Say you’ve already learned to live with, or are learning to live with a chronic condition. Then, out of nowhere, you’re rear ended at a traffic light, making your already chronic pain even worse. Do you have a claim? Of course you do, but it is one of the more difficult claims.
I say “of course you do” because this is a basic legal right in Ontario if you have auto insurance. If someone causes you harm, they are accountable to compensate you fairly for that injury. Unfortunately, the onus is on you to prove your injuries and losses from a car accident. Sometimes, rear end collisions, or any type of collision for that matter, may not cause any additional injuries, and you can walk away feeling the same as you did before it occurred. Sometimes, you’ll think you feel fine after a collision, but you wake up the next morning in a world of hurt.
You should start journaling your symptoms immediately following an accident. Be sure to document how you were feeling pain-wise before the collision, as this is the time when your memory is fresh.
How does a pre-existing chronic condition look in a lawsuit?
Having a pre-existing chronic condition causes you to face some extra hurdles when going through a lawsuit. Your most important challenge is to recover as quickly as possible. Talk to your family doctor and get the physical therapies you require. The best-case scenario after doing rehabilitation, is to return to whatever level of chronic pain you had gotten used to before the collision.
However, if a year and a half down the road, after getting all sorts of physical treatments, you reached a plateau in your recovery. You’ve gotten used to a “new normal” but you’re still finding yourself in pain on a daily basis. Now is the time to figure out how this pain is different from what it would have been had the crash not occurred.
You were getting headaches before the accident. How often are you getting headaches now? You find it hard to get out of bed due to depression. Can you compare that feeling to pre-crash symptoms? You had a rotator cuff injury 2 years prior but you had not fully recovered before this collision. How does that pain compare to before this accident?
Keeping a diary or a “pain journal” to record your symptoms is the best way to track and document your symptoms. During the normal course of a lawsuit, it is helpful to be able to look back and refresh your memory on what your symptoms were like immediately following the accident, to a year and a half, or more, later. This is especially helpful if you’re required to attend an examination for discovery.
Chronic pain in general is tough because it is not necessarily something that can be identified on an imaging scan. This means it becomes even more salient to document your symptoms when they are ones that can’t necessarily be identified on some form of diagnostic testing.
A pre-existing condition could have a larger payout
Say you’re someone who has a very physical job, and often has to get regular chiropractic adjustments on their lower back every few months. Or you have a pre-existing neck condition or deal with occasional depression that is easily managed with by a short-term course of anti-depressants. If someone with a pre-existing condition is involved in a motor vehicle accident, it is sometimes the case where their symptoms get much worse. This could cause them to require ongoing care for the rest of their lives, potentially causing them to be permanently unemployable and rely on some form of indefinite social assistance.
If a perfectly healthy person had been in the exact same crash, they might have suffered a couple months and then completely recovered without ever taking any time off work. While that healthy person might have been entitled to compensation of only a few thousand dollars, the person with pre-existing conditions may be entitled to compensation of much more.
The threshold test & statutory deductible in motor vehicle accidents
Please keep in mind, however, in order to recover monies for general damages, also known as “pain and suffering,” after a car accident, you must meet the following threshold test:
As denoted in section 267.5(5) of the Insurance Act – the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained:
(a) permanent serious
disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.[i]
Threshold relates only to motor vehicle accidents, and no other form of personal injury. So, if you’re involved in a car accident, just remember to journal your symptoms as often as you can and seek out a personal injury lawyer if you have any questions.
[i] Ontario Insurance Act, R.S.O. 1999, c. I.8, https://www.ontario.ca/laws/statute/90i08#BK282
Published on November 14, 2024
