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Noteworthy Decisions Organized by Date

Decisions By Subject

The full decisions (in PDF format) can be viewed by clicking on the decision numbers. Noteworthy decisions are also searchable on the WCAT decision site by use of the "noteworthy" classification button. The summaries are listed in the order of the date of the decision with the most recent decisions at the top of the list. Use Ctrl + F to perform a search within this page.

2018 | 2017 | 2016 | 2015 | 2014 | 2013 | 2012 | 2011 | 2010 | 2009 | 2008 | 2007 | 2006 | 2005 | 2004 | 2003

2018

A1603743
Non-resident flight crew employed by a foreign airline that does not fly between British Columbia destinations, who are injured while on a layover in British Columbia do not have sufficient connection to a British Columbia industry to be "workers" within the meaning of Part 1 of the Workers Compensation Act, which does not apply to them as a matter of constitutional law.

A1606663
The personal representative of a deceased worker may initiate a claim for workers' compensation benefits on behalf of the deceased worker's estate by application under section 55 of the Workers Compensation Act.

A1700491
Section 32(3) of the Workers Compensation Act does not give the Workers' Compensation Board jurisdiction to reconsider the duration of a permanent partial disability award when a worker’s claim is reopened more than three years after the date of injury to consider a significant change in permanent disability.

2017

A1603334
This decision concluded that changes made to item #41.00 of the Rehabilitation Services and Claims Manual, Volume II, effective June 1, 2014, did not establish a strict requirement for independently verifiable evidence that a worker would have retired later than age 65. Although item #41.00 creates a clear preference for independently verifiable evidence, where such evidence is not available, the Board must consider other relevant information.

A1603799
The worker was employed by a BC corporation installing satellite television systems under a contract with a national corporation, which in turn contracted with a national telecommunications company. The worker filed a discriminatory action complaint against both the BC corporation and the national corporation. The WCAT panel concluded that since the constitutional question in the appeal concerned division of powers, not the Canada Charter of Rights and Freedoms, WCAT's common law jurisdiction to consider constitutional questions was not limited by section 45 of the Administrative Tribunals Act. The panel found that labour relations, including discriminatory action complaints under the Workers Compensation Act (Act), are generally within provincial constitutional authority, but that authority may be curtailed where it intrudes into the core operations of the federal telecommunications power. Both the provincial and national corporations performed 95% of their work for two federally regulated telecommunications companies; consequently, both were integral to the core operations of those companies. Accordingly, Part 3 of the Act did not apply to them.

A1606855
In an application for a stay pursuant to item #8.3 of the Manual of Rules of Practice and Procedure, the question of whether a party will suffer serious harm if the stay is not granted concerns the nature rather than the magnitude of the potential harm. Serious harm may be harm that cannot be quantified in monetary terms, or that cannot be cured. A partial stay of a remedy may be granted in order to achieve a balance of convenience between the parties.

A1700289
Where the Permanent Disability Evaluation Schedule (PDES) specifically identifies the pathophysiology underlying an impairment, a permanent partial disability award for a similar impairment that does not result from that pathophysiology is not a scheduled award, and section 239(2)(c) of the Workers Compensation Act does not apply. However, the PDES may still be used as a guide for determining the amount of the award on a judgment basis.

2016

A1601379
This decision is noteworthy for its analysis of whether a worker's conduct in assisting an injured person was such a significant deviation from the reasonable expectations of employment as to take the worker out of the course of employment. The worker, a registered nurse, was in the course of returning to her office after dropping off a co-worker to visit a client when she saw and then assisted a person lying on the road who had been stabbed. The worker was exposed to the person's blood and claimed to have suffered a mental disorder as a reaction to the traumatic event. WCAT found that the worker's action and exposure to blood arose out of and in the course of her employment.

A1603250
WCAT may consider a constitutional question that does not involve the Canadian Charter of Rights and Freedoms (Charter). WCAT does not have authority to invalidate legislation or subordinate legislation generally, but may only determine that it is invalid and therefore inapplicable in the particular case. A Charter values analysis applies to discretionary decision-making and statutory interpretation but does not empower WCAT do indirectly what it has no authority to do directly by applying the Charter.

2016-01148
Where claims costs arising from a claim commenced during the three-year "experience rating window" could be taken into consideration in the calculation of an employer's assessment on re-registration with the Workers' Compensation Board, the employer is directly affected by a WCAT decision relating to such a claim, and has standing to apply for reconsideration of the decision. Authorizing a representative to act in all compensation matters does not mean an employer may ignore correspondence from WCAT regarding an appeal, particularly when it ought to have been apparent from the correspondence the employer received that the authorized representative might not have received the same communication. Under such circumstances, WCAT did not deny the employer an opportunity to participate in the appeal, and did not act unfairly in making a decision without the employer's participation

2015

2015-03855
This decision is noteworthy for its conclusion that where a physiological change, such as a heart condition, is attributed to workplace stress, but the worker does not have a diagnosed mental disorder, the compensability of the condition is determined under section 5(1) of the Workers Compensation Act.

2015-03772
In a reconsideration application, WCAT has the jurisdiction to address the question of whether the panel's decision not to exercise its discretionary power to obtain further evidence was a breach of procedural fairness. The decision whether to exercise the panel's discretionary authority to obtain further evidence in an appeal is better characterized as a question of procedural fairness rather than a question of substance; consequently, it falls within the scope of WCAT's reconsideration jurisdiction following the decision in Fraser Health Authority v. Workers' Compensation Appeal Tribunal 2014 BCCA 499 (affirmed, Workers' Compensation Appeal Tribunal v. Fraser Health Authority 2016 SCC 25).

2015-03765
This decision is noteworthy for its conclusion that making a "bare" claim for compensation that does not identify any occupational health or safety issues is not a protected activity under section 151 of the Workers Compensation Act.

2015-01946
This decision is noteworthy for its conclusion that on an application for reconsideration on the grounds of jurisdictional defect, the chair of WCAT may appoint a different panel than the panel that heard the original appeal when the original panel is no longer available.

2015-01712
The exclusion of compensation for a mental disorder caused by a decision of the employer relating to the worker's employment is not absolute. Where the significant stressor or series of significant stressors that were the predominant cause of the worker's mental disorder would not have occurred but for the employer's employment-related decision, and that decision was more than a trivial cause of the mental disorder, section 5.1(1)(c) of the Workers Compensation Act may not exclude compensation if, in the circumstances, the employment-related decision was too remote in the chain of causation.

2015-01459
This decision is noteworthy for its conclusion that under policy item #C3-22.30 of the Rehabilitation Services and Claims Manual, Volume II, in the absence of special and exceptional circumstances a worker is not entitled to compensation under the Workers Compensation Act for psychological impairment resulting from his or her interactions with the Workers' Compensation Board.

2015-00701
This decision is noteworthy for its analysis of the amendments effective January 1, 2014 to policy item #50.00, Interest, of the Rehabilitation Services and Claims Manual, Volume II..

2015-00574
Policy item #31.20 of the Rehabilitation Services and Claims Manual, Volume II specifically recognizes that damage can continue to occur to lower hearing frequencies after more than 10 years of exposure to hazardous occupational noise. Consequently, entitlement to a permanent partial disability award for occupational noise-induced hearing loss cannot be denied on the primary basis of a loss of hearing in the lower frequencies (below 2000 hz), despite the fact that scientific research may suggest that hazardous occupational noise does not affect hearing at the lower frequencies.

2015-00506
Section 5.1 of Workers Compensation Act (Act) applies to federal employee claims for compensation for a mental disorder on the basis that there is no direct conflict between the section 5.1 of the Act and the Government Employees Compensation Act.

2015-00465
A reasonably available occupation under policy item #40.12 of the Rehabilitation Services and Claims Manual, Volume II is one that takes into account the worker's functional capabilities, and one that the worker is medically fit to undertake. This requires the Workers' Compensation Board to consider a worker's pre-existing non compensable condition when determining whether the worker is competitively employable.

2014

2014-03154
Policy item #39.12, as it relates to non-specific chronic pain awards, is not patently unreasonable under section 251(1) of the Workers Compensation Act. Policy item #39.12 states in part that the Board will not award an enhancement factor in relation to a chronic pain award.

2014-03091
This decision provides a comprehensive summary of the legislative background informing section 23.1 of the Workers Compensation Act and policy item #41.00 of the Rehabilitation Services and Claims Manual, Volume II. The effect of the Act is to establish age 65 as the minimum date to which a worker is entitled to a pension award: in the absence of at least evenly balanced evidence to support a later date, age 65 will be used as a retirement date for the purpose of terminating a worker's total or partial disability benefit payments.

2014-02791
Bullying and harassment is interpersonal conflict which, in order to constitute a significant workplace stressor, must contain an element of abusive or threatening behaviour. Rudeness or thoughtless conduct alone is not a "significant" stressor.

2014-02222
The cost of living adjustment provisions in policy item #40.13 of the Rehabilitation Services and Claims Manual, Volume II are only applicable if the Workers' Compensation Board does not have the average earnings for the worker's post injury occupation, at the date of injury.

2014-02340
This decision is noteworthy for its discussion and application of policy item #C3-13.00 of the Rehabilitation Services and Claims Manual, Volume II to a section 5.1 of the Workers Compensation Act mental disorder claim.

2014-01931
This decision illustrates how to determine whether an application for compensation should be adjudicated as a personal injury under section 5 or as an occupational disease under section 6 of the Workers Compensation Act. For claims adjudicated under section 6 of the Act, no 'date of disablement' exists for section 55 purposes if the worker has taken no time off work.

2014-01756
This decision is noteworthy for its discussion of a review officer's authority to issue new contravention orders. The Workers Compensation Act does not grant review officers explicit jurisdiction to substitute one contravention order for another.

2014-01750
This decision is noteworthy for its consideration of the new policies under Chapter 3 of the Rehabilitation Services and Claims Manual, Volume II. Specifically, the decision shows the interplay between policy items #C3-14.00 (Arising Out of and in the Course of the Employment), #C3-19.00 (Work-Related Travel), and #C3-20.00 (Employer-Provided Facilities), and the consideration given to the various policy factors in determining whether an injury arose out of and in the course of employment.

2014-01468
This decision is noteworthy for the interpretation of "employer" in the context of section 5.1(1)(c) of the Workers Compensation Act and policy item #C3-13.00 of the Rehabilitation Services and Claims Manual, Volume II. An "employer" for the purposes of section 5.1(1)(c) is an individual with direct supervision and control over working conditions, work performance, scheduling.

2014-01368
This decision analyzes a late application for compensation of a mental disorder where the very nature of the mental disorder is alleged to have precluded a timely application for compensation.

2014-01272
This decision is noteworthy for its reference to the Occupational Health and Safety (OHS) Guidelines G-D3-115(1)-3 Bullying and harassment in assessing the meaning of "bullying and harassment" in the workplace, and how the guidelines interact with section 5.1 of the Workers Compensation Act and policy item #C3-13.00 of the Rehabilitation Services and Claims Manual, Volume II. Specifically, the objective and subjective standards as described in the guidelines are used to assess impugned conduct to decide if certain behaviours in the workplace constitute bullying and harassment.

2014-00679
The wording of policy item #31.00 of the Rehabilitation Services and Claims Manual, Volume II (Hearing Loss) does not limit the acceptance of tinnitus so that it is only compensable where it arises as a compensable consequence of an accepted claim for noise-induced hearing loss. Policy item #C3-22.00 (Compensable Consequences) may still apply if a prior compensable injury or its treatment is of causative significance to the development of tinnitus.

2014-00467
In considering the worker's argument that his permanent disability award should not terminate when he turns 65, WCAT interpreted policy item #41.00 of the Rehabilitation Services and Claims Manual, Volume II to mean that independently verifiable evidence is required to confirm a worker's subjective statement regarding his or her intention to work past age 65 and to establish the worker's later retirement date, but if such evidence is not available, a determination will be made on the available evidence, including the worker's statements.

2014-00372
This decision is noteworthy for its summary and analysis of previous WCAT decisions regarding deductions from compensation pursuant to section 34 of the Workers Compensation Act.

2014-00203
In reclassifying an employer to a different classification unit, the Workers' Compensation Board cannot take into account changes to policy item #AP1-37-2 of the Assessment Manual effective after the date of the Board's decision.

2013

2013-02924
A three-member, non-precedent panel considered policy item #C3-15.00 of the Rehabilitation Services and Claims Manual, Volume II, “Injuries Following Natural Body Motions at Work”.  A temporal relationship between the natural body motion that caused the injury and the employment activity is not, by itself, enough for a finding of sufficient employment connection between the motion and the employment.  A motion is required by the employment when performance of the motion is a compulsory or necessary part of the worker’s employment.  A motion is incidental to the employment when it is directly related to the performance of a primary employment task.

2013-02463
In cases of non-specific chronic pain, there is no discretion under policy item #39.02 of the Rehabilitation Services and Claims Manual, Volume II to grant a permanent functional impairment (PFI) permanent disability award pursuant to section 23(1) of the Workers Compensation Act in an amount greater than 2.5% regardless of the results of the evaluation.

2013-02405
This decision is noteworthy for its analysis of the factors that WCAT will take into account when considering a request for reimbursement of an expert opinion where there is no Board tariff or fee schedule.

2013-01624
This decision explains that adjudication under section 5(1) of the Workers Compensation Act includes consideration of section 5(4). In deciding appeals under section 5(1), WCAT will not give notice to parties that section 5(4) will be considered.

2013-01282
The Board’s failure to implement the Review Division’s directions for further investigation constituted a blatant Board error that necessitated the payment of interest on retroactive temporary disability benefits.

2013-01169
The fact that workplace irritant levels are within appropriate occupational health and safety limits may be of limited relevance in determining whether a worker's underlying asthma condition is aggravated by workplace exposure. While other non-sensitized people may not experience adverse effects after exposure to low levels of an irritant, the individual worker may be an unusual and 'thin skulled' person who does not fall within normal guidelines.

2013-00858
Physical proximity to the workplace does not transform an event into one that arises out of and in the course of employment; briefly witnessing a fight between two unknown men does not constitute a traumatic event.

2013-00694
The fact the worker’s symptoms arose at work does not mean that her work was of causative significance to those symptoms.

2013-00190
Findings of fact made in the course of determining whether a worker is entitled to a loss of earnings assessment are not binding in the subsequent determination of whether the worker is entitled to a loss of earnings award. Therefore, these findings of fact are not appealable to WCAT.

2012

2012-02319
This decision is noteworthy for its discussion and application of policy item #C3-15.00 in the Rehabilitation Services and Claims Manual, Volume II, and in particular its analysis of the test in policy requiring sufficient connection between the natural body motion and the worker’s employment.

2012-02521
This decision is noteworthy for its analysis of cross-examination as one of several means of obtaining evidence and the use of cross-examination in relation to the duty to act fairly under section 58(2)(b) of the Administrative Tribunals Act.

2012-02266
When an employer complies with industry practice and does not proceed in the face of actual or constructive knowledge of a safety hazard, it cannot be found to have acted wilfully or with reckless disregard for the safety of its workers; in such circumstances, when there is a lack of wilfulness or reckless disregard, a presidential penalty is inappropriate.

2012-01006
This decision is noteworthy for its analysis of the law and policy on WCAT's jurisdiction to hear appeals from Board decisions regarding vocational rehabilitation benefits.

2012-00875
This decision is noteworthy for its discussion of the test used to determine whether work is a factor in a worker's disablement. The test is not whether work activities "likely caused" the worker's condition, but whether work activities and their risk factors were of causative significance to the condition. Work activities are of causative significance when they are a more than trivial or de minimis cause of the condition. Work activities need not be the sole or predominant cause.

2012-00718
This decision is noteworthy for the approach taken by the panel to determine the amount of the worker’s partial permanent disability award under section 23(1) of the Workers Compensation Act where the worker’s presentation during a permanent functional impairment evaluation is compounded by chronic pain. 

2012-00586
This decision is noteworthy for its analysis and application of British Columbia (Workers’ Compensation Board) v. Figliola in circumstances where the issue(s) before WCAT may have already been dealt with appropriately in other proceedings.

2012-00447
This decision is noteworthy as an example of an organized analysis of the causative significance of a natural body motion, and for the weighing of conflicting medical evidence.

2012-00357
This decision is noteworthy as an example of the interpretation and application of policy item #99.20 of the Rehabilitation Services and Claims Manual, Volume II (RSCM II) when there is uncertainty around whether a reconsideration was made within the statutory timeline and the interpretation and application of item #34.32 of the RSCM II when the worker experiences a temporary lay-off during a period of compensable disability.

2012-00238
This decision is noteworthy because it is a good example of the application of policy found at items C3-14.00 and C3-21.00 of the Rehabilitation Services and Claims Manual, Volume II in cases involving workers injured while participating in sporting events associated with their employment. In particular, it addresses the issue of whether workers using their banked overtime to participate in a sporting activity are being paid for their participation.

2012-00195
This decision is noteworthy as an example of a decision that addresses the appropriate amount for a permanent disability award for depression, especially in cases where the medical evidence describes the worker’s depression as “severe”.

2011

2011-02911
This decision provides an example of the weighing of risk factors in a case of bilateral lateral epicondylitis.  

2011-02557
This decision considers WCAT’s jurisdiction over a new matter not yet decided by the Workers’ Compensation Board, and the impact of the panel’s discretion to invoke section 246(3) of the Workers Compensation Act or not.

