The Appeal Process
The following section will provide you with an overview of the WorkSafeBC claims process. In our experience, WorkSafeBC is a body that, for all intents and purposes, behaves like an insurance company. After over 25 years of handling WorkSafeBC claims, Mr. Gosal has found that WorkSafeBC’s goal is to minimize the number of claims accepted, minimize the nature and extent of claims accepted, and minimize the duration and amount of compensation entitlement.
Most people retain our services when they feel that they can no longer deal with the complexities of the appeal system and/or demands made by WorkSafeBC staff. Unfortunately, we see many people who come to us after their avenues of appeal have been exhausted. It is difficult (although not impossible) to help these people. Therefore, it is prudent to seek legal advice soon after the commencement of your WorkSafeBC claim, as we can advise you what to watch for and what to expect as your claim progresses.
The decision-making level: the Board
The Board provides workers with initial decisions on their claims. Wherever possible, the Board will deny compensation entitlement. You will interact with various decision-makers at this stage. Your Case Manager gathers the information required by the Board (usually in a passive manner) to adjudicate your claim. They decide which medical conditions are accepted under your claim and what type of compensation you are entitled to as a result. Often, calculating the actual amount of your award requires specialized knowledge. For this reason, your Case Manager may refer your claim to other WorkSafeBC departments.
The Wage Rate Unit determines the wage rate on your claim, which serves as the basis for calculating your monthly benefits. The Disability Awards Department determines the amount of your disability pension by reviewing medical evidence of your condition. If you require assistance in returning to work, a Vocational Rehabilitation Consultant may be assigned to formulate a return to work plan for you.
As you are dealing with an insurance company, you should be aware that the Board’s goal is to deny and minimize your entitlement under your claim.
The following is a list of terms to be aware of in Board decision letters:
- Your “chronic pain” is accepted. Your file will be referred to Disability Awards for chronic pain. (This means that the WCB has quantified your disability as 2.5% out of 100% and that any and all objective signs of medical disability will be ignored.)
- Your claim has been accepted for…
- No other condition (temporary or permanent) is accepted.
- No limitations or restrictions are accepted.
- It is not anticipated that any permanent impairment will result.
- Your file will not be referred to Disability Awards.
- You have been deemed fit to return to work without restrictions.
- Your condition has resolved.
- You have a significant pre-existing condition. No aggravation of your pre-existing condition is accepted.
- Your file has been reviewed by our Medical Advisor…I have accepted the Medical Advisor’s opinion…
- There is no convincing evidence of…
- I have accepted a temporary…
- This condition is deemed to have resolved…
The above are just some examples of terms that should set off alarm bells, as these terms indicate that the Board is attempting to limit your compensation entitlement, and limit the parameters of your claim.
After a Board decision is issued, you have 90 days to file an appeal (a Request for Review) to the Review Division.
The initial level of appeal: the Review Division
Once a Board decision is appealed, a Review Officer is tasked with reviewing your claim and determining whether the Board made the correct decision according to law and policy. The Review Division may either confirm the Board’s findings (deny your appeal), make modifications to the Board’s decision (allow your appeal, in part), or vary the Board’s decision completely (allow your appeal). In certain circumstances, a Review Officer may conclude that the Board made its findings without sufficient evidence. In this case, the Review Division has the authority to refer your claim to the Board for further investigation. This means that the Board will issue a new decision about the matter you appealed.
You should be aware that the Review Division is part of the Board and only conducts an internal review of the Board’s decision-making. In our experience, the majority of appeals are denied at this stage. This means that most claims will need to proceed to the next level of appeal.
Please remember that you have less time to appeal a Review Division decision letter than a Board decision letter. The deadline to file an appeal (a Notice of Appeal) to WCAT is 30 days after the Review Division issues its decision.
The final level of appeal: the Workers’ Compensation Appeal Tribunal (“WCAT”)
WCAT is the final level of appeal for your WCB claim. At this level, decisions are made by a one-person Panel, who may allow, partially allow, or deny your appeal. A WCAT Panel may also direct the Board to conduct further investigation of your claim, and to issue a new decision.
WCAT appeals are conducted in one of two ways. They may proceed by way of written submissions, in which case the Panel reviews the evidence on your file and any arguments sent on your behalf. Alternatively, an oral hearing may be conducted. This will give you an opportunity to meet the decision-maker in person and to present evidence in the form of sworn testimony.
Unlike the Review Division, WCAT is independent from the Board. Depending on the quality of the evidence, your claim has a much higher chance of success than at the Review Division.
Please remember that WCAT decisions are final and that there is no further avenue for appeal.
