Beating the Cap: A Practical Guide to the Regulations

3000-700 9 th Avenue SW Calgary, AB Canada T2P 3V4 Tel. 403.298.2400 Fax. 403.262.0007 www.millerthomson.com TORONTO VANCOUVER WHITEHORSE CALGARY EDMONTON LONDON KITCHENER- WATERLOO GUELPH MARKHAM MONTRÉA L Beating the Cap: A Practical Guide to the Regulations J. Derek Allchurch and Heidi A. Telstad 2005 This article is provided as an information service only and is not meant as legal advise. Readers are cautioned not to act on the information provided without seeking specific legal advise with respect to their unique circumstances. Miller Thomson LLP 1998-2006

J. DEREK ALLCHURCH Miller Thomson LLP 3000, 700 9 th Avenue SW Calgary, AB T2P 3V4 Telephone: 403.298.2415 E-mail: dallchurch@millerthomson.com HEIDI A. TELSTAD Miller Thomson LLP 3000, 700 9 th Avenue SW Calgary, AB T2P 3V4 BEATING THE CAP: A PRACTICAL GUIDE TO THE REGULATIONS Stability, insisted the controller, stability. The primal and the ultimate need. Stability. Hence, all this. Ending is better than mending. - Aldous Huxley in Brave New World Welcome, he roared to the euphoric hometown crowd, to Ralph s World. - Don Martin quoting Ralph Klein in King Ralph I. Introduction The Death of Restitutio in Integrum Tort law is based on the principle of restitutio in integrum: if you hurt someone you must restore them to their original position. This principle of compensation has always been quite straight forward with respect to economic damages but becomes more complex when applied to noneconomic damages. The judiciary s concern with excessive non-economic damages led to the $100,000.00 1 upper limit on non-pecuniary damages imposed by the Supreme Court of Canada in the trilogy. 2 In Arnold v. Teno Justice Spence outlined the rationale for a cap on noneconomic damages. Under the present common law system of liability for fault, there can be no excuse for foisting on the public the burden of caring for the plaintiff or supplying her with the necessities of life. However, that accomplished, and I hope I have accomplished it, one may and should have regard for the social impact of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right to fear a situation where none but the very wealthy could own or drive automobiles because none but the very wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards. 3 Many provincial governments shared the Supreme Court s concern about rising insurance premiums. The insurance industry blamed the rising premiums on rising claims costs and have successfully lobbied for changes to the tort system particularly in the area of noneconomic damages. Commencing on October 1 st, 2004 Alberta will join the majority of 1 $315,300 inflation adjusted to August 2004 per Economica Ltd. tables located at www.economica.ca 2 The trilogy cases are Arnold v. Teno (1978) 83 D.L.R. (3d) 609, Andrews et al. v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452 and Thornton v. School District No. 57 (1978) 83 D.L.R. (3d) 480 all released on January 19, 1978. 3 Arnold v. Teno supra note 2 at 639

