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Two policy changes by Ontario WSIB, to traumatic and chronic policy application in adjudication of claims, and to appeals

The Workplace Safety and Insurance Board (WSIB) in Ontario, Canada, has announced two notable changes: to the traumatic and chronic policy application in the adjudication of workers’ compensation claims, and to its appeal procedures. In this post, we’ll cover both changes.

Traumatic and chronic policy application in the adjudication of workers’ compensation claims 

These policy changes became effective March 1, 2024.  Decision-makers now have more latitude and clarity on weighing the evidence, whether there are witnesses or not. Turning to event(s) that are claimed, the decision-maker will ask the question whether it is “more likely than not” in the context of the issue. 

This is the new (and substantial) change to the policies:

For greater clarity, it is not necessary for the worker's account of what happened to be corroborated by other witnesses to be accepted. Witness evidence that corroborates or refutes the worker's account may be relevant. The absence of witness evidence that corroborates the worker's account does not automatically result in the denial of entitlement. The absence of such evidence, however, may be a relevant factor to consider, particularly in cases where such evidence would be reasonably expected under the circumstances. In cases where corroborating witness evidence is not available, the decision-maker must still assess and weigh all other relevant and available evidence, including the worker’s own account as well as any evidence submitted by the worker, to determine the likelihood that the event(s) occurred as described. 

“More likely than not” means evidence reasonably tending to support the conclusion; evidence that is competent, relevant and material, and to which a rational and impartial mind naturally leads, or involuntarily leads to a conclusion for which there is valid, just and reasonable substantiation. This change in wording of the policy assists the decision-maker when there may be competing versions of events or circumstances. However, the proof of causation remains “on the balance of probabilities”. For background into the weighing of evidence, below is an excerpt from WSIAT decision number 912/23.

The balance of probabilities in the context of the WSIA was discussed by the Vice-Chair in Decision No. 1614/13R, 2014 ONWSIAT 1674, which states:

[24]         However, the Supreme Court of Canada case of F.H. v McDougall, 2008 SCC 53 has clarified that there is only one standard of proof in civil law: the balance of probabilities. It found that there are no degrees of probability within the civil standard. Context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences. However, the Court found that these considerations did not change the standard of proof. Speaking for the Court, Rothstein, J. stated in paragraph 49:

In the result, I would reaffirm that in civil cases there is only standard of proof and that is proof on the balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

[25]          I note that the Supreme Court describes the test of probabilities to be whether “it is more likely than not” that an alleged event occurred. Recent Tribunal decisions have accepted the standard set out in the F.H. v. McDougall decision.

Appeal procedures

Following WSIB’s value for money audit of the dispute resolution and appeals process in February 2023, and public consultations during the summer of 2023, the WSIB released its new appeal procedures effective February 2024. According to the WSIB, the changes are to enhance and improve efficiency in providing timely, quality decisions and excellent customer service.

The key differences:

  • Internal process improvements when an Intent to Object (“ITO”) form is received. In other words, a more vigorous reconsideration process by the operations staff to assess any new evidence or seek clarity before referrals to the Appeals Branch. 
  • The introduction of a 14-day escalation process if there has been no action upon receipt of an ITO to the respective manager.
  • Greater scrutiny by the WSIB’s appeals intake, and triage processes to ensure that cases are appeal ready.
  • New guidelines and processes regarding the jurisdiction of Appeals Resolution Officers (“ARO”) to add appeal issues for a “holistic adjudication of related issues,” to ensure finality of decisions and to avoid fragmentation of issues.
  • A new focus for expediting appeals regarding return-to-work issues.
  • Clearer guidelines regarding methods of appeal resolution with a focus on written hearings as the default method of resolution, and oral hearings as the default method for initial entitlement to chronic mental stress appeals.
  • To better expedite and support the operations area of the WSIB, the ARO where appropriate will direct benefits flowing from their decision based on the information on record.
  • Implementation timelines of ARO decisions will be targeted at 30 days.

What does this mean to employers?

  • There will no doubt be more challenges to employer decisions.
  • Good quality investigation is key to getting to a fair and just decision.
  • There is a need to have greater scrutiny/quality on evidence submitted to the WSIB, and mere anecdotal opinions will be challenged more vigorously.
  • WSIB decision-makers will make errors and there may be a rush to judgment to make decisions.

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