Kerich v Victoria Trail Physiotherapy Ltd, 2017 ABQB 471

Court of Queen’s Bench of Alberta Citation: Kerich v Victoria Trail Physiotherapy Ltd, 2017 ABQB 471 Date: 20170726 Docket: 1203 11149 Registry: Edmonton Between: Peter Kerich and Peter Kerich Welding Ltd Plaintiffs - and - Victoria Trail Physiotherapy Ltd and the Workers' Compensation Board Defendants _______________________________________________________ Reasons for Decision of W.S. Schlosser , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] Both Defendants apply for

Summary Dismissal of the Plaintiff’s claim. Their applications focus on causation, though the Workers’ Compensation Board (“WCB”) also relies on the statutory immunity under

section 17 of the Workers’ Compensation Act . These applications raise issues such as the proper form of expert evidence under Rule 6.11(1)(a), the use to which questioning transcripts can be put, and the evidentiary burdens in a

Summary Dismissal application. [ 2 ] If there is a moral to this story, it is that there isn’t a lower standard for evidence in a

Summary Judgment application than at trial. When the evidence is less than satisfactory, the contest is between whether there is a sufficient record before the Court and the primary (legal) and secondary (evidentiary) burdens. Authorities By the Parties: 1. Alberta Rules of Court, Alta Reg 124/2010, Rules 7.3, 5.31 ; 2. Ernst v EnCana Corp , 2014 ABCA 285 , 2014 CarswellAlta 1588; 3. Knight v Imperial Tobacco Canada Ltd , [2011] 3 SCR 45, 2011 SCC 42 , 2011 Carswell BC 1986; 4. Tottrup v Alberta (Minister of Environment) , 2000 ABCA 121 , 2000 CarswellAlta 365; 5. Donaldson v Farrell , 2011 ABQB 11 ;

6. WP v Alberta, 2014 ABCA 404; 7. 776826 Alberta Ltd v Ostrowercha, 2015 ABCA 49; 8. Hryniak v Mauldin, 2014 SCC 7; 9. Windsor Canadian Pacific Railway Ltd, 2014 ABCA 108; 10. 1214777 Alberta Ltd v 480955 Alberta Ltd, 2014 ABQB 301; 11. Emmons v Alberta (Workers’ Compensation Board), 2010 ABCA 393; 12. Rhodes v McKee Harvester (Alberta) Ltd, [1981] AJ No 522 (Alta CA); 13. Doane v Groenenboom, 1985 Carswell Alta 640; 14. Workers' Compensation Act, RSA 2000, c W-15 15. Yuill v Alberta (Workers’ Compensation Appeals Commission), 2016 ABQB 369; 16.

Pasiechnyk v Saskatchewan (Workers’ Compensation Board), (SCC), 1997 CarswellSask 401; 17. Wilson v Medicine Hat (City), 2000 ABCA 247; 18. Hovsepian v Westfair Foods Ltd, 2001 ABQB 700; 19. Arabi v Alberta, 2014 ABQB 295; 20. 2017-0168 (Re), (AB WCAC); 21. Health Professions Act, RSA 2000, c H-7 22. Maxwell v Wal-Mar, 2014 ABCA 383; 23. Grivicic v Alberta Health Services (Tom Baker Cancer Clinic), 2015 ABQB 811; 24. ter Neuzen v Korn, (SCC), [1995] 3 SCR 674; 25. Kim v Choi, 2012 ONSC 6627; 26. Clements v Clements, 2012 SCC 3; 27. Stoddard v Montague, 2006 ABCA 109; 28. Sima v Hui, 2008 ABQB 104; 29.

Kravontka v Capital Region Health Authority, 2002 ABQB 652; 30. McNeil v Easterbrook, [2004] OJ No 3976; 31. Isai v Chen, 2011 ONSC 3643; 32. Galalae v Kingston (Police Services Board), 2013 ONSC 5153; 33. Rai v 1294477 Alberta Ltd (Vinyl Retro Dance Lounge), 2015 ABQB 349. By the Court: 1. Talisman Energy Inc v Questerre Energy Corporation, 2017 ABCA 218. Facts [3] The Plaintiff was (then) a 70 year-old welder who injured his rotator cuff on the job.

