Workers Compensation Appeals Process in British Columbia

PURPOSE AND JURISDICTION OF TRIBUNAL

Federal government employees injured on the job receive benefits from the Government Employees’ Compensation Act (GECA) which is administered by the Labor Program of Human Resources and Social Development Canada (HRSDC). The government uses services already available through provincial workers’ compensation boards instead of establishing its own system for compensation and treatment. The government reimburses the provincial boards for the cost of the compensation issued to the employee of concern – there is no cost to the employee. The purpose of this tribunal is to provide benefits to injured federal employees in the form of compensation for loss of earnings; medical, hospital and related services; rehabilitation services; and/or lump sum payment or pension if permanently disabled. The GECA covers all employees of the federal government and most Crown agencies.

Employees who serve abroad are also covered; either by a local compensation plan that the employing department contributes to or, if there are no such arrangements, they will be deemed to be employed in the province of Ontario. Federal offenders are covered if they are disabled or if an existing disability is aggravated as a result of an injury that occurred while participating in an approved program of Correctional Service Canada. The GECA also covers dependents of federal public servants who were killed on the job or died due to an occupational disease. Members of the regular force of the Canadian Forces or the Royal Canadian Mounted Police are not covered by the Act. Individuals performing a service on a fee or contract basis are also excluded from coverage under the GECA.

TYPICAL FACT PATTERN

Case: The falling of workplace boxes injures workers foot;
Employer: Human Resources Social Development Canada;
Employee: Kathy Bryan

Scenario: The Human Resources and Social Development Canada building relocated to another site on December, 2009 to a location at 123 Granville in downtown Vancouver. Employees of the building were required to put their belongings into a box and leave their box for the moving service to pick up and deliver to the new location. On the same day, Kathy returns to work from vacation not knowing that there will be boxes in the work area. On this day Kathy decided to wear open toed shoes, fully knowing that she is not allowed to wear open toed shoes; as this is an established standard covered under the policy created by the Occupational health and Safety Committee; however, employees continue to wear sandals and other open toed shoes without any disciplinary action from management. Since the weather was nice and sunny she wanted to take the risk of wearing sandals. In the middle of the day around 11:00 am she gets up from her desk to photocopy a document for a client. As she approaches the photocopy machine she accidentally bumps a box and it falls on her foot. Her foot gets injured to the point where she cannot walk and cannot resume her work for a week.

MAKING AN APPLICATION FOR A REMEDY

When a federal employee gets injured on the job, a number of steps must be taken in order to apply for a remedy. In our scenario, Kathy must follow these ensuing steps: It is Kathy’s responsibility to seek medical attention and notify her immediate supervisor as soon as possible. She will then visit a doctor of her choosing and have the doctor fill out a report (or a form 8 – Physician’s Report) stating the description of the injury. The doctor’s report is then sent off to HRSDC. The employer will then complete and process an employers report for compensation purposes stating the employee’s description of the accident and the employer’s own comments. The employers report (form 7) is then sent off to HRSDC for processing. Because there was no third party involved, HRSDC will countersign the forms 7 and 8 and will send them to WCB for adjudication.

Any compensation provided to the injured employee from WCB will be reimbursed by HRSDC + a 22% administration fee for adjudicating. WCB will then get Kathy to fill out a form 6. Once WCB receives the three forms (6, 7, and 8), they determine if there is time loss or not. If there is time loss, the claim is assigned to a specific claims officer for adjudication. This process can take a couple weeks. The decisions are based on the evidence, the application of the Workers Compensation Act, and WorkSafeBC policy. In this case there was time loss of a week. If time is lost and the claim is accepted, the claims officer then determines if the worker was at work at the time of the injury. If so, the claim will be accepted. If it is accepted, the employer has the right to appeal the decision. In this case it did happen at work. If the claim is not accepted, the worker has the right to appeal the decision.

OPPOSING AN APPLICATION

There are numerous other decisions made on the claim: the rate at which benefits will be paid out; the duration of benefits; or if the employer believes that Kathy does not deserve to be compensated for her injury. The cost of the claim can affect the employer’s premiums and the premiums of the employer’s industry, so the employer may want to appeal the decision. In order to do so, the employer must take the following steps: Request an official decision letter which details why the decision was made. The employer then has 90 days after receiving the decision letter to file for a review to the Review Division of WorkSafeBC. To do this, the employer must fill out a request for review. The claim then goes to the review division where a decision is usually made within 150 days. If the review concerns prevention orders, vocational rehabilitation benefits, the commutation of a pension, or certain pension rewards, the Review Department’s decision is final and cannot be appealed. In other cases their decision can be appealed to the Workers’ Compensation Appeal Tribunal (WCAT).

