Publication

New N.L. Automobile Accident Diagnostic and Treatment Protocols Regulations

Published:

March 4, 2025

Author(s):

• Morgan Chafe
• Jennifer Reid

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On December 2, 2024, the Automobile Accident Diagnostic and Treatment Protocols Regulations under the Newfoundland & Labrador Automobile Insurance Act took effect, potentially leading to delays and insufficient care for claimants – and increased costs to insurers. Where it becomes known that a claimant had elected to be treated pursuant to the Protocol, insurers responding to any tort claim should be aware there could be a risk of higher damages awards and plan accordingly. The impact the changes may have on the settlement of tort claims has yet to be seen.

Application 

The Regulations apply where following a motor vehicle accident both:

• A claimant elects to be diagnosed and treated in accordance with the diagnostic and treatment protocols contained in the Regulations (Protocols) for any sprain, strain or whiplash associated disorder injuries (Soft Tissue Injury) suffered as a result of the accident.

• A health care practitioner (defined as including chiropractors, physiotherapists, physicians, and nurse practitioners) chooses to diagnose and treat a claimant’s Soft Tissue Injury in accordance with the Protocols.

The Regulations cease to apply on the earlier of either:

• 90 days after the accident.
• When the maximum number of authorized visits has been reached.

Regardless of whether a claimant has a single Soft Tissue Injury, or multiple Soft Tissue Injuries, the maximum number of visits an insured may have to a physiotherapist, chiropractor, or adjunct therapist, is a combined total of 10 to 21 visits, depending on the degree of the injury.

Limitations 

The Regulations impose several limitations on health care professionals and their practice, including limiting:

• The diagnostic criteria for Soft Tissue Injuries.
• The methods for treating Soft Tissue Injuries.
• The investigative measures a health care practitioner can rely on in diagnosing a whiplash associated disorder injury and eliminating more severe injuries.
• The number of assessments an insured can have, regardless of the number of Soft Tissue Injuries they are suffering from.

Notably, the Regulations give the province’s Superintendent of Insurance the authority to set the fees that can be charged for the authorized services under the Regulations, which include diagnostic imaging, laboratory testing, specialized testing, supplies, treatments, visits, therapy, assessments, reports, and claim forms. Where the Superintendent sets a fee, the health care practitioner is prevented from charging or collecting more than that fee.

Key Issues 

It has been suggested that the Protocols allow a claimant to obtain a quicker access to treatment, a quicker diagnosis, and more affordable treatment. And this may be the case for many claimants. But there are several potential drawbacks for those claimants who elect treatment under the Protocols – and for the insurers handling their claims.

Delayed Resolution of Claims. Ultimately, the Regulations create the risk of delayed initial diagnosis and treatment, prolonged recovery period, receipt of reports, and assessment of claims, which could result in the delayed resolution of personal injury claims. 

• Due to the reduced service fees, stringent reporting requirements and limitations on diagnostic and treatment methods, there is a real risk that health care professionals, particularly allied health care professionals, will decline to take on these claimants as patients if they are electing treatment per the Protocols. As a result, those claimants might have to “treatment shop” before they find a health care professional willing to diagnose and treat the insured pursuant to the Protocols. Ultimately, this could result in a delay between the accident and initial diagnosis and treatment and prolonging the recovery process.

• Furthermore, the Protocols create stringent reporting requirements for health care professionals, with the rates chargeable for those reports being set by the Superintendent. Quite possibly a health care professional that has to prioritize one, will choose patient care over these new reporting requirements. This could result in the insurer experiencing delays in receiving reports which are crucial in assessing a claimant’s claim. 

Increased Damage Awards. Due to the limitations on health care professionals and their practice and number of authorized visits, there is a real risk that insurers will have to pay out higher damage awards, particularly for out-of-pocket treatment and future care.

• Each claimant cannot be treated equally. Depending on the nature of the claimant’s injury, pre-existing conditions, pain tolerances, diligence in completing at home, self-guided treatment, and requirements of the activities of daily life and employment, the Protocols may not be conducive to a claimant’s treatment and recovery needs.

• The Protocols’ limitations on health care professionals and their practice and number of authorized visits has the potential to result in focusing treatment solely on a claimant’s primarily complaint, and can result in suboptimal outcomes, missed or inaccurate diagnoses and prolonged suffering. It also doesn’t necessarily encourage collaboration with other health care professionals and could prevent referrals that could be integral to effective treatment and timely recovery.

Accordingly, if the claimant hasn’t recovered or even plateaued on the earlier of either 90 days after the accident or when the maximum number of authorized visits has been reached, insurers could face the risk of paying higher: damage awards for general damages given the claimant’s persistent symptoms; special damages if the claimant obtains additional treatment and pays out of pocket or their through private insurer; and costs of future care for ongoing treatment of their persistent symptoms.

Please contact your McInnes Cooper lawyer or any member of our Insurance Defence Team @ McInnes Cooper to discuss the impact of the new N.L. Protocol on assessing your claims.

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