The WCB referred him tophysiotherapy after surgery. [4] The Plaintiff says that a physiotherapist at Victoria Trail Physiotherapy raised his injured arm in the air to shoulder height, orhigher, and waved it back and forth; re-tearing his rotator cuff and substantially prolonging his recovery. That was about seven yearsago. [5] The Plaintiff also says that his caseworker at the WCB urged the physiotherapist to engage in, vigorous, or heavyphysiotherapy, in breach of the doctor’s orders, so that the Plaintiff’s return to work could be accelerated. [6] The single fact not in dispute is that Mr.

Kerich re-tore his rotator cuff. The question is: “How?”

Analysis The Plaintiff [ 7 ] The Plaintiff pleaded: 17. On or about August 12, 2010, Mr. Kerich attended for a physiotherapy treatment at Victoria Trail Physiotherapy Ltd. Mr. Mehta lifted Mr. Kerich’s right arm above his shoulder level and waved it back and forth. 18. During this manipulation Mr.

Kerich felt a hot pain across his shoulders and it was ultimately determined that the rotator cuff repair had been re-torn. [ 8 ] The Statement of Claim does not directly allege causation but, instead juxtaposes two events (the manipulation and the diagnosis) and invites the Court to infer it. [ 9 ] Paragraph 29 of the Statement of Claim alleges: 29. The Plaintiff’s pain and permanent impairment were caused by the negligence of the Defendants in failing to follow the treatment protocol set out by Mr.

Kerich’s surgeon or alternatively, by their intentional refusal to follow the treatment protocol, which resulted in the injury to the Plaintiff. [ 10 ] It goes without saying that the Court has no expertise in the mechanics or causes of rotator cuff injuries and must rely on expert opinion evidence on the question of causation. Expert opinion evidence is admissible at a

Summary Judgment application under rule 6.11(1)(a). [ 11 ] The allegation about raising Mr. Kerich’s arm up and waving it about was just an allegation until after the WCB’s expert report (and about the same time as the Victoria Trail expert report). Then the Plaintiff swore an affidavit turning the allegation in the Statement of Claim into evidence: On August 12, 2010 I attended at Vitoria Trail Physiotherapy for a treatment. While Mr. Mehta was examining me he lifted by right arm and waved it back and forth in the air. When he did that I felt a hot pain across my shoulder.

I said what are you doing I am supposed to be receiving light therapy. Mr. Mehta said the Workers’ Compensation Board told them they could not give me light therapy because they wanted me back to work by November 1. [ 12 ] The Plaintiff gives us no expert evidence about causation. Instead, he adopted a risky (almost suicidal) tactic. He read in the following excerpt from the examination of the physiotherapist, Mr. Mehta: 31. In Mr. Mehta’s Questioning for Discovery conducted on August 23, 2016 at page 158 Lines 6 – 12, Mr.

Mehta testified’ 6 Q Your evidence is that on August the 12 th of 2010 you 7 didn’t have anything to do with Mr. Kerich? 8 A I don’t see any reason why I would if I did not make 9 notes and if I did not provide the treatment. 10 Q And you didn’t make any – you didn’t move 11 Mr. Kerich’s limb in any – 12 A No, I did not. [Respondents’ Authorities Tab 1] [ 13 ] The Plaintiff argues that this raises a credibility issue (his own) which bars

summary disposition. [ 14 ] Mr. Kerich’s evidence, is entirely self-serving; being the only version of events that would be consistent with the liability of the Defendants. [ 15 ] His evidence is also inconsistent with the documentary evidence. The Victoria Trail Physiotherapy treatment chart records seven treatments in the crucial period: July 30, August 3, 5, 9, 12, 16 and 18 (2010). The treating physiotherapist on those visits is Sara Wilson (not Mr. Mehta). The notes do not record the event spoken of by the Plaintiff.

