Threshold Motion - Injury is Permanent, Serious and Continuous - Pupo v Venditti, 2017 ONSC 1519 (CanLII)

May 03, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Threshold Motion - Injury is Permanent, Serious and Continuous - Pupo v Venditti, 2017 ONSC 1519 (CanLII)

Date of Decision: March 6, 2017
Heard Before: The Honourable Justice D. L. Edwards

DECISION ON THRESHOLD MOTION

At the time of the car accident Mr. Pupo had been working for 2 years as a meat cutter at Pupo’s Food Market, a store where his father worked and was an approximately 1/3 owner. Immediately following the collision Mr. Pupo complained of pain in his neck, which generated headaches, as well as pain in his left shoulder.  He has received medication for those issues from the time of the accident until the present.  He has periodically received physiotherapy and massage therapy as well.  He continues to have this pain. Shortly after the accident, Mr. Pupo had a relapse and began to take illegal drugs again.  Within four weeks of the accident he went to a homeless shelter, and then about 5 months later he entered a residential rehab centre.  He remained in the program for one year, followed by an internship in that residential program for 6 months.  He then completed 3 years of college and part of a year of university before returning to Niagara to work once again at the family business, Pupo’s Food Market. When he returned to Pupo’s in 2015 his father created a new job for him because Dean was unable to resume his meat cutting job due to pain in his neck and shoulder, and his shoulder instability.  Mr. Pupo was unable to lift the meat carcasses. His new role involves rolling out a cart containing small meat packages of between 5 and 6 pounds.   He then places the meat into the meat counter displays.  This job was called a minimum wage job by the witnesses. Since 2015 Mr. Pupo has worked a split shift.  He comes into work in the morning, and then after a few hours he goes home to lie down for a few hours.  After this break, he returns to work for the balance of his shift.

Dean Pupo brings this action for damages arising from a car accident on May 12, 2010. On March 2, 2017, the jury returned its verdict and awarded $150,000 for general damages and zero for past and future housekeeping. After the jury delivered its verdict the defence counsel brought a threshold motion for a declaration that Dean Pupo’s claim for non-pecuniary loss is barred on the basis that his injuries do not fall within the exceptions to the statutory immunity contained in the Insurance Act.

Justice Edwards reviewed the applicable legislation and regulations and noted that:

• Sections 267.5(5)(a) and (b) of the Act provide that the owner of car is not liable in an action for non-pecuniary loss unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”
• O.  Reg. 381/03 added new sections  which helped define the meaning of the wording contained in s.267.5(b) of the Act, namely “permanent serious impairment of an important physical, mental or psychological function,” and confirm the evidence which must be adduced to prove that the statutory exception or “threshold” has been met.
• Section 4.1 of O. Reg. 461/96 states that “[f]or the purposes of section 265 of the Act, ‘permanent serious impairment of an important physical, mental or psychological function’ means impairment of a person that meets the criteria set out in section 4.2.”

Prior case law is of assistance in determining what constitutes permanent, serious, continuous injuries and in Meyer v. Bright (1993) the Court of Appeal outlined the three-part inquiry to be undertaken in the threshold analysis as follows:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired important?
3. If yes, is the impairment of the important function serious?

Under s. 4.2(1)3 of O. Reg. 461/96, for the impairment to be “permanent”, impairment must:

• have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
• continue to meet the criteria in paragraph 1, and
• be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

All of these components must be satisfied.  The word “permanent” does not mean forever, but it does require that the impairment last into the indefinite future as compared to a predicted recovery period with an end date. Under s. 4.2(1)2 of O. Reg. 461/96, for the function that is impaired to be an “important function” of the impaired person, the function must:

• be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
• be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account the reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
• be necessary for the person to provide for his or her own care or well-being, or be important to the usual activities of daily living, considering the person’s age.

The test of whether the impaired function is “important” is a qualitative test as established in Page v. Primeau.

Under s. 4.2(1)1 of O. Reg. 461/96, to be “serious” the impairment must:

• substantially interfere with the person’s ability to continue his or her regular or usual employment, despite recent efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
• substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her training, or
• substantially interfere with most of the usual activities of daily living, considering the person’s age.

The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. It all depends on the way Dean Pupo has been impacted.  The threshold determination is to be done on a case by case basis. The onus of proof to establish that Dean Pupo’s impairments meet the statutory exceptions or “threshold” rests with Dean Pupo.

Justice Edwards noted that Mr. Pupo did not have any pre-existing injuries to the parts of the body that he injured in the car accident. He testified he has experienced pain on a daily basis since the accident, and how this limits him daily.  His sister and father testified about the pain that they observed Mr. Pupo to be in.  He cannot lift heavy objects, is tired, and requires frequent rests.  His life is different compared to pre-accident.

Medical witnesses agreed that Mr. Pupo suffered from a soft tissue injury.  His family physician, and a qualified expert orthopedic doctor both testified that Mr. Pupo endures chronic pain that is not likely to resolve.

The Justice accepts that Mr. Pupo is in daily pain from which there is no likely recovery period, and that it substantially interferes with most of his usual activities of daily living, and that he satisfied the evidentiary requirements of s.4.3 of  O. Reg. 461/96. The Justice is also satisfied that the impairment substantially interferes with his ability to continue his regular or usual employment

There are two distinct aspects to Mr. Pupo’s impairment.  The pain that he endures has an overall limiting impact upon his life.  He experiences daily headaches, as well as the pain.  This tires him out, limiting his endurance and his interest in engaging in life. The second aspect of his impairment is that, because of his shoulder pain and instability, he is unable to lift heavy objects or to lift repetitively.  As a former meat cutter and a former weight lifter, this limitation is an important one in Mr. Pupo’s life.

Both aspects of his impairment affect how he functions in his daily life.  He is less engaged in life as he is in pain and tired.  Weight lifting was an aspect of his daily life.  His goal of strengthening his body was something he pursed, but he is unable to do so because of his impairment.

The Justice found that the function which is impaired is an important one for the usual activities of daily life for someone who is Mr. Pupo’s age, and they prevent him from doing essential tasks of his regular or usual employment. He cannot lift the heavy carcasses of meat and cannot repetitively lift the meat.

Prior to the accident, Mr. Pupo had no pain issues; after the accident, he had debilitating pain. He no longer carries on his pre-accident recreational activities. This has resulted in a substantial interference with his ability to perform his usual daily activities.  On that basis the impairment of the important function is serious. Dean Pupo has proven that he suffers from a permanent impairment of an important function that is serious as it relates to the usual activities of daily living.

For the foregoing reasons, the defence motion is dismissed.

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