Are you a worker injured in a motor vehicle collision?
You may have a choice on how to obtain compensation for your injuries.
If you are a worker injured as a result of someone else’s negligence, and the negligent party is not an employer or another worker acting in the course of their employment (i.e. protected by the Workers Compensation Act), then you can claim compensation from WorkSafeBC (as a worker) or start a law suit against the negligent person. This is called an “election” and this page discusses how you can use this process for your benefit.
If the potential defendant is a worker or employer acting in the course of employment, then you do not have a choice. The Worker’s Compensation Act legally requires you to seek worker’s compensation through WorkSafeBC.
But don’t delay
If you are a worker injured in the course of your employment, then you are required to file a claim with WorkSafeBC within 1 year of the date of the accident to receive workers compensation benefits, such as wage replacement benefits and health care benefits.
Upon filing your claim for compensation, WorkSafeBC will investigate and determine if the other person(s) responsible for your injuries are workers and employers. If they are not an employer or a worker then WorkSafeBC will ask you to make an “election” as to whether you wish to file a civil claim for negligence against the offending partyor continue to receive workers compensation benefits.
Pursuant to the Worker’s Compensation Act, as a worker you must make this election within 3 months of the injury or a longer period that the Worker’s Compensation Board allows. In our experience, extensions are routinely granted provided that the Board’s ability to recover is not impaired. Nevertheless, you should not delay in electing how you will attempt to seek compensation for your injuries.
With the changes to the potential benefits available from ICBC, it is even more important to carefully consider your options when making this election.
What happens to the negligence claim if you elect WorkSafeBC benefits
First, it is important to remember that by electing the worker’s compensation process, you are not choosing between a right to WorkSafeBC benefits or to compensation for damages in tort.
If you elect to seek worker’s compensation through WorkSafeBC, then your claim will proceed under that system, complete with all of the potential pitfalls and limitations of this system (click here for description of the WorkSafeBC benefits regime).
In choosing to continue to receive WorkSafeBC benefits, you still have the ability to seek compensation from the negligent-driver. However, your claim will be “subrogated” to WorkSafeBC, meaning WorkSafeBC can commence a civil claim for negligence on your behalf and has the right to determine if a civil claim can proceed.
If WorkSafeBC chooses to pursue a civil claim for negligent, the legal department at WorkSafeBC would handle all aspects of the claim your claim as if they were a private lawyer. They would seek compensation for your pain and suffering, loss of earning capacity, cost of future care, loss of housekeeping capacity, and costs.
Acting in this capacity, WorkSafeBC’s goal is repayment of benefits paid by WorkSafeBC to you. However, WorkSafeBC has an obligation to act in good faith and take the worker’s interests into account. As a result, settlements in excess of the benefits paid by WorkSafeBC can result in payments to workers, after considering fees for pursuing the claim. Unlike a private lawyer, if a worker refuses to cooperate with WorkSafeBC’s legal department, WorkSafeBC can still settle the claim based on the available evidence. So, a worker has less of a say in the resolution of their claim.
If WorkSafeBC has not started a legal action then a worker can be proactive and seek agreement of WorkSafeBC to pursue a civil claim through their own private lawyer. For example, if a worker after four or five months has decided that their case is more serious than initially thought, they can retain a private lawyer to consult with the legal department at WorkSafeBC and seek permission to start a negligence claim. Often, a private lawyer can come to an agreement with WorkSafeBC to pursue the subrogated claim on behalf of WorkSafeBC as well as compensation for the worker.
However, WorkSafeBC is not required to select the worker’s chosen lawyer and they may choose to pursue the negligence claim on their own. In the event, WorkSafeBC is not agreeable to the worker pursuing the action on there own a worker can still make a “re-election”.
The only method of ensuring that the worker’s chosen lawyer handles the tort claim is to make a “re-election”. Although there is no legislation on the issue, WorkSafeBC has allowed workers to “re-elect” and choose a tort action over a workers compensation claim. Before WorkSafeBC will allow a worker to “re-elect”, the worker must repay to WorkSafeBC all the compensation and healthcare benefits received plus a 25% administration fee, unless there is some other agreement in place. If the worker has undergone extensive medical treatment and hospitalization then the medical costs may be considerable.
What happens if I choose to pursue a negligence claim instead of WorkSafeBC benefits
There are several potential benefits to commencing a negligence action rather than seeking worker’s compensation. First, under a tort claim you only limited by what you can or cannot prove and have the potential to be awarded more types of and greater compensation or “damages” than are available under worker’s compensation. For example, under the worker’s compensation process you cannot claim for pain and suffering damages, loss of future earning capacity, or lost opportunities.
However, there are potential disadvantages to proceeding by way of a tort claim.
Most importantly, if you “elect” a negligence claim over WorkSafeBC benefits then you are not entitled to any Part 7 benefits from ICBC and will have to rely upon your own private disability benefits and/or extended health benefits until a settlement or judgment is made. As personal injury claims can take several years to complete not having access to disability and wage benefits is an important consideration.
Further, the changes to ICBC claims arising after April 1, 2019, mean that many ICBC claims will have the claims for pain and suffering capped at a maximum of $5,500.
In summary, some of the factors to consider when deciding whether to elect to proceed by way of worker’s compensation or through a tort claim include:
- Your ability to prove that the other party was at fault or “negligent”;
- The impact of not having Part 7 benefits;
- The availability of disability benefits to cover lost earnings;
- The availability of extended healthcare benefits to pay for treatment;
- The statutory upper limit of wage loss benefits under the Worker’s Compensation Act (as of 2020 is $87,100 per year);
- The extent of the injuries and whether they may fall in the “minor injury” definition in a motor vehicle collision claim;
- The availability of non-pecuniary damages in tort but not in WorkSafeBC;
- The prospect of loss of past earning capacity and loss of opportunity in tort as opposed to simply setting a wage rate as the same as the workers previous 12 months of earnings in WorkSafeBC;
- The prospect of future loss of earning capacity claim in tort but not in WorkSafeBC; and,
- The response of WorkSafeBC to proposals of pursuing the tort claim by private counsel, especially if they require immediate repayment of benefits.