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By Richard J. Tingley
General Counsel
Workplace Health, Safety & Compensation Commission of New Brunswick
Timothy Wahlin
Staff Counsel
Workforce Safety & Insurance, North Dakota
People have always migrated in search of work and opportunity, but never before have employers, professionals and workers been as mobile as they are in today's global economy. Greater mobility across national, state and provincial boundaries creates a need not only for more information sharing among workers' compensation professionals, but a need for wider public awareness of the legal and administrative structures comprising workers' compensation systems across North America.
At the 2004 annual planning meeting, AASCIF's Law Committee discussed the lack of readily available information on member jurisdictions' adjudication and appeals procedures. This article takes a first step toward meeting that need by focusing on one specific area—the appeals process in Canadian jurisdictions.
Though it is only a starting point for raising awareness of adjudicative structures and processes among AASCIF's member states and Canadian provinces, we hope that the information provided here will be useful in itself, but more importantly will lead to further contributions from other member states, so the project can eventually encompass the full range of member jurisdictions. This collective information could then be made available on the AASCIF website and become a valuable communication tool for reaching wider audiences.
Canadian overview
Workers' compensation boards in all Canadian provinces and territories have both informal mechanisms and formal, legislatively enacted appeal bodies that review claims decisions and, in some jurisdictions, employer assessments. In all jurisdictions, the boards provide assistance or advocates to injured workers or other directly affected parties appealing a decision.
Over the past 20 years, there has been a shift in appellate structures away from the predominance of internal bodies operating as units within boards, and a movement toward a two-level structure in which an external appeals body operates in addition to, and independently of, the compensation board. At present, all but two of Canada's 12 jurisdictions have two levels of appeal.
Internal and external levels
A worker, employer or any party directly affected by a compensation board's decision can appeal or request a review of that decision.
When this happens, the first level of review or appeal is internal. It involves a reconsideration of the decision by the board's staff, some of whom may function as a review body specializing in reconsiderations.
This internal review process may consist of more than one step. In Alberta and Ontario, for example, the first step in the appeals process is collaborative mediation with the original adjudicator or case manager. If the issues are unresolved there, the next step at the internal level is an appeal to an Internal Review body, which is operationally responsible to the board. In all provinces and territories, internal review bodies normally:
•Prohibit initial adjudicator or physician from being a member.
•Review original adjudicator's findings.
•Receive representations from all interested parties.
•Can vary, confirm or reverse any decision.
Issues that cannot be resolved internally go to the next level of appeal—that is, to an external or separate appeal body whose decisions are final and binding.
An external appeal body operates independently of the compensation board: It is operationally independent and its members are not employed by the board. External appeal bodies normally do not hear an appeal until the internal reconsideration process is completed, and most do not admit new evidence. Where appellants offer new evidence, the case goes back to the compensation board's adjudicators or to internal review bodies for further consideration.
External appeal bodies are the final level of appeal in all Canadian jurisdictions except New Brunswick and Saskatchewan.
Exceptions to the model
Those two jurisdictions' appellate structures depart from the two-level norm.
Saskatchewan has a two-step internal appeal process plus an external Medical Review Panel whose decisions apply only to bona-fide medical questions. The internal process involves a first level of review by appeals officers who specialize in reviews and have authority to overturn any operational decision. The second and final level of appeal is directly to members of the board of directors who sit as a review panel.
New Brunswick has one level of appeal only: an internal, formally enacted Appeals Tribunal which is operationally responsible to the WHSCC board of directors, but acts much like an external body in maintaining an arms-length relationship with the rest of the Commission. In New Brunswick and Saskatchewan, decisions made at the 'internal' level are binding, since this is the final level of appeal.
Involvement of courts
In all Canadian provinces and territories, the judicial system—courts of general jurisdiction such as a provincial Court of Appeal—can be appealed to only on questions of law and jurisdiction, or where "natural justice" has not been followed.
Since workers' compensation laws in Canada give the boards and commissions exclusive jurisdiction in matters pertaining to their statutes, the courts defer to them. The extent of that deference, however, depends on the "standard of review" applicable to the case before the court, and this standard of review is consistent across Canada.
On questions of law, the standard is "correctness": A commission or appeals tribunal must have been correct in its interpretation of the law (the court, in effect, says to the board, "You got it right!").
On questions of "mixed fact and law" the standard is "reasonableness simpliciter": Whether or not the court would have reached the same decision, it decides whether the board had good evidence and reasons to reach its conclusions ("We may not have reached the same conclusion, but we can understand how you got there!").
On questions of "pure fact" the standard is "patent unreasonableness": A board or commission must have had some evidence to reach its conclusion, or a court may overturn its decision ("Are you out of your mind in coming to that answer?").
Next step: website resource
This article is simply a first step. What's envisioned is a larger AASCIF website project that would provide links to each member jurisdiction's adjudicative and appeal procedures. The website project would serve not only as an overview but also as a readily available tool and point of accessto the maze of legal procedures existing among member jurisdictions.
To complete this endeavor and ensure that your jurisdiction's legal process is accurately included, the Law Committee seeks your help. Tim Wahlin of WSI North Dakota and Richard Tingley of WHSCC New Brunswick have volunteered to assemble summaries and flowcharts as they are provided. Please feel free to contact them directly, or meet them in person at the AASCIF Law Committee fall conference Oct. 6-8 in sunny San Diego.
The authors thank and recognize the contribution of Jill Graham, Ph.D., of WHSCC-NB's Planning and Policy Department. Richard Tingley can be reached at TingleyR@whscc.nb.ca or (506) 6322801. Timothy Wahlin can be reached at twahlin@wcb.state.nd.us or (701)328-7201.
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