Workers Compensation: Navigating the New WSIB Appeals System (Webcast Only)

Transcription

1 Workers Compensation: Navigating the New WSIB Appeals System (Webcast Only) Date: Friday, March 1, 2013 Location: Your Office Agenda: Agenda: 12:00 pm 1:30 pm Program followed by Q & A period Slavica Todorovic, Executive Director, WSIB Appeals Services Division Karen Wuori, Manager, WSIB Appeals Services Division Michael Zacks, Director, Office of the Employer Adviser Alec Farquhar, Director, Office of the Worker Adviser

2 WSIB S MODERNIZED APPEALS PROCESS Ontario Bar Association Webinar Presentation S. Todorovic, Executive Director, Appeals Services Division K. Wuori, Manager, Appeals Services Division March 1, Table of Contents Highlights of Modernized Appeals Process 3 Operations Intake Team (OIT) 4 Key Forms 5 Hearing in Writing vs. Oral Hearing 6 Important New Timelines in the Appeals Process 7 Downside Risk 8 Reconsideration of an ARO Decision 9 Plan for Transition Cases 10 Why Parties Need to be Appeal Ready 11 How to be Appeal Ready Appeals Information on WSIB Website

3 Highlights of Modernized Appeals Process Renewed adherence to legislated requirement for workplace parties to object (30 calendar days for return to work objections and 6 months for all other objections) Improved forms to assist with objection process Opportunity for faster reconsideration of initial decision by Operations, or immediate access to file record information. This can be requested at any time prior to referral to Appeals Services Division. Case to proceed to Appeals Services Division only when the party submits new Appeal Readiness Form (ARF) NO TIME LIMIT TO SUBMIT ARF to encourage parties to ensure they have resolved all issues at the Operations level, or obtain all relevant information in support of their appeal Oral hearings will be retained for more complex appeals Greater timeliness in resolving appeal-ready cases 3 Operations Intake Team (OIT) OIT s main focus will be to review ARFs to ensure that cases are ready to be referred to Appeals Services Division They will also identify specific cases where there is significant new information requiring a reconsideration and will ensure that the reconsideration, where warranted, is completed in a timely manner Only the OIT managers have the power to reconsider decisions The OIT staff will not be reconsidering decisions 4 2

4 Key Forms Intent to Object Form NEW - Available on website/can be mailed/assistance available to complete form - Reviewed by Operations staff Participant Form - Mailed to responding party by WSIB once Intent to Object Form received from objecting party - No change to this form Appeal Readiness Form NEW - Mailed with copy of file to objecting party - Reviewed by OIT staff first, then Appeals staff case referred to Appeals Services Division - SIGNATURE OF AUTHORIZED REPRESENTATIVE SUFFICIENT (No longer mandatory to obtain worker or employer signature) Respondent Form NEW - Mailed to responding party when copy of file (access to record) provided - Reviewed by Appeals staff 5 Hearing in Writing vs. Oral Hearings Oral hearings will not be granted simply because objecting party requests it List has been developed which identifies which cases would generally require oral hearing vs. hearing in writing (See Table A and Table B on pg. 14 of Appeals Services Division Practice and Procedures document) Appeals Manager will make determination if oral hearing warranted, having regard for list and the detailed information provided by objecting party and respondent on ARF and Respondent Form Important that parties indicate why an oral hearing is necessary not helpful to simply reference that a case is found on the B list. For appeals on the hearing in writing list an oral hearing will not be granted unless the party establishes that there are exceptional circumstances 6 3

5 Important New Timelines in the Appeals Process Workplace Parties 30 calendar days/6 months to return Intent to Object Form No time limit to return ARF No time limit to return Participant Form, but if not on file when ARF returned, there will be no further contact with the participating party 30 calendar days to return Respondent Form Need to be available for an oral hearing within 90 calendar days of notice that oral hearing warranted Appeals Services Division ARO decision within 30 calendar days from date of assignment to ARO Oral hearing within 90 calendar days, if oral hearing warranted If oral hearing denied, workplace parties will have further 21 calendar days from date of letter to submit additional information (Optional) Note: 21 day clock will not stop if there is a request for a reconsideration of decision that oral hearing not warranted ARO decision within 30 calendar days following date of oral hearing 7 Downside Risk Continue to maintain historic approach: ARO identifies downside risk in issue under appeal and/or related issue(s) Notifies party/representative of downside risk (verbally) Opportunity to withdraw appeal or proceed If party chooses to proceed, 21 calendar days to provide submission on downside risk issue(s) 8 4

