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Compensation for Vacation and Sick Time

I was forced to use up vacation / sick days in order to take time off from work to recover from my injuries. Will I be compensated for the benefits I was forced to use up?

All too often individuals are injured in car crashes and forced to take time off work in order to recover from their injuries. In many instances this time away from work can adversely impact one’s ability to continue paying the expenses of everyday life. On the other hand, some individuals have access to vacation or sick days that allow them to take time away from work and continue to be paid.

This creates an illusion that the injured party has not suffered income loss (to the extent that benefits are available), however, in reality, the injured party is forced to use up a benefit that they would not have had to use but for the crash. Often ICBC is unwilling to compensate individuals for the usage of their vacation or sick time benefits under the guise that the injured party would be enjoying “double recovery”.

This situation was addressed in the case of Chingcuangco v. Herback (2013 BCSC 268)  which provides a summary of the considerations that a court will analyze in order to determine whether compensation should be awarded for the usage of vacation / sick time benefits because of a crash:

209      During a portion of the time when the plaintiff was unable to work, she was paid the wages that she otherwise would have received by drawing on her sick leave and vacation benefits. She seeks damages to reflect the depletion of those benefits.

 210      The parties have agreed that the value of the plaintiff’s hours missed (sick leave and vacation time used with pay) totals $7,371.09.

 211      The defendants argue that an award to the plaintiff in this regard will result in double recovery because she did not lose any money – she continued to receive her wages by drawing on her sick leave benefits and vacation time.

 212      This issue was addressed by this court in Bjarnason v. Parks, 2009 BCSC 48 (B.C. S.C.). In that case, Madam Justice Ballance provided a thorough and helpful analysis:

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 [61] In my view, whether it is appropriate to make deductions for contingencies in quantifying the loss will depend upon the presence or absence of certain factors. Those would include, for example, whether there is a maximum limit of accumulated sick leave, whether the plaintiff is able to cash out accumulated sick leave days on termination or retirement, whether the plaintiff has several years of employment remaining in which to potentially use the sick leave or has only a few months of employment left until retirement with a significant sick leave remaining, or whether the plaintiff has left the employment in which he earned the sick day credits altogether. It cannot be predicted with any degree of certainty whether a person who is healthy today will be so tomorrow. Illness or injury can afflict any one of us at any time. Placing much if any reliance on the plaintiff’s past use of sick benefits strikes me as an unsound and potentially unfair approach because it fails to adequately protect a plaintiff against an unexpected serious or catastrophic illness in the future which could occur in any otherwise healthy plaintiff, or against a future injury, which, by its nature, is unpredictable. In neither case would those future events necessarily be related to the plaintiff’s past use of sick benefits.

 [62] I accept that had Ms. Fenwick not used her sick leave credits, she would have been entitled to transfer them from her then employer, the Vancouver School Board, to her new employer, the Coquitlam School Board. As well I am satisfied that, pursuant to her collective agreement, any monies awarded to Ms. Fenwick on account of lost sick days is repayable to her then employer in order to replenish her sick leave bank. Beyond that, the evidence pertaining to the details of the portability of Ms. Fenwick’s sick day credits was not well developed. I do not have cogent evidence as to whether there is a maximum number of sick days allowable, the formula for which she has earned them or whether she is able to cash them out on retirement or termination.

 [63] As best I can decipher from the evidence, the loss that Ms. Fenwick has sustained is a potential future loss in the sense that it would only be experienced if she has insufficient sick leave credits to adequately cover a future period of absence due to illness in respect of which she could have drawn upon the lost sick bank for income continuation.

 [64] Ms. Fenwick thoroughly exhausted her accumulated sick leave as a result of the accident. She is a relatively young woman in the early stages of her career as a teacher. I have found that she likely will experience flareups of her symptoms caused by this accident from time to time in the future which may require her to miss brief intervals of time from work. She may also suffer from other illness or medical conditions in the future which will keep her from work.

 [65] I am satisfied that fair and reasonable damages for this loss is compensation which reflects the actual hours Ms. Fenwick missed from work and used as sick time, multiplied by her approximate average hourly rate, without deduction. To that, I would add her wage loss stemming from fifteen hours of unpaid absences attributable to her injuries. The total damages amount to $5,469.18.

 [66] Ms. Fenwick’s counsel raised a concern about whether damages for Ms. Fenwick’s lost sick bank entitlement could be validly characterized as pre-trial earnings or income and thereby attract a deduction for income tax pursuant to sections 95 and 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. In my view, this kind of loss is not in the character of past wage loss. Accordingly, there will be no deduction for income tax.

 213      I agree with that analysis and I adopt it in its entirety. Here, the plaintiff exhausted her accumulated sick leave. She also used up several of her vacation days. She has had illnesses unrelated to the accident that have resulted in her being unable to work. She is likely to have them in the future. Her plan is to stay and make a career at CRA.

 214      I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits which total $7,371.09. There will be no deduction for income tax.

 

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