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Workers Compensation in Canada

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This page is NEW and still being updated.
Please send any court decisions or proceedings that you are aware of to

*** DISCLAIMER: All information on this page is provided by injured workers and not by lawyers.
Therefore, nothing stated by the CIWS can be considered a legal opinion or used or construed as such.***


"The problem with fighting to 'regain' rights is the human cost and loss to Canadians as a whole, and moreover to the individual, and their family due to the 'break, or loss' of the necessaries of required health and income. The acquired effect(s) on psychological well being is commensurate." - Darrell Powell - Official Witness to the Senate Committee on Mental Health

LAW - COURT DECISIONS - INDEX:
(and Human Rights Decisions)
BRITISH COLUMBIA 2009 Important New Decision
ALBERTA
SASKATCHEWAN
MANITOBA
ONTARIO
QUEBEC
NOVA SCOTIA
NEW BRUNSWICK
PRINCE EDWARD ISLAND
NEWFOUNDLAND / LABRADOR
NORTHWEST TERRITORIES
YUKON
NUNAVUT
INTERNATIONAL

* * * IMPORTANT NOTE * * * While an injured worker can apply for judicial review of a WCB decision, the court CANNOT AWARD DAMAGES to the injured worker. The court can only send the case BACK TO THE WCB for reconsideration. (This is somwhat like saying, "Yes, the burglar robbed you, but all we can do is send you back to the burglar to plead with him for your money back.")
WCB has been known to ignore Appeal Board and court rulings and has even appealed their own Appeal Board's decision.

Other options for proceeding with legal action in your case include:
1. a Class Action Suit in Supreme Court
2. an Individual Complaint in a provincial Human Rights Commission (be careful of possible deadlines, i.e., don't wait for a WCB decision)
3. a Representative Action Complaint in a provincial Human Rights Commission (again, be careful of possible deadlines
4. a Constitutional Challenge (against the law or policy itself
5. a Canadian Charter of Rights and Freedoms Challenge (against the decision makers).

BRITISH COLUMBIA:
2009 Important New Decision:
BC COURT STRIKES DOWN WCB POLICY ON COMPENSATION FOR MENTAL STRESS FINDING IT DISCRIMINATORY UNDER THE CHARTER 2009 - "The B.C. Court of Appeal has struck down the restrictive application and interpretation of mental stress claims in British Columbia. . . In short, the Court of Appeal found that those suffering from mental disability were treated differently from those suffering from physical disability, and that the differential treatment constituted discrimination under Section 15 (of the Charter of Rights and Freedoms). . . The Court noted that access to compensation and benefits was significantly restricted in comparison with workers suffering physical injuries. . . This important decision broadens the current approach to mental stress claims under workers’ compensation legislation not just in British Columbia, but potentially in other jurisdictions in Canada with similar legislation. "
B.C. Court of Appeal Re-Writes WorkSafeBC Policy on Compensation for Mental Stress
also on CIWS

FULL DECISION - Plesner v. British Columbia Hydro and Power Authority - 2009 BCCA 188
or here

(CIWS NOTE: This decision does not address "workload" related chronic stress, so, although it is a step in the right direction, it does not go far enough in addressing discriminatory treatment of chronic stress diseases in the workplace by WCBs. For more information on chronic stress issues see: DISCRIMINATION - Denying Compensation For Occupational Diseases and MENTAL HEALTH / CHRONIC STRESS:)

PSYCHOLOGICAL INJURY (Human Rights Class Action) 2007 NO FINAL DECISION YET - "Canadian Union of Public Employees, Local 873 alleges that the WCB refuses a worker’s claim for work-related mental illness unless its onset is both “sudden and unexpected”. It does not regard certain work- related mental illnesses, such as cumulative stress or post-traumatic stress disorder (“PTSD”) as a personal injury or occupational disease. Local 873 alleges that its Members are expected to encounter “traumatic and horrific” events and therefore their psychological impairment does not satisfy the requirement that it results from a sudden and unexpected event in the workplace." CUPE Local 873 v BC (Minister of Labour and Citizens Services) and WCB

PRESUMPTION / BURDEN OF PROOF 2007 - . . . the test imposed by the original panel was patently unreasonable as it placed a burden on the petitioner . . . I conclude that to do so was an error of law . . . jurisdictional error . . . the WCA mandates the WCAT to resolve an issue in a manner that favours the worker where the evidence supporting different findings on an issue is evenly weighted . . . In my view, the appropriate disposition of this petition is to quash the 2003 WCAT Decision . . . the original panel member failed to apply the WCA as he was mandated to do. - 2007 BCSC 862 Cianelli v. Workers' Compensation Board of B.C.

