Royal Commission on Workers' Compensation in BC
March 6 Full Day Session
Name: Cassandra Kobayashi
Title: Acting Chief Appeals Commissioner
Affiliation: Workers' Compensation Board
Confidential: No
Staff Present: TR, GG, OE, GS, SN, PL
Notetaker: Steven Noble
Date: Friday, March 6, 1998
GENERAL COMMENTS
· GENERAL TOPIC: APPEAL PROCESS
· Subtopics: Procedural Fairness; Levels & Jurisdiction; Medical Review Panel
· Present Resource People – Leigh Sheardown, Registrar, Medical Review Panel Department
PRESENTATION
I am Cassandra Kobayashi, Acting Chief Appeals Commissioner.
I will present on the Appeal Division for about an hour, then Leigh Sheardown, Registrar, Medical Review Panel Depart will do a short presentation on Medical Review Panels.
Don Cott, Chair of the Panel of Administrators, and Louise Logan, Director General, Policy Bureau are here as resource people.
I will address the notions of decision-making as opposed to policy making from the Appeal Division’s perspective. The may give rise to questions which are better addressed by Don Cott and Louise Logan.
The Review Board is not participating in today’s presentations, but I understand they will have a public session at another time.
The subject matter of this presentation was developed from issues identified by counsel who have been given standing to represent community groups during this stage of the Royal Commission inquiry. In addition, I have identified some controversial aspects of the appeal process and also of statutory interpretation.
While we do not consider it our place as a quasi-judicial tribunal to recommend changes to the system in which we are called to adjudicate individual appeals, I will share our experience within this system, and present some of our thoughts on alternatives identified in the questions provided to use by counsel.
Before I review the major categories of matters, which come before the Appeal Division, I’d like to briefly review our relationship to the Board.
Although the Appeal Division is part of the Workers' Compensation Board, we maintain some separation from the administration of the Board. Like the President, the Chief Appeals Commissioner reports to the Panel of Administrators. We also share with the Board facilities, mainframe computer system, and perhaps most importantly, the union. Although appeal commissioners are exempt, the other positions in the Appeal Division are presently within the bargaining unit. Despite our links with the Board, the Appeal Commissioners decide individual cases with a strong measure of autonomy.
I have assumed your familiarity with the work of the appeal Division; therefore I have not addressed all types of matters that come before us. However, I would like to mention that under the Criminal Injury Compensation Act, the Appeal Division review appeal committee decisions.
SLIDE: Appeal Division
APPEALS FROM Review board findings
Presidential referrals, section 96.4
Employer appeals under section 96.6 and 6.1
Section 11 determinations
Reconsideration
My presentation will focus on the major categories considered by the Appeal Division. The particulars addressed are largely those raised by counsel wh9o have been given standing to represent the interested parties.
SLIDE: repeat of above overhead
Until 1996 the majority of matters coming before the Appeal Division were appeals from Review Board findings.
There has been a general increase of almost 400 appeals per year in appeals from Review Board findings between 1992 and 1997 with a dip in 1994.
With respect to these appeals from Review Board findings, the Appeal Division reviews the evidence, law and policy, including any new evidence.
SLIDE: Jurisdiction on appeals from Review Board findings
Substitutional decision making
Inquiry approach
In making our decision we "substitute" our finding for that of the Review Board. This substitutional jurisdiction is exercised in accordance with section 99 of the Act, which requires the Board’s decision be given according to the merits and justice of the case.
The work of the Appeal Division proceeds on an inquiry model, both procedurally and substantively, in that the Appeal Division defines the issues, and determined whether and how to gather further evidence, including whether to hold an oral hearing.
SLIDE: "the appeal division may reopen, rehear and redetermine any matter that has been dealt with by the review board" Section 96.3
the Appeal Division has the discretion to initiate and to conduct a full inquiry into all of the issues arising out of an appeal&ldots;"Governors’ Decision 75
All matters raised in the decision letter which was appealed to the Review Board and in the Review Board finding may be considered issues in the appeal&ldots;" Appeal Division December 1.
This approach is reinforced by Governors Decision 75, which elaborates on this statutory authority. The Governors said the Appeal Division has discretion to initiate and conduct a full inquiry into all of the issues arising out of an appeal, once the matter is properly before it. The purpose of the Appeal Division inquiry is described as " a determination of the issues essential to findings consistent with the merits and justice of the case". As well, the Appeal Division practice and procedure provides the issues raised in the initial decision letter may be considered issues in the appeal.
This remedial and non-technical approach is also reflected in the former Chief Appeals Commissioner’s published case on remedial jurisdiction (#92-0634, section 91.1 – Remedial Jurisdiction, 8 WCR 151)
However, the Appeal Division does not have the authority to exercise the plenary power of the Board under section 96.2 to reopen, rehear and redetermine any matter dealt with by it.
In exercising our discretion to inquire into matters raised in the decision letter and Review Board findings that were not specifically appealed to the Appeal Division, the Appeal Division must ensure compliance with the rules of natural justice. This means notifying the parties that the issue is under consideration, and inviting their submissions.
Governors’ Decision 1 states the appellants "should be required to outline the reasons for the appeal explaining how the Review Board finding is in error" (7 WCR 7). This has been interpreted in the Appeal Division practice and procedure as a requirement for "commencement" of the appeal. It is from the date of commencement that the 90-day decision making period runs. The Appeal Division interprets liberally the requirement for reasons, so any description of the disagreement with the Review Board findings will usually be sufficient.
SLIDE: Appeal Division procedures to facilitate participation
Initiate appeal by phone, in person, by fax or letter
Appeal Officer letters set out procedure
Inquiry Approach
The Appeal Division practice and procedure is intended to facilitate participation by parties themselves, and lay advocates. This is consistent with Governors’ Decision 75. We have developed procedures and provide information to users of the system with that in mind. On occasion, we have asked for community input, such as the requires for submissions on how to interpret the 90-day timeframe for making decisions (see Appeal Division December 12, 10 WCR 365)
For example, an appellant can initiate an appeal in person, by telephone, fax or letter. We assign each new matter coming into the Appeal Division to an appeal officer. The appeal officer is the contact person for parties that matter until completion. The appeal officer’s letters guide the parties through the system, laying out the steps that will be taken and the time frames applicable to each step.
The ad has held oral hearings in approximately 7-10% of matters decided. Some hearings are granted on a preliminary basis where they have been required by the appellant. The panel assigned to decide the matter also has authority to convene an oral hearing. At an oral hearing, the Appeal Commissioners view their responsibility as ensuring the evidence is thoroughly canvassed, and their questions answered. They generally do not see their role as cross-examining on behalf of an absent respondent.
SLIDE: Presidential Referrals – section 96.4
Repeat overhead of Appeal Division shown earlier
Prior to the creation of the Appeal Division, the Board utilized section 96.2 to refer findings of the Review Board to the commissioners for reconsideration on grounds set out in Dec. No. 403 (6 WCR 69).
This controversial process was seen by many to discount the finality of Review Board findings. The Munroe Committee (8 WCR 231) addressed in detail these "own motion" appeals. With respect to the Board’s practice of referring Review Board findings for reconsideration on the grounds that the finding was "against the overwhelming weight of the evidence", the Munroe Report said (at page 242) that using this ground "has caused disproportionate controversy and frustration."
SLIDE: Referrals of Review Board findings for redetermination – section 96.4
President may refer findings
30 days
grounds of error of law or contravention of a published policy
The statutory changes effective in 1991 increased the finality of a Review Board finding by restricting the redetermination of matters on "own motion" referrals by the Board to the final level of appeal. The new provisions set out in section 96.4 of the Act provide the President has the authority to make the referral, as opposed to a wider group. The referral must be made within 30 days, with no provision for an extension of time. As well, the Appeal Division must find grounds before redetermining the Review Board findings.
SLIDE: Presidential referrals by year /Presidential referrals to Appeal Division
Since the Appeal Division began in 1991 there have been a small number of referrals under this provision, some on repeated issues such as an estate’s right to continue an appeal by a deceased worker. Given the extraordinary circumstances of what could be seen as an "appeal" by the Board, the Appeal Division gives an oral hearing upon request.
As well, the status and outcome of these presidential referrals is reported monthly by the Chief Appeals Commissioner to the Panel of Administrators, and in the Appeal Division Annual Report.
SLIDE: Employer appeals under section 96.6 and 6.1
APPEAL DIVISION – REPEATED SLIDE
Another change introduced in the 1991 amendments, concern appeals from decisions affecting employer. Prior to 1991 the former commissioners of the Board heard "appeals" of decisions related to assessments, health and safety penalties, and other matters under their general authority provided in Section 96.2 to reopen, rehear, and redetermine any matter considered by the Board.
SLIDE: Section 96.6 and 6.1 right of appeal
To employers only
On certain types of matters
Requires grounds for appeal
With the creation of the Appeal Division, employer s were given a statutory right of appeal on certain matters identified in the Act or designated by the governors.
This category of appeals is available only to employers. The Appeal Division has determined that this means that a person who has personal optional protection, or "POP" and disputes their assessment rate cannot appeal because they are not an "employer". It is significant that the definition of "worker" in section 1 includes an independent operator admitted by the Board under section 2.2. Furthermore, for those with personal optional protection, the Board could be seen to be offering a type of coverage on a take-it-or-leave-it-basis, whereas employers must register and pay assessments.
Under the Act or policy, the Appeal Division hears appeals from the matters listed on the screen.
SLIDE: Decisions appealable under section 96.6 and 6.1
Assessment appeals
Relief of costs under section 39
Prevention Division penalty assessment
Charging of claims costs under section 47.2
First aid penalties levied under section 70
Charging of claims costs under section 10.8
Each category of these appeals have been relatively small in number compared to the number of appeals from Review Board findings, but together, represented between 20 and 30% of all matters coming before the Appeal Division – that is until mid 1996.
SLIDE: New Matters by Year (bar graph)
SLIDE: Employer appeals – new matters by year
The number of appeals concerning prevention, assessment, and charging of claims costs under section 47.2 have fluctuated within a narrow range. Since mid 1996 the number of relief of cost appeals has skyrocketed, a matter that I will address later in more detail.
For the section 96 employer appeals as I will refer to them, the Appeal Division does not exercise substitutional jurisdiction; rather, an appeal can be allowed only if the Appeal Division finds an error of law or error of fact, or contravention of a published policy of the governors.
Despite the need for grounds, the Appeal Division takes an inquiry approach to these appeals.
