1. What are “Capped” Claims in Alberta & How do They Work?
With the introduction of the Alberta Minor Injury Regulation in 2004, the provincial government created a financial cap on the amount that can be recovered for certain injuries. These capped claims relate specifically to soft-tissue injuries sustained in motor vehicle accidents in Alberta. The province introduced the cap in an attempt to strike a balance between the rights of victims to be compensated for their injuries and the need to maintain affordable insurance premiums for Alberta drivers. Prior to the introduction of the cap, Alberta’s insurance industry had extensively lobbied the government for change, claiming that insurance providers were being bankrupted by settlements to injured parties. They claimed they had no choice but to keep raising premiums to make up for the losses caused by these claims. The government hoped that capping claims for minor injuries would allow sufficient recovery for the injured parties while keeping insurance affordable.
The initial amount of the cap in the first year it was implemented was $4,000.00. Since then, the amount has increased each year for inflation, and currently sits at $5,296.00 as of January 1, 2020. Notably, the cap applies specifically to the injuries itself and not to associated damages such as the loss of income, current or future medical expenses, loss of housekeeping capacity or cost of care.
Which Types of Injuries are Capped?
The injuries subject to the capped amount are classified in the Minor Injury Regulation as:
- WAD Injuries (whiplash associated disorder – for more information on whiplash associated disorders, please see our page dedicated to this topic)
The injury must occur as the result of a motor vehicle accident and, in order to be considered minor, it must not pose a risk for serious impairment.
Sprains vs. Strains
While many of us use the terms “sprain” and “strain” interchangeably to refer to minor pain in a limb or our back, they actually refer to different injuries.
A sprain is defined under the Minor Injury Regulation as an injury to a tendon, ligament or both. Tendons are bands of tissue that connect bones to each other at a joint, while ligaments are bands of tissue that connect muscle to bone. A sprain generally occurs suddenly as the result of trauma.
On the other hand, a strain results when we tear or stretch a muscle itself, rather than the connecting tissue. Strains can occur suddenly as the result of trauma, or they can develop over time.
Are All Sprains, Strains and WAD Injuries Capped?
The short answer is no. While the legislation purports to cap all injuries described above, in truth the law can be quite ambiguous and complex, particularly when factoring in common law interpretations of the legislation by various Alberta courts. For example, courts have held that an injury that would normally be classified as minor under the Regulation is no longer considered to be such if it continues for more than 10 or 12 months. At this point, the injury will be classified as chronic pain, since the issue has not resolved. In these cases, the victim would no longer be subject to the cap.
In addition, while a person may have a minor ankle sprain that would ordinarily be capped, if they also have a non-capped injury such as a concussion, they will be permitted to pursue a non-capped claim for damages.
What Should I Do If I’m Told My Injuries Are Capped?
Insurance companies are often quick to proclaim that an injury falls within the guidelines for a capped claim, however it is important to keep in mind that many injuries cannot be fully assessed until several months after an accident. While pain might resolve itself within a few months, it is also possible that injuries and the symptoms thereof can worsen over time. For this reason, we strongly recommend that clients avoid accepting an insurance company’s initial offer with respect to payment. These offers are generally provided soon after the accident before the extent of the injures can be fully assessed.
We generally recommend that the injured party avoid contact with the at-fault driver’s insurance provider while they are in the process of assessing their damages. While your own insurance provider owes you a duty to act in good faith with respect to your insurance coverage and claims, the at-fault driver’s insurance company is not subject to the same obligation. They may even attempt to convince you that your injuries are capped when, in fact, they are not.
It is important to keep in mind that you have 2 years from the date of the injury to settle the claim or file a lawsuit. This limitation period provides time to fully determine the extent of your injuries and whether they will resolve. If injuries last more than 5-6 months after the accident, this may indicate that they are more extensive or severe than originally thought.
At Cuming & Gillespie Lawyers, we are committed to helping you and your loved ones. If you or a loved one have been injured in a motor vehicle accident, you may be entitled to compensation for damages. Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve.
2. What is a Whiplash-Associated Disorder (WAD)?
WAD, or Whiplash-Associated Disorder injuries are defined under the Minor Injury Regulation as:
[A] whiplash-associated disorder other than one that exhibits one or both of the following:
- Objective, demonstrable and clinically relevant neurological signs;
- A fracture to or a dislocation of the spine.
WAD injuries are categorized on a scale from 0 to 5, and of those categorizations, only 1 and 2 fall within the capped claims regulations.
WAD 1 injuries are defined as neck pain with normal range of motion and strength, no swelling, and no muscle spasm.
WAD 2 injuries are defined as neck pain with limited range of motion, spasm or swelling, and tenderness in the neck and shoulders. Injuries of this nature are possibly related to sprained ligaments or muscle tears causing internal bleeding and swelling.
The benefit of being diagnosed with a level 1 or 2 WAD injury is that you are guaranteed quick access to medical treatment, and you are entitled to coverage for at least 21 treatment sessions. However, there is also a downside. Since many doctors want to ensure that their patients are able to begin treatment as quickly as possible, there is an incentive that they diagnose them as a category 1 or 2 for this purpose. This may occur even if the injury could technically fall outside of the capped claim classifications. While the patient has the benefit of immediate care, they may lose out on the ability to collect proper damages for their injuries.
