I've Been Cut off Workers' Compensation Benefits

The Workers' Compensation Board (the WCB, also known as WorkSafeBC) pays benefits to people who have an injury or disease caused by their work. The WCB also pays benefits to dependents of a worker who has been killed on the job or died due to an occupational disease.

Workers' compensation is a no fault insurance scheme. If you have been injured at work, you will not be allowed to sue your employer or any other worker who may have caused the injury. Your only recourse is to make a workers' compensation claim. That makes it very important that you report your injury to your employer and the WCB as soon as possible after it occurs, and that you and your doctor give the WCB the information it needs about your condition and prospects for recovery.

In making your WCB claim, it is important not to overlook matters that may not seem serious at the time. For example, if you tell the WCB that you fell and hurt your back, and later realize that you also twisted your knee, it may be harder to persuade them to accept the knee condition. If that happens, you should appeal.

Initially, the WCB pays benefits equal to 90% of the net (take home) wages you were earning at the time of injury. After ten weeks the benefits will be based on your long term average earnings. If your benefits drop significantly at this point, you should consider an appeal.

When the WCB decides that you have recovered, your benefits will cease. If you and/or your doctor do not agree that you are ready to go back to work, you should appeal. The WCB will also terminate your benefits if they feel that your condition has stabilized and become permanent. If you or your doctor disagree, you should appeal.

Workers who have a permanent disability are entitled to a total or partial pension, payable until age 65. The amount of the pension will almost always be based on a comparison of your disability to a totally disabled worker. Under this approach, a worker with a back injury might be considered only 10% disabled, which means the pension benefits would be only 10% as much as the WCB was paying before the condition became permanent. If you feel that your disability is more serious than the WCB acknowledges, you should appeal.

If you have a permanent disability and have not been able to return to work, you may be entitled to a loss of earnings pension, which will be based on the actual difference between what you were earning before the injury, and what you are earning or could earn afterward. If the WCB refuses to pay you on that basis, or decides that you could be earning more than you are, you should appeal.

Permanently disabled workers (and sometimes others) may be entitled to vocational rehabilitation assistance, which supports them while they search for a new job or learn a new occupation because their injury prevents them from safely returning to their old one. If you feel that you need such assistance, and the Board refuses to provide it, you should appeal.

The WCB also pays all medical and related costs of an injury or disease. That includes your hospital and doctor's bills, medication, physiotherapy, nursing services, etc. For workers with serious disabilities, the WCB may be responsible for the cost of artificial limbs, a wheelchair or scooter, modifications to a home or vehicle, assistance with daily living, and home maintenance. If the WCB refuses to pay for any such expenses that are needed because of the injury, you should appeal.

If you are off work for a significant period of time, you will receive many letters from WorkSafeBC. Read these carefully, because each one could be a decision denying or limiting benefits. If in doubt, get legal advice, and if there is something in the letter that you don't agree with, challenge it. If you fail to request a review of a decision within the 90 day time limit, you may lose any chance of changing it, no matter how unfair it is.

First steps

1. The first stage of the appeal process is to request a review by the WCB's Review Division. You can get the "Request for Review" form:
   • by phone at 1-888-855-2477, or
   • online from the WorkSafeBC website.
2. Complete the Request for Review form and submit it to the Review Division within 90 days of the date that the WCB decision or order was made. The address is on the form.

What happens next

WCB Review Division

You will receive a complete copy of your WCB file, including all documents the Board has about your claim. Review it carefully to better understand why the Board made the decision you are appealing, so that you can explain to the Review Division why it is wrong.

If your review involves a medical issue, such as whether you are able to return to work, ask your doctor to write to the Board. Most successful reviews are based on new medical evidence.

Your review may also involve a policy issue. The WCB's policy manual, which is nearly 800 pages long, has the force of law, and there are detailed policies about almost every aspect of the claims process. You can read or download the "Rehabilitation Services and Claims Manual" from the WCB's website.

The Review Officer will give you a deadline for sending in any new information or arguments. If you need more time, ask for it. Make sure that you tell the Review Officer about any wrong information in the file, whether it's from a WCB doctor, your employer, or anyone else, and that you explain why the Board's decision was wrong.

The Review Division usually decides the review within six months.

There are several options for seeking legal help on a WCB claim review. The Workers' Advisers Office (WAO) provides free, expert advice and occasionally representation to any worker who requests it. Contact them immediately, as you may have to wait for an appointment. Most unions also provide free, expert help to their injured members. If you belong to a union, tell them about the injury immediately. There are also community organizations that do WCB cases, and there are private lawyers and non-lawyer advocates who are experts in WCB matters.

Workers' Compensation Appeal Tribunal (WCAT)

If you don't like the Review Division's decision, you can appeal it to the Workers' Compensation Appeal Tribunal (WCAT). You must appeal within 30 days after the date of the Review Division decision.

The WCAT conducts appeals by rehearing them, which means that it considers all the evidence in the file and given to it by the parties, and then makes its own findings of fact and law. You should ask for an oral hearing, so that you can explain your case to the WCAT vice-chair in person.

The WCAT is the final level of appeal, and its decisions can only be challenged in a judicial review proceeding in the Supreme Court of BC. The WCAT can, however, reconsider its own decisions on the basis of new evidence that couldn't have been presented at the first appeal, or because the first decision was based on a serious legal error.

Where to get help

See the Resource Guide for a list of helpful resources. Your best bets are:

• Workers' Advisers.
• PovNet.
• Access Pro Bono, Lawyer Referral Service, Salvation Army Pro Bono Lawyer Consultation Program, and Private Bar Lawyers.
• Community Legal Assistance Society.
• Law Students Legal Advice Program, and the chapter of their LSLAP Manual on "Workers' Compensation".
• The WCB's website at www.worksafebc.com has a lot of information about workers' compensation, including its policy manuals, practice directives, past decisions of the Review Division, and all the forms needed to pursue a claim.
• The WCAT website at www.wcat.bc.ca also has a great deal of useful information, including its procedure manual and a searchable collection of its past decisions.

Before meeting with a lawyer or advocate, complete the form Preparing for Your Interview included in this Guide. Make sure you bring copies of all documents relating to your case.

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