Mussio Law Wins WCB Tribunal Decision Against Insurance Company

Posted on by Mussio Goodman

When an injured motorist first informs ICBC of the accident, one of the questions they may face is whether they were working at the time of the collision. This is because, if both drivers were “workers” as defined by the Workers Compensation Act, there can be no injury claim against ICBC; rather, any compensation must be sought through WCB instead.

This is an unfavorable situation to any injured party, as the WCB regime does not provide any compensation for pain and suffering, and only limited reimbursement for lost wages.

Naturally, given the chance, ICBC will argue that a claimant was working, or performing some sort of work related activity, to avoid having to pay out. This was the case in the unique scenario of Terry Robinson v. David Noyes and Price’s Trucking Ltd.

In this case, the Plaintiff left his office on his break to meet his childhood friend for lunch. The motor vehicle accident occurred en route.

Generally speaking, an injured party is not declared to be “working” pursuant to the Workers Compensation Act if the accident occurred during a lunch break. However, ICBC argued that, because the Plaintiff’s childhood friend was also a regular client, the lunch appointment should be deemed to be “client development” rather than merely a social outing. Therefore, ICBC submitted, this particular lunch break was in fact work-related, and the Plaintiff’s injury claim should be extinguished.

On behalf of the Plaintiff, Eric Goodman argued that the predominant purpose of the lunch meeting was personal or social in nature, rather than the product of a business relationship. The tribunal agreed:

[27] …The plaintiff submits that his [Examination for Discovery] statement that “anything is possible,” regarding whether he and [his friend] would have discussed some business, was in response to a speculative question with respect to a lunch which never took place. The further evidence of the plaintiff in his affidavit is that it was not his intention to discuss business over lunch, but he could not say that he had any intention to avoid discussing business. The purpose of the lunch was purely personal in nature.

[34] …There is strong evidence of a longstanding personal association outside of the plaintiff’s employment… I find persuasive the plaintiff’s evidence that the lunch meeting was arranged due to the fact that Williams’ work near Capilano Road on April 2, 2009 motor made it convenient for them to meet for a social lunch.

[41] In the circumstances, I find that the plaintiff’s travel to North Vancouver to meet Williams for lunch involved a distinct departure on a personal errand…

[42] I find, therefore, that the injuries suffered by the plaintiff in the April 2, 2009 accident did not arise out of and in the course of his employment within the scope of Part 1 of the Act.

With this result, the Plaintiff was entitled to pursue his ICBC claim for pain and suffering, lost wages and out-of-pocket expenses resulting from a severe lower back injury he sustained in the accident.