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Is there anything I can do to obtain disability benefits after my claim was denied at the workers' comp B.C. WorkSafe appellate tribunal?

See also Disability - Prevalence, SSI Benefits.

Hey, Leo,

I was pretty much required to join the union as a condition of employment, and I did, paying monthly dues in return - or so I thought - for various benefits, including short- and long-term disability (LTD). At both B.C. Labor Board reviews, I provided the requisite medical reports linking my condition to the workplace. I even had a report from a world-renowned expert who teaches at the local medical school. Somehow this was not enough.

Moreover, former colleagues inform me that after years on LTD, suddenly they are being asked again to defend their claims! What's up with all that and how would I go about fighting my own claim if such a thing is possible?

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Biblitz replies:

As you can see from the right-hand column, the workers' compensation (now B.C. WorkSafe) scheme has been under pressure for some time now and restrictions on claims continue to increase, so you're right, it is indeed getting even more difficult to access benefits.

It's unlikely in most cases that claimants rejected by the system will have recourse either through the courts or the human rights tribunals. Here's how that works:

V. Jurisdiction Over Long-term Disability Eligibility: The Courts or the Collective Agreement

In recent years, a number of claimants dissatisfied with long term disability decisions made under Plans constituted pursuant to the terms of a collective agreement, have commenced court actions against their employers, their unions and against insurance companies acting as administrators of the Plans in question. In two recent decisions, the B.C. Supreme Court has directed such claimants back to the remedies available under the collective agreement, holding that the court did not have jurisdiction to adjudicate the claim. This suggests that if the collective agreement language indicates the parties to it intend disability claims to be decided in the context of the employer/employee relationship, the courts will enforce this intention.

A. Paller v. Great-West Life Assurance Co. et al. and Chan v. Great-West Life Assurance Co. et al., 2003 BCSC 0582 ...

After reviewing the relevant documents, Neilson J. concluded that the dispute between the plaintiffs and HBT arose expressly or inferentially from the collective agreement, and that the intent of the parties was to resolve such disputes by the process provided for under the collective agreement and the Labour Relations Code. As a result, Neilson J. concluded that the Court did not have juurisdiction to adjudicate the plaintiffs' claims.

B. Ali v. The Manufacturers Life Insurance Company et al., 2004 BCSC 717, 2004 BCSC 781 ...

In the first hearing, Humphries J. agreed with the comments of Neilson J. in Paller; to the effect that if the collective agreement specifically provides for certain benefits and the specific plan or policy is incorporated by reference into the collective agreement, the courts typically do not have jurisdiction to adjudicate disputes arising under the plan or policy. ...

At the subsequent hearing, plaintiff's counsel advised the court that the plaintiff wished to pursue the action as against the insurer and its employees regardless of whether the CRC decision was enforceable. Having concluded that the action was for benefits outside the scope of the collective agreement and that the parties intended long term disability disputes to be dealt with under the collective agreement, Humphries J. dismissed the plaintiff's claim on the basis that the court had no jurisdiction to adjudicate it. (From Cross Canada Case Law Update by William Westeringh and Allison Taylor of Fasken Martineau DuMoulin LLP for Disability Insurance Claims - 2004, Continuing Legal Education, November, 2004, pgs. 5.1.8-5.10)

On the prospect of success at the B.C. Human Rights Tribunal:

... One big problem is that DFR (duty of fair representation owed by union to employee) proceedings are essentially an elaborate sideshow. They consist largely of a battle between employee and union, although the real dispute in most cases is between the employee and the employer. As well as draining resources from the union, DFR proceedings often drag out the employer's involvement as well. For good reason, employers commonly feel obliged to participate in the DFR hearing, and if the DFR complaint succeeds, part of the remedy may be an arbitration against the employer, anyway. It has always seemed to me to make more sense to ensure that the individual has access to a forum that cannot be foreclosed to him or her by the union. The human rights forum does meet that need to some extent, though very often not as efficiently as one might like. The second problem with relying on the DFR as a fallback in human rights cases, and in other cases as well, lies in the fact that it was never designed to get much traction on the merits of the underlying dispute...

In theory, and most of the time in practice too, labour relations boards do not look closely at the merits of the particular grievance and at whether the union was right or wrong in dropping it. In process terms, the union only has to avoid "gross negligence", and it has to pay serious attention to the grievor's story and investigate it carefully. If it does that, and if it doesn't show any subjective ill-will toward the grievor, the union is unlikely, as I read the jurisprudence, to be found in breach of the DFR. The K.H. case discussed above may indicate a more intensive duty in disability cases, but that may not be a desirable development. Unions are, above all, collective bargaining representatives. They are not boutique law firms, and they should not have to put endless resources into litigating human rights issues. (From footnotes in CHAPTER VII: FORUM MULTIPLICITY OPTIONS - SPECIAL CONSIDERATION, Human Rights Review, Background paper for the Administrative Justice Project, p. 7 of 32)
In many cases, Biblitz wonders whether employees today wouldn't be better off firing the union in favor of the above-mentioned boutique firm of lawyers, who would have a clearer, bigger, better duty to represent the client and who must comply with a set of practice standards considerably more rigorous than merely avoiding gross negligence!

