Halifax Personal Injury Lawyer Blog

This week the province of Nova Scotia announced the annual increase to Nova Scotia's new “minor injury” cap on non-pecuniary damages in auto accidents.

In 2010 the province of Nova Scotia changed the legislation governing automobile accidents in Nova Scotia. The cap on payments for non-pecuniary damages (“pain and suffering”) for injuries that were deemed to be “minor” was increased from $2,500.00 to $7,500.00.

The new legislation required that the cap increase every year to account for the cost of living.

According to calculations released by the Department of Finance this week, the cap for compensation for non-pecuniary damages for “minor injuries” for 2012 is now $7,956.00.

That's Not All

It is important for Nova Scotia car accident victims to understand that the cap is not all the compensation that they are entitled to receive. I get many calls from people who have been injured in car crashes who are left with the impression after talking to insurance adjusters that the only thing they are entitled to receive is a maximum of $7,500.00 in compensation for their injuries.

As I have indicxated above, if the claim is capped, the maximum compensation is now $7,956.00 not $7,500.00.

Not All Claims Capped

There is a real question as to whether an accident victims claim will be capped at all. The new minor injury definition has a lower threshold for accoident victims to meet. In other words, an experienced Nova Scotia Car Accident Lawyer may be able to prove, based on the available medical evidence, that your claim for pain and suffering is NOT a minor injuriy and your compensation is NOT capped by the legislation.

Income Loss Not Capped

Another thing many Nova Scotia accident victims don't know and aren't told is that income loss claims are not capped by the minor injury legislation. So if you have suffered any loss of income, you are entitled to full recovery for that loss. That includes any income loss you may suffer in the future as a result of your injuries from the accident.

Expenses Not Capped

Out of pocket expenses incurred as a result of your injuries is another claim that you are entitled to be reimbursed for, in full. So if you have had expenses for housekeeping because you can't clean your house, babysitting while you attend medical appointments and so on, you are entitled to make a claim for those expenses. Advice from an experienced car accident lawyer in Nova Scotia will help you understand which expenses are recoverable and which are not.

Want More Information About Car Accident Claims in Nova Scotia?

I have been representing victims of serious personal injuries for more than 20 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they can have a better chance of receiving full and fair compensation.

The book is for sale on Amazon.com. All sale proceeds are donated to charity.

But if you live in Atlantic Canada you can get a copy of my book, at no charge, by contacting me through this blog (put "Crash Course" in the subject line) or call me toll free at 1-877-423-2050.

Today Graham Steele, the Minister responsible for Nova Scotia's Insurance Act announced new legislation to improve automobile insurance coverage in Nova Scotia. The Fair Automobile Insurance (2011) Act, will be introduced in the legislature today.

I was part of the Review Committe that provided advice to the province regarding what improvements needed to be made to Nova Scotia's Insurance system: McKiggan Appointed to Provincial Insurance Review Committee

Highlights of Changes

Overall the changes improve the insurance coverage avaialable to consumers in Nova Scotia.

Repair Claims Will Be Covered By Drivers Own Policy

Persons involved in a collision caused by another party can deal with their own insurance company to get repairs done or get compensation for property damage. This was change was implemented in order to simplify and speed up the process that car owners have to go through so that they can get their car back on the road as fast as possible.

No Claim - No Premium Increase

It has become commonplace for parties involved in an accident to pay for claims themselves rather than being hit with massive premium increases after an accident. Even if the accident wasn't there fault. The changes to the Insurance Act prevent auto insurers from increasing premiums for collisions where no claim was made and the driver paid for the damage, even if the driver was at fault.

Speed Access to Treatment

The legislation proposes to introduce treatment protocals that are designed to help injured victims get proper treatment faster.

Increase Medical Benefits

The legislation increases the minimum mandatory Section B Accident Benefits for things like medical and rehabilitation expenses, funeral costs, death benefits and income loss covereage for injured drives and passengers.

The changes increase the level of "no-fault" benefits to the same level as New Brunswick.

Optional "Full Tort" Coverage

The proposed legislation will allow drivers to buy optional (additional) insurance coverage that will give consumers the right to receive full compensation over and above Nova Scotia's New "Minor Injury" Cap (2010 to date)

Regular Review

Finally the legislation commits the province to conducting a review of automobile insurance laws in Nova Scotia every seven years.

