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Alerts - April 17, 2008
Board of Directors’ Decision - decision issued on the chair's section 251 referral regarding lawfulness of elements of Board policy on loss of earnings.
In WCAT-2007-03809 Jill Callan, chair of WCAT, concluded that elements of item #40.00 of the Rehabilitation Services and Claims Manual, Volume II (RSCM II) are so patently unreasonable that the policy is not capable of being supported by sections 23(3), (3.1) and (3.2) of the Workers Compensation Act (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.
As required by section 251 of the Act, the chair of WCAT’s decision on this referral regarding lawfulness of elements of Board policy on loss of earnings was forwarded to the board of directors of the Workers Compensation Board, operating as WorkSafeBC (Board), for them to review the policy and decide whether WCAT may refuse to apply it.
On April 15, 2008 the board of directors issued their decision. They concluded that policy item #40.00 of the RSCM II is supported by the Act and it is not patently unreasonable.
In summary, the board of directors reason that section 23(3.1) of the Act creates a discretion to award compensation based on a loss of earnings when compensation based on loss of function will not appropriately compensate the worker for injury. Appropriate compensation is not the same as adequate compensation. What is appropriate compensation involves consideration of the overall policy objectives of the workers’ compensation system. The policy takes into account a worker’s transferable skills and post-injury ability to perform them. Exceptional cases are those where the injury makes it impossible for the worker to continue in their time of injury occupation or transfer their skills to another occupation.
In the board of directors’ opinion, the policy is within the range of rational policy options under the Act. It is not patently unreasonable because the focus on a worker’s ability to perform the essential skills is a rational way of defining exceptionality. It is also consistent with the Legislature’s objective in section 23(3.2) which requires to Board to consider the worker’s ability to continue in their occupation or to adapt to another suitable occupation. The board of directors also considers that the policy captures the physical requirements of an occupation. They observed that Best Practices Information Sheet (BPIS) #17 requires revision to ensure the intent of the policy is properly applied. (On May 29, 2008 WorkSafeBC replaced BPIS #17 with BPIS #22 entitled "Permanent Disability Benefits - Section 23(3)". On June 9, 2008 WorkSafeBC renamed all of its Best Practices Information Sheets as Practice Directives and re-numbered them, including BPIS #22. BPIS#22 is now titled Practice Directive #C6-2. Its content remains the same as the original BPIS #22. Click here to view Practice Directive #C6-2 on WorkSafeBC's website. (Click here to view the original BPIS#22)
The board of directors referred the matter back to WCAT to apply the policy. Given this determination, WCAT cannot refuse to apply the policy on the basis that it is patently unreasonable. WCAT has now reactivated the appeals that were suspended pending the board of directors’ determination on this section 251 referral. Parties to those appeals can expect to receive a letter shortly from WCAT about what will happen next.
