New WSIB Appeals Rules and Challenges

Transcription

New WSIB Appeals Rules and
Challenges - What you need to
know!
Sch 2 Employers
Conference
October 9, 2013
Presented by Michael Zacks,
Expert. Confidential. Free.
www.employeradviser.ca
1-800-387-0774
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Today’s Goals
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WSIB Appeals Modernization
How to assess your case
How to prepare & argue an appeal
Effective advocacy
How the new WSIB appeal rules
can impact your WSIAT appeal
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Appeals Modernization Key Messages
Strict adherence to WSIA objection time limits
New forms driven process
Written hearings in many cases
Oral hearings only for complex appeals and credibility
issues
■ Case management process
■ Read Policy and Procedures document on WSIB website
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Strategic Approach
• How do I use each step to best advance client’s interest
• You must understand your case and the opposing position
fully even if other party doesn’t participate
• Put yourself in the CM / ARO’s shoes
• Make the best case you can at the earliest stage
• WSIB is opening up important opportunities for operating
level reconsideration
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Key New Forms
• Intent to Object Form
• Available on website
• Reviewed by Operations staff
• Appeal Readiness Form
Mailed with copy of file to objecting party
• Reviewed by OIT staff first, then Appeals staff, then case referred to Appeals Services
Division
• SIGNATURE OF AUTHORIZED REPRESENTATIVE SUFFICIENT
– No longer mandatory to obtain worker or employer signature
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• Respondent Form
• Mailed to responding party when copy of file (access to record) provided
• Reviewed by Appeals staff
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Time Limits
• From the date of the decision letter
• 30 days for objections regarding
work transition (RTW), work reintegration (LMR),
and re-employment objections
• 6 months to object for all other issues
• 6 months to object to WSIAT on all issues
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Watch Your Mail!
• WSIB uses regular mail for decision letters
• From time decision letter received could be 4/5 days
• Ensure WSIB correspondence comes to you asap
• important in later stages with short response times
• Given short appeal time limits always fax in forms
• keep proof of fax transmittal
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Missed a time limit? ….
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Extending the Time Limit
• Very limited grounds to extend objection period
• Serious health problems experienced by the party or the party’s
immediate family
• A party needs to leave Ontario due to the ill health or death of a
family member
• An organic or non-organic condition that prevents the worker
from understanding the time limit and/or meeting the time limit
• Has a previous issue been appealed in time, that is closely
connected to an issue outside the appeal time limit – mixed time
limit …
• Do not miss a time limit!
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Mixed Time Limits
• If a party intends to object to a RTW issue and another issue(s),
WSIB will generally extend the time limit to object to the return-towork issue to six months
• A missed 30 day issue can possibly be extended by combining it with
a 6 month issue: e.g.,
• A RTW issue with initial entitlement
• No time limit to appeal denial of extension to ARO
• Can appeal ARO time limit denial decision to WSIAT
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Intent to Object Form (ITO)
• Must use the ITO to initiate objection
• ITO initiates a case manager reconsideration process
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Form on website
Submitted ITO stops time limitation clock
No file access at this time
Utility of form depends on what you know and time limits
Only 1st page must be submitted – 2nd page only if party has new
information
• Authorized rep can sign ITO
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Use ITO Strategically
• ITO useful on recon if
• have new information or
• want to identify issues that were not properly considered – ie, policy not
followed properly
• Normally will not have file access at time of submission, and
depending on decision date and type of decision may not be able to
wait, so submit the ITO as soon as practicable
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Benefits / Risks of Providing Reasons
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Use second page of ITO or additional pages
A successful reconsideration does not end matter
Worker will appeal, but shifts onus to worker to object
Be careful of reasons – forms part of file and will follow you to
WSIAT!
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May not have all info so ensure your facts are accurate
Good for policy based objections
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Reconsideration Process
• Recon occurs within 14 days
of ITO submission
• If decision unchanged access
provided with in 30 days
• Other party (employer usually)
gets participation form in this
period
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Participant Form (PF)
• PF not online
• No time limit to return but do so a.s.a.p.
