Alerts - April 07, 2005

Chair’s Decision – Referral for Lawfulness of Workers' Compensation Board (WCB) Policy on Recurrence of Disability

Jill Callan, Chair of the Workers' Compensation Appeal Tribunal (WCAT), has determined that policy item #1.00(4) (now 1.03(b)(4)) of the Rehabilitation Services and Claims Manual, Volumes I and II is so patently unreasonable that it is not capable of being supported by the Workers Compensation Act (Act).

The policy affects workers who were awarded permanent disability awards under the former provisions and whose claims were reopened after June 30, 2002 for a permanent deterioration in their permanent disability. The policy defines this as a recurrence of disability and any increased permanent disability award is made under the current provisions of the Act.

In her decision, the chair finds that the impugned policy cannot be rationally supported by section 35.1(8) of the Act. She bases her conclusion largely on her analysis of the ordinary meaning of “recur”. She finds it patently unreasonable to characterize a reopening of a claim for “any permanent changes in the nature and degree of a worker’s permanent disability” as a “recurrence”. The chair concludes that such entitlement should be adjudicated under the former provisions of the Act.

The full decision may be viewed here.

Section 251of the Act sets out the procedure to be followed from this juncture. The chair must send a notice of this determination, together with written reasons, to the board of directors of the WCB. All other WCAT appeals that are affected by the same policy must also be suspended. Within 90 days of receiving written notice, the board of directors must review the policy and decide whether WCAT may refuse to apply it. The board of directors must give the parties to the appeal referred to the chair, as well as the parties to all affected appeals, an opportunity to make written submissions. WCAT is bound by the ultimate determination of the board of directors.

Before sending written notice to the board of directors, WCAT must identify all pending appeals affected by the chair’s determination. If you are an appellant, respondent, or representative on an appeal where a worker was granted a permanent disability award under the former provisions, his/her condition has deteriorated, and the WCB has adjudicated his/her request for additional permanent disability award entitlement under the current provisions, please contact Lisa Wong, legal counsel, at 604-664-7800 or toll free within BC at 1-800-663-2782 by Friday, April 29, 2005. (posted April 7/05)