Feb 5 2022 |
Permanent Serious Impairment and The Threshold Test in Personal Injury Cases
You have been injured in a motor vehicle accident as a result of another party’s negligence and your life has been flipped upside down. How do you get the compensation you deserve for the physical, emotional, mental and financial damages inflicted by the at-fault party?
In Ontario, as a personal injury victim, you may be entitled to recover monetary compensation (or damages) from the responsible party for pecuniary losses—ones that can be quantified, such as lost wages and medical expenses—and non-pecuniary losses—ones that cannot be easily quantified, such as pain and suffering and future earning capacity.
Undoubtedly, being involved in a collision is, in itself, a traumatic experience. Everyone’s situation and self-assessment of injuries and losses are unique; however, in Ontario, there are statutory restrictions on an accident victim’s eligibility for damages compensation.
In order to successfully recover a monetary award for non-pecuniary damages from the negligent party in a collision, the court must be convinced that the victim’s injuries meet the threshold according to Ontario’s Insurance Act.
Passing the Threshold Test on the Basis of Permanent Serious Injuries
The threshold test is founded upon three principal standards:
- Seriousness; and,
In order to be awarded damages for pain and suffering, the Insurance Act stipulates that the motor vehicle accident victim must have sustained a permanent serious impairment of an important physical, mental or psychological function, or permanent serious disfigurement.
While one can argue that all bodily and mental functions are, no doubt, important, and despite the fact that gaging the seriousness of an injury may be subjective, you must be able to prove to the court that your impairments result in a substantial inability to achieve pre-accident functionality. This means that evidence must show that your injuries prevent you from participating in essential household, employment, social and/or recreational activities in the capacity that you did prior to the accident.
An effective way to determine whether you meet the injury threshold is to answer the following questions:
- Have I sustained a permanent impairment of a physical, mental, or psychological function, in that it has been continuous since the accident, it is likely to persist for the indefinite future and it is not expected to improve?
- Is the impairment serious, in that it affects an important physical, mental or psychological function and prevents me from carrying out my activities of daily living?
So, how do the courts ascertain which injuries are minor and which are serious, and how do they decide whether your impairments are temporary or permanent?
Proving that You Meet the Injury Threshold
Following the accident and for the duration of the claim, it is crucial to compile extensive and meaningful evidence that supports your ongoing impairments and their detrimental effect on your life. This involves attending treatment, rehabilitation and/or therapy, addressing accident-related health concerns with physicians, undergoing diagnostic testing, if necessary, being examined by specialists, and documenting all limitations in day-to-day functions as well as lifestyle changes.
By evaluating medical evidence and hearing testimonies from expert physicians and witnesses, the courts will conclude whether the impairment is permanent. Concurrently, any documentation corroborating the effect the injury has had on your personal, professional and recreational life will determine how important the injured physical, mental or psychological function is and how seriously its impairment affects your life.
Establishing Threshold with the Help of Dedicated Personal Injury Lawyers
Meeting the threshold and proving the severity and permanence of your injuries is the most fundamental condition in pursuing a claim for non-pecuniary damages. Since all steps must be followed and all supporting documentation must be compiled meticulously, consulting with a personal injury lawyer is vital.
At Zayouna Law Firm, our committed personal injury lawyers are ready to fight for your pecuniary and non-pecuniary damages compensation. With over two decades of combined experience proving injury threshold, our lawyers will build a strong case on your behalf through obtaining expert opinions, gathering the necessary documentation and ensuring that you get the treatment necessary to substantiate your permanent and serious impairments.