The Divisional Court’s decision in Frankfurter v. Gibbons, which was the subject of an earlier Update, has already been applied in an Ontario Superior Court trial decision. In Bridgewater v. James, Mr. Justice Herman J. Wilton-Siegel cited the Frankfurter decision in granting a threshold motion that was heard while the jury was deliberating in a chronic pain case.
You may recall that, in Frankfurter, the Divisional Court reversed a trial judge’s finding, in another chronic pain case, that the plaintiff’s injuries had met the threshold. The Court emphasized the observation made by the Court of Appeal in Meyer v. Bright, that “the Legislature intended that injured persons are required to bear some interference with their enjoyment of life without being able to sue for it”.
Justice Wilton-Siegel’s decision is in a similar vein. In Bridgewater, the plaintiff had suffered soft tissue injuries in a 1998 MVA. She was off work for three months because of neck pain. She was then involved in another accident in 1999, which was not the subject of this litigation. According to the plaintiff’s evidence at trial, the 1999 accident was more serious than the one in 1998. But she maintained that after an increase in symptoms after the 1999 accident, her condition had only improved to the level at which it had been just prior to that first accident. She said that she had remained symptomatic (migraine headaches, neck, back and shoulder pain) by the time of trial. The plaintiff claimed that her pain limited her ability to work, interfered with her daily activities and prevented her from playing with her young son.
While the jury was deliberating at trial, Justice Wilton-Siegel entertained the defendant’s threshold motion. He allowed it on the bases of causation and failure to prove “seriousness”:
- he found that the plaintiff had suffered an impairment of a physical function (brain and chronic pain);
- he was not satisfied that a causal connection between these conditions and the 1998 accident had been proved;
- it appears that the jury found that the plaintiff’s injuries from the 1998 MVA had fully resolved by the time of the 1999 accident and Justice Wilton-Siegel felt that he was entitled to take the jury’s views into account in ruling on the threshold motion;
he did find that the chronic pain symptoms of which the plaintiff complained at trial were permanent. However, he ruled that the plaintiff had failed to show that her migraines were permanent; - both the headaches and the musculoskeletal complaints were found to be “important”;
- referring to Meyer v. Bright and Frankfurter v. Gibbons, His Honour ruled that neither the head nor the musculoskeletal complaints qualified as “serious”. In making this determination, he considered whether the plaintiff had had “continuity of employment” (a phrase taken from the Court of Appeal’s decision in Meyer). He concluded that she had, in that she was actually working more hours and making a higher income than she had been at the time of the 1998 accident.
The judge noted that, to meet the threshold, not just any amount of interference with employment will suffice:
The test can only be met if it can be demonstrated that the extent and regularity of the employee’s lost time resulted, or will result, in a termination of employment or other involuntary retirement of the employee.
The latter is a rather helpful statement of the law that might prove helpful to insurers facing similar claims.