• If worker submits ARF quickly appeal can be
registered in ASD and set for hearing within 90
days with no notice to respondent
• Less time to make submissions for written
hearing and hearing date may be fixed for oral
hearing
• MUST complete PF to stay involved in
appeal process
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Written Hearings – A List
A1. Time Limit to Claim - s.22
A2. Simple Initial Entitlement (one party) – chance
event and disablements
A3. Occupational Disease – medical causation with
no factual dispute
A4. Noise Induced Hearing Loss
A5. Medical Compatibility
A6. Earnings Basis
A7. Less than 4 weeks of loss of earnings (LOE)
benefits
A8. Health Care Benefits
A9. Job Suitability – no factual dispute
A10. New Organic Condition
A11. Recurrence 2 years or less from date of
injury/illness
A12. Secondary Condition
A13. Request for an Independent Medical
Examination
A14. Simple Non-Organic Conditions – no factual
dispute
A15. Medication
A16. Co-operation in Health Care Measures
A17. Pension or non-economic loss (NEL) award
Quantum/Redetermination
A18. Pension Arrears
A19. Pension or future economic loss (FEL)
Commutations
A20. CPP Offset
A21. FEL – entitlement and supplement
A22. s.147 supplement
A23. Benefit Related Debt
A24. Survivor Benefits (general)
A25. Second Injury and Enhancement Fund (SIEF)
A26. LOE Lock-in (straight-forward and no factual
dispute
A27. Time Limit to Object – s.120
A28. *Any issue that turns on a policy interpretation
or a review and weighing of medical information
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Oral Hearings – B List
B1. Initial Entitlement (generally two party) –
chance event and disablements where
there is contradictory information and/or
testimony would add to the information
already in the case material
B2. Complex Occupational Disease
B3. Complex Non – Organic Conditions
B4. Traumatic Mental Stress
B5. Job Suitability where there is contradictory
information and/or testimony would add to
the information already in the case
material
B6. Co-operation in Return to Work
B7. Co-operation in Work Transition (Labour
Market Re-entry)
B8. Work Transition Plans
B9. Re-employment (where the threshold for
re-employment has been met)
B10. LOE Lock-in (unless straight-forward and
no factual dispute)
B11. Recurrence more than 2 years from date
of injury/illness
B12. Survivor Benefits – complex
determinations of who is a
spouse/dependent
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Hearing in Writing vs. Oral Hearings
• Oral hearings not simply granted on request
• B List identifies cases that generally require oral hearing vs.
hearing in writing
• Appeals Manager decides if oral hearing warranted
• Considers list and the detailed information provided by objecting party
and respondent on ARF and RRF
• Critical that parties indicate why an oral hearing is necessary –
not helpful to simply reference that a case is found on the “B”
list.
• Oral hearing will not be granted for appeals on the A list unless
party establishes that there are exceptional circumstances
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Appeal Readiness Form (ARF) …
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File when ready after access
Employer and worker specific
ARFs
ARF detailed and asks for full
explanation of case and issues
May request oral or written
hearing in ARF
Does not apply to revenue
disputes
Only complete if you are really
ready for hearing within 90
days
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Appeal Readiness Form (ARF)
• All relevant entitlement issues must be decided at hearing
• If party disagrees with a newly decided entitlement issue,
after receiving an ARF must submit a new ITO for that
issue before the time limit date indicated in the decision
letter
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Respondent Readiness Form (RRF)
• RRF sent to respondent with appellants ARF, attached
documents, and appellant submission
• 30 calendar days to return RRF
• Watch time
• Diarize / tickler system
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Request for Oral Hearing
• If oral hearing request denied, workplace parties will have
further 21 calendar days from date of letter to submit
additional information, if any
• Note: 21 day clock will not stop if there is a request for
a reconsideration of decision that oral hearing not
warranted
• Denial for oral hearing can be appealed but does not stop
21 day clock
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Written Hearing – ARF/RRF Submission
• ARF / RRF is your hearing
• Your only shot a persuading ARO of merits of your position
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Provide reasons for appealing / responding
Your theory of your case
State outcome you want
A detailed position on all the issues included in appeal
Include all relevant information / documents
State number of pages in your submission (not including the form), and put the
worker's name and claim number on each page of submission
• Address strengths and weaknesses – no opportunity to discuss issues with
ARO
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ARF Downside Risk
• ARO will identify downside risk prior to making decision
• Party has opportunity to withdraw appeal or proceed
• No appeal to WSIAT if appeal withdrawn
• Withdrawn cases can re-enter appeal stream in 30 days with new
ARF
• If party proceeds gets 21 calendar days to make submission on
downside risk issue
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Written Hearing Strategy
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The ARF will be part of the record at WSIAT
Ensure your statements are factually accurate
And arguments logically sound
WSIAT vice chair may wonder about inconsistencies
If you are going to take another approach at WSIAT be sure to
