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Difference between revisions of "Making a Worker's Compensation Claim (7:VI)"
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Making a Worker's Compensation Claim (7:VI) (view source)
Revision as of 01:18, 3 September 2022
, 01:18, 3 September 2022no edit summary
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= July 21, 2022}} | ||
{{LSLAP Manual TOC|expanded = workers}} | {{LSLAP Manual TOC|expanded = workers}} | ||
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Generally, a worker has no right to sue an employer or another worker in the course of their employment for a workplace injury. Instead, they are entitled to benefits from the Board. This is the “Historic Trade Off” discussed above and set out at s. 127 of the WCA [Former Act, s. 10(1)]. Note that the conduct causing the injury must arise out of and in the course of employment before this bar against litigation will apply. Actions outside of the course of employment (for example assault or criminal negligence) do not attract this bar against litigation. | Generally, a worker has no right to sue an employer or another worker in the course of their employment for a workplace injury. Instead, they are entitled to benefits from the Board. This is the “Historic Trade Off” discussed above and set out at s. 127 of the WCA [Former Act, s. 10(1)]. Note that the conduct causing the injury must arise out of and in the course of employment before this bar against litigation will apply. Actions outside of the course of employment (for example assault or criminal negligence) do not attract this bar against litigation. | ||
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 | 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. | ||
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 of 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). | 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 of 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). | ||
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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. | 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. | ||
An election is an important and complex decision | An election is an important and complex decision and workers should be referred to the Workers’ Advisors Office website at www.labour.gov.bc.ca/wab or assisted before deciding whether to claim compensation. | ||
Where a worker elects Board benefits, the Board becomes “subrogated” to the worker’s claim pursuant to s. 130 of the WCA [Former Act, s. 10(6)]. This means that the Board can step into the shoes of the worker and bring any lawsuit that the worker would be able to bring. | Where a worker elects Board benefits, the Board becomes “subrogated” to the worker’s claim pursuant to s. 130 of the WCA [Former Act, s. 10(6)]. This means that the Board can step into the shoes of the worker and bring any lawsuit that the worker would be able to bring. | ||
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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. | 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. | ||
When the Board is subrogated to a claim, it has exclusive jurisdiction to decide if it will take legal action against a third party. | When the Board is subrogated to a claim, it has exclusive jurisdiction to decide if it will take legal action against a third party. If it does take action and recovers more than the total value of the worker’s benefits, the worker receives the difference minus a 23% administration fee. If the Board recovers less than the total value of benefits, the worker will not receive any excess. A worker cannot waive or assign their right to compensation. | ||
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 Board approval for any settlement'' if they wish to apply for “top up” compensation following the settlement of a legal action. | 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 Board approval for any settlement'' if they wish to apply for “top up” compensation following the settlement of a legal action. | ||
{{LSLAP Manual Navbox|type=chapters1-7}} | {{LSLAP Manual Navbox|type=chapters1-7}} | ||