Canadian provinces 4 by imposing a further cap on non-economic damages arising out of car collisions. The stated intention of the minor injury cap is to cap only injuries which are defined as minor: The definition [of a minor injury] is based on the best available scientific literature on diagnosis and treatment, including Canadian and international sources. 5 If an injury is minor the accident victim will be entitled to no more than $4,000 in non-economic damages. Welcome to the brave new world of tort reform. II. The Minor Injury Regulations Determining when a type of injury is subject to the minor injury cap is not a simple process. It requires a dull trudge through the maze of definitions contained in section 1 of the Minor Injury Regulation. 6 The $4,000 cap on non-economic damages applies only to minor injuries as defined in section 1(h) of the Minor Injury Regulation. Minor injuries are defined as sprains, strains or whiplash associated disorders ( WAD ). If the injury is a WAD injury it is only capped if it is a WAD I or WAD II injury ie. there are no objective neurological signs nor fractures. Here are the definitions of whiplash associated disorders from the Quebec Task Force: 7 PROPOSED CLINICAL CLASSIFICATION OF WHIPLASH-ASSOCIATED DISORDERS Grade Clinical Presentation O I II III IV No complaint about the neck No physical sign(s) Neck complaint of pain, stiffness or tenderness only No physical sign(s) Neck complaint AND - Musculoskeletal sign(s) a Neck complaint AND - Neurological sign(s) b Neck complaint AND - Fracture or dislocation a Musculoskeletal signs include decreased range of motion and point tenderness. b Neurologic signs include decreased or absent deep tendon reflexes, weakness, and sensory deficits. 4 For a good review of the tort schemes in various provinces see Brown, Menezes, Brock & Blackwell, Insurance Law in Canada, 2002 Thomson Canada Limited. 5 Government of Alberta website (www.autoinsurance.gov.ab.ca) 6 Minor Injury Regulation O.C. 272/2004, Alta.Reg. 123/2004 7 Spitzer WO, Skovron ML, Salmi LR, Cassidy JD, Duranceau J, Suissa S, Zeiss E., Scientific monograph of the Quebec Task Force on Whiplash-Associated Disorders: redefining "whiplash" and its management. Department of Epidemiology and Biostatistics, McGill University, Montreal, Quebec, Canada, Spine. 1995 Apr 15;20(8 Suppl):1S-73S THOMSON LLP 2

A sprain, strain, WAD I or WAD II injury will be capped if it does not result in serious impairment. Serious impairment is defined as one that results in substantial inability to perform the essential tasks of the claimant s regular employment, education or daily living. The impairment must have been ongoing since the accident and be permanent. This definition of minor injury will result in an uphill battle for accident victims with soft tissue injuries. In section 4 of the Minor Injury Regulation it is stated that the determination of an injury must be based on an individual assessment done in accordance with the Diagnostic and Treatment Protocols Regulation ( Treatment Protocols ). 8 This Byzantine piece of regulation will be discussed below. Consequences of non-participation The Treatment Protocols mandate very specific treatment in the 90 days following a collision. The Minor Injury Regulation has considered the possibility of a claimant opting out of the Treatment Protocols when they suffer a sprain, strain or WAD injury in a collision. Section 5 indicates that a person must establish the following in order not to have their injury classified as minor: have a reasonable excuse for not participating in the Treatment Protocols; have a serious impairment; and establish that the injury would have resulted in serious impairment even if the treatment protocols were followed. 9 As it is possible that many accident victims will seek to retain counsel more than 90 days after the collision, Plaintiff s counsel should consider these criteria in their initial interview. For example, an accident victim who sees their chiropractor for 12 months post-accident without other medical intervention runs the risk of having their non-economic damages capped if a certified examiner gives the opinion that the injury is a WAD I or WAD II injury that would have responded to physiotherapy. It would also be difficult to recovery the costs of treatment for those visits in excess of the number of visits allowed in the Treatment Protocols. Assessment of minor and non-minor injuries The Minor Injury Regulation specifies that the assessment of damages for non-minor injury is separate from the assessment of minor injuries. 10 This is a departure from the current practice of assessing non-economic damages globally. 11 This significant change to the law will make it essential for accident victims to clearly articulate all their injuries to their health care practitioner. Plaintiff s counsel will have to ensure that all non-minor injuries are assessed separately and in accordance with current awards. In other words it was not acceptable by the courts to ask for $15,000 for whiplash, $10,000 for the fractured clavicle and $3,000 for bruising, for a total general damages award of $28,000. 8 Diagnostic and Treatment Protocols Regulation, O.C. 271/2004, Alta.Reg. 122/2004 9 Supra note 6, s. 5(1) 10 Supra note 6, s. 7(1) 11 K. Cooper-Stevenson, Personal Injury Damages in Canada, 2 nd Ed. (1996) Thomson Canada Ltd. at 507 THOMSON LLP 3

