WorkSafe B.C. - or the Workers' Compensation Board of B.C.
- has always had a tough row to hoe in the public relations department. And for
darn good reason. Despite revisions to its rules, it is still viewed as an
institution not designed to help get workers proper compensation for job
injuries but rather as an institution designed to frustrate, thwart or even
deliberately test the fortitude of those who have been forced to deal with its
So we were pleased to see that the B.C. Supreme Court has
ruled against the corporation in a recent case. (see
The case, in a nutshell, revolves around WCB denying
claimants interest on their awards. In other words, WCB thought it could
basically keep people's money as settlements dragged on and then - and only
then - pay interest if WCB was found to have made a "blatant" error. And that
rule, surprise, surprise, was something the WCB came up with on its own in
2001. The B.C. Supreme Court correctly said that was unfair.
As Drew Schroeder - the lawyer who fought this battle and
won - pointed out, the stress of fighting compensation claims takes a
tremendous toll on people's lives. To add another level of economic hardship is
The decision will have ramifications in many ways. And
compensation could amount to as much as $20 million for thousands of
But we see it as a moral victory for the average working
Joe or Jill where such victories are few and far between.
But the hitch here is that, ultimately, this money comes
out of the public purse. We hope the corporation won't start trying to download
these costs and crying the blues when it comes time to pay up. And we hope that
this decision will serve as a reminder to all government institutions that any
rule that doesn't pass a simple 'do unto others' test shouldn't make it into
any regulation handbook.
A recent decision by the Supreme Court of British Columbia
could put money in the pockets of thousands of people who have been injured on
The Supreme Court of B.C. recently ruled in the matter of
Gregory Allan Johnson and the Workers' Competition (sic) Board of British
Columbia/Workers Compensation Appeal Tribunal. The judicial review considered
the WCB's New Interest Policy that was implemented in 2001.
According to court documents, the New Interest Policy says
the WCB has the discretion to pay interest on retroactive wage loss and pension
lump sum payments only where it's demonstrated that a "blatant" WCB error
necessitated the retroactive payment.
Drew Schroeder, the lawyer who represented Johnson in the
court proceedings, said the WCB (now WorkSafe B.C.) had paid "very fair
interest" on retroactive wage loss prior to the implementation of its new
"It was very fair and absolutely correct," he said. "The
board had your money over time and were earning money on it."
Johnson injured his back in a workplace accident in 1985
and had back surgery in 1999 that he claimed was a result of the workplace
injury. He claimed wage loss benefits from the WCB - a decision that was
denied. While he won the appeal and subsequently received retroactive wage loss
benefits, he was not paid interest.
B.C. Supreme Court Justice Victoria Gray recently ruled
that it's "patently unreasonable" for the New Interest Policy to only provide
payment of interest where there is a WCB staff error.
Schroeder estimates the financial ramifications for
Johnson would be a "modest" amount in the neighbourhood of $2,000 to $3,000.
Because the case was certified as a class proceeding under the Class Proceeding
Act, it could have far-reaching effects.
Schroeder estimates about 20,000 people could be affected
by the court's decision and the funds to be paid out for interest could range
from $15 to $20 million.
"I won't be surprised if the WCB appeals," he said, noting
it could be appealed to the B.C. Court of Appeal and then to the Supreme Court
of Canada. "I expect ultimately to be successful in the case. It is not over
The case is linked in some ways to William Cowburn and the
Workers' Compensation Board of British Columbia, which dealt with the WCB's
interpretation of a "recurrence" and the "deterioration" of an injury caused in
the workplace. In that 2006 decision, the Supreme Court of B.C. found that the
WCB should recognize the difference between a reoccurrence and a deterioration
of an injury under the Workers Compensation Act.
Like his case, Schroeder said the Cowburn case dealt with
an "unlawful" policy of the WCB.
"Historically the courts have been very, very reluctant to
interfere with WCB," Schroeder said. "You can't win."
Schroeder said the Cowburn case may have changed that.
"That was really a breakthrough," he said. "What that case
and this case are saying is the courts are concerned about some of these
heavy-handed policies. They all impact on the injured workers."
Schroeder believes the courts are sending the message to
WCB to become more "even-handed" in its dealings with injured workers.
Schroeder has used some of the affidavits submitted in the
Cowburn case to estimate the financial implications of his own case. Some of
the same workers were affected by the two court challenges.
"There were about 1,000 people affected, in addition to
Mr. Cowburn," he said. "The retroactive cheques being sent out to that group
were about $40 million. They put into reserves for the future $60 million."
According to Schroeder, even though the court had
determined that the WCB's policy regarding reoccurrence and deterioration, the
board had refused to pay interest. He said the outstanding interest to that
group is estimated to be between $4 and $6 million, so he suspects it could
reach $15 to $20 million for all people affected by the latest decision.
"The interest is building every day," he added.
Schroeder said it's about fairness.
"If you borrow money from a bank, you pay interest. It is
absolutely standard," he said, adding the WCB handled it that way until 2002.
"They had your money and were earning income on it."