SLIDE: Inquiry approach on section 96 employer appeals
Bon on Notice Appeal indicating grounds
Appellant should outline grounds
Inquiry beyond grounds and arguments advanced
The Governors’ published policy in Decision 75 states the appellant "should be required to outline" the error of law of fact or contravention of a published policy of the governors, but the Appeal Division does not interpret this strictly unless there is a complete absence of any attempt to outline a ground. The Notice of Appeal has boxes for the various grounds of appeal, which the appellant may "check-off" to assist the appellant in identifying grounds for their appeal.
In the adjudication of these appeals, the Appeal Division does not limit the inquiry to the grounds identified, and arguments advanced.
RELIEF OF COSTS
A number of questions were raised by counsel regarding appeals concerning relief of costs.
SLIDE: New Matters by Year
Here again is the graph of the types of new matters coming before the Appeal Division.
In about 1995, the Board began a project to review claims to ensure relief of costs had been given where appropriate. As a matter of administrative convenience, the Board had been allowing representatives of the employers to review the claims files and to bring forward any files that they wished to have reviewed "on the merits". While this was efficient, it also meant that thousands of workers’ files would be reviewed by these consultants.
In June 1996, the provincial Information and Privacy Commissioner reviewed the Board’s practice of providing disclosure to employers once there was an appealable decision. The Privacy Commissioner recommended that employer should not be given access to workers’ files unless there is a valid appeal.
As a result of these changes, the Appeal Division received a large number of relief of costs appeals. Before mid-1996, we received an average of 13 per month, whereas in 1997 we received an average of 190 per month.
The current practice is that an Employer Cost Relief Officer makes a decision on the merits, and that decision is appealable to the Appeal Division. Once the employer appeals, the employer may request file disclosure. If file disclosure is provided, the appeal officer notifies the worker of the employer’s appeal, and invites their participation. Few workers participate.
SLIDE: Relief of Costs 1992-1997
SLIDE: Relief of Costs: New matters, withdrawn/rejected, decisions
Although relief of cost appeals now constitute 51% of new matters coming into the Appeal Division, few actually proceed through the decision stage. Most often, the appeal is withdrawn after file disclosure has been provided. In 1997, almost 2300 new relief of costs appeals were received, but only 128 decisions were issued, and these include the relief of costs decisions coming from the ongoing cases as well as the Historical 39.1(e) project.
SECTION 11 DETERMINATIONS
REPEAT SLIDE: Appeal Division
The Governors assigned the Appeal Division the authority to issue section 11 determinations on behalf of the Board (Governors Dec.4, 7 WCR 19).
SLIDE: Section 11 Determinations
Request by party to an action or the court
Board shall determine any matter – relevant to the action and – within its competence under this Act
Certify determination to the court
Where a party to an action or the court requests a determination, the Appeal Division provides an information package explaining the procedure and timelines.
The number of requests for a determination under section 11 has remained relatively steady at between 70 and 90 with the exception of 1995 when only 55 applications were made.
I understand that prior to 1991, the Board practice was to simply file certificates without reasons. The Appeal Division provides reasons along with the determinations, although it is arguable that reasons are not required by the statute.
Unlike most appeals before the Appeal Division, the section 11 matters are contested, with argument on each side of the issue. Section 11 determinations entail detailed analysis into the fundamental principles of compensation entitlement. They generally provide an opportunity to reflect on the interpretation of the statutory gateway to compensation for personal injury or death.
SLIDE: Section 5.1 provides compensation is payable
For personal injury or death
Arising out of and in the course of the employment
Of a worker
There is no simple test for determining what is and is not covered. Over time, the Board has issued numerous decisions and policy on interpreting this section of the Act, and these have been adopted as published policy. Some of these decisions are undoubtedly controversial, but they remain the published policy.
For example, in Decision 10, October 13, 1973 (1 WCR 45), an intoxicated fisher tried to board the fishing boat the night before departure, intending to sleep on the boat. Even though his productive work had not started, and even though he had a blood alcohol level of 0.27, and even though he was trying to board through unconventional means, the commissioners decided that his falling into the water and drowning was compensable.
Given the difficulty of these types of issues, it is not surprising that the Appeal Division sometimes makes a determination where the Board has made a different decision on the claim. The Appeal Division is not bound by a previous decision by a claims adjudicator or Review Board in making a section 11 determination. Because of the potential conflicting results from two streams of decision-making, it makes sense to have the final level of appeal the same body that makes the section 11 determination.
Unfortunately, we also see cases where the worker has not applied for compensation, and if found to be a worker whose injury arose out of and in the course of employment, may be out of time to apply. The Appeal Division information package on Section 11’s includes information on the time period for filing a claim.
RECONSIDERATION OF Appeal Division DECISIONS
Another aspect of the Appeal Division’s work is our ability to reconsider our own decisions on a limited basis.
REPEATED SLIDE: Appeal Division
Before the creation of the Appeal Division, the former commissioners could reconsider their own decisions under the Board’s plenary power. Section 96.2 allows the Board to reopen, rehear and redetermine matters dealt with by it.
SLIDE: Reconsideration by Appeal Division – section 96.1
Appeal Division decision is "final and conclusive"
May be reconsidered where substantial and material new evidence; did not exist at the time of the hearing or; did exist at that time but was not discovered and could not through the exercise of due diligence have been discovered.
In the 1991 changes, Section 96.1 introduced both the concept of Appeal Division decisions being final and conclusive, and also specific provisions for reconsideration based on new evidence, as set out in the overhead. Before the grounds for reconsideration are met, the new evidence must be substantial and material. Furthermore, the Act requires the new evidence did not exist at the time of the hearing or did exist at that time but was not discovered and could not through the exercise of due diligence have been discovered.
The provisions regarding due diligence have been interpreted as placing some onus on an appellant for ensuring the Appeal Division receives the information necessary to the proper consideration of the appeal in the first place. (#91-0724, "Section 96.1", Chief Appeals Commissioner, October 29, 1991, 7 WCR 145). The Appeal Division has said the due diligence test is that which a "prudent and reasonable appellant would have exercised".
The Chief Appeals Commissioner has said there are other grounds for reconsideration of an Appeal Division decision (see #93-0740, 10 WCR 127).
SLIDE: Grounds for reconsidering Appeal Division decisions:
Section 96.1 new evidence
Clerical mistakes or omissions
Fraud
Error of law "going to jurisdiction" including breaches of the rules of natural justice
In deciding that the Appeal Division had the authority to reconsider its own decisions other than under section 96.1, the Chief Appeals Commissioner weighed the benefits of having finality in the appeals, and also of avoiding unnecessary court proceedings.
The Appeal Division has provided information about the decisions that were reconsidered in its annual report. As well, we will be publishing a group of reconsideration decisions in the Reporter series in the near future.
The Appeal Division has the statutory authority to reconsider prior commissioners’ decisions on the same criteria under section 96.1 for new evidence. As well, the Governors assigned the Appeal Division authority to consider prior commissioners’ decisions under section 96.2 where the decision was based on an error of law or involved or involves an issue order the Canadian Charter of Rights and Freedoms (see: Governors Resolution, January 6, 1992).
Since 1992 the reconsideration of prior commissioners’ decisions has slowly diminished from 56 to 9 in 1997. At the same time, the number of reconsideration decisions concerning Appeal Division decisions has increased from 15 in 1992 to 48 in 1997.
Finally, the provincial ombudsman has the authority to refer a decision to the Appeal Division for reconsideration. Prior to the reform of the workers' compensation system in 1991, the provincial ombudsman received numerous complaints about workers' compensation. Requests for reconsideration by the Ombudsman of former commissioner decisions reached a high of 26 in 1992, but have since dropped.
SLIDE: Requests for Reconsideration
The Appeal Division treats requests by the Ombudsman for reconsideration as we do other reconsiderations in terms of having to satisfy the grounds for reconsideration before a redetermination is undertaken.
I will turn now to a few specific issues identified by counsel.
DELAYS IN ADJUDICATION
The Appeal Division is the only body in the BC workers' compensation system that has a statutory requirement to make decisions within a specified period.
SLIDE: Decisions subject to 90-day timeframe
Appeals from Review Board finding
Referrals of a Review Board finding by the President
Employer appeals under section 96.6 and 6.1
The 90-day timeframe applies to approximately 85% of matters before the Appeal Division.
Our experience with the 90-day timeframe is that it is important the parties and the Appeal Division have some flexibility to extend the time to make the decision. The provision of section 91.3 allow the Chief Appeals Commissioner to extend the period "because of an act or omission of the appellant, or because of the complexity of the matter under appeal".
The appeal officer’s letters set out has general time periods for the parties to make their submissions, reply and final submission. The Chief Appeals Commissioner or her delegate has the authority to extend the 90-day timeframe or her delegate has the authority to extend the 90-day time frame due to "an act or omission of the appellant", and this is sometimes used to extend the timeframe where the appellant has requested more time to make their submission.
Occasionally, respondents request to extend the time to respond to an appellant’s submission. The appeal officer will generally ask the appellant if they have any objection, and we will generally extend time to provide a response, it is will not affect the decision due-date.
Once the matter is assigned to a panel, the Appeal Commissioners may request an extension of time to complete their deliberations. In 1997, about 80% of the matters that proceed to a decision were issued without an extension requested by the Panel assigned to determine the matter.
One effect of having a 90-day timeframe for some matters is that those matters without a 90-day timeframe are given lower priority. These would include extensions of time to appeal, reconsiderations, section 11 determinations, and criminal injury cases.
CONSISTENCY
Another issue identified by counsel is consistency.
There is a tension between a quasi-judicial decision-making and consistency within the tribunal. The Appeal Division believes that decisions should not be decided according to which panel was assigned the case, but at the same time, protect Appeal Commissioners’ right to differ from approaches taken by other panels. However, we agree that different approaches should be deliberate rather than inadvertent. Finally, section 99 requires each case be determined on its merits and justice.
We are pursuing a number of mechanisms for promoting consistency, including:
SLIDE: Mechanisms for promoting consistency
Requirement for reasons
Developing hallmarks of quality decisions
A "final reader"
Publication of decisions
Leading causes by 3-person non-representative panels
Discussion about issues apart from individual cases.
Last October, the appeal commissioners participated in a planning process to identify goals, and means for achieving them. The development of hallmarks of a good decision and the discussion process for discussing diverging views or unsettled topics are in process now.
The question of consistency also applies to different levels of adjudication within the system. Entrenched differences between different levels do not enhance the public perception of fairness of the system as a whole.
Being last, the Ad is the final decision-maker with respect to matters of law and fact, subject to a Medical Review Panel certificate. The statutory provisions giving the president authority to refer a Review Board finding to the Appeal Division on the grounds of error of law and contravention of a published policy of the governors supports a view that the Appeal Division’s view on such issues was intended to prevail, subject to the Panel of Administrator’s authority to further amend the policy as they are pre-eminent in that area.
Finally, the Appeal Division has a unique role in the current system to address consistency issues. With a smaller number of cases and fewer decision-makers, there are fewer logistical barriers to achieving consistency.
Related to the question of consistency is how the Appeal Division interprets policy. One function of policy is to help ensure like cases are treated alike.
SLIDE: Decisions Consistent with Policy
Decisions will be made consistent with policy – Governors Decision 7
Appeal Division will apply and interpret the Act, Regulations and policy – Governors Decision 75
In their Policy for Selecting Appeal Commissioners, Decision 7, (7 WCR 13) the Governors says that they expect an appeal commissioner to have the ability to make decisions consistent with policy.
SLIDE: Independence of decision-making
Section 99 applies to Appeal Division decisions – Governors Decision 75
Act and regulations are paramount – Bylaw 4, Policy #96.10, Rehabilitation Services and Claims Manual
The Appeal Division’s statutory responsibility is to make decisions on matters properly before it. Its decision must be made by applying the Act, Regulations and published policy, including the provisions of section 99. This is stated in Governors’ Decision 75, but even if it weren’t this reflects the statutory scheme.
It has been said that the Appeal Division does not have the authority to declare policy unlawful.
In Decision 75, the Governors specifically addressed the application of policy by the Appeal Division.
SLIDE: Governors’ Decision 75
The Appeal Division shall apply and interpret the Act, Regulations, and existing Board published policy. The Appeal Division does not have the authority to create new policy. The Appeal Division must make its decisions according to the merits and justice of each case as directed in Section 99."
One interpretation of the underlined part is that the Appeal Division must apply and interpret the Act, must apply and interpret the Regulations, and must apply and interpret published policy. Under this interpretation, the policy can never be contrary to the Act or Regulations.
We have not adopted that interpretation, and the provisions of Bylaw 4 would support our approach. In that decision, the Governors acknowledged the possibility that the policy could conflict with the Act and Regulations, in which case, the Act and Regulations were paramount.
Following the paragraph quoted on the overhead, is a provision giving the Chief Appeals Commissioner authority to bring a policy issue to the governors for consideration where she considers it necessary that they address a policy issue prior to a decision being made in one or more appeals.
The Chief Appeals Commissioner was given discretion to bring matters to the attention of the Governors, not an instruction. This discretion is consistent with the statements about the interpretation and application of policy by Board officers in the Rehabilitation Services and Claims Manual, #96.10.
Finally the BC Supreme Court has addressed this matter. Although the Supreme Court set aside the majority finding on their disposition of how the unfunded liability should be allocated, the Court held that the Appeal Division has the power to reverse a policy decision of the Governors where the policy is contrary to the Act.
The petitioners in that application for judicial review stated as one ground for review that the Appeal Division committed a jurisdictional error by usurping the policy-making role of the Governors. The Court rejected this argument, stating:
The Appeal Division recognized that the Board of Governors has jurisdiction to make policy and agreed that it has no right to substitute its opinion fo the opinion of the Board of Governors on a matter of policy. The Appeal Division does have a responsibility to ensure that any decision of the Board of Governors does not conflict with the Act, whether it is a policy decision or not."
In closing, I’ll touch on the question of accountability and accessibility.
As stated in Governors’ Decision 75 the publication of decisions is one method of holding the system publicly accountable. The Governors also said that Section 95 of the Act requires us to respect the privacy of the parties. The Appeal Division has no objection to all Appeal Division decisions being accessible, but the costs of editing them to protect privacy is substantial.
We have also taken steps to make the published Appeal Division decisions more accessible by developing three indices – a keyword guide, subject index, and law and policy cited. This will be published in the workers' compensation Reporter in 1998. We will also be publishing a group of decisions that reconsider Appeal Division decisions which we hope will provide insight into that process beyond the summaries contained in our Annual Reports.
The Panel of Administrators has developed and published a process for reviewing the performance of the Chief Appeals Commissioner (13 WCR 169). One of the criteria noted is feedback from the Ombudsman’s office. As noted earlier in my presentation, the numbers of requests for reconsideration of decisions has dropped significantly from the levels seen under the prior commissioners. Three have been two requests for reconsideration of Appeal Division decisions since the Appeal Division was created in 1991: one in 1991, and one in 1993. Compare this to 25 in 1988, 15 in 1989, 26 in 1990, and 8 in the first half of 1991.
As well, the work of the Appeal Division has been subject to evaluation through the Administrative Inventory commissioned by the Board of Governors in 1991 and 1995.
SLIDE: Administrative Inventory
The Appeal Division has been well run; it may be the best in North America in terms of the timeliness of reasoned, written appellate decisions. The fact that the court reviews have been so rare and so unsuccessful, also argues that the Appeal Division is doing its job". (Still in Transition, at page 265, 1996.
The second Administrative Inventory said of the Appeal Division:
The Appeal Division has been well run; it may be the best in North America in terms off the timeliness of reasoned, written appellate decisions. The fact that the court reviews have been so rare and so unsuccessful, also argues that the Appeal Division is doing its job."
In conclusion, the Appeal Division has fulfilled the goals of the Munroe Committee Report in replacing the Commissioners of the Board with a quasi-judicial tribunal for the purposes of determining appeals. Although there is tension inherent in the roles of the Chief Appeals Commissioner participating at discussions by the Panel of Administrators on policy, and deciding cases independently, that tension has been generally well managed and respected.
Thank you for the opportunity to respond to these issues. I welcome your questions.
QUESTIONS
JOHN STEEVES
Q: Hello. Miss Korbayashi a few things –you talked about hearings being held in 7-10% of cases in one of your slide and as I think you know comparing that with the Review Board I don’t have the exact numbers but the Review Board the norm is to have a hearing whereas the Appeal Division the norm is not to have a hearing is that roughly correct? Would you agree with that?
A: I don’t know about the Review Board; I can speak about us.
Q: Yes okay – one of the concerns of workers is that the Appeal Division doesn’t have enough oral hearings– have you heard that concern expressed before?
A: I’ve seen individual cases where people have asked for oral hearings.
Q: Okay – and can you explain to us why the Appeal Division doesn’t have more oral hearings?
A: The Appeal Division makes its decision on whether to hold an oral hearing based on the case before it. We don’t have a quota for hearings; we don’t aim for particular numbers – we have the benefit of the Review Board’s tape on file. That is automatically disclosed as part of the disclosure package – in cases where are a request is made by the appellant a preliminary decision is made as to whether this is the kind of case that might benefit from an oral hearing – whatever that – if an oral hearing is not granted at that stage it is still open to the panel to have an oral hearing depending on what is often where the issue is one of credibility the Appeal Division will hold an oral hearing. The tendency if it is a medical – a matter of medical evidence the Appeal Division would tend not to hold an oral hearing.
Q: Okay – the - you have been an appeal commissioner for how long?
A: Since August 1991.
Q: Is that when the Appeal Division started – or that was just after I guess – it started in May of 1991?
A: June 3 I think is when it officially came into being.
Q: And we’ve talked a little bit yesterday about the back log the Appeal Division had when it first started – were you when you came in August 1991 – was the Appeal Division still working on that backlog?
A: Yes I was one of a number of Appeal Commissioners who were hired to assist with that backlog – a number of temporary appointments were made.
Q: And can you give us any information of how the Appeal Division got rid of that backlog?
A: Long hours, hard work, extra people.
Q: All right. Now you indicated that your numbers are up about 400 appeals per year with the exception of 1994? Do have that right.
A: That is 1992 through 1997.
Q: Yes, with the exception of 1994 they have gone up approximately 400 more per year?
A: No, no. That is the total. That is the total increase.
Q: Okay,
A: It is less than that per year.
Q: Okay, I’m fine with that. And how is the Appeal Division coped with that in terms of staff and in getting the decisions out within 90 days?
A: Well the Review Board’s findings are approximately – prior to the influx of relief of costs – have been approximately I think 65% of our workload. So the increase in Review Board findings is only one part of the work we do – our workload has varied over time in different categories – we try to meet the time deadlines the best we can for the 90 day decision – with decisions that haven’t had a 90 day timeframe have unfortunately have had to be given a lower priority so it could be some of the way we’ve coped is to be slower in responding to some of those other requests.
Q: Has that been true –for example – has there been more extensions by the Chief Appeals Commissioner under Section 91 – more extensions of the 90 day appeal – 90 day period for getting the decisions out?
A: I’m not aware of statistics tracking that.
Q: Well – how long have you been acting Chief Appeals Commissioner?
A: Since November.
Q: And have you authorized more extensions of the 90-day since you started?
A: I haven’t noticed any change in the pattern – although to be fair last summer I believe the Review Board hired more staff and this resulted in a large number of decisions being issued that had been waiting to be issued. Because of our 90-day timeframe we have to deal with a bulge like that with the resources we have. The Appeal Commissioners did get out a large number of decisions but I’m not aware of a particular pattern of more additional time requests.
Q: And the – 90 days – section 91.3 (a) says that the 90 days
A: That’s correct.
Q: Are you able to give us some details of what that means – I gather it doesn’t mean literally in all cases when the notice of appeal is filed?
A: In decision 12 of the Appeal Division there is a fairly comprehensive discussion about this subject – briefly various options were looked at in terms of how to interpret the 90 timeframe. One would be a literal interpretation – the first contact with the Appeal Division starts the clock ticking. The difficulty with that approach is that the file has to be obtained if it is under active consideration in another part of the Board. There would be a difficulty in taking it off the desk of an adjudicator bringing it in and having submissions and getting the decision out. The compromise was to – and advocates when asked about the decision to commence at a later point tended to support the Appeal Division decision. So commencement now means that the reasons for disagreeing with the Review Board have been provided. That can be in the form of a notice of appeal or it can be in a letter. And disclosure has been given. We don’t do our own disclosure; it’s processed at the Board and we try to maintain a good working relationship with the disclosure section but we don’t have total control over how quickly we can get the file photocopied and then sent out. The parties were not keen on having the time running while we were all waiting for everyone to get an updated disclosure.
Q: You mentioned – leaving cases in some of the things you do for consistency and certainly the big ones we recall are the ones on retroactivity and the one on Federal Government employees – we’ve noticed from our anecdotally – fewer needing leading case hearings now than in the past – is that true do you think objectively?
A: Are you talking about the sort of public process?
Q: Yes yes.
A: I’d say over the last few years we’ve had fewer.
Q: And why is that?
A: Again the types of matters which have come up have not been in the opinion of those who are assigned to it are of a nature to call for that. There’s been no decision to pursue or not to pursue that process; it remains open.
Q: Are there any planned in the next – that you know of - that we should be aware of?
A: Not that I’m aware.
Q: Okay.
A: Again though; can I make one comment about that. The Chief Appeals Commissioner or the Acting Chief Appeals Commissioner does not control what the panels of the Appeal Division do. They have authority to conduct themselves and set up their hearings, the way they gather evidence the way they wish. And I think it has to be understood that there is a tension there between the Chief Appeals Commissioner’s responsibility to report to the panel and to administer the Appeal Division and the independence of the decision-makers within the Appeal Division.
Q: All right; on section 96 appeals –that is employer occupational health and safety appeals to the Appeal Division –the - is it correct to say that the union at that particular employer’s work site has the right to have standing in that appeal?
A: The Appeal Division practice and procedure is to invite the worker who accompanied the inspector on the inspection and the union. Now the difficulty is if the file doesn’t contain and the chair of the safety committee. If the file doesn’t contain information about the union or – well union – it makes it difficult for us to know whether or not to notify. We send a notice to the chair of the safety committee regardless of whether there is one or not. If there isn’t one the letter probably is ignored.
Q: And – it’s that notice to the union which I’m interested in getting a little more detail about – if it’s not on the file you say you give a notice to the Prevention Division?
A: No. The Prevention Division doesn’t appear – are we talking about the Board’s Prevention Division?
Q: Yes?
A: They will often will come to the hearings.
Q: Sorry – if the name of the union is not on the file that you have – what do you do? Anything?
A: I’m not aware that we do do anything at this stage.
Q: Okay, so you don’t make any inquiries through the Board, through the employer, or through the labour relations board about whether there is a union at the work site?
A: Not that I’m aware of.
Q: And if there is a union named on the file – how would that - is there space on the file for it to be named or is it - would it be there by accident or what?
A: I’m not sure.
Q: All right – and assuming the name of the union is there what is – what’s done in that case?
A: A letter is sent out to the union as it would be to the worker and to the chair of the health and safety committee – notifying them of the appeal by the employer and if they should participate they would have to file a notice of participation, if they don’t participate the appeal goes on with those who have responded.
Q: Okay - so if they – once you identify them – and you give them notice they are like any other respondents in any other appeal?
A: They are not respondents in the sense that we have respondents in appeals from Review Board findings. The participation of the worker, union, and joint health and safety committee is more a matter of assisting the Appeal Division in its work. It’s not granted by statute.
Q: All right and the effect – the remedy in those kinds of appeals can sometimes result in an assessment penalty being removed or reduced – is that right?
A: Yes.
Q: Are there provisions for notifying other employers within the same subclass that be affected by your decision?
A: I’m not aware of how Prevention deals with that. We certainly don’t inquire as to whom else is in the subclass or what the affect might be.
Q: Just looking at the graph of your appeals and the kinds of appeals – is it - without going through the numbers – without the section 99.1(e) matters that your numbers would be the same – maybe even down?
A: No, we’ve had an increase in Review Board findings – are we talking since?
Q: Since 1991.
A: No, there has been an increase I believe.
Q: Okay.
A: The exact numbers are in every annual report.
Q: Yes.
A: With a summary of 1996 comparing the various years and types.
Q: On applications under section 11 for section 11 certificates that come to you – I’m interested to know and this may not be available at all - do you have any information about – how many section of those 11 applications – because – because – well first of all are they primarily or only mainly motor vehicle accidents?
A: They definitely are not only motor vehicle accidents but anecdotally there seems to be a large number of them.
Q: Yes, and do you have any information about how many of those would from workers who have earnings in excess of the statutory maximum?
A: I have no information about that. Often that isn’t the kind of information that’s before us in any event.
Q: Your accident information is on page 21 of the materials we have on the Ombudsman and so in 1992 there were 26 – ombudAD Ombud com – sorry I may have missed that – what is that?
A: Sorry the Ombudsman has the authority under their statute to recommend to various tribunals that we look again at our decisions – the OmbudAD means that they are looking at Appeal Division decisions and OmbudCom is in reference to former commissioners’ decisions. And because we continue to have the authority to review former commissioner decisions – some of those numbers continued in past 1991.
Q: Now the Provincial Ombudsman has jurisdiction over the Workers' Compensation Board – do you know that or ? Do we take that as given?
A: Jurisdiction?
Q: Yes.
A: Yes. They have the authority to recommend.
Q: To investigate complaints?
A: Investigate, inquire.
Q: Recently that authority has been taken over – to use a non-legal term - by an internal Ombudsman of the Board?
A: No, I don’t believe it’s been displaced.
Q: What is your understanding of the arrangement – first of all there is an internal ombudsman within the Board?
A: Yes, now I’m not at all expert in discussing the internal Board Ombudsman. But if I’m sure that if there is a question on that that we can bring the appropriate people here. Peter Hopkins is the Board’s internal Ombudsman. And he is part of the administration - he reports, I believe, to the President and will investigate complaints that come to his attention. The Provincial Ombudsman still continues to exercise their authority as far as I know to inquire into any complaints that they receive.
Q: And has the internal ombudsman – Mr. Hopkins - referred matters to the Appeal Division?
A: He has from time to time inquired of us about complaints he’s received.
Q: Has he made it a formal referral to you?
A: A formal referral. He has – he has brought matters to our attention in his capacity as Ombudsman but I’m not sure what you mean by formal authority?
Q: Well, the Ombudsman of BC has the authority under its statute to refer a matter to you make a decision on it – correct?
A: That’s correct.
Q: Does Mr. Hopkins have the same authority and has he exercised it?
A: He has not got the same authority as far as I am aware – again because he is part of the administration - reporting to the President – there is some separation in our functions, however we do take complaints, concerns from many quarters in the course of our day. Sometimes they come from the parties directly affected, sometimes from representatives, or sometimes through other sources such as that.
Q: And you say that Mr. Hopkins has made – I’m not sure if this is your wording – inquiries – contacted you in any case – what was the nature of those without disclosing the particular situation?
A: I can’t actually remember – I think one might have had to do with a delay but I’m not – I’m not sure in fact if I would have been aware of them all. This is Jay Jamieson, he is the Assistant to the Chief Appeals Commissioner – the recent inquiries that I recall may be in relation to contacting an individual to advise them on the grounds for reconsideration of and Appeal Division decision or questions about process – things like that.
Q: Okay - I have a question about the – I guess the impact of Appeal Division decisions and we have touched on this for a few days and Mr. Cott may want to join the discussion – I wonder if you or Mr. Cott could kind of take us through the impact of Appeal Division decisions – by that I mean – if you say that a particular policy is contrary to the Act – what effect does that have on the entire system and as a historical point – what was the situation under the former Board of Governors and what is the situation now?
A: Perhaps Mr. Cott would be in a good position to answer that. I would like to make a couple of comments though about the affect of an Appeal Division decision. The Appeal Division must make a decision on an individual matter and that may involve an interpretation of the law, policy – that appears to have been the expectation of the Board of Governors given their statements about why Appeal Division decisions would be published that was stated in Decision 1 and Decision 75 of the former Board of Governors.
Q: Just before you do that – their intent was what again?
A: Well, let’s see if I got the actual wording here. Decision 75 says "the publication of a Appeal Division decision can usefully assist in communicating and understanding of the meaning of the Act, the Regulations, and Board practices, policies and procedures. Publication can also aid in the goal of having like cases treated in a like manner and explaining the meaning of effective changes under which the workers' compensation system operates. However the Appeal Division decision is not held out within the system as something that others must follow. It might have persuasive power for example in some cases adjudicators might make decisions that follow along with the Appeal Division and I’m not aware of that and I don’t inquire but after we do issue our decision, particularly if it is something in which the Appeal Commissioner has said it would be useful to have clarification of this matter if it is a matter in which the Appeal Division found a policy unlawful. The Appeal Commissioner reports it to the Panel of Administrators in her monthly report. I’m – I believe the same procedure existed with the Board of Governors. At this point I will turn it over to Louise Logan and Don Cott. Good Morning.
Q: This seems to be right on point.
A: We thought you might ask this. What the flow chart that I just handed out shows is what happens when an issue is raised in an Appeal Division decision that either affects policy or has implications for the interpretations of the Act. Once the Appeal Division decision is made a report of that decision is made by the Chief Appeals Commissioner in her monthly report to the Panel. The monthly report to the Panel is distributed in a binder that all the attendees of the Panel receives. And we receive it about a week before the Panel meeting. That gives the Policy Bureau an opportunity to review the issues raised by the Chief Appeals Commissioner in her report and to develop a proposed action plan or some thoughts prior to the Panel meeting to share with the Panel. The Chief Appeals Commissioner reviews all of the policy decisions raised at the Panel meeting, which the Director General also attends. And after some discussion of these issues at the Panel meeting there’s really one of two outcomes and I’m at box 5 on your flow chart now. The Panel provides some direction on the issues to the Director General and generally speaking there’s two outcomes. There is the general direction to develop policy and consult with stakeholders. This could include provision for interim policy pending the actual review. Or direction is given for the Policy Bureau to prepare what we call an overview which is a quick scoping of the issue based on the Appeal Division decision any other information that the Policy Bureau puts together. And that is taken to the Priorities and Board Governance Committee of the Panel which is a committee chaired by Don Cott which is also includes one other Panel member, the Director General and the President. The Priorities Committee then prioritizes the issue raised by the Appeal Division and the Bureau then takes on the development, consultation, and brings forward recommendations to the Panel. The Panel makes a decision and communicates it to stakeholders and then a follow up review is conducted by the Bureau at the direction of the Panel.
Q: A couple of questions on this – how long does it take you to get from step 1 to step 5?
A: A week.
Q: All right and from step 5 to step 6 – how long does that take?
A: The – it depends on what the outcome of 5 is. Let’s assume that we’re asked to develop an overview and take it to the Priorities Committee. Priorities Committee meets quarterly I believe. So it would be at the next quarterly meeting that it would be presented.
Q: Now how long has this process been in place – the Appeal Division in 1992 referred something to the Board of Governors and Mr. McGinn and I had this out a few months ago and it was not done – so I am assuming that this was not in place in 1992-1993?
