Alerts Archive by Subject

Judicial Reviews

• Policy Item #50.00 (Interest): Johnson v. British Columbia (Workers’ Compensation Board), 2011 BCCA 255 - On June 2, 2011, the British Columbia Court of Appeal issued its decision in Johnson v. British Columbia (Workers’ Compensation Board), 2011 BCCA 255. This decision is the latest in a series of court decisions involving the Workers’ Compensation Board’s, operating as WorkSafeBC (Board), interest policy (policy item #50 in the Rehabilitation Services and Claims Manual, Volumes I and II). The Court of Appeal in Johnson found that because the petitioner had not challenged the lawfulness of the interest policy, and in particular, the requirement of a “blatant Board error” before the Workers’ Compensation Appeal Tribunal (WCAT), he had failed to exhaust the internal remedies provided by section 251 of the Workers Compensation Act (Act).
  
  The result of the Court of Appeal’s decision is that judicial review was not available to the petitioner, and the previous decision of the British Columbia Supreme Court, which found policy item #50.00 to be patently unreasonable, was set aside. (See Johnson v. Workers’ Compensation Board, 2009 BCSC 1931).
  
  This means that policy item #50.00 is now again binding on the Board and on WCAT. Section 250(2) of the Act requires WCAT to apply policies of the board of directors in making decisions.
  
  The Court of Appeal’s decision suggests that if a party wishes to raise a question of the lawfulness of a published policy of the board of directors of the Board, the party must make the arguments before WCAT so that the internal remedies provided by section 251 of the Act are exhausted before the lawfulness of the policy can be raised on judicial review. Item #10 of WCAT’s Manual of Rules of Practice and Procedure describes the section 251 process and states that if a party believes a policy of the board of directors is patently unreasonable, the party should raise the issue during the appeal or reconsideration application, or the party may be found on judicial review to have failed to exhaust internal remedies. You can read item #10.00 of the MRPP here.
  
  WCAT has been holding in abeyance appeals and applications for reconsideration of decisions involving policy item #50.00 pending the outcome of the court process. Given the Court of Appeal’s decision, we will now be reactivating those appeals and applications. If you are a party to an appeal involving policy item #50.00 that has been held in abeyance pending the decision of the courts, you can expect your appeal will now proceed and you may be invited to make further submissions.
  
  You can find a summary of the Court of Appeal’s decision here. You can find the Court’s full judgment here.
  
  (posted 2011/06/16)
  
• WCAT Chair’s Section 251 Referral on Policy Item #40.00 Withdrawn: - In WCAT-2011-00833, dated March 30, 2011, the chair determined that the inclusion of the phrase “an occupation of a similar type or nature” in the three so exceptional criteria and elsewhere in item #40.00 of the Rehabilitation Services and Claims Manual, Volume II is so patently unreasonable that it cannot be supported by the Workers Compensation Act (Act). WCAT gave WorkSafeBC notice of this determination on March 30, 2011.
  
  The chair’s determination and referral to the board of directors under section 251 of the Act was in response to the decision of the British Columbia Supreme Court in Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 329 (March 18, 2011). In Jozipovic, the Court did not make a general declaration that the impugned portions of policy item #40.00 were of no force and effect. Rather, Madam Justice Bruce said, “WCAT must have regard to the principles outlined in these reasons for judgment. However, whether my conclusions with respect to Policy #40.00 should have a more general application is an issue that should be left with WCAT and the board of directors pursuant to the section 251 review process.”
  
  On April 1, 2011, WorkSafeBC appealed the Jozipovic decision to the British Columbia Court of Appeal.
  
  On April 4, 2011, WCAT suspended all affected appeals that were pending before WCAT under section 251(5)(b) of the Act and notified the board of directors of the suspended appeals.
  
  Pending the decision of the Court of Appeal, the board of directors has now directed decision-makers at WorkSafeBC, including the Review Division, to adjudicate claims and conduct reviews as if the words “an occupation of a similar type or nature” were not a part of policy item #40.00. These are the words in the policy that the Court in the Jozipovic decision found were unreasonable because they were not rationally supported by the Act, and the words the WCAT chair referred to the board of directors in the section 251 referral.
  
  The board of directors’ direction has removed the uncertainty related to the application of the impugned portions of the policy for those who are waiting for a section 23(3) (loss of earnings) decision from WorkSafeBC. Therefore, the WCAT chair has withdrawn the section 251 referral in the Jozipovic appeal as it can be decided without a section 251 determination from the board of directors. This is because the Court directed WCAT to rehear the appeal without applying the words in the policy the Court decided were unlawful.
  
  You can see the Practice Directive issued by the WorkSafeBC board of directors here.
  
  Practice Directives are not published policy and are not binding on WCAT, but do provide guidance with respect to how the Board interprets and applies law and policy requirements. Section 250(2) of the Act requires WCAT to apply policies of the board of directors in making its decisions. Accordingly, it is possible that a WCAT panel may refer the impugned portions of item #40.00 to the chair in the context of another appeal. If you are a party to a suspended appeal, you can expect to hear from us soon regarding the reactivation of your appeal and the process that will follow.
  
  We have posted below the letters between WorkSafeBC and the WCAT chair that have led to the withdrawal of the section 251 referral in order to make the history of the matter available to the parties to the suspended appeals and the workers’ compensation community.
  
