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| {{REVIEWED LSLAP | date= July 31, 2020}} | | {{REVIEWED LSLAP | date= September 2, 2024}} |
| {{LSLAP Manual TOC|expanded = workers}} | | {{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 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. | |
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| 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 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 an injury has arisen out of or in the course of an employment;
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| * the existence and degree of disability by reason of an injury;
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| * the permanence of disability by reason of an injury;
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| * the degree of reduction of earning capacity by reason of an injury;
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| * 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;
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| * the existence of the relationship of a member of the family of a worker as defined by the Act;
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| * the existence of dependency;
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| * 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;
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| * whether a worker is in an industry within the scope of the Act and entitled to compensation under it; and
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| * whether a person is a worker, a subcontractor, a contractor or an employer within the meaning of the Act.
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| 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.
| | * 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. |
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| 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.
| | 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]. |
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| The nature of the worker’s injury will generally determine the relevant law and policy. The main types of injuries are:
| | 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. |
| *a) Personal Injury (physical or physical psychological) - sections 134 and 146 (previously 5) of the WCA
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| *b) Psychological injury (only mental stress) - section 135 (previously 5.1) of the WCA
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| *c) Occupational Disease – sections 136(1) and 137 (previously 6(1) and 6(3)) of the WCA
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| *d) Hearing Loss – section 145 (previously 7) of the WCA
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| == B. Overview: Initial Acceptance or Denial of A Compensation Claim/Disclosure & Appeals ==
| | The nature of the worker’s injury will generally determine the relevant law and policy. The main types of injuries are: |
| 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:
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| *a) STATUS: The applicant is a “worker” covered under the Act.
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| *b) DISABILITY: The applicant suffered a personal injury or an occupational disease, causing disability.
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| *c) CAUSATION: The worker’s disabling injury or disease was caused by work.
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| *d) TIME LIMITS AND PROCEDURES: The worker submitted a timely and proper application.
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| 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.
| | * 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]; |
| All the evidence on which the decision is based will be in the claim file, which may also include memos from Case Managers and clinical opinions from Board Medical Advisors (BMAs). The claim file may also contain detailed phone memos providing the Case Managers 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, Review Division and WCAT.
| | * 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 automatically be 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 Access to Files (7-31). 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].
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| 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 [http://www.worksafebc.com/en/review-appeal Board website]. 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:X) | Section X: Appeals]] for more details.
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| Section 151 (previously 55) of the WCA requires that generally, a worker must apply for compensation '''within one year''' of the date of injury. Subsections 151(4) and (5), as well as section 152, provide three exceptions for when late applications may be accepted:
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| # If exceptional circumstances exist which precluded the worker from making an application within one year and the application is less than three years after the date of injury (s 151(4); previously 55(3.1)), the worker’s application may be accepted. If a worker’s application has been denied because of a late application, please consult Policy #93.22 of the RSCM II to assess what evidence of “exceptional circumstances” may be relevant in that case.
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| # If death or disablement is due to an occupational disease, while sufficient scientific evidence did not exist at the time of the application and there is new scientific evidence regarding the occupational disease causation, the application may be accepted. However, the worker must make the application no more than three years after sufficient medical or scientific evidence became available to the board (s 152(1); previously 55 (3.2)); or
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| # The Board may also reconsider an old occupational disease decision that meets the Subsections 152(1) and (2) criteria.
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| == C. Overview: Worker Disability and Compensation Benefits ==
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| 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).
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| Of those workers whose injuries are more serious, there are several common profiles of disability and recovery. After a worker makes an application for a temporary disability, the Board determines whether the worker is totally temporarily disabled and if so, pays full wage loss benefits under Section 191 (previously 29) of the Act. If the worker is only partially temporarily disabled i.e. can work some hours or some duties, the Board will pay partial wage loss under Section 192 of the Act.
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| The following examples are to illustrate common compensation benefits and scenarios for disability:
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| *The worker suffers a broken wrist in their dominant hand and cannot perform their job duties as a result. Their doctor recommends a certain number of weeks to recover after which they are cleared to return to work, full duties. The worker makes an application for compensation. If their claim is accepted, the Board sets a short-term wage rate on their claim (based on their average earnings) and the worker is paid temporary wage loss benefits at this rate for their 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 their claim is closed. The worker is not referred for any other benefits such as Disability Awards or Vocational Rehabilitation. | |
| *The worker suffers a more serious injury to their hand (e.g. a crush injury). If their claim is accepted, they again receive temporary wage loss for their time away from work. However, after 10 weeks, the Board issues a new long-term wage rate based on a more complex formula in law and policy. At a discretionary 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:
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| **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
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| **b. His injury is not fully resolved, and they are 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 temporary wage loss benefits on the plateau date but will also refer the worker to Disability Awards to assess the nature and severity of this permanent impairment. In a separate decision, the Disability Awards will rate their impairment according to a schedule and award the worker Permanent Functional Impairment pension (impairment % compared to a healthy person) in a “Permanent Functional Impairment decision”. The Permanent Functional Impairment 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.
