BC Court of Appeal upholds exclusion of job retraining expenses in damages for injury

In a recent case involving personal injuries due to a motor vehicle accident, the British Columbia Court of Appeal determined that the vocational rehabilitation expenses were not health care expenses that the trial judge should include in the damages award. 

In Simms v. Alzawad, 2025 BCCA 346, the appellant was eligible for WorkSafeBC benefits because he was carrying out his job duties as a hospital transfer driver when the collision happened. 

WorkSafe spent $56,546.24 for the appellant’s benefit, comprising medical services plan payments, other health care benefits, and expenses under its vocational rehabilitation program. 

The appellant brought a civil claim against the respondent, who admitted liability, and included in the pleadings a subrogated claim seeking recovery of WorkSafe’s payments. 

In December 2022, the Supreme Court of British Columbia awarded the appellant damages for his injuries due to the accident. He appealed this judgment. 

The appellant alleged that the judge erred in assessing special damages by finding that BC’s Workers Compensation Act (WCA), 2019, did not oust the court’s jurisdiction to determine the necessity and reasonableness of WorkSafe’s vocational rehabilitation expenses. 

The appellant argued that the judge failed to include in the damages award WorkSafe payments totalling $17,919.86, consisting of disallowed vocational rehabilitation expenses that constituted health care costs. He alternatively asserted that the judge erred in finding these expenses unjustified. 

Outcome affirmed

The Court of Appeal for British Columbia dismissed the appeal. 

At the outset, the appeal court noted the following: 

• The issue on appeal involved statutory interpretation 
• The appeal court should determine whether the trial judge’s interpretation was erroneous and whether the appellant’s was sound 
• The outcome would bind the lower courts, as this case raised a novel issue of statutory interpretation 
• The point raised involved a consideration of public policy because it delved into the requirements for proof of damages in a subrogated claim aiming to allow WorkSafeBC to recover expenses in an injured employee’s benefit 

First, the appeal court said the judge erred by applying s. 133(1)(a) of the revised WCA rather than s. 10(10)(a) of the prior statute, given that the parties did not raise BC’s Statute Revision Act, 1996. However, the appeal court saw no impact of this error on the analysis because the provisions had the same effect. 

The appeal court ruled that, if a plaintiff demonstrated that WorkSafe spent amounts on health care under s. 133(1)(a), the court should include those payments in a damages award against the defendant, without further assessing their reasonableness. 

The appeal court said the judge failed to acknowledge that s. 133(1)(a) required the court to include all WorkSafe’s health care expenses for an injured worker in a damages award without independent proof that those expenditures were reasonable. The appeal court added that the judge erred by applying the common law requirements for proof of special damages to all WorkSafe payments. 

Ultimately, though, the appeal court decided that the judge did not reach a wrong or unjustifiable outcome. The appeal court explained that it would arrive at the same result through a different chain of reasoning. 

The appeal court noted that the judge decided to include all items in WorkSafe’s bill under health care in the special damages award, except for occupational therapy costs relating to the implementation and monitoring of a retraining course amounting to $2,957.50. 

The appeal court deemed the judge entitled to find the WorkSafe payments for the job retraining program unreasonable. 

The appeal court said the evidence supported the conclusion that WorkSafe unreasonably urged the appellant to retrain in a field for which he was ill-suited. The appeal court noted that he tried to participate in the program despite being uninterested in office administration, but failed to complete it. 

The appeal court concluded that the occupational therapy services WorkSafe billed as health care 
did not fall under “health care” as the WCA defined, based on the billing records’ description and the judge’s factual findings. 

The appeal court held that these occupational therapy services were instead expenditures relating to a vocational program under s. 155(1) of the WCA, which required the plaintiff to prove that they qualified as special damages at common law.