Plaintiff with Serious Knee Injury Passes Threshold

Oakville Lawyers Serious Knee Injuries

The Court rendered another decision regarding whether or not the plaintiff suffered a permanent and serious impairment of an important physical, mental or psychological function. If you have been in any type of motor vehicle please check out this link for more information on the threshold and what it is.

In the case of Ivens v. Lesperance the plaintiff, Shawn Ivens, was 41 years old.  On November 2, 2007 he was involved in a motor cycle accident.  Prior to this Mr. Ivens had a serious motor cycle accident in 1999.  He broke both his ankles requiring surgery and was off work for three and a half months.  He had continued pain in his ankles.  He had an open accident benefit file for quite some time.  His insurance carrier provided him with a hot tub, riding lawn mower and other assistive devices to help him with his home maintenance and his pain.  He kept working as a car salesman after his first accident although his sales continued to increase.  Mr. Ivens also enjoyed numerous outdoor activities with friends and family members.  He very much enjoyed motorcycling, snowmobiling, mountain biking, boating and body building.  In fact, he acted as a personal trainer for friends.  At one point Mr. Ivens moved dealerships from Midland to Barrie and his customers followed him.  He seemed to be considered a fantastic sales person.  He was one of the top six sales people in an eighteen person sales force at the dealership in Barrie in which he was working.

knee injuryAfter the accident, Mr. Ivens was taken to the hospital by ambulance.  He was in considerable pain and was diagnosed with an undisplaced fracture of the right knee.  Throughout the following year it was noted that Mr. Ivens had trouble walking and could not fully flex his knee.  There was not much more that the orthopedic surgeons were able to do for him as the left knee remained stiff.  He attempted to return to work in the spring of 2008 but was unsuccessful.  Unfortunately he was not able to return to work as a car salesman until 2011.

In 2009 it was noted that he started going back to the gym slowly and was able to flex to 80 or 90 degrees.

In March of 2009 began to complain of back pain.  An MRI was ordered and it was learned that he had a compression fracture, possibly from wedging or crushing.  There was no report of back pain immediately following the accident and it was acknowledged that the back injury could have happened before or after the accident in question.  Mr. Ivens gave evidence at trial that he suffered continuous pain, depression, sleep disorder and the loss of ability to enjoy recreational activities that occupied most of his pre-accident life.

He had friends and family members testify, as well as his family doctor and various experts to comment on his pain and pain management.

The defence lawyer challenged Mr. Ivens credibility on a number of fronts.  It was put to him during the trial that he was lying or exaggerating with respect to a number of issues.  He was challenged on whether or not he had a mortgage on his house.  He was challenged that he only saw the physiotherapist a few times.  The Judge noted that subsequent evidence showed that he had visited the physiotherapy clinic over 40 times.

He did exaggerate his income in interviews with the number of medical service providers, a characteristic perhaps not uncommon for people earning commission sales, said the Judge, who also noted that it was clear chronic pain was subjective and that it was easy to envision situations where an individual may exaggerate pain in seeking some economic advantage.  However in this case, Mr. Ivens complaints had an objective component as well as subjective report of pain.

The Judge’s decision on the threshold

According to all medical records, Mr. Ivens knee continued to be bothersome and was a source of much of his pain complaints.  It was the source of much of the functional capacity limitations that Mr. Ivens had.  Surveillance was shown at trial but the Judge noted that there was no evidence that he was seen doing any type of high level of activity he previously enjoyed.  He was walking around a dealership.  He used a golf cart to get around the large properties that the dealership maintained for their inventories of cars.

In short, the Judge concluded that the plaintiff did sustain a permanent and serious impairment to an important physical, mental or psychological function.  With respect to permanent, the judge noted that the knee injury had not resolved notwithstanding medical intervention.  It was unlikely that his knee injury would improve, he may suffer from arthritis, and he may need further surgical interventions in the future.  The unresolved knee problems and the chronic pain serve to explain his depression, even if diagnosed as mild.  With respect to an important function, the Judge noted that Mr. Ivens returned to work with accommodation from his employer, used a golf cart, did not work the long hours he previously put in, could not stand for a long period of time, could not perform many of the housekeeping tasks he previously looked after, and he could not engage in high levels of physical activity he previously enjoyed such as weight training, snowmobiling, bicycling and other outdoor activities with family and friends.

With respect to whether or not his impairment was serious, the Judge noted that the plaintiff’s employer did accommodate him, but now he is in the bottom third of the sales force for the dealership.  Because he is on commission, it is up to the plaintiff to seek out clients and work with clients to compete on the sales of vehicles.  The sales manager noted that Mr. Ivens was “no longer on top of his game”.  Also, because he was no longer able to participate in outdoor activities with friends he was missing out on the usual activities of daily living which he enjoyed not only for recreation, but as a source of contacts for his commission sales employment.

The judge noted that he was satisfied that Mr. Ivens’ physical impairments coupled with chronic pain substantially interfered with his activities of daily living.