Since 2003 Nova Scotia has had some form of a cap on the amount of compensation innocent accident victims are entitled to receive for their non-pecunaiary damages (what most people refer to as "pain and suffering"). For more information you can read:

Nova Scotia's Cap on Compensation for 'Minor Injuries' in Car Crashes (2003 - 2010)

Although the cap has been in place now for eight years there are few reported decisions where the courts have interpreted what the definitions in the legislation actually mean. As a result, there is still debate between lawyers and insurance adjusters and defence lawyers about what injuries are "capped".

Case in point. Today I received an email from Tom Stanley, a physiotherapist who has treated, and helped, a great many of my clients over the years. He was reading some of the information on my website that we provide to help educate the public about personal injury claims. He was reading our page about the latest changes to the minor injury compensation cap: Nova Scotia's New "Minor Injury" Cap (2010 - 2011)

I had indicated that some of the signs of a WAD 3 injury included tingling or numbness. Tom pointed out that, strictly speaking, tingling and numbness is actually a symptom, rather than a sign.

I have included Tom's helpful explantion of the difference between signs and symptoms below:

What is the difference between a sign and a symptom?

Essentially, a symptom is what the patient tells you that he or she is feeling. For example, back pain is symptom that a patient reports. Nobody can independently verify the presence of this pain, thus we look at this as a reported symptom.

A sign is an actual physical manifestation of an illness. For example, a high temperature, a lost reflex, an irregular heart rate, are all physical signs of potential illness. An examiner can assess and find these signs of illness.

Neurological symptoms include:

Reported feelings of numbness
Reported feelings of pins and needles (paraesthesia)
Reports of pain radiation, associated with paraesthesia

Neurological signs include:

Lost or reduced reflexes
Lost or reduced sensation feeling in a region (sensory impairment)
Lost or reduced movement (motor impairment)

I have corrected the information on our website. Thanks Tom!

"What Caused My Injury?"

A defendant is only responsible for compensating a plaintiff for injuries caused by the defendant’s negligent conduct. Proving what injuries were, or were not, caused by the defendant’s conduct is often the biggest battle in many personal injury trials. See for example, Causation in Personal Injury Claims.

There has been some legal debate as to how the Supreme Court of Canada’s decisions in Athey v Leonati and the more recent decision of Resurfice Corp v. Hanke relate to one another.

Clarification

Last week the British Columbia Court of Appeal released a decision that helps clarify the application of these two landmark decisions on the law of causation.

In Farrant v. Laktin the plaintiff was injured in a car collision in 2004. Mr. Farrant had pre-existing issues with spinal degeneration which were symptomatic at the time of the car crash. After the collision his symptoms deteriorated.

At trial, the court rejected the plaintiff’s arguments that his ongoing pain was due to the car crash. However, the British Columbia Court of Appeal found that the trial judge did not apply the proper legal test for causation and ordered a new trial.

The Court of Appeal provided the following summary of the law of causation which is helpful reading for any personal injury lawyer (or plaintiff with a pre-existing condition or injury):

[8] To justify compensation for his disabling pain, the plaintiff must establish a causal connection between the defendant’s negligence and that pain.

[9] The general test for causation, established in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test: “but for” the accident, would the plaintiff have suffered the disabling pain? In Athey, the Court also stated that a plaintiff need not establish that the defendant’s negligence was the sole cause of the injury. If there are other potential non-tortious causes, such as the plaintiff’s spinal degeneration in this case, the defendant will still be found liable if the plaintiff can prove the accident caused or materially contributed to the disabling pain, beyond the de minimus range.

[10] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

“Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24 - 29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk. …

[11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.

Want More Information?

I have been representing victims of serious personal injuries for more than 20 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they have a better chance of receiving full and fair compensation.

The book is for sale on Amazon.

But if you live in Atlantic Canada you can get a copy of my book, at no charge, by contacting me through this blog (put "Crash Course" in the subject line) or by calling me toll free at 1-877-423-2050.

"Are Whiplash Claims Capped?"

Recent changes to Nova Scotia's so-called "minor injury" compensation cap rate the injury using what is known as the Whiplash Associated Disorder (WAD) Scale. Compensation for non-pecuniary damages for WAD 0, WAD 1 and WAD 2 injuries are "capped" at $7,500.00.

But compensation for more severe forms of whiplash WAD 3 and WAD 4 injuries are not subject to the "minor injury" cap.

Recently I was doing some research regarding the injuries suffered by one of my clients and I found an article that I though was worth passing on.

