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 witness. 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.