 

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What is this “threshold” that lawyers keep talking about???

Oakville Lawyers Car Accidents and the “Threshold”

We often make case comments about the Bill 198 threshold.   Based on this our clients have asked us for a better definition of the threshold.

The threshold applies if you were involved in a collision involving the use or operation of a motor vehicle as defined by the Insurance Act.  We may or may not have discussed this with you, but victims that are injured as a result of the carelessness or negligence of someone operating a motor vehicle are technically not allowed to claim compensation for pain and suffering unless he or she has met a certain “threshold”.

If you have been in a car accident, motorcycle accident or any other type of motor vehicle accident it is important to get the right advice. Contact us to learn your rights.

In other words you cannot sue anyone that has caused you injury in Ontario unless your injuries fall within a certain “classification”.  The “classification” or threshold is defined as:

“did the plaintiff (you) sustain a permanent and serious impairment of an important physical, mental or psychological function as a result of a motor vehicle accident in which he or she (you) was involved in”. 

You may initially think that yes, I have absolutely sustained a permanent and serious impairment of an important physical, mental or psychological function, but the reality is that these words are complexly defined within the context of personal injury law.

threshold poster

How does this affect you? 

The rule states that an injured victim in a motor vehicle accident is barred from suing an at-fault operator of a motor vehicle unless they in fact fall within certain exceptions.  You have the burden of establishing that you fall within all of these exceptions.

How do I do this?

A plaintiff (you) must lead evidence from physicians and health advisors to explain the nature of your impairment, its permanence and the specific functions that are impaired and the importance of the functions to you. If your case ends up going to Court, evidence will be asked of your doctors, health practitioners, rehabilitation people, occupational therapists, psychologists, psychiatrists, specialists in the medical field.  Opinion evidence will be asked of experts that you have seen or will see as set up by your lawyer and the opposing lawyer.

At the end of your case a jury will retire to determine how much compensation it will pay you.  When the jury retires the lawyer that represents the insurance company will then have the right, under the Insurance Act, to ask the judge whether or not he or she believes by the evidence you produced that you suffered a permanent serious impairment of an important physical, mental or psychological function within the meaning of the Insurance Act.  The jury will not hear this question.

At that time the Judge will dissect the words permanent, serious, impairment and important function.  These words will be defined in detail by the Judge that hears your case.  The Judge will then come to an answer as to whether or not yes or no he or she believes that you sustained a permanent and serious impairment on an important physical, mental or psychological function within the meaning of the Insurance Act.

What does serious mean?

Serious is normally defined three different ways.

  1. The first is whether or not an impairment substantially interferes with the person’s ability to continue his or her regular employment despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use accommodations to allow the person to continue employment;
  2. An alternative with respect to whether or not an impairment is serious also lies with whether or not that person is able to continue training in a field in which he or she was being trained in before the incident;
  1. The third alternative lies with respect to the definition of serious, that is whether or not impairments have substantially interfered with most of the activities of daily living of the victim, considering his or her age.  The daily activities, which are not defined in the Insurance Act have been defined by Judges in the past as being recreational activities, social activities, housekeeping activities and family activities.  This is why you have been asked, or will be asked about this at your examination for discovery. Also, when defence lawyers hire surveillance companies to survey you, it is often to dissect or take apart the daily activities to show that you do not suffer from a serious impairment or that your daily living is not affected by the accident.

What does the word important mean?

For the function that is impaired to be an important function, that function must be necessary to perform the activities that are essential to your regular or usual employment or necessary to perform the activities that are essential to your training in a career in a field in which you were being trained in before the accident.  For a function that is impaired to be an important function, that function must also be necessary for you to provide for your own care or well-being or be important to the usual activities of daily living, considering your age.  The same categories for daily living apply as above.

What does the word permanent mean?

For an impairment to be permanent the impairment must have been continuous since the accident and must, based on medical evidence and subject to you reasonably participating in recommended treatment of the impairment be expected to not substantially improve.  Also, the impairment must be an impairment that is expected to continue without substantial improvement when sustained by persons in similar circumstances.  This means that at some point a doctor must say that despite your participation in therapy, your injury is not getting better, and he or she does not think that it will substantially improve to any better degree.

Conclusion

Out of all of this it is important to take several things away.

  1. Medical evidence, in addition to other evidence, must support (it is legislated!) your claim that you have sustained a permanent serious impairment of an important physical, mental or psychological function.
  2. Most people fall within the category of injuries interrupting their daily activities.  It is important that you keep notes to tell us how your injuries have interfered with your social, recreational, household or family activities.  This means that if you are subject to permanent symptoms such as sleep disorder, severe neck pains, broken bones, disc herniation, disc bulges, torn tendons and ligaments, metal or hardware that has been surgically involved with healing your fractures or anything that has a significant impediment on your enjoyment of life can be considered a serious impairment.  A Court will always look at your activities and your daily living prior to the car accident, and after the car accident to determine whether or not you meet this threshold.

 

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