Bill 59 Threshold > Chronic Pain Syndrome; Regular Work Hours Notwithstanding, Plaintiff Meets Test

Case Comment – Rio v. Lawrence (2009 Ont. S.C.)

This is an interesting read for lawyers who practice personal injury law in Ontario.  It is another case recently interpreting the Bill 59 threshold for pain and suffering damages.  For background, please see our March 4, 2009 entry.

This is a decision of Mr. Justice Gans of the Ontario Superior Court of Justice.  This accident occurred on October 5, 2001, approximately 7 years prior to the Trial.  The Jury awarded $22,500 for pain and suffering damages (prior to the application of the $15,000 deductible) and $1,900 for income loss.

On this Bill 59 motion, the plaintiff was found to have met the threshold.  The Trial Judge found that she did suffer from chronic pain syndrome as a result of the accident; she continued to work at her regular employment but it appears that she had a sympathetic and accommodating employer who allowed for absences as required.

Chronic pain syndrome is a common medical issue upon which Bill 59 threshold motions have been pursued to dispute the plaintiff’s entitlement to claim pain and suffering (non-pecuniary) damages.  Medical practitioners are not in agreement as to chronic pain syndrome, including whether it is a valid medical condition nor its scope, if any.  You can find various background information chronic pain syndrome, including wikipedia’s page entry; an article on emedicine/WebMD; and various popular media stories including this CBC article.  Of interest may be Worker’s Safety Insurance Board’s (WSIB)position paper on chronic pain syndrome. The defence argued that the plaintiff failed to seek psychological treatment when it was recommended in 2004 and importantly, failed to lead psychiatric evidence regarding the permanence of the chronic pain syndrome.

The Trial Judge did not find those issues to be definitive and further found that he could rely upon the plaintiff’s orthopaedic surgeon to provide evidence on the issue of chronic pain syndrome.  Mr. Justice Gans wrote:

I am not persuaded that when one suffers from CPS, one is obliged to lead evidence of a physiatrist  or a psychologist/psychiatrist in support of one’s claim in respect of the issue of permanence. I respectfully suggest that an orthopedic surgeon well versed in the diagnosis and treatment of such a condition is well equipped to render an opinion on this issue, particularly if the defendant chooses not to cross examine him on his report and that portion of his opinion remains unchallenged. That said, it would have been prudent of the plaintiff to at least lead the evidence of the surgeon since the cases referred to in Podleszanski, supra, make it clear that the absence of any such evidence can be fatal to the threshold motion.

Gregory Chang
Toronto Insurance Litigation Lawyer