Difference between revisions of "Introduction to Compensation Claims for Injured Workers (7:III)"

| Section 137 (previously 6(3)): Occupational Disease – presumption of work causation

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.

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. The concept for a finding of work causation under s.5 is "causative significance". Further, it is noted in court decisions that only if personal or non-employment factors are so dominant or exclusive that the compensable injury is not a significant causal factor would compensability be denied (WCAT #2009-02226).    

In some cases, 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”.

For both injuries and OccD, it is 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. It is necessary to distinguish between injuries and death resulting from employment (which are compensable), and injuries resulting from pre-existing conditions or diseases (which are compensable). There must be something in the employment activity or situation that had '''causative significance''' in producing the injury or death. In adjudicating these types of claims, the Board considers:

If the pre-existing condition meets the test for compensable aggravation, this requires an “aggravation" decision separate from a simple acceptance "decision”. For example, the Board may deny that a slip and fall was sufficient to cause a meniscus knee tear in a healthy worker; however, if the 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.

If the worker has a pre-existing but non-disabling condition, and is accepted, the worker's injury is dealt with like any other claim and the whole disability is compensable.  

Work outside of BC is regarded as non-work exposure for compensation purposes. However, workers’ compensation boards across Canada have entered into an “interjurisdictional agreement” that provides for reciprocal coverage of some disabilities arising from work exposure or activities indifferent jurisdictions, and also enables the ruling Board to administer a claim in another province. The Board may try to apportion benefits in cases where the disability is partially caused by non-work or out-of-jurisdiction factors according to the percentages of causation – at  least when assessing a pension – although it is not clear that the Act authorizes this.