address it in your WSIAT submissions and explain why
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Oral Hearings: 14 Day Rule
• Parties expected to provide all relevant documents with ARF / RRF
• Post ARF / RRF registered in ASD - documents only accepted if
reasonably not available pre- ARF / RRF
• Best practice – send copies of these documents to other side
• Medical reports accepted only if available post ARF / RRF up to 14
days prior to hearing date
• Provide late document to other side as soon as received to avoid hearing delay
and minimize prejudice
• Provide WSIAT decisions, ARO decisions, medical/scientific papers
to ASD and to other side at least 14 days prior to hearing
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Oral Hearing Process…
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ARO confirms issue under appeal
ARO advises of any downside risk
Preliminary matters
Each party makes opening statement, appellant first
Appellant questioned by rep, opposing party’s rep and ARO
If AE providing testimony, may go before worker even if
worker appeal
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…Oral Hearing Process
• Appellant’s witnesses questioned in same order
• Opposing party’s witnesses questioned by opposing rep,
appellant rep, and ARO
• Appellant rep gives closing
• Opposing party then gives closing
• Parties’ responses to closings
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Hearing Preparation
• Understand the issues and facts
• Understand medical evidence
• Review relevant board policy
• right policy for the date of the accident
• operational policy manual on line
• Prior WSIAT or WSIB decisions
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Preparing Your Case
• Determine critical issues and facts
• Your/your opponent’s
strengths/weaknesses
• What is the theory of your case?
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Theory of the Case...
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How did the accident happen/not happen ?
Why was worker not in course of employment?
Relate facts to theory
How will you prove your facts - best evidence
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case record
personnel documents
photograph
witness (summons)
• What facts and policy prove your opponent’s theory of the
case?
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…Theory of the Case ...
• What are the medical facts?
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Is this the best medical evidence?
Is there a dispute on the medical issues?
Do you need better medical evidence ?
Is the evidence clear and convincing ?
Do you understand it?
Do you need a specialist?
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...Theory of the Case
• If possible, build theory around incontestable facts such as
WSIB documents, etc.
• Theory should be consistent with incontestable facts
• Theory should explain away as many unfavorable facts as
possible
• Theory should be down to earth and have a common sense
appeal
• Theory cannot be based on wishful thinking about any
phase of the case
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Preparing Your Case
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Be objective and critical
Consider appropriate WSIB policy
Consider Benefit of Doubt
Consider Merits and Justice
Write out questions
Write out opening and closing
statements
• Present the evidence in most
effective manner possible
• Keep it simple!
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Benefit of Doubt 11-01-13
• Where it is not practicable to determine an issue because the
evidence for or against the issue is approximately equal in weight,
the issue shall be resolved in favour of the person claiming benefits.
• This policy is not to be used as a substitute for evidence. It is applied
when the facts of a case are so evenly balanced that a clear decision
is impossible.
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Merits and Justice – 11-01-03
• May be rare cases where the application of a relevant policy would
lead to an absurd or unfair result that the WSIB never intended
• Decision-maker may depart from a policy if it can be shown that the
case has exceptional circumstances that justify doing so
• The decision-maker must clearly identify the exceptional
circumstances and explain in the decision why the relevant policy is
not applicable
• Merits and justice does not authorize a decision-maker to disregard
the relevant provisions of the Act or WSIB policies
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Plan Your Case Backwards
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Theory
Closing Statement
Cross Questioning
Direct Examination
Opening Statement
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Witnesses
• Decide which witnesses to call
• Primary consideration - the facts constituting the ground of appeal or
the defence must be proven
• Facts proven by opponent harmful to your case must not be left
without explanation
• Need to provide will-say in re witnesses evidence in ARF / RRF
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Pre-Hearing Witness Prep …
• Improper to suggest what witness testimony should be
• If witness makes statements in conflict with other evidence review
discrepancy with witness
• If evidence still unsatisfactory, decide whether to call witness or if
further testimony should be secured
• Advise witness what they may be asked in cross if discussed
evidence with you before hearing
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...Pre-Hearing Witness Prep…
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Review documents witness will identify, interpret, or testify about
If testifying to a physical fact, i.e. description of accident location
Discourage memorizing answers
Review testimony with witness prior to hearing
Tell the truth!