CLASS ACTION AGAINST WCB ALLOWED 2007 January - interest on retroactive payments not paid by WCB - Johnson v. Workers' Compensation Board et al., 2007 BCSC 24 (CanLII)

Update - Sept 2007 - B.C. Supreme Court Justice Victoria Gray ruled that it's "patently unreasonable" for the New Interest Policy to only provide payment of interest where there is a WCB staff error. Because the case was certified as a class proceeding under the Class Proceeding Act, it could affect about 20,000 people and represent about $15 to $20 million in interest payments to injured workers. The WCB is expected to appeal. Johnson v. Workers' Compensation Board 2007 BCSC 1410 (also see articles)

Update - May 2008 - WCB's appeal of the previous decision was allowed. However, it does not stop the class action from going forward. From http://www.courts.gov.bc.ca/Jdb-txt/CA/08/02/2008BCCA0232.htm - "In my opinion, the fact that this proceeding was certified as a class proceeding is irrelevant to the present appeal. . . . I would allow the appeal. However, I would not dismiss the judicial review petition because, as I have noted, the respondent has another argument to make as to whether the court can (or should) consider the legality of the new interest policy directly and without reference to the Appeal Tribunal’s decision."

'RECURRENCE' DOES NOT INCLUDE 'DETERIORATION' 2006 - The Court quashed a policy decision of the WCB Board of Directors ("BOD") on the ground that it made a patently unreasonable interpretation of the word "recurrence" to include deterioration. The BOD formulated a policy and interpreted section 35.1(8) to mean that if an injury recurred or deteriorated after a person retired, there would be no additional compensation. The Court concluded that the policy of the BOD was patently unreasonable. - Cowburn v. British Columbia (Worker’s Compensation Board), [2006] B.C.J. No. 1020, Also see: Worksafe BC Forced to Change PERMANENT DISABILITY POLICY after Supreme Court ruled it "patently unreasonable"
WCAT* DECISIONS "PATENTLY UNREASONABLE" ON MULTIPLE COUNTS 2007 - BC SUPREME COURT - " What is not supported by the evidence, in fact there is no evidence, is that the worker voluntarily withdrew from the workforce. . . .This finding is patently unreasonable . . . The finding by the Reconsideration Panel . . . is patently unreasonable . . . The decision to base the income on the worker’s 1999 tax year . . . is a clear violation of both the statute and the above-mentioned policy . . . The Original Panel is bound to follow the policy of the directors. Failure to do so in this case results in a patently unreasonable decision . . .
Relief Ordered:
A. This Court declares that . . . the decisions of . . . WCAT . . . are null and void and of no force and effect;
B. This Court grants certiorari** and quashes the aforesaid decisions and remits them to WCAT for rehearing . . .
C. This Court grants certiorari and quashes the WCAT Original Panel’s decision confirming the pension wage rate. . . and remits the matter to WCAT for a rehearing . . .
D. This Court grants certiorari and quashes the Original Panel’s decision confirming the reduction in income continuity payments and the denial of the Loss of Earnings pension . . .
E. This Court grants certiorari and quashes the Reconsideration Panel’s decision regarding the new evidence. . . "
Daniel v. British Columbia (Workers' Compensation Appeal Tribunal)
(* "WCAT" - Workers Compensation Appeals Tribunal)
(** "certiorari" - an extraordinary writ issued by a superior court to call up the records of a particular case from an inferior judicial body.)

ALBERTA:
PSYCHOLOGICAL HARM CAUSED BY THE WCB PROCESS IS COMPENSABLE 2005 - ". . . I find that the (WCB Appeal) Commission’s interpretation of WCB Policy ADJ-39 was unreasonable in that it required, in essence, that the Applicant’s psychiatric/psychological condition must reasonably be characterized as an emotional reaction to the accident, injury, physical disability and/or treatment process. . . . The (WCB Appeal) Commission finds . . . that the WCB’s involvement had a “significant impact on the Applicant’s emotional reaction following the accident”. . . that the Applicant had a significant and enduring “emotional reaction” that impacted his condition as a result of the adjudication events . . . The (WCB Appeal) Commission concluded . . . that . . . his condition “could no longer reasonably be characterized as an emotional reaction to the accident”. . . the (WCB Appeal) Commission’s interpretation and application of policy is unreasonable and results in an undue restriction contrary to the purpose of the legislation" - Shuchuk v. Alberta (Workers’ Compensation Board, Appeals Commission), 2005 ABQB 526

