Reasonable Doubt: What is “minor” when it comes to ICBC caps?

    1 of 1 2 of 1

      ’Tis but a scratch.

      The Black Knight’s arm was cut right off by King Arthur’s sword. Yet the above statement was how he stubbornly replied in an unforgettable scene from Monty Python and the Holy Grail.

      There are about 900 car accidents each day in B.C. Soon the victims of those accidents may have their injuries treated with the same apathy as did the Black Knight. With a new law coming in, your concussion, posttraumatic stress disorder, or chronic pain may be viewed in the same way as a mild sprain. They could all be deemed “minor” injuries under the law.

      There is a fundamental shift in rights of accident victims in B.C. I first brought this up earlier this year when the Insurance (Vehicle) Amendment Act passed. The act created a class of “minor” injuries. Accident victims whose injuries are deemed minor will have their compensation reduced or “capped”. These are the caps that you’ve probably heard about.

      This cap is on nonpecuniary damages—for intangible losses such as pain and suffering or loss of enjoyment of life. This cap does not apply to other types of damages, such as medical expenses or lost income. Those claims can still be made.

      The cap on nonpecuniary loss for minor injuries will be $5,500 to start and reassessed each year. This cap only applies for accidents beginning on April 1, 2019. For accidents before April 1, 2019, accident victims can largely rely on previous decisions of our courts for guidance on what they are entitled to.

      A minor injury is not a medical term. It was created by the act to set out the scope for the cap. The act’s definition for a minor injury includes abrasions, contusions, lacerations, sprains, and strains. However, if there is serious impairment or permanent serious disfigurement, it’s not considered minor and the cap wouldn’t apply.

      A case that is potentially subject to the new cap laws will likely have one of three outcomes:

      1. There is no cap because the injury is not one of those specified as “minor” under the law.
      2. There is a cap because the injury is one of those specified as “minor” under the law.
      3. There is no cap because there is serious impairment or permanent serious disfigurement.

      There will be plenty of debate on whether there is “serious impairment”. This term may very well determine whether a cap applies for any particular case.

      Since the act came out, lawyers and health-care providers have been left wondering how anticipated regulations would further define terms such as “minor” injuries and “serious impairment”. This month, before the caps even take effect, we got our first regulation: the Minor Injury Regulation. 

      The regulation expands the definition of a minor injury. It does this by narrowly defining “serious impairment”. This means fewer cases of “serious impairment” and more cases falling into the minor-injury category. “Serious impairment” requires:

      • a substantial inability to perform the essential tasks of work/school or the activities of daily living;
      • that the accident was the primary cause of the impairment;
      • that the impairment is ongoing; and
      • that there is no expectation of substantial improvement.  

      The regulation also expands the definition of minor injuries by adding to the list of specified injuries. A minor injury is not just scrapes and sprains. Whiplash is now included. Concussions and psychological conditions are also minor injuries if there is no incapacity beyond 16 weeks and if there is no substantial inability to perform the essential tasks of work/school, or activities of daily living. 

      Classifying psychological conditions and concussions as minor is controversial. These conditions can be difficult to diagnose and their long-term effects are difficult to assess in the timelines of the regulation.

      These changes take effect on April 1, 2019. At that point, legal wrangling will follow. Lawsuits will revolve around the law’s definitions. Look back in this article for the terms that are underlined. You can see just what claimants and ICBC will be arguing over.

      • What is “substantial” when it comes to a substantial inability to work or study?
      • Which tasks are “essential” tasks for work or school?
      • If there are several incidents that contribute to an injury, what makes a cause the “primary” cause?
      • Does “ongoing” impairment mean 24/7 pain?
      • Where is the line between some improvement and substantial improvement?
      • What qualifies as incapacity?

      These questions might seem absurd. But it comes from creating legal definitions and designations for something very subjective: a person’s pain and suffering and the medical opinions of that person’s condition.

      As overly technical and nonsensical as these questions may seem, these arguments will matter to the accident victim. They have real consequences for injured people. If the new law is to accomplish what it was designed to do—help balance ICBC’s books—a significant number of accident victims will likely be labelled with minor injuries. And those victims, who aren’t to blame for the accident, will wonder why their claims have been reduced despite having chronic pain and long-term effects.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer

      Kevin Yee is a personal injury lawyer at Personal Legal Services. He acts for people who have been injured, and he can be reached here. If you have topics that you’d like Reasonable Doubt to cover or if you have a general question for a lawyer, you’re welcome to send him an e-mail.