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,” when in fact they do not, either due to the nature of the injuries or because the injuries resulted in a serious impairment.
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.
What Injuries Are Not Generally “Capped”?
The following injuries are not covered by the cap:
- Concussions and traumatic brain injuries
- Chronic pain
- In relation to accidents after June 1, 2018 ONLY, TMJ dysfunction that involves damage to the bone or teeth, or damage to or displacement of the disc
- Spinal cord injuries
- Psychological injuries (Unless they arise from the sprain, strain or whiplash injury and resolve when the physical injury resolves, in relation to accidents after June 1, 2018 ONLY)
What Qualifies as Serious Impairment?
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 Plaintiff who was hit by a bus that went through a red light. At the time of the accident, the Plaintiff was employed as an accountant and she also worked part-time 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, the Plaintiff had played softball and dodgeball, and she enjoyed camping, hiking, rollerblading, wakeboarding and downhill skiing. After the accident, she had to give up playing softball, she began camping in a trailer, rather than a tent, and generally reduced activities that aggravated her injuries. Instead, she took up yoga, Pilates, cycling and elliptical training.
The insurer for the defendants tried to argue that the Plaintiff’s whiplash injuries were “minor,” and thus fell within the cap. The judge rejected this argument because the Plaintiff could no longer work as a server as it was too physically demanding. She was also unable to perform many of her daily living activities, including some 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.” The Plaintiff received $60,000 for her “pain and suffering”.
What are 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. They include:
- 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 medical aids
- expenses for fitness activities that help to manage your symptoms, such as yoga classes
- the cost for services that you are not able to do yourself because of your injuries, including housekeeping and childcare
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