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Workers’ Compensation in BC: An interview with Alan Winter

Harris & Company LLP partner Alan Winter has been named the 2021 Best Lawyers® Workers’ Compensation “Lawyer of the Year” in Vancouver. This year marks the fourth time Alan has been recognized with the distinction, which is the result of an exhaustive peer-review evaluation. We sat down with Alan to learn more about his specialized practice and the future of Workers’ Compensation in British Columbia.


 

Congratulations on your recent achievement Alan! Can you tell us how you got started in Workers’ Compensation matters?

I first began to represent employers in Workers’ Compensation matters in 1981, when I was a first year Associate at a large regional law firm in Vancouver. One of the litigation partners enjoyed going to court for Workers’ Compensation matters – but disliked the administrative bureaucracy of dealing with the Workers’ Compensation Board itself. So he passed on the administrative side of the practice to me, and here I am four decades later still representing employers in these matters.

Is there a particular Workers’ Compensation case that stands out for you?

I had dealt with many significant Workers’ Compensation cases for employers over the years, but what I consider to be the turning point of my career involved eight firefighter cancer claims in the late 80’s which were heard together by the Review Board (the first level of appeal at that time). I was retained by the Greater Vancouver Regional District (now Metro Vancouver) to represent the five municipalities involved in the claims.

These cases required significant evidence to be presented in toxicology and epidemiology. My GVRD client contact and I travelled to universities in Montreal, Toronto and Boston to interview and retain experts in these fields. (As a side note, my client introduced me to the fine art of sipping scotch each evening as we evaluated the experts we had met on each day.) I remember being on vacation with my family in Hawaii reading texts on toxicology and epidemiology – it gave me a lasting appreciation of what litigators have to go through to prepare for a case. In the end, we were successful in all eight claims at the Review Board level (although one or two were subsequently allowed on further appeal by the claimants.)

Looking back on a lengthy career, was there a period that was especially challenging?

The most gruelling experience I’ve ever had in my 40 years of practice was when I was representing the employer community as its legal counsel at the Royal Commission on Workers’ Compensation in British Columbia. The Commission’s hearings lasted for two full weeks in 1998. Each day was devoted to a different substantive topic within the BC Workers’ Compensation system. I was provided a maximum of one hour during each of these half-day sessions to advance the employer community’s position by questioning witnesses or presenting argument with respect to the particular topic under consideration.

 


“I remember one occasion when I nodded off during the Royal Commission hearings, and John Steeves (now the Honourable Mr. Justice Steeves), who was representing the BC Federation of Labour, poked me and whispered, “It’s your turn to speak Alan.”

 

I had very little sleep throughout this period, as I spent most of the nights preparing for the next day’s presentations. I remember one occasion when I nodded off during the Royal Commission hearings, and John Steeves (now the Honourable Mr. Justice Steeves), who was representing the BC Federation of Labour, poked me and whispered, “It’s your turn to speak Alan.” However, I was able to persevere through the hearing process and I believe my experience before the Royal Commission cemented my reputation as a leading counsel for employers in Workers’ Compensation matters.

What was your most rewarding experience?

I was approached in 2001 by the Liberal provincial government to conduct a core review into the BC Workers’ Compensation system. I was essentially seconded to work for the provincial government from an office at the Employment Standards Branch for half a year. My final report consisted of 324 pages and contained 246 recommendations for changes to the BC Workers’ Compensation system. In 2002, the provincial government enacted revisions to the Workers Compensation Act, incorporating approximately 90/95% of the recommendations set out in my report.

Interestingly, I had initially refused to accept the appointment to conduct the review. At that time I was perceived as a leading counsel for employers in Workers’ Compensation matters. I felt that if I accepted the appointment as Core Reviewer, I would likely be making several recommendations which the employer community would strongly oppose. However, after numerous discussions with representatives from the provincial government, the WCB, my colleagues, and the employer community, I was ultimately convinced to accept the appointment. With hindsight, I would have to describe the contribution I made to revising the BC Workers’ Compensation system in 2002 the most rewarding experience I’ve had in my many years of practice.

What can employers expect in the B.C. Workers’ Compensation system in the years ahead?

The current provincial government has been focused on having changes made to the BC Workers’ Compensation system which are “worker-centric” – i.e. an approach which focuses on the worker’s individual circumstances in applying policy and making decisions about benefit entitlement and rehabilitation measures. To this effect, the provincial government has recently tabled Bill 23, which incorporates some improvements to the benefit entitlements for workers under the Act. For its part, the labour community is seeking substantial revisions to the Act to eventually return to, and improve upon, the pre-2002 levels of benefit entitlement provided to workers.

Going forward, the provincial government may well consider enacting more changes to the Act to further improve benefit entitlements for workers – particularly after the government releases the Patterson Final Report (which arose from the government appointed review of the Act completed by Janet Patterson, which the employer community anticipates will be in line with the labour community’s agenda for substantial changes to the Act).

 


“I would certainly recommend that employers remain actively involved in the BC Workers’ Compensation system, and be vigilant in seeking to keep their claim costs under control.”

 

So what does all this mean for employers going forward? In my view, the continuing implementation of the “worker-centric” focus will result, in the long term, in significantly higher costs for the employer community in funding the system – with the worst case scenario being a return to the pre-2002 circumstances when many believed the system was heading down a road that was financially unsustainable. To this end, I would certainly recommend that employers remain actively involved in the BC Workers’ Compensation system, and be vigilant in seeking to keep their Workers’ Compensation claims costs under control.

And for yourself? As you begin to transition to the next stage of your career, what is on your mind?

Since joining Harris & Company in January 2009, there has been shared leadership in representing the employer community between Andy Wood (particularly in Occupational Health and Safety matters) and myself. Over the past few years, as Harris has grown, so has our team. In particular, my partner, Brad Cocke, has been working with me on all Workers’ Compensation files over the last few years, and has demonstrated an excellent skill set and knowledge of the practice area. I have no doubt that Brad will be a worthy successor to Andy and me in taking on the mantle of leadership within Harris in representing the employer community in these matters for many years to come.

 

To learn more about Harris’ Workers’ Compensation practice, please visit our practice page here.

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