In fact, they show a spike in pain between July 30 and August 3 following a time when the Plaintiff ‘took the sling off for two days’. The reported pain level appears to be subsiding after August 3, or at least between August 3 and 18. [ 16 ] On this evidence, the Plaintiff’s claim appears to be factually hopeless. By that I mean there is significant doubt that the event the Plaintiff claims even occurred, let alone whether it caused the injury. And even if we were to believe the Plaintiff, he appears to have nothing more than his belief about causation, with nothing to back it up.

The striking thing about this is, that we are seven years into the lawsuit. This

Summary Judgment application was taken out last fall. The Defence expert reports date from October 2016. This application was heard in June (2017). There was no expert response by the Plaintiff in the eight months between the Defendant’s expert reports and this application.

[ 17 ] This is, of course, not a Plaintiff’s application for

Summary Judgment. It is the Defendants’ application for

Summary Dismissal. The primary legal burden remains on the Applicants and a secondary evidentiary burden only passes to the Plaintiff once the Applicants have established a prima facie evidentiary case for dismissal. Expert Affidavit Evidence [ 18 ] Expert evidence ought to be approached in this setting as it would at trial. In other words, the Court needs, at a minimum: the qualifications of the expert, (so that the Court can determine the admissibility and the scope of the opinion); the information and assumptions on which the opinion is based (sometimes put to the expert as a set of hypothetical facts that the litigant hopes will be proved); and, a

summary of the expert opinion. It is appropriate that both the substance of the expert’s opinion and the expert report itself be included. If an expert’s affidavit is tendered under 6.11(1)(a), it should conform to Form 25, at a minimum. The WCB [ 19 ] The WCB tenders the affidavit of Dr. Charleton. Dr. Charleton attaches his CV as an Exhibit; which shows that he has some experience in orthopaedics. He reviewed the Plaintiff’s file as a clinical medical consultant with the WCB. His opinion details what he concluded then . He does not swear he is impartial and says: 3

b) That Mr. Kerich’s conclusion that his right shoulder recurrent rotator cuff repair had occurred as a consequence of his physical therapy was unsupported by the documentation and medical principles involved; ... 5

a) That there was still no indication [after an April 2011 review] to support Mr. Kerich’s previous contention that his postoperative tear occurred as a consequence of physical therapy; (emphasis added) [ 20 ] The date of his affidavit is October 11, 2016. Mr. Kerich’s affidavit, presumably in response to this, was sworn October 19, 2016. [ 21 ] Dr. Charleton does refer to his file review in 2010 and 2011 but makes no mention of the detailed information and assumptions he relies on to form his opinion. His review predates Victoria Trail’s Affidavit of Records (dated February 13, 2013) and Mr.

Kerich’s sworn evidence about what he sees to have been the precipitating events; which, as mentioned, is not reflected in the other materials produced in this lawsuit. Before Mr. Kerich’s sworn evidence on this point, the basis that something happened on August 12, 2010 to cause his injury, was only an allegation in the 2012 Statement of Claim. It is not clear whether Dr. Charleton intended to convey that it is ‘medically impossible’ to re-tear a rotator cuff under physiotherapy, including when a physiotherapist raises the patient’s arm in the air and waves it around. This fundamental point is not clear.

Though Dr. Charleton was not examined on his affidavit. [ 22 ] I expect that Dr. Charleton will be qualified to give opinion evidence about the probable cause of Mr. Kerich’s rotator cuff injury. I would have liked Dr. Charleton to have met Mr. Kerich’s evidence head-on – though I acknowledge he did not have an opportunity to do so in his initial affidavit given the timing of the evidence. He was not cross-examined.

But there is no reason he could not have addressed it in a very brief follow-up affidavit sometime in the eight months preceding the application. [ 23 ] If a trier of fact were to have to choose between Mr. Kerich’s version of the cause and Dr. Charleton’s conclusion, I expect that Dr. Charleton’s version would be preferred. But Dr. Charleton’s evidence is incomplete and therefore inconclusive about causation. There is a gap in the evidence that has not been addressed. For this reason, Dr. Charleton’s opinion is not decisive. [ 24 ] The WCB also takes recourse in the Statutory Immunity: 17(1) Subject to

section 13.1, the Board has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act or the regulations and the action or decision of the Board on such matters and questions is final and conclusive, and is not open to question or review in any court.

