April 27, 2018

Changes on the Horizon: Proposed Changes to British Columbia’s Workers’ Compensation System

On January 8, 2018, the WorkSafeBC Board of Director’s hired an external consultant, Paul Petrie, to conduct a review of the Workers’ Compensation Board’s current Rehabilitation Services and Claims Manual, Volume II (the “RCSM”).  The RCSM is a policy manual which creates the framework by which workers compensation claims are adjudicated in British Columbia.
This review is the first of potentially many changes to workplace legislation in British Columbia following the New Democratic Party forming government last summer, and Premier Horgan’s campaign promise to “strengthen workers’ rights in British Columbia.”
Mr. Petrie’s review, entitled “Restoring the Balance, A Worker-Centred Approach to Workers’ Compensation Policy” (the “Report”) contains various recommendations for changes to the existing policies applied by the Workers’ Compensation Board in adjudicating and awarding compensation claims.  The Report is lengthy, and contains numerous proposed policy changes.  “Highlights” of the Report’s recommendations are:
An Increased Ability for Adjudicators to Depart from Board Policy:  The Report recommends granting decision makers greater discretion and flexibility in adjudicating claims notwithstanding Board policy.  Currently Board policy (i.e. the policies contained within the RCSM) is binding on decision makers.  Not explicitly discussed in the Report, but a necessary consequence of the Report’s recommendation, is that the Board’s policy manual would be “binding” no longer.  In short, should this recommendation be accepted, employers can expect increased uncertainty over how, or if, claims will be awarded or rejected in any given circumstance.
Medical Evidence and Evaluation of Disability:  The Report contains various recommendations relating to the determination of medical disability of those workers whom claim compensation through the WCB system.  These include:

• The Board develop an “Abilities and Limitations Form” to be completed by a worker’s treating physician on the request of the Board, for purposes of guiding treatment and assisting with return to work options; and 

• The Board establish an independent medical examination (“IME”) process to assist in resolving disputes associated with a worker’s medical condition.

The implementation of a Board established IME process is an interesting recommendation that employers may appreciate.  Currently, an employer has little recourse where conflicting diagnosis exist or where it disagrees with a medical diagnosis provided by a worker in the course of a compensation claim.  Likewise, directing physicians to complete an “Abilities and Limitations Form” will hopefully provide guidance to employers whom are unsure about the safety of returning a previously injured employee to their workplace.
Return to Work Obligations:  In relation to returning employees to the workplace, the Report contains the following recommendations:

• The Board explicitly recognize a “duty to accommodate” injured workers under the Human Rights Code. This recommendation follows a recent Supreme Court of Canada decision, which we discussed previously here.

• The Board adopt a policy of providing vocational rehabilitation assistance to workers to return to employment with their employer as soon as the worker is medically able to. Related to this recommendation are the further recommendations that:
  • vocational rehabilitation assistance will be intended to restore a worker to his pre-injury earnings to the closest extent possible;
  • occupational therapists or vocational rehabilitation consultants may be engaged by the Board to facilitate an employer’s accommodation effort;
  • where successful accommodation is achieved, the costs associated with vocational rehabilitation and wage loss payments during the investigation will be paid out of the accident fund and not charged to an employer’s experience rating; and
  • employers will likewise be relieved of rehabilitation costs associated with accommodating an injured employee, if that accommodation is considered successful 12 months after it is put in place. If this recommendation is accepted we certainly hope some guidance will be given as to what “successful” accommodation entails.

Loss of Earnings and Permanent Disability Assessments:  The Report recommended wholesale changes to determining loss of earning awards for permanent conditions.  This follows a number of judicial decisions in British Columbia which have criticized the Board’s application of the current policy.
Claim Suppression:  The Report recommended the Board initiate an independent review of whether and to what extent claim suppression (the prohibited practice of an employer purposefully discouraging workers from filing WCB claims) exists in British Columbia.
Chronic Pain Awards:  The Report recommended the Board allow individuals to qualify for additional permanent partial disability wage loss benefits in exceptional cases of chronic pain.  Currently chronic pain awards are capped at 2.5% of earnings.
Mental Disorders:  A number of recommendations were made concerning the Board’s adjudication of mental disorder claims under section 5.1 of the WCA.  Most notably and concerning is the recommendation that the Board further clarify (read: weaken) the existing “labour relations exclusion” to section 5.1 claims.  The “labour relations exclusion” currently prohibits compensation claims where the claim relates to a mental condition caused by legitimate decisions made by an employer relating to an employee’s employment.
Depending how they are ultimately implemented, these recommendations may result in significant cost implications to employers and increased regulatory and administrative requirements.  We will keep you updated as these changes develop.
If you have questions regarding the impact of the Report’s recommendations, or steps you can take to reduce their impact, please do not hesitate to contact one of the lawyers in our British Columbia office.