I’ve tried so hard to keep working since my car crash but my injuries have made it impossible to continue. My doctors agree that my injuries have totally disabled me from working. ICBC says I’m too late in applying for Temporary Total Disability Benefits. Is there anything I can do?
Eligibility for TTD Benefits was the issue in the recent Summary Trial of Powell v. ICBC (2016 BCSC 1432). The plaintiff had been injured in an October 25, 2010, crash. “After the accident, the plaintiff was totally disabled from working from October 25, 2010 to November 19, 2010 (the “initial period of disability”). She returned to work part-time on November 22, 2010 and continued to work part-time until August 2, 2013. She then was totally disabled and has not worked since (the “current period of total disability”).”
The defence argued that the plaintiff was not entitled to TTD Benefits. They said she suffered no loss in the initial period as she was paid regular wages. The plaintiff was unable to show, through payroll records, whether the initial period was covered by vacation or regular pay. She only had a letter from her then employer stating that she “elected to cash out her vacation time after her accident”. Defence also claimed she was not entitled to continued benefits because she did not become totally disabled from working within the 104 week limitation date set out in section 86 of the Insurance (Vehicle) Regulation.
Madam Justice Dillon ruled on the initial period of disability:
 In this case, there is no doubt that the plaintiff was off work due to injuries sustained in the accident during the initial period of disability. There is also no doubt that she was paid her usual wages. There must have been a quid pro quo for that benefit, even though the plaintiff failed to prove specifically that she used vacation time for that benefit. The letter from the employer could be used for the limited purpose of corroborating the plaintiff’s evidence that there was an exchange, but not for the substance of the exchange. In this circumstance, the plaintiff has established a prima facie case of loss that has not been met by conflicting evidence from the defendant. The plaintiff has established a loss during the initial period of disability and that part of the claim is allowed.
She then moved on to the current period of total disability:
 With respect to the current period of total disability, the plaintiff claims entitlement to disability benefits commencing on August 3, 2013. This is about 144 weeks following the accident. Both parties agreed that s. 86 applies. However, the defendant argued that, in order for the plaintiff to receive benefits under s. 86, the plaintiff must establish that TTD benefits were being paid to her by ICBC at the 104 week mark and that at the 104 week mark, the plaintiff was totally disabled as a result of injury sustained in the accident. The plaintiff disagrees with this interpretation of the section and says that a purposive approach should be taken such that if the plaintiff’s injury was continuing at the end of 104 weeks after the accident, then s. 86 TTD benefits should be paid even if total disability and a claim for same occurs later.
 In Symons BCSC, the plaintiff had brought a summary trial application for a declaration that she was entitled to TTD benefits under Part 7 of the Regulation. The plaintiff had been healthy before the accident and the medical evidence established that she was totally disabled immediately following the accident from injuries sustained in the accident. She was paid TTD benefits initially and then the plaintiff returned to work full time. Over time, the plaintiff’s back injury worsened until she required surgery and was off work for a time before she returned to work on a reduced schedule. Unfortunately, the plaintiff suffered a further set back and was unable to return to work at all. These injuries were found to be causally related to the accident.
 It was accepted that the plaintiff met the requirements under s. 80(1) to establish that she was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. The plaintiff then argued that once she met the requisites for total disability within Part 7, the fact that she was able to return to work for a period of time did not disentitle her to renewed benefit payments after she again became totally disabled by injuries sustained in the same accident. The defendant argued that TTD benefits cannot be revived or reinstated outside the 104 week period referred to in both ss. 80 and 86 of the Regulation. Baird J. reviewed authorities that took a strict approach to ss. 80 and 86 and then considered the “benefit revival trilogy” cases of Brewer v. Insurance Corporation of British Columbia,  B.C.J. No. 2031 (S.C.), Halbauer, and Cai. He concluded that the plaintiff was entitled to revival of her TTD benefits based upon the principles of statutory interpretation that supported an extension of the principles in the revival cases to circumstances of Mrs. Symons. The learned justice concluded at para. 49:
 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.
 This judgment was upheld in Symons where the issue on appeal was whether the chambers judge erred in concluding that Mrs. Symons was entitled to disability benefits under s. 86 of the Regulation. ICBC argued that an insured must have an ongoing disability and be receiving benefits at the end of the 104 week period in order to receive benefits. Because Mrs. Symons was not receiving benefits at the end of the 104 week period and because her disability did not flare up until after that period, the Regulation did not permit for the reinstatement of s. 86 benefits. The plaintiff urged a contextual and purposive approach to statutory interpretation of s. 86 that would not result in absurd results as urged by ICBC.
 Bennett J.A., for the Court, found at para. 17 that the regulations in question should be considered in the context of the legislative scheme to provide universal, compulsory insurance and access to compensation for those who suffer losses from motor vehicle accidents. Benefits-conferring legislation is to be interpreted in a broad and generous manner (at para. 18). The Court concluded at para. 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” 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.
 The decision in Symons applies directly to the facts in this case. The plaintiff was an employed person who sustained injury in an accident which totally disabled her within 20 days after the accident. She is entitled to disability benefits for the initial period of disability. Although the plaintiff returned to part time work for a time and did not apply for TTD benefits within or at the 104 week mark, if is accepted that she is totally disabled as a result of injuries sustained in the accident, then Symons supports her position that it is not necessary that she be actually receiving benefits or that her disability had been ongoing at the 104 week mark. The issue then becomes whether the plaintiff has satisfied the onus upon her to show that she is totally disabled as a result of injuries sustained in the accident.
After a review of the medical evidence, Madam Justice Dillon agreed that the plaintiff was totally disable from working due to her crash injuries and declared the plaintiff entitled to TTD benefits.