This will be difficult if the usual symptomology arising out of a whiplash injury is considered: TMJ dysfunction, cervicogenic headaches, depression and other related injuries are not capped and should be carefully catalogued. Certified Examiners Naturally, plaintiffs and defendants will disagree as to whether a plaintiff s injuries are minor. There is an elaborate mechanism for this anticipated dispute. The mechanism is set out in ss. 8 to 18 of the Minor Injury Regulation. Prior to submitting for an examination by a Certified Examiner the claimant must adhere to the Treatment Protocols. The Treatment Protocol procedure for whiplash is as follows: Motor Vehicle Collision Health Care Practitioner (Doctor,Chiropractor or Physiotherapist) WAD I 10 Treatments WAD II 21 Treatments WAD III/IV No Treatment Protocol Yes Minor Injury Cap Recovery? No Injury Management Consultant Further Assessment Yes Has 90 days passed? No Alerting factors? Certified Examiner As you can see from this chart, the threshold conditions for examination by a Certified Examiner are: the treatment protocols must have been followed; 12 12 Supra note 6, s. 5(1) THOMSON LLP 4

90 days must have passed from the collision date; 13 and there must be a disagreement as to classification. 14 If these conditions have been met then one of the parties gives notice that they require a Certified Examiner to assess the claimant. Within 14 days of receiving notice, the other side must either: Accept the Certified Examiner; 15 or Reject the Certified Examiner and provide the name of an acceptable Certified Examiner. 16 If there is no agreement as to who will perform the examination, then the parties apply to the Superintendent of Insurance. 17 The Superintendent must select a different Certified Examiner within 5 days. 18 The Certified Examiner cannot be a treating doctor. 19 Once selected the Certified Examiner must see the claimant within 30 days. The Certified Examiner must give the claimant notice of the time, date and location of the assessment. 20 The claimant must authorize release of relevant treatment information 21 and, if the claimant does not cooperate, 22 then the injury is classified as minor. The Certified Examiner must give an opinion within 30 days 23 or request a further assessment within that time. 24 If the Certified Examiner requests a further examination it must be done within six months of the first assessment. 25 The Certified Examiner s opinion is a prima facie opinion regarding the classification of the claimant s injury as a minor injury. 26 The cost of the assessment is borne by the party requesting the assessment. 27 This will lead to an interesting cat and mouse game as to who is entitled to make the initial classification of an injury. The Superintendent will be establishing a register of Certified Examiners. 28 13 Supra note 6, s. 8(7)(a) 14 Supra note 6, s. 8(1) 15 Supra note 6, s. 8(2)(a) 16 Supra note 6, s. 8(2)(b) 17 Supra note 6, s. 8(4) 18 Supra note 6, s. 8(5) & 8(6) 19 Supra note 6, s. 8(7) 20 Supra note 6, s. 9(2) 21 Supra note 6, s. 10(2) 22 Supra note 6, s. 10(3) 23 Supra note 6, s. 11(1) 24 Supra note 6, s. 11(2) 25 Supra note 6, s. 11(3) 26 Supra note 6, s. 12 27 Supra note 6, s. 13(1) 28 Supra note 6, s. 15(1) THOMSON LLP 5

