Introduction to Compensation Claims for Injured Workers (7:III)

A. Introduction

Sections 96 and 113 of the WCA give the Board exclusive jurisdiction over workers’ compensation matters. The courts have generally respected this strong privative clause.

Section 96 specifically grants the Board the exclusive jurisdiction to inquire into, hear, and determine:

• a) whether an injury has arisen out of or in the course of an employment;
• b) the existence and degree of disability by reason of an injury;
• c) the permanence of disability by reason of an injury;
• d) the degree of reduction of earning capacity by reason of an injury;
• e) the average earnings of a worker, for the purpose of levying assessments, and the average earnings of a worker for purposes of payment of compensation;
• f) the existence of the relationship of a member of the family of a worker as defined by the Act;
• g) the existence of dependency;
• h) whether an industry is within the scope of the Act, and the class to which an industry should be assigned for the purposes of the Act;
• i) whether a worker is in an industry within the scope of the Act and entitled to compensation under it; and
• j) whether a person is a worker, a subcontractor, a contractor or an employer within the meaning of the Act.

Section 113 of the WCA gives the Board jurisdiction over compensation in relation to workplace health and safety.

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.

B. Overview: Initial Acceptance or Denial of A Compensation Claim/Disclosure & Appeals

After a worker makes an application for compensation, a Board officer issues a decision (usually in writing) accepting or denying the claim. For a compensation claim to be accepted, the Board must generally find:

• a) STATUS: The applicant is a “worker” covered under the Act.
• b) DISABILITY: The applicant suffered a personal injury or an occupational disease, causing disability.
• c) CAUSATION: The worker’s disabling injury or disease was caused by work.
• d) TIME LIMITS AND PROCEDURES: The worker submitted a timely and proper application.

If a claim is denied by the Board, it is typically because one or more of the above conditions was not met. The Board decision typically sets out the reason why the claim was denied and cites the relevant policy from RSCM II. However, the evidence on which the decision is based may or may not be summarized in the decision.

All the evidence on which the decision is based will be in the claim file, which may also include memos from case managers (CMs) and clinical opinions from Board Medical Advisors (BMAs). The claim file may also contain detailed phone memos providing the CMs with a summary of the worker’s evidence. The claim file evidence as a whole provides the basis for the Board’s decision and is evidence which will be available and considered by the appeal bodies, RD and WCAT.

Workers are entitled to a copy of their claim file (paper or CD) on request and will also automaticallybe sent a copy of the claim file if they file an appeal. In addition, the worker may obtain online access to parts of their claim file by calling the Board. These matters are covered in the section below on Disclosure. Disclosure may be given directly to the worker’s representative if the disclosure request or appeal notice is accompanied by a valid authorization of representation, signed by the worker. [Authorization forms are available on the Board website].

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 Board website (through the link “Review and Appeals” on the left list of the home page). 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 WCAT website. See Section VI: 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 unless there are “exceptional circumstances” (with some exceptions). If a worker’s application has been denied because of a late application, please consult s. 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

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

1. The worker suffers a broken wrist in his dominant hand and cannot perform his job duties as a result. His doctor recommends a certain number of weeks to recover after which he is cleared to return to work (RTW) full duties. The worker makes an application for compensation. If his claim is accepted, the Board sets a short-term wage rate (STWR) on his claim (based on his average earnings) and the worker is paid temporary wage loss benefits (TWL) at this rate for his 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 his claim is closed. The worker is not referred for any other benefits such as Disability Awards (DAs) or Vocational Rehabilitation (VR).
2. The worker suffers a more serious injury to his hand (e.g. a crush injury). If his claim is accepted, he again receives TWL for his time away from work. However, after 10 weeks, the Board issues a new long-term wage rate (LTWR) based on a more complex formula in law and policy. At some 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:
   • a. His injury has “resolved” with no permanent impairment and he can RTW and perform full duties. In this case (as above), the Board will issue a “resolve” decision ending his TWL benefits and his file will be closed; or
   • b. His injury is not fully resolved and he is 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 TWL benefits on the plateau date but will also refer the worker to DAs to assess the nature and severity of this permanent impairment. In a separate decision, the DA will rate his impairment according to a schedule and award the worker “permanent functional impairment” (PFI) pension (impairment % compared to a healthy person) in a “PFI decision”. The PFI pension is awarded regardless of whether the worker returns to work or not as it is compensation for the physical impairment, not for lost wages.

The plateau decision also sets out whether the Board thinks that the worker can return to his pre-injury job, performing full duties, with the impairment. If the worker can return to his pre-injury work, the Board does not need to retrain him and there is no referral made to VR.

