ICBC Minor Injury Caps – Is Your Claim Capped?

The NDP government introduced legislation that caps (limits) compensation payable by ICBC for pain and suffering for “minor injuries” suffered in motor vehicle accidents occurring on and after April 1, 2019.

An injury will be defined as a “minor injury” if:

• It is included in the list of prescribed injuries; and
• It does not result in a serious impairment or an incapacity.

Prescribed Injuries

The following are prescribed injuries which are defined as minor injuries:

• Whiplash Associated Disorder injury (soft tissue injury) that does not result in an serious impairment
• TMJ disorder (jaw disorder) that does not result in an serious impairment
• Pain syndrome (chronic pain syndrome) that does not result in an serious impairment
• Abrasion, contusion, laceration that does not result in a permanent serious disfigurement
• Psychological or psychiatric condition (depression, anxiety, PTSD, mood disorder, personality disorder, etc) that does not result in an incapacity
• Concussion (head injury) that does not result in an incapacity

If you are diagnosed with an injury that is a “prescribed injury”, then your injury will be considered minor and the ICBC minor injury caps will apply to limit your claim if there is no serious impairment or incapacity or both.

Non-Prescribed Injuries

If you are diagnosed with an injury that is not included in the list of prescribed injuries, then it will not be considered minor and the minor injury caps will not apply to limit your claim for pain and suffering. Examples of non-minor injuries include, but are not limited to, the following:

• Fracture
• Dislocation
• Neurological symptoms (nerve injury)
• Spinal cord injury (injury to vertebrae) which would include a protruding disc , bulged disc, herniated disc
• Joint or ligament tears such as to a shoulder, knee, hip
• Permanent serious disfigurement
• Headache disorder

Incapacity & Serious Impairment

Incapacity only applies to concussions and psychological/psychiatric conditions that do not resolve within 16 weeks (4 months) after it arises and which are the primary cause of a substantial inability to perform:

• essential tasks of the injured person’s employment, training or education despite reasonable efforts to accommodate and the injured person’s reasonable efforts to use those accommodations to continue in the employment/training/education; or
• activities of daily living (i.e. preparing own meals, managing personal finances, shopping for personal needs, performing housework, performing personal hygiene, managing personal medication, using public or personal transportation)

Serious Impairment only applies to soft tissue injuries, TMJ disorders and pain syndromes that do not resolve within 12 months (1 year) and which are the primary cause of a substantial inability to perform:

• essential tasks of the injured person’s employment, training or education despite reasonable efforts to accommodate and the injured person’s reasonable efforts to use those accommodations to continue in the employment/training/education; or
• activities of daily living (i.e. preparing own meals, managing personal finances, shopping for personal needs, performing housework, performing personal hygiene, managing personal medication, using public or personal transportation)

Further, to be a serious impairment, the impairment:

• must have started on the date of the accident and ongoing continuously since that time for at least 12 months (1 year); and
• must not be “expected to improve substantially”.

As it relations to the essential tasks of employment, an incapacity and a serious impairment will be recognized in the following circumstances:

• if you are totally disabled (unable to work at all);
• if you are capable of working only reduced hours; or
• if you are capable of working only light duties (modified duties).

Other Important Issues

Other important issues relating to the ICBC minor injury caps include the following:

• If there is a serious impairment or incapacity to perform the essential tasks of employment, training or education (school), then there must have been a reasonable effort to accommodate on behalf of the employer or school and a reasonable effort by the injured person to use those accommodations to continue in the employment/training/education;
• The burden of proof that the injury is not a “minor injury” is on the injured person meaning that the injury is presumed to be minor unless there is proof otherwise provided to ICBC by the injured person;
• Even if a non-minor injury is sustained in a motor vehicle accident (either in that it is not a prescribed injury or is a prescribed injury with a serious impairment or incapacity lasting longer than the requisite periods of time), ICBC can classify the injury as “minor” if the injured person does not seek proper medical attention or does not follow treatment protocol.

To find out more about whether the ICBC minor injury caps apply to your claim and how they will affect you, contact us for a free initial legal consultation.