Work Related Injuries and Your ICBC Claim

If you are working at the time of the motor vehicle accident you only have a claim through the Workers Compensation Act, not through ICBC

If you are working at the time of the motor vehicle accident and the accident occurred within the scope of your employment, you may only have a claim through the Workers Compensation Act and your right to claim against ICBC may be statute barred.

Under the Workers Compensation Act, a worker acting within the scope of his/her employment cannot sue another worker or employer also acting within the scope of his/her employment.  The only entitlement to compensation is through WorkSafe BC, which is not ideal in many injury claims.

For example, if you are a courier delivering a package during work hours and are hit by a semi-truck driven by a truck driver delivering a load of goods to a client, you may not have an ICBC claim even though you are in a motor vehicle and are injured.

The effect of being statute barred from an ICBC claim is significant because WorkSafe BC does not provide compensation for many of the same heads of damages that you may otherwise be entitled to with ICBC.  For example, WorkSafe BC does not pay non-pecuniary damages (pain and suffering), full future loss to capacity, tax gross-up, management fees, full past wage loss, loss of housekeeping services, etc.

If ICBC believes they have even a small shot at defeating your claim because of a worker vs. worker defense, you can be rest assured that ICBC will pursue that defense.  What the defense involves is making submissions to the WorkSafe BC under Section 257 of the Workers Compensation Act.  The WorkSafe BC independent board, called WCAT, accepts written submissions and decides as to whether you have an entitlement to pursue the at-fault driver outside the WorkSafe BC scheme.

The issues involved in a Section 257 determination are usually complicated and involve extensive legal argument. Also, you require other similar WCAT decisions to support your position.  In the result, if you are faced with an argument from ICBC that you do not have any entitlement to ICBC money because of the worker vs. worker defense then it’s best to seek out legal advice.