Forth v. Mather, 2011 ABQB 303

Court of Queen ’ s Bench of Alberta Citation: Forth v. Mather, 2011 ABQB 303 Date: 20110509 Docket: 0703 11395 Registry: Edmonton Between: Angela Elaine Forth Plaintiff - and - Gregory Alexander Mather Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A. W. Germain _______________________________________________________ 1.

Introduction [ 1 ] The parties seek the assistance of the Court to determine whether a special kind of medical opinion, a “certified examiner’s medical opinion” [“CEMO”], which was prepared by a certified examiner [“CE”] as authorized under the Minor Injury Regulation , Alta. Reg. 123/2004 [the “ MIR ”], meets the requirements of the relevant legislation. [ 2 ] The MIR was passed pursuant to the Insurance Act , R.S.A. 2000, c. I-3. The MIR is part of the legislated scheme introduced by the Alberta government to ‘cap’ injury damage claims for certain kinds of “minor injuries”: MIR , s. 1(h).

A CEMO documents whether a qualified medical expert has concluded a plaintiff’s injuries fall within or outside the range of injuries for which possible injury awards are ‘capped’.

2. Background Facts [ 3 ] The Plaintiff was injured in a motor vehicle accident on August 22, 2006. She asserts that her injuries fall outside of the MIR definition of a minor injury. The Defendant holds a contrary view. [ 4 ] In April 2010, as part of a civil pre-trial conference ( Alberta Rules of Court , Alta. Reg. 390/1968, s. 665 [the “ Old Rules ”]), the parties attended before a judge of the Alberta Court of Queen’s Bench. (No analogue to this pre-trial conference is authorized by the present Alberta Rules Of Court , Alta. Reg. 124/2010 [the “ New Rules ”]).

The Justice directed that the Plaintiff submit to an examination by a CE as described in the MIR , ss. 9- 10 . [ 5 ] The litigants agreed on a mutually acceptable orthopaedic surgeon who was registered as a CE under the MIR . The Defendant instructed the CE and planned to pay his account when the CEMO was received. The Defendant expected to share the CEMO with Plaintiff’s counsel. [ 6 ] Defendant’s counsel admits she received the opinion from the CE but returned it and the attached invoice to the CE. She neither kept a copy of the CEMO nor paid the invoice.

The Defendant believed the CEMO did not qualify as a report under the regulation because it did not answer the mandatory questions required. Defendant’s counsel requested the CE revise the CEMO and tailor it to conform with the instructions given to CE’s in the MIR . None of this activity was contemporaneously shared with Plaintiff’s counsel.

The CE ignored this request and instead decided to withdraw from the minor injury evaluation process. [ 7 ] The Plaintiff wrote directly to the CE when a copy of the CEMO was not received from the Defendant, and was then told about the returned report and that the examiner had withdrawn from the process. This development led to the first chambers application on March 9, 2011.

The parties attended before me and on a without prejudice basis I indicated that: 1. the Plaintiff should receive the report; 2. the Plaintiff should pay the CE’s account; 3. no adverse inference would flow from the failure by either party to call the CE (to understand this instruction in context, one must remember that I permitted the Plaintiff obtain the report on a preliminary basis prior to her having any knowledge of its content); and 4. the parties could return to me if there continued to be a dispute about whether the report was or was not MIR -compliant. [ 8 ] There was a dispute and the parties return. 3.

The Position of the Parties [ 9 ] The Plaintiff’s position is that my advance ruling should be that the report obtained from the CE qualifies as a CEMO contemplated by the MIR . In the alternative, the Plaintiff argues I should conclude the Defendant is not entitled to a second CEMO request as the Defendant has instead exercised his alternative entitlement to an independent medical examination [“IME”] ( Old Rules , s. 217; New Rules , ss. 5.41- 5.44 ). [ 10 ] The Plaintiff points out that the style of the CE opinion is not identified or defined in the MIR .

The required content identified by legislation is restricted to a simple conclusion, whether or not an injury falls into the “minor injury” category: MIR , s. 11(1).

