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

Revision as of 01:02, 29 July 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 31, 2020.

Once a claim has been accepted by the Board, the process next moves to a determination of what benefits should be paid to the injured worker.

Many RSCM II chapters apply to the adjudication of claim benefits. The most important chapters can be summarized as follows:

Chapter 5 – Wage Loss Benefits
Chapter 6 – Permanent Disability Benefits
Chapter 8 – Compensation of the Death of a Worker
Chapter 10 – Health Care; and
Chapter 11 – Vocational Rehabilitation Services

A. 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 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.

The following examples are to illustrate common compensation benefits and scenarios for disability:

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:

His injury has “resolved” with no permanent impairment and they can return to work and perform full duties. In this case (as above), the Board will issue a “resolve” decision ending their temporary wage loss benefits and their file will be closed; or

2 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 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 permanent physical impairment, not direct compensation for lost wages.

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.

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.

The vocational rehabilitation process is set out below and goes through five phases:

Phase one: Tries to have the worker return to the same job with the same employer

Phase two: If unable to return to the same employer, works with worker and employer to modify job or identify job opportunities within the same company

Phase three: If unable to return to the same company, tries to help identify suitable job options related to workers experience and skills

Phase four: If the worker is unable to return to the suitable work in the same or related industry, tries to help the worker to identify options in other industries

Phase five: If the worker needs additional skills in order to return to suitable work, 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 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.

It is possible that vocational rehabilitation is not successful or that a seriously injured worker is simply too disabled to ever be competitively employable.

B. Short Term and Long Term Wage Rates

When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All wage loss related benefits (e.g. loss of earnings, permanent functional disability, and temporary wage loss) are paid according to these rates. If you or your client believe your benefits do not accurately reflect your income before your injury, it is vital that you try to correct this as soon as possible.

At the beginning of the claim, the Board sets a short-term wage rate. After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate. Both the short-term wage rate and long-term wage rate are set at 90% of net earnings but the calculation of these earnings are different (in most cases) for the two wage rates.

A worker’s short-term and long-term wage rates are based on a determination of “Average Earnings” for the worker. This determination is a complicated and fact specific process. There is an entire chapter of the RSCM II devoted to policies surrounding the determination of a worker’s average earnings (RSCM II Chapter 9 – Average Earnings). See below for further details.

The general rule for determining a worker’s short term average earnings is to take the worker’s earnings as of the date of the injury. For example, if a worker makes $100 per day as at the date of the injury, their average earnings will be set at $100 per day. However, this is not an appropriate measure for workers who do not work regular hours. Workers with variable earnings, with more than one job, and several other specific circumstances will have their short term average earnings determined in respect of a certain period of time (e.g. over three months prior to the accident) rather than in respect of the date of the accident. (See RSCM II, Policies #64.00 – 65.05)

The general rule for determining a worker’s long term average earnings is to obtain the worker’s earning and tax status for the 12 months preceding the injury and base the average earnings for the worker on that information.

For both short-term and long term average earnings, there are exceptions to the above general rules. The exceptions apply workers with a casual pattern of employment, self-employed workers, workers with no earnings, volunteer workers, volunteer firefighters, workers in catholic institution, emergency services workers, apprentices, workers employed for less than 12 months, and workers in “exceptional circumstances” (see RSCM II, Policies # 67.00 – 67.60)

For example, where the Board decides that a worker has a casual pattern of employment, the short-term average earnings will be based on that worker’s earnings over the immediately preceding 12 months of employment. Essentially, this means there is no “short-term” wage rate review, only the “long-term” wage rate. The result is that a “casual worker” who is earning a good wage at the time of the accident will likely be eligible for less compensation during the initial payment period than their counterpart in a “permanent” job. Where the “casual worker” designation has been made in the short-term wage rate decision but is not correct, this may be an important appeal issue.

NOTE: Practice Directive #C9-9 currently describes a two-step investigation procedure to determine whether a worker's pattern of employment is casual in nature. If the job at the time of injury is scheduled to last for three months or longer, the worker will not be considered a casual worker. If the job is scheduled to last for less than three months, the worker may be considered a casual worker if they have a history of short term jobs (less than three months in length) with significant absences from employment between them (greater than the time spent employed). However, as PDs are updated and changed on a regular basis, the electronic version should be consulted.