I prefer to use the more accurate term aceleration-decelaration injury when talking about the type of neck injuries people commonly suffer in accidents. But since the minor injury cap legislation uses the term whiplash, I will use it in this article.

Risk Factors for Whiplash

For years personal injury lawyers have known that there are certain factors that increase the risk of injury after a rear end car crash. For example, studies have shown that women are more likely to be injured than men, and poorly adjusted head rests can also contribute to neck injury.

Significant Risk

But the one factor that I see time and time again that appears to increase the risk of injury is when the injured person has their head turned to one side; for example to look for traffic or to talk to a passenger.

See for example King v. Horth where the injured driver suffered a whiplash injury.

The judge in that case commented on the evidence of Mr. King's chiropractor:

Dr. Parenteau also concluded that Mr. King’s injuries were complicated by the fact that he had his head turned to the right when he was struck. The doctor also says that the accident contributed to the occurrence of Mr. King’s complaints of numbness in both hands.

New Evidence of Causation in Whiplash Cases

A study published in The Spine Journal the journal of the North American Spine Society confirms the anecdotal evidence that I have seen over the years.

According to the study, people with head turned during a rear-end collision are significantly more likely to develop chronic symptoms:

…a study of 80 patients with whiplash showed that rotated head posture caused significantly higher neck pain intensity, reduced function in daily activities, prolonged incapacity, and reduced neck mobility, as compared with those facing forward.

The researchers used six cadaver spines in their tests. Each spinal column was twisted to the left, the same way it would be if a driver's head was turned to look for traffic. Each spinal column was then subjected to forces designed to simulate low speed collisions of 3.5, 5, 6.5 and 8 gees.

The study found that the rotated position of the head caused a dramatic increase in the risk of injury to the ligaments ion the neck.

At 3.5 gees the risk of injury increased by 50%. At 5 gees the risk of injury was almost 100% and at 6.5 gees the risk of injury was almost 125%. In other words an injury to the neck was certain.

The authors discussed the clinical significance of their findings:

“Thus, these data indicate that occupants involved in rear impacts are at increased risk for severe injury, primarily at C5–C6, when the head is turned as compared to head-forward at the time of impact. The extension injuries due to head-forward rear impact suggest the onset of sub failure injury to the anterior longitudinal ligament and anterior annular fibers, and associated facet joint impingement, while the flexion loading during frontal impact may injure supraspinous and interspinous ligaments and ligamentum flavum. In contrast, head-turned rear impact may cause lateral annular fiber and capsular ligament injuries, in addition to the head-forward rear impact injuries. The present finding may provide valuable information to the clinician for diagnosing whiplash-type injuries based on the specific impact configuration.”

Mechanism of Injury Critical

This study demionstartes why it is critical for personal injury lawyers and medical professionals to take a detailed history of how the accident happened and exactly how the injured person's body was postioned in the car at the time of impact.

As this study clearly demonstrates; just turning your head can make the difference between no injuries and chronic long term pain.

More Information

Spinal Cord Injury Claims

How Neck Ligaments Are Injured In A Car Crash

Continue reading "Turning Your Head Increases Risk of Whiplash Injury" »

I noticed this report today and I thought I would pass it along.

New Brunswick's Insurance Board is holding hearings investigating whether Pembridge Insurance - owned by All State Insurance, has overcharged consumers.

Paula Elliot, an actuary hired by the province to review rates charged by the insurance company, suggested Pembridge made enormous profits in New Brunswick between 2004 and 2008 and would make too much again last year unless its rates are reduced by at least 3.6 per cent and a rebate offered on the difference.

Michael Hines, a lawyer with the Department of the Attorney General, argued that Pembridge overcharged New Brunswick consumers last year by overstating expenses and understating income in filings with the board.

It is no surprise that Pembridge executives deny that they have done anything wrong.

What do you think? Are consumers in N.B. (or anywhere else) being overcharged by insurance companies?

More Information:

2nd auto insurance company accused of overcharging

Public Hearings on New Brunswick's Minor Injury Cap

New Brunswick Consumers For Insurance Fairness

The consultant hired to conduct a review of Nova Scotia's auto insurance system has recommended improvements to help benefit consumers.

The Atlantic Provinces Trial Lawyers Association was asked to sit on the Board that reviewed the insurance legislation: McKiggan Appointed to Provincial Insurance Review Committee

My colleague Ray Wagner and I proposed a number of improvements to Nova Scotia's insurance scheme that have been adopted and recommended to the government for implementation.

