Contrary to the 2003 Injury Regulation, supra, the new regulation provides a list of specific ‘minor personal injuries’. They are: abrasions, contusions, lacerations, sprains, strains and whiplash associated disorders, “including any clinically associated sequelae” for each, “that do not result in serious impairment or in permanent serious disfigurement”. A ‘sprain’ is “an injury to … tendons or ligaments” while a ‘strain’ is “an injury to … muscles”. A ‘whiplash associated disorder’ is limited to injuries that (a) do “not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and (b) [do] not exhibit a fracture in or dislocation of the spine”. Arguably, the specific injuries listed in the Injury Regulation, supra, would receive a narrow interpretation (see “Deductibility of Section B Weekly Indemnity Benefits” and “Deductibility of Benefits in Insurance Contracts”).
The injury definition in the regulations reflect the classifications in the Quebec Study Task Force on Whiplash Adjustment Disorder. Namely the classifications are as follows:
- WAD Grade Zero: No complaint or physical signs;
- WAD Grade One: Indicates neck complaints, but no physical signs;
- WAD Grade Two: Indicates neck complaints and musculoskeletal signs (common complaints are a dull ache);
- WAD Grade Three: Neck complaints and neurological signs (symptoms include radiating pain, tingling sensations, pins and needles, and sharp pain);
- WAD Grade Four: Neck complaints and fracture/dislocation.
Under our legislation, WAD Grade Three and Four are over the minor injury cap and the injured person would be entitled to full general damages. If the injured person suffers a WAD One or Two, the general damages would be capped unless the injury substantially interfered with their employability or activities of daily living.
In addition, the the cap does not apply to what is not referred to in the Injury Regulation, supra. Namely, broken bones, broken teeth, concussion, herniated discs, injuries to cartilage, neurological injuries and psychiatric injuries (like post-traumatic stress disorder) are prima facie excluded from the regulation. However, the listed injuries are also excluded if they lead to serious impairments or permanent serious disfigurement. The previously quoted impairment test formulated under the 2003 regulation, with necessary adjustments, likely extends to this aspect of the 2013 regulation.
The 2013 regulation is more explicit as to what is a ‘serious impairment’, referring to “ongoing” “substantial inability to perform” (1) the essential tasks of regular employment, (2) the essential tasks of training or education, or (3) the normal activities of daily living, that are “not expected to improve substantially”. The performance of the employment and education tasks need to account for “reasonable efforts to use any accommodation provided”. The impairment is no longer limited to physical, but extends also to “cognitive function”. Hence, listed injuries that have a significant psychological overlay will be excluded, even if physical functions are restored.