[ 11 ] Defence counsel asserts that the CEMO does not meet the requirements set out in the MIR , so they still remain entitled to a proper report from a certified examiner. What flows from this is a request for an order directing the Plaintiff to another CE. Specifically, the Defence argues the disputed CEMO was defective 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.” [Written submissions, para. 2.9]. 4. Legal Analysis A. The Scheme of the Legislation [ 12 ] Mr. Justice Brooker observed in Abbas v.

Menhem , 2010 ABQB 527 at para. 29 that the legislature through Insurance Act , s. 650.1 “... intended and in fact did, give the Lieutenant Governor in Council broad authority to set up a comprehensive scheme and procedure for administering minor injury claims arising out of motor vehicle accidents.” Further, in Abbas v.

Menhem , at para. 27 the court accepted that the Insurance Act and its regulations including the MIR should be interpreted in the overall context of both the regulations and enabling legislation. [ 13 ] I will neither repeat the MIR , or Insurance Act , s. 650.1, as they were adequately set out verbatim in Abbas v. Menhem , at paras. 17-24 . I agree with Justice Brooker’s analysis of the manner in which this regulation should be interpreted. [ 14 ] In Abbas v.

Menhem the court had to address a plaintiff reluctant to attend for examination by a CE, while I must deal with the impact on the parties of an opinion by a CE that does not provide, in the view of one of the parties, all of the information required. My focus is on the issue of how genuine disputes as to the nature and quality of a CEMO report are to be resolved. i. Requirements Indicated by Regulation [ 15 ] The Insurance Act , s. 650(3)(c, h-

i) authorizes the Lieutenant Governor in Council to make regulations for procedures and authorized persons who determine whether an injury qualifies as a “minor injury”. The MIR details how a CE investigates the injured person and prepares a CEMO. [ 16 ] MIR , s. 11 requires the CE prepare “an opinion in the prescribed form as to whether the claimant’s injury is or is not a minor injury”. The “opinion in the prescribed form” (CEMO) is due within 30 days of the assessment and each party “must” receive a copy of that opinion: MIR , s. 11(1). [ 17 ] The CEMO procedure is a one-time event. MIR , s. 8(7)(

b) makes clear that only one CEMO may be obtained per accident: 8(7) Notwithstanding anything in this section, ... (

b) only one assessment of the claimant in respect of the accident may be carried out under this section; [ 18 ] There is no dispute that the CEMO must disclose whether the expert has concluded the Plaintiff has suffered a minor injury. Minor injury is defined in MIR , s. 1(h): 1 For the purpose of

section 650.1 of the Act and this Regulation, ... (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 ... An injury that is not a sprain, strain, or WAD injury is never a “minor injury” as legislated in the MIR , and for the purposes of this regulation. Any injury that causes serious impairment is not a “minor injury”. The categories “sprain”, “strain” and “WAD injury” are detailed in Diagnostic and Treatment Protocols Regulation , Alta.

Reg. 122/2004. [ 19 ] The Defendant argues that MIR , s. 10(1) also provides required aspects of the CEMO report: 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 . [Emphasis added.] [ 20 ] Does MIR , s. 10(1) create additional and mandatory content for the CEMO in addition to that required by MIR , s. 11? I conclude that it does not.

Section 10 is a direction to the certified examiner that the CE must assess the claimant in accordance with the procedure in MIR , s. 4, the regulation’s two-level definition of a “minor injury”, and in compliance with the other procedures set out in s. 10 . MIR , s. 10 is the equivalent of a checklist to ensure that a CE assesses all clients in the same manner and utilizing the same criteria. [ 21 ] There is nothing in the regulation that requires s. 10 analysis by the certified examiner to appear in the opinion expressed in s. 11 . If that was intended, in my respectful view the drafting contains an oversight.

While common sense would dictate that certified examiners might well answer these questions in the opinion, and the text of the “prescribed form” implies the same, there is no obligatory requirement to the extent that a report that failed to contain these items would be defective and expose the Plaintiff to another examination. [ 22 ] The language in the MIR that describes the effect of the CEMO report also indicates a variable evidentiary impact for different elements of that report.

