Difference between pages "Introduction to Workers' Compensation (7:I)" and "Governing Legislation, Policy and Guidelines(7:II)"

Revision as of 02:57, 28 July 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.

A. Legislation

The WCA is the legislation which creates and governs the Board. As set out above, the WCA replaced the Former Act on April 6, 2020. While there was no substantive change encompassed in this act revision, the section numbers of the WCA have changed significantly. As such, this chapter will refer to the section numbers of the current WCA as well as the section numbers from the Former Act.

There are a number of regulations passed under the WCA, the most important being the OH&S Regulation.

In 2004, the Administrative Tribunals Act, SBC 2004, c 45 (the “ATA”) came into effect. The ATA applies to any administrative tribunals in BC that adopt the ATA (or sections thereof) in their legislation. Under the WCA, certain sections of the ATA apply to WCAT including certain procedural requirements and a 60-day time limit for filing a judicial review from a WCAT decision. The ATA does not apply to Claims or Review Division decisions.

Citations for the WCA, key amendments and other relevant legislation are attached in the Appendix.

B. Binding Policy

The WCA sections 339 and 303 [Former Act, ss. 99 and 250] make Board policy binding on all Board decision-makers and appeal bodies (i.e. Review Division and WCAT). The courts have determined that the effect of these provisions is to give Board policy a legal status equivalent to subordinate legislation (see below).

The key documents setting out binding Board policy are:

1 The statements contained under the heading “Policy” in the Assessment Manual – these policies relate to Part 5: Accident Fund and Employer Assessment of the WCA [Former Act, Division 4];
2 The statements contained under the heading “Policy” in the Prevention Manual – these policies relate to Part 2: Occupational Health and Safety of the WCA [Former Act, Part 3]; and
3 The Rehabilitation Services & Claims Manual Volume I and II (the “RSCM I” and the “RSCM II”) (other than explanatory material and the headings “Background” and “Practice”) – these policies relate to Part 3: Workers’ Compensation System and Part 4: Compensation to Injured Workers and their Dependants of the WCA [Former Act, Part 1];

All legislation and Board policies are available on the Board website at worksafebc.com

In practice, Board policy confines, or attempts to confine, the nature of relevant evidence and provides 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.

This manual focuses on claims compensation issues. As such, the most important policy documents for the purposes of this manual are the RSCM I and the RSCM II. The current RSCM I and RSCM II are available at www.worksafebc.com 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. The RSCM I applies to claims initiated before June 30, 2002 and the RSCM II applies 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 relevant chapters and policies.

Board policies change from time to time. 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. It is important to ensure you have found the version of an applicable policy as it read at the time a particular decision was made.

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. See section 304 of the WCA [Former Act, s. 251].

C. Binding Policy: Standard of Proof and Evidence

Section 339 (2) and (3) of the WCA require that the Board “make its decision based on the merits and justice of the case, but in doing this the Board must apply the policies of the board of directors that are applicable in that case” and “if the Board is making a decision respecting the compensation or rehabilitation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the Board must resolve that issue in a manner that favours the worker”. This means that in WCB cases there is a unique standard of proof. Where a case is 50-50, it should be resolved in favour of the worker (an “as likely as not” standard). This is less than the standard of proof used in civil claims. The civil standard is on a balance of probabilities (“more likely than not” or 50% +1).

In practice, Board policy confines, or attempts to confine, the nature of relevant evidence and provides 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.

D. Non-Binding Guidance

Both WCB and WCAT provide useful interpretive guides that combine policy, important decisions, and best practices. WCB issues Practice Directives 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 worksafebc.com under the title “Compensation Practice Directives and Reference Guides”.

The Review Division Practices and Procedures manual (the “RDPP”) is an important document to review when dealing with a review of a Board decision. While the RDPP is not binding, it outlines standards and practices for the Review Division that may not be obvious on a reading of the relevant sections of the WCA.

