WorkSafeBC Claims Guide for Injured Workers
March 12, 2023
WorkSafeBC Claims Guide for Injured Workers
When a worker sustains an injury or develops a medical condition that arises out of and in the course of their employment, both the worker and their employer have an obligation to report the incident to WorkSafeBC. If the worker submits a claim for compensation, WorkSafeBC begins the process of assessing the claim to determine if, and how, the worker will be compensated.
For general information about workplace injuries, compensation claims, and the Workers’ Compensation system in British Columbia, please review the following articles:
- Workplace Injuries and Workers Compensation Claims
- Overview of Workers’ Compensation in British Columbia
- Understanding the WorkSafeBC Claim Framework
- Who is Covered by Workers’ Compensation Act in British Columbia?
- Is Workers’ Compensation Like Private Insurance in BC? Do all Companies Have It?
Guide for Injured Workers – Answering Questions About WorkSafeBC Claims
1. You disagree with a WorkSafeBC decision. What can you do about this?
You have 90 days from the date of the Board-level decision tofile a Request for Review to the Review Division. If you are still unhappy withthe outcome at the Review Division, you have 30 days from the date of theReview Division’s decision to file a Notice of Appeal to the Workers’Compensation Appeal Tribunal, provided that the Review Division’s decision isnot a final decision.
When you initiate a review or appeal, you will be given anopportunity to provide evidence by way of written submissions. If your employerchooses to participate in the review or appeal, they will be permitted toprovide a rebuttal submission, following which you will be given theopportunity to submit a final reply. At the Workers’ Compensation Appeal Tribunal,an oral hearing may be permitted (as opposed to written submissions) underlimited circumstances. Once all of the evidence is exchanged, either a ReviewOfficer or a Vice Chair will issue a written decision.
Client Win: On February 10, 2022, the Review Divisionallowed our application for an extension of time to file a request for reviewon the basis that we provided significant new evidence that was not availableat the time of the Board decision and warrants further investigation by theBoard. The Review Division agreed thatspecial circumstances precluded the applicant from filing a request for reviewon time. There was also a significant issueto be reviewed and the applicant would be prejudiced if the extension was denied. You can read more about Review Decision R0287447 here.
2. Your claim has been accepted by WorkSafeBC. What types of benefits are you entitled to receive?
All claims are different, but generally if your claim has been accepted, you will be provided with temporary wage loss benefits for the period of time you are off work as a result of your workplace injury. You are provided with wage loss benefits as long as your injury continues to be “temporary”.
In the event that your injury or medical condition does not resolve and becomes a permanent condition, WorkSafeBC may provide you with additional benefits, including vocational rehabilitation assistance and a permanent partial disability award (pension) which is payable until at least age 65.
You will also be provided with health care benefits for the duration of your claim, provided that the health care treatment is reasonably available and will either treat, alleviate, or cure the compensable injury and/or medical condition.
3. How are your wages calculated?
WorkSafeBC refers your payable wages as the applicable weekly “wage rate.” When a claim is accepted, WorkSafeBC immediately takes steps to calculate an initial wage rate, which is payable for the first 10 weeks of a claim. Provided that you receive regular remuneration based on the standard 5-day work week, WorkSafeBC will calculate your initial wage rate based on your rate of pay at the time of the workplace accident. In the event that you are a casual worker, a person who has purchased personal coverage, or have other extenuating circumstances, WorkSafeBC will rely upon alternate methods to calculate your initial wage rate.
After 10 weeks of the claim, the initial wage rate is replaced by the long-term wage rate. The general rule for calculating a long-term wage rate is to base it upon the worker’s earnings in the 12 months preceding the workplace accident. However, exceptions to this general rule may apply. For example, if you are a temporary or casual worker, a person who has purchased personal coverage, a worker with no earnings (i.e. volunteer worker), an apprentice or learner, or a worker who was employed by the current employer for less than 12 months, WorkSafeBC will rely on alternate rules to calculate your long-term wage rate. In extraordinary circumstances, WorkSafeBC also has the discretion to increase a long-term wage rate if any of the standing rules results in a long-term wage rate that is inequitable in the circumstances.