The Certified Examiner must be a physician who: 29 1. Has completed an exam set by the College of Physician and Surgeons; 30 and 2. Is knowledgeable regarding; 31 (a) the biopsychosocial model; 32 (b) (c) (d) (e) (f) assessing acute and chronic pain; the application of the International Classification of Diseases; and has experience in rehabilitation and disability management; providing independent assessments and third party opinions; Using evidence-based decision-making in their practice. There is hope for accident victims however: the Minor Injury Regulation expires on September 30, 2011! The Experience of Other Provinces As each province has taken a different approach to insurance reform a wide variety of regimes exist in Canada. Interestingly the Supreme Court of Canada has stated: The amounts of such [non-pecuniary] awards should not vary greatly from one part of the country to another. Everyone in Canada, wherever he may reside, is entitled to a more or less equal measure of compensation for similar nonpecuniary loss. Variation should be made for what a particular individual has lost in the way of amenities and enjoyment of life, and for what will function to make up for this loss, but variation should not be made merely for the province in which he happens to live. 33 New Brunswick, Nova Scotia and Prince Edward Island have recently introduced $2,500 caps on minor injuries. Newfoundland and Labrador have recently instituted a $2,500 deductible. Quebec has operated under a no-fault scheme since March 1 st, 1978. 34 This no-fault scheme provides a lump sum, up to $175,000, for non-economic damages. Manitoba and Saskatchewan introduced no-fault schemes in the 90 s which eliminated tort claims for noneconomic damages. 35 In Ontario a threshold on injury claims was implemented in 1990. There is also a deductible from any non-economic award; the threshold requires an accident victim to have suffered from 29 Supra note 6, s. 16(2)(a) 30 Supra note 6, s. 16(2)(b) 31 Supra note 6, s. 16(2)(c) 32 A biopsychosocial case presentation was considered recently in Alberta, see Vespa v. Dynes [2002] A.J. No. 644, 314 A.R. 1 at 32 (Q.B. J. Chrumka) 33 Andrews v. Grand & Toy Alberta Ltd., supra note 2 at 477 34 C. Brown, No-Fault Automobile Insurance in Canada (1988) The Carswell Co. Ltd. at 33 35 For an overview of the various tort regimes in Canada see Appendix A THOMSON LLP 6

permanent serious disfigurement, or permanent serious impairment of an important physical, mental or psychological function 36 to a suit to be brought. This definition has been frequently litigated. The case law from Ontario will be the most helpful to Alberta lawyers and judges in interpreting the new minor injury definition. Quebec, Saskatchewan and Manitoba allow no access to the courts for non-economic damages. New Brunswick, Prince Edward Island and Nova Scotia have only recently implemented a minor injury cap. Newfoundland and Labrador and British Columbia do not have caps. Thus, Ontario s threshold will provide the best guidance for Alberta courts. Ontario has a high verbal threshold that is applicable to all accident victims. 37 In Ontario, the Ministry of Finance states that: To sue for pain and suffering damages, a victim s injuries must exceed a certain level. The verbal threshold that one must meet to sue for pain and suffering is that a person has sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function. 38 as required by s. 266 of the Insurance Act. The leading Ontario Court of Appeal case, Lento v. Castaldo, sets out the appropriate approach to be used to determine the application of s. 266 of the Insurance Act, R.S.O. 1990, c I.8. 1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature? 2. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one? 3. If the answer to question number 2 is yes, is the impairment of the important bodily function serious? 39 The Ontario courts continue to use the test as established in Lento, also referred to as the Meyer v. Bright threshold, which places the onus on the injured parties to establish that their injuries resulted in permanent and serious impairment of important physical, mental or psychological function so as to bring them within the appropriate section of the Insurance Act. 40 36 Insurance Act s. 267.5(5) effective November 1, 1996. Ontario has had a verbal threshold for non-economic damages since 1990 but has slightly altered the definition on two occasions. 37 Weissenberger, Angela, Verbal Threshold and Premiums, October 2003 38 Automobile Insurance Affordability Plan for Ontario: Next Steps, Ministry of Finance White Paper, Ontario July 2003 at 17 39 Lento v. Castaldo, 110 D.L.R. (4 th ) 354, [1993] O.J. No. 2446 (Ont. C.A., Oct. 22, 1993); this appeal affirmed three lower decisions: Meyer v. Bright, 94 D.L.R. (4 th ) 648, 9 O.R. (3d) 225 (Ont. Gen. Div. Jul 13, 1992); Dalgliesh v. Green, 100 D.L.R. (4 th ) 390, 12 O.R. (3d) 40 (Ont. Gen. Div. Jan 12, 1993); Lento v. Castaldo, 110 D.L.R. (4 th ) 354. For accidents on or after November 1, 1996 refer to ss. 267.4 to 267.11. 40 Supra 15 and Seguin v. Vandinther, 44 C.C.L.I. (3d) 280, 2002 CarswellOnt. 3183, [2002] O.J. No. 3719 (Ont. S.C.J., Sep. 09, 2002). In this case the Ontario Court established that the onus was on the plaintiffs to establish THOMSON LLP 7

