By Ronald Jewitt, CAM LLP, Injury Lawyers.
(Alberta) – If you sustain minor injuries in a car accident you may have heard reference to the minor injury cap or been told by an insurance company representative that your injury is “caught by the cap.” This means that the amount you can recover for damages for non-pecuniary loss (aka general damages for pain and suffering) for minor injuries is limited, i.e., capped, at an amount set each year under Alberta’s Minor Injury Regulation.
The “cap” is updated annually to reflect inflation. Effective January 1, 2023, the maximum minor cap was set at $5,817. The new amount applies to minor injuries resulting from automobile accidents that occur in Alberta on or after January 1, 2023.
Source: Alberta Superintendent of Insurance Interpretation Bulletin 09-2022
We often get questions about what kinds of injuries are considered minor such that damages for pain and suffering will be capped.
What you should know about Alberta’s Minor Injury Cap
Since 2004, total damages recoverable for minor soft tissue injuries have been limited by the government through the Minor Injury Regulation (MIR). The intent of the MIR was to cap the amount of damages for pain and suffering payable for minor injuries. Minor injuries were initially defined as a sprain, strain, or “whiplash-associated disorder (WAD)” that does not result in serious impairment. People often call these “soft tissue injuries.”
In 2004, the minor injury cap was set at $4,000 and has increased year over year to reflect inflation.
Soft Tissue Injuries in Plain Language
A soft tissue injury (minor injury) is damage to tissue, ligaments, muscles, or tendons that does not cause long-term problems with work, leisure, or other regular activities.
Expansion of the Cap
A further development took place effective November 1, 2020, when the meaning of “minor injury” was redefined as sprains, strains or whiplash-associated disorder (WAD) injuries, “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.”
So, what does that mean?
A sequelae means a condition which is the consequence of a previous disease or injury. So, the definition was expanded to include not only sprains, strains or WAD injuries caused by an accident that did not result in “serious impairment,” but also conditions that were a consequence of those sprains, strains, or WAD injuries. For example, plaintiff’s personal injury lawyers believe that the legislation was intended to catch things like psychological distress, post traumatic stress disorder (PTSD), and depression of a short-term nature that does not cause serious impairment. However, there have been few cases, if any, that have confirmed if the November 2020 changes have had any impact on the definition of minor injury.
While the intention may have been to significantly increase the types of injuries caught by the cap, this doesn’t change the fact that not all soft tissue injuries are minor. The same goes for any injuries or conditions that flow from those injuries.
The Minor Injury Cap Does NOT Always Apply
It is important to know that not all damages for minor injuries are capped. The key is whether the injuries end up resulting in a “serious impairment” to the injured person, such that they can no longer perform the essential tasks of their job, or of an education or training program, or other normal activities of daily life, and that this has been ongoing since the accident, and is not expected to improve substantially.
Whether an injury is considered “minor” and caught by the cap depends on the evidence related to your injury. An injury that initially appears minor, may well turn out to cause you long term problems.
Understanding whether your injuries fall within or outside the cap is one of many good reasons to talk to a personal injury lawyer about your case. When it comes to your well-being and your rights, getting full information about your options is always helpful.
The Minor Injury Cap does not cap other damages
It’s also important to understand that the minor injury cap does not limit your ability to claim other types of damages such as loss of income, cost of care, loss of housekeeping capacity or out of pocket expenses.
Questions about the Minor Injury Cap and how it affects you?
If you have questions about the Minor Injury Cap and if it applies in your case, we encourage you to talk to us or another a personal injury lawyer.
No two injury claims are the same. The facts always affect how the law applies. We are happy to help people understand if the cap applies and explain their options. Contact us if you would like a free consultation to get answers about your specific situation.