Recent Law On The Issue Of
There have been two B.C. Court of Appeal decisions in January and
March, 2002, that have helped clarify the law that applies to claims for “no-fault benefits”.
Q: ICBC has an obligation under no fault benefit regulations to pay up to $300 per week to anyone who, because
of an accident, becomes totally disabled from engaging in employment or occupation for which they are reasonably suited by
education, training or experience. What does “totally disabled” mean?
In the case of Halbauer v. ICBC, Mr. Halbauer, age 24, suffered serious and permanent injuries in a motor vehicle accident.
All his life, before the accident, he had worked in construction, automobile repair and logging. After the accident, he wasn’t
able to go back to any of these type of jobs, but was able (after a prolonged recovery) to work as a clerk (a job he didn’t
like at all). He did this clerking job for about five months and then quit. Had he not quit, he would have been fired.
The Court of Appeal dealt with some important questions:
A: “Totally disabled” should be equated with “substantial disability”, i.e. the injured person must be unable to
perform the substantial requirement of the ordinary duties of their employment.
Q: If the injured person is able to work at a job completely different (i.e. a desk clerk, as opposed to construction
or logging), does that mean that they are no longer “totally disabled”? Or does it mean they must be able to go back to their
A: “Employment or an occupation” doesn’t mean the person’s old job - it means “any employment”; in other words,
if the injured person cannot do their old labouring job, such as construction, but can do a desk job, such as being a clerk, they
are no longer “totally disabled”.
Q: Who has the onus of proof - the injured person, to prove that he/she cannot work any job, or ICBC, to prove
there are some jobs that the injured person can do?
A: The injured person must prove they are totally disabled. If ICBC disputes this, then ICBC must prove there is a
job which is suited to their capabilities, given the injuries they have suffered.
Q: If the injured person tries a job, but cannot maintain it, does this then prevent a second application for total
A: Disability benefits can be reinstated if, after a work trial, it is proven the injured person is incapable of work due
to his/her original injuries.
Q: What happens if the ICBC doctor says the injured person is capable of working? Will this defeat their claim for
A: The fact that the ICBC doctor says the injured person can work may not be enough to win the case for ICBC.
The Courts require the ICBC doctors to give specifics of the injured person’s pre-accident employment, the injuries and
their opinion on current disability. The Court weighs this opinion with those given by the injured person’s own doctors.
In the other decision, Carter v. ICBC, the Court of Appeal rejected ICBC’s suggestion that ICBC had
unchallengeable discretion to decide whether someone was or was not totally disabled. They rejected ICBC’s argument
that, once the adjuster decides an injured person can work, that question is final and binding and cannot be reviewed by the
These cases relate only to disputes over claims for no fault benefits. With each new development in the law, lawyers are
better able to advise their clients about whether they will be successful in securing the medical benefits that are so necessary
after an accident.
In addition, an injured person also has the right to sue the other driver for compensation for damages they have suffered, as
set out in the “Did you Know...?” section.
We can answer these questions and help you understand your
rights and your entitlements.
Please call us for more information.
This feature is not intended as legal advice and should not
be considered as such.