6 Reconsideration of an ARO Decision Standard of Review for Reconsideration Sbt Substantive ti defect df tin the decision ii or the decision-making ii process that may reasonably affect the outcome Failure to properly apply the Act or approved WSIB policy Significant new evidence that did not exist at the time the ARO decision was made, and that is relevant to the issue(s) under appeal A typographical error that impacts the decision 9 Plan for Transition Cases Two mailings of approx. 5,000 cases (1 st in early January; 2 nd in March, 2013) Parties have 90 calendar days to complete and return Transition Appeal Readiness Form to retain their place in the appeals queue If transition ARF not received in 90 calendar days, case will be withdrawn without prejudice, but parties can resubmit regular ARF by contacting Operations staff Parties can return 60 Day Option Form (but will be accepted only up to March 29, 2013) 10 5

7 Why Parties Need to be Appeal Ready Workplace parties have as much time as they need to submit the ARF (once statutory time limit to object met) This unlimited time allows them to obtain ALL relevant information and/or provide written submission in support of appeal The focus of AROs will be on making timely and well reasoned decisions Less opportunity to have discussions with AROs about gaps in information or weaknesses in your case Once appeals process begins, fairly quick timelines 11 How to be Appeal Ready If you are the objecting party: Ensure before you complete ARF that all issues have been fully considered by decision-makers in Operations Include all information related to appeal either on, or attached to, ARF including medical reports, job descriptions, continuity statements, clear and detailed accident history, earnings information, etc. If information set out above is not on file, include in your submission If you know there are gaps/inconsistencies in your case, explain those in your submission (Make your argument in support of the appeal) Clearly identify on ARF, the decision letter under appeal and issues within that decision letter that you are objecting to (Won t be able to add issues later) 12 6

8 How to be Appeal Ready (con t) If you are the responding party: Complete and return the Participant Form When you receive a copy of the ARF, this is a heads-up that you will be getting a copy of the file and a Respondent From you may wish to begin to think about getting ready to participate Complete and return the Respondent Form within 30 calendar days Clearly identify on the Respondent Form, your views of the case and provide any additional information in support of your position/argument Remember that you won t be able to add issues later or at time of an oral hearing, or submit a Respondent Form late in the process 13 Appeals Information on WSIB Website Appeals Services Division Practice and Procedures (P&P) Document Summary Chart of Key Changes in the P&P Document Frequently Asked Questions Consultation Summary Report (Summary stakeholder feedback and WSIB response to the feedback) Consultation Report (Proposal for modernizing the appeals process) 14 7

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10 Workers Compensation: Navigating the New WSIB Appeals System Ontario Bar Association March 1, 2013 Michael Zacks, Director, Office of the Employer Adviser Alec Farquhar, Director, Office of the Worker Adviser v4 Practice & Procedures Doc pdf Read it Lots of changes and response time limits Fleshes out the new process 2 1

11 Strategic Approach How do I use each step to best advance client s interest You must understand your case and the opposing position fully even if other party doesn t participate Make the best case you can at the earliest stage WSIB is opening up important opportunities for operating level reconsideration 3 Intent to Object Form (ITOF) ITOF available online or by mail from WSIB (on request) Ensure Direction of Authorization form on file with WSIB If possible representative complete and submit ITOF Given short appeal time limits always fax in forms keep proof of fax transmittal Must be a complete form (p 3) What if all info not available, typo in claim #, or a date is left off? Will WSIB reject form? Does clock stop or continue running if form incomplete? 4 2

12 Use of Objection Letter An objection letter does not stop the time clock from running Whether you intend to challenge the decision through reconsideration process or to take matter ultimately to appeals branch, you must submit ITOF There is no time limit on submitting Appeal Readiness Form (ARF). However, you should ARF promptly Delay may create risks for the client and liability issues for the representative 5 Appeal Time Limits You must have a tickler system in place! See the Law Society's Time Management Practice Management Guideline 7.6 Centralized Tickler or Reminder Systems Lawyers should assume or assign, usually to their secretaries or administrative assistants, responsibility for diarising key dates in time management systems ensuring compliance with deadlines. Ultimate responsibility for meeting deadlines and limitation periods rests with lawyers. Lawyers should conduct periodic, usually monthly, reviews of all open client files to ensure that work on all files is being completed in a timely and cost-effective manner. 6 3

13 Statutory Appeal Time Limits S days for RTW / LMR (WR / WT) / Re-employment 6 months everything else WSIB uses regular mail for decision letters From time decision letter generated to receipt could be 3 4 days, then more time before it s opened and read If you are in-house rep ensure WSIB correspondence comes to you asap important in later stages with short response times 7 Transition Time Limits Pre Feb 1, all decision i time limits it 1 year per P&P 2010 Post Feb 1 decisions - time limits per s. 120 Time limits on decisions between March 1, 2012 and March 1, 2013 subject to new time limit rules Time extensions may be considered based on the case If statutory time period expired then highlight this on ITOF and ask for extension based on legitimate expectation that procedural rules would be applied 8 4

