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

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

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

3. 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)

4. 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

5. 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

6. 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

7. 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

8. 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.

9. 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 forthe Morrow decision

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. Serious impairment cont. • Ontario • Meyer v. Bright (1993) O.J. No. 2446 (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

17. 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

18. 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

19. 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 40371 (Ont. S.C.) re. myofascial pain syndrome not ‘serious’

20. Other heads of damages • Cap is only on general damages, Plaintiff can also recover: • Punitive damages • McIntyre v. Grigg et al. [2006] O.J. 4420 (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

21. 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

22. 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