Some of the key recommendations include:

Creating an optional insurance coverage that consumers can purchase that would allow them to fully recover for their injuries ("full tort" insurance coverage)

Increasing the amount available to injured persons for medical and rehabilitation expenses from $25,000.00 to $50,000.00.

Increasing death benefits for the head of a household to $25,000 from $10,000.00

Treatment protocols which would speed access to treatment doctors, physiotherapists and chiropractors.

Requiring insurance companies pay treatment providers directly rather than the current system that requires accident victims to pay first and get reimbursed later

It remains to be seen which, if any, of the recommendations will be adopted by the government. But Graham Steele, the finance minister in charge of the review, has stated his support for the review process and the recommendations.

Here's a link to the Auto Insurance Review Final Report.

The $2,500.00 cap on so called “minor injuries” that was introduced in Nova Scotia in 2003 is still having ramifications to innocent victims 7 years later.

The recent decision of Awalt v. Blanchard is a case in point.

Linda Awalt is a 52 year old personal care worker who was injured in a car accident in September 2004.

Mr. Awalt claimed that, as a result of her injuries from the accident, she suffered a tear to the rotator cuff in her left shoulder. She required surgery to repair the injury which prevented her from being able to work for 9 months after her shoulder surgery.

The defendants claimed that the impact of the collision was insignificant and not severe enough to have caused the rotator cuff injury to Ms. Awalt’s shoulder.

In his reasons, Justice Coady stated at paragraph 68:

"I have carefully reviewed all the evidence of the 2004 accident and the events that followed. When Mr. Blanchards truck entered the intersection Ms. Awalt followed and stopped. He turned left and she started to follow him. He suddenly stopped and backed up into her vehicle. The evidence clearly establishes that Ms. Awalt was moving slowly (10km) when contact occurred. While the speed of the truck is not in evidence, I have concluded that its speed was relatively slow. The damage to Ms. Awalt’s vehicle was minimal. The truck had only limited space to pick up speed. Ms. Awalt’s vehicle was pushed back one car length. At no time was Ms. Awalt subjected to a forceful or jarring impact with the interior of her vehicle. In making these remarks I am well aware that serious injuries can result from low speed collisions."

Justice Coady went on to determine that Ms. Awalt did indeed suffer "whiplash" injuries in the car acident. But the injuries were not serious enough to get over the "minor injury" threshold.

Justice Coady concluded that:

“Ms. Awalt’s whiplash injury is caught by the minor injury regulations which were enforced on September 20, 2004.”

As a result, Justice Coady concluded that the plaintiff’s injuries caused by the accident were minor and that her award for compensation for non-pecuniary damages (pain and suffering) should be capped at $2,500.00.

MIST Defence

What Ms. Awalt ran up against is what is commonly referred to as the “Minor Injury Soft Tissue” (MIST) defence.

Essentially the defence argues that the impact of the motor vehicle collision was so insignificant that the forces involved could not have possibly caused the injuries suffered by the plaintiff. Some jurisdictions also refer to this as the “no crash, no cash” defence.

How to Prove MIST Claims

In light of Justice Coady’s decision I think it might be useful to provide some comments on how to deal with MIST cases:

Know the scientific and medical literature: Insurance companies will argue that the force of the impact was not sufficient to have caused the type of injury that the plaintiff suffered. We need to be familiar with the medical literature and scientific literature that has conclusively established that even comparatively insignificant collisions can cause serious lasting and significant injuries.

Inspect the Vehicles: An insurance company’s estimate of the physical damages may not be an accurate estimate of the true force involved in the collision because of “hidden damage”. (In other words, damages to the vehicle that cannot be seen without the car being pulled apart, the bumper being taken off etc.)

Sometimes insurance estimates are low because the plaintiff was driving an older car that is a total loss. Make sure the client gets an independent estimate from a body shop to confirm that you have an accurate picture of the full extent of the damages to the vehicle.

Talk to the Family Doctor: In MIST cases the treating physician, usually the family doctor, is going to be the most important witness. The doctor needs to know what type of defence the insurance company is going to raise and the types of arguments that are going to be made to limit the injured victim's compensation.

Family doctors are all extremely busy but it is worth while paying the doctor for an appointment to discuss the client’s claim and to specifically educate the doctor about the minor injury legislation and the threshold that the plaintiff is going to need to meet in order to receive full and fair compensation.

