Update July 26, 2023
The first phase of our consultation began on June 8, 2023 and closed on July 21, 2023. We appreciate all the feedback received, which overwhelmingly supports improvements to the dispute resolution and appeals process while raising valid concerns around the potential impact of truncated deadlines. We’ll publish the consolidated submissions along with our analysis and response, in the fall of 2023.
This is the first phase in our effort to improve people’s experience with dispute resolution and appeals at the WSIB and to make sure people get the support they need to get the best possible return-to-work and recovery outcomes. We welcome all perspectives so that any improvements we make take into consideration the impact on the people we’re here to help.
As we work toward making gradual improvements in our delivery of dispute resolution and appeals services and consider the opportunities presented in the audit, we will provide more opportunities for consultation before final decisions are made. In the meantime, additional comments and feedback are welcome by email to email@example.com.
Over the next two years, we’ll be making changes to improve our dispute resolution and appeals processes. The changes will include implementing recommendations from our recent value-for-money audit. An independent third-party auditing firm made these recommendations based on a jurisdictional scan, research on leading return-to-work and recovery practices in Canada and internationally, and interviews with various stakeholder groups.
We have six categories of questions about the audit recommendations that we would like your feedback on to help us successfully implement our planned changes. We will work to find a balance when taking into account feedback from our various stakeholders.
If you’re interested in answering any of these questions about the dispute resolution and appeals processes audit recommendations, please email firstname.lastname@example.org with your feedback. We will accept written submissions until Friday July 21, 2023. Please note, we will post all the stakeholder submissions we received on this page following the consultation. We look forward to hearing from you.
By participating in this consultation, you’ll help guide our approach to improving our dispute resolution and appeals processes so that we can better meet the needs and expectations of the people we are here to help.
The WSIB’s dispute resolution and appeals processes
Our dispute resolution and appeals processes are organized into three segments; dispute resolution, appeals, and appeals implementation.
Under the Workplace Safety and Insurance Act (WSIA), people with injuries and businesses have a right to appeal decisions that affect them. Before an appeal, the dispute resolution process begins when a person with an injury, a business, or both, disagrees with a written decision made in a claim by a decision-maker (e.g., a Case Manager or Eligibility Adjudicator).
During the dispute resolution phase, the person with an injury or the business may contact the decision-maker to discuss the decision, seek clarification, or provide additional information. When we take a further review of the decision based on new information, this is called a reconsideration. A reconsideration may confirm, change, or reverse a decision. If someone still disagrees with our decision after a reconsideration, they can move to an appeal.
The WSIA creates a two-level appeal process in Ontario. Our Appeals Services Division is the first level of appeal responsible for making our final decision. The second and final level of appeal is the Workplace Safety and Insurance Appeals Tribunal (WSIAT), which is independent of the WSIB. Appeals Resolution Officers (AROs) at the WSIB decide on appeals through either a hearing in writing or an oral hearing. Oral hearings can be in person, by telephone or by videoconference.
Appeals Resolution Officers send their written decisions to people with injuries, businesses and the WSIB’s appeals implementation team which is responsible for implementing these decisions within set timeframes.
A person with an injury or a business objecting to a decision we’ve made must do so within the time limits set out in the WSIA(sec 120). Return-to-work decisions have 30 calendar days for objection while all other decisions have six months. The WSIAalso states the person or business must explain why the decision is incorrect or why it should be changed.
We are able to set our own practices and procedures (sec 131).
Recommendations from the recent value-for-money audit
A recent value-for-money audit conducted by an external firm reviewed the efficiency, and effectiveness of our dispute resolution and appeals process and included a number of recommendations for us to improve those processes.
We have six categories of questions about the audit recommendations that we would like your feedback on to help us successfully implement our planned changes.
Recommendation 1.1: We should establish expertise in alternative dispute resolution within front-line decision-makers and the Appeals Services Division to provide early resolution and reduce the volume of cases going to appeals.
