Workers' Compensation Claim Benefits (7:IX)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 31, 2020.|
In a sense, BC has two Workers’ Compensation Systems that work in tandem. One system pertains to injuries which occurred before June 30, 2002 and the other to injuries which occurred on or after June 30, 2002. The following section will discuss injuries that occurred on or after June 30, 2002. If you or your client were injured prior to June 30, 2002, be aware that different rules apply. Refer to the Rehabilitation Services and Claims Manual for more information. Volume I of the Manual applies to most injuries that occurred prior to June 30, 2002, while Volume II applies to injuries that occurred on or after June 30, 2002.
B. Short Term and Long Term Wage Rates
When a compensation claim is accepted, the Board sets the worker’s wage rate at two different points in the claims process. All claims benefits (e.g. LOE, PFI, TWL) are paid according to these rates. If you or your client believe your benefits do accurately reflect your income before your injury, it is vital that you try to correct this as soon as possible.
At the beginning of the claim, the Board sets a short-term wage rate (STWR). After 10 weeks, if the worker is still on benefits, the Board sets a long-term wage rate (LTWR). Both the STWR and LTWR are set at 90% of net earnings but the calculation of these earnings are different (in most cases) for the two wage rates.
Except for “casual workers” (see below), a worker’s STWR is based on his gross earnings at the time of the injury with deductions assumed to be 1.5 times the basic personal deduction allowed under the Income Tax Act, RSC 1985, c 1 (5th Supp.) for a single taxpayer, plus the standard EI and CPP contributions. This results in a STWR that equates to 90 percent of the worker’s take home pay for a single worker. For workers who have several dependants or much lower actual tax deductions, this calculation results in a lower wage rate than if the Board had used actual figures. However, because the STWR is only set for the first 10 weeks of the claim and generally reflects their current wages, many workers do not dispute this issue or appeal the STWR decision.
The determination of a STWR for “casual workers” is different. The WCA requires that where WCB determines that a worker’s pattern of employment at the time of injury was “casual in nature”, that the STWR be based on that worker’s earnings over the immediately preceding 12 months of employment. The result is that a “casual worker” who is earning a good wage at the time of the accident will likely be eligible for less compensation during the initial payment period than his or her counterpart in a “permanent” job. Where the “casual worker” designation has been made in the STWR decision but is not correct, this may be an important appeal issue.
- NOTE: Practice Directive #C9-9 currently describes a two-step investigation procedure to determine whether a worker's pattern of employment is casual in nature. If the job at the time of injury is scheduled to last for three months or longer, the worker will not be considered a casual worker. If the job is scheduled to last for less than three months, the worker may be considered a casual worker if he or she has a history of short term jobs (less than three months in length) with significant absences from employment between them (greater than the time spent employed). However, as PDs are updated and changed on a regular basis, the electronic version should be consulted.
The LTWR is based on a calculation of a worker’s “average earnings” in the previous year and the worker’s actual deductions. A worker’s “average earnings” is a somewhat complex and careful calculation, subject to changing law and policy.
- NOTE: Chapter 9 of the RSCM II is entirely on “Average Earnings” and there are about 10 Practice Directives on these calculations. Rather than summarize this complexity, it is best to recognize that the Board’s LTWR decision is based on an “average earnings” decision and that the “average earnings” decision is important to review on its particular facts.
Once the LTWR is set, the Board uses this LTWR figure to calculate the amount of any awarded WCB benefits, including pensions, on that worker’s claim, for the life of the claim, except in the case of “re-openings” (see below).
Finally, for ongoing benefits, such as pensions, while the initial amount is determined on the basis of the LTWR, the benefit itself is adjusted annually according to inflation, at a rate 1 percent less than the actual inflation rate with a 4 percent cap on inflation adjustments, regardless of whether the actual inflation rate is higher. This applies to all workers, including those injured before June 30, 2002.
Recurrence or Deterioration and Wage Rates
A claim may be “re-opened” if a worker suffers a new period of temporary disability and/or an increased degree of permanent disability from a recurrence or deterioration of a previously accepted condition.
Under s. 35.1(8) of the current Act, a recurrence of an injury is treated as a new injury for any new period of temporary disability. In addition, if the re-opening is more than 3 years after the initial injury, the Board may reset the LTWR for the purpose of calculating additional benefits under the re-opening.
