Plaintiff and Defence counsel alike were eagerly awaiting Justice Shelley’s decision in Sparrowhawk v. Zapoltinsky [2012 ABQB 34]. This decision is one of the few decisions that has been rendered on the Minor Injury Regulation and Diagnostic and Treatment Protocols Regulation. As counsel for both Plaintiffs and Defendants know, one of the sticking points in settlement and resolution of claims arising from motor vehicle accidents has been whether or not an injury to the temporomandibular joint (“TMJ”) represents a minor injury such that it would fall within the cap on soft tissue damages.
Justice Shelley’s decision of January 13, 2012 determined that Mr. Sparrowhawk’s TMJ injury was not a minor injury and therefore this injury did not fall within the cap for soft tissue damages. Justice Shelley then went into a detailed explanation and analysis of her reasoning.
Mr. Sparrowhawk’s injuries arose from a relatively hard rear-end impact which occurred March 1, 2005.
The parties came before Justice Shelley with one unresolved issue - whether a jaw injury caused by the March 1, 2005 accident was a “minor injury” as defined by the Insurance Act RSA 2000 c.-I3, the MIR Alta Reg 123/2004 and the Diagnostic and Treatment Protocols Regulation (“DTPR”) Alta Reg 122/2004.
Justice Shelley noted before the accident Mr. Sparrowhawk was in generally good health and he first noticed his jaw pain very shortly after the accident occurred. Mr. Sparrowhawk did not have a history of jaw injury or pain. He began to experience jaw joint pain several times a week. Over time the pain became more frequent and at the time of trial was continually present.
Mr. Sparrowhawk saw a number of doctors in relation to his injuries. Some of those doctors included a 2007 visit to his dentist who provided a splint and instructed Mr. Sparrowhawk on the use of the splint. Mr. Sparrowhawk was not diligent in the use of his splint as he reported that it caused uncontrollable gagging and was painful.
Expert Evidence at Trial
Mr. Sparrowhawk was examined in April 2010 by Dr. Martyn Thomas, a dentist who diagnosed TMJ disorder and recommended that a new lower jaw splint be purchased. Dr. Thomas provided an expert report and testified on behalf of the Plaintiff. He had a specific expertise in temporomandibular joint disorder (“TMD”) injuries and their treatment, and it was his opinion that TMD was distinct and different from whiplash associated disorders (“WAD”).
Essentially, Dr. Thomas stressed that
the temporomandibular joint’s muscle, bone, cartilage, and ligament components must be considered as a single, functional unit. If dysfunction in any part of the temporomandibular joint’s components persist for a significant period of time (more than a few weeks), one can expect that the operation of the entire joint will be affected.”
Dr. Thomas saw and examined Mr. Sparrowhawk on several occasions. Dr. Thomas reasoned that since x-rays did not reveal any damage to the bones it must be the temporomandibular cartilages that were damaged. Dr. Thomas also commented on the diagnosis and treatment of TMD and TMJ injury, as well as the language used in the MIR and the DTPR.
The Defendants presented their own expert in dentistry, Dr. Dean Kolbinson, a Professor of Dentistry at the University of Saskatchewan.
Conclusions Arising From The Expert Evidence
Justice Shelley noted that Drs. Thomas and Kolbinson agreed and Justice Shelley accepted that:
- TMD injuries are not WAD injuries;
- Dentists are the experts who assess, evaluate and treat TMD injuries;
- The terms “sprain” and “strain” are not used by dentists when they diagnose and treat TMD injuries, and
- Some of the treatments for sprains and strain identified in the DTPR have no application to TMD and mouth injuries.
Analysis – Does a Jaw Injury Fall Within the Soft Tissue Injury Cap?
Justice Shelley was asked to interpret the Insurance Act, MIR and DTPR minor injury scheme as it related to TMJ injuries. As part of that interpretation the Plaintiffs put forward a number of letters sent by members of the Alberta Government responding to inquiries and concerns from lawyers about the operation of the minor injury legislative scheme. Justice Shelley concluded that these letters were not useful or admissible interpretive tools in the case at bar.
She did agree that the case required her to interpret both the MIR and the DTPR in the context of a jaw injury. Together those regulations set diagnostic procedures and treatment and tort recovery limits for certain categories of injuries that result from motor vehicle accidents. Justice Shelley reviewed that both the MIR and DTPR defined minor injury in the same manner:
“Minor Injury” in respect of an accident means:
- a sprain;
- a strain; or
- a WAD injury;
caused by that accident that does not result in a serious impairment.
Justice Shelley ultimately concluded that Mr. Sparrowhawk’s TMJ injury was not a minor injury for the following reasons:
- The injury was not a sprain, strain or WAD.
Dr. Thomas concluded Mr. Sparrowhawk’s jaw injury more likely than not involved damage to the TMJ’s cartilage. The experts agreed that a cartilage is not a muscle, tendon, or ligament. Injury to the cartilage is therefore not a “sprain” or “strain” as defined in the MIR or DTPR.
Similarly, the experts agreed that TMD is not a facet of WAD. Justice Shelley also concluded Mr. Sparrowhawk experienced a non-minor injury as a the TMD caused resultant wear and damage to his teeth. This damage to the teeth was a direct consequence of the TMD injury and as teeth are not muscle, tendon or ligaments, this damage was also not a “sprain” or “strain”, nor is it a WAD injury. On that basis Mr. Sparrowhawk’s injuries were not minor injuries. Justice Shelley indicated that if she was incorrect on the above analysis, the injury was still not a minor injury based on the following two points – the injury caused a serious impairment and the minor injury scheme does not include dental injuries.
