The jury awarded $150,000 for pain and suffering damages where the Plaintiff suffered from chronic pain and had returned to work. After the jury delivered its verdict, defence counsel brought a threshold motion which was dismissed by the court.
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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 defence counsel brought a threshold motion for a declaration that the plaintiff’s claim for non-pecuniary loss was barred on the basis that his injuries did not fall within the exceptions to the statutory immunity contained in s.267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 and the applicable regulations.
At the time of the accident, the plaintiff, Deano Pupo, had been working for 2 years as a meat cutter at Pupo’s Food Market, a store partly owned by his father. Immediately following the accident, Pupo complained of pain in his neck, which generated headaches and pain in his left shoulder. After completing three years of college and some university, Pupo returned to Pupo’s Food Market in 2015. However, because of his neck and shoulder pain and shoulder instability, Pupo was unable to lift meat carcasses and unable to resume his meat cutting position. His father created a new role for him which involved rolling out a cart of small meat packages between 5 and 6 pounds and placing them into the displays. In 2015, Pupo also began a split shift. He worked the morning, went home to rest for a few hours and then returned to work for the balance of his shift.
In considering whether Pupo’s injuries met threshold, The Honourable Justice Edwards accepted the evidence of Pupo’s sister and father who testified how the pain limited his functioning in life. Justice Edwards also accepted the evidence of Dr. Kouros, family physician and Dr. Theodoropoulos, who was qualified to give expert evidence with respect to orthopaedic injuries and sports medicine. Both doctors testified the chronic pain that Pupo endured was unlikely to end.
Justice Edward found the impairment to be important and serious given it prevented Pupo from doing the essential tasks of his regular or usual employment as a meat cutter. Defence counsel argued that with accommodations, Pupo had returned to his usual or regular employment. Justice Edward rejected defence counsel’s argument and found Pupo’s employment had changed qualitatively as he was no longer a meat cutter and returned to work in an entirely different capacity. Justice Edward found the plaintiff had proven he had a permanent impairment of an important function, and which is serious as it relates to his ability to continue his regular or usual employment.
The defence’s motion was dismissed.
This post originally appeared on Ontario Trial Lawyers Association Blog on March 17, 2017.