| Text Size |  |
 |
 |
|
Alerts - August 24, 2005
Board of Directors Decision - decision issued on the chair's section 251 referral regarding lawfulness of Board policy on recurrence of disability.
On August 11, 2005 the board of directors of the Workers Compensation Board (Board) issued their decision on the chair’s section 251 referral regarding lawfulness of Board policy on recurrence of disability.
The board of directors have concluded that policy item #1.03(b) (4) is supported by the Workers Compensation Act (Act) and it is not patently unreasonable.
In summary, the board of directors reason that the most plausible interpretation of section 35.1(8) is that “recurrence” includes changes in the extent of permanent partial disabilities as well as repeats of temporary total or partial disabilities. This interpretation
- is consonant with the interpretation of the word “recurrence” in compensation and insurance legislation and cases,
- eliminates inconsistent treatment of workers and differential calculation of benefits,
- is consonant with the balance of section 35.1 and
- is reflective of an apparent legislative intention to transfer new events on old claims into the amended Act as a transitional objective.
The board of directors considers that, given the overall scheme of the
Act, the privative clause and the patent unreasonableness standard of
review, they have a great deal of latitude in formulating policies that
are best-suited to fulfilling the purposes and objectives of the Act so
that the workers’ compensation system operates in a manner in which
the legislature intended. They referred to the (then) Minister of Labour’s
extensive comments in his second reading speech on Bill 49 (Hansard, May
16, 2002,
Volume 8, No. 3, pp. 3546-7) explaining that the goals of the amendments
were to ensure sufficient and stable financial resources are available
to secure, over the long run, benefit payments to injured workers. The
future fiscal sustainability of the system is an important and overriding
goal. The board of directors noted the Minister’s comments at p.
3548 that existing benefits would not be reduced. They concluded that
it is fair to characterize another important objective of the Act as that
of preserving existing benefits but changing the methods of calculating
benefits awarded after the legislation was enacted.
Given this determination, WCAT cannot refuse to apply the policy on the basis that it is patently unreasonable. The board of directors referred the matter back to WCAT to apply the policy.
