Difference between revisions of "Appeals in Worker's Compensation Claims (7:XII)"

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

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*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).  
*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) (previously 256(3)) of the WCA allows for a party to a completed appeal to apply for reconsideration of a decision based on new evidence which:  
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  
*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.  
*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''':  
If you apply for reconsideration based on new evidence, '''you must explain''':  
*is substantial and material to the decision, and
*why the new evidence is substantial (has weight and supports a different conclusion);
*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.
*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.  
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.  
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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.  
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).
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.  
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”. To view previous WCAT decisions made on applications for reconsideration, you can select “reconsideration grounds,” under “type of decision”.
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 “[https://www.wcat.bc.ca/home/search-past-decisions/ Search past appeal decisions]” under “review decisions for appeals that are similar”.


== D. Access to Files ==
== C. Judicial Review (JR) ==


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 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” (''[http://canliiconnects.org/en/summaries/41327 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.  


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.
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.


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.  
'''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: According to [https://www.canlii.org/en/bc/bcca/doc/2017/2017bcca403/2017bcca403.html?autocompleteStr=Denton%20v%20British%20Columbia%20(Workers%E2%80%99%20Compensation%20Appeal%20Tribunal)%2C%202017%20BCCA%2040&autocompletePos=1 ''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. However, as only the Review Division has the authority to decide constitutional issues while WCAT does not, these issues must be raised during the initial review stage.


== E. Appeal Procedure – Workers’ Compensation Appeal Tribunal ==
== D. Access to Files ==


Similarly, the best starting point to prepare an appeal to the WCAT is to go to the [http://www.wcat.bc.ca 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.
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.


== H. Judicial Review (JR) ==
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.


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” (''[http://canliiconnects.org/en/summaries/41327 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.
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.  
 
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.


:NOTE: 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. However, as only the Review Division has the authority to decide constitutional issues while WCAT does not, these issues must be raised during the initial review stage.


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