  If you click here you will find the letters that were exchanged between WorkSafeBC and WCAT. (posted 2011/06/01)
  
• Appeals Affected by Item #40.00 Section 251 Determination Suspended - As a result of the WCAT chair’s determination that portions of item #40.00 of the Rehabilitation Services and Claims Manual, Volume II are so patently unreasonable that they cannot be supported by the Workers Compensation Act and its Regulations, and pursuant to section 251(5)(b) of the Act, the WCAT chair has suspended all affected appeals that were pending before WCAT on April 4, 2011. The suspension lasts until the Workers’ Compensation Board (WorkSafeBC) board of directors determines whether WCAT may refuse to apply the policy. Notice of the chair’s determination was given to the board of directors of WorkSafeBC by letter dated April 4, 2011. WCAT has sent letters to parties in all suspended appeals advising of the suspension. The chair’s decision can be found here (posted 2011/04/08)
  
• Section 251 Determination of Chair: Portions of Item #40.00 RSCM II Unlawful - In accordance with the B.C. Supreme Court’s reasons in Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 329, the WCAT chair has determined that the inclusion of the phrase “an occupation of a similar type or nature” in the three so exceptional criteria and elsewhere in item #40.00 of the Rehabilitation Services and Claims Manual, Volume II is so patently unreasonable that it cannot be supported by the Workers Compensation Act. Accordingly, the chair has referred the policy to the WorkSafeBC board of directors for review. Click here for the chair’s determination. (posted 2011/03/30)
  
• Judicial Review on Loss of Earnings Permanent Disability Award Policy - The B.C. Supreme Court has issued its decision in Jozipovic v. Workers' Compensation Appeal Tribunal, 2011 BCSC 329 (March 18, 2011). The court found an aspect of WorkSafeBC’s policy on loss of earnings permanent disability awards (item #40.00 of the Rehabilitation Services and Claims Manual, Volume II) was unreasonable as it could not be rationally supported by the Workers Compensation Act. Click here for a summary of the court’s decision in Jozipovic, prepared by WCAT. (posted 2011/03/21)
  
• Extensions of Time to Appeal: B.C. Court of Appeal releases judgment in Kerton v. Workers’ Compensation Appeal Tribunal - The B.C. Court of Appeal released its judgment in Kerton v. Workers’ Compensation Appeal Tribunal, 2011 BCCA 7, on January 10, 2011. The Court allowed WCAT’s appeal, and that of the Workers’ Compensation Board, and overturned the B.C. Supreme Court’s decision in Kerton v. Workers’ Compensation Appeal Tribunal, 2010 BCSC 644. At issue was the Supreme Court’s conclusion that two WCAT decisions were incorrect in finding that section 243(3) of the Workers Compensation Act confers on WCAT a residual discretion to deny an extension of the time to appeal where the statutory special circumstances and injustice criteria have been met. The Court of Appeal found that the appropriate standard of review of the WCAT decisions was patent unreasonableness and concluded that the decisions were neither irrational nor unreasonable as their interpretation of section 243(3) is well within the range of interpretative options. The Court further determined that WCAT’s interpretation was in fact the most reasonable interpretation and is the same decision that the Court would reach. Pending the result of this appeal, WCAT had amended its Manual of Rules of Practice and Procedure (MRPP) on an interim basis to comply with the Supreme Court decision.
  
  • Kerton v. Workers’ Compensation Appeal Tribunal, 2011 BCCA 7
  • Kerton v. Workers’ Compensation Appeal Tribunal, 2010 BCSC 644
  • You can find the website alert relating to this amendment here
  (posted 2011/01/13)
  
• Judicial Review on Mental Stress Policy - The British Columbia Court of Appeal has issued its decision in Plesner v. British Columbia Hydro and Power Authority (2009 BCCA 188) (Plesner). The court declared that some of the provisions of WorkSafeBC's policy on mental stress (item #13.30 of the Rehabilitation Services and Claims Manual, Volume II) contravene the equality provisions of the Canadian Charter of Rights and Freedoms. more... (posted 2009/05/07)
  
• Johnson v. Workers' Compensation Board et al., BCCA (May 27, 2008) - has been issued by the Court of Appeal. This decision was an appeal from Johnson v. British Columbia (Workers' Compensation Board) 2007 BCSC 1410. (posted 2008/06/12)
  
• Judicial Review on Recurrence of Disability - The British Columbia Supreme Court has issued its decision in Cowburn v. Worker's Compensation Board of British Columbia (2006 BCSC 722). more... (posted 2006/05/12)
  

WCAT Careers

• Intermediate Software Developer - WCAT has a job opportunity available as an Intermediate Software Developer. To view the details and job description, click here. (posted 2011/11/16)
  

MRPP

• MRPP Amended - After a period of public consultation, The Manual of Rules of Practice and Procedure (MRPP) has been amended in response to the judgment in Kerton v. Workers’ Compensation Appeal Tribunal, 2011 BCCA 7 (January 10, 2011). The amendments affect applications for extensions of time to appeal received on or after January 10, 2011.

  WCAT has also made housekeeping amendments to the MRPP to reflect the new Supreme Court Civil Rules, B.C. Reg. 168/2009, which came into effect on July 1, 2010. These housekeeping amendments are effective March 9, 2011.

  You can find the Chair’s decision (#15) here. The amended provisions of the MRPP are attached to the Chair’s decision. The changes have been incorporated into the MRPP, which you can find on our website here.

  (posted 2011/03/10)
  
• Public Consultation regarding the Workers' Compensation Appeal Tribunal (WCAT) Manual of Rules of Practice and Procedure (MRPP) - As noted in our previous alert, the B.C. Court of Appeal released its judgment in Kerton v. Workers’ Compensation Appeal Tribunal, 2011 BCCA 7, on January 10, 2011. The Court allowed WCAT’s appeal, and that of the Workers’ Compensation Board, and overturned the B.C. Supreme Court’s decision in Kerton v. Workers’ Compensation Appeal Tribunal, 2010 BCSC 644.

  At issue was the Supreme Court’s conclusion that two WCAT decisions were incorrect in finding that section 243(3) of the Workers Compensation Act confers on WCAT a residual discretion to deny an extension of the time to appeal where the statutory special circumstances and injustice criteria have been met. The Court of Appeal determined that WCAT’s interpretation was in fact the most reasonable interpretation and is the same decision that the Court would reach.

