1) A Brief Current History of WCB
The typical WCB claim goes through certain stages, beginning with a worker’s application for benefits (Form 6) to WCB (WorkSafeBC). If WCB accepts the claim, WCB issues decision letters setting out which injuries or occupational diseases are compensable, the initial and long term (after 10 weeks) wage rates, health care benefits, the date of plateau of the accepted conditions, whether the worker is entitled to vocational rehabilitation services and benefits, and whether the worker is entitled to a pension, which latter must be adjudicated in two stages, on a “functional” basis and on a “loss of earnings” basis, the greater monetary amount giving the final result.
WCB’s “acceptance” of a “claim” is administrative in nature, and does not determine a worker’s entitlement to benefits. A “claim” is a request for services and funding by the filing of a Form 6. WCB assigns a unique 8 digit number to each application, and issues letters from time to time setting out the worker’s entitlements to receive services and funding of various sorts. Each entitlement decision carries the force of a judgement after trial, and is final unless overturned on appeal or on re-consideration. Only entitlement decisions may be appealed by persons “directly affected”, pursuant to section 269 [formerly s. 96.2(1)(a)] of the Act.
It is often said that WCB “closes” or “re-opens” a claim or a file, but these terms have no legal meaning or effect with respect to a worker’s entitlement to benefits. The situation often arises that after a worker recovers sufficiently to return to work, whether modified or not, the worker experiences an aggravation or a recurrence of the injury, and asks WCB to “re-open” the “claim” and pay the worker benefits such as wage loss or health care costs. The “opening” of a “claim” means only that a WCB employee (a Board Officer such as a Case Manager) will consider the request for benefits, investigate, and then issue a decision as to how much, if anything, WCB will pay. The “claim” is the request for funding, and the worker’s entitlement or status is determined by the decision that follows.
A “re-opening” is different from a “re-consideration”. WCB’s power to “re-open” one of its own previous un-appealed decisions is not time limited and is proscribed by statute: section 125 [formerly s. 96(2)], and WCB’s power to “re-consider” one of its own previous un-appealed decisions is proscribed by section 123 [formerly s. 96(4)], and is subject to a time limit of 75 days, or at any time if WCB determines that the worker was fraudulent or had misled WCB. The Act says nothing about re-opening or re-considering a “claim” or a “file”, but refers only to previous WCB decisions. WCB cannot re-open or re-consider appellate decisions because they are statutorily binding on WCB.
Similarly, WCAT’s power to re-consider one of its own previous final decisions is proscribed by section 310 [formerly s. 256(2)] solely on the ground of new evidence, and only once; and to re-open “an appeal” pursuant to section 307(5) [formerly s. 253.1(5)] solely on “pure” jurisdictional grounds, neither of which applications is subject to a time limit. These two types of appeals are mutually exclusive.
The Workers’ Compensation Act was amended with respect to entitlements to benefits effective as of June 2002, and with respect to the appeal process effective as of March 2003. It was further amended in April 2020.
The June 2002 amendments re-wrote several sections of the Act, including the calculation of wage rates, placing onuses on workers to respond and participate, proscribing vocational rehabilitation benefits and services, reducing the circumstances in which WCB may grant a loss of earnings pension, and placing limits on the duration of a pension, reducing it from life to age 65 or to such later date as WCB may determine.
Before the March 2003 amendments, appeals of WCB’s decisions were taken to the external Review Board, as it then was, with a further appeal to the Appeal Division of WCB, as it then was. Judicial Review was available. After these amendments, the Review Board and the Appeal Division where extinguished and replaced by an internal appeal commenced by filing a Request for Review at the Review Division of WCB, with a further right to appeal certain issues (e.g. not vocational rehabilitation or commutation decisions) to WCAT. Members and staff of the Review Board and the Appeal Division were amalgamated into WCAT.
The April 2020 amendments consolidated and re-numbered the appeal provisions: with respect to the Review Division, sections 267 to 286, and with respect to WCAT, sections 287 to 310.