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| The plateau decision also sets out whether the Board thinks that the worker can return to their pre-injury job, performing full duties, with the impairment. If the worker can return to their pre-injury work, the Board does not need to retrain him and there is no referral made to vocational rehabilitation.
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| However, if the Board considers that the worker cannot return to full duties with their impairment, the “plateau decision” will state this and the worker will be referred to vocational rehabilitation for further help with employment.
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| The vocational rehabilitation process is set out below and goes through five phases:
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| * '''Phase One''': Tries to have the worker return to the same job with the same employer
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| * '''Phase Two''': If unable to return to the same employer, works with worker and employer to modify or identify job opportunities within the same company
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| * '''Phase three''': If unable to return to the same company, tries to help identify suitable job options related to workers experience and skills.
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| * '''Phase four''': If the worker is unable to return to the suitable work in the same or related industry, tries to help worker identify options in other injuries
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| * '''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
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| The first phase is to see if the employer can or will accommodate the worker and their impairment. If there is no accommodation and the worker does not have a job to return to, vocational rehabilitation goes through further phases to assesses what vocational rehabilitation assistance the Board should provide to help the worker become employable, given their permanent injury. Vocational Rehabilitation benefits are discretionary but typically include a vocational rehabilitation plan for the worker to re-train and/or have a job search and wage loss benefits for this period of vocational rehabilitation time. If successful, vocational rehabilitation results in the injured worker successfully adapting to employment with a permanent injury.
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| It is possible that vocational rehabilitation is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable. In these cases, the Case Manager must decide if the impact of the worker’s disability is “so exceptional” that a Permanent Functional Impairment pension is inadequate financial compensation for the worker’s loss of employability. In such cases, the worker may be entitled to be assessed for a wage replacement pension, known as a “loss of earnings” or loss of earnings pension. The “Loss of Earnings pension decision” is issued by the Case Manager, either as part of the plateau decision or after a vocational rehabilitation process. If awarded, full Loss of Earnings pension benefits are equivalent to ongoing Temporary Wage Loss benefits.
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| == D. Overview: Claims Procedures & Process ==
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| === Reporting the Injury ===
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| 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 dependents, 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.
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| The employer must complete a report to the Board '''within three days''' of receiving the worker's report, or immediately if death results. The attending physician also completes a Physician’s First Report within three days of first seeing the worker, and fills out progress reports after each visit.
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| === Making a Claim ===
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| A worker has '''one year''' to make a claim for compensation under s. 55 of the WCA. This may be extended to three years in certain circumstances. In extreme cases, the Board may consider even longer extensions.
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| Workers can call the WCB directly to report an injury and file a claim. Teleclaim is available to workers across the province, Monday to Friday, from 8 a.m. to 4 p.m. See the Board website or the Appendix for current contact details. Teleclaim is designed to simplify the process, reduce the amount of paperwork, and provide a personalized service based on each individual’s needs. Before calling the Board to report an injury, the worker should write down the key information about the job, how the injury occurred, and what the doctor has said about the condition. The worker’s statement during a Teleclaim report will form part of the claim file and could be used as evidence in future appeal proceedings. The Teleclaim transcript may be sent to the worker. If it is not sent, the worker should request a transcript.
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| ====Exception: Electing to Proceed Outside the WCB====
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| In certain circumstances, a worker may choose to sue the person or company responsible for causing a work injury rather than making a claim for Workers’ Compensation. This is most common if the injury arises in a motor vehicle accident.
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| For example, if the injury is caused by a person not covered by the WCA (i.e. a delivery driver injured by a private citizen in a motor vehicle accident), then the worker can elect to sue a non-covered “third party” instead of claiming compensation.
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| 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 23% 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 their right to compensation.
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| An “election” is an important and complex decision (see s 128; previously 10(3) of the WCA) and workers should be referred to the Workers’ Advisors Office website at http//www.labour.gov.bc.ca/wab or assisted 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 claim compensation. However, the original claim for compensation must have been made within the time limits outlined above.
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| === Procedure After Application ===
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| The family doctor plays a crucial role in the worker’s claim as well as their treatment. The WCA requires that the doctor file an initial report with the Board, as well as progress reports for each visit. Doctors are also required to give all necessary advice and assistance to a worker making an application for compensation, including furnishing proof that may be required. Some doctors are very helpful to injured workers, while others refuse to get involved in what they consider to be a legal issue. Such an attitude can be very harmful if there is a medical dispute between the Board and the worker.
