Compliance, Legislation, Regulation

Workers’ Compensation (WC) in Canada is no-fault. Since employees receive benefits instead of a determination of fault and negligence, employers pay insurance coverage premiums. Provincial WC Boards determine and administer benefits for claims within their jurisdiction.

Each province has specific WC laws and policies, but the criteria for accepting claims are mostly similar. In all provinces, employment must be the significant contributing factor, or predominant cause, of injury or illness in order to support a claim.

Levels in the appeal structure     

An employer or employee can submit concerns at multiple points in most provinces.

Initial Objection: When submitting the Employer’s Report immediately after the report of an injury or illness, an employer may outline any concerns about the claim (i.e., legitimacy, non-occupational factors, third-party involvement, etc.).

Secondary Objection (Request for Reconsideration): Each province allows the original decision-maker to reconsider any decision, before other senior representatives of the WC Board review an official appeal. The likelihood of a reversal at this stage without alternative evidence is low, but worth considering.

Appeal: When decisions are rendered and upheld, a two-tier system in each province pursues adverse decisions through a formal appeal. Upon appeal submission, the claim transfers to the Appeals Branch for further review and assessment. Typically, a legal representative is beneficial (or at least recommended) at this point.

In 2020, the Workplace Safety and Insurance Appeals Tribunal in Ontario released some interesting statistics from the final level of an appeal[1]:

    • The median time to first-offered hearing was 7.8 months.
    • It takes 15.4 months total to complete an appeal.
    • WSIAT takes about 120 days to release 90% of its decisions.

Evaluating when an issue is worthy of an appeal 

Claims that require appellate intervention are usually costly or limited in recovering of financial loss, so they require the most appropriate and effective resources. Typical concerns are:

  • This decision seems unfair. What evidence was presented that I did not know about?
  • I disagree with this decision, what do I do next?

The first step is to request file disclosure, which allows a complete review of the evidence. After thoroughly reviewing all available evidence, consider:

  • Was the decision well-articulated with the facts as known? Is it consistent with WC legislation and policy?
  • Does jurisprudence support my position or not?
  • What are the financial consequences of the claim being allowed or denied?
  • Is the issue precedent-setting for the company?
  • Is an independent medical opinion required?
  • What are the evidentiary deadlines?
  • Do I need a representative?
  • Will I need witness selection, preparation, and questioning?
  • Will I need to prepare closing arguments (written or oral)?

Workers’ Compensation can be contentious and adversarial, and the appeals process can take years, so make sure you understand the risks and rewards. The full review process can be costly, time consuming, and personally draining–not to mention significant negative effects on the employee/employer experience. There is no cookie-cutter approach, but weighing these considerations can help to clarify whether to appeal or not to appeal a Workers’ Compensation decision.

 

Looking for more information about workers’ compensation? Click here to learn more.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

[1] WSIAT 2020 Annual Report