Further Resources:
Common errors in determining impact speed and occupant injury propensity.

Settling and Trying MIST Cases

Continue reading "Accident Victim’s Claim Capped by Nova Scotia's “Minor Injury” Law - Awalt v. Blanchard" »

Pre-Existing Injuries

It is rare that a person injured in a car accident, medical malpractice claim, or some other accident doesn't have some pre-existing health problems or conditions that may - or may not - play a part in the injuries that are the subject of litigation.

What Caused the Injuries?

A defendant will not be found liable (responsible) for a plaintiff's injuries unless the plaintiff can prove that the defendant actually caused an injury to the plaintiff.

So defendant lawyers spend a great deal of time investigating whether the plaintiff ever had any pre-existing injuries or health problems that may be the cause of the plaintiff's injuries.

"But For" Rule

The Supreme Court of Canada, in a case called Resurfice Corp. V. Hanke ruled that the appropriate test for the court to use when determining causation is the "but for" test. In other words, "but for" the defendants actions, would the plaintiff have been injured.

Like many rules, a number of exceptions have developed as various courts have considered the myriad different circumstances that can arise in complicated personal injury claims.

Justice Coady of the Supreme Court of Nova Scotia recently provided some clarity in his reasoning in Kremer v. Walker.

In his decision Justice Coady stated:

CAUSATION:

[22] The issue of causation in this action is complicated by a number of factors. Those factors include (1) various ongoing health problems, (2) pre-existing injuries from the 1990 truck accident, (3) the effects of long term obesity on Mr. Kremer’s body, (4) the second motor vehicle accident in 2007 and (5) the lack of professional medical evidence and (6) Mr. Kremer’s credibility.

[23] It is well established that a plaintiff bears the burden of establishing causation. In this case Mr. Kremer must satisfy the court that the July 21, 2007-accident caused injury. He must do so on a balance of probabilities.

[24] In Resurfice Corp. V. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 the Supreme Court of Canada ruled that the “but for” test is the appropriate test for causation. McLaughlin, J. stated at paragraphs 20 through 25:

20 Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

21 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para.14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.” Similarly, as I noted in Blackwater v. Plint, at para.78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.”

23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p.327, per Sopinka J.

24 However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements.

25 First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.

[25] The Supreme Court commented on this decision in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 (CanLII), 2010 SCC 5 at paragraph 93:

I agree with the Court of Appeal that the trial judge applied the wrong legal test for causation. When he wrote his reasons in 2004, the trial judge did not have the advantage of this court’s judgment in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7. That decision clarified the law of causation, holding that absent special circumstances, the plaintiff must establish on the balance of probabilities that the injury would not have occurred but for the negligence of the defendant: Hanke, at paras. 21-22; Athey v. Leonati, 1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458 at para.14.

[26] The “exceptional circumstances” approach was commented on at paragraph 95 of the Fullowka decision:

The appellants submit in the alternative that this case falls into the class of exceptional situations discussed in Hanke in which the test for causation should be relaxed to the “material contribution” standard. I cannot accept this submission. As Hanke made clear, the sorts of special situations for which the material contribution test is reserved generally have two characteristics. First, it is impossible for the plaintiff to prove that the defendant’s negligence caused the injury under the “but for” test, and second, it is clear that the defendant breached a duty of care owed to the plaintiff and thereby exposed the plaintiff to an unreasonable risk of injury of the type which the plaintiff ultimately suffered: Hanke, at para. 25.

[27] For these reasons this plaintiff must discharge his onus using the “but for” test. This case does not attract either exception.

Nova Scotia's NDP Government has acted on one of its campaign promises to ensure that the Province’s Insurance Act is updated.

Graham Steele, Minister responsible for the Insurance Act, has announced that former Deputy Minister Ron L’Esperance will chair a committee that will examine six areas relating to automobile insurance and recommend changes:

Section B Benefits

This covers reimbursement for medical expenses incurred for necessary treatment and indemnity for income loss suffered when injured persons are unable to work;

Treatment Protocols

In some provinces in Canada there is a defined plan of treatment for persons who have suffered so called soft tissue injuries.

Creation of a “full tort” Insurance Product

This means the possibility of being able to buy additional insurance coverage that would allow a person to have the right to fully recover for their injuries instead of being limited by the $7500.00 “minor injury” insurance cap.