2011-02468
This decision considers policy item #C3-14.00 and #C3-17.00 of the Rehabilitation Services and Claims Manual, Volume II and finds that a worker’s actions in standing on a chair spraying insecticide outside his kiosk arose out of and in the course of his employment and did not amount to a substantial deviation.

2011-02457
In this decision, the panel declined to follow the decision in WCAT-2008-02127 and concluded that the amount of a worker’s award based on functional impairment is properly taken into account when determining whether, for the purposes of the third criterion in policy item #40.00 of the Rehabilitation Services and Claims Manual, Volume II, a worker will sustain a significant loss of earnings.

2011-02455
This decision concludes that the general approach to the consideration of section 23.1 of the Workers Compensation Act and policy item #41.00* in the Rehabilitation Services and Claims Manual, Volume II regarding a worker's retirement age would appropriately involve a consideration of the worker's intentions at the time of injury as set out in practice directive #C5-1.

* The board of directors of the Workers' Compensation Board has enacted a new version of policy item #41.00, applicable to all Board decisions made on or after June 1, 2014. This decision applies the old version of policy item #41.00, in force prior to June 1, 2014.

2011-02370
This decision is noteworthy for its consideration of published policy regarding assaults found in policy item #C3-17.00 of the Rehabilitation Services and Claims Manual, Volume II.   The panel found the worker’s actions of borrowing money from a co-worker to buy cigarettes, and his non-payment of the loan, were not connected to his employment.  The subject matter of the dispute that led to the assault was a personal matter, and the injury was not considered to have arisen out of and in the course of the employment. 

2011-02362
Portions of policies AP1-37-1 and AP1-37-3 are so patently unreasonable that they cannot be supported by the Workers Compensation Act (Act), to the extent that they declare that classification decisions are essentially cancelled at the end of each year, and purport to authorize the Board to correct its classification errors by annually assigning employers to classification units.  The policies of the board of directors cannot grant the Board the authority to vary or cancel assignments that are based on Board error, more than 75 days after those erroneous assignments are made.  However, pursuant to section 37(2)(f) of the Act, the authority to withdraw and transfer is separate and distinct from the authority to assign.  Decisions to withdraw and decisions to transfer are new decisions rather than decisions that vary or cancel the decision to assign.  Even in the absence of a change in an employer’s operations or policy, or fraud or misrepresentation, the Board may make a new decision to withdraw an employer from the assigned classification unit and a new decision to transfer it to another classification unit after 75 days.

2011-02335
This decision is an example of a panel’s analysis of causation in a case of bilateral plantar fasciitis.

2011-01673A
This decision provides guidance regarding reimbursement of appeal expenses.  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 and the Workers’ Compensation Board’s fee schedules.

2011-01618
This decision discusses the principles applicable to reopening of a claim that has been accepted for permanent aggravation of a pre-existing but non-disabling degenerative condition because the condition has worsened. 

2011-01582
Policy items #22.33 and #22.35 of the Rehabilitation Services and Claims Manual, Volume II do not preclude the Board from adjudicating a worker’s diagnosed pain disorder, where it has previously accepted a permanent chronic pain condition.  A refusal by the Board to adjudicate a worker’s claim for a pain disorder in these circumstances constitutes an implicit denial of the claim for pain disorder.  Such a decision is reviewable by the Review Division.

2011-01422
This decision provides guidance on the approach to adjudication of an activity related soft tissue disorder that is listed in Schedule B, where the requirements in the second column of Schedule B are not met.  Regard must be had to policy item #27.40 in the Rehabilitation Services and Claims Manual, Volume II.  The requirements in Schedule B should not be imported into adjudication under section 6(1) of the Workers Compensation Act.  Neither should the statements in Practice Directive #C3-2 regarding awkward posture be determinative.

2011-01415
This decision is noteworthy for its interpretation and analysis of section 6(1) of the Workers Compensation Act and policy item #26.30 of the Rehabilitation Services and Claims Manual, Volume II. Specifically, the decision discusses factors relevant in determining whether a worker is precluded from earning full wages at the work in which they were regularly employed, particularly by the need to change jobs to avoid further exacerbation of an occupational disease.

2011-01329
This decision is an example of adjudication of a claim for carpal tunnel syndrome, where there are both non-occupational and occupational risk factors.  The panel declined to accept a medical opinion that failed to take into account the unaccustomed nature of the work activities.

2011-01042
This decision is noteworthy for its discussion of the distinction between personal care allowances and independence and home maintenance allowances.  The decision describes and clarifies the type of activities that fall within the two types of allowance.

2011-00522
This decision is noteworthy for its enumeration of potentially relevant factors to consider, when determining reimbursement of expenses of written evidence, such as expert reports.

2011-00280
In 2009, the worker claimed compensation for hearing loss due to exposure to occupational noise 25 years earlier.  The worker’s claim had been denied by the Workers’ Compensation Board and the Review Division on the basis that the worker, a paramedic, did not prove a causal connection between his exposure to loud siren noises in the early 1980s and his hearing loss diagnosed in 2009.  WCAT allowed the appeal, having found there was both contemporaneous and forensic evidence of sufficient occupational exposure to hazardous noise levels to satisfy the requirement in policy item #31.20 of the Rehabilitation Services and Claims Manual, Volume II.

2011-00268
Before a worker’s claim for compensation for carpal tunnel syndrome can be accepted, the Workers’ Compensation Board must have evidence that the worker’s work activities placed sufficient stress on the tissue affected by carpal tunnel syndrome.  The mere fact that a worker uses his or her hands or wrists while working is insufficient to establish a causal connection between the worker’s employment duties and his or her development of carpal tunnel syndrome.  WCAT noted that policy item #27.32 of the Rehabilitation Services and Claims Manual, Volume II, identifies activities which, based on epidemiological studies, are most likely to cause carpal tunnel syndrome.

2011-00833
Portions of item #40.00 of the Rehabilitation Services and Claims Manual, Volume II are so patently unreasonable that the policy is not capable of being supported by the Workers Compensation Act (Act) and its regulations and should not be applied.  Specifically, the inclusion of the phrase “an occupation of a similar type or nature” in the policy is patently unreasonable because the result is to add a restriction to entitlement to loss of earnings awards that is not consistent with or contemplated by section 23 of the Act.  Section 23 only contemplates that a worker’s occupation at the time of injury and ability to adapt to another suitable occupation be considered.  Pursuant to section 251 of the Act the policy is referred to the board of directors of the Workers’ Compensation Board.

2011-00503
There is a difference between an employer’s obligations when dealing with a generally unsafe workplace and one that is unsafe to a particular worker only because of his or her physical or mental impairment.  The panel found the odour of tobacco smoke in the workplace made it unsafe for the worker only because of the worker’s asthma.  Unlike a situation of a generally unsafe work condition, the employers in this case were not obliged to remedy the smell of smoke.  Therefore, the physically impaired worker could not use the fact that his employers did not remedy the condition as evidence of constructive dismissal.  In the circumstances, the panel determined that the employers were not motivated in any part to retaliate against the worker under section 150 of Workers Compensation Act because he refused to work in an area that smelled of smoke.

2011-00160
This decision finds that the Board was without the necessary jurisdiction to decide whether or not a federal employer engaged in discriminatory action against the federal employee contrary to section 151 of the Workers Compensation Act.

2011-00152   
Common law or employment standards approaches to remedies for wrongful dismissal or termination do not incorporate the “make whole” approach to remedy contemplated by section 153(2) of the Workers Compensation Act.  Therefore, they should be rejected as the basis for awarding remedies under this section. 

2010

2010-03142
This decision is noteworthy for its analysis of insect stings under the old version of Chapter 3 of the Rehabilitation Services and Claims Manual, Volume II in effect prior to July 1, 2010.  The decision compares the old version of Chapter 3 to the new policy in effect after July 1, 2010.

2010-03026
This decision is noteworthy for its analysis of the phrase “reasonable expectation of pecuniary benefit” in section 17(3)(i) of the Workers Compensation Act.

2010-02964
This decision is noteworthy for its analysis of whether the section 151 discriminatory action provisions of the Workers Compensation Act apply to the bare filing of an application for compensation.

2010-02437
This decision considers the application of section 6 of the Workers Compensation Act Appeal Regulation to parties whose claims are made under the Government Employees Compensation Act.

2010-01894
This decision is noteworthy for its discussion and analysis of an Additional Factors Outline award for cold intolerance arising from a knee injury as opposed to a hand injury.

2010-01650
This decision is noteworthy for its analysis of the test under section 55 of the Workers Compensation Act for determining whether special circumstances existed that precluded the worker from filing an application for compensation within the statutory timeframe.  In particular, its reference to evaluating a worker’s reasons for filing a claim late by looking at whether his or her actions were that of a reasonable person. 

2010-01298
This decision provides an example of when the Additional Factors Outline will be used, when a chronic pain award ought to be made, and when benefits ought to be paid beyond age 65.

2010-01291
This decision considers whether the "reasonable person test" should be applied when determining whether there were special circumstances that precluded a worker from filing an application for compensation within the one-year timeframe under section 55 of the Workers Compensation Act.

2010-01230
This decision considers whether the appellant was a "dependant" of the deceased worker who was "directly affected" by the decision of the Workers' Compensation Board (Board) to award spousal survivor’s benefits to the worker’s common-law spouse.  This determination was necessary to decide whether the appellant had the right under section 96.3 of the Workers Compensation Act to request that the Review Division review the Board's decision to award a spousal survivor's pension to the worker’s common law spouse.

2010-01035
This decision considers the effect of Plesner v. British Columbia Hydro and Power Authority (Plesner), 2009 BCCA 188, on a reconsideration of a decision by WCAT with respect to a mental stress claim by a sorter at a warehouse for a courier company.

2010-00928
This decision addresses the importance of parties providing invoices to support a request that WCAT order the reimbursement of expenses, in this case for an occupational therapist's report, as well as providing submissions if an amount above tariff is being requested.

2010-00781
This decision considers whether an employer terminated a worker’s employment as a shipper-receiver for reasons prohibited under section 151 of the Workers Compensation Act where the motivation for termination was partly because the worker had made a compensation claim.

2010-00598
This decision considers the application of section 5.1 of the Workers Compensation Act and policy item #13.30 of theRehabilitation Services and Claims Manual, as amended following the B.C. Court of Appeal’s decision in Plesner v. British Columbia Hydro and Power Authority (Plesner), 2009 BCCA 188, to the worker’s claim for compensation for mental stress.

2010-00430
This decision considers the meaning of "occupational environment" in section 151 of the Workers Compensation Act, which addresses prohibited discrimination against workers.

2010-00396
Section 239(2)(b) of the Workers’ Compensation Act precludes WCAT from hearing an appeal of a decision of the Workers’ Compensation Board to set aside a previous decision to grant vocational rehabilitation and to declare an overpayment under section 96(7) of the Act.

2010-00191
This decision is noteworthy for its analysis of when a separate permanent functional impairment award for cold intolerance will be awarded, in addition to a chronic pain award.


2009

2009-03197
This decision found that a request to WCAT to a stay an order of the Workers' Compensation Board may be dismissed if the application for the stay is not made until several months after an appeal was filed with WCAT, and sufficient reasons for the delay are not provided.

2009-03071
This decision discusses whether a personal activity of retrieving a container of oil from the worker’s vehicle amounts to a significant deviation, which removes a worker from the course of her employment.

2009-02847
This decision considers whether special circumstances existed that precluded the filing of a notice of appeal on time where there was some question as to when the decision under review was received by the worker, but no argument that it was received within the statutory appeal period.

2009-02750
This decision considers whether or not the determination of the worker's restrictions and limitations were factual matters that were material to the worker's increased permanent disability award and thus appealable to WCAT.

2009-02609
A WCAT panel found that, in determining an appropriate monetary remedy for a worker in circumstances where an employer terminates the worker in violation of section 151 of the Workers Compensation Act (which prohibits discriminatory actions), the fact that a worker had only worked for the employer for a short period of time is irrelevant. The panel also determined that policy item D6-153-2 of the Prevention Manual is not patently unreasonable to the extent that it provides that employment insurance benefits received by a worker are not to be considered in measuring a worker's actual loss.

2009-01863
This decision provides an analysis of whether it was appropriate to increase a permanent functional impairment award for cold intolerance in a case where the worker's employment as a long haul truck driver required periods of working in a refrigerated container.

2009-01313
This decision determined that "distinct change" for the purpose of policy item AP1 37 3(4), which relates to the transfer of an employer's experience rating upon a change in the employer's industry classification, should be interpreted as allowing for the potential transfer of experience rating unless an employer's new operations represent a clear and marked difference from their former operations.

2009-01094
This decision determined that the limitation period set out in section 55 of the Workers Compensation Act, which requires a worker to apply for compensation within one year of the date of injury or disablement from occupational disease, does not apply to an application by a worker for compensation related to a consequence of the original injury where the Workers' Compensation Board has already accepted the original injury.

2009-00644
This decision is noteworthy as it considers proportionate entitlement under section 5(5) of the Workers Compensation Act where a worker’s psychological disability is superimposed on a pre-existing psychological disability that had previously impaired his earning capacity.

2009-00491
This decision is noteworthy as it provides an analysis of June 2004 revisions to policy item #20.20 of the Rehabilitation Services and Claims Manual, Volume II, which addresses injuries sustained by a worker while he or she is engaged in recreational, exercise or sports activities.  It also considers the application of that policy to a teacher involved in an extra-curricular sports activity (volleyball).  

2009-00149
This decision is noteworthy as it provides an analysis of why disclosure of a claim file is not an appropriate method for communication of a decision.

2009-00141
This decision is noteworthy as it sets out that WCAT lacks jurisdiction to hear an appeal from a determination by the Review Division with respect to whether or not a request for review was filed within the 90 day time limit in section 96.2(3) of the Workers Compensation Act (Act) in the context of the chief review officer (or delegate) making a decision under section 96.2(4) of the Act.

2009-00113
This decision is noteworthy as it provides an analysis of whether WCAT has jurisdiction to consider an appeal regarding income continuity benefits in light of section 239(2)(b) of the Workers Compensation Act.


2008

2008-03843
This decision is noteworthy as it provides an analysis of the criteria WCAT takes into consideration when determining whether to issue a stay under section 244 of the Workers Compensation Act pending an employer’s appeal of a discriminatory action decision.

2008-03676
This decision is noteworthy as it provides an analysis of WCAT’s jurisdiction to summarily dismiss an appeal under section 31(1)(g) of the Administrative Tribunals Act where the substance of the application has been appropriately dealt with in another proceeding. 

2008-03567
This decision is noteworthy as it provides an analysis of what triggers the time period for requesting a review where a decision by the Workers’ Compensation Board is communicated to the parties at different times.

2008-03461
This decision is noteworthy as it provides an analysis of whether an oral communication of a Board decision declining to accept a claim precludes a worker or employer from proceeding with a review of a subsequent written decision. 

2008-03257
This decision is noteworthy for its analysis of the factors to consider with regard to chronic pain and disfigurement awards.

2008-03007
This decision is noteworthy as it provides an analysis of the percentage of impairment to be awarded for sensory loss under policy item #39.40 of the Rehabilitation Services and Claims Manual, Volume II and the Additional Factors Outline guidelines.

2008-02713
This decision is noteworthy as it provides an analysis of whether the presumption in subsection 5(4) of the Workers Compensation Act has been rebutted.

2008-02706
This decision is noteworthy as it considers whether WCAT has jurisdiction to consider an appeal of a decision by a review officer regarding a refusal by the Workers’ Compensation Board to impose an administrative penalty under Part 3 of the Workers Compensation Act.

2008-02573
This decision is noteworthy as it provides an analysis of the administrative penalty and claims cost levy provisions of the Workers Compensation Act and Occupational Health and Safety Regulation, and in particular it reviews the criteria to be considered in determining quantum when imposing a penalty or levy.

2008-02078
This decision is noteworthy as it provides an example of how to weigh conflicting medical opinions and address credibility issues.

2008-01799
This decision is noteworthy as it provides an analysis of the status of persons who are involved in an accident when travelling between a home office and a work site.

2008-01745
This decision is noteworthy because it illustrates the application of the March 19, 2008 amended policy (2008/03/19-01, “Re: Average Earnings – Exceptional Circumstances”), and Practice Directive #C9-12 regarding exceptional circumstances.

2008-01577, 2008-01578
This decision is noteworthy as it provides an analysis of whether a party is an independent operator or a worker, and whether another party is a volunteer or in an employment relationship.

2008-01545
This three person non-precedent panel determined that temporary wage loss benefits payable to a teacher in the months of July and August should be paid to the employer.

2008-01391
This decision is noteworthy because it provides an analysis of the jurisdiction of the Review Division and WCAT to decrease a permanent partial disability award where such an award is appealed, but entitlement to an award for loss of range of motion to the cervical spine is not raised in the Request for Review.

2008-00639
This decision is noteworthy for its analysis of the responsibility on an employer to register with the Workers’ Compensation Board (Board). Where the employer believes that the Board promised not to levy penalties or interest on employers who voluntarily registered, it is doubtful that WCAT has the authority to provide relief in the nature of promissory estoppel or equitable estoppel.

2008-00584
This decision is noteworthy for its analysis of the factors to be considered when determining whether it is unreasonable for a worker to refuse selective light employment.

2008-00457
Reconsideration decision by the chair. 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 Manual of Rules of Practice and Procedure is amended accordingly.

