Legal News

Workers compensation appeals simplified

On May 30, 2002, the provincial government introduced Bill 56, which is designed to develop and ensure a more responsive workers’ compensation system. The new bill reduces the levels of review and appeal of Workers’ Compensation Board decisions from three down to two, creates a new internal review function to improve the quality of decision-making and establishes a new, independent appeal tribunal as the final level of appeal for workers’ compensation matters. The more important of the proposed amendments are listed and summarized below.

The proposed amendments repeal the definition of “review board”, pursuant to the elimination of that board, and add the following two definitions:

“appeal tribunal” means the Workers’ Compensation Appeal Tribunal established under Part 4;
“review officer” means an officer of the Board who is designated under section 96.6.

Certifying WCB findings for courts
The repeal of section 11 of the Workers’ Compensation Act (WCA) removes the Board’s authority to certify findings for court actions. Previously, the Board, under request from a court could determine any matter that was relevant to the court action and within its competence under the WCA, and certify those determinations to the court. That power would fall under the purview of the proposed appeal tribunal.

Classes and subclasses
The proposed amendments will clarify and facilitate the Board’s authority and ability to establish classes and subclasses of subclasses for the purpose of making assessments to maintain the accident fund.

Medical Review Panels
Bill 56 repeals sections of the WCA that provide for the establishment of medical review panels and their jurisdiction to examine workers and certify their medical findings. These repeals also eliminate rights to refer matters to a medical review panel. Previously, both workers and employers were entitled to have the worker examined by a medical review panel if they were aggrieved with the findings with a medical finding or decision of the review board, board, employer or former employer. Powers pertaining to ordering a medical review or re-examination would fall under the purview of the appeal tribunal.

Workers’ Compensation Board – Jurisdiction
The major change proposed by Bill 56 is the elimination of both the Workers’ Compensation Review Board and the appeals division of the Workers’ Compensation Board and establishes in their stead the Workers’ Compensation Appeal Tribunal. This new Tribunal is established in Part IV of the WCA, and shall be discussed shortly. Due to the establishment of the new Appeal Tribunal, there are a number of changes pertaining to the review and appeal procedures of the Workers’ Compensation Board. Some of the key effects of these changes are:

  • allows Workers’ Compensation Board decisions to be appealed to the Workers’ Compensation Appeal Tribunal;
  • repeals the jurisdiction of the appeal division of the Workers’ Compensation Board;
  • prohibits the Workers’ Compensation Board from reopening, reviewing or reconsidering a matter that was subject of a decision of a review officer under sections 96.2 to 96.91 or of a decision of the Workers’ Compensation Appeal Tribunal under Part 4;
  • limits the Workers’ Compensation Board from reconsidering decisions that are more than 3 years old unless there are exceptional circumstances and if such exceptional circumstances exist and the Board decides to reconsider a decision more than 3 years old, prohibits a retroactive decision unless the Board also determines that exceptional circumstances warrant retroactive operation of a reconsidered decision;
  • authorizes the Workers’ Compensation Board to establish practices and procedures and recommends the use of alternate dispute resolution processes.

Review Officers
Bill 56 also establishes a review officer, and empowers that person to review decisions made by the Board. The section that establishes the position and responsibilities of the review officer allows for the following:

  • establishes rights to request the review of compensation, rehabilitation, assessment, classification and occupational health and safety decisions and orders of the Workers’ Compensation Board by a review officer designated by the Workers’ Compensation Board;
  • requires the review officer to make a decision within a limited time (150 days) and specifies that the review officer may confirm, vary or cancel the decision or order under review or refer the decision or order under review back to the Board along with directions;
  • specifies that the review officer’s decision is final, subject to any right to appeal to the Workers’ Compensation Appeal Tribunal.

The Appeal Tribunal
The most important amendment introduced in Bill 56 is the establishment of an Appeal Tribunal. The Appeal Tribunal will consist of:

  • one chair, appointed by the Lieutenant Governor in Council. The chair holds office for a term of 5 years, and may be reappointed to one or more successive terms of up to 5 years each.
  • one or more vice chairs, appointed by the chair after consultation with the minister. The vice chairs’ first term of office is 2 years, and they may be reappointed for one or more successive terms of up to 4 years each.
  • up to 4 representative members, appointed by the chair, with equal representation from those with experience in employers; interests and from those with experience in workers’ interests. These members must first successfully complete a competency-based selection process. Their first term of office is 2 years, and they may be reappointed for one or more successive terms of up to 4 years each.

The role of the chair
The chair is responsible for the general operation of the appeal tribunal, including:

  • establishing quality adjudication, performance and productivity standards for the tribunal’s members and regularly evaluating those members.
  • developing a strategic 3-year plan, as well as a annual plan and operations budget for the tribunal
  • establishing any rules, forms, practices and procedures required for the effacing and cost effective conduct of appeals to the appeal tribunal
  • establishing administrative practices and procedures for the effective operation of the appeal tribunal

All appeals to the tribunal must be heard by panels. These panels are established as follows:

  • panels are appointed by the chair
  • panels will generally consist of the chair sitting alone or a vice chair sitting alone unless the chair determines either that the matter under appeal requires a 3 member panel, or that the matters in an appeal of special interest to the workers’ compensation system, in which case the chair may appoint a panel of up to 7 members
  • in the case of multi-member panels, the majority of the panel must consist of vice-chairs or vice chairs and the chair, and any appointment of representative members must be done equally, as between those with experience in employers’ interests and those with experience in employees’ interests.

Appeal Rights – Appeal of review decisions
Decisions made by either the Workers’ Compensation Board or the review officer may be appealed to the appeal tribunal, subject to certain restrictions. In an appeal, the appeal tribunal may consider all questions of fact and law arising in the appeal, but is not bound by legal precedent.

Time limit
An appeal must be filed within 30 days of the decision, although exceptions will be made if an injustice would otherwise result.

Appeal Proceedings
Subject to any rules, practices or procedures established by the chair, the appeal tribunal may conduct an appeal in the manner it considers necessary. This may include:

  • receiving new evidence
  • request
    ing the Board to investigate further into a matter relating to a specific appeal and report in writing to the appeal tribunal

  • requiring the parties to the appeal to attend pre-hearing conferences to discuss procedural and substantive issues, and requiring those parties to make a pre-hearing disclosure of their evidence, including requiring the pre-hearing examination of a party on oath or affirmation or affidavit.
  • compelling the attendance of witnesses
  • compelling the production of books, papers, documents and things.

Medical Practitioner Assistance
The chair must establish a list of medical practitioners that may be retained to provide assistance or advice. If the appeal tribunal determines that an issue on an appeal concerns the Board’s medical finding or decision, the presiding member may require the worker to submit to an examination by one or more of the medical practitioners from the list composed by the chair.

Appeal tribunal decisions
A decision from the appeal tribunal is required within 180 days after the appeal is commenced, subject to any delay or suspension of the proceedings. Any decision or action of the chair or the appeal tribunal is final, and is not open to question or review in any court, although an appeal to the chair of the appeal tribunal is available if new evidence comes to light.

Certification to the Court
When a court action is commenced based on a disability caused by occupational disease, a personal injury or death, under request from a court, the appeal tribunal may determine any matter that is relevant to the court action and within its competence under the WCA, and certify those determinations to the court.