The BC Civil Resolution Tribunal published reasons for judgment earlier this month dismissing an application for ICBC wage replacement benefits following 5 days of disability from a vehicle collision.
In the recent case (Cruz v. ICBC) the self represented applicant was injured in a December, 2019 collision. His injuries caused him to miss 7 days of work. He applied for ICBC to cover his wage loss under their no-fault benefits but they refused arguing he was not disabled enough days to qualify for benefits. The CRT agreed and dismissed the applicant’s claim. In doing so Tribunal Member Kristen Gardner provided the following reasons:
If a person insured with ICBC is disabled as a result of a motor vehicle collision they may qualify for disability benefits from ICBC under their own policy of insurance. These are often referred to as Part 7 TTD benefits or Part 7 Wage Loss Benefits.
One necessary condition for these benefits is that the injured person needs to be an “employed person“. If a person is not employed at the time of the accident they may still qualify for disability benefits from ICBC if they were ‘employed or actively engaged in an occupation for wages or profit for any 6 months during the period of 12 months immediately preceding the date of the accident.’ Reasons for judgement were released today discussing this definition of ‘employed person‘.
In today’s case (Pavlovich v. ICBC) the Plaintiff was injured in a rollover accident. The medical evidence was uncontradicted that his accident related injuries “temporarily totally disabled him from his regular employment as a journeyman carpenter (for about 6 months) from the date of the accident“.
The Plaintiff was not actively working at the time of the crash but had worked about 1,100 hours in the year before the accident. He argued that in these circumstances he is an ’employed person’ entitled to disability benefits from ICBC. ICBC refused to pay the wage loss benefit arguing the Plaintiff did not meet the definition of employed person under Part 7 of the Insurance (Vehicle) Regulation.
Mr. Justice Rogers was asked to resolve this dispute. The Court agreed with ICBC and in doing so made the following useful comments about the definition of ‘employed person‘ for the purpose of receiving ICBC Part 7 disability benefits:
 For the purpose of entitlement to temporary total disability benefits under Part 7 of the Insurance (Vehicle) Regulation of the Insurance (Vehicle) Act, the claimant must be an “employed person”. An “employed person” is defined by s. 78 of the Regulation and means a person:
(a) who, on the date of an accident for which a claim is made, is employed or actively engaged in an occupation for wages or profit, or
(ii) for any 6 months during the period of 12 months immediately preceding the date of an accident for which a claim is made is employed or actively engaged in an occupation for wages or profit.
 As noted, the parties agreed that the plaintiff was not employed on the date of the accident. Accordingly, if the plaintiff is to qualify for temporary total disability benefits, it must be on the basis of his being an “employed person” within the meaning of subsection (b) of the definition….
 The plaintiff’s interpretation of the Regulation suffers several flaws. One such is the fact that in practice it would result in absurdities of its own. For example, if the plaintiff has it right that under subsection (b) “employed person” status may be achieved by working more than 1,000 hours in the 12 months preceding an injury, one person might accumulate all the necessary hours by working intensely for only 2 or 3 months, while another person might never qualify because of his part?time employment and work for only a few hours every week. The part?timer might work for, say, 11.9 months immediately before his injury and be laid off the day before his accident; yet, because of his part?time status, he may not have accumulated the 1,000 hours the plaintiff’s interpretation would require of him before he could be an “employed person” under subsection (b). This would lead to the absurd result of a part?time person working up to the day before an accident not being employed for the purposes of the Regulation, while a person who worked like the devil over only 2 months would qualify for benefits. This result would be directly contrary to the plain meaning of the words of the Regulation.
 Another flaw in the plaintiff’s interpretation is its reliance on counting hours to qualify as an employed person. This might theoretically work if everyone toiled, as the plaintiff did, for an hourly wage. That is not, however, the way things are. Some people are paid by the task, as in a seamstress’s piece?work, some are paid a salary and no account is kept of the hours they work, some are paid on pure commission and the hours they work may bear no relation at all to their income and so the number of hours they work are irrelevant. Counting hours of work is simply not a practical way to fashion the broad?based and universal test for qualification for disability benefits under the Regulation.
