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Chronic Myofascial Pain Found to be “Minor Injury” for BC Crash Victim

For two years BC crash victims were subject to the “minor injury” scheme.  Basically a law labelling that most injuries are minor.  Many British Columbians were surprised to find out that most injuries are labelled minor under this law despite common understanding of the word meaning otherwise.  That’s legal drafting and defining in action.  Legislative trickery.  Words don’t always mean what you think they do, they mean what the government defined them to.

The constitutionality of the Civil Resolution Tribunal, the body given power to decide if injuries are ‘minor’, was in flux for years.  With more legal clarity now determinations are being made.  This week one of the first minor injury determinations was handed down with the Tribunal finding that an applicant’s chronic myofascial pain was caught by the broad BC Government definition of ‘minor injury’.

In the recent case (Silver v. All-West Heritage Glass Ltd.) the applicant was injured in a 2020 crash that the Defendant was at fault for.  The crash caused chronic injury to the Plaintiff’s shoulder that continued to trouble her years later and interfere with some day to day activities.  Despite the chronic nature of the injury the Tribunal provided the following reasons finding they fit the definition of minor:

17.For the minor injury determination dispute, section 101 of the IVA and section 2 of the Minor Injury Regulation define a “minor injury” as including, among other things, sprains or strain, pain syndromes, a concussion that does not result in an incapacity, and whiplash-associated disorder (WAD) injuries.

18.Section 101 of the IVA further says that a “minor injury” includes a physical or mental injury that does not result in a “serious impairment” or a “permanent serious disfigurement”.

19.A “permanent serious disfigurement” means something that significantly detracts from the applicant’s physical appearance. There is no indication the applicant claims a permanent serious disfigurement from the July 28, 2020 accident.

20.A “serious impairment” means a physical or mental impairment that is not resolved within 12 months after the date of the accident, and “meets prescribed criteria”.

21.Minor Injury Regulation section 3 sets out the “prescribed criteria” for a serious impairment. It says that the impairment must result in a “substantial inability” to perform the essential tasks of the applicant’s regular employment or education program, or their activities of daily living. The impairment must be caused by the accident, be ongoing since the accident, and not expected to improve substantially.

22.As a result of the accident, the applicant says she suffered left arm pain and that her arm goes “dead” at times, ongoing neck and back pain, and daily shoulder pain. She also says she has nerve pain. The applicant argues her accident injuries are negatively impacting her ability to perform her activities of daily living.

23.I find the applicant’s injuries fall within the injuries listed in the IVA and Minor Injury Regulation. Although she argues she has nerve issues, she underwent neurologic testing with a neurologist, Dr. Namratha Sudharshan, in June 2022. In his June 29, 2022 report, Dr. Sudharshan advised the applicant’s alleged “nerve pain” was likely myofascial, and that all the applicant’s nerve conduction studies were normal. So, I find the applicant’s complaints of ongoing pain are the result of various sprains and strains or a WAD-type injury, consistent with the diagnoses given throughout her medical records.

24.The respondent provided clinical records from the applicant’s family doctor, Dr. Magda Du Plessis, her chiropractors, and massage therapist, kinesiologist, acupuncturist, and physiotherapists.

25.Based on the records in evidence and the applicant’s submissions, I accept that the applicant’s accident injuries have not resolved, more than 2 and a half years post-accident. However, in order to successfully show her injuries are not “minor injuries”, the applicant must also prove that her injuries have resulted in a substantial inability to perform her regular work duties or her activities of daily living.

26.The difficulty for the applicant is that the medical evidence does not support her claim that her injury is not minor. The evidence is that she is working full time, full duties, with no known accommodations for her injuries. So, I find she is substantially able to perform her regular employment.

27.Similarly, although the applicant argues she is unable to do everyday tasks such as doing her hair or limiting the amount of time she plays with her son, I find the medical evidence shows the applicant has resumed all her prior activities of daily living (ADLs).

28.For example, a September 18, 2020 clinical note from one of the applicant’s physiotherapists, Jordana Moxon, noted the applicant had returned to her ADLs, but modified at home as necessary. In a July 13, 2021 clinical note, nearly 1 year after the accident, another of the applicant’s physiotherapists, Erica Best, noted the applicant was “able to function with work and ADLs”.

29.Section 1 of the IVA (as in place at the time of the accident) defines “activities of daily living” as including the following activities:

Preparing personal meals,

Managing personal finances,

Shopping for personal needs,

Using public or personal transportation,

Performing housework to maintain a place of residence in acceptable sanitary condition,

Performing personal hygiene and self-care, and

Managing personal medication.

30.Apart from the applicant stating she is unable to do her hair as she likes or hold her son for longer periods, I find there is simply no evidence that she is substantially unable to perform her activities of daily living as they are defined in the IVA. So, based on the evidence before me, I find the applicant’s injuries are “minor injuries” as defined by section 101 of the IVA and the Minor Injury Regulation.

Minor Injury, myofacial pain, Silver v. All-West Heritage Glass Ltd.