MIR , s. 12 states: 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.

Section 12 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. That too favours an

interpretation that the steps and categories described in MIR , s. 10 are not critical parts of a CEMO report. At trial, those other elements of the CEMO have no special weight or probative value. [ 23 ] I therefore conclude that the CEMO has only one requirement specifically indicated by legislation; that the report disclose

whether the CE concluded the Plaintiff has one or more injuries that are “minor injuries” and thus fall into the MIR scheme. [ 24 ] In coming to the conclusion that only one critical conclusion is required by regulation to constitute a CEMO, I observe that a parallel exists in another Insurance Act regulation. The Automobile Accident Insurance Benefits Regulations , Alta. Reg. 352/1972 has a procedure that includes a “prescribed claim form” (Section B (1.1)) which an insured person sends to their insurer to make a claim (Section B (3)). That form has certain mandatory contents: The completed prescribed claim form must include (

a) details of the injury, and (

b) details of the accident that are within the personal knowledge of the insured person. [Emphasis added.] By implication, all other information on the “completed prescribed claim form” is not required, or would not invalidate the form. [ 25 ] The “prescribed claim form” includes much additional information, but the regulation only makes the details of the injury and accident necessary . ii. Prescribed Forms [ 26 ] Insurance Act , s. 803 authorizes the Minister to “establish forms for the purposes of this Act and the regulations.” Subordinate legislation refers to these s. 803 forms as “prescribed forms”.

MIR , s. 11 requires that the CEMO be “in the prescribed form”, a document titled “MI-3: Certified Examiner Prescribed Form for Providing an Opinion” [“MI-3”], which is attached as

Schedule 1. [ 27 ] MI-3 is an unusual document for a “form”. It more closely resembles a memo. MI-3, in substance, is really just a suggested outline that the Superintendent of Insurance has established to assist those requesting medical opinions in properly instructing the doctor (CE) who then prepares the CEMO report.

Whether that is a legislative oversight or perhaps indicates the author of the regulation and prescribed forms felt that most doctors would likely, or would only, follow an instructing memo, is unclear. [ 28 ] What is obvious is that MI-3 is very different from the other prescribed forms authorized under Insurance Act , s. 803.

The MIR also references two other “prescribed forms”: “MI-1: Request for an Assessment by a Certified Examiner Notice Form” [“MI-1”], and “MI-2: Application to the Superintendent of Insurance to select a Certified Examiner Form” [“MI-2”]. [ 29 ] MI-1 relates to MIR , ss. 8(1)- 8(3) , and the procedure by which a party to an action can initiate the certified examination process. MI-2 is used when a plaintiff and defendant cannot agree on a suitable certified examiner and request that one be selected by the Superintendent of Insurance. Both these documents are what conventionally would be described as forms.

They contain fields to be populated, and check-boxes to indicate certain data. [ 30 ] The Automobile Accident Insurance Benefits Regulations ,

Section B (1.1), (3-3.2) reference a “prescribed claim form”. I believe this correlates to the “AB-1: Notice of Loss and Proof of Claim Form” and “AB-1A: Claim for Disability Benefits Form” documents. These too are conventional forms.

[ 31 ] Another “prescribed form” is identified in Diagnostic and Treatment Protocols Regulation , at ss. 9(1)(a), 13(1)(a), 18(1)(a), 21(1)(a), 30(a), 32, 33(1). “AB-2: Treatment Plan Form” [“AB-2”] appears to be the form referenced in these sections. Again, AB-2 is a conventional electronic PDF format form, and provides specific fields to describe the patient, the diagnosis of the injury, a proposed treatment, and therapeutic objectives.

In that form the “Diagnosis” field includes three rows of ‘check-boxes’, labelled “Sprain 1 2 3”, “Strain 1 2 3”, and “WAD 1 2 3 4”, and a space beside the word “Other”. [ 32 ] The Defence has argued that I should interpret MIR , s. 10 to indicate that a proper CEMO should explicitly indicate whether a sprain, strain, or WAD injury was identified. AB-2 provides an concrete example of how a “prescribed form” could indicate that kind of information is required.

