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

{{REVIEWED LSLAP | date= July 31, 2020}}

Sections 122-125 and 19-20 (previously 96 and 113 respectively) of the WCA give the Board exclusive jurisdiction over workers’ compensation matters. The courts have generally respected these strong privative clauses.  

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

Section 19 similarly grants exclusive jurisdiction to the Board to inquire into and determine health and safety matters under Part 2 (previously 3) of the Act.

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:

*a) Personal Injury (physical or physical psychological) - sections 134 and 146 (previously 5) of the WCA

*b) Psychological injury (only mental stress) - section 135 (previously 5.1) of the WCA

*c) Occupational Disease – sections 136(1) and 137 (previously 6(1) and 6(3)) of the WCA

*d) Hearing Loss – section 145 (previously 7) of the WCA

== B. Overview: Initial Acceptance or Denial of A Compensation Claim/Disclosure & Appeals ==

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.

 

 

 

 

 

 

 

 

 

 

* '''Phase five''':If the worker needs additional skills in order to return to suitable work, they may cover the cost of training to help develop skills

 

 

 

 

=== Reporting the Injury ===

All injuries that cause a loss of work (or which could lead to a future claim) should be reported '''as soon as possible''' by the worker or, if death results, by the Worker's dependants, to the superintendent of the place of employment, first aid attendant, or other official.  Claims have been denied (at least until an appeal took place) because a worker waited even a few days, hoping the pain would go away. In all but the most minor cases, workers should also seek medical attention promptly.

 

 

 

 

 

 

 

The WCB operates under a case management process in cases where the individuals are recovering from complex and costly injuries and illnesses.  The key features of case management include a case manager who oversees the delivery of services for the entire life of the claim. It is also supposed to include regular multidisciplinary team meetings, clinical care planning, site visits, and a return to work plan, which sets out expectations surrounding medical treatment, physical rehabilitation, and a return to work option. In theory, the worker, union or other  representative, the worker’s doctors, and the employer are all expected to participate. Advocates for injured workers have found that this crucial part of the case management model is rarely followed.

 

 

 

 

*assesses a worker’s long-term employability, and the earnings he or she is considered capable of achieving after the worker has “maximized” his or her earning capacity in a suitable and available job. This assessment is the core of the Disability Awards Officer’s decision concerning a loss of earnings pension. While the decision is made by the Officer, who can reject the recommendation of the consultant, the consultant’s assessment is a crucial step in the pension process.

 

*Determines the degree of permanent disability on a physical impairment basis; for workers whose permanent disability is considered to have occurred on or after June 30, 2002, this will determine the pension in the great majority of cases.

 

These WCB employees, together with a number of other WCB “players”, interact considerably during initial decision processes. For example, a  projected loss of earnings assessment, while made by a Disability Awards Officer, is based on a report from the Rehabilitation Officer stating which jobs are suitable and available to the worker, and what earnings can be anticipated. Throughout a claim, the Board’s salaried medical staff (doctors, psychologists etc.) are consulted regularly regarding medical issues, and their advice is regularly accepted by the Board over that of the worker’s own family doctor and specialist if there is a dispute.

 

 

The Board can also sue the third party in the worker’s name; this is termed “subrogation”. If the worker claims compensation, the Board has  exclusive jurisdiction to decide if it will take legal action against a third party. If it does take action and recovers more than the total value of the worker’s benefits, the worker receives the difference minus a 29% administration fee. If the Board recovers less than the total  value of benefits, the worker will keep the full compensation. A worker cannot waive or assign his or her right to compensation.

 

An “election” is an important and complex decision (see s. 10 of the WCA) and workers should be referred to the [http://www.labour.gov.bc.ca/wab Workers’ Advisors Office] before deciding whether to claim compensation. If a worker chooses to pursue court action and is unsuccessful, or the award is less than he or she would have received under the compensation regime, the worker may still be able to receive compensation. However, the original claim for compensation must have been made within the time limits outlined above.

 

 

 

==== a) Is the Applicant a “Worker” under the Act? ====

 

The WCA was amended on January 1, 1994 to expand the range of workers covered. '''All workers are now covered, unless specifically exempted'''. Chapter 2 of the RSCM II sets out the general principles of inclusion and the exceptions. Even certain volunteers are covered, as are students engaged in work study programs that are approved by the Board. Before this amendment, most office workers and other white-collar workers were not covered. Since the amendment, only a few exceptions have been recognized, such as professional athletes who have accepted a high level of  risk, casual baby sitters, and non-residents. Requests for exemptions may come from workers and employers, or may be initiated by the Board. Decisions regarding exemption status may be appealed.

 

One of the unintended consequences of this universal coverage is to further limit the injured worker’s right to sue for damages, since it is most likely that the person responsible for the injuries will also be an employer or worker covered by the system. An extreme example of this was found in a malpractice case, ''Kovach v Singh (Kovach v WCB)'', [2000] SCJ No 3 [''Kovach'']. In this case, and in a similar Saskatchewan appeal, the Workers’ Compensation Boards held that doctors treating an injured worker could not  be  sued  for  malpractice  under  the  tort  system because the injured worker was in the “course of employment” while undergoing treatment. The SCC found that the decision of the Boards in those cases was not unreasonable. The Board has responded strongly to cases that stray from this position. They will not allow any recourse to the tort system and have reaffirmed this bar to lawsuits in the policy directives.

 

 

 

 

*a) they work in a compensable industry;

*b) BC is their place of residence and usual place of employment;

*e) they are working for a BC employer (WCA s 8(1)).

