Bill 41- Insurance Amendment Act, 2020

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Bill 41” was passed by the Alberta Government and made significant amendments to legislation that will affect personal injury matters. The Government plans to make additional changes to the insurance scheme in the future which will strip Albertans of their right to sue. Simply stated: the government does not care about injured Albertans. See this article and what you can do about it.

Bill 41- INSURANCE (ENHANCING DIMINISHING DRIVER AFFORDABILITY AND CARE) AMENDMENT ACT, 2020

The Cap

Changes to the Minor Injury Regulation

The Minor Injury Regulation, Alta Reg 123/2004 (the “MIR”) is a piece of legislation enacted by the Alberta government in 2004 that “capped” minor soft tissue injuries, including minor sprains and strains and Whiplash Associated Disorders, at a combined maximum of $4,000 (adjusted for inflation annually). In 2018, the government introduced additional provisions to also “cap” TMJ injuries by adding them to the definition of a “minor” injury. These injuries were considered to be “minor” by law if they did not result in serious impairment (i.e. “capped” at $4,000).

Some injuries were not determined to be within the scope of the Minor Injury definition and thus injured victims were able to be compensated more than the “cap” ($4,000). Such injuries included sprains, strains and Whiplash Associated Disorders, TMJ injuries, psychological injuries, etc which resulted in “serious impairment”.

(Note: The MIR also includes that if a person does not follow the treatments outlined in the Diagnostic and Treatment Protocols then their injuries are also considered to be “minor injuries” [i.e. worth maximum $4,000], subject to some exceptions. More on this topic below).

The New Cap

The MIR was amended once again and came into effect November 1, 2020. This time, the amendments broadened the definition of a “minor injury”. Any injuries caused by a motor vehicle accident that occurred on or after November 1, 2020 are subject to the new definition.  Now, “any clinically associated sequelae of the sprain, strain or Whiplash Associated injury, whether physical or psychological in nature, caused by the accident that do not result in a serious impairment” are considered “minor injuries”.

In basic terms, anything associated with a strain, sprain or Whiplashed Associated Injury, whether physical or psychological in nature, may be considered a minor injury if they do not result in a serious impairment.

What is Serious Impairment?

“Serious impairment” is defined in the MIR as:

  • an impairment of a physical or cognitive function
    • that results in a substantial inability to perform the
      • essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,
      • essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or
      • normal activities of the claimant’s daily living,
    • that has been ongoing since the accident, and
    • that is expected not to improve substantially

Changes to Number of Experts

Personal injury lawyers often rely on reports from medical experts to assess the extent of their client’s injuries and whether they resulted in serious impairment. Other experts are often relied on to assist in proving particular heads of damages including Occupational Therapists, Economists, Vocational Experts, etc.

By amending Section 558.1 of the Insurance Act, Bill 41 changed the amount of experts that accidents victims’ lawyers are allowed to rely upon.

If the value of the claim for motor vehicle injury damages is $100,000 or more, victims are only allowed to tender 1 expert report and call 3 expert witnesses at trial.

If the value of the claim for motor vehicle injury damages is less than $100,00, victims are only allowed to tender 1 expert report and call 1 expert witness at trial.

There are some exceptions to the above rules including:

  • “At trial, a party may tender expert evidence of one or more additional experts with the consent of all other parties”.
    • This means that the lawyers on the other side, working for the insurance companies, would have to consent to additional experts. The chances of this occurring are likely to be rare.
  • If the parties call a “joint expert”.
    • The chances of this occurring are also likely to be rare.
  • A party may apply to the Court to permit the party to call additional expert evidence or rely on additional expert reports, subject to certain conditions.

What does this mean for injured victims?

Previously, lawyers would rely on reports from a number of experts including:

  • Family Doctor
  • Physiotherapist
  • Chiropractor
  • TMJ Specialist / Dentist
  • Psychologist / Psychiatrist
  • Chronic Pain Specialist
  • Physiatrist and/or Orthopaedic Surgeon
  • Economist / Accountant
  • Vocational Expert

Now, if the total value of your claim is worth less than $100,000, your lawyer will only be able to rely on one expert. This makes it increasingly challenging for injured victims to prove their claims (as the onus is on them to prove) and put the victim back in the position they would have been had the accident not happened.

