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.
Often, the WSIB will first have paid out benefits before examining the file of a prior claim, or a prior non-work injury, and then write a letter through the adjudicator to the injured worker that the benefits will be terminated. 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 in the Board's jurisdiction for many years since injuries are often not resolved soon, sometimes recur, and often concern a variety of rights and obligations placed upon the workers in respect of both the employer and 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.
The significant element, however, is the litigation surrounding the implementation of the policies by adjudicators. Policy criteria is subject to a wide-ranging interpretation of the evidence that is often claimed by the Board not to be supported.
In such instances of claim denial, it is important to understand how the evidence needs to be reviewed for presentation for benefits to be qualified for loss of earnings. This process is the evidentiary process of the law that must be tapped to enhance the opportunity for success. A lawyer's assistance at this stage is more beneficial than any other step you can take for a WSIB appeal.
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 its implementation of policies and despite its legislative mandate to be 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 he or she is 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, the emphasis on findings of doctors and medical personnel must be properly combined with testimony and the argument under the law that assesses WSIB policies, as they ought to be interpreted. 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 process so that preparation for success can be timely made.
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, as and when it may arise. 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 length of 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, particularly in respect of how it may be deficient at the time of presentation in comparison with the Board's stated position. This will need supplementing the available medical evidence beforehand.
Second, the crucial testimony of the injured worker will explain the medical findings and often be able to displace negative medical findings overriden by the truth of the medical condition as witnessed by the appeals officer at the hearing.
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 he 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 being able to make a live presentation to depict the reality of your body and mental state after the work injury. A forthright presentation with preparation of your case, specially with a lawyer's assistance, to make the hearing process go smoothly and in order of sequence of relevant evidence, will go a long way in persuading the appeal officer 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 representation by a lawyer.
WSIB appeals of denied claims demand that you become and remain a most ardent advocate of yourself if work disability prevents you from working. This is of the greatest importance in expecting justice when deserved. The legislation provides for compensation, both for total disability and partial disability that mandates the lost portion in comparison with the original wage to be compensated by the WSIB.
Where possible, engage your family members to assist you actively. I have generally seen over the last 21 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 that establish disability. You must establish a comfort level in advance with your lawyer before the hearing process and should actively interact with him or her to etablish your case. Read my Home Page for tips in hiring a WSIB lawyer.
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 proven to be have been made to prevent being considered uncooperative, providing your doctor and your condition make it not impossible to make such attempts. Injured workers typically spend a lot of time tussling with the WSIB adjudicators in showing their availability and willingness to try 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, where you have already been doing so, will provide you the necessary confidence to deal with the WSIB appeals process on an ongoing basis.
This is important for long-term injuries where the period of contact with the WSIB is indeed very long, given that the wage loss benefits are payable till age 65 and given that decisions continue to vary in this process.