An apty-titled guide to the disability claims process Biblitz recommends:

Illness and Disability in the Workplace

How to Navigate Through the Legal Minefield

By D'Andrea, Corry, Forester
Updated to March 12/08

... the Supreme Court of Canada held (in St. Anne Nackawic Pulp and Paper v. CPU, [1986] 1 S.C.R. 704) that labour relations legislation provides for an arbitration process for the final resolution of disputes, and penal provisions for the breach of statutory duties. Under the circumstances, a civil action for damages would be inappropriate for the effective enforcement of the collective agreement. In the result, this legislated process has ousted the jurisdiction of the courts in regard to virtually all disputes between an employee and an employer who are subject to a collective agreement. (From Short- and Long-Term Disability Insurance, p. 3.2)

The court does retain a very limited jurisdiction in matters which may arise out of the union employee and employer relationship. Such actions would largely arise from negligent or tortious actions of the employer, or injunctive relief arising from an illegal work stoppage (Weber v. Ontario Hydro) (-- p. 3.3)

In arbitration cases dealing with unionized employees claiming to be disabled, it is worth noting that the arbitrator does retain the jurisdiction to determine whether the condition suffered by the employee constitutes a disability at all. One arbitration board has stated that the relevant factors in such a determination include:

(a) the duration of the condition,
(b) the prevalence of the condition in the general population; and
(c) the extent to which the condition interferes with the ability of the individual to fully participate in society. (Mississauga (City) Transit Department and ATU, Local 1572 (Tanner) (Re) (2005), 141 L.A.C. (4th) 84, 82 C.L.A.S. 14 (Ont. Arb. Bd. - Springate) (-- p. 3.4)

In summary, entitlement to disability insurance benefits flows from a specific wording of the policy. In determining entitlement, the courts apply broad, liberal principles of interpretation. Often the insured is given the benefit of any doubt. Typically, after 24 months of coverage, the definition of total disability leads to an examination as to whether the insured is capable of performing any gainful occupation for which he or she is reasonably qualified by education, training or experience. The test applied is a subjective one, which examines the impact of the disability on the individual before the court. Looking at all of the circumstances, the object is to determine whether the person is incapable of gainful employment by reason of disability. Given the subjective nature of the test, the identical disability may well qualify one person for benefits, but not another. (-- p. 5-20)

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Eighty-three-year-old Mrs. Christina Doherty of Namurkah, Victoria, has taken care of her 62-year-old son, Les, all his life. He was born physicaly handicapped. Approximately 100,000 Australians are handicapped in ways which require special care. (From A Day in the Life of Australia, March 6/81, edited by Rick Smolan, p. 204)

Tell Biblitz your story!
How has the system treated you so far in your application for disability benefits? Gotta' question? Gotta' comment? We'd love to hear from you! Blast me, blast you, and give us the skinny. As David Bowie helpfully reminds us -

'You're not alone!'

Both public and private systems are stressed in B.C.:

National Institute of Disability Management and Research

Recommendations to the Royal Commission Into the BC Workers' Compensation System

January, 1998
Vancouver, B.C.

STILL MORE restrictions imposed on B.C. workers' compensation claims between 2002 and 2008.

Background: The Demand for Change

Workers' compensation systems

Workers compensation systems across Canada are at a crossroads. Most of the existing workers' compensation systems are under review or have been substantially restructured in response to a broad-based dissatisfaction with services and benefits.

Criticism from employers has revolved around the high cost of funding the system, the rapid increase in rehabilitation expenses, and the lack of measurable outcomes for rehabilitation/return-to-work efforts.

Workers and union representatives are alarmed that a growing emphasis on controlling costs has resulted in a decline in benefits and entitlements, and an increasingly combative atmosphere as claims are delayed, diverted or denied. (-- p. 9)

... Private and public short-term and long-term disability insurance providers face many of the same criticisms as workers' compensation systems. In many cases, workers are not adequately supported in efforts to return to work and suffer frustrating and often debilitating delays in receiving benefits or rehabilitation assistance. Employers are increasingly demanding accountability for rising costs and lengthy claims handling. New medical conditions, changing workplace conditions and demands, and the continual pressure to contain or minimize costs contributes to increased tensions between claimants, employers and insurance providers. ...

Unions report that growing numbers of workers are falling through the cracks of the insurance system because they are suffering from poorly understood injuries, diseases or other conditions. Employers and insurance providers, in their narrow focus on containing costs, are forgetting that workers agreed to give up the ability to sue employers in return for protection from work-related injuries and disease. Unions, advocacy groups and persons with disabilities are concerned that many insurance and benefits providers are simply stonewalling new claims, cutting income replacement or pension income levels; forcing workers with disabilities into jobs that are unsuitable or unsafe. (-- pgs. 10-12)

On the adequacy of benefits:

See also 2003/2004 Report 6: Audit of the Government's Review of Eligibility for Disability Assistance by then B.C. Auditor General Wayne Strelioff, February, 2004, challenging the provincial government's misguided review of mythical benefit 'excesses,' and the aptly-titled Who Benefits? How disability benefits are failing British Columbians, by the BC Coalition of People with Disabilities, September, 2007.
Current policies and adjudicative procedures make it administratively feasible for British Columbia's compensation system to handle the 180,000 to 200,000 claims it receives a year. However, the efficiency of these policies and procedures, which are designed to ensure that workers are not stranded without income, is gained at the expense of more precisely individualized adjudication. The result is a situation where, even if the average indemnity benefit paid to the injured worker is adequate relative to the average loss, some workers will receive less than this and some will receive more. In such circumstances, the system is generally perceived to be functioning appropriately in that it is accomplishing what is referred to in legal terms as "average justice." ...

The commission acknowledges the prospect that, as long as determining compensation for workplace injuries and illness remains outside the jurisdiction of the courts, the administrative adjudication of claims will inevitably result in some workers getting more and others less than the amount which might be considered ideal. There should, however, be average or collective justice. The concept of collective justice is entirely defensible in a system of administrative adjudication as long as individual deviation from the collective is within acceptable limits. (From For the common good: Royal Commission on the Workers' Compensation System of British Columbia, Jan. 20/99, Vol. II, Chapter 1, The Adequacy of Benefits, pgs. 5-6 of 90)