Document name

Decision Making

Document number

PRO 02/2019

POL 02/2019, Decision Making, establishes the basis on which decisions are made pursuant to The Workers’ Compensation Act, 2013 (the “Act”) ”), The Workers’ Compensation General Regulations, 1985 and The Workers’ Compensation Miscellaneous Regulations.

1. All decisions made by the WCB under the Act and Regulations are made by staff whose positions are assigned or delegated that function.
2. To make a decision, WCB staff will:
   1. Identify the issue to be decided.
   2. Collect information from all parties.
   3. Consider relevant evidence.
   4. Make the decision.
   5. Clearly communicate timely decision and reasons.

Collecting Information

3. 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.
4. Staff must collect all evidence that is relevant to prove or disprove an issue under inquiry. This includes collecting information needed to address and decide all issues pertaining to injury claims or employer accounts.
   1. For injury claims, evidence may include injury reports, witness reports, medical information, and accepted medical opinion, as well as any other facts relevant to the injury.
   2. For employer account issues, evidence may include payroll records, contractor information, industrial undertaking descriptions, as well as any other facts relevant to the employer’s operations.
5. Staff will determine whether a reasonable decision can be made based on the evidence on file or whether further information is required before making a decision. If the information received on the required reports is not sufficient to make a decision (e.g., gap in information exists), WCB staff will collect additional information relevant to the claim.

Considering Evidence

6. Staff will evaluate and consider the evidence to establish the facts of the case. This involves making judgments about the evidence, such as (but not limited to):
   1. Relevance.
      1. Information is considered relevant evidence if it pertains to the issue under review. Relevant evidence helps prove or disprove a fact essential to the decision.
   2. Credibility.
      1. Staff will determine if the information is accurate and describes the event or situation with certainty. Credibility is highly subjective and must be considered in the context of all the evidence.
      2. Staff will consider conflicting or contradictory evidence to determine whether it directs more toward one conclusion than another. When faced with contradictory evidence, staff will assess the credibility of individuals, statements or documents.
      3. When addressing conflicting medical evidence for the worker’s injury or disease, staff may consult with a WCB Medical Officer.
   3. Quality.
      1. In the process of considering the quality of information, staff will make determinations that can be objectively concluded from the evidence (i.e., on the significance and strength of the evidence which outweighs the evidence on the other side).
      2. For example, direct evidence such as first-hand accounts of events will be considered more significant than circumstantial or indirect evidence such as speculative possibilities or hearsay.

Making Decisions

7. After considering the evidence, staff will:
   1. Determine and identify applicable WCB policies or provisions of the Act.
   2. Determine each matter according to the merits and justice of the case under the rules of natural justice.
   3. Based on all the facts, determine if a fact is proven to be more likely than not (i.e., more evidence for the fact than against).
8. Staff must make decisions according to the evidence or lack of evidence received and not on unsupported information or speculation.
9. If there is any doubt in a decision because the evidence on both sides is approximately equal (i.e., the evidence equally support two possible conclusions), the benefit of doubt goes to the injured worker or the dependant(s) of a deceased worker. If the issue is 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.

Exceptional Circumstances

10. When making decisions, staff are required to follow WCB policies which are applicable to the case. However, 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 circumstance, or
    3. Application of the policy would lead to an unintended or unreasonable result that the Act or WCB never intended.
11. If staff determine that no policy exists that is applicable to the facts of the case or if an existing policy does not sufficiently cover the particular circumstances, staff will decide the case on its particular facts, in accordance with the general intent of the Act.
    1. In all cases, staff must clearly identify the exceptional circumstances and explain why policy is not applicable.
    2. A director, team leader, manager or supervisor (at least one authority level above the original decision maker) will review and confirm any decisions that involve a different approach from policy or that demonstrate an absence of policy direction for that circumstance. This review and confirmation will be documented in the appropriate file.
    3. This decision will be considered for that specific case only and will not be precedent setting.
    4. The original staff member will be considered the decision maker in this case.
    5. Corporate Policy will review these decisions to determine if WCB policies and procedures remain current and effective. In some situations, Corporate Policy may request formal direction from the Board Members to determine if existing policies require revision or whether a new policy may be required.
12. If a decision challenges the validity or legality of a policy (i.e., the decision maker considers the policy to be in conflict with the Act or interprets the policy in a different way than intended):
    1. Staff must clearly explain the rationale and outline the information used to make the decision.
    2. A team leader, manager or supervisor (at least one authority level above the original decision maker) will review and confirm any decisions that challenge the validity or legality of a policy. This review and confirmation will be documented in the appropriate file.
    3. This decision will be considered for that specific case only and will not be precedent setting.
    4. The original staff member will be considered the decision maker in this case.
    5. Corporate Policy will monitor these decisions and will forward copies to the Board Members.
    6. Through its governance role, the Board Members will review the decisions that challenge the validity of a policy and 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.

Communicating Decisions and Reasons

13. WCB staff will document all decisions made and communications with customers in the appropriate files. The documentation will provide a clear record of developments in worker and employer account files with respect to decisions made (e.g., entitlements, adjustments, agreements, decisions, etc.).
14. Detailed written explanations to customers will contain the following elements:
    1. An outline of the issue under consideration.
    2. The decision made and its impact.
    3. The reason for the decision, including if it was based on benefit of doubt (i.e., evidence on both sides was equal and therefore benefit of doubt decided the issue in favour of the worker).
    4. The evidence that was considered on both sides of the issue, including, but not limited to:
    5. The significance given to the evidence.
    6. Any objections that were raised.
    7. Any investigations that were required in order to resolve the issue.
    8. Reference to any WCB policies or sections of the Act applicable to the issue.
    9. In special circumstances, an explanation of why the relevant policy is not applicable. The explanation must show that the decision is balanced and fair and that staff considered the relevant provisions of the Act.
15. Staff will ensure that all verbal and written decisions affecting workers and employers are understood. However, a customer can request to have a decision reviewed and reconsidered (Reconsiderations and Appeals section in the Policy and Procedure Manual will apply).