Is psychological injury a minor injury?

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Is Psychological Injury a Minor Injury?

There is value in reviewing published cases all across the Country to gain insights on specific issues that are common in personal injury law. One topic of interest is psychological injury.  We have seen several Provinces adding “psychological injury” to the definition of what is deemed to be a “minor injury” thereby limiting the damages that may be sought from a negligent driver, including under Accident Benefit entitlements.

We will review a determination in Ontario.  We will review a 2025 published decision seeking statutory accident benefits under the Ontario Licence Appeal Tribunal “LAT” on the topic of psychological injury and assess whether this injury was deemed to be a “minor injury.”

The case reference is: Germaw v Belair Insurance Company Inc., 2025 CanLII 1818 (ON LAT).  Prior to assessing this issue, we want to review the interpretation of what is a “minor injury” in the Province of Ontario.

Applicability of the Minor Injury Guideline:

[5]        Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

[6]        The applicant bears the onus of establishing on the balance of probabilities his entitlement to coverage beyond the $3,500.00 cap for minor injuries. An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has determined that a psychological condition may warrant removal from the MIG.

The Applicant was involved in a motor vehicle collision and as a result sustained a psychological injury that, according to the expert evidence relied on by the Applicant, should be deemed a non-minor injury.  There is, however, conflicting expert evidence, which states that the psychological injury sustained by the Applicant is minor and therefore properly falls under the minor injury interpretation.

Reference was made to a decision Russel v. Economical Mutual Insurance Company, 2022 ONLAT 20-009752/AABS: To be removed from the MIG, the applicant must show that there is an actual psychological impairment and not just post-accident sequelae.

We will review the competing opinions.

The Medical Evidence:

The Applicant is the injured party who was assessed by Dr. P.

Dr. P. assessed the applicant and concluded that the Applicant suffers from post-traumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood. Her evaluation, conducted over Zoom, included a psychological assessment in which the applicant reported symptoms such as increased cautiousness related to driving, anxiety, and loss of interest in activities. She noted that the applicant’s symptoms fell within the moderate to severe range of depression and anxiety, as confirmed by psycho-diagnostic testing. Additionally, the PCL test results indicated that the applicant met the criteria for a provisional PTSD diagnosis, reinforcing her opinion that the psychological impairment was significant and warranted treatment.

PCL stands for Posttraumatic Stress Disorder Checklist (PCL). It is a standardized self-report questionnaire used to assess the presence and severity of post-traumatic stress disorder (PTSD) symptoms based on the criteria in the DSM-5 (or earlier DSM versions).

In legal and medical-legal assessments, the PCL-5 is commonly used to determine whether an individual meets the diagnostic threshold for PTSD.  Learn more on this site:  PTSD Association

The Respondent relied on the expert evidence of Dr. B:

Dr. B. assessed the applicant and concluded that the Applicant’s psychological symptoms were mild and did not warrant a DSM-5 diagnosis. He noted that the applicant experienced transient dysphoric mood, loss of interest in some activities, and increased cautiousness related to driving, but characterized these as a typical reaction to the accident rather than a significant psychological impairment. Dr. B. also pointed out inconsistencies in Dr. P.’s report, including uncertainty about when self-report measures were administered and whether the applicant’s clinical status had changed over time. He maintained that the applicant’s mild driving-related anxiety would likely resolve on its own and did not meet the threshold for removal from the Minor Injury Guideline (MIG).

Key Reason Why Psychological Injury Was Not Deemed to Fall Under the Minor Injury Regulations (MIR):

The Applicant successfully argued that the psychological injury constituted an actual psychological impairment, rather than just post-accident emotional distress. The decision to remove the applicant from the Minor Injury Guideline (MIG) was based on:

  • Dr. P. diagnosed the applicant with post-traumatic stress disorder (PTSD) and adjustment disorder with mixed anxiety and depressed mood, meeting the criteria for a psychological impairment.
  • The applicant’s psychological symptoms significantly affected their ability to engage in normal life activities, including driving and social interactions.
  • Reports from Dr. P. and Dr. A. (the general physician) consistently documented the applicant’s psychological impairments and symptoms of anxiety, reinforcing the diagnosis.
  • The decision cited JS v. Aviva General Insurance Company, which established that a DSM-5 diagnosis is not an absolute requirement for removal from the MIG. In other words, this case confirmed that the severity and impact of the symptoms—not just the label of a diagnosis—can justify a claim being removed from the MIG.
  • The adjudicator found Dr. P.’s asessment more reliable than the respondent’s expert, Dr. B., due to a shorter timeframe between evaluations.

In conclusion, the applicant’s psychological injuries were deemed to exceed the threshold of a minor injury, justifying removal from the MIR.  The result of this determination is that the Applicant is entitled to treatment above the limits identified in the Minor Injury Guidelines.

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