Appealing your WorkSafeBC claim: Levels of Appeal

If you get a WorkSafeBC decision about your claim that you disagree with, you can appeal it to try to get that decision changed.

You get more than one chance to appeal your decision. Every time you appeal the decision, though, you have to go to a different group of decision-makers or “level” in the workers compensation system.  This blog describes these different decision-makers and provides you with some advice on each.

 

First level: WorkSafeBC or “the Board”

The first decision-maker that will make a decision on your claim is in a part of WorkSafeBC that is not the Review Division.  These decisions are sometimes called “the Board level” decisions. Usually, these decisions are made by your case manager.  But, depending on how long your claim has been in the system, it could be someone else, like a “vocational rehabilitation consultant” or a “disability awards officer.”

The most important thing you can do at this level is read and understand the decision right away.  You absolutely need to know what WorkSafeBC has decided and how it will impact you.  If the decision is bad for you and you decide to appeal it, you only have 90 days from the date of the decision to request an appeal to the Review Division.  Extensions of time for this 90-day deadline can be hard to get.

If you disagree with the first or “Board-level” decision, but still got some sort of benefit from it, it’s a good idea to talk to a lawyer before asking for an appeal. An example of this is if, say, you are awarded a 15% permanent disability award.  When you appeal a decision, the decision can be changed in a way that’s either bad or good for you.  In the case of the 15% permanent disability award, that award could go up or down.  A workers compensation lawyer will be able to give you a better idea of whether the first decision was correct, and what the odds of success might be if you appeal.

You can also call the decision-maker who made the decision to ask them to explain it to you. But, keep in mind, the decision-maker isn’t “on your side” or working for you as a lawyer would!  Unlike a lawyer, it is not his or her job to get you the most benefits possible under law and policy. The decision-maker could also have made a mistake without realizing it.

Going to the Review Division is not the only option to change a decision at the Board level.  If you think the decision-maker made an obvious mistake, you can also ask him or her to reconsider it within 75 days of the Board decision.  In rare cases, asking for a reconsideration can be faster than appealing the whole thing to the Review Division.  Remember, though, that the 90-day time limit to request a review at the Review Division is still ticking – even if you’ve asked for a reconsideration and haven’t gotten an answer back yet!  You don’t want the timer to go off on the deadline without getting that Request for Review form sent into the Review Division.

 

Second level: the Review Division

The second level of decision, or the first level of appeal, is the Review Division.

As I say above, you have to “request a review” of the Board decision within 90 days of the date on the Board letter. (You can ask for an extension of time, but these can be difficult to get.) To start the request for review, you can fill out a simple form online, called a Request for Review form or Form 63M1,  or fax it in.

The most important part of this first step is to get the Request for Review form in complete and on-time.  Don’t worry about providing all your reasons for why you think the decision is wrong.  Once the Review Division gets your Request for Review Form, and the Request for Review form is accepted and within the time limit, the Review Division will send you a letter with a deadline for you to send them your arguments on why the Board decision was wrong. That’s the time where you let the Review Division know all the reasons you think the Board decision is wrong, and what you’d like the Review Division to decide instead.  You can give the Review Division new evidence at this point, too, like a new medical note from a doctor or a witness statement from someone who saw or knows something that can help you.

The Review Officers who make the decisions are mostly lawyers, and they have much more time to make decisions generally than those who make the first decision at the Board level.  A Review Officer will look at the Board decision with fresh eyes. In other words, Review Officers won’t assume that the Board made the right decision; they’ll look at all the evidence on your file, and apply the policy and law that’s relevant to your case.

The Review Officer’s decision can do a number of things. The Review Officer can confirm or change or cancel the Board decision, or send the whole thing back to the Board to reconsider – with or without further instructions, like getting more medical information.

You can ask for your case to be heard in-person at an oral hearing, much like a court.  In these hearings, there are witnesses and the Review Officer sits as a sort of judge.  However, these oral hearings are very, very rare at the Review Division. Most of the time, the decisions are made based on the evidence on the file and the written arguments of the worker and/or employer.

When you’re writing your argument for the Review Division, it’s important to ask the Review Division for what you want and focus only on what the Review Division is looking for.  What is the Review Division looking for?  Only those facts that are connected to your injury and answers to the questions the Review Officer has to ask in order to figure out the amount of benefits law and policy says you’re supposed to get. So don’t attack the employer for being unfair or mean, or talk about what your employer did in the past.  Don’t ask for compensation for “pain and suffering” which, except for chronic pain, the Board can’t by law give you.

When a Review Officer makes a decision on your case, he or she will clearly set out the rules that the Review Officer thinks apply to the decision and the Review Officer’s reasons will be much more thorough than the decisions made at the Board level. This means that, even if you lose, the Review Division decision can be very useful because it tells you what you need to prove, and why, to win your case at the next level of appeal!

 

Third Level: Workers Compensation Appeals Tribunal or “WCAT”

The third level of decision, or second level of appeal, is WCAT.

You must complete a notice of appeal online or by a form within 30 days of the date of the Review Division decision. If it’s been more than 30 days, you can ask for an extension of time but these can be difficult to get.

Asking for an appeal at WCAT is a lot like asking for an appeal at the Review Division. Again, when WCAT gets your notice of appeal and approves it, WCAT will send you a deadline for you to submit your arguments about why the Board decision and/or Review Division was wrong.  Again, expect your adjudicators, called “Vice Chairs,” to be lawyers. Again, the decision-makers at WCAT have even more time to make a decision than those before them in the appeal process, i.e. the Review Division.

Oral hearings are much more common at WCAT than in the Review Division. Most decisions, though, are still made from the evidence on the file and written arguments only.

Your appeal to WCAT is basically your best and last shot at getting your Board decision on your benefits changed.  It’s very important that you give them any new evidence, like medical opinions or witness statements, that might be helpful for your case at WCAT. Because of this, we strongly recommend that you speak to a workers compensation lawyer as soon as you begin considering going to WCAT.

 

Fourth Level: Judicial Review 

The final level of appeal is taking the WCAT decision to the Supreme Court of British Columbia for a judicial review.  To be successful at this level of appeal, you will usually have to establish that the WCAT decision is not only incorrect but “unreasonable.”  This means that even if a judge would have made a different decision than the decision at WCAT, the judge won’t help you unless the judge thinks that the WCAT decision isn’t only wrong but outside the range of reasonable outcomes.  This is usually really hard to do.  Judicial reviews are also harder than appeals to the Review Division or WCAT because you can’t bring in any new evidence to court.

You should always consult a lawyer before appealing a WCAT decision to judicial review. We recommend trying a judicial review in only the most extraordinary of cases.  There are strict time limits for commencing a judicial review as well.

Other helpful articles on filing and appealing your WorkSafeBC claim:

Four Useful Tips for Managing your WCB Claim

Filing your WorkSafeBC claim

Workers Compensation Board (“WCB”) benefits available to injured

Appeal Decisions on your WCB Claim