Have you assessed claims involving the new definition of “minor injury” in Alberta as documented under the Minor Injury Regulation, Alta Reg 123/2004?
It is important to review the new regulations and also review the format of analysis.
A recent decision referenced as Jackson v Cooper, 2022 ABKB 609 (CanLII) reviews “chronic pain” under the Minor Injury Regulations in Alberta. However, as this case was prior to November 1, 2020, the new definition did not apply to this case.
Let’s take a look at the “new” definition which was introduced under Bill 41.
The new definition of “minor injury” is noted:
“minor injury”, in respect of an accident, means
(i) a sprain,
(ii) a strain, or
(iii) a 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 order to assess if an injury will be deemed “minor,” you must also assess whether the injury has resulted in a “serious impairment”. As indicated in the published decision, there are 5 analytic steps to consider in assessing whether an injury has resulted in a serious impairment. The 5 analytic steps are noted:
- Physical or Cognitive Imapairment;
- Primary Factor;
- Substantial Inability;
- Ongoing since the accident;
- No Substantial Improvement.
We should also review the actual definition under the new Regulations of “serious impairment’:
“serious impairment”, in respect of a claimant, means an impairment of a physical or cognitive function
(i) that results in a substantial inability to perform the
(A) 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,
(B) 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
(C) 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;
One should consider that under Jackson v. Cooper, the assessment of this case may have been different if the case occurred post November 1, 2020 and the new definition of “minor injury” was applied.
The assessment in the case below involves the old definition of “minor injury”. However, the case provides an excellent framework of how to assess such claims.
Cases that are post November 1, 2020 must apply the the interpretation noted above.
Let’s review Jackson v Cooper, 2022 ABKB 609 (CanLII) and keep in mind the definition below is for cases prior to November 1, 2020:
Does the Minor Injury Regulation cap the recovery of the Plaintiff for general damages for pain and suffering and loss of enjoyment of life?
[42] The Defendants argue that Mr. Jackson sustained minor injuries as that term is defined by the Minor Injury Regulation. The Plaintiff argues that his injuries are not minor.
[43] The MIR sets a cap on non-pecuniary loss for all minor injuries. In 2015, when the accident occurred, the minor injury amount was set at $4,892. The MIR does not cap other heads of damages.
[44] As the accident occurred in 2015, the version of the MIR that was in force on that date governs. With that in mind, the MIR defines a minor injury as follows:
“minor injury”, in respect of an accident, means
(i) a sprain,
(ii) a strain, or
(iii) a WAD injury
caused by that accident that does not result in a serious impairment;
(s 1(1)(h)).
[45] As this definition suggests, to determine whether an injury is minor requires a determination of whether an injury is a sprain, strain, or WAD injury and, then, whether the injury results in a serious impairment: MIR, s 4(1). In other words, an individual who is diagnosed with a sprain, strain, or WAD I/II injury may fall outside the MIR cap if their injury results in “serious impairment” of their physical or cognitive function.
[46] Sprain, strain, and WAD injury are all defined terms under the MIR:
“sprain” means an injury to one or more tendons or ligaments, or to both;
“strain” means an injury to one or more muscles;
“WAD injury” means a whiplash-associated disorder other than one that exhibits one or both of the following:
objective, demonstrable, definable and clinically relevant neurological signs;
a fracture to or a dislocation of the spine.
(ss 1(1)(k), (l), n)).
[47] Under the MIR, the determination of whether an injury is a sprain, strain, or WAD injury must be based on an individual assessment of the claimant in accordance with the diagnostic protocols established under the Diagnostic and Treatment Protocols Regulation: s 4(2).
[48] The term “serious impairment” is defined under section 1(1)(j) of the MIR:
“serious impairment”, in respect of a claimant, means an impairment of a physical or cognitive function
(i) that results in a substantial inability to perform the
(A) 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,
(B) essential tasks of the claimant’s training or education … , or
(C) 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;
[49] Under the MIR, the determination of whether a sprain, strain or WAD injury results in a serious impairment must take into account the claimant’s pre-existing medical history and the matters listed in s 1(j)(i) that relate to the claimant: s 4(3). Moreover, the sprain, strain, or WAD injury must be the primary factor contributing to an impairment for the injury to result in a serious impairment: MIR, s 3.
[50] In Sparrowhawk v Zapoltinsky, 2012 ABQB 34 [Sparrowhawk], Justice Shelley articulated five analytical steps to determine if there has been a serious impairment under the MIR:
- Is a physical or cognitive function impaired?
- Is the sprain, strain, or WAD injury “the primary factor contributing to the impairment”?