The Board of Directors of WCB continues to maintain two sets of policy manuals, known as the Rehabilitation Services and Claims Manual (the “RSCM”). Volume 1 covers injuries that occurred before the amendments, and Volume 2 covers injuries that occurred after the amendments.
WCB’s website contains dozens of documents titled “Practice Directives“. Section 319 requires the Board to set and revise policies, and with respect to practice and procedure, section 338 grants the Board authority to “establish” them. The Board of Directors has never established them, nor delegated their authority or ratified or adopted the PD’s posted on the website. The PD’s are anonymous opinions likely written by staff in the Policy Department, and they are changed without authority or ratification from the Board, with the result that their volume rivals that of the RSCM.
The appellate tribunals acknowledge that the PD’s are not binding, but treat them as though they are. The Review Division and WCAT rarely refuse to apply a PD … they de facto adopt them as policy: WCAT’s Tribunal Counsel said so at the hearing of the Bodman Judicial Review. They also fail to apply the correctness standard of review to them, and instead seem to review them on the irrelevant patently unreasonable standard.
2) Relevant Legislation
The following is a selection of sections of the Act, and is not intended to be complete or comprehensive. Please refer to the April 2020 amended Act and WCB’s policies for the details.
WCB is a corporation pursuant to Section 316 [formerly s. 80]. WCB has exclusive jurisdiction over matters of fact and law, and its decisions are protected by a privative clause: s. 122 [formerly s. 96]. WCB may reconsider one of its previous decisions: s. 123 [formerly s. 96]. WCB may re-open one of its previous decisions: s. 125 [formerly s. 96]. Section 146 provides for apportionment of pre-existing disabilities [formerly s. 5(5)].
Section 127 continues the “worker-worker” bar [formerly s. 10]. Section 128 allows a worker to elect to pursue an action [formerly s. 10].
Section 134 provides compensation for personal injuries [formerly s. 5]. Section 135 provides compensation for mental stress [formerly s. 5.1]. Section 136 provides compensation for occupational disease [formerly s. 6]. Section 137 provides presumptions for occupational disease [formerly s. 6]. Section 138 grants WCB the power to recognize additional occupational diseases [formerly s. 6(4)].
Section 155 provides for vocational rehabilitation services and benefits [formerly s. 16]. Section 156 provides for health care benefits [formerly section 21]. Sections 165 ff provide for death benefits [formerly s. 17]. Section 192 proscribes temporary partial benefits (TPD) [formerly s. 30]. Section 193 covers recurrences after more than three years [formerly s. 32]. Section 194 proscribes permanent total disability (TTD) [formerly s. 22]. Section 195 proscribes permanent partial disability (PPD) [formerly s. 23]. Section 198 sets benefits for non-traumatic hearing loss [formerly s. 7]. Section 199 sets benefits for disfigurement [formerly s. 23(5)].
Section 200 proscribes the maximum wage rate (set every year) [formerly s. 31] viz section 209. Section 202 requires deductions of 50% of CPP disability benefits [formerly s. 34(2)]. Section 203 provides for reconsideration of previous (more than 10 years, minimum disability rating, etc.) pensions [formerly s. 24]. Sections 208ff proscribe rules and exceptions with respect to the setting of average earnings [formerly s. 33].
Section 338 enables WCB’s practices and procedures [formerly s. 96(8)]. Section 339 is a privative clause [formerly s. 99]. Section 340 provides immunity to WCB [formerly s. 96].
Schedule 1 sets presumptions with respect to occupational diseases [formerly Schedule B], and Schedule 2 relates to non-traumatic hearing loss [formerly Schedule D].
Re: Review Division:
Section 267 defines terms [formerly s. 96.3]. Section 268 establishes the Review Division [formerly s. 92.2]. Section 269 sets out who may request a review [formerly s. 96.2]. Section 273 empowers the Chief Review Officer to reconsider a Review Officer’s decision.