  Currently, WCAT has in place an interim MRPP provision regarding extensions of time, at item #8.2.

  In response to the Court of Appeal’s decision, WCAT proposes to revise Item #8.2. The purpose of this revision is to make it clear that WCAT has residual discretion to consider criteria such as prejudice to the respondent when deciding an extension of time application.

  We propose that the revised MRPP provisions regarding extensions of time apply to all extension of time applications received on or after January 10, 2011.

  You may view the proposed revision here. Or if you prefer a printed copy, please contact Lily Chau at (604) 664-7817.

  Before issuing a final version of the revised MRPP, we invite your input. Any comments should be directed, in writing, to Teresa White, Tribunal Counsel, no later than 4:30 p.m. on Friday, February 25, 2011. Our address is 150 – 4600 Jacombs Road, Richmond, B.C. V6V 3B1.

  We look forward to receiving your comments. The final version of the revised MRPP will be published once consultation is complete.

  (posted 2011/02/07)
  
• MRPP Amended - As a result of the B.C. Supreme Court decision in Kerton v. Workers' Compensation Appeal Tribunal et al. (2010 BCSC 644), and in order to ensure parties continue to receive timely extension of time decisions, the Workers' Compensation Appeal Tribunal (WCAT) has, on an interim basis, amended its practice directive relating to applications for extensions of time to appeal made under section 243(3) of the Workers Compensation Act. In Kerton, the Court determined that WCAT lacked the discretion to deny an extension of time to appeal where the special circumstances and injustice criteria set out in section 243(3) have been met. To comply with the Court’s decision, WCAT has amended items #8.2 and #8.2.3 of its Manual of Rules of Practice and Procedure (MRPP). It has also removed MRPP item #8.2.4 which related to WCAT’s exercise of discretion. These changes are interim as WCAT has appealed the Kerton decision to the B.C. Court of Appeal.
  
  

  The interim amendment applies to all WCAT decisions respecting an extension of time to appeal made on or after May 5, 2010.

  You can find the Chair’s decision here. The amended practice directive showing the amendments is attached to the Chair’s decision. The changes have been incorporated into the MRPP, which you can find on our website here.

  (posted 2010/06/10)
  
• Table of Concordance for New MRPP now available - WCAT has prepared a Table of Concordance that provides a cross reference for items in the December 3, 2004 and November 3, 2009 versions of the WCAT Manual of Rules of Practice and Procedure. Click here to view the Table. (posted 2010/05/10)
  
• MRPP Housekeeping Corrections - We have corrected typos and slips on six pages of the revised MRPP – 38, 58, 73, 77, 180 and 192. Click here for those pages with the corrections shown using “track changes” [pdf 82 Kb]. These typos and slips have also been corrected in the MRPP on our website without track changes. (posted 2010/01/07)
  
• MRPP Revision - WCAT’s Manual of Rules of Practice and Procedure is revised. It will become effective on November 3, 2009. Click here for the revised MRPP [pdf 985 Kb]. Click here for highlights of the changes [pdf 28 Kb]. (posted 2009/10/07)
  
• MRPP Revised - WCAT has undertaken an extensive revision of our Manual of Rules of Practice and Procedure (MRPP). The purpose of this revision is twofold: to reorganize the MRPP into a more “user friendly” document and to make necessary changes resulting from our experience to date. This is the first revision since December 2004 (apart from amendments to items 15.23 and 15.24 concerning reconsiderations).
  
  We invite your comments concerning these proposed revisions. Click here for the revised MRPP.[pdf 1,011 Kb] Click here for a summary of the changes. [pdf 29 Kb].
  
  Please send your comments by September 11, 2009 to Susan Polsky Shamash, Senior Vice Chair and Tribunal Counsel, 150 - 4600 Jacombs Road, Richmond, B.C. V6V 3B1, or fax to (604) 713-0443. If you have any questions about the consultation process, or if you would like a printed copy of the revised MRPP, please contact Lily Chau at (604) 664-7817 (posted 2009/06/17)
  
• Amendment to Item #15.24 of the MRPP - In WCAT-2008-00457, the Chair concluded that WCAT does not have the authority to set aside and reconsider a previous Appeal Division decision on the basis of jurisdictional error (common law grounds). Item #15.24 of the MRPP has been amended accordingly. (posted 2008/04/24)
  
• New Agreement between WorkSafeBC and the BCMA ratified - On December 20, 2006 the new agreement between WorkSafeBC and the BCMA was ratified. It is effective from April 1, 2006 to March 31, 2012 and includes increases to many fee codes in the fee schedule. Click here for highlights of the new agreement. Item #13.23 of the MRPP (Expense of Obtaining or Producing Evidence) provides that "WCAT will generally limit the amount of reimbursement of expenses to the rates or tariff established by the Board for this purpose."It refers to the current tariff items for certain medical legal and other applicable matters. Click here for the newly negotiated amounts for the listed items. (posted 2007/02/22)
  
• MRPP Amendments - WCAT's Manual of Rules of Practice and Procedure (MRPP) was amended and updated on December 3, 2004. This extensive revision of the MRPP is primarily the result of the new Administrative Tribunals Act. The current version of the MRPP is posted. This document contains:
  • a summary of the major changes (pdf 69 kb)
  • the revised MRPP (pdf 992 kb), including a detailed index (259 Kb)
  • Part IV of the Workers Compensation Act (pdf 173 kb) as amended by Bills 68 (the Administrative Tribunals Appointment and Administration Act) and 56 (the Administrative Tribunals Act), and
  • the "portions" of the Administrative Tribunals Act (pdf 157 kb) that apply specifically to WCAT.
  (posted 2004/12/03)
  
