Plaintiff sues too quickly to determine the presence of a serious and permanent impairment: court

The Ontario Superior Court has found that a plaintiff injured in an auto accident “rushed” to trial before full recovery from two shoulder surgeries and therefore has not met the threshold for a permanent serious impairment.

In Iannarella v. Corbett, the plaintiff in the case was injured in a motor vehicle accident in February 2008. Following the accident, he complained of left shoulder pain, which he said restricted the mobility of his left arm and shoulder. The judge noted some evidence had been tendered that suggested the plaintiff’s complaints had morphed into chronic pain syndrome.

At the time of the accident, the plaintiff worked for Fenco Company, a car parts manufacturer where he supervised several workers and drove a forklift vehicle in the plant. The plant laid off a number of workers in October 2008, a few months after the accident.

One of several doctors caring for the plaintiff after the accident performed surgery on the plaintiff’s shoulder in early 2010 to repair a partial tear in the ligaments. After the doctor concluded the first operation, which he deemed to be a “success,” he performed a second surgery in September 2011 to improve the pain situation.

The doctor found the second surgery was also successful, adding that the plaintiff’s response to the surgeries would take into 2013 to determine. The doctor did not recommend that the plaintiff was ready for work after the surgeries.

The court found that the plaintiff did not meet the threshold for a serious and permanent impairment that prevented the plaintiff from returning to work.

For one thing, the plaintiff had no work to which to return. He had not been looking for work since he had been laid off. Secondly, the plaintiff had not allowed sufficient time to recover from the effects of the surgeries before proceeding to trial.

“This trial began only seven and a half months after surgical intervention aimed at improving [the plaintiff’s] left shoulder pain complaints,” the court found. “As will be seen later in these reasons, recovery from that surgery is ongoing and a prognosis for the future and the eventual medical outcome cannot yet be made.”