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| The Board has extensive inquiry and investigative powers. It may require the worker to be medically examined by a WCB staff doctor or by independent consultants. WCB officers called Case Managers, Disability Awards Officers, and Rehabilitation Consultants decide whether to accept the claim and what benefits, if any, should be paid. Although rarely used, the Board has the authority to conduct a formal inquiry at which the claimant and other witnesses are compelled to appear and be questioned. Important decisions occur at various times as a result of the interaction and correspondence between various WCB officers, the worker, the family doctor, and any specialist.
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| === The Case Management Process ===
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| 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 may 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. The worker, union or other representative, the worker’s doctors, and the employer are all expected to participate.
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| === Claims Management Solutions ===
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| On May 11 2009, WCB launched a Claims Management Solutions System to streamline and manage the claims process more effectively and improve service to customers. The Claims Management Solutions System manages all data related to previous, current, and future claims and helps integrate services throughout the life cycle of a claim. It is supposed to result in faster case handling and claim payments, more support for injured workers, and less administrative work for employers and service providers. Workers can obtain real-time access to their claim file by registering online and can authorize a representative to have access as well.
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| === Initial Decision Making Process ===
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| Most decisions are made by frontline WCB officers. The major issues to be decided are: whether the worker is covered by the WCA; whether the injury arose out of and in the course of employment; and what benefits the worker is entitled to. The most important WCB officers, and the decisions that they make, are as follows:
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| ==== a) Case Manager (CM) ====
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| *accepts or rejects claims;
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| *approves wage loss benefits, determines the initial wage rate, and terminates or reduces wage loss benefits; | |
| *investigates and decides “long term” average earnings, which are implemented ten weeks after the injury (eight weeks for injuries occurring before June 30, 2002);
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| *approves or rejects operations or other major treatments;
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| *approves workers’ expenses for WCB payment;
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| *determines when to terminate wage loss benefits because the worker’s disability is considered to have “plateaued”;
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| *generally, makes most decisions involving workers including whether to register the worker for vocational rehabilitation services and pension assessments; and
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| *determines whether the worker qualifies for an Loss of Earnings pension because he or she has suffered a loss of earnings that is “so exceptional” that the functional pension does not adequately compensate for it.
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| ==== b) Vocational Rehabilitiation Consultant (VRC) ====
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| *Works with the worker, employer, and union (if any) to get the worker back to work as soon as medically possible, perhaps to a modified job;
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| *approves job retraining courses;
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| *determines training allowances (usually paid at wage loss levels) and expenses for attending courses;
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| *can agree to subsidize a new employer for a limited time;
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| *determines “continuity of income” benefits to bridge the gap between termination of wage-loss benefits and determination of a permanent pension; and
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| *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.
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| ==== c) Disability Awards Officer ====
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| *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.
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| 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.) may be consulted regarding medical issues. Furthermore, board medical advisors may be consulted where a second medical opinion is needed.
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| === Acceptance or Denial of Claim ===
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| As noted above, there are several key issues involved in determining whether an injured worker’s claim is accepted or denied.
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| ==== a) Is the Applicant a “Worker” under the Act? ====
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| ===== (1) General =====
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| 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.
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| It is important to note that if a worker chooses to pursue compensation through WCB, it means that they forego their right to sue for damages in tort. Where the tortfeasor is not a worker or employee, WCB may pursue claims against non-workers.
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| Some special cases are set out below, but at all times, the most recent version of policies in Chapter 2 of the RSCM II should be consulted if “worker status” is an issue.
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| ===== (2) Workers in Federally Regulated Industries =====
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| While working in BC, workers in federally regulated industries are directly subject to the workers’ compensation system.
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| ===== (3) Federal Government Employees =====
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| Federal government employees are governed by the ''Government Employees Compensation Act'', RS 1985, c G-5 which provides that injured federal government workers in a given province are to have their claims addressed by the provincial administrative body in that province. They are then entitled to be compensated at a rate determined under the provincial workers’ compensation scheme of the province in which they are employed but paid out of a federal fund.
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| ===== (4) Workers Who Suffer an Injury While Working Outside BC =====
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| Workers who suffer an injury while working outside BC may be covered, if:
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| *a) they work in a compensable industry;
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| *b) BC is their place of residence and usual place of employment;
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| *c) the extra-provincial work lasts less than six months;
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| *d) the work is a continuation of their BC employment; and
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| *e) they are working for a BC employer or an employer located outside of BC where the Board has entered into an interjurisdictional agreement (WCA s 335, previously 8.1)).
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| ===== (5) Workers Under the Age of Majority =====
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| Section 121 (previously 12) of the WCA states that a worker under the age of 19 is sui juris for the purpose of Part 3 (previously 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.
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| ===== (6) Self-Employed =====
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| If a person is a self-employed proprietor or partner in a partnership who operates an independent business then they are not automatically covered under the ''Workers Compensation Act''.