• MRPP Amendments - A number of changes are proposed to WCAT's Manual of Rules of Practice and Procedure. This extensive revision of the MRPP is primarily the result of the Administrative Tribunals Act which will come into force in mid-November 2004. Comments are invited concerning these proposals for revision of the MRPP. This document contains:
  • a summary of the major changes (pdf 76 kb)
  • the revised MRPP (pdf 1,440 kb)
  • Part IV of the Workers Compensation Act (pdf 171 kb) as amended by Bills 68 (the Administrative Tribunals Appointment and Administration Act) and 56 (the Administrative Tribunals Act), and
  • the "portions" of the Administrative Tribunals Act (pdf 157 kb) that apply specifically to WCAT
  Comments may be sent by October 29, 2004 to Susan Polsky Shamash, Senior Vice Chair and Tribunal Counsel, 150 - 4600 Jacombs Road, Richmond, B.C. V6V 3B1, or fax to 604 664-7899. (posted 2004/09/30)
  
• MRPP Index - A detailed index has been prepared for WCAT's Manual of Rules of Practice and Procedure (MRPP). (posted 2004/04/26)
  
• MRPP Amendments - WCAT's Manual of Rules of Practice and Procedure (MRPP) was amended and updated on March 29, 2004. This was the first revision of the MRPP since WCAT was created on March 3, 2003 (apart from the recent addition of items 26.60 - 26.69 concerning the "Parking Lot" for backlog appeals). The current version of the MRPP has now been posted. A chart of the revisions has also been provided. (posted 2004/03/29)
  
• MRPP Amendments - A number of changes are proposed to WCAT's Manual of Rules of Practice and Procedure. This is the first revision of the MRPP since WCAT was created on March 3, 2003 (apart from the addition of items 26.60 - 26.69 concerning the "Parking Lot" for backlog appeals). Comments are invited by January 30, 2004 concerning these Proposals for Revision of the MRPP. This document contains excerpts from the MRPP showing the proposed amendments. Comments may be sent to Herb Morton, Senior Vice Chair and Tribunal Counsel, 150 - 4600 Jacombs Road, Richmond, B.C. V6V 3B1, or fax to 604 664-7899. (posted 2003/12/03)
  

Appeal Expenses

• Appeal Expenses: Noteworthy Decision WCAT-2011-01673A - provides guidance regarding the reimbursement of medical legal opinions. In particular, parties should have reference to the WCAT Manual of Rules of Practice and Procedure and the WCAT website, which contains information regarding reimbursement of appeal expenses, the Workers’ Compensation Board’s fee schedules, and factors which may be considered in determining whether to order reimbursement for such appeal expenses beyond the fee schedule. You can view the Noteworthy Decision WCAT-2011-01673A here (posted 2011/11/14)
  

Precedent Panel Decisions

• Precedent Panel Decision - WCAT's jurisdiction under over permanent disability awards for disability of the lumbar spine under section 239(2)(c) of the Workers Compensation Act (Act). more... (posted 2005/12/28)
  
• Precedent Panel Decision - Application of Policy Item #50.00 of the Rehabilitation Services and Claims Manual, Volumes I and II - "Interest" - Meaning of "all decisions" in Board Resolution. more... (posted 2005/07/12)
  

Reconsiderations

• Common Law Reconsideration Applications: - In our February 17, 2009 What’s new message we informed you that a message would be posted here should a future court decision provide additional guidance on the applicable standard of review in light of the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9.
  
  In Manz v. Sundher, 2009 BCCA 92, the B.C. Court of Appeal determined that the patent unreasonableness standard in the Administrative Tribunals Act is constitutionally valid and that the Supreme Court of Canada’s decision in Dunsmuir does not change the meaning of that standard. In Dunsmuir the court collapsed the common law patent unreasonableness and reasonableness simpliciter standards of review into a single reasonableness standard. WCAT has updated its “Applications for Reconsideration – WCAT Information Sheet” to refer to the Manz decision. (posted 2009/06/23)
  
• Common Law Reconsideration Applications - In Dunsmuir v. New Brunswick, 2008 SCC 9, (Dunsmuir), the Supreme Court of Canada held that there are only two standards of review at common law:  correctness and reasonableness.  This raised a question as to whether the standard of patent unreasonableness continues to apply under the Administrative Tribunals Act (ATA), in relation to WCAT findings of fact or law. more... (posted 2009/02/17)
  
• New Evidence Reconsideration Applications - WCAT has amended items #15.23 and #15.24 of its Manual of Rules of Practice and Procedure to clarify the meaning of "one time only" in section 256(4) of the Workers Compensation Act in situations where WCAT has administratively joined more than one appeal and only issued one decision. In that circumstance, a party may bring separate reconsideration applications on new evidence grounds on separate occasions. However, where the new evidence is relevant to more than one of the joined appeals, the party must bring the reconsideration applications at the same time. Click here for the amended items #15.23 and #15.24. (posted 2008/11/26)
  
• Common Law Reconsideration Applications - In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada held that there are only two standards of review at common law: correctness and reasonableness. more... (posted 2008/10/09)
  

Referrals for Lawfulness of Policy (section 251)

• Section 251 Determination of the Board of Directors: Portions of Assessment Manual Policy Items AP1-37-1 and AP1-37-3 Unlawful - In WCAT-2011-02362 the WCAT chair determined that portions of policy items AP1-37-1 (The Classification System) and AP1-37-3 (Classification – Changes) of the Assessment Manual were so patently unreasonable that they could not be supported by the Workers Compensation Act (Act). As required by section 251 of the Act, the WCAT chair forwarded this determination to the board of directors of the Workers’ Compensation Board, for them to review the policies and decide whether WCAT may refuse to apply them.

  On November 18, 2011 the board of directors issued their determination under section 251(6) of the Act. They concluded that WCAT may refuse to apply the portions of these policies which provided for an annual classification cycle whereby each employer was assigned a classification unit for assessment purposes on an annual basis.

