Difference between revisions of "Governing Legislation, Policy and Guidelines(7:II)"

Section 339 (previously 99) of the WCA requires the Board to apply any applicable Board policy which has been passed by the Board of Directors. This means that published Board policy is binding on all Board decision-makers, including the Review Division; a similar provision, s 303 (previously 250), makes Board policy binding on WCAT.

Section 339 (2) and (3) of the WCA also states that all decisions “make its decision based on the merits and justice of the case, but in doing this the Board must apply the policies of the board of directors that are applicable in that case” and “if the Board is making a decision respecting the compensation or rehabilitation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the Board must resolve that issue in a manner that favours the worker”.  This means that in WCB cases there is a unique standard of proof. Where a case is 50-50, it should be resolved in favour of the worker (an “as likely as not” standard).  This is less than the standard of proof used in civil claims. The civil standard is on a balance of probabilities (“more likely than not” or 50% +1).

In practice, Board policy confines, or attempts to confine, the nature of relevant evidence and provides the framework for how evidence is to be assessed and weighed. Therefore, in appeals, it is important to identify the correct applicable Board policy whether or not it is identified in the initial Board decision

The RSCM II has eighteen chapters. Each chapter focuses on a particular entitlement issue or benefit and contains the policies relating to that issue. Each policy is numbered and dated and is typically 1-3 pages long. The RSCM II index (also available through the RSCM II link) is very helpful for locating any relevant chapter and policy.  

Board policies change from time to time. Each new version of a policy is passed by the Board of Directors and is published with both a specific effective date and a determination as to whether or not the changes apply to appeals. This information is set out at the end of each policy. Each new Board policy is incorporated into the electronic version of the RSCM II available on the Board website.  When handling an appeal, students should determine the relevant applicable policy (especially for old claims) and should also review the electronic version of newer policy to ensure that it is still current. The Board website also contains all the former or “archived” policy manuals so that any relevant policy is accessible, even for old claims.  

If a particular Board decision quotes part of a policy, it is good practice to read the whole policy and also to look at the surrounding policies to understand the full framework for that type of benefit.   Also, although a particular policy may be quoted in a decision, the decision-maker may or may not have applied the right policy. It is best to assess the worker’s issue and determine whether or not alternative policies may be the correct applicable policies.  

Lastly, Board policy must be consistent with the WCA.  If someone considers that a Board policy is inconsistent with the WCA, they are entitled to challenge that policy in a WCAT appeal in which it is relevant. If the WCAT panel agrees that the policy is not supported by the WCA, the panel will refer the matter to the WCAT Chair; if the Chair agrees, they will refer the policy to the WCB’s Board of Directors for ultimate determination and possible policy change (s 304, previously 251, WCA).