Part 3
Certified Examiner
Division 1
Assessment by Certified Examiner
8 Disagreement as to whether injury is or is not a minor injury
9 Scheduling of assessment
10 Assessment by certified examiner
11 Opinion of certified examiner
12 Prima facie evidence
13 Cost of assessment and opinion
14 Manner of giving notice
Division 2
Certified Examiners Register
15 Register established
16 Eligibility requirements
17 Ceasing to be a certified examiner
18 Transitional
Part 4
Expiry and Coming into Force
19 Expiry
20 Coming into force
Definitions
1 For the purpose of section 650.1 of the
Act and this Regulation,
(a) “accident”
means an accident arising from the use or operation of an automobile;
(b) “Act”
means the Insurance Act;
(c) “certified examiner” means a physician who
is entered in the certified examiners register in accordance with Division 2 of
Part 3;
(d) “certified examiners register” means the
register of certified examiners established under section 15;
(e) “claimant” means a person injured as a
result of an accident;
(f) “council”
means the council of the College of Physicians and Surgeons of the Province of
Alberta;
(g) “defendant”
means a person against whom an accident claim is made or may be made and
includes, without limitation,
(i) that person’s insurer,
(ii) any insurer made a third party to the claim by the Court under
section 635(14) of the Act, and
(iii) the Administrator of the Motor Vehicle Accident Claims Act
when the Administrator is added as a party to an action in respect of the claim
by order under section 4(5) of that Act;
(h) “minor
injury”, in respect of an accident, means
(i) a sprain,
(ii) a strain, or
(iii) a WAD injury
caused by that accident
that does not result in a serious impairment;
(h.1) “minor
injury amount” means the total amount recoverable under section 6 as damages
for non‑pecuniary loss for all minor injuries sustained by a claimant as
a result of an accident;
(i) “prescribed”
means established by the Minister under section 803 of the Act;
(j) “serious
impairment”, in respect of a claimant, means an impairment of a physical or
cognitive function
(i) that results in a substantial inability to perform the
(A) essential tasks of the claimant’s regular
employment, occupation or profession, despite reasonable efforts to accommodate
the claimant’s impairment and the claimant’s reasonable efforts to use the
accommodation to allow the claimant to continue the claimant’s employment,
occupation or profession,
(B) essential tasks of the claimant’s training
or education in a program or course that the claimant was enrolled in or had
been accepted for enrolment in at the time of the accident, despite reasonable
efforts to accommodate the claimant’s impairment and the claimant’s reasonable
efforts to use the accommodation to allow the claimant to continue the
claimant’s training or education, or
(C) normal activities of the claimant’s daily
living,
(ii) that has been ongoing since the accident, and
(iii) that is expected not to improve substantially;
(k) “sprain”
means an injury to one or more tendons or ligaments, or to both;
(l) “strain”
means an injury to one or more muscles;
(m) “Superintendent”
means the Superintendent of Insurance appointed under the Act;
(n) “WAD
injury” means a whiplash‑associated disorder other than one that exhibits
one or both of the following:
(i) objective, demonstrable, definable and clinically relevant
neurological signs;
(ii) a fracture to or a dislocation of the spine.
AR 123/2004 s1;260/2006
Part 1
Assessment of Injuries and
Determination of Minor Injury
Injuries must be
assessed separately
2 If a claimant sustains more than one
injury as a result of an accident, each injury must be assessed separately to
determine whether the injury is or is not a minor injury.
Injury must be
primary contributing factor
3 For a sprain, strain or WAD injury to be
considered to have resulted in a serious impairment, the sprain, strain or WAD
injury must be the primary factor contributing to the impairment.
Determination of
minor injury
4(1) The
determination as to whether an injury sustained by a claimant as a result of an
accident is or is not a minor injury must be based on
(a) a
determination as to whether the injury is a sprain, strain or WAD injury, and
(b) if
the injury is determined to be a sprain, strain or WAD injury, a determination
as to whether the sprain, strain or WAD injury results in a serious impairment.
(2) For the purpose of subsection
(1)(a), the determination as to whether an injury is a sprain, strain or WAD
injury must be based on an individual assessment of the claimant in accordance
with the diagnostic protocols established under the Diagnostic and Treatment
Protocols Regulation.
