Judge rules in favour of the Plaintiff in Chronic Pain Lawsuit

Posted by Injury Lawyers of Ontario on March 22, 2019

Chronic pain is a disabling condition that frequently results from trauma sustained in car accidents, falls and other injury-causing events.  Although chronic pain is difficult to objectively measure via standard medical tests such as X-rays or a CT scan, the medical community now generally accepts that chronic pain is very real and often has a substantial impact on an accident victim’s ability to function, their relationships and employment.

In November 2010, a man was seriously injured in a rear-end collision and among his injuries, he suffered disability due to chronic pain that resulted from the accident.  The accident victim claimed statutory accident benefits from his vehicle insurer and received a settlement of over $1.5 Million, which signifies the severity of his injuries.  He also filed a civil suit for damages against the ‘at fault’ driver, and the pre-trial was scheduled for May 2017.

In connection with the civil suit, in June 2015, the plaintiff’s counsel provided reports for psychiatry, physiatry, neuropsychology, chronic pain, future care costs and income loss. The plaintiff also agreed to an examination by a psychiatrist and physiatrist for the defence.

In Mork v. Sanghera , the defendant sought an order that Mr. Mork further submit to a defence medical assessment with an orthopaedic surgeon and chronic pain specialist, Dr. Hugh Cameron.  In the motion trial, Justice Lemon clarified that a defendant may order a medical examination of the plaintiff by one or more heath practitioners, pursuant to the Courts of Justice Act, s. 105(2), when the mental or physical condition of the plaintiff is in question.  The Rules of Civil Procedure, Rule 33.02(2) allows the court to order further examinations, within consideration of costs and potential delay of a trial.

The court referred to the leading case on this issue, Bonello v. Taylor (2010), where it was stated that the party seeking the further examination must show that the assessment is legitimate and warranted, and not intended to delay a trial, cause prejudice to the opposing party or is simply to corroborate existing medical evidence.  Trial fairness is the guiding principal on this issue, which in some cases supports allowing a ‘matching report’ (i.e. a report from an expert witness for the defence in the same specialty as the plaintiff’s expert).  However, “a request for a second examination must be supported by sufficient evidence to persuade a court of the need for the further examination” and “what constitutes sufficient evidence will vary from case to case”.  Finally, the court should consider whether the request poses an undue burden on a plaintiff who has already submitted to several examinations by the defence.

In the current case, Justice Lemon considered the question of whether the plaintiff’s injury falls outside the expertise of a psychiatrist and physiatrist, who were previously requested by the defense and whose examination was already agreed to by the plaintiff. On this issue, the judge decided that an examination by Dr. Cameron is not necessary to enable the defendant to fairly call reasonable responding evidence at the trial.  Dr. Cameron was shown to be an expert in orthopaedics; however, the plaintiff’s counsel had not presented, and is not relying on, an orthopaedic report.  Also, chronic pain was not mentioned in the doctor’s resume, and there was doubt whether Dr. Cameron is properly qualified as an ‘expert’ on this subject.  Justice Lemon acknowledged that he is not required to determine the doctor’s expertise at this point -- that is the purview of the trial judge; however, Justice Lemon found that the defendant did not present sufficient evidence that there is a need for the proposed examination.

Justice Lemon noted that the plaintiff’s injuries fall outside the expertise of the defendant’s physiatrist and psychiatrist, particularly with respect to chronic pain and neuropsychology. However, he suggested that this may be cause for another motion, which may involve a request for defense examination by a chronic pain specialist.

As the judge was not persuaded on the need and justness of an examination by Dr. Cameron, the defendant’s motion was dismissed.

When an accident victim claims damages on the grounds that they have suffered losses due to chronic pain, defendants commonly challenge this evidence with their own expert medical opinion. In such cases, a successful case for the plaintiff generally rests on reputable, objective and thorough medical evidence, as well as credible testimony by the plaintiff on the extent of their injuries and the impact on their quality of life. 

The respected law group of Injury Lawyers of Ontario has vast experience and expertise in representing accident victims in civil actions and our experience facilitates our understanding of what it takes to win a fair and favourable settlement for our clients.  If you were injured by a negligent party, call a knowledgeable ILO lawyer in your community to find out how we can help you obtain deserved compensation.

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