Whiplash injuries sustained in a motor vehicle accident are not all subject to the Alberta Minor Injury cap of $6,182.00 especially if the injury is a sprain, strain or a WAD injury that results in a substantial inability to perform the essential tasks of your employment, education or training program, or of your normal activities of daily living, that has been ongoing since the accident and that is not expected to improve substantially. Do not settle for the cap offered to you by the insurance company representative until you have spoken with a personal injury lawyer at Watchmaker Law to assess your options if you have sustained sprain, strains and whiplash injuries as a result of a motor vehicle accident.
The question your experienced personal injury lawyer would be trying to figure out for you is whether your whiplash injury results in “substantial inability” to perform the essential tasks of your employment, education, training or your normal activities of daily living. These questions are at the heart of whether your seemingly minor injuries fall within the minor injury cap. In many cases, a free consultation with an experienced personal injury lawyer at Watchmaker Law can assist you in determining if it is in your best interest to go ahead and accept an offer of the cap of $6,182 being made to you for your personal injury claim.
Your experienced personal injury lawyer will access your essential tasks of employment, education, training and other normal activities of daily living to come up with a reasonable assessment for your personal injury claims compensation. This assessment of whether the cap applies to your claim is heavily facts-dependent and it requires a careful analysis to determine whether the minor injury cap applies to your case or whether you could get more than the cap based on the effects that the whiplash injury has had on your activities of daily living.
To illustrate the information provided above, it is helpful to examine a couple of examples of cases that have gone to court where the injured party has sustained whiplash injuries. You will see in these three examples that the court awarded compensation that are well above the minor injury cap. The court pays particular emphasis on the effects that the injuries have had on the injured party’s activities of daily living and essential tasks at work and recreational activities.
Let’s start with a case called Mason v Thompson, 2020 ABQB 76: In that case, the plaintiff was involved in two motor vehicle accidents in 2009 and 2011 and suffered from neck pain, intermittent upper back pain, tingling and numbness in his left arm, headaches and poor sleep as a result of those MVAs. There was a dramatic reduction in his capacity to engage in exercise and his ability to work. The plaintiff had significant neck pain, headaches, sleep issues, impaired memory, and the symptoms had a negative effect on his life to the point where he had stopped working.
The injured party in this case had significant degeneration in his cervical spine before the accident but was asymptomatic. The medical consensus was that the chronic pain syndrome and the plaintiff’s symptoms might be permanent. The plaintiff was awarded $165,000, including nonspecific housekeeping claims ($168, 971.00 today), $500,000 loss of earning capacity, $35,000 cost of future care, and unspecified special damages.
A second case worth looking at is Meehan v. Holt, 2010 ABQB 287 – In this case, the injured party suffered lower back, mid back, shoulder, headaches and jaw/TMJ injuries. The court noted at paragraph 285 that while the other injuries had resolved, the jaw continued to bother the plaintiff although it had improved. She was unable to eat certain foods and experienced pain with talking for prolonged periods. Her sleep was disturbed.
The court went on to award $90,000.00 in general damages, which is $108, 477.00 when inflationary factors are considered. Justice Sullivan in Meehan v. Holt did an extensive examination of the case law. He noted that in Ross v. Isaacs 2001 NBQB 234, the plaintiff suffered a whiplash injury which resolved as expected. In Ross, there was an exacerbation of a stable pre-existing TMJ condition. There the court awarded $12,000 ($17, 286.00 today) for the whiplash and $48,000 ($69, 142.00 today) for the TMJ injuries.
Third and lastly, we consider the Jones v. Stepanenko 2016 ABQB 295 – The 26-year- old plaintiff suffered soft tissue injuries, chronic pain and fibromyalgia. She was a nursing student at the time of the accident, which occurred seven years before the decision, and worked as an addiction’s counsellor at the time of the trial but had to curtail her work and recreational activities because of the pain.
The court held that the plaintiff suffered a serious soft tissue injury accompanied by various contusions, lacerations and resultant severe headaches. She developed a chronic pain condition and fibromyalgia that she would have to manage for the rest of her life. She required a significant amount of treatment in the form of aggressive physiotherapy, massage, various medications and an exercise program.
She would be able to continue to develop her career, but its path was altered, and her recreational lifestyle diminished, which resulted in the loss of earning capacity. The plaintiff was awarded $80,000, which is currently $86,483.08, for pain and suffering, $18,403 for past loss of income, $125,000 for loss of earning capacity, $15,000 for loss of housekeeping capacity, $36,500 for cost of future care and $7,779 in special damages.
These are just a few examples of individuals who suffered injuries that may have been considered minor without appropriate legal advice. It should be noted that examples above are cases that went to trial. A huge majority of cases do not end up at trial. Once your experienced personal injury lawyer has determined that the whiplash injuries affect your normal activities of daily living, then they would most likely attempt to negotiate a settlement with the insurance company of the at-fault party. Not all cases are the same and you should discuss your specific case with an experienced lawyer to assess where your specific case will fall on the spectrum. The information above is not intended as legal advice and should not be relied on to determine the specific assessments of your case.
If you have sustained whiplash injuries (or any other injuries) in a motor vehicle accident or slip and fall incident, our lawyers are available 24/7 to review the facts of your specific case and provide information to you on the options available to you. We can be reached at 825-203-9801 or chat live a member of our legal team now on our home page.
