Frequently Asked Questions
Over the years, thousands of people, both workers and lawyers, have called me about WCB issues. A common set of questions has emerged, and my answers are summarized below. Please read this page before you call, and you may have the answer to your questions immediately. Otherwise, please feel free to call or send an e-mail from the Contact page.
WCB IS NOT PAYING ALL MY EARNINGS
Each year, WCB sets a minimum and a maximum wage rate. You can check WCB’s website for the ones that affect you, or ask the Case Manager.
The minimum wage rate for 2019 is $415.79 per week net, and for 2018 it is $405.79 per week net. If average earnings are below the minimum, WCB pays the actual average earnings.
The maximum wage rate for 2019 is $84,800.00 per year gross, and for 2018 it is $82,700.00 per year gross. WCB deducts the maximum income tax rate and CPP premiums from the maximum wage rate, and then pays 90% of what is left – the “90% net” wage rate.
NOTE: workers who earn above the maximum wage rate can lose a lot of money because WCB will not pay for any amounts earned above the “net” maximum. Workers should buy private insurance to cover the earnings that exceed WCB’s net maximum. Many workers have suffered significant financial hardships as a result of not doing so. Unfortunately, workers, including unionized workers, do not seem to be aware of this problem.
CAN I SUE WCB/ EMPLOYER /DOCTOR?
In most cases, no. If you were injured in a workplace accident and/or in the course of treatment for those injuries, you cannot sue anyone, and your only remedy is to maximize your WCB benefits. All BC employers and workers are protected, as are health care providers, even if they were not involved in the cause of your injuries, i.e. other workers and employers.
You have an option to sue if either you or the person who injured you were not acting in the course of employment at the time of the accident. This is a contentious issue and leads to many applications to WCAT for a section 311 [formerly s. 257] Certification [formerly Determination] of the status of the parties in a law suit. An illustration of this distinction can be found at WCAT.bc.ca 2011-01139.
As well, WCB enjoys common law and statutory immunity, so it is only in rare and exceptional cases that one could consider suing WCB. See for example: Powell Estate v. Workers’ Compensation Board. The Court of Appeal recently confirmed the bar against suing WCB: Gill v. WorkSafeBC, 2017 BCCA 239.
CAN ICBC FORCE ME TO GO TO WCB?
There is always the possibility that a Defendant (usually ICBC) will raise the “worker-worker bar” at some point in the litigation. Courts have acceded to applications to adjourn a trial even after a Jury trial (before judgement) [Davidson v. British Columbia (Workers Compensation Board)] on the ground that WCB (now, WCAT) has the exclusive jurisdiction to decide the status of the parties in litigation. There is no time limit for the application for a section 311 Certification.
This can result in two problems, the obvious one of delays (and related expenses), and the less obvious one that the Plaintiff may be barred from claiming compensation from WCB if she/he did not file an application at WCB within one year of the date of the injury (usually the MVA).
In all cases, therefore, the safe course of action is to file a “provisional” application with WCB no later than one year after the MVA, and have the Plaintiff elect to pursue a remedy in court rather than to claim benefits from WCB. Should WCAT eventually determine that the worker-worker bar applies, the Plaintiff will have a valid WCB claim and can collect benefits from WCB regardless of fault or the delays caused by litigation.
WILL YOU TAKE MY CASE ON A PERCENTAGE?
By policy, WCB refuses to forward benefits to lawyers who won appeals that resulted in retroactive and increased benefits paid to workers – the only organization in the country that does this. Even ICBC forwards settlement funds to lawyers, which is why lawyers readily accept MVA cases on a contingent fee basis. Although the current NDP government had the opportunity, after commissioning a review, to correct this anomaly with a simple amendment to the Act, the April 2020 amendments did not do anything about it, thus condoning WCB’s policy to discourage lawyers from representing clients in WCB cases. Ironically, the amendments enable WCB to honour insurance contracts to pay WCB benefits to the insurer, but did not give lawyers the same consideration. I, like virtually all BC lawyers, no longer accept WCB cases on a contingent fee basis, with the result that workers do not have a reasonable access to justice, and are treated under law and policy differently from the way all other claimants are treated.
