In
the recent 2009 car accident case of del Rio v. Lawrence the trial
Judge was asked to decide whether or not the Plaintiff's chronic pain
symptoms crossed the Bill 59 threshold. There was a joint agreement on
the chronic pain being an impairment.
It was noted that the accident had not resulted in a substantial
inference with the Plaintiff's ability to continue in her regular
employment in Florida, particularly since her employer was prepared to
accommodate her, without penalty and was prepared to accomodate her
occasional absences from work.
The trial judge noted that n the wake of the Court of Appeal decision
in May v. Casola and the more recent decisions of that court in Jones
v. Mazzola (2005), 78 O.R. (3d) 772 (Ont. C.A.) and Brak v. Walsh, 2008
ONCA 221 (Ont. C.A.), it is now beyond dispute that the motion court is
obliged to consider whether or not the continuing pain seriously
affects a plaintiff's
1) enjoyment of life, including his or her ability to socialize with others,
2) have intimate relations,
3) enjoy his or her children, or;
4) engage in recreational pursuits.
This analysis must be undertaken even if the motion judge concludes
that the plaintiff can otherwise 'function' at work and can take care
of him or herself.
The trial's judge took into account the plaintiff's life before the
accident, immediately following it and presently, supported by evidence
from friends and family, including the proposition that her usual
activities of daily pre-accident routine was not nearly as active, for
example, as that of the plaintiff in May v. Casola, [1998] O.J. No.
2475 (Ont. C.A.). He accepted the plaintiff's evidence that, while she
can work and attend to her personal needs and grooming, she more often
than not returns home from work effectively unable to do anything but
lie down as a result of the pain caused by her CPS.
The judge concluded that Ms. Del Rio's condition substantially
interfered with her quality of life and continues to do so. If that
were not sufficient, I am of the view that the evidence of the Defence
Expert Dr. Soric put this issue beyond doubt.
In her cross-examination, after noting that the plaintiff was still 'functional', Dr. Soric responded to counsel as follows:
Q. And would you agree with me Doctor, that symptoms like neck pain,
intermittent occipital headaches, pain in the left shoulder, low back
pain, depression, lack of sleep would affect this woman's quality of
life?
A. Definitely.
Turning to the issue of whether the issue was "permanent" the Defence
tried to take the position that the plaintiff has failed to prove this
constituent element on a balance of probabilities since there was no
evidence from a psychiatrist/psychologist or physiatrist that her
condition would continue indefinitely. The trial judge respectfully
suggested that an orthopedic surgeon well versed in the diagnosis and
treatment of such a condition is well equipped to render an opinion on
permanency.
The trial judge concluded that the Plaintiff, despite continuing to work, led enough evidence to cross the threshold.
Matt Lalande