2018 Legislative & Regulatory Highlights
April: Public review of proposed changes to WCB Return to Work (POL-93) policy, including new rule requiring paying wages directly to workers participating in a return to work program and stipulating that workers who don’t receive full wages may be entitled to wage loss benefits to compensate for lost earning capacity.
June: Bill 102 takes effect establishing the presumption that post-traumatic stress disorder is work-related if the worker: i. Is exposed to a traumatic event(s) at work listed as a trigger for PTSD in the DSM-5 American Psychiatric Assoc. guidelines; and ii. Gets a proper DSM-5 PTSD diagnosis from a physician or psychologist.
June: WCB 2017 Annual Report shows a 0.19 jump in injury rates to 1.47 due to a 10%+ spike in injury totals and a 1,274 decline in the number of workers in the workforce.
July: WCB’s revises Funding Policy (POL-136) adjusting the funded position target range to 100%-125%, amending the target range for funding policy adjustments to 125%‐140% over a straight line of 15 years and allowing for a surplus distribution if the funding status is greater than 140%.
August: WCB finalizes changes to its coverage policy (POL-60, Recurrence) for recurring injuries.
September: WCB holds hearings on draft policy POL-153 proposing coverage of medical marijuana for treatment of work injuries and illnesses covered by workers’ comp if: i. It’s authorized by a WCB-recognized health care provider after an in-person assessment; and ii. There’s objective medical evidence that standard treatment options were tried and failed.
December: Royal Assent for Bill 40 providing workers’ comp coverage for volunteer firefighters and creating new presumption that heart injuries suffered by fire inspectors or firefighters within 24 hours of responding to an emergency is work-related.
Prince Edward Island 2019 Workers’ Comp Rates
|2019 Average Assessment (per $100 assessable payroll)||2019 Maximum Assessable Earnings||2018 Average Assessment (per $100 assessable payroll)||2018 Maximum Assessable Earnings||2019 Filing Deadline|
Case of the Year
The highlight of an otherwise slow year in litigation was a pair of workers’ comp appeals decided by the PEI Court of Appeal, the highest in the province:
- No Workers’ Comp Replacement Benefits for Retired Workers
Under Section 43 of the Workers’ Comp Act, injured workers receiving wage loss benefits when they reach age 65 are entitled to the “registered employer sponsored pension plan” benefits as a replacement. But the WCB denied replacement benefits to a pair of retired workers, Phillips and Meyer, because their company’s RRSPs didn’t qualify as “registered employer sponsored plans” under Sec. 43. The Tribunal upheld the Phillips denial but reversed the Meyers denial. Both sides appealed to the Court of Appeal, the highest court in PEI. Result: Two employer wins. The finding that Phillips’ RRSP Phillips was federally registered and a completely different animal from a registered employer sponsored plan was reasonable albeit sketchy. The Meyer ruling, on the other hand, was flawed and didn’t follow proper rules for interpreting a statute [Phillips v WCB (Prince Edward Island), 2018 PECA 22 (CanLII), Aug. 1, 2018].
- Company Loses Bid to Appeal Denial of Workers’ Comp for Contract Worker
Two days into his 2-week contract term, an asphalt plant worker fell off a ladder and got hurt. While the injury was clearly work-related, the WCB ruled that the victim was an independent contractor and not a “worker” under workers’ comp. After initially deciding not to appeal, the plant tried to reopen the case 3 years later based on new evidence but the WCB refused. The plant appealed the refusal but the Appeal Tribunal wouldn’t budge. Finally, 6 years after it began, the case landed in the PEI Court of Appeal. Ruling: Appeal dismissed. The various decisions to deny the appeal were reasonable, fair and consistent with the “new evidence” policy, the high court reasoned [M&M Resources v Prince Edward Island (Workers Compensation Board), 2018 PECA 9 (CanLII), May 23, 2018].
What to Expect in 2019—New OHS Harassment & RSI Rules in the Pipeline
It’s a pretty good bet that PEI will do in 2019 what New Brunswick did in 2018: Add new OHS Regulations requiring employers to take specific measures to prevent workplace harassment. Currently, this obligation is implied under the “general duty” clause of the OHS Act. Last May, hearings were held on a proposal that would define “harassment” broadly to include conduct harming physical and psychological health and safety, and require employers to develop and implement a written harassment prevention policy that includes:
- A statement that every worker is entitled to work free of harassment
- The employer’s stated commitment to ensure a harassment-free workplace and investigate harassment complaints
- Complaint and investigation procedures
- Assurances against reprisals for making complaints.
Meanwhile, the WCB completed public review on proposed new repetitive strain injuries coverage criteria in November and will very likely finalize the new rules (under WCB Policy POL-91) early in 2019.