If you were a worker in the course of your employment, but the other driver was not, you can choose whether to pursue your WorksafeBC claim or your ICBC claim. However, you must take two steps to preserve your WorksafeBC claim:
- You must submit a written application to WorksafeBC within a year (and ideally within 3 months) of the accident. The application must be submitted using WorksafeBC’s form (currently Form 6).
- You must also notify WorksafeBC of your election to pursue your ICBC claim. According to the Act, you must do this within 3 months of the accident. However, if it has been more than 3 months, you should still file your election, but as soon as possible.
It is important to make your election before receiving any benefits from WorksafeBC. If you elect to pursue your ICBC claim after you’ve received WorksafeBC benefits, they can require you to repay those benefits in full, plus an additional 29% “administrative fee”.
Once you have submitted the application and notified WorksafeBC of your election, you should receive a letter confirming that you have submitted the required forms and your WorksafeBC claim is protected (the letter may say it is protected “on a provisional basis”, that is normal).
The main benefit to preserving your WorksafeBC claim is that if your ICBC claim is dismissed, or you are awarded less than you would have received from WorksafeBC, you can activate your WorksafeBC claim and receive benefits (subject to a deduction for the award received).
If you elect not to pursue your ICBC claim, WorksafeBC may choose to litigate it on your behalf. This is entirely at the discretion of WorksafeBC, you cannot direct them to pursue your ICBC claim. If they do choose to pursue it, they keep all the amounts equal to what they’ve paid you, as well as any costs or legal fees they incur. If there is anything left once those expenses are deducted, you are entitled to the remainder.