The right to a fair and speedy hearing
Injured worker appeals and wait times have greatly increased with the rise in claims denials that followed changes in benefit policies and decisionmaking practice. Recent changes to the appeals process at the Board have added complexity, stress and delay. By mid-2016 the appeals “mountain” or backlog at the Tribunal is approx. 9,000 cases, wait times to get a hearing date have more than doubled, and the availability of alternative dispute resolution remains limited.
- WSIAT active appeals: 9,300 (2016) – 3,927 (2009)
- % resolved at Tribunal within 9 months: 15% (2016) – 56% (2009)
- Average time to be offered first hearing at WSIAT: 18.5 months (2016) – 6 months (2009)
In the current adversarial environment, both the Board and employers are more and more aggressively challenging claims and using private investigators to provide surveillance “evidence” of dubious value.
Current problems with appeals practice and delays threaten:
- access to justice
- access to critical financial and rehabilitation benefits and services
- injured workers’ mental and physical well-being
The current appeal structure
Most decisions can be appealed to the WSIB’s internal Appeal Services Division. If the injured worker or employer disagrees with the decision of the Appeal Services Division, that decision in turn can be appealed to an independent review body, the Workplace Safety and Insurance Appeals Tribunal (WSIAT, formerly the Workers’ Compensation Appeals Tribunal). That is the final level of appeal, although the WSIAT can reconsider its own decisions. The Ontario Ombudsman can also request a reconsideration. The Supreme Court of Ontario can judicially review a decision of the WSIAT on very limited legal grounds. Though rare, the Supreme Court of Canada has ruled on issues of jurisdiction and constitutionality – such as the 2003 chronic pain appeal decision (Nova Scotia (Workers’ Compensation Bard) v Martin & Laseur).
- Mojtehedzadeh, Sara. 2016, Apr. 6. “Fair Appeals for Injured Workers Under Threat, Experts Warn” (Toronto Star)
- WSIB. “Worker Appeals”. Toronto: The Board (includes Condensed Guide to new appeals process)
- Bright Lights and Injured Workers Consultants. 2013, Feb. 26 [wpfilebase tag=fileurl path=’law-and-policy-submissions/Ltr_BL_20130226_Appeals.pdf’ linktext=’Submission re Injured Worker Response to New Appeal Changes‘ /]. Toronto: IWC. (* text version)
- Newhouse, Gary. 2012, Sep. 25 [wpfilebase tag=fileurl path=’law-and-policy-submissions/Subm_GN_20120925_Appeals.pdf’ linktext=’Submission re Proposed Changes to the Appeals Program.’ /] Toronto
- Tamil Speaking Injured Workers Group. 2012, Sep. 5 [wpfilebase tag=fileurl path=’law-and-policy-submissions/Subm_TIW_20121005_Appeals.pdf’ linktext=’Submissions to the WSIB & Minister of Labour on appeals changes ‘ /]. Toronto: The Group