The applicable policy on re-setting LTWR for re-openings over 3 years is Policy #70.20. This policy is complex and it is best to consult this policy in light of the particular facts of each case. This policy affects all workers with long-term disabilities, where their condition recurs or deteriorates.
The re-opening provisions also have particular significance if the worker was injured prior to June 30, 2002, where the LTWR was calculated as 75% of gross and the definition of “average earnings” was different. For this worker, his re-opening TWL benefits would be calculated under the new policy provisions (90% of net average earnings).
It should be noted that a “recurrence” must be distinguished from a “deterioration”. In Cowburn v Worker’s Compensation Board of British Columbia, 2006 BCSC 722, the court found that it was patently unreasonable to treat a deterioration in a worker’s disability as a recurrence of an injury. Accordingly, when a worker’s permanent disability that began before June 30, 2002 becomes worse, the increased benefits are based on the older provisions that were in force when the disability first arose (such as pension entitlement). However, a new applicable wage rate may still have to be determined under policy #70.20.
C. Average Earnings
As noted above, the Board determines a worker’s LTWR based on its calculation of his annual “average earnings” and because of this, “average earnings” is an important decision on the worker’s claim.
In general, “average earnings” is set as the worker’s employment income over the one-year period before the injury. Section 33 of the Act provides that the Board must use the exact previous one-year earnings unless the worker meets one of the few exceptions set out in the Act. If a worker has regular earnings in this one year period before his injury, this is not difficult. However, if a worker has irregular earnings in this period (for any reason), it is important to consider whether his employment falls within one of the statutory exceptions; if not, it will be difficult for that worker to get a LTWR comparable to his actual earnings at the time of injury.
One exception is for “casual workers’. As noted above, “casual workers” already have their “average earnings” (over the previous year) calculated at the outset of the claim and for these workers, their STWR will be the same as their LTWR; both wage rates are likely significantly lower than the worker’s actual wages at the time of injury. This section is rigidly applied.
Another exception is a “new” worker, defined as where the worker was permanently employed by the accident employer for less than 12 months before the injury. For this type of worker, section 33.3 of the WCA allows the “average earnings” to be calculated based on what a person of similar status employed in the same type and classification of employment would earn in 12 months. However, section 33.3 is not applicable where the worker’s employment is deemed casual or temporary.
Under section 33.4 of the Act, the Board may also determine average earnings differently in “exceptional” circumstances, if the one-year average would be “inequitable” . This provision does not apply to cases of “casual” workers ) or to “new” permanent workers as described above. Practice Directive #C9-12 states that an exceptional case is one that is “truly extraordinary”, “unusual”, or “irregular”, such that “the worker’s circumstances in the year prior to the injury fail to provide any meaningful measure of their employment history”. Examples might include a non-compensable illness or injury, or maternity/paternity obligations.. Under this exception, an officer has discretion to seek a long-term average earnings figure that better reflects the worker’s real income loss, possibly by excluding a significant atypical disruption (i.e. one lasting more than six weeks) or basing the worker’s “average earnings” on a longer or shorter period of time.
Under WCA s. 33(3.2), EI benefits are included in the calculation of the worker’s earnings for the year if the worker was, in the Board’s opinion, employed in “an occupation or industry that results in recurring seasonal or recurring temporary interruptions of work”. For a seasonal worker, this is an important distinction as can be seen by the example of a worker injured at work in his first week, after returning from a six month lay off. If this worker is designated as a “casual worker”, the Board would simply calculate his earnings over the last year (including the period of the long layoff but without counting EI payments) to arrive at the “average earnings” over the one year period before the injury. This figure would set both his STWR and LTWR and the only argument for a higher rate would be through section 33.4 of the Act. However, if the worker is found to be in a “highly seasonal” occupation, his EI benefits would add to the calculations of his “average earnings” and greatly increase his LTWR. In addition, his STWR (for the first 10 weeks) would be set in the usual manner as being his wages at the time of injury.
Where a worker has two jobs and is unable to work at either due to an injury at one, the worker’s benefits will be calculated based on his or her combined earnings at both jobs, up to the statutory maximum. This applies even if the worker’s other job is not otherwise protected by the WCA (Policy #65-02).
