Appeals in Worker's Compensation Claims (7:XII)

For most issues, the first level of appeal is to the Review Division of the WCB. Certain issues may undergo a second level of appeal to the Workers’ Compensation Appeal Tribunal (WCAT).

Section 96(4) does allow the Board to “reconsider” any past decision, on its own initiative, but s. 96(5) prohibits it from doing so if a decision is more than 75 days old unless there has been fraud or misrepresentation (such as when a videotape may show that the worker is less disabled than claimed). The Board interprets this to mean that the reconsideration must be completed, not just initiated, by the 75th day, and staff have been advised that they cannot correct even an error of law after that time, or change a decision to give effect to persuasive new medical evidence not available when the original decision was made.

A. Internal Review - Workers’ Compensation Review Division

A worker, a deceased worker's dependent, or an employer may request a review of any of the following decisions of the Board:

• a decision respecting a compensation or rehabilitation matter (e.g. denial of benefits, or quantum of benefits);
• a decision levying payment by the employer for failure to comply with the statute; or
• a decision respecting an occupational health or safety matter.

The Review Division may also reconsider its own decisions in some cases. It can only undertake such a reconsideration during the first 23 days after the decision is made, and only if no appeal has yet been filed to the WCAT. The Internal Review Division’s powers are slightly greater than the Board’s – it can change a decision on the basis of new evidence that didn’t exist or couldn’t have been presented previously with “due diligence” on the part of the applicant. Even that authority, however, ends on the 24th day. This means that for decisions that cannot be appealed to the WCAT, like vocational rehabilitation issues and many pension amounts, there will be no way for anyone in the system to change an incorrect decision based on new evidence, even if it could not possibly have been presented earlier and shows conclusively that the decision was wrong.

B. Appeal to Workers’ Compensation Appeal Tribunal (WCAT)

A worker, a deceased worker’s dependent, or an employer may appeal most decisions of the Review Division to WCAT. The following classes of decisions may not be appealed to WCAT (s. 239 and Workers Compensation Act Appeal Regulations, BC Reg 321/2002):

• decisions respecting vocational rehabilitation (s. 16);
• amount of a functional pension if the possible range is 5% or less, and commuting a pension into a lump sum payment (ss. 23 and 35);
• decisions applying procedural time limits specified by the Board under s. 96(8) of the Act;
• decisions refusing to allow an extension of time to file a request for review (s. 96.2 (4));
• decisions relating to the conduct and procedural policies implemented by the Review Division for the internal review (ss. 96.4(2) to (5) and 96.4(7));
• orders by the chief review officer as to whether or not to suspend the operation of a decision pending completion of the review (s. 96.2(5));
• decisions about whether or not to refer a decision back to the Board following completion of the Review Division hearing (s. 96.4(8)(b)); or
• decisions respecting the conduct of a review in respect of any matter that cannot be appealed to WCAT under s. 239(2)(b) - (e) of the Act.

As an administrative Tribunal, WCAT is subject to the expectations of procedural fairness common to all such bodies (i.e. appellant’s right to be heard, right to a decision from an unbiased decision maker, right to a decision from the person who hears the case, and a right to reasons for the decision). As an independent body, WCAT is not bound by any WCB findings and has exclusive jurisdiction to make any findings of fact it deems relevant to the appeal (WCA s. 254 as interpreted in Preast v. Workers’ Compensation Appeal Tribunal, 2015 BCCA 377). Additionally, WCAT is not bound by its own previous decisions unless departing from them is clearly irrational (Macrae v. Workers’ Compensation Appeal Tribunal, 2016 BCSC 133).

WCAT’s Manual of Rules of Practice and Procedure (MRPP) is accessible online as are appeal forms, guidelines and information about filing appeals.

C. Access to Files

Under the Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165 (FIPPA), all workers have the right to receive a copy of their file. Employers have the right to obtain a copy of the Board’s file if an appeal is pending or if a decision is made. The Act, however, limits an employer’s ability to use this information in non-employment related issues. An employer, for example, may not use the information contained in the worker's file for disciplinary purposes.

A worker's WCB claim file that is disclosed for purposes of an appeal or a Freedom of Information request should contain all of the information pertaining to the Board’s decision, as well as copies of any decisions regarding the claim.

Prior to May 2009, a file was divided into various sections such as: Claims, Medical, Accounts, and Memo. Usually the papers were filed in chronological order. Files are organized differently under the CMS data management system. Now, the preferred method of disclosure is by way of an encrypted .pdf file on a CD. The first disclosure will be a complete copy of the file, not just an update.

Overall, the adoption of electronic (E-file) rather than paper files has reduced administrative delays due to files being in use by other departments at the WCB or WCAT, but it has also decreased the detailed information explaining how decisions were reached, as handwritten notes and other documents are sometimes omitted. A request for disclosure under the FIPPA usually results in a more thorough search for such records, and is advisable in cases where all information is needed. At times, the Board may not disclose all of the relevant evidence in its possession. One reason is that certain departments at the Board, such as the Vocational Rehabilitation Department, keep unofficial sub-files or documents in draft form, which may not be fully incorporated into the worker’s electronic “claim file”. Some of the missing information may be helpful for appeals, such as the actual observations of the Board’s staff during a functional evaluation, rather than just a final report.

