If you are a worker at the time of the motor vehicle accident and pursued compensation through WCB, this will severely affect your ICBC claim. The reason being, WCB has a statutory subrogation right to recover all their money paid out in the claim regardless of how well you do on your ICBC claim. In addition, WCB charges an “administration fee” of 28% on whatever they paid out to you.
The subrogation right is so strong that even if you aren’t able to recover the same compensation from ICBC, WCB still asks for all their money back. If for example you receive a $100,000 settlement from ICBC and WCB had paid $20,000 in benefits, WCB gets the first $20,000 of the settlement plus 28% on the $20,000 and then the rest is provided to you. In other words, you only get the residual that is left over.
In some situations, this is unfair. If for example, WCB provides benefits which are not covered in the ICBC claim, you still have to pay WCB back for those benefits plus 28%.
In addition, if you use a lawyer not at WCB, if your lawyer does not negotiate a waiver of the administration fee for you, you end up paying WCB for doing nothing to advance the claim against ICBC.
If you agree to allow WCB to pursue the ICBC claim for you through their in-house lawyers, there is a perceived bias because the WCB lawyer is acting for WCB and being paid by WCB so how much is the lawyer going to really pursue your claim if they are able to settle with ICBC at a number large enough to get all of WCB’s money back plus the 28%? If it’s a difficult case with a liability issue, will a WCB lawyer fight to trial for you if his employer’s expenses have been repaid?
There is absolutely nothing you can do about the subrogation rights because WCB is aggressive about trying to get their money back and the statutory provisions in the Workers Compensation Act give WCB the complete right to demand payment of everything.
You may want to think twice before you apply for and accept WCB compensation.
