This week the BC Government released their regulations setting out the framework for ICBC’s ‘minor injury’ scheme which will be in force for people involved in BC collisions after April 1, 2019.
First and foremost it should be emphasized that the term ‘minor injury’ is misleading. It is a political term used to make the public ok with having your rights stripped. In short many injuries that no-one should consider minor (such as brain injuries) are caught in this definition. With the regulations now in force, however, British Columbians now have a better understanding of what the future will hold. Here is the rundown.
Section 103 of the Insurance (Vehicle) Act notes that everyone in a BC crash after April 1, 2019 that suffers ‘minor’ injuries have their non-pecuniary damages capped at an amount set by regulation. The regulations released last week set the cap at $5,500.
The term “minor injury” is defined in section 101 of the Act as follows:
a physical or mental injury, whether or not chronic, that
(a)subject to subsection (2), does not result in a serious impairment or a permanent serious disfigurement of the claimant, and
(b)is one of the following:
(i)an abrasion, a contusion, a laceration, a sprain or a strain;
(ii)a pain syndrome;
(iii)a psychological or psychiatric condition;
(iv)a prescribed injury or an injury in a prescribed type or class of injury;
The Regulations went on to expand this list with the following ‘prescribed’ injuries
a. a concussion that does not result in an incapacity
b. A TMJ disorder
c. a WAD injury
A TMJ disorder was defined to mean “an injury that involves or surrounds the tempomandibular joint.“.
A WAD injury was defined to mean “a whiplash associated disorder other than one that exhibits one or both of the following:
(a) decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms;
(b) a fracture or dislocation of the spine”
Sprain was defined to mean “an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn“.
Strain was defined to mean “an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn“.
Psychological or Psychiatric Condition is defined as follows:
a clinical condition that
(a) is of a psychological or psychiatric nature, and
(b) does not result in an incapacity
The word “incapacity” was defined as well with the Regulations noting as follows:
in relation to a claimant, means a mental or physical incapacity that
(a) is not resolved within 16 weeks after the date the incapacity arises, and
(b) is the primary cause of a substantial inability of the claimant to perform
(i) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession.
(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or
(iii) the claimant’s activities of daily living.
So, if you have any of the above “minor injuries” you are facing capped non-pecuniary damages. A concussion by default is minor but if it does result in the above definition of ‘incapacity’ it will not be subject to the cap. The same goes for psychological or psychiatric conditions.
A “minor” injury can also get around the cap if it results in “serious impairment or a permanent serious disfigurement“.
These terms have also been defined as follows:
“permanent serious disfigurement”, in relation to a claimant, means a permanent disfigurement that, having regard to any prescribed criteria, significantly detracts from the claimant’s physical appearance;
“serious impairment”, in relation to a claimant, means a physical or mental impairment that
(a)is not resolved within 12 months, or another prescribed period, if any, after the date of an accident, and
(b)meets prescribed criteria.
The “prescribed criteria” set out in the regulations basically mirror the test for ‘incapacity’ with the regulations stating as follows:
The claimant’s physical or mental impairment must meet the following prescribed criteria:
(a) the impairment results in a substantial inability of the claimant to perform
(i) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s employment, occupation or profession,
(ii) the essential tasks of the claimants training or education in a program or course that the claimant was enrolled in or had been accepted for enrollment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s incapacity and the claimant’s reasonable efforts to use the accomodation to allow the claimant to continue the claimant’s training or education, or
(iii) the claimant’s activities of daily living.
(b) the impairment is primarily caused by the accident and is ongoing since the accident;
(c) the impairment is not expected to improve substantially.
You will see from this combination the injury not only has to last more than 12 months as set out in the Act but the Regulations went on to basically require the injury to be permanent to not be considered minor.
Even if a ‘minor’ injury goes on to meet the test for no longer being considered minor ICBC has the right to argue that it is still minor if you did not follow their treatment protocols with s. 101(2)(3)(4) of the Act holding as follows
(2)Subject to subsection (3) and the regulations, an injury that, at the time of the accident or when it first manifested, was an injury within the definition of “minor injury” in subsection (1) is deemed to be a minor injury if
(a)the claimant, without reasonable excuse, fails to seek a diagnosis or comply with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury, and
(b)the injury
(i)results in a serious impairment or a permanent serious disfigurement of the claimant, or
(ii)develops into an injury other than an injury within the definition of “minor injury” in subsection (1).
(3)An injury is not deemed, under subsection (2), to be a minor injury if the claimant establishes that either of the circumstances referred to in subsection (2) (b) would have resulted even if the claimant had sought a diagnosis and complied with treatment in accordance with a diagnostic and treatment protocol prescribed for the injury.
(4)For the purposes of this Part, a minor injury includes a symptom or a condition associated with the injury whether or not the symptom or condition resolves within 12 months, or another prescribed period, if any, after the date of an accident.
And who has the burden of proving an injury is minor? Not ICBC. You must prove your injury is not minor if ICBC suggests otherwise with the regulations noting “In civil proceedings relating to an injury, the burden of proof that the injury is not a minor injury is on the party making the allegation that it is not a minor injury“.