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Part II .

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Automobile Accident Minor Injury Regulations

made under

Section 5 of the

Insurance Act

R.S.N.S. 1989, c. 231

O.I.C. 2010-254 (June 22, 2010, effective July 1, 2010), N.S. Reg. 94/2010

as amended by O.I.C. 2013-21 (January 22, 2013, effective April 1, 2013), N.S. Reg. 22/2013

Citation

1 These regulations may be cited as the Automobile Accident Minor Injury Regulations .

Definition of “Act”

2 In these regulations, “Act” means the Insurance Act .

Part 1: Accidents Occurring before April 28, 2010

Application of

Part 1

3 In accordance with subsection 113B(9) of the Act, this Part does not apply to any action

for damages with respect to an incident that occurs on or after April 28, 2010.

Definitions for

Section 113B of Act and this

Part

(1) In

Section 113B of the Act and this Part,

“non-monetary loss” means any loss for which compensation would be payable, but

for the Insurance Act , that is not an award for

(

i) lost past or future income,

(ii) diminution or loss of earning capacity, and

(iii) past or future expenses incurred or that may be incurred

as a result of an incident, and for greater certainty excludes valuable services such as

housekeeping services;

“personal injury” does not include

(

i) a coma resulting in a continuing serious impairment of an important

bodily function,

(ii) chronic pain that

(

A) is diagnosed and established as chronic pain by a medical specialist

appropriately trained in the diagnosis and management of pain

disorders,

(

B) is a direct result of a physical injury sustained in the motor vehicle

accident with respect to which the claim is brought,

(

C) results in a continuous serious impairment of an important bodily

function, and

(

D) is moderately severe or severe pain, as classified in the American

Medical Association Guides to the Evaluation of Permanent

Impairment , 5th edition,

(iii) a burn resulting in serious disfigurement,

(iv) an amputation of a major limb;

“regular employment” means the essential elements of the activities required by the

person’s pre-accident employment;

“resolves” means

(

i) does not cause or ceases to cause a serious impairment of an important

bodily function which results from a continuing injury of a physical

nature to produce substantial interference with the person’s ability to

perform their usual daily activities or their regular employment, or

(ii) causes a serious impairment which results from a continuing injury of a

physical nature to produce substantial interference with a person’s ability

to perform their usual daily activities or their regular employment where

the person has not sought and complied with all reasonable treatment

recommendations of a medical practitioner trained and experienced in

the assessment and treatment of the personal injury;

“substantial interference” means, with respect to a person’s ability to perform

their regular employment, that the person is unable to perform, after reasonable

accommodation by the person or the person’s employer for the personal injury

and reasonable efforts by the injured person to adjust to the accommodation,

the essential elements of the activities required by the person’s pre-accident

employment;

“usual daily activities” means the essential elements of the activities that are

necessary for the person’s provision of their own care and are important to

people who are similarly situated considering, among other things, the injured

person’s age.

(2) For the purposes of subsection (1), “employment” includes self-employment.

Total amount recoverable for non-monetary losses

5 For the purpose of subsection 113B(4) of the Act, the total amount recoverable as damages

for non-monetary losses of a plaintiff for all minor injuries suffered by the plaintiff as a

result of an incident must not exceed $2,500.

Onus to prove injury not minor injury

6 On a determination of whether an injury is a minor injury under subsection 113B(6) or

(8) of the Act, the onus is on the injured party to prove, based upon the evidence of one or

more medical practitioners trained and experienced in the assessment and treatment of the

personal injury, that the injury is not a minor injury.

Part 2: Accidents Occurring on or after April 28, 2010

Application of

Part 2

7 In accordance with subsection 113E(2) of the Act, this Part applies to any accident claim

with respect to an accident that occurs on or after the April 28, 2010.

Definitions for

Section 113E of the Act and this

Part

(1) In this Part, “minor injury amount” means the total amount recoverable under

Section 13 as damages for non-monetary loss for all minor injuries suffered by a

claimant as a result of an accident.

(2) In

Section 113E of the Act and this Part,

“serious impairment”, in respect of a claimant, means an impairment of a physical or

cognitive function that meets all of the following:

(

i) the impairment results in a substantial inability to perform any or all of

the following:

(

A) the essential tasks of the claimant’s regular employment,

occupation or profession, despite reasonable efforts to

accommodate the claimant’s impairment and the claimant’s

reasonable efforts to use the accommodation to allow the claimant

to continue the claimant’s employment, occupation or profession,

(

B) the essential tasks of the claimant’s training or education in a

program or course that the claimant was enrolled in or had been

accepted for enrolment in at the time of the accident, despite

reasonable efforts to accommodate the claimant’s impairment and

the claimant’s reasonable efforts to use the accommodation to

allow the claimant to continue the claimant’s training or education,

(

C) the normal activities of the claimant’s daily living,

(ii) the impairment has been ongoing since the accident, and

(iii) the impairment is expected not to improve substantially,

“sprain” means an injury to one or more tendons, to one or more ligaments, or to

both tendons and ligaments;

“strain” means an injury to one or more muscles;

“whiplash-associated disorder injury” means a whiplash-associated disorder other

than one that exhibits one or all of the following:

(

i) neurological signs that are objective, demonstrable, definable and

clinically relevant,

(ii) a fracture to the spine or a dislocation of the spine.