Is it Possible for WAD 1 and 2 Injuries to Fall Outside of the Cap?
Yes. While injuries diagnosed as WAD 1 or 2 will generally be considered to fall within the Regulation, it is possible for these injuries to be classified as something other than “minor” which takes them out of the cap. For example, if you have suffered additional, more serious injuries, in addition to a WAD 1 or 2, courts in Alberta have determined that these injuries should not be capped. These additional injuries include:
- Jaw injuries, with the exception of temporomandibular jaw (TMJ) injuries that do not affect bones, teeth or the articular disc.
- Brain injuries
- Spinal cord injuries
- Mental health injuries, with the exception of minor mental health issues such as depression or anxiety associated with a WAD 1 or 2 injury that heals along with the physical injury.
Further, if your only injuries are WAD 1 or 2 but you can establish that they have become chronic pain issues (i.e. carrying on for more than a year) or that they have created a serious impairment for you, they may fall outside of the cap. The Minor Injury Regulation defines a “serious impairment” as a physical or cognitive impairment that results in a substantial inability to perform the tasks of your employment, your educational program, or your normal daily activities. The impairment must be a result of the accident and must be expected to continue indefinitely.
As you can see, the determination of which injuries will or will not fall within the cap is not always simple. While the regulation sets out guidelines, the courts have found instances where the guidelines will not apply. For this reason, it is best to consult with an experienced personal injury lawyer right away after becoming injured in order to understand your rights to any potential claims and why it might be prudent to wait before discussing a settlement with the insurance company.
At Cuming & Gillespie Lawyers, we are committed to helping you and your loved ones if you’ve suffered a serious WAD injury. If you or a loved one have been injured in a motor vehicle accident, you may be entitled to compensation for damages. Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555. We will provide a complimentary assessment of your case and ensure that you receive the legal help that you deserve.
3. Why is the Documentation of Injuries Crucial & Which Information is Most Helpful?
In the event that you are entitled to make a claim for damages for injuries suffered in an accident, it is recommended that you document as much as you can from the moment the incident occurs. No matter how you became injured, or even if injuries are not yet apparent, information is extremely valuable. Whether you’ve had a slip and fall on property belonging to someone else, been bitten by a dog, been involved in a motor vehicle accident, or been exposed to trauma while renting an ATV or visiting a water park, making note of all details as soon as possible will be incredibly helpful down the line should you need to file an insurance claim, bring a lawsuit or enter into settlement negotiations.
What to Do Immediately After an Incident
- Make Note of Names and Addresses of Witnesses and Involved Parties
When bringing a legal action, you will need to be able to provide details such as the address where you fell, the name of the owner of a dog that bit you, or the employees with whom you interacted before and after an injury at a commercial establishment. In some cases, you may be too injured to make note of these details right away. If possible, have someone you’re with take notes and photographs, or arrange to get these details as soon as you can after the incident.
- Take Photographs
If you slipped and fell on an icy sidewalk, the icy conditions will only last until the next mild day. It is important to document the condition of the sidewalk as it existed at the time of the fall. If you have visible injuries such as bites, bruises or other physical marks, take photos of those as well, both right away, and over time as they change or worsen. In addition, if you suffered an injury to do a faulty piece of equipment a motor vehicle accident, document the scene with photographs. These may prove helpful in bolstering your case for damages later on.
- Make Notes on Exactly What Occurred As Soon As Possible
It is important to create a record of your experience as soon as you can, while the details are fresh in your mind. While it may seem like a traumatic event would be difficult to forget, it is amazing how many details can be lost, even after just a few days. We recommend that you write down everything that you remember as soon as you can or ask someone you trust to make notes for you based on your recall of the event. These details may become important should you eventually bring a claim for damages.
- See a Doctor
Whether you have physical injuries or not, you should see a doctor right away if you experience an event that could lead to injuries down the road. Some injuries make themselves apparent days or weeks following a physical trauma, and so getting medical care right away, and having that care documented by your doctor, can be crucial. If your doctor recommends a treatment plan or follow-up schedule, we advise that you follow it. If you don’t, any worsening of an injury could be attributed to the fact that you failed to heed medical advice following the accident.
- Contact a Personal Injury Lawyer As Soon As Possible
Even if you are unsure of the extent of your injuries, we advise reaching out to an experienced lawyer sooner rather than later. When a potential client contacts us, we will review the incident, any injuries with them in order to assess their likelihood for a case for damages. We will also advise on any additional information that the injured party should gather, and what their next steps should be. While a case may appear to fall within the capped claim regulations, we will generally advise that they wait before signing any documentation with the insurance company until they have a full picture of their injuries in order to protect their right to bring a claim in the future if necessary.
At Cuming & Gillespie Lawyers, we are committed to helping you and your loved ones if you’ve been injured. If you or a loved one have suffered a serious injury, we can advise on your next steps. Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555. We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve.