Ever had a worker appeal a decision from the WSIB? Did you decide to participate? What are the implications of not participating?
We have conducted an interview with Senior Disability Management expert Jennifer Wright-Tahiraj to help us answer some of these common questions and gain insight into the importance of always participating in a worker appeal.
What reasons would a worker have to appeal a WSIB decision?
In many cases, the worker appeals a decision because it was not favourable for them. For example, if loss or earnings or entitlement were denied for the worker, they would typically appeal the decision because they didn’t get the benefits they were looking for from the WSIB.
What are some reasons why an employer might decide not to participate in a worker appeal?
There are really only two reasons why an employer wouldn’t participate in a worker appeal – if the worker’s claim is outside of the NEER window and if the worker is no longer employed with the company. If they are an employee and the claim is in the NEER window, the employer should participate.
How can an employer participate?
Once you receive notification that a worker is appealing a decision, it’s time to get legal representation. Clear Path has disability management consultants and a paralegal representative available to assist you with this entire process. Simply send us the information you received from the WSIB regarding the worker appeal and all of the paperwork will be completed and submitted by one of our consultants.
Is there a difference in being physically present versus providing a written submission?
There is. In most cases, the worker appeal will be an oral hearing – typically because this is what the worker tends to ask for. In a written hearing, a Clear Path consultant will prepare a written submission on behalf of the employer so that they do not have to be present at the hearing. So which should you provide? It varies based on each individual case and depends on what the appeal is for and who is initiating it.
Can you give some examples of appeals where previous decisions have been reversed?
I can recall one case where the worker appealed because they were denied a recurrence and loss of earnings for a surgery that had to take place. The employer chose not to participate and, in the end, the worker’s appeal was granted.
In this particular case, the recurrence wasn’t allowed but a new claim was established in its place. The end result? The original 2008 claim became a new 2011 claim where loss of earnings and benefits were allowed for his surgery that was to occur in 2012. Now the employer has an active claim on their NEER for this year’s September NEER review and they will have a significant surcharge as a result. If they had participated in the appeal with proper representation, it is possible that things may have unfolded differently.
Is there any recourse for an employer if a decision has been reversed?
If the WSIB’s decision was reversed at the ARO (Appeals Resolution Officer) level, the employer can then appeal the decision at the WSIAT level. However, if the decision was made at the WSIAT (Workplace Safety and Insurance Appeals Tribunal) level there is nothing that can be done because this is the last step of the appeal process. It is important to remember that you must appeal within the 6 month deadline.
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