Chapter 3: Jurisdiction
- 3.1 General
- 3.2 Matters Not Appealable to WCAT
- 3.3 Scope of Appeal
- 3.4 Other Matters
For detailed information about the Review Division’s jurisdiction, see Review Division Practices and Procedures on the Board’s website at: www.worksafebc.com.
WCAT has jurisdiction to decide a variety of appeals:
- A final decision by a review officer respecting a compensation, assessment or occupational health and safety matter [s. 288(1)]. This includes a decision declining to conduct a review under section 268. The time limit for appealing a review officer’s decision is 30 days [s. 293(1)].
- A determination, an order, a refusal to make an order or a cancellation of an order by a Board officer under section 50 concerning a prohibited action complaint [s. 289(1)]. The time limit for appealing a Board decision under section 50 to WCAT is 90 days [s. 293(2)].
- A decision to reopen or not to reopen a matter on an application under section 125(1) [s. 289(2)]. The Board may reopen a claim on its own initiative, or on application if, since the previous decision by the Board (3.1.4):
- there has been a significant change in a worker’s medical condition that the Board has previously decided was compensable; or,
- there has been a recurrence of a worker’s injury.
Where the Board makes a reopening decision under section 125(1) on application or on its own initiative, the time limit for appealing the Board decision to WCAT is 90 days [s. 293(2)]. Where the Board makes a reopening decision under section 125(1) on its own initiative, a review may be requested from the Review Division within 90 days.
- An application under section 293(3) to extend the time for filing a notice of appeal. There is no statutory time limit for initiating such an application.
- An application under section 310 for reconsideration of a WCAT decision, or a decision of the former Appeal Division, based on new evidence. There is no statutory time limit for initiating such an application.
- An application under section 307(5) for reconsideration of a WCAT decision to cure a jurisdictional error. There is no statutory time limit for initiating such an application.
- An application under section 311 for a certificate to the court in a legal action. There is no statutory time limit for initiating such an application (17.1).
WCAT does not have general supervisory jurisdiction over the Board or the Review Division.
3.1.1 Compensation Issues
The compensation issues affecting workers for which a review officer’s decision is appealable include, but are not limited to:
- status as a worker under the WCA [s. 1, s. 126];
- a decision to accept or deny a claim for personal injury [s. 134] or occupational disease [s. 136];
- duration of wage loss benefits (temporary total disability benefits [s. 191] and temporary partial disability benefits [s. 192]);
- duration of permanent partial disability benefits and permanent total disability benefits [s. 201];
- average earnings for short and long term wage loss purposes [ss. 208 – 222];
- health care, including clothing allowances, personal care expenses or allowances, independence and home maintenance allowances, transportation allowances, subsistence allowances, and homemakers’ services (except where such services relate to a vocational rehabilitation program), eyeglasses, prostheses, wheelchairs, hearing aids, crutches [ss. 156-161];
- a decision concerning the percentage of a permanent partial disability award based on the application of the Board’s rating schedule [s. 195(3)], where the specified percentage of impairment in the schedule has a range that exceeds 5% [s. 288(2)(d)];
- the effective date and average earnings calculation of any permanent disability award assessed under the WCA as it read before it was amended by the Amendment Act, 2002;
- the effective date of a permanent disability award assessed under the WCA as amended by the Amendment Act, 2002;
- permanent disability awards which are not based on the application of the Board’s rating schedule (non-scheduled awards);
- loss of earnings assessments and awards [s. 23(3)];
- disfigurement awards [s. 199];
- dependants’ benefits [ss. 165-189];
- diversion, cancellation, withholding, or suspension of compensation [s. 190, s. 232].
3.1.2 Employer Issues Concerning Assessments and Monetary Penalties
The employer issues concerning assessments or monetary penalties for which a review officer’s decision is appealable include:
- relief of claim costs under section 240(1)(c) – disaster fund;
- relief of claim costs under section 240(1)(d) – pre‑existing disease, condition or disability;
- relief of claim costs for experience rating purposes [s. 247(1)-(2)];
- charging of claim costs to an unregistered employer [s. 263];
- charging of claim costs to an employer due to delayed notification of injury [s. 262(2)];
- transfer of claim costs [s. 249];
- assessment premiums;
- personal optional protection premiums;
- employer classification unit;
- allocations to or from the reserve in aid of industries or classes which may become depleted or extinguished – section 241(1)(b);
- a decision to levy an employer (to the statutory maximum set out in section 251(2)) all or part of the compensation payable to a worker for an injury, death, or disablement from occupational disease, where the Board considers this was due substantially to [s. 251(1), s. 268(1)(c), s. 288(1), s. 291(2)]:
- the gross negligence of an employer;
- the failure of an employer to adopt reasonable means for the prevention of injuries, deaths or occupational diseases; or,
- the failure of an employer to comply with the orders or directions of the Board, or with the regulations made under the Occupational Health and Safety (OHS) provisions.
