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Case Summary: McLean v. Parmar
Defence + Indemnity

TMJ, concussion, depression, PTSD, and chronic pain held not to be “minor injuries” within the meaning of the Minor Injury Regulation.   

McLean v. Parmar, 2015 ABQB 62, per Eidsvik, J. [4177]    

I. FACTS AND ISSUES

The Plaintiff was in a motor vehicle accident with a bus. Defendants admitted liability, leaving the only issue as quantum of damages. The Plaintiff claimed that she suffered from severe soft tissue injury (a WAD II injury) to her neck, shoulders and back, headaches, dizziness, injury to her TMJ, PTSD, depression, a concussion and chronic pain that lasted approximately two and a half years. A Certified Medical Examiner (CME) had given the opinion that her injuries were “minor injuries.” 

The Plaintiff was working two jobs at the time of the accident. As a result of the accident, she had to quit her second job. Plaintiff also had to delay starting a two year course towards obtaining her Certified General Accountant (CGA) designation by two years.

The issues were whether any of her injuries qualified as “minor injuries” under the Minor Injury Regulation, Alta. Reg. 123/2004, what her loss of earning capacity was, and what her loss of housekeeping capacity was.

II. HELD: Injuries are not minor injuries, entitled to recover general damages.

1. The Plaintiff’s injuries were held not to qualify as “minor injuries” under the Minor Injury Regulation.

(a) The only injury that could potentially be considered minor was the WAD II soft tissue injuries to the Plaintiff’s neck, back, arms and hip.

(i) TMJ, concussion, depression, PTSD, and chronic pain were held not to be “minor injuries.”

(b) The opinion of the Certified Examiner under s.12 of the MIR that the injuries were minor is prima facie evidence that the injuries are minor.

(c) Under the definition of “minor injury” in the MIR, the injury does not result in a “serious impairment.”

(i) “Serious impairment” is defined as an impairment of a physical or cognitive function that results in a substantial inability to perform the essential task of the Plaintiff’s employment, education/training program, or of normal activities of daily living, that has been ongoing since the accident and is not expected to improve substantially.

(ii) For the WAD injury to be considered “seriously impairing,” it must be the primary factor contributing to the impairment.

(d) The Court found that the Plaintiff had displaced the prima facie CME opinion, as she was unable to continue her employment as a server. Although her injuries had “recovered,” this meant she was maximally recovered, not that she was able to return to such a physically demanding job.

(i) The Plaintiff was also unable to perform activities of daily living, including housecleaning and sports such as softball, which she played regularly prior to the accident. Although the ability to perform housecleaning did recover, the ability to play softball did not.

(e) The Court also found that although she was able to enrol in the CGA program eventually (two and a half years later), the fact that she was delayed such that the impact on her career and child bearing decisions was considered a “serious impairment to her life” from which there could be no recovery.

(i) However, the Court did not accept the Plaintiff’s argument that this delay in training meant that she would be impaired over her lifetime and for that reason fits within “serious impairment,” as the impairment contemplated in the act is one of “physical or cognitive function,” while this loss in career and life choice would attract economic and non­-pecuniary damages rather than physical or cognitive ones.

(f) The Court also looked at her injuries from a “common sense point of view” to find that the injuries suffered were not the kind contemplated by the Legislature to be “minor.” 

(i) Her 60 physiotherapy sessions were well beyond the 21 session automatically approved in a “minor injury” situation.

(ii) Her problems lasted two and a half years, which is classified as “chronic pain” as it is longer than three – six months, and therefore it is not a minor injury.

(g) The Court found that although she could technically be considered to have “improved substantially” as most of her WAD injuries had recovered, her situation was not one where the Legislature intended to define as “minor.” 

(i) The Court also found that it cannot assess each of the Plaintiff’s injuries individually, as the effects are “inextricably intertwined” and therefore her damages must be assessed globally.

(h) The Plaintiff was awarded $60,000 in general damages:

(i) $25,000 for the moderate whiplash, concussion and chronic pain.

(ii) $10,000 to $15,000 for the TMJ.

(iii) $20,000 to $25,000 for the PTSD and depression problems.

2. The Plaintiff’s Loss of Earning Capacity was quantified at $40,800 regarding her loss of the serving job and $55,000 with respect to the two­-year delay in beginning her CGA courses.

(a) The Plaintiff was claiming loss of earning capacity for being unable to continue her serving job, as well as economic loss due to delay in starting her CGA courses. 

(b) Serving job

(i) The Court rejected the Defendant’s economist’s 5 shifts per month estimate based on her pre­-accident employment records for a few weeks in favour of the Plaintiff’s estimate that she worked approximately 12 shifts per month historically.

(ii) The Plaintiff conceded that she may have quit the part time job during her CGA in any event, but the Court accepted that she may have worked between courses and over the holidays.

(iii) The Court also found that moving to Saskatoon would not have necessarily been a barrier to this work, and that she probably would have continued working part time until she had her child.

(iv) The Court allowed her full loss for the period prior to taking her CGA courses, 50% of her losses during the time she would have been taking the courses, and 50% for the time after the courses until she had her baby, as it was possible she would have reduced her hours once her income went up due to becoming a CGA.

(v) The total amount awarded for the part time serving job was $40,800.

(c) CGA delay

(i) The Plaintiff claimed that she would forever be two years behind in her career due to the delay.

(ii) The Court limited the claim to a few years, rather than all the way through her career, rather than relying on the assessments of the two economists.

(iii) The Court did not rely on the defence economist’s opinion because it was based on the assumption that the Plaintiff would work in Saskatchewan for the remainder of her career (and there was a possibility of moving back to Alberta in the future where her wages would be higher) and the economist used only earnings statistics for female accountants, instead of a blend of male and female, where this Plaintiff had not followed the average earning pattern of a female accountant. 

(iv) The Court found that the loss would be felt more acutely in her first few years of her career as at some point the loss would likely not be as noticeable due to so many other factors that enter into the progression of a career.

(v) The Court granted a loss at the higher end of the estimates, and awarded $55,000.

3. The Plaintiff’s housekeeping claim was quantified at $12,500.

(a) Prior the collision, the Plaintiff did 90 – 95% of the housecleaning.

(b) After the accident, she testified that “everything was a struggle and that she did very little to nothing.”

(c) It took approximately a year and half before she was able to do the cleaning and cooking again. Prior to this, her mother came into town and helped, as did her husband. 

(d) The plaintiff bought a robot vacuum and hired extra cleaning help when they moved.

(e) The Court found the statement of law in Willeson v. Calgary (City), 2007 ABQB 117 to the effect that taking longer to do housework or having other people living with you do them does not attract damages to have been misinterpreted.

(i) The Court found that the Court of Appeal has found that gratuitous and voluntary services performed by others as a result of the Plaintiff’s incapacity does not bar a claim.

(ii) As well, taking longer can potentially entail an economic housekeeping loss, depending on the evidence.

(f) The Court used her estimate of 6 hours per week of housekeeping for a year and half, at $20/hour to come to the award of $12,500 and awarded: 

(i) $12,000 for this calculation.

(ii) $500 for the help painting by her mother.

III. COMMENTARY: This case does go against the prevailing notion that housekeeping that takes longer than usual is not compensable. As well, it appears to restrict the definition of “minor injury” to a case by case basis, and appears to reject the ability to separate injuries in this determination.

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