New Changes to the Workers Compensation Act – Bill 41 Passes into Law

• Changes to the Workers Compensation Act introduced in Bill 41 passed into law, receiving Royal Assent, on November 24, 2022. 

The changes that are effective November 24, 2022, include laws relating to inflation, non-traumatic hearing loss and prohibiting suppression of worker claims. These changes are as follows: 

Increasing benefits in accordance with inflation up to a maximum

Previously, changes in compensation with respect to the consumer price index was calculated by the Board subtracting 1% from the percentage change in the consumer price index for Canada, up to a maximum change of 4%. Now, the Board will no longer deduct 1% and has the ability to set a percentage if the percentage change is greater than 4%.

Increasing the maximum compensation for non-traumatic hearing loss

Previously, the maximum compensation for non-traumatic hearing loss not resulting in a loss of earnings had a maximum compensation of 15% of total disability, whereas there is no cap for traumatic hearing loss. WorkSafeBC will now be able to set a higher cap.

Claim suppression

A claim suppression provision has now been 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.

The above changes are positive changes for workers. 

Further changes are effective April 3, 2023. These include changes to requesting an independent health professional’s opinion and changes to interest payments: 

Independent Health Professional Opinion

The new provisions 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 a 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.

Interest payments in some delayed benefits payments

Workers will be entitled to 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 Review Officer or WCAT Panel determines the effective date. This provision is good news for workers.

On May 1, 2023, a fair practices commissioner position will be appointed by the Board of Directors:

Establishing a Fair Practices Commissioner

This commissioner will be required to report annually to the board of directors and, in turn, 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 commissioner 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.

Final changes, which would add a legal duty for workers and employers to cooperate in a worker’s early and safe return to work, along with an obligation for employers to return injured workers to work will come into force by regulation of the Lieutenant Governor in Council, at a date yet to be determined. 

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

These changes 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.