The Importance of Using Sick Days For Injuries Instead of Vacation Days

Posted on by Mussio Goodman

Vacations are a time to kick back, relax, and enjoy some well-deserved time off work. Here at Mussio Goodman Law Group, we know that when you have been injured in car accident and are prevented from working, your time away from the office is no vacation. Constant pain, treatment, and specialist appointments are a far cry from margaritas and Mexican sun.

It may seem logical that when you miss work because of your injuries and take vacation days as a result, you should be compensated for those wasted days that you could have spent on the beach or with your family. However, the Supreme Court of British Columbia does not see it that way.

In the recent case of McCartney v. McArthur 2014 BCSC 2164, the court found that paid vacation days used after a motor vehicle accident are not compensable in an ICBC claim. The court gave the following reasons:

[82]         At the time of the accident the plaintiff was working about 32 hours a week at Oak Hills Woodcraft. He received a base salary of $1,200, plus a car allowance of $150 every two weeks, for a total of $1,350. He took seven days off after the accident; however, he used his vacation time for that time off and continued to receive his regular salary. In 2010 his income was $36,549 which is slightly more than he received in the years before the accident.

[83]         The plaintiff seeks $1,181.25, representing his salary for the seven days that he did not work shortly after the accident when he used his vacation time. The plaintiff argues that by using seven days of his vacation entitlement he gave up something that should be compensated for as past wage loss.

[84]         While the use of days from a bank of sick leave days may entitle a plaintiff to compensation for the loss of past income because the plaintiff may have to pay to replace the sick days, in my view the use of vacation time does not represent lost income. (Roberts v. Earthy, 1995 CarswellBC 1800 (B.C.S.C.)). During that vacation time the plaintiff continued to receive his expected income.

The moral of the story is that when you are on “vacation”, you are still being paid a regular salary. Thus, the courts do not feel there is a compensable loss to be recovered.

While this is unfortunate, we feel it is important for the public to be aware of this so that future issues can be avoided.

The bottom line is that you will not be able to recover income from time off work while you are being paid a salary for vacation time. Therefore, we always advise our clients to exhaust all possible remedies for income substitution prior to taking vacation days.

In particular, a claimant should first use their sick days and exhaust their “sick bank”, as such days are compensable under the law.