- Does the impairment cause substantial inability to perform:
- Essential work tasks,
- Essential facets of training or education, or
- “Normal activities of the claimant’s daily living”?
- Has the impairment has been “ongoing since the accident”? and
- Is the impairment not expected to “improve substantially”?
(at para 96).
[51] In this matter, the parties agreed that Mr. Jackson’s injuries were sprains, strains, or WAD injuries. However, both Dr. Boucher and Dr. Panaro agreed that Mr. Jackson continues to suffer chronic myofascial pain. Chronic myofascial pain is not a strain, sprain, or WAD injury under the MIR: Morrow v Zhang, 2009 ABCA 215 at para 85; McLean v Parmar, 2015 ABQB 62 at paras 60-62.
[52] I note that the MIR was amended in 2020 so that a minor injury includes a strain, sprain, or WAD injury, as well as any clinically associated sequelae of a strain, sprain, or WAD injury, whether physical or psychological: s 1(1)(h). However, the 2020 amended MIR is explicit that this amendment does not apply to any injury that occurred before November 1, 2020. Accordingly, I find that the MIR, as it existed in 2015, does not apply to Mr. Jackson’s chronic myofascial pain.
[53] Since the parties argued the issue of whether Mr. Jackson experienced a serious impairment, I will also consider that issue, following the five analytic steps set out by Justice Shelley. As part of that analysis, I will discuss whether the motor vehicle accident was the cause of Mr. Jackson’s chronic pain.
- Physical or Cognitive Impairment
[54] The Plaintiff gave evidence that he has suffered injuries to his neck and back and that as a result he continues to experience pain. As mentioned, both Dr. Boucher and Dr. Panaro agreed that the Plaintiff continues to suffer chronic myofascial pain.
[55] The Defendants dispute the extent to which Mr. Jackson’s injuries persist and whether his injuries are the cause of his ongoing pain. However, the Defendants do not seriously contest that Mr. Jackson has a physical or cognitive impairment, namely chronic pain. Accordingly, I find that this initial requirement has been made out.
- Primary Factor
[56] The Defendants argue that Mr. Jackson’s chronic pain is not causally connected to the accident. The Plaintiff takes the position that the accident caused Mr. Jackson’s injuries, as well as his ongoing pain.
[57] Dr. Boucher concluded that the accident was the cause of Mr. Jackson’s chronic pain:
Given the [psychological impairment and chronic pain] and my experience in assessing and managing individuals who have been injured and developed chronic pain, and based on my understanding of the medical evidence, I would conclude that he has an impairment that, was directly (physically and psychologically) or indirectly (psychosocial aspects due to pain and pain related limitations, the use of medications, change in lifestyle, financial stress, relationships, etc.) sustained because of the subject motor vehicle collision in question.
[58] The Defendants’ expert, Dr. Panaro, also diagnosed Mr. Jackson with chronic mild myofascial pain in the mid thoracic area, predominately on the left side. However, Dr. Panaro did not think the accident was the cause of the chronic pain. He did not provide an opinion on the cause of Mr. Jackson’s assessed chronic myofascial pain.
[59] With respect to the causation of Mr. Jackson’ ongoing chronic myofascial pain, Dr. Boucher’s opinion is that the chronic myofascial pain was caused by the injuries sustained in the motor vehicle accident, whereas Dr. Panaro’s opinion is that the chronic myofascial pain was not caused by the injuries sustained in the motor vehicle accident. I prefer Dr. Boucher’s evidence on this point because I find Mr. Jackson to be a credible witness, and, therefore, Mr. Jackson’s subjective complaints underlying Dr. Boucher’s opinion are validated.
[60] Relying on Dr. Boucher’s opinion, I conclude on a balance of probabilities that the motor vehicle accident is the primary factor contributing to Mr. Jackson’s ongoing pain.
- Substantial Inability
[61] The Plaintiff argues that he has a substantial inability to engage in normal activities of daily living, including:
- Performing part-time work;
- Performing employment with physical labour components;
- Doing his pre-accident household chores;
- Sporting and leisure activities that he enjoyed doing prior to the accident;
- Physical relations with his wife; and
- Caring for and playing with his children.
[62] The Defendants argue that the Plaintiff’s injuries have not resulted in a substantial inability to perform any of these tasks. More specifically, the Defendants argue that the Plaintiff is able to perform all of the essential tasks of his regular employment, given that he has only missed a nominal amount of overtime right after the accident and, since then, has worked in his chosen field without interruption.