If the employer is still not happy with the decision, the employer will have 30 days to appeal to the highest level of appeal, called the Workers Compensation Appeal Tribunal (WCAT) to hear the case. A notice of appeal will have to be completed and sent to WCAT. WCAT will provide their final decision within 180 days of the appeal. The Employer may also wish to dispute the assessment decision. In order to do so, the employer may ask to have the assessment decision clarified by the Assessment Department. If additional information comes to light, the department may reconsider its decision within 75 days of the date of the decision. The appeal process is the same as outlined above. It is advised that the employer and the worker keep all related documents for reference in the future.

PARTICIPATING IN THE HEARING

All hearings are held at the WCB head office in Richmond, BC and are scheduled at the convenience of the Tribunal. Each party that is required to be present at the hearing is provided with a 14 day period to put their request for a change of date to the Tribunal. If no changes are received, the hearing will be conducted on the date scheduled. If a change is received, the party making the request must provide an exceptional circumstance that requires a postponement of the hearing. Hearings will be recorded by the Review Division and will be deemed as the official record for the hearing.

Once the final decision has been made, the recording becomes part of the Tribunal’s file and stored. All written material to be presented during the case before the Tribunal must be provided before the hearing commences. In addition, the Tribunal is able to subpoena witnesses to the hearing and to compel them to produce evidence they may have that relates to the case at hand. If a witness is not able to attend the hearing, they will be requested to make a deposition before a person appointed to the board. Witnesses are excluded from the hearing room until the time they are required to give their testimony. These individuals then may be permitted to remain in the hearing room during the remainder of the hearing. Within special circumstances, a witness may be allowed to be in the room during the entire course of the hearing. These hearings are also closed to the public; although upon the agreement of all parties involved, a person may be permitted to silently watch the hearing.

Expert witness may also be called upon to be part of the hearing. WCAT has put forward a set of rules in relation to expert witnesses and the hearing process. The hearing will be conducted in the following manner: The injured employee will be given the opportunity to make an opening statement, followed by the respondent. The injured employee can then put forward their case and provide any witnesses brought to the hearing. Likewise the respondent follows. Each party then is provided with the opportunity to make a closing statement, the employee begins. Once the respondent has made their closing statement, each party in turn is allowed to make one final response to what has been said. The Tribunal then makes the final ruling. When a hearing cannot be completed during the time scheduled, it may be adjourned and resumed at a later date at the discretion of a Review Officer, or an alternative method for completing the review will be put forth.

SCOPE AND NATURE OF THE DECISION AND REMEDIES AVAILABLE

Although regulations state open toe shoes are not allowed, management had condoned the previous wearing of such shoes in the past, so it was decided in favor of Ms Bryan for compensation. In Pamphlet 2A, Section 1, it sets out the duties of the employer under Part II of the Canada Labor Code. The employer, by allowing the wearing of open toed shoes and sandals did not fulfill their obligation to ensure the safety of every person employed in their facility. The employer failed to comply with the standards set out in the Canada Occupational Health and Safety Regulations by condoning the behavior. In addition, the employer, having advance knowledge of the upcoming move, should have notified Kathy either prior to her vacation or before she returned to work that there would be boxes in the work area and that activity not usual to the workplace would be occurring.

Although Kathy Bryan has a responsibility to take all reasonable and necessary precautions to ensure her health and safety, it was decided that, because she had no knowledge that the boxes in the workplace would be there, it is not considered reasonable that she would take precautions for this event. The fault is with the employer for not enforcing safety standards. The remedies available to Kathy Bryan include: the loss of earnings for the week that she was unable to resume her duties due to the injury sustained by her foot; any medical and hospital fees incurred while having her foot medically examined; and fully compensated for the costs of any rehabilitation services employed to regain the full use of her injured foot.

To visit the British Columbia’s Workers Compensation Appeal Tribunal website, click on the link provided below.

http://www.wcat.bc.ca/

Greg Procknow has been working in leadership roles for the last five years. Greg is currently working for Kwantlen Polytechnic University, and works extensively with the Canadian Cancer Society.