  The board of directors’ resolution 2011/11/08-01 (Re: Section 251 Referral – Annual Classification Cycle) amended the affected portions of Assessment Manual policy items AP1-37-1, AP1-37-3, and AP1-96-1. The amended policies apply to all decisions, including WCAT decisions, made on or after November 8, 2011.

  You can read the board of directors’ determination here and resolution with Assessment Manual revisions here.

  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 advising them of the reactivation and the further processing of their appeal.

  (posted 2011/11/22)
  
• Section 251 Determination of the Chair: Portions of Assessment Manual Policy Items AP1-37-1 and AP1-37-3 Unlawful - In WCAT-2011-02362 the WCAT chair determined that portions of policy items AP1-37-1 (The Classification System) and AP1-37-3 (Classifications – Changes) are so patently unreasonable that they cannot be supported by the Workers Compensation Act (Act).

  These two policies, which came into effect on October 1, 2009, establish the Workers’ Compensation Board’s (Board) annual classification and reclassification authority. The chair found there was no basis upon which to rationally conclude that the Board is authorized to limit classification decisions to one year and annually reclassify employers in order to correct Board errors. The policies provide that the Board may assign an employer to a classification unit (CU) on an annual basis in cases where the factual circumstances of the employer relevant for classification purposes have not changed since the previous classification decision. However, in such circumstances, the Board is squarely caught by the reconsideration prohibition in section 96(5)(a) of the Act because it is making a “new decision” in “a matter previously decided”, more than 75 days after its previous decision.

  The chair also determined that although the Board has no authority to vary or cancel a decision to assign an employer to a particular CU after 75 days have passed, it has the authority under section 37(2)(f) to withdraw an employer from a CU and transfer it to another CU. The chair left the question of whether a further decision to withdraw an employer from the second CU and transfer it to a third CU is a reconsideration or a new decision because there was no need to decide that question in resolving the narrow question that was referred to the chair for a determination.

  You can read the chair’s determination and a summary of the determination here. (posted 2011/09/26)
  

• WCAT Chair’s Section 251 Referral on Policy Item #40.00 Withdrawn: - In WCAT-2011-00833, dated March 30, 2011, the chair determined that the inclusion of the phrase “an occupation of a similar type or nature” in the three so exceptional criteria and elsewhere in item #40.00 of the Rehabilitation Services and Claims Manual, Volume II is so patently unreasonable that it cannot be supported by the Workers Compensation Act (Act). WCAT gave WorkSafeBC notice of this determination on March 30, 2011.
  
  The chair’s determination and referral to the board of directors under section 251 of the Act was in response to the decision of the British Columbia Supreme Court in Jozipovic v. British Columbia (Workers’ Compensation Appeal Tribunal), 2011 BCSC 329 (March 18, 2011). In Jozipovic, the Court did not make a general declaration that the impugned portions of policy item #40.00 were of no force and effect. Rather, Madam Justice Bruce said, “WCAT must have regard to the principles outlined in these reasons for judgment. However, whether my conclusions with respect to Policy #40.00 should have a more general application is an issue that should be left with WCAT and the board of directors pursuant to the section 251 review process.”
  
  On April 1, 2011, WorkSafeBC appealed the Jozipovic decision to the British Columbia Court of Appeal.
  
  On April 4, 2011, WCAT suspended all affected appeals that were pending before WCAT under section 251(5)(b) of the Act and notified the board of directors of the suspended appeals.
  
  Pending the decision of the Court of Appeal, the board of directors has now directed decision-makers at WorkSafeBC, including the Review Division, to adjudicate claims and conduct reviews as if the words “an occupation of a similar type or nature” were not a part of policy item #40.00. These are the words in the policy that the Court in the Jozipovic decision found were unreasonable because they were not rationally supported by the Act, and the words the WCAT chair referred to the board of directors in the section 251 referral.
  
  The board of directors’ direction has removed the uncertainty related to the application of the impugned portions of the policy for those who are waiting for a section 23(3) (loss of earnings) decision from WorkSafeBC. Therefore, the WCAT chair has withdrawn the section 251 referral in the Jozipovic appeal as it can be decided without a section 251 determination from the board of directors. This is because the Court directed WCAT to rehear the appeal without applying the words in the policy the Court decided were unlawful.
  
  You can see the Practice Directive issued by the WorkSafeBC board of directors here.
  
  Practice Directives are not published policy and are not binding on WCAT, but do provide guidance with respect to how the Board interprets and applies law and policy requirements. Section 250(2) of the Act requires WCAT to apply policies of the board of directors in making its decisions. Accordingly, it is possible that a WCAT panel may refer the impugned portions of item #40.00 to the chair in the context of another appeal. If you are a party to a suspended appeal, you can expect to hear from us soon regarding the reactivation of your appeal and the process that will follow.
  
  We have posted below the letters between WorkSafeBC and the WCAT chair that have led to the withdrawal of the section 251 referral in order to make the history of the matter available to the parties to the suspended appeals and the workers’ compensation community.
  
  If you click here you will find the letters that were exchanged between WorkSafeBC and WCAT. (posted 2011/06/01)
  
• Section 251 Referral to the Chair for Lawfulness of Policy - In WCAT-2011-00996, dated April 20, 2011, the panel has referred the issue of lawfulness of Assessment Manual policies AP1-37-1 (The Classification System) and AP1-37-3 (Classification – Changes) to the Workers’ Compensation Appeal Tribunal (WCAT) chair under section 251(2) of the Workers Compensation Act (Act). The specific aspects of the policies involved are the annual assignment of employers to classification units and the ability of the Workers’ Compensation Board, operating as WorkSafeBC (Board), to therefore change an employer’s classification unit annually. The panel has found that this is inconsistent with reconsideration limit found in section 96(5) of the Act.

  Section 251 of the Act states that WCAT may refuse to apply an applicable policy of the Board’s board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the Act and its regulations. If a WCAT panel considers that an applicable policy should not be applied on this basis, that issue must be referred to the WCAT chair and the appeal must be suspended until the WCAT chair or the Board’s board of directors, as the case may be, decides whether the policy should be applied.

