Joseph A. Nagy Injury Law registered trademark, Accidents and Injuries Happen... They Get Resolve Here.®
Search
Close this search box.
Accidents and Injuries Happen…
They Get Resolved Here.
Search
Close this search box.

Call us now

(780) 760-4878 (HURT)

Temporomandibular Joint Dysfunction, Psychological Injury, and the Minor Injury Regulation

Written by Joseph A. Nagy, Edmonton Injury Lawyer

Today I want to write about the recent amendment to the Minor Injury Regulation (MIR). The MIR was implemented in October 1, 2004. It is commonly referred to as a “cap” on the amount of money you can receive for pain and suffering for injuries sustained in a motor vehicle accident. The Courts have interpreted the MIR since 2004 and have held that chronic pain injury and temporomandibular joint injury (TMJ) are not subject to the MIR. On June 1, 2018, the MIR was amended to clarify what types of injuries are minor. The amendments include specific injuries to the jaw and specific psychological injuries.

Temporomandibular Joint Dysfunction and the Minor Injury Regulation (MIR)

TMJ is not subject to the MIR if the TMJ involves damage to the bone or teeth or damage to or displacement of the articular disc. Injuries to the musculature of the jaw are caught by the definition. However, if the TMJ injury to the musculature is ongoing and permanent and chronic, the TMJ injury may not be subject to the MIR.  This has not been tested by the Courts.  However, it seems clear that the legislature has intended this interpretation. It would be consistent with the court’s rationale outlined in McLean v Parmar if the injury results in serious impairment.

In McLean v Parmar, the Court of King’s Bench writes …

[53] The definition of “minor injury” in the MIR indicates at s. 1 (h) that the injury is a sprain, a strain, or a WAD injury that does not result in a “serious impairment”. “Serious impairment” is also defined and it means an impairment of a physical or cognitive function that results in a “substantial inability” to, and I summarise, perform the essential tasks of the Plaintiff’s employment, or of an education or training program, or of normal activities of daily living, that has been ongoing since the accident, and is not expected to “improve substantially”.

In Sparrowhawk v Zapoltinski, the Alberta Court of King’s Bench analyzed the definition of substantial inability and concluded …

[42] I conclude that “substantial inability” exists where an injury:

  1.       prevents an injured person from engaging in a “normal activity of daily living”,
  2.       impedes an injured person’s engaging in a “normal activity of daily living” to a degree that is non-trivial for that person,
  3.       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.

[43]  Mr. Sparrowhawk reported and I accept that he experiences difficulty and significant pain for activities such as chewing food and yawning, and that his ability to speak has been somewhat impaired. I agree with the conclusion in MacPherson v. Webber  that there can be no dispute these are ‘normal activities’ of daily living. I therefore conclude that the “substantial inability” criterion for “serious impairment” has been met.

It is important to remember that in Sparrowhawk the plaintiff had a TMJ injury that involved damage to or displacement of the articular disc which would bring the TMJ injury out of the MIR in any event.  In Mclean, the plaintiff suffered from chronic musculoskeletal pain. Again, if an injury to the musculature of the jaw alone is not chronic, it would be subject to the MIR. An injury to the musculature of the jaw which is chronic arguably fits within the criterion in McLean and the definition of substantial inability and serious impairment in Sparrowhawk and is not subject to the MIR. The severity of the injury to the musculature would be the key factor in deciding this.

Psychological Injury and the Minor Injury Regulation (MIR)

A physical or psychological condition or symptom that arises from a sprain, strain or WAD injury and resolves with the sprain, strain or WAD injury is deemed not to be an injury separate from the sprain, strain or WAD injury. Stress, and anxiety would fit well within the definition assuming these conditions resolved with the sprain, strain or WAD.  PTSD would not, as it arises out of the motor vehicle accident itself. Psychological conditions that arise from the sprain strain or WAD but do not resolve with the sprain strain or WAD would not be caught by this definition. Some examples might be major depressive disorder, and persistent depressive disorder.

The inclusion of the word “physical” in the definition is confusing and one wonders what it is meant to include. Nervous shock? Swollen limbs or muscles?

If you are concerned about whether your TMJ or psychological injury is or may be subject to the MIR, contact an experienced injury lawyer, Joseph A. Nagy, today.

Joseph A. Nagy,
Edmonton Injury Lawyer
Joseph A. Nagy Injury Law, Edmonton Injury Lawyer

Joseph A. Nagy is an experienced Edmonton personal injury lawyer. Joe provides injury law services to people who have been injured in motor vehicle accidents in Edmonton and throughout Central and Northern Alberta. Joe has successfully resolved thousands of personal injury cases. If you have suffered a personal injury and need the help of a proven, experienced personal injury lawyer, contact Joseph A. Nagy Injury Law. Ask Joe for a free consultation. 

Recent Posts

AllInjury Law

Best Injury Law Firm Recognition 2024

June 4, 2024

Joseph A. Nagy Injury Law: Best Brain & Spinal Cord Injury Firm...

Read More >>

What Is No-Fault Insurance?

March 2, 2023

Joseph A. Nagy Injury Law opposes the introduction of any further cap,...

Read More >>

To Stop a Thief – What Could Go Wrong?

February 14, 2023

An SEF 44 is a separate contract rider on your own insurance...

Read More >>

Patel v Certas Direct Insurance Co., [2020] A.J. No. 793

August 31, 2020

In light of Patel v Certas, Edmonton injury lawyer Joseph A, Nagy...

Read More >>

A Summary of the Law on Section 581 Advances

August 14, 2020

Edmonton injury lawyer Joseph A. Nagy summarizes the importance of recent case...

Read More >>

Choosing an Alberta Injury Lawyer

April 22, 2019

New injury law firms are continuously entering the Alberta market. But does...

Read More >>
Scroll to Top

Edmonton Injury Lawyer
Free Consultation

ACCESSIBLE

FREE PARKING

Personal Injury Glossary Comments