After April 1, 2019, all motor vehicle accidents that occur in BC will be subject to a new set of legislation that places a cap on damages for people who suffer “minor” injuries. Crucial to this determination is the definition of minor injury.
According to the BC Government’s new and draconian ICBC legislation, a minor injury includes sprains, strains, general aches and pains, cuts, bruises, road rash, persistent pain, minor whiplash, TMJ disorder, mild concussions, and short-term mental health conditions. They further elaborate that an injury may later be determined not to be minor if it continues to impact your life for more than 12 months and, for concussions or mental health conditions, if those injuries result in a significant impairment beyond 16 weeks.
The actual legal definition of what a minor injury is can be found in the Insurance (Vehicle) Act. Specifically, a minor injury is a physical or mental injury, whether or not chronic, that does not result in serious impairment or permanent serious disfigurement, and is one of the following:
- Abrasion, contusion, laceration, sprain or strain
- Pain syndrome
- Psychological or psychiatric condition
- Concussion that does not result in incapacity
- TMJ Disorder
- Whiplash Associated Disorder
If an injury does fall into one of the above categories it will be classified as a “minor” injury unless it results in a serious impairment. An injury is defined as causing a serious impairment if it is:
- not expected to improve substantially,
- is primarily caused by the accident, and
- results in a substantial inability of the injured person to perform the essential tasks of their employment, related to their education or perform the activities of daily living.
What a “substantial inability” to perform work and education tasks and daily living activities is not known as it is not defined in the legislation. Without the BC Government having defined that phrase, it will be open to ICBC to interpret it however they want until clarification is provided.
Disturbingly, even a permanent and chronic injury that is expected to cause ongoing pain for the rest of someone’s life could still be “minor” and subject to the cap on damages.
It is important to understand that the how we commonly construe these types of injuries is not necessarily how they are defined by the new ICBC legislation. As an example, most people would consider a strain to be a minor pain in their muscles associated with over-stretching or excessive use that quickly resolves. Similarly, most would consider a sprain to be a twisted ligament like what happens when you twist your ankle while running. However, under the new ICBC legislation, a strain is any injury to a muscle and will be designated as minor unless all the fibres of the muscle are torn. Along those same lines, a sprain is any injury to a ligament that will be minor unless all the fibres of the ligament are torn. Therefore, even if someone suffers a near complete tear of any ligament such as a rotator cuff or ACL, that requires surgery to repair, the BC Government’s new ICBC legislation would still label that injury as minor and subject to the cap.
The timing of when the impact of these injuries is assessed will be crucial as the likelihood of an injury improving is often directly related to what treatments have already been attempted and the length of time an individual has been suffering from the injury.
While physicians will still be responsible for diagnosing injuries, it is ICBC that first decides whether they are “minor” or not. If an individual disagrees with ICBC’s assessment that their injury is “minor”, they may make an application to the Civil Resolutions Tribunal for a determination.