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Alberta's Minor Injury Regulation - Certified Examiner's Medical Opinions

31-May-11

by Alexis Moulton, Partner and Anthony Espejo, Student-at-Law

In the recent Alberta Court of Queen’s Bench decision of Forth v. Mather the Court addressed the use and practical operation of the Certified Examiner’s Medical Opinion (“CEMO”) process.

As with any new legislation, the parties involved experience a learning curve in understanding how the legislation will be applied and how the process, provided for in the legislation, will work. The Minor Injury Regulation (“MIR”) was passed pursuant to the Insurance Act, R.S.A. 2000, c. I-3 and is more commonly known as the “cap” on injury damage claims related to “minor injuries”.

Courts are now beginning to hear cases requiring interpretation and application of the processes provided within the MIR. A CEMO is available under the MIR and until recently had received no judicial consideration in terms of the what the CEMO was meant to include and practically speaking, what the process would be if there was a dispute between the parties arising from a CEMO.

Certified Examiner’s Medical Opinions

The Plaintiff was injured in a motor vehicle accident and claimed that the injuries she sustained fell outside of the MIR definition of a minor injury. The parties agreed on a mutually acceptable orthopaedic surgeon to conduct the examination who was on the approved list of Certified Examiners (“CE”). The Defendant received a copy of the CEMO but found that it was lacking in some respects. Defence counsel return the opinion, did not pay the account and asked the CE to address subsequent questions.

While the CEMO had indicated the injuries were not injuries that fell into the “minor injury” category, defence counsel disputed the CEMO as “there was no determination as to whether the injuries were sprains, strains or WAD injuries or whether they were or were not minor injuries”.

The Plaintiff’s counsel argued the CEMO had met the requirement under the MIR as the question of whether the injuries were minor was addressed. Plaintiff’s counsel argued that there was no need for a new report or to have the Plaintiff re-attend at another examination.

The Court focused on how genuine disputes regarding the nature and quality of a CEMO report are to be resolved. In doing so, the Court endorsed the view of Brooker J. in Abbas v. Menhem, whereby it was stated that the Insurance Act and its regulations including the MIR should be interpreted in the overall context of both the regulations and enabling legislation.

MIR and CEMO

Section 8(7)(b) clearly stated that only one CEMO may be obtained per accident. Section 11 of the MIR requires the CE to prepare an opinion in the prescribed form as to whether the claimant’s injury is or is not a minor injury. That opinion is due within 30 days of the assessment and each party must receive a copy of the opinion.

The Defendant argued that s.10(1) of the MIR contains additional requirements; namely, whether the claimant’s injury is a sprain, strain or WAD (whiplash-associated disorder) injury and if it is classified as one of those injuries whether the injury results in a serious impairment.

The Court found that while common sense would likely dictate that the CEMO would contain the additional information the Defendant sought, there was no obligatory requirement to provide it. Justice Germain concluded that a CEMO has only one requirement; that the report simply disclose whether the claimant has one or more injuries that are “minor injuries”.

Justice Germain also noted that section 12 of the MIR does not say “the entire opinion of the certified examiner or the analysis of the certified examiner becomes prima facie evidence. Rather, only the conclusion of the report is given special and conclusive weight, unless rebutted”. As a result of this conclusion, and reiterated by Justice Germain at the end of his decision, there will be very few circumstances where a bona fide dispute will exist about whether the CEMO qualifies as a medical opinion under the MIR.

The Court noted the prescribed form for a CEMO is not a “form” in the conventional sense. The Court compared it to other prescribed forms authorized under the Insurance Act. Conventional forms have specific fields to fill in or boxes to check off. The prescribed form for a CEMO was found to be a guideline. The report’s content and structure is at the discretion of the CE who is certified by the government.

As long as the report indicates if the injury is minor it will meet the requirements of the MIR. The Court stated it would be contrary to public policy to order a claimant to re-attend another examiner because the Defendant believed the original report was not detailed enough. The Court pointed out further realities and stated that to rule otherwise would make the administration of this regulation more complicated than it needed to be, subject the Plaintiff to unnecessary examinations and potentially giving examiners pause to participate in this program if opinions are challenged and accounts go unpaid. Further, parties should remember that the CEMO is not the “property” of either litigant.

Justice Germain commented that in practice, if an issue with a CEMO arises then counsel should apply to the Chief Justice or Associate Chief Justice for an early appointment of a trial judge to deal with the allegedly defective CEMO as a preliminary matter, or the parties could consider a Chambers application.

On a separate note, the Court confirmed that an Independent Medical Examination (“IME”) under the Rules of Court and a CEMO pursuant to the Insurance Act are mutually exclusive. Importantly, an IME relating to a potential minor injury will not restrict either party’s ability to seek and obtain a CEMO.

This is one of the first decisions related to the MIR and Justice Germain appeared to recognize the lack of jurisprudence in this area given his practical comments and suggested course of action when a dispute arises.


 

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