D. Temporary Wage Loss Benefits (TWL)
The WCA does not define “disability” although it uses this term throughout the Act. Section 29(1) of the Act states that if a worker has a temporary total disability (TTD), the Board must pay full TWL benefits (calculated according to the steps above), also referred to as “s. 29 benefits”. Section 30 states that if a worker has a temporary partial disability (TPD), the Board must pay the difference between the worker’s average net earnings before the injury and either their average net earnings after the injury OR the average net earnings in some deemed “suitable” occupation. These are referred to as “s. 30 benefits”.
If a worker has an injury but can perform the full duties of the pre-injury job, the claim is accepted for health care benefits only (see below). If the injury is such that the worker cannot perform full duties, the Board makes an entitlement decision on an accepted claim regarding additional benefits, especially wage loss (#34.10). For most claims, the Board finds that there is some type of temporary disability:
TTD - worker not working at all: TWL paid under s. 29 of the Act;
TPD – worker working part-time work at a suitable occupation or deemed suitable occupation and paid Partial Wage Loss (PWL) under s. 30 of the Act; OR
Temporary Disability (of any kind) but the employer gives the worker given suitable light duties a as per policy #34.11. In this case, the Board usually does not pay the worker any TWL but the worker’s other benefit entitlement (such as health care) is adjudicated under s. 30 of the Act. Policy #34.11 applies to any adjudication of these light duties, including where the worker refuses light duties on the grounds that they are unreasonable.
- NOTE: Light duties is meant to be a temporary arrangement during a period of temporary disability. Even though no TWL is paid to a worker, it is still an accepted period of “disability” under the Act. During this period, a worker is entitled not only to health care benefits but also to a decision regarding the outcome of the accepted condition. All periods of “light duty” should conclude with a formal “resolve” or “plateau” decision (see below).
A temporary disability ceases when the worker’s medical condition either resolves entirely or is not expected to change significantly in the next 12 months. At this point, the medical condition is said to have “plateaued” and is considered permanent. In either case, the Board ceases to pay further TWL under s. 29 or s. 30 at this point.
E. Health Care Benefits
Health care benefits are payable under s. 21 of the Act for the period of the worker’s disability, and thereafter to “cure and relieve from the effects of the injury or alleviate those effects”. Chapter 10 of the RSCM II greatly expands the Board’s regulation and control of particular health care benefits including all forms of treatment, medical investigation with specialists, medical aids and medications. As noted above, if a worker has an impairment but can perform their full pre-injury job, the claim is accepted for health care benefits only (as long as there is a short episode of disability: policy #34.10).
There is now a general Board practice to not provide injured workers with medical treatment (such as physiotherapy or counselling) past the “resolve/plateau” point. This may be an issue for workers who are able to RTW with permanent injuries, especially in accommodated positions. Such worker may be suffering from the effects of their injury but are not considered “disabled”. Likely they are entitled to on-going treatment under s. 21 of the Act but it may require an appeal to obtain such benefits.
The Board must pay for necessary medical treatment, including physicians and hospital bills, physiotherapy, drugs, artificial limbs, hearing aids, and special transportation. Allowances for personal care and for structural alterations to the home may also be paid to paraplegics and other severely disabled workers. Practice derivative #C10-1 addresses pain medication, sedatives and hypnotics and was updated in 2017. Compensation for prescribed opioids and other potentially addictive medications are generally limited to four weeks coverage.
The Board has the right to supervise a worker’s treatment (s. 21) and to authorize any surgery. If a worker decides to undergo surgery or other treatment that is not authorized by the Board, the costs may not be paid, and if the injury is worsened by the treatment, benefits may be cut off or reduced. The Board usually agrees to pay for surgery recommended by the worker’s own doctor, but the doctor should ask for the Board Advisor’s approval. The Board often refuses to pay for drugs or physiotherapy considered unnecessary by its advisors. Notwithstanding the 75-day time limit on Board reconsideration (WCA section 96(5)), the Board now agrees that each Medical Aid decision can be appealed.