(3) For the purpose of subsection
(1)(b), the determination as to whether a sprain, strain or WAD injury results
in a serious impairment must take into account
(a) the
claimant’s pre‑existing medical history, and
(b) the
matters referred to in section 1(j)(i) that relate to the claimant.
Protocols not followed
5(1) If
(a) a
claimant sustains a sprain, strain or WAD injury as a result of an accident,
(b) the
claimant is, without reasonable excuse, not diagnosed and treated in accordance
with the diagnostic and treatment protocols established under the Diagnostic
and Treatment Protocols Regulation, and
(c) the
sprain, strain or WAD injury results in a serious impairment,
the sprain, strain or
WAD injury shall be considered to be a minor injury unless the claimant
establishes that the sprain, strain or WAD injury would have resulted in a
serious impairment even if the claimant had been diagnosed and treated in
accordance with the protocols referred to in clause (b).
(2) Subsection (1) does not apply to a
claimant who is a person described in provision (2) of the Special Provisions,
Definitions and Exclusions of Section B under the Automobile Accident
Insurance Benefits Regulations (AR 352/72).
Part 2
Damages Recoverable for
Non‑pecuniary Loss
Damages recoverable for
non‑pecuniary
loss for minor injuries
6(1) In
this section, “Alberta CPI” means the Consumer Price Index for Alberta
published by Statistics Canada.
(2) Subject to this section and section
7(2)(a), for the purposes of section 650.1(2) of the Act, the total amount
recoverable as damages for non‑pecuniary loss for all minor injuries
sustained by a claimant as a result of an accident is $4000.
(3) For
the 2007 and subsequent calendar years, the minor injury amount shall be
increased annually, with effect from January 1, by an amount equal to
(a) the
minor injury amount for the previous calendar year,
multiplied by
(b) the
annual change in the Alberta CPI, determined in accordance with subsection (4)
and rounded to 1/10 of a percentage point.
(4) For
the purposes of subsection (3)(b), the change in the Alberta CPI is the amount
determined by the formula
![](/web/20080209161524im_/http://www.qp.gov.ab.ca/documents/Regs/2004_123_files/image002.gif)
where
X is the annual change in the Alberta CPI;
A is the sum of the 12 individual monthly
Alberta CPI indexes for the 12‑month period ending on September 30 of the
calendar year that ended before the commencement of the calendar year for which
the increase is being calculated;
B is the sum of the 12 individual monthly
Alberta CPI indexes for the 12‑month period immediately preceding the 12‑month
period referred to in A.
(5) If the annual change is a negative
number, that negative number shall be treated as if it were zero.
(6) The
minor injury amount for a calendar year after 2006 applies only in respect of
accidents that occur during that calendar year.
(7) The
Superintendent shall publish the following information in The Alberta Gazette
before the end of each calendar year:
(a) the
minor injury amount for the following calendar year;
(b) the Superintendent’s calculation of that
amount.
AR 123/2004 s6;260/2006
Damages recoverable
for non‑pecuniary loss for minor
and non‑minor injuries
7(1) In
this section, “non‑minor injury” means an injury other than a minor
injury.
(2) If a claimant sustains one or more
minor injuries and one or more non‑minor injuries as a result of an accident,
the assessment of damages for non‑pecuniary loss for all injuries
sustained by the claimant is subject to the following rules:
(a) if
the non‑minor injury or injuries, when assessed separately from the minor
injury or injuries, would result in an award for non‑pecuniary loss of
not more than the minor injury amount, the total amount recoverable as damages
for non‑pecuniary loss for all injuries sustained by the claimant shall
not exceed the minor injury amount;
(b) if
the non‑minor injury or injuries, when assessed separately from the minor
injury or injuries, would result in an award for non‑pecuniary loss of
more than the minor injury amount, the total amount recoverable as damages for
non‑pecuniary loss for all injuries sustained by the claimant shall be
calculated as the total of
(i) the amount of damages assessed for non‑pecuniary loss for
the non‑minor injury or injuries, and
(ii) subject to section 6, the amount of damages
assessed for non‑pecuniary loss for the minor injury or injuries.