Another example is a “new” worker, defined as when the worker was permanently employed by the accident employer for less than 12 months before the injury. For this type of worker, section 217 of the WCA [Former Act, s. 33.3] allows the average earnings to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 217 is not applicable where the worker’s employment is deemed casual or temporary.

Under section 218 of the Act [Former Act, s. 33.4], the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable”. This provision does not apply to cases of “casual” workers or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary”, “unusual”, or “irregular”, such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history”. Examples might include a non-compensable illness or injury or maternity/paternity obligations. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e. one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time.

Under WCA s. 208(3) [Former Act, s. 33(3.2)], EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work”. For a seasonal worker, this is an important distinction as can be seen by the example of a worker injured at work in their first week, after returning from a six-month layoff. If this worker were designated as a “casual worker”, the Board would simply calculate their earnings over the last year (including the period of the long layoff but without counting EI payments) to arrive at the “average earnings” over the one-year period before the injury. This figure would set both their short-term wage rate and long-term wage rate and the only argument for a higher rate would be through the exceptional circumstances covered by section 218 of the Act. However, if the worker is found to be in a “highly seasonal” occupation, their EI benefits would add to the calculations of their “average earnings” and greatly increase their long-term wage rate. In addition, their short-term wage rate (for the first 10 weeks) would be set in the usual manner as being their wages at the time of injury.

Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on their combined earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (RSCM II Policy #65.02).

In addition to determining the appropriate period of time over which to “average” earnings, the Board will also consider what income should or should not be included in that average. These policies are set out at RSCM II, Policies #68.00 – 68.90 and include topics such as overtime, termination pay, salary increases, benefit plans, trike pay, fishers and others.

Note also that the WCA places a cap on wage rates that is set out at Policy #69.00 of the RSCM II.

Once the appropriate averaging period and included income amounts have been determined and averaged, deductions are applied so that the worker is receiving wage rates based on their net (or take home) pay, rather than their gross pay. To calculate the workers average net earnings, the Board deducts probable EI premiums, probable CPP contributions, and probable income tax. These amounts are estimated, not calculated specifically for the worker (see RSCM II, Policy #71.00).

In order to do this, the Board establishes a schedule of deductions that apply to short-term average net earnings and long-term average net earnings (see RSCM II, Policies #71.10 and 71.20). For short-term average net earnings, the board applies the scheduled amount of CPP and EI deductions according to the worker’s average earnings. The Board will then deduct income tax based on the following credits: the basic personal amounts multiplied by 1.5 and the credits for CPP and EI contributions.

This will mean that individuals who have dependents or other significant tax credits will end up with a net average earnings amount that may not accurately approximate their actual net earnings. However, this is only an issue for the short-term rate.

For long term average earnings, the Board applies formulas that reflect federal and provincial tax rate and the level of CPP and EI contributions for the immediately preceding calendar year. CPP and EI contributions are determined in a similar manner as in the short-term calculation, and do not necessarily reflect the actual CPP and EI contributions deducted from the worker. However, in estimating tax deductions, the Board will apply the basic personal amounts, EI and CPP credits, and spousal / dependent and / or caregiver credits.

NOTE: In addition to Chapter 9 of the RSCM II, there are currently 11 practice directives that apply to the calculation of a worker’s average earnings and average net earnings. Rather than summarize this complexity, it is best to recognize that the Board’s long-term wage rate decision is based on an “average earnings” decision and that the “average earnings” decision is important to review on its particular facts.

Wage rates are established based on the worker’s short-term or long-term average net earnings. The worker receives a wage rate based on 90% of their average net earnings. So, once the short-term or long-term average net earnings have been calculated as above, the wage rate paid to the worker will be 90% of that amount.

Once the long-term wage rate is set, the Board uses this long-term wage rate figure to calculate the amount of any awarded WCB benefits, including pensions, on that worker’s claim, for the life of the claim, except in the case of “re-openings” (see below).

Finally, for ongoing benefits, such as pensions, while the initial amount is determined on the basis of the long-term wage rate, the benefit itself is adjusted annually according to inflation, at a rate 1 percent less than the actual inflation rate with a 4 percent cap on inflation adjustments, regardless of whether the actual inflation rate is higher. This applies to all workers, including those injured before June 30, 2002.

Recurrence or Deterioration and Wage Rates

A claim may be “re-opened” if a worker suffers a new period of temporary disability and/or an increased degree of permanent disability from a recurrence or deterioration of a previously accepted condition.

