Alerts - September 02, 2005

Chair’s Decision – Referral for Lawfulness of Workers Compensation Board (WCB) Policy on Entitlement to Dependents’ Benefits

Jill Callan, Chair of the Workers Compensation Appeals Tribunal (WCAT), has determined that policy item #55.40 of the Rehabilitation Services and Claims Manual, Volume I is so patently unreasonable that it is not capable of being supported by the Workers Compensation Act (Act).

The policy provides that section 17(9) of the Act applies where there is no spouse eligible to claim benefits, but a claim is made by children of the deceased worker who were living separate and apart from the worker.

In her decision the chair finds that the impugned policy cannot be rationally supported by section 17(9) of the Act. She concludes that section 17(9) is only applicable if, at the time of a worker’s death, there is a dependent spouse who was living separate and apart from the worker. If there is no dependent spouse, section 17(9) is not applicable. She also considers whether section 17(17) of the Act is the basis of the impugned policy and concludes that it is not. She finds it patently unreasonable to apply section 17(9) to children of deceased workers when there is no spouse eligible to claim benefits.

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

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 that is affected by this determination, please contact Lisa Wong, legal counsel at 604-664-7800 or toll free within BC at 1-800-663-2782 by Monday, September 12, 2005.