Chapter 9: Nature of WCAT Proceedings
- 9.1 General Principles
- 9.2 Panels’ Authority
- 9.3 Panel Inquiries
- 9.4 Statutory Provisions affecting WCAT Deliberations
9.1 General Principles
WCAT proceedings combine many features. They are hybrid in nature. They are partly inquiry based and partly adversarial (as in the court system), that is, reliant on the evidence and arguments provided by the parties to the appeal. WCAT proceedings are referred to as rehearings because they are not completely new hearings, nor are they simply reviews of the record from the previous proceedings (either the Board or the Review Division). How much of each feature (inquiry and adversarial) influences a particular rehearing depends on the circumstances of each appeal and may vary from appeal to appeal. WCAT exercises an independent adjudicative function.
WCAT has full substitutional authority. A WCAT panel can reweigh the evidence and substitute its decision for the decision below. This authority is found in the statutory discretion to confirm, vary or cancel the appealed decision or order [s. 306(1)].
In court proceedings, a decision is made on the basis of evidence presented in the hearing. If the opposing party does not appear at the hearing to present evidence, the judgment may be issued only on the basis of the evidence provided by the party who appeared at the hearing.
In the hybrid rehearing model at WCAT, the Board’s file is provided to the parties and to WCAT [s. 295(3)]. Thus, the documents in the file become evidence on the appeal without needing further proof as would be required in a court proceeding. While the documents become evidence, how much weight is given to the matters described in the documents is for the WCAT panel to decide. The parties may also provide new evidence to WCAT that did not exist at the time the matter was before previous decision makers and make new arguments.
WCAT is not limited by the evidence in the Board’s file and the evidence provided by the parties. If WCAT is not satisfied with the sufficiency and/or reliability of the evidence presented, WCAT has the authority to inquire into the matter under appeal and consider all information obtained [s. 297(2)(a)]. While WCAT has inquiry power, and the discretion to seek further evidence, it is not obliged to do so. The question as to whether the evidence is sufficiently complete and reliable to arrive at a sound conclusion with confidence is one which rests with the panel. It is not WCAT’s responsibility to evaluate the appeal and then notify parties of the weaknesses in the case for the purpose of obtaining further evidence.
WCAT’s inquiry power includes asking searching questions of the parties and the witnesses at oral hearings, asking the Board to investigate further into a matter and report back, and inviting another person or representative group to participate in an appeal if their participation will help WCAT to fully consider the merits of the appeal [s. 297(2)(b) and (g)].
There is also an adversarial nature to WCAT proceedings. Opposing parties may participate as respondents, provide evidence, make argument and, if an oral hearing is held, cross-examine witnesses.
Parties should not assume that WCAT will carry out any further investigations. Where a panel declines to conduct further inquiry requested by a party, it will normally provide reasons in its written decision.
Parties should be mindful of the limitations of reconsideration based on new evidence in section 310. New evidence must be substantial and material and must not have existed at the time of the appeal hearing or did exist but was not discovered and could not have been discovered through the exercise of reasonable diligence (20.2.1).
9.2 Panels’ Authority
WCAT panels have the general authority to determine how to conduct the appeal and whether and how to seek additional evidence. A panel may request independent assistance or advice from a health professional under section 302. A panel may exercise its inquiry powers under sections 297 and 299. The question as to whether such inquiry powers should be exercised is a matter to be determined by the panel.
Specifically, panels have the authority to consider:
- How the appeal will be conducted, including:
- who should participate [s. 297(2)(g)] (6.6 to 6.6.7);
- whether to deem the employers’ adviser or an organized group of employers to be the employer [s. 300] (4.7.3 to 188.8.131.52);
- whether to convene a pre-hearing conference [s. 297(2)(c)] (7.4);
- whether to require pre-hearing disclosure of evidence [s. 297(2)(d)] (7.4);
- whether the appeal should proceed by written submissions or oral hearing, and whether the oral hearing should be conducted by teleconference, videoconference, or other electronic means [s. 297(1)] (7.5);
- the requirements for any oral hearing (date, location, duration, interpreter);
- any other preliminary matters which would normally be addressed by the registrar’s office.
- Whether to obtain additional evidence and by what means:
- whether to request independent medical assistance or advice from a health professional under section 302 and, if so, what findings of non-medical fact are required (see 11);
- whether other evidence should be requested [s. 297(2)(a), s. 299] (9.3.2 to 9.3.3 and 11.7 to 11.8);
- whether the Board should be requested to investigate a matter further and report in writing to WCAT [s. 297(2)(b)] (9.3.1);
- whether there should be a pre-hearing examination of a party on oath or affirmation or by affidavit [s. 297(2)(d)].
