Alberta has very recently received another addition to the
series of chronic pain cases which provides clarity on that
particular type of injury and refines the scope of the
Minor Injury Regulation, Alta Reg 123/2004 (the
"MIR"). In the very recent decision of Jones
v Stepanenko, 2016 ABQB 295, the plaintiff Jessica Jones,
sought compensation for the injuries she suffered in severe rear
and front end collisions on August 18, 2009. The plaintiff was 19
years old at the time of the accident and generally healthy. There
was severe damage to her vehicle following the impact, and
liability was admitted before trial. The plaintiff sought damages
for pain and suffering, loss of pre-trial income, loss of earning
capacity, special damages, loss of housekeeping capacity and cost
of future care in an amount ranging from $272,683.65 —
Initially, the defendants argued that the plaintiff's
general damages should be subject to the minor injury
"cap" (pursuant to the MIR), however that position was
changed throughout the course of the trial. Defence counsel later
conceded that the plaintiff's injuries fell outside of the
minor injury "cap" but argued for damages based on the
lower end of chronic pain case law.
The court found that the plaintiff was a credible witness and
accepted that she suffered from a significant impact that caused
her debilitating soft tissue injuries to her neck, back, shoulder,
jaw and hip; contusions and lacerations to her face, and both
knees; and severe headaches. The court accepted the plaintiff's
expert evidence that she was suffering from fibromyalgia, and this
condition was caused by the collisions. The plaintiff had made
significant progress towards recovery in the first year
post-accident, but was still suffering from pain and headaches when
she was seen by medical professionals in June 2010. The court
relied particularly on the Alberta decisions of Chisholm v
Lindsay, 2012 ABQB 81 and McLean v Parmar, 2015 ABQB
62, when assessing general damages. General damages in this case
were awarded in the amount of $80,000. The plaintiff was also
awarded a significant loss of earning capacity claim in the amount
Of particular interest to insurers and defence counsel in this
case, is the court's comments with respect to expert evidence
of the defence Certified Medical Examiner ("CME Expert").
On cross-examination, the Court found that the CME
Expert based his opinion on a medical model —
not the definitions in the regulations. The Court noted
that in 15 years of assessing strains and sprains, he had
never found someone who had suffered from a "serious
impairment". When the legal interpretation of the MIR
definition was put to him, he noted he was aware of the definition
in the regulations but he had a different way of conducting
certified medical examinations.
The court ultimately rejected the opinion of the CME Expert. The
court urged him, and other doctors performing Certified Medical
Examinations pursuant to the MIR, to be educated on the law as it
applies to them. The court noted that these types of medical legal
reports are relied on by insureds and injured parties, and they
need to be accurate due to the potential for significant financial
The court also found that the evidence of the other defence
experts was seriously compromised on cross-examination, largely due
to vague statements in the reports and a failure to consider the
plaintiff's most recent medical records.
The total award granted to the plaintiff was $282,683.65, plus
interest and costs.
This case is a prime example of the evolution of the chronic
pain case law in Alberta, and the importance of independent and
reliable expert evidence. It also highlights the importance of
expert evidence in chronic pain cases and considering those risks
before proceeding to trial.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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