On January 6, 2010 a judgment was rendered concerning a plaintiff that was involved in 3 separate car accidents. You can read the judgment here. The plaintiff was awarded $25,000 for pain and. The jury was asked to assess global damages (from all three accidents) and then apportion responsibility (decide who was at fault and for what percentage). The plaintiff was not awarded any past and future wage loss.
At the end of the trial a threshold motion was brought. Our past articles explain that the threshold is a legal test set out by the Insurance Act. It is a legal test in which, at the end of a personal injury motor vehicle accident trial, lawyers ask a judge whether the plaintiff suffered a permanent and serious impairment of an important physical, mental or psychological function. This question is asked at the end of every jury trial. If the judge decided that the plaintiff did not suffer from a permanent serious impairment of an important physical, mental or psychological function, then the case is tossed.
At trial, the plaintiff testified and called his wife, his daughter, his friend of 20 years, 2 family doctors, a psychologist, 2 neurologists and a physiatrist. The balance of these physicians were treating physicians, and not expert physicians. A few expert physiatrists were hired by plaintiff counsel to render an independent medical opinion. The evidence of all of the medical witnesses was that Mr. Valdez had been left with chronic pain. Mr. Valdez suffered soft tissue injuries to his neck, back, headaches as well as numbness and tingling sensations in his right thumb and fingers. The neurologist spoke of nerve injuries in the right side and to a lesser extent to part of the left side of his neck. A lot of attention was paid to objective signs (objective meaning not what the plaintiff says himself but rather x-rays and physical diagnosis).
Judge Milanetti noted that she did not form a picture of a man with any ongoing chronic issues despite reference to a note in the family doctor’s file which indicated “chronic back pain”. That being said, Judge Malanetti found him to be a credible individual. His doctors did not doubt him and they did not lack objectivity. They came across as the professionals that they are. She did in fact find that the plaintiff did suffer from a chronic pain syndrome as a result of these motor vehicle accidents. More importantly for this article is the plaintiff’s employment status. Judge Malanetti noted that “the pieces of the puzzle I had greater difficulty with were the claims for lost wages, both past and future”. The jury was asked to compensate Mr. Valdez for past and future wage loss for the loss of the production supervisor’s job at his place of employment. He had missed the first 6 months of his job, returning fulltime on modified duties, weeks before the third accident. Upon his return he felt he was castigated by his peers and no one seemed sympathetic to his problems. He was assigned newly established night shifts at work that were easier and he was the only supervisor. The men on the floor helped him more frequently. He maintained his work until he was laid off indefinitely in March 2005 and was provided with 13 weeks severance. Judge Malanetti did not find the loss of his job presented as a result of the accidents. He tried to find work in his field and he did obtain fulltime work as a long-haul truck driver which he maintained to date.
Judge Malanetti found that it was clear that he was able to find fulltime employment which he conceded was more physical in nature than the work he had done before his car accidents. The problem was that a considerable amount of his time was spent driving in a truck, something that his family doctor did not think was a good choice for someone with a bad neck. The pattern of consistent fulltime work may well mitigate against the threshold claim, but Judge Malanetti noted that it was clear to her that his quality of life had been significantly affected by his injuries. He continued to work but at the end of the day he was able to do less. His family corroborated this evidence and as a result of his injuries he did have difficulties with his activities of daily living. In addition, Mr. Valdez and his wife were also operating a part-time cleaning company, acting as subcontractors that clean the courthouse and the MTO offices for 4 hours per day from Monday to Friday. After the accidents Mrs. Valdez simply could not keep up with business on her own. Judge Malanetti detailed Sections 4 through 4.3 of the Ontario Regulation 381/08 (Bill 98) which defined what a permanent serious impairment of an important physical, mental or psychological function was in precise terms. She noted that Mr. Valdez managed to return to his job but had lost the operation of his cleaning business he and his wife started up. This was a business that he had hoped to grow.
As a result of this it was clear to her that part of Mr. Valdez’s usual and regular employment at the time of the accident was substantially interfered with as a result of his accident related injuries. She accepted that while he has managed to maintain his fulltime employment, his activities of daily living and certainly his enjoyment of life had also been severely compromised. He had given up cooking, photography, and his social life was seriously affected. He used to be active in sports with his son, he no longer did grocery shopping with his wife and he became irritable, impatient and short tempered - that was nonexistent prior to this accident. In short, she accepted that the plaintiff’s pain seriously affected his enjoyment of life, ability to socialize with others… enjoy his children and engage in recreational pursuits. The plaintiff passed the threshold and the jury awarded him $25,000 in pain and suffering.
This is not legal advice. It is a case comment on the Clark and Valdez matter at 2010 CarswellOnt 30.
If you have any questions concerning injures that you may have suffered in a car accident, please do not hesitate to call Haber & Associates at 905-639-8894 or use our contact form and someone will get back to you within 2 hours.
Matt Lalande
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