Worksafe BC Forced to Change PERMANENT DISABILITY POLICY after Supreme Court ruled it "patently unreasonable" (history) (court summary)

Notice to All Workers Granted Permanent Disability Awards Prior to June 30, 2002

workers who were granted benefits as a result of a permanent disability that occurred prior to June 30, 2002, are eligible to have their permanent award reassessed if their condition deteriorates after that date.

If you were granted a permanent disability award before June 30, 2002, you may be affected by a recent change in WorkSafeBC policy. The Board of Directors of WorkSafeBC recently amended its policy under s.35.1(8) of the Workers Compensation Act (the old policy to differentiate between deterioration of a permanent disability and recurrence of a disability.

The new policy was made in response to a May 2006 Supreme Court of British Columbia decision. In Cowburn v. Workers’ Compensation Board (2006 BCSC 722), the court ruled that workers who were granted benefits as a result of a permanent disability that occurred prior to June 30, 2002, are eligible to have their permanent award reassessed if their condition deteriorates after that date.

Who is Affected?

The change in policy may affect workers who were permanently disabled prior to June 30, 2002 and experienced a deterioration of their disability after that date, including:

• Workers who applied to WorkSafeBC for a reopening of their claim and WorkSafeBC applied the old policy to their application.
• Workers who appealed a decision of WorkSafeBC not to re-open a claim to the Workers’ Compensation Appeal Tribunal (WCAT) and the Tribunal made its decision based on the old policy.
• Workers who were permanently disabled prior to June 30, 2002 and experienced a deterioration of their permanent disability after that date, but have not applied to WorkSafeBC to re-open their claim.

How Does the Policy Change Affect Workers?

Workers affected by the change in policy may be eligible for:

• An increased disability award.
• Benefits for a longer period of time than was available under the old policy.
• Changes in vocational rehabilitation entitlement.

What is the Time Frame for Eligibility?

The policy change went into effect August 1, 2006, and is retroactive to October 16, 2002.

What Should I do if I Think I am Affected by this Change in Policy?

If you think that you may be affected by the change in policy, contact your nearest Workers’ Advisers Office and let us know that you may be eligible for reassessment based on the change in policy.

How Can the Workers’ Advisers Office Help?

1. Claims to WorkSafeBC:
   • If you have previously applied to reopen your claim on the basis of a deteriorating condition, your name will be forwarded to WorkSafeBC for reassessment.
   • If you did not apply to reopen your claim on the basis of a deteriorating condition, we will provide you with information on how to apply to WorkSafeBC for reassessment.
2. Appeals to the Workers’ Compensation Appeal Tribunal (WCAT):
   • Under the Workers Compensation Act, a claim that involves an appeal must be addressed by WCAT. This process involves making an application to the Tribunal for reconsideration.
   • The Workers’ Advisers Office will assess whether you may be eligible for further assistance in presenting your case to WCAT.

What Happens If I Disagree with a WorkSafeBC or WCAT Decision?

If you disagree with a WorkSafeBC or WCAT decision on eligibility for an increased pension, contact the Workers Advisers’ Office. We may be able to provide additional assistance.

For more information:

If you have questions about permanent disability awards, contact your nearest Workers’ Advisers Office.

“Old policy” refers to WorkSafeBC policy item #1.03 (b) (4) of the Rehabilitation Services & Claims Manual, Volume II, (“RS&CM II”) governed by s.35.1(8) of the Workers Compensation Act that amended by resolution on October 16, 2002, to erase the distinction between a recurrence and a deterioration of a disability.