Are the damages for your Alberta personal injury claim capped? Without doubt, the Alberta Minor Injury Regulation and the Diagnostic and Treatment Protocols Regulation are among the most controversial pieces of legislation in Alberta history.
Pain and Suffering Damages
These regulations, passed on October 1, 2004 as a direct result of intense lobbying by the auto insurance industry capped general damages for pain and suffering at $4000.00 (updated for inflation the cap is $5,020.00 for 2017). This capped any so called “minor injury” which is defined as a sprain (1st, 2nd, and 3rd degree), strain (1st, 2nd, and 3rd degree), or WAD I or WAD II injury (whiplash associated disorder) caused by a motor vehicle collision, THAT DID NOT RESULT IN A SERIOUS IMPAIRMENT. This was suppose to only apply to minor injuries. The practical reality is that auto insurance companies have been taking advantage of victims without personal injury lawyers and using this poorly written and broad definition to cap approximately 90% of injuries, far exceeding the original intent of only capping minor injuries that did not result in a serious impairment.
Fortunately, three cases since 2012 have given guidance as to what exactly the legislature intended with the 2004 regulations everyone agrees were poorly written and thus very ambiguous. Sparrowhawk v. Zaplotinsky 2012 ABQB 34, MacLean v. Parmar , A.J. No. 214, ABQB , and Jones v Stepanenko, 2016 ABQB 295 (CanLII) have provided much needed guidance in interpreting the complex and confusing legislation in this area.
In Sparrowhawk v. Zaplotinsky 2012 ABQB 34, the court dealt with the narrow issue of whether or not a TMJ injury is a capped “minor injury”. The court held that TMJ injuries are not subject to the cap as the injury was not a sprain, strain or WAD because it involved damage to cartilage and cartilage is not a muscle, tendon, or ligament.
In a Judgment rendered on March 23rd, 2015, Madame Justice Eidsvik of Calgary in MacLean v. Parmar wrote a comprehensive decision with respect to which injuries are capped under the Minor Injury Regulation. The Court found that the Plaintiff suffered from a TMJ disorder, concussion, depression, post-traumatic stress disorder, and chronic pain. The Court specifically stated that all of these are not “minor injuries” as defined by the Minor Injury Regulation and the only issue to be determined was whether the WAD II soft tissue injury was a “minor injury”.
WAD II injuries are capped unless the Plaintiff can show that she is “seriously impaired” with respect to work or household activities.
Specifically, the Minor Injury Regulation defines “serious impairment” as a physical or cognitive function that results in a substantial inability to perform an essential task of the Plaintiff’s employment, or of an education or training program, or of normal activities of daily living, which has been ongoing since the accident, and is not expected to “improve substantially”. As well the Minor Injury Regulation adds the additional requirement that the WAD II injury must be the primary factor contributing to the impairment.
The Court found that this particular Plaintiff’s WAD II injury was not a minor injury because the Plaintiff was unable to continue her employment as a professional server (her second job in addition to her day job as an accountant), and although her injuries had “recovered”, she had not been able to return to the physically demanding job as a server. As a result, the Court concluded that her injury was not expected to “improve substantially”, or at all, and the physical WAD II injury problem is not a minor one.
As well, the Court found that the Plaintiff was unable to perform many of her daily living activities, which included the physical part of housecleaning and physically vigorous sports such as softball, which she played regularly on two teams at the time of the collision. The Court found the house cleaning disability recovered 1.5 to 2 years after the accident, but the ability to participate in vigorous sports activities, is not expected to “improve substantially”.
The Court made some very interesting comments about what is a minor injury claim and what is capped in Alberta at paragraph 59 of the decision. The Court said from a common sense point of view, when you look at the overall level of injury suffered by this Plaintiff, it was not the type of injury that was contemplated by the Legislature to be a “minor injury” when one looks at the Minor Injury Regulation and the protocol set out in the Diagnostic and Treatment Protocols Regulation as a whole. The Plaintiff had over 60 physiotherapy treatments, which is well beyond the 21 sessions that are automatically given in a minor injury situation.
