Myofascial Pain Injury is Permanent, Important, but not Serious

An Ottawa Superior Court judge has dismissed a claim for personal injuries arising out of a 2000 motor vehicle accident, on the basis that plaintiff did not meet the Insurance Act “threshold”. The court was satisfied that the injury was “permanent” and that it affected an “important” function but concluded that the impairment was not “serious”.

In Page v. Primeau, Mr. Justice Gordon Sedgwick accepted that the plaintiff had developed myofascial pain syndrome as a result of a rear-end collision. At trial, the plaintiff’s evidence was that she was in constant, daily pain, ranging in severity between 4 and 8 out of a possible scale of 10. She claimed to be unable to do heavy lifting.

However, Justice Sedgwick noted that the plaintiff had returned to work, where she had received very favourable performance assessments and a promotion. She was able to perform most day to day activities. Nevertheless, the court found that the impairments were permanent (because their duration was indeterminate) and that the affected function was “important” to the plaintiff. Thus, two of the three criteria needed for a “threshold” injury had been met.

But His Honour ruled that the plaintiff had failed to establish the third element, that the impairment was “serious”. His review of the evidence was to the effect that the plaintiff was still able to engage in most of her activities.

In making this determination, he also observed that the conclusions of the plaintiff’s doctor (Dr. Alex McKee, who frequently testifies for personal injury plaintiffs in Ottawa), to the extent that they had been based on the plaintiff’s self-reporting, must be “treated with caution”.

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