Coverage and Premiums for Young or Inexperienced Drivers

Insurance Coverage for Volunteer Firefighters

Vicarious Liability for Vehicle Leasing Companies

Currently insurance companies for car rental agencies are held responsible for paying benefits when a person who rents one of their vehicles is involved in car accident

Asked to Sit on Review Committee

I have been asked, as President of the Atlantic Provinces Trial Lawyers Association, to volunteer to sit on the review committee that will be conducting the review of the Insurance Act.

Changes Long Overdue

There is no doubt that the Insurance Act in Nova Scotia is long over due for changes. The last time the Insurance Act saw a major overhaul was in 1974.

Poverty Level Payments

The maximum income loss benefits currently paid to people who have been injured in a car accident borders on the poverty line. The maximum benefit that someone injured in a car accident is entitled to receive from their own insurance company is $140 per week.

Medical Coverage Inadequate

Similarly, the amount of coverage for medical and rehabilitation expenses is woefully inadequate. The current cap is $25,000.00. If you are catastrophically injured and require 24 hour care this fund can easily be exhausted within a year.

Fast Answers

The NDP government is looking for a final report by the end of May, 2011. The committee will have a lot of work to do between now and then.

If you have any suggestions as to how Nova Scotia’s Insurance Act should be changed or updated, please leave a comment or feel free to contact me directly.

Perhaps the biggest myth of brain injury is that mild traumatic brain injuries are not disabling.

They Look Okay

Since persons with traumatic brain injuries do not look obviously injured and many can function reasonable well in society, there is a common misperception that a traumatic brain injury is not as disabling as more obvious physical injuries.

But They're Not Okay

However, the National Institute of Health concluded that the consequences of traumatic brain injury can include a dramatic change in the patient’s life course, profound disruption of the family, enormous loss of income or earning potential and significant expenses over a life time.

Consequences Can be Devastating

The social consequences of mild, moderate and sever brain injury are significant and serious and include increased risk of suicide, divorce, chronic unemployment, economic strain and substance abuse.

Continue reading "Brain Injury Myth: Mild Traumatic Brain Injury is not Disabling" »

Concussions Have Long Term Effects

It was once thought that the effects of concussion, (mild traumatic brain injury) were temporary. Doctors assumed patients could recover from the effects of concussion after a few minutes or hours.

However a famous research study published in Neurology, the Journal of the American Academy of Neurologists, found that after one year, 10% to 15% of mild traumatic brain injury patients still had not fully recovered. In fact, the study determined that many patients had more symptoms than immediately after the accident.

Modern medical research has found that mild traumatic brain injury can result in deficits (problems) in the speed of information processing, attention, and short term memory.

Recovery from these deficits can take several weeks or months and a small percentage of patients may never fully recover.

Continue reading "Brain Injury Myth - Mild Traumatic Brain Injury Isn’t Permanent" »

Pain Specialist Concerned About Minor Injury Cap

Dr. Richard Dumais is a pain specialist working at the Dr. Georges L Dumont Pain Clinic in Moncton New Brunswick. Today he voiced his concerns on the broadness of New Brunswick's definition of a "minor injury" under the provinces car insurance laws that caps compensation for pain and suffering.

According to Dr. Dumais:

"The label "minor injury" under the cap is misleading and appears to have had no meaningful input from physicians and the medical community,"

"Some people involved in motor vehicle accidents have residual injuries that are severe from a medical standpoint but may be considered minor injuries by the insurance cap",

"From my practice, I have seen patients who were categorized as having 'minor injuries' who are experiencing long-term pain.” I feel the current system has to be modified to make it fair for those who are truly injured beyond what could be called 'minor'."

Consumer's Group Opposes Cap

In August, the newly formed N.B. Consumers for Insurance Fairness Group (NBCIF) launched a campaign to inform the public about the real consequences of the so-called "minor injury" cap.

Frances McConnachie, spokesperson for NBCIF said:

"In 2003, New Brunswickers were told by the government that a cap would be placed on soft tissue injuries which were non-permanent in nature",

"The current regulations are far-reaching and broader than it was intended by the government. People with injuries and conditions such as epilepsy, chronic pain, bulging discs, spasms, broken and crushed bones could all fall under the cap".

Changes Recommended by N.B. Consumer Advocate and Insurance Brokers

The New Brunswick Consumer Advocate for Insurance and the Insurance Brokers Association of New Brunswick have recommended the government change the definition of "minor injury".