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Guidelines for Answering Questions...
• Listen carefully to every question – don’t answer until the question is
over
• Answer questions truthfully, but respond only to the question
• Answer politely - not in a belligerent or impertinent tone
• Readily admit errors or inaccuracies in testimony, and correct errors
at first possible opportunity
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Guidelines for Answering Questions
• Do not argue with opposing rep
• Don’t guess or assume answers
• Tell witness if you object to a question, witness not to give an answer
and to wait until the objection dealt with
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Cross Questioning
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Milder, gentler cross examination
Clarification
No harassment or badgering witness
Do not argue with witness
Do not give evidence
Write out questions
One fact per question
How does question advance your case?
Do you know the answer?
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Written Hearing Submissions
A Suggested Process and Format
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Purpose of Legal Writing
• Directed toward persuading the reader (ARO or vice-chair) to accept
a certain position
• Everything you submit should put into the reader's mind the
information and motivation necessary for a favourable decision
• You're not writing to entertain, show how smart you are, how many
authorities you can cite for one proposition, or even writing to inform
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Before you start to write ….
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Know Your Case
• What are the primary questions?
• fact, law / policy, or both
• If factual build and check record
• Confirm correct policies and legal issues
• Do your WSIAT / WSIB decision research
• Confirm theory of your case
• Ask what you want up front and at the end
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Write for the ARO
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Make the ARO’s job easier
AROs busy and under pressure
Yours is not the only submission they will read
Most of what ARO reads is dreary and boring
You must write to engage
Your story has to make sense to the ARO
• Submissions must be consistent with policy
• Your submission and resolution must work for ARO
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Importance of Proper Preparation
• Writing is the last thing you do
• Have a compelling theme
• Structure is critical
• Facts and law must be organized in a coherent and persuasive fashion
• Emphasize your strongest arguments and abandon your weakest
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Document Appearance Tools
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Overviews
Major headings with appropriate subsections
Bullets
Schedules
Table of contents for larger documents
• Cases
• Documents
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Timelines if appropriate
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Style …
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Style
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Documents must be easy to read, well organized
Strive for simplicity
Use headings, bullet points and sub-paragraphs
Short sentences not long ones
Avoid euphuistic language
Use names not tittles
Respondents submissions should be stand alone documents
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Reader Friendly Writing
• Legibility is fundamental to readability
• Good legibility is determined by font choice and the
• relationships between type size, line length and spacing (between
letters, words, lines and paragraphs).
• An effective document is one that conveys your message well and
quickly.
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Reader Friendly Rules……
• Don't rely entirely on standard block paragraphs
• Use bullets if it makes sense - it is visually easier for the reader
• Use sensible paragraphing and numbering
• Don't go further than a third level of breakdown (e.g., 1.(a)(i))
• If you feel the need to go beyond that then chances are you've overused
headings (you aren't drafting legislation)
• Avoid roman numerals -they look too much like a foreign language
• If the items listed have no rank ordering, then bullets are preferable
to numbered lists
• Never use a font smaller than 10 or larger than 12 for the main body
of the text
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Reader Friendly Rules
• Avoid lines that are entirely capitalized - their uniform size makes
them difficult to read
• Avoid underlining - it's a throwback to the days of typewriters.
• Use italics or boldface to add emphasis
• There is evidence that justified right margins make text harder to
read, so it may be best to use ragged right margins for submissions
• Align headings to the left in a larger, bolded font.
• Use a smaller bolded font for sub-headings
• Readers like "white space", and makes the rest more easily
absorbed
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Styles to Avoid ….
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Styles to Avoid ….
• Too long sentences, paragraphs or sections
• Overly legalistic language
• Heretofore
• We would submit
• Essentially
• Write like people talk
• Car not motor vehicle
• Where he worked not where he was employed
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Styles to Avoid
• Avoid long paragraphs
• Rule of thumb is that a paragraph should not be so long that it cannot be read
aloud in one breath (generally 2-3 sentences)
• If you have more to say, then break the ideas into separate paragraphs
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Avoid Qualifiers and Fillers …..