- Whether additional decisions or determinations are necessary:
- whether an appeal should be suspended while a matter that should have been determined is referred back to the Board for determination [s. 297(3)] (8.4.1);
- whether an appeal should be suspended pending the Board’s decision on a related matter [s. 305] (8.4.4).
9.3 Panel Inquiries
9.3.1 Investigation by the Board under Section 297(2)(b)
A panel may ask the Board to investigate further into a matter relating to a specific appeal and report back in writing. Examples of such inquiries include, but are not limited to, ergonomic assessments and other types of worksite assessments, functional capacity evaluations, and obtaining class averages for particular occupations.
Before requesting further investigation by the Board, the WCAT panel may make findings of fact or resolve other issues. These will be included in the request which will be issued in the form of a memorandum. When WCAT receives the Board’s report, it will be provided to the parties together with the memorandum of request. WCAT will then give the parties the opportunity to make submissions (184.108.40.206).
9.3.2 Other Panel Inquiries under Section 297(2)(a)
A panel may directly obtain further evidence or information relating to a specific appeal. Examples of such inquiries include, but are not limited to, medical opinions outside of the IHP process, or income tax information from the Canada Revenue Agency. WCAT will provide this new evidence or information to the parties and give them the opportunity to make submissions (220.127.116.11).
9.3.3 Panel Site Visit
Rule: Where the panel concludes that a site visit is necessary, participating parties and their representatives must be invited to attend.
The panel may receive comments and submissions from the parties during the site visit, or may convene or reconvene an oral hearing for submissions on the relevance or significance of the matters observed during the site visit. Generally, no voice recording will be made of the site visit or of any comments or submissions the parties make during the site visit.
The purpose of the site visit should be to appreciate the evidence and not to gather evidence. If the purpose of a site visit would be to gather, the panel should ask the Board to obtain the evidence through further investigation (see item 9.3.1).
9.4 Statutory Provisions affecting WCAT Deliberations
There are several provisions of the WCA that govern WCAT deliberations and decision‑making.
9.4.1 Merits and Justice
The panel may consider all questions of fact and law arising in the appeal [s. 303(1)].
A panel must make its decision based on the merits and justice of the case, but in so doing must apply a policy of the board of directors that is applicable in that appeal [s. 303(2)]. If the panel is hearing an appeal respecting the compensation of a worker and the evidence supporting different findings on an issue is evenly weighted in that case, the panel must resolve that issue in a manner that favours the worker [s. 303(5)].
9.4.2 Application of Policy
Under section 319, the board of directors sets and revises policies respecting compensation, assessment, rehabilitation and occupational health and safety.
Section 303(2) states that a panel must apply a policy of the board of directors that is applicable. It is for the panel to determine if the policy is applicable in that appeal. A panel may refuse to apply a policy of the board of directors only if the policy is so patently unreasonable that it is not capable of being supported by the WCA and its regulations [s. 304(1)]. In that event, the panel must refer the policy to the chair of WCAT (see 9).
Panels may ask the Board to advise of a policy of the board of directors that is applicable to the matter under appeal [s. 295(4)]. A request of this nature will be sent to the Policy and Research Division of the Board. WCAT must advise the parties of the Board’s response [s. 295(5)].
9.4.3 Legal Precedent Not Binding
The panel is not bound by legal precedent such as prior WCAT decisions on similar issues unless provided by a precedent panel under section 285(6) [s. 303(1)] (2.7.2). WCAT is bound by previous final decisions on the specific claim that is the subject of appeal. This includes decisions of Board officers, the Review Division, WCAT, former appeal bodies, and the courts.
The panel is also not bound by decisions of the courts. However, if a court in another case determined the correct interpretation of a WCA or Board policy provision, the panel may be bound to apply the court’s interpretation. In contrast, if a court upheld an earlier WCAT interpretation of a WCA or Board policy provision as reasonable, the panel need not follow that interpretation if it prefers another interpretation that is also reasonable.
9.4.4 Except Precedent Panel Decisions
The panel is bound by a prior precedent panel decision (under section 285(6)) unless the specific circumstances of the matter under appeal are clearly distinguishable from the circumstances addressed in the precedent panel’s decision or, subsequent to the precedent panel’s decision, a policy of the board of directors relied upon in the panel’s decision was repealed, replaced or revised, or the prior decision has been overruled under section 303(4) [s. 303(3)] (2.7.2).
WCAT precedent panel decisions are accessible on the WCAT website at: www.wcat.bc.ca.