What is a Minor Injury

The new legislation is now a real incentive for claimants to be off work or school for an extended period to escape the “minor injury” classification.

The use of the term “minor injury” is extremely misleading as many serious and long-lasting injuries are captured within the definition. Based on Bill 20 and the Minor Injury Regulations, a “minor injury” is broadly defined to capture most physical and mental injuries that one could suffer in a car accident. It is estimated that over 90% of all injury claims arising from accidents on or after April 1, 2019 will be initially classified as “minor” by ICBC unless the Civil Resolution Tribunal (the “CRT”) generously interprets the legislation.

The following types of injuries are classified as a “minor injury”:

  1. An abrasion, a contusion, a laceration, a sprain or a strain;
  2. Partial tears to the muscles, tendons or ligaments;
  3. Pain syndromes;
  4. A psychological/ psychiatric condition that does not result in an “incapacity”;
  5. A concussion that does not result in an “incapacity”;
  6. A TMJ disorder (jaw injury);
  7. A WAD injury (whiplash injury) without a fracture or dislocation of the spine or without clinically significant neurological abnormalities; or
  8. Something that is “a prescribed injury or an injury in a prescribed type or class of injury

The catch all phrase “a prescribed injury or an injury in a prescribed type or class of injury” was used by the government in November 2018 to introduce a broader term for “minor injury” through Regulation and not through the Legislative Assembly. In that regard, TMJ disorder, WAD injury, partial tears, concussions and psychiatric/ psychological conditions were all added to the definition in the most recent Regulations.

The potential injuries that may not be covered by the “minor injury” category include:

  1. Disc herniations;
  2. Shoulder separation;
  3. Complete tear of ligaments to the knee, hip and/or shoulder;
  4. Spinal cord injuries;
  5. Brain injury that is not just a concussion (concussion is not defined in the Regulations);
  6. A concussion that results in incapacity;
  7. A psychological/ psychiatric injury that results in incapacity;
  8. A bone fracture;
  9. Permanent scarring;
  10. Fibromyalgia if it is not a pain syndrome;
  11. Dislocated fingers, wrists and shoulders;
  12. Arthritic changes in joints and the spine cause by the accident;
  13. Vestibular mismatch;
  14. Tinnitus and ear issues;
  15. Discogenic Pain;
  16. Dizziness;
  17. Vertigo
  18. Hearing loss and ear issues;
  19. Vision and eye injuries;
  20. Dizziness and inner ear injuries;
  21. Headache conditions not attributable to a pain syndrome;
  22. Pelvic ring dysfunction;
  23. Zygapophyseal (Z-joint) injury;
  24. Dental trauma including chipped teeth;
  25. Neurological injury including decreased tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable neurological symptoms; and
  26. Range of motion issues in the neck due to disc disfunction.

The above list is not yet proven to be outside the “minor injury” category, so time will tell if the CRT is Plaintiff friendly or ICBC friendly on the interpretation of the “minor injury” definition. Also, expect the government to try to eliminate “loopholes” as they are created by CRT decisions.

If you have one of the above injuries that fall squarely within the “minor injury” definition, all may not be lost, as you may still be able to avoid the cap. However, to do so, you will need to prove that you either have a “permanent serious disfigurement”, “serious impairment”, or “incapacity”.

  1. Definitions

Permanent serious disfigurement” means a permanent disfigurement that significantly detracts from the claimant’s “physical appearance”. One example is a contusion or abrasion that results in permanent scarring.

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

Again, the government can restrict these definitions in the future by introducing further Regulations.

The following are some of the definitions of injuries that can be deemed a “minor injury”:

“TMJ disorder” is an “injury that involves or surrounds the temporomandibular joint”;

“Sprain” “means an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn”.

“Strain” “means an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn”.

“Pain syndrome” “means a syndrome, disorder or other clinical condition associated with pain, including pain that is not resolved within 3 months.”

“WAD injury” means a whiplash injury other than one involving one or both of the following:

  1. Decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms; or
  2. A fracture to or dislocation of the
2. What is Incapacity?

To lessen the blow regarding capping concussions and psychological/ psychiatric injuries, the definition of “incapacity” is easier to meet than “serious impairment”.

“Incapacity” means a physical or mental incapacity that is not resolved within 16 weeks after it arises and is the “primary cause of a substantial inability of the claimant to perform”:

  1. Essential tasks of the claimant’s employment or training or education, enrolled in or accepted into at the time of the accident, despite reasonable efforts to accommodate and the claimant’s reasonable efforts to use those accommodations to continue in the employment/training/education; or
  2. Activities of daily living.

