Difference between revisions of "Making a Worker's Compensation Claim (7:VI)"

The employer must complete a report to the Board within three days of receiving the worker’s report, or immediately if death results. The failure to do so is an offence under the WCA.

In circumstances where the s. 127 bar against litigation does not apply, a worker may choose to sue the person or company responsible for causing a work injury rather than making a claim for Board benefits. In order for a worker to have the right to choose (or “elect”) to pursue a legal claim, there must be a party who is potentially liable for the injury and is not an employer or a worker in the course of their employment under the WCA. As set out above, this can occur when the actions of an employer or worker fall outside the scope of their employment. In addition, this can occur when a non-worker or non-employer is responsible for the injury. For example, if a worker is injured while on the property of a private citizen, the worker may be able to elect to sue the property owner under the Occupiers Liability Act, RSBC 1996, c 337, rather than claiming Board benefits.

Note that, as of May 1, 2021, there is no right to sue in relation to any motor vehicle accident occurring in BC pursuant to the Insurance (Vehicle) Act, RSBC 1966, c. 231. As a result, no workers will have any right of election in respect to injuries related to a motor vehicle accident outside of a few narrow exceptions. These exceptions include accidents involving off-road/farming vehicles, manufacturer’s liability issues (e.g., faulty mechanics/repair), accidents occurring outside of BC, and accidents where the potentially liable driver has committed an offense under the Criminal Code (see Insurance (Vehicle) Act, ss. 113–116).  

Where there is a potentially liable party to whom the s. 127 bar does not apply, the worker has a right of election under WCA s. 128 [Former Act, s. 10(2)–(4)]. The worker will be given the opportunity to make this election after applying for Board benefits. If the Board has accepted a claim and determines that there is a right of election, the worker will be provided with an “Election to Claim Compensation in BC” form. The worker must elect to claim compensation within three months of the date of the injury unless the Board allows otherwise.

If the worker elects to pursue a lawsuit, they will not receive any benefits from the Board. If they elect to receive Board benefits, they will not have the right to bring a lawsuit in respect of their injury.

Board subrogation is different from the type of subrogation that occurs under insurance contracts. Insurance companies will only become subrogated to actions related to the specific type of benefits they paid out. For example, if an insurance company pays out $10,000 in relation to water damage, that company can only step into the shoes of their insured for claims specifically related to the cause of the water damage. The Board, on the other hand, is subrogated to any and all claims the worker may have connected to their injury. For example, even if the Board paid out only wage-loss benefits, the Board can still step into the shoes of the worker and bring a claim in relation to any loss or damage arising from their injury.

If a worker chooses to pursue court action and is unsuccessful, or the award is less than they would have received under the compensation regime, the worker may still be able to receive compensation. However, the original claim for compensation must have been made within the time limits outlined above. Note that the worker must have written approval from the Board for any settlement if they wish to apply for “top up” compensation following the settlement of a legal action (WCA, s. 129).