Say you, a delivery truck driver, were injured in a rear-end accident while working. You’re covered by WorkSafeBC, and the driver at fault in the accident has ICBC liability insurance. Should you look to WorkSafeBC for recovery, or are you better off seeking compensation from ICBC?

That depends. But first, be aware that you may not have a choice.

If the driver at fault was also working at the time and is covered by WorkSafeBC, you can only get workers compensation. That’s because section 10 of the Workers Compensation Act prohibits suing in court for compensation – sometimes called the “worker-on-worker” bar.

But if the other driver wasn’t working, you have a choice. You can collect WorkSafeBC benefits, or you can take legal action against the at-fault driver (who will be defended by ICBC).

It makes a difference how you choose.

For example, with WorkSafeBC, you don’t control whether you’ll get anything for “pain and suffering.” Compensation for lost future earnings is also much more limited. If you were seriously hurt, these dollar amounts can be huge. ICBC knows this, so they may try to steer you to seek compensation from WorkSafeBC rather than suing the at-fault driver (and ICBC). But if you claim through WorkSafeBC, you may lose your ability to sue the at-fault driver and ICBC, potentially giving up a lot of money only available through ICBC.

You also have to choose quickly, because the time period for claiming WorkSafeBC benefits is short. And there are many questions you’ll need answers to first. For example, what if the at-fault driver who hit you was on their way to work at the time of the accident? Does it matter if they were driving a company vehicle, or got mileage reimbursement at the time? Does this mean they were “working”? If so, you are caught by the “worker-on-worker” bar and can’t sue. The Workers Compensation Appeal Tribunal has the authority to decide who are “workers” for this purpose, and its rulings generally stand.

If this is an issue and you try to sue the at-fault driver, ICBC will likely defend claiming that your lawsuit is barred by the workers compensation law. If the Workers Compensation Appeal Tribunal later decides the at-fault driver was indeed a “worker” and the ICBC defence succeeds, you’ll be stuck paying not only your own lawsuit costs but probably some of the defendant’s legal costs too. So you need to know up front.

And there are other things that play into what option to pursue. If you collect WCB benefits, WCB may, in your place, pursue ICBC. WCB is entitled to stand in your shoes and recover any benefits it pays you, plus a significant percentage for administration fees. But do you want the WCB lawyers to sue on your behalf against the ICBC-defended, at-fault driver? Or do you want your own lawyer to do it? Given that the focus of the WCB lawyers is on recovering WCB’s costs, how hard will they fight to get you any money you may be entitled to over and above that? If they want to accept an ICBC-offered settlement, you’ll be stuck with it even if you think it’s too low.

There are many wrinkles to any particular situation involving workers injured in a vehicle accident, making each one unique. Talk promptly with an experienced personal injury lawyer who can guide you and help preserve both your WorkSafeBC and ICBC claims.

Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.