[1] Section 267.5(5) of the Insurance Act R.S.O. 1990, c.1.8 (“the Insurance Act”) relieves defendants from liability for pain and suffering damages unless the plaintiff has sustained permanent, serious impairment of an important physical, mental or psychological function. By way of observation, I am uncertain as to what other functions might exist relating to the body.
[2] Whiplash may well incorporate all three of these functions to different degrees but the root cause is a physical one emanating from soft tissue, physical injury to the neck and shoulder.
[3] I think we have transcended the era when whiplash, due to the fact that it is often without objective findings, was equated with faking.
[4] A whole specialty in medicine now exists dealing with physical medicine and rehabilitation. This is sometimes referred to a s physiatry. Experts in this field are relied upon by litigants often. They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.
[5] Pain, and its degree of severity, are subjective and can exist without any objective finding. Calling an expert to say that no objective finding equals no pain is on longer acceptable. That same expert will often treat the pain that exists even though it is without objective findings.
[24] I reject Dr. Clark’s evidence outright. He was a physiatrist called by the defence. His evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero.