In Sparrowhawk v. Zapoltinsky, a decision was released on January 13, 2012. The Court of Queen’s Bench of Alberta ruled that Temporomandibular Disorder (TMD) injuries are not injuries to which the Minor Injury Regulation and Diagnostic and Treatment Protocols Regulation apply. In a lengthy and well written decision, Justice D.L. Shelley, writing for the Court, held that the Minor Injury Scheme does not include dental injury. The Court agreed with the Plaintiff’s position and his expert that a TMD injury could not be a minor injury as defined in the regulations for three reasons:
- It is not a Sprain, Strain or WAD injury;
- The injury caused a serious impairment to this Plaintiff;
- The Minor Injury Scheme does not include a TMD injury.
The Plaintiff’s main argument was that the Minor Injury Regulation and the Diagnostic Treatment Protocols Regulation system which is designed to diagnose and categorize injuries as minor has no provision for dentists to act as certified examiners or health care professionals or injury management consultants and therefore, the Legislature did not intend to have dental injuries included in the Minor Injury scheme.
The Minor Injury Regulation stipulates that only physicians can act as certified examiners, and for the purpose of legal actions, determine whether a motor vehicle related injury is or is not a minor injury as defined in the regulations. Under the Diagnostic and Treatment Protocols Regulation a broad range of health care professionals other than dentists are designated to diagnose and treat an injury which is deemed minor.
Justice Shelley held that the way in which this regulation scheme was devised clearly suggests that the Legislature carefully considered who the appropriate healthcare practitioners were to participate in and apply the intention of this scheme. She held that the omission of dentists was intentional and that all injuries treated principally by dentists, such as TMD and tooth injuries, are never minor injuries as defined in the regulations.
While considering the above, Justice Shelley also noted that the Minor Injury Regulation excludes injuries that cause serious impairment and undertook an analysis of what ought to be deemed “serious impairment”. Critical to this analysis is whether the injury creates a substantial inability to perform a “normal activity of daily living”.
Justice Shelley concluded that an activity of daily living had to be interpreted broadly and on a case by case basis in that not all persons have the same level of normal daily activities. She also concluded that activities of daily living was not restricted to physical actions but also included one’s ability to interact with others. Included in that description would be interactions such as enjoying one’s children and engaging in recreational pursuits. Therefore, she felt that “substantial inability” would exist where an injury:
- Prevents a person from engaging in a “normal activity of daily living”;
- Impedes that person in engaging in a “normal activity of daily living” to a degree that is non-trivial for that person;
- Does not impede a person from engaging in a “normal activity of daily living” but where pain or discomfort is associated with the activity such that engaging in it diminishes that person’s enjoyment of life.
This decision is the first decision of its kind in Alberta as it relates to the interpretation of the Regulations. It will have a significant impact on the manner in which potential minor injury claims will be litigated going forward. It is expected that this decision will be appealed, but in the meantime, it remains good Law.
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