BC Supreme Court clarifies entitlement to “revival” of part 7 disability benefits
In the case of Symons v. Insurance Corporation of British Columbia 2014 BCSC 1883, a summary trial application, the Court considered the “revival” of ICBC disability benefits following the Plaintiff’s attempt to return to work. In reasons for judgment, released today, the BC Supreme Court clarified when an individual insured through ICBC is entitled to receive temporary total disability (TTD) benefits, under Part 7 of the Insurance (Vehicle) Regulation.
Here, the Plaintiff had been seriously injured when her vehicle was hit from the rear by a large truck, on April 20, 2008.These injuries were immediately disabling, and the Plaintiff was paid TTD benefits until early May of that same year. After taking these two weeks off from work, the Plaintiff felt compelled to return to her regular employment, as she had just recently started her own business and had purchased a home with a mortgage. She returned to work in what the court called a “creditably stoic and determined manner”, hoping to return to normal life after the accident.
It was soon clear that the Plaintiff’s injuries were not going to ameliorate over time, despite her initial and continued efforts of engaging in various forms of therapy. The Plaintiff underwent two separate discectomies, neither of which was successful in alleviating the Plaintiff’s symptoms, and she developed anxiety and depression associated with her disability. Since February 12, 2012, the Plaintiff was unable to work, and on January 23, 2013, she sought to have her TTD benefits from ICBC reinstated. By the time the Plaintiff filed the present Application, on February 4, 2014, the Defendant Corporation had not yet delivered a proper response.
In its reasons for judgment, the Court sets out the relevant provisions under Part 7:
 Sections 79 and 97 of the Regulation mandate that, to be entitled to Part 7 disability, medical or rehabilitation benefits, a person must:a) be an “insured” person as defined in s. 78 (section 79(1));b) have been injured in an accident involving the use or operation of a vehicle that occurred in Canada or the United States (section 79(1));c) promptly give ICBC notice of the accident (section 97(1)(a));d) give ICBC a written report of the accident with particulars of the circumstances in which the accident occurred and the consequences of the accident no more than 30 days after the accident (section 97(1)(b)); ande) give ICBC a proof of claim within 90 days of the collision (section 97(1)(c)). There was no dispute, on this hearing, that the plaintiff complied with all of these preconditions to entitlement.  Section 80 of the Regulation provides:80(1) Where, within 20 days after an accident for which benefits are provided under this Part, an injury sustained in the accident totally disables an insured who is an employed person from engaging in employment or an occupation for which the insured is reasonably suited by education, training or experience, the [defendant] shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter …(a) the applicable amount of disability benefits set out in section 2 of Schedule 3 [in this case, $300 a week]. Total disability after 104 weeks is governed by s. 86 of the Regulation, which provides:86 (1) Where an injury for which disability benefits are being paid to an insured under section 80 or 84 continues, at the end of the 104 week period, to disable the insured as described in the applicable section, the corporation shall, subject to subsections (1.1) and (2) and sections 87 to 90, continue to pay the applicable amount of disability benefits to an insured described in section 80 or 84(a) for the duration of the disability, or(b) until the insured reaches 65 years of age, whichever is the shorter period. [Emphasis added]
The Plaintiff took the position that, once she met the prerequisites for total disability within the meaning of Part 7, the fact that she was able to return to work, even for a significant period of time, does not disentitle her to the TTD benefit payments after she again became totally disabled by injuries she had sustained in the same accident.
ICBC denied this, relying on the plain language of s86 of the Regulation, in asserting that the Defendant’s obligation to pay the Plaintiff TTD benefits ended at the time she was able to return to work. As Mr. Justice Baird points out at :
… Essentially, they say that TTDs cannot be revived or reinstated outside the 104-week period referred to in both ss. 80 and 86 of the Regulation: see the underlined phrase in s. 86, above, for the wording in contention, along with Rashella at para. 32 and Andrews v. Roffel,  B.C.J. 631 (S.C.).
