court1

Reasons for judgment were given by the British Columbia Court of Appeal denying ICBC’s appeal of a judgment awarding disability benefits to a woman months after being injured in a motor vehicle accident.  This case concerned entitlement to no fault disability benefits.  No fault benefits are payable under Part 7 of the Regulations and the provisions require that ICBC must pay total temporary disability benefits when within 20 days of an accident an insured is totally disabled due to the accident.  ICBC is required to pay the benefits for 104 weeks or until the insured is no longer disabled.  After the expiry of the 104 weeks, ICBC has to continue to pay the insured the benefits if the disability continues.

In Symons v. Insurance Corporation of British Columbia the plaintiff was seriously injured in a car accident which occurred on April 20, 2008.  She was off work for two weeks following the accident and received disability benefits from ICBC during that time.  She returned to work in May 2008 despite still being in pain.  Over time her condition significantly worsened and ultimately by May 2011 she had to have back surgery.  She remained off work until September 2011.  She then in February 2012 experienced an exacerbation of her symptoms.  A scan identified a reoccurrence of the previously surgically corrected disc herniation and a second surgery was necessary.  This second surgery occurred on March 4, 2013 but was not successful.  The plaintiff was disabled from working as a result.

In January 2013 the plaintiff asked ICBC to reinstate her disability benefits.  ICBC took the position that the plaintiff was not entitled to the benefits due to the length of time between the date of the accident and the disability.  The judge who initially heard the case decided against ICBC, concluding:

[49]  I therefore conclude that an insured person is eligible to apply for the revival of disability benefits under s. 86 as long as a) they have previously established eligibility and received disability benefits under s. 80; b)  they can demonstrate that they are totally disabled as defined in s. 80, and c) they can show that the total disability is due to the injury sustained in the original accident.

ICBC appealed this decision to the Court of Appeal.  The Court of Appeal agreed with the trial judge and dismissed ICBC’s appeal, holding at paragraph 24 as follows:

[24]  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” date at the end of 104 weeks.  This interpretation is consistent with the Act – to provide no-fault benefits for persons injured in motor vehicle accidents.

This decision is a great victory for any individual injured in an accident.  The decision means that ICBC will be prevented from denying much needed disability benefits on technical grounds with the court directing ICBC to look at whether an individual is disabled as a result of the accident, with a period of recovery or set back not disentitling them to the benefits.