Time Limits and Procedures in Workers' Compensation (7:X)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.|
A. Time Limits
As set out above, the key time limits that apply to making a claim are the reporting time limits and the time limits for filing a claim.
Injuries must be reported by workers to their employers and by employers to the Board as soon as possible. See paragraph VI.A.1 above for details.
Section 151 [Former Act, s. 55] of the WCA requires that generally, a worker must apply for compensation within one year of the date of injury. Subsections 151(4) and (5), as well as section 152 [Former Act, s. 55(3.2)], provide several exceptions for when late applications may be accepted:
- If exceptional circumstances exist which precluded the worker from making an application within one year and the application is less than three years after the date of injury (WCA, s. 151(4) [Former Act, s. 55(3.1)]), the worker’s application may be accepted. If a worker’s application has been denied because of a late application, please consult Policy #93.22 of the RSCM II to assess what evidence of “exceptional circumstances” may be relevant in that case;
- Even after more than three years post-accident, the Board may still accept a claim based on “exceptional circumstances”, however the Board can only pay compensation from the date of the application forward, not from the date of the injury (WCA, s. 151(5) [Former Act, s. 55(3.1)]);
- If death or disablement is due to an occupational disease but sufficient scientific evidence did not exist at the time of the application to prove this and there is new scientific evidence regarding the occupational disease causation, the application may be accepted. However, the worker must make the application no more than three years after sufficient medical or scientific evidence became available to the board (WCA, s 152(1) [Former Act, s. (3.2)]); or
- The Board may also reconsider an old occupational disease decision that meets the Subsections 152(1) and (2) criteria.
B. Application Procedures
Applications to the Board must be made by submitting a Form 6, which will be provided to the worker by the Board when a report is received. This form can also be found online. This form can also be submitted online. Workers can also call Teleclaim at 1.888.967.5377 from 8am to 6pm Monday to Friday.
Note that, even when submitted online, a typed or printed name is not sufficient to meet the signature requirement. The worker must either have a handwritten digital signature they can apply to the form or must print and sign the form before scanning and submitting. See RSCM II Policy #93.25.
Finally, the Board does have the discretion to accept and adjudicate a claim without an application in certain circumstances. See RSCM II Policy #93.23.
C. The Case Management Process
Claims procedures are governed by Chapter 12 of the RSCM II. This manual will not cover all of the policies in that chapter, so it is important to review the nature of the policies in that chapter in order to be able to spot policy related issues in a case.
Once an application has been made, it moves into the case management process whiere initial decision makers will consider the application and decide whether to accept or reject the claim on the criteria set out above. The key feature of case management is a case manager who oversees the delivery of services for the entire life of the claim. This process may also 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. The worker, union or other representative, the worker’s doctors, and the employer are all expected to participate.
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. The CMS System 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.
1. Initial Decision-Making Process
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:
i) Entitlement Officers (EO)
- Accepts or rejects claims;
- Seeks and reviews required medical documentation;
- May establish initial long-term wage rates;
- Pays short-term disability benefits;
- Authorizes health care payments;
- Calculates overpayment;
- Requests refund from claimant if overpaid;
- Identifies claims requiring claim management; and
- Monitors return-to-work.
ii) Case Manager (CM)
- Accepts or rejects claims;
- Approves wage loss benefits, determines the initial wage rate, and terminates or reduces wage loss benefits;
- Investigates and decides “long term” average earnings, which are implemented ten weeks after the injury (or eight weeks for injuries before June 30, 2002);
- Approves or rejects operations or other major treatments;
- Approves workers’ expenses for WCB payments;
- Determines when to terminate wage loss benefits because the worker’s disability is considered to have “plateaued”; and
- Generally, makes most decisions involving workers including whether to register the worker for vocational rehabilitation services and pension assessments.
