious impairment” and that the legislation has not changed how he does certified medical examinations. On cross-­examination Dr. Stelmaschuk agreed the Plaintiff was suffering from chronic pain (symptoms had continued past 6 months) and that fibromyalgia is not a minor injury. Justice Eidsvik noted that it is not 
appropriate to provide an opinion in a legal setting without relying on definitions and tests set out in the legislation.
(iii) Dr. Russell conceded that the Plaintiff’s injuries had not settled in 2010 and he was not sure why he had thought they had.

(c) Justice Eidsvik agreed that the Plaintiff was still suffering from symptoms in 2010 (therefore making them chronic and outside the cap), accepting the Plaintiff’s family doctor and physio evidence and rejecting the defence experts’ evidence.

2. Did the Plaintiff have fibromyalgia and was it caused by the accident?

(a) Plaintiff IMEs:

(i) Dr. Esmail diagnosed her with a post­traumatic sprain/strain injury and micro damage of the spine (not able to be seen on diagnostic imaging tests) in 2011.
(ii) In 2012 Dr. Apel diagnosed the Plaintiff with fibromyalgia and suggested it can be caused in three ways: by trauma, due to disease (such as MS), or onset with no known cause. In order to determine if it is caused by trauma Dr. Apel indicated pre­-existing red flags must be ruled out; she relied on the Plaintiff’s family doctor’s treatment notes and determine there was no pre-­existing condition and that the fibromyalgia and myofascial pain were caused by the accident.
(iii) In a follow-­up report in 2013 Dr. Esmail noted the Plaintiff’s condition was chronic and would persist. He also explained that fibromyalgia is not a diagnosis used by orthopaedic surgeons but that myofascial pain and fibromyalgia are similar and that patients can have a combination of both.

(b) For the defence, Dr. Russell’s report noted the Plaintiff was tender in fibromyalgia tender points and agreed with the diagnosis of fibromyalgia. However, he stated that fibromyalgia could not be caused by trauma and that she likely had undiagnosed fibromyalgia at the time of the accident. He suggested that the Plaintiff’s complaints of fatigue in 2005 were an indication of fibromyalgia.

(i) This portion of Dr. Russell’s opinion was also compromised on cross-­examination. Based on the explanation the Plaintiff and her family doctor gave with regard to the fatigue issues in 2005 (a teenager staying up later on her phone and being diagnosed with ADD) there was little to suggest pre­-existing fibromyalgia. He agreed that it is a widely held belief in his field that fibromyalgia can be causally linked to trauma, but it is not a belief he holds. However, he provided an example of a patient that had developed fibromyalgia after a motor vehicle accident, but put more stress on the intervening event of PTSD for the development of fibromyalgia. He felt there may have been intervening events in the Plaintiff’s situation that contributed to her developing fibromyalgia, such as stress and sleep deprivation. Dr. Russell conceded that even if the Plaintiff’s fibromyalgia was a pre-existing condition or there were intervening events, the Plaintiff would not have been suffering symptoms without the accident.

(c) Justice Eidsvik accepted Dr. Esmail’s and Dr. Apel’s evidence that the Plaintiff was suffering from fibromyalgia and that it was caused by the accident. She rejected Dr. Russell’s opinion and said it was unfortunate that it took cross-­examination for his concession that the Plaintiff would not have been symptomatic without the accident.

III. COMMENTARY:

Based on Justice Eidsvik’s comments with respect to Dr. Stelmaschuk’s evidence, it is important that medical experts, particularly Certified Examiners, are specifically commenting on the legally relevant tests in addition to their medical findings and opinions in order to properly introduce this evidence at trial. Justice Eidsvik’s overt acceptance of Dr. Apel’s evidence over Dr. Russell’s is essentially an endorsement that fibromyalgia is, or may be, causally linked to trauma.