Appeals in Worker's Compensation Claims (7:XII)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 21, 2022.|
If the worker (or the employer) disagrees with a Board decision, they may appeal the decision to the Review Division (“RD”) within 90 days of the Board’s decision. The RD is a review body internal to the Board; links to RD material, including RD appeal forms, are available on the Board website (www.worksafebc.com/en/review-appeal). The RD must issue a decision within 180 days of the appeal being filed. The RD decision may then be appealed to an independent tribunal, the Workers’ Compensation Appeal Tribunal (“WCAT”) within 30 days of the RD decision. WCAT appeal forms are available on the WCAT website: www.wcat.bc.ca.
Section 123(1) of the Act [Former Act, s. 96(4)] does allow the Board to “reconsider” any past decision, on its own initiative, but s. 123(2) of the Act [Former Act, 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 videotape may show that the worker is less disabled than claimed) or if there is a clear error or omission. The Board interprets this to mean that the reconsideration must be completed, not just initiated, by the 75th day.
Please note that once a request for a review has been filed, the CM is no longer allowed to proceed with a reconsideration.
A. Internal Review: Workers’ Compensation Review Division
A worker, a deceased worker's dependant, 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;
- a decision respecting an occupational health or safety matter; or
- a decision respecting an application to reopen a matter because of a recurrence of injury or significant change in a compensable medical condition.
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. Once a reconsideration is directed by the Chief Review Officer, the Review Division 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.
Once the period for directing a reconsideration has passed, the matter must be appealed to WCAT. 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. The matter must be taken to judicial review.
1. 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 www.worksafebc.com and look for the “Manage a Claim” section, under the “Claims” menu. Follow the link under the heading “If you disagree with a claim decision”. 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.
B. Appeal to Workers’ Compensation Appeal Tribunal (WCAT)
A worker, a deceased worker’s dependant, or an employer may appeal most decisions of the Review Division to WCAT. The following classes of decisions may not be appealed to WCAT (Act, s. 288 [Former Act, s. 239] and Workers Compensation Act Appeal Regulations, BC Reg 321/2002):
- a response to a workers complaint respecting prohibited action or failure to pay wages (Act, s. 50 [Former Act, s. 153])
- decisions respecting vocational rehabilitation (Act, s. 155 [Former Act, s. 16]);
- amount of a functional pension if the possible range is 5% or less, and commuting a pension into a lump sum payment (Act, ss. 195, 230 and 231 [Former Act, ss. 23 and 35]);
- decisions applying procedural time limits specified by the Board under s. 338 of the Act [Former Act, s. 96(8)];
- decisions refusing to allow an extension of time to file a request for review (Act, s. 270(2) [Former Act, s. 96.2(4)]);
- decisions relating to the conduct and procedural policies implemented by the Review Division for the internal review (Act, ss. 272(2) to (5) and (8) [Former Act, s. 96.4(2) to (5) and (7)]);
- orders by the chief review officer as to whether or not to suspend the operation of a decision pending completion of the review (Act, s. 270(3) [Former Act, s. 96.2(5)]);
- decisions about whether or not to refer a decision back to the Board following completion of the Review Division hearing (Act, s. 272(9)(b) [Former Act, 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. 288(2)(b)-(e) of the Act [Former Act, s. 239(2)(b) - (e)].
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 (pre-revision WCA s 254 as interpreted in Preast v. Workers’ Compensation Appeal Tribunal, 2015 BCCA 377); this likely applies to its revised equivalent, the current s 308). 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.
1. Appeal Procedure: Workers’ Compensation Appeal Tribunal
The best starting point to prepare an appeal to the WCAT is to go to the website: http://wcat.bc.ca. The “Resources” section provides access to various appeal forms, as well as an info sheet with further information on the appeals 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. After WCAT makes a decision to allow an appeal, WCB implements it into its decision. Note that WCAT can reimburse workers for the cost of acquiring medical reports that are reasonably useful to the hearing.
2. Clarifications, Corrections, or Missed Issues
WCAT may correct accidental errors or omissions (such as typographical or numerical) if the appellate requests corrections. The appellate should request clerical corrections as soon as possible and WCAT aims to have it amended within 90 days. WCAT may clarify their decision if it is not clear. The appellate must request clarification in writing within 90 days of the date the decision was served, and the panel will decide if clarification is necessary. If WCAT did not decide on an issue in the appeal, the appellate must request this in writing to the Tribunal Counsel Office. If the panel that made the decision agrees that they did not decide on an issue in the appeal, then they will complete the decision by writing an addendum to the decision.
3. Reconsideration of WCAT Decisions
WCAT may reconsider a final decision for very limited reasons after its reconsideration powers were considered by both the BCCA and the SCC in the Fraser Health Authority case, supra.
Under the WCA, a WCAT panel may change the outcome of a WCAT decision if there is new evidence. In addition, WCAT may still reconsider a WCAT decision under common law grounds if there is procedural unfairness or a true jurisdictional error. On these grounds, WCAT may rehear all or part of the appeal and come to a different conclusion. However, WCAT cannot change the outcome of a WCAT decision because it is incorrect, unreasonable, or patently unreasonable. In this respect, the WCAT decision is final, reviewable only by a court on judicial review, with a time limit to apply for judicial review of 60 days, under the Administrative Tribunals Act). Note that a “true jurisdictional error” is an argument that should be used with caution, as the SCC has ceased recognizing jurisdictional questions as a separate category of questions separate from any other type of question on judicial review. See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, paras 65 - 68] On these grounds, WCAT may rehear all or part of the appeal and come to a different conclusion.
Information regarding reconsideration of WCAT decisions is available on the Post-Decision Information Guide on the WCAT website. There is no time limit on applying for reconsideration. To apply for reconsideration, a worker may fill out the Application for Reconsideration form and send it to the Tribunal Counsel Office. A worker can also apply for reconsideration by writing a letter to the Tribunal Counsel Office explaining how they meet the grounds for reconsideration.
WCAT makes a jurisdictional error if it:
- Decided on something it had no power to decide (Example: if WCAT tried to make a binding decision on a residential tenancy issue when it only has authority to make decisions on workers compensation issues).
- Failed to decide on something it was supposed to decide (Example: a worker properly appealed a decision and WCAT refused or failed to make a decision).
- Was procedurally unfair (Example: WCAT was unfair in its decision making process, such as refusing to allow a worker to make submissions for an appeal).
Section 310(3) of the WCA [Former Act, s. 256(3)] allows for a party to a completed appeal to apply for reconsideration of a decision based on new 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 each ground, so it is important that they are ready. This can be done at the same time or separate times for each ground. If applying for reconsideration of evidence, include the new evidence in the application. 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. Additionally, WCAT cannot reconsider its own decisions for unreasonableness, patent unreasonableness, or error (Fraser Health, supra).
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 “prepare your case” which is listed under “appeal a decision”. To view previous WCAT decisions made on applications for reconsideration, you can select “Search past appeal decisions” under “review decisions for appeals that are similar”.
C. Judicial Review (JR)
A party may apply for judicial review at the same time that they apply for a reconsideration of a decision from WCAT. A party must 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 Administrative Tribunal Act, Judicial Review 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 court's 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.
According to Denton v British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 40, where an appeal raises constitutional issues, those issues must be raised prior to the JR stage at the British Columbia Supreme Court. Both the Review Division and WCAT have the authority to hear constitutional issues.
D. 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 occasionally advisable in cases where all information is needed. At times, the Board may not disclose all of the relevant evidence in its possession. 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.
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