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Difference between revisions of "Disability and Causation in Workers' Compensation (7:IX)"
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Disability and Causation in Workers' Compensation (7:IX) (view source)
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= July 21, 2022}} | ||
{{LSLAP Manual TOC|expanded = workers}} | {{LSLAP Manual TOC|expanded = workers}} | ||
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'''“In the course of employment”''' relates to the employment relationship at the time of injury. It generally refers to whether the injury or death happened at the time and place and during an activity reasonably related to the duties and expectations of the employment. Time and place are not strictly limited to the normal hours or work or on the employer’s premises. | '''“In the course of employment”''' relates to the employment relationship at the time of injury. It generally refers to whether the injury or death happened at the time and place and during an activity reasonably related to the duties and expectations of the employment. Time and place are not strictly limited to the normal hours or work or on the employer’s premises. | ||
Injuries may be caused by the normal actions or movements involved in the workplace as opposed to an abnormal event. For example, injuries caused by overexertion or repetitive movements can still be grounds for compensation even when done during routine work (RCMS II #C3-12.00). | |||
'''NOTE:''' There is a statutory presumption that if an injury is caused by an accident at work, the injury is presumed to have occurred in the course of employment (WCA s.134(3) [Former Act, s. 5(4)]). An accident can include someone else’s intentional act. | '''NOTE:''' There is a statutory presumption that if an injury is caused by an accident at work, the injury is presumed to have occurred in the course of employment (WCA s.134(3) [Former Act, s. 5(4)]). An accident can include someone else’s intentional act. | ||
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* the death of a worker is caused by an industrial disease; and | * the death of a worker is caused by an industrial disease; and | ||
* the disease is due to the nature of any employment in which the worker was employed, whether under one or more employments; then: | * the disease is due to the nature of any employment in which the worker was employed, whether under one or more employments; then: | ||
compensation is payable as if the disease were a personal injury arising out of and in the course of that employment. | |||
compensation is payable as if the disease were a personal injury arising out of and in the course of that employment. The absence of a specific incident may mean that the worker has a disease rather than a personal injury. | |||
In addition to these statutory provisions, RSCM II #C4-25.20 sets out guidance for establishing work causation for Occupational Diseases in general and sets out the Onus of Proof for non-presumptive Occupational Disease causation. This policy can be helpful guidance when framing a submission on causation for a s. 136(1) [Former Act, s. 6(1)] Occupational Disease case. | In addition to these statutory provisions, RSCM II #C4-25.20 sets out guidance for establishing work causation for Occupational Diseases in general and sets out the Onus of Proof for non-presumptive Occupational Disease causation. This policy can be helpful guidance when framing a submission on causation for a s. 136(1) [Former Act, s. 6(1)] Occupational Disease case. | ||
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* RSCM II #C4-32.00 for Other Matters | * RSCM II #C4-32.00 for Other Matters | ||
== F. Special Issues for all Occupational Disease cases: == | == F. Workers Compensation in Relation to COVID-19: == | ||
Along with other benefits such as CERB, CRB, CRSB, CRCB, and the B.C. Emergency Benefit for Workers, it possible to receive compensation from the Board for contracting COVID-19 in the course of employment. The facts required for a successful claim are: | |||
# There is evidence that the worker has contracted COVID-19; and | |||
# The nature of the worker’s employment created a risk of contracting the disease significantly greater than the ordinary exposure risk of the public at large. | |||
It is important to note that a positive COVID-19 test is not required, as a medical diagnosis or other supporting evidence can be sufficient. That being said, some evidence of physical symptoms will be necessary without a conclusive positive test, as WorkSafeBC does not compensate workers for quarantine due to close contact. | |||
In reference to the second factor, the risk related to employment is determined by a whether a worker will be naturally exposed to those who have been diagnosed with COVID-19, such as hospital workers, or workers who have regular close interactions with customers, such as retail workers. | |||
More information can be found at www.worksafebc.com/covid-19. | |||
== G. Special Issues for all Occupational Disease cases: == | |||
=== 1. Date of Disablement === | === 1. Date of Disablement === | ||
