WCB operational policies may provide grounds for reconsideration or appeal
To make informed decisions about how to move forward with workers’ compensation claims, it is important to understand the compensation board’s decision-making criteria and processes as they relate to the decision being made. While many employers and representatives tend to focus on the provisions of the applicable workers’ compensation legislation, it is important to understand any applicable operational policies that were used in making entitlement decisions.
Workers’ compensation boards have operational policies that assist decision-makers with interpreting the legislation and applying it over a broad range of circumstances. Boards may also have guidance documents that they provide to decision-makers to assist them with making decisions on complex issues. While operational policies are generally public documents, other documents may be for internal use only by the compensation board and may not be accessible by the general public. Operational policies generally contain useful definitions of relevant terminology and set out the criteria for making decisions on specific issues.
For example, the WorkSafeBC Rehabilitation Services and Claims Manual policy 114.40 (“Enhancement of Disability by Reason of Pre-Existing Disease, Condition or Disability”) refers to section 39(1)(3) of the Workers’ Compensation Act and sets out the criteria to be used to determine whether an employer would be eligible for cost relief on a claim that is caused or enhanced by a pre-existing disease, condition or disability.
While the legislation states cost relief is available for employers, it does not define what a pre-existing disease, condition or disability is, or how much cost relief might be in order. The policy sets out the conditions where cost relief may be available, how to determine whether a pre-existing disease, condition or disability existed, to what extent it impacted the claim, and the amount of cost relief to be applied. Policies are designed to ensure consistency and reliability in decision-making so that similar issues are adjudicated in a similar manner. Because each injury claim must be adjudicated on its own merits, it would be impossible to anticipate every situation and create rules for them.
Claims management personnel should be familiar with the policy manuals for the compensation boards they work with to know when to ask for decisions on specific issues (such as cost relief) and how to word those requests in order to maximize the possibility of a successful outcome. Decision letters issued by the compensation boards should make reference to any applicable policy used to render the decision. That will give the person receiving the decision the opportunity to better understand the criteria used to render the decision and the adjudicator’s rationale. It may also give the recipient a reason to appeal the decision or request that it be reconsidered.
There may be several reasons why a person might disagree with a decision, including a perception that the decision-maker failed to apply a relevant policy, applied it improperly or interpreted it incorrectly.
When you receive a decision letter on a specific issue, review the decision and facts with respect to the applicable policy. If you feel that any of the above situations exist, you may request that the decision-maker reconsider the decision. For example, if the decision-maker did apply a policy but did not consider all of the wording in the policy when making the decision, that may provide grounds for a reconsideration or appeal. Any reconsideration request should clearly outline why you believe the decision to be incorrect, your interpretation of the applicable policy and rationale for how it should be applied with respect to the facts of the case. If the decision-maker did not have all of the facts, be sure to provide all relevant information so the board can make its decision based on all available information. If the decision remains adverse, you may wish to proceed with an appeal of the decision. Remember, any appeal should be initiated within applicable time limits.
Having a firm understanding of where to find and how to interpret applicable board policies are essential claims management skills. Sound arguments based on applicable policy may assist employers in avoiding unnecessary appeals by ensuring appropriate entitlement decisions are made by adjudicators the first time.
David Marchione is an occupational health and safety consultant and paralegal at Fasken in Toronto. He can be reached at (416) 868-3468 or email@example.com
, or visit www.ehslaw.ca
for more information.