iii) Vocational Rehabilitation Consultant
- 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;
- Determines training allowances (usually paid at wage loss levels) and expenses for attending courses;
- Can agree to subsidize a new employer for a limited time;
- Determines “continuity of income” benefits to bridge the gap between termination of wage-loss benefits and determination of a permanent pension; and
- Assesses a worker’s long-term employability, and the earnings they are considered capable of achieving after the worker has “maximized” their earning capacity in a suitable and available job. This assessment is the core of the Disability Awards Officer’s decision concerning a Loss of Earnings pension. While the decision is made by the Officer, who can reject the recommendation of the consultant, the consultant’s assessment is a crucial step in the pension process.
iv) Disability Awards Officer
- Determines the degree of permanent disability on a physical impairment basis; for workers whose permanent disability is considered to have occurred on or after June 30, 2002, this will determine the pension in the great majority of cases.
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.) may be consulted regarding medical issues. Furthermore, board medical advisors may be consulted where a second medical opinion is needed.
D. Procedure After Application
The family doctor plays a crucial role in the acceptance and continuance of the worker’s claim as well as their 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 Entitlement Officers, Case Managers, 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.
As set out above, making a claim to the Board results in obligations arising for the worker and for their healthcare professionals (see RSCM II Policies #93.26 and 95.00 – 95.40). A failure to provide information on the part of the worker can result in the claim being suspended (see RSCM II Policy #96.22).
If there is a delay in obtaining outside evidence, the Board may decide to make a preliminary determination and begin paying benefits while waiting for further information (see RSCM II Policy #96.21).
E. Evidence and Investigation
As in any legal arena, at all stages of the Workers’ Compensation process it is vital to support claims with evidence. Often this can be especially challenging when dealing with medical issues for many reasons: for example, these issues require specialized knowledge, they often do not lend themselves to certainty even for professionals, and most injured workers have limited time and money to spend collecting evidence.
Conversely, WCB has salaried Board Medical Advisors (BMA) and WCAT is “presumed to be an expert in all matters over which it has exclusive jurisdiction” (Fraser Health Authority v Workers’ Compensation Appeal Tribunal, 2014 BCCA 499 (Fraser Health)). Nevertheless, WCB and WCAT are not presumed to have medical or scientific expertise and, as such, they are not permitted to ignore uncontradicted expert advice (Page v British Columbia (Workers’ Compensation Appeal Tribunal), 2009 BCSC 493) particularly in light of the “as likely as not” standard.
While it may be useful to document subjective claims of injury, pain, and limitations, workers should bring as much objective expert evidence as possible. This may include evidence from physiotherapists, massage therapists, chiropractors, and dentists in addition to a family doctor. If necessary and possible, ask to be referred to a specialist.
Also, recall that medical diagnosis and medical causation does not need to be proved to the level of scientific certainty. The finder of fact is permitted to make common sense inferences (Snell v Farrell, (1990) 2 SCR 311; McKnight v Workers’ Compensation Appeal Tribunal, 2012 BCSC 1820)
As with all evidence in the claims process, there is no onus on the worker to prove their injury. Rather, once a claim has been made, the Board gathers the relevant evidence it needs to make a sound conclusion. However, the worker does need to provide some basic evidence of an injury to start the process. As set out above, the standard of proof is “as likely as not”, i.e. if the evidence is weighed 50/50, the tie goes to the worker. (See RSCM II, Policy #97.00)
Workers also benefit from several evidentiary assumptions set out at RSCM II Policy #97.20. The RSCM II sets out a number of detailed policies on investigation of claims, use and weighing of evidence, and the powers that the Board has in investigating claims issues for determination. These powers are wide reaching and can be used at any stage of a claim. However, the need for extensive investigation typically occurs at the outset of a claim or when a worker seeks to have a new injury / symptom added to a claim. These policies, as well as policies governing acceptance and disclosure of information on a claim file, are set out at RSCM II Policies # 97.00 – 99.90 and number more than 50 policies. These policies are useful to review generally, but should always be specifically consulted when any issues around evidence / information arises on a claim file.
Also note that certain costs and expenses incurred by a worker in the course of a Board investigation / inquiry / appeal related to a claim can be reimbursed. These policies are set out at RSCM II Policies #100.00 – 100.83)
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