Document name
Appeals – Board Appeal Tribunal
Document number
POL 22/2013

Effective date: January 1, 2014

Application: All appeals

Policy subject: Reconsiderations and appeals

Purpose:

To establish the Board Appeal Tribunal as the final step in the appeal process.

DEFINITION

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Board Appeal Tribunal means a quorum composed of at least two members of the Board (Board Members and/or Chairperson) who act as the final appeal for injury claim and employer account decisions of the Workers’ Compensation Board (WCB). This role of the Board as an appellant body is distinct from its governance role.

BACKGROUND

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  1. To ensure fair treatment to workers and employers, the WCB has established an appeal process, the final step of which is an appeal to the Board Appeal Tribunal.
  2. Several sections in The Workers’ Compensation Act, 2013 (the “Act”) deal with the right to appeal a decision:
    1. Section 18 of the Act allows the Board Members to delegate any of their powers or functions to WCB employees. Persons affected by delegate decisions can make appeals. This section also directs that the WCB must create policy to guide the appeals process.
    2. Further, Section 20(5) of the Act states, “Notwithstanding subsections (3) and (4), the board may:
      1. reconsider any matter that it has dealt with; and
      2. rescind, alter or amend any decision or order it has made.”
    3. Section 100(1) states, “Any weekly or other periodical payment to a worker or a worker’s dependent spouse payable out of the fund may be reviewed:
      1. on the motion of the board; or
      2. at the request of the worker, the worker’s dependent spouse or the worker’s employer.”
  3. While not specific to appeals, there are certain sections of the Act that are particularly relevant when the Board Appeal Tribunal is reviewing an appeal. They are:
    1. In accordance with Section 14, a “majority of the members constitutes a quorum of the board.”
    2. Under Section 15(3), “the board is to sit at any time and conduct its proceedings in any manner that it considers advisable for the conduct of its business and affairs.”
    3. Section 21(2) grants the Board the “same powers as are vested the Court of Queen’s Bench for the trial of civil actions:
      1. to summon and enforce the attendance of witnesses;
      2. to compel witness to give evidence; and
      3. to compel witness to produce records or property.”
    4. Section 22 of the Act authorizes the Board to request depositions of witnesses “to be taken before any person appointed by the board.”
    5. Under Section 23, a decision of the Board must be based on the merits and justice of each case and is not bound by legal precedent. The benefit of doubt will be given to the worker when the evidence in support of opposite sides of an issue is approximately equal.
  4. In accordance with Section 20 of the Act, WCB has established that only the Board Appeal Tribunal will have exclusive jurisdiction to reach a decision in the first instance, or to review an appeal, which includes the following issues:
    1. Section 29 of the Act regarding presumption claims filed prior to January 1, 2003 (POL 04/2014).
    2. Section 73 of the Act regarding proposals for alternate forms of annuities (POL 05/2020).
    3. Section 82 of The Workers’ Compensation Act, 1974 (the “Old Act”) regarding the commutation of pensions (POL 13/2016).
    4. Section 169 regarding applications as to whether court action is barred under the Act (POL 01/2013), and
    5. Matters relating to the Canadian Charter of Rights and Freedoms (POL 05/2005).
  5. Section 171 clarifies that the board is not required to hold oral hearings for any matters decided under the Act.

POLICY

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  1. Any worker or employer, having had their injury claim or employer account appeal considered at the Appeals Department or Assessment Committee level may appeal that decision to the Board Appeal Tribunal.
  2. Any person may appeal a decision of the Privacy Officer regarding compliance with privacy policies and procedures to the Board Appeal Tribunal.
  3. Board Services staff will acknowledge receipt of the appeal and provide any advice necessary to the worker or employer. For injury claim appeals, both the worker and employer are advised of the appeal and provided an opportunity to submit information in support of their position.
  4. Access to the claim file is in accordance with the provisions of Sections 173 and 174 respectively and will follow the process outlined under PRO 06/2017, Authority for Disclosure.
  5. The worker or employer may request an oral hearing with the Board Appeal Tribunal. The Board Appeal Tribunal has the discretion as to whether such a meeting will be granted.
  6. On occasion, when it is a claim decision appeal, an employer may request to become a party to a worker’s appeal, or vice versa. The Board Appeal Tribunal will consider such applications on a case-by-case basis and where granted, will advise the parties of the process to be followed. The process is subject to modification to ensure fair and reasonable treatment of workers and employers on an individual case basis.
  7. The WCB has established policies and procedures that describe how certain issues should be dealt with. However, the Board Appeal Tribunal is not bound by those policies and procedures and will consider any appeal on its true merits and justice in accordance with the provisions of the Act, policies and the rules of natural justice, which require the decision maker to:
    1. Act properly, fairly and without bias.
    2. Provide an opportunity for each party to state their case.
    3. Inform each party of the case that they must respond to.
    4. Consider all of the evidence.
    5. Ensure that the decision is made by those who consider the evidence, and
    6. Provide the parties with meaningful and timely reasons.
  8. Board Services staff may require the collection of additional information at any time during the process.
  9. Following their review, the Board Members will provide a written decision to all interested parties including detailed reasons for the decision.
  10. Any decision or direction by the Board Members will be given priority by WCB staff.

Standard of Proof

  1. At all levels of appeal, all information relevant to the issue(s) under dispute is considered and given weight appropriate to its relevance and level of verification. Decisions are based in accordance with the conclusion that is more likely, considering the merits and justice of the appeal. Where the evidence on both sides of a claim issue is approximately equal, the issue is settled in favour of the worker. For issues that are exclusive to an employer account file (i.e., has no affect on a worker‘s or dependent‘s entitlement), benefit of doubt will be given to the employer. Policy POL 02/2019, Decision Making, will apply.

Burden of Proof

  1. There is no burden of proof on the worker or employer submitting the appeal. However, the worker or employer is expected to provide a reason for disagreeing with the original decision, and to cooperate in providing the information required by the Board Appeal Tribunal. The onus is on the Board Appeal Tribunal to ensure that there is sufficient information to make the appeal decision.

Policy references

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Section heading

Act Sec #

Section detail

14, 15, 18, 20, 21, 22, 23, 29, 73, 80, 82, 100, 169, 171, 173, 174

Section heading

Amended

Section detail

References updated in accordance with The Workers’ Compensation Act, 2013

Section heading

Supersedes

Section detail

POL 30/2010               Appeals – Board Appeal Tribunal

Section heading

Complements

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