An injury indirectly caused by a pre-existing condition could exlude an insured from coverage under a policy of automobile insurance

The application by an individual injured in a motor vehicle accident ("Wafler") for a declaration that he was entitled to further disability benefits was dismissed where the Court held that Wafler was precluded from working as a result of an injury caused, directly or indirectly, by sickness or disease which pre-existed the accident and thus an exclusion in the Regulations applied.

Wafler v. Insurance Corp. of British Columbia [2008] B.C.J. No. 1962 British Columbia Supreme Court I. C. Meiklem J. October 20, 2008

Wafler was injured in a motor vehicle accident on November 22, 2005.  Subsequently, he received weekly disability benefits pursuant to s. 80(1) of Part 7 of the Regulations under the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 until the end of August, 2006.  After ICBC refused to pay further benefits, Wafler brought an application seeking a declaration that he was entitled to such benefits.

For approximately 18 months prior to the accident, Wafler had been working as a building siding installer.  For the ten years prior to that time, Wafler had worked as a locksmith.  Prior to the accident, Wafler had suffered from a pre-existing degenerative lumbar spine condition.  For the most part, this condition had been asymptomatic as it did not disable Wafler from functioning as an installer for a siding and roofing company at the time of the accident.  However, the Court found that the condition was symptomatic enough that Wafler had experienced episodic pain causing him to seek medical attention.  Based on the medical evidence, the Court concluded that the degenerative lumbar spine condition was a contributing cause of Wafler's disability after the August 31, 2006 date when benefits had been cut off.  As a result, the Court held that the exclusion found in s. 96(f) of the Regulations applied which absolved ICBC from continuing the pay benefits where the injury was caused, directly or indirectly, by sickness or disease unless sickness or disease was contracted as a direct result of the accident. 

The Court further indicated that if it had come to the opposite conclusion on the s. 96(f) exclusion issue, it would have decided that Wafler had established that he remained disabled from returning to his former occupation as a roofer and was likely disabled indefinitely from this occupation.  However, the evidence indicated that ICBC had discharged the onus of establishing that employment for which Wafler was reasonably suited, namely returning to his former trade of a locksmith, remained open to him.

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