F. Income Continuity Benefits
Although classified as VR benefits (described below), income continuity benefits are payments to provide interim support for the worker after TWL is terminated at plateau but before the amount of a permanent disability pension is determined. A worker’s advocate should always request these benefits as they are often the only source of income that a worker will have between the time the worker’s condition stabilizes and the time the pension benefits are assessed. These are short-term, temporary benefits.
If a worker refuses employment or to participate in a Board issued VR plan, he or she may be refused income-continuity benefits. See Policy C11-89.10 of the RCSM for more information regarding the assessment of income continuity benefits.
G. Vocational Rehabilitation Benefits
The Board usually assesses whether a worker needs assistance to return to work (RTW) at or near the end of his or her temporary disability. If the worker has a permanent impairment and is not able to safely RTW without assistance, he or she is referred to Vocational Rehabilitation (VR).
If a worker is struggling or unsafe near the end of the period of wage loss, an advocate should review the file to ensure a referral to VR is made. If there is no referral, the advocate may make a direct request to the CM and/or appeal the “resolve” or “plateau” decision on the basis that these decisions do not contain a VR referral, when one is needed. Policy #85.00 and #86.00 set out the principles, goals, and eligibility criteria for VR benefits.
Once a VR referral is made, the Board may provide a large variety of VR services to injured workers. These are discretionary benefits under s. 16 of the Act, governed by the policy set out in Chapter 11 of the RSCM II. Generally, the extent of VR services generally depends on the nature of the worker’s disability.
The policy requires that the assigned Vocational Rehabilitation Consultant (VRC) consult with the worker and issue a written VR plan identifying a suitable occupational goal and the VR services required. In identifying a suitable VR plan, the VRC works through five VR phases, set out in Policies C11-85.00 to 91.00. In fatal cases, a surviving spouse may be eligible for retraining.
In brief, the phases are:
- Phase One: The VRC will make an effort to assist the worker to return to the same job with the same employer (the “accident employer”). This may require some phased in work programs such as a gradual RTW or work conditioning.
- Phase Two: If the worker cannot return to the same job, the VRC works with the accident employer to make worksite accommodations and job modification, or to provide alternative in-service placement, with a view to finding the worker a new position within the accident employer’s business.
- Phase Three: If the employer is unable or unwilling to accommodate the worker, the VRC identifies suitable occupational options in the same or related industry. This may require the worker to obtain additional skills or training or to be supported in periods of job search.
- Phase Four: If the worker is unable to return to employment in the same or related industry, the VRC explores opportunities in all industries, with emphasis placed on the worker’s transferable skills, aptitudes and interests.
- Phase Five: If the worker’s existing skills are insufficient, the VRC may utilize additional training programs to help the worker acquire new skills and may also assist the worker in a job search once training is complete.
The particular VR benefits which are authorized for the worker are be spelled out in detail in the formal VR plan, which should be provided to the worker. The worker’s VR plan is first published as a document, discussed with the worker, and then is set out in a formal appealable decision.
VR services can include:
- monthly compensation (in the same amount as wage loss benefits) to support a worker during a rehabilitation program;
- payment of tuition, books, and other costs of the course itself;
- employability assessments
- a job search allowance (also in the same amount as wage loss benefits) to support the worker while looking for suitable employment if he or she cannot return to the pre-injury job; and
- a training on the job allowance or wage subsidy to encourage an employer to allow the worker to learn new employment skills, or gain experience in a new field.
In practice, the Board will only issue one VR plan and ask the worker to agree to it. The plan must be reasonable. If the worker thinks a VR plan is not reasonable, they should appeal the VR decision setting out the VR plan and ask for a new plan, being as specific as possible as to why the VR plan is unreasonable, and if possible, what a reasonable VR plan may be.
If a worker is cooperating with VR re-training, they should continue to receive benefits at the full wage loss rate. If a worker is appealing a VR plan as unreasonable, the worker may wish to keep cooperating with the challenged VR plan during the appeal period in order to continue receiving benefits.
VR benefits, under a formal VR plan, may be terminated for reasons set out in Policy #88.00. These reasons include if the worker is not cooperating or if he withdraws for personal reasons or refuses suitable employment or is prevented from participating by non-compensable factors alone. If the worker believes that the Board’s reasons for terminating VR benefits are inaccurate or wrong, the termination decision should be appealed. This is particularly important if the worker is failing in VR due to some aspect of his medical condition.
