Prepare your case
Once an appeal is registered, validated and assessed, the Workers’ Compensation Appeal Tribunal (WCAT):
- Invites everyone who may be directly affected by an appeal to participate
- Tells WorkSafeBC to give appeal parties access to all the information in the WorkSafeBC file under appeal, including documents, medical reports, phone conversations, medical records, etc.
WCAT will also send a letter to all parties to let them know what to do next:
- The appellant needs to submit evidence along with a summary of the outcome they want and an explanation of how/why the evidence or WorkSafeBC policies support their case. Submission deadlines depend on whether the appeal will be considered by written submission or at an oral hearing
- Respondents have 14 days to join the appeal before WCAT continues with the appeal process
- Start gathering information and evidence right away. Some information requests take a long time to process, especially requests for medical information. You might also consider asking for help with this step
- Send new evidence to WCAT or answer any questions about the appeal
- You can request payment for costs to get new written evidence (e.g. a report or letter from an expert like a doctor)
- Include all relevant information and evidence with your submission – make sure WCAT will receive everything by the deadline
- All documents must be in English – if they’re not, have them translated and sent to WCAT along with a signed translator’s declaration. Do not use a friend or relative as a translator. You can request payment for translation costs
- Only provide information or evidence related to issues about the decision from WorkSafeBC or the Review Division
- Only provide new information or evidence that isn’t already in the WorkSafeBC file
- Include the WorkSafeBC claim or file number and the WCAT appeal number on everything you send – if you include photos, provide a description of what’s being shown and the date the photos were taken
- Keep your contact information current, including details about your representative
Review the WorkSafeBC file
You will receive an email that explains when and how to access to the WorkSafeBC file online. If you do not have email or access to the internet, or if you are not able to look at large files on a computer, contact WCAT to ask for a paper copy of the file.
Once you receive the entire WorkSafeBC file, review all the material in it. This will tell you what evidence and WorkSafeBC policies were used to make the decision that is being appealed. You can then decide what new evidence you might want to provide. You do not need to send information or evidence that’s already in the WorkSafeBC file.
The vice chair making the decision for the appeal will also access the WorkSafeBC file and review it before making a decision.
Do a bit of research
Develop a stronger, more convincing case by researching information that applies to the appeal.
Make notes about past appeals or decisions that you think are relevant to the situation – which facts are similar, and which are not. Write down the appeal number and the policies that support your case.
Some past decisions have been identified as “noteworthy decisions” because they deal with an important point or give a useful explanation of how law and policy is applied. WCAT is not required to follow past decisions, but noteworthy decisions may be persuasive.
- Search past appeal decisions > Filter search results by selecting “noteworthy decisions”
Write down all the laws or policies that apply to the appeal. Describe important facts about the situation and how they relate to each law or policy. For example, when you apply the law or policy to the facts, what conclusion can you make?
Find information about specific laws and policies:
- The Workers Compensation Act and Regulations
- WorkSafeBC policies guide how to apply the Workers Compensation Act when making decisions
- WorkSafeBC compensation practice directives highlight the objective, principle or requirement included in a policy or piece of legislation for compensation-related matters
Have evidence to prove each point you want to make. Evidence is information that provides facts or proof. It may include medical reports, financial records, expert opinions, photos, videotapes, or digital recordings. It also includes everything included in the WorkSafeBC file, which is shared with WCAT.
It also includes information provided by the appellant or respondent. For example, statements or testimony about events, or in the case of an injured worker, information about their own condition.
Written statements from witnesses are also evidence. They’re not required, but sometimes witness testimony is helpful to explain or prove what happened. The witness must have first-hand information about the appeal, not just opinions. Ask your witness to prepare a written statement and sign and date it. Submit their testimony in writing or let WCAT know that you would like to have an oral hearing to call witnesses.
To be effective, evidence needs to be:
Relevant and admissible. Evidence can be excluded if it’s not related to the decision being appealed or if the information is overly repetitive.
Consider each piece of evidence: Does it help prove whether a fact is true? Is it connected to a logical reason, law or policy? For example, you may want to get new evidence because the evidence in the WorkSafeBC file doesn’t fully explain your position or specifically show your level of disability or show how your injury affects your need for medical treatment.