Alberta courts may look to this high threshold when interpreting the term serious impairment in the Minor Injury Regulation. Other heads of Damages As the Minor Injury Regulation covers only non-economic damages it will be critical to gather evidence regarding other heads of damages. Any claim which can be characterized as loss of housekeeping capacity, loss of consortium, special damages or cost of future care should be so classified to avoid the minor injury cap. In British Columbia the amounts awarded for in-trust claims and impaired earnings capacity are significantly higher than in Alberta. 41 These heads of damages will become more important in Alberta after October 1 st, 2004. III. The Treatment Protocols Like the Minor Injury Regulation, the Treatment Protocols will come into effect for all accident victims as of October 1 st, 2004. As the regulations are not retro-active they will cover only motor vehicle collision which occur from October 1 st, 2004 onwards. Accident victims would be wise to follow the Treatment Protocols as: Failure to do so without reasonable excuse will cause the injury to be deemed as minor; The prescribed treatments must be paid by the insurer (with only very limited exceptions); 42 and The insurer must pay the health care practitioners invoice directly. 43 To determine whether a victim s non-economic damages are capped it is necessary to understand the mandatory Treatment Protocols. These world class Treatment Protocols are intended to micro-manage a patient s case in accordance with the Quebec Task Force criteria. The rationale behind these regulations is that: certain strains, sprains and whiplash complaints are minor, fleeting injuries that can be dispatched within no more than 12 weeks if treated competently. Implicit is the notion that previously inappropriate medical treatment contributed to the onset of chronic whiplash states. 44 It is helpful to review the scientific studies which provide the rationale for such an optimistic recovery rate for accident victims. It may be necessary, when litigating minor injury cases, to show the flaws in these studies. that they would be brought into the exceptions provided for in the Insurance Act and that a simple passage of time could not lead to a conclusion that their impairment was permanent in the absence of a medical prognosis. 41 see for example Traynoor v. Degroot [2003] B.C.J. No 2069, 186 B.C.A.C. 213, 18 B.C.L.R. (4 th ) 261 (C.A.) and DiGiacomo v. Murphy [1995] B.C.J. No. 1886 (S.C. J. Dorgan) 42 Supra note 8, s. 33(2) 43 Supra note 8, s. 36(2)(a) 44 P. Michalyshyn Q.C. The Diagnostic & Treatment Protocols Regulation & The Minor Injury Regulation Review and Commentary July 2004. THOMSON LLP 8

The Quebec Task Force The government automobile insurer in Quebec (SAAQ) sponsored a comprehensive review of whiplash cases in 1987. This study concluded that a remarkable 97.1% of claimants recovered within one year. This study, along with the Lithuanian study and the Cassidy study, form the basis of the assertion by critics of the tort system that the whiplash megaindustry encourages illness behaviour. 45 The idea that our current system causes delay and increased expense is used as a justification for the Treatment Protocols. The bar should be aware of the flaws in these studies in order to effectively criticize the future application of the Treatment Protocols by insurers. Criticism of the Quebec Task Force 46 As with many insurer sponsored studies the Quebec Task Force was seriously flawed. The most obvious flaw was that recovery was defined as when compensation ended not when the accident victim had reached maximum medical improvement. A further serious flaw was the exclusion of all recurrence cases. Thus, if a file had to be re-opened, for administrative purposes or because the accident victim still needed treatment, it was not included in the study sample. This flawed methodology led to an overly optimistic estimation of whiplash recovery. The Quebec Task Force study was used to justify treatment for only 12 weeks post-injury which is the basis of the Treatment Protocol. The Cassidy study 47 Dr. Cassidy studied Saskatchewan whiplash victims before and after the introduction of a nofault scheme. He found that the time to claims closure decreased from 433 days under a tort system to 199 days under a no-fault system. There was also a 28% reduction in whiplash claims after the introduction of no-fault. His conclusion, published in the New England Journal of Medicine, was that the elimination of compensation for pain and suffering led to a decreased incidence and improved prognosis for whiplash injuries. Criticisms of the Cassidy study The drop in claims in Saskatchewan was not a surprise: a system that does not compensate victims for non-economic damages will necessarily see a reduction in claims as only victims with economic damages will come forward. This study used claims closure as a proxy for recovery. This would understate the whiplash recovery rate. Further all re-opened claims were excluded from the study. Re-opened claims were significant as 22% of the tort cases and 32% of the nofault cases were excluded as a result of this criteria. Thus, this study used the same flawed methodology that was used in the Quebec Task Force study. 45 R. Ferrari, Reply to Pearce Neuro Neurosurg Psychiatry 2001; 71:820-21 46 For a thorough critique of the Quebec Task Force, Cassidy report and Lithuanian study see the article entitled Whiplash Injuries by Robert W. Teasell, Professor of Physical Medicine and Rehabilitation at the University of Western Ontario. This excellent article is attached as Appendix B to this paper. 47 Cassidy JD, Carroll LJ, Cote P, Lemstra M, Berglund A, Nygren A., Effect of eliminating compensation for pain and suffering on the outcome of insurance claims for whiplash injury. N Engl J Med 2000; 342: 1179-1186 THOMSON LLP 9

