What happens when you have been injured in a motor vehicle accident due to the negligence of someone else but you were within the course of your employment?

Did you know that you may have a choice to elect coverage under WorkSafeBC (also known as “WCB”) or ICBC?

Making the election can be a complicated decision and, depending on the circumstances, you may not even have an option to elect.

Section 10 of the Workers Compensation Act initially prohibits you from suing the negligent driver if that individual is also working within the course of their employment or is an employer. However, if the negligent party is not working, you may be able to elect to proceed with a tort action or pursue a claim for compensation under the Workers Compensation Act.

It is therefore imperative to determine the status of both yourself and the other party as soon as possible following the accident. The need to address this immediately following the accident is due to the short deadlines for election contained within the Workers Compensation Act.

The actual status of yourself or the other party can be a very difficult determination to make. It typically requires a detailed review of all circumstances and factual background of each party. In addition, only WorkSafeBC can make the final decision on the status of the parties. This requires an application to WorkSafeBC and, again, the timeliness of this process is critical.

If it is determined that you are not barred from making an election by section 10 of the Workers Compensation Act, and you want to pursue an ICBC claim, you then must notify / make an application to WorkSafeBC within three months of the accident. There is specific paperwork that must be completed to apply / elect and it is imperative that all requirements are met.

However, there are many other considerations that must be reviewed to determine if electing for an ICBC claim is the right decision for you. The following is a non-exhaustive list of the various factors that could complicate such a decision:

  • consideration of the benefits available under the Workers Compensation Act;
  • consideration of a provisional claim with WorkSafeBC;
  • re-election under the Workers Compensation Act;
  • contributory negligence;
  • multiple negligent parties;
  • employment status disputes requiring appeals;
  • out of province issues; and
  • Self-employed individuals;
  • Federal Government employees;

Due to the various factors that could complicate an election decision, and the various short deadlines involved, it is highly recommended that experienced legal advice is sought after immediately following an accident. The personal injury lawyers at Rella, Paolini & Rogers are available to assist you with these issues and we invite you to contact us for a free legal consultation at (250) 426 – 8981 or through our website at www.rellapaolini.com.