A: No, the Bureau has only been in place since 1996 and I believe there’s some processes established the latter part of that year.
Q: Does anyone on the panel know the process before that – before this process –i.e. was there one?
A: I can’t really tell you Mr. Steeves. I can’t speak to the process but I can tell you that the issues were raised in the Chief Appeals Commissioner report but when the Policy Bureau was established it is fair to say that there was a fairly long back log of issues that had been raised by the Chief Appeals Commissioner which had not been dealt with through policy mechanisms or had been initiated and decisions had not been made by the Board of Governors.
Q: And that was because there was – shall we say - a breakdown in the governance structure?
A: I believe so.
Q: Yes. The point relating to that – Section 85.26 – a decision of the Appeal Division shall be a decision of the Board – now my understanding is that is there not to make a decision of the Appeal Division a decision of the Board in the sense that we are talking about - that it is binding but it’s there to make a decision of the Appeal Division subject to judicial review under the – judicial review procedures Act – do any of you have any information on that?
A: The benefit of the privative clause.
Q: Yes – that is what I’m talking about – Yes – yes – let’s be clear – it’s there for that purpose rather than to make it an Appeal Division decision binding on that entire system?
A: It might also have other effects such as Section 99 states that the Board must make its decision according to and the Appeal Division would then be part of the Board for that purpose.
Q: Yes – yes – thank you Mr. Chair.
Q: Actually it is two matters Miss Kobayashi – or Miss Logan - the chart you gave us from 1-5 –we talked about the time from 1 – 5 as you thought a couple of weeks – the bottom level – how much time from 6-10?
A: It depends on the issue; in the amount of consultation that is required. It can vary from a fairly minor, straightforward issue that is non-confrontation from 2 months to a large issue – very controversial – may even need public hearings that can take 1 – 2 years. We have not had an issue of that nature but I could anticipate that.
Q: Okay - 1-2 years – makes all of us at this table nervous.
A: The difficulty is that often it is the consultation process and the need to get community input that takes a long period of time.
Q: Yes and the consultation process takes 1-2 years –what comes to my mind is that sometime before 1-2 years someone should have made a decision - at some point the consultation has to stop.
A: There may be interim policy that is passed in that time. Like I say we haven’t had an issue of that kind but I can envision that – perhaps in the occupational disease area there may be very controversial issues that will take a great period of time – in the regulation review area as you know there was quite a degree of consultation and that took time as well. Maybe Ralph wants to speak to the regulation review.
Q: I’m just talking about your chart here and it seems to me in controversial areas there is need for more control by the Board of the consultative process. Does that sound like a fair comment?
A: Yes.
Q: And part of that is more planning and the ability and the foresight to have the ability to say at some point we have to make a decision here even if the stakeholders can’t agree?
A: Yes. And I believe that certainly the direction that we’ve been given is that the Panel is prepared to do that.
Q: Okay, yes all right, thank you. One other area and Mr. McGinn has joined the panel - this is in the context of policy – Mr. McGinn you were involved in policy during the regime of the Board of Governors?
A: With respect to the Prevention Division.
Q: Okay and can you give us a sort of a historical sketch of the - how policy – sort of the ideal of policy under the Board of Governors and that is what structure was put in place and how it worked and in particular the relationship between the Board of Governors and the Administration?
A: Well each division had its own head of policy development and so they each worked on their own track in terms of what policy items would come forward. The Governors did have a Priorities Committee to look at – to give some direction. There was a Vice President who was in charge of a Policy and Research Bureau within I think it was within – well it was within the Administration - I’m not sure in which Division – and that group would meet on a monthly basis and review anything that was coming up forward from the Divisions. Having satisfied themselves on a policy matter that should move forward that went through the Senior Executive Policy Committee which is just really the Vice Presidents and the President – and then on to the Board of Governors. The and that was after the point in time when the Governors assigned policy making to the Administration - there was an initial period of time for about 2 years I believe – perhaps 2-1/2 years – when the Governors actually had control of policy development – it wasn’t in the administration at all.
Q: So that would be 1991- 1993 – somewhere in there.
A: 1991 to mid 1993 – I think.
Q: And just to focus it - the Board of Governors regime – my term – is 1991-the end of 1994?
A: End of – I think it was June of 1995 – yes.
Q: June of 1995 - okay –
A: So there was about 2 years or so when policy development was moved forward in the administration - when the Governors disappeared then there was 6 months when nothing much happened until we acted on Corbin/O’Callaghan’s Report and the Policy Bureau was begun to be set up in early 1996.
Q: And the Corbin/O’Callaghan Report recommendation was what on this issue?
A: Corbin/O’Callaghan recommended that a policy and regulation development bureau be set up outside the administration so that it would treat the administration much as – just another stakeholder in the process. The Policy and Regulation Development Bureau report to the Panel of Administrators through the Chair so that the direction of a policy development would come directly from the Panel of Administrators and the priorities set by them and the administration not has as significant control I guess on what moved forward
Q: And that was as the result of concerns about the effectiveness of the system – of the divisions generating policy issues – going through the Executive Committee and getting through to the Board of Governor- correct?
A: Yes. And there was criticism by the Governors apparently to Corbin/O’Callaghan that they often were presented with policy pieces that may have been well researched but didn’t put forward to them all of the policy options an so policies – proposed policy amendments or new policies might come forward and they would ask questions about other alternatives and of course the research either hadn’t been done into that alternative or option or it was obvious that the option had been looked at but discarded along the way. They had a lot of difficulty with that kind of process.
Q: So in a sense the – certainly the Corbin-O’Callaghan and could we say the Governors weren’t a more direct flow of policy input to them?
A: More direct flow of more research done into the policies brought forward ensuring that all of the options had been examined and control over the priorities setting – a much more involvement in the priorities setting.
Q: And that is carried on to now – that is the Policy Bureau reports directly to the Panel of Administrators, correct?
A: That is correct.
Q: Now, but, just going back to the old Board of Governors system – the - how would the Appeal Division fit into that in terms of tracking them in terms of their impact, of whether they are binding or not?
A: I know that the Chief Appeals Commissioner in the monthly report provided those issues or heads up to the Governors that needed either amendment or clarification of policy or where policy seemed to be unlawful with respect to the legislation to the Governors. I’m not sure what direction the Governors gave to the Policy – those all tended to be on the Compensation side so I’m not sure what direction the Governors gave to the policy development process as to what they wanted to move forward. I can tell you that those have all been tracked by the Policy Bureau that we do have them – that they are part of what we looked at on an annual basis and setting the priority development schedule for the Bureau.
Q: All right –
A: I think I’d also like to make a comment about process and length of process – you know – taking over regulation development – I mean that was a process that was operating generally on consensus; if there wasn’t consensus things tended not to move forward and I believe it was the same with policy development – unless you couldn’t get consensus things generally didn’t move forward. When we restarted the regulation review process we and as well in the policy development process the approach now is to ensure thorough consultation – that doesn’t necessarily mean it has to be protracted but when you are satisfied that you have heard from the stakeholders, the administration, worker and employer representatives and as widely as is necessary you strive to try and find what is a good fit for all parties but if you can’t there and achieve consensus then the tendency has been in the last couple of years to cut off the discussion and ensure that you have the stakeholders’ views accurately presented or represented and take that forward to the Panel of Administrators and the Panel of Administrators has been making decisions over the past couple of years on tough issues.
Q: Consultation does not always mean consensus.
A: That’s right. I have one more comment that I would like to make if I may on the priorities setting. I think that one of the issues in terms of the time frame that it takes for the development process also goes to the prioritization process. It may be that when issues are raised by the Appeal Division or by others and is taken to the Priorities Committee that they are not given a top priority – that there may be other issues going on during that time so there may be a significant lag in time before we even begin our development process.
JIM SAYRE
Q: All right I want to observe that at the beginning Miss Kobayashi, that injured workers probably would agree generally with the observations of the 1995 inventory that the Appeal Division has been well run – it has done a good job of issuing decisions on time – it’s done a good job of issuing decisions which are readable and understandable – the – this is a Royal Commission of course – and what the inventory was discussing was whether the division has done it’s work well within the confines of the legislation it’s been given. Our concern here is whether it is the best possible appellate decision making system for injured workers whether we can devise a better one or not. And I think it is fair to advise you at the beginning that injured workers have been virtually unanimous in saying that they at the end of the day that they want a right to have a decision made by a court before their claim or the important issues on their claim are finally rejected. And they are not satisfied with the present structure of the system which all but precludes a recourse to the court because of and I must say I don’t agree with the Hunt’s conclusions that because judicial reviews have been so rare that proves that nobody is dissatisfied – I think that we have got to look at the privative clause, the cost of going to court, the lack of legal aid, the complexity of court of legal proceedings –all of those issues have to do with why injured workers don’t take cases to court – so that is one of the areas that I’ll be exploring – are you familiar with the recommendations that the Review Board has presented to the Royal Commission? Have you had a chance to look at them?
A: I’ve read them once.
Q: Yes, okay – there’s a couple of suggestions they make which I think are worth exploring– not necessarily a matter of taking everything that they’ve said as a whole package but as something that could be incorporated into either the existing system or into some entirely new system that might have some elements of the existing system so that’s another area that I’ll be asking you to comment on – all right now it’s kind of common practice to refer to the Appeal Division as an example of the inquiry model –I wonder if you could tell us very quickly what does that means in your view?
A: The Appeal Division has the authority to determine the issues that will be considered by it subject to what was&ldots;.
Q: What sort of inquiries do they conduct –we know that they define issues – all tribunals define their own issues but - does the Appeal Division regularly go out and gather evidence that the parties haven’t understood and prepared in advance?
A: I have no statistics on that but yes the Appeal Division does where a panel considers it necessary seek further evidence.
Q: You don’t know how often that is done, though?
A: No.
Q: Fairly common situation I imagine when a worker comes in without any legal representation especially is that there might be a medical decision at issue – the you’ve invariably got a decision by the Board’s medical advisors – you might have some sort of opinion from the attending physician on the worker’s side – often those appeals – the weight of that evidence might seem to favour the Board’s decision because it is more direct and the advisor is directly addressing the issue of causation or whatever it is now if everyone had the ideal level of representation and resources there would be independent medical opinions presented on the worker’s side to support the appeal - – if that were possible and if the doctor was prepared to provide such an opinion – suppose the worker comes in without one is it the Appeal Division’s practice to refer it out to an independent specialist to find out if the worker is right in saying that what the Board advisor has said is biased and unfair?