D. Appeal Procedure – Workers’ Compensation Review Division

A complete account of the review process goes beyond the scope of this chapter. A good starting point in preparing a review of the Board’s decision is to go to http://www.worksafebc.com and look for the “Review and Appeal” section, under the “Claims” menu. There is a Policy and Procedures Manual that describes the process in detail, as well as provides the necessary forms and applications. Limitations as to what kinds of decisions can be appealed, and what persons can appeal them, are clearly stated within this section.

To request a review, the worker must complete and submit a two page Request for Review form (available online). This form may be submitted by mail or by fax. See Appendix D: Checklist for Review Division Appeals.

E. Appeal Procedure – Workers’ Compensation Appeal Tribunal

Similarly, the best starting point to prepare an appeal to the WCAT is to go to the WCAT website. The “How to Appeal” section provides information regarding the appeal process, enables access to various appeal forms, and provides internet links to WCAT publications as well as other resources that can assist in the appeal process. The WCAT site also contains a detailed manual. Parties applying for reconsideration must write to the Tribunal Counsel Office. WCAT will not accept applications for reconsideration by telephone. Note that WCAT can reimburse workers for the cost of acquiring medical reports that are reasonably useful to the hearing.

F. Reconsideration of WCAT Decisions

WCAT decisions are “final and conclusive”, but are subject to reconsideration based on statutory and common law grounds. If you are successful, the original decision will generally be found void, in whole or in part, and a WCAT panel will hear the appeal once again.

Section 256(3) of the WCA allows for a party to a completed appeal to apply for reconsideration of a decision based on evidence which:

• is substantial and material to the decision, and
• did not exist at the time of the appeal hearing or did exist at that time but was not discovered and could not through the exercise of reasonable diligence have been discovered.

If you apply for reconsideration based on new evidence, you must explain:

• why the new evidence is substantial (has weight and supports a different conclusion);
• how it is material (is relevant to the decision);
• whether or not the evidence previously existed; and
• if it did exist previously, why you did not discover (and submit) it at the time of the original hearing.

A claimant can only apply once for reconsideration on new evidence. They will not be able to re-apply multiple times for any new evidence that might become available in the future.

The first stage of reconsideration results in a formal written decision, issued by a WCAT panel, determining whether there are grounds for reconsideration. If the panel concludes that there are no grounds for reconsideration, WCAT will take no further action on the matter. If a panel decides that there are grounds for reconsideration, the original decision will then be found void (in whole or in part) and the application will proceed to the second stage at which a WCAT panel will hear the appeal once again. The WCAT will decide whether the second stage will be conducted by oral hearing or written submission.

WCAT has the authority to reconsider both WCAT and the former Appeal Division decisions. WCAT does not, however, have the authority to reconsider decisions by the former Review Board or the current Review Division. Objections to those decisions will be treated as appeals, or applications for extensions of time to appeal. It is important not to apply for reconsideration until you are ready to proceed as a party may apply for reconsideration of the original WCAT decision on each ground on one occasion only. Additionally, WCAT cannot reconsider its own decisions for reasonableness (Fraser Health, supra).

It is important not to apply for reconsideration until you are ready to proceed as a party may apply for reconsideration of the original WCAT decision on each ground on one occasion only.

In view of the finality of these provisions, especially where a decision has not been appealed, any worker who is not completely satisfied with a decision should request a review by the Review Division and if allowed, an appeal to the WCAT. This will preserve a residual right to present new evidence in the future, even if the appeal is unsuccessful.

WCAT decisions are accessible on the website under “research”. If you want to view previous WCAT decisions made on applications for reconsideration, you can select “reconsideration grounds,” under “type of decision”.

G. Judicial Review (JR)

A party may apply for judicial review of a WCAT decision by the British Columbia Supreme Court within 60 days of the date on which a decision is issued. Under certain circumstances the court may extend the time for applying. Due to clear language in the ATA, JR of WCAT decisions are held to the standard of patent unreasonableness on most questions (constitutional issues and questions of so-called true jurisdiction are exceptions). This is the highest level of judicial deference and limits the courts ability to interfere unless the decision was “openly, evidently, clearly wrong” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Fraser Health, supra). Possible judicial review cases should be referred to lawyers as it is very difficult to file and conduct a judicial review without a lawyer’s assistance. See Chapter 5: Public Complaints Procedures for more information about judicial review.

Note that if judicial review and reconsideration are both possible, it is advisable for the worker to file their paperwork for judicial review within the 60-day time limit and then apply for reconsideration. This ensures that they will still be able to pursue judicial review if their reconsideration is denied.

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