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

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.                   

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.   

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.  

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.

== D. Overview: Claims Procedures & Process ==

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:

*accepts or rejects claims;

*approves wage loss benefits, determines the initial wage rate, and terminates or reduces wage loss benefits;

*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”;  

*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;  

==== d) EXCEPTION: Electing to Proceed Outside the WCB ====

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.

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

===== (1) General =====

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.  

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

*a) they work in a compensable industry;

*b) BC is their place of residence and usual place of employment;

===== (5) Workers Under the Age of Majority =====

===== (6) Self-Employed =====

===== (7) Employers =====

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 :

|-

| Section 5.1:

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.   

===== (2) Compensable Aggravation =====

However, if the worker has a pre-existing disabling condition and becomes further disabled in the same body part through a work injury, the Board will apply section 5(5) of the WCA or “proportionate entitlement” whereby compensation is paid only for the increase in disability,  rather than the whole disability.

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.  

The determination of whether an injury arose out of and in the course of employment is set out in policy C3-14.00 and can be made with reference to factors such as:  

Chapter 3, RSCM sets out further and detailed criteria for acceptance of a claim under section 5 of the WCA. Current policy states that the  injury need not occur while the worker is engaged in specific productive acts, so long as it occurs within the broad circumstances of carrying out the employment duties. An injury which is incurred while commuting is generally not a compensable injury; however, travelling may be  considered an activity in the course of employment if travel is part of the worker’s duties or if the accident occurs on the employer’s property or on a “captive road” provided and controlled by the employer, such as logging roads used by forestry workers.  

As discussed above, if the worker suffered from a pre-existing condition and the injury aggravates, accelerates or activates this condition,  the resulting aggravation may also be compensable. (NOTE: this policy is complex and should be consulted for specific details).

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