[63] The Defendants argue further that the medical evidence shows Mr. Jackson is able to perform all of his activities of daily living, including housework. The Defendants argue there is nothing to prevent Mr. Jackson from playing soccer, and he has not proven that his injuries prevent him from doing so. Finally, the Defendants argue that Mr. Jackson is now more than 5 years older than he was at the time of the accident, so it makes sense he cannot play with his children with the same vigour that he used to play with his friend’s children.
[64] With respect to the first point, I agree with the Defendants that Mr. Jackson does not have a substantial inability to perform the essential tasks of his regular employment under s 1(j)(i)(A) of the MIR. Indeed, he missed only a nominal amount of time from work as a result of the injuries sustained in the motor vehicle accident and has successfully found work with five different employers since the motor vehicle accident.
[65] Mr. Jackson gave evidence that his injuries prevented him from taking on extra part-time work as a labourer at a warehouse. However, at the time of the accident, Mr. Jackson’s regular employment did not include any such part-time work or any work with a physical component. So, any impact on his ability to engage in this type of work cannot be considered a serious impairment to the essential tasks of his regular employment.
[66] That said, I do not agree with the Defendants that Mr. Jackson is able to perform his activities of daily living without impairment, per s 1(j)(i)(C) of the MIR. In Sparrowhawk, Justice Shelley considered the meaning of the term substantial inability with respect to a normal activity of daily living. She concluded that a substantial inability exists where an injury:
- prevents an injured person from engaging in a “normal activity of daily living”,
- impedes an injured person’s engaging in a “normal activity of daily living” to a degree that is non-trivial for that person, [or]
- does not impede an injured person from engaging in a “normal activity of daily living” but that activity is associated with pain or other discomforting effects such that engaging in the activity diminishes the injured person’s enjoyment of life.
(at para 113).
[67] In this case, Mr. Jackson reported that he had difficulty or was functionally limited in performing normal activities of his daily living since the motor vehicle accident.
[68] According to Mr. Jackson’s testimony, he experienced pain and discomfort when commuting between Edmonton and Calgary, and this was a factor that prompted him and Ms. Yeboah to move from Calgary to Edmonton.
[69] Mr. Jackson said he also performed more household chores prior to the motor vehicle accident. However, as a result of the injuries sustained in the motor vehicle accident, Mr. Jackson could not perform his household chores to the same quality, for the same duration, or without pain, as he could prior to the motor vehicle accident.
[70] Additionally, Mr. Jackson gave evidence that he was an avid and active soccer player prior to the motor vehicle accident. However, he has not returned to playing soccer, because he is scared of being injured. He also played ping pong, basketball, and ran before the motor vehicle accident, which he now cannot enjoy as he did prior to the motor vehicle accident.
[71] According to Mr. Jackson, his injuries have also affected his family life. Mr. Jackson can no longer engage in some intimate positions with his wife, and the frequency of their sexual activity has diminished. Mr. Jackson also has two young children, born in March 2017 and April 2019, but he is limited in how he can play with them. He also says he cannot play with his friend’s children in the same physical manner as he did prior to the motor vehicle accident.
[72] Cumulatively, I find that the effect of Mr. Jackson’s injuries on performing the normal activities of daily living have diminished his enjoyment of his life, because I accept Mr. Jackson’s evidence about his impairment to perform normal activities of daily living and that these normal activities of daily living are associated with pain, functional limitation, or other discomforting effects such that there has been a diminishment to the enjoyment of Mr. Jackson’s life.
[73] At trial, Mr. Jackson stated that performing household chores causes him pain and aggravates his injuries. His evidence was corroborated by Ms. Yeboah, as well as his friends. Mr. Jackson’s evidence about the impacts on his family life were also corroborated by Ms. Yeboah and his friends, and I accept Mr. Jackson’s evidence on both of these points.
[74] I also accept that Mr. Jackson no longer players soccer due to the accident. The evidence showed that Mr. Jackson was not able to play basketball for more than 15 minutes without experiencing pain. I accept that he can no longer play high intensity sports without experiencing pain and that this represents a substantial inability to perform a normal activity of daily living: see McLean v Parmar at para 55.
[75] Finally, I rely on the evidence of Dr. Boucher, who agreed with Mr. Jackson’s self-assessment. Dr. Boucher testified that Mr. Jackson’s physical injuries and associated psychological impairments developed into functionally chronic pain. The effect of the functionally chronic pain is that “while he can complete daily tasks, he does so with varying amounts of pain that interferes with his ability to complete the general activities of daily living, as well as interferes with his ability to perform his employment tasks and pre-collision activities”.
