By Kevin Love, Lawyer at CLP

The BC government has continued to make positive changes to improve BC’s workers’ compensation system. There is a lot for workers to like in Bill 41, the government’s latest set of reforms to the Workers Compensation Act. There are still some things that are a little unclear.  And importantly there are some changes left out of Bill 41 that are still needed to ensure that the workers compensation system is supporting all workers fairly and equally. But the government continues to move the workers compensation system in the right direction. Below is a summary of the main changes brought in by Bill 41.

Interest on Delayed Benefits

The good: Starting April 3, 2022, workers will be paid interest if their benefits are delayed because they are forced to fight in the review and appeal system. This is an important change. Some workers go years without income when their claim is wrongly denied. Many fall deep into debt. Paying interest when benefits that are wrongly delayed is necessary to ensure that workers are fully compensated for their injuries.

What is still uncertain: The review and appeal system is not the only reason that a worker’s benefits may be delayed. Sometimes benefits are delayed because the Workers’ Compensation Board (the “WCB”) is slow in gathering information and making a decision. The changes in Bill 41 do not say that a worker must be paid interest if benefits are delayed for reasons outside the review and appeal system. It might be possible for the WCB to create policy and pay interest in these other cases, but right now we don’t know if that will happen.

Duty to give injured workers their job back

The good: Bill 41 will require that employers give an injured worker their old job back when they are ready to return to work, or else offer the worker a similar job. The employer must also accommodate the worker’s needs – for example by making changes to the workplace or job requirements – unless those changes would cause the employer undue hardship. If the employer does not, the WCB can pay the worker up to a year of benefits.

What is still uncertain: The government has yet to set a date for when these changes will come into effect. And when these changes do come into effect, they may make it confusing for workers trying to figure out where to go if their employer does not accommodate their needs. This new duty to reemploy the worker only applies to employers who have 20 or more workers.  It also only applies if the worker has worked with the employer for at least 12 straight months. Workers who are unfamiliar with these restrictions may not know whether the WCB system can help them or whether they have to go to the BC Human Rights Tribunal. And smaller employers may wrongly think that these restrictions mean they do not need to accommodate injured workers even though general human rights law still applies.

Further, if the WCB starts making decisions about the duty to accommodate, the BC Human Rights Tribunal may not let the worker go forward with a related human rights complaint. The WCB’s decisions about the duty to accommodate will be very important, but its not clear how the WCB will make sure that decisions are made by people with the necessary training and experience with human rights.

The Duty To Cooperate

 The good: There is now a clear duty on employers to cooperate with injured workers and the WCB to help injured workers get back to work safely.

 What is still uncertain: Employers aren’t the only ones with a duty to cooperate. There will also be a duty on workers to cooperate with the employer and the WCB.  If a worker doesn’t cooperate, their benefits may be cut-off. There is no rule saying that the Board must tell the worker what they did wrong or give the worker an opportunity to correct it. WCB staff do their best, but communication between workers and the WCB isn’t always smooth. The WCB will need to make policy to ensure that workers get a fair opportunity to know what they did wrong and to correct the situation before benefits are cut-off.

Protecting workers who file a WCB claim

 The good: There will soon be much clearer rules saying that employers cannot try to prevent a worker from filing or pursuing a WCB claim. There can be penalties for employers who try to prevent workers from filing claims. This is important because many workers face threats and retaliation from employers trying to prevent genuine WCB claims.

 What is still uncertain: We hope this change also means that workers can ask for compensation directly from their employer through the WCB system if they face retaliation for filing a WCB claim.  But right now, we don’t know for sure if this will be possible.

Independent medical assessments at the Workers’ Compensation Appeal Tribunal (“WCAT”)

 The Good: Workers can now ask WCAT to arrange an independent medical assessment if their medical condition is in dispute. Having a doctor independent of the WCB review the worker’s condition is often critical to ensuring a full and fair decision.

What we still don’t know: Just because you ask does not mean you get one! WCAT must agree that the assessment would help resolve the appeal. We don’t know exactly how receptive WCAT will be to these requests. And unfortunately, these changes only help once the worker has already been forced into the appeal system. These changes won’t help fix medical disputes early in the process so that workers aren’t forced to appeal in the first place.

Fair practices commissioner

 The good: There will soon be a Fair Practices Commissioner to look at unfairness in the WCB system and make recommendations for change. This will hopefully provide some help for workers who are not treated fairly.

 What we still don’t know: The Fair Practices Commissioner will be appointed by and report to the WCB Board of Directors, so will not be truly independent. There will also be restrictions on the Commissioner’s ability to look at the Board’s policies, which can be a big source of unfairness.  This may restrict the Commissioner’s ability to push for systemic change.

Increasing workers’ benefits to better account for rising prices. 

 The good: Workers’ benefits will now increase over time to fully account for increasing prices (inflation). For years, benefits lagged behind inflation. Prices kept rising, but benefits didn’t keep up. This change will ensure that benefits increase to fully account for rising prices, which is especially important for workers with permanent disabilities who rely on the WCB system over the long-term.

 What we still don’t know: If prices go up really fast – more than 4% a year – the WCB does not necessarily have to increase benefits by that same amount. If prices keep rising quickly, workers could still be left behind.

Hearing loss

 The good: The WCB now has the power to set a higher level of compensation for hearing loss that progresses over time.

 What is still uncertain: It may take some time for the WCB to figure out the right level of compensation.  So we will have to wait and see if the WCB decides to make changes and, if so, what those changes will be.

What was left out of Bill 41?

The changes in Bill 41 do a lot of good for workers in the WCB system. But they won’t help workers who can’t get their conditions covered by the WCB system in the first place. Workers who experience psychological injury at work still face barriers and exclusions that do not apply to physical conditions. it’s time to end this discrimination against workers with mental disabilities by changing the law to ensure that they have equal access to WCB benefits.

Photo by Ümit Yıldırım on Unsplash