If you are working at the time of the motor vehicle accident and the accident occurred within the scope of your employment, you may only have a claim through the Workers Compensation Act (WCB) and your right to claim against ICBC may be statute barred.
Under Section 11 of the Workers Compensation Act, a worker acting within the scope of his/her employment cannot sue another worker or employer also acting within the scope of his/her employment. The only entitlement to compensation is through WCB.
For example, if you are a courier delivering a package during work hours and are hit by a semi truck driven by a truck driver delivering a load of goods to a client, you may not have an ICBC claim despite the fact that you are in a motor vehicle and are injured.
The effect of been statute barred from an ICBC claim is significant because WCB does not provide compensation for many of the same heads of damages (types of compensation) that you may otherwise be entitled to with ICBC. For example, WCB does not pay non-pecuniary damages (pain and suffering), future loss to capacity, tax gross-up, management fees, full wage loss, etc.
If ICBC believes they have even a small shot at defeating your claim because of a WCB argument, you can be rest assured that ICBC will pursue that defense. What the defense involves is making submissions to the WCB under Section 257 of the Workers Compensation Act. The WCB board, called WCAT, accepts written submissions and makes a determination as to whether you have an entitlement to pursue the at-fault driver outside WCB.
The issues involved in a section 257 determinations are usually complicated and involve extensive legal argument. Also, you require other similar WCB decisions to support your position. If you are faced with this argument from ICBC then it’s best to get a lawyer.
