The Workplace Safety and Insurance Appeals Tribunal (WSIAT) has provided a number of proposed changes regarding their pre-hearing processes in order to reduce delays. The Injured Workers Community Legal Clinic made a submission to the consultation, which can be reviewed here.
In short, the proposed changes are problematic because they will make the process more challenging to navigate for injured workers and/or their representatives. We urged WSIAT to consider changes that simplify the process and help the system to serve the interests of injured workers.
Proposed Changes to the Notice of Appeal (NOA) Form
The Injured Workers Community Legal Clinic has always opposed time limits in workers’ compensation claims. They create an additional layer of bureaucracy that delays decision making and can result in claims being denied without consideration of the merits. The proposed changes to the Notice of Appeal (NOA) form do not address time limits (an injured worker has to submit the NOA to the Tribunal within 6 months of the final decision at the Workplace Safety and Insurance Board (WSIB) ). In fact, the proposed NOA is more comprehensive than the current NOA form, and therefore, will take significantly more time to complete. This is another reason why the government should get rid of time limits.
The proposed option in the NOA form allowing parties to indicate their preference for hearing format makes sense. The hearing format selected by the injured worker should generally be confirmed by the Tribunal. It’s important to respect the injured worker’s decision regarding the hearing format because hearings at the WSIB are increasingly done in writing, despite injured workers’ request for oral hearings. Since the Tribunal is the final level of appeal for worker’s compensation claims, it is reasonable that the Tribunal respects the hearing format preference of the injured worker.
Recommendations: 1. The 6 month timeframe to submit the NOA should be eliminated; and 2. The hearing format requested by injured workers should generally be confirmed by the Tribunal.
Proposed Consent Form
The Tribunal has proposed the creation of a new Consent Form in order to release files to respondent parties. Completing the new Consent Form after receiving the case record will provide injured workers the opportunity to review the case materials before they are sent to any respondents. This will reduce sensitive information from being released to respondents.
We strongly disagree with the proposed four-week time limit to complete the consent form. Claims can range from hundreds to thousands of pages, preventing the injured worker and/or their legal representative from thoroughly reviewing the file. The four-week time limit is insufficient and will likely lead to fewer legal representatives accepting clients due to the time crunch.
We strongly disagree with the proposal that the Tribunal may close the appeal if the worker doesn’t return the consent form within 4 weeks. The possibility of closing the claim if the consent form is not submitted is excessive and unreasonable.
Recommendations: 1. There must be ongoing consent requirements, as new information regularly comes to file; 2. The four-week time limit to complete the consent form should be extended to 12 weeks; and 3. The proposal to close the appeal if the consent form is not completed in the prescribed amount of time should be eliminated.
Proposed Hearing Ready Form
Our concerns about the Hearing Ready form are similar to our concerns about the Consent Form. Four weeks is simply not enough time to complete this form and produce everything that is required. A tight timeframe will create unintended consequences: 1. Representatives will refuse to accept new clients because of limited time, causing more and more workers to self-represent or the workers will continue to search for a new legal representative, which often takes many months – this defeats the purpose of the proposal to reduce delays; 2. A significant number of representatives will have to write to the Tribunal requesting more time to complete the Hearing Ready form – this will cause a backlog of appeals with inactive status – again, defeating the purpose of the four-week proposal; and 3. If the WSIB rejects the request for inactive status, the result will be lower quality submissions made by injured workers or their representatives.
We strongly disagree with the proposal that the Tribunal will close the appeal because the Hearing Ready form was not submitted within the four week period. This penalty is unreasonable and excessive.
Recommendation: The proposed Hearing Ready form should be withdrawn. In its place, the Tribunal should develop a simple and straightforward form that is worker-friendly.
Currently, evidence must be disclosed to the Tribunal and to the other parties no later than three weeks before the hearing date. The Tribunal has proposed that evidence must be produced simultaneously with a Hearing Ready form, 4 weeks after receiving the Issues on Appeal letter.
This is very concerning. Reviewing and gathering information takes a significant amount of time. Moreover, there is no need to submit evidence, submissions, witness information/statements, and case law at the same time. This is not how things are done now and there is no need to modify what appears to be working. Furthermore, anything beyond that 4-week period would be considered late – and would have to be handled as a preliminary matter in the hearing. This 4-week time crunch does not make sense, as the hearing date would not yet be scheduled, meaning that the evidence would have to be produced months before a hearing date.
Recommendation: 1. Disclosure should continue to be tied to the hearing date. The three-week rule should be maintained.
Organized labour has requested that the Tribunal summarize the reports and that the consultations remain ongoing considering the nature of the proposed changes. Check back here for future updates.