WSIB Appeals Process

WSIB Appeals

Workplace Safety and Insurance Board (WSIB) appeals generally focus on loss of earnings arising out of work injury. The suitability of work, the functional work capacity analysis, accommodation by the employer, and attempts to find alternative work, are the issues that generally arise in these appeals. Reviewing medical evidence and establishing facts in a hearing are important to achieving success in these appeals.

Sometimes, the Board takes the position that the injury is not work related. When this happens, it is necessary to prove that the injury is indeed work related. The Board only has jurisdiction to determine the issue of benefits if this relationship is proved.  As a WSIB lawyer, I have succeeded in establishing such relationship between injury and work upon appeal.

In rare cases, paid benefits are challenged afer many years by the Board on the ground that it was misled.  In one instance of my client, the matter actually went to court  since tens of thousands of back payments were demanded and it was necessary to straighten out almost ten years of workplace history, to finally succeed in restoration of benefits.

WSIB appeals often involve the appellant with the Board for many years since injuries often take long to resolve and sometimes recur. During this time, the worker has to confront a series of challenges in vindicating rights and meeting obligations toward the employer as well as the Board.

These rights and obligations are subject to policies that the WSIB applies in the administration of claims.  The policies are worded with criteria outlined for entitlement to benefits.

WSIB adjudicators are required to follow Board policies.  Policy criteria is subject to a wide-ranging interpretation of the evidence which is often called into question when appealing.

When a claim is denied, it is important to understand how the evidence needs to be reviewed and presented to qualify for loss of earnings. Having a lawyer review your case quickly will help to understand the appeal process.

A policy and its interpretation can conflict with disability law as laid down by the courts.  Despite the large discretion granted to the Board in implementing its policies and despite it being the master of its own procedure as a specialty tribunal, the supervisory role of the courts to assure due process of law and reasonableness in WSIB appeals hearings, remains available in judicial review applications to the Divisional Court in Ontario. Judicial review is availed after a WSIAT hearing if unsuccessful.

WSIB follows policies in its own way and will not examine conflicts of such policies with the case law of the Superior Court of Justice or of the Court of Appeal or the Supreme Court of Canada.  Effective presentation at each stage incorporates arguing what is within the jurisdiction of the relevant agency and laying the foundation of the next step should the matter be needed to be appealed, or should a judicial review become feasible and necessary.

At the WSIB appeal before the appeals officer, it is better to emphasize how the policy ought to be implemented on rational grounds, since the officer cannot challenge the policy itself that they are required to implement.

The appeal from WSIB to the WSIAT provides a fresh hearing process where the evidence will be presented again, though the decision of the WSIB which is being appealed, will be before the WSIAT panel at the time of the hearing.

In all WSIB appeals hearings, findings of doctors and medical personnel must be properly combined with testimony. This will lay the foundation to argue how the relevant policy or policies should be interpreted aand implemented. More than one policy will often apply in a single hearing.  This fundamental character of a WSIB hearing must be well-understood prior to the hearing to be able to prepare and succeed.

I cannot over-emphasize the significance of understanding all that is involved as early as possible, once you begin interacting with the WSIB in contemplation of filing an appeal.  It is a natural presumption that except for instantly recognized grave injuries whose impact is most obvious at the forefront, an injured work will be dealing with the WSIB adjudicators for a considerable time in trying to obtain benefits.

A review of my blog integrated with this website, entitled How to Prepare for a Court Trial or Tribunal Hearing, will hopefully solidify your preparation in all of these aspects of the hearing before it comes up.

Keep in mind that there are generally two elements of a typical WSIB appeal’s success: First, the medical evidence that should be understood in all its finer details and implications. Here, it may be necessary to obtain additional medical evidence and often also to clarify medical answers to issues the Board will decide.

Second, the crucial testimony of the injured worker should be well prepared to displace negative medical findings. A believable witness can override what a WSIB doctor may have decided against a claimant.

