In the case of Guerrero v. Fukuda, Justice Little detemined that the Plaintiff met the threshold and further commented on pain being subjective and that calling a defence expert to say there is no obejctive findings is not acceptable.  

1.         What is “The Threshold”?

In you have been in a car accident Section 267.5(5) of the Insurance Act R.S.O. 1990, c.1.8 (“the Insurance Act”) relieves defendants from liability for pain and suffering damages unless the plaintiff has sustained permanent, serious impairment of an important physical, mental or psychological function.

Justice Little noted in the Guerrero case that whiplash may well be considered a permanent serious impairment, to different degrees, but the root cause of whiplash is a physical one emanating from soft tissue, physical injury to the neck and shoulder.

Justice Little noted that “we have transcended the era when whiplash, due to the fact that it is often without objective findings, was equated with faking.”

Further, a whole specialty in medicine now exists dealing with physical medicine and rehabilitation.  This is sometimes referred to as physiatry.  Experts in this field are relied upon by litigants often.  They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.

The most important comments in this case is that pain, and its degree of severity, are subjective and can exist without any objective finding.  Calling an expert to say that no objective finding equals no pain is on longer acceptable.

That same expert will often treat the pain that exists even though it is without objective findings. 

2. When does a Judge determine whether or not you have suffered a permanent serious impairment?

The Insurance Act provides two ways: a pretrial motion on consent or a subsequent determination, by the trial judge, of the threshold issue.

Usually the threshold issue is then argued in the absence of the jury, often while they are deliberating.  The problem is that this can easily result in conflicting decisions as effectively both judge and jury are separately determining the existence and severity of the alleged injuries.

The trial judge may well find that the threshold “was not met” and then be confronted with a substantial jury award which would indicate that the jury believed otherwise.

Justice Little suspected that in many cases this leads to the judge awaiting the verdict of the jury before rendering a decision on the threshold issue and thereby being unduly influenced by the jury findings.

Perhaps the threshold issue should be decided by the judge before the jury is permitted to retire to consider its answers to the questions.  This could resolve the issue of the non-pecuniary loss and limit the questions to be answered by the jury to pecuniary damages.

This, however, Justice Little noted would probably defeat the purpose of having a jury at all, as most often I suspect the purpose of selecting a jury relates directly to the assessment of general damages.

3. Evidence in the Guerrero Case

The Plaintiff

The plaintiff Ms. Montero did sustain a whiplash injury.  Justice Little’s observation of her is that she is industrious, honest, perhaps understated and naïve.  She has placed complete faith in her family doctor, Dr. Arcia-Bravo and was not even aware at the time of trial that a “headache specialist” exists so that she could be referred to such specialist.

He noted that her whiplash injury is genuine and has existed since the accident.  It has gone on to leave her unable to work full-time, to be in constant pain in the upper and lower back at least, and in intermittent pain in most other parts of her body.

Further, he noted that she has generally followed the recommended treatment and taken her medication.  There has been no long term relief.  Her efforts in seeking employment and in fact working, even taking a heavy truck driving course, are commendable.  However, she, at best, can only perform part-time work as she did at Cora’s Restaurant and as she continues to do at UWO.  She must do so with constant pain and serious lifestyle restrictions. She received a physical injury to her neck in the accident and injured or exacerbated her low back pain which injuries have detrimentally altered, to a substantial degree, her ability to work and her enjoyment of life.

4. Conclusion of this case

Justice Little noted that the injury was permanent. It has existed since the accident.  It will exist into at least the foreseeable future, if not for her lifetime.

The next issue was then – was the impairment serious?  (Or did the Impairment Substantially Interfere With Most of Ms. Montero’s Usual Activities of Daily Living Considering Her Age?)

Justice Little noted that she is unable to work on a fulltime basis.  She is unable to work hard, even on a part-time basis with accommodation.  Her pain impacts negatively upon her ability to function such that it is a substantial interference with her usual employment in jobs requiring almost any physical activity.  Her impairment causes pain and substantially interferes with both her employment and all activities of her daily life

The third issue was whether it was an Important Physical, Mental or Psychological Function that is Impaired?

The function or functions that are impaired are threefold.  The first is physical damage to the neck and shoulder in the form of a common whiplash injury.  Her low back pain is also directly related to the accident, in my view, even if the accident only substantially accelerated an existing condition.

The physical function has also, no doubt, gone on to cause radiation of pain and limitation of use of both arms and legs, more so on the right side than the left.  Such a limitation may not be in the form of mobility such as neck turning, leg raising, or arm raising on one single occasion.  She can apparently do that with pain.  Doing it on a repeated basis, without incurring serious pain, is a restriction that impacts negatively on her lifestyle.  Her headaches are real.

Her physical functions have no doubt gone on to be combined with psychological functions as well as perhaps even a mental function to some degree.

Her evidence is supported by that of her family doctor.  Her injury meets the threshold.  The motion is dismissed.

5. Notes

The major issues in this case was concerning the expert called to testify by the defence to say that

• he found no evidence of restriction;

• he found no genuine limitation of movement;

• he noted no tenderness indicated on palpation;

• he noted “no pain behaviour”;

• he attributed it to a pre-existing condition;

• He noted that while the plaintiff had some pre-existing arthritic condition and pain, her present symptoms are not in any way connected to the injuries sustained by her in the accident which was admittedly caused by the defendant driver.

• The defendant expert physiatrist found no objective finding for her pain

Justice Little noted in this case that:

• pain, and its degree of severity, are subjective;

• pain can exist without any objective finding;

• calling an expert to say that no objective finding equals no pain is not acceptable.

Matt Lalande