At the end of the VR process, the VRC issues a decision about the worker’s future earning capacity in a suitable occupation and whether VR has restored it to near its pre-injury level. Based on this final VR decision, the Board then determines whether the worker should be considered for a loss of earnings (LOE) pension.
Rehabilitation decisions can be reviewed only by the WCB’s Review Division; the RD decisions on VR cannot be appealed to the Workers’ Compensation Appeal Tribunal.
While the Board routinely relies on the VRC’s decision regarding the worker’s employability, WCAT does not consider these VR decisions as binding on them when adjudicating an LOE pension issue on appeal. EXAMPLE: A VRC finds that a worker can adapt to working full-time in a particular occupation, when he cannot. The worker may still raise this issue and provide evidence about disability in his appeal of a denial of an LOE pension, both at the Review Division and WCAT.
- NOTE: Many difficulties in this area arise from different concepts of disability and employability. The Board tends to assess a worker’s permanent disability in terms of impairment and to limit its assessment of impairment to “medical restrictions and limitations” (R&Ls) i.e. specific activities which the worker cannot do or should not do at all because of potential harm. R&Ls may or may not include other aspects of limited ability such as tolerance or endurance (such as an inability to sit for more than 10 minutes) which are key elements of work function. Also, disabled workers often face discrimination and other barriers to employment. Court decisions have been clear that VR processes must address the whole worker, including any pre-existing disabilities or factors affecting employment (Young v. WCAT 2011 BCSC 1209) but this remains a contentious area and one that the Board does not consider part of the “compensable” condition.
H. Permanent Disability Pensions
Once a worker’s condition has stabilized or “plateaued”, i.e. is not likely to get significantly better or worse in the next 12 months, temporary wage loss benefits will cease. If the worker continues to have some disabilty, they will be assessed for a permanent disability pension. A disability pension is possible if WCB determines that the worker has been left with a permanent disability.
A case manager will determine which conditions or injuries are permanent and refer the worker for assessment. Decisions not to refer a worker at all or to exclude certain injuries or conditions are appealable to the Review Division and, if necessary, WCAT.
A WCB “pension” is how the Board compensates an injured worker for a permanent disability. There are two possible methods for calculating a pension – compensation for permanent functional impairment (PFI) or compensation for loss of earnings (LOE).
All permanent disability pensions are paid until age 65, unless if the worker can convince the WCB otherwise (discussed in detail below).
- NOTE: Workers who also qualify for Canadian Pension Plan (CPP) disability benefits will have one-half of those benefits deducted from their WCB pensions (this could amount to as much as $577 per month, half of the $1153 maximum currently payable by CPP). This deduction represents the employer’s share of the benefits paid for the same disability as the WCB claim. If a CPP pension is partly based on non-compensable disabilities, no deduction will be made for that portion of the CPP.
Functional Impairment Method
The first calculation for permanent partial disability pensions (called “Permanent Functional Impairment”) compares the worker’s degree of physical impairment to that of a totally disabled person. The percentage of impairment is usually based on the RSCM’s Permanent Disability Evaluation Schedule (PDES).
Generally, only disabilities that could reduce earning capacity receive compensation, and there are no payments for pain and suffering or loss of enjoyment of life. The Board’s policy manual contains detailed schedules of percentage disability for different types of disabilities. Types not listed are estimated, and there is usually some degree of discretion in the process.
Policy item #39.10 says that the PDES is meant to be a guideline and not a rigid formula. The WCB is free to apply other variables in arriving at a final award, but they must relate to degree of impairment and not social or economic factors, or rules established in other jurisdictions. In practice, the PDES is applied with little discretion.
Note that loss of function awards for chronic pain are capped at 2.5% per area of pain.
Projected Loss of Earnings Method
This second calculation for permanent partial disability pensions compares the long-term wage rate that a worker was able to earn per year before the injury to what the worker is able to earn after the injury, based on occupations that are suitable for and reasonably available to that worker.