WHAT ARE MY RIGHTS?
While it is not possible in the space or time available to advise you about all your rights [see the Flow Chart], here is a brief summary. Please note that the flow chart is out of date because of amendments to the Act that are discussed below. The general flow of a claim remains the same, subject to WCB’s policy changes that reflect the amendments, and the appeal system has been replaced. The information below is current.
You have a right to apply for benefits if you are injured or suffer an occupational disease while working. If WCB denies your claim, you have the right to appeal within 90 days of the date of the decision (plus 5 days for mailing time), with a further appeal of most issues (not commutations or VR) to WCAT within 30 days of the date of the Review Division decision (plus 7 days for mailing time), and the right to file a Petition to the Court in Supreme Court for Judicial Review within a reasonable time after the date of the Review Division, or within 60 days of the date of the WCAT decision. It is possible, but difficult, to get extensions of time if you are late filing any of these proceedings.
You have the right to have WCB accept all your injuries. You have the right to appropriate wage loss benefits, health care services and benefits, vocational rehabilitation services and benefits, and a pension for permanent partial or total impairment of function, including a possible “loss of earnings” pension if the “functional” pension does not adequately compensate you for your financial losses.
You have the right to appeal every decision you disagree with – if you do not, you or your dependant, and WCB and the employer will be bound by each decision that you (or your dependant or the employer) do not appeal, subject to the narrow exceptions noted below. If you are told that your case is “open”, ignore that advice because it says nothing about your status – your status is determined entirely by WCB’s written decisions.
You also have the right to speedy and courteous service, explanations when you ask for them, freedom from bias and/or discrimination, and fair and transparent adjudication consistent with WCB’s policies and the principles expressed as the “classic compromise” – promptly paying benefits on a no-fault basis without the encumbrance of court proceedings, but removing your right to sue (see Pasiechnyck and Kostiuk under Court Decisions).
ARE THERE ANY TIME LIMITS?
Yes. You should file your application for benefits [WCB: Form 6] as soon as practicable, and likewise report your injury to your employer, but the ultimate time limit is one year from the date of injury, or from the date of disablement [time off work or undergoing treatment] as a result of an occupational disease.
DO NOT use the “Teleclaim”; i.e. do not telephone WCB to tell them about your injury – ALWAYS use the hard copy Form 6 that you yourself fill out, date and sign, and keep a copy. There are many reasons for this, including the fact that the person you call is often someone in a foreign country who may or may not be fluent in English (or French), and is anonymous, and note that WCB has NO RECORD of the phone call.
Note: the April 2020 amendments enable decisions communicated to workers (or employers or dependants) in ways other than a written letter, so long as the person affected is made aware of the decision. This can lead to confusion and missed deadlines, and places an unfair burden on the parties to vigilantly keep track of the claim file and consider appealing every communication, even when there is no clear statement about the appeal periods or the reasons for the decision.
You have 90 days from the date of WCB’s letter (plus 5 days for mailing time) to appeal by filing a Request for Review at the Review Division. WCB’s letter should enclose a leaflet with information about the appeal system, and a list of the Workers’ and Employers’ Advisors offices in the Province. If you are late, you can apply ASAP [time is a critical factor] to the Review Division for an extension of time, which is not easy to get.
Review Division re-considerations are limited, especially in light of recent case law. You will probably have to appeal to WCAT anyway.
Some final decisions by the Review Division are subject to Judicial Review, such as commutation and vocational rehabilitation decisions. While there is no strict time limit for filing a Petition to the Court, it is best to file it as soon as possible, and in any event within a few months or a year of the date of the Review Division’s decision.