(2) No proceedings by or before the Board shall be restrained by injunction, prohibition or other process or proceedings in any court or are removable by certiorari or otherwise into any court, nor shall any action be maintained or brought against the Board, any employee or officer of the Board or any member of the board of directors in respect of any act or decision done or made in the honest belief that it was within the jurisdiction of the Board. (emphasis added) [ 25 ] Regrettably, there is no direct evidence from Mr. Kerich’s case manager, Mr. Butkovic.

There is only the affidavit of a WCB HR person showing that Mr. Kerich’s case manager left the WCB in January 2011 (This, presumably, is meant to head off an inference from the absence of this evidence). [ 26 ] An Applicant in a

Summary Judgment application is required to have personal direct first-hand evidence (rule 13.18(3)). I note that the other evidence – especially the documentary evidence – is inconsistent with the advice alleged by Mr. Kerich or, in any sense, supportive behaviour that goes outside of the statutory protection. I acknowledge that the records are admissible per se as they were made under both an employment and a statutory obligation.

I also acknowledge that the pleadings are at least borderline deficient in terms of pleading facts that would take the WCB outside the statutory protection and in that regard are formally deficient. But there is a gap left by the absence of evidence from Mr. Kerich’s caseworker which makes the WCB’s position less than entirely satisfactory. All that is left is silence and inferences.

Victoria Trail [ 27 ] In some ways, the expert opinion affidavit from Victoria Trail is exemplary. It includes all of the things required by Form 25. [ 28 ] The Plaintiff objects to the form in which the information and assumptions appear in the report. In terms of the ‘evidence’ relied upon, the affidavit includes Victoria Trail’s production and a transcript of Mr. Mehta’s examination . Mr.

Mehta was the witness produced on behalf of Victoria Trail Physiotherapy questioned by Plaintiff’s counsel. [ 29 ] Rule 5.31 provides: 5.31(1) Subject to rule 5.29, a party may use in support of an application or proceeding or at trial as against a party adverse in interest any of the evidence of that other party in a transcript of questioning under rule 5.17 or 5.18 and any of the evidence in the answers of that other party to written questions under rule 5.28.

(2) Evidence referred to in subrule (1) is evidence only of the questioning party who uses the transcript evidence or the answers to the written questions, and is evidence only against the party who was questioned . (emphasis added) [ 30 ] The report of Victoria Trail’s expert, Dr. Lowell van Zuiden is in affidavit form. Dr. van Zuiden is an orthopaedic surgeon. He attaches his CV as Exhibit A. The materials he reviewed, includes the pleadings, production and, as noted, the Questioning of Mr. Mehta. These are all included as exhibits.

Dr. van Zuiden’s expert report and the substance of this opinion were also included in his affidavit. [ 31 ] In my view, the rule 5.31 objection is not sustainable. The Defendant is not attempting to make use of the transcript as evidence (much less as evidence in their favour); but only in the same way that a party might put a list of hypothetical facts to an expert in the hope that these facts would be proved; supporting the expert opinion and conclusions. The party is not saying that these are the facts, or this is the evidence but, rather, if these were the facts, what would your opinion be?

In my view, this is an exemplary rather than an impermissible use of questioning transcripts. It is only one of the very few occasions in which a party can use its own questioning transcript at an application. [ 32 ] The substance of Dr. van Zuiden’s opinion is: On a review of the documentation listed in paragraph 2 of this Affidavit, and based on my experience as an Orthopaedic Surgeon, it is my opinion that on a balance of probabilities, the treatment provided by the physiotherapists at Victoria Trail to Mr. Kerich in 2010 did not cause a re-tear of Mr.

Kerich’s right rotator cuff. (emphasis added) [ 33 ] Dr. van Zuiden acknowledges the Plaintiff’s allegation that his arm was lifted over his head made in the pleading. However, the allegation was turned into evidence too late for Dr. van Zuiden to address it as such. The central problem is that Mr. Kerich’s allegation and his evidence, is inconsistent with Mr. Metha’s Questioning evidence and Victoria Trail’s documentary evidence so it is not clear how (or whether) Mr.