The WCB's attempt to appeal this decision was dismissed In July 2007 - The judge dismissed WCB's appeal and concluded that the Commission unreasonably interpreted the Policy saying that "This conclusion is in keeping with the overall purpose to provide generous coverage under workers’ compensation schemes and gives effect to coverage for a psychological/psychiatric disability where the condition results from an emotional reaction to an accident, injury, physical disability, and/or the treatment process. . . . In fact, on any standard, the Commission erred."
Also see: Secondary Traumatization Of Work-Related Rehabilitation Clients
and Senate Sub-Committee on Population Health - the need to review WCBs in Canada as a negative social determinant in health

SASKATCHEWAN:
THE WCB ACT DOES NOT CONFER IMMUNITY UPON GOVERNMENT REGULATORS FOR BREACH OF STATUTORY DUTY BY WCBs 1997 - "The "historic trade-off", as it is called, would not be compromised by the possibility of actions against government qua regulator . . . The (workers compensation) Board erred in declaring that any action against the government qua regulator is barred by the (WCB) Act . . . At common law, the government owes a duty of care under certain circumstances and this duty may give rise to an action for negligence. Nothing in the Act abolishes this particular right of action". - Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890

ONTARIO:
EMPLOYEE BENEFITS PAID BY THE EMPLOYER SHOULD BE INCLUDED IN CALCULATIONS FOR WAGE LOSS - 2007 - "What is striking in this case is the total failure by either the WSIB or the WSIAT to take the legislative history and the government’s explanatory purpose into account in any way. . . Having considered a multitude of factors with respect to legislative purpose and intention, she also should have weighed the evidence of the government’s explanatory purpose which on its face makes it clear that the definition of earnings would not exclude the contribution for employment benefits at issue in this case. . . .She erred in ignoring the stated purpose altogether, particularly since it plainly suggests an interpretation opposite to the conclusion at which she arrived. . . the failure to consider relevant evidence . . . renders her decision patently unreasonable." - Rodrigues v. Workplace Safety and Insurance Appeals Tribunal, 2007 CanLII 37018 (ON S.C.D.C.)

NOVA SCOTIA:
CHRONIC PAIN DISCRIMINATION 2003 - equality rights under section 15(1) of the Canadian Charter of Rights and Freedoms infringed by WCB - Supreme Court Decision - Chronic Pain - Martin and Laseur, Nova Scotia

ALERT ! - Dec 2007 Chronic pain court ruling - possible $12 million payout to 1,400 people
WCB BOARDS AND APPEALS TRIBUNALS HAVE THE JURISDICTION AND DUTY TO APPLY THE CONSTITUTION AND CHARTER WHEN DECIDING CLAIMS 2003 - "The Constitution is the supreme law of Canada . . . From this principle of constitutional supremacy flows . . . the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts . . . Administrative tribunals which have jurisdiction, explicit or implied, to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. . . . Therefore, I believe that the practical concerns raised by the respondents concerning the Board’s capacity to handle complex Charter cases do not require a conclusion that either the Board or the Appeals Tribunal lacks jurisdiction to apply the Charter" - Supreme Court Decision - Chronic Pain - Martin and Laseur, Nova Scotia and WSIB Appeals Tribunal Forced by Court to Finally Acknowledge Human Rights Duties and Tranchemontagne v. Ontario

INTERNATIONAL:

USA:
COURT FAVORS WORKER WITH AGGRAVATED PRE-EXISTING CONDITION 2008 - Arkansas - article

WORK INJURY THAT EXACERBATES PRE-EXISTING CONDITION IS COMPENSABLE 2007 - North Carolina - Queen v. Penske Corp - Discussion
WCB USING ILLEGAL IMPAIRMENT RATINGS 2007 - Boughner vs. Comp USA

SUICIDE RULED COMPENSABLE 2008 - Discussion

WORKPLACE STRESS RULED COMPENSABLE 2008 - Discussion
FURTHER LEGAL COMMENTARY (USA):
Kentucky Workers Compensation: "Bad Law and Bad Faith Lead to a Bad Situation for Kentucky's Workers" - addressing Kentucky Workers Compensation law - its history, its purpose, and its deficiencies in not protecting the injured workers:
UK:
LANDMARK RULING - EMPLOYER LIABLE FOR INJURED WORKER’S SUICIDE 2008 - London - article


Please send any court decisions or proceedings that you are aware of to


SIGN THE PETITION!

TAKE ACTION
JOIN the CIWS

workers compensation Canadian Injured Workers Society for workers compensation reform

What's Wrong with Workers Compensation?

NEWS
Injured Workers' Stories
About Us
Current Activities
Past Activities
Commissions & Reports
Law Court Decisions
Related Articles
Medical Professionals
Employees' Info
Employers' Info
Politicians' Info
Resources
Privacy and Copyright
Contact
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