Making a Worker's Compensation Claim (7:VI)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 21, 2022.|
This manual proceeds chronologically through the process of making a claim for compensation with the Board, the adjudication of benefits under a claim, how claims conclude, and the available review and appeal processes. A chart showing this progressions is included in the Appendices. The key phases in a claim are:
- Making a Claim – the Board determines whether or not they will accept the claim;
- Wage Loss Benefits – the Board determines a workers’ wage rate and entitlement to wage loss benefits;
- Healthcare Benefits – the Board determines what medical care is necessary to assist the worker with their recovery;
- Permanent Disability – the Board will either decide that an injury has completely resolved (in which case the claim will end) or will decide that the worker will not improve any further and some symptoms are permanent;
- Pension Award – if a worker has a permanent disability, the Board will assess a permanent disability award;
- Vocational Rehabilitation – if a worker has a permanent disability, the Board will provide assistance as required to help the worker return to work with their new limitations.
A. Overview: Reporting the Injury and Making a Claim
1. Reporting the Injury (WCA, ss. 149 – 150 [Former Act, ss. 53 – 54])
Key policies applicable to these sections of the WCA are RSCM II, #93.10 – 93.12; 94.10 – 94.20.
All injuries occurring to a worker in the course of their employment (whether it results in time off work or not) should be reported as soon as possible by the worker or, if death results, by the worker’s dependants, to the superintendent, first aid attendant, or other official in charge of work where the injury occurred. 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. Details as to the type of injuries that must be reported can be found at RSCM II, #94.12.
The employer must complete a report to the Board within three days of receiving the worker’s report, or immediately if death results. The failure to do so is an offence under the WCA.
2. Making a Claim (WCA, ss. 151 – 152 [Former Act, ss. 55 (1) – (3.3)]
Key policies applicable to these sections of the WCA are RSCM II, #93.20 – 93.25.
A worker has one year to make a claim for compensation under ss. 151 and 152 of the WCA [Former Act, s. 55]. If an application is made more than one year, but less than three years, after the relevant injury, the Board may pay full compensation from the date of the injury if the Board is satisfied that special circumstances precluded timely filing. If an application is made more than three years after the relevant injury, the Board may still accept the claim in special circumstances, but can only pay compensation from the date of the filing of the claim forward.
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 or the Appendix 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 future appeal proceedings. The Teleclaim transcript may be sent to the worker. If it is not sent, the worker should request a transcript.
Note that if the worker is completing a paper application, a typed signature is not acceptable (see RSCM II, # 93.25).
3. Obligations Arising under the WCA once a Claim is Made (WCA, s. 153, 163-164 [Former Act, s. 57.1, 56])
Once a worker makes a claim, they are under an ongoing obligation to provide information to the Board that is necessary for the adjudication of their claim. The Board may reduce or suspend benefits if the worker does not provide requested information. See RSCM II, #93.26.
The attending physician must complete a Physician’s First Report within three days of first seeing the worker, and must fill out progress reports after each visit related to the workplace injury. See RSCM II, #95.00 – 95.30.
B. EXCEPTION: Election to Proceed by Lawsuit (WCA ss. 127 – 133 [Former Act, s. 10])
Key policies applicable to these sections of the WCA are RSCM II, Chapter 16, #110.00 – 112.40.
Generally, a worker has no right to sue an employer or another worker in the course of their employment for a workplace injury. Instead, they are entitled to benefits from the Board. This is the “Historic Trade Off” discussed above and set out at s. 127 of the WCA [Former Act, s. 10(1)]. Note that the conduct causing the injury must arise out of and in the course of employment before this bar against litigation will apply. Actions outside of the course of employment (for example assault or criminal negligence) do not attract this bar against litigation.
In circumstances where the s. 127 bar against litigation does not apply, a worker may choose to sue the person or company responsible for causing a work injury rather than making a claim for Board benefits. In order for a worker to have the right to choose (or “elect”) to pursue a legal claim, there must be a party who is potentially liable for the injury and is not an employer or a worker in the course of their employment under the WCA. As set out above, this can occur when the actions of an employer or worker fall outside the scope of their employment. In addition, this can occur when a non-worker or non-employer is responsible for the injury. For example, if a worker is injured while on the property of a private citizen, the worker may be able to elect to sue the property owner under the Occupiers Liability Act, RSBC 1996, c 337, rather than claiming Board benefits.
Note that, as of May 1, 2021, there is no right to sue in relation to any motor vehicle accident occurring in BC pursuant to the Insurance (Vehicle) Act, RSBC 1966, c. 231. As a result, no workers will have any right of election in respect of injuries related to a motor vehicle accident outside of a few narrow exceptions. These exceptions include accidents involving off road / farming vehicles, manufacturer’s liability issues (e.g. faulty mechanics / repair), accidents occurring outside of BC, and accidents where the potentially liable driver has committed an offense under the Criminal Code (see Insurance (Vehicle) Act, ss. 113 – 116).
Where there is a potentially liable party to whom the s. 127 bar does not apply, the worker has a right of election under WCA s. 128 [Former Act, s. 10(2) – (4)]. The worker will be given the opportunity to make this election after applying for Board benefits. If the Board has accepted a claim and determines that there is a right of election, the worker will be provided with an “Election to Claim Compensation in BC” form. The worker must elect to claim compensation within three months of the date of the injury unless the Board otherwise allows.
If the worker elects to pursue a lawsuit, they will not receive any benefits from the Board. If they elect to receive Board benefits, they will not have the right to bring a lawsuit in respect of their injury.
An election is an important and complex decision and workers should be referred to the Workers’ Advisors Office website at www.labour.gov.bc.ca/wab or assisted before deciding whether to claim compensation.
Where a worker elects Board benefits, the Board becomes “subrogated” to the worker’s claim pursuant to s. 130 of the WCA [Former Act, s. 10(6)]. This means that the Board can step into the shoes of the worker and bring any lawsuit that the worker would be able to bring.
Board subrogation is different from the type of subrogation that occurs under insurance contracts. Insurance companies will only become subrogated to actions related to the specific type of benefits they paid out. For example, if an insurance company pays out $10,000 in relation to water damage, that company can only step into the shoes of their insured for claims specifically related to the cause of the water damage. The Board, on the other hand, is subrogated to any and all claims the worker may have connected to their injury. For example, even if the Board paid out only wage loss benefits, the Board can still step into the shoes of the worker and bring a claim in relation to any loss or damage arising from their injury.
When the Board is subrogated to a claim, it 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 23% administration fee. If the Board recovers less than the total value of benefits, the worker will not receive any excess. A worker cannot waive or assign their right to compensation.
If a worker chooses to pursue court action and is unsuccessful, or the award is less than they 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 above. Note that the worker must have Board approval for any settlement if they wish to apply for “top up” compensation following the settlement of a legal action.
|© Copyright 2021, The Greater Vancouver Law Students' Legal Advice Society.|