Myofascial Pain Dysfunction case fails to meet “serious impairment” threshold, Ontario court rules

A 71-year-old woman diagnosed with Myofascial Pain Dysfunction as the result of a motor vehicle accident has not met the threshold of “a permanent and serious impairment,” the Ontario Superior Court has ruled in Rosypskye v. Stewart.
The court found the law in this area is based on the 1993 case of Meyer v. Bright.
In Meyer v. Bright, the Ontario Court of Appeal noted the following:
“It is simply not possible to provide an absolute formula which will guide the court in all cases in determining what is ‘serious.’ This issue will have to be resolved on a case-to-case basis.
“However, generally speaking, a serious impairment is one which causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment.”
The court noted the plaintiff, Olga Rosypskye, was the only witness called. Her personal doctor was not called as a witness.
The only medical report in the case came from a general dentist who specialized in TMJ (Temporomandibular Joint Disorder). He found, in fact, that Rosypskye did not suffer from TMJ.
Rosypskye, the dentist noted in his report, complained of non-migraine headaches based on the “mastification” of muscles around her face, which, in turn, was exacerbated after her motor vehicle accident.
The Superior Court found the lack of medical evidence in the claim counted against Rosypskye.
“It is hard to conclude that if the plaintiff were suffering from a ‘permanent serious impairment of an important physical, mental or psychological function’ that she would not have seen more doctors,” the court found.
“To sum up, there was, in the court’s opinion, a paucity of evidence that would lead it to conclude that the plaintiff had overcome the burden of proof that was on her to establish that she had met the threshold.”