Tribunal rules South Okanagan's man's chronic pain a 'minor injury'
It was a week before Christmas 2020 when South Okanagan resident Todd Gillard was hit head-on by an oncoming vehicle while driving in Penticton.
It was 8 a.m. and Gillard was on his way to work when a vehicle lost control on black ice hitting him and pushing his truck over an embankment.
However, four-and-a-half years after the accident he's been left high and dry by ICBC.
"We haven't seen a penny from them to date... nothing to date, nothing," Gillard told iNFOnews.ca.
Gillard said he worked in construction building custom homes, but the whiplash he sustained damaged both his shoulders and his wrists.
"I haven't really worked since that date... no matter what I seem to do for exercise and rehab and stuff, they're just not coming back the same," he said.
The full details of Gillard's injuries are given in a June 9 BC Civil Resolution Tribunal decision where his lawyer argued Gillard's injuries weren't "minor" under the province's legislation.
The province's "minor injury" regulation came into place on April 1, 2019, and capped claims that were classified as "minor injuries" to $5,500.
With the new legislation, the province drew up a list of what it considered a "minor injury," although some don't sound that minor. Cuts, abrasions and sprains were all on the list along with pain, concussions, whiplash, and many others.
One BC law firm calls it the most "restrictive and complicated" definition of "minor injury" in Canada.
Anyone who wants to appeal ICBC's determination of minor injuries is left to take their case to the Civil Resolution Tribunal, although not many do.
So far this year, only 17 people have challenged ICBC at the Tribunal and only three were successful. Four individuals had a partial win where the Tribunal ruled some of their injuries weren't classified "minor" but the majority lost.
In Gillard's case, because he wasn't successful he was left to pay $4,600 for an independent medical report he'd submitted as evidence.
The decision said following the crash Gillard's doctor diagnosed a type two whiplash-associated injury to his cervical spine and upper shoulders with accompanying cervicogenic headaches.
Without presenting any evidence to back up its claim, ICBC argued Gillard's shoulder pain was not caused by the collision.
However, the Tribunal ruled causation wasn't necessary to determine whether the injuries were minor or not.
The sticking point for the Tribunal is whether Gillard's injuries are likely to "substantially" improve.
The Tribunal said the Minor Injury Regulation law required an impairment not to be expected to improve "substantially."
Gillard's doctor said there were "too many unknowns" to say if Mr. Gillard had reached his "maximal medical recovery." The doctor went on to say with further investigation including X-rays, and possibly an ultrasound and MRI, there may be interventions and therapy available to decrease his pain and improve his function.
"I note that Dr. McCann said it was unlikely that those treatments would result in a complete resolution of Mr. Gillard’s shoulder pain, neck pain, or headaches," the Tribunal ruled. "However, the Minor Injury Regulation requires that Mr. Gillard prove the injuries are unlikely to improve substantially, and not that they are unlikely to resolve completely."
The Tribunal ruled that if Gillard underwent an ultrasound and MRI and completed recommended interventions and therapies then his situation may improve.
As he hadn't done that, he couldn't prove that his injuries were "unlikely to substantially improve."
With that, the Tribunal dismissed his claim, saying that his injuries, which have been causing him pain for four and a half years, were no more than "minor injuries."
"It's the same old story... the little guy gets treated poorly by large corporations," Gillard said.
Gillard said he didn't know where he would go from here but would be speaking to his lawyer again.
The Tribunal's decision, leaves him $4,600 out of pocket for the medical report, along with $25 in fees, and still suffering from pain.
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