WCAT’s guidelines are published in the Manual of Rules, Policy and Procedures (the “MRPP”), available on the WCAT website at www.wcat.bc.ca.

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-This chapter covers basic legislation, policy and procedures associated with administrative proceedings under the ''Workers’ Compensation Act'', RSBC 2019, c 1 [WCA]. The WCA replaced the former ''Workers’ Compensation Act'', RSBC 1996, c 492 (the '''“Former Act”''') on April 6, 2020. While there was no substantive change encompassed in this act revision, the section numbers of the WCA have changed significantly.
+== A. Legislation ==
+The WCA is the legislation which creates and governs the Board.  As set out above, the WCA replaced the Former Act on April 6, 2020. While there was no substantive change encompassed in this act revision, the section numbers of the WCA have changed significantly. As such, this chapter will refer to the section numbers of the current WCA as well as the section numbers from the Former Act.
-The WCA is a provincial statute creating a regulatory body called the Workers’ Compensation Board (Act, s. 318 [Former Act, s. 81]). Since 2003, Workers’ Compensation Board does business under the name of “WorkSafeBC” and is referred to as “the Board” or WCB in this section.  The Board has exclusive jurisdiction over compensation to injured workers for workplace injuries, amongst other duties.
+There are a number of regulations passed under the WCA, the most important being the OH&S Regulation.
-Some of the earliest forms of workers' compensation started with pirates in the pre-Revolutionary Americas.  A pirate who lost an eye was entitled to 100 pieces of eight, roughly one year's pay.   With the industrial revolution, more evolved workers' compensation schemes followed in Europe and eventually spread back to North America where they are now mandatory across Canada and the United States.
+In 2004, the ''Administrative Tribunals Act'', SBC 2004, c 45 (the '''“ATA”''') came into effect. The ATA applies to any administrative tribunals in BC that adopt the ATA (or sections thereof) in their legislation. Under the WCA, certain sections of the ATA apply to WCAT including certain procedural requirements and a 60-day time limit for filing a judicial review from a WCAT decision.  The ATA does not apply to Claims or Review Division decisions.
-Today’s workers’ compensation schemes, including BC’s, are based on the historic trade-off: employers fund a no-fault insurance scheme for injured workers, to compensate them and assist in their medical treatment, vocational rehabilitation (retraining), and pension for a disability.  In return, workers give up their right to legal action against their employer for work-related injuries and occupational diseases (WCA s 127; [Former Act, s. 10(1)] 10(1)).  Ideally, this approach offers several benefits.  It takes workplace injury claims out of the courts, reducing clutter for them and cost and delay for the workers.  It gives greater certainty of coverage to workers and streamlines the compensation process.  Finally, like any insurance scheme, it spreads losses amongst employers and eliminates the concern about ruinous claims. It also provides coverage regardless of fault.
+Citations for the WCA, key amendments and other relevant legislation are attached in the Appendix.
-Aside from compensation, The Board's other duties consists of:
-'''Regulation of Occupational Health and Safety (OH&S):''' In BC, the Board is responsible for workplace health and safety regulations, investigations, and enforcement as set out in Part 2 [Former Act, Part 3] of the WCA and in the ''Occupational Health & Safety Regulation'', BC Reg 296/97 (the '''“OH&S Regulation”'''). While most enforcement orders and penalties are against employers for safety violations, orders may also be issued against workers.  Under the WCA, workers are entitled to refuse unsafe work and to be protected from retaliation for reporting unsafe work practices.
+== B. Binding Policy ==
+The WCA sections 339 and 303 [Former Act, ss. 99 and 250] make Board policy binding on all Board decision-makers and appeal bodies (i.e. Review Division and WCAT).   The courts have determined that the effect of these provisions is to give Board policy a legal status equivalent to subordinate legislation (see below).
-'''Employer  Assessments:''' The WCA grants specific powers to the Board to set rates and collect assessments from employers to create an Accident Fund.  The Accident Fund must be sufficient to finance the compensation system and each employer is assessed annually based on a complex formula (see below).  The WCA requires the Board to operate a fully funded system.
+The key documents setting out binding Board policy are:
-== A. Scope of This Section ==