Be specific about how evidence supports your case. For example, ask a doctor to explain the level of disability or why an injury requires medical treatment. With text messages or emails, provide the entire conversation, not just one or two lines of text. Explain why evidence that supports your position is better than evidence that does not (e.g. testimony from a someone who witnessed an incident is better than testimony from someone who only heard about it).
Don’t provide irrelevant information. For example, don’t include information about labour relations issues between a worker and an employer that are not relevant to the appeal issue.
Credible and reliable. The vice chair weighs and evaluates all of the relevant evidence as part of the decision-making process. This includes considering whether the evidence is believable, logical, consistent with other testimony or evidence, plausible, and credible.
MANY FACTS CAN BE PROVEN WITHOUT EXPERT EVIDENCE
Direct evidence: A first-hand account of facts and events according to eyewitnesses. Someone who witnessed events can evidence about what they saw, heard, or experienced. This kind of evidence may be given as oral testimony, as a written statement, or it may be recorded in a document. Direct evidence is often more reliable than indirect (hearsay or circumstantial) evidence.
Hearsay is a kind of indirect evidence. It is second hand evidence about something. For example, A tells B that C fell off a roof. If B’s evidence is that “A told me C fell off the roof,” that is direct evidence of what A told B, but it is hearsay evidence that C fell off the roof. WCAT can take hearsay evidence, but it may not be given as much weight as direct evidence because it tends to be less reliable.
Circumstantial evidence is a form of indirect evidence. Like direct evidence, it may be given as oral testimony, or it may be in writing. Although circumstantial evidence is not directly about the specific fact in question, conclusions may be drawn from it. For example, a witness might say they saw a worker on the roof of a house and a short time later saw the same worker lying on the ground. The conclusion could be drawn that the worker fell from the roof.
Besides testimony from eyewitnesses, evidence, in general, can also include these types of things:
- Financial records, including: payroll records (for assessment), documents detailing retirement plans (in the case of issues related to age 65), pay slips to show a worker’s earnings before and at the time of the injury (wage rate), etc.
- Photograph or video evidence of a worksite location or an area where a claimed injury occurred or a worksite where WorkSafeBC issued an order for violating safety regulations (for prevention appeals)
- Safety records such as tool box meetings, an occupational health and safety worksite manual, or employee safety training records (for prevention appeals)
- Employer or independent worksite investigations, such as an employer’s investigation into an allegation of bullying and harassment, a police investigation, a coroner’s report, or noise exposure data
- Manufacturer’s specifications, including manuals or details of equipment or material claimed to have contributed to an injury or occupational disease, or material safety data sheets listing potential hazards for chemical or like products that are claimed to have caused an exposure or injury
SOME FACTS NEED EXPERT EVIDENCE
Expert evidence is the opinion of someone with specialized education, training, or experience in a specific area – for example, a doctor, vocational rehabilitation consultant, engineer, or accountant.
Expert evidence will only be accepted from a person the vice chair finds to be qualified as an expert. The opinion of someone who is not an expert, is not expert evidence and is not generally given any weight.
Written reports or documents from experts can be submitted as evidence – they do not need to attend an oral hearing. Here a few examples:
- An occupational therapist may evaluate a worker’s physical ability to return to work
- An ergonomist may do a workplace job demands analysis to help understand the forces and dynamics of a worker’s employment activities
- An occupational hygienist may provide an analysis of a worker’s exposure to environmental hazards in the workplace
Medical evidence is a kind of expert evidence such as:
- Factual statements about a worker’s condition or treatment that was provided
- Analysis, advice or medical opinion from a health professional such as a doctor, psychologist, chiropractor, physiotherapist or dentist
It can include:
- Clinical notes or records
- Emergency department or other hospital records
- Diagnostic testing results
- Imaging reports from CT scans, MRIs or x-rays
- Medical forms sent to WorkSafeBC
- Permanent functional impairment evaluations
You only need new medical evidence if the evidence already on the WorkSafeBC file is not sufficient. For example, you might submit new medical evidence if the appeal requires additional medical evidence to fully answer questions like:
- Did something at work cause, activate, aggravate, or accelerate the injury or disease?
- What is the nature and extent of the injury or disease?
- What treatment is needed for the injury or disease?
