Definitions of Minor Injury, Capacity and Incapacity
For accidents that occur on or after April 1, 2019, the following types of injuries are classified as a ‘minor injury’:
- An abrasion, a contusion, a laceration, a sprain or a strain;
- Partial tears to the muscles, tendons or ligaments;
- Pain syndromes;
- A psychological/ psychiatric condition that does not result in an ‘incapacity’;
- A concussion that does not result in an ‘incapacity’;
- A TMJ disorder (jaw injury); and
- A WAD injury (whiplash injury) without a fracture or dislocation of the spine or without clinically significant neurological abnormalities.
At the time of writing the article, the Civil Resolution Tribunal, the adjudication body that is responsible for determining what is a ‘minor injury’, have not had a decision. One cannot predict how narrow or broadly they will be interpreting the ‘minor injury’ definition. Having said that, the potential injuries that may not be covered by the ‘minor injury’ category are:
- If the ‘minor injury’ leads to a ‘serious impairment’
- If the concussion results in ‘incapacity’;
- If the psychological/ psychiatric injury results in ‘incapacity’;
- Disc herniations;
- Dislocated joints;
- Complete tear of ligaments to the knee, hip and/or shoulder;
- Spinal cord injuries;
- Brain injury that is not just a ‘concussion’;
- A fracture of a bone;
- Permanent scarring;
- Fibromyalgia if it is not a pain syndrome;
- Arthritic changes in joints and the spine cause by the accident;
- Tinnitus, hearing loss and other inner ear injuries;
- Vision and eye injuries;
- Dental trauma including chipped teeth;
- Neurological injury including decreased tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable neurological symptoms; and
- Range of motion issues in the neck due to disc disfunction.
If the injury falls within what the legislation deems a ‘minor injury’, you can still avoid the cap of $5500 for pain and suffering if you can show there to be a ‘permanent serious disfigurement’, ‘serious impairment’, or ‘incapacity’.
Concussions and psychological/psychiatric injuries are not a ‘minor injury’ if there is ‘incapacity’ for 16 weeks after the accident. ‘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’:
- 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
- Activities of daily living.
For ‘activities of daily living’, this has been expressly defined in the Regulations to the Insurance Vehicle Act to capture the following activities one must be substantially impaired in or incapacitated from performing:
- Preparing own 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.
If your injuries are only physical in nature and have no psychological/psychiatric component then the period of ‘incapacity’ must be 12 months or more and must be a ‘serious impairment’. To be a “serious impairment’, the impairment must result in the following for at least 12 months:
- A substantial inability to perform the essential tasks of work/school or the activities of daily living, as defined above;
- That the accident was the primary cause of the impairment;
- That the impairment is ongoing; and
- That there is no expectation of substantial improvement.
To be clear, there is a difference in the test for psychiatric/psychological injuries versus physical injuries with the main difference being for psychiatric/psychological injuries, the timeline is 16 weeks whereas with physical injuries, it’s 12 months.
Related Video: How Do I Claim With ICBC That My Case Is Not a “Minor Injury”?
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