+#1 The statements contained under the heading “Policy” in the Assessment Manual – these policies relate to Part 5: Accident Fund and Employer Assessment of the WCA [Former Act, Division 4];
-This section provides information to workers and their representatives on the overall structure and basic procedures of the Board and its appeal body, the Workers Compensation Appeals Tribunal (the '''“WCAT”''').  It is intended to assist in working on cases and appeals arising from Board decisions made under the WCA.  The vast majority of these cases involve Board decisions denying injured and disabled workers particular compensation benefits.  This is not surprising given that Board policies are often complex and that about 100,000 compensation claims are filed by injured workers every year, with about half of these claims involving a serious injury or disability.
+#2 The statements contained under the heading “Policy” in the ''Prevention Manual'' – these policies relate to Part 2: Occupational Health and Safety of the WCA [Former Act, Part 3]; and
+#3 The Rehabilitation Services & Claims Manual Volume I and II (the '''“RSCM I”''' and the '''“RSCM II”''') (other than explanatory material and the headings “Background” and “Practice”) – these policies relate to Part 3: Workers’ Compensation System and Part 4: Compensation to Injured Workers and their Dependants of the WCA [Former Act,  Part 1];
+All legislation and Board policies are available on the Board website at [http://www.worksafebc.com worksafebc.com]
-Therefore, the primary focus of this material is on compensation matters which may be at issue in Board cases.  Assessment and Occupational Health & Safety issues are addressed briefly at the end of the chapter.  The Appendices provide information for referrals, community resources, and helpful links for finding law and policy.  In particular, the WCA requires the Board, through its Accident Fund, to support the Employer’s Advisors Office and the Worker’s Advisors Office, which can provide employers and workers with free legal assistance.  However, the extent of the assistance provided by these Advisors changes from time to time and between locations.
+In practice, Board policy confines, or attempts to confine, the nature of relevant evidence and provides 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.
+This manual focuses on claims compensation issues. As such, the most important policy documents for the purposes of this manual are the RSCM I and the RSCM II. The current RSCM I and RSCM II are available at www.worksafebc.com 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.  The RSCM I applies to claims initiated before June 30, 2002 and the RSCM II applies 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 relevant chapters and policies.
+Board policies change from time to time.  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. It is important to ensure you have found the version of an applicable policy as it read at the time a particular decision was made.
+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. See section 304 of the WCA [Former Act, s. 251].
+== C. Binding Policy: Standard of Proof and Evidence ==
+Section 339 (2) and (3) of the WCA require that the Board “make its decision based on the merits and justice of the case, but in doing this the Board must apply the policies of the board of directors that are applicable in that case” and “if the Board is making a decision respecting the compensation or rehabilitation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the Board must resolve that issue in a manner that favours the worker”.  This means that in WCB cases there is a unique standard of proof. Where a case is 50-50, it should be resolved in favour of the worker (an “as likely as not” standard).  This is less than the standard of proof used in civil claims. The civil standard is on a balance of probabilities (“more likely than not” or 50% +1).
+In practice, Board policy confines, or attempts to confine, the nature of relevant evidence and provides 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.
+== D. Non-Binding Guidance ==
+Both WCB and WCAT provide useful interpretive guides that combine policy, important decisions, and best practices.  WCB issues Practice Directives 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 [http://www.worksafebc.com worksafebc.com] under the title “Compensation Practice Directives and Reference Guides”.
+The Review Division Practices and Procedures manual (the '''“RDPP”''') is an important document to review when dealing with a review of a Board decision. While the RDPP is not binding, it outlines standards and practices for the Review Division that may not be obvious on a reading of the relevant sections of the WCA.
+WCAT’s guidelines are published in the ''Manual of Rules, Policy and Procedures'' (the '''“MRPP”'''), available on the WCAT website at www.wcat.bc.ca.
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