The issue of the relationship between disability benefits and the common law notice award is reviewed above.

Does Insurer have Right of Recovery

The reverse context of this issue is that quite often insurers stipulate as a policy term that payments made by the employer contemporaneous with the disability period give the insurer a disability holiday for the period represented by the employer’s payments. This will then be a matter of careful construction of the wording of the policy.¹ The prospect of double recovery will hinge upon the construction of the policy term.

There are few cases dealing with this issue of the subrogated right of the insurer to recover in the context of such contemporaneous sums of notice and insurance.

The wiser strategy from the plaintiff’s perspective, where practical issues may allow it, would be to pursue the disability claim to its natural conclusion and then allow the commencement the severance claim. Although this plan would be harmonious with the employer’s duty to accommodate, it may still be an adventure which is simply not possible to navigate, without the employer’s concurrence.