Alerts - December 14, 2005

Chair’s Decision – Referral for Lawfulness of Workers' Compensation Board (Board) Policy on Chronic Pain

Jill Callan, Chair of the WCAT, has determined that policy item #39.01 of the Rehabilitation Services and Claims Manual, Volume I (RSCM I) is not patently unreasonable and is capable of being supported by the Workers Compensation Act (Act).

The policy provides that all workers who meet the threshold criteria for a permanent disability award for chronic pain will be awarded a functional impairment award of 2.5% of total disability. The policy was referred to the chair because, by prescribing that all chronic pain awards must be 2.5% of total, it fetters the discretion of decision‑makers who are granting awards for chronic pain under former section 23 of the Act.

In her decision the chair finds that the impugned policy takes the degree or extent of injury into account by establishing the threshold criteria for a worker becoming eligible for a chronic pain award.
Section 23(1) has a long history of being viewed as establishing a method for determining impairment of earning capacity based on averages rather than the circumstances of individual workers, which is justified on the basis of presumed loss of earning capacity. The broad discretion granted under section 23(3) of the Act and the related policies in RSCM I enable decision-makers to apply the projected loss of earnings method when the 2.5% award does not adequately compensate the worker for his or her impairment of earning capacity. In light of the long established approach to the application of section 23(1), coupled with the broad discretion granted by section 23(3), the impugned policy is not patently unreasonable under the Act. (posted Dec 14\05)

The full decision may be viewed by clicking on this link.