4. What if your wage rate is incorrect?
We have helped many workers seek a review or appeal their wage rate to WCAT. Often, the Review Division provides instructions to the WorkSafeBC Board with respect to further investigation required to determine the worker’s appropriate wage rate. For example, Review Decision R0267836 and R0267836 concern initial and long-term wage rates that warranted further investigation into the nature of the worker’s job (casual or permanent), which trigger a different wage rate policy. This gives workers the opportunity to provide further evidence to the Board that was missed originally so that an appropriate wage rate can be calculated.
This Review Decision R0273838 and R0273840 is another example. The Review Division agreed that the employer’s reporting of the hours worked, and amounts paid to the worker were inconsistent and therefore unreliable to determine the worker’s initial and long-term wage rate. As a result, “the evidence the Board has gathered so far has not provided a reliable earning figure for the three months before the worker’s injury... I am not satisfied that the Board can rely on the accuracy of the employer’s reported earning figures.” The Review Division in this case ordered WorkSafeBC to consider the worker’s CRA tax returns and earnings related to another job, not previously considered by the Board.
5. WorkSafeBC determined that your injury/medical condition is “permanent”. What does this mean and how does it impact your claim?
In the vast majority of WorkSafeBC claims, the compensable injury and/or medical condition will eventually resolve. However, in some cases, the temporary injury either “stabilizes” or “plateaus” and are considered permanent conditions. WorkSafeBC defines a permanent condition as one that is not expected to significantly improve or significantly worsen in the following 12 months.
When a permanent condition is accepted on the claim, WorkSafeBC acknowledges that the condition will continue to impact you for the rest of your life. For this reason, WorkSafeBC will often refer your claim to Long Term Disability Services for consideration of a permanent partial disability award, which is paid as a monthly pension until at least age 65. Additionally, if your permanent condition results in permanent restrictions and/or permanent limitations that prevent you from returning to your unmodified, pre-injury employment, you may be entitled to a referral to Vocational Rehabilitation Services for further assistance as well.
We have helped many workers have their conditions accepted as permanent when the evidence indicated that a condition was not resolved. In Review Decision R0274412, for example, the Review Officer determined that WorkSafeBC erred in concluding that the worker’s chronic right forearm pain resolved such that he was not entitled to permanent partial disability benefits for this condition. The Review Division agreed that this condition was permanent, and that the worker was entitled to permanent partial disability benefits for right forearm chronic pain. As a result, the worker’s monthly disability compensation increased.
6. You have been referred to Vocational Rehabilitation Services. What can you expect?
If you have been referred to Vocational Rehabilitation Services, WorkSafeBC has determined that you were unable to return to your pre-injury job as a result of your permanent restrictions and limitations associated with your compensable condition. The assistance that you can expect to receive from Vocational Rehabilitation Services ultimately depends on the severity of your condition.
If you can return to work with your pre-injury employer in a modified capacity, your involvement with Vocational Rehabilitation Services will likely be minimal. However, if that is not possible, Vocational Rehabilitation Services will work with you to either (a) find alternate employment in a related occupational field by utilizing your existing skillset and knowledge, or (b) provide you with education and training so that you are able to pursue a career in a different industry altogether.
While you are actively working with Vocational Rehabilitation Services you can expect to receive vocational rehabilitation benefits, which are paid at wage rate equivalency. There are various types of vocational rehabilitation benefits, including planning benefits, job search benefits, training benefits, waiting-for-plan-to-start benefits, income continuity benefits, and more.
The type of benefit you receive will relate directly to the phase of the vocational rehabilitation process. If you feel that your job search benefits are inadequate to re-enter the workforce, you may seek a review of that decision to the Review Division. In Review Decision R0274411, we successfully entitled our client to further job search benefits for another four months.
Vocational rehabilitation benefits are ultimately paid at the discretion of WorkSafeBC. The benefits will cease if you no longer wish to participate in the process, when you successfully return to work, or when you have reached the end of the vocational rehabilitation process and have received the maximum available benefits, whichever comes first.
In extreme cases, a workplace injury (and its resulting permanent restrictions and limitations) may prevent a worker from returning to work in any capacity. In these situations, Vocational Rehabilitation Services may decide that the worker is “competitively unemployable”. When this happens, a competitively unemployable recommendation is sent to Long Term Disability Services and the worker is ultimately provided with a monthly pension paid at wage rate equivalency until at least age 65, which effectively replaces their lost earnings as a result of their inability to work.
