The Commute Dispute: Workers’ Compensation vs. ICBC Claims

January 13th, 2016

Residents of Metro Vancouver spend an average of one hour per day driving vehicles to and from work. It is therefore not surprising that many motor vehicle accidents happen during this commute. The issue of when the resulting personal injury claim is a Workers’ Compensation Claim or an auto insurance claim (ICBC claim), is a very important issue that often comes up early in the claim process.

BTM The Commute Dispute - Workers Compensation vs ICBC Claims

There are three primary reasons why this is an important issue:

  1. The time limit for filing a WCB claim is different than the time limit for filing an ICBC claim;
  2. If both drivers are determined to be workers you are not entitled to make an ICBC claim, and must file a WCB claim instead; and
  3. If you are a worker and the other party is not, you can choose to pursue the claim either through WCB or against the at-fault driver (ICBC claim).

If you are a worker and the other driver is not, your decision to pursue a WCB claim or an ICBC claim will often depend on the nature and extent of your injuries, whether you have significant income loss, and whether you were at-fault or partially at-fault for the accident. With an ICBC claim you will typically receive more compensation than with a WCB claim, because WCB does not pay any compensation for pain and suffering. However, unlike with an ICBC claim, with a WCB claim you do not have to worry about whether the accident was your fault. So in some cases it is better to proceed with a WCB claim, and in other cases it is better to proceed with an ICBC claim. You should always consult with a lawyer before making the decision about which type of claim you should pursue.

Who, then, decides if you were a worker? It’s the Workers’ Compensation Board that makes the determination. Generally, the Board takes the position that individuals involved in car accidents during the commute are not “workers”. However, there is no definition in the Workers’ Compensation Act (the “Act”) of who is a worker and who is not, and the determination will depend on the facts of the individual case. Here are some relevant case examples:

  • In Buttar v Workers’ Compensation Appeal Tribunal, the plaintiff was on an unpaid lunch break when he was hit by a taxicab. Although he was considered a “worker” at the time of the accident, his injuries did not arise “out of and in the course of his employment”. Therefore, his benefits were not payable under the Act. At the same time, it was open to him to sue the cab company and the cab driver for damages.
  • In Greyhound Canada Transportation Corp v Brzozowski, the plaintiffs were fishermen travelling home after work on a Greyhound bus. They were injured when the bus left the road and overturned. Again, they were considered “workers” but their injuries did not arise “out of and in the course of” their employment. WCB noted that it might have reached a different conclusion if the transportation had been provided by or paid for by the employer.

In WCAT Decision #2005-01475, the plaintiff had a teaching assignment in the Queen Charlotte Islands. Her employer paid for her plane ticket back to Vancouver, but she was responsible for her own driving expenses. She was injured in a motor vehicle accident on the drive home. The tribunal found that the travel was clearly associated with her employment and was outside of the scope of her normal employment. Her injuries were therefore compensable under the Act.

As the above cases demonstrate, it is not always clear when the WCB will determine who a worker is under the Act. If you have been involved in a motor vehicle accident during your daily commute, give us a call at 604-937-1166 to discuss the facts of your case, and receive a free consultation with one of our personal injury lawyers.

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