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. (Posted 2013/05/24)
Updated Alert - Section 251 Determination of the Board of Directors: Interest Policy Item #50.00 of the Rehabilitation Services and Claims Manual (RSCM) not patently unreasonable
– In WCAT-2012-01017 and WCAT-2012-01018 the WCAT Chair determined that the requirement in policy item #50.00 for “a blatant Board error” to qualify for the payment of interest on retroactive compensation is so patently unreasonable that it is not capable of being supported by the Workers Compensation Act
(Act) and its regulations.(see Archived Alert posted April 19, 2012
As required by section 251 of the Act, the WCAT chair forwarded this determination to the board of directors of the Workers’ Compensation Board (Board), for them to review the policy and decide whether WCAT may refuse to apply it.
On July 17, 2012 the board of directors issued their determination under section 251(6) of the Act. They determined that RSCM policy item #50.00 regarding the payment of interest is not patently unreasonable and that WCAT must apply it. WCAT is bound by that determination as a result of section 251(8) of the Act.
You can find a copy of the board of directors’ determination here.
WCAT is aware that a judicial review petition has now been filed in respect of the board of directors’ determination. In addition, the Board has issued a Discussion Paper dated August 7, 2012 titled “Interest on Compensation.” You can find the Discussion Paper on the Board’s website here.
WCAT has now reactivated the appeals that were suspended pending the board of directors’ determination on this section 251 referral. Parties to those appeals can expect to receive a letter shortly from WCAT advising them of the reactivation and the further processing of their appeal. (Originally posted 2012/07/18. Update posted 2012/08/09).
Update - The lawfulness of policy item #50.00 is no longer before the B. C. Supreme Court: Lockyer-Kash v. Workers’ Compensation Board, 2013 BCSC 467. That proceeding has come to an end without the court considering the lawfulness of the policy. The decision has been appealed to the B.C. Court of Appeal. (Revised update April 24, 2013.)