Combining WCB and Personal Injury Claims
In Alberta, provincial legislation called the Workers’ Compensation Act governs the Workers’ Compensation Board, widely known as “WCB”.
The WCB is intended to provide benefits for insured workers who suffer an injury in the course and scope of their employment. The types of benefits include wage replacement, medical expenses and rehabilitation. The WCB is a “no-fault” system, which means that an employee is entitled to benefits regardless of who is at-fault for causing the injury.
In most cases, WCB and personal injury claims don’t mix. Injured workers may be forced into the WCB system and therefore barred from starting a civil claim for their injuries. However, there are exceptions to this general rule.
When is Combining WCB and a Personal Injury Claim Possible?
If you are injured at work and the person who injured you was also working, then your matter is covered by WCB, and you are not allowed to bring a civil claim.
If you are injured at work and the party who injured you was not working, then you may be able to bring a civil claim. For example, if you are a delivery person delivering a package, you may be able to bring a claim against an at-fault driver who was not working and running a personal errand.
When there is doubt about whether a civil claim can be pursued, you should make an application to WCB to determine your eligibility. WCB will decide if it has control over your claim and if you can also make a civil claim. In the example above, WCB would need to give you permission to bring a lawsuit against the at-fault third party.
It can be complicated to know whether you have a WCB claim, the right to pursue a lawsuit against a third party, or both. The experienced Calgary personal injury lawyers at our firm, Preszler Injury Lawyers, can help you make this determination. Please call or email us for a free consultation.
Co-ordinating Benefits From Both WCB and a Lawsuit
If you have a WCB claim and are permitted to also start a civil claim, WCB will have control over your civil claim. Legally, WCB is the party bringing the claim in your name.
WCB will either appoint a lawyer for you or will approve a lawyer of your choice. Lawyers are Preszler Injury Lawyers are often retained by WCB to pursue an action against at-fault drivers.
WCB will enter a contract with the law firm. Some of the terms of the contract require you and your lawyer to provide updates on the lawsuit to WCB and no settlement can be finalized without first getting the approval of WCB.
WCB will pay your regular benefits even if you start a civil claim. Your lawsuit will seek damages for your losses from the accident, and WCB’s claim for reimbursement for the expenses/benefits it has paid in respect of your WCB claim. Your recovery of damages is reduced by the reimbursement of some expenses/benefits WCB has paid you or incurred on your behalf, such as for wage loss.
Avoiding Common Pitfalls When Pursuing a Dual Claim Strategy
While it is likely financially beneficial to pursue a civil claim, you must realize that WCB is in charge of the claim and not you. WCB is entitled to receive any communications between you and your lawyer. This may not always be ideal because normally all communications between you and your lawyer are privileged.
Once you start the civil claim, you must co-operate with WCB and provide information as requested. If you do not co-operate with WCB, your benefits may be suspended until you begin to cooperate. In rare cases, WCB can settle your civil claim without your consent.
Key Deadlines and Paperwork Requirements for WCB and Civil Claims
WCB has prompt reporting requirements. An employer is required to report an injury to WCB within 72 hours. As an employee, you must tell your employer about your injury. You should also submit your report of the injury to WCB.
A civil claim must be started no later than 2 years after the accident. Practically speaking, claims are recommended to be started sooner than 2 years after the accident.
If it is determined that you can bring a civil claim and you have spoken to a personal injury lawyer, your chosen lawyer will contact WCB. WCB will enter into a contract with the lawyer. This contract will confirm that WCB is in control of the civil claim and will be involved in the process. You will receive a letter from the law firm that describes how the civil claim will be handled and the roles of all the parties. Your lawyer will be able to clarify any questions you may have.
Given that your chosen lawyer will have enter into the retainer agreement with WCB and that takes time to arrange, it is important not to wait until the expiration of the 2-year limitation period to bring a claim before you reach out to a lawyer.
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