For “activities of daily living”, this has been expressly defined in the Regulations to capture the following activities one must be substantially impaired in or incapacitated from performing:

  1. Preparing own meals;
  2. Managing personal finances;
  3. Shopping for personal needs;
  4. Using public or personal transportation;
  5. Performing housework to maintain a place of residence in acceptable sanitary condition;
  6. Performing personal hygiene and self-care; and
  7. Managing personal medication.

In other words, if a claimant suffers a concussion or psychological/ psychiatric injury and is off work or school for 16 weeks or unable to perform activities of daily living during the first 16 weeks, the claim falls outside the “minor injury” definition. You can be rest assured ICBC adjusters will be pushing hard to get these claimants to return to work or activities before the 16-week threshold is met.

3. What is a Serious Impairment?

The test for “serious impairment” is far more restrictive than “incapacity”. Rather than a 16-week threshold for the injuries to be resolved as required in the definition of “incapacity”, the time line for the injuries to be resolved is 12 months. In addition, to have a “serious impairment”, the claimant must have a “substantial inability” to perform:

  1. Essential tasks of the claimant’s employment or training or education, enrolled in or accepted into at the time of the accident, despite reasonable efforts to accommodate and the claimant’s reasonable efforts to use those accommodations to continue in the employment/training/education; or
  2. Activities of daily

For “activities of daily living”, this has been expressly defined in the Regulations to capture the following activities one must be substantially impaired in or incapacitated from performing:

  1. Preparing own meals;
  2. Managing personal finances;
  3. Shopping for personal needs;
  4. Using public or personal transportation;
  5. Performing housework to maintain a place of residence in acceptable sanitary condition;
  6. Performing personal hygiene and self-care; and
  7. Managing personal medication.

Further, to be a “serious impairment”, the impairment must be:

  1. Primarily caused by the accident, and
  2. Ongoing since the

Finally, to satisfy the definition, the resulting impairment must not be “expected to improve substantially.”

To summarize, “serious impairment” requires the following for 12 months after the accident:

  1. A substantial inability to perform the essential tasks of work/school or the activities of daily living;
  2. That the accident was the primary cause of the impairment;
  3. That the impairment is ongoing; and
  4. That there is no expectation of substantial improvement.
4. Failure to Mitigate

Even if the injury satisfies the above requirements and should fall outside the “minor injury” definition, ICBC can still say the injury is minor if you cannot prove you followed the prescribed treatment protocol. This scheme creates a reverse onus situation, because previously ICBC had to prove that you failed to mitigate the damages by not following recommended treatment. Thus, a claimant is required to follow all recommended treatment or face the prospect of a denial from ICBC.

  1. Burden of Proof

The burden of proving that the injury is not a ‘minor injury’ is on the claimant. This burden of proof test means the injury is presumed to be minor unless proven otherwise. ICBC can simply label the injury as “minor” and adjust the file accordingly leaving the claimant to take positive steps to reverse the decision.

Since an intended purpose of the no-fault scheme is to move claimants away from legal representation, the expectation is ICBC will be able to keep many files inside the cap that should otherwise be excluded as it is doubtful many self represented claimants will have the knowledge, experience and financial ability to dispute a “minor injury” classification. Lawyers are unlikely to accept cases where the chances of the injuries falling outside the “minor injury” definition are low and there is little or no wage loss to recover.

  1. Summary

In summary, the “minor injury” definition will capture almost all injury claims that occur on or after April 1, 2019. Unless the injury is clearly outside the definition, such as a broken leg, or spinal cord injury, the claim will likely be automatically classified as a “minor injury” by ICBC, with you bearing the burden of proving otherwise.

With any major shift in legislation limiting an injured victim’s right to compensation, you can expect a lot of legal wrangling over some of the new legal terminology set out in the Legislation. Some new legal terms that will have to be litigated include:

  1. What is “significantly detracts from the claimant’s physical appearance” mean in the context of proving a “permanent serious disfigurement” (a small scar or an unsightly deformity?);
  2. What is “substantial” when it comes to a substantial inability to work or study;
  3. Which tasks are “essential” tasks for work or school in addressing substantial inability to work or study;
  4. What is “reasonable efforts to accommodate” and “reasonable efforts to use those accommodations” in the context of your inability to return to work or school;
  5. Do you have to be limited from all “activities of daily living” or just some of the tasks to meet the “serious impairment” definition;
  6. If there are several causes of an injury, such as pre-existing health issues or an intervening event, what makes the accident the “primary” cause that is required to prove “serious impairment” and/or “incapacity”;
  7. Does “ongoing” impairment, as required to show “serious impairment” and/or “incapacity” mean 24/7 pain or something less; and
  8. Where is the line between someimprovement and substantial improvement in determine a “serious impairment”;

The one thing that is certain with the new legislation is there is now a real incentive for claimants to be off work or school for an extended period to escape the “minor injury” classification. The legislation has incentivised the “disability role”.