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11. BC Workers Compensation Law - for Lawyers
by Rebecca K. Buchanan - Race & Company

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For Lawyers

In the province of British Columbia, administrative and tort law intertwine as certain crucial points. The Workers Compensation Act provides that the Workers Compensation Board ("WorkSafeBC") has sole jurisdiction over the administration of compensation for workers injured in the course of employment. The Workers Compensation Appeals Tribunal (the "WCAT") has sole jurisdiction to determine whether a personal injury is work-related. Because of the Act's strongly worded privative clause and the expertise and breadth of WorkSafeBC's administrative regime, the BC Supreme Court will only interfere with a WCAT decision if it is unreasonable.

It is therefore vital to assess all personal injury claims to identify potentially work-related circumstances. These are times, however, when it is unclear whether a personal injury is work-related. The law and policy governing work-related car accidents, for example, is convoluted and fact-specific. There are as many exceptions to the general proposition that commutes are not work-related as there are to the general proposition that business trips are. For this reason, counsel should always engage an expert to review and advise on the claim. Assuming a claim is not work-related when it occurs during a morning drive to work can result in serious costs consequences should a section 257 determination result in a finding the accident is, in fact, work-related.

Timing of the section 257 determination is also critical in managing a potentially work-related personal injury claim. Initiating the determination too soon or too late can have significant cost consequences for the parties. Therefore, whether plaintiff or defence counsel, there are tactical advantages to managing the determination to best leverage the client's position. Once initiated, written submissions are due quickly and they are the counsel's only opportunity to advance their client's position before the tribunal.

Section 257 submissions are made in written form. A hearing is a rarity and usually occurs only when credibility is an issue. The proper style and content of section 257 submissions vary, but the best submissions possess three key qualities: They accurately present only the relevant facts, they correctly identify the applicable policy and they persuasively argue the only reasonable conclusion. A well-crafted and persuasive submission greatly assists the tribunal, but its preparation can be daunting for counsel unfamiliar with the applicable law, policy and procedures. For example, the policy governing the form and acceptability of evidence given to the WCAT differs from the law governing evidence in court. Understanding this difference can prevent unnecessary expenditure where a matter could be found to be work-related and, consequently, where all disbursements advanced on a tort claim are lost.

Determinations on work-related personal injuries are governed by a complex set of administrative laws, policies and procedures. They are difficult even for the most seasoned lawyer to quickly master. For all these reasons, counsel should retain someone with experience working inside the WorkSafeBC system and with a proven success rate at the WCAT to assist in the claim. Such experts can opine on the potential work-related circumstances of a claim, provide tactical advice on the timing of the section 257 determination and cost-effective evidence gathering and even draft section 257 submissions and reply. The costs associated with retaining such an expert vary with the expert and the complexity of the matter, but all are appropriate disbursements where the claim is potentially work-related.

1. WorkSafeBC statistics are available for public review online: www.worksafebc.com/claims/review_and_appeals/review_division/statistics/default.asp

Rebecca K. Buchanan

Before being called to the British Columbia bar in 2009, Rebecca was a WorkSafeBC intern Review Officer for two terms. She rendered over 100 decisions, which may be viewed online. She went on to work a further year in the WorkSafeBC prevention department, preparing administrative penalties against employers whose failure to abide by safety standards endangered the lives of British Columbia's workers. She understands not only with the complex set of laws, policies and procedures governing workers compensation in British Columbia, but also WorkSafeBC and the WCAT's inner workings. She is an effective trial lawyer, a skilled advocate for her clients and has won key section 257 determinations on behalf of plaintiffs and defendants in various personal injury tort claims.

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