You have 30 days from the date of a Review Division’s decision (plus 7 days for mailing) to file a Notice of Appeal from Review Division at WCAT [except certain issues like Vocational Rehabilitation and commutations of pensions]. If you are late, you can apply ASAP to WCAT for an extension of time [time is a critical factor], which is not easy to get.
You have 60 days from the date of a WCAT final decision to file a Petition to the Court for Judicial Review in Supreme Court. It is possible to apply for an extension of time in Chambers, but it is safer to file on time.
You can also apply to WCAT for a re-consideration of a final decision, for which there is no time limit, but which you can do only once. The grounds are narrow, and recent case law has further restricted WCAT’s ability to do so. See Selected Court Decisions. The strongest ground is the discovery of new medical evidence that was not reasonably available at the time of WCAT’s decision. You can also file a Petition within 60 days of the re-consideration decision. It is possible to apply for an extension of time, but it is safer to file on time.
You can also apply to WCAT for a re-opening of a final decision, for which there is no time limit, on “pure” jurisdiction grounds, which are narrow. This is different from a re-consideration and is limited in scope to the alleged jurisdictional defect, such as unfairness of process, not applying a statutory provision, not considering evidence, or exceeding or failing to exercise jurisdiction. You can also file a Petition within 60 days of the re-opening decision. It is possible to apply for an extension of time, but it is safer to file on time.
Note: WCAT’s policies conflate re-considerations with re-opening, and result in confusing terminology to the extent that they continue to refer to re-openings as though they are re-considerations. Re-considerations are time limited (75 days), but re-openings have no time limit. Re-openings challenge the “original” decision on the basis of jurisdictional errors in the original decision, and seek a change in the original decision. Board policies also conflate these two distinctly different remedies.
THEY ARE GOING TO CUT ME OFF – WHAT CAN I DO?
It is difficult to answer this question without knowing the circumstances of your case – every case is different.
Generally, workers maintain that WCB is “forcing” them back to work too soon (they are told, for example, that if they do not participate in the re-training program, WCB will suspend or terminate benefits), or that they have suffered further injury while attending a rehabilitation program. They say that their doctors are telling them that they should not try the physical therapy proposed by WCB or WCB’s return to work plan. In such cases, you should follow your doctor’s advice, but WCB will probably terminate or suspend your benefits until you participate. If you get a letter doing so, you should appeal it.
If you need the money and feel you have to participate in WCB’s plan, then if you get re-injured, you should ask WCB to “re-open” the previous decision that terminated wage loss, and put you back on wage loss benefits [and health care]. If WCB refuses, appeal.
WCB will at some point terminate benefits, often by awarding a small pension, most likely a 2.5% of your wage rate for “chronic pain”, usually paid in a lump sum. The vocational plan will also eventually terminate, whether or not you have succeeded in returning to suitable alternate employment that is reasonably available. If you disagree with any of these decisions, you should appeal.
THEY HAVE GIVEN ME A SETTLEMENT, SHOULD I CASH THE CHEQUE?
Yes. It is your money, and keeping the money will not affect your right to appeal or to get further benefits. The letter should tell you this.
You should be aware that there is no “settlement” because WCB acts unilaterally and issues decisions without your input. There is no negotiation. What you get is a pension award. If you disagree with it, you should appeal.
Most pensions seem to be the flat 2.5% “chronic pain” awards. It is akin to a “scheduled” award like the scale of percentages assigned for various impairments in Appendix 4. These percentages are not awarded for the pain or the impairment per se. They are not non-pecuniary damages for “pain and suffering”. They are pre-estimates [a legal fiction] of the effects of your pain on your future ability to earn full wages. It is present compensation for potential future down times. It is for this reason that WCB (and the Act) requires a “significant change” in your compensable or pensionable condition before they will re-open the “original” decision and pay wage loss benefits (health care should continue).
I LOST AT WCAT, WHAT CAN I DO?
See above, under Are there any time limits?
CAN I GET WCB TO PAY MY LEGAL FEES?
