A Guide to the Minor Injury Regulation January 27, 2008 Presented by: Derek Allchurch

What is a minor injury? A sprain (as further defined in the DTP regulation) Includes 3 rd degree ligament or tendon sprain; All fibers of ligament torn Surgery likely required A strain (as further defined in the DTP regulation) Includes 3 rd degree muscle strain All muscle fibers torn (rupture) Surgery likely required

What is a minor injury? A Whiplash Associated Disorder (WAD) injury that does not have: Objective, demonstrable, definable and clinically relevant neurological signs (WAD III) Neurological signs include decreased or absent deep tendon reflexes, weakness, and sensory deficits A fracture to or a dislocation of the spine (WAD IV)

What is a minor injury? If injury is a sprain, strain or WAD I/II it must result in ‘serious impairment’ to not be classified as minor Serious impairment is Impairment to a physical or cognitive function Results in a substantial inability to perform Essentials tasks of regular employment, education or normal activities of daily living Ongoing since Collision Not expected to improve substantially

Timing of classification Based on an individual assessment of the claimant in accordance with the diagnostic protocols (section 4(2)) Assessment by Certified Examiner is prima facie evidence (section 12) Initial neurological signs do not usually persist Delaying the certified exam will result in fewer WAD III classifications

How much do you get? Maximum award (ie. cap) of $4,339 (as of January 1, 2008) for non-pecuniary damages for minor injuries. Annual adjustment as of January 1st each year Increase by annual change in the Alberta CPI $4,144 for 2007 MVA’s $4,000 for 2004 to 2006 MVA’s

How much do you get? Stacking of injuries Section 7(2) of the MIR requires it: When non-minor injuries would result in an award >$4,339 Award = minor injuries + non-minor injuries Carlson v. Lippa [2007] ABQB 33 (J. Wilson) $10,000 for soft tissue injuries $18,000 more for TMJ injury Any award >$4,339 will be reduced no new case law required

All of the Alberta Case Law The Wait and See Approach Kubel v. Alberta (Minister of Justice) 2005 ABQB 836 (ACJ. Wittmann) MIR is not ultra vires See also Hartling v. Nova Scotia (A.G.) 2006 NSSC 225 Cyre (Next Friend of) v. Knol 2006 ABQB 560 (J. Lee) The “cap” legislation is the current law in Alberta so minor’s settlement was approved.

All of the Alberta Case Law cont. Yin v. Lewin 2006 ABQB 402 (J. Rooke) Challenge to Jury Act unsuccessful Argued that insurance industry propaganda re. increasing premiums has tainted the jury pool Banha v. Ho 2006 ABQB 926 (J. Lee) A cap case was set for trial, Plaintiff wanted to wait for the Morrow decision

Beating the Cap Obviously it is a desirable outcome for an injured person to be outside the Minor Injury Regulation (the Cap) From a Plaintiff lawyer’s viewpoint how do you beat the Cap? Groups of 4 to 6 5 ways to beat the Cap if Charter challenge is unsuccessful

Beating the Cap Non-minor injuries Stacking per MIR section 7 Serious impairment New Brunswick and Ontario cases Psychological injuries Common Types and Problems Maximize other heads of damages

Non-minor Injuries Concussion/MTBI TMJ dysfunction Intracapsular disc is cartilage not a ligament or tendon WAD III injuries Screen for neurological symptoms MRI as a screening device Identify disc herniations/bulges Fractures/dislocations

Non-minor Injuries cont. Chronic pain May start as WAD II Psychological component Pre-existing condition Section 3, minor injury must be the primary factor contributing to the impairment Some shoulder, elbow & knee injuries Subacromial bursa, articular capsule and meniscus are cartilage not ligament or tendon

Serious impairment If injury is ‘minor’ the Plaintiff must prove serious impairment to avoid the cap An impairment of a physical or cognitive function that results in a substantial inability to perform (the normal activities of the claimant’s daily living) New Brunswick Rossignol v. Rubidge 2007 NBQB 089 (Q.B.) Fractured tibia and fibula Surgery, 8 days in hospital, good healing Court found no MVA-related PTSD or depression $2,500 awarded for minor personal injury

Serious impairment cont. New Brunswick cont. LeBlanc v. Balmer (2007) CarswellNB 22 (C.A.) Injury Regulation defines minor personal injury as an injury that does not result in permanent serious impairment Seriousness threshold needs to be clarified by the courts Court should not question the wisdom of measures taken by government in the public’s best interest

Serious impairment cont. Ontario Meyer v. Bright (1993) O.J. No (C.A.) Compound fracture of right patella requiring three operations Ontario wording: “permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature” Court found that continuing pain and discomfort not detrimental enough to constitute serious impairment

Psychological injuries Common types (from DSM-IV) Depressive Disorders Major Depressive Disorder, Dysthymic Disorder Anxiety disorders Acute stress disorder Post traumatic stress disorder (PTSD) Event involves actual or threatened death or serious injury Somatoform disorders Pain disorders

Psychological injuries cont. Problems Critical to screen for malingering & secondary gain Pre-existing conditions Previous episode of depression, 60% chance of a second episode Causation Delayed onset Chronic pain Primary injury could be WAD II

Psychological injuries cont. Problems cont. Ontario’s Insurance Act (s.267.5) was subsequently modified to cover permanent impairment of a physical, mental or psychological function. A very difficult hurdle for injury victims Page v. Primeau 2005 CanLII (Ont. S.C.) re. myofascial pain syndrome not ‘serious’

Other heads of damages Cap is only on general damages, Plaintiff can also recover: Punitive damages McIntyre v. Grigg et al. [2006] O.J (C.A.) $100,000 award against an impaired driver (reduced to $20,000 by Court of Appeal) Impaired earnings capacity Pecuniary or non-pecuniary loss? Traynor v. Degroot 2002 BCSC 441 aff’d at 2003 BCCA 483 $500K, Wychopen v. Fuller 1998 ABQB 591 (J. Marshall) $40K

Other heads of damages cont. Special damages Rossignol: $4,000 for parent’s extra time and effort Loss of housekeeping capacity Pecuniary or non-pecuniary loss? – See discussion in Thibert v. Zaw-Tun 2006 ABQB 423 (J. Rooke) Cost of future care

Conclusions Definition of Minor Injury Timing of classification The Certified Examiner How much do you get? Stacking All of the Alberta Case Law Beating the Cap Non-minor injuries Serious impairment Psychological injuries Other heads of damages