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:
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.