Under the Ontario Insurance Act s.267.5(5)(b), a person is eligible to receive non-pecuniary general damages from a motor vehicle accident claim only if they meet the required 'threshold' in terms of sustaining "a permanent serious impairment of an important physical, mental and psychological function".
The Act also sets out specific requirements for proving 'serious' and 'permanent' injury, which includes evidence from at least one physician. To decide whether or not a plaintiff meets the threshold, the court must address three questions that were established in the seminal Meyer v. Bright Ontario Court of Appeal decision.
Has the victim suffered an impairment of a physical, mental or psychological function?
If yes, is the function that is permanently impaired, an important one?
If yes, is the impairment of the important function serious?
Non-pecuniary damages are more difficult to measure than financial losses, since these damages relate to subjective factors such as pain and suffering and loss of enjoyment of life. Similarly, for injuries such such as chronic pain syndrome, PTSD and depression, it can be challenging for a plaintiff to prove the severity of their injury as it cannot be measured with conventional medical tests such as X-Ray equipment.
In such cases, evidence and testimony from accredited medical professionals is generally pivotal in substantiating the severity of an injured person's pain and its impact on their lives.
Case example
In the 2016 trial, Dimopoulos v. Mustafa, the court was tasked with evaluating a case where the plaintiff, Mr. Dimopoulos, reported struggling with chronic pain in the 12 years following his car accident.
As the jury was deliberating on their verdict at the conclusion of this trial, the defendant brought a 'threshold motion' to bar the plaintiff's claim for non-pecuniary damages and chiropractic expenses on the basis that his injuries failed to meet the threshold necessary to qualify for said damages.
The jury returned with a verdict in the plaintiff's favor and awarded Mr. Dimopoulos general damages of $37,000 and $30,000 for chiropractic treatments. However, the judge was still required to rule on the defendant's threshold motion, which she did, in favor of the plaintiff.
Justice Tzimas concluded that Mr. Dimopoulos satisfied the statutory requirements of the threshold and did suffer a permanent serious impairment of important physical functions. This decision was based on the plaintiff's recount of the extent of his injuries and their effect on his life, his wife's testimony, as well as the testimony of several healthcare professionals.
Prior to his accident, Mr. Dimopoulos was described as an extremely healthy and active man who fully enjoyed life. However, since the accident, he suffers from constant pain in his neck, shoulders and lower back which fluctuates but never abates; frequent headaches; and an inability to sleep through the night. The chronic pain has resulted in a complete change in his overall disposition; he has become irritable and impatient and has withdrawn from social and family activities.
Between the two medical doctors providing testimony for the plaintiff and defendant, the judge held that the plaintiff's medical expert was more thorough, convincing and professional. Dr. Wilson, the medical expert who testified on behalf of the plaintiff, was judged to qualify as an expert in orthopaedic spinal surgery, soft tissue injuries and chronic pain, including causation and treatment.
Dr. Wilson's assessment was based on a full examination of Mr. Dimopoulos that lasted over two hours. He concluded that as a result of the car accident, the plaintiff likely sustained a soft tissue injury to the cervical spine (whiplash), soft tissue injury to his lower back and left shoulder, as well as mechanical back pain. The injuries were deemed to be permanent.
In his testimony, Dr. Wilson clearly explained and demonstrated the tests he administered to detect any symptom exaggeration or deception by Mr. Dimopoulos and he concluded that the plaintiff was being completely truthful about his symptoms.
By contrast, the evidence provided by the defendant's expert witness was less credible; it was based on a ten minute examination; and he showed evidence of bias against the type of injury suffered by the plaintiff.
The judge found the testimonies of Mr. Dimopoulos, as well as his wife and Mr. Yip, a physical therapist who treated Mr. Dimopoulos, to also be credible. Like Dr. Wilson, Mr. Yip explained the measures taken to ensure a patient is not exaggerating their pain and injuries and after treating Mr. Dimopoulos and applying these measures, Mr. Yip was certain that while Mr. Dimopoulos could undertake light physical tasks, he was no longer able to perform more strenuous physical tasks necessary to his previous job as a general labourer.
With regard to Mr. Dimopoulos himself, Justice Tzimas found him credible largely because he remained consistent throughout repeated questioning, despite the defence's attempts to discredit him by rephrasing questions and by cutting off his responses to questions before he could fully explain himself.
Mr. Dimopoulos' wife was unshaken under cross-examination by the defence and impressed the court with her candid and clear testimony. The judge noted how important establishing credibility was in a case involving a soft tissue injury because it is the type of injury that, although painful and permanent, cannot be measured objectively in terms of its severity.
Justice Tzimas considered evidence from a surveillance video of Mr. Dimopoulos that was presented by the defence, and concluded that the video showed nothing that contradicted Mr. Dimopoulos' testimonies. Although complex, poorly understood and difficult to treat, chronic pain syndrome is increasingly accepted as a potentially disabling injury by the medical community.
Nevertheless, sufferers of chronic pain are often unfairly treated by suspicion and a lack of sympathy. Insurance companies, in particular, can be skeptical of injury claims for chronic pain and correspondingly, require expert corroboration to prove the magnitude of the claimant's pain and losses.
Anyone who has ever struggled with persistent pain understands that chronic pain syndrome and psychological injuries such as PTSD, anxiety and depression can be just as debilitating and sometimes even moreso, than physical injuries that can be objectively measured.
At Gluckstein Lawyers, we have helped many accident victims who suffer from chronic pain syndrome and other serious injuries obtain compensation for their loss of income, medical and rehabilitation expenses, pain and suffering, and other losses resulting from their injury.
If you or someone you love was injured in an accident, please do not hesitate to call us today to find out how we can help.
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