The WSIA (sec 122(1)) allows us to offer mediation services when we think it would be most appropriate. Considering this recommendation, we are evaluating a mediation-arbitration model of alternative dispute resolution for certain appeal scenarios, similar to the model used in family law cases in Ontario. Mediation-arbitration is a hybrid dispute resolution process that combines the features of both mediation and arbitration. In this process, a mediator helps the parties reach an agreement for settlement, and if the parties are unable to reach an agreement, the mediator then acts as an arbitrator and makes a binding decision, similar to what an Appeals Resolution Officer does today.
To be eligible for mediation-arbitration, we acknowledge that both parties, or at least the appellant, must agree to the process and sign a mediation-arbitration agreement as outlined in the WSIA(sec 122(3)). This agreement should include the terms and conditions of the process, including the scope of the mediator’s authority and the specific steps that will be taken within specified timelines if the parties are unable to reach an agreement.
Certain issues related to medical compatibility or initial entitlement are not appropriate for mediation-arbitration. Issues related to cooperation or re-employment are more suitable.
We’re interested in hearing from our stakeholder community about the factors we should take into account when implementing this alternative dispute resolution model. For example:
Recommendation 1.1: Our alternative dispute resolution and appeals processes should only start once the workplace party has clearly documented the reasons related to the decision they are objecting to, why it should be changed, and the proposed remedy.
The WSIA(sec 120(2)), outlines that the workplace parties must indicate in writing why the decision is incorrect or why it should be changed. Understanding that and what each party wants (i.e., the proposed remedy) is foundational to both formal and informal methods of resolving disputes in a timely and quality manner. We already ask these questions on our intent to object and appeal readiness forms, however, the parties do not always complete the information. In implementing this recommendation, we will make it mandatory to provide complete information through the current processes or through alternative dispute resolution.
Recommendation 1.1: We should adopt set timeframes for the reconsideration process.
The audit recommends we adopt a 30-calendar-day time limit through legislative change. We will review the proposal for legislative changes with the Ministry of Labour, Immigration and Training and Skills Development. Ultimately, the Government of Ontario has jurisdiction over changes to the WSIA. However, we can implement timeframes that apply after we receive an intent to object form. For example, we could change the process so that once an intent to object form is submitted, a response on the reconsideration must be made within 30 calendar days and we could grant an additional 30 calendar days if any supplemental information is required and then allow 30 calendar days to complete the alternative dispute resolution and reconsideration processes and communicate the decision back to the person with the injury or business.
- What appealable issues do you think are appropriate for this mediation-arbitration model?
- What principles should guide the mediation-arbitration approach? What else should we consider?
- If mediation does not resolve the issue, what factors should be considered to determine whether an oral hearing or a hearing in writing should be used for the arbitration component by the Appeals Resolution Officer?
- To ensure expediency, what would be a reasonable timeframe for the mediation component? Is 30 calendar days reasonable?
- How might alternative dispute resolution be used by front-line decision-makers? If there is a dedicated team of front-line operational experts delivering alternative dispute resolution, how much should other front-line decision-makers be trained in the approach?
- What factors should we consider in making the above information mandatory to initiate the dispute resolution and appeals process?
- What factors should we consider when implementing 30—calendar-day timeframes for each step in the above reconsideration process?
Recommendation 1.2: We should implement a one-year time limit after the initial decision date for appeal readiness forms to be submitted. Both parties should be required to include their proposed resolution on the appeal readiness form, which will help define the resolution method, the scope of the dispute and the necessary expertise and documentation required.
Currently, once the time limit to object to a decision has been met, people with injuries and businesses have no time limit as to when they can submit the appeal readiness form. This means that an appeal readiness form can be submitted years after the original decision was made, and as mentioned above, without enough information about their desired outcome (i.e., the proposed remedy). As a result, it takes us more time and effort to address the reconsideration which makes it difficult for us to offer consistent service for all claims
- If we were to implement a new one-year time limit from the decision date to submit an appeals readiness form on January 1, 2024, how should we manage appeals from before this date where an appeal readiness form has not yet been submitted?
- Should appeals from before this date be exempt from the requirement to send an appeal readiness form within one-year?
- If we were to make appeals from before this date exempt from the requirement to send an appeal readiness form within one year, what would a reasonable time limit be? Would one year from the new effective date be reasonable?