- The injury caused a serious impairment.
Justice Shelley noted that the MIR excludes as minor injuries any injury that causes “serious impairment”. Evaluation of serious impairment has five steps:
- Whether a physical or cognitive function is impaired;
- Whether a sprain, strain or WAD injury is the primary factor contributing to the impairment;
- Does the impairment cause a substantial inability to perform:
- essential work tasks;
- essential facets of training or education; or
- “normal activities of the claimant’s daily living”
- Whether the impairment has been “ongoing since the accident”; and
- Whether the impairment is not expected to “improve substantially”.
Justice Shelley indicated that Mr. Sparrowhawk’s injury did impair a physical function as he reported difficulty with chewing, yawning, and speech. Justice Shelley found that if she had concluded Mr. Sparrowhawk’s injuries were restricted to the type that could be considered minor injuries, then she would have concluded those potentially minor injuries were the primary cause of Mr. Sparrowhawk’s impairment.
In terms of whether the injury created a substantial inability to perform a normal activity of daily living, Justice Shelley found that injuries should be evaluated broadly when being evaluated for their effect on common-place, day to day activities. An “activity of daily living” is interpreted broadly but also is interpreted in the context of the particular injured person.
Justice Shelley concluded that “substantial inability” exists where an injury:
- Prevents an injured person from engaging in a normal activity of daily living;
- Impedes an injured person engaging in a normal activity of daily living to a degree that is non-trivial for that person;
- Does not impede an injured person from engaging in a normal activity of daily living but that activity is associated with pain or other discomforting effects such that engaging in the activity diminishes the injured person’s enjoyment of life.
Mr. Sparrowhawk reported, and Justice Shelley accepted, that he experienced difficulty and significant pain for activities such as chewing food and yawning, and that his ability to speak had been impaired. Justice Shelley concluded that the substantial inability criteria for serious impairment had been met.
Justice Shelley concluded that the “ongoing” criteria in the definition of serious impairment (the impairment has been ongoing since the accident) does not mean “continual” or “uniform” but that rather the impairment persisted over time.
Mr. Sparrowhawk had now experienced frequent jaw related dysfunction and pain for over six years and Justice Shelley concluded it was “an ongoing impairment” such that the criteria for substantial impairment had also been met.
Finally, the last requirement for “serious impairment” was that the “injury is not expected to improve substantially”. Justice Shelley concluded that substantial impairment does not mean any improvement but rather that the dysfunction cannot be expected to improve to such a degree that the “substantial inability” will cease. Substantial improvement is evaluated on a subjective basis specific to the injured individual. Justice Shelley therefore concluded on a balance of probabilities that no substantial improvement could be expected for Mr. Sparrowhawk’s impairment and therefore under the MIR, Mr. Sparrowhawk’s jaw injury had caused serious impairment and was not a minor injury.
- The minor injury scheme does not include dental injury.
The Plaintiffs went on to argue that Mr. Sparrowhawk’s jaw injury could not be considered a minor injury because it is the type of injury that is only evaluated and treated by dentists. The MIR and the DTPR system to diagnose and categorize injuries as minor or not minor has no provision for dentists to act as certified examiners, healthcare professionals or injury management consultants. The Plaintiffs stated that in June 2011 none of the registered certified examiners were dentists. That was important because the Plaintiffs argued only dentists investigate, diagnose and treat jaw and tooth related injuries and dysfunction.
Justice Shelley reviewed the MIR and the DTPR and noted that the different approach to health professionals in the two regulations suggested that the Legislature had carefully evaluated what kinds of health professionals were appropriate to participate in and apply the various parts of the minor injury scheme. If that was the assumption, the logical implication was that the omission of dentists was intentional by the Legislature. Here, the relevant legislation provided no evidence that dental expertise was required to evaluate minor injuries. Justice Shelley stated that led to a conclusion that any injury which fell exclusively into that domain such as TMD and tooth damage cannot be a minor injury.
Justice Shelley’s decision in Sparrowhawk v. Zaplotinsky marks a turning point in the analysis of TMJ injuries vis a vis the MIR and the DTPR. It should be noted that Mr. Sparrowhawk had no derangement of his jaw as a result of this accident. Anecdotally, this decision was filed and released January 13, 2012. This author received correspondence from counsel later that afternoon referencing this decision in relation to TMJ injuries and “significant impairment” issues.
This decision will be well referenced in support of the argument that TMJ injuries fall outside the cap on soft tissue damages and for the argument that was is considered a “serious impairment” will depend on a more subjective analysis of the Plaintiff, their day to day activities, their injuries and how those injuries may impede an injured person from engaging in normal activities of daily living, or even cause a discomfort such that engaging in the activity diminishes the injured person’s enjoyment of life.
Another significant component of Justice Shelley’s decision references chronic injuries and how those are dealt with under the Regulations. We anticipate that this decision will make it more difficult to argue that chronic pain is capped by the MIR.
There is no indication at this time as to whether Mr. Zaplotinsky will appeal this decision but Justice Shelley has made sure that her reasoning is well articulated and detailed such that challenging the decision on the basis of an error of law will be more difficult.