The Plaintiff’s problems lasted 2.5 years and the Court found that, according to the Scientific Monograph of the Quebec Task Force on Whiplash-Associated Disorders, and the International Classification of Diseases and Related Health Problems, pain that lasts this long (i.e. longer than 6 months for the Quebec Task Force and 3 months for the International Classification of Diseases) is classified as “chronic pain” and as such, is not, in the Court’s view, a “minor injury, strain, sprain or WAD injury.”
This is an extremely important finding as it now makes any injury where the pain and suffering lasts longer than 3 months, according to the International Classification of Diseases, chronic pain and thus not a minor injury according to this Alberta Court of Queen’s Bench decision from Madame Justice Eidsvik.
The Court bolstered its opinion by referring to the fact that the Minor Injury Regulation protocols themselves specifically reference the International Classification of Diseases and that the Alberta Court of Appeal in Morrow v. Zhang, 2009 A.B.C.A., 215 distinguished “chronic pain” such as what was described in the Supreme Court case of Martin v. Nova Scotia WCB, 2003 S.C.C. 54, as one that would not be under the “minor injury” definition.
The Court went on to talk about in 2004 when the Legislature was seeking to find a balance between the costs the auto insurance industry was facing in Alberta in processing and paying for minor injuries and the potential increase in insurance premiums versus the innocent victim’s common law right to be properly compensated for their injuries. As was described by the Court of Appeal in Morrow, this balance was achieved by capping the general damages for pain and suffering in minor claims (and not chronic pain ones) and increasing certain Section B benefits and allowing a protocol where treatment options can be accessed quickly in cases where the injury is minor, without debate for a limited period, amongst other things.
The Court, in this case, said that, in its view, the Legislature sought to except more serious injuries, like the ones Ms. MacLean (the Plaintiff in this case) has suffered from, from the proposed cap on pain and suffering damages, since her degree of injury does not fall into the majority of ones that were sought to be capped in the first place (the 80% discussed in the Quebec Task Force) and they were not the type that necessarily needed speedy access to treatment resources for a short period of time, but were injuries that would take more time and more professional resources to heal.
Finally, the Court went on to point out the fact that it is “unfortunate” (this is an understatement on the Court’s part) that the definition of “minor injury” in the Minor Injury Regulation does not fit well with the requirement that a certified examiner under the same regulation is supposed to take into account the findings of the Quebec Task Force and International Classification of Diseases. So that pain caused, for instance by a WAD injury that endures more than 3 to 6 months, is “chronic” and therefore not supposed to be included in the definition of “minor injury”.
However, in certain circumstances, and in fact is the practice in the insurance industry in settling cases, many WAD II injuries, in fact in our law firm’s experience 90% currently, are simply being improperly capped because of the definition of minor injury, without reference to the Quebec Task Force and International Classification of Diseases, which has resulted in a massive injustice to thousands of innocent victims in Alberta.
If you are confused at this point, don’t feel bad as so is the Court. In paragraph 67, after discussing all of the above, the Court said “very confusing and certainly not what the Legislature intended.”
The third case which has shed light on this confusing area of law is Jones v. Stepanenko. In this case the court talked about the expert medical consulting business that has sprung up around the “minor” injury cap and in particular medical experts used by auto insurance companies to deny claims based on FAULTY medical legal reports. The court had this advice for medical experts in personal injury claims, ” I would urge Dr. Stelmeschuk, and other doctors certified to do the Certified Medical Examinations under the regulations, to have the law explained to them on this point. These medical legal reports are relied upon by insureds and injured parties and they need to be as accurate an opinion as possible. It is not appropriate in the legal setting for which these reports are prepared to rely on definitions and tests of disability that do not coordinate with the definitions set out by our Legislature in the regulations. The financial consequences are significant”.
In our law firm’s opinion, the Alberta Legislature did not intend to cap over 90% of auto injuries as “minor”, but they were lobbied and bamboozled by the insurance industry into passing this legislation in 2004, and now we have a legal scheme favouring “for-profit” auto insurance companies making profits by denying or minimizing injury claims of innocent victims. It is an institutionalized systemic injustice that innocent victims with serious long-term injuries are being told their injury is “minor” under Alberta law with over 90% of victims having their injuries capped. The victims only recourse is to hire a personal injury lawyer and engage in litigation to fight for a fair settlement. Fortunately, the three cases discussed above bring some much needed common sense to this area of the law and can be used by personal injury lawyers to obtain fair settlements for innocent victims.