Under s 229(1)(8) [Former Act, s. 35.1(8)] of the Act, a recurrence of an injury is treated as a new injury for any new period of temporary disability. In addition, if the re-opening is more than 3 years after the initial injury, the Board may reset the long-term wage rate for the purpose of calculating additional benefits under the re-opening.

The applicable policy on re-setting long-term wage rate for re-openings over 3 years is Policy #70.20. This policy is complex, and it is best to consult this policy in light of the particular facts of each case. This policy affects all workers with long-term disabilities, where their condition recurs or deteriorates.

The re-opening provisions also have particular significance if the worker was injured prior to June 30, 2002, where the long-term wage rate was calculated as 75% of gross and the definition of “average earnings” was different. For this worker, their re-opening TWL benefits would be calculated under the new policy provisions (90% of net average earnings).

It should be noted that a “recurrence” must be distinguished from a “deterioration”. In Cowburn v Worker’s Compensation Board of British Columbia, 2006 BCSC 722, the court found that it was patently unreasonable to treat a deterioration in a worker’s disability as a recurrence of an injury. Accordingly, when a worker’s permanent disability that began before June 30, 2002 becomes worse, the increased benefits are based on the older provisions that were in force when the disability first arose (such as pension entitlement). However, a new applicable wage rate may still have to be determined under policy #70.20.

C. Average Earnings

As noted above, the Board determines a worker’s long-term wage rate based on its calculation of their annual “average earnings” and because of this, “average earnings” is an important decision on the worker’s claim.

In general, “average earnings” is set as the worker’s employment income over the one-year period before the injury. Section 208 (previously 33) of the Act provides that the Board must use the exact previous one-year earnings unless the worker meets one of the few exceptions set out in the Act. If a worker has regular earnings in this one-year period before their injury, this is not difficult. However, if a worker has irregular earnings in this period (for any reason), it is important to consider whether their employment falls within one of the statutory exceptions; if not, it will be difficult for that worker to get a long-term wage rate comparable to their actual earnings at the time of injury.

One exception is for “casual workers’. As noted above, “casual workers” already have their “average earnings” (over the previous year) calculated at the outset of the claim and for these workers, their short-term wage rate will be the same as their long-term wage rate; both wage rates are likely significantly lower than the worker’s actual wages at the time of injury. This section is rigidly applied.

Another exception is a “new” worker, defined as when the worker was permanently employed by the accident employer for less than 12 months before the injury. For this type of worker, section 217 (previously 33.3) of the WCA allows the “average earnings” to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 217 is not applicable where the worker’s employment is deemed casual or temporary.

Under section 218 (previously 33.4) of the Act, the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable”. This provision does not apply to cases of “casual” workers or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary”, “unusual”, or “irregular”, such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history”. Examples might include a non-compensable illness or injury or maternity/paternity obligations. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e. one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time.

Under WCA s 208(3) (previously 33(3.2)), EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work”. For a seasonal worker, this is an important distinction as can be seen by the example of a worker injured at work in their first week, after returning from a six-month layoff. If this worker were designated as a “casual worker”, the Board would simply calculate their earnings over the last year (including the period of the long layoff but without counting EI payments) to arrive at the “average earnings” over the one-year period before the injury. This figure would set both their short-term wage rate and long-term wage rate and the only argument for a higher rate would be through the exceptional circumstances covered by section 218 of the Act. However, if the worker is found to be in a “highly seasonal” occupation, their EI benefits would add to the calculations of their “average earnings” and greatly increase their long-term wage rate. In addition, their short-term wage rate (for the first 10 weeks) would be set in the usual manner as being their wages at the time of injury.

Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on their combined earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (Policy #65.02).

D. Temporary Wage Loss Benefits (TWL)

The WCA does not define “disability” although it uses this term throughout the Act. Section 191(1) (previously 29(1)) of the Act states that if a worker has a temporary total disability, the Board must pay full temporary wage loss benefits (calculated according to the steps above) also referred to as “s 191 benefits”. Section 192 (previously 30) states that if a worker has a temporary partial disability, the Board must pay the difference between the worker’s average net earnings before the injury and either their average net earnings after the injury OR the average net earnings in some deemed “suitable” occupation. These are referred to as “s. 192 benefits”.