MI-3 had no equivalent. [ 33 ] MI-3 does not provide any such explicit instruction that the certified examiner’s report should specify whether the CE has identified or categorized the plaintiff’s injuries in that manner. MI-3 includes an list of “required” information - “Information required to be included with the opinion of the Certified Examiner for the purposes of the Minor Injury Regulation ”. Sixteen items are listed. Only one, paragraph 14, specifically requires a CE provide conclusions: 14.

Conclusions and determinations, including, but not limited to: · Diagnosis, · Whether the claimant was treated within the Diagnostic and Treatment Protocols · Determination of “Serious Impairment”, or not, · Determination of “Minor Injury”, or not [ 34 ] There is no mention of strains, sprains, or WAD categories. That is evidence against the position taken by the Defence.

Critically, MI-3 includes a further instruction, labelled as an “Important Notice”: This prescribed form should be considered a general format for the Certified Examiner to use when providing their opinion under the Minor Injury Regulation and may be altered as required by the practitioner when considering individual claimants . [Emphasis added.] [ 35 ] In my view, prescribed form MI-3 is, at best, only for advisory and informational purposes and does not have the required force of law that would allow legal counsel to reject a report prepared under the MIR .

It provides guidelines, and then instructs the CE to use those guidelines where appropriate. iii. Conclusion - Certified Examination Opinion Requirements [ 36 ] From my review of the relevant legislation and MI-3 I conclude that there is but one critical element which every CEMO report must have and that is set out in MIR , s. 11. The report must indicate whether the injury in question is a minor one or not. [ 37 ] In my view, the court’s power to perform any type of pre-trial audit on the nature and quality of CE’s opinions should be a limited one, if that authority exists at all.

The medical practitioner should be given significant and substantial deference at this stage. This is a common-sense approach. [ 38 ] We begin with the assumption that the doctor is registered under the program and thus the Superintendent of Insurance has

screened and approved the doctor to provide CEMO reports. A CEMO report is highly probative; MIR , s. 12 indicates the conclusion of the CE is “... prima facie evidence that the claimant’s injury is or is not a minor injury ...”. That indicates the legislation sees CE’s as providing expertise that is highly relevant and reliable. [ 39 ] Of course, if it should turn out (not the case here) that the doctor purporting to issue the report was not in fact approved then that would be akin to a full loss of jurisdiction in an administrative law context.

A court order might be required to confirm that lack of certification in advance of trial. [ 40 ] However, where the doctor is registered under the MIR program, and there is anything in the report, irrespective of how poorly or confusingly worded, that can be identified to indicate whether the claimant’s injury is or is not a minor injury, that should be the end of a pre-trial review on the nature and quality of the report.

To rule otherwise would unduly complicate the administration of this regulation, introduce additional court proceedings to a legislative scheme that was designed to simplify and perhaps reduce court proceedings and costs, and potentially bring out the worst in interpersonal relationships between doctors and lawyers.

Put simply, the CE’s report and its conclusion is due considerable deference, in any pre-trial evaluation hearing. [ 41 ] The legal profession should not, through a pre-trial process, lightly acquire the right to criticize the technical details of often lengthy and complicated reports prepared by skilled and government-certified experts, and which the legislature has indicated are highly reliable and probative.

As important, lawyers should not acquire the unilateral right to reject a report and the obligation to pay for it simply because a CEMO fails to achieve their expectation or assessment of what the report must include. [ 42 ]

Interpretation issues as to what weight, if any, the CEMO should be given, other than the weight statutorily provided to it by the MIR , should vest with the trial judge, and not become the substance of pre-trial motions. [ 43 ] It is inappropriate, in my respectful view, for litigants receiving opinions such as this from a CE to reject that opinion for lack of completeness or thoroughness where the doctor does focus on the mandatory declaration required in MIR , s. 11. MI-3 instructs CEs to use their discretion in the report’s content and structure.