- Under what extenuating circumstances should we consider extending the one-year time limit for submitting the appeals readiness form?
- Is January 1, 2024, a reasonable start date for the new one-year appeal readiness form time limit? How much time would you need to make sure you have enough notice for a start date?
The current criteria we consider for a time limit extension is in the Appeals practices and procedures document and below:
- Whether the person received actual notice of the time limit.
- The person was experiencing serious health problems.
- Someone in the person’s immediate family has experienced serious health problems.
- The person had to leave the province or country due to an illness or death in their family.
- The person has a condition that prevents them from understanding or meeting the time limit.
- The person objected to other closely related issues within the time limit, and it would be impossible to address all of the issues separately.
Recommendation 2.3: We should establish criteria for determining in-person or online hearings by considering factors like geographical location, suitability and appropriateness of technology, and accessibility.
Since the start of the pandemic in 2020, we have been very flexible in determining the method of resolution for appeals. We have worked directly with the parties to best accommodate their needs either online, in person, or in a hybrid manner for oral hearings. We conducted a survey in 2022 on online oral hearings and it showed that they were positively received and that we should continue to offer them. Our current oral hearings are online. We make exceptions for in-person oral hearings in unique cases impacted by things like accessibility needs or technological challenges.
- What other factors should we consider in determining whether the oral hearing should be offered in person or online?
Recommendation 3.1: We should make sure that return-to-work decisions with a 30-calendar-day time limit are prioritized and expedited through the appeals process.
We have an expedited appeal process for return-to-work decisions. Currently, the following decision types have a 30-calendar-day time limit to appeal and are considered for an expedited appeal:
- job suitability decisions where functional abilities or level of impairment are not in dispute
- lack of cooperation on a return-to-work plan from the person with the injury or business or during a training program
- suitable occupation and/or training plan decisions
- re-employment decisions
We do not use the expedited process if there are decisions involving other issues coupled with the above (i.e., those with a six-month time limit).
We are considering adhering to the 30-calendar-day time limit and expedited process when there are multiple issues (i.e., both those within the 30-calendar-day and the six-month time limits). This would mean that the return-to-work issue would be expedited through the appeals process independently regardless of whether it is coupled with other issues or not.
- What factors should we consider in expediting return-to-work issues when there are multiple issues in an appeal?
Recommendation 3.2: We should reinforce the 30-calendar-day time limit for appeal implementation and ensure this is measured across the organization.
Case Managers have 30 calendar days to implement appeals decisions from the Appeals Services Division or WSIAT. Decision implementation timeframes depend on how much of the required information is available on the claim file. If the Case Manager needs more information from the workplace parties, implementation may take longer than 30 calendar days.
Currently, the Appeals Resolution Officers’ decisions sometimes lack instructions and the information required to implement their decision. We will review the way Appeals Resolution Officers’ decisions are written to make sure they include directions for their decision to be implemented including any supplementary information needed. The decisions will also address the issue and entitlements requested by the parties as identified on the Appeal Readiness Form or the benefits that flow from the decision as part of the parties’ proposed resolution to the appeal.
- What factors should we consider in reinforcing the 30-calendar-day timeline for appeal implementation?
Recommendation 4.2: We should exclude decisions based on standardized calculations from our internal appeals process and these decisions should be appealed directly to the WSIAT.
We are assessing examples of decisions we make that rely on standardized calculations to determine if we should exclude them from our internal appeals process. This might include certain permanent impairment rating (quantum) decisions, and their non-economic loss monetary award calculations; certain loss-of-earnings benefits calculations and decisions; and certain personal care allowance decisions.
- If we were to exclude decisions that rely on standardized calculations from our internal appeals process, what are some factors we should consider?
- Are there other decision types that we should exclude from our internal appeals process?
- Sometimes in different claims for the same person, an issue in dispute may be active with WSIAT while another issue is active with us. Should there be options to request for us to exclude some decisions from our internal appeals process to pursue the holistic resolution of the issues for the person or business at the WSIAT? Under what circumstances would this be best? What else should we consider?