RUMOR HAS IT THAT SOFT TISSUE INJURIES ARE “CAPPED”. TRUE OR FALSE?

WHAT IS THE “CAP”?

In 2004, the Alberta government passed the Minor Injury Regulation, which capped damages for pain and suffering for certain so-called “minor injuries” caused by a motor vehicle collision.

This cap only applies to injuries caused by a motor vehicle collision.

This cap only applies to damages for pain and suffering. The cap does not apply to claims for loss of income, loss of housekeeping, or future cost of care.

HOW MUCH ARE CAPPED INURIES WORTH?

The value of the cap is adjusted for inflation every year.

Collision YearCap
2018$5,020
2019$5,202
2020$5,296

WHAT TYPES OF INJURIES ARE CAPPED?

You may have heard that all soft tissue injuries are capped, but this not true.

The cap applies only to “minor” soft tissue injuries.

Minor injuries include:

  1. sprains;
  2. strains; and
  3. whiplash associated disorders.

However, the cap does not apply to soft tissue injuries that result in a serious impairment.

WHAT IS A SERIOUS IMPAIRMENT?

A sprain, strain or whiplash injury is not minor if:

  1. it is not expected to substantially improve; and
  2. it significantly interferes with a person’s ability to:
    1. work;
    1. go to school; or
    1. carry on their normal daily activities.

The Alberta courts have expanded the definition of “serious impairment” to include chronic sprains, strains, and whiplash injuries that continue to cause pain and require treatment more than 3 months after the collision.

TMJ INJURIES

In 2018, the Alberta government changed the Minor Injury Regulation to include most TMJ injuries caused by motor vehicle collisions after May 31, 2018.

TMJ injuries are now capped only if:

  1. there is no damage to the bone or teeth; or
  2. there is no damage to or displacement on the articular disc (also known as internal derangement).

However, it is likely that chronic TMJ injuries, which continue to cause pain more than 3 months after the collision, are not minor and therefore are not capped.

PSYCHOLOGICAL INJURIES

Psychological injuries, including anxiety and PTSD, that are caused by the collision and resolve within 3 months of the collision are also capped.

WHAT ABOUT BROKEN BONES?

Broken bones are not considered minor injuries, even if they heal within 3 months of the collision. The value of these injuries is determined using past court decisions.

WHAT TO DO IF THE INSURANCE COMPANY OFFERS YOU THE CAP

At-fault insurance companies often want to settle claims as quickly as possible. They often contact injured persons within weeks or months of the collision. But once you accept a settlement from the insurance company, you cannot sue them or ask for any more money. Even if it turns out that your injuries are worse than they originally seemed.

If you have not hired a personal injury lawyer and the at-fault insurance company calls you wanting to settle, you should consider the following:

  1. Have your injuries fully healed or are you still in pain and attending treatments?
  2. Has it been more than 3 months since the collision?
  3. If you have stopped treating, are you certain that you will not need any more treatment for your injuries?
  4. Have you returned to work since the collision, and if so, are you pain-free at work?
  • You have the right to negotiate a settlement with the at-fault insurance company, whether or not you hire a personal injury lawyer.
  • You can ask for time to consider any settlement offer before accepting or rejecting it. 
  • You have the right to seek legal advice regarding any offer an insurance company makes.
  • You have the right to reject an offer and wait and see how bad your injuries are before settling with the insurance company.

IMPORTANT: You only have 2 years from the date of the collision to file a lawsuit against the at-fault driver. You can settle with the driver’s insurance company at any time before the 2-year mark without filing a lawsuit. If you do not file a lawsuit within 2 years of the date of the collision, you will not have any legal right to sue the at-fault driver or claim any money from their insurance company. You can still settle with the insurance company after you file a lawsuit.