May 26, 2020
THE TITLE OF THIS COLUMN is in the form of a question. What’s the answer? Simply this: Without a representative to assist you with vocational rehabilitation, you stand a good chance of getting your butt kicked!
The first thing I tell the workers I represent who have been conveyed to WorkSafeBC’s Vocational Rehabilitation Services (VR) is that they can have a significant positive impact on their VR planning if they participate fully, research aggressively, express themselves to the VR consultant (VRC) unequivocally, and last but not least, follow my instructions.
Usually, VR planning is greatly facilitated by the injured worker’s partner. Over the years, I have witnessed how the worker’s partner poses the most important questions, keeps track of the most important information, and ensures their partner — the injured worker — arrives to the meetings on time. Perhaps this is due to the partner bringing the perspective of caring deeply for their loved one and wanting to ensure the best care for them. This, then, is the second thing I tell workers I represent: When you have a face-to-face meeting with your VRC, bring your partner. You’ll be glad you did. So will the VRC. And so, will I.
The third thing I tell workers who are entering into VR planning is that they should familiarize themselves with the five phases of the vocational rehabilitation process. All this information is available to workers on the WorkSafeBC website at worksafebc.com.
WorkSafeBC’s vocational process involves five sequential phases. This means that your vocational consultant commences the process at phase one and will only go on to phase two and beyond if the former phase or phases are unsuccessful. In the first phase, efforts are made to return the injured worker to their pre-injury employer in the same job with, if required, support in physical conditioning, work assessment or skill upgrading. If the worker is unable to perform their old job, the VRC will move on to the second phase and encourage the employer to make job modifications or provide an alternate in-service placement. Acting as the liaison between the injured worker’s union and WorkSafeBC, a workers’ advocate can help hammer out a durable position to the benefit of the worker and employer.
The problem, however, is that many of our injured workers cannot return to their pre-injury employers for several reasons. To begin with, many of our injured workers can no longer perform any kind of construction-related tasks due to the seriousness of their impairment. Secondly, most of our contractors are small operations with limited capacity to modify or provide alternate positions. Finally, WorkSafeBC lacks the legislative authority to compel employers to accommodate workers. The employer’s duty to accommodate is stipulated in the BC Human Rights Code and, as a result, must be adjudicated under that statute, not the Workers’ Compensation Act. (see Tradetalk, Summer 2019, Duty to Accommodate a Human Right, for further details). As a result, our injured workers oftentimes find themselves being conveyed to phase three.
When workers find themselves in this third phase of the VR process, things tend to get very complicated, thorny, and downright nasty in a nanosecond. A cascading number of highly obscure issues — both spoken and unspoken — will immediately arise and are placed firmly in the suffocating grip of the VR consultant. What new vocation is viable for the worker? How will the worker’s financial status be impacted? What can the worker do to minimize the monetary loss and maximize the vocational gain? If the accepted physical and/or mental limitations and restrictions on the worker’s claim fail to reflect the reality, what can they do about it? How does a potential loss of earnings disability award factor into vocational planning? And what can be done to maximize the chances of obtaining this special award? These are all critically important questions and injured workers need answers.
Now you know why it’s so damn important to seek assistance from your union when your claim is conveyed to WorkSafeBC’s Vocational Rehabilitation Services. An advocate who understands the system can provide answers you need, when you need them, thereby increasing your chances of maximizing the vocational as well as disability award benefits that you deserve.
By Merrill O’Donnell – BCBT Workers’ Advocate