Introduction to Compensation Claims for Injured Workers (7:III): Difference between revisions
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Introduction to Compensation Claims for Injured Workers (7:III) (view source)
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===== (7) Employers ===== | ===== (7) Employers ===== | ||
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 (22) | Referrals]]). | 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 (22) | Referrals]]). | ||
==== b) Is the Applicant Disabled by Work? ==== | |||
Before a compensation claim can be accepted, the Board must find that the worker’s injury, death, or disease was disabling and that the disability occurred as a result of employment. The WCA addresses these matters differently for different types of conditions. | |||
{| | |||
| Section 5 : | |||
| personal injury (physical or both physical and psychological) | |||
|- | |||
| Section 5.1: | |||
| psychological injury only (“mental stress”) | |||
|- | |||
| Section 6 (1): | |||
| occupational disease – no presumption of work causation | |||
|- | |||
| Section 6 (3): | |||
| occupational disease – presumption of work causation | |||
|- | |||
| Section 7: | |||
| hearing loss | |||
|} | |||
Detailed policies regarding each of these conditions are set out in the RSCM II. Chapter 3 sets out policy for personal and psychological injuries and compensable consequences. Chapter 4 sets out policy for all occupational disease (OccD), 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. | |||
===== (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. | |||
In some case, 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, itis 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.In both cases, if the pre-existing condition meets the test for compensable aggravation, this requires a “decision” separate from a simple acceptance “decision”. For example, the Board may deny that a slip and fall wassufficient to cause a meniscus knee tear in a healthy worker; however, ifthe worker had pre-existing knee problems, the same claim could have a separate decision accepting an“aggravation”type injury.An“aggravation”approach applies when the worker has a pre-existing but non-disabling condition.After acceptance, the worker’s injury is dealt with like any other claim and the whole disability is compensable. | |||