The Lithuanian study 48 This study used police records to identify 202 individuals who were involved in rear-end collisions one to three years earlier. These potential accident victims were compared to 202 non-accident victims. There was no significant difference between the incidence of neck or back ache in the two groups. The study concluded that chronic whiplash syndrome has little validity and that its existence was due to the existence of compensation for whiplash injuries. Criticism of the Lithuanian study The Lithuanian study was flawed as it used too small of a sample size. Of the 202 individuals involved in collisions, only 31 recall being injured at all. Even the Quebec Task Force and Cassidy studies looked at injured people, not all people, involved in a collision in order to study the incidence of whiplash. With such a small sample size it would be unlikely to find any difference between the two groups. One critic pointed out that at least 3000 individuals would have to be studied in order to discern a statistical significant difference between the two groups. 49 Further, this study group consisted of 80% males. Another study by the same researchers indicated that women are more likely than men (17% to 10%) to suffer from chronic neck pain. 50 Categories of minor injury Despite the valid criticism of these studies the Government of Alberta used their conclusions to design a system of treatment protocols and to classify some injuries as minor. The injuries which are classified as minor and which are covered by the Treatment Protocols can be broken down into three categories: sprains/strains, WAD I injuries and WAD II injuries. Each of these three categories have their own definition and their own treatment requirements. Strains and sprains All classification under the Treatment Protocols is done by health care practitioners. A health care practitioner is either a medical doctor, a chiropractor or a physiotherapist. 51 However, a chiropractor cannot treat a 1 st or 2 nd degree sprain with a chiropractic adjustment. 52 A sprain is defined as an injury to one or more tendons or ligaments. A strain is defined as an injury to one or more muscles. A 1 st or 2 nd degree sprain or strain can be treated with not more than 10 medical, physiotherapy or chiropractic treatments. 53 A 3 rd degree sprain or strain can be treated with not more than 21 medical, physiotherapy or chiropractic treatments. 54 48 Schrader H, Obelieniene D, Bovim G, Sukiene D. Mickevicine D., Misevicine I, Sand T., Natural evolution of late whiplash syndrome outside the medicolegal context. Lancet 1996; 347:1207-1211 49 Freeman MD, Croft AC, Rossignol AM, Weaver DS, Reiser M., A review and methodologic critique of the literature refuting whiplash syndrome. Spine 1999; 24:86-98. 50 Bovim G., Schrader H, Sand T., Neck pain in the general population. Spine 1994; 19(12):1307-1309. 51 Supra note 8, s. 1(1)(c) 52 Supra note 8, s. 9(3) 53 Supra note 8, s. 9(2) & 13(2) 54 Supra note 8, s. 9(5) & 13(5) THOMSON LLP 10