If a worker has an injury but can perform the full duties of the pre-injury job, the claim is accepted for health care benefits only (see below). If the injury is such that the worker cannot perform full duties, the Board makes an entitlement decision on an accepted claim regarding additional benefits, especially wage loss (#33.00). For most claims, the Board finds that there is some type of temporary disability:

Temporary Total Disability - worker not working at all: Temporary Wage Loss paid under s 191 (previously 29) of the Act;

Temporary Partial Disability – worker working part-time work at a suitable occupation or deemed suitable occupation and paid Partial Wage Loss under s 192 of the Act; OR

Temporary Disability (of any kind) but the employer gives the worker suitable light duties as per policy #34.10. In this case, the Board usually does not pay the worker any temporary wage loss benefits but the worker’s other benefit entitlement (such as health care) is adjudicated under s 192 of the Act. Policy #34.10 applies to any adjudication of these light duties, including where the worker refuses light duties on the grounds that they are unreasonable.

NOTE: Light duties are meant to be a temporary arrangement during a period of temporary disability. Even though no temporary wage loss benefit is paid to a worker, it is still an accepted period of “disability” under the Act. During this period, a worker is entitled not only to health care benefits but also to a decision regarding the outcome of the accepted condition. All periods of “light duty” should conclude with a formal “resolve” or “plateau” decision (see below).

A temporary disability ceases when the worker’s medical condition either resolves entirely or is not expected to change significantly in the next 12 months. At this point, the medical condition is said to have “plateaued” and is considered permanent. In either case, the Board ceases to pay further temporary wage loss benefits under ss 191 or 192 (previously 29 or 30) at this point.

E. Health Care Benefits

Health care benefits are payable under ss, 156-161 (previously 21) of the Act for the period of the worker’s disability, and thereafter to “cure and relieve from the effects of the injury or alleviate those effects”. Chapter 10 of the RSCM II greatly expands the Board’s regulation and control of particular health care benefits including all forms of treatment, medical investigation with specialists, medical aids and medications. As noted above, if a worker has an impairment but can perform their full pre-injury job, the claim is accepted for health care benefits only (as long as there is a short episode of disability: see policy #33.00).

Once an injured worker has reached the “resolve/plateau” point of their injury then they receive a permanent disability assessment. This may be an issue for workers who are able to return to work with permanent injuries, especially in accommodated positions. Such worker may be suffering from the effects of their injury but are not considered “disabled”. They are entitled to on-going treatment under ss 156-161 of the Act. Where a worker is denied but disagree with the result, they may appeal to obtain such benefits.

The Board must pay for necessary medical treatment, including physicians and hospital bills, physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for personal care and for structural alterations to the home may also be paid to paraplegics and other severely disabled workers. Practice derivative #C10-1 addresses pain medication, sedatives and hypnotics and was updated in 2017. Compensation for prescribed opioids and other potentially addictive medications are generally limited to four weeks coverage.

The Board has the right to supervise a worker’s treatment (ss 156-161; previously 21) and to authorize any surgery. If a worker decides to undergo surgery or other treatment that is not authorized by the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The Board often refuses to pay for drugs or physiotherapy considered unnecessary by its advisors. Notwithstanding the 75-day time limit on Board reconsideration (WCA section 123(2); previously 96(5)), the Board now agrees that each Medical Aid decision can be appealed.

F. Income Continuity Benefits

Although classified as vocational rehabilitation benefits (described below), income continuity benefits are payments to provide interim support for the worker after temporary wage loss benefits are 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.

If a worker refuses employment or to participate in a Board issued vocational rehabilitation plan, they may be refused income-continuity benefits. See Policy C11-89.10 of the RCSM for more information regarding the assessment of income continuity benefits.

G. Vocational Rehabilitation Benefits

The Board usually assesses whether a worker needs assistance to return to work at or near the end of their temporary disability. If the worker has a permanent impairment and is not able to safely return to work without assistance, they are referred to Vocational Rehabilitation.

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 vocational rehabilitation 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 vocational rehabilitation referral, when one is needed. Policy #85.00 and #86.00 set out the principles, goals, and eligibility criteria for vocational rehabilitation benefits.

Once a vocational rehabilitation referral is made, the Board may provide a large variety of vocational rehabilitation services to injured workers. These are discretionary benefits under s 155 (previously 16) of the Act, governed by the policy set out in Chapter 11 of the RSCM II. Generally, the extent of vocational rehabilitation services depends on the nature of the worker’s disability.

