Alberta’s minor injury cap on compensation for pain and suffering was introduced in 2004, limiting the compensation for pain and suffering for “minor” soft tissue injuries that typically resolve themselves within a few months. The government at the time said it was trying to balance the rights of injured victims with the increasing costs of providing and purchasing insurance.

When the law was introduced, a cap of $4,000 was set to be adjusted annually for inflation. As of Jan. 1, 2022, the cap is $5,488. This limit only applies to injuries suffered in an automobile accident. Any personal injury resulting from someone else’s negligence not related to a car accident is not capped.

WHAT IS A MINOR SOFT-TISSUE INJURY?

A minor injury can be a strain or sprain, or that does not cause serious impairment and will not limit your work or leisure activities for more than a few months. In 2020, the definition of “minor injury” was expanded to include whiplash-associated disorder injuries that do not result in a serious impairment.

The cap also applies to temporomandibular (two temporomandibular joints connect your lower jaw to your skull) injuries not involving damage to the teeth or the articular disk, and to minor psychological injuries, such as short-lived depression or anxiety arising from a whiplash injury. If your injuries include broken bones or nerve damage, the cap does not limit your compensation.

HOW IS AN INJURY DETERMINED TO BE MINOR?

An insurance adjuster may look at the Diagnostic and Treatment Protocols Regulation to determine whether the injury falls under the cap. It aims to provide timely access to diagnosis and treatment of injuries with minimal administrative and financial barriers. Under the regulation, diagnostic and treatment protocols will be established, allowing you to access up to 21 therapy treatments over 90 days, and your auto insurer will pay the cost of the therapy. If you do not recover, you can be referred to an injury management consultant for additional assessment of the injury.

The second way an injury may be classified as “minor” is through a medical assessment. Either you or the insurance company can decide that a doctor’s opinion is necessary to determine if the injury meets the criteria to fall under the cap.

If there is still disagreement about whether your injury is minor, you may be referred to a Certified Medical Examiner who will make that determination. Even if the CME determines that the injury is minor, you can go to court for a final determination.

ARE SOME SOFT-TISSUE INJURIES NOT CAPPED?

If your soft-tissue injury causes a “serious impairment,” you can no longer perform your job or enjoy the everyday activities you did before the accident, and your injury is not expected to improve substantially, your compensation should not be capped. The Court of Queen’s Bench of Alberta has ruled that a soft-tissue injury falls outside the cap if it:

• prevents you from engaging in a “normal activity” of daily life;
• impedes you from engaging in a “normal activity of daily living” to the degree that is non-trivial for you; and
• does not impede you from engaging in normal life, but that activity is associated with pain or other discomforting effects such that engaging in the activity diminishes your enjoyment of life.

CAN I RECEIVE MONEY BESIDES THE CAPPED AMOUNT?

If you are injured in an accident in Alberta and are found to be not at fault, you are entitled to claim compensation against the at-fault party. Please speak to our lawyers about making a claim for special damages, including out-of-pocket medical expenses, cost of care, and loss of housekeeping capacity.

Why you need our team on your side

After they are injured in an auto accident, many people are told by their insurance companies that all soft-tissue injuries are automatically capped by the province. Wrong. As discussed above, soft-tissue injuries that cause long-term impairment or that erode your quality of life are not covered by the cap. And keep in mind that many injuries initially appear minor but may cause long-term problems.

AFTER AN ACCIDENT, CONTACT US

A personal injury lawyer can help guide you through your options and help you obtain the compensation you need to help you recover from any injuries. They can also make sure that your insurance company does not attempt to limit the compensation that you are owed. Schedule your Free Consultation by calling 1 (403) 930-8594 or send a message to kantor@kantorllp.ca. We will represent you on a contingency fee basis, so we do not get paid for our time and attention until we settle.