There have been three significant changes in the law regarding personal injury claims arising from motor vehicle accidents that occur in Alberta as of legislative changes in January and October 2004. As a result of these changes, certain claims that were previously available to injured persons have been reduced thereby negatively impacting upon their rights.
The first change, removed the right to recover benefits paid on behalf of injured persons who are covered under a policy of insurance for medical and/or disability benefits. These are referred to as "collateral benefits". The collateral benefits that an injured person receives, or could have received, from another insurer will be deducted from the injured person's claims for medical expenses and loss of income due to the injury. It is imperative that the injured person applies for such benefits from all potential sources to recover the full amount of the loss. Potential sources of these benefits include; employer group insurance, spousal group insurance, private insurance, Canada Pension Plan disability benefits, Employment Insurance disability benefits, Assured Income for the Severely Handicapped, social assistance; loan payment protection plans; credit card accident and sickness benefits, accidental death and disability policies through schools, associations, or clubs.
Prior to these legislative changes, injured persons were entitled to recover any loss of income as a result of their injuries based on gross earnings. The new legislation limits the recovery of lost income, such that it is now calculated on the basis of net earnings. Income Tax, Canadian Pension Plan, and Employment Insurance contributions must be deducted from total earnings to arrive at the net loss of income.
The most significant change relates to, compensation to which an injured person will be entitled for pain and suffering as a result of their injuries. These are referred to as "general damages". Prior to January 26, 2004, all injuries were assessed based on the symptoms and impairment, by reviewing decided court cases and comparing similar circumstances. The new legislation has removed injuries, that it defines as "minor", from such an assessment. An injury is defined as "minor" if it involves injury to tendons, ligaments, or muscles that do not result in "serious impairment". The minor injury exception also requires that the injured person follow specific treatment protocols, or their injury will be considered as minor. These protocols include; seeing a doctor, physiotherapist, or chiropractor within ten days of the accident and having that practitioner complete a form, setting out the treatment to be received over a twelve-week period. If the injury is not responding to chiropractic or physiotherapy treatment within that twelve-week period, your insurer may agree to pay for more treatment. Presumably, if you have a minor injury, you will have fully recovered or will not have "serious impairment" of your ability to perform activities of daily living and/or employment within this twelve-week period, despite ongoing pain. People whose injury is assessed as minor will be entitled to recover a maximum of $4,000.00 for their general damages.
The above changes apply only to injuries suffered by people as a result of motor vehicle accidents that occur in the province of Alberta.
