Workers’ Compensation Act (Act)
- Workers' Compensation Law. Workers compensation law in British Columbia is set by the Workers Compensation Act (Act) and its related regulations. WorkSafeBC administers the Act for the Ministry of Labour.
- The WCAT website under Resources/Legal Resources.
- BC Laws
The Workers’ Compensation Act is the legislation which creates the Workers’ Compensation Board of British Columbia (“Board”) and mandates how the Board operates the B.C. compensation system. Today, the Board brands itself as “WorkSafeBC”, although legally, it is still the Workers’ Compensation Board (WCB).
In B.C., the Board with powers and responsibilities in 3 areas:
- Compensation = Claims by injured workers [Part 4 of the Act]
- Prevention = Health & Safety [Part 2 of the Act]
- Assessment = Insurance [Part 5 of the Act]
Since 2018, the NDP government has made several amendments (improvements) to the compensation part of the Act. These include:
- Adding provisions for the presumption of work causation for certain occupations.
- Effective July 23, 2018, Bill 9 added a presumption of work causation for mental disorders (especially PTSD) for workers employed in a variety of first responder occupations including corrections officers, paramedics, firefighters, police officers and others [see list in section 135]
- Effective May 16, 2019, Bill 18 extended a presumption of work causation for certain kinds of cancer, heart injury & mental disorder to wildland firefighters, fire investigators & First Nations firefighters. Previously, the presumption applied only to regular firefighters.
- Adding improvements through Bill 23 in 2020, including the following which became effective January 1, 2021.
- Bill 23 restored the “loss of earnings” method of measuring permanent disability and changed the calculation of “age of retirement”.
- Bill 23 restored WCAT jurisdiction over the Human Rights Code and the Charter.
- Bill 23 raised the maximum rate to $100,000 (from $87,000).
Compensation policy (RSCM)
Compensation policy in the Rehabilitation Service and Claims Manual(RSCM) is divided by the date that the radical change to the Act took effect on June 30, 2002.
- Injuries which occurred on or after June 30, 2002, are adjudicated under the current Act and Rehabilitation Services and Claims Manual, Volume 2 (RSCM II).
- Injuries which occurred before this date are adjudicated under the Former Act and Rehabilitation Services and Claims Manual, Volume 1 (RSCM I).
Both RSCM I and II are available on the Board website. A detailed discussion of the relationship between RSCM I and RSCM II set out in Practice Directive C1-1 “Effective Dates and Transition Rules”. This Practice Directive is especially helpful for long-term compensation cases. For example, when an “Old World” injury (one that occurred before June 30, 2002) is reopened after June 30, 2002, any period of temporary disability is adjudicated under the current provisions & RSCM II but any change in the worker’s permanent conditions or benefits is addressed under the Former Act and RSCM I.
Some things to know about compensation policy after 2002:
- Policy is now Binding on all decision-makers: The 2002 changes made Board policy binding on all decision-makers and the courts have found compensation policy has the legal status of regulation.(Prior to this, policy was discretionary and its application depended on circumstances). The 2002 legislation also changed the appeal system and terminated the Appeal Division (1992-2003) with its wide, remedial and supervisory jurisdiction. The new appeal body - the Workers Compensation Appeal Tribunal (WCAT) has jurisdiction which is limited to matters addressed in Board decisions and is also bound by Board policy.
- The Table of Contents for RSCM - provides a quick reference guide to the subject matter addressed by particular Board policies, organized by Chapters (e.g. Chapter 3 is for Personal Injuries, Chapter 4 is for Occupational Diseases, Chapter 6 is for Permanent Disability Benefits, etc.). There is virtually a policy for every compensation issue.
- Policies are important. Although decision letters may not identify or correctly use the applicable policies, all compensation policies are applicable to all decisions and appeals, even if they are not mentioned in the appealed decision.
- WCB Policy Development and Effective Dates: Board policy is developed by Policy Division through a formal policy consultation process. Each revised or new policy is published in the RSCM with the date on which that version of the policy becomes effective. The “effective date” is listed at the end of each policy in the RSCM.
