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Serious Impairment II

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Serious Impairment II

McLean v Parmar, 2015 ABQB 62 (CANLII)

This case shows how the Alberta Courts are interpreting the Minor Injury Regulation. Specifically, the definition of “serious impairment.” A WAD II injury can result in serious impairment.  In this case, here is how the Court interpreted the definition of “serious impairment.”

[53] The definition of “minor injury” in the MIR indicates at s. 1 (h) that the injury is a sprain, a strain, or a WAD injury that does not result in a “serious impairment”. “Serious impairment” is also defined and it means an impairment of a physical or cognitive function that results in a “substantial inability” to, and I summarise, perform the essential tasks of the Plaintiff’s employment, or of an education or training program, or of normal activities of daily living, that has been ongoing since the accident, and is not expected to “improve substantially”. Further, according to s. 3, the WAD injury must be the primary factor contributing to the impairment.

[54] In my view, the WAD II injury suffered by Ms. McLean is not a “minor injury”. The Plaintiff has displaced the prima facie opinion of Dr. Apel for the following reasons. Firstly, the Plaintiff was unable to continue her employment as a professional server since the collision and although her injuries have “recovered”, which I interpret to mean maximally recovered, she has not been able to return to this physically demanding job. As such, as this consequence of her injury is not expected to “improve substantially” or at all, the physical WAD injury that caused this problem is not a “minor” one.

[55] Secondly, the Plaintiff was unable to perform many of her daily living activities which included the physical part of housecleaning, and physically vigorous sports such as softball which she played regularly on two teams at the time of the collision. The housecleaning disability recovered over a year and a half to two years but the ability to participate in vigorous sports activity is not expected to “improve substantially” and indeed has been replaced by more sedentary activity. Again, this means that her WAD injury is not a “minor” one.

[56] The Plaintiff was unable to do the essential tasks of her CGA training program. Although her condition improved to the point that she was able to enroll two and a half years later, her career and child bearing decisions have been impacted by this disability and there can be no recovery from this serious impairment to her life.

[58] In sum, I find that Ms. McLean has serious impairments to her employment opportunities in that she was unable to return to the essential tasks of her employment as a server despite her maximal recovery and she was not, and will not be able to pursue some of her usual recreational activities primarily as a result of her WAD injuries. As such her strain, sprain and WAD injuries are not “minor” ones as defined.

The analysis of what constitutes a minor injury is not straightforward.  It requires a review of the legislation, case law, and a review of how your particular injuries fit within the definition of “serious impairment.”  You should always speak with an experienced personal injury lawyer early on in your case.  Above all, never settle with the insurance company without getting this important legal advice early. Your injury lawyer should guide you through the process and refer your to the appropriate medical experts to obtain the evidence required to maximize your recovery. This important step could mean a difference of several thousands of dollars of compensation.

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By | 2017-11-30T13:18:50+00:00 July 2nd, 2015|Injury law|0 Comments

About the Author:

Joseph A. Nagy

My name is Joseph A. Nagy. I am an Edmonton personal injury lawyer. I provide injury law services to people who have been injured in Edmonton and throughout central and Northern Alberta. I have successfully resolved thousands of personal injury cases. If you have suffered a personal injury and need the help of a proven, experienced personal injury lawyer, I invite you to complete the contact form on this page or call me at 780-420-6850 to arrange a free consultation.

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