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Difference between revisions of "Introduction to Compensation Claims for Injured Workers (7:III)"
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Introduction to Compensation Claims for Injured Workers (7:III) (view source)
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*j) whether a person is a worker, a subcontractor, a contractor or an employer within the meaning of the Act. | *j) whether a person is a worker, a subcontractor, a contractor or an employer within the meaning of the Act. | ||
Section 113 | Section 113 similarly grants exclusive jurisdiction to the Board to inquire into and determine health and safety matters under Part 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 above. | 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. There are '''four''' categories that the worker's claim will fall under: | ||
*a) Personal Injury (physical or physical psychological) | |||
*b) Psychological injury (only mental stress) | |||
*c) Occupational Disease | |||
*d) Hearing Loss | |||
== B. Overview: Initial Acceptance or Denial of A Compensation Claim/Disclosure & Appeals == | == B. Overview: Initial Acceptance or Denial of A Compensation Claim/Disclosure & Appeals == | ||
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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:VI) | Section VII: Appeals]] for more details. | 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:VI) | Section VII: Appeals]] for more details. | ||
Section 55 of the WCA requires that generally, a worker must apply for compensation within one year of the date of injury | Section 55 of the WCA requires that generally, a worker must apply for compensation '''within one year''' of the date of injury. The one year deadline to claim under Section 55 have '''3 exceptions:''' | ||
# Exceptional circumstances exist and the application is more than three years old (s. 3.2); or | |||
# Death or disablement is due to an occupational disease and there is new scientific evidence regarding the occupational disease causation and not more than three years (s. 3.2); or | |||
# The Board may reconsider an occupational disease decision that meets the Section 55 (3.1) criteria. If a worker's application has been denied because of a late application, please consult section 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 == | == 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 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.). After a worker makes an application for temporary disability, the Board determines whether the worker is totally temporarily disabled (TTD) and if so, pays full wage loss benefits under Section 29 of the Act. If the worker is only partially temporary disabled (TPD) i.e. can work some hours or some duties, the Board will pay partial wages under Section 30 of the Act. If the worker is hurt but not disabled from work, the Board will pay no wage loss but may accept his claim for health care benefits only. | ||
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. | 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. | ||
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However, if the Board considers that the worker cannot return to full duties with his impairment, the “plateau decision” will state this and the worker will be referred to VR for further help with employment. | However, if the Board considers that the worker cannot return to full duties with his impairment, the “plateau decision” will state this and the worker will be referred to VR for further help with employment. | ||
The VR process is set out below and goes through five phases. The first phase is to see if the employer can or will accommodate the worker and his impairment. If there is no accommodation and the worker does not have a job to return to, VR goes through further phases to assess what VR assistance the Board should provide to help the worker become | The VR process is set out below and goes through five phases: | ||
#a) '''Phase One''': Tries to have the worker return to the same job with the same employer | |||
#b) '''Phase Two''': If unable to return to the same employer, works with worker andemployer to modify or identify job opportunities within the same company | |||
#c) '''Phase Three''': If unable to return to the same company, tries to help identify suitable job options related to workers experience and skills. | |||
#d) '''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 | |||
#e) If the worker needs additional skills in order to return to suitable work, they may cover the cost of training to help develop skills | |||
The first phase is to see if the employer can or will accommodate the worker and his impairment. If there is no accommodation and the worker does not have a job to return to, VR goes through further phases to assess what VR assistance the Board should provide to help the worker become unemployable, given his permanent injury. VR benefits are discretionary but typically include a VR plan for the worker to retrain and/or have a job search and wage loss benefits for this period of VR time. If successful, VR results in the injured worker successfully adapting to employment with a permanent injury. | |||
It is possible that VR is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable. In these cases, the Case Manger must decide if the impact of the worker’s disability is “so exceptional” that a PFI 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 LOE pension. The “LOE pension decision” is issued by the case manager, either as part of the plateau decision or after a VR process. If awarded, full LOE pension benefits are equivalent to ongoing TWL benefits. However, the criteria for having an LOE assessment are quite onerous under the new WCA and they are rarely awarded. | It is possible that VR is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable. In these cases, the Case Manger must decide if the impact of the worker’s disability is “so exceptional” that a PFI 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 LOE pension. The “LOE pension decision” is issued by the case manager, either as part of the plateau decision or after a VR process. If awarded, full LOE pension benefits are equivalent to ongoing TWL benefits. However, the criteria for having an LOE assessment are quite onerous under the new WCA and they are rarely awarded. | ||
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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 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 a future appeal proceeding. The Teleclaim transcript may be sent to the worker. If it is not sent, the worker should request a transcript. | 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 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 a future appeal proceeding. The Teleclaim transcript may be sent to the worker. If it is not sent, the worker should request a transcript. | ||
====Exception: Electing to Proceed Outside the WCB==== | |||
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 out of a motor vehicle accident. | |||
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. | |||
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 work benefits, the worker receives the difference minus the 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 Worker's 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. | |||
=== Procedure After Application === | === Procedure After Application === | ||
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On May 11 2009, WCB launched a “Claims Management Solutions”(CMS) system to streamline and manage the claims process more effectively, and improve service to customers. CMS 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. | On May 11 2009, WCB launched a “Claims Management Solutions”(CMS) system to streamline and manage the claims process more effectively, and improve service to customers. CMS 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. | ||
=== Initial | === Initial Decision Making Process === | ||
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: | 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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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). | 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). | ||
==== b) | ==== b) Types of Claims | ||
{| | {| | ||
| Section 5 : | | Section 5 : | ||