• They're a waste of space and add nothing positive:
Instead of
Use
At that point in time
Then
By means of
By
By reason of
Because
By virtue of
By
For the purpose of
To
For the reason that
Because
From the point of view
For
In accordance with
By
In connection with
About
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Avoid Qualifiers and Fillers
In order to
To
In relation to
About
In terms of
In
In the event that
If
Prior to
Before
Subsequent to
After
With reference to
About
With respect to
About
He was aware of the fact that
He knew
In many cases
Often
During the time that
While
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Make Document Effective
• Consider starting with a question
• Did the worker co-operate in her work reintegration?
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State what you want up front and at the end of the submission
Use roadmaps and summaries
Use direct simple language
Accuracy – Brevity – Clarity
Revise, revise, revise
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Effective Submissions ….
• Begin Well
• The overview paragraph should tell the ARO what the case is about
• Point First
• Always start with the point you are trying to make - not the details of your
argument
• Readers remember and absorb information better when they first know why it
matters and how it is relevant
• Tell story in present tense
• Makes reader a participant
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Effective Submissions ….
• The right spin
• Facts matter a lot
• Benefit of doubt and merits and justice apply
• Consider them in how you set out your facts
• Know your forum
• Most effective technique for respondents is to show that the CM’s decision
rests on findings of fact, and that these findings are reasonably supported by
the evidence.
• You must be able to convince ARO that the CM made a significant error of fact
or misapplied WSIB policy
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Effective Submissions
• Anticipate the ARO’s concerns
• Most effective advocates are the ones who can notionally trade places with the
decision maker, anticipate what is likely to concern the ARO and then provide a
persuasive answer
• Be reasonable
• Don't overstate your case because it will destroy your credibility
• There is something effective about an appropriate concession
• Polish your argument
• Find the time to edit and rewrite your submission
• Clear thinking is the product of a lot of revision
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Avoid ….
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Analogies
Meaningless shorthand terms
Referring to parties by their status
Needless repetition – “it is respectfully submitted”, it is further submitted
Overstatement
Formulaic qualifiers and phrases
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Avoid …
• Using the word not whenever you can
• Lawyers use phrases like: "the witness did not remember" or the car did not hit
the tree"
• It‘s simpler and more elegant to say: "the witness forgot", "the car missed“
• Use affirmative language
• Absolute expressions – nothing is absolute
• All, always, every, invariably, never, non, totally, rarely accurate
• Weakens rather than strengthens argument
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Positioning
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Whether appellant or respondent put your own position first
Put contrary position as response to your own
If it doesn’t help don't say it
Don't quote or summarize your opponent's argument
• Familiarity doesn't breed contempt, it may breed acceptance, so the less the
ARO hears about the other side's case, the better
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Point First Writing ….
• Clearly and explicitly state your point or proposition at the start
• A submission isn’t a mystery novel, focusing on the details upfront
and revealing only the point or the conclusion at the end
• ARO shouldn't have to figure it out.
• You're trying to persuade ARO to accept your argument, not show how clever
you can be at telling a convoluted story
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Point First Writing
• Provide context before detail
• Tell ARO at outset what issue or idea or topic you're going to discuss
in the paragraph
• State it in the first sentence (usually your conclusion or submission
on that issue)
• Remainder of the paragraph is there to support your position
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Use of the Overview Paragraph ….
• Considered the single most important part of a submission
• Draft it last not first
• Objectives
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Grab reader’s attention
Capture essence of your case from your client’s perspective
Provide context from which facts and law should be assessed
Tells decision maker what you want and why
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An Overview Paragraph
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A) Nature of the Appeal
1. This case is about a lawyer, who, after taking a monetary retainer, lied about four (4)
examinations for discovery, lied about motions in court, lied about a court hearing, lied about an
appeal hearing, lied about the appeal decision (which he then forged), lied about the result and
consequence of the alleged Court of Appeal decision, lied about a further court motion, lied
about a further court decision., lied about a further court of appeal hearing and decision (nonexistent did but not forge), lied about an appeal to this Honourable Court, lied about judgment
being filed with the sheriffs department so the non-existent judgment could be enforced - and
then, when all the lies were discovered, now says he is sorry, he'd been drinking too much and
says he should not be disbarred.
