Potential Changes Coming to the Workers Compensation Act

Bill 41 outlines some potential changes coming to the Workers Compensation Act. This Bill has now passed second reading at parliament, which means that it is getting closer to passing into legislation.

Recent changes to the workers’ compensation system have been driven by the Ministry of Labour launching a review of the workers’ compensation system in April 2019. Led by Janet Patterson, a retired labour lawyer, this resulted in an August 2020 report which provided recommendations for system-wide and structural change to achieve a more effective system for workers.

It is important to know what changes the government is considering in order to anticipate how these changes will affect injured workers. Overall, changes are being considered regarding the following:

Establishing a Fair Practices Commissioner
A legal duty for employers to return injured workers to work, a duty to cooperate and a duty to maintain employment
Increasing benefits in accordance with inflation up to a maximum
Interest payments for certain delayed benefits
Independent Health Professional Opinions
Claim suppression
Increasing the maximum compensation for non-traumatic hearing loss

There could be some changes to the current bill before it passes into legislation, however, let’s take a look at what is currently being considered and whether it will be a positive change for workers.

1. Establishing a Fair Practices Commissioner

The proposed legislation would provide for the appointment of a fair practices commissioner.

This commissioner would be appointed by the board of directors of the Workers’ Compensation Board and will be required to report annually to the board of directors. The board of directors will be required to provide the report to the minister and to publish the report on a specified website.

The purpose of the commissioner will be to investigate complaints by employers, workers and dependants of workers regarding alleged unfairness in their dealings with the board. The commissioner will make recommendations to the board to resolve these complaints or address systemic problems with the fairness of the board’s dealings as indicated by such complaints. The commission may also make recommendations to the board about systemic problems with the fairness of the application of policies of the board of directors or practices and procedures of the board.

The government is hoping that this will establish a more independent commissioner to ensure complaints are addressed in a fair, impartial and respectful manner. Unfortunately, the commissioner is limited to recommendations only. This means that the commissioner will not have the authority to actually make any changes themselves. We will have to wait and see whether the creation of this commissioner will actually be effective in making any useful changes for workers when it comes to fairness in the workers’ compensation system.

2. Return to Work and Other Duties in Relation to Injured Workers – A duty to cooperate and maintain employment.

Bill 41 would add an entire new division to the legislation to deal with return to work, and other duties, in situations where a worker has been disabled from earning full wages at their pre-injury job. This provision requires both the employer and the worker to contact one another as soon as practicable after the injury and maintain communication with one another. Although this will not be required if such communication would likely imperil or delay the worker’s recovery.

The employer will be required to identify suitable work for the worker to restore full wages, if possible. Both the worker and the employer are required to cooperate with the Board in the worker’s early and safe return to, or continuation of, work. If there is failure to comply and the dispute can’t be resolved, then the Board may reduce or suspend payments of compensation to the worker until the worker complies.

This provision also includes a duty to accommodate to the point of undue hardship. This provision creates a floor, as Collective Agreements with greater benefits than this provision will prevail if there is a conflict with such terms.

The provision would also set a time limit for these obligations.

If an employer fails to comply with this section, there are administrative penalties that the Board can impose and compensation that a worker could be provided, as a result.

This provision may be useful for some workers, in that the employer would have to look at suitable work for the worker to return to, but harmful to other workers, that are not able to perform the so-called “suitable” work.

As the Board does not have to make an immediate decision on whether the work is suitable for the injured worker, a worker refusing to perform this work may not be told immediately by the Board that their benefits are being cut off. This means that such a decision can be made retroactively, which may result in some workers losing more compensation than they would have, had such a decision been made in real time.

3. Increasing benefits in accordance with inflation up to a maximum

Currently, changes in compensation with respect to the consumer price index is calculated by the Board subtracting 1% from the percentage change in the consumer price index for Canada, up to a maximum change of 4%. If put into effect, the recommended changes would result in the Board making this calculation without deducting 1% and having the ability to set a percentage if the percentage change is greater than 4%.

4. Interest payments in some delayed benefits payments

This Bill provides for payment of interest in situations where compensation that is determined to be payable following a review (Review Division) or an appeal (WCAT) remains unpaid for a period of at least 180 days after the effective date. The effective date is in relation to the date on which entitlement to the payment arises, as determined by a Review Officer or the Appeal Tribunal.

This is good news for workers.

5. Independent Health Professional Opinion

The new provisions would allow employers, workers or dependants of a deceased worker the right to request an independent health professional to provide assistance or advice to WCAT. If the following criteria are present then the presiding member must retain a health professional to provide independent assistance or advice in an appeal:

– The appeal tribunal receives are request to do so from a – worker, employer or dependent of a deceased worker
– The medical condition of the worker is at issue in the appeal
– The appeal tribunal determines that the independent assistance or advice would assist in reaching a decision on the appeal.

This is great news for workers as it gives them a right, in certain situations, to request such an opinion. This can be useful especially when a worker cannot afford to obtain a medical legal opinion on their own yet the issue at appeal is their medical condition. The downside is that it is limited to certain situations only. Therefore, it will be interesting to see how the Appeal Tribunal implements this provision and whether it will be used in limited circumstances or more liberally.

6. Claim suppression

A claim suppression provision is also being added to ensure that an employer or supervisor does not impede or dissuade a worker or dependent from making or maintaining an application for compensation or from receiving compensation from WorkSafeBC.

This is a positive provision for workers in that not only are employers prohibited from discouraging or preventing workers from applying for compensation, they are also no longer able to impede or dissuade workers from continuing to receive compensation from WorkSafeBC.

7. Increasing the maximum compensation for non-traumatic hearing loss

Currently, the maximum compensation for non-traumatic hearing loss not resulting in a loss of earnings has a maximum compensation of 15% of total disability, whereas there is no cap for traumatic hearing loss. This change will allow WorkSafeBC to set a higher cap.

What next?

We now wait to see if Bill 41 passes, as is, or with some changes, into legislation. But that’s not the end of it. We then have to see how WorkSafeBC and the Worker’s Compensation Appeal Tribunal will develop the necessary policy and programs to implement these changes. Then, finally, we will see how these changes truly affect workers when they are implemented in each case.

These changes are scheduled to take affect at different times, either on the date of Royal Assent, by regulation of the Lieutenant Governor in Council, April 3, 2023 or May 1, 2023, depending on the provision.

Note to our Readers: This is not legal advice. Please contact our offices, if you are looking for legal advice.

GKS Law Firm

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