Section 277 provides definitions [formerly s. 231], and section 287 specifically relates to appeals [formerly s. 231 and s. 249(1)]. Section 288 sets out which Review Division decisions may be appealed and which may not [formerly s. 239]. Section 291 selects who may appeal a compensation decision [formerly s. 241]. Section 292 sets out the requirements for a Notice of Appeal [formerly s. 242]. Section 293 sets the time limit for filing an appeal [formerly s. 243]. Section 293(3) grants the Chair discretion to extend the time for filing an appeal.
Section 296 sets out the portions of the ATA that apply to WCAT [formerly s. 245.1]. Section 297 sets rules of procedure, including powers in ss. 2(b) to request WCB to investigate and report, and in ss. (3) to determine a matter WCB should have [formerly s. 246]. Section 301 provides for referrals to a Health Professional [formerly s. 249(6)].
Section 303(1) requires WCAT to consider (sic) all questions of fact and law, without being bound by legal precedent (?); ss. (2) requires WCAT to decide each appeal on its own merits and justice, and to apply applicable WCB policies. Section 303(5) proscribes that if the evidence supporting different findings on an issue is evenly weighted, WCAT must resolve that issue in a manner that favours the worker. Section 304 provides for an exception to binding policy that has never been successful, with the result that the Board of Directors can order WCAT to apply a policy that WCAT has found to be patently unreasonable.
Section 306(1) empowers WCAT to confirm, vary or cancel a Review Division decision (with conditions); ss. (3) requires WCAT’s decisions to be in writing with reasons; ss. (4) provides a time limit of 180 days, and ss. (5) gives the Chair the discretion to extend this period, though if appellant so requests, the extension is limited to 45 days, although other parties can also receive the 45 day extension.
Section 307 provides for corrections of certain errors, with conditions. Section 307(5) enables WCAT “… on request of a party, to reopen an appeal in order to cure a jurisdictional defect.” Unlike applications for re-consideration, there is no time limit, and there are no conditions. These provisions are mutually exclusive, yet as of this date WCAT continues to treat applications for re-openings as though they are applications for re-consideration. This issue is presently before WCAT in an appeal.
Section 308 gives WCAT exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under this Part, including a list of 5 items. Section 309(1) is a privative clause; ss. (2) presents a problem in drafting since the right to petition the court still exists; and ss. (3) requires WCB to comply with a WCAT final decision.
Section 310 provides for a re-consideration of a WCAT final decision “… if new evidence has become available or been discovered.” WCAT’s MRPP contains the details of WCAT’s requirements and procedures.
3) Standards of Review
Dunsmuir v. New Brunswick,  1 S.C.R. 190 stated at paragraph 57,
“… an exhaustive review is not required in every case to determine the proper standard of review. Here again, existing jurisprudence may be helpful in identifying some of the questions …”.
The Administrative Tribunals Act (the “ATA”) provides in section 58 the standards of review to be applied by the courts when reviewing final decisions of tribunals that are protected by a privative clause. WCB is not subject to the ATA, but WCAT is.
In Manz v. Sundher, 2009 BCCA 92, paragraphs 30-34, the Court of Appeal confirmed that the standards of review of WCAT decisions are those set out in the ATA. In British Columbia, this is settled law. The standards of review of WCB or Review Division decisions remain at common law stemming from Dunsmuir, with the main difference being that findings of fact are reviewed with the reasonableness standard. [What is the jurisprudence or legal theory for this difference?]
With respect to findings of fact, the standard of review of a WCAT decision is patent unreasonableness as provided in section 58 of the ATA and as modified by common law from time to time.
With respect to the exercise of discretion, the standard of review of a WCAT decision is patent unreasonableness as defined in section 58(3) of the ATA (arguably, different in some respects from the common law standard), and of a WCB or Review Division decision is reasonableness. [What is the jurisprudence or legal theory for this difference?]
With respect to the Rules of Natural Justice and Procedural Fairness, the standard of review is whether WCAT acted fairly, as provided by section 58(2)(b) of the ATA, and the standard of review of WCB or Review Division decisions is for all practical purposes the same.
For further review, refer to the Selected Court Decisions sectio