Policies can & do change frequently. You can access past versions of a policy through the Claims Policy Archives – a tab under the “Compensation Policy” section of the WCB web-site.
There is also public access to past and current Policy consultations. Each active Policy consultation begins with a Board “Discussion Paper”, which summarizes the state of the particular area of compensation policy and practice. These Policy Discussion Papers can provide a helpful background to a policy area and are available in the “Law and Policy/Public Hearings & Consultations” section of the WCB website. Aside from the few current policy discussions, past Policy Discussion Papers are available at https://www.worksafebc.com/en/law-policy/public-hearings-consultations/closed-public-hearings-and-consultations.
Additional summaries of some compensation policies and appeal topics can be found in:
- Workers Advisors Fact Sheets by Subject
- UBC Law Students Legal Advice Program Manual – WCB Chapter
- Resource and course materials from Harrison O’Leary at https://www.harrisonoleary.com/resources.
WCB Practice Directives (PD)
- In addition to policy, the Board publishes approximately 50 Practice Directives (PDs), to provide additional guidance to particular RSCM policies. For example, there are PDs for Chronic Pain (C3-1) and ASTDs (C4-2), among others. PDs are not binding and are developed by the Board to provide decision-makers with additional guidance for making decisions. The PDs are listed and available on the Board web-site, under Law & Policy/Compensation & Rehabilitation tab - https://www.worksafebc.com/en/law-policy/claims-rehabilitation/practice-directives.
- PDs are separate from policy and on occasion, are inconsistent with policy. When this is commented on by a WCAT panel, this can result in a change to the PD.
- Although PDs are non-binding, they are operationally powerful. A number of WCAT decisions discuss the degree of deference to be given PDs, including NW WCAT 2007-01737. However, WCAT panels can and do decline to follow PD in the special circumstances of the case. It is helpful to know when a PD is applicable to your case or appeal.
- Some PDs have hardly changed over 19 years. Others change very frequently.
The WCAT website has helpful plain English material about how to appeal a decision and check on an appeal and links to the relevant forms ( notice of appeal, participation, authorizations, application forms, etc.) It also has powerful research potential. Here is a brief outline of what is available.
The “Search decisions” TAB
- Several times a year, WCAT identifies Noteworthy (NW) WCAT Decisions and updates the NW Decision list, located at the end of the second paragraph in WCAT’s “Search decisions” tab. The List first sets out the subject matter categories (e.g. chronic pain) and then provides a headnote for each NW decision, together with a hyperlink to the full NW decision and its summary. Noteworthy decisions are often carefully considered by WCAT panels, although they are not binding.
- The WCAT search engine has options to define a search by key words, dates, occupations, etc.. The searches can also be restricted to certain types of appeals or decisions, including NW decisions.
- The “Resources” TAB. This tab includes the following sections and links:
- Past Decisions about Appeals
- Judicial Review by courts, of WCAT decisions (with helpful summaries as well as links to the court decision) – organized by year
- Lawfulness of policy decisions by WCAT Chair – links and summaries
- Decisions of Interest (court decisions about admin law or WCB issues)
- Links to relevant legislation (Act, ATA, Charter, etc.) and regulations
- Link to Legislative Assembly (Bills with Hansard Debates, webcasts, etc.)
- Links to Libraries
- Links to Information about Judicial Procedures (Courts)
- WCAT Manual of Rules of Practice and Procedure (MRPP)
- Medical Resources. This tab has many very helpful links to different medical websites, medical and research bodies and medical publications and journals.
- Certificate to Court (with forms & guidelines to supplement Chapter 18, MRPP)
The WCAT Resources tab also has helpful links to particular on-line resources available through WorkSafeBC website, such as diagnostic codes for medical conditions (ICD-9) and selected Info Sheets, including how an Indigenous person can work with a Navigator during a WCAT appeal.
