In our threshold post we identified that one of the criteria that must be met to recover health care expenses and damages for an injury suffered in a motor vehicle accident is that the injured person have a permanent injury.
Section 4.2 (1) 3. of O.Reg. 461/96, a regulation under the Insurance Act, sets out what must be proven to establish that a permanent injury is present. In this context it is the impairment caused by the injury and not the injury itself which is of importance.
Permanent Injury Requirements
The section states:
For the impairment to be permanent, the impairment must,
i. 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,
ii. continue to meet the criteria in paragraph 1, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
From this we can see that a number of things are necessary before the impairment can be considered permanent.
First, the impairment must be one that the injured person has suffered continuously since the motor vehicle accident. It cannot be transient in nature.
Supported by Medical Opinion
Second, a medical opinion stating that the impairment is not expected to substantially improve is required. This requirement can be satisfied with an expert opinion report from a doctor. Speculation or surmise by lay people or other healthcare professionals is not sufficient. More than a minor improvement is needed for the impairment not to be considered permanent.
Participation in Recommended Treatment
Third, the injured person must participate in recommended treatment for the impairment. The participation must be a reasonable one. In other words it cannot be cursory or half-hearted. It cannot be just any treatment but one that is recommended for the impairment. The identification of what treatment is recommended will have to be rooted in medical evidence and opinion.
The Injury Causes Substantial Interference
Fourth, during the time since the motor vehicle accident the impairment must substantially interfere with the injured person’s employment, vocational pursuits or most of the usual activities of daily living.
Substantial Improvement Not Expected on an Objective Basis
Fifth, not only must the injured person not be expected to substantially improve but this must also be true for persons in similar circumstances. Circumstances can include the injured person’s age, physical and emotional characteristics, nature of the impairment and any number of things that may affect recovery that are actually present in the particular case. Evidence of whether other persons in similar circumstances are likely to experience substantial improvement from the impairment will be required.
Lessons From the Law
The issue of the meaning of permanent injury in the context of the motor vehicle accident threshold has been considered many times by the courts. These decisions inform us on how the regulatory framework defining permanence will be interpreted.
The term permanent does not necessarily mean strictly forever until death. Rather, it means lasting or intending to last or function indefinitely as opposed to temporarily. It refers to a condition lasting into the indefinite future without any end limit, as opposed to one predicted to have some defined end. See Bos Estate v. James, 1995 CanLII 7162 (ON SC), Altomonte v. Matthews,  O.J. No. 5756 (S.C.), and Brak v. Walsh, 2008 ONCA 221 (CanLII).
Permanence of injury also is established where a limitation in function is unlikely to improve for the indefinite future. See Hartwick v. Simswer,  O.J. No. 4315 (S.C.J.), Rizzo v. Johnson, 2006 CanLII 34452 (ON SC), and Brak v. Walsh, 2008 ONCA 221 (CanLII).
Mere passage of time, without evidentiary criteria to gauge or assess its significance, (e.g., a medical perspective regarding the injuries sustained and expectations of recovery in the normal course of events), is insufficient to establish a substantial possibility that the impairments are permanent. The question of whether or not an impairment is permanent should be determined on the basis of objective medical evidence. See Seguin v. Vandinther,  O.J. No. 3719 (S.C.J.).