  • Full text of the decision to refer the policy to the chair (click here)
  (posted 2011/04/26)
  
• Appeals Affected by Item #40.00 Section 251 Determination Suspended - As a result of the WCAT chair’s determination that portions of item #40.00 of the Rehabilitation Services and Claims Manual, Volume II are so patently unreasonable that they cannot be supported by the Workers Compensation Act and its Regulations, and pursuant to section 251(5)(b) of the Act, the WCAT chair has suspended all affected appeals that were pending before WCAT on April 4, 2011. The suspension lasts until the Workers’ Compensation Board (WorkSafeBC) board of directors determines whether WCAT may refuse to apply the policy. Notice of the chair’s determination was given to the board of directors of WorkSafeBC by letter dated April 4, 2011. WCAT has sent letters to parties in all suspended appeals advising of the suspension. The chair’s decision can be found here (posted 2011/04/08)
  
• Section 251 Referral to the Chair for Lawfulness of Policy - A section 251 referral to the chair has been withdrawn in response to the board of directors’ amendments to the policy at issue. Section 251 of the Workers Compensation Act (Act) states that the Workers’ Compensation Appeal Tribunal (WCAT) may refuse to apply an applicable policy of the board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the Act and its regulations. If a WCAT panel considers that an applicable policy should not be applied on this basis, that issue must be referred to the chair and the appeal must be suspended until the chair or the board of directors, as the case may be, decides whether the policy should be applied. (See item #10 of WCAT’s Manual of Rules of Practice and Procedure regarding the steps WCAT will follow when a policy is referred to the chair under section 251.) The referral was with respect to item #AP1-39-2 of the Assessment Manual on Assessment Payments.
  
  • Click here for the full text of the October 20, 2010 referral decision.
  • Click here for the Board of Directors' Resolution.
  (posted 2011/01/13)
  
• Section 251 Referral to the Chair for Lawfulness of Policy - In WCAT-2010-02785, dated October 20, 2010 the panel has referred the issue of lawfulness of Assessment Manual policy AP1-39-2 (Assessment Payments) to the WCAT chair under section 251(2) of the Workers Compensation Act (Act). The specific aspects of policy item AP1-39-2 involved are the provisions regarding interest on overpaid assessments by employers.

  Section 251 of the Act states that WCAT may refuse to apply an applicable policy of the Workers’ Compensation Board’s (Board) board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the Act and its regulations. If a WCAT panel considers that an applicable policy should not be applied on this basis, that issue must be referred to the WCAT chair and the appeal must be suspended until the WCAT chair or the Board’s board of directors, as the case may be, decides whether the policy should be applied.
  

  • Full text of the decision to refer the policy to the chair (click here)
  (posted 2010/11/04)
  

Vice Chair Referral Memos/Decisions

• Section 251 Referrals to the Chair for Lawfulness of Policy - There are two new section 251 referrals to the chair. Section 251 of the Workers Compensation Act (Act) states that WCAT may refuse to apply an applicable policy of the board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the Act and its regulations. more... (posted 2009/03/04)
  
• Section 251 Referrals to the Chair for Lawfulness of Policy - There are two new section 251 referrals to the Chair. more... (posted 2008/01/08)
  
• Section 251 Referrals to the Chair for Lawfulness of Policy - Section 251 of the Workers Compensation Act (Act) states that WCAT may refuse to apply an applicable policy of the board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the Act and its regulations. more... (posted 2007/08/27)
  

Chair's Decisions

• Appeals Affected by Item #40.00 Section 251 Determination Suspended - As a result of the WCAT chair’s determination that portions of item #40.00 of the Rehabilitation Services and Claims Manual, Volume II are so patently unreasonable that they cannot be supported by the Workers Compensation Act and its Regulations, and pursuant to section 251(5)(b) of the Act, the WCAT chair has suspended all affected appeals that were pending before WCAT on April 4, 2011. The suspension lasts until the Workers’ Compensation Board (WorkSafeBC) board of directors determines whether WCAT may refuse to apply the policy. Notice of the chair’s determination was given to the board of directors of WorkSafeBC by letter dated April 4, 2011. WCAT has sent letters to parties in all suspended appeals advising of the suspension. The chair’s decision can be found here (posted 2011/04/08)
  
• MRPP Amended - After a period of public consultation, The Manual of Rules of Practice and Procedure (MRPP) has been amended in response to the judgment in Kerton v. Workers’ Compensation Appeal Tribunal, 2011 BCCA 7 (January 10, 2011). The amendments affect applications for extensions of time to appeal received on or after January 10, 2011.

  WCAT has also made housekeeping amendments to the MRPP to reflect the new Supreme Court Civil Rules, B.C. Reg. 168/2009, which came into effect on July 1, 2010. These housekeeping amendments are effective March 9, 2011.

  You can find the Chair’s decision (#15) here. The amended provisions of the MRPP are attached to the Chair’s decision. The changes have been incorporated into the MRPP, which you can find on our website here.

  (posted 2011/03/10)
  
• Notice to Board of Directors re: Chair's Decision on Lawfulness of Workers' Compensation Board (WCB) Policy on Loss of Earnings - On Friday, January 25, 2008, Jill Callan, Chair of WCAT, gave official notice to the board of directors of WorkSafeBC of her determination regarding the lawfulness of elements of policy item #40.00 of the Rehabilitation Services and Claims Manual, Volume II regarding loss of earnings awards. more... (posted 2008/02/05)
  
• Chair's Decision re: 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). more... (posted 2007/12/11)
  
• Chair's Decision - Referral for Lawfulness of Workers' Compensation Board Policy on the Rule of 15ths. more... (posted 2006/04/24)
  
• Chair's Decision - Referral for Lawfulness of Workers Compensation Board (Board) Policy on Chronic Pain more... (posted 2005/12/14)
  
• Chair's Decision - This decision of the chair was provided to the Workers' Compensation Board (Board) pursuant to section 251(5) of the Act. In response, and pursuant to section 251(6) of the Act, the Board determined that item #55.40 is patently unreasonable and WCAT may refuse to apply it. The Board's decision can be found on WCAT's website.
  