Loss of earnings pensions will only be paid where the amount determined under the loss of function method would leave the worker with a significant loss of earnings, i.e. where the disability resulting from the work injury makes it unlikely that a worker can continue in the occupation at the time of injury or adapt to another suitable occupation without incurring a significant loss of earnings (See WCA s 23(3.1) and Item #40.00 in the RSCM). Practice Directive #C6-2 further defines “significant loss of earnings”. A 25% or greater percentage differential between pre-injury and post-injury earnings is usually considered significant. A 5% or less percentage differential is not considered significant. Anything in between could be considered significant, depending on the individual circumstances of the case. Note that the Practice Directive is not binding law, but is still persuasive.
Where workers are unable to replace their pre-injury earnings, the WCB often “deems” them capable of earning significantly more post-injury than they actually are earning or can earn following an injury. For example, a worker who cannot return to a pre-injury job that paid $4000 per month may find new employment for $2000 per month. Instead of accepting the worker’s own experience, the Board may decide that over the long term the worker can find a different kind of job that pays $3000 per month, and calculate the benefits accordingly. Instead of getting a loss of earnings pension representing the actual $2000 per month the worker is losing, he or she would receive a pension based on the $1000 the Board “deems” him or her to be losing. Common problems workers face in these situations are that the Board may underestimate the actual extent of physical or psychological limitations they have due to their injury and/or pre-injury background, underestimate the demands of the deemed occupations the Board says they can perform, and/or overestimate what they are actually capable of earning over the long term in the deemed occupations, therein deeming them capable of theoretical earnings that far exceed what is reasonably suitable for and available to them. On appeal of a loss of earnings decision (and often a VR rehabilitation plan decision), the worker should provide evidence to counter these common problems.
Given the above, the vast majority of workers will only receive a Permanent Functional Impairment (PFI) award for their permanent partial disability. For exceptional cases where the PFI award is inadequate, an additional Loss of Earnings (LOE) award will be provided. In cases of severe disability, a worker may have a permanent total disability equal to 100% PFI. In these cases, the WCB will pay the worker a monthly payment equivalent to a 100% LOE pension. Some examples of permanent total disability are paraplegia, quadriplegia and total or near blindness.
I. Benefits after Age 65
Policy item #41.00 states that payments for permanent disability pensions end at age 65 unless the WCB is satisfied that the worker would have retired at a later date. The worker is asked to provide independent verifiable evidence at the time of the permanent disability award (or on appeal) that he or she had plans prior to injury to work beyond age 65. This type of evidence can often be unavailable. A series of WCAT and RD decisions have held that if independent verifiable evidence is not available, the available evidence including workers’ statements should be considered to determine whether the worker had plans prior to the work injury (or in some cases prior to the time of the permanent disability award). See WCAT-2014-00467, identified as “noteworthy” on the WCAT website; if for example the worker had sincere plans to continue working past age 65 due to some combination of emotional and financial need, this may be sufficient to extend the pension.
J. Benefits in Fatality Cases
For deaths that occurred on or after June 30, 2002, the following rules apply. Different rules may apply to deaths that occurred prior to June 30, 2002.
A child eligible for compensation includes a child under 19 years of age, an invalid child of any age, and a child under 25 years of age who attends a school.
Spousal benefits are not lost upon re-marriage, and survivors’ pensions are not terminated when the worker would have reached age 65 (s. 19.1). In older cases, a spouse of a deceased worker who remarried might have lost their benefits. Under the new legislation, there are no such exclusions. Instead, s. 19(2) states that a person whose payments were discontinued under a former section is entitled to complete payment of all benefits that he or she would have been entitled to – as though the section had not applied.
Where death results from a compensable injury or industrial disease, the surviving dependents may receive lump-sum payments or monthly pensions based on the deceased worker’s earnings. These pensions cannot exceed the statutory maximum, and are adjusted in accordance with changes in the Consumer Price Index. The amount of the pension for spouses without dependent children depends on the surviving spouse’s age (s. 17(3)(d)).
A separated spouse may receive benefits based on the amount of support the deceased worker would likely have contributed had he or she survived (s. 17(9)). A common law spouse is entitled to benefits after three years of cohabitation or after one year if there are children. However, compensation may not be paid, or may be reduced, if there is a separated spouse as well.
