The basic rule with respect to whether a person is entitled to disability benefits from ICBC following a motor vehicle accident is set out in s.80(1) of the Insurance (Vehicle) Regulation, B.C. Reg 447/83:
“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 s.2 of Schedule 3 (i.e. $300/week); (b) in respect of an accident that occurred… (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” (s.80(1) Insurance (Vehicle) Regulation).
To be entitled to s.80 benefits, an insured must not only satisfy the requirements set out above, but also must have suffered an actual loss. Thus, where the disabled person has somehow found a way to maintain their employment and employment income despite the disability (by, for example, hiring another person to do the job), there will be no entitlement to benefits under s.80 (Prato v. Insurance Corp. of B.C., 2003 BCSC 76, paras 57, 61-62).
“‘Total disability’ within the meaning of s.80 does not require an inability to do any acts or duties required in employment or an occupation… Appropriate guides to a meaningful definition here would therefore be: when an injured person cannot perform any substantial requirement of his ordinary duty of employment, and where the disability is as to an ‘… inability to do substantially all the material acts… in substantially his usual and customary manner…’” (Bennison v. Insurance Corp. of B.C., 2005 BCSC 1503, para 26, quoting Kenni v. Insurance Corp. of B.C.) (“Bennison”) (Halbauer v. Insurance Corp. of B.C., 2002 BCCA 5, para 20) (“Halbauer”). A person may be “totally disabled” even where the worker is performing at work, but at reduced levels and by sufferance of a tolerant employer (Kenni v. Insurance Corp. of B.C.,  B.C.J. No. 2904, para 12).
“Employed person” means a person (a) who, on the date of an accident for which a claim is made, is employed or actively engaged in an occupation for wages or profit, or (b) who…(ii) for any 6 months during the period of 12 months immediately preceding the date of an accident for which a claim is made is employed or actively engaged in an occupation for wages or profit” (s.78; Insurance (Vehicle) Regulation).
“Employment or an occupation” is actually interpreted as “employment or any occupation” (Halbauer, paras 21, 23, 42). Thus, to qualify for benefits, a claimant must show not only that he is totally disabled from engaging in his previous employment but is also totally disabled from engaging in employment for which he is reasonably suited by education, training or experience (Sheflo v. Insurance Corp. of B.C., 2002 BCSC 536, para 32) (“Sheflo”). The test “is a subjective one related to the background and condition of the insured person in question. If he is healthy enough to take up an occupation for which his background reasonably suits him, he is deemed not to be disabled” (Sheflo, para 35).
Onus of Proof
The initial onus is on the P to show that he is disabled; if that can be shown, a strategic onus falls on ICBC to prove on a balance of probabilities that there is employment or an occupation reasonably suited to the P by education, training or experience (Stitt v. Insurance Corp of B.C., 2006 BCSC 360, para 8, quoting Sheflo v. ICBC) (Bennison, para 30) (Sheflo, para 28).
Section 85 (Insurance (Vehicle) Regulation)
The obligation of ICBC to pay benefits pursuant to s.80(1) is subject to s.85. Section 85 says: “(1) No disability benefits are payable under s.80… unless the insured is disabled for a period of more than 7 days; (2) If the insured is disabled for more than 7 days, no disability benefit is payable by the corporation for the first 7 days after the disability commenced” (s.85, Insurance (Vehicle) Regulation).