If the legislature wanted doctors to prepare CEMO’s using a rigid and formalized structure, then there are methods by which that objective could have been achieved. Prescribed forms MI-1, MI-2, AB-1, AB- 1a, and AB-2 illustrate that point. AB-2 in particular uses check boxes to indicate specific diagnoses by medical professionals. However common sense dictates that CEs should where possible tailor their reports along the guidelines suggested in form MI-3, if for no other reason than to avoid the type of dispute that occurred here. [ 44 ] There are public policy issues in play here as well.

First, plaintiffs who cooperate in going to certified examiners should not have to re-attend to another examiner because of perceived weaknesses in the CEMO. MIR , s. 8(7)(

b) only ever permits a single primary and supplementary CEMO exam and report. I specifically reject any ability on the part of either litigant engaged in this regulatory scheme to start “doctor-shopping” on the basis that a certain CEMO report is inadequate. [ 45 ] Again, the legislature has emphasized this CEMO report and CE is not the ‘property’ of either litigant. If parties disagree on a suitable CE then the government authority will assign one: MIR , s. 8(4)- 8(6) .

Both parties receive the expert report ( MIR , s. 11(1)), and the conclusion of the CE (unless rebutted) is presumptively valid evidence potentially against either party ( MIR , s. 12). B. Is the Certified Expert Medical Opinion [CEMO] Defective? [ 46 ] No. In my view, the opinion authored by this CE meets the definition and requirements for a CEMO as expressed in MIR , ss.11- 13 . [ 47 ] The medical doctor’s report was initially dated January 17, 2011. An updated version dated March 10, 2011 was apparently resubmitted by the doctor to both parties. Each include it in their application materials before me.

This CEMO is clearly prepared by an properly qualified expert identified under the regulation to issue this type of report. The report discusses the Plaintiff’s injuries, and incorporates by reference the diagnosis of other professionals of a WAD II injury as well other strains and sprains. The CE discusses the reported treatment or lack of it historically. He concludes:

It would be my opinion that Ms. Forth probably did sustain soft tissue injuries to her cervical spine, right shoulder and right hip as a result of the crash on 22 August 2006 ...

I do not believe that these impairments qualify as “serious impairment” under the Minor Injury Regulation . [Emphasis in original.] [ 48 ] I conclude this meets the requirements of MIR , s. 11(1). [ 49 ] As for the “required information” of MI-3 (ie. suggested format and content), I conclude that the learned doctor’s report provides a prima face indication that the report complies with the relevant suggestions set out in form MI-3, although perhaps not as clearly as Defense counsel may have wished. [ 50 ] To be explicit, there is no basis in this report for a lawyer to reject the report or refuse to pay for the cost of that report ( MIR , s. 13(1)) simply because they do not like it, do not feel that it is thorough enough, or that not all of their questions were answered. [ 51 ] Even were I incorrect about that, I express reservation in these comments about whether a report that fails judicial scrutiny as a qualifying report should automatically result in an obligation on the part of the Plaintiff to be subjected again to such an intrusive obligation as a new assessment.

However, as I do not need to answer that question in light of this ruling, I will leave to others and another day whether a litigant who successfully obtains a ruling that a CEMO report is defective would be automatically entitled to require a re- examination of the plaintiff by the same or another CE. My view is to the contrary. C. What Procedure Should be Followed by Litigants with a Bona Fide Dispute on the Adequacy of a CEMO [ 52 ] This ruling suggests that the frequency where a bona fide dispute will exist about the basic qualification of a medical opinion obtained under the MIR should be rare.

There will not likely be many incidents where a qualified examiner issues a report that is so defective or void of detail to fail the requirement of MIR , s. 11. Further, it is also unlikely that medical doctors who elect to issue such reports will be often voluntarily selected by legal counsel, so the problem will resolve itself with time and a ‘natural selection’ process. [ 53 ] However, the

interpretation and application of the MIR is new to the bar and the Courts in this province, so I offer the following guidance. If this kind of scenario emerges, counsel should either apply to the Chief Justice or the Associate Chief Justice for the early appointment of a trial judge to deal with the allegedly defective CEMO as a preliminary matter; or alternatively consider a chambers application on proper notice. A special chambers application may be warranted as it is likely that these matters (at least initially) will require significant materials and careful review.