  Referral for Lawfulness of Workers Compensation Board (WCB) Policy on Entitlement to Dependents' Benefits. This decision of the chair was provided to the Workers' Compensation Board (Board) pursuant to section 251(5) of the Act. In response, and pursuant to section 251(6) of the Act, the Board determined that item #55.40 is patently unreasonable and WCAT may refuse to apply it. The Board?s decision can be found on WCAT's website. more... (posted 2005/09/02)
  
• Chair's Decision - Referral for Lawfulness of Workers' Compensation Board (WCB) Policy on Recurrence of Disability. more... (posted 2005/04/07)
  

Board of Director's Decisions

• Section 251 Determination of the Board of Directors: Portions of Assessment Manual Policy Items AP1-37-1 and AP1-37-3 Unlawful - In WCAT-2011-02362 the WCAT chair determined that portions of policy items AP1-37-1 (The Classification System) and AP1-37-3 (Classification – Changes) of the Assessment Manual were so patently unreasonable that they could not be supported by the Workers Compensation Act (Act). As required by section 251 of the Act, the WCAT chair forwarded this determination to the board of directors of the Workers’ Compensation Board, for them to review the policies and decide whether WCAT may refuse to apply them.

  On November 18, 2011 the board of directors issued their determination under section 251(6) of the Act. They concluded that WCAT may refuse to apply the portions of these policies which provided for an annual classification cycle whereby each employer was assigned a classification unit for assessment purposes on an annual basis.

  The board of directors’ resolution 2011/11/08-01 (Re: Section 251 Referral – Annual Classification Cycle) amended the affected portions of Assessment Manual policy items AP1-37-1, AP1-37-3, and AP1-96-1. The amended policies apply to all decisions, including WCAT decisions, made on or after November 8, 2011.

  You can read the board of directors’ determination here and resolution with Assessment Manual revisions here.

  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 advising them of the reactivation and the further processing of their appeal.

  (posted 2011/11/22)
  
• Board of Directors' Decision - decision issued on the chair's section 251 referral regarding lawfulness of elements of Board policy on loss of earnings. more... (posted 2008/04/17)
  
• Board of Directors Decision - Decision issued on the chair's section 251 referral regarding lawfulness of Workers' Compensation Board (Board) policy on entitlement to dependent's benefits. more... (posted 2005/12/23)
  
• Board of Directors Decision - Decision issued on the chair's section 251 referral regarding lawfulness of Board policy on recurrence of disability. more... (posted 2005/08/24)
  

Referrals Withdrawn

• Section 251 Referrals to the Chair for Lawfulness of Policy - Two section 251 referrals to the chair have been withdrawn in response to the board of directors' amendments to the policies at issue. more... (posted 2009/04/08)
  
• Section 251 Referrals to the Chair for Lawfulness of Policy - Two section 251 referrals to the chair have been withdrawn. more... (posted 2008/07/03)
  
• Withdrawal of Section 251 Referral to the Chair for Lawfulness of Policy on Changing a Firm's Classification and the 75 Day Rule - On October 4, 2007 the board of directors of the Workers Compensation Board, operating as WorkSafeBC, signed Resolution 2007/10/04-06. more... (posted 2008/01/07)
  

Lawfulness of Policy Issues

• The Workers’ Compensation Appeal Tribunal (WCAT) has received two appeals initiated by workers which raise the issue of whether item #50.00 of the Rehabilitation Services and Claims Manual, Volumes I and II is unlawful. - Specifically, each appeal raises the issue of whether item #50.00 is so patently unreasonable that it is not capable of being supported by the Workers Compensation Act (Act) and its regulations (the item #50.00 issue). It appears that each of the appellants seeks a determination by the chair of WCAT that item #50.00 is so patently unreasonable that it cannot be supported by the Act and a referral of item #50.00 to the board of directors of the Workers’ Compensation Board (Board) under section 251 of the Act.

  Pursuant to section 37 of the Administrative Tribunals Act (Applications involving similar questions), the chair has decided to combine the hearing of the item #50.00 issue that is the common part of the two appeals. The Employers’ Advisers Office is participating in one of the appeals as a deemed employer. Pursuant to section 246(2)(i) of the Act, the chair has invited the following representative groups to participate in the hearing of the lawfulness of item #50.00 issue:

  • B.C. Federation of Labour
  • Business Council of B.C.
  • Coalition of B.C. Businesses
  • Employers’ Forum to the WCB
  • Workers’ Compensation Advocacy Group
  • Workers’ Advisers Office
  With the exception of the Business Council of B.C. and the Coalition of B.C. Businesses, all of the representative groups will participate in the hearing.

  WCAT will post an alert regarding the chair’s decision when it is available in 2012.

  (posted 2011/11/07)
  

Registry

Research

• 2009 Annual Report - The 2009 Annual Report of the Workers' Compensation Appeal Tribunal is available on our website. Click here to view the Report. (posted 2010/06/22)
  
• Search Our Decisions Update - WCAT is pleased to announce that there have been revisions to decision search on our new website. For example, in addition to the detailed "Search Help" available when searching our decisions, quick tips for searching have been added to both the Basic and Advanced decision search pages. These tips provide information such as how to search by policy, statutory section number or WCAT decision number. (posted 2010/03/03)
  
• PDF forms can now be filled and saved by users to their computers - WCAT is pleased to announce that the pdf forms on the Forms page of its new website can now be filled and saved by users to their computers, including the Notice of Appeal from Review Division and Notice of Appeal from WorkSafeBC forms. Click here to go to the page with the pdf forms that can be filled and saved. (posted 2010/02/26)
  
• Noteworthy Decisions - The Noteworthy Decisions Subject Index is updated. It is current to March 31, 2008. 56 decisions have been added since the last update in February 2007. There are now a total of 335 noteworthy decisions. Three decisions have been removed from the noteworthy page. See the List of Decisions No Longer Noteworthy for further details. (posted 2008/04/24)
  
• WCAT on CanLII - WCAT is pleased to announce that its decisions are now available on CanLII (Canadian Legal Information Institute). CanLII is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII's goal is to make Canadian law accessible for free on the Internet.
  