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 four stages. The first stage 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 to the next stage to assesses what VR assistance the Board should provide to help the worker become employable, given his permanent injury. VR benefits are discretionary but typically include a VR plan for the worker to re-train 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.

D. Overview: Claims Procedures & Process

1. Reporting the Injury

All injuries that cause a loss of work (or which could lead to a future claim) should be reported as soon as possible by the employee or, if death results, by the employee’s dependents, to the superintendent of the place of employment, first aid attendant, or other official. Claims have been denied (at least until an appeal took place) because a worker waited even a few days, hoping the pain would go away. In all but the most minor cases, workers should also seek medical attention promptly.

The employer must complete a report to the Board within three days of receiving the employee’s report, or immediately if death results. The attending physician also completes a Physician’s First Report within three days of first seeing the worker, and fills out progress reports after each visit.

2. Making a Claim

An employee has one year to make a claim for compensation under s. 55 of the WCA. This may be extended to three years in certain circumstances. In extreme cases, the Board may consider even longer extensions.

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 proceedings. The Teleclaim transcript may be sent to the worker. If it is not sent, the worker should request a transcript.

3. Procedure After Application

The family doctor plays a crucial role in the worker’s claim as well as his or her treatment. The WCA requires that the doctor file an initial report with the Board, as well as progress reports for each visit. Doctors are also required to give all necessary advice and assistance to a worker making an application for compensation, including furnishing proof that may be required. Some doctors are very helpful to injured workers, while others refuse to get involved in what they consider to be a legal issue. Such an attitude can be very harmful if there is a medical dispute between the Board and the worker.

The Board has extensive inquiry and investigative powers. It may require the worker to be medically examined by a WCB staff doctor or by independent consultants. WCB officers called Claims Adjudicators, Disability Awards Officers, and Rehabilitation Consultants decide whether to accept the claim and what benefits, if any, should be paid. Although rarely used, the Board has the authority to conduct a formal inquiry at which the claimant and other witnesses are compelled to appear and be questioned. Important decisions occur at various times as a result of the interaction and correspondence between various WCB officers, the worker, the family doctor, and any specialist.

4. The Case Management Process

The WCB operates under a case management process in cases where the individuals are recovering from complex and costly injuries and illnesses. The key features of case management include a case manager who oversees the delivery of services for the entire life of the claim. It is also supposed to include regular multidisciplinary team meetings, clinical care planning, site visits, and a return to work plan, which sets out expectations surrounding medical treatment, physical rehabilitation, and a return to work option. In theory, the worker, union or other representative, the worker’s doctors, and the employer are all expected to participate. Advocates for injured workers have found that this crucial part of the case management model is rarely followed.

5. Claims Management Solutions

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.

6. Initial Decisions

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:

a) Case Manager

• accepts or rejects claims;
• approves wage loss benefits, determines the initial wage rate, and terminates or reduces wage loss benefits;
• investigates and decides “long term” average earnings, which are implemented eight weeks after the injury (10 weeks for injuries occurring on or after June 30, 2002);
• approves or rejects operations or other major treatments;
• approves workers’ expenses for WCB payment;
• determines when to terminate wage loss benefits because the worker’s disability is considered to have “plateaued”;
• generally makes most decisions involving workers including whether to register the worker for vocational rehabilitation services and pension assessments; and
• determines whether the worker has suffered a loss of earnings that is “so exceptional” that the functional pension does not adequately compensate for it.

b) Vocational Rehabilitiation Consultant

• Works with the worker, employer, and union (if any) to get the worker back to work as soon as medically possible, perhaps to a modified job;
• approves job retraining courses;
• determines training allowances (usually paid at wage loss levels) and expenses for attending courses;
• can agree to subsidize a new employer for a limited time;
• determines “continuity of income” benefits to bridge the gap between termination of wage-loss benefits and determination of a permanent pension; and
• assesses a worker’s long-term employability, and the earnings he or she is considered capable of achieving after the worker has “maximized” his or her earning capacity in a suitable and available job. This assessment is the core of the Disability Awards Officer’s decision concerning a loss of earnings pension. While the decision is made by the Officer, who can reject the recommendation of the consultant, the consultant’s assessment is a crucial step in the pension process.

c) Disability Awards Officer

• Determines the degree of permanent disability on a physical impairment basis; for workers whose permanent disability is considered to have occurred on or after June 30, 2002, this will determine the pension in the great majority of cases.

