If I am initially disabled after the collision, but manage to get back to work – then become disabled again, am I entitled to disability benefits from ICBC? What if more than 104 weeks have passed since the collision?
Today’s decision is an appeal (Symons v. Insurance Corporation of British Columbia, 2016 BCCA 207) of a judge’s decision from 2014. In 2014 the Supreme Court ruled that ICBC disability benefits (often referred to as TTDs: total temporary disability benefits), can be ‘revived’ if injuries are disabling immediately after the collision and the disability is triggered again at a later date. The plaintiff here was totally disabled from working in the immediate aftermath of the collision. She was paid disability benefits by ICBC for approximately two weeks – after which she returned to work due to financial demands. Her back condition worsened significantly.
By May 2010 she had a displacement of a lower spine nerve root, which required surgery. She was again off work – this time until September 2010, and had an 80% improvement in her condition. Almost two years post-operation (February 2012), she was performing household chores and she sneezed. She experienced an immediate return of the pre-surgery pain. A scan confirmed that the disc herniation had returned. She underwent a second surgery, which was unsuccessful and left her in even more pain. At the time of trial, she was on a wait-list for a spinal fusion surgery, and under the care of a psychiatrist facilitate coping with the depression and anxiety that accompanied her disability.
On January 23, 2013, Ms. Symons requested that ICBC reinstate her disability benefits. ICBC denied, saying she no longer qualified for benefits because the 104-week benefit period had expired (pursuant section 80 of the Regulation). The Chambers judge ruled that she was totally disabled, and she was awarded disability benefits with the following conclusion:
 I therefore conclude that an insured person is eligible to apply for the revival of [disability benefits] under s. 86 so 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 injury sustained in the original accident
The issue on appeal was whether the chambers judge erred in concluding that she was entitled to disability benefits. In dismissing the appeal and concluding that the judge did not err in his conclusion that Ms. Symons was entitled to reinstatement of disability benefits, the Madam Justice Bennett (on behalf of the 3-panel court) summarized the arguments and concluded as follows:
 There are several trial decisions that discuss ss. 80 and 86 of the Regulation. For instance, in Rashella v. Insurance Corp. of British Columbia,  B.C.J. No. 689, a plaintiff sought to establish entitlement to benefits under s. 86 when he had not been so entitled under s. 80. Satanove J. ruled that “[s]ection 86 only comes into play once a person is presently receiving disability benefits under Part 7” (para. 32). That decision was applied in Andrews v. Roffel,  B.C.J. 631, where McEwan J. found, in relation to a claim for s. 80 benefits, at para. 20:
… There is no provision for those who become totally disabled after 20 days – presumably because causation would become difficult to prove – and there is no flexibility in the scheme for relapses following periods of gainful employment. Once an insured has achieved employment that exceeds the weekly benefit, he or she does not return to Section 80 benefits if that employment is subsequently lost for an accident related reason. For such losses, as Madam Justice Satanove observed in Rashella (supra), the insured “always has his tort action for past wage loss”.
 However, in Brewer v. Insurance Corp. of British Columbia,  B.C.J. No. 2031, Melnick J. considered the situation where a plaintiff applied for the reinstatement of her disability benefits under s. 80. She had received ten weeks of benefits before returning to work, but six months later she stopped working. Melnick J. framed the question as whether someone who was initially entitled to s. 80 benefits, but returned to full-time work, could have her benefits reinstated if she found herself unable to work within the time frame for which the benefits could otherwise be paid (para. 7). He concluded that the legislation did not preclude reinstatement (para. 20).
 ICBC argues that Brewer should be limited to circumstances where the claimant falls within the 104 weeks provided for benefits under s. 80.
 In response, Ms. Symons points to Halbauer v. Insurance Corporation of British Columbia, 2002 BCCA 5, where this Court considered a different factual scenario. In Halbauer, the plaintiff received 104 weeks of s. 80 benefits and approximately 18 months of s. 86 benefits. He returned to work full-time, but after 29 months could not continue working. ICBC took the position that he was disentitled to benefits once he returned to work full-time. This Court, adopting the reasoning of Melnick J. in Brewer, concluded, at para. 64:
… [T]he right to disability payments, after having ceased because the insured for a time is no longer disabled under s. 80, revive when the insured again becomes disabled because of the original injury.
 ICBC argues that that was a case where the plaintiff was already entitled to s. 86 benefits when they were stopped, and then reinstated. I think this cuts too fine a line. Brewer says a person receiving s. 80 benefits can be reinstated if he later becomes disabled from the original injury and Halbauer says a person receiving s. 86 benefits is entitled to have them reinstated if he or she is subsequently disabled because of the original injury. In my view, if the sections are read, as ICBC suggests, to mean that only a person who is disabled “at” the 104-week mark can obtain benefits after that period, that interpretation does not accord with the context and object of the legislation, nor within the reasoning of Halbauer.
 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” day at the end of 104 weeks. This interpretation is consistent with the object of the Act—to provide no-fault benefits for persons injured in motor vehicle accidents.
 In my opinion, the decisions in Rashella and Andrews have been overtaken by Halbauer and Charlton.
 Thus, the trial judge did not err in his conclusion that Ms. Symons was entitled to be reinstated for disability benefits under s. 86.
 I would dismiss the appeal.