In 2004, the insurance industry successfully lobbied the Alberta provincial government to “cap” damages payable to motor vehicle accident victims for minor injuries. Since that time, some insurance representatives have argued that the top damage award payable under the cap, which in 2019 is $5,202, is awarded only to those who have suffered the most serious “minor injuries,” and they then attempt to bargain down from this minimal sum. Some insurance representatives may also take the position that your injuries clearly fall within the “cap,” and that damages that would be available if you filed a lawsuit are not payable.
As experienced plaintiff personal injury lawyers, CAM LLP would like to clarify how the minor injury regulation works. The highly complex legislation enacted in 2004 was intended to cap the amount of damages payable for minor injuries defined as a sprain, strain, or “whiplash associated disorder (WAD)” that does not result in serious impairment.
Injuries That Are Generally Not “Capped”
The following injuries are not covered by the cap:
- Concussions and traumatic brain injuries
- Chronic pain
- Certain types of jaw joint pain, or TMJ dysfunction
- Spinal cord injuries
- Depression and other mental injuries
Injuries That Result in Serious Impairment Are Not Capped
A sprain, strain, or whiplash injury will not be “minor” and fall within the cap if it results in a “serious impairment” such that you can no longer perform the essential tasks of your employment, or of an education or training program, or other normal activities of daily life, and this has been ongoing since the accident, and is not expected to “improve substantially.”
What qualifies as serious impairment is illustrated in a 2015 Alberta case involving a 29-year-old accountant who was hit by a bus that went through a red light. At the time of the accident, she was on her way home from her second job as a server in a pub. The bus driver and the City of Calgary admitted liability for the collision. Based on the evidence, the Court held that as a result of the collision the Plaintiff suffered from a moderate whiplash and strain to her neck, back and hip with radiating pain down her arms, a concussion, TMJ dysfunction which caused facial and jaw pain and headaches, chronic fatigue, depression, PTSD, and chronic pain which lasted for approximately 2 ½ years. She sought treatment from her family doctor, a physiotherapist, a massage therapist, dentists and a psychologist. After the accident she tried to persevere in her employment but found that she was no longer able to hold down her second job working in the pub. Before the collision, she had played on two softball teams, played dodgeball, and enjoyed camping, hiking, rollerblading, wakeboarding and downhill skiing. After the accident, she had to give up playing on her softball team, began camping in a trailer, rather than a tent, and generally reduced her activities. Instead, she took up yoga, Pilates, cycling and elliptical training. She also enjoyed walking her dogs.
The insurer for the defendants tried to argue that her whiplash injuries were “minor,” and thus fell within the cap. The judge rejected this argument because the Plaintiff could no longer continue in her second job serving in the pub as it was too physically demanding. She was also unable to perform many of her daily living activities, including some physical housecleaning, and she was unable to participate vigorously in the sports that she had previously enjoyed. These were serious impairments in her function and were not expected to improve substantially, and therefore she did not suffer a “minor injury.” She received the full extent of the damages for her “pain and suffering” that her lawyer requested on her behalf, $60,000.
Don’t Forget About Special Damages
When dealing with the insurer or the insurance adjuster, it is also important to keep in mind that you are entitled to your “special damages” even if your injury is capped.
Special damages are the costs that you have incurred as a result of being an accident victim and can include, for example:
- transportation costs, including mileage, to get you to and from your medical appointments
- the cost of over the counter medication, heating pads, and ice packs
- the cost of new bedding and pillows that may be required to allow you to have a good night’s sleep given the pain experienced with your injuries
- the cost of any other medical aids that may be required
- expenses for fitness activities that you may have to take up to deal with the pain of your injuries, such as the cost of yoga lessons, or the cost of a stationary bicycle
- the cost of any additional services that you may have to pay for, such as paying for someone to perform the housecleaning that you are no longer capable of
If you are a motor vehicle accident victim, it is important that you understand the exceptions to the cap on personal injury damages in motor vehicle accidents and how they apply to your case. The first step you should take to protect yourself is to ask an experienced plaintiff personal injury lawyer to review your situation with you. For a free consultation at CAM LLP, please CONTACT US.
Note: This blog post was originally published in October 2017 and has since been updated with relevant content