A: The Appeal Division panels determine each case according to its merits and justice – it would be very difficult to make some sort of blanket statement as to how panels deal with a kind of situation you are describing. I must say&ldots;..
Q: Let’s go back; an independent worker walks in &ldots;..
A: Excuse me Mr. Sayre – can I finish.
Q: Sure go ahead.
A: Thank you. In terms of the Appeal Division taking the evidence as it appears – in the material presented – the panel must have confidence that they can reach a sound conclusion. If there are doubts about it, for example if the opinion given by any of the specialists doesn’t address the facts as found by the Appeal Division that might be a situation where further opinion needs to be obtained. To say that we do or don’t in any particular situation it is very difficult.
Q: Okay, I’m not sure it answers the question but &ldots;.
A: Well, what’s your question again?
Q: My question is that you’ve got an unrepresented worker&ldots;.
[Judge Gill interrupts]: Maybe just before – maybe you can rethink your question – I’m just noting on the timing issue – perhaps if someone could let someone know – Mr. Bates if you could let the Medical Review Panel presenters know that we won’t be getting to them until about 2 o’clock or 2:30.
A: There are in the audience so&ldots;.
Q: Okay – my question concerns a fairly common situation –it is often said that in the inquiry system that people don’t need to have independent representation –they don’t need to bring all the evidence to the hearing because the tribunal will go out and do any investigations and I’m trying to explore with you the extent to which injured workers can count on the Appeal Division doing that – if they were to come to you without having a representative and without having independent medical reports and so on addressing the issue – it doesn’t sound like you are quite able to guarantee that in that case the panel hearing the case would say well wait a minute all we’ve had is the Board’s Medical Advisor’s opinion – there is really nothing to say that that is right or wrong – let’s go out and see what an independent specialist would say –
A: You’re correct.
Q: Is that correct?
A: In that situation it’s not – I cannot guarantee that a panel will go out and get another opinion, on the other hand if there is something in the worker’s evidence that raises a question about whether we could rely on the facts assumed by the medical advisor of the Board or if there is other evidence that has been in the file or if the panel, itself, has concerns of any sort it’s free to seek another opinion.
Q: And when you do that what is the practice – do you refer it to another Board medical advisor or do you refer it to an outside specialist?
A: That varies; we’ve had opinions from outside specialists; we’ve had opinions from the worker’s attending physician which often is a family or a general practitioner – and we’ve also had opinions from specialists who consult for the Board as well as medical advisors for the Board.
Q: Can you give my any idea of how many times that appeals have referred to an outside specialist?
A: I’m not aware of that.
Q: There must be a special authorization for the cost involved in that so – is that something that could be determined?
A: The panels are free to make the request and there is no authorization practice within the division but we do like to notify the doctors that we will be paying according to the fee schedule arrangement with the Board.
Q: All right - the Review Board recommendation –one of the intriguing aspects of it is that it recommends that the Medical Review Panel process be rolled into a single process and I must say I and I think most other worker advocates oppose –but in any event that the tribunal has the authority when the medical issue arises and they are not satisfied with the evidence that’s there to refer it for a binding decision to a kind of a Medical Review Panel which would then report back to the Appeal Tribunal and have it’s the effect of a medical certificate incorporated into the Appeal Tribunal’s decision – do you have any comments on whether that would be a useful tool for the Appeal Division to have at its disposal –as part of the inquiry system?
A: I feel not really in a position to comment on how it would work within one tribunal. I suppose it depends on what the problem is that that is being addressed. If the difficulty is trying to determine a medical situation before the consequential compensation questions can be answered there is obviously some advantage to have some certainty in that field rather than have the whole thing go up to an Medical Review Panel at some later stage.
Q: I’m not asking about a speculative new tribunal now –I’m saying in the case of your tribunal now the Appeal Division would it be helpful at times to be able to say we’re going to refer this medical question to a Medical Review Panel – when we get the answer back that will be our decision on the medical issues and we’ll then determine the compensation consequences of that – wouldn’t that be a rational way of resolving a medical issue?
A: The Appeal Division does have the authority to exercise the Board’s discretion to refer a worker to examination by a Medical Review Panel – we have exercised our authority to do that on occasion. Generally I don’t think we’ve retained jurisdiction over the matter to bring it back. The kinds of issues that we would tend to refer and I’m just speaking from memory at this point are medical issues where that was the heart of the appeal before us.
Q: And when that is done then it is out of your hands and the Medical Review Panel certificate goes back to the Board for implementation I assume – is that correct?
A: That’s correct.
Q: And if there was a dispute over that implementation it would start a new cycle of appeals at the Review Board normally. Is that right.
A: That’s correct.
Q: Your report says that over 90% of the hearings or the proceedings there is no oral hearing – I can tell you that my practice is that I always ask for one and you always say no. Generally because there is no credibility issue involved and because the issue is purely legal.
A: Purely&ldots;
Q: Well it is purely legal or an interpretation of the evidence and application as opposed to who do you believe so if you don’t have to believe what the worker is saying then it’s not purely speaking an issue of credibility. But it always seemed to me that the court – the Supreme Court, the Court of Appeal, the Supreme Court of Canada, the Provincial Courts – there’s almost automatically an oral hearing in all of those of tribunals and whether the issue is credibility or not it’s felt that I think Madame Justice I think said it was the cut and thrust of oral debate – that there’s a value in having the issues explored face to face in a way to make sure that the other side is understanding you – and that the tribunal’s understanding them before they determine – I’m just wondering why the Appeal Division seems so overwhelmingly feel that that’s not necessary and prefer to deal with everything in writing –
A: Well, in terms of the cut and thrust of oral debate the Appeal Division doesn’t have a situation where we generally have two sides arguing it out. Very often there is no respondent in an appeal – at this point we are I assume talking about Review Board findings – in some cases particularly complex issues where there is a legal issue it is useful to have some debate back and forth – on the other hand the written submissions we receive from those making it are very often comprehensive and fully canvass that issue. The perception that the Appeal Division doesn’t hold enough oral hearings – that is something that I can understand from your clients’ point of view that often the reason for wanting an oral hearing is I want to see the person who is making the decision. The question from an administrative point of view is is this the way we should best allocate our resources. Hearings do take more time – if the satisfaction of the parties is such that it’s felt that they have not had a fair hearing – that would be something of course to weighing in favour of having more.
Q: We’ll get to perceptions in a moment –because I think that’s an important question for the Royal Commission to look at - another recommendation that the Review Board made that was to set up a pilot project for alternate dispute resolutions – a kind of remediation process in which the –just to outline as I understand it they suggested that it be tried out in a situation where there was always a respondent and in a worker’s appeal that would be an employer active in a case now I don’t see why that’s necessary personally but that was the recommendation – in any event they also recommended that there would have to be somebody from the Board present during the mediation process with the authority under Section 96.2 to make whatever changes in the appealable decisions that are necessary as a result of the agreement – do you have any thoughts on whether or how that could fit in with an appellate process? I’m not recommending it I might say – I’m asking for your observations – is it something – do you see any problems with fitting that in with an appellate tribunal?
A: I know the question of alternate dispute resolution is being considered in many tribunals across the country – various tribunals have used it – I’m not aware – I think the question that you have to ask is what is the problem that you are addressing – how would this assist and would there be downsides to doing it?
Q: You don’t have any views on that you are prepared to talk about now then? That’s fair; I didn’t warn you that I was going to ask you about this of course.
A: I’ve not studied this.
Q: How many of the people – of the workers who come before the Appeal Division are unrepresented? By anyone at all?
A: We’ve done some look at to try and determine what sort of representatives have come before the Appeal Division – I don’t know how many workers aren’t represented.
Q: Do you break down by the type of representation at all –or divided up by having a person’s spouse speak for them as opposed to your union representative or a lawyer or worker’s advisor?
A: The one brief stab of looking at this was in response to a question by the Royal Commission – is that correct. No it was on some other matter. Let’s see what we have – the appeal tracking system does bring some – does keep track of who the representatives are – the difficulty is that in for example in a Section 11you might have four lawyers so it would appear in our system as four lawyers but that doesn’t mean that it was four different matters so we don’t really have that kind of breakdown but we do keep track of lawyers, workers’ advisors, employer’s advisors and lay representatives I believe. I don’t think think we break down to the point of relationship.
Q: What impact does it have on the role of the tribunal if a worker comes say with any representation at all – or any trained representatives – does it affect the way that you handle the appeal – the way that you approach it?
A: The Appeal Division appreciates a good submission from a lay or a legally trained representative but does not hold it against a person that they don’t have a representative. I can’t say that on behalf of all Appeal Commissioners who consider the cases in their own way but for me I do consider that that is a responsibility to the panel to thoroughly inquire and to look at all the issues that possibly could be at issue. For example an unrepresented worker might say I’m not getting enough money for my pension or my wage rate is too low – if there are other matters that come to my attention while reviewing that particular issue I will notify the parties that I will be looking beyond the only issue identified in the Notice of Appeal and invite their responses.
Q: Would that be a reason to more or less automatically allow an oral hearing or would you expect an unrepresented worker to also present their appeal in writing?
A: It depends again – we have unrepresented workers who are extremely articulate – who seem to have a very able grasp of the law and policy – the – no there’s no automatic granting an oral hearing.
Q: Okay - does the Appeal Division have the authority or feels that it has the authority to award legal costs in a case – again you would agree with me that there are some situations at least where a worker really has to go and get representation? The complexity of the issue – the fact the worker may have a mental disability – situations like that – you couldn’t expect the worker to represent themselves competently could you?
A: I believe that many people who would have a mental disability would have other arrangements in their life in terms of representation and so on. The Worker’s Advisor’s Office is available and we have on occasion suggested to people that they might want to contact them for advice.
Q: I understand that they represent a very small fraction of the people who go on to appeal – I don’t know what the figure is but I figure it is under 10% - in any event - does the Appeal Division feel it has the authority to award legal costs – suppose you had a case in which you did feel it was given that worker’s particular circumstances and the nature of the appeal and the issues that it was really the only option they had was to get help from a lawyer and they ended up paying a fair amount for that help - could you order that the Board compensate them for that?
A: The Appeal Division has taken on the issue of legal costs in a couple of decisions – in one case that I’m aware of costs were awarded – in a published decision costs were discussed but not awarded – I can’t say given the hypothetical you’re giving me whether costs would or would not be paid. The Appeal Division has not said that they will never pay legal costs and situations under which we might do it I think are discussed to some extent in the published decision. That published decision of course was the view of one panel at one time – the case law – the case that comes before us in the future will of course bring different considerations.
