After a motor vehicle accident in Alberta, you may be wondering if you have a case, after you have sustained whiplash injuries or what some medical professionals call soft tissue injuries. These personal injuries may seem “minor” at first, however, there are several cases that are a good way to see how the courts assess whiplash cases and soft tissue injuries generally. A good example of such a case is McLean v. Parmar* The Mclean case is significant to personal injury cases in Alberta because it involves assessing the injuries and losses suffered because of her Motor Vehicle Accident (MVA) and the damages (i.e. compensation she is entitled to.
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*2015 ABQB 62
Background of the case
Ms. Shannon McLean, a 29-year-old accountant, was injured on January 11, 2008, when a bus owned by the City of Calgary and driven by Ms. Neelan Parmar ran a red light and struck her. The bus speeding through a red-light T-boned her car, and her car spun, releasing her airbag. She blacked out momentarily, was trapped inside by jammed doors, and she feared she would burn. Though she refused on-scene ambulance transport, she sought medical attention the next day, reporting immediate neck and back pain.
The defendants admitted fault and Ms. McLean sought damages for her injuries, which include severe whiplash/soft tissue injury to her neck, shoulders and back, headaches, dizziness, injury to her temporomandibular joints (“TMJs”), post-traumatic stress disorder (“PTSD”), depression, a concussion and chronic pain.
Her recovery lasted over two and a half years, but she had a second collision in September 2010. The injuries sustained forced her to quit her second job as a pub server, take disability leave, and delay pursuing her Certified General Accountant (CGA) professional designation. She also transitioned from her active lifestyle to lower-impact activities.
Medical Treatment & Course of Recovery
- Initial Diagnosis & Early Care
• She visited a walk-in clinic a day after the first collision, was diagnosed with whiplash and back strain, and was prescribed painkillers and physiotherapy.
• The physiotherapist she visited documented a case of WAD II injury (moderate whiplash), restricted cervical range, facial/jaw tenderness, arm radiating pain, headaches, and emotional distress factors predicting delayed healing, and she attended over 60 physiotherapy sessions. - Psychological Care
• She had five sessions with a psychologist post-collision for acute stress and depression until her insurance funding stopped. - Primary Care Follow-Up
• Her general practitioner (GP) diagnosed her with WAD II cervical strain/whiplash, back and hip myalgia, which led to mild reactive depression, and PTSD concussion that caused dizziness, vertigo for a period, headaches and ultimately chronic pain.
• The GP ordered a CT scan to rule out any serious post-concussion trauma or vertebral artery concerns, but the CT came out normal
- Dental & TMJ Intervention
• The TMJ specialist she saw in 2009 noted bilateral disc displacements and TMJ pain causally linked to the crash, which Ms. McLean managed with physiotherapy, splints, and self-massage. - Advanced Prolotherapy
• She received nine prolotherapy injections to induce healing in chronically inflamed neck/spine tissues. Her prolotherapist also noted ongoing depression and PTSD and recommended continued counselling and medication. - Functional Impact
• Physical: she had persistent neck/back pain, arm numbness (impairing handwriting), TMJ headaches, eighteen months of chronic fatigue, and residual difficulties with physical activities.
• Psychological: she suffered from nightmares, driving anxiety, depression, and PTSD lasting the duration of the recovery.
Notable Court Holdings
Redefining minor injury
Because Alberta’s Minor Injury Regulation (MIR) caps non-pecuniary (“pain and suffering”) awards at $4,339 per minor injury, the court had to decide if McLean’s whiplash and related pain can be considered “minor.” The court also stated that the TMJ disorder injury, the concussion, the depression, PTSD, and chronic pain Ms. McLean suffered cannot be considered not “minor injuries” as prescribed by MIR because it is not a sprain, a strain, or a WAD injury that does not result in a “serious impairment”.
The court expanded on the meaning of serious impairment as:
- The injury that affects physical or cognitive function that results in a “substantial inability” to perform the essential tasks, employment, education or training program or normal daily activities of the Plaintiff’s employment, or an education or training program, or of normal activities of daily living.
- Has been ongoing since the accident and is not expected to “improve substantially”.
The court stated that the WAD II injury suffered by Ms. McLean is not a “minor injury” because McLean has been unable to continue her physically demanding job even after two and a half years of maximal recovery from her injuries. In addition, she has been unable to perform physical tasks, such as housecleaning and sports, and has consequently been reduced to a sedentary lifestyle.
The court also noted that the WAD affected her childbearing decision and caused a two-and-a-half-year delay in CGA training and concluded that the WAD is a serious impairment.
The court commented that strain, sprain and WAD injuries that last beyond three to six months, and involve a rigorous treatment regimen, should be considered chronic injuries and classifying them as minor injuries is not the intention of the MIR.
The court assessed the damages for the injuries she suffered separately as follows:
• $ 25,000 for the moderate whiplash, concussion, and chronic pain
• $10,000 – $15,000 for the TMJ injury, and
• $20,000 – $25,000 for the PTSD and depression
She was awarded $60,000 as general damages (now $77,686.21)
Loss of Income
Ms. McLean was working at two jobs at the time of the first collision, as a full-time account and as a part-time server. She was unable to resume her role as a server because her injuries do not allow physical activities, and she had to delay getting a CGA training by two and a half years because of her disability. All these contributed to her loss of income, and she claimed economic loss because she is unable to continue her role as a server and will perpetually be approximately two years behind in experience and earnings.