- Did a work-related injury or disease result in a disability? If so, how severe is it? Is it temporary or permanent? Has it resolved or stabilized?
- What limitations (things a worker cannot do) or restrictions (what a worker should not do) resulted from the injury or disease?
Some information can be considered without medical evidence, including:
- A worker’s statement about their own condition is evidence about things that are within the worker’s knowledge. For example, a worker could give evidence that they feel numbness in their hand because that is within their knowledge. However, the same worker could not give evidence that the numbness they felt was due to carpal tunnel syndrome because that requires special expertise
- Non-medical evidence such as physical requirements to complete work duties, a worker’s motivation to return to work, the availability of work, etc.
- WorkSafeBC policies
Submitting new medical evidence doesn’t guarantee a positive outcome, but it should be provided if it’s relevant to the appeal and the information included in the WorkSafeBC file isn’t complete or doesn’t fully support your case.
Meet with the expert or write a letter to describe the situation. Tell them what the issue is that that needs expert evidence to resolve. For example:
- A diagnosis of an injury or condition
- Whether a particular event or activity was likely to cause a particular injury
Ask specific questions to fully understand their opinion. Share the following kinds of information:
- Information about how the injury or disease occurred, the employment activities, the physical requirements of the job, the risk factors involved in the employment, etc.
- Photos, videos or diagrams of the worksite or work tasks (you could also demonstrate work tasks or invite them to visit a work site)
- Decisions from WorkSafeBC and the Review Division that are being appealed
- Medical or non-medical information from the WorkSafeBC file relevant to the matter under appeal that could help form their opinion (e.g. the opinions from WorkSafeBC doctors, how the injury occurred, employment activities, physical requirements of the job, risk factors involved in the work, etc.)
- Other factors or information that are not included in the WorkSafeBC file that are relevant, including information
- WorkSafeBC policies that apply to the appeal. For example, WorkSafeBC policy provides a list of risk factors to consider when determining whether a soft tissue disorder of the limbs (e.g. tendinitis) is related to a worker’s employment. This may help the medical expert understand what information they might need to include when answering the questions you have asked
Ask the expert to write a letter that outlines:
- Their expert qualifications
- How they know you (if they do) and how familiar they are with the case
- Their opinion on the specific issue and an explanation of the basis for their opinion – for example, a doctor could explain the specific relationship between an injury and the need for treatment or the level of a person’s disability
- Why their opinion differs from other expert opinion(s) on the WorkSafeBC file (if it does differ)
- Any other information or opinions that may be helpful
EXPERT OPINIONS AND THE FINAL DECISION
The vice chair weighs all types of evidence when making findings of fact and deciding an appeal. They will decide how much significance to give to an expert opinion by considering:
- The expertise of the person giving an opinion – their training, education and qualifications
- Whether the subject matter of the opinion is within their expertise
- Whether the facts behind an opinion are clearly set out, accurate, and complete, with any inconsistencies carefully explained
- Whether the opinion addresses the issue that requires medical input (e.g. the likely cause of an injury)
When there is conflicting expert evidence, the vice chair might consider:
- The expert’s familiarity with specific work duties
- Whether the expert addressed relevant guidelines in a WorkSafeBC policy that applies to the situation (e.g. a soft tissue disorder)
- The relative expertise of each expert and their knowledge of all the relevant medical information and investigations
- The nature and extent of the expert’s reasoning for their opinion and whether it’s supported by authoritative literature
WCAT may also:
- Collect information like employment, income or medical records
- Ask WorkSafeBC to investigate matters, including doing ergonomic and employability assessments
- Order the production of existing documents relevant to the appeal if a person is not willing or able to produce them and there is no other way to test the evidence – see the Manual of Rules of Practice and Procedure – Chapter 11.7: Orders (Subpoenas) for the Production of Existing Evidence and Attendance of Witnesses
- Request information or an opinion from a doctor or other health professional – the worker may be asked to attend an examination
If any additional evidence is gathered, copies are sent to the appellant and the participating respondent for comment.
Get appeal expenses reimbursed
WCAT can tell WorkSafeBC to pay back expenses related to the appeal – for example:
- Getting evidence relevant to the appeal (e.g. a letter or report from a doctor)
- Document translation
- Travel to the hearing
- Taking time off work to attend the hearing