An Insured who is entitled to temporary total disability benefits under a policy of insurance, but returns to work, is not entitled to resume temporary total disability benefits if his disability returns after the 104-week qualifying period

Mayson v. Chubb Insurance Company of Canada, [2005] B.C.J. No. 2364, British Columbia Supreme Court

The Plaintiff dislocated his shoulder on December 14, 2000. He underwent medical treatment for the dislocation and suffered a total temporary disability for approximately two months, as defined by the policy of insurance that he had with Chubb Insurance Company of Canada (“Chubb”). In February of 2001, the Plaintiff returned to his regular employment. Some time later, the Plaintiff separated his shoulder but continued to work. The shoulder separation was directly related to the initial injury. On September 30, 2003, several months after separating his shoulder, the Plaintiff underwent stabilization surgery due to the separation. As a result of the surgery, the Plaintiff was unable to work for one year. The Plaintiff lost approximately $50,000 of wages for that one-year period.

The policy of insurance that the Plaintiff had with Chubb provided temporary total disability benefits for 104 weeks after the date of loss, unless the person ceased to have a temporary total disability at which time the payment for benefits ceased. If the Insured remained disabled after 104 weeks, he would be entitled to permanent total disability coverage. Chubb took the position that benefits payable under the policy of temporary total disability insurance, must be continuous and that there was no provision for payment of disabilities that recur after the 104-week period.

The Plaintiff commenced an action for a declaration of entitlement to insurance under the policy that he had with Chubb. There was no dispute that when the Plaintiff returned to work in February of 2001 he was able to perform his job duties. He was able to perform his duties until he required the shoulder surgery, and following the surgery he was unable to perform his duties for one year. There was no dispute that the surgery was related to the initial injury. Plaintiff’s counsel referred to Brewer v. Insurance Corporation of British Columbia (1999), 71 B.C.L.R. (3d) 248), a case involving a claim for payment of benefits under s. 80 of Part 7 of the Insurance (Motor Vehicle) Act Regulations. Section 80 of the Regulations provided similar coverage to that under the Chubb policy, in which an Insured was entitled to temporary total disability benefits for a period of 104 weeks, or the duration of the total disability, whichever was shorter. In addition, both policies entitled an insured to permanent disability benefits if the insured remained disabled for more than 104 weeks. In Brewer, Melnyk J. determined that an insured who had initially qualified for benefits and then returned to work full-time, was entitled to further benefits when she was unable to continue working within the time frame for which disability benefits could otherwise be paid.

Sigurdson J. distinguished Brewer v. Insurance Corporation of British Columbia on the basis that in this situation, the condition was not continuous, as contemplated by the policy, because the Plaintiff was not under continuous medical care during the period of eligibility of 104 weeks after the loss, and his injuries did not prevent him from performing the duties of his regular occupation. Sigurdson J. noted that his view was strengthened by the fact that permanent total disability benefits under the policy of insurance did not commence until a Plaintiff had been entitled to temporary total disability benefits for 104 weeks. In the circumstances, Sigurdson J. determined that the Plaintiff’s additional claim of one year entitlement to temporary total disability benefits was not covered under the policy of insurance, and the Plaintiff’s action was dismissed.

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