My current view would also be amended, or fully supplanted, if the Chief Justice, views these practice issues as ones which warrant Practice Notes. [ 54 ] I should also issue some guidance to members of the bar who find themselves caught in this new and unique situation. In my view, when a member of the bar who has requested a CEMO report receives it, they should pay for the CEMO per MIR , s. 13(1), irrespective of any personal thoughts they may have about the report’s adequacy. Again, this is a practical approach.

The examiners who participate in this program are on a tightly controlled fee schedule, and I have received anecdotal advice that the MIR fees may be less than those which these experts would charge for independent medical examinations with an analogous subject matter. [ 55 ] The current MIR scheme, requires an adequate pool of medical practitioners willing to take on this work, and it does not take much imagination to anticipate that doctors will abandon this program if they are not only paid below their notional view of entitlement, but also risk not being paid at all.

That may have happened in this case, as the doctor has indicated that he is withdrawing from the MIR process.

[ 56 ] Second, in my view if a recipient of a report attempts to get modifications to a CEMO report - to perhaps in their opinion take it closer to their ideal - then the other legal counsel should immediately be fully informed about this. If possible, consent and consensus should be obtained before any request to modify or amend. The failure to do so only adds tension between the litigants that is undesirable. That tension and its escalation has also happened here. D.

Does Utilizing the Rules of Court IME Process Preclude the Application of the MIR ? [ 57 ] Plaintiff’s counsel raised this issue as a fallback position if I viewed the opinion provided by the CE as inadequate. Defense counsel suggests that the two procedures: one under the Rules of Court for an independent medical examination and the other under the Insurance Act for a CEMO, are mutually exclusive. I agree with the Defendant. [ 58 ] There is nothing in either the Rules of Court or the Insurance Act that places any type of an elective burden on litigants to use one process or the other.

In fact, the CEMO may only be provided by a professional that is licensed under the MIR to provide that kind of opinion. A certified examiner may not be the kind of particular specialist or expert that the defense requires to deal with an at-trial issue. In short, saying these are alternative schemes may artificially narrow the opportunity of a defendant to enter relevant expert evidence. [ 59 ] While in this case the Defendant did obtain an IME of the same specialty as that of the CE, this was only by coincidence.

MIR , s. 16(2) does include certain prerequisites for a person to be a CE, however these criteria appear quite broad and a medical expert with a specific focus may be an excellent candidate to testify at trial on specific features of a sprain, strain, or WAD injury, but not meet the requirements of MIR , s. 16(2). The legislation should not be interpreted in a manner that would exclude that expert’s potential contribution. [ 60 ] Further, under the Rules of Court only defendants may request IME’s, while either party can ask for a CEMO ( MIR , s. 8(1)).

Further, a CEMO is admissible in court as prima facie evidence, while an IME is not admissible (absent agreement) other than by following the Rules of Court . An IME has a different probative effect, it does not create any presumptions or represent prima facie evidence. Finally, an IME and CEMO have very different operational effects.

One limits access to damages beyond a regulated amount; the other may limit quantum of damages due in common-law. [ 61 ] I therefore conclude that the IME prescribed under the Rules of Court and the CEMO authorized by the MIR are independent and a defendant obtaining an IME that relates to a potential minor injury does not restrict either parties’ ability to seek and obtain a CEMO. 5. Conclusion and Outcome [ 62 ] The CEMO report supplied to the parties by the CE meets the critical requirements set in MIR , s. 11.

Any deviation from the suggested content indicated in MI-3 is within the CE’s jurisdiction and discretion. In result, the application by the Plaintiff for a declaration that the report complies with the MIR is granted. 6. Costs and Collateral Orders [ 63 ] The Defendant has received their certified examiner medical opinion and may not oppose the setting of the case for trial based on this issue. The Plaintiff is entitled to her costs both for the initial application on March 9, 2011, and the follow-up appearance on March 25, 2011.

