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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: i) *a decision respecting a compensation or rehabilitation matter (e.g. denial of benefits, or quantum of benefits); ii) *a decision levying payment by the employer for failure to comply with the statute; or iii) *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) ==
*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.
Under the ''Freedom of Information and Protection of Privacy Act''Most Internal Review Decisions must be made within 5 months , RSBC 1996, c 165 (150 daysFIPPA), all workers have the right to receive a copy of their file.''' The Act now requires that Employers have the internal review officers complete their review right to obtain a copy of the Board’s file if an appeal is pending or if a decision within '''150 days''' of 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 date when information contained in the request worker's file for review was madedisciplinary purposes.
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.
== ED. 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.
== F. Appeal Procedure – Workers’ Compensation Appeal Tribunal ==
== G. Reconsideration of WCAT Decisions and Judicial Review ==