Kerich’s evidence figures into Dr. van Zuiden’s opinion. . [ 34 ] Despite the allegation in the Statement of Claim, Dr. van Zuiden was of the view that the Plaintiff’s removal of his arm sling pre-August 3, 2010, was the likely cause of the re-tear. Dr. van Zuiden admits that he cannot say this with certainty, however. [ 35 ] Dr. van Zuiden also notes a number of contributing factors that would have made Mr.

Kerich vulnerable to slow, perhaps incomplete recovery and a re-tear; such as age and diabetes. [ 36 ] I concede that Dr. van Zuiden’s evidence comes very close to refuting the Plaintiff’s opinion about cause but, like Dr. Charleton’s opinion, does not address it head-on. Here too it would not have been difficult to provide a brief follow-up affidavit, given the length of time between Mr. Kerich’s evidence and the dates of the application. [ 37 ]

Summary Judgment applications are life-and-death struggles for a claim or defence. The Court travels down a fairly well worn highway and engages in a six-step process, as follows:

a) presume that the best evidence from both sides is before the court;

b) ask whether a negative inference can be drawn from the absence of evidence on certain points;

c) determine whether all of the evidence is admissible;

d) ask whether there is conflict in the evidence and, if so, whether it has been resolved or whether it is self-serving;

e) examine the evidence, including its sufficiency, admissibility and reliability; and

f) grant

summary judgment if the applicant can prove all elements of the cause of action and the defendant either has no defence or is missing critical elements of proof necessary to maintain that defence. ( 1214777 Alberta Ltd) [ 38 ] In this case, the best evidence is plainly not before the Court. That it is not simply the fault of one side, inviting an inference against the malfeasor. There are gaps. Some of the evidence is self-serving. The Plaintiff’s opinion about causation is plainly not enough. But, by the same token, the Defendant’s expert evidence falls just short of being decisive. There is no direct evidence from Mr. Kerich’s

case worker with respect to the statutory immunity. The troubling thing about all of this is the ease with which all of the shortcomings could be cured. [ 39 ] In Talisman, the Court of Appeal referred to an excerpt from the Cuthbert case [2016 ABCA 46] with approval: When deciding a

summary judgment application, there are two considerations.

With respect to the process, the court must ask, “whether examination of the existing record can lead to an adjudication and disposition that is fair and just to both parties”…With respect to the substantive issues, the court must ask “whether there is any issue of merit that genuinely requires a trial or, conversely, whether the claim or defense is so compelling that the likelihood it will succeed is very high such that it should be determined summarily…An issue of merit is established when the respondent’s (non-moving party) case discloses a “genuine issue of a potentially decisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the ‘fair and just [summary] process’”. … Complex legal questions may be sufficient to deny

summary judgment. A full trial is required when the

summary record cannot be used to decide legal issues that are unsettled, complex or intertwined with facts. [ 40 ] Deficient evidence means difficult decisions. It is fundamental to the

Summary Judgment process that the Court be confident that it is coming to what is essentially an inevitable conclusion. In this case, everyone is guilty but in these circumstances it is impossible to single one out for conviction. [ 41 ] This application is not ready yet and must be dismissed because of the deficiencies on the record. Disposition [ 42 ] The applications are dismissed. Each side will bear its own costs. [ 43 ] The parties have leave to re-apply on fresh evidence if it is not appealed.

I will seize myself with this application and given my familiarity with this case, it may be brought back in Morning Chambers. Heard on the 06 th day of June, 2017. Dated at the City of Edmonton, Alberta this 26 th day of July, 2017. W.S. Schlosser M.C.Q.B.A. Appearances: Dennis Groh, Q.C. Dennis G Groh Professional Corporation for the Plaintiffs Taryn Burnett Gowling WLG (Canada) LLP for the Defendant, Victoria Trail Physiotherapy Ltd Kerry Whittaker Alberta Justice

for the Defendant, the Workers' Compensation Board