27 June 2016
Motor Vehicle Accidents and Temporary Wage Loss Benefits
In the recent case: Symons v. Insurance Corporation of British Columbia, 2016 BCCA 207 the BC Court of Appeal has considered the issue of when TTD (total temporary disability) benefits may be reinstated after an unsuccessful attempt to return to work.
In this case the Plaintiff was injured in a 2008 motor vehicle accident. Initially she was disabled from work and ICBC paid her TTD benefits pursuant to s.86 of the Insurance (Vehicle) Regulation. She then returned to work but after a period of time was unable to continue working due to her accident related injuries and therefore went off work. The Plaintiff re-applied for TTD’s, however ICBC denied the claim for benefits since the Plaintiff had previously returned to work. ICBC argued that unless TTD’s were being paid at the 104 week mark the legislation does not allow the ongoing payment of benefits. In essence re-instatement past this period of time was not possible.
When TTD Benefits may be Reinsteated after 104 Weeks
At trial Mr. Justice Baird ordered ICBC to reinstate the benefits, finding that TTD benefits could be revived following the 104 week mark so long as the initial injury which disabled them from work was now subsequently disabling them. ICBC appealed the trial judge’s decision but it was subsequently upheld by the BC Court of Appeal. The court provided the following reasoning:
 ICBC argues that this was a case where the plaintiff was already entitled to s. 86 benefits when they were stopped, and then reinstated. I think this cuts too fine a line. Brewer says a person receiving s. 80 benefits can be reinstated if he later becomes disabled from the original injury and Halbauer says a person receiving s. 86 benefits is entitled to have them reinstated if he or she is subsequently disabled because of the original injury. In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation, nor within the reasoning of Halbauer.
 Reading the words of this legislative scheme in its entire context, harmoniously with the whole of the scheme and purpose, leads to the conclusion that if a person who was disabled as a result of an accident returns to work, and then, because of setbacks or otherwise, is again totally disabled due to the accident, she qualifies for benefits under s. 86, even if she was not disabled on the “magic” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.
 In my opinion, the decisions in Rashella and Andrews have been overtaken by Halbauer and Charlton.
 Thus, the trial judge did not err in his conclusion that Ms. Symons was entitled to be reinstated for disability benefits under s. 86.
 I would dismiss the appeal.
This case provides assistance for those injured in a motor vehicle accident whom have attempted to return to work, and stoically continued for some time before their injuries have proven to great for them to continue.
Author: Britni Troy, Personal Injury Associate