K. Suspension of Benefits
Benefits may be suspended:
- a) if a worker persists in unsanitary or injurious practices, which tend to prevent or slow recovery;
- b) if a worker refuses to submit to medical or surgical treatment, which, in the opinion of the WCB, is reasonably essential in promoting recovery;
- c) if a worker fails to attend a medical examination arranged by the Board; or
- d) if a worker is in prison, in which case benefits will cease, or be paid to his or her dependents.
The Board may also divert compensation from a worker for the benefit of his or her dependents if the worker is not supporting them.
Under s. 57.1 of the WCA, the Board may withhold or reduce benefits for any period the worker does not provide requested information (unless the Board finds that it was unclear in communicating the requirement or erroneously concluded that the worker was being uncooperative). However, such benefits will be paid when the worker provides the necessary information.
L. Emergency Assistance
Many workers need immediate income if they are waiting to be accepted or their benefits have been disallowed or terminated. They should consider alternate sources: social assistance, which may provide a crisis grant for immediate temporary relief or longer term relief if a decision is being appealed; EI sickness benefits; CPP disability pensions; any plans available through their place of work or union; ICBC (if an automobile was involved); or private disability insurance.
M. “Resolved/Plateau” Decision Letters
There are key decisions in a worker’s claim including the initial decision to accept or deny a claim and any VR or pension decision. However, it is important to note the decision which is issued at the end of a period of temporary disability. This decision, referred to as a “resolved/plateau” decision, usually embeds several key decisions, each of which may be appealed.
Briefly, the decisions usually embedded in the “resolve/plateau” decision include:
Has the Worker's Injury/OccD Stabilized
The first key issue is an accurate medical assessment of the worker’s compensable condition at the critical point of a “resolve/plateau” decision. As noted above, if a work injury or OccD has resolved entirely, the Board issues a “resolve” decision and the claim file is closed. If the injury has only stabilized, then the Board issues (or should issue) a “plateau” decision. If the injury has not yet stabilized, the Board should continue to treat it as a temporary disability with temporary benefits (WL and/or health care benefits).
An appealable matter arises if the Board issues a “resolve” decision but the worker or the medical evidence indicates that there are ongoing effects, conditions or impairments from the injury (e.g. chronic pain). In this case, both the medical evidence and the Board’s adjudication should be assessed. The medical evidence should be assessed to determine if the compensable conditions are still temporarily disabling (i.e. the worker is not able to fully return to pre-injury work) so that the worker continues to be entitled to temporary ongoing benefits, or if the compensable conditions have reached a “plateau” as defined by policy #34.35 and the worker is entitled to a referral to Disability Awards and (sometimes) Vocational Rehabilitation (VR).
The issue of “fully resolved” vs. plateau is a medical issue. “Fully resolved” means that there is no permanent or ongoing residue or impairment from the injury. If the claim is concluded on the basis that the compensable condition has “fully resolved”, then no further benefits flow and it will be very difficult to reopen the claim later. If the injury is not fully resolved medically, the file should not be closed. Just because a worker returns to pre-injury employment (no disability so no WL) does not mean that the injury is “fully resolved”; the injury may have stabilized into a permanent impairment which is not disabling. If the worker is issued a “resolve” letter and there are ongoing medical issues or symptoms, the “resolve” decision should be appealed.
If the condition has not resolved but you are unsure whether it is still a temporary or permanent disability, policy #34.54 gives the criteria for making a determination between temporary and permanent conditions in this context. Basically, the policy states that a medical condition is “stabilized” when there is little potential for improvement or where any changes are in keeping with the normal fluctuations for that condition. Most doctors know the term “plateau” in this sense and the worker’s GP may well address this matter in the last report on the claim file (found in the medical section).
If the worker has plateaued, there should be a particular date identified in the decision letter as being the date of “stabilizing” or “maximum medical recovery” (MMR) or “plateau”. You can assess whether this date is appropriate, considering:
- a) Have all the compensable conditions been considered? And
- b) Is it appropriate given the criteria in policy #34.54 and the medical evidence?
EXAMPLE: If further treatment (physiotherapy or surgery) is likely to make a significant change in the worker’s condition within three months, then the condition should continue to be temporarily disabling and the worker should get TWL until then.
