Court Rules That Plaintiff Entitled To ICBC Disability Benefits Beyond 104 Week Mark

In Powell v. ICBC, the Plaintiff was injured in a rear end motor vehicle accident, and subsequently commenced an ICBC claim.

 

After the accident, the Plaintiff was totally disabled from working for a period of time of just under one month. She then returned to work part-time for a period of time of approximately 32 months, at which point she became totally disabled again. Given this timeline, the Plaintiff was not considered to be totally disabled at the point of time of 104 weeks after the accident. The previous British Columbia Court of Appeal decision in Symons v. ICBC had ruled that temporary total disability benefits (“TTD benefits”) can be revived after the 104 week mark if the accident related injuries which were originally disabling once again triggered a total disability after the 104 week mark.

 

The Plaintiff applied for TTD benefits again, but ICBC denied payment, stating that she was no longer entitled to such benefits.

 

The Plaintiff brought an application for summary judgment for a declaration that she was entitled to TTD benefits, and for judgment in accordance with entitlement to the cumulative total of such benefits.

 

ICBC’S lawyer argued that the matter was not suitable for a summary judgment application because of the competing experts, then argued that if the matter is suitable for such a type of application, then the matter should be dismissed, as the evidence does not show that the Plaintiff is unemployable because of accident related injuries.

 

The Plaintiff relied on the Symons case, which the Court found applied directly to the facts of the case at bar.

 

In ruling that the Plaintiff was entitled to TTD benefits, the Court commented :

 

[51] ……. in Symons where the issue on appeal was whether the chambers judge erred in concluding that Mrs. Symons was entitled to disability benefits under s. 86 of the Regulation. ICBC argued that an insured must have an ongoing disability and be receiving benefits at the end of the 104 week period in order to receive benefits. Because Mrs. Symons was not receiving benefits at the end of the 104 week period and because her disability did not flare up until after that period, the Regulation did not permit for the reinstatement of s. 86 benefits. The plaintiff urged a contextual and purposive approach to statutory interpretation of s. 86 that would not result in absurd results as urged by ICBC.

 

[52] Bennett J.A., for the Court, found at para. 17 that the regulations in question should be considered in the context of the legislative scheme to provide universal, compulsory insurance and access to compensation for those who suffer losses from motor vehicle accidents. Benefits-conferring legislation is to be interpreted in a broad and generous manner (at para. 18) …

 

[53] The decision in Symons applies directly to the facts in this case. The plaintiff was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. She is entitled to disability benefits for the initial period of disability. Although the plaintiff returned to part time work for a time and did not apply for TTD benefits within or at the 104 week mark, if is accepted that she is totally disabled as a result of injuries sustained in the accident, then Symons supports her position that it is not necessary that she be actually receiving benefits or that her disability had been ongoing at the 104 week mark. The issue then becomes whether the plaintiff has satisfied the onus upon her to show that she is totally disabled as a result of injuries sustained in the accident.

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