B.C. updating workers’ comp law to stamp out claim suppression, require re-employment
Health & Safety Legislation accommodation british columbia Claim Suppression Legislation Workers Compensation Act WorkSafeBC
British Columbia is amending its Workers Compensation Act in a move it says is designed to “better support workers.”
Among the changes is a move to ensure employer accommodate and re-employ injured workers when they are ready to return, it said. It will also require WorkSafeBC to pay interest on benefit payments that are delayed due to a review.
It is also adding explicit provisions to the legislation to stamp out “claim suppression” by employers who try and dissuade workers from filing for compensation or punish them for doing so.
The province said the changes will restore fairness for workers injured on the job and their families and bring British Columbia in line with other provinces in providing benefits for injured workers.
“People injured on the job need to know that there is a workers’ compensation system that meets their needs,” said Harry Bains, Minister of Labour. “With these changes, we’re making sure that workers are properly supported when they need it most.”
In April 2019, the Ministry of Labour launched a review of the workers’ compensation system, led by Janet Patterson. Her report, released in August 2020, provided recommendations for system-wide and structural changes to achieve a more effective system for workers.
“Injured workers need somewhere to turn if the Workers’ Compensation Board doesn’t treat them fairly,” said Owen Goodwin, an injured worker. “Making sure there’s a fair practices commissioner for workers, a re-employment obligation and protecting our compensation from being eroded by inflation are good steps in the right direction with an important focus on injured workers.”
As well, in August 2020, government made important amendments to the Workers Compensation Act that better support injured workers and their families and enhance WorkSafeBC’s ability to investigate workplace incidents that result in a worker fatality or serious injury.
Since 2018, WorkSafeBC has also taken an active role to better support workers and treat them with fairness and respect.
Once the legislation passes, WorkSafeBC and the Workers’ Compensation Appeal Tribunal will develop the necessary policy and program updates to fully implement the changes.
As laid out in the Workers Compensation Act, B.C.’s workers’ compensation system is funded by employer premiums and investment returns and is administered by WorkSafeBC.
Each year, there are more than 100,000 new claims due to workplace injury or fatality.
Workers Compensation Act amendments
The following amendments to the WCA have been introduced through Bill 41, according to the province:
Fair practices commissioner (FPC)
The province is establishing authority for a FPC with a reporting structure that will “enhance independence from the rest of WorkSafeBC.”
The FPC will be appointed directly by WorkSafeBC’s board of directors to investigate complaints by workers and employers of alleged unfairness in dealings with WorkSafeBC, including systemic issues. The commissioner will be able to make recommendations for resolving these complaints and will issue an annual report to the board of directors.
The commissioner will not review the merits of individual WorkSafeBC decisions, for which there is an existing review and appeal process.
Establishing a more independent FPC with specific authorities laid out in the legislation will help ensure complaints are addressed in a fair, impartial and respectful manner, it said.
Legal duty for employers to return injured workers to work
The changes will establish a clear employer duty to re-employ injured workers and to accommodate returning workers short of undue hardship.
The amendment also requires employers and workers to co-operate with each other and with WorkSafeBC to support the return of the worker to their pre-injury employment or, where this is not possible, to other suitable work.
“Better return-to-work outcomes for workers support more productive workplaces and can, ultimately, lower workers’ compensation costs for employers,” the province said.
Independent health professionals (IHP)
The change expand access to IHPs by allowing them to be requested as part of an appeal to the external Workers’ Compensation Appeal Tribunal (WCAT), after the avenues to address medical disputes at WorkSafeBC and its internal review division have been pursued, it said.
“Currently, workers and employers do not have the explicit right to request an IHP at WCAT if there is a medical dispute on a worker’s appeal,” the province said.
Interest on delayed benefit payments
The change will require interest to be paid on compensation benefits that are determined by a WorkSafeBC review officer or WCAT to be owing to a person for 180 or more days. Currently, interest on delayed compensation must be paid only in very narrow circumstances. Interest payable must be calculated in accordance with policies set by WorkSafeBC.
Interest provides a measure of compensation to workers and their families for the opportunity costs of benefits that should have been paid when the worker first became eligible, the province said.
“A worker and their family may have greater need for income to pay off debt or other costs while awaiting payment of compensation,” it said. “The proposed change will require interest to be paid in more situations than is currently the case, while imposing a reasonable minimum time frame of 180 days.”
Claim suppression occurs where an employer acts to discourage a worker from filing a workers’ compensation claim, or to punish them for doing so through dismissal, discipline or other retaliatory action.
“The amendment will add explicit provisions against employers dissuading workers from filing a claim for compensation, with enforcement through penalties under the occupational health and safety provisions of the Workers Compensation Act,” it said. “This provision will help to ensure that work-related injuries are funded out of the workers’ compensation system as intended, rather than result in workers seeking treatment from the public health system at a cost to taxpayers.”
Indexing benefits to full CPI
It will restore indexing of workers’ compensation benefits to the full rate of annual percentage changes in the Canadian Consumer Price Index (CPI). WorkSafeBC will have the discretion to approve annual indexation above four per cent, if the percentage change in the CPI exceeds that amount.
Since 2002, cost-of-living increases for benefits have been indexed to the rate of annual changes in the CPI, minus one percentage point, to a maximum of four per cent. Limiting cost-of-living increases is unfair to workers and erodes the value and purchasing power of benefits over time, it said.
Increasing the maximum compensation for non-traumatic hearing loss
Compensation for non-traumatic hearing loss is currently capped at 15 per cent of a total disability when there is no loss of earnings, and there is no cap for traumatic hearing loss.
The proposed improvement would amend the Act to enable WorkSafeBC to set a higher cap consistent with the evolving science.
Most employers, including public-sector employers, fund the workers’ compensation system through payroll assessments levied by WorkSafeBC.
Employer assessment rates vary by industry and industry sectors, and depend on the health and safety risks and accident rates within the industry or sector.
WorkSafeBC also considers what its investment returns are and how much it will cost to uphold its prevention, compensation and service-delivery mandates.
Premium rates for individual employers vary depending on an employer’s safety record. As costs change, so do rates. Each year, some rates go up, some go down, and some stay the same.
The average premium rate has been stable at $1.55 per $100 payroll for the past five years, below the current average cost rate of $1.76. WorkSafeBC’s accident fund subsidizes the difference between the premium rate and the average cost rate.
The average premium rate will remain unchanged in 2023. Future increases from the legislative amendments will depend on many factors, including those described above, as well as WorkSafeBC Board decisions on subsidization rates from the accident fund.