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'''NOTE:''' WorkSafeBC has developed the Exposure Registry Program, which is designed to be a forum for workers, employers or others to report work-related exposures. This registry is intended to track incidents of exposure to substances which are known to be harmful (such as asbestos), as well as exposures which may in the future be shown to cause disease (such as power line emissions). The information obtained through the registry will create a permanent record of a worker’s exposure and will assist WorkSafeBC in establishing that the manifestation of a disease was due to the nature of the employment in which the worker was employed (a requirement under s 136(1)(b), previously 6(1)(b), of the WCA [Former Act, s. 6(1)(b)]). This will simplify the adjudication of future claims for occupational diseases caused by workplace exposure. | '''NOTE:''' WorkSafeBC has developed the Exposure Registry Program, which is designed to be a forum for workers, employers or others to report work-related exposures. This registry is intended to track incidents of exposure to substances which are known to be harmful (such as asbestos), as well as exposures which may in the future be shown to cause disease (such as power line emissions). The information obtained through the registry will create a permanent record of a worker’s exposure and will assist WorkSafeBC in establishing that the manifestation of a disease was due to the nature of the employment in which the worker was employed (a requirement under s 136(1)(b), previously 6(1)(b), of the WCA [Former Act, s. 6(1)(b)]). This will simplify the adjudication of future claims for occupational diseases caused by workplace exposure. | ||
== | == H. Section 135 Injury: Psychological Injuries == | ||
A worker can claim for diagnosed psychological conditions which arise as a consequence of physical injuries or Occupational Diseases which are accepted under ss. 134, 135, or 146 of the WCA [Former Act, ss. 5 – 6]. Common psychological consequences include chronic pain and depressive disorders. In practice, psychological limitations and restrictions can often be an overlooked aspect of an injured worker’s reduced employability. However, they are important to recognize, diagnose and treat as this may be the difference between a successful rehabilitation and a failed one. When seeking acceptance of a psychological consequence of a compensable physical condition, the causal threshold is the same standard of “causative significance”: Is the accepted physical injury a significant contributing cause of the psychological condition, meaning something more than a trivial or insignificant factor? If so, the psychological consequence is compensable as well, including treatment. The physical injury does not need to be the sole or even most significant cause. See RSCM II #22.30. | A worker can claim for diagnosed psychological conditions which arise as a consequence of physical injuries or Occupational Diseases which are accepted under ss. 134, 135, or 146 of the WCA [Former Act, ss. 5 – 6]. Common psychological consequences include chronic pain and depressive disorders. In practice, psychological limitations and restrictions can often be an overlooked aspect of an injured worker’s reduced employability. However, they are important to recognize, diagnose and treat as this may be the difference between a successful rehabilitation and a failed one. When seeking acceptance of a psychological consequence of a compensable physical condition, the causal threshold is the same standard of “causative significance”: Is the accepted physical injury a significant contributing cause of the psychological condition, meaning something more than a trivial or insignificant factor? If so, the psychological consequence is compensable as well, including treatment. The physical injury does not need to be the sole or even most significant cause. See RSCM II #22.30. | ||
However, a worker may suffer a psychological injury alone, with no accompanying physical condition. | However, a worker may suffer a psychological injury alone, with no accompanying physical condition. Common examples include Post Traumatic Stress Disorder (PTSD) or Major Depressive Disorder (MDD). In such cases, the worker can claim for purely psychological injuries from their work under section 135 of the WCA [Former Act, s. 5.1] and RSCM II #C3-24.00 – 24.10. | ||
Section 135 of the WCA [Former Act, s. 5.1] provides for two types of psychological injuries, each with a different causation test. A worker can claim for a psychological injury that is either: | Section 135 of the WCA [Former Act, s. 5.1] provides for two types of psychological injuries, each with a different causation test. A worker can claim for a psychological injury that is either: | ||
