A recent case highlights the importance of having expert
evidence a trials involving complaints of chronic pain. Justice
DiTomaso concluded on the threshold motion that the Plaintiff, Ms.
Eliana Arteaga, had sustained a permanent and serious impairment
despite MRI reports showing no issues. Ms. Arteaga was injured as a
result of a motor vehicle accident on March 15, 2011. She was
rear-ended by a dump truck travelling at approximately 60
kilometres per hour while stopped in traffic northbound on Highway
50 and Queen Street in Brampton. The impact with the dump
truck caused Ms. Arteaga's motor vehicle to be launched forward
and collide with the vehicle in front of it. Unfortunately,
Ms. Arteaga was involved in two subsequent motor vehicle accidents
in March and April of 2012 as well as two subsequent slip and fall
incidents in September 2012 and May 2013. Ms. Arteaga
testified at trial that she suffered injuries to her jaw, neck,
left shoulder, and left side of her body as a result of the March
2011 motor vehicle accident. She also experienced driving
anxiety and depression for which she was prescribed anti-anxiety
Justice DiTomaso went through the three-part test as part of the
threshold motion. Firstly, has the plaintiff sustained a
permanent impairment of a physical, mental or psychological
function? Secondly, is the function that is permanently
impaired an important function? Lastly, is the impairment of
an important bodily function serious?
At trial, Dr. Brian Alpert, orthopaedic surgeon, opined that Ms.
Arteaga had sustained moderate acute and chronic left shoulder
strain and rotator cuff tendinopathy associated with subacromial
and subdeltoid bursitis and that Ms. Arteaga would continue to have
moderate to severe chronic pain as a result of the March 2011 motor
vehicle accident. Dr. Jacobs, a chronic pain specialist, also
opined that Ms. Arteaga had chronic pain due to the March 2011
motor vehicle accident. Interestingly, an MRI scan of Ms.
Arteaga's cervical spine was essentially normal. Dr.
Jacobs testified that "MRI results were not perfect and could
not rule out any ongoing pathology". Dr. Alpert echoed
Dr. Jacobs' opinion noting, "MRI scans of the spine as
well as the shoulder are not perfect investigations and they miss
post-traumatic pathology in these areas".
Based on Dr. Jacobs' and Dr. Alpert's evidence, Justice
DiTomaso found that Ms. Arteaga had sustained a permanent and
serious impairment of an important physical, mental or
psychological function within the meaning of Section 267.5(5) of
the Insurance Act. This case highlights the importance
expert opinon evidence in soft tissue cases; a lack of objective
medical evidence may not be sufficient at trial.
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