The policy requires that the assigned Vocational Rehabilitation Consultant consult with the worker and issue a written vocational rehabilitation plan identifying a suitable occupational goal and the vocational rehabilitation services required.

In identifying a suitable vocational rehabilitation plan, the vocational rehabilitation consultant works through five vocational rehabilitation phases, set out in Policies C11-85.00 to 91.00. In fatal cases, a surviving spouse may be eligible for retraining.

In brief, the phases are:

Phase One: The vocational rehabilitation consultant will make an effort to assist the worker to return to the same job with the same employer (the “accident employer”). This may require some phased-in work programs such as a gradual return to work or work conditioning.
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 Three: If the employer is unable or unwilling to accommodate the worker, the VRC identifies suitable occupational options in the same or related industry. This may require the worker to obtain additional skills or training or to be supported in periods of job search.
Phase Four: If the worker is unable to return to employment in the same or related industry, the vocational rehabilitation consultant explores opportunities in all industries, with emphasis placed on the worker’s transferable skills, aptitudes and interests.
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 vocational rehabilitation benefits which are authorized for the worker are detailed in the formal vocational rehabilitation plan, which should be provided to the worker. The worker’s vocational rehabilitation plan is first published as a document, discussed with the worker, and then is set out in a formal appealable decision.

Vocational rehabilitation services can include:

monthly compensation (in the same amount as wage loss benefits) to support a worker during a rehabilitation program;
payment of tuition, books, and other costs of the course itself;
employability assessments
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 vocational rehabilitation plan and ask the worker to agree to it. The plan must be reasonable. If the worker thinks a vocational rehabilitation plan is not reasonable, they should appeal the vocational rehabilitation decision setting out the vocational rehabilitation plan and ask for a new plan, being as specific as possible as to why the vocational rehabilitation plan is unreasonable, and if possible, what a reasonable vocational rehabilitation plan may be.

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

Vocational rehabilitation benefits, under a formal vocational rehabilitation plan, may be terminated for reasons set out in Policy #88.00. These reasons include if the worker is not cooperating, if they withdraw for personal reasons, if they refuse suitable employment or if they are prevented from participating by non-compensable medical, psycho-social or financial problems. If the worker believes that the Board’s reasons for terminating vocational rehabilitation benefits are inaccurate or wrong, the termination decision should be appealed. This is particularly important if the worker is failing in vocational rehabilitation due to some aspect of their medical condition.

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

Only the WCB’s Review Division can review rehabilitation decisions; the Review Division decisions on vocational rehabilitation cannot be appealed to the Workers’ Compensation Appeal Tribunal.

While the Board routinely relies on the vocational rehabilitation consultant’s decision regarding the worker’s employability, WCAT does not consider these vocational rehabilitation decisions as binding on them when adjudicating a loss of earnings pension issue on appeal. For example, a vocational rehabilitation consultant may find that a worker can adapt to working full-time in a particular occupation. If the worker disagrees about this decision, the worker may still raise this issue and provide evidence about disability in their appeal of a denial of a loss of earnings 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 vocational rehabilitation 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.

H. Permanent Disability Pensions

Once a worker’s condition has stabilized or “plateaued”, i.e. is not likely to get significantly better or worse in the next 12 months, temporary wage loss benefits will cease. If the worker continues to have some disability, they will be assessed for a permanent disability pension. A disability pension is possible if WCB determines that the worker has been left with a permanent disability.

A case manager will determine which conditions or injuries are permanent and refer the worker for assessment. Decisions not to refer a worker at all or to exclude certain injuries or conditions are appealable to the Review Division and, if necessary, WCAT.

A WCB “pension” is how the Board compensates an injured worker for a permanent disability. There are two possible methods for calculating a pension – compensation for permanent functional impairment or compensation for loss of earnings.

All permanent disability pensions are paid until age 65 unless the worker can convince the WCB otherwise (discussed in detail below).

NOTE: Workers who also qualify for Canadian Pension Plan (CPP) disability benefits will have one-half of those benefits deducted from their WCB pensions (this could amount to as much as $577 per month, half of the $1153 maximum currently payable by CPP). This deduction represents the employer’s share of the benefits paid for the same disability as the WCB claim. If a CPP pension is partly based on non-compensable disabilities, no deduction will be made for that portion of the CPP.

