Document name

Decision Making

Document number

POL 02/2019

1. The Workers’ Compensation Board (WCB) has exclusive jurisdiction to examine, hear and determine all matters and questions arising under The Workers’ Compensation Act, 2013 (the “Act”), The Workers’ Compensation General Regulations, 1985 and The Workers’ Compensation Miscellaneous Regulations.


2. The actions and proceedings of the WCB are final and conclusive. The WCB’s decisions and findings on all questions of fact and law are not open to question or review in any court (Section 20).
    
3. The Act recognizes the authority of the Board Members to develop policy directives (Sections 2(1)(ee), 18 and 23). Through policy directives, the Board Members may delegate any of their powers or functions to WCB staff.
    
4. WCB will make its decisions on the real merits and justice of each case and is not bound to follow any legal precedent. In making its decisions, the WCB may have regard to its policy directives (Section 23).
    
5. If the evidence in support of the opposite sides of an issue is approximately equal, the WCB will decide the issue in favour of the worker (Section 23(3)).
    
6. The WCB will treat workers and their dependants in a fair and reasonable manner (Section 19(1)(a)). The WCB’s decisions must be consistent with the provisions of the Act, policies, and the rules of natural justice and procedural fairness. This requires staff 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.

1. WCB makes decisions on:
   1. Worker files (e.g., claim acceptance, benefits, other entitlements, etc.),
   2. Employer accounts (e.g., all matters relating to coverage and registration, assessments, industry classification, employer’s claims cost experience, employer clearances, etc.), and
   3. Any other matter governed by the Act.
2. WCB is legally bound to apply all statutory provisions and legislative intent in the Act that are relevant to the case.
3. WCB policies, approved by the Board Members, provide staff with guiding principles and form the basis of actions performed or decisions made under the Act. Policies ensure that the decision making process is consistent and transparent.
4. When making decisions, WCB considers:
   1. Relevant provision(s) of the Act and Regulations.
   2. Relevant policies and procedures, and
   3. All facts and circumstances relevant to the matter under review or consideration.
5. WCB is not bound to follow any legal precedent. WCB will make its decisions on the real merits and justice of each case.
6. The obligation to determine each case on the basis of merits and justice does not authorize staff to disregard the relevant provisions of the Act or any policy. There must be compliance with the Act and with policies, if they apply to a particular case.

Exceptional Circumstances

7. There may be rare or exceptional circumstances where:
   1. No policy exists that is applicable to the facts of the case.
   2. Existing policy does not sufficiently cover the particular case, or
   3. Application of the policy would lead to an unintended or unreasonable result that the Act or WCB never intended.
8. In these situations, the decision will be made on its own particular facts, in accordance with the general provisions of the Act and the merits and justice of each case.
   1. In all cases, WCB will clearly identify the exceptional circumstance and explain why policy is not applicable.
   2. At least one authority level above the original decision maker must review and confirm any decisions that involve a different approach from policy or that demonstrate an absence of policy direction for that case. Decisions will be documented.
   3. Such a decision will be considered for that specific case only and will not be precedent setting. However, formal policy direction to cover these situations may be sought from the Board Members through Corporate Policy to ensure consistent decision making.
9. Where a decision challenges the validity or legality of a policy (i.e., the decision maker considers the policy to conflict with the Act or has an opposing interpretation of the Act), the Board Members will consider the decision made.
   1. In its governance role, the Board Members will determine what action, if any, is required to respond to the policy challenge. This could include:
      1. The Board Members may request a reconsideration of the decision. Customers can appeal any reversed decisions (see Reconsiderations and Appeals section in Policy and Procedure Manual).
      2. The Board Members may determine a policy revision is required.

Burden of Proof

10. Although there is no burden of proof on workers or employers, the Act requires specific information in order to make a decision or resolve an issue. Therefore, WCB uses an information-gathering model, which requires WCB to inquire into each case and to collect sufficient information to make an informed decision.

Standard of Proof

11. WCB will collect information to use as evidence to make, or help make, a decision. Evidence will be evaluated and considered to establish the facts of the case. This involves making judgements concerning relevancy, credibility (i.e., accuracy and reliability), and quality.
12. WCB will make decisions based on evidence.
    1. Where it appears from the evidence that two conclusions for a decision are possible, but that one is more likely than the other, WCB will decide the matter in accordance with the conclusion that is more likely (i.e., more evidence for the fact than against).
    2. Decisions will not be made on speculations or opinions. Inferences drawn must be supported by evidence and documented on file.

Benefit of Doubt

13. If there is any doubt in a decision because the evidence on both sides is approximately equal (i.e., the evidence for and against the issue is approximately equal in weight), the WCB will decide the issue in favour of the worker or the dependant(s) of a deceased worker.
14. If there is doubt surrounding an issue exclusive to employer account matters (i.e., have no effect on a worker's or dependent's entitlement), WCB will decide the issue in favour of the employer.
15. The benefit of doubt principle is not to be used as a substitute for lack of evidence or when the issue can be decided on what is more likely than not.
16. If the benefit of doubt principle is applied, the decision must detail the rationale used to determine that the evidence on both sides is equal.

Decisions

17. Decisions will explain the reasons for the decision, including the application of legislation and policies used in the decision making process. They will also clarify the significance of the evidence used to make the decision.
18. WCB communicates decisions to both the worker and the employer and records the information in the appropriate WCB file(s).

Reconsiderations

19. WCB may reconsider previous decisions at the request of the customer or by its own initiative (Reconsiderations and Appeals section in the Policy and Procedure Manual will apply).