[76] The Defendants argued that Mr. Jackson did not suffer from a substantial impairment, because Dr. Panaro’s evidence was that his Whole Person Impairment is 0%. This is in contrast to Dr. Boucher’s assessment of 4-6% under the 6th Edition of the AMA Guidelines. However, the issue of degree of Whole Person Impairment does not need to be decided, because the issue under the MIR is whether Mr. Jackson has suffered a substantial inability to perform the normal activities of daily living. I find that Mr. Jackson has suffered such a substantial inability, regardless of his degree of Whole Person Impairment.
- Ongoing Since the Accident
[77] The Plaintiff argues that his injuries have been ongoing since the accident and that his impairments have persisted over time, even though the degree of dysfunction has varied since the accident.
[78] The Defendants argue that Mr. Jackson’s injuries were resolved in May 2016 (7 months after the motor vehicle accident), when he was discharged from physiotherapy and after he was previously discharged from chiropractic care. Consistent with his injuries being resolved, Mr. Jackson did not follow up with any treatment thereafter.
[79] In Sparrowhawk, Justice Shelley discussed the meaning of the term ongoing in the context of the MIR:
I conclude that the “ongoing” criterion in the definition of serious impairment does not mean “continual” or “uniform”, but rather that the impairment persists over time. The degree of dysfunction may be variable. That, again, is consistent with the direction of the Interpretation Act, s. 10.
…
Here, the objective of the legislation is only achieved where an impairment is “ongoing”, even when that impairment involves intermittent but persistent dysfunction. Minor injuries include “strains”, injuries to muscles. As muscles tire, “strain” related dysfunction can be expected to vary.
(at paras 116-118).
[80] At trial, Mr. Jackson testified that he continues to suffer ongoing chronic pain in his mid-thoracic area and ribs, especially on the left side. The Plaintiff’s expert, Dr. Boucher, also gave opinion evidence that Mr. Jackson’s injuries are chronic. Dr. Boucher explains:
As a direct result of the indexed motor vehicle collision, Mr. Jackson sustained injuries that have resulted in functionally limiting chronic pain. Chronic pain develops in individuals because of a physical and/or emotional insult, occurs in individuals with faulty coping mechanisms for managing emotional and physical pain, and often develops a course of its own, independent from physical injury. It is usual that chronic pain results in pain and disability that lasts considerably longer than anticipated when physical injuries would be typically healed. Specific treatment for chronic pain is essential. Depression and anxiety commonly co-exist with chronic pain and influence its development and are often worsened as a chronic pain impulse, as is the situation here. Mr. Jackson’s mood continues to be compromised. I suspect that his perceived levels of physical pain may be related to his psychological impairment…
The AMA Guides, 6th Edition (2007), outlines the concept of chronic pain. Musculoskeletal injuries typically improve over a period of three months. When these injuries do not improve in that timeframe, they are consistent with chronic pain. His symptoms of pain and associated limitations have now been present for nearly 4½ years. Based on my performing a history and physical examination and reviewing the mechanism of the collision, and reviewing the relevant documentation, it is my opinion that Mr. Jackson has a chronic condition, probably of permanent impairment. While I believe further recovery is possible, I doubt he will achieve his pre-collision level of function.
[81] The Defendant’s expert, Dr. Panaro, provided an opinion that “soft tissue sprains and strains heal within 3 months of an injury”. From his review of the medical records and his assessment of Mr. Jackson, Dr. Panaro found that Mr. Jackson fully recovered from the injuries he had sustained in the motor vehicle accident.
[82] At trial, however, Dr. Panaro clarified his opinion to say that soft tissue injuries typically resolve within 3 months but some people continue to experience pain after 3 months. Also, Dr. Panaro stated that according to the American Medical Association, chronic pain is defined as pain that persists beyond the typical 3 to 6 months mark.
[83] I have already found that Mr. Jackson’ s chronic pain was caused by the motor vehicle accident, and, as such, I do not accept Dr. Panaro’s evidence that Mr. Jackson’s symptoms had resolved. On this point, I prefer the evidence of Dr. Boucher over that of Dr. Panaro.
[84] The Defendants rely on the evidence of the physiotherapist, Ms. Spindler, who said that Mr. Jackson’s symptoms had resolved by April 2016. However, Ms. Spindler explained that there was a risk Mr. Jackson’s injuries would recur, as they did after Mr. Jackson was discharged from Mcleod Chiropractic Clinic. That is why she did not check the box marked “resolved” under “progress towards goals” in the Concluding Report.
[85] As well, the Defendants argue that I should not accept Mr. Jackson’s evidence about his ongoing pain, because Mr. Jackson’s evidence at trial contradicted the evidence he gave at questioning. They allege that his evidence was inconsistent and self-serving. I disagree.
