A recent FSCO arbitration case (by an ADR Chambers arbitrator), Lo-Papa and Certas Direct, determined that the existence of anxiety and depression following an accident does not necessarily exclude one from the minor injury definition or the $3,500 treatment cap.
In Lo-Papa and Certas Direct, the claimant was involved in a MVA on October 20, 2010 and at the time of the accident complained of pain in her spine and head. At the arbitration hearing she stated she suffered from headaches, lower back pain, leg pain. anxiety and depression. Her physician confirmed that she suffered from anxiety and depression, but did not address the question of whether her anxiety and depression were the predominant impairments or whether her symptoms were not clinically associated sequelae and therefore, exclude her from the minor injury definition.
The arbitrator noted that, as confirmed in the Scarlett v. Belair appeal decision, the burden of proof rests with the claimant to show that her injuries fall outside the minor injury definition. This decision confirms that a claimant can sustain psychological impairment in an accident and still fall under minor injury definition. However, if the psychological impairment is predominant then it will likely be outside the minor injury definition and the $3,500 cap.