Since 2004, Plaintiffs who have sustained soft tissue injuries in motor vehicle accidents in Alberta have faced the challenge of determining whether their injuries fall within “the cap” on minor injuries, as prescribed by the Minor Injury Regulation, Alta Reg 123/2004 .
Miller Thomson’s personal injury group monitors decisions in the courts, so we can advise our clients as to whether or not “the cap” likely applies to the facts of their case. In February 2015, another case made its way onto the public record, which offers us further guidance: McLean v. Parmar, 2015 ABQB 62 (“McLean”).
In McLean, the 29 year old Plaintiff was hit by a City of Calgary bus that went through a red light on January 11, 2008. The Court determined the accident left her with a severe soft tissue injury to her neck, shoulders and back, as well as headaches, dizziness, TMJ dysfunction, PTSD, depression, and chronic pain that lasted about 2.5 years. Unfortunately, at that point, the Plaintiff was involved in a second accident (in September 2010).
This potentially capped claim involved what’s often referred to as a “Battle of Experts:” where experts for both sides gave evidence to the court, and the judge weighed the strengths and weaknesses of the evidence in rendering her decision. In this case, the Defendant’s experts testified that Ms. McLean’s injuries were minor, such that the cap should apply. A Certified Medical Examiner also determined that Ms. McLean’s injuries were minor in nature. However, in displacing that opinion, Eidsvik J. found the certified examiner did not rely on the definitions of “chronic pain” found in two resources as required by the regulation: Scientific Monograph of the Quebec Task Force on Whiplash Associated Disorders (the “Quebec Task Force”) and the International Classification of Diseases and Related Health Problems , (the “International Classification of Diseases”).
Despite Ms. McLean’s soft tissue and psychological problems largely settling down after about 2.5 years, the Court accepted evidence advanced by the Plaintiff, confirming the significant impact these injuries had on her life during that period. At para. 70, Eidsvik J. acknowledges that: “several of the injuries Ms. McLean suffered from impact one another. For instance, her neck and back pain caused tension and problems sleeping. She had nightmares from her PTSD which also caused poor sleep. The fatigue contributed to her depression. The tension she had in her neck and back would not have helped her TMJs and vice versa. And her headaches could have been caused or contributed to by her neck pain, concussion, and/or TMJ disorder.”
Eidsvik J. found that the Minor Injury Regulation did not apply to Ms. Mclean’s chronic pain, which lasted longer than 3-6 months and required a much more rigorous treatment regime than the 21 treatments prescribed by the protocols. She also took into account the impact these injuries had on Ms. McLean’s life in determining that her damages were more than the maximum allowable under the Minor Injury Regulation (for the amount, adjusted for inflation, see the Interpretation Bulletin here). She awarded the Plaintiff $60,000.00 for her pain, suffering, and loss of amenities of life.
Ms. McLean was also awarded over $40,000.00 for loss of her earnings with respect to a second job she held pre-accident, plus a further $55,000.00 for her losses associated with delayed training in pursuit of her Chartered Accountant status. She also received a further $12,500.00 for her loss of housekeeping capacity, as well as $3,855.00 for her provable out of pocket expenses.
The line separating a minor injury from a non-minor one is, as Eidsvik J. suggests in McLean v. Parmar, “Very confusing” (para. 67). However, it is clear that the court is interested in the impact these injuries have on Plaintiffs’ lives. Eidsvik J. further noted that "from a common sense point of view, the overall level of injury suffered by Ms. McLean is not what was contemplated by the Legislature to be a "minor injury" (para. 59) Even a soft tissue or psychological injury can result in “serious impairments.”
The 2012 case of Sparrowhawk v. Zapoltinsky has also been instructive regarding the test for these “serious impairments.” Madam Justice D.L. Shelley concluded at para. 42 of her analysis in Section 5, that an injury causes a serious impairment, and falls outside the Minor Injury Regulation if it:
- prevents an injured person from engaging in a “normal activity of daily living,”
- impedes an injured person’s 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.”