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.