Almost never for legal fees, and seldom for court costs. The Act and WCB and WCAT policies make it nearly impossible to get costs against WCB or WCAT (determined by the courts’ tariffs, designed to compensate for only a portion of actual legal fees). There have been a few exceptions for partial cost awards: Bagri v. Workers’ Compensation Appeal Tribunal, 2009 BCSC 300, Downs v. WCAT, 2013 BCCA 13, and Whetung v. WCB & WCAT, 2013 BCCA 350.
I CAN’T GET ANY ANSWERS FROM WCB/ ITS TAKING TOO LONG FOR WCB TO IMPLEMENT THE APPEAL I WON.
Get in touch with the Fair Practices Office.
SHOULD I HIRE A LAWYER OR USE THE WORKERS’ ADVISORS/MY UNION?
The Workers’ Advisors and your Union will represent you without fee; lawyers will charge fees and PST and GST, as well as disbursements. You should take this into account when assessing how much you can get from WCB if you win your appeal – it may not be financially beneficial for you to pay legal fees for the result that you may achieve.
Workers’ Advisors and most Unions will not go to court or apply to WCAT for re-considerations or re-openings. You should check with them in case they might. Otherwise, you should hire a lawyer or another qualified and experienced WCB representative.
As with any service, do your due diligence before you satisfy yourself about her/his knowledge and experience with WCB cases. If you are satisfied, it is your choice whether to hire a lawyer or take advantage of a free service or use a non-lawyer representative.
WCB SAYS MY FILE IS ALWAYS OPEN, DOES THAT MEAN I CAN GO BACK TO THEM AFTER I GO BACK TO WORK AND I GET HURT AGAIN?
It makes no difference whether your claim file is open or closed. As stated above, the only thing that counts in a WCB claim is a decision. A decision is neither open nor closed. A decision is final and binding on you and your dependants, and on WCB and the employer, unless it is overturned on appeal or re-consideration or re-opening, in which case the last decision is final and binding. This often leads to a bifurcation of a claim when some decisions are under appeal, but WCB proceeds with new decisions without knowing the outcome of the appeal that is under way.
Every decision at every level is like a judgement of the court after trial – in fact, WCB, the Review Division and WCAT are all “courts of competent jurisdiction” within their mandate [arising from the Act].
If you suffer a recurrence or aggravation of your injury or deterioration of your compensable condition, you should ask WCB to re-open the previous pension decision or the previous decision that terminated benefits, and put you back on wage loss and health care benefits. WCB may also have to re-assess your entitlement vocational services and benefits and your pension if you got one.
If you suffer a new injury or are injured while working for a new employer, you must file a new application [Form 6].
WCB SAYS IT’S AN ICBC CASE, BUT ICBC SAYS IT’S A WCB CASE.
See Can I SUE…. above.
IF I SEND YOU THE WCB LETTER /my summary /someone else’s opinion, – CAN YOU ADVISE ME ABOUT WHAT TO DO?
Unfortunately, it is not possible to offer any advice about your claim before studying the entire WCB claim file. A claim file contains a lot of important information such as decisions, assessments, medical and vocational opinions, appeal decisions, and much more. I need to know what WCB knows before I can offer a legal opinion with confidence.
WHAT ARE YOUR RATES?
There are two ways to charge fees (there are pros and cons for each):
- by the hour: this would apply to all attendances – opinions, appeals, applications for re-consideration or re-opening, WCAT section 311 Certification, and Judicial Reviews
- flat fees: for all attendances necessary for one review at the Review Division, or for all attendances necessary for one WCAT appeal including an oral hearing and post-hearing attendances, but not for Judicial Reviews for which it would be difficult to determine a flat fee
In all cases, the client pays for the costs of experts’ reports, such as from doctors and vocational rehabilitation consultants, and claims these costs in the appeal, which are often granted even when an appeal is denied so long as it was reasonable to incur those costs in prosecuting the appeal.