WorkSafe Subrogation Rights

WorkSafe BC has a statutory subrogation right to recover all the money the Board paid out on the claim

If you were injured in a car accident while working but the at fault driver/owner is not a worker or employer, the Workers’ Compensation Act allows an ICBC claimant to elect to pursue the ICBC claim on his/her own so long as the claimant has not accepted WorkSafe benefits. The ICBC claimant is then entitled to advance the claim on his/her own or hire a lawyer. If that is the choice, you need to file an “Application for Compensation and Report of Injury or Occupational Disease” (Form 4) within a year of the accident, along with a letter advising WorkSafe you are suing a third party and wish to preserve your rights under section 10(5) of the Workers’ Compensation Act.

Filling out the Application will preserve your right to pursue WorkSafe benefits in the event you are fully or partially unsuccessful against ICBC. The catch is that you need to have WorkSafe approve the settlement first or lose your right to a WorkSafe top up.

If you decide to pursue compensation through WorkSafe, the injured person needs to submit an “Election to Claim Compensation in British Columbia” (Form 25W78) within 90 days of the accident. However, this election will greatly affect the way you deal with your ICBC claim. The reason being, pursuant to section 10 of the Workers’ Compensation Act, if a worker elects’ benefits, the legal action belongs to the Board. That is, the Board has control over the legal action and can decide to what extent they plan to pursue the ICBC claim, if at all. The Board has the final decision-making power on all issues including settlement although the staff lawyer on your case will get you involved in the process out of necessity.

WorkSafe BC has a statutory subrogation right to recover all the money the Board paid out on the claim regardless of how well you do on your ICBC claim.  WorkSafe can even clawback a “reserve” for future payments as well. In addition, WorkSafe charges an “administration fee” on the expenditures made by WorkSafe on your behalf such as wage loss, rehabilitation expenses, transportation costs, medical expenses and pension reserves. The good news is that you don’t have to pay extra legal fees of the staff lawyer as that cost is in the “administration fee”.

The subrogation right is so strong that even if you can’t recover full compensation from ICBC, WorkSafe still receives their payments plus an administration fee.  If, for example, you receive a $100,000 settlement from ICBC and WorkSafe had paid $20,000 in wage and medical benefits, WorkSafe gets the first $20,000 of the settlement plus an administration fee (usually 25%) on the $20,000 regardless of whether you were able to recover the full extent of the wage and medical benefits from ICBC.

After the deductions, you get the balance of the payment which often is less than if you had hired your own lawyer and not elected to go through WorkSafe. The simple reason is that you must pay the administration fee which is tacked onto the expenditures of the Board.

In the result, think twice before you apply for and accept WorkSafe compensation. It may be in your best interest to not accept WorkSafe benefits and pursue the ICBC claim outside of WorkSafe.