Can’t work as mechanic with chronic injuries but CRT rules them minor

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A man whose car-crash injuries prevent him from working as a mechanic can’t sue the at-fault driver for pain and suffering because his injuries were ruled to be minor by the B.C. civil resolution tribunal.

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Hasan Osman had shoulder pain, headaches, whiplash-related neck pain, and a strained or sprained chest and lower back after a 2019 collision, according to a decision by adjudicator Amanda Binnie.

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But even though she accepted his injuries were caused by the accident and are chronic, she said they’re legally minor under B.C.’s car insurance law.

“It is truly an appalling and concerning decision,” said Michael Elliott, a personal injury lawyer and president of the B.C. Trial Lawyers Association of B.C.

“Even though it was proven the plaintiff (Osman) could not do a job he intended to do because of accident-related injuries, his injuries were still deemed minor,” because he wasn’t working in that field at the time of the crash, he said in an email.

Osman, then 24, was injured in a collision with a truck driven by Bradley James Thompson.

The accident happened on Dec. 2, 2019, eight months after B.C. changed the law that limited — but didn’t yet ban — the filing of lawsuits against an at-fault driver. B.C.’s no-fault insurance program took effect in 2021.

At the time of the accident, regulations required those hurt in crashes to prove their injuries weren’t minor before they could sue for losses.

The quasi-judicial civil resolution tribunal is the body that assesses severity of injuries, and cases like Osman’s, from 2019 to 2021, now show up regularly in the tribunal’s decisions.

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Osman, now 29, enrolled in and completed BCIT’s two-year automotive services technician program, which trains students to repair cars, the decision said.

But he struggled with the course and couldn’t work in car repair, a decision supported by reports from his physiatrist — a doctor who treats a range of medical conditions that affect the brain, spinal cord, muscles, tendons, nerves and bones, and helps with rehabilitation — and his exercise physiologist who both found Osman is “restricted from a career as an automotive technician because of his injuries.”

But each of his five injuries are categorized as minor under the rules unless they result in a serious impairment, according to Binnie’s ruling.

For an impairment to be considered serious it has to last more than 12 months, be primarily caused by the accident, be continuing and not be expected to substantially improve, she said. And it also had to result in a “substantial inability” by the injured party to perform essential tasks of regular employment or an education program and of activities of daily living.

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ICBC didn’t dispute Osman’s injuries were caused by the accident. But it also argued Osman wasn’t working at the time of the accident, so he has “not proved any substantial inability to complete the essential tasks of his employment,” the decision said.

Binnie accepted that Osman’s injuries were caused by the crash and that they have been continuing. She also agreed that “the applicant would have difficulty with a career as an automotive technician.”

But as Osman was “not employed at the time of the accident, I find he did not have regular employment. It follows that he could not be substantially unable to complete the essential tasks of employment where he was not employed.”

She also found that Osman failed to provide evidence how his injuries affected his ability to perform daily tasks, such as meal preparation and housework.

Osman “has not proven his injuries are not minor injuries” under the Insurance Vehicle Act and therefore would be subject to a capped award for pain and suffering of $5,500, Binnie wrote. He would also be eligible for income replacement benefits for any income he lost because of the accident.

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But Binnie said except for some minimal earnings in 2018, Osman’s main source of income before the accident was social assistance.

Elliott said Osman has the right to ask a B.C. Supreme Court judge to review the tribunal decision and he is hopeful. But he said there’s a “high hurdle” to have it overturned because judges don’t interfere with a tribunal adjudicator’s reasons unless they’re “patently unreasonable.”

Elliott said he would like to see the return of injured victims’ right to sue for damages because it’s a “marked improvement over the brutally unfair no-fault system currently,” which doesn’t offer plaintiffs that right.

Osman’s lawyer didn’t return a request for comment.

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