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A psychological injury which arises from a traumatic event must meet the usual causation test that employment was “as likely as not” the cause of the condition. Additionally, determining whether an event was traumatic involves both subjective and objective elements, but the subjective element is paramount (see [http://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1178/2018bcsc1178.html?autocompleteStr=2018%20BCSC%201178%20&autocompletePos=1 Atkins v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCSC 1178] at para 78.) The objective question is only to determine if the event is “identifiable”. | A psychological injury which arises from a traumatic event must meet the usual causation test that employment was “as likely as not” the cause of the condition. Additionally, determining whether an event was traumatic involves both subjective and objective elements, but the subjective element is paramount (see [http://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1178/2018bcsc1178.html?autocompleteStr=2018%20BCSC%201178%20&autocompletePos=1 Atkins v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 BCSC 1178] at para 78.) The objective question is only to determine if the event is “identifiable”. | ||
A psychological injury which is caused by “stressors” (vs. “traumatic events”) must meet the “predominant cause” standard. This is a significant hurdle for workers with pre-existing psychological conditions who become disabled after work stressors, such as bullying or harassment. | A psychological injury which is caused by “stressors” (vs. “traumatic events”) must meet the “predominant cause” standard. This is a significant hurdle for workers with pre-existing psychological conditions who become disabled after work stressors, such as bullying or harassment. These conditions do not have to result in an injury immediately, stressors can make up the predominate cause of a condition that takes time to manifest or be diagnosed. | ||
Section 135 of the WCA [Former Act, s. 5.1] also requires that a psychological condition be diagnosed as a mental disorder by a registered psychiatrist or psychologist. | Section 135 of the WCA [Former Act, s. 5.1] also requires that a psychological condition be diagnosed as a mental disorder by a registered psychiatrist or psychologist. | ||
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Section 135(2) of the WCA [Former Act, s. 5.1(1.1)] creates a rebuttable presumption for eligible occupations that a worker’s mental disorder is a reaction to one or more traumatic events arising out of and in the course of their employment. The presumption applies where the worker is: | Section 135(2) of the WCA [Former Act, s. 5.1(1.1)] creates a rebuttable presumption for eligible occupations that a worker’s mental disorder is a reaction to one or more traumatic events arising out of and in the course of their employment. The presumption applies where the worker is: | ||
* exposed to one or more traumatic events arising out of and in the course of the worker’s employment in an eligible occupation; and | * exposed to one or more traumatic events arising out of and in the course of the worker’s employment in an eligible occupation; and | ||
* diagnosed by a psychiatrist or psychologist with a mental disorder that is recognized in the most recent DSM at the time of diagnosis, as a mental or physical condition that may arise from exposure to a traumatic event. | * diagnosed by a psychiatrist or psychologist with a mental disorder that is recognized in the most recent DSM at the time of diagnosis, as a mental or physical condition that may arise from exposure to a traumatic event. | ||
In making determinations regarding mental disorders, the Board must make both a subjective and objective analysis of the situation. Certain workplace interactions or events can, on the surface seem innocent, but within the context of the work environment and the employee constitute a stressor or series of stressors that can be seen as either significant or traumatic as described by policy item #C3-13.00. | |||
In making this determination, a worker’s general characteristics and history are relevant. For example, an employee with past trauma related to a certain incident may find related stressors more aggravating. That being said, the worker’s concerns and complaints must still be grounded in reality. | |||
The Act also defines an eligible occupation to mean the occupation of a correctional officer, emergency medical assistant, firefighter, police officer, or sheriff. | The Act also defines an eligible occupation to mean the occupation of a correctional officer, emergency medical assistant, firefighter, police officer, or sheriff. | ||
As of May 16, 2019, this mental health presumption was extended to emergency dispatchers and publicly-funded health-care assistants. | As of May 16, 2019, this mental health presumption was extended to emergency dispatchers and publicly-funded health-care assistants. | ||
== | == I. Section 145 Injury: Hearing Loss == | ||
Significant hearing loss caused by exposure to industrial noise in the course of employment is compensable. The worker must submit tests showing the loss of hearing and complete a special application form listing all employment and non-employment noise exposure. See ss. 145 and 198 and Schedule 2 of the WCA [Former Act, s. 7 and Schedule D]. | Significant hearing loss caused by exposure to industrial noise in the course of employment is compensable. The worker must submit tests showing the loss of hearing and complete a special application form listing all employment and non-employment noise exposure. See ss. 145 and 198 and Schedule 2 of the WCA [Former Act, s. 7 and Schedule D]. | ||
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