Christopher Doll KC
What constitutes a “minor injury” for the purpose of motor vehicle injury claims in BC? You may be surprised to learn that an injury that most people would think of as life changing and very serious might only be considered a “minor injury” as far as the provincial government and ICBC are concerned.
Last year the B.C. government changed the law so as to implement a cap on the compensation payable to victims of motor vehicle accidents for pain and suffering caused by “minor injuries” sustained in collisions that occurred on or after April 1, 2019. In doing so, the government cast a wide net in defining “minor injuries” so as to include not only “whiplash” and cuts, bruises, sprains or strains, but also to include:
- a pain syndrome
- a concussion
- jaw injuries
- psychological or psychiatric conditions, such as depression or Post Traumatic Stress Disorder.
In fact, the government can add other injuries to this list from time to time, and thereby classify those injuries as minor as well. To understand whether or not you have a “minor injury”, it is important to check to see if the injury you suffered was on the list at the time you had your accident.
However, there are certain exclusions to the government’s definition, and not every case of concussion and chronic pain syndrome is meant to be classified as a “minor injury”, regardless of what you might be told. For example, if you have a concussion or a mental health condition that causes “significant impairment” and that does not improve within 16 weeks of the accident; or any other type of injury that, after a year, continues to significantly impair your life; or if you have a permanent serious disfigurement that significantly detracts from your appearance, then the cap may not apply.
For the purposes of an ICBC claim, the term “significant impairment” refers to a substantial inability to perform the essential tasks of daily living or those at work, school, home, etc. This means that even if you have a long-term or lifetime injury that continues to detract from the quality of your life, but that does not render you significantly unable to perform these “essential” tasks (for four months or more in the case of concussion and mental health conditions, or 12 months in the case of any other injury), your injury will still be considered a “minor injury”.
There is also another way your injury may be considered a “minor injury”. You may find that even though, as a result of your injury, you have a significant impairment for the stated amount of time required, unless you get a medical diagnosis and then follow the treatment protocol appropriate for your diagnosis, your injury may once again be considered to be a “minor injury” for the purpose of restricting your compensation
If you are told that your injury falls under the “minor” injury category and you disagree, you have the right to challenge this designation through the Civil Resolution Tribunal. To do so, you will have to produce evidence of your injuries and their impact on your life, including evidence of the essential tasks of your employment. You will have to produce evidence that your injuries have prevented you from doing those tasks for either four months or 12 months, as the case may be. This can be a difficult undertaking and it is recommended that you seek legal advice to do so. If you are successful, you may then claim the full amount of your loss. Similarly, if your accident took place before April 1, 2019, the minor injury cap does not apply.
If you have questions about disputing a minor injury designation or require further information about your claim, the personal injury team at North Shore Law will be pleased to assist you.
