WCB Subrogation Rights
If you are a worker at the time of the motor vehicle accident and pursued compensation through WorkSafe BC, this will severely affect your ICBC claim. The reason being, WorkSafe BC 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, WorkSafe BC 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, WorkSafe BC still asks for all their money back. If for example you receive a $100,000 settlement from ICBC and WorkSafe BC had paid $20,000 in benefits, WorkSafe BC 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.
In some situations, this is unfair. If for example, WorkSafe BC provides benefits which are not covered in the ICBC claim, you still have to pay WorkSafe BC back for those benefits plus 28%.
In addition, if you use a lawyer not at WorkSafe BC, if your lawyer does not negotiate a waiver of the administration fee for you, you end up paying WorkSafe BC for doing nothing to advance the claim against ICBC.
If you agree to allow WorkSafe BC to pursue the ICBC claim for you through their in-house lawyers, there is a perceived bias because the WorkSafe BC lawyer is acting for WorkSafe BC and being paid by WorkSafe BC 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 WorkSafe BC’s money back plus the 28%? If it’s a difficult case with a liability issue, will a WorkSafe BC 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 WorkSafe BC is aggressive about trying to get their money back and the statutory provisions in the Workers Compensation Act give WorkSafe BC the complete right to demand payment of everything.
In the result, think twice before you apply for and accept WorkSafe BC compensation. It is best to just go with ICBC coverage.