If you are injured in a motor vehicle accident in British Columbia that prevents you from working, you may be entitled to disability benefits, even if the accident was your fault. This is because in British Columbia, we have a “no-fault” benefit scheme which provides wage loss benefits, death benefits, and medical benefits that are available to most people injured in a motor vehicle accident in BC (and for BC residents injured in the states, or elsewhere in Canada). These benefits are set out in Part 7 of the BC Insurance Vehicle Regulation (which is why sometimes they are referred to as “Part 7 Benefits”).
Calculating the Benefit
In many cases, it is simple to determine eligibility for disability benefits, and to determine the amount of the benefit. However, the calculations must be done according to a formula set out in the provisions of the Insurance Vehicle Regulation, which look like this:
Disability benefits for employed persons
80 (1) 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 section 2 of Schedule 3;
(b) in respect of an accident that occurred
(i) before January 1, 1987, an amount per week calculated by taking 75% of the insured’s gross earnings for the 12 month period immediately preceding the accident, dividing by 52 and multiplying that amount by the weekly benefit multiplier in Column B of Table 1 of Schedule 3 opposite the year of the accident in Column A,
(ii) on or after January 1, 1987 but before 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, dividing by the number of weeks and fractions of weeks actually worked during that period and multiplying that amount by the weekly benefit multiplier in Column B of Table 1 of Schedule 3 opposite the year of the accident in Column A, or
(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.
(2) Where disability benefits are payable to an insured for a period of less than one week, the amount payable for each day shall be determined by dividing the amount payable weekly by the number of days the insured regularly works in a week.
In short, this formula stipulates that the amount of the weekly benefit will be:
- 75% of your average weekly earnings;
- Your average weekly earnings are calculated as an average of each week that was worked in the last twelve months; and
- the maximum benefit is $300 per week.
This means that in order for ICBC to calculate the amount of the benefit, they will need proof of your income for the last twelve months. For some people, this is as easy as providing an ROE or a tax return. For others, particularly those that have multiple jobs, are self-employed, work in informal settings or get paid “under the table”, this can be a challenging task. Self employed people and those that work informal jobs are sometimes at a disadvantage, because difficulty to prove employment can result in a delay of the benefits, or a loss the benefits entirely.
Note also that the amount of the ICBC disability benefit must be reduced by any benefits you receive from other sources, including Employment Insurance. and private insurance.
As set out in the above section of the regulations, ICBC disability benefits are available only to “employed persons”. However, this doesn’t necessarily mean that if you were between jobs at the time of the accident, that you will not be entitled to benefits. Section 78 of the Regulation defines “employed person” as follows:
78 In this Part:
“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
(i) Repealed. [B.C. Reg. 257/86, s. 21.]
(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;
This means that so long as you were employed for six out of the twelve months prior to the accident, you will be entitled to the benefit. The benefit amount will then be calculated based on an average of the six or more months that you worked prior to the accident.
Finally, to prove your eligibility to ICBC, you will need to show that you are “totally disabled” from engaging in employment or an occupation for which you are “reasonably suited by education, training or experience.” This means that although your injury may have disabled you from your current job, disability benefits will not be paid to you unless you are disabled from carrying out any job that you are qualified for. This can be a difficult burden to establish, and must be proven to the satisfaction of ICBC with medical evidence.
Photo Credit: Andrew Steinmetz https://www.flickr.com/photos/andosteinmetz/