B.C. WCB policy found to be 'patently unreasonable'

B.C. Supreme Court says board should have recognized the difference between a recurrence and a deterioration of an injury under the Workers Compensation Act
|employmentlawtoday.com

The British Columbia Supreme Court has ruled there is a difference between a recurrence of an injury and a deterioration of an injury under the

Workers Compensation Act.

The case involved William Cowburn, a 75 year-old retired millworker, who had been suffering from lung problems as a result of exposure to asbestos throughout his career at Eurocan Pulp Mill in Kitimat, B.C.

Cowburn had been receiving a disability pension because of his debilitating condition. Cowburn’s condition had worsened over time but he was denied additional compensation by the Workers’ Compensation Board (WCB). It determined, through its own interpretation of the

Workers Compensation Act

, that no additional compensation was required. Cowburn challenged the board’s view, arguing its interpretation was “patently unreasonable.”

The B.C. Supreme Court agreed with Cowburn. It said the WCB had been unreasonable in itsinterpretation of the legislation and Cowburn was entitled to additional compensation.

Recurrence versus deterioration

The main issue the court had to consider was how the WCB interpreted the concepts of “recurrence” and “deterioration.” Prior to 2002, the

Workers Compensation Ac

t provided that a person’s disability pension would be increased if the disability deteriorated. A 2002 amendment set a limit of age 65 after which no disability pension would be provided. However, a grandfather clause was included for workers already receiving pensions. Cowburn had been receiving his pension since 1998.

The amended act states that any recurrence of an injury after the amendment in 2002 would not be given additional compensation over and above the disability pension already being provided. Prior to the legislative amendment, the WCB’s official policy had differentiated between recurrence and deterioration of an injury. However, once the amendment came into force, the board changed its policy so recurrence and deterioration were both included as permanent changes in a worker’s disability which were not entitled to additional compensation.

Cowburn’s claim for additional compensation was dismissed by the WCB under this policy. Because the board had dismissed an appeal of a similar case and reaffirmed its interpretation of the act, Cowburn’s lawyer decided it would be pointless to appeal to the board and brought the matter to the B.C. Supreme Court. Cowburn brought the argument before the court that the board “so seriously misinterpreted the act that its interpretation … is patently unreasonable and cannot be supported by the act.”

Board's decision 'patently unreasonable'

The B.C. Supreme Court, in looking at several factors, found the WCB’s interpretation to be patently unreasonable. The court could not find anything in the legislation which supported the board’s interpretation and Justice Frank Maczko said the board's decision had more to due with administration than the intended nature of the legislation.

The court examined dictionary definitions and common-sense meanings of the word “recurrence” and found that in no way did it ever include the concept of deterioration. The court also looked at the act, which itself draws a distinction between recurrence and deterioration. In addition, the court noted that at the time of the 2002 amendments, the province clearly indicated that no worker with an existing injury would lose any of the benefits entitled to him under the old legislation.

The court referred to a precedent case in which the difference between “unreasonable” and “patently unreasonable” was defined, the latter being a defect which is readily apparent and obvious. In this circumstance, the court found that the WCB policy was patently unreasonable and should be changed.

The B.C. Supreme Court ruled in favour of Cowburn’s appeal, ruling the WCB’s official policy denying him an increase in his disability pension was patently unreasonable. Cowburn was entitled to the increase because his condition was a deterioration, not a recurrence, of his injury, which was allowed under the 2002 amendments to the act. The Board’s policy, which did not differentiate between the two, was a serious misinterpretation of the

Workers Compensation Act

, the court said.

For more information see:

Cowburn v. Workers' Compensation Board of British Columbia

, 2006 CarswellBC 1098, 2006 BCSC 722 (B.C. S.C.)

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