Myths and Realities of the Minor Injury Cap

Author: michael-hussey posted in: Minor Injury Cap + Personal Injury

If you have been injured in an accident, you may have been told that your injury is capped for compensation. Many people assume that their injuries must be minor because they involve whiplash and many insurers will take advantage of that assumption with low settlements.

But not all such injuries are minor. Although a sprain, strain, whiplash-associated disorder injury, or an injury involving the temporomandibular joint may be capped by the Minor Injury Regulation (“MIR”), it does not mean that these injuries are automatically capped. If your injury is within these categories, but results in a serious impairment, you may fall outside of the cap.

The Law of Minor Injuries

Jackson v. Cooper, a recent Albertan case, states that “an individual who is diagnosed with a sprain, strain, or WAD I/II injury may fall outside the MIR cap if their injury results in ‘serious impairment’ of their physical or cognitive function.” 

A serious impairment exists when the injured party has suffered a substantial inability to engage in the normal activity of daily living. A substantial inability exists where an injury:

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

Serious Impairment

In Mr. Jackson’s case, the Court found that Mr. Jackson’s injuries were not limited by the minor injury cap. The Court came to that decision based upon Mr. Jackson’s following symptoms:

• Pain and discomfort when driving.
• Inability to perform household chores to the same quality, for the same duration, or without pain.
• Could not enjoy playing ping pong, basketball, or running as he did prior to the motor vehicle accident.
• No longer plays soccer due to fear of injury.
• Lower frequency of intimate activity.
• Limitations in playing with his children. 
• Normal activities of daily living are associated with pain, functional limitation, or other discomforting effects causing diminishment to the enjoyment of life. 
• Inability to play high intensity sports without experiencing pain.

If you are experiencing any of these limitations that you feel are associated with your injury, contact the Injury Law Team at KMSC Law today for a free consultation. Our experienced team of litigators can advise whether your injuries may fall outside of the minor injury cap and will ensure that you are compensated