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Use Ordinary Language
• Don't use any of the following (unless you're applying for a
government grant
Synergy
Paradigm Shift
Value-added
Core competency
Strategic alignment
Outside the box
Win-win
Empowerment
Leverage
Benchmark
Knowledge base
Collaborative
consultation
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Framing the Argument
• Frame issues so as to answer issues that are inevitable and
favourable to client
• Frame responses to worker’s issues
• Don’t duck tough issues
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The Facts
• Only facts that matter are those that provide necessary context and
are directly relevant to matters truly at issue
• Extraneous facts and details can obscure important facts
• Consider using direct quotes from important documents
• Use italics / bolding to emphasize words that really matter
• Deal directly and fairly with bad facts
• Consider charts, diagrams for complex situations
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The Law / Policy
• Don’t misstate law or policy
• Always bring relevant cases to attention of decision maker (Tribunal)
that have important bearing on your case
• Include cases that go against your position
• Use brief quotes from important cases
• Be fair in using ellipses
• Don’t use a partial quote if remainder would qualify or undermine your
argument
• Pinpoint cites and use hi-lighting or side-barring of cases in handouts
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Case Theory
• Write your theory down before you start drafting
• Stay consistent to the theory
• To be persuasive, the evidence and arguments have to make sense
and fit into your theory
• If you don't stay consistent to your theory the ARO will be confused and lose
the thread of your argument
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Rules on Dates
• Dates distract
• If the issue has no time-sensitive legal imperative, drop the date
• Putting in unnecessary dates gives the reader the cue that there is a
time sensitive issue, then stay on the lookout for that phantom point
• When ARO realizes she’s been fed a false impression they get pissed off
• Putting in a date that's not key diverts the reader from what you
want them to be looking for- all you've done is create your own red
herring
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Establishing a Chronology
• Focus on the temporal relationship between important events by
using words and phrases that quickly capture that relationship for the
reader
• Use simple words indicating time, such as: then, after, before,
following, later
• Avoid fancy alternatives like: subsequent to, prior to, at which point in
time
• Instead of referring to raw dates, use units of time, such as: hours,
days, months, years.
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Writing about Time Sensitive
Issues…
• Calculate the relevant time frames for the reader and state
them explicitly
• Doing the math for the reader makes the sequencing of
events more obvious and gives you the opportunity for
strategic advocacy:
• to drive home a point in a way you could not with raw dates alone
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Time Sensitive Examples
• On October 23, 2005, two weeks before the close of Discoveries, defence
counsel sent a letter seeking dates for the Plaintiff's examination. Almost
two weeks later, on November 4, 2004, the Plaintiff's lawyer responded with
two available dates
• The Plaintiff learned that she had a possible negligence claim in March 21,
2005 which triggered the six-month discovery period against the City
Defendant. She served her Statement of Claim less than 5 months later, on
August 4, 2005
• The Court ordered the Defendant to produce the document by February 13,
2005. Nevertheless the Defendant remained uncooperative - producing the
disputed Records more than two weeks beyond the Court's deadline, on
March 3, 2005
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Closings – Three Options …
• Outline what you want and remind the ARO why it is required in your
case
• Option #1: Tell the ARO why
• A good closing will encapsulate two or three compelling reasons for the ARO to
adopt your position. In brief, make your conclusions clear and make your
reasons explicit. What you are really trying to do is draft the ARO’s decision
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Conclusions – Three Options
• Option #2: Answer your own questions
• Writing the conclusion is simple if the opening was well-drafted. A good
advocate will close by answering the questions posed in the issues section.
However, it isn't enough to simply give the answers, a good conclusion will also
outline the reasoning that leads inevitably to the answer provided.
• Option #3: Finish where you began - pick up the theme of your
opening and restate it, refine it, re-develop it
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WSIB’s New Appeal Process Chart
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THANK YOU
Office of the Employer Adviser
1 800 387-0774
askoea@ontario.ca
Follow us on Twitter: @askoea
1-800-387-0774

New WSIB Appeals Rules and Challenges

Transcription

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