These mandates are contained in Policy Item 2.20 of the RSCM Vol. II) which sets out the following:

In making decisions, the Board must take into consideration:

1. the relevant provision or provisions of the Act;
2. the relevant policy or policies in this Manual; and
3. all facts and circumstances relevant to the case.

By applying the relevant provisions of the Act and the relevant policies, the Board
ensures that:

1. similar cases are adjudicated in a similar manner;
2. each participant in the system is treated fairly; and
3. the decision-making process is consistent and reliable.

First, the requirement to investigate.

In my view, the provision “take into consideration … all facts and circumstances relevant to the case” means there is a positive requirement on WorkSafeBC to thoroughly investigate your case.  This means they are to obtain your medical documents, get witness statements, investigate the details of your job activities, etc.  In fact, it’s impossible to list all the requirements for investigation (in my view) because each claim has its own unique circumstances.

Second, section 99(2) of the Workers Compensation Act requires WorkSafeBC to decide issues “upon the merits and just of the case.”  This is a very important provision for all WorkSafeBC claims.

Why is it so important? Because it means that WorkSafeBC cannot take an adversarial position.  In other words they are to decide your issues on the merits and not advocate against you.

Let me illustrate with an example.  I also act for people injured in car accidents.  Injured car accident victims in BC must claim against the at-fault driver.  Yes, ICBC is generally the insurer for both the injured and at-fault driver, but in law the claim is against the defendant.  This means ICBC has a responsibility to advocate for the defendant and pay out as little as possible.

The ICBC claim process is an adversarial process, whereas the WCB process is not.

How can you use this information?

Generally, WCB collects all information relevant to a file they are aware of.  There have been instances when I’ve referenced Policy Item 2.20 in cases where it was my opinion WorkSafeBC failed their duty to investigate.

Making this argument doesn’t necessarily result in any change of decision, but it gives notice that and a reminder, that a thorough investigation is required.

You might also ask WorkSafeBC to expand their investigation if you believe they aren’t doing enough.  Your request may or may not be granted.  It depends on the whether “facts and circumstances are relevant” to a case.  Relevancy can be interpreted differently by different people.

That said, don’t rely on WorkSafeBC to do a full investigation.  If there’s evidence not on file with WorkSafeBC that can help your claim, just go out and get it.  If there’s a cost associated with getting, ask WorkSafeBC to get it.  If they refuse, still get the evidence if you can afford it and request reimbursement.  If reimbursement is denied, then appeal.

If you have a WorkSafeBC appeal, one of the best resources is the WorkSafeBC website.  As you can well imagine, I’m on it often.  It’s where you can find the law, policy, regulations, and forms.

It’s easy to navigate and find what you’re looking for.  Frankly I think it’s well done.

That said, the WorkSafeBC website won’t do your appeal for you.  It’s merely a resource (a good one at that).  If you have a WorkSafeBC matter, and you haven’t checked out the WorkSafeBC website, do so soon because it really does have a great deal of information.

Another great resource if you’re appealing to the Workers’ Compensation Appeal Tribunal (WCAT) is the WCAT website.  It’s not nearly as robust as the WorkSafeBC website, but it’s certainly informative about WCAT appeals.

However, when I review clients’ WCB files, I seldom see letters from clients to WorkSafeBC.  I do see phone log messages.  Phone log messages are created by WorkSafeBC Case Workers and are designed to track the gist of telephone conversations relevant to the file.  Most phone log messages track telephone conversations between a Case Worker and the injured worker.

If you’re handling your WorkSafeBC claim on your own, in my view it’s a good idea to put as much of your communications in writing as possible.  For example, if you have a telephone conversation with your Case Worker, take some notes and follow up the telephone conversation with a letter and/or email confirming the discussion.

In other instances, if there is no need for immediate response, you can skip the telephone call and instead simply write a letter or email.

IMPORTANT:  keep a copy of all your letters and emails that you send.

Why communicate in writing?

So you have a paper trail.  Suppose you get your WorkSafeBC file and you disagree with the characterization of a phone log message, you can check your written correspondence to verify it or show WorkSafeBC (or the appeal decision-maker) that the phone log differs from notes and a letter you sent.

Yes, this places more work on your part; however, you never know when good note taking and consistent written correspondence will help you claim in the long run.

2 Organization Tips

Do your best from the beginning of your WorkSafeBC claim to be organized.

Get an accordian file-folder or some other filing process which enables you to organize the materials.  Believe me when I tell you WorkSafeBC files can get very large very quickly.  Moreover, as time goes on, you may receive several decisions spanning more than one issue from WorkSafeBC.  It helps to have those decisions organized so you can find them easily.