  At present, only the 2008 decisions have been published. The rest will be added over the next few weeks. Note: There will usually be a delay of up to one month in WCAT?s current decisions being published on CanLII. (posted 2008/03/18)
  

Workers Compensation Act

• New Interim Practice Directive C6-2 (Permanent Disability Benefits – Section 23(3)) effective June 30, 2010 - The Workers' Compensation Board, operating as WorkSafeBC (Board), has implemented a new Interim Practice Directive that provides guidance to Board officers in determining whether a worker's permanent disability award should be assessed under section 23(3) of the Workers Compensation Act. This new Practice Directive is interim, with further changes expected. Practice Directives are not published policy and are not binding on WCAT, but do provide guidance with respect to how the Board interprets and applies law and policy requirements.
  
  • Interim Practice Directive C6-2 (Permanent Disability Benefits – Section 23(3)) (click here)
  (posted 2010/07/08)
  
• Fishing Industry Notice - Equal appeal rights extended to the fishing industry effective June 15, 2004. more...
  

WorkSafeBC

• New Interim Practice Directive C6-2 (Permanent Disability Benefits – Section 23(3)) effective April 29, 2011 - The Workers' Compensation Board, operating as WorkSafeBC (Board), has implemented a new Interim Practice Directive that provides guidance to Board officers in determining whether a worker's permanent disability award should be assessed under section 23(3) of the Workers Compensation Act. This new Practice Directive is interim, with further changes expected. Practice Directives are not published policy and are not binding on WCAT, but do provide guidance with respect to how the Board interprets and applies law and policy requirements.
  • Interim Practice Directive C6-2 (Permanent Disability Benefits – Section 23(3)) (click here)
  (posted 2011/04/27)
  
• July 1, 2010 changes to policy in Chapter 3 RSCM II - The Board of Directors of the Workers' Compensation Board, operating as WorkSafeBC (Board) has approved changes to the policy in Chapter 3 of the Rehabilitation Services & Claims Manual, Volume II, and other consequential amendments. Policy items #12.00 through #24.00 inclusively (previous Chapter 3), will be replaced with Items #C3-12.00 through #C3-23.30 (new Chapter 3) and policy item #34.55 in Chapter 5. The new Chapter 3 policies and policy item #34.55 apply to all injuries, mental stress claims, and accidents that occur on or after July 1, 2010. For injuries, mental stress claims, or accident claims that occurred before July 1, 2010, the previous Chapter 3 policies apply. (Note: For injuries, mental stress claims, occupational diseases before June 30, 2002 the Rehabilitation Services and Claims Manual , Volume I continues to apply.)
  • Previous Chapter 3 (policy items #12.00-24.00) (click here) [pdf 247 Kb]
  • New Chapter 3 (policy items #C3-12.00 through C3-23.30)(click here)
  • Policy item #34.55 (click here)
  • Resolution 2007/10/04-04 of the Board of Directors "Chapter 3 of the Rehabilitation Services & Claims Manual, Volume II" (click here)
  • Resolution of the Board of Directors regarding Effective Date of New Chapter 3 (click here)
  (posted 2010/07/02)
  
• WorkSafeBC Issues New Mental Stress Policy - In response to the British Columbia Court of Appeal’s decision in Plesner v. British Columbia Hydro and Power Authority (2009 BCCA 188), the board of directors of WorkSafeBC have amended policy item #13.30.  The amendment is effective April 30, 2009 and applies to all decisions, including appellate decisions, made on or after that date.  Click here for the resolution and policy amendment.  (posted 2009/08/24)
  
• WorkSafeBC Issues New Practice Directive on Section 23(3) Loss of Earnings Permanent Disability Awards - In its decision on April 15, 2008 the Board of Directors of WorkSafeBC determined that item #40.00 of the Rehabilitation Services and Claims Manual, Volume II (RSCM II) is supported by the Act and not patently unreasonable.  However, it observed that Best Practices Information Sheet (BPIS) #17 required revision to ensure the intent of the policy is properly applied. The Board of Directors accordingly directed the administration of WorkSafeBC to amend its internal practice directive with respect to policy item #40.00. Click here for WCAT's previous "What's New" message about the Board of Directors decision.

  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). (original posted June 4/08) (posted 2008/06/09)
  

• New Agreement between WorkSafeBC and the BCMA ratified - On December 20, 2006 the new agreement between WorkSafeBC and the BCMA was ratified. It is effective from April 1, 2006 to March 31, 2012 and includes increases to many fee codes in the fee schedule. Click here for highlights of the new agreement. Item #13.23 of the MRPP (Expense of Obtaining or Producing Evidence) provides that "WCAT will generally limit the amount of reimbursement of expenses to the rates or tariff established by the Board for this purpose."It refers to the current tariff items for certain medical legal and other applicable matters. Click here for the newly negotiated amounts for the listed items. (posted 2007/02/22)
  
• New WCB Policy on Recurrence of Disability - In response to the Supreme Court of British Columbia decision Cowburn v. Workers’ Compensation Board (2006 BCSC 722), the Board of Directors of the Workers' Compensation Board has retroactively amended item #1.03(b)(4) of the Rehabilitation Services and Claims Manual. more... (posted 2006/07/25)