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Tag: Pavlovich v. ICBC

ICBC Wage Loss Benefits – Definition of "Employed Person" Discussed

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:

[8] 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

(b) who…

(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.

[9] 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….

[17] 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.

[18] 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.

[19] 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.

[20] 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.