Difference between revisions of "Introduction to Compensation Claims for Injured Workers (7:III)"

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{{REVIEWED LSLAP | date= August 1, 2023}}
{{LSLAP Manual TOC|expanded = workers}}
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== A. Introduction ==
Sections 122–125 and 19–20 of the WCA [Former Act, ss. 96 and 113] give the Board exclusive jurisdiction over workers’ compensation and OHS matters. The courts have historically respected these strong privative clauses.  
Sections 96 and 113 of the WCA give the Board exclusive jurisdiction over workers’ compensation matters. The courts have generally respected this strong privative clause.


Section 96 specifically grants the Board the exclusive jurisdiction to inquire into, hear, and determine:
Section 122 grants the Board the exclusive jurisdiction to inquire into, hear, and determine compensation matters under Part 4 of the ''Act'' [Former Act, Part 1]. Specifically, the board may determine:
*a) whether an injury has arisen out of or in the course of an employment;
*b) the existence and degree of disability by reason of an injury;
*c) the permanence of disability by reason of an injury;
*d) the degree of reduction of earning capacity by reason of an injury;
*e) the average earnings of a worker, for the purpose of levying assessments, and the average earnings of a worker for purposes of payment of compensation;
*f) the existence of the relationship of a member of the family of a worker as defined by the Act;
*g) the existence of dependency;
*h) whether an industry is within the scope of the Act, and the class to which an industry should be assigned for the purposes of the Act;
*i) whether a worker is in an industry within the scope of the Act and entitled to compensation under it; and
*j) whether a person is a worker, a subcontractor, a contractor or an employer within the meaning of the Act.


Section 113 of the WCA gives the Board jurisdiction over compensation in relation to workplace health and safety.  
* whether a worker's injury has arisen out of or in the course of an employment;
* the existence and degree of a worker's disability by reason of an injury;
* the permanence of a worker's disability by reason of an injury;
* the degree of impairment of a worker's earning capacity by reason of an injury;
* the existence, for the purposes of the compensation provisions, of the relationship of a family member of a worker;
* the existence of dependency in relation to a worker;
* the amount of the average earnings of a worker for purposes of payment of compensation;
* whether a person is a worker, subcontractor, contractor or employer within the meaning of the compensation provisions;
* the amount of the average earnings of a worker, whether paid in cash or board or lodging or other form of remuneration, for the purpose of levying assessments;
* whether an industry or a part, branch or department of an industry is within the scope of the compensation provisions, and the class to which an industry or a part, branch or department of an industry within that scope should be assigned;
* whether a worker in an industry that is within the scope of the compensation provisions is within the scope of those provisions and entitled to compensation under those provisions.


Once an injured worker applies for compensation, the Board will begin to assess whether or not to accept the claim. Once the claim is accepted, the Board will then adjudicate the worker’s entitlement to the type of compensation benefits listed above.  
Section 19 similarly grants exclusive jurisdiction to the Board to inquire into and determine health and safety matters under Part 2 of the ''Act'' [Former Act, Part 3].


== B. Overview: Initial Acceptance or Denial of A Compensation Claim/Disclosure & Appeals ==
Once an injured worker applies for compensation, the Board will begin to assess whether or not to accept the claim. Once the claim is accepted, the Board will then adjudicate the worker’s entitlement to the type of compensation benefits listed below.  
After a worker makes an application for compensation, a Board officer issues a decision (usually in writing) accepting or denying the claim. For a compensation claim to be accepted, the Board must generally find:
*a) STATUS: The applicant is a “worker” covered under the Act.
*b) DISABILITY: The applicant suffered a personal injury or an occupational disease, causing disability.
*c) CAUSATION: The worker’s disabling injury or disease was caused by work.
*d) TIME LIMITS AND PROCEDURES: The worker submitted a timely and proper application.


If a claim is denied by the Board, it is typically because one or more of the above conditions was not met. The Board decision typically sets out the reason why the claim was denied and cites the relevant policy from RSCM II. However, the evidence on which the decision is based may or may not be summarized in the decision.                   
The nature of the worker’s injury will generally determine the relevant law and policy. The main types of injuries are:


All the evidence on which the decision is based will be in the claim file, which may also include memos from case managers (CMs) and clinical opinions from Board Medical Advisors (BMAs). The claim file may also contain detailed phone memos providing the CMs with a summary of the worker’s evidence. The claim file evidence as a whole provides the basis for the Board’s decision and is evidence which will be available and considered by the appeal bodies, RD and WCAT.                
* Personal Injury (physical or physical and psychological) – sections 134 and 146 of the WCA [Former Act, s. 5];
* Psychological Injury (mental disorder) – section 135 of the WCA [Former Act, s. 5.1];
* Occupational Disease – sections 136(1) and 137 of the WCA [Former Act, ss. 6(1) and 6(3)]; and
* Hearing Loss – section 145 of the WCA [Former Act, s. 7]


Workers are entitled to a copy of their claim file (paper or CD) on request and will also automaticallybe sent a copy of the claim file if they file an appeal. In addition, the worker may obtain online access to parts of their claim file by calling the Board. These matters are covered in the section below on Disclosure. Disclosure may be given directly to the worker’s representative if the disclosure request or appeal notice  is accompanied by a valid authorization of representation, signed by the worker. [Authorization forms are available on the Board website].                 


If the worker (or the employer) disagrees with the Board’s decision, he or she may appeal the decision to the Review Division (RD) '''within 90  days of the Board decision'''. The RD is a review body internal to the Board; links to RD material, including RD appeal forms, are available on the Board website (through the link “Review and Appeals” on the left list of the home page). The RD must issue a decision within 180 days of the appeal being filed. The RD decision may then be appealed to an independent tribunal, the Workers’ Compensation Appeal Tribunal (WCAT) within '''30 days of the RD decision'''. WCAT appeal forms are available on the [http://www.wcat.bc.ca WCAT website]. See [[Appeals in Worker%27s Compensation Claims (7:VI) | Section VI: Appeals]] for more details.
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Section 55 of the WCA requires that generally, a worker must apply for compensation within one year of the date of injury unless there are  “exceptional circumstances” (with some exceptions). If a worker’s application has been denied because of a late application, please consult s. 55 of the WCA and Policy #93 of the RSCM II to assess what evidence of “exceptional circumstances” may be relevant in that case. 
 
== C. Overview: Worker Disability and Compensation Benefits ==
Of the 100,000 workers injured on the job in B.C. every year, about half suffer minor or inconvenient injuries and return to their pre-injury employment in quick order. Most of these claims are accepted by the Board for health care benefits only (medical treatment, medication, etc.). 
 
Of those workers whose injuries are more serious, there are several common profiles of disability and recovery. The following examples are to illustrate common compensation benefits and scenarios for disability.
 
#The worker suffers a broken wrist in his dominant hand and cannot perform his job duties as a result. His doctor recommends a certain number  of weeks to recover after which he is cleared to return to work (RTW) full duties. The worker makes an application for compensation. If his claim is accepted, the Board sets a short-term wage rate (STWR) on his claim (based on his average earnings) and the worker is paid temporary wage loss benefits (TWL) at this rate for his days of lost work. The Board also covers any health care costs such as treatment or medication. If there are no permanent medical consequences to this injury and the worker returns to work full duties, the Board issues a decision that the  injury is “resolved” and his claim is closed. The worker is not referred for any other benefits such as Disability Awards (DAs) or Vocational Rehabilitation (VR).
 
#The worker suffers a more serious injury to his hand (e.g. a crush injury). If his claim is accepted, he again receives TWL for his time away from work. However, after 10 weeks, the Board issues a new long-term wage rate (LTWR) based on a more complex formula in law and policy. At  some point, the Board considers that the worker’s condition is no longer “temporary” and must make one of the following decisions about the  worker’s medical condition. Either:
#*a. His injury has “'''resolved'''” with no permanent impairment and he can RTW and perform full duties. In this case (as above), the Board will  issue a “resolve” decision ending his TWL benefits and his file will be closed; or
#*b. His injury is not fully resolved and he is left with some permanent functional impairment. In this case, the Board will issue a “plateau decision”, setting a date at which it considers that the worker’s condition is no longer temporary but it has reached a medical “plateau” (that is, the condition will not significantly change in the next year). This “plateau” decision also ends TWL benefits on the plateau date but will  also refer the worker to DAs to assess the nature and severity of this permanent impairment. In a separate decision, the DA will rate his impairment according to a schedule and award the worker “permanent functional impairment” (PFI) pension (impairment % compared to a healthy  person) in a “PFI decision”. The PFI pension is awarded regardless of whether the worker returns to work or not as it is compensation for the physical impairment, not for lost wages. 
 
The plateau decision also sets out whether the Board thinks that the worker can return to his pre-injury job, performing full duties, with the impairment. If the worker can return to his pre-injury work, the Board does not need to retrain him and there is no referral made to VR.