If you correspond with your Case Worker by e-mail, create sub-folders in your e-mail account where you can organize various e-mails BOTH RECEIVED AND SENT.  Yes, after you send an e-mail, be sure to move that sent email to a folder so you can easily find it.

If you’re organized and you create a consistent paper trail, you’ll be able to more efficiently deal with your WorkSafeBC claim in the long run (and some claims go on for a long time).

Fortunately you have 2 opportunities to appeal a pension award.  But before doing so, you want to be sure you have a good argument for your appeal.

What Makes for a Good WCB Pension Appeal Argument?

The answer is simple:  good medical evidence.  Generally, WCB bases it’s pension award on the data obtained from a permanent functional impairment evaluation (PFIE).  A PFIE is where you’re limitations are assessed.  For example, if you have a shoulder injury, the PFIE will test your shoulder’s range of motion, strength, stamina, and other factors in order to determine how limited the shoulder is.

From the data, WorkSafeBC (formerly called WCB in BC), determines how much in percentage you are impaired functionally.  The percentage is applied to your compensable wage rate.

For example, if you’re compensable wage rate is $30,000 per year and you’re found to have a 10 percent functional impairment, your pension is 10 percent of $30,000 per year to age 65 (if your injury is since 2002 under the new Workers’ Compensation Act).  You will receive a small pension in a lump sum (discounted to its present value).  If a larger amount, you’ll receive a monthly payment.

Another pension option is the “loss of earnings” pension.  This is a more robust pension and is based on the difference between what you would have hurt without workplace injury and what you will earn with the injury.  This pension is not routinely awarded.  However, if you’re appealing, it’s a good idea to ask for it.

The best way to build a great pension appeal is getting medical professionals to give medical opinions based on the PFIE.  This is no guarantee you’ll succeed, but it’s the way to build a good appeal.

My approach to appealing any type of WCB claim is use plenty of great evidence.  Appeals are won with details.  Details about the job, the injury, the limitations, the medical history … you name it, it’s building a methodical and detailed appeal using the best evidence.

Should You Appeal?

I’m of the view if you don’t ask you won’t get anything.  REMEMBER, you only have a set amount of time to appeal.  Don’t wait.  Start building your appeal right away.  Our firm offers reasonably priced consultations where you can find out your BC WCB appeal options.  We can generally get a good idea whether you have a good chance to succeed.  Even if you don’t consult a lawyer, be sure to file your appeal materials no matter what so you have the option available to you.

Yes, you can. Also, there is no time limit to ask for a reconsideration.

So, when should you ask for a reconsideration and how do you do it?

WCAT will only grant a reconsideration of your claim if:

1. you have new substantial evidence not available at the time of the initial decision;
2. natural justice rules were breached;
3. jurisdiction error; or
4. the decision was patently unreasonable.

The new evidence requirement is straight forward to understand. All I have to say is that it must be compelling new evidence and it must not have been available at the time of the initial WCAT decision. Not available doesn’t mean you failed to get it. Not available means had you tried to get it, you would not have been able to do so.

Natural Justice refers to following the rules set out by WCAT. If WCAT breaks its own rules then you are entitled to a reconsideration. For example, if the WCAT didn’t communicate certain deadlines or invite submissions to you.

Jurisdiction error is when the WCAT fails to apply and interpret the law made by the British Columbia Government and/or the Canadian government.

Patently unreasonable error is a decision that cannot be rationally supported. For instance, if the WCAT makes a decision that has no evidence to support it, that would be patently unreasonable.

The above is a very brief overview about WCAT reconsiderations. It is important to know that reconsideration requests are granted only in limited circumstances. I distilled much of the above information from the WCAT website. You can see more in detail about WCAT reconsiderations by visiting the WCAT website located at www.wcat.bc.ca.

Where, in an industry within the scope of this Part, personal injury or death arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part must be paid by the Board out of the accident fund.

The question becomes: what qualifies an injury arising out of and in the course of employment?

WorkSafeBC, in its Rehabilitation Services and Claims Manual, Volume II (RSCM) in chapter 3 sets out 10 criteria that provides guidelines in determining whether an injury arose out of and in the course of employment. These 10 criteria are whether the injury occurred:

(a) on the premises of the employer;

(b) in the process of doing something for the benefit of the employer;

(c) in the course of action taken in response to instructions from the employer;

(d) in the course of using equipment or materials supplied by the employer;

(e) in the course of receiving payment or other consideration from the employer;

(f) when the risk to which the employee was exposed was the same as the risk to which the employee is exposed in the normal course of production;

(g) during a time period for which the employee was being paid;

(h) and was caused by some activity of the employer or of a fellow employee;

(i) while the worker was performing activities that were part of the regular job duties; and

(j) while the worker was being supervised by the employer.

