In this threshold ruling the judge determines the plaintiff does not meet the threshold.
January 29, 2015, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
A recent personal injury case which was settled in favour of the plaintiff in a jury trial was challenged by the defendant on the basis that plaintiff had not met the threshold for permanent and serious impairment of physical, mental of psychological factors.
In this case the 63 year old plaintiff had been in a car accident. She did not require the assistance of emergency personnel, nor did she seek medical care for three days following the accident. At that time she complained of a sore arm and hand, a stiff neck, intermittent headaches, sore knee and sore cervical spine. She missed one day of work after the accident, then a week of work three months later.
She began physiotherapy and after a few moths reported only shoulder and neck pain with no back or hip pain. Her Disability Certificate identified bilateral shoulder pain, cervical spine pain and elbow pain.
Her primary healthcare team took careful and complete notes over the next years tracking the plaintiff’s progress and referred her to an orthopedic surgeon for the shoulder pain. The surgeon noted that physiotherapy and anti-inflammatory medication had significantly improved all painful areas but the left shoulder.
Two years following the accident the plaintiff requested her hours of work be reduced due to the accident. Some minor accommodations had already been made at work for her at her request. Shortly after the reduction of work hours the plaintiff quit her job citing the accident injuries as the cause. At trial the plaintiff relied on the evidence of one medical expert to provide evidence relating to the threshold as required by the Regulation. His opinions were based on a one hour appointment and her history that she gave him. In addition to the shoulder pain she advised him that she was suffering from back and leg pain.
The physician is a qualified as an expert in the field of orthopedic surgery, not chronic pain. The expert dismissed the evidence of other medical practitioners who had seen the plaintiff and recorded a complete medical history of the patient over years post-accident.
After weighing all of the testimony the Judge determined that the plaintiff had not engaged an expert with the correct qualifications, and that the plaintiff’s behavior and her own testimony undermined her evidence and that of her expert witness. The Judge ruled that the plaintiff had not met the threshold as her evidence did not satisfy the requirements of proving a permanent and serious impairment physical, mental or psychological function.
|Posted under Personal Injury, Car Accidents, Chronic Pain, Pain and Suffering, Physical Therapy
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.
The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.