Difference between revisions of "Workers' Compensation Claim Benefits (7:XI)"

Although classified as VR benefits (described below), income continuity benefits are payments to provide interim support for the worker after TWL is terminated at plateau but before the amount of a permanent disability pension is determined. A worker’s advocate should  always request these benefits as they are often the only source of income that a worker will have between the time the worker’s condition stabilizes and the time the pension benefits are assessed. These are short-term, temporary benefits.   

The Board usually assesses whether a worker needs assistance to return to work (RTW) at or near the end of his or her temporary disability. If the worker has a permanent impairment and is not able to safely RTW without assistance, he or she is referred to Vocational Rehabilitation (VR).

If a worker is struggling or unsafe near the end of the period of wage loss, an advocate should review the file to ensure a referral to VR is made.  If there is no referral, the advocate may make a direct request to the CM and/or appeal the “resolve” or “plateau” decision on the basis that these decisions do not contain a VR referral, when one is needed.  Policy #85.00 and #86.00 set out the principles, goals, and eligibility criteria for VR benefits.

Once a VR referral is made, the Board may provide a large variety of VR services to injured workers.  These are discretionary benefits under s. 16 of the Act, governed by the policy set out in Chapter 11 of the RSCM II.  Generally, the extent of VR services generally depends on the nature of the worker’s disability.  

The policy requires that the assigned Vocational Rehabilitation Consultant (VRC) consult with the worker and issue a written VR plan identifying a suitable occupational goal and the VR services required.  In identifying a suitable VR plan, the VRC works through five VR phases, set out in Policies C11-85.00 to 91.00. In fatal cases, a surviving spouse may be eligible for retraining.

# Phase Two: If the worker cannot return to the same job, the VRC works with the accident employer to make worksite accommodations and job modification, or to provide alternative in-service placement, with a view to finding the worker a new position within the accident employer’s business.

# Phase Five:  If the worker’s existing skills are insufficient, the VRC may utilize additional training programs to help the worker acquire new skills and may also assist the worker in a job search once training is complete.

The particular VR benefits which are authorized for the worker are be spelled out in detail in the formal VR plan, which should be provided to the worker.  The worker’s VR plan is first published as a document, discussed with the worker, and then is set out in a formal appealable decision.

VR services can include:  

*monthly compensation (in the same amount as wage loss benefits) to support a worker during a rehabilitation program;

*a job search allowance (also in the same amount as wage loss benefits) to support the worker while looking for suitable employment if he or she cannot return to the pre-injury job; and

*a training on the job allowance or wage subsidy to encourage an employer to allow the worker to learn new employment skills, or gain experience in a new field.

In practice, the Board will only issue one VR plan and ask the worker to agree to it. The plan must be reasonable. If the worker thinks a VR plan is not reasonable, they should appeal the VR decision setting out the VR plan and ask for a new plan, being as specific as possible as to why the VR plan is unreasonable, and if possible, what a reasonable VR plan may be.

If a worker is cooperating with VR re-training, they should continue to receive benefits at the full wage loss rate. If a worker is appealing a VR plan as unreasonable, the worker may wish to keep cooperating with the challenged VR plan during the appeal period in order to continue receiving benefits.  

VR benefits, under a formal VR plan, may be terminated for reasons set out in Policy #88.00.  These reasons include if the worker is not cooperating or if he withdraws for personal reasons or refuses suitable employment or is prevented from participating by non-compensable factors alone. If the worker believes that the Board’s reasons for terminating VR benefits are inaccurate or wrong, the termination decision should be appealed.  This is particularly important if the worker is failing in VR due to some aspect of his medical condition.  

At the end of the VR process, the VRC issues a decision about the worker’s future earning capacity in a suitable occupation and whether VR has restored it to near its pre-injury level.   Based on this final VR decision, the Board then determines whether the worker should be considered for a loss of earnings (LOE) pension.  

While the Board routinely relies on the VRC’s decision regarding the worker’s employability, WCAT does not consider these VR decisions as binding on them when adjudicating an LOE pension issue on appeal.  EXAMPLE: A VRC finds that a worker can adapt to working full-time in a particular occupation, when he cannot. The worker may still raise this issue and provide evidence about disability in his appeal of a denial of an LOE pension, both at the Review Division and WCAT.

:'''NOTE:''' Many difficulties in this area arise from different concepts of disability and employability.  The Board tends to assess a worker’s permanent disability in terms of impairment and to limit its assessment of impairment to “medical restrictions and limitations” (R&Ls) i.e. specific activities which the worker cannot do or should not do at all because of potential harm. R&Ls may or may not include other aspects of limited ability such as tolerance or endurance (such as an inability to sit for more than 10 minutes) which are key elements of work function.   Also, disabled workers often face discrimination and other barriers to employment.   Court decisions have been clear that VR processes must address the whole worker, including any pre-existing disabilities or factors affecting employment (''Young v. WCAT'' 2011 BCSC 1209) but this remains a contentious area and one that the Board does not consider part of the “compensable” condition.