2008-00343
This decision is noteworthy for its analysis of the effect on a subsequent WCAT panel of the findings made in prior Review Division and WCAT decisions as they relate to a worker’s entitlement to a loss of earnings award.

2008-00166
This decision is noteworthy as it provides an analysis of section 5(3) of the Workers Compensation Act and policy item #16.60 of the Rehabilitation Services and Claims Manual, Volume II regarding injuries solely attributable to the serious and wilful misconduct of the worker, and the related issue of relief of claims costs.

2008-00058
Reconsideration decision by the chair. Section 243(3) of the Workers Compensation Act (Act) contains a residual discretion to deny an extension of time application even when the requirements of sections 243(3) (a) and (b) of the Act had been met. The original panel’s statutory interpretation of the word “may” in section 243(3) was not patently unreasonable

2008-00031
Reconsideration application. WCAT does not have the authority to reconsider and set aside a seized Appeal Division decision which was issued after March 3, 2003 on the basis of jurisdictional error (common law grounds).


2007

2007-04002
As ordered by the British Columbia Supreme Court on judicial review, a WCAT precedent panel reconsidered their prior precedent panel decision, WCAT-2005-03622-RB dated July 8, 2005, concerning the payment of interest on retroactive compensation benefits. The precedent panel declined to initiate a referral of the new interest policy to the WCAT chair under section 251 of the Workers Compensation Act (Act). The worker had originally appealed the Workers' Compensation Board (Board) officer’s decision on the payment of interest to the (former) Workers’ Compensation Review Board, and the appeal had been transferred to WCAT for completion following the March 3, 2003 changes to the Act. The precedent panel referred the Board decision back to the Board under section 38(2) of the transitional provisions of Part 2 of the Workers Compensation Amendment Act (No. 2), 2002. The precedent panel directed the Board to make a fresh decision concerning the worker’s entitlement to interest in light of the court decision and any further policy direction which might be provided by the board of directors of the Board. The B.C. Supreme Court decision has since been quashed by the B.C. Court of Appeal in Johnson v. Workers' Compensation Board, 2008 BCCA 232. The B.C. Court of Appeal referred the matter back to the B.C. Supreme Court for consideration of the issues in the petition that remain to be determined.

2007-03680
This decision is noteworthy for its analysis of the application of sections 5(1), (3) and (4) of the Workers Compensation Act and of policy item #16.60 of the Rehabilitation Services and Claims Manual, Volume II on Serious and Wilful Misconduct.

2007-03606
This decision is noteworthy as it illustrates the complexity involved in determining whether the status of an individual under workers’ compensation law and policy is that of a worker, labour contractor, or an independent operator/firm.

2007-03559
This decision is noteworthy for its analysis of the requirement for corroboration of the worker’s status as an apprentice when considering the exception to the general rule for setting the long term wage rate.

2007-03478
This decision is noteworthy for its consideration of the practical effects for the worker arising from the interaction between claiming for automobile insurance benefits and subsequently for workers’ compensation benefits in the context of determining whether there were special circumstances which precluded the worker from filing an application for compensation within one year of the date of injury.

2007-03458
This decision is noteworthy for its analysis of a worker’s credibility where he could not clearly recall the item he was lifting in the workplace at the time he felt a pinching pain in the back of his neck.

2007-03304
This decision is noteworthy because it considers whether tinnitus alone entitles a worker to a permanent disability award and, in particular, an award based upon chronic pain.

2007-03165
This decision is noteworthy because it provides an analysis of whether the former or the current provisions of the Workers? Compensation Act apply to a permanent disability award for occupational noise-induced hearing loss.

2007-03064
This decision is noteworthy for its discussion of whether a prior WCAT panel made findings of fact and, if so, whether they were binding on subsequent decision makers, including this WCAT panel.

2007-02982
This decision is noteworthy because it provides an analysis of how to determine an apprentice?s long term average earnings for purposes of setting a long term wage rate.

2007-02967
This decision is noteworthy because it provides an analysis of the use of Robinson?s Tables and expert evidence in an occupational noise-induced hearing loss claim.

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2007-02958
This decision is noteworthy because it provides an analysis of whether a worker?s heart attack arose out of and in the course of his employment.

2007-02935
This decision is noteworthy as it illustrates the application of the presumption in section 5(4) of the Workers Compensation Act that is, where an injury or death is caused by an accident, where the accident arose out of the employment, unless the contrary is shown, it must be presumed that it occurred in the course of the employment and vice versa. This decision evaluates what would be evidence to the contrary, and explains the difference between speculation and evidence. It also illustrates when a subpoena (order) to obtain records from the Workers’ Compensation Board and the police will be issued.

2007-02651
This decision is noteworthy as it illustrates a situation where, following a no show at an oral hearing, the appellant’s appeal was dismissed for failure both to comply with an implicit order of the WCAT to attend the oral hearing, and to diligently pursue the appeal.

2007-02634
This decision is noteworthy as it examines the factors to consider when determining whether an injury which occurs in a parking lot constitutes a personal injury arising out of and in the course of employment. This decision provides a summary of other WCAT decisions which have addressed the factors to be considered with respect to parking lot injuries.

2007-02604
This decision is noteworthy because it examines the exception in policy item #16.50 of the Rehabilitation Services and Claims Manual, Volume II "Emergency Actions” whereby claims may be accepted from workers who, in the ordinary course of their work, are situated in an environment which, by its very nature, may become the site of an emergency situation.

2007-02600
This decision is noteworthy because it provides an analysis of how to address conflicting medical evidence in determining a worker?s entitlement to a permanent disability award for noise-induced hearing loss.

2007-02562
This decision is noteworthy because it provides an analysis of the application of the law and policy related to the adjudication of a de Quervain?s tenosynovitis claim.

2007-02502
This decision is noteworthy because it explains the difference between the jurisdiction of WCAT and that of the court in section Go to Top257 of the Workers Compensation Act determinations.

2007-02492
This decision is noteworthy for its analysis of whether participation in horseplay in a forestry camp involved a substantial or insubstantial deviation from employment.

2007-02436
This decision is noteworthy because it provides an analysis of a situation where a worker?s claim was accepted for a work-caused temporary aggravation of pre-existing asthma.

2007-02166
This decision is noteworthy as an illustration of a decision regarding a worker’s “earning potential” when determining the average earnings for purposes of the long-term wage rate.

2007-02083
Reconsideration Application. WCAT does not have the authority to set aside and reconsider a previous Appeal Division decision that was issued prior to March 3, 2003, when the Appeal Division ceased to exist (transition date), on the basis of jurisdictional error (common law grounds).

2007-02032
This decision is noteworthy because of its analysis of expert evidence in the context of determining whether a worker sustained a personal injury arising out of and in the course of employment.

2007-01927
This decision is noteworthy for its analysis of what constitutes a reviewable decision which has been communicated both orally and in writing.

2007-01893
This reconsideration decision is noteworthy because of its determination that, for purposes of meeting the requirements of section 256(3) of the Workers Compensation Act, new medical evidence is not “substantial” if it is based upon different facts than those which formed the basis of the original panel’s decision and if it is ambiguous in terms of the degree to which it supports a finding that the worker’s problems were due to his employment.

2007-01737
This decision is noteworthy as the three person (non-precedent) panel discusses the measure of deference to be given to a non-binding Practice Directive of the Workers’ Compensation Board, operating as WorkSafeBC (Board), when determining the status of an individual under the Workers Compensation Act and Board Go to Toppolicies.

2007-01520
This decision is noteworthy as an example of a useful and detailed analysis of a permanent disability award based upon loss of range of motion.

2007-01419
This decision is noteworthy as it determines what expenses associated with the attendance of an orthopaedic surgeon as an expert witness at an oral hearing may be reimbursed.

2007-01340
This decision is noteworthy as an illustration of a well-reasoned decision involving the weighing of evidence when determining a claim for a left shoulder injury following a work-required motion.

2007-01194
This decision is noteworthy for concluding that the Supreme Court of British Columbia decision in Cowburn v. Workers’ Compensation Board of British Columbia does not encompass circumstances where a worker’s claim is reopened for a period of additional temporary disability benefits after June 30, 2002. The Cowburn decision considered the definition of recurrence in relation to a deterioration of a permanent condition, and not a recurrence of a temporary disability, after June 30, 2002.

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2007-01040
Reconsideration of a previous WCAT decision. The reconsideration panel provides a discussion of the binding effect of a previous WCAT decision on a subsequent WCAT panel. The subsequent panel had relied upon new medical evidence in refusing to be bound by a prior WCAT decision. This was patently unreasonable and the decision was set aside as void.

2007-00880
Reconsideration of a previous WCAT decision.  The reconsideration panel set aside as void a decision which denied an extension of time application on the basis that the original panel considered that there were different standards expected from legal counsel as opposed to lay representatives when filing a notice of appeal within time.  It is the conduct of the applicant, not the representative, that is paramount and, thus, the factors the original panel took into account were predominantly irrelevant and thus the decision was patently unreasonable.

2007-00798
This decision is noteworthy as an example of the distinction between an informational letter which is not reviewable and an adjudicative decision which is reviewable in the context of an implementation of a WCAT decision.

2007-00769
This decision is noteworthy for its discussion of the relevant information used in determining whether a worker would have worked past age 65. Section 23.1 of the Workers Compensation Act provides the Workers’ Compensation Board (Board) with the authority to extend permanent disability payments beyond age 65 where the Board is satisfied that the worker would have retired after this age if he had not been injured.

2007-00655
This reconsideration decision is noteworthy because it illustrates that a party should raise any concern regarding a possible breach of procedural fairness or natural justice at the earliest practicable opportunity. Otherwise, WCAT may find that the party has waived the right to raise such an objection after the decision has been issued.

2007-00524
This decision is noteworthy because it describes the process and type of evidence needed for accepting an actual or potential significant permanent change in a permanent functional impairment which would warrant a referral to the Disability Awards Department of the Workers’ Compensation Board for a Go to Topreassessment.

2007-00515
This decision is noteworthy as WCAT allowed the employer’s appeal, finding that a flight attendant’s breast cancer was not due to the nature of her employment that is, her exposure to ionizing and cosmic radiation during long-haul/intercontinental flights.

2007-00511
This decision is noteworthy as it illustrates the factors to consider when applying the Workers’ Compensation Board’s policy on horseplay to the facts of a particular case.

2007-00475
This is a reconsideration of a prior WCAT decision. WCAT has the authority to grant reimbursement of expenses under section 7 of the Workers Compensation Act Appeal Regulation in connection with a summary decision regarding a request by the appellant to withdraw the appeal.

2007-00430
This decision is noteworthy as the three person (non-precedent) panel considers the fundamental question of whether a statement by a WorkSafeBC officer is merely a finding of fact that cannot be the subject of a review or appeal, or whether that statement is a decision that can be the subject of a review or appeal.

2007-00316
This decision is noteworthy because it describes the occupational health and safety responsibilities of an employer towards its workers even when a worksite injury involves a member of the public.

2007-00293
This decision is noteworthy as a reconsideration panel sets aside the original WCAT decision on the basis that the original panel did not address the request for an oral hearing and, thus, did not consider the important issue of the worker’s right to be heard adequately, or at all.

2007-00171
This decision is noteworthy as an example of how to assess the relative merits of expert evidence when determining whether a worker is entitled to an additional permanent disability award for chronic pain pursuant to section 23(1) of the Workers Compensation Act and item #39.01 of the Rehabilitation Services and Claims Manual, Volume I.


2006

2006-04763
This decision is noteworthy for its analysis of the effect of an unappealed decision not to accept a pre-existing degenerative condition when that decision was issued more than 75 days before the acceptance of a new medical condition.

2006-04412
The defendant truck driver was swerving into oncoming traffic when he crossed the centre lane and struck the plaintiff’s vehicle. Policy item #16.30 of the Rehabilitation Services and Claims Manual, Volume II (RSCM II) regarding assaults contemplates intentional behaviour. Given that conduct that constitutes an assault or suicide requires the element of intent, there was insufficient evidence to establish that the defendant’s erratic driving behaviour was either an attempt to commit suicide or assault against the drivers of oncoming vehicles. The evidence was that his erratic behaviour was due to severe impairment caused by ingestion of methamphetamine and cocaine. However, pursuant to item #16.10 of the RSCM II, so long as the employment activity was of causative significance in the death of the worker, the fact that his or her intoxication was also a contributing factor is not a basis for denying compensation coverage. Both the defendant’s intoxication and his employment activity of driving a truck were of causative significance in his death; absent either one, the deaths would most likely not have occurred. Applying the policy on intoxication, the defendant’s action or conduct that allegedly caused a breach of duty of care arose out of and in the course of his employment, notwithstanding the impairment.

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2006-04203
This decision is noteworthy as it reconciles two lines of WCAT decisions relating to the jurisdiction to review a Workers' Compensation Board officer’s refusal to render a further decision.

2006-04128
The worker’s injury occurred before June 30, 2002, and his claim was reopened in 2004 for temporary benefits which were paid under the current provisions of the Workers Compensation Act (Act) and Workers’ Compensation Board policy. Amended policy item #1.03(b) of the Rehabilitation Services and Claims Manual (RSCM) limits reassessments of pension entitlements under the former provisions to workers who were granted a pension prior to June 30, 2002. Given the judgment in Cowburn v. Workers' Compensation Board and the provisions of the Act, it does not appear that this policy is patently unreasonable. Since the worker was not awarded a pension before June 30, 2002, he was now disallowed from receiving a pension reassessment under the former provisions of the Act and the RSCM.

2006-04061
Reconsideration of WCAT decision. The obligation for WCAT to address an issue does not require, in all circumstances, that the WCAT decision provide a final resolution of all such issues so as to avoid the need for further adjudication by the Workers' Compensation Board in implementing the WCAT decision.

2006-04059
Where an employer rents land to different companies in several different industry classifications, the “inescapability inclusion exception” in policy item AP1-37-1 of the Assessment Manual cannot apply because there is no single industry classification to which the employer’s classification can be the “same”. Affiliation in the sense of common directors and/or family connections between two firms is not a necessary or a sufficient condition of “inescapability” in this policy.

2006-04043
This decision is noteworthy as an example of the application of policy item C14-101.01 of the Rehabilitation Services and Claims Manual and the WorkSafeBC (Board) Best Practice Information Sheet #5.   Among other things, these provide that the Board may change a decision that had been made more than 75 days previously and that has not been appealed where an appeal body varies or cancels a different but related decision upon which the decision depended.  Here, WCAT confirmed a Board decision that changed an earlier unappealed Board decision relating to a worker’s entitlement to a loss of earnings award.  WCAT did so on the basis that an earlier WCAT decision varying a Board vocational rehabilitation decision removed the foundation for the Board’s original loss of earnings decision.

2006-03916
A preliminary issue was raised in this section 257 application regarding the duty on the Appeal Division of the Workers’ Compensation Board (Appeal Division) to invite participation by third parties who might be named as defendants in a legal action. Given the evidence before the Appeal Division that the plaintiff was contemplating legal action and the prospect that this could lead to a section 11 (now section 257) application, the Appeal Division should have invited the third parties/defendants to participate as interested persons. On the facts of this case, although the third parties/defendants could have asserted their interest in participating in the proceeding, they did not have a duty to apply for interested party status until the worker brought her legal action.

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2006-03851
This decision is noteworthy as an example of the factors relevant to determining whether a person is a “person of similar status” to the worker when calculating the worker’s long term average earnings under section 33.3 of the Workers Compensation Act .  Such factors may be informed by an applicable collective agreement and may include the worker’s seniority level and defined position.  The fact that a worker performs essentially the same functions as another worker does not necessarily mean that the other worker is a “person of similar status”.

2006-03799
Reconsideration of a WCAT decision. A WCAT panel may proceed to address a related facet of causation even if it had not been expressly addressed in a prior decision of the Workers' Compensation Board (Board), as long as no further evidence was required and there were no natural justice concerns. While a panel may elect to first obtain a determination by a Board officer under section 246(3) of the Workers Compensation Act (Act), it is not a statutory prerequisite to the WCAT panel taking jurisdiction.

2006-03798
Policy item AP1-38-2 of the Assessment Manual authorizes the Workers' Compensation Board (Board) to include dividend income in a firm’s assessable payroll only to the extent that the included dividend amount is reasonably equivalent to the value of the active shareholders’ services. Example 2 of practice directive 1-38-2(A) is inconsistent with the policy to the extent that it authorizes the Board to include all dividend payments in assessable payroll, without regard to the value of the shareholders’ activities.

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2006-03676
This decision is noteworthy as the employer’s estoppel argument regarding a payroll allocation change to another classification unit was successful to the extent that the employer was entitled to rely on the representations of the assessment officers, but only until the employer became otherwise aware, or should have been otherwise aware, that the Workers' Compensation Board had officially clarified its practice and its position with respect to the payroll allocation for ski rental activities/payroll.

2006-03608
The role of a Board Medical Advisor is to provide medical expertise, not to interpret and apply policy of the Workers Compensation Board operating as WorkSafeBC (Board). The Board may not rely on internal guidelines where to do so would result in ignoring binding Board policy. In general, it is possible to duplicate a worker’s job in a work simulation.

2006-03504
The employer bears the onus of providing evidence to the Workers Compensation Board operating as WorkSafeBC when disputing its industry classification. Evidence from financial statements and news releases may be sufficient to demonstrate an employer is engaging in mineral exploration activities for the purposes of determining its industry classification.

2006-03220
This decision is noteworthy for its discussion of the limits to the jurisdiction of the Review Division of the Workers Compensation Board and WCAT.