Functional Impairment Method

The first calculation for permanent partial disability pensions (called “Permanent Functional Impairment”) compares the worker’s degree of physical impairment to that of a totally disabled person. The percentage of impairment is usually based on the RSCM’s Permanent Disability Evaluation Schedule (PDES).

Generally, only disabilities that could reduce earning capacity receive compensation, and there are no payments for pain and suffering or loss of enjoyment of life. The Board’s policy manual contains detailed schedules of percentage disability for different types of disabilities. Types not listed are estimated, and there is usually some degree of discretion in the process.

Policy item #39.10 says that the PDES is meant to be a guideline and not a rigid formula. The WCB is free to apply other variables in arriving at a final award, but they must relate to degree of impairment and not social or economic factors, or rules established in other jurisdictions. In practice, the PDES is applied with little discretion.

Note that loss of function awards for chronic pain are capped at 2.5% per area of pain.

Projected Loss of Earnings Method

This second calculation for permanent partial disability pensions compares the long-term wage rate that a worker was able to earn per year before the injury to what the worker is able to earn after the injury, based on occupations that are suitable for and reasonably available to that worker.

Loss of earnings pensions will only be paid where the amount determined under the loss of function method would leave the worker with a significant loss of earnings, i.e. where the disability resulting from the work injury makes it unlikely that a worker can continue in the occupation at the time of injury or adapt to another suitable occupation without incurring a significant loss of earnings (See WCA s 196 (previously 23(3.1)) and Item #40.00 in the RSCM). Practice Directive #C6-2 further defines “significant loss of earnings”. A 25% or greater percentage differential between pre-injury and post-injury earnings is usually considered significant. A 5% or less percentage differential is not considered significant. Anything in between could be considered significant, depending on the individual circumstances of the case. Note that the Practice Directive is not binding law but is still persuasive.

Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they actually are earning or can earn following an injury. For example, a worker who cannot return to a pre-injury job that paid $4000 per month may find new employment for $2000 per month. Instead of accepting the worker’s own experience, the Board may decide that over the long term the worker can find a different kind of job that pays $3000 per month and calculate the benefits accordingly. Instead of getting a loss of earnings pension representing the actual $2000 per month the worker is losing, they would receive a pension based on the $1000 the Board “deems” them to be losing.

Workers may disagree with Board decisions. Common situations are that the worker believes the Board has underestimated the extent of physical or psychological limitations they have due to their injury and/or pre-injury background or underestimate the demands of the deemed occupations the Board says they can perform. Workers may also disagree with the assessment of what they are capable of earning over the long-term in the deemed occupations, therein deeming them capable of theoretical earnings that exceed what is reasonably suitable for and available for them. If a worker appeals a loss of earning decision, then they should provide evidence of why the decision should be changed.

Given the above, the vast majority of workers will only receive a Permanent Functional Impairment (PFI) award for their permanent partial disability. For exceptional cases where the PFI award is inadequate, an additional Loss of Earnings award will be provided. In cases of severe disability, a worker may have a permanent total disability equal to 100% PFI. In these cases, the WCB will pay the worker a monthly payment equivalent to a 100% loss of earnings pension. Some examples of permanent total disability are paraplegia, quadriplegia and total or near blindness.

I. Benefits after Age 65

Policy item #41.00 states that payments for permanent disability pensions end at age 65 unless the WCB is satisfied that the worker would have retired at a later date. The worker is asked to provide independent verifiable evidence at the time of the permanent disability award (or on appeal) that they had plans prior to injury to work beyond age 65. This type of evidence can often be unavailable. A series of WCAT and Review Division decisions have held that if independent verifiable evidence is not available, the available evidence including workers’ statements should be considered to determine whether the worker had plans prior to the work injury (or in some cases prior to the time of the permanent disability award). See WCAT-2014-00467, identified as “noteworthy” on the WCAT website; if, for example, the worker had sincere plans to continue working past age 65 due to some combination of emotional and financial need, this may be sufficient to extend the pension.

J. Benefits in Fatality Cases

A child eligible for compensation includes a child less than 19 years of age, an invalid child of any age, and a child less than 25 years of age who attends a school.

