The No Fault system introduces the concept of “minor injuries”. The word “minor” implies an injury that less important, serious, or significant. Synonyms include “slight, small, inconsequential, insignificant”. The critical question is, what does the legislation define as a “minor” injury and why does it matter? It matters because accident victims with a “minor injury” will recover no more than $5,500 for pain and suffering and they’ll be unable to recover any other losses in court. Unfortunately, the legislation defines a “minor injury” to include conditions that can cause a lot of major problems: a minor injury is “a physical or mental injury, whether or not chronic, that does not result in a serious impairment or a permanent serious disfigurement”.
The Insurance (Vehicle) Act and Regulation, operating together, deem the following injuries to be “minor”:
- an abrasion, contusion, laceration;
- a sprain, which includes “an injury to one or more ligaments unless all the fibres of at least one of the injured ligaments are torn”;
- a strain, which includes “an injury to one or more muscles unless all the fibres of at least one of the injured muscles are torn”;
- a pain syndrome, which includes a “syndrome, disorder or other clinical condition associated with pain, including pain that is not resolved within 3 months”;
- a psychological or psychiatric condition, which includes a clinical condition that “is of a psychological or psychiatric nature and does not result in incapacity”;
- “a concussion that does not result in an incapacity;
- a TMJ disorder, which includes “an injury that involves or surrounds the temporomandibular joint”;
- a WAD injury, which is defined as a “whiplash disorder other than one that has either:
- decreased or absent deep tendon reflexes, deep tendon weakness or sensory deficits, or other demonstrable and clinically relevant neurological symptoms; or
- a fracture to or dislocation of the spine”.
In order for the claimant not to have a “minor injury”, their injuries must have continued for at least 12 months and they must experience a serious impairment, which:
- results in the substantial inability of the claimant to perform
- the essential tasks of the claimant’s regular employment, despite efforts at accommodation;
- the essential tasks of the claimant’s training, despite efforts at accommodation; or
- the claimant’s activities of daily living;
- the impairment is primarily caused by the accident and is ongoing since the accident; and
- the impairment is not expected to improve substantially.
If a person’s injury initially appears minor but he/she doesn’t recover, they will have to prove that treatment would not have made a difference in their recovery. If they are unable to prove this, then even if they are incapacitated, their claim must be treated as a minor injury.
Some of the “minor” injuries listed above refer to “incapacity”, which is separately defined as an injury that doesn’t resolve within 16 weeks and which is the primary cause of a substantial inability to perform the essential tasks of the claimant’s work, training or activities of daily living.
Bottom line: you will be deemed to have a “minor injury” unless you can prove you’re incapacitated, disfigured or disabled.