In order to recover damages such as wage loss and/or pain and suffering, individuals injured in Kingston, Ottawa and Whitby car accidents may file tort claims against the careless drivers who caused the accidents. See Ontario Car-Truck Accident Law – Your Legal Rights After Being Injured in an Accident.
In order to recover pain and suffering, the injuries must meet statutory standards of Ontario’s Insurance Act which was amended in 2003 by Bill 198. In addition, plaintiff must present credible medical proof of a permanent injury. Section 4.2(1) 3 of the amendment provides:
For the impairment to be considered permanent, the impairment must,
- have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
- continue to meet the criteria in paragraph 1, and
- be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
Ontario Courts Apply the “Threshold Test” Defined by Bill 198
One of the more recent cases that dealt with Bill 198’s “threshold test” is Iannarella v. Corbett et al., which was decided in 2012. In this Ontario car accident case, the injured plaintiff argued that he was completely disabled after the accident and was unable to work as a supervisor and forklift operator in a car parts manufacturing company. He had a pre-existing shoulder condition, which was asymptomatic at the time of the accident. As a result of the accident, the plaintiff injured his neck and left shoulder. His neck injuries resolved; however, he had left shoulder surgery 8 months prior to trial. He continued to complain of chronic shoulder pain and was diagnosed with chronic pain syndrome.
However, the Court determined that plaintiff did not meet the “threshold test” because his injuries did not permanently impair an important physical function because his injuries were likely treatable. Medical evidence showed that plaintiff’s shoulder was likely to continue improving up to 2 years after the surgery. Further, medical evidence showed that plaintiff had a good range of motion and resolution of pain in his shoulder after the surgery.
The Court also found that plaintiff was not a credible witness and that he over exaggerated his limitations and ailments from the car accident. Surveillance videos of plaintiff showed normal left arm and shoulder use. Therefore, despite finding that an aggravation of the plaintiff’s shoulder injury was caused by the motor vehicle accident, the Court held that it was unlikely to be the cause of his inability to work.
Importance of Medical Proof in a Car Accident Tort Claim
Therefore, it is important to have credible medical evidence to establish permanency and seriousness of an injury. A victim’s testimony that he/she is disabled from the permanent injuries is not enough to satisfy the “threshold test.”
Determining whether you have permanent, serious injuries from a car accident requires medical proof and the help of lawyers who understand the legal threshold analysis. The personal injury lawyers at Bergeron Clifford have 40 years of experience handling car and truck accident cases in Kingston, Ottawa and Whitby. If you would like to discuss your accident/injury, please do not hesitate to call us at 1-866-384-5886.