Call To Action

The NB Consumers for Insurance Fairness have called upon accident victims to join them via their Facebook Group or through their website: www.fairautonb.ca

Changes Overdue in New Brunswick

In April of this year, the newly elected NDP government increased the so-called "minor injury" cap on compensation. The NDP also made changes to Nova Scotia's insurance act to limit the number of innocent accident victims whose claims will be unfairly capped by the "minor injury" definition.

The changes are a huge step in the right direction and it is time that New Brunswick takes the same steps to protect the rights of innocent accident victims. It's time to "scrap the cap".

Consumer's Group Calls For Review of Minor Injury Cap

The CBC has reported that a group of concerned citizens has formed a new consumers action group calling for a review of New Brunswick's "minor injury" cap on car accident insurance claims.

Frances McConnachie is a member of N.B. Consumers for Insurance Fairness. McConnachie was quoted as saying she received $2,500 following an accident in 2004 that has left her with back and neck problems that limit her activities and make her reliant on therapy and pain killers.

Victims Share Stories

The group has started a Facebook page where N.B. accident victims can share their stories, provide support, and get information about the groups effforts to get the N.B. Government to repeal the $2500.00 limit on compensation for so called minor injuries.

I would encourage any readers from New Brunswick to join the fight for fairness!

N.S. Changed Minor Injury Law

After the NDP won the last election here in Nova Scotia, they fullfilled one of their election promises by making improvements to the minor injury cap here in N.S.

The amount of the cap was increased to $7500.00 and the number of people whose claims will be unfairly limited by the cap have been reduced.

Related posts:

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Injured Victim's Constitutional Appeal Fails

Today the Supreme Court of Canada refused to hear an appeal of a decision that upheld the constitutionality of Nova Scotia's cap of $2500.00 compensation for injured car accident victims deemed to have suffered a "minor injury".

The Applicant MacDonald was involved in a car accident in November, 2003. She suffered soft tissue injuries to her neck, shoulders and back. Her insurance company claimed that she had suffered a "minor injury" under Nova Scotia's new auto insurance provisions and offered a settlement that included the capped amount of $2,500 for pain and suffering.

The other Applicant Gionet was in a car accident in December, 2003. She suffered soft tissue injuries to her knee and back. She accepted the insurance company's offer of $3,000 to settle her claim for pain and suffering and for loss of wages.

Victims Claimed "Minor Injury" CAP Discriminatory

The plaintiffs applied to challenge the constitutionality of amendments to the N.S. Insurance Act that "capped" damages for "minor" injuries, as defined in the legislation, at $2,500.00. The plaintiff's claimed the law discriminated on the basis of physical disability and sex. They also contended the Regulations promulgated under the Act were ultra vires.

Supreme Court Upheld "Minor Injury" Cap

Justice Walter Goodfellow of the Nova Scotia Supreme Court upheld the legislation.

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Court of Appeal Confirmed Trial Decision

The Nova Scotia Court of Appeal dismissed the plaintiff's appeals. They appealed to the Supreme Court of Canada.

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Supreme Court of Canada

In a decision released today the S.C.C. ruled:

"The motions for an extension of time to serve and file the first and second applications for leave to appeal are granted. The first application for leave to appeal...is dismissed without costs. The second application for leave to appeal...is dismissed with costs to the respondents Adam Thomas Roy and Attorney General of Nova Scotia."

That's All Folks

The S.C.C. decision marks the end of the line. If you or a family memeber have been injured in a car accident since November 2003 your claim will be determined based on the amendments to the Insurance Act that caps compensation for "pain and suffering" for "minor" injuries at $2500.00.

Recent Changes to Cap

The NDP government introcuced changes to the "minor injury" cap recently. Unfortunately, they did not scrap the cap as many injured victims had hoped. The cap remains in place. There were some improvements made to the cap. But they will not apply retroactively.

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Get Advice!

Now more than ever it is important for injured accident victims to get advice from an experienced Nova Scotia Car Accident Lawyer.

Which version of the legislation applies to your claim? Is your claim is capped? What evidence do you need to prove that your claim isn't capped? What compensation you are entitled to in addition to the cap? These are all questions that are best answered by an experienced motor vehicle accident lawyer.

Continue reading "Supreme Court of Canda Refuses to Hear Appeal on N.S. Minor Injury Cap " »

Nova Scotia has a cap on the amount of compensation that innocent victims are entitled to receive when they have been injured in a car accident.