3.1.3 Occupational Health and Safety Issues and Monetary Penalties
The occupational health and safety issues or monetary penalties for which a review officer’s decision is appealable include:
- a decision to confirm, vary or cancel a decision regarding an administrative penalty under section 95 (see s. 268(2)(a));
- an order which imposed, or was relied upon to impose, an administrative penalty under section 95(1)[s. 288(2)(b)(i) and (ii)];
- an order by a review officer under section 96 to cancel or suspend a certificate under the OHS provisions – that is, of an occupational first aid attendant or instructor [s. 55], or a medical certificate of a worker’s fitness for a specific type of work such as diving [s. 58, s. 24.10 of the Occupational Health and Safety Regulation], or a certificate of a blaster or blasting instructor [s. 59].
3.1.4 Direct Appeals
There are two types of decisions by Board officers which are appealable directly to WCAT (with a 90‑day time limit). These concern:
- a prohibited action complaint under section 50, and
- an “application” for reopening of a claim under section 125(1) (3.1).
The right of direct appeal from a decision under section 125(1) is limited to situations where the decision follows an “application” by the party rather than a decision on the Board’s own initiative. To be considered an “application,” the party must refer specifically to section 125(1) or must use substantially similar language and refer to one of the reopening criteria.
When deciding reopening appeals, WCAT determines whether the matter must be reopened or may not be reopened [s. 306(2)(a) and (b)]. Once a claim has been reopened, an ensuing decision by a Board officer on entitlement is subject to review by the Review Division.
3.1.5 Certification to Court (18)
Under section 311 WCAT has the power to make determinations and provide a certificate to the court in certain matters which are relevant to a legal action.
Parties may apply for reconsideration of a completed WCAT or Appeal Division decision on the basis of new evidence under section 310. They may also apply for reconsideration of a completed WCAT decision to cure a jurisdictional error.
WCAT has no power to reconsider a decision by the Appeal Division to cure a jurisdictional defect. Parties wishing to dispute such decisions must bring a petition for judicial review in the Supreme Court of British Columbia (20.4).
3.2 Matters Not Appealable to WCAT
There are several classes or types of matters that are not appealable to WCAT.
3.2.1 Preliminary or Procedural Decisions by a Review Officer
The following classes of decisions respecting the conduct of a review by the Review Division are not appealable to WCAT [ss. 315(a) and 288(2)(a) WCA; ss. 4(a) to (e) Appeal Regulation (Appendix 4)]:
- a decision applying a time period specified by the Board under section 338;
- an extension of time decision by the chief review officer under section 270(2);
- a decision by the chief review officer to deem an employers’ adviser or an organized group of employers to be the employer where the employer has ceased to be an employer under section 271(2);
- a decision concerning the conduct of a review under section 272(2);
- a decision under section 272(3) to complete a review based on information before the review officer, or to determine that the request for review is abandoned;
- a decision under section 272(4) to require an employer, who is a party to a review respecting the OHS provisions, to post a notice in a specified form and manner to bring the review to the attention of the employees of the employer;
- a decision by the chief review officer under section 272(5) to suspend a review in a specific case in order to allow a review officer to deal with related matters at the same time;
- a decision by the chief review officer under section 272(8) to extend the time period for the making of the Review Division decision on the basis that the complexity of the proceedings, or of the matter under review, makes the time period impractical;
- an order by the chief review officer under section 270(3)concerning a request for a stay or suspension of the operation of the decision or order under review;
- a decision by a review officer about whether or not to refer a decision back to the Board under section 272(9)(b);
- a decision respecting the conduct of a review if the review is in respect of any matter that is not appealable to WCAT under sections 288(2)(b) to (e).
3.2.2 Orders under the Occupational Health and Safety Provisions
Any decision respecting an order under the OHS provisions, other than those set out in 3.1.3 above, is not appealable to WCAT [s. 288(2)(b)].
- An order concerning the placement of a condition on the use of a certificate under section 96(1)(b)
- An order imposing an administrative penalty under section 95(1) (Administrative Penalties – OHS citations).
22.214.171.124 Order Later Relied Upon to Impose an Administrative Penalty
Where a decision respecting an order under the OHS provisions is later relied upon to impose an administrative penalty, on appeal from a review officer’s decision regarding the administrative penalty, WCAT will also have jurisdiction over the underlying order(s), whether or not they were reviewed by a review officer (3.1.3).