WCAT Manual of Rules of Practices and Procedures (MRPP)
WCAT is authorized to control its processes but it must publish its rules and practice directives. WCAT’s Manual of Rules of Practices and Procedures (MRPP) sets out these rules and PDs and the legal distinction between the two.
- Rules of practice and procedure are binding – that is, WCAT must follow them and waive or modify them only in exceptional circumstances. In the MRPP, the rules are in bold and are set out in Appendix 2 of the MRPP.
- Practice Directives are not binding but WCAT will usually follow them. There are also Guidelines. The Practice Directives are in italics are set out in Appendix 3 of the MRPP.
Structure of WCAT
In an appeal, it is helpful to know the role of the WCAT Registry in an appeal (Chapter 2, MRPP). The Registrar’s Office is under the direction of the Registrar, Deputy Registrars and appeal officers. Prior to an appeal being assigned to a Vice-Chair (VC), most procedural, preliminary and summary decisions are made by Registry officers, although once an appeal is assigned, the VC will hear and determine any further preliminary matters and may also change preliminary decisions made by an officer. The officers include:
Senior Registry Officer – who is authorized to:
- Consolidate appeals
- Decide to suspend or continue appeal an appeal pending a related Board decision
- Extend the statutory time frame for the submission of new evidence up to 45 days
Assessment Officers – who are authorized to:
- determine if the appeal application requirements are met and make provisional decisions on these matters (see Chapter 7, MRPP – Preliminary Processes)
- determine who may bring an appeal (standing of the parties – Chapter 4, MRPP)
- determine the appropriate appeal method (oral hearing (OH), written submission, specialty stream)
- consolidate related matters and suspend or extend time (as above).
Appeal Coordinators – who
- The primary liaisons between WCAT and the parties
- Manage caseloads and ensure timelines are met
- Suspend or extend timelines (as above)
WCAT basics in the MRPP
The MRPP lists what decisions may not be appealed to WCAT and has helpful details about other issues of jurisdiction, evidence and appeal expenses. For example:
- WCAT may address any matter which is considered in the Board decision OR in the RD decision;The panel will normally not address issues not expressly raised by the parties, but has the discretion to do so. The panel will give the parties notice if it intends to address an issue not raised in the notice of appeal (NOA) or in the written submissions, with the exception of permanent disability awards – for these, the panel may address any aspect of the award without notice to the parties.
- Termination of WL benefits – the panel may address any aspect of this decision, including whether the worker can RTW.
- Personal Injury (PI) or Occupational Disease (OD). The MRPP now states that where a claim is adjudicated as one of these and the panel concludes it should have been addressed as the other, the panel may address the issue if no further evidence is required and there are no procedural fairness concerns.
- Panels may decide an issue in a way that adversely affects an appellant.
Section 3.2 of the MRPP sets out matters which are NOT appealable to WCAT. This includes:
A class of RD decisions about the conduct of a Review, including
- Granting or denying an EOT to appeal to the RD;
- A decision by the Chief Review Officer to extend the time or suspend a review; and
- A decision to refer a decision back to the Board under section 272(9)(b) For compensation, this primarily affects a decision whether or not to re-open a claim.
Certain substantive matters which are not appealable to WCAT.
- Decisions about vocational rehabilitation [s. 155, s. 288(2) of the Act];
- PFI decisions involving the application of the rating schedule and the specified percentage has no range or a range less than 5%; and
- Decisions about commutations.
- A class of RD decisions about the conduct of a Review, including
- Appeal Expenses - A Workers Compensation Act Appeal Regulation authorizes WCAT to reimburse appeal costs in very limited circumstances, and to reimburse parties for their appeal expenses. WCAT’s rules and practices for reimbursing costs and appeal expenses are set out in Chapter 16, MRPP and the Regulation itself is set out in Appendix 4, MRPP. (This is an area often covered in the training session, as it is important to workers and unions in appeal work.)
- Workers may now raise challenge Board policy or challenge Board policies or practices under the Charter or the Human Rights Code. The process for raising these issues at WCAT are found in the MRPP in chapter 3.
Do you like this page?