You don’t need to satisfy all of these 10 criteria and this is not a complete list (according to the RSCM. Therefore, if you satisfy some or all of these criteria, then on the face of it, your injury arose out of and in the course of your employment.

Of course, the difficulty arises when your injury occurs over time (i.e. back pain or carpal tunnel syndrome) or you have a pre-existing injury of a similar nature to your current workplace injury.

You can significantly improve those staggering figures simply by filing a better initial claim to WCB.

Put yourself in the shoes of a WorkSafeBC case worker who decides whether you’ve been injured on the job. Let’s say you submit a claim for back injury that over time increases to where finally you just can’t do your job. You have no specific workplace incident. Maybe you never told your doctor because you thought it would go away. The only evidence you have is what you say on the claim form.

I’m not saying WorkSafeBC doesn’t give your claim consideration. What I’m saying is that your case is not a sure thing and that a WorkSafeBC case worker can just as easily deny your claim as accept. Why is that? Because your claim lacks persuasive evidence.

So, how can you significantly improve your WorkSafeBC claims to ensure the best chance of getting compensation and medical treatment due to you?

1. Get it documented. If ever you experience discomfort (physical and/or psychological), even if you aren’t staying home from work, tell your workplace first aid attendant. You should also tell your family doctor as soon as possible. If you don’t have a family doctor, then go to a walk-in clinic. It is best if you go to the same walk-in clinic so that all your medical records are in one location.

If your doctor recommends some form of treatment, do it! If it comes out later that you failed to follow your doctor’s recommendations, then you may be found at fault for future injuries.

2. Make notes and tell someone. Make notes as soon as you can or if your injury occurs over time, then document instances of discomfort. Consider whether any of the following applies:

a. Your injury details;
b. If your injury occurred over time, note down instances of discomfort;
c. Did production expectations or number of work hours increase?
d. Did your job activities change?

3. Note down witnesses. When able, note down all eye-witnesses if a specific workplace injury incident. If your injury occurred over time, be sure to tell someone over that time about what is going on with you. It’s best to choose someone you trust. You would also be wise to make brief notes who you told and when.

4. Light or Modified work duties. If your family doctor writes a note for your employer prescribing light or modified duties, ensure your employer gives you light or modified duties. If you aren’t given light or modified duties be sure to note down the date and the job you were given. If you are a union member, tell your union representative.

It is important to keep track of post-injury work activities so that if you unfortunately get injured later, you have it documented that you never had the opportunity to heal. This helps your claim and you hope WCB will investigate your employer to ensure they comply with doctors’ notes.

5. Trouble with English – do your best to find someone to translate. If you have difficulty with English, then all this documentation stuff is nearly impossible for you. What I suggest is that you get to know someone who speaks your native language and English, and who is willing to help you out. Then, if you ever experience discomfort, you can then do what is suggested above with the help of your translator. You may even wish your translator go to your doctor with you so that your doctor is properly informed.

The above 5 tips will certainly help your claim. However, if your claim is still denied, all the documentation you create by doing the above and your following medical recommendations will give your WCB appeal the best shot possible.

1. Claim Response: WorkSafeBC states on its website that it tries to decide a claim within 17 days. If approved, the cheque is in the mail. If denied, the letter is in the mail.

2. Your claim is denied: You have 90 days to file a Request for Review with the Review Division from the date of your denial letter. Your denial letter from WorkSafe BC will state this deadline. The Request for Review form is available at the WorkSafe BC website.

3. Your Request for Review is accepted: You will receive a letter from the Review Division stating you have 30 days to send in more written submissions and/or documents. These additional submissions and your Request for Review form your first-level appeal.

4. Review Division decision duration: 150 days. Yes, the Review Division has up to 150 days to issue a decision.

5. Review Division DENIES your first-level appeal: You have only 30 days to appeal to the WCAT.

6. WCAT decision duration: About 180 days. I say about because the 180 days doesn’t start running until the WCAT Board has been notified. The short answer is give or take 6 months.

As stated above there are some exception and exemption rules. Learn them if you must, but you are much better off if you simply adhere to the applicable deadlines. I’m not saying that if you miss a deadline your case is over for certain. However, you don’t need the added hassle or expense of trying to get a deadline extension or exemption.