These WCB employees, together with a number of other WCB “players”, interact considerably during initial decision processes. For example, a projected loss of earnings assessment, while made by a Disability Awards Officer, is based on a report from the Rehabilitation Officer stating which jobs are suitable and available to the worker, and what earnings can be anticipated. Throughout a claim, the Board’s salaried medical staff (doctors, psychologists etc.) are consulted regularly regarding medical issues, and their advice is regularly accepted by the Board over that of the worker’s own family doctor and specialist if there is a dispute.

d) EXCEPTION: Electing to Proceed Outside the WCB

In certain cases, an employee may choose to sue the person or company responsible for causing a work injury rather than making a claim for Workers’ Compensation. 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 worker’s benefits, the worker receives the difference minus a 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 Workers’ Advisors Office online at http://www.labour.gov.bc.ca/wab 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 receive compensation. However, the original claim for compensation must have been made within the time limits outlined below.

7. Acceptance or Denial of Claim

As noted above, there are several key issues involved in determining whether an injured worker’s claim is accepted or denied.

a) Is the Applicant a “Worker” under the Act?

(1) General

The WCA was amended on January 1, 1994 to expand the range of workers covered. All workers are now covered, unless specifically exempted. Chapter 2 of the RSCM II sets out the general principles of inclusion and the exceptions. Even certain volunteers are covered, as are students engaged in work study programs that are approved by the Board. Before this amendment, most office workers and other white-collar employees were not covered. Since the amendment, only a few exceptions have been recognized, such as professional athletes who have accepted a high level of risk, casual baby sitters, and non-residents. Requests for exemptions may come from workers and employers, or may be initiated by the Board. Decisions regarding exemption status may be appealed.

One of the unintended consequences of this universal coverage is to further limit the injured worker’s right to sue for damages, since it is most likely that the person responsible for the injuries will also be an employer or worker covered by the system. An extreme example of this was found in a malpractice case, Kovach v Singh (Kovach v WCB), [2000] SCJ No 3 [Kovach]. In this case, and in a similar Saskatchewan appeal, the Workers’ Compensation Boards held that doctors treating an injured worker could not be sued for malpractice under the tort system because the injured worker was in the “course of employment” while undergoing treatment. The SCC found that the decision of the Boards in those cases was not unreasonable. The Board has responded strongly to cases that stray from this position. They will not allow any recourse to the tort system and have reaffirmed this bar to lawsuits in the policy directives.

Some special cases are set out below, but at all times, the most recent version of policies in Chapter 2 of the RSCM II should be consulted if “worker status” is an issue.

(2) Workers in Federally Regulated Industries

While working in BC, workers in federally regulated industries are directly subject to the workers’ compensation system.

(3) Federal Government Employees

Federal government employees are governed by the Government Employees Compensation Act, RS 1985, c G-5 which provides that injured federal government workers in a given province are to have their claims addressed by the provincial administrative body in that province, and are entitled to be compensated at a rate determined under the provincial workers’ compensation scheme of the province in which they are employed (but paid out of a federal fund).

(4) Workers Who Suffer an Injury While Working Outside BC

Workers who suffer an injury while working outside BC may be covered if:

• a) they work in a compensable industry;
• b) BC is their place of residence and usual place of employment;
• c) the extra-provincial work lasts less than six months;
• d) the work is a continuation of their BC employment; and
• e) they are working for a BC employer (WCA s 8(1)).

(5) Workers Under the Age of Majority

Section 12 of the Workers’ Compensation Act, RSBC 1996, c 492 states that a worker under the age of 19 is sui juris for the purpose of Part 1 of the Act, which means that workers who are minors are under no legal disability and are considered, for purposes of the Act, capable of managing their own affairs as if they were adults.

(6) Self-Employed

If a person is self-employed, the Board distinguishes between a principal of an incorporated company, a principal of an unincorporated business, including a family business, and a labour contractor.

In general, a principal of an incorporated company is considered a worker and the wage rate is set accordingly.

In general, a principal of an unincorporated business and a labour contractor are entitled to seek coverage with the Board by voluntarily registering with the Board and paying premiums for their own work activities. This is known as “Personal Optional Protection” or POP. When a self-employed person with POP is injured, their claim is processed as if they were a “worker” under the Act (section 33.6) and their wage rate is set according to their level of POP coverage (policy #67.20, RSCM II). A labour contractor who does not have POP may be covered, as a worker, by the prime contractor.

The key issues in the acceptance of claims from self-employed persons tend to be the exact nature of their employment, their coverage and the appropriate wage rate. Practice Directive #C9-1 “Coverage and Compensation for Self-Employed Persons” sets out a helpful chart on the different types of self-employment and their coverage under the Act.

(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).

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.