BC Personal Injury Claims and Reimbursement of "Sick Bank" Time
Many BC employees have the benefit of a “sick bank“. For those of you not familiar with these, a sick bank is basically a pooled amount of time which an employee is able to be absent from work for sickness and still receive full pay. Sometimes a sick bank grows over the years of employment provided it is not drawn from.
When you are injured as the result of someone else’s carelessness, become disabled for a period of time and have to use up your “sick bank” are you entitled to recover damages to reflect the value of this used up asset? Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.
In today’s case (Burton v. Bouwman) the Plaintiff was involved in a total of 3 motor vehicle collisions. Following each collision he missed time from work and had to draw money from his sick bank. In his lawsuit against the at-fault motorists he claimed for various damages including damaged for his depleted sick bank.
The Plaintiff largely succeeded in this claim. In awarding the Plaintiff compensation for this loss Madam Justice Gray summarized and applied the law as follows:
[157] Mr. Burton is not entitled to receive cash from CSC for unused banked sick leave. The banked sick leave will only be of value to him if he becomes sick and has insufficient banked sick leave, with the result that he takes an unpaid leave.
[158] There is a real and substantial possibility that Mr. Burton will become sick while still employed by CSC and have insufficient banked sick leave. Mr. Burton is entitled to compensation to reflect that…
[189] Mr. Burton did not suffer a wage loss as a consequence of the accidents, because he was able to use his banked sick time. However, he claims lost banked sick leave and annual leave, $21,600 for lost overtime, and an unspecified amount for the past lost opportunity to earn income outside CSC. The position of the defence is that Mr. Burton should recover nothing for these claims.
[190] As discussed above, Mr. Burton is entitled to be compensated for the loss of his banked sick time. CSC paid Mr. Burton about $12,000 for his banked sick leave after the First Accident, about $250 after the Second Accident, and about $18,700 after the Third Accident. That is a total of about $30,950.
[191] The method of compensating a continuing employee for loss of sick bank credits was discussed in Bjarnson v. Parks, 2009 BCSC 48, and the cases cited in it. In that case, and in Roberts v. Earthy, [1995] B.C.J. No. 1034 and Choromanski v. Malaspina University College, 2002 BCSC 771, the court awarded the full amount of salary corresponding to the banked sick leave, without making any deduction for contingencies. Other cases cited in Bjarnson made such a deduction.
[192] I would assess the likelihood that Mr. Burton will become sick while working at CSC and have insufficient banked sick leave at 75 percent. As a result, Mr. Burton is entitled to damages of $22,500 in respect of his lost banked sick leave.