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| In general, they are entitled to seek coverage by purchasing optional workplace disability insurance, also known as Personal Optional Protection. Personal Optional Protection will pay health care, wage-loss, and rehabilitation benefits if the person is injured at work.
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| When a self-employed person with Personal Optional Protection is injured, their claim is processed as if they were a “worker” under the Act (section 215; previously 33.6) and their wage rate is set according to their level of Personal Optional Protection coverage (policy #67.20, RSCM II).
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| A labour contractor who does not have Personal Optional Protection and does not operate an independent business may be covered, as a worker by the prime contractor. This is regardless of whether they are eligible for WorkSafeBC coverage or have declined to purchase WorkSafeBC’s optional coverage.
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| Below are examples of situations where a contractor would likely be a worker:
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| *The contractor supplies only labour
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| *The contractor supplies labour and minor materials such as nails, drywall tape, or putty | |
| *The contractor supplies labour and a piece of major equipment but is not registered with WorkSafeBC
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| 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.
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| ===== (7) Employers =====
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| 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 the 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).
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| ==== b) Types of Claims====
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| 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.
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| {|
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| | Sections 134 and 146 (previously 5): personal injury (physical or physical/psychological)
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| | Section 135 (previously 5.1): psychological injury only (“mental stress”)
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| | Section 136(1) (previously 6(1)): occupational disease (Occupational Disease) – no presumption of work causation
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| | Section 137 (previously 6(3)): occupational Disease – presumption of work causation
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| | Section 145 (previously 7): hearing loss
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| |}
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| Detailed policies regarding each of these conditions are set out in the RSCM II. Chapter 3 sets out policies for personal and psychological injuries and compensable consequences. Chapter 4 sets out policies for all Occupational Disease, including repetitive strain injuries and hearing loss. Students handling appeals should note that most causation disputes come down to matters of evidence, and the policies provide important guidance on what evidence is required in each case.
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| ===== (1) Injury or Disease or Both? =====
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| Because the statutory and policy requirements for an injury and Occupational Disease are different, it is important to consider the worker’s disability under the correct relevant category. Sometimes this is not clear.
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| 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.
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| 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 WCA ss 134 and 146 (previously 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 134 is “causative significance”. Further, it is noted in court decisions that compensability will be denied only if personal or non-employment related factors are so dominant or exclusive that the compensable injury is not a significant causal factor (WCAT-2009-02226, affirmed by WCAT-2011-92511).
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| In some case, the worker’s pre-existing condition is actually a developing Occupational Disease, 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 Occupational Disease under section 136 and 137 (previously 6). If the Board denies this aspect as well, you may appeal this denial and join the two appeals together at the Review Division or WCAT so an appeal panel may consider the “whole worker”.
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| ===== (2) Compensable Aggravation =====
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| For both injuries and Occupational Diseases, 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 Occupational Diseases, the policy is set out in #25.20. It is necessary to distinguish between injuries or death resulting from employment (which are compensable), and injuries resulting from pre-existing conditions or diseases (which are not compensable). There must have been 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:
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| * The nature and extent of pre-existing injury; | |
| * The nature and extent of the employment activity; and
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| * The degree to which the employment activity may have affected the pre-existing injury.
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| If the pre-existing condition meets the test for compensable aggravation, this requires an “aggravation” decision separate from a simple acceptance “decision”. For example, the Board may deny that a slip and fall was sufficient to cause a meniscus knee tear in a healthy worker; however, if the worker had pre-existing knee problems, the same claim could have a separate decision accepting an “aggravation” type injury.
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| If the worker has a pre-existing but non-disabling condition, and the claim is accepted, the worker’s injury is dealt with like any other claim and the whole disability is compensable.
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| However, if the worker has a pre-existing disabling condition and becomes further disabled in the same body part through a work injury, the Board will apply section 146 (previously 5(5)) of the WCA or “proportionate entitlement” whereby compensation is paid only for the increase in disability, rather than the whole disability.
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| However, if the worker has a pre-existing disabling condition, and becomes further disabled in the same body part through a work injury, the Board will apply section 5(5) of the WCA or "proportionate entitlement" whereby compensation is paid only for the increase in disability, rather than the whole disability.
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| ===== (3) Jurisdiction =====
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| Where an employer sends workers outside of BC, they are responsible for ensuring that they contact the outside jurisdiction to ensure compliance.
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| WorkSafeBC may cover a worker’s medical and wage loss costs if:
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| *The Worker’s employer is located in B.C.,
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| *The Worker’s residence and usual place of employment are in B.C.,
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| *The employment is such that the worker is required to work both in and out of the province, and
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| *The worker is still working for the same B.C. employer and will return to B.C. in less than six months
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| There are also special requirements for trucking & transport businesses. On top of WorkSafeBC coverage, employers must check the registration requirements with the Workers’ Compensation Authority in the jurisdiction the worker will be working or travelling through.
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