Injuries must be assessed separately

9 If a claimant suffers more than one injury as a result of an accident, each injury must be

assessed separately to determine whether the injury is or is not a minor injury.

Injury must be primary contributing factor

10 For a sprain, strain or whiplash-associated disorder injury to be considered to have resulted

in a serious impairment, the sprain, strain or whiplash-associated disorder injury must be

the primary factor contributing to the impairment.

Determination of minor injury

(1) The determination as to whether an injury suffered by a claimant as a result of an

accident is or is not a minor injury must be based on the following:

(

a) a determination as to whether the injury is a sprain, strain or whiplash-associated disorder injury; and

(

b) if the injury is determined to be a sprain, strain or whiplash-associated disorder

injury, a determination as to whether the sprain, strain or whiplash-associated

disorder injury results in a serious impairment.

(1A) For the purpose of clause (1)(a), the determination as to whether an injury is a sprain,

strain or whiplash-associated disorder injury must be based on an individual

assessment of the claimant in accordance with the Automobile Accident Diagnostic

and Treatment Protocols Regulations made under the Act.

Subsection 11(1A) added: O.I.C. 2013-21, N.S. Reg. 22/2013.

(2) For the purpose of clause (1)(b), the determination as to whether a sprain, strain or

whiplash-associated disorder injury results in a serious impairment must take all of

the following into account

(

a) the claimant’s pre-existing medical history;

(

b) the matters referred to in subclause (

i) of the definition of “serious impairment”

in subsection 8(2) that relate to the claimant.

Treatment not followed

(1) If

(

a) a claimant suffers a sprain, strain or whiplash-associated disorder injury as a

result of an accident;

(

b) the claimant has, without reasonable excuse, not sought and complied with

diagnosis and treatment under the Automobile Accident Diagnostic and

Treatment Protocols Regulations made under the Act; and

Clause 12(1)(

b) amended: O.I.C. 2013-21, N.S. Reg. 22/2013.

(

c) the sprain, strain or whiplash-associated disorder injury results in a serious

impairment,

the sprain, strain or whiplash-associated disorder injury is a minor injury unless the

claimant establishes that the sprain, strain or whiplash-associated disorder injury

would have resulted in a serious impairment even if the claimant had sought and

complied with diagnosis and treatment in accordance with the regulations referred to

in clause (b).

Subsection 12(1) amended: O.I.C. 2013-21, N.S. Reg. 22/2013.

(2) Subsection (1) does not apply to a claimant who is a person described in provision

(3) under the heading “Subsection 3 - Special Provisions,

Definitions and Exclusions

of this Section” in the Automobile Insurance Contract Mandatory Conditions

Regulations made under the Act.

Damages recoverable for non-monetary loss for minor injuries

(1) Except as provided in this

Section and clause 14(2)(a), for the purposes of subsection

113E(3) of the Act, the total amount recoverable as damages for non-monetary loss

for all minor injuries suffered by a claimant as a result of an accident is $7,500.

(2) Subject to subsection (3), for 2011 and subsequent calendar years, the minor injury

amount is increased annually, effective on and after January 1, by the annual average

percentage change for the all-items Consumer Price Index for Nova Scotia, not

seasonally adjusted, published by Statistics Canada, for the previous calendar year.

(3) If the annual average percentage change referred to in subsection (2) is a negative

number, there is no change in the minor injury amount.

(4) The minor injury amount for a calendar year applies only in respect of accidents that

occur during that calendar year.

(5) For 2011 and subsequent years, the Superintendent must publish the minor injury

amount for the calendar year by January 31 in a form and manner that ensures that

the information is accessible to the public.

Damages recoverable for non-monetary loss for minor and non-minor injuries

(1) In this Section, “non-minor injury” means an injury other than a minor injury.

(2) If a claimant suffers one or more minor injuries and one or more non-minor injuries

as a result of an accident, the assessment of damages for non-monetary loss for all

injuries suffered by the claimant is subject to the following rules:

(

a) if the non-minor injury or injuries, when assessed separately from the minor

injury or injuries, would result in an award for non-monetary loss of not more

than the minor injury amount, the total amount recoverable as damages for

non-monetary loss for all injuries suffered by the claimant must not exceed the

minor injury amount;

(

b) if the non-minor injury or injuries, when assessed separately from the minor

injury or injuries, would result in an award for non-monetary loss of more than

the minor injury amount, the total amount recoverable as damages for non-monetary loss for all injuries suffered by the claimant must be calculated as the

total of all of the following:

(

i) the amount of damages assessed for non-monetary loss for the non-minor

injury or injuries,

(ii) subject to

Section 13, the amount of damages assessed for non-monetary

loss for the minor injury or injuries.