WAD I Injuries Sections 16 to 18 of the Treatment Protocols outline the definition and required treatment for WAD I injuries. The Treatment Protocols micro-manage a health care practitioners assessment and treatment of these injuries. A WAD I injury consists of complaints of spinal pain with no demonstrable physical signs of injury. Once a WAD I is diagnosed the treatment provider is required to educate the client regarding self-care and an early return to normal activities as well as the importance of postural control. The treatment provider is to reassure the claimant that there is likely no serious currently detectable underlying cause of the pain. 55 A health care practitioner may prescribe up to 10 chiropractic treatments, physiotherapy treatments or adjunct therapy visits. 56 The family physician may prescribe the short-term use of analgesics or anti-inflammatory mediation but not muscle relaxants or narcotics. 57 WAD II Injuries Sections 19 to 21 of the Treatment Protocols outline the definition and required treatment for WAD II injuries. A WAD II injury is diagnosed where a claimant has complaints of spinal pain with demonstrable signs of physical injury. The demonstrable signs of physical injury include decreased range of motion in the spine and point tenderness of the spinal structures. Unlike a WAD I injury a diagnosis of a WAD II injury allows a health care provider to prescribe further testing to rule out a more severe whiplash injury. The practical effect of this will be to have most family doctors diagnose a WAD II injury so that precautionary x-rays can be ordered. In a clear example of cost control versus good medicine, section 19 prohibits an MRI scan or CT scan from being conducted unless three plain x-rays are equivocal. A health care practitioner can authorize up to 21 chiropractic treatments, physiotherapy, treatments or adjunct therapy visits. As with WAD I injuries, the family physician may prescribe the short-term use of analgesics or anti-inflammatory medication but not muscle relaxants or narcotics. 58 Injury Management Consultants The Treatment Protocols cover only sprains, strains, WAD I and WAD II injuries. If a chiropractor or physiotherapist determines that the injury is non-protocol then an assessment by an Injury Management Consultant (an IMC ) is authorized. Similarly, any health care practitioner can authorize a visit to an IMC if the practitioner is uncertain as to the injury or if the injury is not resolving. Finally, if a claimant with a WAD I or WAD II injury has any alerting factor that may influence prognosis 59 the claimant may be referred to an IMC. In this case the insurer must pay for the 55 Supra note 8, s. 17(a)(iii) 56 Supra note 8, s. 18(2) 57 Supra note 8, s. 17(c) 58 Supra note 8, s. 20(c) 59 Supra note 8, s. 24(2) THOMSON LLP 11

assessment. Alerting factors are not defined in the Treatment Protocols. Under similar treatment protocols in New South Wales, Australia the following yellow flags are identified: 60 Severity of neck symptoms and radicular irritation Presence of specific symptoms such as headache; muscle pain; pain or numbness radiating from neck to arms, hands or shoulders More initial subjective complaints and concern regarding long-term prognosis Multiple initial symptoms Older age Female gender Not in full-time employment Having dependants Presence of osteoarthritis on X-ray As with Alberta s Treatment Protocols the New South Wales guidelines were based on the Quebec Task Force guidelines. The New South Wales guidelines are only a starting point and recognize that the natural course of the condition [whiplash] can go beyond the acute phase addressed here. 61 Hopefully the limitations of Alberta s Treatment Protocols will be recognized by insurers and judges. Under the three scenarios outlined so far, the insurer is obligated to pay for the IMC assessment. 62 A claimant can also be referred to an IMC after 90 days if their injuries have not resolved. This assessment along with any recommendation for further treatment, must be approved by the insurer. It will be interesting to see how the insurers deal with claims under the Treatment Protocols as they are required to pay for all treatment up to 90 days but treatment beyond that time is at their discretion. There may be a considerable number of whiplash victims that fall through the cracks: one study found that 44% of whiplash patients were still symptomatic three months post-collision. 63 Although an IMC can be a chiropractor, physiotherapist or medical doctor they must have similar requirements to those stated above for certified examiners. In other words, like certified examiners they must: be knowledgeable with respect to the biopsychosocial model; be knowledgeable with respect to chronic pain; have experience with rehabilitation management; and 60 Guidelines for the Management of Whiplash Associated Disorders, January 2001, Motor Accidents Authority of New South Wales. 61 ibid, at p.5 62 Supra note 8, ss. 23, 24(3) & 24(4) & 32 63 Radanov BP, Sturzenegger M, DeStefano G. Schnidrig A., Relationship between early somatic, radiological, cognitive and psychosocial findings and outcome during a one-year follow-up in 117 patients suffering from common whiplash, Br J Rheumatology 1994; 33:442-448 THOMSON LLP 12