In assessing the loss suffered due to the delay in getting her CGA training, the court, while acknowledging the difficulty in calculating a precise loss of income, concluded that MS. McLean’s loss should be on the higher end of the estimate and noted that the following should be accounted for when assessing McLean’s economic loss:
- Contrary to the assessment that is based on the assumption that McLean will live in Saskatchewan for the next 15 years, there is evidence of the possibility of her relocating to Alberta. Therefore, the assessment should have considered the income statistics in Alberta because of the income differences between the two provinces.
- Assessing McLean’s income based on the earnings of female accountants instead of a blend of male and female is not condoned because male accountants earn more than the average earnings of their female counterparts, and Ms. McLean’s earnings are above the average earnings of both male and female accountants.
- The Saskatchewan CGA statistics give a more realistic picture of Ms. McLean’s future earnings by factoring in that she may leave her underpaid job, and her husband could relocate for higher wages.
She was awarded $40,800 (now $52,826.62) for the loss of her part-time server position and $55,000 (now $71,212.36) for the delay in her increased earning capacity.
Adopting a Rounded Assessment Approach
The court indicated its commitment to a comprehensive assessment by rejecting an injury-by-injury analysis. The court noted that attempting to isolate Ms. McLean’s injuries, as the MIR contemplates, is both artificial and impractical given their interrelated nature.
As a result, the court proposed assessing Ms. McLean’s pain and suffering holistically. The court recognized that her neck and back pain disrupt sleep; PTSD-related nightmares aggravate her fatigue and depression; TMJ tension compounds both; and her headaches may arise from any combination of these conditions. Therefore, concluded that separating them would serve no useful purpose.
Housekeeping-Loss Claim
The court awarded $12,500 (now $16,184.63) for housekeeping. The court, when awarding damages for Ms. McLean’s housekeeping loss claim, pointed out that even when family members pitch in, a plaintiff can recover for tasks she physically would have performed.
Before the collision, Ms. McLean performed up to 95 percent of all house chores, including mopping, sweeping, dusting, bathrooms, laundry, cooking and grocery shopping. She also had painted their 1,200 sq ft main floor and spent an estimated average of six hours a week on housework. However, after the collision, she had severe neck/back pain and arm/hand numbness, making basic tasks (vacuuming, sweeping, carrying laundry, chopping vegetables, even baking) unbearably painful. She was unable to resume her chores for about 18 months, and before she could resume housekeeping, her husband and sometimes her mother helped with some of the household tasks. They also hired extra help and bought a robot vacuum cleaner.
The court noted that voluntary services performed by others due to a plaintiff’s incapacity do not prevent the plaintiff from being entitled to a claim for economic housekeeping loss. The court also highlighted that spending a longer time to perform a task than normally expected is a potential proof of financial loss.
In addition to the general damages, the court awarded special damages of $ 3,855 (now $4,991.34) to cover transportation costs to medical appointments, sleeping expenses, medical aids, and fitness expenses.
Importance of the Quality of Expert Evidence
The court, in assessing the extent of damages Shannon is entitled to, relied heavily on the evidence of experts and came to the following conclusion:
While the court found the evidence of the plaintiff’s experts – a general practitioner and physiotherapist- who gave a firsthand and detailed account of McLean’s injury, including the range of motion, radicular pain, and concussion symptoms, alongside subjective reports (neck/back pain, PTSD nightmares), the treatment and recovery process credible and acceptable, the court dispelled the opinion of the defendant’s experts as bias and unhelpful because they never examined McLean in person and solely relied on fragmented records and speculation that underplayed the severity of McLean’s injuries and symptoms.
The use of expert evidence is also instrumental to the court’s comprehensive assessment of McLean’s injury as chronic, while rejecting the injury-by-injury analysis. The physiotherapy, TMJ treatment, prolotherapy and counselling records showed that McLean had overlapping symptoms—pain, fatigue, headaches, depression, etc. and illustrate the two-and-a-half-year recovery period from the time of the collision.
Psychological Injuries
Courts do not underestimate psychological injuries caused by MVA, and a victim can experience psychological injuries ranging from post-traumatic stress disorder, anxiety, depression, to trauma-induced insomnia, even where there are no catastrophic physical injuries. These psychological injuries can also substantially impact the lifestyle and work of a victim of an MVA.
In this case, for instance, Ms. McLean had PTSD, which led to nightmares and fear of driving to the point that she purchased a large truck instead of a small vehicle to drive. She also had to seek treatment from a psychologist. All these were considered when she was awarded damages for her injuries.
Here are five key takeaways:
• The court gave a broader definition interpretation of what constitutes a “serious impairment” to include injuries that have a long-term impact on a person’s ability to work, perform daily tasks, and maintain their lifestyle.
• The court emphasized a holistic view of Ms. McLean’s injuries, recognizing how physical and psychological symptoms interact and compound each other, supporting a more realistic damage assessment in personal injury cases.
• The court favoured direct, detailed expert evidence, emphasizing the critical role of credible, direct medical evidence in proving injury claims and influencing damage awards.
• The court reinforces the legitimacy of mental health impacts in personal injury litigation.
• The awards granted not only compensated the physical injuries, but also career setbacks, lifestyle changes, and household limitations, reflecting real-world impact-based compensation.
Conclusion
McLean v. Parmar invites counsel to ensure their client’s evidence portfolios reflect their lived experience—acknowledging house-keeping losses, career delays and lifestyle sacrifices as part of the injury tapestry. As Alberta courts continue to refine personal-injury jurisprudence, this ruling will serve as the guide for ensuring comprehensive compensation for those whose lives are irrevocably altered by a motor vehicle accident.
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.
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