Q: Can you give us an idea of what sort of considerations that might lead to a decision like that by the Appeal Division to award costs?
A: Well I believe in the case that I’m aware of where legal costs were paid – it involved a situation where a Review Board finding was not implemented – the worker was represented – the Review Board – the worker had to appear again – Pardon?
Q: You said the worker was represented?
A: The worker was represented by legal counsel during the first Review Board appeal. The worker reappealed to the Review Board who said they didn’t understand what the problem was in terms of implementation – it seemed very clear what the first Review Board said. Basically reiterated it and the worker then asked for his legal costs – when it came before the Appeal Division – the panel – and I was the panel said – that the second Review Board appeal had been – it would have been fairly clear that the worker would have taken counsel – to the second Review Board appeal and by the way he was without counsel in his appeal before me. When he asked for legal costs he was representing himself and we talked about in that decision the – his expectations of whether he would need to go have counsel for the second Review Board appeal and so on and the costs of that second appeal alone were paid. The first Review Board appeal was not paid. Although he had counsel he would have paid – he would &ldots;..
Q: Of course I had no problem with your decision – in fact I think the Appeal Division should be more liberal in making it – I imagine Mr. Winter will have a different view when he gets his turn. Would you agree with me that the whole process of appeals under the workers' compensation Act is adversarial – not adversarial in the sense of characterizing the tribunal with an inquiry process versus the adversarial process but it is adversarial because in every case you’ve got the –the case I’m talking about you’ve got the worker against the Workers' Compensation Board – isn’t that right?
A: I don’t view it that way personally. I believe that worker and the employer may have differing views on the facts of the situation that gave rise to the claim. The Board as I see it has the responsibility to administer the Act according to the rules of natural justice and the Appeal Division attempts to do what is required under the Act.
Q: I think Mr. Justice Tysoe makes some comment about to the effect that it would be a fools’ paradise to think that the worker’s opponent once he gets to an appeal is any one but the Workers' Compensation Board – would you disagree with that?
A: Ah&ldots;.
Q: Isn’t that the way workers look at it?
A: I don’t know how workers all – I mean on what basis are we saying all workers I’ve had workers who &ldots;&ldots;
Q: You’ve conducted hearings - you’ve had a long practice advising workers surely you would agree that most workers – they think the enemy is the Workers' Compensation Board?
A: We see very few appeals in terms of total number of claims adjudicator. It would appear that given the statistics that the number of decisions and claims made – the system on the whole – many people seem to be satisfied with the decision that is initially made and so for me to try to extrapolate from my experience either in my prior as counsel or now as seeing those who come forward to the second level of appeal I think is&ldots;.
Q: I’m sorry I’m not asking if all workers think the Workers' Compensation Board is their enemy – I’m not suggesting that for a minute – I’m saying the workers who are involved in and appeal – once they get involved in an appeal because they dispute a decision - at that point the Workers' Compensation Board is their adversary isn’t it?
A: I can understand that that might be a popular view of some people, on the other hand we do see many submissions where that is not the tack taken.
Q: You mean the worker comes in and is you know turned down and says I don’t mind?
A: The worker says I’m looking for what I’m entitled to and they understand it is not a matter of what I’d like to give them – it’s a matter of what the statute and the policy and the regulations all as a result lead to.
Q: Don’t they go on to say and I want what I’m entitled to and the Board has unfairly denied it to me?
A: Some.
Q: The adjudicator got it wrong?
A: Some.
Q: I mean if they don’t say that why are they there - why are they appealing?
A: They may have a disagreement, for example with the facts upon which the Review Board made its findings. That doesn’t necessarily mean that the system is unable to respond to their concerns.
Q: Would you agree with me that it is important - generally speaking – aside from historical issues involving the tribunals we have now – that it is important generally speaking that a tribunal that adjudicates disputes be seen as an independent entity? And from the parties in dispute?
A: I’m sorry – independent from the parties?
Q: Would you agree that independence of the tribunal is an important characteristic of a fair decision making system and a fair appellate system?
A: In terms of independence I think there’s different ways that we can look at it. The decision-maker must come to the matter before him or her with an open mind and ready to apply the law and policy to the facts as found. Yes, that kind of decision making – independent decision making is important to the system.
Q: I may say that from my personal view – my personal view is that the Appeal Division is very independent – the reality is that it is independent – the problem is that by being located in this building –this is I think what injured workers often feel by having to run the security gauntlet at the front door to get into their hearing they don’t see it as necessarily independent – there is a natural almost inherent suspicion if they lose their case it is because they didn’t get an independent hearing – do you have any observations on that? How do you cope with that problem? Not the reality but the appearance?
A: We have been set up as part of the Board and that was as you know part of the deliberate decision that was made after the Munroe Committee Report that said there are some advantages to having a free floating appeal body and to have an internal – yes there are perceptions – on the other hand I’d say that often these perceptions don’t necessarily reflect the reality of who is independent – sometimes I will see a Notice of Appeal complaining about your decision. They are talking about the Review Board finding – the Review Board is independent of the Board but the perception is that it is all one in the same. To relocate the Appeal Division and we can do that – the Board has other buildings but I’m not sure that these are the kinds of concerns that go to the heart of the problem.
Q: I want to turn now to the question of policy and how that applies and how that particular concept in workers' compensation law applies to the decision that you make –I want to suggest to you first of all that there are a number of ways – let’s take a fairly typical appeal in which the gist of the decision under appeal is that we have applied Board policy to the facts in front of us and therefore we have decided that your claim can’t be accepted or your pension is lower than you think it should be or whatever – obviously one option you have is you think the worker’s arguments are wrong and you uphold the decision. That doesn’t raise any policy concerns you are simply saying that the decision is right – another result is to say as the Appeal Division has said on some occasions that the policy doesn’t isn’t authorized by the Act and a couple of occasions that were mentioned earlier in these proceedings one of them involved prisoners whose benefits are terminated automatically upon imprisonment – another one involved people with loss of earnings pensions where they were automatically cut off at age 65 even though they might have worked past that age – in those cases when the Appeal Division allowed those appeals and those situations they did so on the grounds that Act the didn’t authorize the widget policy that the Board seemed to have created. Another decision that is even more rare is that the policy is unconstitutional. And I am sure that you would agree with me that the constitution is the supreme law of the land and that if something is in either the Act or the policy is unconstitutional then the constitution prevails.
A: That’s correct.
Q: Obviously, example of that would be the Section 17 decision about the age distinctions in Section 17 for it determining the amount of the pension. It seems to me though that this came up in the first week of the hearings that there is a fourth area that I don’t very often see the Appeal Division – the fourth way of resolving those decisions which I don’t see the Appeal Division resorting to very often which is the approach suggested by the Court of Appeal in Testa and I think with Canada Maple Lodge is that which is that sometimes you have a policy which is perfectly reasonable – it’s reasonable that the Board – the panel has – the published policy of the Governors has set out some guidelines but the policy just doesn’t lead to the right result in the facts of this case. So you don’t have to overrule the policy; you don’t have to rule that it violates the Act or the Constitution you just have to decide that it shouldn’t have been applied in the facts before it. It seems to me that that approach is supported by Section 96.10 of the claims manual and some of the discussion in there and certainly by Section 99 of the Act – is it just that I haven’t seen a lot of those decisions or there a general feeling among Appeal Division Commissioners that unless there is some reason to overrule the policy you have got to apply it?
A: Well you mentioned for – as an example Testa – I believed that involved the determination of average earnings of a worker; the policy was to use the one year wage rate. The one year earnings prior to the date of injury. The current policy is that is how, generally, the Board approaches the determination of average earnings on a long-term basis. It is not necessary though to find that there is some problem with the policy because it also contains many references these guidelines; that the circumstances of the case must be considered. There are alternatives that should be used according to both the policy and the statue – and my experience is that the Appeal Division doesn’t always automatically apply the one year rule in terms of calculating average earnings so I disagree with you that we don’t avail ourselves of that.
Q: I guess what I am asking is this – it seems to be the view although Mr. Buchhorn may in the last couple of days may have acknowledged that officers do in extraordinary cases have the right to ask permission to depart from policy if they just feel that the policy may lead to the wrong result in the facts before them –I think a lot of them feel that it is not done often enough and I guess what I’m asking you is if you run into one of those cases on appeal do you feel that the Appeal Division has the right to set substitute its decision of that of the officer and depart from policy?
A: I believe the Appeal Division has historically – I assume you are not talking about my personal view of how I might decide a case.
Q: You do you have authority – that is what I’m asking – now how you would decide it but do you feel that that’s part of the power you have – the jurisdiction you have as an Appeal Commissioner – or do you feel that your jurisdiction is limited by published policy.
Q: The Appeal Division has a responsibility to decide individual cases – if the question is a matter of a pension or a wage loss entitlement a decision should be made on that. If there is a difficulty with the policy as the panel found with widows’ cases or the age 65 the panel has some responsibility to make a decision – I’m talking about the Appeal Division panel – there’s also provision that if the Appeal Division panel who is considering that matter asks the Chief Appeals Commissioner to refer the matter to the Panel of Administrators before making a decision that can be done. It was recently done on a relief of costs question about an injured worker suing an employer – the panel held it – the Appeal Division – the Appeal Commissioner held his decision until the Panel of Administrators clarified the policy on that point and then we proceeded.
Q: I’d like you stop there for a moment – because that suggests to me that that must have been a case that the Appeal Commissioner felt that the application of the policy in that case would have been unfair. And I assume that was why it was referred?
A: I don’t know why.
Q: And yet apparently feel that the right result was simply not to apply the policy but instead to ask that it be reviewed – is that a fair inference of what happened?
A: No, I believe it was a gap in the policy as opposed to an unfairness.
Q: I’d like to go on to another issue that is somewhat related to that – the Act since 1991 in particular - has given the exclusive authority to the President to appeal a decision of the Review Board to the Appeal Division and one of the grounds being violation of the published policy of the Governors–and I guess the President has a 30 day period that can’t be extended - is that right?
A: That’s correct.
Q: And I gather the President or whoever is acting as President when they make that decision basically says can I live with this decision or do we have to try and over turn it – as I understood it – maybe Mr. Cott wants to address this question – the Governors have never felt that they should follow that same type of procedure if they disagree with an Appeal Division decision – and I’m wondering that’s because it is part of the Board? A: I’m not sure –to have the President refer &ldots;a decision
Q: Yes, actually I was suggesting maybe Mr. Cott would be better to – be the better person to answer that question but is that why Appeal Division decisions are allowed to stand even if the Governors may have initially said they are a violation of our policy – that is why we want you to look at them?