I have posted before about the unfairness of Nova Scotia’s minor injury cap. For example, see Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Promise to Scrap the Cap

The NDP campaigned on a promise to do away with the $2,500.00 minor injury cap. Most people believed that the NDP intended to scrap the cap altogether since that was the fairest thing to do.

NDP Increases Cap to $7,500.00

However, on April 28, 2010, the NDP Government introduced changes to Nova Scotia’s minor injury cap. Unfortunately, the cap remains in place. The amount of the cap has been increased to $7,500.00 and some minor improvements have been made to the legislation which will allow more accident victims to recover more compensation.

The legislation was passed on May 7, 2010 but the "new" cap will not take effect until it is proclaimed in force.

"Does the Cap Apply to My Claim?"

I get asked that question a lot. Unfortunately there is no single answer. If you have been injured in a car accident you should get the advice of an experienced Nova Scotia Car Accident lawyer.

$2,500.00 Cap Still Applies to "Old" Claims

One of the key issues that the NDP Government had to struggle with was whether any improvements to the minor injury cap would be made “retroactive”. In other words, would the benefits be extended to anyone who has been injured since the minor injury legislation came into affect in November 2003, or would they only apply on a “go forward” basis? Unfortunately, the NDP Government has decided not to make the improvements retroactive.

Anyone who has been injured in a car accident since November 2003 is stuck with the draconian and unfair $2,500.00 minor injury cap.

Amount of Compensation under "New" Minor Injury Cap

As I mentioned, while the minor injury cap remains in place the amount of compensation that injured victims are entitled to recover has increased from $2,500.00 to $7,500.00. While this is an improvement, innocent accident victims who may end up suffering significant injuries that cause pain for the rest of their life will be limited to the maximum recovery of $7,500.00.

In my view this simply isn’t reasonable.

Sprains, Strains and Whiplash

The definition for the old $2,500.00 cap eliminated the vast majority of injury claims, including people who suffered fractures, some forms of disfiguring injuries, and long term chronic pain.

The new definition will focus on limiting compensation to persons who have suffered sprains strains and certain kinds of whiplash. This is certainly more in line with what the insurance industry asked for when they were lobbying for the original minor injury cap.

Details Matter

However, as always, the “devil is in the details” and how the regulations define what is covered by the cap and what is not covered by the cap will ultimately have a huge impact on the fairness (or unfairness) of this new legislation.

So what does it all mean?

There is no question that a cap of $7,500.00 is better than a cap of $2,500.00.

There is no question that limiting the types of injuries that the minor injury cap applies to is an improvement.

Bad Law Bad Policy

However, I believe that placing a cap on the amount of compensation that innocent injured car accident victims are entitled to receive in order to increase insurance company profits is bad law and bad public policy.

Making minor improvements to a bad law does not make the law fair nor does it make it good public policy. I represent hundreds of injured accident victims who have been waiting to resolve their claims in hope that the NDP Government would do the right thing and scrap the minor injury cap altogether. They now face the prospects of having to deal with their claims under the egregiously unfair provisions of the $2,500.00 minor injury cap.

Continue reading "Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements " »

Darrel Dexter’s NDP Government pledged to remove the unfair $2,500.00 cap on compensation for motor vehicle accident victims who have suffered a “minor injury”.

Constitutional Challenge Unsuccessful

A constitutional challenge was filed against the legislation arguing that the cap of $2,500.00 for persons who have supposedly suffered a minor injury was contrary to the Charter of Rights and Freedoms. The constitutional challenge failed at both the trial level and the Nova Scotia Court of Appeal. Leave to appeal to the Supreme Court of Canada has been filed.

Requesting Public Feedback

Now the NDP Government has released a position paper requesting input from the public. The minor injury cap was introduced because insurance companies claimed they were losing money on automobile insurance claims.

However, evidence presented to the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal confirms the insurance industry was making record profits at the time the minor injury cap legislation was introduced.

Is the Cap Fair?

So what do you think? Is the cap of $2,500.00 for pain and suffering for persons who have suffered an injury in a motor vehicle accident fair?

Your comments can be sent to:

The Office of the Superintendent of Insurance
PO Box 2271
4th Floor
Provincial Finance Building
1723 Hollis Street
Halifax, NS B3J 3C8

Submissions must be received by February 15, 2010.

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Continue reading "NDP Requests Public Input Regarding “Minor Injury” Compensation Cap" »