Wage loss benefits
Are you eligible for wage loss benefits if you have missed time off work due to injuries you have sustained in a car accident?
The answer may be found in the Insurance (Vehicle) Regulations, Part 7 – Accident Benefits. In particular, Sections 80 to 85 may be relevant.
The appropriate tribunal that has sole jurisdiction for claims pursuant to Part 7 – Accident Benefits is the Civil Resolution Tribunal. To read more about the CRT’s jurisdiction, review their website. You may also wish to contact a lawyer to seek legal advice.
On the CRT website, you will find a “RESOURCE” Tab. If you click on the Resource tab, you will find an option that states “DECISIONS”. If you click “decisions”, you will find numerous published cases that were initiated by members of the public claiming entitlement to Accident Benefits. These prior decisions may be helpful in guiding you on the rules and regulations. Often, the tribunal member will explain why one case failed, or why one case was successful. These posted decisions may be helpful to you if you are initiating a claim.
As it relates to wage loss benefits, a recent decision referenced as McNaughton v. ICBC, 2021 BCCRT 1021, 2021-09-23 relates to a claim made by a nurse who was unable to return to work after a car accident she was involved in on Nov. 17, 2020. As a result of her missed time off work, she made a claim to the BC Civil Resolution Tribunal claiming that she was entitled to wage loss benefits. Of Course, there are certain criteria that must be established to determine whether one claimant is entitled or eligible for wage loss benefits, but that is not the only criteria that must be reviewed. There are also exceptions and limitations that may apply. Therefore, while one may be eligible for wage loss benefits, there are a few more questions one must consider to determine if, in fact, wage loss benefits are properly payable by the insurer (in this case ICBC). The claimant in this case was paid her lost time from work through her sick bank. Therefore, she did not lose wages. She lost sick time and the question is whether she is entitled to be compensated under Part 7 of the Insurance (Vehicle) Regulations for the lost wages, even though she used sick time to be 100% compensated for lost wages?
We will enumerate the relevant paragraphs from this case:
Sections 80 and 85 of the Insurnace (Vehicle) Regulations set out who is eligible for wage loss benefits from ICBC.
To be eligible, a person must be disabled from working within 20 days of an accident and must remain disabled for at least 7 days.
Section 80 is relevant and should be carefully reviewed:
Disability benefits for employed persons
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 corporation shall, subject to section 85, pay to the insured for the duration of the total disability or 104 weeks, whichever is shorter, the lesser of the amounts determined under paragraphs (a) and (b):
(a) the applicable amount of disability benefits set out in section 2 of Schedule 3;
(b )in respect of an accident that occurred
(i) before January 1, 1987, an amount per week calculated by taking 75% of the insured’s gross earnings for the 12 month period immediately preceding the accident, dividing by 52 and multiplying that amount by the weekly benefit multiplier in Column B of Table 1 of Schedule 3 opposite the year of the accident in Column A,
(ii) on or after January 1, 1987 but before January 1, 1991, an amount per week calculated by taking 75% of the insured’s gross earnings for the 12 month period immediately preceding the accident, dividing by the number of weeks and fractions of weeks actually worked during that period and multiplying that amount by the weekly benefit multiplier in Column B of Table 1 of Schedule 3 opposite the year of the accident in Column A, or
(iii) on or after January 1, 1991 an amount per week calculated by taking 75% of the insured’s gross earnings for the 12 month period immediately preceding the accident and dividing by the number of weeks and fractions of weeks actually worked during that period.
(2) Where disability benefits are payable to an insured for a period of less than one week, the amount payable for each day shall be determined by dividing the amount payable weekly by the number of days the insured regularly works in a week.
Because Ms. McNaughton was disabled immediately following the accident and her disability lasted nearly a month, she is entitled to wage loss benefits, subject to section 81.
16. Section 81(2) of the IVR says that ICBC does not have to pay any benefits if Ms. McNaughton receives “other disability compensation” that is more than 75% of her pre-accident gross earnings.
Section 81(1) defines “other disability compensation” as including compensation paid by an employer. The IVR does not differentiate between different types of benefits paid by an employer, so I find that the fact Ms. McNaughton earned her sick time through hours worked is not relevant. Because Ms. McNaughton received compensation from her employer that was more than 75% of her earnings, I find that ICBC did not have to pay her any wage loss benefits.
17. For this reason, I dismiss Ms. McNaughton’s claim against ICBC for wage loss benefits.
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