McLean v. Parmar, 2015 ABQB 62 (“McLean”)

As you may have heard, the Alberta Court of Queen’s Bench recently commented on the Minor Injury Regulation, Alta Reg 123/2004 (“MIR”), finding that only soft tissue injuries which resolved in a relatively short period of time could be considered “minor”, as defined in the MIR. To be minor, the injury cannot cause a claimant a significant impairment in their daily activities.

McLean involved a female plaintiff whose vehicle had been T-boned in an intersection by a bus. She claimed to have suffered soft tissue injuries, PTSD, a TMJ injury, depression and chronic pain. The defendants called a physiatrist, dentist and psychologist, all of whom had not examined the plaintiff but only reviewed her medical records.

Madam Justice Eidsvik concluded that none of the plaintiff’s injuries were “minor injuries” under the MIR. Specifically, the Court found that the WAD II injury suffered by the plaintiff was not minor because the plaintiff was unable to continue her employment as a professional server, perform many daily and housekeeping activities or enjoy her usual recreational sports.

The Court further noted that “from a common sense point of view”, the plaintiff’s injuries when viewed overall were not intended to be captured by the MIR. Her WAD II injuries had led to a significant disability and affected her training and employment. The plaintiff’s problems had lasted over two and a half years. Madam Justice Eidsvik cited two medical studies and noted that pain which lasts longer than three to six months is classified as “chronic pain”.

Madam Justice Eidsvik noted that the two accepted medical studies found that 80% of soft tissue injuries would resolve quickly, while 20% would require an individual treatment program. The plaintiff’s individual treatment program had included prolotherapy, ongoing physiotherapy and massage and the use of over the counter medications.

The MIR, the Court said, was intended to cover the 80% of claimants whose injuries would not become “chronic”. Injuries which lasted over three to six months and required treatment outside the Diagnostic Treatment Protocol Regulations were not “minor”. Although the plaintiff had reached her maximal medical improvement within three years, she continued to suffer pain which affected her daily activities and employment and she was not expected to improve substantially.

Madam Justice Eidsvik concluded that none of the plaintiff’s injuries were minor and globally assessed her general damages for pain and suffering at $60,000. She found that to “individually parse each injury out makes no sense” and assessed the plaintiff’s damages globally based on a review of awards for TMJ disorders, depression, PTSD and chronic pain arising from a WAD II injury.

What this means to you?

The decision reached in McLean appears to have further eroded an Insurer’s ability to engage the MIR to classify an injury as minor. A WAD II injury, lasting for three to six months or more can be classified as “chronic”, which will result in fewer “minor” claims going forward. We have already seen Plaintiff’s counsel jump on this decision and bring it to the Court’s attention at every opportunity, particularly during the mediation process. If you haven’t had this case brought to your attention by now, you soon will.

This post is intended to provide general information concerning developments in the law and is not intended to provide legal advice in respect of any particular situation.