A: Mr. Sayre, maybe you could clarify – we aren’t quite sure just what you are getting at with your question.
Q: Okay, well, let’s go back a step - we’ve got an appeal in which the worker is saying that the published policy is wrong – that may be part of their case – it may be that if the published policy is applied they are going to lose so they say the published policy wrong and they go to the Review Board and the Review Board agrees with them. Now the President might well in a case like that say we think our policy is right and we want to appeal that to the Appeal Division –now the Act envisages that happening doesn’t it? So you get a second look at that legal question - it may not happen every time but the Act provides for that to happen. Suppose the Appeal Division upholds that policy and the Governors still feel their policy is correct – as I understand it there has never been a decision of the Appeal Division challenged in court by the Governors?
A: I think that’s probably right.
Q: That’s correct.
A: I was – as you were speaking I was trying to think about where there might have been an instance and I couldn’t think of one – no I don’t -
Q: As far as know there hasn’t been. And it seems to me that that is related to a problem, which has been addressed repeatedly throughout these two weeks. Is that itself – I think in part because of that – the Appeal Division’s rulings can only apply to the individual case they are deciding. So basically the escape valve for not being able to challenge a decision in court is that well we’ll just give that worker the benefits and we’ll let everyone else will have to go through an appeal too.
A: The Appeal Division decision is a decision of the Board and so what you’re really asking is would we appeal a decision of the Board to the courts?
Q: Well, that is the problem you face when addressing that question –but when you say it is a decision of the Board you don’t go on to say that it will be applied by other officers in similar cases. In fact, you say just the opposite.
A: Well, because the major reason of course is that it’s an individual decision on an individual case and not – you know – not knowing whether or not the facts of the cases are the same – the present system provides for each one has to be appealed.
Q: Yes, the present system certainly applies to that –but the fact is if the decision is often not written as simply that is based on the facts of the case – the decision may very carefully and exhaustively address the legal and policy issues and it comes to a conclusion based on law. It says – some of the cases I mentioned – based on a careful analysis of the law – I’m confident they would all have been upheld in court if they’d been challenged but the point is the Board instead of challenging them and finding out has just said we are going to ignore them in future cases.
A: In those kinds of cases we would refer to the – now we would refer to the Policy Development Bureau for advice and for consultation with the stakeholders if necessary.
Q: But we’ve heard that that process takes over a year and in the meantime everyone else in that same situation is basically in limbo – they can either proceed with their own appeal or they can wait until the process is over with no guarantee that the policy will be changed at the end of the day – isn’t that correct?
A: There’s no guarantees, I guess – in this life you know there are no guarantees but certainly that I don’t think – you know it may take a year or it may take a few months but it depends on the circumstances as to what the issue is before the issue comes from the Bureau back to the Panel of Administrators .
Q: But you would agree with me that after this issue – like the issues I’ve discussed – like the Section 17 issue involving age distinctions and widows’ pensions – after that decision was determined – after a public inquiry process by the Appeal Division the Board did not automatically apply that to everyone else in that same situation?
A: I’m not positive what they did after that.
[Royal Commission counsel intervenes to warn of the lunch break]
Q: I don’t have very much more – maybe 5-10 minutes I’d be glad to finish that after lunch.
A: I guess on the widows’ question it’s always been a particularly difficult issue for the Board – and it has been worked on you know from time to time over the years and one of the problems has been is you know we’ve had the Appeal Division decision that said that the Act contradicted the Charter – the problem for the Board then was whether legally it should go ahead because it was an administrative agency and create a policy that violated its own Act. And there was some debate whether the Board could really do that – and that really – really it was felt that this should be done as a legislative matter – and I guess more latterly I believe there is another case going to the Appeal Division rather than conducting a further review of this matter so more latterly that has been the reason – again this was the problem – part of the problem is when you get a decision from the Appeal Division you never quite know whether that decision is it – is that the decision you should follow or will there be another one 6 months later which might say something different and this is part of the dilemma of using appeal decisions to make policy – you’re never quite certain where you stand because each power can make its own decision and you know you’ve got one – there has been occasion when the Appeal Division has issued a decision on a particular topic and then later on has changed – has reversed the decision. So this is part of the dilemma you get into.
Q: To cap off this part of the discussion before lunch then – that is the exactly the point that I was trying to get at –is that if there were a final appeal to the court – the Board would either have to appeal it to the court of appeal or live with it and the legislature might or might not amended the Act – that would have been up to them –it’s because we have a final appeal to this internal appeal body that we seem to have everybody sort of shrugging and saying what are we going to do do now? Would you agree with that?
A: Well I think the Appeal Division’s reasoning can play very well into the policy development process and that’s the reason for having a separate process outside of the Appeal Division that looks at the reasoning, develops recommendations, discusses those in communities and let’s the Panel of Administrators to make the final decision on the policy amendment. Not left with the Appeal Division to make that decision.
Date: March 6,1998
Commissioner staff: GG, GS, OE, TR, D , JS
Notetaker: Judy Stott
TR: Ms. Kobyashi has a clarification.
A: This is a clarification with respect to notification of the union, which arose from Mr. Steeves’s question about what the appeal division does on a prevention penalty appeal. The appeal officers do notify the worker representative if there was a worker representative named in the inspection report. The letter to them states that if the union and/or the chair and/or the secretary of the industrial health and safety committee wishes to participate in the appeal they could complete the enclosed form. Copies of this are then sent to the employer, the chair of the industrial health and safety committee and the secretary.
SAYRE
Q: On the matter of the decisions of the old commissioners it is correct isn’t it that the governors haven’t delegated their entire authority under Section 96 (2) to the appeal division?
A: Correct
Q: So the appeal division can reconsider decisions of the old commissioners if it is based, is it, an error of law or a violation of the charter?
A: That is correct. Under 96 (2) that is correct. There is also 96.1 provision for new evidence as well.
Q: To my knowledge at least, the balance of that jurisdiction over the decisions of the old commissioners has never been delegated or designated anywhere by the governors. Is that also your knowledge?
A: I am not aware of any delegation.
Q: There is a suggestion that we only need one level of appeal. Would that make some difference to your work if there was only one appeal tribunal?
A: I haven’t given it a great deal of thought. I think that the numbers are a very significant factor to be considered.
Q: In terms of the work you do what difference does it make if the review board has done a hearing, written a decision and presumably helped to focus the issues to some extent even if you come to the conclusion at the end that they are wrong? Does that make it possible for you to meet the 90 day deadline?
A: Certainly. In terms of the 90 day timeline the appeal division tries to be fairly efficient about holding our hearings when we can have 2 hearings in an out of town location. We don’t have a regular rotation of out of town locations where we will be sitting. The system as a whole responds to the other players in the system. As it now stands it appears that the initial decision letter from the Board officer is written in plain language explaining a conclusion with some reference to the law and policy but it may not be as exhaustively set out as it will be after the worker and the employer have gone through the review board. At the point where they come to the review board many of them, I think, have a better understanding of what is required to win their case or what we are looking for in terms of evidence. If, for example, the review board says without further evidence contrary to this or that we uphold the prior decision then that is a fairly strong indication to the parties of what needs to be done.
Q: That might lead the appeal division to ask for that additional evidence if the worker has not rotten it himself.
A: That does occur.
Q: What advantages do you feel the appeal division offers to the final appellate role in the worker’s compensation system that could not be provided by a specially designed final appeal with the court?
A: I am not sure that I am prepared to say what another imagined panel could or could not do. As it now stands the appeal division has a much smaller number of claims is has to look at, there are a smaller number of adjudicators and we have the luxury of that to look at consistency. There are different demands if you have more claims and more adjudicators in the system.
Q: What I am saying is that if one of the options of the commission was to look at whether or not to have to have a final appeal to the courts versus the appeal division what disadvantages would that impose to workers, in particular, and applets in general?
A: The whole worker’s compensation question was taken out of the courts. When it was there it had advantages and disadvantages. Now it is in an administrative tribunal that has specialized expertise so you get the benefit of a system that is used to dealing with this sort of issue and to look at all of the ramifications. The courts tend to be more generalist and you would lose that advantage. The other affect on the system that I suppose might happen is that your ultimate decisions are going to be taken out of the hands of the Board and that goes to the question in the heart of 96.1. Section 96.1 says that the Board is the decision maker with respect to findings of fact and so on. If one knows that there was a court that might look at the decision it may influence the way decisions are written and what the parties will be looking for particularly if one needed grounds to go to the courts. Perhaps that would tend to legalize the procedures both from the participants’ point of view and the tribunal’s.
Q: Would that be for better or worse?
A: Everything has its advantages and disadvantages.
WINTER
Q: I want to start with the relief of costs appeals. If I understand it clearly there has been a dramatic increase in the last couple of years with respect to the number of appeals brought to the appeal division on relief of costs.
A: Correct
Q: I see a difference between the appeal administration of them being brought and having to be opened and appeal adjudication.
A: Correct
Q: You clearly explained that most of the cases are withdrawn and you seem to have the same stable number of cases that you deal with on a year to year basis through the adjudication end.
A: It hasn’t remained entirely stable. I believe there were 128 decisions in 1997 and I think that might have been an increase over last year. It has gone up and down.
Q: But is has been a more confined range of going up and down on the actual adjudication side as opposed to the amount that had been brought into the system?
A: Yes
Q: I want to make sure that my understanding of why this has happened is the same as what I think that you said. The reasons for this increase seems to be directly resulting from the policy change that arose from the privacy issue. It changed the ability of an employer and a worker to get a file when there is an appealable decision as opposed to having to now bring an appeal before you can get disclosure of the file. That would be the primary reason for the increase in the number of appeals on relief of cost. Is that correct?
A: That is my understanding.
Q: Would you agree that is catch 22? The employer or the employer’s representative needs to get the file in order to determine whether or not there is a valid appeal to bring on the issue of relief of cost. On the other hand they need to get an appeal to get the file. It sounds like a Catch 22 to me.
A: The grounds for relief of cost include the existence of a pre-existing condition. It is possible that the employer may have knowledge of the worker’s condition prior to the injury in question. To say that they must always have the file before they know that is perhaps an overstatement. They may know from their own records on workers’ medical conditions, particularly if they have been long term workers.
Q: There is no doubt that in every case the employer won’t have the full documentation in which to make a full and informed decision on whether or not they should continue on with the process. For example, the employer may know that the worker has claimed about back problems before they had the back related injury but without