3.2.3 Other Substantive or Merit Decisions of a Review Officer
Other substantive or merit decisions of a review officer, which are not appealable to WCAT, are:
- decisions respecting vocational rehabilitation [s. 155, s. 288(2)(c)];
- in connection with a permanent disability award, a decision respecting the percentage of impairment where this involves the application of a rating schedule compiled by the Board where the specified percentage of impairment in the schedule has no range or has a range that does not exceed 5% [s. 288(2)(d)];
- decisions respecting commutations [s. 230, s. 288(2)(e)].
A review officer has authority to review the Board’s assignment of an employer to a classification unit but not, except in limited circumstances, an employer’s assignment to a class or subclass. The review officer’s decision concerning the employer’s assignment to a classification unit may be appealed to WCAT. As the class or subclass is not addressed by a review officer, these may not be appealed to WCAT. For a detailed listing of those types of decisions that are not reviewable, see section 268(2).
3.3 Scope of Appeal
3.3.1 Issues in Decision(s) Appealed
Where a decision of the Review Division is appealed to WCAT, WCAT has jurisdiction to address any issue determined in either the Review Division decision or the Board decision(s) which was under review, subject to the statutory limits on WCAT’s jurisdiction. Similarly, when considering appeals of Board decisions which are appealable directly to WCAT, WCAT has jurisdiction to address any issue determined in the decision appealed.
WCAT will generally restrict its decision to the issues raised by the appellant in the notice of appeal and the appellant’s submissions to WCAT. The appellant is entitled by right to a decision on the issues expressly raised in the appeal.
Panels may address an issue raised by the respondent in relation to the decision under appeal. To ensure that the panel will address a particular issue which may not be raised by the appellant, the respondent should file a cross-appeal. This may require an extension of time to appeal (8.2 to 8.2.3).
The panel will normally not address issues not expressly raised by the parties, but has the discretion to do so. The panel will give notice to the parties of the panel’s intention to address any issue which was not raised in the notice of appeal or in the parties’ submissions to WCAT (126.96.36.199).
An exception is where the subject of an appeal is a permanent disability award which typically includes the effective date of the award as well as the assessment of the permanent functional impairment or the loss of earnings entitlement. Panels may address any aspect of the permanent disability award decision which was addressed in the Board decision under review by the Review Division, or which was addressed in the Review Division decision, without notice to the parties.
3.3.2 Termination of Short-term Disability (Wage Loss) Benefits
Where a decision terminating a worker’s short-term disability (wage loss) benefits is appealed to WCAT, the panel may address any aspect of that decision including whether the worker can return to work. This does not fall within any of the statutory limits on WCAT’s jurisdiction. Specifically, it is not a decision respecting matters referred to in section 155 (vocational rehabilitation benefits).
3.3.3 Personal Injury (Section 134) and Occupational Disease (Section 136)
Where a decision denying acceptance of a claim adjudicated under section 136 (occupational diseases) is appealed to WCAT and the panel concludes that it should have been adjudicated under section 134 (personal injury), or vice versa, the panel may address the issue if no further evidence is required and there are no procedural fairness concerns.
3.3.4 Entitlement to Interest
WCAT considers that entitlement to interest is an ancillary issue over which a panel has jurisdiction regardless of whether it was addressed in the decision(s) below. Where the issue of interest has not been raised by the appellant, and the panel intends to address it, the panel must first give the parties an opportunity to make submissions on the issue. WCAT may also decline to address the issue of interest until there is a Board decision on the issue.
3.3.5 Unappealed Decisions
Occasionally the parties to an appeal will attempt to raise issues relating to a decision that has not been appealed. Panels do not have authority to consider issues that are not addressed in the Review Division decision under appeal or in the Board decision which was under review. If the appellant raises concerns about an unappealed decision, including one for which the appeal or review period has expired, WCAT will advise the appellant of the right to review or appeal and extension of time processes (either to WCAT or the Review Division).
3.3.6 Adverse Effect
WCAT decisions may, on occasion, adversely affect the appellant in that the appellant may be in a worse position having appealed to WCAT than if the appellant had not appealed at all. For example, where a worker appeals a permanent disability benefits decision, the panel may not only increase or confirm the benefits, the panel may also decrease the benefits. If the adverse decision relates to an issue not raised by a party, the panel must first give the parties an opportunity to make submissions on that issue (188.8.131.52).
3.3.7 Other Claim Files Involving the Same Worker
A panel may, without notice, review documents from another claim file involving the same worker for relevance. If the panel determines there are relevant documents in another claim file, the procedure set out immediately below will be followed.