Spousal benefits are not lost upon re-marriage, and survivors’ pensions are not terminated when the worker would have reached age 65 (ss 168 as well as 225 for death before July 1, 1974; previously 19.1). In older cases, a spouse of a deceased worker who remarried might have lost their benefits. Under the new legislation, there are no such exclusions. Instead, s 19(2) states that a person whose payments were discontinued under a former section is entitled to complete payment of all benefits that they would have been entitled to – as though the section had not applied.

Where death results from a compensable injury or industrial disease, the surviving dependents may receive lump-sum payments or monthly pensions based on the deceased worker’s earnings. These pensions cannot exceed the statutory maximum and are adjusted in accordance with changes in the Consumer Price Index. The amount of the pension for spouses without dependent children depends on the surviving spouse’s age (s 170; previously 17(3)(d)).

A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had they survived (s 178; previously 17(9)). A common-law spouse is entitled to benefits after three years of cohabitation or after one year if there are children. However, compensation may not be paid, or may be reduced, if there is a separated spouse as well.

K. Suspension of Benefits

Benefits may be suspended:

a) if a worker persists in unsanitary or injurious practices, which tend to prevent or slow recovery;
b) if a worker refuses to submit to medical or surgical treatment, which, in the opinion of the WCB, is reasonably essential in promoting recovery;
c) if a worker fails to attend a medical examination arranged by the Board; or
d) if a worker is in prison, in which case benefits will cease, or be paid to his or her dependents.

The Board may also divert compensation from a worker for the benefit of his or her dependents if the worker is not supporting them.

Under s 153 (previously 57.1) of the WCA, the Board may withhold or reduce benefits for any period the worker does not provide the requested information (unless the Board finds that it was unclear in communicating the requirement, or erroneously concluded that the worker was being uncooperative). However, such benefits will be paid when the worker provides the necessary information.

L. Emergency Assistance

Many workers need immediate income if they are waiting to be accepted or their benefits have been disallowed or terminated. They should consider alternate sources: social assistance, which may provide a crisis grant for immediate temporary relief or longer-term relief if a decision is being appealed, EI sickness benefits, CPP disability pensions, any plans available through their place of work or union, ICBC (if an automobile was involved), or private disability insurance.

M. “Resolved/Plateau” Decision Letters

There are other key decisions in a worker’s claim including the initial decision to accept or deny a claim and any vocational rehabilitation or pension decision. Additionally, it is important to note the decision that is issued at the end of a period of temporary disability. This decision, referred to as a “resolved/plateau” decision, usually includes several key decisions, each of which may be appealed. Briefly, the decisions usually embedded in the “resolve/plateau” decision include:

Has the Worker's Injury/Occupational Disease Stabilized?

The first key issue is an accurate medical assessment of the worker’s compensable condition at the critical point of a “resolve/plateau” decision. As noted above, if a work injury or Occupational Disease has resolved entirely, the Board issues a “resolve” decision and the claim file is closed. If the injury has only stabilized, then the Board issues (or should issue) a “plateau” decision. If the injury has not yet stabilized, the Board should continue to treat it as a temporary disability with temporary benefits (wage loss and/or health care benefits).

An appealable matter arises if the Board issues a “resolve” decision but the worker or the medical evidence indicates that there are ongoing effects, conditions or impairments from the injury (e.g. chronic pain). In this case, both the medical evidence and the Board’s adjudication should be assessed. The medical evidence should be assessed to determine if the compensable conditions are still temporarily disabling (i.e. the worker is not able to fully return to pre-injury work) so that the worker continues to be entitled to temporary ongoing benefits, or if the compensable conditions have reached a “plateau” as defined by policy #34.54 and the worker is entitled to a referral to Disability Awards and (sometimes) Vocational Rehabilitation.

The issue of “fully resolved” vs. reached a plateau is a medical issue. “Fully resolved” means that there is no permanent or ongoing residue or impairment from the injury. If the claim is concluded on the basis that the compensable condition has “fully resolved”, then no further benefits flow and it will be very difficult to reopen the claim later. If the injury is not fully resolved medically, the file should not be closed. Just because a worker returns to pre-injury employment (with no disability so no wage loss) does not mean that the injury is “fully resolved”; the injury may have stabilized into a permanent impairment that is not disabling. If the worker is issued a “resolve” letter and there are ongoing medical issues or symptoms, the “resolve” decision should be appealed.

