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

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 worker or, if death results, by the Worker's dependants, 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.

Workers can call the WCB directly to report an injury and file a claim. Teleclaim is available to workers across the province, Monday to Friday, from 8 a.m. to 4 p.m. See the Board website for current contact details. Teleclaim is designed to simplify the process, reduce the amount of paperwork and provide a personalized service based on each individual’s needs. Before calling the Board to report an injury, the worker should write down the key information about the job, how the injury occurred, and what the doctor has said about the condition. The worker’s statement during a Teleclaim report will form part of the claim file, and could be used as evidence in a future appeal proceeding. The Teleclaim transcript may be sent to the worker. If it is not sent, the worker should request a transcript.

In certain circumstances, a worker may choose to sue the person or company responsible for causing a work injury rather than making a claim for Workers' Compensation. This is most common if the injury arises out of a motor vehicle accident.

For example, if the injury is caused by a person not covered by the WCA (i.e. a delivery driver injured by a private citizen in a motor vehicle accident), then the worker can elect to sue a non-covered "third party" instead of claiming compensation.

The Board can also sue the third party in the worker's name; this is termed "subrogation". If the worker claims compensation, the Board has exclusive jurisdiction to decide if it will take legal action against a third party. If it does take action and recovers more than the total value of the work benefits, the worker receives the difference minus the 29% administration fee. If the Board recovers less than the total value of benefits, the worker will keep the full compensation. A worker cannot waive or assign his or her right to compensation.

An "election" is an important and complex decision (see s. 10 of the WCA)and workers should be referred to the Worker's Advisors Office website at http//www.labour.gov.bc.ca/wab or assisted before deciding whether to claim compensation. If a worker chooses to pursue court action and is unsuccessful, or the award is less than he or she would have received under the compensation regime, the worker may still be able to claim compensation. However, the original claim for compensation must have been made within the time limits outlined above.

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.

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.

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.

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:

*determines whether the worker qualifies for an LOE pension because he or she has suffered a loss of earnings that is “so exceptional” that the functional pension does not adequately compensate for it.  

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.

 

In certain cases, a worker 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.

 

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 workers 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.  

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).

*e) they are working for a BC employer (WCA s 8(1)).

Section 12 of the WCA 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.

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.

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).