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Worksafe BC Forced to Change
PERMANENT DISABILITY POLICY after Supreme Court ruled it "patently
unreasonable" (history) (court
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
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
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
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
- 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
- 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
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?
- 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.
- Appeals to the Workers Compensation Appeal
- 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
What Happens If I Disagree with a WorkSafeBC or WCAT
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. http://www.labour.gov.bc.ca/wab/factsheets/prejune/notice.htm
Cowburn v. British Columbia (Workers Compensation Board),
 B.C.J. No. 1020, the Supreme Court of British Columbia determined
that the Workers Compensation Board made patently unreasonable policy
decision interpreting its governing legislation, the Workers Compensation Act
in that province.
In June 2002, the Act was amended to provide that if
a worker suffered a recurrence of an injury after retirement, there
would be no additional compensation. The Board interpreted this to mean that
the word recurrence included deterioration, so that if
a workers condition deteriorated after his or her retirement, there would
be no additional compensation.
This interpretation, according to the
Court, ignored a clear distinction between recurrence and
deterioration and concluded that the Boards policy decision
was an immediate and obvious error.
This case highlights the onus on
administrative tribunals, when developing polices, to do so in a manner that is
not inconsistent with the legislation.
When patently unreasonable
policy decisions are made, an administrative tribunal, such as the
Workers Compensation Board in B.C., could face judicial intervention.
Harper Grey LLP article for in-depth history of the case in
 I can find no basis for
justifying the interpretation of the word recurrence given by the BOD.
1. The words of the Minister speaking to the legislation make is clear
that no worker injured before the amendments to the legislation, would lose any
2. The original policy of the BOD was to distinguish between
recurrence and deterioration;
3. Any common sense interpretation of the
word recurrence would not include the word or a concept of
deterioration. The defect in interpretation is immediate and
4. There is no dictionary definition that would allow for the
interpretation of recurrence to include the word
5. There is nothing in the legislation that
would justify the interpretation given to the word recurrence by
the BOD. Indeed other sections of the Act tend to support the distinction
between recurrence and deterioration of an injury.
6. The WCAT found the BODs interpretation of the word recurrence
to be patently unreasonable.
 I find the BODs interpretation
of the word recurrence to be patently unreasonable. F. Maczko,
Cowburn v. British Columbia (Workers Compensation Board),
 B.C.J. No. 1020,
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