If the condition has not resolved but you are unsure whether it is still a temporary or permanent disability, policy #34.54 gives the criteria for making a determination between temporary and permanent conditions in this context. Basically, the policy states that a medical condition is “stabilized” when there is little potential for improvement or where any changes are in keeping with the normal fluctuations for that condition. Most doctors know the term “plateau” in this sense and the worker’s GP may well address this matter in the last report on the claim file (found in the medical section).

Plateau Date

If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing” or “maximum medical recovery” (MMR) or “plateau”. You can assess whether this date is appropriate, considering:

a) Have all the compensable conditions been considered? And
b) Is it appropriate given the criteria in policy #34.54 and the medical evidence?

EXAMPLE: If further treatment (physiotherapy or surgery) is likely to make a significant change in the worker’s condition within three months, then the condition should continue to be temporarily disabling and the worker should get TWL until then.

What Permanent Conditions are Accepted and what Conditions are Denied?

In the plateau decision letter, the Case Manager sets out which exact conditions are accepted as permanent. These permanent conditions may be somewhat different than those originally accepted on the claim. For example, if a worker falls and suffers multiple injuries, some of the injuries are likely to fully resolve (sprains) while others can potentially leave a residual impairment (broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (infections, psychological conditions, chronic pain, addiction, etc.).

Typically, as a worker nears plateau, the Case Manager refers the claim to a Board Medical Advisor (BMA) to assess whether the worker has reached plateau, and to determine the likely plateau date and what permanent conditions should (and should not) be accepted on the claim. The BMA assessment may or may not be explicitly referenced in the plateau decision. The complete BMA opinion can be found as a “Clinical Opinion” in the Medical section of the claim file.

Accepted and Denied Conditions

It is very important to carefully assess which conditions are accepted and denied as permanent on the claim as these conditions will likely govern all future benefits. All plateau decisions should include a referral to Disability Awards for assessment of the permanent disability.

The plateau decision may also set out why certain medical conditions are denied as compensable permanent conditions. For example, if the Board finds that the identified conditions have resolved and the worker disagrees, this is a very important appeal. Sometimes the medical evidence on the claim file is sufficient to establish that the condition has not resolved; if not, the worker will likely need additional medical evidence.

Another common reason for denying permanent conditions is that the Board considers that the conditions pre-existed the injury and were not permanently aggravated by the injury, even if there was a temporary aggravation. There are two distinct types of pre-existing conditions:

The pre-existing condition or disease was non-deteriorating:

As set out in policy #16.00 (Chapter 3) for injury and policy #25.20 (Chapter 4) for Occupational Disease, if the post-plateau condition is not significantly worse than before the injury, then the condition was not permanently aggravated by the work injury/Occupational Disease. This is an issue for which medical records are important; or

The pre-existing condition or disease was deteriorating:

If the worker had a pre-existing deteriorating condition, the test is whether the work injury “significantly accelerated, activated or advanced” the condition more quickly than would have occurred in the absence of the work injury (policy #16.00). The Board commonly denies permanent disability on the basis that it arises from a natural degeneration of a pre-existing condition such as degenerative disc disease or osteoarthritis.

Missing Conditions

The plateau decision (accepted and denied conditions) may not fully encompass the medical conditions which are noted by the worker or by the medical practitioners. This is best seen by comparing the decision letter with the medical evidence. If the decision is silent on a medical condition, you can ask for a new or additional decision from a case manager. Alternatively, if you are appealing the plateau decision on other grounds, in the appeal you can ask for a remedy that additional conditions be accepted on the claim.

Can the Worker Return to the Pre-Injury Job?

A case manager’s decision that a worker can return to their pre-injury job is considered to be a finding of fact and not an appealable decision. In the context of a plateau decision, this return to work finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job.

If this is not the case, this is a very important issue to challenge. Since an appeal of a plateau decision often involves seeking additional temporary wage loss benefits, a new plateau date, additional permanent conditions, etc., the return to work finding of fact can be addressed in the context of these additional issues.

However, if there are no other issues in the plateau decision except this return to work finding, the plateau decision should be appealed on the grounds that the worker cannot return to their pre-injury job and is entitled to additional vocational rehabilitation benefits. Framing the appeal issue in this way ensures that the Review Division has an entitlement decision to address.

If Not, Referral to Vocational Rehabilitation

If the Board finds that the worker cannot return to their pre-injury job, then the case manager will most often refer the case to vocational rehabilitation for vocational rehabilitation benefits.

Did the Worker Suffer an Exceptional Loss of Earnings?