a guide to the minor injury regulation january 27 2008 presented by derek allchurch l.
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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

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a guide to the minor injury regulation january 27 2008 presented by derek allchurch
A Guide to the Minor Injury Regulation

January 27, 2008

Presented by: Derek Allchurch

what is a minor injury
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
what is a minor injury3
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 injury4
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
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
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 get7
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
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
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
beating the cap
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 cap11
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
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
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
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
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 cont16
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
psychological injuries
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
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 cont19
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’
other heads of damages
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
other heads of damages cont
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
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