Changes to the Diagnostic and Treatment Protocols

The Diagnostic and Treatment Protocols (the “Protocols”) applies until the first of either two situations occur:

  1. 90 days elapses from the date of the accident, or
  2. When the aggregate number of visits authorized by the Protocols has been reached
    1. Aggregate number of visits depends on the type of injuries diagnosed.
      1. For a 1st degree strain, sprain or Whiplash Associated Disorder, it is 10.
      1. For any higher degrees, it is 21.

During the Protocol period, a set number of treatments is approved for specific treatment modalities.

Where you are being treated under the “treatment protocols”, the following benefits are available to you without prior approval of the insurance company after 90 days under the Protocols:

  • physiotherapy treatments;
  • chiropractic treatments (not covered by Alberta Health) to a maximum of $1000 per person (previously $750);
  • massage treatments to a maximum of $350 per person (previously $250);
  • acupuncture treatments to a maximum of $350 per person (previously $250);
  • $1,000.00 for any combination of dentist, psychologist, and occupational therapist treatment (previously not quantified).

NOTE: There is a limit of $50,000.00 per person for medical expenses.

If Protocols are not followed: If a claimant is not diagnosed and treated in accordance with the Protocols (ex. If the claimant does not complete the number of aggregate visits within 90 days of the accident), their injuries are prima facie determined to be “minor”, unless the claimant establishes that the sprain, strain or WAD injury would have resulted in a serious impairment even if the claimant had been diagnosed and treated in accordance with the protocols.

Changes to Accident Benefits (“Section B”)

Certain benefits are available to people injured (or the dependents of those killed) in automobile accidents no matter who is at fault for the accident.

These benefits are commonly called “no fault” or “Section B” benefits.  Section B benefits are mandatory in every policy of automobile insurance issued in Alberta and are payable up to a period of two years from the date of the accident.  These benefits can be claimed in any of the following situations:

  1. If a person is injured in their own vehicle (under their own motor vehicle insurance policy);
  2. If a person is injured as a passenger in a motor vehicle (under the policy of the owner of the motor vehicle in which they were a passenger);
  3. By a pedestrian struck by an insured automobile (under that automobile’s insurance policy).

For as long as an injured person is deemed to be wholly disabled from working as a result of their injuries, they may claim disability benefits under the Section B policy up to a maximum of 104 weeks.  The amount they ma claim is 80% of gross weekly earnings to a maximum of $600 per week (previously $400 per week).  There is a one-week waiting period before these benefits will commence.

  • For all accidents, the following benefits are available under the “no fault” (Section B) portion of the policy:
  • funeral benefits;
  • death and total disability benefits;
  • housekeeping costs (for those over 18 and not employed outside of the home) up to $200 per week to a maximum of 104 weeks (previously $135);
  • prescriptions;
  • any other necessary medical or rehabilitation expenses (prescribed by a medical practitioner).

Certified Medical Examinations

If there is disagreement between a claimant and defendant as to whether an injury sustained by a claimant is minor or not, either party may send the claimant to a Certified Medical Examination. Certified Examiners used to only include physicians who are registered as Certified Examiners. Further to the Bill 41 amendments, dentists may also register as Certified Examiners now.

Pre-Judgment Interest

One of the most common tactics employed by insurers or their representatives is delaying matters in hopes that injured victims will take a low offer and walk away. Insurers used to be on the hook to pay interest on a settlement amount, in significant portions, for these delays. Unfortunately, Bill 41 severely decreased the amount an injured victim can claim for pre-judgment interest, allowing insurers to delay matters with little to no consequences. While the amount an injured victim can currently claim for pre-judgment interest is up for debate, Assiff Law Office remains committed to pursuing all matters vigorously and in a timely matter by deploying countermeasures.

Conclusion

While Bill 41’s amendments may have added some benefits for injured claimants, it came with a sacrifice to the ability to fully prove damages sustained by accident victims. Bill 41 was just another favour for insurance companies to save money under the guise of increased benefits to injured victims, “driver affordability” and “care”. Government and insurance companies may have you think so, but at Assiff Law Office, we actually care.

Khalid Assaf

Khalid Assaf

Khalid was called to the Alberta Bar in 2020. He graduated law school in Australia and during his time there he was an active member of the Canadian Law Students Association. Although he enjoyed the palm trees and beaches, he decided to come back to Edmonton to serve the community he grew up in...

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The information presented on this post is not legal advice. We encourage you to perform further research on the topics described here, and if you have any questions or would like to speak to one of our personal injury lawyers, please do not hesitate to contact us.

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