[86] Mr. Jackson explained that, after his discharge from physiotherapy in May 2016, he received advice that he could reasonably expect his symptoms to improve, his injuries to heal, and his pain to go away. He stopped treatment, but his symptoms continued, although the “active pain” disappeared for a period of time.
[87] Although he was not experiencing “active pain”, Mr. Jackson explained that he still had bouts of pain that he did not complain about but which he managed by avoiding or managing his activity:
Q — 2016 you had a period of time that was pain free?
A I had a period if time which I wasn’t feeling any active pain.
Q Did you do some activities during that period of time that caused pain?
A No, I was scared although the active pain disappeared for a period of time and there were — there was still treats of pain but I wasn’t making any complaining noise about it but I was scared to do something to risk my life, or risk me getting hurt.
[88] At his Questioning for Discovery in December 2019, Mr. Jackson stated that his injuries resolved in December 2017 or January 2018 (about 2 years and 3 months after the motor vehicle accident). However, at trial, when asked about whether his injuries had resolved at that time, Mr. Jackson explained as follows:
Q So, Mr. Jackson, at questioning we went through each of your injuries —
A M-hm.
Q — and you told me that at the very latest it resolved completely by December 2017 or January 2018; correct?
A Yeah.
Q And today you’re telling us a different story?
A At that point in time resolved, as I mentioned, I see — I don’t know how, the word, like my — let’s assume this is a pipe, and if this is a pipe and it’s leaking, and I wrap a tape around it, and it’s leaking a little bit, I consider it as resolved. But has it been restored? No. Pipe is resolved, it is not leaking intensive as it used to but is it restored? No. Resolved, yes it is resolved. So at that point in time that is how I understood you.
Q So, Mr. Jackson, you are telling me you didn’t understand my questions?
A I understood you based on my own understanding of how the thing was resolved.
Q And you have a different understanding of what resolved was.
A I don’t know whether is the basic understanding of resolution or something, but that is what I thought at that point in time.
[89] Mr. Jackson’s explanation about “active pain”, his understanding of “resolution”, and his reporting of his ongoing chronic pain at trial is subjective. Mr. Jackson’s reporting is a reporting of his intermittent symptoms at different points in time. He did not exaggerate. He is not a malingerer. I accept Mr. Jackson’s evidence, because I find Mr. Jackson to be a credible witness.
[90] On a balance of probabilities, I find that Mr. Jackson’s injuries did not heal at some point in time prior to the trial and that Mr. Jackson’s symptoms reported at trial and chronic myofascial pain are ongoing.
- No Substantial Improvement
[91] The Defendants did not argue the issue of substantial improvement, given their position that Mr. Jackson’s injuries had resolved. However, as this is a requirement under the MIR, I will still consider the issue.
[92] In Sparrowhawk, Justice Shelley discussed the requirement under the MIR that for there to be serious impairment, the injury must not be expected to improve substantially. She explained:
… I conclude that “substantial improvement” does not mean “any improvement” but, rather, that the dysfunction cannot be expected to improve to such a degree that the “substantial inability” (MIR, s. 1(j)(i)) will cease.
Substantial improvement is evaluated on a subjective basis specific to the injured individual. Unlike the Ontario legislation (Ontario Regulation, s. 4.2(1)), the MIR has no requirement to evaluate the probability of “… substantial improvement when sustained by persons in similar circumstances”.
(at paras 120-21).
[93] Dr. Boucher provided an opinion that Mr. Jackson has reached maximum medical improvement as defined in the AMA Guides 6th edition: “the point at which a condition has stabilized and is unlikely to change (improve or worsen substantially in the next year with or without treatment)”. I accept Dr. Boucher’s opinion and find that Mr. Jackson’s dysfunction cannot be expected to improve to such a degree that the “substantial inability” will cease.
- Conclusion
[94] I find that, as a result of the motor vehicle accident, Mr. Jackson sustained a serious impairment, namely, an impairment of a physical or cognitive function, which has resulted in a substantial inability to perform the normal activities of his daily living, which has been ongoing since the motor vehicle accident, and which is not expected to improve substantially. In any event, chronic myofascial pain is not the type of injury covered by the MIR as it existed at the time of the accident.
[95] As such, the evidence viewed as a whole persuades me, on a balance of probabilities, that Mr. Jackson’s ongoing chronic myofascial pain is not a “minor injury” under the MIR. Consequently, Mr. Jackson’s general damages for pain, suffering, and loss of enjoyment of life are not capped under the MIR.
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