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Thanks to legislation brought in by the BC NDP government, people injured in motor vehicle accidents after April 1, 2019 could be subject to the “minor” injury cap on damages. Crucial to this determination is the definition of “minor” injury. If an injury is determined to be minor an individual’s award for pain and suffering is capped at $5,500.
According to the ICBC minor injury legislation, a “minor” injury includes sprains, strains, general aches and pains, cuts, bruises, road rash, persistent pain, minor whiplash, TMJ disorder, mild concussions, and short-term mental health conditions. An injury may later be determined not to be minor if it continues to impact a person’s life for more than 12 months and, in the case of concussions and mental health conditions, result in a significant impairment beyond 16 weeks.
There are risks if an individual agrees that the injury they sustained is minor and settles their claim with ICBC before it has been appropriately investigated by their medical providers. That’s what happened in Naqvi v. ICBC, 2020 BCCRT 995.
In Naqvi, the claimant was injured in a post-April 1, 2019 motor vehicle accident. He suffered an injury to his low back and missed two days of work after the accident. His family doctor assessed him as suffering from soft tissue injuries that would likely resolve in 6 to 8 weeks. Approximately 4 months after the accident in September 2019, Mr. Naqvi settled his claim for $6,890.
In January 2020, after a flare-up of pain it was determined that Mr. Naqvi had actually suffered a disc bulge in his lower back. He applied to the Civil Resolutions Tribunal (CRT) to overturn his settlement with ICBC and make a determination that his injuries were not in fact minor.
The CRT found that it was irrelevant to the settlement that Mr. Naqvi thought his injuries were minor at the time of settlement and later found out they were more severe. The CRT accepted that it was a risk of settling that a person’s injuries could be more severe than they were aware and determined that the settlement was valid and dismissed Mr. Naqvi’s case.
In this case, the irony of ironies was that Mr. Naqvi was actually an ICBC adjuster; a tidbit that wasn’t lost on the CRT:
[22] At all material times, Mr. Naqvi was employed with ICBC as a Senior Bodily Injury Adjuster (now called a Claims Specialist). Mr. Naqvi argues his employment with ICBC left him at a disadvantage in negotiating as he did not want to seem “argumentative” or as a “problem maker”. However, I also note that Mr. Naqvi’s position made him uniquely positioned in that he was experienced in negotiating these settlement agreements from ICBC’s side. In fact, as a senior ICBC employee, Mr. Naqvi would have been very familiar with ICBC’s settlement processes and form of release. ICBC also argues Mr. Naqvi was well aware of the “minor injury” legislation, given his role. I find Mr. Naqvi knew the potential consequences of settling his claim. Mr. Naqvi also does not explain whether he sought legal advice about the settlement prior to signing it. There is no evidence Mr. Naqvi was under any sort of legal or medical incapacity when he signed the settlement agreement. I am satisfied ICBC did not take advantage of Mr. Naqvi.
