Frequently Asked Questions Update

Frequently Asked Questions Update

Can I sue my employer for my workplace injury?

Usually the answer is no.  However, under section 10 of the Workers Compensation Act (Act), if a worker’s injury is caused by a defect in their working conditions or by the negligence of their employer, the worker may have the right to sue their employer. 

Most workers do not choose to sue their employer.  This is because workers must choose between suing their employer or making a workers’ compensation claim.  Under section 130 of the Act, if a worker decides to apply for workers’ compensation, WorkSafeBC has a subrogated right to the worker’s legal claim against the employer.  This means that there is a trade-off when a worker applies for workers’ compensation. The worker gives WorkSafeBC the right to sue the employer on their behalf.  

Can I sue my doctor for treatment under my WorkSafeBC claim?

Generally, no.  When an injured worker is undergoing treatment as part of their WorkSafeBC claim, they are still considered a worker for purposes of coverage under the Act.  In a Supreme Court of Canada (SCC) case, Kovach v. British Columbia (Workers’ Compensation Board), 2000 SCC 3, the SCC decided that the injured worker was “in the course of employment” and therefore could not bring a malpractice suit against the doctor treating his workplace injuries.  When a worker makes a workers’ compensation claim, they are trading-off their right to sue other employers and workers covered by the workers’ compensation system.  Doctors are considered workers under this system and are therefore protected from being sued by injured workers.  

Can I reopen my old WorkSafeBC claim?

Usually the answer is yes.  Once a WorkSafeBC claim is allowed, it is never closed.  You need to look at the prior decisions related to your claim to make sure there are no barriers that prevent you from reopening your claim.  This means you must check any decisions that were not appealed and any binding appeal decisions related to your claim. 

Under section 125 of the Workers Compensation Act, the Board may reopen a claim if there is a recurrence of injury or significant change in the worker’s medical condition.  According to the Rehabilitation Services & Claims Manual II, a significant change is defined as a “change in the worker’s physical or psychological condition.  It does not mean a change in the Board’s knowledge about the worker’s medical condition.”  This means that there must be something new or different about the worker’s physical or psychological condition than what was noted previously on the claim, such as new symptoms.

Can I get my WorkSafeBC pension paid out?

Yes, you can apply for a lump sum payment if your pension amounts to less than $200.00 per month.  Under Policy item #45.00 in the Rehabilitation Services & Claims Manual II, the Board may commute all or part of the periodic payments due to a worker in one or more lump sum payments. 

Applications for commutations fall into two categories: Category A and Category B. 

Category A applies where a worker has a permanent partial disability that has been assessed at not greater than 10% of total disability and the permanent disability periodic payment is not more than $200.00 per month.  Applications which meet the Category A criteria are always accepted.

Category B applies where the permanent disability periodic payment is more than $200.00 per month.  For these applications, the following criteria must be met in order to be approved:

  1. The commutation must be for a specific purpose;
  2. The commutation will generally only be allowed for purposes that enhance the income position of the worker;
  3. The applicant must have a stable source of income other than the permanent disability benefits;
  4. The commutation will not be allowed where the Board considers the applicant incapable of managing their affairs or where they have demonstrated an incapacity for money management;
  5. When a surviving spouse applies for a commutation, the Board considers the separate interests of any dependent children;
  6. Whether there will be a potential deterioration or improvement in the worker’s condition that might affect their ability to earn income from other sources; and 
  7. The Board will not permit a commutation on the grounds that the applicant has a short expectation of life or on a worker’s wish to benefit dependants following the worker’s death.

For further information or if you would like to schedule a free consultation, please call our office at (604) 591-8187 or visit our website at www.wcblawyers.com.