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Policy decision finalized at the December 2009 WorkSafeBC Board of Directors meeting

The following Resolutions were finalized by WorkSafeBC's Board of Directors in December 2009. For information about the function and mandate of the Board of Directors, please see Governing Structure.

Notification of Decisions

At the December 9, 2009 meeting, the Board of Directors approved amendments to policy item #99.20, Notification of Decisions, in the Rehabilitation Services & Claims Manual, Volume II.

The changes to the Notification of Decisions policy include:

  • defining “decision”;
  • providing that a decision is made for the purposes of triggering the statutory timelines on reconsideration and review when it is communicated to an affected person; 
  • providing that key decisions will be communicated in writing;
  • defining “finding of fact”; and
  • clarifying that notification of rights of review and appeal will be provided on rejected claims. As a consequence, policy item #99.21, Notification of Rights of Review and Appeal, was deleted.

The changes to the policy apply to decisions made on or after April 1, 2010. For further information on this issue, please contact Deepani Weerapura at
604 276-5165.

You may also examine the complete resolution (PDF 196kb).

Reopenings Over Three Years

At the December 9, 2009 meeting, the Board of Directors approved amendments to policy item #70.20, Re-openings Over Three Years, in the Rehabilitation Services & Claims Manual, Volume II.

The changes to the Reopenings Over Three Years policy include:

  • setting out the process for determining earnings used to calculate compensation payable;
  • providing that a worker’s earnings at the time of reopening are generally used to calculate a new compensation amount where:
    • the current earnings are higher than the original earnings; or
    • the current earnings are lower due to factors unrelated to the compensable disability 

In these cases, WorkSafeBC considers that current earnings more nearly represent the worker’s actual loss;

  • providing that a worker’s original earnings at the time of reopening may be used where a worker is experiencing a potential loss of earnings due to the compensable disability; and
  • setting out that the date that a worker first experiences a loss of earnings, or potential loss of earnings, is used to determine whether more than three years have passed since the original injury.

The changes to the policy apply to decisions made on or after June 1, 2010. For further information on this issue, please contact Susan Hynes at 604 276-5160.

You may also examine the complete resolution (PDF 142kb).

Retirement of Reporter Decision No. 99

At the December 9, 2009 meeting, the Board of Directors approved the retirement of Workers’ Compensation Reporter Decision No. 99 Re Degeneration of the Spine from policy.

The retirement of this Decision eliminates multiple sources of policy, reducing confusion and complexity in the workers' compensation system. With this most recent retirement, 422 of the 423 Decisions have been retired from policy status, and only one remains to be considered.

The retirement of Decision No. 99 is effective January 1, 2010. For further information on this issue, please contact Cameron Angus at 604 232-1849.

You may also examine the complete resolution (PDF 144kb).

Administrative Penalties – Amount of Penalty Policy

At their December 9, 2009 meeting, the Board of Directors approved amendments to Policy D12-196-6 Administrative Penalties – Amount of Penalty.

A vice-chair of the Workers’ Compensation Appeal Tribunal (“WCAT”) recommended that “the policy concerning repeat penalties be reviewed to ensure that the wording of the policy reflects the intent of the policy-makers.”

A repeat penalty is calculated at a higher level than a regular penalty and is imposed when a prior penalty has been imposed for the same or similar violation within the preceding three-year period.  A higher repeat penalty provides additional motivation for an employer who was not motivated to comply by the regular penalty amount. 

Policy D12-196-6 of the Prevention Manual sets out when a repeat penalty is imposed and how it is calculated. The vice-chair at WCAT said this policy allows for some arbitrariness as it allows a repeat penalty to be imposed in circumstances where the employer would not have had an opportunity to modify its behaviour prior to receiving the increased penalty.

Based on the facts of the case, the vice-chair at WCAT upheld the repeat penalty that had been imposed. The comments made by the vice-chair have not resulted in a referral under section 251 of the Workers Compensation Act.  However, with a slight change in the facts, a similar case could result in a formal referral.  It was determined that it was prudent to amend the policy at this time to address the concerns raised by the vice-chair.

The existing repeat penalty policy is based on a three-year time frame. The triggering event for starting that time frame is the date the first penalty is imposed. Most of the arbitrary results that can occur under the policy flow from the differing amount of time it can take to impose an administrative penalty due to factors such as complexity, the involvement of other agencies, administrative delay, and time provided to an employer to respond to a proposed penalty. This can mean that a penalty is not imposed until many months after the violation. This can give rise to results that appear arbitrary, such as:

  • If two violations occur days or weeks apart, but the penalty for the second violation is imposed first, the penalty for the first violation will then become a repeat penalty;
  • If two violations occur on the same day, but the penalties are not imposed on the same day, the later penalty will be a repeat penalty;
  • If two violations occur within three years of one another, but the penalty for the second violation is imposed more than three years after the penalty is imposed for the first violation, it will not be a repeat penalty;
  • If two violations occur more than three years apart, but the penalty for the second violation is imposed less than three years after the penalty is imposed for the first violation, it will be a repeat penalty.

It was determined that these arbitrary results will be significantly reduced and the policy will better achieve its objective if repeat penalties are based on the dates of the violations giving rise to the penalties, rather than on the dates the penalties are imposed. Thus, the policy has been amended to provide that a repeat penalty will be imposed for similar violations that occurred within three years of one another and resulted in a prior penalty, provided the employer was provided at least 14 days notice that a penalty had been imposed or was being considered for the earlier violation.

A second issue in the same policy, not raised by the WCAT case but identified by staff, is a typographical error in the table used to calculate Category A Penalties. This could result in some unfairness between employers in calculating the amount of a penalty. The policy has been amended to correct this error and eliminate this potential unfairness. The starting point for calculating a penalty with a payroll above $5 million dollars has been changed to $68,750 from $68,250.

These amendments become effective on January 2, 2010.

You may also examine the complete resolution (PDF 56kb).