Difference between revisions of "Disability and Causation in Workers' Compensation (7:IX)"
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See also RSCM II #C3-22.00 – 22.40. | See also RSCM II #C3-22.00 – 22.40. | ||
== E. Section 136: Occupational Diseases == | |||
=== 1. Overview of Compensable Occupational Diseases === | |||
An Occupational Disease is a particular disease or medical condition which is recognized by the Board as likely or possibly caused by work, based on scientific evidence. The Board “recognizes” an Occupational Disease formally by listing it in a policy. These lists are updated as new scientific evidence becomes available. A “disease” is a broad category which includes exposures, cancer, poisons, repetitive strain injuries, hearing loss and contagious and respiratory diseases. | |||
To determine if a worker’s medical condition is a recognized Occupational Disease, consult the two policy provisions listing the recognized Occupational Diseases: '''Appendix 2 (RSCM II)/Schedule 1 (WCA)''', which sets out Occupational Diseases recognized as qualifying for a presumption of work causation for certain industries, and '''RSCM II #C4-25.00''', which sets out additional Occupational Diseases recognized by Regulation. Each type has different tests for work causation, which must be met if the Occupational Disease is to be accepted by the Board as compensable. | |||
=== 2. Occupational Diseases listed in Schedule 1 (Appendix 2 of the RSCM II) === | |||
Occupational Diseases listed in WCA Schedule 1 [Former Act, Schedule B] are matched with the particular industries in which they commonly occur. If the worker has that disease and works in the listed industry at the time of disablement, the Occupational Disease is presumed to have been caused by that work unless the contrary is proven (WCA, s. 137 [Former Act, s. 6(3)]). A presumption of work causation only arises for diseases mentioned in Schedule 1 when the worker is working in the listed industry immediately before the date of disablement. Otherwise, no presumption applies. Also, the contrary may be proven in an individual case. For example, where a worker was employed as a coal miner at or before the date of disablement, silicosis is compensable unless it is proven to have been caused by non-work factors such as smoking. | |||
Occupational Diseases in Schedule 1 include certain kinds of cancers, respiratory diseases including asbestosis, and repetitive strain injuries. If a worker has a Schedule 1 disease but does not work in the listed industry, the worker’s Occupational Disease can still be compensable if work causation can be proven under WCA s.136(1) [Former Act, s. 6(1)]. In addition, section 139 of the WCA [Former Act, s. 6.1] sets out a special work presumption for firefighters who suffer a heart attack on the job. | |||
Policy #25.20 of the RSCM II provides a helpful guide to the special rules for a Schedule 1 presumption. | |||
=== 3. Occupational Diseases listed in policy #25.10 RSCM II === | |||
Additional Occupational Diseases are listed in RSCM II, #25.10, including many repetitive strain injuries and specific conditions such as plantar fasciitis and Lyme Disease. These diseases must be adjudicated under s. 136(1) of the WCA [Former Act, s.6(1)], where work causation must be proven in each case. | |||
Section 136(1) states that if: | |||
* a worker suffers from an occupational disease and is thereby disabled from earning full wages at the work at which they were employed; or | |||
* the death of a worker is caused by an industrial disease; and | |||
* the disease is due to the nature of any employment in which the worker was employed, whether under one or more employments; then: | |||
compensation is payable as if the disease were a personal injury arising out of and in the course of that employment. | |||
In addition to these statutory provisions, RSCM II #C4-25.20 sets out guidance for establishing work causation for Occupational Diseases in general and sets out the Onus of Proof for non-presumptive Occupational Disease causation. This policy can be helpful guidance when framing a submission on causation for a s. 136(1) [Former Act, s. 6(1)] Occupational Disease case. | |||
There are also particular policies applying to particular conditions, organized by type of condition, which are usually referenced in decision letters involving those conditions. | |||
Policies numbered C4-27.00 – 27.40 of the RSCM II apply to particular repetitive strain injuries/activity-related soft tissue disorders (“ASTDs”). NOTE: most ASTDs can be injuries or diseases, and many are listed in Schedule 1 [Former Act, Schedule B] (i.e. may or may not qualify for the work related presumption). | |||
* RSCM II #C4-28.00 for Contagious Diseases (e.g. scabies) | |||
* RSCM II #C4-29.00 – 29.10 for Respiratory Diseases (e.g. asthma, silicosis, asbestosis) | |||
* RSCM II #C4-30.00 for Cancers | |||
* RSCM II #C4-31.00 for Hearing Loss | |||
* RSCM II #C4-32.00 for Other Matters | |||
== F. Special Issues for all Occupational Disease cases: == | |||
=== 1. Date of Disablement === | |||
For an Occupational Disease, '''the first date of disablement is treated as the “date of injury”''' for the purpose of calculating the one-year time period to submit a compensation application (WCA, s. 151 [Former Act, s. 55]). Special rules apply for Occupational Disease late applications and for Federal Workers (see RSCM II #25.20). | |||
=== 2. Timely Application & Health Care === | |||
For diseases with a long latency period such as asbestosis and most cancers, a timely application may result in only receiving health care benefits at first. These healthcare benefits can include, for example, medical benefits, necessary adjustments to the residential home, and home-care. These benefits may also be claimed by dependants if the worker has died. | |||
=== 3. Standard of Proof === | |||
Schedule 1 diseases and the diseases recognized by regulation (RSCM II #25.10) have an “as likely as not” standard of proof for causation (WCA s. 339 [Former Act, s. 99). This means that where the evidence is equally weighted for different interpretations, the interpretation that favours the worker should be preferred. For example, the Supreme Court of Canada upheld a WCAT decision that an unusually high rate of cancer in a group of lab technicians was an Occupational Disease and therefore compensable ([http://www.canlii.org/en/ca/scc/doc/2016/2016scc25/2016scc25.html?autocompleteStr=Fraser%20Health%20Authority%20v%20Workers%20Compensation%20Appeal%20Tribunal%2C%202016%20SCC%2025&autocompletePos=1 Fraser Health Authority v Workers Compensation Appeal Tribunal, 2016 SCC 25]). Though experts had found little positive evidence supporting this link, the cancer rate in this group was highly unusual. Combined with the significant possibility of non-trivial exposure to harmful substances in the workplace, WCAT decided that was enough to satisfy the “as likely as not” standard. | |||
