Governing Legislation, Policy and Guidelines(7:II)

A. Legislation

The Workers Compensation Act [WCA] is the legislation which creates and governs the Board. In 2002 and 2003, the WCA was substantially amended and the key transition date is June 30, 2002. Workers who were injured before or on June 30, 2002 (with a few exceptions), have the former WCA apply to their claims whereas workers who were injured after this date are under the amended or “new” WCA.

The new WCA revised sections 99 and 250 of the Act to make Board policy binding on all Board decision-makers and appeal bodies (i.e. WCB and WCAT). The courts have since determined that the effect of these provisions is to give Board policy a legal status equivalent to subordinate legislation (see below).

The WCA amendments also changed the appeal structure for Board decisions. After March 1, 2003, there are two levels of appeal for most Board decisions:

• i. an internal review at the Review Division (RD); and
• ii. an external de novo appeal at the Workers Compensation Appeal Tribunal (WCAT), which is an independent tribunal.

In 2004, the Administrative Tribunals Act, SBC 2004, c 45 [ATA] came into effect. The ATA applies to all administrative tribunals in B.C., including WCAT. The ATA sets out certain procedural requirements for WCAT and also sets a 60 day time limit for filing a judicial review from a WCAT decision. The ATA does not apply to Claim or Review Division decisions.

Citations for the WCA, key amendments and other relevant legislation are attached in the Appendix. All legislation and Board policies are available on the Board website. Applicable ATA provisions and their effect on WCAT procedures are also incorporated in WCAT’s Manual of Rules, Policy and Procedures [MRPP], available on the WCAT website.

B. Binding Policy for Compensation Claims and Appeals: RSCM II

Section 99 of the WCA requires the Board to apply any applicable Board policy which has been passed by the Board of Directors. This means that published Board policy is binding on all Board decision-makers, including the Review Division; a similar provision makes Board policy binding on WCAT [section 250].

Section 99 of the WCA also states that all decisions “shall be given according to the merits and justice of the case and where there is a doubt as to any issue and the disputed possibilities are evenly balanced, the issue shall be resolved in accordance with that possibility which is favourable to the worker”. This means that in WCB cases there is a unique standard of proof: the “as likely as not” standard. This is less than the balance of probabilities (“more likely than not”) and, properly applied, should favour compensation for the injured worker.

In practice, Board policy confines, or attempts to confine, the nature of relevant evidence and to provide the framework for how evidence is to be assessed and weighed. Therefore, in appeals, it is important to identify the correct applicable Board policy whether or not it is identified in the initial Board decision.

Compensation policy is set out in the Rehabilitation Services and Claims Manual, Volume II [RSCM II]. The current RSCM II is available at the WCB site under the “Law and Policy” tab, followed by the “Compensation Policies” link under “Claims & Rehabilitation”. On the sidebar, there are tabs for both RSCM Volumes I and II. Volume I applies to claims initiated before June 30, 2002 [RSCM I] and Volume II applicable to any claims initiated after June 30, 2002.

The RSCM II has eighteen chapters. Each chapter focuses on a particular entitlement issue or benefit and contains the policies relating to that issue. Each policy is numbered and dated and is typically 1-3 pages long. The RSCM II index (also available through the RSCM II link) is very helpful for locating any relevant chapter and policy.

Board policies change frequently. Each new version of a policy is passed by the Board of Directors and is published with both a specific effective date and a determination as to whether or not the changes apply to appeals. This information is set out at the end of each policy. Each new Board policy is incorporated into the electronic version of the RSCM II available on the Board website. When handling an appeal, students should determine the relevant applicable policy (especially for old claims) and should also review the electronic version of newer policy to ensure that it is still current. The Board website also contains all the former or “archived” policy manuals so that any relevant policy is accessible, even for old claims.

If a particular Board decision quotes part of a policy, it is good practice to read the whole policy and also to look at the surrounding policies to understand the full framework for that type of benefit. Also, although a particular policy may be quoted in a decision, the decision-maker may or may not have applied the right policy. It is best to assess the worker’s issue and determine whether or not alternative policies may be the correct applicable policies.

Lastly, Board policy must be consistent with the WCA. If someone considers that a Board policy is inconsistent with the WCA, they are entitled to challenge that policy in a WCAT appeal in which it is relevant. If the WCAT panel agrees that the policy is not supported by the WCA, the panel will refer the matter to the WCAT Chair; if the Chair agrees, they will refer the policy to the WCB’s Board of Directors for ultimate determination and possible policy change (s. 251, WCA).

C. Non-Binding Practices

Both WCB and WCAT also provide useful interpretive guides that combine policy, important decisions, and best practices. WCB issues Practice Directives (PD) that advise on many particularly complex issues such as chronic pain, mental disorders, and overpayments. These are accessible through the “Law and Policy” tab at the WCB site under the title “Compensation Practice Directives and Reference Guides”. WCAT’s guidelines are published in the MRPP discussed above. These publications can be extremely useful and are worth exploring though neither are binding on their respective bodies.

D. Arguing Medical Evidence

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. 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 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 causation does not need to be proved to the level of scientific certainty and that 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).

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