use evidence-based decision-making in their practice. 64 Unlike the Minor Injury Regulation, the Treatment Protocols do not expire although they must be reviewed by the Superintendent within two years or if written notice is given to the Superintendent by The College of Physicians, Chiropractors or Physiotherapists. 65 IV. Improved Benefits for Non-Protocol Injuries Injuries not covered by the treatment protocols have the advantage of improved Section B coverage under the Automobile Accident Insurance Benefits Amendment Regulations ( Benefit Regulations ) 66. The Benefit Regulations are the third substantive set of regulations that will come into force on October 1 st, 2004. The Benefit Regulations specify that the limit of treatment is now up to $50,000 from the previous limit of $10,000. The time limit and necessity requirements remain. Chiropractic coverage for injuries not covered by the protocols has increased to a maximum of $750 (from $500). Massage and acupuncture now have a limit of $250 per person. The Benefit Regulations also state that the auto insurer is the primary insurer for expenses payable under the Treatment Protocols 67. The auto insurer remains a secondary insurer for non-protocol expenses. There will be increases to the amounts paid for death benefits, funeral expenses and grief counseling. Further, the Section B wording has been amended to allow for adult interdependent partners 68 to receive the same benefits as spouses. The Benefit Regulations have doubled (from $50 per week to $100 per week) the total disability benefits for an unemployed person who is unable to perform any of their household chores 69. The $300 per week maximum weekly indemnity has not changed. There is now a formula to clarify the calculation of weekly indemnity if the claimant is receiving other disability benefits Interestingly, the Benefits Regulations specify that the insurer does not have a right to a medical examination before paying for chiropractic, massage therapy or acupuncture services. This is presumably because of the low dollar maximum limits put on these services. The insurer does not have a right to a medical exam until the claimant has incurred $600 of psychological, physiotherapy or occupational therapy services. 70 V. Conclusion Three sets of comprehensive regulations come into force in Alberta as of October 1 st, 2004. These new regulations will radically change the compensation system for accident victims. Personal injury lawyers need to review and understand these changes. Now more than ever accident victims will require excellent legal representation to ensure that their rights are protected. The regulations are intended to reduce the amount paid out by insurers to accident 64 Supra note 8, s. 27(b) 65 Supra note 8, s.39 66 O.C. 270/2004, Alta.Reg. 121/2004 67 ibid., s.5(4) 68 as defined in the Adult Interdependent Relationships Act S.A. 2002 c. A-4.5 69 Supra note 66, s. 6(e)(iii) 70 Supra note 66, s.8(g) THOMSON LLP 13

victims for soft-tissue injuries. This will occur. It is our duty to ensure that all accident victims are aware of their rights and are dealt with fairly. Insurers will be tempted to declare claimants as healed after submitting to the Treatment Protocols and will likely be reluctant to pay for further treatment. Insurers will also be tempted to over-classify injuries as minor due to the lower non-economic damages pay-out. As in Ontario there will need to be several court decisions regarding the definition of minor injury in order to clarify what type of cases will be capped. It will likely be uneconomical, at current contingency fee rates, to represent accident victims whose claims are subject to the minor injury cap. However, if an accident victim has other nonminor injuries or other pecuniary losses, the case may be economical despite the cap on noneconomic damages. Case selection will be critical but will lead to fewer accident victims being represented. Whether these regulations lead to lower insurance rates for most Albertans remains to be seen. THOMSON LLP 14