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2006-03192
The Workers Compensation Board operating as WorkSafeBC (Board) and the Review Division of the Board are not bound by comments made by a WCAT panel that are not essential to the decision being made.

2006-03125
Where a worker was injured prior to the transition date (June 30, 2002) and has a recurrence of temporary disability after that date, pursuant to section 35.1(8) of the Workers Compensation Act (Act) and policy item #1.03(b) of the Rehabilitation Services and Claims Manual, the current provisions of the Act apply to the calculation of the worker’s temporary disability wage rate. The recent amendments to item #1.03(b)(4) in response to the Cowburn decision do not affect the calculation of wage loss benefits for the recurrence of a temporary disability. They only apply to the calculation of benefits when there has been deterioration of a permanent disability.

2006-03087
This decision is noteworthy because of its discussion of the issues that arise if a worker has a permanent condition accepted under a claim, but the permanent functional impairment examination does not provide reliable range of motion findings. 

2006-03078
This decision is noteworthy for its discussion of the circumstances in which a dependant of a deceased worker, as opposed to the deceased worker’s estate, has standing to initiate and/or pursue an appeal at WCAT

2006-03045
This decision is noteworthy for its application of section 33.3 of the Workers Compensation Act and item #67.50 of the Rehabilitation Services and Claims Manual, Volume II in determining the average earnings of a regular worker employed for less than 12 months with the injury employer.

2006-03016
WCAT has jurisdiction to hear an appeal from a decision by the Review Division of the Workers’ Compensation Board (Review Division) dealing only with the implementation a previous Review Division decision directing the Workers’ Compensation Board to reimburse the worker for the expense incurred in obtaining an expert opinion where the expert opinion was tendered before the Review Division and the substantive issue is not before WCAT.

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2006-03001
Reconsideration of a WCAT decision. A party that alleges bias on the part of a WCAT panel must communicate its objection as soon as practicable or WCAT will consider the party has waived its right to object on this basis.

2006-02830
Reconsideration of a WCAT decision. The fact that a panel has previously decided similar issues raised in an appeal, or has obtained evidence to assist with full consideration of the issues under appeal, does not raise a reasonable apprehension that the panel has pre‑judged the case so long as there is evidence that the panel is approaching the issues with an open mind.

2006-02784
This decision is noteworthy as an example of the application of the criteria in WCAT’s Manual of Rules of Practice and Procedure for granting a stay of a decision of the Workers’ Compensation Board with respect to a claims cost levy pending the outcome of an appeal to WCAT.

2006-02698
Reconsideration of a prior WCAT decision. Although a panel is not required to identify each piece of evidence considered in reaching a decision, the failure to identify evidence in certain circumstances may be a breach of natural justice.

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2006-02669
In the absence of specific direction in the Workers Compensation Act (Act), or in Workers’ Compensation Board (Board) policy, the Board does not have the authority, pursuant to section 96(5) of the Act, to reconsider an original Board decision unless the reconsideration decision is communicated to the affected party(ies) within 75 days. Communication can be oral or written. Also, see noteworthy decision WCAT Decision #2006-02121.

2006-02659
Workers such as community health care workers will be considered travelling workers rather than workers with irregular starting points for the purposes of policy item #18.00 of the Rehabilitation Services and Claims Manual, Volume II if travelling is an essential part of the service provided, whether or not the worker is paid for the travel.

2006-02643
This was a reconsideration of a prior WCAT decision on new evidence grounds. New evidence does not have to be factual in order to meet the criteria under section 256 of the Workers Compensation Act. A new medical opinion may also be considered if it could not have been obtained prior to the original WCAT decision. New evidence is material if it is relevant to the issue before the original panel. New evidence is substantial if it has weight and supports a different conclusion than that reached by the original panel – it does not need to provide a new diagnosis. The reconsideration panel does not weigh the new evidence.

2006-02602
Reconsideration of a WCAT decision. Where a party wants WCAT to require adverse witnesses to attend an oral hearing for cross-examination, there is no breach of procedural fairness if the worker did not make an express request that a specific witness be compelled to attend the hearing. Even if a party presents arguments focussing on a particular option under a section of the Workers Compensation Act, WCAT has a duty to consider the full range of options permitted by the section and there is no obligation to provide reasons that expressly addressed each of the options.

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2006-02601
Reconsideration of a prior WCAT registry decision to accept a worker’s withdrawal of his appeal. WCAT does not have an obligation to enquire as to whether an unrepresented party understands the significance of the withdrawal of an appeal or to provide advice. WCAT is only obliged to follow fair procedures in accepting the withdrawal of an appeal.

2006-02532
This was a reconsideration of part of a prior WCAT decision to deny reimbursement of expenses. The original panel had decided the worker should not be reimbursed for the letter as it only reported the worker’s symptoms and treatment but did not provide an opinion on causation. The reconsideration panel held that WCAT panels are not bound by the guidelines set out in the Manual of Rules, Practices and Procedures (MRPP). However, panels must provide written reasons explaining how the relevant guidelines contained in the MRPP were considered and applied in the appeal.

2006-02511
Capital cost allowance deductions made in relation to a motor vehicle that does not generate revenue for a self-employed worker should be added to the worker’s net earnings and be treated as personal income for wage-loss calculation purposes.

2006-02502
Degenerative disc disease and osteoarthritis of the spine have not been designated or recognized as occupational diseases by the Workers’ Compensation Board (Board). To establish employment causation, it must first be established that the proposed relationship is biologically plausible. There must be sound evidence that whole body vibration (WBV) can cause or accelerate lumbar degenerative disc disease. WBV may be a significant contributing factor in low back disorders. It may be difficult to obtain reliable evidence of the extent of exposure which includes both amplitude of vibration and duration. To estimate the vibration amplitude exposure of a worker who has used different types of equipment over long periods of time, it is appropriate to use measurements found in the literature. It is appropriate to refer to standards of exposure to WBV from different jurisdictions as the Board has not created standards.

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2006-02497
This decision is noteworthy as an example of the application of the amended policy items #14.00 and #20.20 of the Rehabilitation Services and Claims Manual, Volume II relating to recreational, exercise or sports injuries.  Where a worker is injured playing a sport, the injury cannot be said to arise out of and in the course of employment where the only connection between the injury and the worker’s employment is a job requirement that the worker be physically fit.  The mere existence of an employment related sports team, or a regular game such a team might play in, is not sufficient to establish a clear intention on an employer’s behalf to foster good community relations.

2006-02475
This was a reconsideration of a prior WCAT decision. The original panel’s use of the term res judicata was not necessary to its conclusion on jurisdiction. The original panel’s conclusion is supported by the limits on the authority of the disability awards officer to assess the worker’s disability related to the conditions accepted under the claim, and the general 75-day time limit on the reconsideration authority of the Workers’ Compensation Board in section 96(5)(a) of the Workers Compensation Act; the conclusion is also consistent with item #14.30 of WCAT’s Manual of Rules of Practice and Procedure. Tribunals are not bound by the concept of res judicata. There was no jurisdictional error in the WCAT decision.

2006-02462
This reconsideration decision is noteworthy because it provides an analysis of the employer’s allegation of reasonable apprehension of bias on the part of the original panel because she had been the decision maker on a prior Workers’ Compensation Review Board panel involving the same worker and claim. A reasonable person, properly informed and viewing the circumstances realistically and practically, would not conclude that the decision-maker might be prone to bias.

2006-02341
The effect of the amendments to the Workers Compensation Act occasioned by the Workers Compensation Amendment Act (No. 2), 2002 (Bill 63) is that Medical Review Panel certificates may not be reconsidered on the basis of significant new evidence.

2006-02310
This decision is noteworthy for providing a detailed discussion of the process for determining permanent functional impairment awards for psychological impairment.

2006-02262
This decision is noteworthy because it is a good example of the application of the policy found at item #15.20 of the Rehabilitation Services and Claims Manual, Volume II to cases involving natural body motions. It also considers the three questions set out in WCAT Decision #2005-04824 for determining whether an injury following a motion in the workplace arises out of and in the course of employment.

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2006-02121
In the absence of specific direction in the Workers Compensation Act (Act), or in Workers’ Compensation Board (Board) policy, the Board does not have the authority, pursuant to section 96(5) of the Act, to reconsider an original Board decision unless the reconsideration decision is communicated to the affected party(ies) within 75 days. Also, see noteworthy decision WCAT Decision #2006-02669.

2006-02105
A letter from the Workers’ Compensation Board (Board) communicating a finding of fact that will affect entitlement to benefits at a future date is not a reviewable decision that may be appealed to WCAT. The Board may change such findings of fact before a decision affecting entitlement to benefits has been made. Thus a letter advising a worker, who was 65 years of age on the date of injury, that his retirement date would be two years after the injury was not a decision but, rather, a finding of fact.

2006-02023
The Workers’ Compensation Board cannot rely on previous findings of fact with respect to a worker’s fitness to return to work in relation to temporary wage loss benefits in deciding whether a worker is eligible for a loss of earnings award under section 23(3) of the Workers Compensation Act.

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2006-01932
Section 257 Certification to Court. The guidance formerly provided in policy item #111.40 of the Rehabilitation Services and Claims Manual, Volume II and Decision 169 of the Workers’ Compensation Reporter with regard to the determination of employer status in a section 257 application is no longer available with the deletion and retirement of the policy and Decision, but the reasoning can still be considered in the absence of any new policy.

2006-01889
This decision is noteworthy as an example of a matter referred back to the Workers’ Compensation Board under section 246(3) of the Workers Compensation Act and then returned to WCAT for completion.

2006-01779
The jurisdiction of a review officer is limited to the decisions contained in the Workers Compensation Board operating as WorkSafeBC (Board) decision being reviewed, regardless of the desirability of addressing all possible matters so that parties are not required to cycle through the appellate system. The Board has the jurisdiction under section 5(1) of the Workers Compensation Act (Act) to adjudicate entitlement arising out of the cumulative effects of prior injuries. When considering an issue, it is not appropriate to ignore the reasoning of applicable court decisions raised by a party merely because section 99 of the Act provides that court decisions are not binding on the Board.

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2006-01747
For the purposes of item #22.10 of the Rehabilitation Services and Claims Manual, entitled “Further Injury or Increased Disablement Resulting from Treatment”, it is not appropriate to distinguish between medical investigation and medical treatment. Item #20:30:30 of the Assessment Policy Manual does not merely prevent the payment of a claim for compensation by the responsible principal of an unregistered company, but also concerns their status under the Workers Compensation Act. As such, the policy applies equally to a plaintiff or a defendant.

2006-01738
This decision is noteworthy for its analysis of the factors to be considered when determining whether a worker’s credibility is in issue when determining whether to hold an oral hearing.

2006-01737
Findings of fact are not decisions for the purpose of the reconsideration, reopening, review and appeal provisions of the Workers Compensation Act. WCAT does not have jurisdiction to hear appeals from findings of fact. There is a right to request a review and to appeal any entitlement decisions that flow from findings of fact.

2006-01687
Section 251 referral to the chair. The worker was awarded a loss of earnings pension payable until he retires at age 70. The issue was whether the fixed rule in policy item #40.20 of the Rehabilitation Services and Claims Manual, Volume I (RSCM I), that payments under the rule of 15ths will not be made to workers who receive loss of earnings pensions beyond age 65, is patently unreasonable under section 23 of the Workers Compensation Act (Act). The board of directors can establish policies that constitute fixed rules provided those policies are within the objectives of the Act and their authority under the Act. The current section 82 grants the board of directors broad authority to set compensation policies. Given that payments under the rule of 15ths appear to constitute a retirement benefit that is additional to the compensation for permanent disability established under section 23, and the fact that there is a legitimate rationale for the framework established under item #40.20, the impugned policy does not unlawfully fetter the discretion granted under section 23 or involve a patently unreasonable application of section 23.

2006-01608
The Workers’ Compensation Board (Board) should reimburse workers for the expense of a general practitioner’s attendance at a WCAT hearing an amount equivalent to the Board tariff fee for a medical legal report.

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2006-01456
This decision is noteworthy for the discussion of the factors to consider in weighing unopposed expert opinions. If a medical opinion takes into account all available evidence, includes persuasive analysis and explanation, addresses the question to be answered and is unopposed by any other medical opinion, it will be considered to be relevant and entitled to significant weight.

2006-01413
The worker requested a reconsideration of a WCAT decision. The reconsideration was allowed in part. There was no indication the panel had taken a relevant policy into account ‑ policy item #1.00 of the Rehabilitation Services and Claims Manual, Volume II – in deciding if the current or former provisions of the Workers Compensation Act and related policy applied to the claim. Although the panel’s decision on her jurisdiction over lumbar spine impairment was wrong, she provided alternative reasons. The panel did not pre‑judge the appeal by alerting the parties to a previous decision she had made on the issue of jurisdiction.

2006-01383
The worker, a manual labourer, suffered multiple injuries. The medical evidence showed that he was unable to work for more than two to three hours a day and had several physical limitations. The worker’s ability to sustain full time employment was a fundamental consideration in determining whether he would be able to adapt to another suitable occupation without incurring a significant loss of earnings. The Workers’ Compensation Board should have considered the worker’s limited learning abilities, his lack of literacy skills, and the lack of available jobs in his community when determining his eligibility for an assessment for a loss of earnings award. A financial test is used for considering whether a significant loss of earnings exists.

2006-01356
WCAT has jurisdiction to certify to the court under section 257 of the Workers Compensation Act in a legal action involving a federal employee.

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2006-01337
Subsection 119(b) of the Workers Compensation Act (Act) requires an owner to disclose a known hazard as soon as practicable to any person reasonably likely to come within the scope of that hazard. Generally, an owner will not discharge its obligation by providing information of a potential hazard only at such time as the owner is aware of a specific person’s intention to engage in an activity likely to fall within the scope of that hazard, even in cases in which the person may have a legal obligation to give advance notice to the owner of their intention to engage in the activity. Section 196 of the Act authorizes the Board to levy an administrative penalty against an owner. The term “employer” as used in that section includes “owners” or any other person who employs one or more workers.

2006-01332
This was a reconsideration of a registry decision to consider a worker’s appeal abandoned. The worker filed his notice of appeal – part 1 with the former Workers’ Compensation Review Board (Review Board), which advised him that he was required to submit a notice of appeal – part 2 by April 8, 2003 or his appeal would be treated as abandoned. He was not advised that WCAT would require compliance with this same. Some communication was required from either the Review Board or WCAT about the status of the deadline in light of the March 3, 2003 statutory changes to the appeal bodies, in order for this deadline to provide sufficient basis for treating the worker's appeal as abandoned. The reconsideration was allowed on the basis of a breach of procedural fairness.

2006-01331
This was a reconsideration of a registry decision to consider a worker’s appeal abandoned. The worker filed his notice of appeal – part 1 with the Workers’ Compensation Review Board and was given a deadline for filing his notice of appeal – part 2. He was later advised that, due to changes in the appellate structure, his appeal would be considered by WCAT instead, but that he still had to file his notice of appeal – part 2 by the same deadline. When he failed to meet the deadline and provided no explanation for this failure, WCAT treated his appeal as abandoned. In these circumstances, WCAT had jurisdiction to find that the worker’s appeal was abandoned. His request for reconsideration of the WCAT decision was denied.

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2006-01197
In occupational exposure claims while certain types of exposure may cause disease, exposure, in itself, is not a disease.

2006-01155
This decision is noteworthy as it provides an overview of WCAT’s jurisdiction to consider a new diagnosis and gives a detailed analysis of a chemical sensitivity claim.

2006-01106
The worker’s counsel alleged that the vice chair assigned to a reconsideration application was biased. A reasonable apprehension of bias does not arise based on the fact that the worker’s lawyer in the current application for reconsideration also represents another client in another case who is seeking reconsideration and judicial review of one of the prior decisions of the same vice chair.

2006-00937
This decision is noteworthy for its analysis of section 17(3) of the Workers Compensation Act (Act), in particular the statutory requirement of dependency under section 17(3) (f) for a child from a common law relationship, and of a reasonable expectation of pecuniary benefit under section 17(3) (i) of the Act.

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2006-00854
The Workers’ Compensation Board must not read into a Medical Review Panel certificate more than is either certified or may be reasonably inferred from the issues and certificate when read as a whole.

2006-00583
This decision is noteworthy as an example of the factors considered when a party appealing to WCAT requests a stay of a decision of the Workers’ Compensation Board.

2006-00573
This decision is noteworthy for its consideration of the test of eligibility for a permanent disability award on a loss of earnings basis under the current Workers Compensation Act. The panel concluded: (1) it is important to consider a worker’s physical abilities to handle materials and equipment necessary for the occupation and (2) in determining the worker’s ability to continue in their pre-injury occupation or a similar occupation it is suitable to consider any medical restrictions as well as limitations.

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2006-00554
The worker developed active tuberculosis four years after being diagnosed. The employer sought relief of claim costs. The panel denied the appeal. Policy item #32.50 of the Rehabilitation Services and Claims Manual, Volume I does not establish a second date for administrative purposes for relief of claim costs consideration. The date of injury is the date of disablement, not the date of first medical treatment or the date when the disease was first diagnosed.

2006-00480
WCAT does not have jurisdiction to hear appeals from decisions by the Review Division of the Workers’ Compensation Board respecting matters referred to in section 16 of the Workers Compensation Act, that is, vocational rehabilitation.