14 So you missed a time limit, eh! WSIB may extend time limit on narrow grounds Out of country / province because of illness / death of party / family member Mental incapacity affecting ability to understand the time limits Prior issue appealed in time inextricably linked to subsequent out of time issue (p 5) No time limit to appeal denial of extension to ARO Can appeal ARO decision to WSIAT All decisions subject to merits and justice 9 Participation Form (PF) Submit ASAP If worker submits ARF quickly appeal can be registered in ASD and set for hearing within 90 days with no notice to respondent (p 4) less time to make submissions for written hearing and hearing date may be fixed for oral hearing (p 9) 10 5

15 Method of Resolution Strategic considerations necessary when a party wants an oral hearing for a column A issue Decision on oral hearing will be made by Appeals Manager. Advocate must submit a compelling argument for an oral hearing Need exceptional circumstances Conflicting / inconsistent information Multiple issues Complex fact situations Resolution of appeal dependent on credibility assessed in person ie. crossquestioning or direct testimony by party or witness 11 Written Hearing ARF / RRF only opportunity to persuade ARO Respondent has 30 days to submit RRF Additional 21 days if party wanted oral hearing and got written Appellant may get a 14 day rebuttal period if Appeals Administrator (AA) thinks RRF contains significant new evidence or argument Significant not defined Parties should exchange submissions replies 12 6

16 Written Submission This is your only opportunity to persuade Except if AA provides an additional 14 days reply to appellant Know your case / opponent s case Your strengths / weaknesses (don t ignore them) Address your weaknesses / opponents strengths openly and candidly Objectively asses case from the opposing point itof view Use clear language no legal jargon 13 Clarity & Precision At that point in time = then By means of = because By virtue of = by By reason of = because Despite the fact that = although For the purpose of = to For the reason that = because In accordance with = by In connection with = about In terms of = in In the event that = if He was aware of the fact that = he knew On the basis of = by Despite the fact that = although Because of the fact that = because In some instances = sometimes In many cases = often Subsequent to = after With a view to = to With reference to = about With respect to = about 14 7

17 Written Submission Documents Include referenced WSIAT and ARO appeal decisions WSIB policy being relied on Highlight passages in policy, decisions and all other documents being relied on make it as easy as possible for ARO to follow your arguments Do you use witness statements / affidavits to support submissions? Risk of use by opponent at WSIAT? 15 Downside Risk (DSR) Rep must consider downside risk in taking appeal forward Failure to do so a potential liability issue Clearly explain the risk and consequences to client and confirm in writing If ARO identifies a DSR only remedy is to withdraw appeal If proceed in face of a DSR get 21 days to respond If withdraw no right to appeal to WSIAT 16 8

18 Downside Risk. Withdrawn cases can re-enter appeal stream in 30 days with new ARF Delay concerns 17 Scenario A Scenario B Two issues in appeal Ongoing entitlement / suitability NEL ARO identifies NEL DSR Can appellant withdraw NEL issue and proceed on the work suitability issue? Two issues raised by appellant New DSR issue raised by ARO SIEF Can appellant withdraw the SIEF issue and proceed on the other two? 18 9

19 Oral Hearings: Is there a 14 day rule? Post ARF / RRF registered in ASD - documents only accepted if reasonably not available pre- ARF / RRF Best practice send copies of these documents to other side Medical reports accepted only if available post ARF / RRF within 14 days of hearing date Report should be provided to other side as soon as received by party to avoid hearing delay and minimize prejudice WSIB policies, WSIAT decisions, published ARO decisions Provide to ASD and to other side at least 14 days prior to hearing (p 36) 19 Reconsiderations Two year time limit (p 43) Two stage process similar to WSIAT Criteria Substantive defect Misapplication of Act / WSIB policy Significant new evidence that did not exist at time of hearing Typo that impacts decision Consider whether to seek reconsideration or WSIAT appeal? 20 10

20 Discuss issues with opponent Where opposing reps, consider discussing issues in dispute to narrow argument Method of resolution oral / written Facts that can be agreed to Policy issues that are not in dispute Can then focus written argument on what is in dispute 21 Professional responsibility issues The advocate has a duty to the court or tribunal to ensure the effective administration of justice Worker and employer advocates share a responsibility with the WSIB to get through this very challenging transition effectively Must deal with the current appeals backlog and the new incoming cases It s a shared problem Provide quality material / submissions to WSIB at the earliest possible time, to facilitate decision making 22 11

21 Professional responsibility Advocates also have the duty to communicate with opposing counsel to ensure the best possible approach to dispute resolution Includes narrowing the issue agenda, agreeing on key facts, and resort to alternative dispute resolution 23 Professional responsibility Some advocates are interested in batching cases to resolve numerous cases in one process. When representing more than one client in such a process (e.g. 3 workers for the same employer) the advocate has the duty not to sacrifice the interests of one client to those of another. Potential conflict of interest needs to be identified under appropriate p circumstances

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