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Permanent Whiplash Injuries – $85,000.00 Awarded for Pain and Suffering

In a previous blog post, the new ICBC minor injury caps were discussed and explained.

The ICBC minor injury caps, which apply to all injuries suffered in motor vehicle accidents after April 1, 2019, limit the amount of compensation for pain and suffering to a maximum of $5,500.00 for “minor “ injuries.

The label “minor” injury cap is extremely misleading. These caps do not just apply to what you and I would consider a minor injury such as one that resolves quickly within a few weeks or a few months with little or no impact on employment and/or lifestyle. Instead, the NDP government defined “minor injuries” to include serious permanent injuries. If you suffered from chronic permanent pain, would you consider this condition to be minor? I doubt it.

Shockingly, chronic whiplash soft tissue injuries are considered minor if there is no serious impairment. A serious impairment is defined as a substantial inability to work (to perform the essential tasks of the injured claimant’s employment) that does not resolve within 12 months. Therefore, if you return to your job (regular hours and regular duties) within 1 year after the motor vehicle accident, your injury will be considered minor and subject to the cap of $5,500.00 even if you suffer from chronic soft tissue pain.

Yes, you read that correctly…the NDP government feel that even if you suffer from permanent chronic pain resulting from a motor vehicle accident, this is minor if you return to work within a year. The cost of living in British Columbia and especially the lower mainland is the highest in Canada and among the highest in the world. Not many people can afford to take an extended leave from work and still meet their financial obligations. This ultimately forces people to return to work too early out of financial necessity. It is unfortunate that the NDP are taking advantage of this with the minor injury caps.

It is equally concerning that the minor injury cap of $5,500.00 is entirely inconsistent with the law.

A recent case (Carson v. Ehman 2019 BCSC 2120) demonstrates just how out of line the minor injury caps are with the law.

In this case, the 22 year-old injured claimant was rear-ended. The impact was sufficient enough to push her across the intersection and into a ditch. She suffered soft tissue injuries to her neck, upper back and shoulder in addition to headaches. Despite being in pain, she returned to work (office job) within a week. Her injuries did improve over time, but they did not resolve despite attending different forms of rehabilitation therapy. Her recovery plateaued within approximately 1 year. At the time of trial, she had difficulty sitting for prolonged periods, she was distracted by pain and she had trouble concentrating. Her injuries continued to impact her both at work and at home. She was furthermore unable to enjoy leisure activities in the same way as before.

The medical experts testified that the injured claimant was left with daily chronic soft tissue pain. In other words, she was expected to live with chronic pain indefinitely into the future.

The trial judge, based on a review and consideration of the law, awarded the injured claimant $85,000.00 for pain and suffering.

This case is an excellent illustration of just how outrageous the minor injury caps are. If this same injured claimant had instead been injured in a motor vehicle after April 1, 2019 when the minor injury caps came into effect, then she would have been limited to a maximum of $5,500.00 for pain and suffering ($80,000.00 less than established law) because she returned to work within a year and, therefore, there was no serious impairment.

Tags: Definition of "minor injury", Minor Injury, Minor Injury Caps

One responsePermanent Whiplash Injuries – $85,000.00 Awarded for Pain and Suffering

  • Bea

    January 21, 2020 4:06am

    So I realize this $5500 cap is in effect, but can this be fought in court or is it worth it? Or is that out of the question now with the new CAP law in place? Both my daughter and I were in an accident over a month ago, not at fault. I have suffered pelvis joint injuries, neck and back issues, my pelvis being the worst, no broken bones. My daughter suffers with severe neck trauma and concussion symptoms.as well as back pain! I was looking for work after being on medical EI which ran out mid Dec, but being unable to sit or stand for long periods and the pain, Im unsure what to do. ICBC said I should find an office job. So is my only option now, to settle for the CAP amount only?

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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