In British Columbia, the Insurance (Vehicle) Act and the accompanying Minor Injury Regulation define a “minor injury” for motor vehicle accidents occurring between April 1, 2019, and May 1, 2021. This classification includes injuries such as sprains, strains, mild concussions, and certain psychological conditions that do not result in serious impairment or incapacity. For these minor injuries, compensation for pain and suffering is capped at $5,500, with adjustments for inflation in subsequent years. However, injuries leading to significant incapacity, permanent serious disfigurement, or those causing substantial inability to perform essential tasks of employment, education, or daily living for an extended period are excluded from this cap.
The case of Chua v. Gessaroli, 2025 BCCRT 207 involved a rear-end motor vehicle accident on January 10, 2020. She suffered from a whiplash associated disorder (WAD) that resulted in chronic pain and neurological symptoms, arguing that her injuries exceeded the definition of a minor injury under the Insurance (Vehicle) Act (IVA) and the Minor Injury Regulation (MIR). The primary issue was whether her injuries were considered minor under the statutory definition.
Under MIR section 4, the burden of proof rests with the claimant to demonstrate, on a balance of probabilities, that their injury is not minor. To do so, claimants must provide medical evidence that establishes the nature and extent of their injuries and demonstrates that they meet the statutory criteria for serious impairment or exhibit clinically relevant neurological symptoms.
Initial Medical Reports
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- Family physician Dr. Nima Sakian diagnosed bilateral whiplash and noted functional limitations.
- Physiotherapist Allison Yu and chiropractor Murray Alexander diagnosed soft tissue injuries and WAD.
Expert Opinion from Dr. Kshitij Chawla (Pain Medicine Specialist)
The expert identified chronic widespread pain, upper and lower extremity paresthesia, hyperalgesia, and allodynia as resulting from WAD. Explained that these symptoms indicated peripheral and central sensitization, leading to neurological dysfunction. Concluded that Mrs. Chua’s neurological symptoms were demonstrable and clinically relevant, bringing her injury outside the minor injury cap.
Tribunal Findings
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Minor Injury Determination:
- The tribunal found that Mrs. Chua’s central sensitization and related symptoms (allodynia and hyperalgesia) were extensions of her WAD rather than a separate pain syndrome.
- Given that her WAD exhibited demonstrable and clinically relevant neurological symptoms, it was determined not to be a minor injury under IVA section 101 and MIR.
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Compliance with Treatment and Deemed Minor Injury:
- The tribunal assessed whether Mrs. Chua failed to seek diagnosis or comply with treatment, which could have led to her injury being deemed minor under IVA section 101(2).
- It was determined that she sought diagnoses and complied with treatment to the best of her ability, with COVID-19-related disruptions providing a reasonable excuse for any treatment gaps.
- Consequently, her injury was not deemed minor under the statute.
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Serious Impairment Analysis:
- If the tribunal had found that her WAD did not inherently meet the criteria for exemption from the minor injury cap, it would still have qualified based on serious impairment.
- The evidence showed that her condition substantially impaired her ability to perform activities of daily living, including cooking, cleaning, and shopping, which met the statutory criteria for serious impairment under MIR section 3.
By meeting these evidentiary requirements, this claimant successfully established that her injuries were not minor, allowing her to pursue damages beyond the minor injury cap.
It’s important to note that for accidents occurring after May 1, 2021, the Minor Injury Regulation no longer applies, and injuries are compensated under ICBC’s model, which, in most cases, does not provide compensation for pain and suffering.
