Should I Claim My Work Injury with WorkSafeBC or in a Personal Injury Lawsuit?

August 16, 2016

When you have been in an accident during the course of your duties at work, you may be eligible for two types of claims: a workers compensation claim or a personal injury tort lawsuit. As these two regimes are very different, it can be difficult to decide, which one is best for you.

This blogpost provides general information, however each case is different. It is beneficial to have a personal injury lawyer in Surrey at Spraggs & Co. assist you with this determination and process.

What is a WorkSafeBC Claim?

The Workers Compensation Act of British Columbia provides benefits to workers who are injured or die while “in the course of employment.” The injury or death could result from a motor vehicle accident, assault, defective product, slip and fall or an occupational disease caused by contaminated products, uncontrolled or poorly controlled contagious materials or people, or toxic chemicals.  Simply put, if you are harmed while working and due to this harm, you incur a loss of income to incur a treatment expense, you are entitled to benefits from WorkSafeBC.

Fault is not a determining factor. Regardless of whether it might have been your fault, your employer’s fault, or a co-worker’s fault, if you qualify, you are entitled to benefits from WorkSafeBC. This right to compensation, which is sometimes referred to as “no-fault” benefits, is exchanged for your ability to sue any employer or worker for your injuries.

If your injury happened to be due to the negligence of a co-worker or employer, it doesn’t matter how he or she was conducting work, including how egregious the negligence might have been – you are unable hold that person accountable with a lawsuit. Worker/worker and worker/employer injury lawsuits are barred in the Province of British Columbia. For example, if a motor vehicle collision was due to the negligence of another person who is on the job, such as a taxi driver, your recourse is solely with WorkSafeBC because of the bar against worker/worker injury lawsuits.

On the other hand, if the offending person is considered a third party because he or she was not in the course of employment or was unemployed when the accident occurred, you will have a choice. You can pursue your WorkSafeBC benefits or you can pursue a tort claim against the offending driver the same as if you had not been working at the time of the crash.  As such, based on the facts of your case, you may only be able to file a claim with WorkSafeBC or both ICBC and WorkSafeBC.

What is a Personal Injury Tort Claim?

A tort claim is for damages or compensation for losses caused by the negligence of another. These losses include intangible losses such as pain and suffering and more readily calculable damages such as lost wages or treatment costs. In these situations, there are no Part 7 benefits available and you forego WorkSafeBC disability benefits in favour of tort damages. Instead, your out-of-pocket expenses for treatment may be included in your tort claim.

How to Choose that Right Process for You

In most circumstances, a personal injury tort claim is the better method for compensation. A tort claim includes compensation for intangible losses like pain and suffering. Tort claims also provide more complete compensation for out of pocket expenses.

Personal injury lawsuits also more readily provide compensation for all economic losses including lost wages, future loss of economic competitiveness and more. As part of a personal injury claim, the courts provide some compensation for legal costs, which means that while negotiating a potential settlement, the defendant will usually allocate additional funds as a contribution to your legal fees.

There are very limited circumstances where it may make sense to proceed under WorkSafeBC instead of a tort claim. For example, if it is clear that the accident is completely or partially your fault, or you have experienced minimal pain or suffering as a result of the accident.

Before choosing which option to proceed under, it is important to consult with an experienced BC personal injury lawyer who can explain your options, what insurance is available and guide you through the process. You or a loved one may have only 90 days from the date of the injury to decide about claiming through WorkSafeBC or the decision may be made for you. This is a time sensitive and important decision, so it is important that you consult with legal counsel right away.

Contact us at Spraggs & Co., Injury Lawyers in Surrey

If you need a personal injury lawyer in Surrey, BC, we can help you with your case. Our lawyers can explain which laws apply to your unique situation and whether your claim should be filed with WorkSafeBC, through a personal injury tort claim. Contact us today for assistance at 1-800-939-3333.

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