In my practice I frequently receive inquiries from workers in their forties to sixties who are seeking assistance with old injuries. Often those injuries involve broken bones, injured joints, herniated discs, or head injuries suffered early in their working careers. Young people tend to be able to recover function more often and more quickly than older workers. Quite often though their recovery is not complete and nagging pain or loss of function continues for these workers to some degree for the rest of their lives.
WorksafeBC processes over 100,000 claims every year. If a young worker seems to recover quickly from a traumatic injury he or she is encouraged and assisted to return to work as soon as possible. As a result, underlying permanent injuries can be overlooked. WorksafeBC could close the file without adjudicating (deciding) whether a permanent injury has occurred. Stoic workers are the most frequent victims of early file closing.
The problem in these cases is most often that twenty or so years later the part of the body injured, or made more vulnerable to injury, flares up with or without another accident. The worker returning to the Board for assistance is sometimes turned away because the current accident is not seen as being serious enough to explain the degeneration observed on investigation.
Workers in such cases can request that the Board adjudicate whether the original injury caused a disability (if it didn’t do so at the time of the original injury). If the Board refuses such adjudication or adjudicates and finds no disability its decision can be appealed (by the review and reconsideration process and/or by appeal to the Workers’ Compensation Appeal Tribunal). If a disability is accepted or allowed on appeal the worker may be entitled to retroactive compensation and an ongoing pension and in some cases rehabilitation benefits.
Even if the Board does not accept responsibility retroactively for the disability, the flare-up could be accepted as compensable as an aggravation. In other words, the fact that the current incident does not explain the observed pathology, the greater degree of disability may still be compensable as an aggravation of a pre-existing condition.
The other issue we frequently see with young workers is the Board setting earnings a level that is not reflective of the young worker’s long-term income earning capacity. The earnings level set on the claim is very important as it guides entitlement to the amount of wage loss benefits, pensions, and degree of vocational rehabilitation assistance available to the worker. Young workers should carefully scrutinize earnings decisions and challenge decisions that do not fairly reflect their long-term goals and potential earnings.
As I have written about before, Board decisions must be appealed within 90 days. This is a rather strict deadline and exceptions are rarely made.