AR 123/2004 s7;260/2006
Part 3
Certified Examiner
Division 1
Assessment by Certified Examiner
Disagreement as to
whether injury is or is not a minor injury
8(1) If
a claimant and a defendant disagree as to whether an injury sustained by the
claimant as a result of an accident is or is not a minor injury, either party
may give notice to the other party in the prescribed form
(a) stating
that the party giving notice desires to have a certified examiner assess the
claimant for the purpose of giving an opinion as to whether the injury is or is
not a minor injury, and
(b) specifying
the name of the proposed certified examiner.
(2) If, on receipt of a notice under
subsection (1), the other party
(a) accepts
the certified examiner proposed under subsection (1)(b), that party must,
within 14 days, so notify the party giving notice under subsection (1), or
(b) does
not accept the certified examiner proposed under subsection (1)(b), that party
must, within 14 days, so notify the party giving notice under subsection (1)
and provide the name of a certified examiner that the party is willing to
accept.
(3) If a party fails to provide notice
under subsection (2), that party is considered to have accepted the certified
examiner proposed under subsection (1)(b).
(4) If the parties cannot agree on a
certified examiner to assess the claimant, either party may apply to the
Superintendent in the prescribed form to select a certified examiner to assess
the claimant.
(5) The Superintendent must, within 5
business days after receiving an application under subsection (4), select a
certified examiner from the certified examiners register.
(6) The Superintendent may not select a
certified examiner who was proposed by either party under this section.
(7) Notwithstanding anything in this
section,
(a) neither
the claimant nor the defendant may give notice under subsection (1) until at
least 90 days have passed since the accident;
(b) only
one assessment of the claimant in respect of the accident may be carried out
under this section;
(c) a
certified examiner is not eligible to assess a claimant under this section if
the certified examiner
(i) has diagnosed or treated the claimant, or
(ii) has been consulted with respect to the diagnosis or treatment of
the claimant
in respect of any injury
arising from the accident.
Scheduling of
assessment
9(1) The
certified examiner must make reasonable efforts to schedule the assessment of
the claimant for a time that is convenient for the claimant and that is within
30 days of the referral to the certified examiner.
(2) For the purpose of subsection (1),
the certified examiner must give notice in writing to the claimant of the date,
time and location of the assessment.
Assessment by
certified examiner
10(1) For
the purpose of giving an opinion as to whether the claimant’s injury is or is
not a minor injury, the certified examiner must assess the claimant to
determine in accordance with section 4
(a) whether
the claimant’s injury is a sprain, strain or WAD injury, and
(b) if
the claimant’s injury is determined to be a sprain, strain or WAD injury,
whether the sprain, strain or WAD injury results in a serious impairment.
(2) For the purpose of conducting an
assessment of the claimant, the certified examiner may
(a) request
the claimant to authorize in writing the release of any relevant diagnostic,
treatment or care information in respect of the claimant that is in the
possession of a physician or other person, including a regional health
authority, and
(b) receive
from the claimant or the defendant any information that either party considers
relevant to the assessment.
(3) If the claimant, without reasonable
excuse,
(a) fails
to attend an assessment for which notice has been given under section 9 or
11(3),
(b) refuses
to answer any relevant questions of the certified examiner about
(i) the claimant’s medical condition or medical history, or
(ii) matters referred to in section 1(j)(i) that relate to the
claimant,
(c) fails
to authorize the release of any relevant diagnostic, treatment or care
information in respect of the claimant pursuant to subsection (2)(a), or
(d) in
any other way obstructs the certified examiner’s assessment,
the claimant’s injury
shall be considered to be a minor injury.
Opinion of certified
examiner
11(1) The certified examiner must, within
30 days of the certified examiner’s assessment of the claimant, prepare an
opinion in the prescribed form as to whether the claimant’s injury is or is not
a minor injury and provide a copy of that opinion to each party.
(2) Notwithstanding
subsection (1), if the certified examiner is not able to provide an opinion
under subsection (1) without further assessing the claimant, the certified
examiner may, on written notice to the parties, require the claimant to attend
a further assessment, in which case the certified examiner must provide an
opinion under subsection (1) within 30 days of that further assessment.