 A much more sensible and practical interpretation, and the interpretation that is consistent with the Regulation’s plain language, is the interpretation that the defendant propounds. The Regulation stipulates that to be an employed person the claimant must have been employed for 6 of the 12 months immediately preceding the injury. It is the being employed, not the amount of work done, during those 6 months that counts. Put another way, a person who works part?time for 6 months is, for the purposes of the Regulation, no less employed that the person who works 18 hours a day for the same period.
 I find that whether one excludes or includes the plaintiff’s house renovation work, the arithmetic of the plaintiff’s situation does not yield enough weeks of work for him to be said to have been employed for 6 of the 12 months before the accident.
Interesting reasons for judgement were released today concerning traumatic injuries and pre-existing degenerative disc disease.
The Plaintiff was a building siding installer. He had a pre-existing degenerative lumbar spine condition which was largely asymptomatic, that is it caused occasional pain but did not disable him from work. He was injured in a BC car accident on November 22, 2005. He became totally disabled from his work after this collision. He applied to ICBC, and received, Part 7 wage loss benefits.
ICBC obtained a report from Dr. Dommisse in June 2006. He stated that ‘(the Plaintiff’s) complaints have been caused by this motor vehicle accident in part. His pre-existing condition is likely contributing to his ongoing symptoms….His continued symptoms, in my opinion, are related to the degenerative changes at L4/5 at this time.’
As a result of this opinion ICBC cut off the Plaintiff’s wage loss benefits on August 31, 2006. ICBC did so because they took the position that the Plaintiff’s ongoing disability was ‘caused directly or indirectly by sickness or disease.’
Can ICBC do that? The answer is yes. Section 96 of the Insurance Vehicle Regulation places some limits on benefits ICBC has to pay their insured including those ‘whose injury was caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part’
The Plaintiff sued ICBC asking the court to reinstate the Plaintiff’s no-fault wage loss benefits. In support of the Plaintiff’s case, Dr. Hirsch, a Physical Medicine and Rehabilitation Specialist, gave evidence that
Based on today’s obtained history and review of the forwarded clinical documents, it is my opinion that the acute onset of low back pain and resultant decline in function is causally related to the November 2005 motor vehicle accident
(the Plaintiff) reported that he has made a 20 to 30% symptomatic recovery regarding his low back injuries. He reported that for the past four months he has not noticed any further symptomatic gains. Accordingly, I would view the prognosis for a good recovery as guarded at this juncture.
At present and in the foreseeable future, I do not foresee that (the Plaintiff) will improve sufficiently to get back to his pre-motor vehicle accident line of work. Furthermore, at present I would question whether he is gainfully employable as a locksmith.
Mr. Justice Meiklem of the BC Supreme Court dismissed the Plaintiff’s claim finding as follows:
In my view, the medical evidence in this case, notwithstanding the differences of opinion on the relative significance of the concurrent causes of (the Plaintiff’s) continuing disability and whether the injuries suffered in the accident had resolved by August 31, 2006, clearly establishes that the degenerative lumbar spine, specifically at the L4/5 facet joints was a contributing cause of his disability after that date. While I do not find it proven that the effects of the accidental injury were fully resolved by that time, the defendant has established that, but for his degenerative disease, Mr. Wafler would not be totally disabled within the meaning of the covering provisions after August 31, 2006.
Consequently, I find that the defendant has established that the s. 96(f) exclusion applies and I decline to make the declaration sought by the plaintiff.
If you are in a dispute with ICBC regarding the payment of no-fault wage loss benefits it is important to canvass decisions such as this one addressing the potential consequences of pre-existing conditions on your ICBC insurance claim. Ensure that your physicians carefully canvass the relationship between any ‘sickness or disease’ and traumatic injury when applying for ICBC no fault benefits.
If you would like further information or require assistance, please get in touch.
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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