Area of Law: Workers' Compensation
Answer # 636
Appealing a Workplace Safety and Insurance Board decisionRegion: Ontario Answer # 636
If your claim for insurance benefits is denied by the Workplace Safety and Insurance Board (WSIB), or you do not agree with other aspects of the decision, you can appeal the decision. Employers also have the right to appeal. Appeals are made to the Workplace Safety and Appeals Tribunal, and most are handled by a lawyer or other representative, especially if they involve a hearing. Employees can get good advice from the Office of the Worker Adviser, legal clinics and other specialized service providers.
There are two different appeal deadlines depending on the type of decision being appealed.
- If you want to appeal a decision about your reemployment rights and return to work issues, the deadline to start an appeal is 30 days from the date of the decision.
- All other decisions regarding eligibility or benefit amounts must be appealed within six months of the decision. The employer and worker will each be notified of the appeal deadline from the WSIB when an entitlement decision is made.
Appeal to WSIB
Appeals to the WSIB usually involve the following four steps.
1. Speak with, or write a letter to, the WSIB decision-maker
The WSIB decision-maker will inform you of an adverse decision by writing (and if possible, will speak with you). If you receive a decision from the WSIB that you do not agree with, you may begin by informing the decision-maker that you object. You will be known as the objecting party. The decision-maker will give you an opportunity to provide additional information. In order to avoid the time and effort of a formal review, it is a good idea to try and resolve the issue with the WSIB decision-maker. In most cases, it is advisable to do this in writing. You or your representative can write a letter, stating why you disagree with the decision. If you have new, or additional information that you think will help your case, you should provide this in the letter. The letter should also contain basic information, such as your name and file number. The decision-maker will review the matter and may change the decision based on the new information you have provided, or if a mistake has been made.
2. File an Intent to Object form
If the decision is not changed, you may proceed by filing an Intent to Object form. It is important to file this form within the time-frame provided in the Workplace Safety and Insurance Act. Once the objection is filed, the original WSIB decision-maker will review it. This reconsider stage can take 14 days or longer.
3. File an Appeal Readiness form
If the decision-maker does not change the original decision, a reconsideration letter will be sent to you and your file will be sent to the Access Department of the WSIB. At this point, the Access Department will provide you with access to your file, and an Appeal Readiness form. There is no specified time-limit for submitting this form.
After you complete and submit the Appeal Readiness form, the Objection Intake Team (OIT) of the WSIB will review it for completeness. If they determine that the appeal is ready to continue, the OIT will complete an Appeals Referral form and will send the file to the WSIB Appeals Services Division (ASD).
4. Attend a hearing held by the WSIB
Both you and the participating party (respondent) will be sent a letter stating that the matter has been referred to the ASD. Alternative dispute resolution methods such as mediation may be used before a conflict reaches the appeals stage. However, if alternative resolution methods do not work, once a dispute reaches the appeals stage, a hearing will be held by the ASD. Hearings may be conducted orally or in writing.
A hearing is more formal and is conducted by an Appeals Resolution Officer (ARO) who will hear all sides of an issue and make a decision.
Hearing in writing: A hearing in writing is based on a review of the claim file documents and submissions. A hearing in writing is generally used to resolve simpler issues. If a hearing takes place in writing, the ARO usually makes its decision within 30 days.
Oral hearing: In an oral hearing, the participants in an appeal appear in person at a WSIB office. Participants may include the worker, any witnesses, and the employer if they are participating. Oral hearings are generally used to resolve more complex disputes. If the WSIB agrees to an oral hearing, it usually occurs within 90 days of their decision. The ARO usually makes a decision within 30 days from the date the hearing is complete.
Appeal cases that deal with larger employers, and usually with unions, are sometimes dealt with through Special Alternative Dispute Resolution (ADR) projects. Each project is unique and is developed in consultation with the employer and union and is based on their specific needs. In some cases, if ADR does not work, the WSIB will hold a hearing.
If the WSIB does not change the original decision, as an employer or employee, you have a right to appeal to the Workplace Safety and Appeals Tribunal.
Appeal to Workplace Safety and Appeals Tribunal
The Appeals Tribunal is a separate and independent institution, and acts like a court. An appeal to the Tribunal must be made within six months of the WSIB’s final decision.
In some cases, the Tribunal may first use mediation to resolve appeals, but only if all parties consent to the mediation and the Tribunal agrees it is a suitable option. Mediation may be used as an alternative to a hearing, or in addition to one.
A hearing may still occur if an agreement cannot be reached between the parties, or if there are outstanding issues. A hearing before the Tribunal may be conducted orally or in writing. The issues considered by the Tribunal, as well as the procedural requirements can be complicated, and people are advised to hire a lawyer who specializes in WSIB Issues, or a compensation expert when going before the Tribunal. The Tribunal’s decision is final and binding.
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