Allison Harris – February 2021
Minor Injury Update…. Cap on Soft Tissue Injuries set at $8,937 for 2021
If you have been injured as a result of a motor vehicle accident, you are entitled to be compensated for the impact of those injuries on your life. The purpose of a personal injury claim is to put you back in the place you would have been had the accident not occurred – monetarily. You will be entitled to compensation for a variety of things including the pain and suffering you have experienced (also known as “general damages”), any past and future income loss and medical expenses, and the impact of the injuries on your ability to perform your household activities (also known as “loss of valuable services”). When the time comes to settle your motor vehicle accident injury claim, the insurance adjuster may say you have a “minor” injury. What does that mean and is it accurate?
The Nova Scotia government has placed a limit or “Cap” on the amount of money that an accident victim can recover for pain and suffering for injuries that meet the definition of “minor” arising from a motor vehicle accident. The Cap amount for pain and suffering/general damages is adjusted for inflation in accordance with the Consumer Price Index at the beginning of every year, with the 2021 adjustment bringing the cap amount to $8,937. Since 2010, the Cap has been adjusted as follows:
There are 2 important things to know about the Cap:
- The Cap amount is tied to the year of your accident. Therefore, if your accident happened in 2017 and you have a “minor” injury, then you would be entitled to $8,486 for pain and suffering. If your accident happened in 2021 and you have a “minor” injury, then you would be entitled to $8,937.
- The minor injury Cap only applies to pain and suffering and does NOT impact your entitlement to other heads of damages. Also note that the minor injury Cap does not apply to injuries sustained in an accident which did NOT involve a vehicle, for example from a slip and fall.
So, what is a minor injury?
The definition of a “minor” injury is found in the Nova Scotia Insurance Act. If your accident injury is a strain, sprain or Grade 1 & 2 whiplash (WAD) which does not result in a serious impairment of a physical or cognitive function, your entitlement to pain and suffering may be captured by the minor injury limit. Injuries like a concussion, fracture, TMJ injuries involving the joint or other cartilage, burns, amputations, scarring and disfigurement and those involving mental health diagnoses arising from accident injuries are NOT minor.
The definition of “serious impairment” is relevant to the determination of whether your injury is “minor”. Regulations under the Insurance Act define serious impairment as one which considers whether your sprain, strain or whiplash injury results in a substantial inability to perform your work, education or activities of daily living.
If your accident injuries include a “minor” injury and a non-minor injury (for example, a concussion), then you can receive minor injury damages, plus additional damages for the concussion injury stacked on top of each other.
Determining whether an injury meets the definition of “minor” can involve a complicated legal analysis. Simply because an adjuster tells you your injuries are “minor” does not mean they are. The car accident lawyers at MDW Law would be pleased to meet with you for a free consult to review the specifics of your situation and to provide more detail on the damages you should expect to receive.
Illustrative Scenario #1:
Suzie suffered a whiplash grade II injury in a 2018 motor vehicle accident. Her injury largely resolved in 8 months with regular physio and massage. She missed 2 weeks of work immediately following the accident and had to hire babysitters to care for her 2 toddlers so she could attend treatment. She still has some limitations with her housekeeping and no longer mows the lawn or shovels the driveway. She has been offered $7,500 for damages by the insurance company.
Assuming for the sake of this example that Suzie has a “minor” injury, please note the following:
- Suzie’s accident was in 2018 so her general damage entitlement should be $8,579 and not $7,500 (the 2010 value);
- Her damages should include money to compensate her for all of her income loss;
- Her damages should also include money to reimburse her for the cost of the babysitters she had to hire to attend treatment; and
- She is also likely entitled to compensation for the impact of the injuries on her ability to do her housekeeping.
The total of these amounts will exceed the amount she has been offered.
Illustrative Scenario #2:
In a 2019 car accident, John sustained a concussion. With active treatment, his concussion resolved within 4 months and he was able to resume his work and extracurricular activities. He has been offered $8,768 for his “minor” injury damages.
John’s concussion does not meet the definition of a “minor” injury so his entitlement to general damages is NOT limited to the Cap on general damages of $8,768 in 2019.
Illustrative Scenario #3:
Noah sustained a whiplash injury following a slip and fall on a patch of ice in 2020. He had extensive physio but was able to continue working although he continued to have persistently troubling issues with his neck which limited him in playing hockey and housekeeping. He has been offered $8,911 for his pain and suffering on the basis of the “minor” injury Cap.
Noah’s injuries did not arise from a motor vehicle accident. As such, his whiplash injury is NOT covered by the “minor” injury Cap on general damages.
If you have any questions about whether your accident injuries are minor or not, then call 902.422.5881 to book a complimentary consultation with one of our personal injury lawyers to review the specifics of your case.