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99/07/12-02
THE WORKERS' COMPENSATION BOARD OF BRITISH COLUMBIA
RESOLUTION OF THE PANEL OF ADMINISTRATORS
Re: Compensation Benefits and Incarceration
WHEREAS:
Pursuant to Section 82 of the Workers Compensation Act, RSBC 1996, Chapter 492 and amendments thereto, the Panel of Administrators ("Panel") must approve and superintend the policies and direction of the Workers' Compensation Board ("Board"), including policies respecting compensation, assessment, rehabilitation and occupational safety and health, and must review and approve the operating policies of the Board;
AND WHEREAS:
Section 98(3) of the Act provides authority to cancel, withhold, suspend, or redirect the payment of compensation where it is found that a worker is confined to jail;
AND WHEREAS:
Policy item #49.20 deals with the application of Section 98(3);
AND WHEREAS:
The Appeal Division found policy item #49.20 to be inconsistent with the terms of the Act and referred the matter to the former Governors to determine what policy review would be appropriate;
AND WHEREAS:
On the advice of the Policy Development Consultation Committee, the Policy Bureau consulted with employer and worker representatives on the issue;
AND WHEREAS:
Having considered interpretive options with respect to the application of Section 98(3), the Panel has decided to amend policy item #49.20 to provide new guidelines with respect to the exercise of discretion to cancel, withhold, suspend, or redirect the payment of compensation.
THE PANEL OF ADMINISTRATORS RESOLVES THAT:
1. The Rehabilitation Services and Claims Manual is amended as shown in the attached Appendix.
The amendments are effective on the date this resolution is approved. Workers incarcerated as of that date who have had their benefits cancelled will be reassessed under this policy. The policy will have effect prospectively with respect to future ongoing entitlement. There will be no retroactive effect.
DATED at Richmond, British Columbia, July 12, 1999
| By the Workers' Compensation Board |
|
| DON COTT, CHAIR, PANEL OF ADMINISTRATORS |
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Appendix
REHABILITATION SERVICES & CLAIMS MANUAL
AMENDMENTS
[Deletions Struck Through, Additions in Bold Italics]
#49.20 Imprisonment of Worker
This policy deals with the application of Section 98(3). In considering the payment of compensation under this policy, regard must be given the individual circumstances of the case.
Section 98(3) of the Act provides: that "
Where it is found that a worker is confined to jail or prison, the board may cancel, withhold or suspend the payment of compensation for the period it considers advisable." Where compensation is withheld or suspended, the Board may pay the compensation or any portion of it to the worker’s wife, husband or children, or to a trustee appointed by the Board, who shall must expend it for the benefit of the worker, the worker’s wife, husband or children.
Section 98(3) applies where was intended to deal with those situations where it is determined that a worker who is receiving benefits is subsequently incarcerated and is not incarcerated is then in any place used to confine persons in the course of the administration of the criminal justice system sentenced to a prison term. The That section does not was not intended to apply to situations where a worker is injured while an inmate of a correctional institution incarcerated.
In applying Section 98(3), the following definitions apply:
Cancel: to terminate compensation payments for the period considered advisable - the payments otherwise payable during the period of cancellation are permanently lost to the worker - the payments cannot be redirected.
Suspend: to temporarily terminate compensation payments - the payments are not accumulated by the Board for the worker but may be redirected during the temporary stop in accordance with Section 98(3).
Withhold: to temporarily hold back compensation payments - the payments may be accumulated by the Board and paid to the worker upon release from prison, or may be redirected during the temporary hold back in accordance with Section 98(3).
Vocational rehabilitation benefits will be cancelled during the period of incarceration while the worker is unable to participate in the rehabilitation program.
Health care benefits will generally continue to be paid during incarceration.
Wage loss benefits (Sections 29 and 30) will be suspended during the period of incarceration as there is considered to be no loss of earnings during incarceration. These benefits may be paid, in whole or in part, to the worker’s wife, husband or children, or to a trustee appointed by the Board to expend for the benefit of the worker, the worker’s wife, husband, or children. If not redirected, these benefits are permanently lost during the period of incarceration.
Functional impairment pension benefits (Sections 22 and 23(1)) will either continue to be paid or be withheld during the period of incarceration. If withheld, these benefits may be paid, in whole or in part, to the worker’s wife, husband or children, or to a trustee appointed by the Board to expend for the benefit of the worker, the worker’s wife, husband, or children. Benefits neither paid to the worker nor redirected will be paid to the worker on release.
Loss of earnings pension benefits (Section 23(3)) will be suspended during the period of incarceration. These benefits may be paid, in whole or in part, to the worker’s wife, husband or children, or to a trustee appointed by the Board to expend for the benefit of the worker, the worker’s wife, husband or children. If not redirected, these benefits are permanently lost during the period of incarceration; however, the worker will be entitled, during the period of confinement, to the Section 23(1) award the worker would have been granted had there been no Section 23(3) consideration.
Confinement under Section 98(3) only includes those circumstances where the worker is prevented from seeking or obtaining employment for regular wages under an employee/employer relationship. Thus, ongoing entitlement to benefits will be determined once the worker is released on day parole and is no longer considered to be "confined" to jail or prison.
In practice, the Board cancels the compensation of an imprisoned worker suffering from a temporary disability and a permanent disability. Cancelled temporary or permanent disability payments are permanently lost to the worker.
Where, prior to the expiration of the prison term, the worker is released on full parole, temporary or permanent disability payments will be resumed. Such payments will not be resumed when the worker is released on a temporary absence, day parole, or other program which does not amount to full parole.
When an incarcerated worker whose benefits have been cancelled, suspended or withheld reaches a point in his or her sentence where the worker would have becomes eligible to participate in a work release program, but is unable to do so because of the effects of a work caused disability accepted under the claim, compensation benefits willmay be reinstated from that point. These benefits are sent in care of the Minimum Security Institution where the worker is located.
Where compensation payments to the worker are cancelled the Board may pay the compensation or any portion of it to the worker’s wife, husband or children, or to a trustee appointed by the Board, who shall expend it for the benefit of the worker, the worker’s wife, husband or children. (7) This The power to redirect payments to dependants is exercised if the worker was supporting the worker’s wife, husband or children prior to the imprisonment. All, or a portion of the compensation, is paid to them or a trustee, the amount depending on the number of dependants and their needs. If the worker was not supporting them, the power is not exercised unless there is a court order against the worker, in which case the amount provided for in the order will be paid. The power to pay the compensation to a trustee for the benefit of the worker depends on the reasonable needs of the worker while incarcerated. Any part of the compensation which is not redirected under this provision remains cancelled.
If the Board is not advised of the incarceration and benefit payments are made, if there are no dependants to whom the payments should be redirected, such payments incorrectly made for the period of the incarceration will be deducted from any future benefit entitlement.