Work Related Injuries and Your ICBC Claim

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.

For example, if you a courier delivering a package during work hours and is 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 despite the fact that 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), future loss to capacity, tax gross-up, management fees, full wage loss, etc.

If ICBC believes they have even a small shot at defeating your claim because of a worker vs. worker argument, 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 makes a determination as to whether or not 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 argument then it’s best to get a lawyer.