Further options: WCAT Reconsiderations, Judicial Reviews
In some limited cases, it may be possible to request a reconsideration.
It is also possible to seek a judicial review of a WCAT decision. 60 days after the Panel issues their decision, you may file a petition and an affidavit with the Supreme Court of British Columbia, and then serve these on WCAT, the Attorney General of British Columbia, and the Respondents who participated in your appeal. In a judicial reconsideration, a judge will not rehear your claim. Instead, he or she will decide whether WCAT made an error in its decision. Our firm does not represent clients in judicial reviews. However, if you decide to pursue this option, we are happy to refer you to experienced litigation counsel.
Canada Pension Plan Disability Benefits
You have the right to appeal if you disagree with the initial decision of the Minister of Human Resources and Skills Development Canada (“HRSDC”) that you do not qualify for CPP Disability benefits. There are three levels of appeal: reconsideration, appeal to the Social Security Tribunal – General Division, and appeal to the Social Security Tribunal – Appeal Division.
The initial level of appeal: the reconsideration request
At the first level of appeal, you must contact HRSDC in writing within 90 days of receiving the initial decision letter. HRSDC staff members who were not involved in the initial decision-making process will conduct a new review of your application materials. They may also consider new evidence, including supportive medical documentation from your treating physicians. However, the rate of denial at this level is quite high, as it merely involves an internal review. Our firm uses the reconsideration process to prepare for the next level of appeal.
The second level of appeal: the Social Security Tribunal – General Division
If HRSDC denies your application on reconsideration, the next step is to appeal to the Social Security Tribunal (“SST”) – General Division. Having worked on hundreds of CPP appeals, our firm can assist you at this level. You must contact the General Division in writing within 90 days of receiving the reconsideration decision letter. A phone call of intention to appeal will not be accepted.
The General Division is independent from HRSDC. When the General Division accepts your appeal, you will be informed of a hearing date and time. In some limited cases, the General Division may decide that an oral hearing is not necessary in order to deterine your eligibility for CPP benefits. Instead, the General Division ill request written submissions in support of your appeal.
You may submit new evidence and make submissions to the General Division in support of your appeal, but it is always advisable to submit this evidence as soon as possible.
The hearing will be conducted by a single-member panel, which will have access to legal and medical experts.
The hearing will be attended by a representative of the Minister of HRSDC. This representative will argue that your appeal should be dismissed. You will be given the opportunity to present your case with questions and submissions. The Minister’s representative will also be given the opportunity to ask questions and provide submissions. The panel may also ask you questions.
Once the hearing has concluded, the panel will take time to deliberate and make a decision. The panel will render their verbal decision on the day of the hearing to either accept or deny your claim. However, this decision will not be disclosed to you. The panel’s decision will be issued to you in writing.
The final level of appeal: the Social Security Tribunal – Appeal Division
If the General Division denies your appeal, there is an opportunity to appeal to the SST – Appeal Division. An appeal to the Appeal Division is not automatic. You must first apply for leave to appeal. You must contact the Appeal Division in writing within 90 days of receiving the General Division’s decision letter. A phone call of intention to appeal will not be accepted.
Like the General Division, the Appeal Division is independent from HRSDC. The Appeal Division will first review your application for leave to appeal. The Appeal Division will grant leave to appeal if there is are issues of fairness, jurisdiction, error of the law, or serious error on findings of fact.
If leave to appeal is granted, another hearing may be held in front of a panel. You may choose to submit new evidence to the Appeal Division, but they may not consider it. The Appeal Division is limited to a review of the General Division’s decisions. The Appeal Division panel will render a new decision either allowing or denying your claim after considering the evidence, oral testimony, and submissions.
There is a chance of settlement once leave to appeal is granted. The government may allow your application for CPP disability benefits without an Appeal Division decision. In this event, no additional hearing at the Appeal Division will be required.
The Appeal Division hearing will be attended by a lawyer and a physician from the Ministry of HRSDC.
Our lawyers are very experienced in representing clients with CPP appeals. We can assist you in obtaining and presenting the required medical evidence and submissions necessary for an appeal.
Both the General Division and the Appeal Division have the power to reconsider their own decisions should new facts come to light that could not have been known prior to the hearing or the decision having been made. The reconsideration of a General Division or Appeal Division decision can be done once within one year of the decision being made.
Further option: Judicial Reviews
If you have exhausted all levels of appeal and your case was still denied, you may seek a judicial review of the decision at Federal Court. Our firm does not represent clients in judicial reviews. However, if you decide to pursue this option, we are happy to refer you to experienced litigation counsel.