(3) A notice under
subsection (2) must contain
(a) the reason for the further assessment of the
claimant, and
(b) the date, time and location of the further
assessment.
(4) A further assessment of
the claimant under subsection (2) must be completed within 6 months of the
first assessment of the claimant.
Prima
facie evidence
12 The opinion of the certified examiner is
prima facie evidence that the claimant’s injury is or is not a minor injury, as
the case may be.
Cost of
assessment and opinion
13(1) An
assessment conducted and
opinion provided by a certified examiner under this Division are to be at the
expense of the party requesting the assessment and opinion.
(2) The Superintendent may
establish specific fees and disbursements or the maximum fees and disbursements
that a certified examiner may charge for conducting an assessment and providing
an opinion under this Division.
(3) The fees and
disbursements or maximum fees and disbursements established under subsection
(2) must be published in The Alberta Gazette.
Manner
of giving notice
14 Where this Division requires or permits a
notice or other document to be given to a person, it may be given
(a) by sending it to that person by mail to the
last known address of that person,
(b) by personal service, or
(c) by means of a facsimile or an e‑mail
if both parties have agreed to either of those methods of sending and receiving
notices or other documents.
Division
2
Certified Examiners Register
Register
established
15(1) The
Superintendent must establish, maintain and administer a register of certified
examiners.
(2) The Superintendent must
ensure that the certified examiners register is published in a form and manner
so that the register is accessible to the public.
Eligibility
requirements
16(1) A
physician is a certified examiner under this Regulation if, in accordance with
this Division,
(a) the
council notifies the Superintendent that the physician meets the requirements
set out in subsection (2), and
(b) the
Superintendent enters the physician’s name on the certified examiners register.
(2) A physician is eligible
to be a certified examiner if the physician
(a) is an active practising member under the Medical
Profession Act,
(b) has successfully completed an examination
approved by the council for admission as a certified examiner,
(c) has demonstrated to the satisfaction of the
council that the physician
(i) is knowledgeable with respect to the
biopsychosocial model,
(ii) is knowledgeable with respect to assessing
acute and chronic pain,
(iii) is knowledgeable in the application of the
International Classification of Diseases,
(iv) is experienced in rehabilitation and
disability management,
(v) is competent in conducting independent
assessments and providing third party opinions, and
(vi) uses evidence‑based decision‑making
in the physician’s practice,
and
(d) meets any additional qualifications
established by the Superintendent and approved by the council.
(3) For the purpose of
subsection (2)(iii), “International Classification of Diseases” means the most
recent edition of the publication titled the International Statistical
Classification of Diseases and Related Health Problems, Canada, published
by the Canadian Institute of Health Information, based on a publication issued
from time to time titled the International Statistical Classification of
Diseases and Related Health Problems, published by the World Health
Organization.
Ceasing
to be a certified examiner
17 A physician ceases to be a certified
examiner if
(a) the
council notifies the Superintendent that the physician’s name is to be removed
from the certified examiners register, and
(b) the
Superintendent removes the physician’s name from the certified examiners
register.
Transitional
18(1) Notwithstanding
section 16, the Superintendent may enter the name of a physician on the
certified examiners register when the council notifies the Superintendent that
the physician
(a) is
an active practising member under the Medical Profession Act, and
(b) in
the opinion of the council is able to perform the functions of a certified
examiner.
(2) A physician whose name
is entered on the certified examiners register under subsection (1) ceases to
be a certified examiner
(a) on the date the physician becomes a
certified examiner under section 16(1),
(b) 2 years from the date this section comes
into force or such later date as the Superintendent determines, or
(c) on the date the physician ceases to be a
certified examiner under section 17,
whichever
occurs first.
Part 4
Expiry and Coming into Force
Expiry
19 For the purpose of ensuring that this
Regulation is reviewed for ongoing relevancy and necessity, with the option
that it may be repassed in its present or an amended form following a review,
this Regulation expires on September 30, 2011.
Coming into force
20 This Regulation comes into force on
October 1, 2004.