Alerts - December 11, 2007

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

Jill Callan, Chair of the Workers' Compensation Appeal Tribunal (WCAT), has determined that elements of policy item #40.00 of the Rehabilitation Services and Claims Manual, Volume II are so patently unreasonable that they are not capable of being supported by the Workers Compensation Act (Act).

Item #40.00 sets out the criteria the Workers Compensation Board, operating as WorkSafeBC (Board), applies in deciding whether a worker is eligible to be assessed for a permanent disability award on a loss of earnings basis under section 23(3) of the Act. In considering the combined effect of a worker’s occupation and disability under section 23(3.1) of the Act, those elements of that policy that define “occupation” and its use in the three “so exceptional” criteria consider whether the worker is able to perform the essential skills of the occupation without taking into account the worker’s ability to perform the physical requirements of the occupation.

In her decision, the chair determined that elements of item #40.00 cannot be rationally supported by sections 23(3), (3.1) and (3.2) of the Act. She based her conclusion largely on her analysis of the meaning of “occupation” in section 23(3.1) and the definition of “skills” in item #40.00. In the context of the three “so exceptional” criteria set out in item #40.00, the policy does not include a worker’s ability to perform the physical requirements of their job or occupation. The chair determined it is patently unreasonable to exclude consideration of a worker’s ability to meet the physical requirements of their time of injury occupation when interpreting “occupation” in section 23(3.1). The chair concluded that, since the worker’s ability to perform the physical requirements of their time of injury occupation can have a financial impact, those physical requirements must be taken into account in determining whether the permanent disability (functional impairment) award under section 23(1) is appropriate.

The full decision, together with a summary, 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 Board. All appeals that are pending before WCAT, and that the chair considers are affected by the elements of item #40.00 that she has decided are patently unreasonable, 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 not granted a section 23(3) permanent disability assessment either

• because, the characterization of the essential skills of the worker’s occupation at the time of injury did not take the physical requirements of the occupation into account; or
• because, when considering the combined effects of a worker’s occupation and disability, the determination regarding a worker’s ability to perform the essential skills of their occupation failed to take into account their ability to perform the physical requirements of the occupation,

please contact Lily Chau, Secretary to Tribunal Counsel, at 604-664-7817 or toll free within BC at 1-800-663-2782 by Friday, January 11, 2008.