January 6, 2020

Return to Work is Not Fatal For a Plaintiff Facing a Statutory Threshold Motion


Author: Katelynn Drake


In Ashburn v. Storrey, the Plaintiff’s vehicle was struck when the Defendant’s vehicle proceeded through a stop sign without stopping. The damage to the vehicle was significant, and the Plaintiff suffered soft tissue injuries.

Following the collision, the Plaintiff returned to work despite her ongoing pain and mobility limitations (the “impairments”). She received assistance from others to perform some of the duties she was unable to complete due to her pain. At trial, the Plaintiff testified about how the impairments affected her work, life and relationships with others on an ongoing basis.

During jury deliberations, the defendant brought a “threshold” motion pursuant to s. 258 of the Insurance Act for an Order that the Plaintiff had failed to prove she had a serious and permanent impairment of an important bodily function. The issue of importance of the bodily function and permanence of the impairment were agreed to by the parties, and the seriousness of the impairment was the only remaining question at issue.

To demonstrate the Plaintiff’s failure to meet the threshold, the Defendant pointed at her return to work shortly after the collision, and continuation of work since the time of the collision. The Defendant pointed out the presence of some over-reporting of emotional and pain symptoms on the part of the Plaintiff, and raised the issue of credibility. In addition, the defendant noted that the Plaintiff had no objective signs of injury to which she could attribute her ongoing symptoms.

In response, the Plaintiff discussed the impact of the impairments on her life, function, relationships and work. To demonstrate causation, the Plaintiff noted the absence of any symptoms prior to the collision and consistent, persistent reports of pain since the collision to the date of trial. The Plaintiff submitted that the test for threshold is subjective, and that the Court must consider the impact of the impairment on this Plaintiff. Each person’s experience of pain is individual. The need to continue working, in spite of ongoing impairments, ought not to preclude Plaintiffs from receiving compensation to which they are reasonably owed. A defendant ought not to be a protected litigant merely because a plaintiff mitigated her income loss claim by returning to work.

The jury awarded the Plaintiff $62,500 for general damages and $23,400 for future care costs, as well as $2,500 for out of pocket expenses.

Following the Jury verdict, Justice Mitchell dismissed the motion, with reasons, on November 12, 2019. Justice Mitchell affirmed that a return to work is not fatal to finding that a plaintiff meets the statutory threshold. The Court found the Plaintiff’s testimony regarding her experience of pain and difficulty completing work and other daily tasks proved that her impairment was serious. The Court found that the Plaintiff was credible and consistent in her description of both the events of the collision and her experience with her symptoms thereafter.

Further, Justice Mitchell preferred the evidence of the Plaintiff’s expert, Dr. Patrick Potter, to the Defendant’s expert, Dr. Sekyi-Otu. Dr. Sekyi-Otu’s evidence was contradictory and confusing, having found the plaintiff suffered chronic pain with likely continuation of symptoms into the future, but failing to agree that her condition was permanent.

The Plaintiff succeeded and the Defendant’s motion was dismissed.

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