Differing medical opinions must be shown by worker testimony to favour the grant of benefits under the balance of probabilities standard applied in civil cases. This means showing that the injury’s resulting disability is more likely to have occurred than not, on balanced consideration of the totality of the evidence.

For a detailed understanding of how civil litigation works in general, and how tribunals such as WSIB ought to work, and the principles behind their operation, read the Civil Litigation section of the website for a quick overview.

The hearing process is significant and is almost always a better option than the written documentary presentation of the appeal which deprives the injured worker of the opportunity to prove the case through live testimony.

The worker often wonders about his skills to testify and whether they will be a good witness.  It is not important to be the most fluent witness.  What is important is to show the truth surrounding your disability that lies in your day to day activities and limitations that are presented by hand, shoulder, neck and other movements that come into operation differently when work disability arises, specially over a period of time.

There is no substitute for a live presentation to show the effect of the injury on your body and the mind.  A forthright presentation with thorough preparation of your case, specially with a lawyer’s guidance, will go a long way in persuading the appeals resolution officer (ARO) to accept your claim.

The blog integrated with this website should assist you in understanding the hearing process and how you can effectively assist in your own preparation and presentation.  It also explains the factors involved in self-representation and hiring a lawyer.

The WSIB appeal process will challenge you to become your own advocate. A debilitating injury deserves compensation of full benefits or partial benefits if you can only work part-time. Fighting for your rights often becomes necessary and you should obtain all information about procedures that you can, and not give up if you have to represent yourself.

Where possible, engage your family members to assist you actively.  I have generally seen over the last 30 years of practice that family support has been very useful in getting through the thick and thin of the prolonged process for most of my clients.  Older children are often very helpful in getting through the correspondence and assisting with interacting with me when the injured worker lacks communication skills.

Translation at hearings is possible as a service, though in my experience, as long as basic communication is possible, there is more authenticity in direct responses to questions in these appeals.  You must establish a comfort level in advance with your lawyer before the hearing process and should actively interact with them to etablish your case.

When work transition is triggered, the injured worker should carefully evaluate his condition, always show cooperation, and assess whether provided training will match his skill set, complement it, or not be worthwhile, in consultation with the doctor and medical personnel.

Alternative job attempts, when necessary, must be made to prevent being considered uncooperative, as long as your doctor and your condition allow such attempts.  Injured workers typically spend a lot of time tussling with the WSIB adjudicators to prove that they are always available and willing to do modified work.

Understanding early the kinds of issues that will arise if the injury is fresh, and informing yourself of the steps that will be needed in dealing with the WSIB, will provide you the necessary confidence to deal with the WSIB appeals process on an ongoing basis.

This is important for long-term injuries, given that the wage loss benefits are payable till age 65 and given that decisions continue to vary in this process.

Since workplace injuries can involve mental injury, it is important to note a significant decision of the Supreme Court of Canada decided in June 2017.  This decision shows how mental injury can be proved without a psychiatrist and without a psychiatric diagnosis.   The Court reasoned that family members could prove the injury and how the legal test for obtaining damages for mental injury is the same as the test for physical injury.  The decision is explained in detail in my blog section entitled :Ordinary Evidence as good as Expert Evidence to prove mental injury, as part of this website  This is a significant step in interpretation of evidence and shows how important it is for ordinary testimony of family members to be provided in suitable cases, where the life pattern and suffering of the worker can be proved through long periods during which such injuries often continue.

This also permits some control of the legal process outside of specialists.  Given the technical nature of evidence and the need to broaden the scope for proof, the case is a landmark. Though the case arose out of a tort injury, and not under WSIB type of legislation for analysis, it could impact case law under Workers Compensation statutes across the country in the coming years.  A general expansion of legal principles  enunciated in the courts, particularly the appellate courts, often trickles into administrative law as a matter of legal consistency and expansion of the means to obtain justice throughout the legal system. It can also reshape the legal policies underlying WSIB type of legislation in the coming years.