If you are injured in a motor vehicle accident, your claim may fall under the minor injury cap in Alberta. The minor injury cap was implemented by the provincial government in 2004 in order to limit the amount of damages that someone may be able to claim for pain and suffering if their injury is a minor injury. A minor injury is defined as:
- A sprain;
- A strain, or;
- A Whiplash Associated Disorder or “WAD” injury;
Caused by the accident that does not result in a serious impairment and includes, in respect of a sprain, strain or WAD injury that occurs on or after November 1, 2020, any clinically associated sequelae of the sprain, strain or WAD injury, whether physical or psychological in nature, caused by the accident that do not result in a serious impairment.
In 2004 the minor injury cap limit was set at $4,000.00. It has been increasing roughly with inflation and for 2021 it has been increased to $5,365.00. The cap is only for general damages for pain and suffering and does not include any income loss, special damages, costs or other heads of damages that a person may be eligible for.
So what is a minor injury? Obviously every case is different and all relevant information, including the accident, medical records, current case law and statutes will need to be considered. In general, the common law has defined minor injuries as ones where a person has less than or approximately 21 treatments (i.e. physiotherapy, massage, chiropractor, etc.) relating to the injury and the injuries last less than 3-6 months (see McLean v Parmar, 2015 ABQB 62 and Sparrowhawk v Zapoltinsky, 2012 ABQB 34). If an injury results in a serious impairment, it is not a minor injury. A serious impairment means that there is a substantial inability to perform the essential tasks of regular employment, education or normal activities of daily living that has been ongoing since the accident and is not expected to substantially improve.
In 2018 the Minor Injury Regulation was changed to include certain temporomandibular joint (TMJ) injuries under the definition of minor injury. If you experience mild jaw pain that resolves relatively quickly with little treatment, it may now fall under the cap.
Prior to discussing your claim with the insurance adjuster or accepting any offer made to you, it is always a good idea to talk to a personal injury lawyer. An injury that may seem minor at first may end up causing long term issues. The lawyers at Stillman LLP would be able to assist you in ensuring that you understand all of your rights and help you make the right decision.
By Shannon Kinsella