This was a successful appeal from a trial decision in which the trial judge’s standard was deemed too high in concluding that a “permanent serious impairment” had not been met.
This article will provide a brief overview of the well-known Ontario Court of Appeal decision dealing with the issue of whether a “permanent serious impairment of an important physical, mental or psychological function” had been met. This decision has been referenced several times. The principle arising out of this decision is that “even where the plaintiff resumes their pre-accident employment but continues to experience pain, the impairment can be serious”.
The noted decision is Brak v. Walsh, 2008 ONCA 221 (CanLII). The summary is noted:
The plaintiff suffered a low back injury as a result of a motor vehicle accident. The defendant brought a motion at trial for a finding that the plaintiff did not meet the threshold in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8. The trial judge found that the plaintiff did not suffer a permanent impairment, as there was evidence that her pain would diminish with time if she followed an exercise regime, and that the impairment was not serious, as the plaintiff was able to resume almost all of her domestic duties and to hold gainful employment. The motion was granted. The plaintiff appealed.
The Court of Appeal allowed the appeal:
The trial judge erred in finding that the impairment was not permanent. There was no evidence that the plaintiff’s pain would end. Neither the defence expert nor the plaintiff’s expert offered a date by which she would be pain-free, assuming she embarked on a reasonable exercise and weight-loss program. The trial judge’s focus was too narrow in finding that the impairment was not serious. The requirement that the impairment be “serious” may be satisfied even though the plaintiff resumes the activities of employment and household responsibilities. It must also be considered whether the continuing pain affects the enjoyment and quality of life.
We will briefly review this decision and review the law in British Columbia as a comparison.
A take away from Brak v. Walsh is that “even where the plaintiff resumes their pre-accident employment but continues to experience pain, the impairment can be serious.” Further, it provides a tip of how a case should be managed at the outset as it relates to management of the client’s treatment plan.
Although the trial decision was reversed, it is important to note some of the comments that provide insight on management of a client’s claim. Here are some of those comments:
The trial judge based his conclusion that there was no permanent impairment squarely on the evidence of Dr. Clifford, the appellant’s expert witness. He stated his belief that if the appellant followed Dr. Clifford’s advice on exercise, the pain she was experiencing would “clear up with time”.
He also noted the evidence of the respondent’s expert, Dr. Heitzner that “her pain symptoms would diminish with time if she followed his recommendation on a regular exercise program”
Diligence in client management as it relates to your client’s treatment plan is always recommended. However, the fact remains that this is an area that may be overlooked by a legal team. Often times, we trust that the client is complying with their treating physician’s recommendations and attending treatment. Unfortunately, clients do not always comply. There are a number of reasons why a client might not be complying with their treatment plan and the legal team should be on top of these matters.
Under the Minor Injury Regulations in BC, It will be important to follow up with your client and ensure that treatment is accessible and most importantly that your client is attending treatment. Failure to comply, may result in successful arguments by the defence that the injury is minor. Let’s review the BC provisions.
Under the Minor Injury Regulations, Section 2 Definitions and Interpretations of “serious impairment” it states in part that an injury is deemed to be a minor injury if:
“the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.”
This is an important provision that must be highlighted for injured individuals. Although there is an exception to this provision, this should be the focus and attention when managing a client’s treatment plan and communicating with your clients.
The Minor Injury Regulations also outline that in order to prove that a “serious impairment” has occurred, the prescribed criteria must be met. One of the noted prescribed criteria is that the Claimant’s injury “is not expected to improve substantially.” See Section 3 of the Minor Injury Regulations. If the recommended treatment plan is not being followed by the injured client, than it may be argued that the injury could have improved, especially if medical evidence confirms that the sustained injury would have improved substantially had the Plaintiff adhered to and followed the treatment plan. Keep in mind, the treatment plan must also be “reasonable”.
In the Ontario decision, the treatment plan was noted as needing to be “reasonable”. It also noted that the medical evidence should stipulate the time frame as to when the injury would resolve or when the Plaintiff would be “pain-free” and how much treatment would be necessary to achieve this result. Also, the Court indicated that “It must also be considered whether the continuing pain affects the enjoyment and quality of life.”
As noted in the Ontario Court of Appeal’s comments about what the medical evidence should contain, the requirements under the Minor Injury Regulations for treatment protocols requires the following:
5 (1) When treating a patient with an injury listed in section 3 or 4, a health care practitioner must educate the patient with respect to, at a minimum, the following matters:
(a) if applicable, the desirability of an early return
(i) to the activities the patient could perform before the injury, and
(ii) to the patient’s employment, occupation or profession or the patient’s training or education in a program or course;
(b) an estimate of the probable length of time that symptoms will last;
(c) the usual course of recovery;
(d ) the probable factors that are responsible for the symptoms the patient may be experiencing;
(e) appropriate self-management and pain management strategies.
When reviewing the medical evidence, highlight these important factors that should be identified for your client.
In the Ontario decision, the Court of Appeal states that the “The trial judge’s focus was too narrow in finding that the impairment was not serious.” This offers a solid point for BC lawyers to consider in BC cases if similar facts arise. Future decisions should be carefully reviewed to determine if such an argument may be made.
In BC, under Part 7 Minor Injuries of the Insurance (Vehicle) Act, Section 101 (1) the definition of “serious impairment” is noted:
“serious impairment”, in relation to a claimant, means a physical or mental impairment that
a) is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and
(b) meets prescribed criteria.
A further criteria that is noted to substantiate that a “serious impairment” has been met is outlined in the Insurance (Vehicle) Act Minor Injury Regulations, Section 3:
(a) the impairment results in a substantial inability of the claimant to perform
(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,
Familiarizing ourselves with the language of the provisions is key and performing a comparison of decisions in other jurisdictions I believe is helpful.
The Ontario Court of Appeal states:
“The requirement that the impairment be “serious” may be satisfied even though the plaintiff resumes the activities of employment and household responsibilities. It must also be considered whether the continuing pain affects the enjoyment and quality of life.”
 The question of whether an injury is serious was addressed by this court in May v. Casola,  O.J. No. 2475 (C.A.). Carthy J.A. said “In our view a person who can carry on daily activities, but is subject to permanent symptoms including, sleep disorder, severe neck pain, headaches, dizziness and nausea which, as found by the trial judge, had a significant effect on her enjoyment of life must be considered as constituting serious impairment. The trial judge’s standard was too high and we consider that an error in principle.”
 So here, as well, the trial judge’s focus was too narrow in determining whether the appellant’s injury was serious. The requirement that the impairment be “serious” may be satisfied even although plaintiffs, through determination, resume the activities of employment and the responsibilities of [a] household but continue to experience pain. In such cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children and engage in recreational pursuits.
 Here, the trial judge did not indicate he considered anything other than that the appellant carried on with her full range of activities. This is not significant in itself as judges are presumed to know the law. However, the trial judge also failed to allude to evidence of the lay witnesses, which was important in assessing the appellant’s claim that continuing pain affected her overall enjoyment of life. Together, these omissions undermine the conclusion he reached.
 The trial judge therefore erred in the standard he applied both with respect to the permanency and seriousness of the appellant’s injuries. [page37 ] Conclusion.
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