In 2004 when the Minor Injury Regulation was being considered, I wrote to the then Finance Minister Patricia Nelson because I was concerned how the legislation would affect injured victims. Patricia Nelson responded with a letter stating “We have always said the cap will only apply to minor injuries that heal relatively quickly.” Here is how the Courts view the Minor Injury Regulation from a common sense point of view.
- Further, from a common sense point of view, the overall level of injury suffered by Ms. McLean is not what was contemplated by the Legislature to be a “minor injury” when one looks at the MIR and the protocols set out in the Diagnostic and Treatment Protocols Regulation O.C. 271/2004 A.R. 122/2004 (“the Protocols”) as a whole. Her neck and back problems, which led to significant disability down her arms and affected her training and employment, needed substantial treatment. Over 60 physiotherapy sessions is well beyond the 21 sessions that are automatically approved in a “minor injury” situation.
- Ms. McLean’s problems lasted 2 ½ years, so that according to the Scientific Monograph of the Quebec Task Force on Whiplash Associated Disorders (Hagerstown,MD:JB Lippincott Company, 1995) (the “Quebec Task Force”) and the International Classification of Diseases and Related Health Problems (Canada: Canadian Institute of Health Information), (the “International Classification of Diseases”) pain that lasts this long (i.e. longer than six months and three months respectively) is classified as “chronic pain”, and as such is not, in my view, a “minor injury” strain, sprain or WAD injury.
- The Protocols which apply to Ms. McLean specifically reference these sources as those the certified examiner must consult when making their diagnostic opinion. (I note that the Protocols have since been replaced by Alta Reg 116/2014 and only reference the International Classification of Diseases). In this instance, Dr. Apel did not make reference to these sources, and the definition of “chronic pain “ found within them, in making her diagnosis. However, she did note in her testimony that according to the Quebec Task Force 80% of those suffering from a WAD injury recover quickly, and only 20% go on to have more issues that require an individual activation program.
- In my view, upon a review of the MIR and Protocols, the Legislature sought to except more serious injuries, like the ones Ms. McLean has suffered from, from the proposed cap on pain and suffering damages, since her degree of injury does not fall into the majority of ones that were sought to be capped in the first place (the 80% discussed in the Quebec Task Force), and they were not the type that necessarily needed speedy access to treatment resources for a short period of time, but were injuries that would take more time, and more professional resources, to heal. Finally, they were of a chronic pain nature for the period of recovery according to the sources that are supposed to be referenced by the certified medical examiner, and as diagnosed by Dr. Musah.
- In my view, it is unfortunate that the definition of “minor injury” in the MIR does not fit well with the requirement that the certified examiner is supposed to take into account the findings in the Quebec Task Force and International Classification of Diseases, in that pain caused for instance by a WAD injury that endures more than 3-6 months is “chronic” and therefore is not supposed to be included in the definition of “minor injury” as per Morrow. Yet in certain instances, such WAD injury may be capped, for instance if the WAD injury pain lasts well beyond 3-6 months but may either recover after a few years, or may be expected to “improve substantially”.
- Ms. McLean’s case, in part, is a good example in that her strain, sprain and WAD injuries lasted well beyond 3 to 6 months, and involved a much more rigorous treatment regime than 21 physiotherapy visits, so that they should be considered “chronic” and not “minor” according to the Quebec Task Force Report and International Classification of Diseases, and yet, except for the effect to part of her employment and some recreational pursuits that continue to be impaired even though she is maximally recovered, since most of her strain, sprain and WAD injuries recovered in two and 1/2 years and therefore could be considered to be ‘improved substantially’, these injuries could have been considered “minor” under the MIR definition. Very confusing. And certainly not what the Legislature intended.
We need to question why insurers are running these types of cases to trial and failing to pay out reasonable compensation to injured victims with chronic pain. The legislature and the Courts have used a common sense approach to determining whether chronic pain cases fall within the cap. However, it remains to be seen how a Court would treat someone with a WAD II injury or chronic pain injury that lasts 7 months, interferes with their normal activities of daily living or employment, but substantially improves.