2006-00337
This decision is notworthy because it provides an analysis of how to weigh the medical evidence in circumstances where there are conflicting medical diagnoses.

2006-00208
Reconsideration of a WCAT decision. WCAT must provide adequate reasons to explain why an oral hearing has not been held if a party to an appeal has requested one. Otherwise, there is a breach of procedural fairness. Failure to acknowledge a request for an oral hearing is a failure to exercise a discretion.

2006-00107
This decision is noteworthy for the discussion of the factors to consider in weighing conflicting expert opinions. The panel preferred the opinion of an independent psychologist as it was based on a comprehensive interview with the worker, psychological testing, and a review of the medical information on file.

2006-00104
When the Workers’ Compensation Board defines assessable payroll, its jurisdiction is broader than payments made to workers or active principals and shareholders of a company and includes payments made to the active shareholder’s mother.


2005

2005-06872
The Workers’ Compensation Board (Board) initially denied the employer’s request for relief of costs associated with a worker’s injury. The Board then made a new decision to approve the relief of costs, but denied the employer’s request for interest. The employer’s appeal was allowed. The Board made a blatant error in failing to consider its own policy on costs arising during graduated return to work programs. The “blatant error” test is similar to the common law “patent unreasonableness” standard of review, but the tests are not interchangeable.

2005-06866
The worker claimed his degenerative spinal disease was caused by exposure to whole body vibration while working as a truck driver. The panel denied the worker’s appeal. The amplitude and duration of vibration the worker was exposed to were not sufficient to establish a probability that the worker’s spinal degeneration was a result of occupational exposure.

2005-06751
A Medical Review Panel (MRP) found that the worker’s symptoms were not caused by his work. Subsequent medical resonance imaging investigations suggested the worker’s symptoms were related to a work injury. The Workers’ Compensation Board (Board) denied the worker’s request to consider the new medical evidence on the basis that it was bound by the MRP certificate. The panel agreed that the MRP certificate was binding on the Board. However, there was no evidence the Board had turned its mind to the question of whether the new medical evidence warranted a reconvening of the MRP or the establishment of a new MRP. The panel referred these questions to the Board for determination.

2005-06660
The worker requested reconsideration of a decision by WCAT that he had abandoned his appeal. The worker claimed he had asked for his oral hearing to be rescheduled. However, WCAT documented that the worker had only raised the possibility of rescheduling the hearing. The panel denied the request for reconsideration. In the circumstances, it was not unfair for WCAT to proceed with the scheduled oral hearing date. Although the worker wrote to WCAT to explain his failure to attend the hearing, WCAT received his letter after the deadline date.

2005-06645
The Workers’ Compensation Board (Board) awarded the worker a permanent disability award of 8.6% for amputation, reduced range of motion, and sensory deficits of his right hand with an additional 9.0% for reduced grip strength. The Board later rescinded the 9.0% permanent disability award for reduced grip strength. The worker’s appeal was denied. The initial Board officer had clearly incorrectly applied the Additional Factors Outline (Outline) by not turning her mind to whether the worker’s reduced grip strength had already been taken into account in the permanent disability award for reduced range of motion. The discretion provided under item #39.10 is not an unfettered discretion which may be exercised in an arbitrary manner. The Outline was established as a guide to the exercise of discretion under item #39.10.

2005-06624
WCAT precedent panel decision. A precedent panel was assigned to determine whether, in applying policy items #75 and #76 of the Permanent Disability Evaluation Schedule (the Schedule) in the Rehabilitation Services and Claims Manual, Volume II (RSCM II) concerning the lumbar spine, WCAT has broad jurisdiction to consider the worker’s appeal based on the maximum of 24% (the global range interpretation), or limited jurisdiction to consider only the portion of the award pertaining to loss of flexion for which a range in excess of 5% is provided (the local range interpretation). The panel concluded that the global range interpretation is correct because it best fits with item #39.10 of the Rehabilitation Services and Claims Manual, Volume I, the wording in the Schedule, sections 23(1) and 23(2) of the Workers Compensation Act, the reasoning expressed by the core reviewer, the statements of the Minister regarding the intent of section 239(2)(c), and section 8 of the Interpretation Act. The local range interpretation would unduly restrict appeal rights. The panel found that the global range interpretation applies to items #75 and #76 of the Schedule contained in RSCM II.

2005-06541
A letter from the Workers’ Compensation Board (Board) advising an employer that the Board had already provided a decision with regard to their entitlement to relief of costs under section 39(1)(e) of the Workers Compensation Act did not contain a new appealable decision.

2005-06524
Section 251 referral to the chair. Policy item #39.01 of the Rehabilitation Services and Claims Manual, Volume I (RSCM I) can rationally be supported by former section 23 and is not patently unreasonable under the Workers Compensation Act (Act). The 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.

2005-06488
This decision is noteworthy because it examines the requirements set out in law and policy which are needed before a worker?s wage loss benefits can be suspended under section 57(2)(b) of the Workers Compensation Act.

2005-06255
The employer, a pub operator, refused for several months to enforce section 4.81 of the Environmental Tobacco Smoke Regulation (ETS Regulation) and build a designated smoking room. The Workers’ Compensation Board imposed a $2500.00 administrative penalty nine months after the employer complied with the ETS Regulation. The panel confirmed a Category A penalty was appropriate due to the employer’s wilful non-compliance. However, the panel reduced the penalty to $1750.00 due to mitigating factors.

2005-06225
The Workers’ Compensation Board (Board) imposed an administrative penalty against the employer for violations of the Occupational Health and Safety Regulation. The panel held that as proceedings before WCAT are in the nature of a rehearing, any procedural injustice or unfairness that may have occurred in earlier Board proceedings is rectified. The panel further held that, beyond providing full disclosure of the information and evidence upon which the penalty was imposed, neither the Board nor WCAT is obliged to provide the employer with information that would assist in the employer’s defence.

2005-06121
WCAT has jurisdiction to consider appeals of decisions by the Review Division of the Worker’s Compensation Board with respect to the degree of knee ligament laxity as the total impairment may exceed 5% if a worker has laxity in more than one knee ligament.

2005-06104
An employer must provide adequate evidence to the Workers’ Compensation Board (Board) to support multiple classifications for assessment rate purposes. In the absence of such evidence, the Board must classify the employer under the single classification unit that best fits its descriptions. For classification purposes, it does not matter whether the employer subcontracts certain aspects of its operations to be done by other firms.

2005-06073
This was a reconsideration of a prior WCAT decision. The worker suffered a back injury and received a permanent disability award on a functional impairment basis, but not a loss of earnings basis. The Review Division of the Workers’ Compensation Board referred the matter back to the Workers’ Compensation Board (Board) to conduct loss of earnings and employability assessments. The worker appealed to WCAT on another issue. The original WCAT panel found that, as the Review Division had mistakenly not been informed that an employability assessment had already been conducted, the matter should not be referred back to the Board. The reconsideration panel held that the original panel had acted unfairly by not notifying the worker that the loss of earnings aspect would be addressed. This aspect of the decision was set aside as void.

2005-06063
This decision outlines the test for determining whether a party is “directly affected” under section 96.3(3) of the Workers Compensation Act and thus has standing to request a review of an inspection report issued by the Workers’ Compensation Board. The party is only required to have a real personal involvement in the matter. It is not necessary for the worker to be employed by the employer at the time the inspection report is issued.

2005-06031
Where a worker has a loss of function in multiple fingers, WCAT has jurisdiction over all the fingers where the combined upper end of the range of motion value for all the measurably impaired joints exceeds 5%. In determining whether a worker can return to his pre-injury or similar employment, decision-makers should look to the National Occupational Classification (NOC) code groupings, as directed in Practice Directive #46. When all the occupations in the NOC code groupings require heavy lifting, and the worker can no longer do heavy lifting, the first two requirements in policy item #40.00 of the Rehabilitation Services and Claims Manual, Volume II are met. A worker does not experience a significant loss of earnings if he is provided with an alternate job which will net him more income in the long-term.

2005-05961
Primarily on the basis of an assessment of credibility, the panel found that the worker was not employed by his wife under a contract of service during the one year prior to the date of his injury claim. It also found that, as required by policy item #66.00 of the Rehabilitation Services and Claims Manual, Volume II, there was insufficient verified earnings information from an independent source to set a wage rate on the worker’s claim.

2005-05949
This was a reconsideration on common law grounds of a prior WCAT reconsideration decision on new evidence grounds. The original reconsideration panel did not err in its interpretation or application of the reasonable diligence requirement in section 256 of the Workers Compensation Act, nor in its conclusion that the worker and his counsel ought to have marshalled all of the evidence that was available in support of the appeal. In applying the reasonable diligence test, the original reconsideration panel compared the worker’s actions to that of a reasonable person, and its decision that the worker had not taken the steps that would have been taken by a reasonable appellant did not give rise to a reasonable apprehension of bias.

2005-05843
Pursuant to section 251(8) of the Workers Compensation Act (Act), WCAT does not have the authority to refuse to apply a policy of the Workers’ Compensation Board (Board) where the Board of Directors of the Board has decided that the policy is not patently unreasonable and must be applied. Policy item #1.00(4) of the Rehabilitation Services and Claims Manual, Volume I and II, now item #1.03(b)(4), is broad enough to apply to an anticipated deterioration in the permanent effects of an injury or an occupational disease. The expression “date of injury”, as used in section 23.1 of the Act, does not include the date of recurrence of an injury.

2005-05830
Where the Workers’ Compensation Board (Board) has acted in good faith, and the dealings between Board officers and the claimant are within the range of the norm, depression resulting from dealings with the Board is not a compensable consequence.

2005-05621
In cases coming within the terms of the historical project, policy in the Assessment Policy Manual at No. 40:70:40 does not provide for the payment of interest prior to the date of the employer’s application for relief of costs on the basis of blatant Workers’ Compensation Board error. The 1998 resolution on section 39(1)(e) which formed the basis of this policy is not patently unreasonable in stipulating a single criterion (the date of the employer’s application) to govern the payment of interest on cases coming within the terms of the historical project.

2005-05595
This decision is noteworthy because it illustrates the use of section 252(1) of the Workers Compensation Act to suspend an appeal to WCAT pending a Workers’ Compensation Board decision respecting a matter related to the appeal.

2005-05582
This decision is noteworthy for its analysis of how testimonial evidence provided in hindsight is considered speculative in nature.

2005-05496
The worker requested reopening after recurrence of symptoms caused by an injury to her finger. There had been a complete resolution of the symptoms prior to recurrence. A plastic surgeon had indicated at the time of the original complaint that the symptoms may recur. The location and description of the physical findings at the time of reopening were nearly identical to those at the time of the original complaint. There was no evidence the worker’s subsequent symptoms resulted from non-occupational activities or an intrinsic condition. The worker’s claim was reopened for a recurrence of the original injury.

2005-05495
Section 257 determination. When a legal action is adjourned before examinations for discovery have been performed, WCAT may, if necessary, require a party to the action to be examined under oath, pursuant to section 246 and 247 of the Workers Compensation Act.

2005-05460
This decision is noteworthy for its discussion of the evidentiary foundation required to determine whether a worker is eligible for a loss of earnings assessment under section 23(3) of the Workers Compensation Act.

2005-05357
The worker suffered a compensable shoulder injury in March 2002. He was advised that his condition was likely permanent in July 2002. The panel held that, as there was no change in the worker’s condition between March and July 2002, there was an indication the injury was permanently disabling before the June 30, 2002 transition date and thus the former provisions of the Workers Compensation Act applied.

2005-05311
Where the issue under appeal is one of causation, a panel does not have an obligation to notify a party regarding any concerns the panel may have regarding the weight to be given to certain evidence. A reconsideration panel cannot reweigh the evidence before the original panel; the inquiry is whether the decision was based on a reasoned consideration of relevant evidence. A medical report which is written subsequent to the decision under reconsideration is not new evidence if it relates to evidence which existed at the time of that decision.

2005-05297
This was a section 257 determination in the context of an action in the Supreme Court of British Columbia. In determining whether a person is a worker or an independent contractor, or whether a business is an independent firm, Workers’ Compensation Board (Board) policies should not be treated as rigid rules when they have been drafted as guidelines. An active principal of a private company who is responsible for the company’s failure to register with the Board is not entitled to compensation benefits.

2005-05280
A decision of the Workers’ Compensation Board (Board) constitutes a “proceeding” under section 31(1)(g) of the Administrative Tribunals Act; therefore an application for appeal to WCAT may be dismissed if an intervening decision of the Board makes the issue before WCAT moot.

2005-05194
A refusal by a worker to participate in a graduated return to work program is not refusal to submit to essential medical treatment. Thus, the worker’s wage loss benefits may not be suspended under section 57(2)(b) of the Worker’s Compensation Act and policy item #78.13 of the Rehabilitation Services and Claims Manual, Volume I.

2005-04960
The Workers Compensation Board (Board) must implement a WCAT decision that appears to have failed to take into account Board policy. The Board cannot purport to exercise a supervisory role over WCAT decision-making which has not been conferred on the Board by the legislature.

2005-04895
The test for distinguishing between an honorarium and a wage, and between voluntary acts and employment, should be based on the actual nature of the activity and the resulting legal relationships, rather than on the motive or purpose of a non-profit society and its members. Honoraria tend to be for short term or occasional activities. The provision of a service on a daily basis, paid for on that basis, is more readily characterized as involving the payment of a wage under a contract of service.

2005-04824
A three-member, non-precedent panel was appointed to decide this case because of the inconsistency of the approaches to these types of determinations. This decision sets out the questions to be answered in determining whether, under policy item #15.20 of the Rehabilitation Services and Claims Manual, Volume II, a motion in the workplace caused an injury arising out of and in the course of employment: first, is there a deteriorating condition which brings the injury within item #15.10, and renders it noncompensable? Second, was there an “accident,” triggering the section 5(4) presumption that the accident occurred in the course of employment, or arose out of the employment? If neither apply, three broad questions must be answered in determining whether an injury following a motion in the workplace arises out of and in the course of employment: (1) Did the motion alleged to have caused personal injury take place in the course of employment? (2) Did the motion have enough work connection? (3) Did the motion have causative significance in producing a personal injury?

2005-04726
This was a reconsideration of a prior WCAT decision. At the oral hearing, the original panel explained that it had been prevented from viewing video surveillance tapes of the worker due to a failure of the Workers’ Compensation Board to furnish them to WCAT prior to the hearing, and that it would be viewing the videotapes after the hearing. The worker addressed this evidence at the hearing and did not at that time request that the hearing be reconvened once the panel viewed the videotapes. While it may be desirable for a panel to inform a worker of its preliminary views regarding this evidence so that he might then respond to them, the failure to do so does not involve a breach of procedural fairness, particularly where the worker was represented and was aware of the evidence. There was no breach of natural justice or procedural fairness in the original panel proceeding to view the videotape evidence subsequent to the oral hearing, and then making a decision without reconvening the hearing.

2005-04706
Where a decision is sent out late and the worker appeals within 30 days of her receipt of the decision, an extension of time may be granted. A worker should not be deprived of the full 30 day statutory appeal period in which to consider her options or seek advice before initiating an appeal. The requirements for the exercise of discretion in section 243(3) of the Workers Compensation Act are met: the late mailing constitutes special circumstances which precluded the initiation of the appeal within the statutory time period.

2005-04670
This decision is an example of the analysis used to determine the status of a party contracting to work for another party, namely whether that party is a worker, a labour contractor, or an independent firm. If a labour contractor is not registered as an employer, he is considered a worker of the person with whom he is contracting.

2005-04555
The employer requested reconsideration of a decision denying the employer’s application for an extension of time to appeal a decision of the former Workers’ Compensation Review Board. The employer had received a letter from WCAT that led it to believe it would have the opportunity to provide further submissions before the appeal was decided. WCAT subsequently informed the employers’ adviser that the application had been transferred to a panel for a decision. The employer took no further steps to indicate it wished to provide further submissions before the decision was made. The reconsideration panel denied the application. The communication of information to the employers’ adviser could reasonably be viewed as communication to the employer. The employer did not meet its obligation under section 256 of the Workers Compensation Act to exercise reasonable diligence in providing evidence to WCAT. WCAT was not obliged to seek clarification of any submissions made by the employer.

2005-04542
This decision is noteworthy because it examines what constitutes a clear expert medical opinion as to whether relevant treatment is reasonably essential to promote the worker’s recovery. The law and policy require an expert medical opinion or surgical advice on the claim file before a worker’s wage loss benefits can be suspended under section 57(2)(b) of the Workers Compensation Act.

2005-04517
A panel must include all written documentation in its consideration, including attachments to the notice of appeal, even if an appellant fails to draw attention to the evidence in the oral hearing. Failing to acknowledge evidence which is directly relevant to the essential issue in the appeal is a breach of the worker’s right to be heard.

2005-04492
Section 251 referral to the Chair. Whether policy in items #55.40 and #59.22 of Rehabilitation Services and Claims Manual, Volume I, which deal with dependent children’s benefits, are patently unreasonable. The worker had sons with his former common law spouse, and was living separate and apart from the children and their mother at the time of his compensable death. The children’s mother was not a dependent spouse for the purposes of section 17. The impugned element of item #55.40 provides that section 17(9) is applicable to this situation. The Chair concluded that the impugned element of item #55.40 is patently unreasonable because section 17(9) does not apply when there is no dependent spouse. Item #59.22, which applies to orphans and other dependent children, should be applied to the appeal before the vice chair because it is consistent with section 17(3)(f) and not patently unreasonable.

