Workplace injuries can be devastating. What should you do if you’ve been injured at work?
Most people hurt at work can’t sue in the courts. If you’re in an employment relationship, or you’re an independent business person who carries self-paid insurance premiums with your provincial workers compensation board (called “personal optional protection” or “POP” in BC), then you’re likely barred from bringing a suit against employers or other workers.
Why? In Canada, workers compensation legislation generally bars workers who are hurt at work from suing employers or other workers. In exchange for this, employers fund non-fault insurance for workers at workers compensation boards so that workers can get benefits for their injuries without litigation. Workers giving up their right to sue in exchange for no-fault insurance is sometimes referred to as “the historic compromise.”
In some cases, where a cause of action lies against someone other than an employer or a worker, the injured worker may be able to “elect” to sue other parties instead of receiving benefits from workers compensation boards. You can contact your workers compensation board to find out if this may apply to your situation.
In Canada, workers compensation boards are set up so that workers can easily apply to get compensation quickly and without much hassle. If your case is cut and dried, you may be able to get short-term benefits almost right away.
So, what do you do when you’re injured at work?
The first step should be to get medical attention and report the injury to your employer as soon as you can.
You should then contact your provincial workers compensation board as soon as possible and file a claim. You can call or file online. In BC, the compensation board carries on business as “WorkSafeBC.” The sooner you report your claim, the sooner you will get compensation if you’re entitled to it. You do not need a lawyer to report a claim!
It’s important to know that you can still get benefits if you are being paid cash for your job, or if your employer has not been paying its WorkSafeBC premiums. Your employer is not allowed to make you pay your own premiums if you’re an employee.
When communicating with the workers compensation board, it’s important to be honest. It’s against the law to mislead a workers compensation board or commit fraud to get benefits. If the employer has not contacted the board about your injury, they will learn about it from the Board. Since their premiums are often increased as a result of workplace injuries, they may even object to your claim if they disagree with the details of your claim.
If your claim is denied by your workers compensation board, you have opportunities to appeal. In BC, you can appeal to a division within WorkSafeBC called the “Review Division.” The Review Division reviews WorkSafeBC decisions about compensation, prevention, and assessment matters (i.e. matters relating to the rates that employers pay to WorkSafeBC).
You will have the opportunity to submit an argument to WorkSafeBC, referring to applicable law and policy, and submit evidence to support your case. The first step to appeal to the Review Division is to complete a “Request for Review” form. After that, you’ll get access to everything in your file and have the opportunity to make a full submission explaining why you think the WorkSafeBC decision should be changed.
The Review Division will take a look at your case with fresh eyes. They have no legal reason to defer to the WorkSafeBC decision that you want changed. The employer will get the opportunity to respond to your submission, and, if the employer does so, you will have the chance to reply to their submission.
If you’re appealing a workers compensation decision on your own, here’s a few tips:
1. Don’t miss the deadline for your appeal! At WorkSafeBC, requests for review of compensation decisions must be submitted within 90 days after the decision you’re appealing.
2. In your submission, be sure to clearly state upfront what you think is wrong with the decision you’re appealing and what you’d like changed.
3. In most compensation appeals, you’re trying to establish that you suffered an injury or a disease and that injury or disease was caused by your work. Try to make the decision-maker’s job easy, and clearly set out the facts that establish this. A point-form timeline, including dates and events, can be helpful.
4. In BC, the decision-maker at the Review Division will have access to whatever is in your file, so you can refer to the documents in your submission without actually attaching them.
5. Most decisions about compensation for workers will be in writing. In these decision letters by the Board, relevant policy might be referred to. In BC, you can find the WorkSafeBC policies online, including the Rehabilitation Services and Claims Manual Volume II which applies to new compensation claims, to get a better idea of the rules that the Board was looking to apply in your case. Unless you’re legally trained or very familiar with these policies, however, it’s best to focus on why your injury was caused by your employment; the Review Division decision-maker will be very familiar with the applicable law and policy.
6. In BC, if you have a question about the decision you’re appealing, you can call WorkSafeBC or the Review Division. Remember, though, that information you provide to those you speak to will likely go onto your file and be referred to by adjudicators in the future.
In BC, after this first step of appeal, you will have one more chance to appeal before your last resort in the courts. This last step before the courts is called The Workers Compensation Appeal Tribunal, or “WCAT.” Appealing to WCAT is much the same as appealing to the Review Division, only WCAT is entirely separate from WorkSafeBC. Like the Review Division did, WCAT will also look at your case with fresh eyes. For compensation matters, there is a time limit to apply to WCAT, too: you must file your notice of appeal within 30 days of the date of the Review Division Decision.
We recommend consulting a lawyer before making your submission to WCAT. If you get a poor result at WCAT, your only avenue of appeal above this Tribunal is through the courts in what’s called a “judicial review.” Winning a judicial review is much more difficult than winning at Review Division or WCAT, because the courts will generally defer to WCAT’s decision. Put simply, the courts generally won’t be looking to see whether the decision was right or wrong, but only whether the decision was made after an unfair decision-making process or whether the end decision was unreasonable.
DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice. To provide legal advice on your problem, a lawyer must first understand your specific situation.
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