Included in these costs will be an appropriate fee for the preparation of written materials. [ 64 ] These fees shall be payable by the Defendant to the Plaintiff, at the conclusion of the litigation, but irrespective of the cause and outcome. In addition, in light of this ruling, it is now appropriate for the Defendant to pay the ab initio cost of the CE opinion. Since the Plaintiff has paid the invoiced amount, the Defendant shall immediately reimburse the Plaintiff for that payment. That disbursement item shall remain a cost item in the outcome of the trial.

[ 65 ] My order of March 9, 2011 is now modified, if necessary, to be consistent with this order. The CE’s role in this process shall be as contemplated in the MIR . [ 66 ] I conclude by thanking counsel for their excellent submissions in this matter. Heard on the 25 th day of March, 2011. Dated at the City of Edmonton, Alberta this 9 th day of May, 2011. A.W. Germain J.C.Q.B.A. Appearances: Patrick J. Phelan Patrick J. Phelan Professional for the Plaintiff Lorena L. Sutherland Alberta Motor Association Insurance Company for the Defendant

Schedule I Form MI-3 Certified Examiner Prescribed Form for Providing an Opinion (Form MI-3) Use this prescribed form for motor vehicle accidents that occur on or after October 1, 2004. This form is prescribed in accordance with Section 11(1) of the Minor Injury Regulation and

Section 803 of the Insurance Act . Important Notice:

· This prescribed form is to be used when the Certified Examiner provides an opinion as to whether the claimant’s injury is or is not a minor injury, as described in the Minor Injury Regulation and the Insurance Act .

The Certified Examiner is to provide a copy of their opinion to both the claimant and the defendant that shall include the information, listed in this prescribed form. · This prescribed form should be considered a general format for the Certified Examiner to use when providing their opinion under the Minor Injury Regulation and may be altered as required by the practitioner when considering individual claimants. · It is recommended that the Certified Examiner review the College of Physicians and Surgeons guideline “Medical Examinations by Non-Treating Physicians (NTMEs)” of June 2000 prior to the completion of their report. · If you have any questions you can contact the Office of the Superintendent of Insurance by phone (780) 427-8322, by fax (780) 420-0752 or by e-mail: insurance@gov.ab.ca .

A copy of the Minor Injury Regulation , Insurance Act , prescribed forms and the Certified Examiner registry is available at http://www.finance.gov.ab.ca/publications/insurance/. Information required to be included with the opinion of the Certified Examiner for the purposes of the Minor Injury Regulation : 1. Name and address of claimant. 2. Name and address of insurance company. 3. Date of assessment. 4. Name of party requesting the opinion. 5. Date of motor vehicle accident related to the injury. 6.

Statement of the purpose for the examination and relevant issues, including a statement that the claimant’s consent was obtained for the examination, to accessing relevant medical information and other records, and to disclosure of the results of the examination to the insurance company and claimant/claimant’s representative. 7. List of information reviewed including information from the primary health care practitioner(s), Regional Health Authorities, informed parties and, if applicable, the injury management consultant or other specialists. 8.

Relative history of injury, including; · Working diagnosis · Mechanism of injury · Treatment to date and response to the treatment · Current symptoms · How physical and cognitive functions have been affected by the injury 9. Relevant Medical history, including: physical, psychological, emotional, and social history. 10. Relevant Occupational/employment history 11. Normal activities of daily living; basic, functional and current status 12. Details of Examination, including;

· General examination as appropriate · Regional examination as appropriate · Musculoskeletal and neurological examination as appropriate · Cognitive examination as appropriate · Functional limitations as appropriate 13. Reference to the Minor Injury Regulation 14. Conclusions and determinations, including, but not limited to: · Diagnosis, · Whether the claimant was treated within the Diagnostic and Treatment Protocols · Determination of “Serious Impairment”, or not, · Determination of “Minor Injury”, or not 15. Name and Address of the Certified Examiner 16. Signature of the Certified Examiner and date of signature