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Sparrowhawk v. Zapoltinsky

  • The  decision below was by Madam Justice Donna Shelley. Sparrowhawk suffered injuries in a motor vehicle accident. At issue was whether a jaw injury - temporomandibular joint disorder (TMD) caused by the collision was a "minor injury" as defined by the Insurance Act, Minor Injury Regulation (MIR) and Diagnostic and Treatment Protocols Regulation (DTPR). The Alberta Court of Queen's Bench found that the TMD jaw injury was not a minor injury.  (Par. 53-62) A preliminary issue was the relevance of non-Hansard government communications - The MIR set a two-step process to evaluate whether or not an injury was minor. First, a medical professional investigated whether an injury was a sprain, strain, or WAD (whiplash associated disorder) injury (MIR, ss. 4(1) and 10(1)). If an injury was a sprain, strain, or WAD injury then investigation continued to consider whether the injury had caused serious impairment (MIR, ss. 4(1) and 10(1)). Any sprain, strain, or WAD injury that had not caused serious impairment was a minor injury and a basis for restricted tort damages (MIR, ss. 6 and 7) and a specific treatment regime (DTPR, ss. 8-9, 12-13, 17-18, 20-25).  (Par. 76-79) Where a person was injured in a motor vehicle accident and there was a dispute as to whether an injury was a minor injury, the injured person could be examined by a "certified examiner" to determine whether the injury was or was not a minor injury (MIR, s. 8). Assessment involved two steps: 1) whether the injury was a WAD (whiplash associated disorder) injury, sprain, or strain, and 2) whether the injury had or had not caused "serious impairment" (MIR, s. 10(a)). The opinion of the certified examiner was prima facie evidence of whether an injury was or was not a minor injury (MIR, s. 12). Section 16(2)(a) of the MIR stated that a certified examiner’s opinion was prima facie evidence of whether an injury was or was not a minor injury (MIR, s. 12). Section 16(2)(a) of the MIR stated that a certified examiner had to be an active physician, as defined by the Health Professions Act. The DTPR indicated that a broader ranger of "health care professionals" could diagnose minor injuries under that regulation. The DTPR also described a class of medical professionals called "injury management consultants". These were physicians, chiropractors, and physical therapists (DTPR, s. 27(1)) who met certain criteria, as assessed by the medical professional's college (DTPR, s. 27), and were tracked as part of the "register of injury management consultants" (DTPR, s. 26-28). Patients were referred to injury management consultants when their injury did not resolve in 90 days (DPTR, s. 25(1)) or where patient symptoms warranted further examination (DTPR, s. 24). Unlike a certified examiner, an injury management consultant was not required to have knowledge of the International Classification of Diseases (DTPR, s. 27(2)).    (Par. 85-132) The Alberta Court of Queen's Bench concluded that Sparrowhawk's TMD injury was not a minor injury on three bases: First, Sparrowhawk's injury was not a sprain, strain or WAD (whiplash associated disorder), it more likely than not involved damages to the cartilage. Second, the injury caused serious impairment, where the injury impaired a physical function, the injury was the primary factor contributing to the impairment, the injury created substantial inability to perform a normal activity of daily living and the injury had been ongoing. Finally all injuries treated principally by dentists, such as TMD and tooth injury, were never minor injuries. (Par. 133-190) The parties offered detailed arguments concerning several facets of the minor injury legislative scheme. Much of that argument attempted to interpret the meaning and limits of the injuries that fell in or outside the MIR and DTPR scheme. The Alberta Court of Queen's Bench held that it did not have the proper evidence to make findings with respect to the parties' argument. However, a "review of the legislation and the referenced documents allows me to make some observations. In response to the submissions of the parties, I draw certain conclusions: 1. the scope of 'sprains' and 'strains' is potentially extremely broad, and the relevance of the terms 'sprain' and 'strain' is uncertain in evaluating what kinds of injuries are potentially minor injuries; 2. the relevance and application of the International Classification of Diseases is not clear and obvious; 3. the DTPR, s. 11(2) table to evaluate sprain severity does not apparently address tendon injuries; 4. the DTPR, ss. 7(2) and 11(2) tables, to evaluate sprain and strain severity, may omit certain injury mechanisms, and the implication of those omissions is uncertain; and 5. there may be circumstances where an injury to a muscle, tendon, or ligament cannot be viewed in isolation: a) due to the close integration of the muscle, tendon, or ligament in a larger anatomical structure, or b) as the injury occurs at an interface between the muscle, tendon, or ligament, and a different kind of body tissue."    

  • Appearance: Norm Assif, for the Plaintiff  

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