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.

2005-04416
In a section 11 determination, a worker who suffers further injury as a result of negligence in the medical treatment of a work-related injury is a worker within the meaning of Part 1 of the Workers Compensation Act, and any further injury arises out of and in the course of his employment. In coming to this conclusion the panel preferred an interpretation guided by an apparently retroactive policy contained only in Rehabilitation Services and Claims Manual, Volume II, even though it was unclear whether the policy was binding on a determination governed by Rehabilitation Services and Claims Manual, Volume I. If a physician is registered with the Workers' Compensation Board as an employer, his action or conduct in negligently treating a work-related injury arises out of and in the course of employment, regardless of whether the physician himself purchased Personal Optional Protection coverage.

2005-04407
This decision is noteworthy as an example of an analysis of the issue of whether a worker is eligible for pre‑operative and post‑operative wage loss benefits in relation to the repair of a hernia.

2005-04371
For a hearing loss claim, entitlement to a permanent disability award only arises when the hearing loss is of a pensionable degree under Schedule D of the Workers Compensation Act (Act), even if tests showed some hearing loss before that point. If the hearing was not of a pensionable degree before June 30, 2002, the current provisions of the Act apply. If there are no earnings at the time of the injury, it is appropriate to use the worker’s earnings in the one year prior to her cessation of employment.

2005-04320
WCAT’s jurisdiction is established by statute, in this case, section 239 of the Workers Compensation Act (Act). WCAT has no jurisdiction to address the awarding of interest in relation to a matter over which WCAT has no jurisdiction, such as vocational rehabilitation assistance. In any event, there is no statutory entitlement to interest on retroactive benefits except in the limited situations expressly addressed in the Act or Workers' Compensation Board policy. Section 6(c) of the Workers Compensation Act Appeal Regulation, allowing WCAT to award costs in exceptional circumstances, must be read within the context of the clear limitations on the authority of WCAT contained in the Act. When WCAT does not have jurisdiction over a matter, such as vocational rehabilitation assistance, WCAT cannot hear an appeal on the issue of legal fees alone.

2005-04230
A worker must establish that it is more likely than not that the chainsaw vibrations caused the osteoarthritis in his hands. A worker cannot rely on general literature which associates different kinds of vibrations with different forms of osteoarthritis in workers in different fields. Where a worker’s symptoms worsen throughout the workday and improve when he is off work, it is reasonable to conclude that the work aggravated the worker’s pre-existing condition.

2005-03920
A letter confirming a prior decision and noting the new 75 day time limit on reconsiderations is not a reviewable decision. This is an example of how section 96 of the Workers Compensation Act prevents reconsideration of a decision even when that previous decision is contrary to Workers’ Compensation Board policy.

2005-03639
In this section 257 determination, the panel could not make a determination concerning the status of one of the defendants because it was not clear from the incomplete transcript of the examination for discovery whether relevant information was being withheld. Complete transcripts should be provided when they are not too lengthy and deal with relevant matters.

2005-03633
Section 6 of the Workers Compensation Act dictates that the date of disablement must be treated as the occurrence of the injury. The statement in policy item #32.50 of the Rehabilitation Services and Claims Manual, Volume II , indicating that the date treatment is first sought should be used, applies only where there is no period of disablement and the claim is for health care expenses only.

2005-03569
Where a worker has disproportionate chronic pain arising from more than one body part, policy item #39.01 of the Rehabilitation Services and Claims Manual, Volume I does not limit a worker to one chronic pain award under section 23(1) of the Workers Compensation Act. Therefore, to the extent that disability in the workers' compensation system is reflected by an increased percentage of total disability, a worker should receive multiple chronic pain awards where more than one body part is the source of the disproportionate disabling chronic pain.

2005-03420
By virtue of section 239(2)(a) of the Workers Compensation Act and section 4(b) of the Workers Compensation Act Appeal Regulation, WCAT does not have the jurisdiction to hear appeals from decisions by the Review Division refusing to extend the 90-day time limit for workers to request a review of a Workers' Compensation Board decision from the Review Division. The statutory scheme is unequivocal in this respect.

2005-03239
This decision is noteworthy as an example of the application of the chronic pain policy found at policy item #39.02 of the Rehabilitation and Services Claims Manual, Volume II in cases involving workers with specific chronic pain. In particular, it addresses the issue of whether specific chronic pain which is aggravated by work is sufficiently disproportionate to the associated physical impairment so as to create entitlement to an award for chronic pain.

2005-03166
Recurring temporary interruptions of employment, as the phrase is used in section 33(3.2) of the Workers Compensation Act, includes interruptions that are a regular and integral part of the worker’s occupation or industry. They are not restricted to repeating annual patterns of unemployment.

2005-03006
This decision is noteworthy for its analysis of the test under section 55 of the Workers Compensation Act for determining whether special circumstances existed that precluded the worker from filing an application for compensation within the statutory time. The appropriate test is whether unusual and extraordinary circumstances existed that made it difficult or otherwise hindered the worker from undertaking the claim.

2005-02939
Section 42 of the transitional provisions in the Workers Compensation Amendment Act, (No. 2), 2002, read in conjunction with section 250 of the Workers Compensation Act (Act), requires WCAT to apply the current policies of the board of directors to all new WCAT appeals. There is no provision to apply the former policies of the board of governors in effect at the time of the accident to new applications under section 257 of the Act. However, there is a strong presumption against a retroactive interpretation of the Act. Policies in effect at the time of the accident should be applied in new applications under section 257, notwithstanding the wording of section 42.

2005-02770
Where the Workers' Compensation Board (Board) has set a worker's long term wage rate at the 10 week wage rate review it no longer has the authority to change the long term wage rate for purposes of calculating the worker's permanent disability award. Therefore, the Review Division does not have the jurisdiction to review such permanent disability award decisions where the only issue on review is the wage rate used by the Board.

2005-02580
This case is noteworthy as an example of the application of those portions of policy item #15.60 of the Rehabilitation Services and Claims Manual, Volume II which provide rules for the payment of benefits in shoulder dislocation claims where the worker has previously experienced a non-compensable shoulder dislocation.

2005-02568
WCAT does not have jurisdiction over relief of cost issues in appeals transferred from the Workers’ Compensation Review Board (Review Board) on March 3, 2003. Under former section 90 of the Workers Compensation Act, it was not possible for the employer’s appeal to the Review Board to include the issue of relief of costs. Section 38(1) of the Workers Compensation Amendment Act (No. 2), 2002 does not expressly provide for WCAT to address issues that were not within the Review Board’s jurisdiction before the appeal was transferred on March 3, 2003. Accordingly, when the appeal was transferred to WCAT on March 3, 2003, it did not include an appeal on relief of costs.

2005-02559
A motion is a work-required motion where the purpose of the motion was the accomplishment of the worker’s job. However, the fact that a motion is a work-required motion does not necessarily mean that an injury that occurred at the time of that motion arose out of the worker’s employment. All of the circumstances, and not just the temporal relationship between the work-required motion and the onset of symptoms, must be considered. The evidence must show that the work-required motion was of causative significance in producing the injury.

2005-02493
For the purposes of policy item 4(e) of Schedule B to the Workers Compensation Act, a worker’s exposure to a substance is “prolonged” when the exposure has exceeded a reasonable duration. Although the amount of the exposure must be greater than what would be received by an average person in their day-to-day life, there is no required minimum level of exposure. The exposure need not be continuous but must be frequent and ongoing. For the section 6(3) presumption to be rebutted there must be positive proof of another cause of the disease rather than merely a question as to whether the employment is the cause of the disease. In the absence of an amendment to Schedule B, it is not open to the Workers’ Compensation Board to rebut the section 6(3) presumption by asserting that the evidence in the medical literature does not, in fact, support the presumption. Although the widow applied for compensation more than 20 years after the death of the worker, special circumstances existed that precluded the widow from filing an application within one year after the worker’s death.

2005-02379
A worker who applied for reconsideration before the 75 day time limit in section 96(5)(a) of the Workers Compensation Act was enacted does not have a vested right to a reconsideration such that the new provisions should be interpreted not to have immediate effect. A worker did not have a right to a reconsideration under the former provisions, despite the application procedure set out in related policy items, because the Workers’ Compensation Board’s discretion to reconsider was unfettered.

2005-02376
(1) The Workers’ Compensation Board (Board) does not have the authority under section 96(7) of the Workers Compensation Act (Act) to set aside decisions which have been superseded by a subsequent decision of the Review Board of the Board, the former Appeal Division of the Board, or WCAT. (2) The 75 day time limit which generally applies to the Board’s reconsideration authority under sections 96(4) and (5) of the Act does not apply to decision‑making under section 96(7) on the basis of fraud or misrepresentation.

2005-02255
This decision provides a useful discussion of the nature of functional impairment permanent disability awards awarded under section 23(1) of the Workers Compensation Act and emphasizes that the earnings and the occupation of a particular worker are not factors the Workers' Compensation Board can consider when determining an individual worker’s functional award.

2005-02226
Vulnerability or predisposition to the development of personal injury or occupational disease does not constitute a pre-existing condition, disease or disability for the purpose of section 39(1)(e) of the Workers Compensation Act.

2005-02049
Section 257 determination. Elected Indian Band officials are not “workers” within the meaning of Part 1 of the Workers Compensation Act while in the course of performing duties related to Band Council activities.

2005-02034
Although WCAT's jurisdiction over scheduled awards is limited by section 239(2)(c) of the Workers Compensation Act, WCAT maintains jurisdiction over other aspects of a permanent disability award decision under section 23(1), including chronic pain, whether the worker is entitled to a loss of earnings permanent disability award, and other variables which have not been included in the scheduled percentage

2005-01943
Schedule D of the Workers Compensation Act (Act) is not a “rating schedule” compiled under section 23(2) of the Act. Therefore section 239(2)(c) of the Act does not limit WCAT’s jurisdiction to hear appeals from decisions relating to occupational noise-induced hearing loss permanent disability awards where Schedule D of the Act is used to determine the worker’s award.

2005-01937
In determining whether an employer’s activities arose out of and in the course of employment for the purposes of determining whether a court action for personal injury is barred by operation of section 10(1) of the Workers Compensation Act, “employment activities” are those activities of the employer that relate to the business as a whole, as distinct from the employer’s personal activities. Workers’ Compensation Board policy does not support dividing up an employer’s activities into activities related to the activities of his or her workers and activities related to the other aspects of the business. In the absence of any principles or guidelines, it is not possible to separate out a set of duties or tasks that make up an employer’s employment activities for the purpose of obtaining the benefit of the worker-employer bar. The failure to purchase personal optional protection is not a significant factor in determining status as an employer.

2005-01851
The Workers’ Compensation Board policy of classifying employers based on industrial undertaking rather than on occupation or hazard is consistent with section 42 of the Workers Compensation Act. Where a firm’s operations are an essential part of another firm’s operations, the firm’s classification will be the same as that of the other firm, regardless of the occupations of the firm’s workers.

2005-01826
This decision is noteworthy as an example of an analysis of when permanent disability “first occurs” under section 35.1(4) of the Workers Compensation Act.

2005-01772
(1) The Review Division does not have jurisdiction to review a decision by the Workers' Compensation Board to refuse to make a decision in relation to compensation and assessment matters. (2) WCAT does not have the general authority to order the Board of Directors to issue decisions. WCAT does have the limited authority provided by section 246(3) of the Workers Compensation Act to require the Board of Directors to make decisions in some circumstances, including to make a decision in respect of further relief of costs.

2005-01710
TThe element of policy item #1.03(b)(4) of the Rehabilitation Services and Claims Manual (RSCM), Volume I and II that characterizes a reopening of a worker’s claim for “any permanent changes in the nature and degree of a worker’s permanent disability” as a “recurrence” was referred to the Chair under section 251(2) of the Workers Compensation Act (Act). In this decision the Chair concluded that the policy is so patently unreasonable that it is not capable of being supported by the Act. Thus, section 35.1(8) of the Act cannot be rationally interpreted to mean that there is a “recurrence” when a permanent disability for which a pension was granted under the former Act permanently gets worse or deteriorates after June 30, 2002.

Note: 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 #1.03(b)(4) of RSCM Volume I and II was not patently unreasonable and must be applied by WCAT. The Board’s decision can be found on WCAT’s website. In Cowburn v. Worker’s Compensation Board of British Columbia (2006 BCSC 722), a judicial review from a Review Division decision, the British Columbia Supreme Court (BCSC) concluded that the Board of Directors’ policy on recurrence of disability in item #1.03(b)(4) is a patently unreasonable interpretation of the Act. The court’s decision may be found found on the BCSC website.

2005-01671
This decision is noteworthy as an example of analyses of the current chronic pain policy and permanent disability award (PDA) entitlement. The “other variables” that may be considered in increasing a PDA under policy item #39.10 of the Rehabilitation Services and Claims Manual, Volume II are only those variables relating to the degree of physical impairment of the worker. In claims involving injury to a limb, a comparison of the injured side to the uninjured side provides an accurate measurement of the worker’s impairment.

2005-01542
The Board has jurisdiction to determine whether a person is an “employee” pursuant to the federal Government Employees Compensation Act (GECA).  Also, persons performing work for the federal government should be given access to the same avenues of review and appeal provided under the Workers Compensation Act (Act) as provincial workers on issues relating to the nature and extent of compensation payable.  The employer applied for judicial review of WCAT’s decision and was denied (see Canadian Broadcasting v. Luo, 2007 BCSC 971).  The B.C. Court of Appeal upheld the B.C. Supreme Court’s decision (see Canadian Broadcasting v. Luo, 2009 BCCA 318).

2005-01460
This decision is noteworthy because it lists several factors the Workers’ Compensation Board should consider in exercising its discretion to allow a worker an extension of time to elect to sue or claim compensation under section 10 of the Workers Compensation Act, noting that there are no policy criteria to apply in exercising that discretion. The panel further noted that section 10 does not bar workers from pursuing other administrative remedies.

2005-01425
This decision is an example of the analysis used to determine whether a worker’s activity-related soft tissue disorder is caused by the nature of the worker’s employment. The worker engaged in frequently repetitive and awkward postures of her right wrist in the course of her employment and was diagnosed with right wrist tendonitis that improved when she was off work. These factors indicated that her employment activities caused her right wrist tendonitis. The worker also had diagnosed left wrist tendonitis. However, this could not be presumed to have been caused by employment activities under section 13(a) of Schedule B. Although the worker occasionally placed her left wrist in an extended position for a short duration, the affected tissues had an opportunity to rest as most of the job duties did not involve use of the worker’s left hand.

2005-01417
It is inappropriate to apply an enhancement factor to a permanent disability award unless there is an injury to more than one functional part of the body. The elbow and forearm constitute one functional part of the body. Devaluation is not normally applied to each aspect of loss of range of motion of a particular joint. The loss of range of movement of the elbow and forearm constitutes one injury and not an injury to two separate parts of the upper extremity such that devaluation should be applied to either or any of them. Where a surgical complication is not an expected consequence of the injury, pain resulting from the complication can be considered disproportionate and a chronic pain award given.

2005-01400
This decision is noteworthy as an example of an analysis of the issue of whether a worker’s plantar fasciitis is due to the nature of the worker’s employment and compensable under section 6 of the Workers Compensation Act.

2005-01331
This decision is an example of the analysis used to determine whether a worker’s activity-related soft tissue disorder is caused by the nature of the worker’s employment. It emphasizes the importance of determining whether there exist significant causative factors in the worker’s employment activities which meet the criteria set out in Workers' Compensation Board policy. The fact that a worker experiences physical problems while at work is not determinative.

2005-01278
This decision is noteworthy as an example of the analysis of whether there has been a recurrence of an injury under former policy item #C14-102.01 of the Rehabilitation and Services Claims Manual, Volume II.

2005-01144
A worker who settles a legal claim without prior written approval from the Board is not entitled to seek compensation from the Workers' Compensation Board (Board) for the difference between the settlement amount and the compensation which the worker would otherwise be entitled to under section 10(5) of the Workers Compensation Act. The worker is precluded from seeking compensation even where the failure to seek prior written approval from the Board is due to an error by the worker’s representative or the failure does not actually result in a financial loss to the Board.

2005-01106
For the Workers’ Compensation Board to have jurisdiction to reopen a claim under section 96(2) of the Workers Compensation Act, the symptoms that the worker reports on reopening must have been caused by the same condition for which the worker’s claim was originally accepted.

2005-01035
The worker was struck and injured by a motor vehicle in a parking lot owned by the employer as she was returning from a lunch break. The worker met the criteria listed in policy item #19.20 of the Rehabilitation Services and Claims Manual, Volume I. As the worker was acting in the course of her employment under item #21.10, she was entitled to the benefit of the presumption in section 5(4) of the Workers Compensation Act (Act) that her injuries, caused by an accident, also arose out of her employment. Her injuries arose out of and in the course of her employment under section 5(1) of the Act.

2005-00929
Although the amount of money at issue in an appeal may clearly be trivial and worthy of summary dismissal under section 31(1)(c) of the Administrative Tribunals Act, the appeal is not trivial or frivolous if it also involves the denial of a party’s right of review or appeal.

2005-00892
The worker appealed a decision by the Workers’ Compensation Board (Board) to dismiss his complaint under section 151 of the Workers Compensation Act. The worker and the employer had attempted mediation with the Board. The substance of the employer’s settlement offer was in the material before the panel. The panel decided not to refer the appeal for reassignment to another panel. The employer did not participate in the appeal and the worker did not object to her deciding the appeal. The panel was satisfied that in deciding the merits of the case, she was able to ignore the substance of the parties’ settlement discussions.

