Threshold Decision on Impairments Caused by Car Accident
February 16, 2010, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
The Ontario court recently dealt with a threshold motion in a car accident personal injury matter (Valdez v Clarke). After a three week jury trial the judge was presented with a threshold motion to determine whether the plaintiff was suffering from a permanent and serious impairment of an important physical or psychological function. There is a lot more to the threshold motion but the primary purpose is for the judge in a jury trial to make a determination whether the plaintiff's injuries meet (exceed) this threshold definition. The jury makes a separate determination as to the extent of the injuries suffered by the plaintiff and the amount to be awarded under the various heads of damages - general damages, past and future income loss, future medical expenses and housekeeping and home maintenance expenses.
In Valdez, the jury awarded the plaintiff $25,000.00 for general damages fro pain and suffering as a result of 3 accidents. The jury awarded zero for past and future wage loss. As a result of the jury award and the $30,000.00 deductible, the plaintiff was barred from any financial recovery. Despite this result, the parties still sought a determination on a threshold motion. This motion has caused a dilemma for some judges who are concerned about coming to a decision on a threshold motion that differs with that of the jury decision. As the judge in Valdez noted:
"It would be simple to merely allow the threshold motion based on the jury’s verdict. As is always the case with a threshold determination, the judge is in the odd spot of potentially coming to a different conclusion than did the jury on the respective fact finding quests. This situation has persisted since the threshold came into play. Different judges have taken different positions on whether or not they are bound by the jury’s decision."
In this case the plaintiff suffered from a chronic pain syndrome as a result of 3 motor vehicle accidents. The evidence showed that the plaintiff's quality of life was significantly affected by his injuries. This position was supported by the medical evidence and experts for the plaintiff at trial. As a result of the chronic pain syndrome, the plaintiff also lost a part-time cleaning business that he had at the time of the accident.
The plaintiff's medical records showed that he had an old history of sciatica for which he had received injections. He also had visits to doctors and chiropractors for low back pain. However, the overall picture of the plaintiff was not one of a person with ongoing chronic issues before the car accidents. The trial judge found the plaintiff to be a credible person. Interestingly, the judge noted that while his treating doctors did not doubt the plaintff, the judge was of the view that patients are often given the benefit of the doubt by their treating medical professionals. That being said, the judge did not find that the doctors lacked objecivity. The judge did note that one test conducted on the plaintiff included a validity scale.
Although the judge found the plaintiff to be credible, the judge inferred from the jury award that they did not accept the plaintiff's version of events or did not have much sympathy for the plaintiff. They may have not found the plaintiff to be credible but this is speculation. The plaintiff's employment records and medical records were important in supporting the plaintiff's evidence regarding the impact of the injuries.
The judge found that the plaintiff's pain seriously affected his enjoyment of life, ability to socialize with others, enjoy his children and engage in recreational pursuits. When considering the plaintiff's loss of his secondary employment and his diminished level of social and recreational activity, he met the threshold for permanent serious impairment.
With respect to the income loss claim, the judge found that the plaintiff was laid off and although he could not find employment, it was not due to the accidents but rather the result of the plaintiff's low seniority, economic down turn and perhaps the Canadian dollar.
|Posted under Personal Injury, Car Accidents, Chronic Pain, Pain and Suffering
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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.