Minor Injury: A “Capped Claim”

PERSONAL INJURY LAWYERS CALGARY EXPLAINS – Minor Injury: A “Capped Claim”

PERSONAL INJURY LAWYERS CALGARY EXPLAINS - Minor Injury A “Capped Claim”Background:

In 2004, Alberta enacted the Minor Injury Regulation to outline the limit of the total amount recoverable as damages for the non-pecuniary loss (the cap) for a minor injury sustained by an individual from a motor vehicle accident. If your injuries resulting from a MVA are minor and fall under the cap, your compensation for the pain and suffering due to those injuries is limited to a capped amount.

The public policy argument in enacting the Regulation was to strike a balance between an individual’s right to claim damages for the injuries resulting from a motor vehicle accident, and the increasing cost of providing and purchasing insurance (high premiums).

What is a Minor Injury?

The Regulation defines “minor injury” as a sprain, strain, or WAD injury (whiplash associated disorder) caused by a motor vehicle accident, that does not result in a serious impairment.

Sprain” means an injury to one or more tendons or ligaments, or to both. “Strain” means an injury to one or more muscles. A “WAD injury” means a whiplash‑associated disorder other than one that exhibits one or both of:  (i) objective, demonstrable, definable and clinically relevant neurological signs; and or (ii) a fracture to or a dislocation of the spine.

The medical practitioners have identified 5 grades of WAD injuries, namely:

WAD 0 No neck pain, and no physical signs of injury apparent to the medical practitioner.
WAD 1 Neck pain with normal range of motion and strength, no swelling, and no

muscle spasm

WAD 2 Neck pain with limited range of motion, spasm or swelling, tenderness in the

neck and shoulders, possibly related to sprained ligaments or muscle tears causing internal bleeding and swelling

WAD 3 Some or all WAD 2 symptoms with objective neurological symptoms such as decreased or absent rexes, skin numbness or tingling, and muscle weakness, usually related to nerve pressure or impingement or injuries to neural tissue (brain, spinal cord, and nerves throughout the body).
WAD 4 Fracture or dislocation

 

In Alberta only WAD 1 and 2 are considered as ‘minor’ and hence are covered under the Regulation (WAD 3 & 4 are beyond cap and WAD 0 has no legal recognition).

The Regulation defines minor injury as soft tissue injury which is not a ‘serious impairment’. The qualifier “serious impairment”, means an impairment of a physical or cognitive function

(i)   that results in a substantial inability to perform the:

  1. essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,
  2. essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or
  3. normal activities of the claimant’s daily living,

(ii)    that has been ongoing since the accident; and

(iii)    that is expected not to improve substantially.

The Cap Limit and Annual Adjustment

The Regulation requires an annual adjustment to the total amount recoverable as damages for non-pecuniary loss for minor injuries in accordance with the annual change in the Alberta Consumer Price Index. The annual adjustment is effective January 1 each year. In 2004, the Regulation set the amount of the cap as ,000. For minor injuries resulting from automobile accidents that occur in Alberta between January 1 and December 31, 2020, the maximum minor injury amount is ,296 (which is 1.8 percent more from the 2019 cap limit). See the historical table below:

Effective Date Range Minor Injury              Amount

October 1, 2004 – December 31, 2006           ,000

January 1, 2007 – December 31, 2007           ,144

January 1, 2008 – December 31, 2008           ,339

January 1, 2009 – December 31, 2009           ,504

January 1, 2010 – December 31, 2010           ,518

January 1, 2011 – December 31, 2011           ,559

January 1, 2012 – December 31, 2012           ,641

January 1, 2013 – December 31, 2013           ,725

January 1, 2014 – December 31, 2014           ,777

January 1, 2015 – December 31, 2015           ,892

January 1, 2016 – December 31, 2016           ,956

January 1, 2017 – December 31, 2017           ,020

January 1, 2018 – December 31, 2018           ,080

January 1, 2019 – December 31, 2019           ,202

January 1, 2020 to December 31, 2020          ,296

So what is covered or not covered under the ‘cap’?

Typically, if you are injured in a motor vehicle accident caused by the fault or negligence of other person, you claim damages under two heads: general damages and special damages. In simple words, the amount claimed as general damages represents a compensation for your pain and sufferings for your injuries as a result of the automobile accident. Special damages are the damages represents the amount that you spent towards the cost of your medical treatment, or your wages lost due to your inability to work resulting from the injuries.

Under the Regulation, your claim for pain and suffering is capped in case of a ‘minor injury’. Notably, the Regulation does not provide a cap for the special damages, including your costs for treatment of loss of work. Contrary to the general misconception, a claimant may also claim for special damages in addition to the capped claim for the pain and sufferings from certain soft tissue injuries.

The Effect of the Cap:

The legislative history of the Regulation shows that insurance companies argued that the increase of the premiums / cost for the insurance policies is justified on the basis of increasing number of personal injury claims and a rise in the cost of processing and paying those claims. The bargain was a cap or restraint on the amount of compensation a claimant could receive for “minor injuries” would reduce the costs and therefore would help in keeping the premiums low for automobile insurance.

We do not have sufficient data to know the actual number of injury claims that may have been reduced as an effect of this Regulation. However, we have definitely seen an increase in the premiums over the years. The Regulation seems to benefit insurance companies more that the Albertans who continue to pay for the higher premiums despite the Regulation.

The Regulation further benefits insurance companies as most of the Albertans who have genuine and legitimate claims are unaware of their rights while seeking compensation for their injuries. Most likely, they believe that the insurance, in good faith, would provide an adequate compensation for their loss. In short, some of the concerns with the Regulation are:

  • Albertans seem obligated to use their own insurance to cover the cost of medical treatment caused by the injuries due to someone else’s negligence.
  • In certain cases, to determine further treatment and assess the status of injuries, a claimant might have to undergo Independent Medical Examination (IME) with a doctor who is typically suggested by the insurance and most likely makes a determination about further treatment without knowing the complete medical history of the claimant. In certain cases, a claimant is denied further treatment.

Recent Discussions

Over the years, our justice system has worked towards clearing up the mist of confusion related to the Regulation and protecting rights of the claimants who have sustained injuries from an automobile accidents by providing adequate compensation.

The insurance companies are, again, proposing to increase the premium costs of insurance policies claiming the higher costs for settling the injury claims. The insurance industry has recommended to the Government of Alberta and the Auto Insurance Advisory Committee to improve auto insurance for drivers across the province. There are debates around having a no-fault auto insurance system as if the case in British Columbia.

Please contact Personal Injury Lawyers at Osuji & Smith for any inquiries you might have regarding personal injury.

Nitin Kumar Srivastava

Related Posts

CONTACT US