Tag: Bulpitt v. Muirhead

Another Example of the Unintended Consequences of Personal Injury Trials

When an injury claim proceeds to trial the case becomes one of public record.  The public nature of the proceedings can lead to unintended consequences such as creating a papertrail for Revenue Canada to go after undeclared past earnings.
Another unintended consequence of the open trial process was highlighted in reasons for judgement released this month by the BC Supreme Court, New Westminster Registry.  In the recent case the Plaintiff was injured in a 2007 collision.  He missed some time from work initially but returned to work in 2008 and had “been performing the work duties assigned to him” since that time.   The Plaintiff sought damages for diminished earning capacity and in support of this claim tendered medical evidence speaking to his physical limitations.  When his employer learned of this the Plaintiff was suspended (in this case temporarily) from his employment.  The reasons for judgement highlight this consequence as follows:
[122]     The evidence at trial was clear that the plaintiff has been performing the work duties assigned to him since his return to work in 2008.  However, on the first business day following completion of the trial, the plaintiff was suspended from his duties, without pay, apparently because the City of New Westminster had concerns about the plaintiff’s fitness for duty as a firefighter on the basis of its understanding of the evidence the plaintiff led at trial.  By letter dated June 24, 2013, Chief Armstrong informed the plaintiff as follows:
At the trial and in speaking to legal counsel for yourself and ICBC I learned several things that caused me concern.  First, apparently considerable medical evidence has been tendered at the trial as evidence of your inability to perform the full range of duties required by your position.  Second, you are apparently seeking the recovery of considerable damages as a result of the accident and prior to being subpoenaed, we were not aware that these proceedings had been instituted by you.
…This is to advise that you are being held out of service without pay until you are able to prove to us that you are in fact fit for duty.  We are formally requesting you provide copies of all medical evidence tendered as exhibits at your trial so that we may assess your fitness for duty as expeditiously as possible.
 

A Creative Sick Leave Benefits Award

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, making an interesting award with respect to past wage loss covered by a sick leave plan.
In this week’s case (Bulpitt v. Muirhead) the Plaintiff, a firefighter, was injured in a  2007 collision.  He did not suffer an actual wage loss as “he received all of the wages he would otherwise have received had the accident not occurred as sick leave benefits to which he was entitled as an employee of the City of New Westminster“.   These benefits were subject to a subrogation agreement which was put into evidence.  The court expressed concern about whether this was a sufficient basis to make an award for past loss of wages.  Instead, the court did not award money for past wage loss but used its inherent jurisdiction to make a blanket order that the Defendant provide full indemnity to the plaintiff in respect of any amount of the judgement that the plaintiff is, or becomes, obligated to re-pay the City.  In reaching this decision Mr. Justice Weatherill provided the following reasons:
[102]     The only evidence proffered by the plaintiff during the trial in respect of a claim for past wage loss came in the form of a letter dated June 6, 2008 from a payroll clerk with the City of New Westminster to ICBC.  It states:
“Please find enclosed the completed Certificate of Earnings form for [the plaintiff].  I am also attaching a copy of the subrogation agreement from the Collective Agreement for The City Firefighters’ Union, Local 256.
The gross pay lost up to May 30, 2008 due to [the Accident] is $20,365.56.  Please be aware that his sick claim is still ongoing so this figure is not a final amount.
When a settlement has been reached, please forward to my attention the total amount of earnings lost due to this accident, plus any interest attributed to those earnings, payable to the City of New Westminster.  This will allow us to credit Mr. Bulpitt’s sick plan and return any gratuity hours that he lost due to the accident.               
[Emphasis added]
[103]     The attached “subrogation agreement” states:

Sick Leave Recovery

a) An employee may use sick leave credits for time lost through accidental injuries PROVIDED THAT prior to making a claim or commencing an action for damages against a third party in respect of such injuries, he shall notify the Employer of such claim and enable the Employer the opportunity to be represented in all proceedings or settlement discussions relating to the claim.  Any such claim shall include a claim for loss of wages including pre- and post- judgement interest, and to the extent that recovery is made, such amount will be reimbursed to the Employer.  The Employer will reimburse the employee, fifty percent (50%) of the cost of the legal fees certified by the employee’s legal counsel as being attributed to providing the wage/benefit loss claim.
[104]     During argument at trial, I expressed to plaintiff’s counsel my concern that this evidence was insufficient to prove the employer’s right to make a subrogated claim for the wage benefits it had paid to the plaintiff while he was unable to work due to his Accident-related injuries…
[108]     Regardless, it is my view that the June 6, 2008 letter and the excerpted portion of the Collective Agreement is evidence that the plaintiff’s sick leave benefits were not as they would have been but for the Accident.  Clearly, there was a benefit plan that had been negotiated by the City and the firefighters’ union the terms of which were contained in the Collective Agreement.  Further, this letter is evidence of what it will take to restore the plaintiff’s sick leave plan to its pre-Accident status.
[109]     In all cases, the court retains residual power to grant appropriate relief through its inherent jurisdiction: Anderson v. Buydens, [1998] B.C.J. No. 2675 at para.16 (S.C.).  In this case, a miscarriage of justice would result if the plaintiff was awarded nothing for past wage loss because he received benefits from his employer yet the employer was able to “claw back” those same benefits by way of a right of subrogation.  I am satisfied that there ought to be a provisional award for past wage loss in this case.  The plaintiff is entitled to full indemnity from the defendants in respect of any amount to which the plaintiff is or becomes obligated to re-pay to the City of New Westminster in respect of benefits he received as a result of the Accident.
 

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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