Latest revision as of 19:08, 12 September 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
7. Workers' Compensation
 · I. Introduction

 · II. Governing Legislation & Policy
 · III. Introduction to Compensation Claims
 · IV. LSLAP's Role
 · V. Limitation Periods & Timing of Decisions
 · VI. Making a Claim
 · VII. The Claim Acceptance Process
 · VIII. Worker Status
 · IX. Disability and Causation
 · X. Time Limits & Procedures
 · XI. Claim Benefits
 · XII. Appeals
 · XIII. Health & Safety Regulations
 · XIV. Assessments of Employers
 · XV. The WCB Fair Practices Officer
 · Appendix A: Abbreviations
 · Appendix B: List of Cases
 · Appendix C: Referrals
 · Appendix :D Resources
 · Appendix E: Claims Process
 · Appendix F: Checklist for Interviews
 · Appendix G: Checklist for Appeals

 · Appendix H: Sample Authorization Form
v • d • e



Sections 122–125 and 19–20 of the WCA [Former Act, ss. 96 and 113] give the Board exclusive jurisdiction over workers’ compensation and OHS matters. The courts have historically respected these strong privative clauses.

Section 122 grants the Board the exclusive jurisdiction to inquire into, hear, and determine compensation matters under Part 4 of the Act [Former Act, Part 1]. Specifically, the board may determine:

  • whether a worker's injury has arisen out of or in the course of an employment;
  • the existence and degree of a worker's disability by reason of an injury;
  • the permanence of a worker's disability by reason of an injury;
  • the degree of impairment of a worker's earning capacity by reason of an injury;
  • the existence, for the purposes of the compensation provisions, of the relationship of a family member of a worker;
  • the existence of dependency in relation to a worker;
  • the amount of the average earnings of a worker for purposes of payment of compensation;
  • whether a person is a worker, subcontractor, contractor or employer within the meaning of the compensation provisions;
  • the amount of the average earnings of a worker, whether paid in cash or board or lodging or other form of remuneration, for the purpose of levying assessments;
  • whether an industry or a part, branch or department of an industry is within the scope of the compensation provisions, and the class to which an industry or a part, branch or department of an industry within that scope should be assigned;
  • whether a worker in an industry that is within the scope of the compensation provisions is within the scope of those provisions and entitled to compensation under those provisions.

Section 19 similarly grants exclusive jurisdiction to the Board to inquire into and determine health and safety matters under Part 2 of the Act [Former Act, Part 3].

Once an injured worker applies for compensation, the Board will begin to assess whether or not to accept the claim. Once the claim is accepted, the Board will then adjudicate the worker’s entitlement to the type of compensation benefits listed below.

The nature of the worker’s injury will generally determine the relevant law and policy. The main types of injuries are:

  • Personal Injury (physical or physical and psychological) – sections 134 and 146 of the WCA [Former Act, s. 5];
  • Psychological Injury (mental disorder) – section 135 of the WCA [Former Act, s. 5.1];
  • Occupational Disease – sections 136(1) and 137 of the WCA [Former Act, ss. 6(1) and 6(3)]; and
  • Hearing Loss – section 145 of the WCA [Former Act, s. 7]


v • d • e
 
Chapters 1-7
Criminal Law  · Youth Justice  · Family Law  · Victims  · Public Complaints · Human Rights  · Workers Compensation
Chapter One:
Criminal Law
Chapter Two:
Youth Justice
Chapter Three:
Family Law
Chapter Four:
Victims
Chapter Five:
Public Complaints
Chapter Six:
Human Rights
Chapter Seven:
Workers' Compensation
I. Introduction · II. Governing Legislation, Policy & Guidelines · III. Introduction to Compensation Claims for Injured Workers · IV. LSLAP's Role at the Initial Decision Level · V. Limitation Periods and Timing of Decisions · VI. Making a Claim · VII. The Claim Acceptance Process · VIII. Worker Status · IX. Disability and Causation · X. Time Limits and Procedures · XI. Claim Benefits · XII. Appeals · XIII. Health and Safety Regulations in the Workplace · XIV. Assessments of Employers · XV. The WCB Fair Practices Officer · Appendix A: Abbreviations · Appendix B: List of Cases · Appendix C: Referrals · Appendix D: Resources · Appendix E: Claims Process · Appendix F: Checklist for Interviews · Appendix G: Checklist for Appeals · Appendix H: Sample Authorization Form
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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