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The Written Threshold - a significant hurdle for plaintiffs in car accident claims
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Paquette Travers Deutschmann, disability lawyers, personal injury lawyers

December 2, 2007, Kitchener, Ontario


Posted by: Robert Deutschmann, Personal Injury Lawyer

Since October 2003, auto insurance legislation in Ontario was amended to add the threshold. Prior to October, 2003, it has always been known that in order to bring a claim for personal injury, the injured person had to suffer a permanent and serious impairment of an important physical or psychological function. What is meant by a “permanent” and “serious” impairment has been left to the courts. It is generally accepted that the impairment has to substantially affect a person’s ability to work or substantially affect a person’s ability to carry out the person’s usual activities of daily living which includes things like housekeeping, hobbies and recreational activities. Since October 2003, the elements required to be proven to establish a permanent and serious impairment have been set out in the regulations. In future postings I will talk about the changes and what the implications are with respect to the evidence necessary to show whether an injured person is suffering from a permanent and serious impairment. Just to demonstrate the signficance of these changes, and the evidence that will have to be presented to a judge who is responsible for establishing whether the plaintiff is suffering from a permanent and serious impairment, I have set out the definition as it currently is written in the insurance regulations:
Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
Definition of Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
4.1  For the purposes of section 267.5 of the Act,
“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2. O. Reg. 381/03, s. 1.
4.2  (1)  A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
1. The impairment must,
i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.
2. For the function that is impaired to be an important function of the impaired person, the function must,
i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
iii. be necessary for the person to provide for his or her own care or well-being, or
iv. be important to the usual activities of daily living, considering the person’s age.
3. For the impairment to be permanent, the impairment must,
i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
ii. continue to meet the criteria in paragraph 1, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. O. Reg. 381/03, s. 1.
(2)  This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s. 1.
Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
4.3  (1)  A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act. O. Reg. 381/03, s. 1.
(2)  The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person. O. Reg. 381/03, s. 1.
(3)  The evidence of the physician,
(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine. O. Reg. 381/03, s. 1.
(4)  The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile. O. Reg. 381/03, s. 1.
(5)  In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function. O. Reg. 381/03, s. 1.
(6)  This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s. 1
Posted on Wednesday, Jan 30, 2008 - 11:06:00 AM EST
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