The Court considered the jurisprudence on the “revival” of TTD benefit payments, referring to a number of recent casea which led the Court to find, at  – :
 Following Brewer, Halbauer, and Cai, insured persons currently have a right to revive their TTDs (assuming all the other regulatory requirements are met) in three situations:1. Entitlement and revival under s. 80: the insured person receives benefits under s. 80, returns to work, and again becomes totally disabled from employment within the 104-week period. 2. Entitlement and revival under s. 86: the insured person receives 104 weeks of benefits under s. 80, transitions to benefits under s. 86, then returns to work for a period before again returning to total disability. 3. Entitlement under s. 80 and revival under s. 86 (intervening alternate insurance benefits): the insured person receives TTDs under s. 80, then receives private insurance benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86. The plaintiff in this case established entitlement under s. 80, and seeks revival under s. 86. In my view, the plaintiff is entitled to a revival of her TTDs. While none of the cases have taken the exact step that the plaintiff urges upon me, Brewer, Halbauer, and Cai have certainly cleared the path. Indeed, there is a plausible argument that Cai has already answered this question in the affirmative. For convenience, I repeat Bruce J.’s conclusion: Section 86 should be interpreted in a purposive manner. Provided the insured remains eligible for benefits under s. 80, whether or not they are currently in receipt of monies from ICBC pursuant to that provision, they are eligible to apply for a continuation of those benefits under s. 86. [Emphasis added.]
The Court also sought to clarify the intent of the legislation, adding, at  – :
 The Regulation is part of a legislative scheme of universal compulsory vehicle insurance. It is designed to provide “no fault” benefits to insured persons who are seriously injured in motor vehicle accidents. These benefits are meant to temper the negative financial consequences — in particular, the loss of employment or homemaking ability — that flow from such injuries. Part 7 is also designed to promote the injured person’s rehabilitation, defined in s. 78 as “the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that … is … reasonably achievable”. To this end, Part 7 also includes rehabilitation benefits under s. 88, including the provision of funds for various one-time expenses that are likely to promote the person’s recovery (for vocational training, for example, or alterations to the insured’s residence to improve accessibility), and funds for medical treatments and rehabilitative therapies.  In other words, Part 7 (at least so far as it is concerned with benefits following injury, rather than death benefits) has two related objects: to compensate an insured person for a portion of the financial loss accrued from temporary total disability caused by a motor vehicle accident; and, where possible, to do so in a manner that brings about the end of the total disability by returning the injured person to employment or self-sufficiency. (For some discussion of these purposes, see Halbauer at para. 41.)
Continuing, with regard to interpretation of the Regulation, at  – :
 In Halbauer, the court rejected the plain meaning of another provision in the Regulation because that interpretation led to absurd consequences and frustrated the rehabilitative object of Part 7. A similar concern animated the court in Brewer, where Melnick J. noted at para. 18 that, absent a right to reinstatement, “claimants may be reluctant to attempt to return to work when they experience improvement for fear that, if the improvement proves to be temporary, their benefits will not be reinstated.”  I have similar concerns about the defendant’s interpretation of the regulatory provisions under consideration in this case. Given that Brewer has already established a right to reinstatement prior to the 104-week mark, the plain meaning interpretation of s. 86 would simply encourage claimants to end any attempt to return to work at the 103-week mark or, as observed in Brewer, to avoid such an attempt entirely.
The Court then concluded:
 I therefore conclude that an insured person is eligible to apply for the revival of TTDs under s. 86 so long as a) they have previously established eligibility and received TTDs 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 injury sustained in the original accident.The Plaintiff was granted a declaration that she is entitled to TTD benefits, as well as medical and rehabilitation benefits, under Part 7 of the Insurance (Vehicle) Regulation. Judgment was ordered in her favour, for benefits that ought to have been paid following her first discectomy, and for her current period of total disability.