A panel may, upon giving notice, rely on relevant documents from any claim file that has or has not previously been disclosed to all parties to an appeal. For example, a worker has appealed a Board decision related to a 2013 injury, and also has a separate claim file with the Board from 2004. If it appears to the panel that some of the documents related to the 2004 injury may be relevant to the current appeal, the panel will give notice to the parties that it intends to rely on relevant documents from the 2004 claim file in coming to a decision. If the documents have not been previously disclosed to the parties, the panel will provide copies of those documents. The panel will then give the parties an opportunity to make submissions regarding those documents. If the documents have been recently disclosed to the parties, the panel may invite submissions directly.
3.4 Other Matters
3.4.1 Constitutional Questions and Human Rights Code
WCAT has jurisdiction to decide constitutional issues including application of Canadian Charter of Rights and Freedoms (Charter): Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, R v. Conway, 2010 SCC 22. WCAT also has jurisdiction to apply the Human Rights Code, R.S.B.C. 1996, c. 210 [s. 296 WCA].
WCAT can determine if a law or a policy of the board of directors of the Board is inapplicable on constitutional grounds in the particular matter before it, but cannot make a general declaration of constitutional invalidity.
WCAT may grant Charter remedies that are linked to a matter properly before it, and that are expressly or impliedly authorized by the WCA or other applicable legislation.
See item 5.1.6 Procedure – Constitutional Issues and Human Rights Code.
3.4.2 Administrative Tribunals Act (ATA)
Section 296 sets out the sections of the ATA that apply to WCAT:
Part 1 – Interpretation and Application
Section 7.1 – Validity of tribunal acts
Part 3 – Clustering
Section 11 – General power to make rules respecting practice and procedure
Section 13 – Practice directives tribunal may make
Section 14 – General power to make orders
Section 15 – Interim orders
Section 28 – Facilitated settlement
Section 29 – Disclosure protection
Section 30 – Tribunal duties
Section 31 – Summary dismissal
Section 32 – Representation of parties to an application
Section 35(1) to (3) – Recording tribunal proceedings
Section 37 – Applications involving similar questions
Section 38 – Examination of witnesses
Section 42 – Discretion to receive evidence in confidence
Section 48 – Maintenance of order at hearings
Section 49 – Contempt proceeding for uncooperative witness or other person
Section 52 – Notice of decision
Part 8 – Immunities
Part 9 – Accountability and Judicial Review, except section 59 Standard of review without privative clause
Section 60(1)(a), (b) and (g) to (i) and (2) – Power to make regulations
Section 61 – Application of FIPPA
The Cabinet may make regulations:
- prescribing any decisions or orders under the WCA or the regulations that may be appealed to WCAT, prescribing who may appeal those decisions or orders, and prescribing classes of decisions concerned with the conduct of a review which are not appealable [s. 315(a)];
- respecting the awarding of costs in an appeal to be paid by one party to another party [s. 315(b)];
- prescribing qualifications of health professionals to provide independent assistance or advice [s. 315(d), s. 301];
- prescribing the circumstances under which WCAT may order the Board to reimburse the expenses incurred by a party to an appeal [s. 315(c)];
- prescribing an oath of office to be taken by WCAT members before beginning their duties [s. 277(7)];
- prescribing any procedures or requirements governing the chair’s appointments of vice chairs [s. 280(2)(a)];
- prescribing rules of practice and procedure for WCAT [s. 60(1)(a) ATA];
- repealing or amending a rule made by WCAT [s. 60(1)(b) ATA];
- prescribing the form, manner and timing of reports to the minister responsible for the tribunal [s. 60(1)(g) ATA];
- prescribing information that must be included in reports to the minister responsible for the tribunal [s. 60(1)(h) ATA];
- prescribing information the tribunal must make public [s. 60(1)(i)].
The Cabinet has made the following regulations in relation to WCAT:
- the Workers Compensation Act Appeal Regulation, with an effective date of March 3, 2003 (Order in Council No. 1039/2002 (B.C. Reg. 321/2002)); and,
- the Transitional Review and Appeal Regulation, with an effective date of March 3, 2003 (Order in Council No. 1040/2002 (B.C. Reg. 322/2002).
The Cabinet also ordered the following by regulation:
- effective November 30, 2002 or March 3, 2003 (depending on the section), the sections of the Workers Compensation Amendment Act (No.2), 2002 are brought into force (Order in Council No. 1138/2002 (B.C. Reg. 320/2002));
- effective December 3, 2004, the sections of the Administrative Tribunals Act applicable to WCAT are brought into force (Order in Council No. 1143/2004 (B.C. Reg. 516/2004));
- effective March 3, 2003, an amendment to section 10 of the Fishing Industry Regulation is brought into force. (The original order was Order in Council No. 1041 (B.C. Reg. 323/2002) and specified an effective date of March 3, 2002. It was replaced by Order in Council No. 1150 (B.C. Reg. 384/2002) to provide an effective date for the Regulation of March 3, 2003).