Threshold Motion and Chronic Pain: Arteaga v. Poirier, 2016 ONSC 3712

22 septembre 2016 | Brynn Enros

( Disponible en anglais seulement )

A recent case highlights the importance of having expert evidence a trials involving complaints of chronic pain. Justice DiTomaso concluded on the threshold motion that the Plaintiff, Ms. Eliana Arteaga, had sustained a permanent and serious impairment despite MRI reports showing no issues. Ms. Arteaga was injured as a result of a motor vehicle accident on March 15, 2011.  She was rear-ended by a dump truck travelling at approximately 60 kilometres per hour while stopped in traffic northbound on Highway 50 and Queen Street in Brampton.  The impact with the dump truck caused Ms. Arteaga’s motor vehicle to be launched forward and collide with the vehicle in front of it.  Unfortunately, Ms. Arteaga was involved in two subsequent motor vehicle accidents in March and April of 2012 as well as two subsequent slip and fall incidents in September 2012 and May 2013.  Ms. Arteaga testified at trial that she suffered injuries to her jaw, neck, left shoulder, and left side of her body as a result of the March 2011 motor vehicle accident.  She also experienced driving anxiety and depression for which she was prescribed anti-anxiety medication.

Justice DiTomaso went through the three-part test as part of the threshold motion.  Firstly, has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?  Secondly, is the function that is permanently impaired an important function?  Lastly, is the impairment of an important bodily function serious?

At trial, Dr. Brian Alpert, orthopaedic surgeon, opined that Ms. Arteaga had sustained moderate acute and chronic left shoulder strain and rotator cuff tendinopathy associated with subacromial and subdeltoid bursitis and that Ms. Arteaga would continue to have moderate to severe chronic pain as a result of the March 2011 motor vehicle accident.  Dr. Jacobs, a chronic pain specialist, also opined that Ms. Arteaga had chronic pain due to the March 2011 motor vehicle accident.  Interestingly, an MRI scan of Ms. Arteaga’s cervical spine was essentially normal.  Dr. Jacobs testified that “MRI results were not perfect and could not rule out any ongoing pathology”.  Dr. Alpert echoed Dr. Jacobs’ opinion noting, “MRI scans of the spine as well as the shoulder are not perfect investigations and they miss post-traumatic pathology in these areas”.

Based on Dr. Jacobs’ and Dr. Alpert’s evidence, Justice DiTomaso found that Ms. Arteaga had sustained a permanent and serious impairment of an important physical, mental or psychological function within the meaning of Section 267.5(5) of the Insurance Act. This case highlights the importance expert opinon evidence in soft tissue cases; a lack of objective medical evidence may not be sufficient at trial.

Arteaga v Poirier, 2016 ONSC 3712 (CanLII),  http://canlii.ca/t/grzc7

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