2005-00581
There was no invasion of privacy where a worker was videotaped riding a lawnmower on her own property because the videotape was taken from a public place. The fact that the worker was on private property at the time of that filming does not raise legal or policy questions such that the panel should not view or give weight to the surveillance videotape. The worker could not demand privacy or be surprised that the Workers’ Compensation Board (Board) would take steps to ascertain the validity of her claim when she is seeking a pension from the Board on the basis of her inability to work.

2005-00530
This was one of a group of similar decisions considering whether numerous workers developed plantar fasciitis as a result of working long shifts on a ship which vibrated. The decision demonstrates the difficulties in determining the cause of plantar fasciitis, and details the policies and considerations which assist in evaluating arguments of causation. In particular, it contains an analysis of the interaction between occupational and non-occupational factors in plantar fasciitis cases.

2005-00527
This decision is noteworthy as an example of the analysis used to determine whether to grant a stay pending an appeal under policy item #5.40 of the WCAT Manual of Rules of Practice and Procedure and section 244 of the Workers Compensation Act .

2005-00404
Section 33.3 of the Workers Compensation Act is a mandatory provision that applies in calculating the long-term average earnings of a regular worker employed less than 12 months with the injury employer. Where there is insufficient evidence to calculate the worker’s average earnings based on those of a worker of similar status for the purposes of policy item #67.50 of the Rehabilitation Services and Claims Manual, Volume II , the class average for all workers should be used to calculate the average earnings of a worker whose employment is seasonal in nature. Exceptional circumstances may not be considered when a worker has been employed for less than 12 months with the injury employer at the date of the injury.

2005-00296
The worker, a firefighter, suffered heart attacks in 1989 and 1999. The Workers’ Compensation Board (Board) ultimately granted the worker a permanent disability award in 2003. The Board’s earlier decision to deny the worker an award was inconsistent with published decisions of the former Workers’ Compensation Appeal Division (Appeal Division). The Board denied the worker’s request for retroactive interest as it did not consider the earlier decision was a “blatant error”. The panel concluded that, although desirable, the Board was not required to interpret its policy so as to be consistent with Appeal Division decisions. The Board policy on occupational disease was ambiguous and the initial decision could not be characterized as a “blatant error”. The worker was not entitled to interest.

2005-00258
As a result of section 96.2(2)(f) of the Workers Compensation Act (Act), the Review Division does not have jurisdiction to review a Workers' Compensation Board (Board) decision regarding the application of an assessment rate for a class or subclass of employers to a particular employer, including a Board decision not to reduce the assessment rate for an employer which is a federal undertaking where it is argued that the rate for such employers should be reduced as they are not required to participate in the Act’s prevention scheme.

As a result of section 44 of the Administrative Tribunals Act, WCAT does not have jurisdiction to determine the constitutionality of a provision of the Act even where the constitutionality of the provision has already been determined by previous decisions.

2005-00135
The worker injured his shoulder prior to June 30, 2002, the transition date for changes to the Workers Compensation Act (Act). He received temporary wage loss benefits and subsequently had surgery to his shoulder after the transition date. The Workers’ Compensation Board concluded the worker’s injury had recurred on the date of the surgery. The worker’s appeal was allowed. The worker’s disability had not recurred after the transition date, as his medical condition had never resolved or stabilized. Therefore, the worker’s average earnings (used in calculating his wage loss benefits) should have been determined under the former version of the Act.

2005-00120
This decision is noteworthy for providing a comprehensive summary of the history of the law and policy regarding assessments in the fishing industry.

2005-00077
In accordance with the principles of fairness underpinning transitional law, a permanent disability award decision made by the Workers' Compensation Board in relation to a worker who is injured prior to June 30, 2002 but whose disability first occurs after June 30, 2002 (transition period workers) includes a decision about the worker’s permanent disability award wage rate. Therefore, WCAT has jurisdiction over the wage rate on appeals relating to permanent disability awards for transition period workers.


2004

2004-06831
(1) A new diagnosis is a new matter for adjudication by the Workers’ Compensation Board and does not trigger a reopening under section 96(2) of the Workers Compensation Act. (2) A worker who works varying shifts with the same employer on a continuous basis such that the worker has an ongoing attachment to the employer is not a casual worker under policy item #67.10 of the Rehabilitation and Services Claims Manual, Volume II.

2004-06808
As set out in Resolution 2004/11/16-04, implementing an appellate decision is not a reconsideration by the Workers' Compensation Board of a Board decision, and thus when implementing such a decision, the Board is not constrained by the 75-day time limit set out in section 96(5) of the Workers Compensation Act. When there has been an appeal taken and a decision rendered by an appellate body, the Board decision is no longer the final decision on the matter and the Board has no power to reconsider it, regardless of the amount of time that has elapsed.

2004-06735
Subjective reactions to stress, such as anxiety and difficulty sleeping, are common and do not constitute psychological impairment. In the absence of personal injury or occupational disease, side effects from a drug administered as preventive treatment are not compensable. “Contamination”, in the definition of “occupational disease” in section 1 of the Workers Compensation Act (Act), means “a substance with inherent properties causative of adverse consequences from exposure”, such as a poison.

2004-06708
When the Workers' Compensation Board (Board) fails to communicate a Board decision to a party, it is not a “decision” for the purposes of section 96(4) of the Workers Compensation Act (Act) or the Review Division Practices and Procedures Manual. Therefore the Board has the authority to reconsider the decision at the request of the party, even where the 75-day time limit set out in the Act has passed.

2004-06686
This decision is noteworthy for its illustration of how a claim is adjudicated as a personal injury under section 5(1) of the Workers Compensation Act even when there is no definitive medical diagnosis.

2004-06682
It is not necessary that the diagnosis on reopening be the same as the initial diagnosis upon which the Workers’ Compensation Board accepts a claim. In this case, a CT scan clarified the original diagnosis. Despite a new diagnosis, the worker’s medical condition was the same and the worker was entitled to reopening of his claim.

2004-06588
WCAT’s lack of jurisdiction over appeals from vocational rehabilitation decisions under section 16 of the Workers Compensation Act does not prevent WCAT from considering vocational rehabilitation evidence for the purpose of adjudicating other aspects of a worker’s claim.

2004-06341
Although a ferry worker witnessed a boat capsizing because the ferry she on which she was working sailed past it, witnessing the accident did not arise out of her employment. The ferry was not involved in rescue attempts, and the evidence did not support a conclusion that it could or should have been involved. The worker was in no different position than a member of the general public who may have been on the ferry, on shore, or on another vessel in the area that day. The fact that she was personally acquainted with some of the people who died in the boat capsize was a personal risk factor.

2004-06308
In relation to a Workers' Compensation Board (Board) matter or a Review Division proceeding, and pursuant to section 100 of the Workers Compensation Act (Act) and Board policy item #100.40 of the Rehabilitation Services and Claims Manual, Volumes I and II, neither the Review Division nor WCAT have the authority to order the Board to pay a party’s legal expenses. The 2001 decision of the British Columbia Court of Appeal in Van Unen v. British Columbia (Workers' Compensation Board) on this same issue no longer applies to the current statutory scheme.

2004-06118
Where a party has been partially successful in a lower decision, the party cannot assume that there is no “risk” in pursuing an appeal. Where an employer obtains a favourable relief of costs decision from the Workers' Compensation Board, but only receives relief for a portion of the worker’s claim, and then the employer appeals, WCAT has the authority to reweigh the evidence and find that the employer is not entitled to any relief of costs.

2004-05922
The employer warned the worker, a member of the workplace occupational health and safety committee, that his inappropriately aggressive communication on workplace safety issues might lead to his termination. The panel found that, in the overall context, the employer’s actions were not in the nature of discipline or a reprimand, and thus were not discriminatory actions within the meaning of section 150 of the Workers Compensation Act. The panel also found the employer was not motivated by any of the reasons prohibited under section 151.

2004-05845
This was a reconsideration of a prior WCAT decision which denied the appeal on the basis of insufficient medical evidence. The reconsideration panel held that parties to an appeal have an obligation to provide sufficient evidence to enable WCAT to make a decision. Although WCAT has the discretion to request further evidence from parties and to seek independent medical advice it does not have an obligation to do so. Failure to do so is not a lack of procedural fairness or other common law error of law going to jurisdiction.

2004-05624
The Workers' Compensation Board (Board) should terminate benefits cautiously when a worker is in a graduated return-to-work program or employed in temporary light duties, because if it is later determined that the worker has an ongoing temporary disability, it will generally not be open to the Board to reopen the worker’s claim. The Board may reconsider the termination decision, but only if no more than 75 days has passed since the decision was made. Retroactive benefits can be paid on reconsideration but not on reopening. Where appropriate, a failure by the Board to use the appropriate procedure can be rectified by the Review Division.

2004-05616
Section 57.1 of the Workers Compensation Act does not apply to workers injured before June 30, 2002.

2004-05368
Firefighter case. Upon review of epidemiological studies, the panel found that, under section 6(1) of the Workers Compensation Act, the firefighter’s death from stomach cancer was not due to the nature of his employment.

2004-05255
Criteria to use in determining whether there has been a “change in ownership” for the purpose of section 49(2) of the Workers Compensation Act. If a father's business is transferred to his sons, and operates in the same location with virtually the same business name, there has been a “change in ownership”. Hence outstanding assessments owed to the Board by the father’s company may be properly transferred to the sons’ company.

2004-05173
Where a worker is injured during a functional capacity evaluation (FCE) undertaken as a condition of receiving a job promotion with his or her employer, the injury occurred in the course of the worker’s employment, and is therefore compensable under section 5 of the Workers Compensation Act.

2004-04921
The language in section 96(2) of the Workers Compensation Act is clear that a reopening involves a matter that has been previously decided. Where there is no earlier decision relating to treatment of an injury, a request for payment for treatment is not a request for reopening. Rather, it is a new matter for adjudication.

2004-04903
Pursuant to section 96.2 of the Workers Compensation Act, a review officer’s jurisdiction is limited to matters decided by the Workers’ Compensation Board in the decision under review. A review officer exceeds her jurisdiction if she makes findings about a worker’s claims other than those dealt with in the decision under review.

2004-04880
Whether the requirement in the former section 96(6) of the Workers Compensation Act to establish grounds for appeal, of an error of law or fact or contravention of a published policy, in certain employer appeals applies to transitional appeals. Grounds need not be established for appeals filed on or after March 3, 2003 (whether filed within the time limit for such appeals under section 41 of Bill 63’s transitional provisions, or for which an extension of time to appeal is granted pursuant to section 2(2) of the Transitional Review and Appeal Regulation). However, the grounds apply to appeals filed to the Appeal Division prior to March 3, 2003 which were transferred to WCAT for completion under section 39 of Bill 63's transitional provisions.

2004-04852
This is a decision of interest involving the characterization of letters from the Workers’ Compensation Board (Board) regarding relief of costs, namely whether they were appealable decisions, and the characterization of the employer’s request for a new decision, namely whether it was a request for a reconsideration or a request for a determination on something not already determined by the Board.

2004-04784
The test for determining the credibility of a witness’ evidence is “its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”. A stricter standard should not be applied.

2004-04737
A teacher was assaulted by a student and developed acute stress. The panel found that where a physical injury occurs alongside mental stress that is independent of the physical injury, but also a result of the circumstances that gave rise to the physical injury, an award for mental stress may be made under section 5(1) of the Workers Compensation Act (Act) whether or not the circumstances are such as to also give rise to a claim under section 5.1 of the Act. Section 5(1) applies when a disability results from multiple causes, as long as at least one of those causes is compensable. If a compensable injury aggravates symptoms of another disorder, this is sufficient for that disorder to fall within the criteria set out in section 5(1) of the Act.

2004-04731
This decision is noteworthy as an example of the application of section 32 of the Workers Compensation Act and policy item #70.20.2(b) of the Rehabilitation Services and Claims Manual, Volume II (RSCM II) to the issue of whether a worker who is unemployed prior to a recurrence of disability is entitled to wage loss benefits arising out of the recurrence, where the recurrence occurs more than three years after injury.

2004-04632
The scope of section 96(2) of the Workers Compensation Act (Act), which provides the Workers' Compensation Board (Board) limited authority to reopen a matter that the Board has previously decided. A condition that was never adjudicated by the Board is not a matter previously decided. The Board’s authority to make entitlement decisions relating to such conditions does not come from the reopening power granted to the Board under section 96(2) of the Act.

2004-04324
A chronic pain award is not a “scheduled” award pursuant to the "Permanent Disability Evaluation Schedule" contemplated by section 23(2) of the Workers Compensation Act. Therefore, WCAT has jurisdiction to hear appeals of chronic pain decisions.

2004-04309
Reconsideration of WCAT decision. Jurisdiction of WCAT to consider a new diagnosis on appeal, which is different than the one addressed in the decision under appeal. Application for reconsideration denied because the WCAT panel did not exceed its jurisdiction in making a decision on a new diagnosis raised on appeal where the range of symptoms addressed by the two diagnoses are similar in nature.

2004-04219
The panel rejected a medical opinion that placed the worker’s impairment of the whole person at 0%, reasoning that since the worker had been left with an impaired liver, permanent symptoms and sensitivities, and diminished employment prospects, the nature and degree of a worker’s disability could not be zero.

2004-04157
What constitutes a reviewable decision respecting compensation? The Review Division of the Workers' Compensation Board (Board) has jurisdiction to review a Board’s action under section 15 of the Workers Compensation Act directing payment of compensation to a third party private insurance company.

2004-04112
Section 11 determination. A self-employed housecleaner, who was not registered with the Board but sometimes hired other cleaners to help her on a casual basis and had hired two on the date of a motor vehicle accident, was an employer within the meaning of the Workers Compensation Act (Act) on that date. Lack of registration does not affect a party's status as an employer under the Act.

2004-03983
The Workers' Compensation Board’s (Board) reconsideration power under sections 96(4) and 96(5) of the Workers Compensation Act, and what constitutes a reviewable decision. Where the Board issues a second decision more than 75 days after its first decision to correct an error in its first decision, the second decision is reviewable. The question of whether the Board has the power and authority to correct errors in its decisions after 75 days has passed is an important one that has not been addressed in the Board’s policies or practice directives.

Note: Since this decision was issued, the board of directors has developed a policy that is effective January 1, 2005 and applies to all decisions made on or after that date. See Resolution 2004/11/16-04.

2004-03980
Transitional appeals. Given that the worker had initiated an appeal of a 1994 Workers' Compensation Review Board finding to the Appeal Division in 1995 and had, in essence, abandoned that appeal, she could not now appeal to WCAT because section 2(2) of the Transitional Review and Appeal Regulation only provides an appeal right to a person who has not previously exercised a right of appeal.

2004-03907
Requirement that The Workers' Compensation Board’s (Board) decisions be communicated. The 75-day time limit on the Board’s reconsideration authority in sections 96(4) and 96(5) of the Workers Compensation Act (Act) does not apply if the Board made an internal determination that was not communicated to the parties. Relief of costs under section 39(1)(e) of the Act.

2004-03794
Reconsideration of a Workers’ Compensation Appeal Division (Appeal Division) decision. Bias should not be alleged unless there is a sound basis for the allegation and some evidence to support it. Prior experience in workers’ compensation proceedings is an asset for a vice chair, rather than a reason for disqualification. Where credibility is not in issue, and it is possible for the panel to hear the oral evidence given below, an oral hearing is not necessary. A panel does not make a patently unreasonable error of law if it does not refer to every piece of evidence before it as long as it is clear from the decision that it did not ignore important evidence without explanation. While the Appeal Division was an inquiry body, it did not commit an error of law going to jurisdiction by basing its decision on the medical evidence placed before it, rather than requesting new evidence, even though the medical evidence was dated.

2004-03709
Scope of WCAT's jurisdiction. WCAT may take jurisdiction over an issue the Workers' Compensation Board has identified and investigated but not formally communicated in its decision letter, even if the Review Division declined jurisdiction. A potential breach of natural justice at the Review Division may be remedied on appeal to WCAT.

2004-03600
Experience rating and lawfulness of the Workers' Compensation Board policy. The October 17, 2002 Resolution of the panel of administrators and the application of Assessment Operating Policy AP-1-42-1, item 7 to experience rate the employer during the transition period set out in the Resolution was not patently unreasonable.

2004-03646
Interpreting “must apply” in section 250(2) of the Workers Compensation Act (Act). If a policy contains the words “normally or “usually”, it is intended to be applied as a guideline from which a departure may be considered in exceptional circumstances, rather than a rigid rule. If a policy is stated as a set of rigid rules, rather than guidelines, a WCAT panel must either apply those rules or initiate a referral under section 251 of the Act.

2004-03571
Whether an alleged defect in procedure is sufficient to constitute a breach of natural justice almost always depends on all of the circumstances; it requires an assessment of the procedures and safeguards required in a particular situation. On judicial review the test for establishing whether a breach of natural justice had occurred is whether the process was unfair. Although not necessary to its decision, the panel further noted that section 58 of the Administrative Tribunals Act, 2004, stated that in a judicial review proceeding questions about the application of the rules of natural justice must be decided having regard to whether, in all the circumstances, the tribunal acted fairly.

2004-03496
Injury in section 96(2)(b) of the Workers' Compensation Act means compensable injury. Hence, if an injury has not yet been determined to be compensable, it cannot recur for the purpose of section 96(2)(b).