=== 4. Survivor Benefits === | |||
If a worker’s disease causes death, the worker’s spouse may be entitled to survivor benefits, even if the worker was not eligible for compensation. | |||
'''NOTE:''' WorkSafeBC has developed the Exposure Registry Program, which is designed to be a forum for workers, employers or others to report work-related exposures. This registry is intended to track incidents of exposure to substances which are known to be harmful (such as asbestos), as well as exposures which may in the future be shown to cause disease (such as power line emissions). The information obtained through the registry will create a permanent record of a worker’s exposure and will assist WorkSafeBC in establishing that the manifestation of a disease was due to the nature of the employment in which the worker was employed (a requirement under s 136(1)(b), previously 6(1)(b), of the WCA [Former Act, s. 6(1)(b)]). This will simplify the adjudication of future claims for occupational diseases caused by workplace exposure. | |||
== G. Section 135 Injury: Psychological Injuries == | |||
A worker can claim for diagnosed psychological conditions which arise as a consequence of physical injuries or Occupational Diseases which are accepted under ss. 134, 135, or 146 of the WCA [Former Act, ss. 5 – 6]. Common psychological consequences include chronic pain and depressive disorders. In practice, psychological limitations and restrictions can often be an overlooked aspect of an injured worker’s reduced employability. However, they are important to recognize, diagnose and treat as this may be the difference between a successful rehabilitation and a failed one. When seeking acceptance of a psychological consequence of a compensable physical condition, the causal threshold is the same standard of “causative significance”: Is the accepted physical injury a significant contributing cause of the psychological condition, meaning something more than a trivial or insignificant factor? If so, the psychological consequence is compensable as well, including treatment. The physical injury does not need to be the sole or even most significant cause. See RSCM II #22.30. | |||
However, a worker may suffer a psychological injury alone, with no accompanying physical condition. Common examples include Post Traumatic Stress Disorder (PTSD) or Major Depressive Disorder (MDD). In such cases, the worker can claim for purely psychological injuries from their work under section 135 of the WCA [Former Act, s. 5.1] and RSCM II #C3-24.00 – 24.10. | |||
Section 135 of the WCA [Former Act, s. 5.1] provides for two types of psychological injuries, each with a different causation test. A worker can claim for a psychological injury that is either: | |||
# A reaction to one or more traumatic events arising out of and in the course of employment; or | |||
# Predominantly caused by a significant work-related stressor, including bullying or harassment, or a cumulative series of such stressors, arising out of and in the course of employment. | |||
A psychological injury which arises from a traumatic event must meet the usual causation test that employment was “as likely as not” the cause of the condition. Additionally, determining whether an event was traumatic involves both subjective and objective elements, but the subjective element is paramount (see [http://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1178/2018bcsc1178.html?autocompleteStr=2018%20BCSC%201178%20&autocompletePos=1 Atkins v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCSC 1178] at para 78.) The objective question is only to determine if the event is “identifiable”. | |||
A psychological injury which is caused by “stressors” (vs. “traumatic events”) must meet the “predominant cause” standard. This is a significant hurdle for workers with pre-existing psychological conditions who become disabled after work stressors, such as bullying or harassment. | |||
Section 135 of the WCA [Former Act, s. 5.1] also requires that a psychological condition be diagnosed as a mental disorder by a registered psychiatrist or psychologist. | |||
Section 135 also provides that mental stress arising from a decision by the worker’s employer related to the employment (e.g. a change in job description or working conditions, or termination of employment) is specifically excluded from compensation. However, an employer may not communicate a management decision in any way it wants and communication that humiliates, intimidates, or amounts to bullying, harassment, threats or abuse may be beyond s. 135(1)(c) [Former Act, s. 5.1(1)(c)] protection. | |||
Psychological injuries that result from interaction with WCB and the claims process are also not compensable (Noteworthy Decision: WCAT-2015-01459). Though they would not happen but for the workplace injury, they are too remote to be compensable. Exceptions may arise in special circumstances, e.g. where the Board has acted negligently, or in bad faith. | |||
Section 135(2) of the WCA [Former Act, s. 5.1(1.1)] creates a rebuttable presumption for eligible occupations that a worker’s mental disorder is a reaction to one or more traumatic events arising out of and in the course of their employment. The presumption applies where the worker is: | |||
* exposed to one or more traumatic events arising out of and in the course of the worker’s employment in an eligible occupation; and | |||
* diagnosed by a psychiatrist or psychologist with a mental disorder that is recognized in the most recent DSM at the time of diagnosis, as a mental or physical condition that may arise from exposure to a traumatic event. | |||
The Act also defines an eligible occupation to mean the occupation of a correctional officer, emergency medical assistant, firefighter, police officer, or sheriff. | |||
As of May 16, 2019, this mental health presumption was extended to emergency dispatchers and publicly-funded health-care assistants. | |||
== H. Section 145 Injury: Hearing Loss == | |||
Significant hearing loss caused by exposure to industrial noise in the course of employment is compensable. The worker must submit tests showing the loss of hearing and complete a special application form listing all employment and non-employment noise exposure. See ss. 145 and 198 and Schedule 2 of the WCA [Former Act, s. 7 and Schedule D]. | |||
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