 

Section 12 of the WCA states that a worker under the age of 19 is sui juris for the purpose of Part 1 of the Act, which means that workers who are minors are under no legal disability and are considered, for purposes of the Act, capable of managing their own affairs as if they were adults.

 

 

 

 

The key issues in the acceptance of claims from self-employed persons tend to be the exact nature of their employment, their coverage and the appropriate wage rate. Practice Directive #C9-1 “Coverage and Compensation for Self-Employed Persons” sets out a helpful chart on the different types of self-employment and their coverage under the Act. 

 

Employers are also covered by and have duties under the WCA, including contributing to the Accident Fund based on compulsory assessments. The Board sets an assessment rate for each employer based on a complex system of classification relating to type of business and previous accident rates. Employers should be referred to the Employers’ Advisors Office for specialized assistance, without charge, in these matters (see Appendix on Referrals).

 

 

Before a compensation claim can be accepted, the Board must find the worker's injury, death, or disease was disabling and that the disability occurred as a result of the employment. The WCA addresses these matters differently for different types of injuries and conditions.

| Section 5.1:

| occupational disease – no presumption of work causation

 

 

===== (1) Injury or Disease or Both? =====

 

Because the statutory and policy requirements for an injury and OccD are different, it is important to consider the worker’s disability under  the correct relevant category. Sometimes this is not clear.

 

Policy #C3-12.00 has a helpful section on the distinction between an “injury”and a “disease”. Some conditions, like tendonitis or hearing loss, can be either an injury or a disease, depending on the circumstances of the injury. For example, hearing loss from a single occurrence like an explosion is treated as an injury while gradual loss of hearing due to occupational noise is treated as a disease. 

 

Sometimes, a worker is disabled by a combination of a slow developing disease followed by a single event. The combination results in a significant disability, although neither event by itself would have been disabling. This is a difficult causation case. While the single event may not be sufficient to injure a healthy person, the worker is “working hurt” so a minor event is sufficient to disable him. This is the  compensation version of the “thin skull” victim in tort law. The Board will likely not accept work causation in the initial decision and deny  the claim as not meeting the causal standard under section 5. On appeal, the best way to address this matter is to have good evidence,  preferably medical evidence, of the worker’s medical condition prior to the single event. The concept for a finding of work causation under s.5 is "causative significance". Further, it is noted in court decisions that only if personal or non-employment factors are so dominant or exclusive that the compensable injury is not a significant causal factor would compensability be denied (WCAT #2009-02226).   

 

In some cases, the worker’s pre-existing condition is actually a developing OccD, such as gradual onset repetitive strain or gradual hearing  loss. In these cases, you may wish to ask the Board to accept the pre-existing condition as a compensable OccD under section 6. If the Board  denies this aspect as well, you may appeal this denial and join the two appeals together at the RD or WCAT so an appeal panel may consider the “whole worker”.

 

===== (2) Compensable Aggravation =====

 

For both injuries and OccD, it is also recognized that the worker can have a pre-existing condition which is aggravated or activated by the compensable injury or disease. For injuries, the relevant policy is set out in#16.00 RSCM II; for OccD, policy is set out in #26.55. It is necessary to distinguish between injuries and death resulting from employment (which are compensable), and injuries resulting from pre-existing conditions or diseases (which are compensable). There must be something in the employment activity or situation that had '''causative significance''' in producing the injury or death. In adjudicating these types of claims, the Board considers:

* The nature and extent of the employment activity; and

* The degree to which the employment activity may have affected the pre-existing injury.

 

 

 

 

 

 

Work outside of BC is regarded as non-work exposure for compensation purposes. However, workers’ compensation boards across Canada have entered into an “interjurisdictional agreement” that provides for reciprocal coverage of some disabilities arising from work exposure or activities indifferent jurisdictions, and also enables the ruling Board to administer a claim in another province. The Board may try to apportion benefits in cases where the disability is partially caused by non-work or out-of-jurisdiction factors according to the percentages of causation – at  least when assessing a pension – although it is not clear that the Act authorizes this.

 

 

Under section 5 of the WCA, personal injury or death must '''arise out of''', and '''in the course of''', employment in order to be compensable. It is important to check policies and WCAT decisions for qualifying factors, as they change.

 

'''“Arising out of employment”''' relates to causation and means that the work must have causative significance to the injury. According to the well-established jurisprudence, this means that the work does not have to be the sole cause or even the dominant cause of the injury; it must be only causative significance greater than being trivial or '''de minimus''':[https://www.wcat.bc.ca/appeals/after/JRSummaries/Chima+2009+BCSC+1574.pdf ''Chima v. Worker's Compensation Tribunal'', 2009 BSC 1574], [https://www.wcat.bc.ca/appeals/after/JRSummaries/SCHULMEISTER+2007+BCSC+1580.pdf ''Schulmeister v. British Columbia (Worker's Compensation Appeal Tribunal)'', 2007 BCSC 1580], and [https://www.wcat.bc.ca/appeals/after/JRSummaries/ALBERT+2006+BCSC+838.pdf ''Albert v. British Columbia (Worker's Compensation Appeal Tribunal)'', 2006 BCSC 838]. Not all injuries at work are caused by work, as some are naturally occuring conditions which would have happened in any event. For example, a worker with heart disease, who is working in a sedentary job, may have a heart attack in the office. There is likely nothing in the work activity which would have causative significance for this injury.

 

 

:'''NOTE:''' There is a statutory presumption that if an injury is caused by '''an accident''' at work, the injury is presumed to have occurred in the course of employment [section 5(4) of the WCA]. An accident can include someone else’s intentional act.