Introduction to Workers' Compensation (7:I)

This chapter covers basic legislation, policy and procedures associated with appeals under Workers’ Compensation Act, RSBC l996, c 492.

The Workers’ Compensation Act [WCA] is a provincial statute creating a regulatory body called the Workers Compensation Board of B.C. Since 2003, this body works under the name of “WorkSafe B.C.” and is hereinafter referred to as “the Board”. The Board has three primary functions:

Compensation for Injured Workers: The WCA creates a mandatory system of no fault insurance to compensate workers who suffer a personal injury or an occupational disease (OccD) as a result of their work. The WCA grants exclusive jurisdiction to the Board over these matters and at the same time bars any legal action by an injured worker against another worker or B.C. employer for any matter related to this injury [section 10 of the WCA].

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 III of the WCA and in the Occupational Health & Safety 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.

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.

A. Scope of This Section

This section is to assist students working on cases and appeals arising from Board decisions made under the WCA. The vast majority of appeals involve Board decisions denying injured and disabled workers particular compensation benefits. This is not surprising given the nature and scope of the Board’s current mandate and the fact 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.

Therefore, the primary focus of this material is on Compensation matters which may be at issue in appeals. Assessment and OH&S issues are also addressed but in separate sections at the end of the chapter. There are also Appendices with information for referrals and community resources. In particular, the WCA requires the Board, through its Accident Fund, to support the Employers Advisors and Workers Advisors who 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.

B. Governing 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. Subsequently, the courts determined that the effect of these provisions is to give Board policy a legal status equivalent to subordinate legislation.

Relevant Board policy for compensation matters is set out in the Rehabilitation Services and Claims Manual [RSCM]. Volume I applies to claims initiated before June 30, 2002 [RSCM I] and Volume II applicable to any claims initiated after June 30, 2002. [RSCM, II]. The Board also publishes binding policy for Assessments. OH&S matters are primarily dealt with through the OH&S Regulation, although there is also a Prevention Manual.

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 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.

C. 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”.

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.

As noted above, compensation policy is set out in the Rehabilitation Services and Claims Manual, Volume II [RSCM II]. The current RSCM II is available at http://www.worksafebc.com under the “Regulation and Policy” tab, which produces a choice of “Published Policy” and “Practices”. RSCM is under the policy choice with an option of Volume I (for injuries occurring before June 30, 2002) and Volume II (for injuries after this date). Under the “Practice” menu, there is also an RSCM link which will take you to non-binding compensation guidelines, including Practice Directives (PDs) which correspond with particular RSCM II policies.

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).

© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.