How may Threshold Law affect my eligibility to make a Claim?

If you are injured in a motor vehicle accident resulting from the negligence of another driver, you are eligible to file a civil suit for damages.  Damages may include pecuniary damages (i.e. any financial losses you incurred as a result of your injury, such as loss of income) as well as non-pecuniary damages (for pain and suffering and loss of enjoyment in life).  Whether or not you claim for, and are awarded pecuniary damages for your financial losses, to recover non-pecuniary damages from the negligent party, you must satisfy the statutory threshold defined in section 267.5 of the Insurance Act of Ontario.

The Act states that in order to be eligible for non-pecuniary damages, a plaintiff must prove that they sustained injuries that are a permanent serious disfigurement or impairment of an important physical, mental or psychological function.  Essentially, the severity of one’s injuries must satisfy a definition of ‘serious’, ‘permanent’ and ‘important’.

In order to determine whether a plaintiff’s injuries meet the threshold, the court considers the evidence of medical practitioners who assessed the plaintiff, the plaintiff’s testimony, and the testimony of other witnesses (such as family and friends). Accepting that the plaintiff’s injuries are serious, the judge must also be convinced that they are not likely to significantly improve. Two recent cases can be examined for an understanding of how threshold decisions are made.

In Dahrouj v. Aduvala, 2012, a plaintiff claimed damages for chronic pain syndrome that she alleges developed after she was injured in a motor vehicle accident.  The injured woman complained of multiple symptoms, including pain in her neck, back and leg, headaches and difficulty sleeping. However, the judge in this case concluded that she failed to prove that her injuries met the threshold of a permanent and serious impairment of her physical function, for several reasons.  The plaintiff’s testimony was not credible; she consulted with her physician complaining of similar symptoms even before her accident; and there was surveillance video showing that she participated in activities that she testified she was unable to do after the accident. Also, the orthopaedic surgeon who testified for the plaintiff only assessed her for 45 minutes and his conclusions were largely based on the say-so of the plaintiff, whereas the doctor testifying for the defendant performed a more in depth assessment of the plaintiff and reported that she did not display any of her alleged symptoms during his examination.

By contrast, in Ivens v. Lesperance, 2012, the judge was convinced that a young man’s knee condition, resulting from a knee fracture sustained in a motorcycle accident, would likely not improve and therefore met the threshold of a serious and permanent impairment.  Several friends and family members testified that the plaintiff’s behaviour greatly changed as a result of his injuries and he could no longer participate in the active life he previously enjoyed.  His injury also diminished his ability to function at work. Multiple medical practitioners, including doctors, occupational therapists and a rehabilitation councillor gave testimony that the young man suffered a serious and permanent impairment of an important function.   In addition to pecuniary damages of $111,000 for loss of income (past and future), having met the threshold, the plaintiff was eligible for non-pecuniary damages for pain and suffering.

Credible medical opinion based on a thorough assessment weighs heavily in determining whether a plaintiff’s injury is of a serious and permanent nature, as only a medical practitioner can make a considered judgement on whether an injury is likely to improve.  That is not to say that other credible witness testimony, including that of the plaintiff, is not also important.   However, a large number of injury claims rest on the relative credibility and expertise of the medical practitioners speaking on behalf of the plaintiff versus those of the dependant.

At Injury Lawyers of Ontario, our experienced team of motor vehicle accident lawyers have developed relationships with a broad spectrum of respected medical practitioners in the communities where we practice.  These connections facilitate getting the proper treatment for our clients, and are also vital components in developing strong medical evidence to support an injury claim.