LSLAP's Role at the Initial Decision Level for Workers' Compensation Claims (7:IV)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.|
LSLAP students may only assist workers with a few formal procedures at the initial decision level. However, the student’s role at this point is still important. If the initial claim is done well, appeals may be avoided. Thus, it is extremely important that students do not miss limitation dates. These types of inquiries are usually done by correspondence but may be in person at the worker’s request.
One important aspect of the CMS data management system used by the Board is the “portals” which allow workers, employers and representatives to access claim files directly. The worker needs to call the Board and obtain an ID and PIN in order to do this. Such access allows an advocate or advisor to see exactly how the claim has been handled.
Students should get a copy of the file and review the relevant documents with the worker. They may also request that the Board provide an opportunity to make submissions prior to the final decision. Some officers will comply with these requests.
It is important to help a client prepare the best possible case at this level. For example, a projected loss of earnings assessment always includes an extensive interview between the Vocational Rehabilitation Consultant and the worker regarding the types of employment that are suitable and available to the worker. The worker should be prepared for this interview and should be ready to explain issues such as what they are capable of doing, what job activities they cannot perform, and why this is the case. The Board rarely decides that a worker is 100 percent disabled, and workers should, therefore, be discouraged from expecting such a ruling, unless there is very strong medical evidence of unemployability.
In addition to filing an appeal, a student can contact the officer who made the decision to request that it be reconsidered on the basis of significant new evidence or to seek further explanation of the officer’s reasons. Note that this must take place within 75 days of the original decision unless the reconsideration addresses an obvious error or omission (WCA, s. 123 [Former Act, s. 96(4) – (6)]).
Initial decision-making at the Board level is extremely important, and very informal in its procedure. In general, if a representative doesn’t understand how or by whom a decision will be made, or what factors will be considered, it is always possible to call the Board and ask. The Claims Manual, Workers’ Advisors Office, and other sources of information mentioned in Section I: Introduction of this chapter can also help prepare a successful claim. See Appendix A for a checklist for a student conducting a client interview.
A. Limited Scope Retainers
It is vital that LSLAP students assisting workers provide clear and limited scope of work letters. Given the tight deadlines, it is essential that clients understand when students are no longer providing them with assistance, so they do not miss an appeal or review date. Students should carefully consider their own availability as well as that of the supervising lawyer before promising legal assistance.
Additionally, any student providing representation must be sure to inform the Board and/or WCAT if they are no longer representing a client. Section 6.3.1 of the MRPP establishes a presumption in WCAT that a worker’s representative will remain as representative until they either declare otherwise or at the end of 2 years, whichever is earlier. This means the representative will receive correspondence related to the claim, even if it is the result of a deterioration of an Occupational Disease long after the initial claim is settled. This presumption means it is essential to be clear with the client and WCB/WCAT as to when LSLAP has withdrawn as counsel.
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