2004-03362, 2004-03430, 2004-03445, 2004-03429, 2004-03431
The effective date for reclassification changes in Resolution 2003/02/1-06 (Resolution) which created a new classification for resort timeshare operations. The lack of consultation with the employer, other resort timeshare employers, or stakeholders did not render the Resolution patently unreasonable, nor give rise to a breach of natural justice or procedural unfairness. The Resolution, including its interim effective date, was the exercise of a quasi-legislative function (or a policy-making function) by the board of directors and as such the board of directors was not required to engage in a process of direct consultation with each employer who fell into the new classification.

2004-03138
A review officer referred a decision back to the Workers' Compensation Board (Board), with directions. Although, pursuant to section 4(d) of the Workers Compensation Act Appeal Regulation, Review Division “decisions about whether or not to refer a decision back to the board under section 96.4(8)” are not appealable to WCAT, any directions accompanying such decisions are appealable.

2004-03070
WCAT found an error of law and breach of policy in a Workers' Compensation Board assessment decision that justified the cancellation of that decision under section 253 of the Workers Compensation Act. The Board office assessor did not turn his mind to applying assessment policy in section 20:30:20, despite the employer’s request to do so, when reaching his decision to include payments to all commissioned agents as part of the employer’s assessable payroll, and this failure to consider relevant policy constituted an error of law and a breach of policy.

2004-02912
Apportionment when the work injury’s contribution to the worker’s total disability was not de minimus. The Board cannot apportion under section 5(1) where the Medical Review Panel certified that other non-work causes of the disability, which arose after the claim injury, did not independently produce a portion of the worker’s disability but rather acted together with the claim injury to produce the worker’s current disability

2004-02598
WCAT’s jurisdiction over a Review Division decision where the worker injures his thumb and one or more fingers, and pursuant to policy #39.24, of the Rehabilitation Services and Claims Manual, Volume I, the Workers' Compensation Board adds an “enhancement factor” which is normally equivalent to 100% of the lesser of the two disabilities. Because the amount of an enhancement factor is subject to discretion, it was not a “specified percentage” captured by section 239(2)(c) of the Worker's Compensation Act. Since this worker had suffered greater loss of range of motion to his thumb as compared to his finger, WCAT’s jurisdiction was limited to the thumb only.

2004-02587
The employer terminated the worker’s job in circumstances that suggested the employer suspected the worker had made a complaint to the Workers’ Compensation Board. The panel found the employer violated section 151 of the Workers Compensation Act and ordered the employer to compensate the worker for lost wages but did not order reinstatement.

2004-02507
A worker, who suffered from chronic pain syndrome, was not entitled to medical marijuana as a health benefit under section 21 of the Worker's Compensation Act to control his pain because its effectiveness in reducing his symptoms was questionable, and it would delay his recovery and create unwarranted risks for further injury.

2004-02452
Where a worker’s gross earnings for the 12-month period preceding the date of injury is lower than in the years preceding the 12-month period, and this lower amount is used to calculate the worker’s long-term wage rate under section 33.1(2) of the Workers Compensation Act (Act), the exceptional circumstances test in section 33.4 of the Act is not met if the lower gross earnings is due to the worker’s ongoing decision to change occupations.

2004-02435
This case is noteworthy as an example of WCAT's use of the authority provided to it by section 246(3) of the Workers Compensation Act to suspend appeals in order to refer to the Workers' Compensation Board (Board) an issue that the Board should have adjudicated.

2004-02368
Under section 5(5) of the Workers Compensation Act (Act), proportionate entitlement only applies when the pre-existing disability is in the part of the body that was affected by the work injury or disease. Even if section 5(5) permitted proportionate entitlement for disabilities in other parts of the body, section 23(3) of the Act forecloses its application because it dictates the loss of earnings method of calculation, and does not allow for reduction based on pre-existing disability.

2004-02208
At issue was whether the worker was properly classified as a regular worker, rather than a casual worker. The panel concluded that despite the fact that the worker had worked for the employer for several years, the worker was engaged in on call employment that amounted to a few days a month of work and that fit with being a casual worker on call with a single employer. Accordingly, the worker's initial wage rate should be set using her earnings in the 12-month period immediately preceding her injury.

2004-02065
The claimant alleged that the employer and the union unlawfully undertook a number of discriminatory actions against her, including a 4 month suspension with pay, contrary to section 151 of the Worker's Compensation Act (Act). The panel concluded that while the worker had raised safety concerns at the workplace, the actions of the employer and the union were in response to the worker's behaviour and personality conflicts, not for reasons prohibited under section 151 of the Act.

2004-01966
At issue in this case was whether section 17(3)(e) of the Worker's Compensation Act violates the equality provisions of section 15 of the Canadian Charter of Rights and Freedoms (Charter) as it draws distinctions between surviving spouses on the basis of their age and whether they have dependent children. The panel followed the findings of the B.C. Court of Appeal in Burnett v. British Columbia (Workers' Compensation Board) (2003), 16 B.C.L.R. (4th) 203 (C.A.), and concluded that section 17(3)(e) of the Act does not violate the equality provisions of section 15 of the Charter.

2004-01881
At issue is whether a worker who has established entitlement to receive temporary wage-loss benefits under section 6(1), of the Worker's Compensation Act is required to re-establish entitlement prior to receiving a permanent partial disability award. The panel concluded that the fact that the worker was absent from work in order to recover from the disabling effects of her occupational disease was sufficient to be considered for a permanent partial disability award and it was not necessary for the worker to re-establish that she was disabled from earning full wages.

2004-01842
The term "initial adjudication", which is used in the panel of administrators Resolution as the effective date of the new policy for chronic pain, means the initial adjudication with respect to entitlement for compensation for subjective, chronic pain, not the initial adjudication of the claim.

2004-01807
At issue was whether the lower back pain experienced by the worker while filling a cup from a water cooler was due to a personal injury arising out of and in the course of her employment. The panel concluded that the injury did not arise out of the employment as there was nothing in the employment that had a particular significance in producing the injury.

2004-01787
At issue was whether the worker was properly classified as a casual worker such that section 33.5 of the Worker's Compensation Act is applicable. In answering this question the panel refers to the related policy item #67.10 of the Rehabilitation Services and Claims Manual, Volume II, and notes that while the effective date at the end of item #67.10 refers to the date of the latest change to the policy, the relevant passages in item #67.10 came into effect on June 30, 2002 and, thus, are applicable in this case.

2004-01698
The worker's application to set aside the suspension of the worker's claim was allowed. Section 57.1, of the Worker's Compensation Act which provides that the Board may suspend payments if the obligation to provide information is not met, applies to decisions made after June 30, 2002, regardless of the date of injury. However, in this case, the request for information was not necessary and the notification requirements in section 57.1 were not met, therefore, the suspension was not appropriate.

2004-01652
If an employer fails to participate in an appeal of a section 151 discriminatory action complaint, then, pursuant to the reverse onus provision in section 152(3), of the Worker's Compensation Act the worker can potentially introduce new evidence that meets the bare requirements of a prima facie case of unlawful discrimination and win the appeal.

2004-01441
At issue in this case was whether the worker was deemed to have abandoned his appeal when he failed to attend the oral hearing. The panel concluded that the appeal was deemed to have been abandoned by the worker as the failure to appeal was not due to a personal emergency or other justification as contemplated in item #9.23 of the Manual of Rules, Practice and Procedures.

2004-01432
A bus driver's act of turning a steering wheel on his bus was a work-required motion.

2004-01294
Extension of time to appeal granted where the worker provided telephone notice of intent to appeal but failed to submit a completed written notice of appeal within 21 days.

2004-01152
A difference of opinion does not constitute a blatant error as defined in interest policy #50.00 of the Rehabilitation Services and Claims Manual, Volume I.

2004-00999
WCAT has the jurisdiction to hear an appeal of a Review Division finding, which declined to review a letter of a vocational rehabilitation consultant, because the appeal is limited to the narrow question of whether the review officer correctly declined to conduct a review and does not address the merits of the vocational rehabilitation decision.

2004-00890
Interest - interpreting "blatant error" in policy #50.00 of the Rehabilitation Services and Claims Manual, Volume I and II.

2004-00793
Description of the tests in sections 250(4) and 99 of the Workers Compensation Act, and their application to speculative possibilities.

2004-00641
Discriminatory action complaint - in the absence of an impartial, objective investigation by the employer done in accordance with the Workers Compensation Act and the Occupational Health and Safety Regulation, the worker had reason to be concerned that his safety was at risk from the other worker if he returned to the workplace, and hence his refusal to return to work amounted to a constructive dismissal.

2004-00638
By letter a case manager advised the employer that relief of costs had not been granted in an earlier decision letter. The panel concluded that the case manager's letter was merely informational and did not constitute a new decision, nor were the grounds for reconsideration of the earlier decision met.

2004-00433
The employer sought an extension of time to appeal the denial of relief of claim costs under section 39(1)(e) of the Workers Compensation Act. The extension of time was granted as special circumstances precluded the filing of a timely appeal since the new medical evidence to support the appeal did not come into existence until after the 30 day appeal period had expired.

2004-00230
The worker sought an extension of the 30-day statutory time-limit to appeal a finding of a review officer. The extension of time was denied because there was no evidence that the worker intended to appeal within the 30-day statutory time period. However, the panel recommended that Workers' Compensation Board (Board) consider the claim under section 96(7) of the Workers Compensation Act and policy at C14-104.01, which allows the Board to set aside a decision that resulted from fraud or misrepresentation (with no time limit).

2004-00222
Employment insurance benefits should be included in calculating the average earnings for the worker employed in a seasonal occupation (golf course work) not listed under policy item #68.40 of the Rehabilitation Services and Claims Manual, Volume. II, because the factual circumstances clearly fit the intent of section 33(3.2) of the Workers Compensation Act.

2004-00182
There was a 2.5-year delay before the onset of tinnitus, and hence the injury was found not to be causative significance.

2004-00110
Example of an application of the Bill 49 wage rate as it applies to reopenings for recurrences of temporary disability after June 30, 2002 that resulted from an injury before that date.


2003

2003-04322
The panel considers whether a general request for benefits, which does not specify any of the grounds for reopening a claim, constitutes an "application" within the meaning of section 96(2) of the Workers Compensation Act. This affects whether a matter is reviewable by the Review Division or appealable directly to WCAT.

2003-04175
This decision sets out factors to be considered on applications under section 243(3) of the Workers Compensation Act for extending the time to appeal to WCAT where the delay by the applicant involves the acts or omissions of the applicant's representative. In this case, the appeal was filed eight days late as a result of an omission by the worker's representative. The application was granted.

2003-04167
Refusal to review by the Review Division of the Workers' Compensation Board was upheld where the statement in question in the case manager's decision letter did not constitute a decision, but was included for information purposes only.

2003-04166
The panel referred this matter back to the Workers' Compensation Board pursuant to section 246(3) of the Workers Compensation Act for determination since the worker's entitlement was only considered in relation to his physical disability, despite the fact that the Board had also accepted that the worker sustained a compensable psychological injury.

2003-04156
The worker's application for an extension of the 30-day statutory time-limit to appeal two findings of the Review Division of the Workers' Compensation Board was denied. The panel concluded that although the worker was confused about the time frame, the information and process for appealing to WCAT provided by the Review Division was sufficient to enable the worker to initiate her appeals to WCAT in a timely manner.

2003-04102
The worker was not entitled to temporary disability wage loss benefits from October 2001 to October 2002 as his disability was permanent as of October 2001 given that surgical intervention was not considered medically appropriate and there was no expectation of a change in his condition by that time. This finding is not affected even though the worker did undergo surgery in October 2002 and was again found to be temporarily disabled as of October 2002.

2003-03993
Pain Disorder Associated with Both Psychological Factors and a General Medical Condition should be assessed as a psychological condition under policy item #38.10 of the Rehabilitation Services and Claims Manual as it is diagnosed under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition.

2003-03842
The worker sought an extension of the 30-day statutory time-limit to appeal a finding of the Workers' Compensation Review Board. The extension of time was granted as the panel was satisfied that the worker did not receive the finding when it was originally mailed to him and, accordingly, the presumption in section 221(2) of the Workers Compensation Act had been rebutted.

2003-03729
A 20 percent contribution was found to be causative significance.

2003-03419
The Director of the Assessment Department found that although the employer had registered with the Workers' Compensation Board (Board) it had misrepresented its operations. The panel concluded that the Board erred in finding that there was misrepresentation since accurate information had been provided to the Board in the employer's payroll reports.

2003-03322
A determination under Section 11 of the Workers Compensation Act where the accident occurred in Alberta - neither the Board nor WCAT has the obligation or jurisdiction to determine the relevance of a section 11 determination in a civil action before deciding whether to make the section 11 determination, particularly where this would involve a decision as to the law of which province is applicable to the action.

2003-03143
A forensic analyst's multiple symptoms were not due to his exposure to various chemicals / toxins, like dioxin, from burnt vehicles.

2003-02715
The panel, applying item #5.60 of the Manual of Rules, Practices and Procedures, declined to grant a withdrawal for one of the decision letters being appealed finding that the totality of the evidence must be considered in this case as the evidence in the two claim files had substantive differences. Therefore, the decision letter which the worker's representative sought to withdraw was relevant and ought to be considered.

2003-02711
The worker's banked overtime wages should have been included as earnings in the calculation of his wage rate as there was evidence that the worker had consistently worked overtime during the course of the year and for several pervious years.

2003-02677
The panel concluded that it had jurisdiction to consider a condition, even though it was not dealt with in the decision letter being appealed, since the medical reports clearly identified two conditions and the worker initiated a claim for a symptom complex that could have been caused by either or both conditions.

2003-02653
The appellant corporation is appealing a decision by an assessment officer. This decision deals with the request by the appellant for a stay of the assessment officer's decision pending a decision on the appeal.

2003-02559
The claimant alleged that the employer unlawfully terminated her employment contrary to section 151 of the Workers Compensation Act. The parties agreed to the panel's request to meet with a mediator under section 246(2)(g) of the Act and successfully came to a consensual resolution of their dispute.

2003-02227
The worker's application for an occupational disease claim was not an application for reconsideration of an earlier decision as the issue of occupational disease was not raised by the earlier decision.

2003-02217
The worker appeals the decision that denied her compensation beyond eight weeks of chiropractic treatment. The panel found that the Workers' Compensation Board medical advisor erred in its decision noting that the worker was not examined in order to determine whether to extend treatment and, contrary to the advisor's statement, there was objective evidence of recovery.

2003-01952
The worker, who received compensation after she fell off a stool at work, sought to have her claim reopened. The worker's appeal was denied as the panel concluded that there had not been a significant change in the worker's physical condition or a recurrence of the injury since the worker's symptoms were in a different part of the body than the injuries accepted under the claim.

2003-01810
The worker sought an extension of the 30-day statutory time-limit to appeal a finding of the Workers' Compensation Review Board (Review Board). The extension of time was granted since, even though the worker had provided a change of address, the signed original Review Board finding was mailed to the worker's former address.

2003-01800
Item #67.21 of the Rehabilitation Services and Claims Manual, Volume I, which deals with the use of class averages for setting wage rates, is not patently unreasonable since it does not set out an inflexible rule. Accordingly, pursuant to section 251(4) of the Workers Compensation Act, the panel must apply the policy in rendering a decision on the worker's appeal.

2003-01744
The worker was not eligible to receive retroactive rehabilitation allowance since the effort expended by the worker to secure suitable alternate employment, or to obtain retraining, was minimal and sporadic and the documentation was anecdotal.

2003-01170
The worker, who was an independent operator, suffered injuries while servicing his mobile welding rig at his residence in Alberta. The worker's main job functions were in BC and the worker paid for personal optional protection in BC. The panel concluded that the worker was entitled to compensation.

2003-01132
The panel referred this matter back to the Workers' Compensation Board with directions to determine whether the worker's diagnosed carpal tunnel syndrome was caused by his employment activities. The original decision only considered the initial diagnosis of bilateral wrist and elbow tendonitis and failed to consider the second condition.

2003-01120
This was an application for a reconsideration. The panel found that the requirements for a reconsideration were not met, specifically the due diligence requirement, since the "new evidence" submitted existed at the time of the Appeal Division hearing and a reasonable appellant would have provided it to the panel at that time.

2003-01116
This was an application for a reconsideration. The panel found that the requirements for a reconsideration were not met, specifically the due diligence requirement, since the "new evidence" submitted could have been obtained at the time of the hearing and a reasonable person would have provided it to the Appeal Division panel since it was germane to the question before that panel.

2003-01110
An auto mechanic's coronary heart disease and subsequent heart attacks were not related to exposure to carbon monoxide in the course of his employment.

2003-01006
On a section 11 determination, the panel concluded that a courier who was injured slipping on the stairs of a building was a worker within the meaning of the Workers Compensation Act (Act) and his injuries arose out of and in the course of his employment, but the defendant strata corporation was not an employer engaged in an industry within Part 1 of the Act.

2003-00697
The claimant alleged that the employer unlawfully terminated his employment contrary to section 151 of the Act. This decision deals with the employer's request for a stay of the case officer's order pending a decision on the appeal.

2003-00254
The panel applied section 5(4) of the Workers Compensation Act and found that the worker was stung by a wasp when grasping some wood at work and this was compensable as the worker was performing an employment activity which exposed him to certain specific risks associated with reaching into a load of wood where an insect might not be visible.

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