Third Party Actions
Effective date: November 1, 2014
Applies to all claims involving third parties.
Policy subject: General
To provide guidelines for the management of third party actions.
The Workers’ Compensation Board (WCB) has approved POL 13/2014, Third Party Actions. The following procedure provides WCB staff with guidelines for the management of these claims.
- Operations staff members are responsible for identifying claims for work injuries that involve third parties. This includes, but is not limited to:
- Motor vehicle collisions.
- Fatality claims.
- Claims involving product liability (for example, asbestos related injuries, equipment failures, premature air bag inflations).
- Aircraft crashes.
- Claims involving assault (physical or psychological) against an injured worker, including dog/animal attacks.
- Claims involving negligence by a third party (for example, exposure to environmental/dangerous hazards, lack of fire alarms or firefighting equipment), and
- Slip and fall claims.
- Operations staff will refer such claims to the Subrogation Administrator (SA) if:
- The claim has been accepted, and
- The general limitation period of two years for starting an action has not expired.
- Operations staff will not refer claims for workers covered under the Government Employees Compensation Act (GECA). Employment and Social Development Canada (ESDC – Labour Program) manages federal government third party actions.
- Operations staff will assist the SA in determining the future costs of claims (for example, benefit, medical and vocational rehabilitation costs):
- Operations staff will determine future costs by reviewing the cost history of the claim, expected recovery tables, and the medical prognosis.
- Where the customer is receiving long term earnings replacement, Operations staff will use wage loss capitalization to project future benefit costs (POL 14/2010, Capitalization of Claims).
- The SA will contact the customer or their representative to determine if:
- They have started a third party action, or
- Plan to take action.
- If the customer chooses to take action, the SA will advise the customer or their representative of the WCB’s claim in the third party action.
- If the customer chooses not to take action, the SA will refer the claim to the Corporate Solicitor. The Corporate Solicitor will review the case to determine whether the WCB should take action to recover the costs of the claim. This includes considering factors such as:
- The amount of damages the WCB could recover.
- The cost effectiveness of proving the case, and
- How successful the WCB might be in collecting the judgment.
Employer Cost Relief
- When the WCB’s action is successful, the SA will send the award to the Finance department. Finance staff will deposit the award so the WCB can provide cost relief for the respective employer. The cost relief will equal the lesser of:
- The claims costs charged against the employer (less legal fees), or
- The amount of the settlement.
- The WCB must provide written approval for a settlement that is for an amount less than the claim costs. Customers or their legal representatives must submit requests for approval to the Corporate Solicitor.
- The SA will provide a quarterly report to the Chief Executive Officer (CEO). The report will indicate missed subrogation opportunities.
- The Service Excellence team will ensure ongoing training is provided to Operations staff for identifying claims that involve third parties.
(1) January 1, 2014. References updated in accordance with The Workers’ Compensation Act, 2013.
(2) POL and PRO 04/2007, Third Party Actions/Subrogation (effective May 1, 2007 to October 31, 2014).