What Permanent Conditions are Accepted and what Conditions are Denied?
In the plateau decision letter, the case manager sets out which exact conditions are accepted as permanent. These permanent conditions may be somewhat different than those originally accepted on the claim. For example, if a worker falls and suffers multiple injuries, some of the injuries are likely to fully resolve (sprains) while others can potentially leave a residual impairment (broken leg which mostly heals but leaves the worker with a limp). Other injuries will leave a very significant permanent impairment (mild brain injury). It is also possible that the worker has developed additional conditions during the temporary period (infections, psychological conditions, chronic pain, addiction, etc.).
Typically, as a worker nears plateau, the case manager (CM) refers the claim to a Board Medical Advisor (BMA) to assess whether the worker has reached plateau, and to determine the likely plateau date and what permanent conditions should (and should not) be accepted on the claim. The BMA assessment may or may not be explicitly referenced in the plateau decision. The complete BMA opinion can be found as a “Clinical Opinion” in the Medical section of the claim file.
a) Accepted and Denied Conditions
It is very important to carefully assess which conditions are accepted and denied as permanent on the claim as these conditions will likely govern all future benefits. All plateau decisions should include a referral to Disability Awards (DA) for assessment of the permanent disability.
The plateau decision may also set out why certain medical conditions are denied as compensable permanent conditions. For example, if the Board finds that the identified conditions have resolved and the worker disagrees, this is a very important appeal. Sometimes the medical evidence on the claim file is sufficient to establish that the condition has not resolved; if not, the worker will likely need additional medical evidence.
Another common reason for denying permanent conditions is that the Board considers that the conditions pre-existed the injury and were not permanently aggravated by the injury, even if there was a temporary aggravation. There are two distinct types of pre-existing conditions:
The pre-existing condition or disease was non-deteriorating:
As set out in policy #16.00 (Chapter 3) for injury and policy #26.55 (Chapter 4) for OccD, if the post-plateau condition is not significantly worse than before the injury, then the condition was not permanently aggravated by the work injury/OccD. This is an issue for which medical records are important; or
The pre-existing condition or disease was deteriorating:
If the worker had a pre-existing deteriorating condition, the test is whether the work injury “significantly accelerated, activated or advanced” the condition more quickly than would have occurred in the absence of the work injury (policy #16.00). The Board commonly denies permanent disability on the basis that it arises from a natural degeneration of a pre-existing condition such as degenerative disc disease or osteoarthritis.
b) Missing Conditions
The plateau decision (accepted and denied conditions) may not fully encompass the medical conditions which are noted by the worker or by the medical practitioners. This is best seen by comparing the DL with the medical evidence. If the decision is silent on a medical condition, you can ask for a new or additional decision from a case manager. Alternatively, if you are appealing the plateau decision on other grounds, in the appeal you can ask for a remedy that additional conditions be accepted on the claim.
Can the Worker Return to the Pre-Injury Job? (not appealable)
A case manager’s decision that a worker can return to their pre-injury job is considered to be a finding of fact and not an appealable decision. In the context of a plateau decision, this RTW finding means that the Board considers that the accepted permanent conditions do not impair or disable the worker from their pre-injury job.
If this is not the case, this is a very important issue to challenge. Since an appeal of a plateau decision often involves seeking additional TWL, a new plateau date, additional permanent conditions, etc., the RTW finding of fact can be addressed in the context of these additional issues.
However, if there are no other issues in the plateau decision except this RTW finding, the plateau decision should be appealed on the grounds that the worker cannot to his pre-injury job and is entitled to additional VR benefits. Framing the appeal issue in this way ensures that the RD has an entitlement decision to address.
If Not, Referral to Vocational Rehabilitation (VR)
If the Board finds that the worker cannot return to his pre-injury job, then the case manager will most often refer the case to VR for VR benefits.
Did the Worker Suffer an Exceptional Loss of Earnings?
There is a varied Board practice on whether the plateau letter will contain a decision on a worker’s entitlement to a Loss of Earnings (LOE) assessment or whether this decision will be deferred, pending the outcome of VR. However, all plateau letters should be assessed for whether they contain an LOE decision (express or implied) and if so, if this decision should be appealed.
|© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.|