7. You have been referred to Long Term Disability Services. What can you expect?
When WorkSafeBC determines that your compensable injuries have become permanent, your claim will be referred to Long Term Disability Services where you will be awarded a permanent partial disability award. This award is paid out in the form of a monthly pension until at least age 65. Long Term Disability Services will assess both your loss of function as well as your loss of earnings and pay you the higher award. A cost-of-living adjustment is applied to your pension award each January. This is often referred to as “COLA.”
In order to assess loss of function, WorkSafeBC may request that you attend a permanent functional impairment evaluation (or in the case of a psychological condition, a psychological assessment). Long Term Disability Services will consider the medical findings and assign a disability rating, which is used to calculate the value of the loss of function award.
To assess loss of earnings, Long Term Disability Services will compare your pre-injury earnings to your long-term earnings potential. It is important to note that your long-term earnings potential is not necessarily reflective of your actual post-injury earnings. Instead, Long Term Disability Services may rely upon the “employability assessment” prepared by Vocational Rehabilitation Services, which determines your earnings potential in the next 3-5 years within the context of the approved vocational rehabilitation plan. In the event that the resulting number is lower than your pre-injury earnings, you will be deemed to have sustained a loss of earnings as a result of the workplace injury.
It is worth noting that it will take several months or longer for Long Term Disability Awards to issue a decision with respect to the value of your pension; however, rest assured that you will receive a retroactive benefit dating back to the date that your condition was deemed permanent once a decision is issued.
8. You are in receipt of a permanent partial disability award (pension). How long will you continue to receive this award?
If you have been assessed for a pension, it will be paid to you on a monthly basis from the date that your condition became permanent until the retirement date established on your claim. By default, the retirement date is age 65; however, WorkSafeBC has the discretion to extend the retirement date in certain situations. When doing so, WorkSafeBC will consider your retirement intentions prior to the workplace accident as well as your current circumstances (e.g. continued employment in your mid-60s).
If you are 62 or younger when your pension is assessed, WorkSafeBC will defer making any decisions with respect to your retirement date. After age 63, you can expect WorkSafeBC to contact you to discuss your retirement intentions, plan, and current circumstances. At that time, a retirement date will be established on the claim. This will be the end date of your pension.
9. Your WorkSafeBC claim previously closed, but your accepted injury and/or medication condition has recurred/changed. What do you do?
If your accepted injury/condition has either recurred with no intervening event or has significantly changed/worsened, WorkSafeBC has the discretion to reopen your claim. In order to request a reopening of your claim, you must make a formal request to WorkSafeBC.
If your injury/condition has recurred or changed as a result of another incident or injury, WorkSafeBC may direct you to commence a new WorkSafeBC claim or request an adjudication on another claim instead.
WorkSafeBC Claim Management - Let KSW Do the Heavy Lifting
With over 10 years of experience handling all types of WorkSafeBC cases, our team of lawyers and designated paralegal can help guide you through the claims and appeals process, and help you secure the compensation you deserve. Navigating the intricacies of a complicated WorkSafeBC claim can be grueling at the best of times, and when you are injured or suffering from a disabling medical condition, the last thing you need to be dealing with is paperwork. We are dedicated to helping you resolve WorkSafeBC claim issues so you can move on with your life. If you require further assistance, please do not hesitate to reach out to our team by either calling 604-591-7321 or by filling out our online submission form here.
Note to Readers: The information in this article is not legal advice. If you are looking for legal advice in relation to a particular matter please contact our experienced Employment & Disability Group.
Kirsten Hildebrandt is a paralegal working for the Employment & Disability Group at KSW Lawyers. She was raised in Abbotsford, BC and grew up with a passion for learning. She graduated from high school with an International Baccalaureate Diploma and then moved to Kelowna, BC to study history and political science at the University of British Columbia – Okanagan Campus. In 2013, she concluded the rigorous Paralegal Diploma Program at Capilano University and was awarded her Paralegal Diploma with Distinction.
Ale Henao is an associate with KSW Lawyers Employment & Labour group.
Ale’s interest in employment law started with the West Coast Women’s Legal Education and Action Fund (LEAF). She facilitated a program that discussed employment rights, human rights, and systemic discrimination with high school students across the Lower Mainland and in Kamloops. Throughout law school, Ale worked as a Research Assistant for the Justice and Corporate Accountability Project...
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