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You, Me, and Bill 23 (Workers’ Compensation Act 2020)

10th September 2020

Bill 23 – Workers’ Compensation Act 2020 has some changes that might capture some employers’ attention.

Workplace safety inevitably has a degree of risk to human health.  Whether it’s traditional workplace injuries and illness, COVID-19, or mental health illnesses, workplaces must navigate workplace injury and illness claims.

Pamela Stover is a Workers’ Compensation Specialist for employers, a licensed paralegal and owner of PD Stover Professional Corporation.   Pam took some time to write a guest blogpost for Carbon Safety touching on some of the notable changes in Bill 23- Workers’ Compensation Act 2020.

Speaking with Pam, she identified that while the impacts from the pandemic have been overwhelming for many businesses, there are COVID-19 considerations and changes to note that impact employers.  Specifically whether COVID-19 is a workplace injury, and also an important development in the Workers’ Compensation Act that Pamela believes employers need to consider.

Pam believes these important considerations and changes should not go unnoticed, and shared some observations and thoughts below.

Bill 23 and Viral Infections (Including COVID-19)

Bill 23- Workers’ Compensation Act 2020, includes, the immediate addition of infections caused by viral pathogens onto the Schedule 1- Occupational Disease.

This addition, poses great risk and uncertainty for employers. Especially with the medical and scientific evidence still in a development and exploratory stage in relation to COVID-19.

Claims would typically be adjudicated on a case by case scenario, however, as a Schedule 1, all claims could potentially be accepted, with objections being initiated by the employer to prove, otherwise.

In Short

The onus is on the employer to object and prove that a worker was not exposed to the SARS-CoV-2  virus at their workplace, or has not been infected with COVID-19 (or other viral pathogen).

Increase in Resource Requirements and Premiums

Objections are time consuming, and will require a deeper investigation.  It will require follow up, gathering medical evidence, further investigation, tracking of recovery, as well as potentially managing further claims.

All of these components and more, are essential in submitting a viable objection, and unfortunately, detract from normal daily business activity.

Currently, with the lack of a vaccine and the high rate of transmission of the viral pathogen, it is quite likely that a single case in the work place may result in multiple similar claims.

All costs associated with this claim, would be charged to the employer’s account, including: diagnostic testing, hospital visits, as well as, permanent conditions and permanent partial disability awards.

In Short

Workplace COVID-19 claims may contribute to increases in employers WSBC premiums, or in high risk industries entire industry premiums increasing, as well as the requirement for additional resources to manage such claims.

You, Me, and Mental Health

Additional amendments include distinguishing between mental disorders from personal injury for the purpose of the one-year time limit for filing a claim.

Health care or services can be provided prior to a claim being accepted, “when a worker is at risk of a significant deterioration in health.”

Those costs would remain on the employers account, only if the claim is accepted.

In Short

Mental health in Canada is an increasingly significant factor in society.  An estimated 30% of short and long term disability claims in Canada are attributed to mental health disorders.

With the influence of COVID-19 in the workplace, it’s reasonable to anticipate an increase in those claims, and additional time requirements for employers to assess and manage these claims.

Amendment to 75 Day Decision Time Limit

The Act, now gives the Board the authority to reconsider compensation or assessment decisions beyond the 75- day time limit on their own initiative, if the decision contains an obvious error or omission in the application of law and/or policy or in relation to a mistake of evidence.

Due to the lack of clarity of this amendment and the specifics around this reach back, it raises questions as to the stability of the system.

Empowering these changes to occur at the lower level of the Board, creates a potential argument of conflicting and arbitrary amendments being made to previously adjudicated claims.

In Short

As an employer, a Board settled claim, may now be reassessed and reviewed anytime after the existing 75 day time limit, how far beyond that limit is unclear.

This works both ways, in that it may allow additional time for an employer to revisit a claim that has new evidence, or may equally allow an employee to challenge a settle claim.

Changes To Insurable Earnings and Retirement Age

Further amendments that will take effect on January 1, 2020 include: the increase of the insurable earnings from $87,100 to $100,000 which will result in higher premiums being paid by employers.

The permanent partial disability benefits will be based on the higher of, a loss of earnings or loss of function calculation.  This will also result in higher costs in assessments. Retirement age will not be determined until the worker reaches the age of 63.

In Short

Employer costs for claims are likely to increase on a number of fronts.

Closing Thoughts

Pamela

Much like a root canal this is going to be painful and its happening, but hopefully we can get through these difficult times, together.

After all, understanding that each claim today sets a precedent that will impact future premiums, is key to effective claims management moving forward.

Scott

The changes that Pamela has identified, and discussed serve to reiterate some safety fundamentals:

  • Prevention is key, identify potential hazards, risk levels, and apply appropriate controls to eliminate or reduce risk prior to an incident
  • Efficient and effective incident investigation is key to help employers gain information, and context in relation to injuries, and illnesses and apply appropriate preventive and corrective actions
  • The effective identification and management of injuries, and claims is key to getting employees back to reasonable health, and meaningful work, while minimizing operational impacts in the workplace

About Pamela

Pamela has over 10 years of experience in workers’ compensation matters, with the last 6 years representing employers.  In 2017 Pamela moved to Vancouver Island and opened PD Stover Professional Corporation to utilize her skill set, expertise and legal background for employers on Vancouver Island.

Her company’s goal is saving employers’ time and money, through effective and professional management of their workers’ compensation claims and appeal representation.

You can reach Pamela at pam@pdstoverinc.ca


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