As employees begin to turn more and more to the Workplace Safety and Insurance Board (WSIB) for mental distress claims, employers need to know how to deal with the Board and the Workplace Safety and Insurance Appeals Tribunal (WSIAT) review and appeal processes.
Speaking at Heenan Blaikie’s 2011 Labour & Employment Seminar Managing Claims and Controlling Costs with the WSIB in Toronto yesterday, Charlotte Willson, a lawyer in the firm’s Labour and Employment Law Group, offered employers five tips to help manage these processes smoothly.
1. Know and protect the limitation periods: If the time period is not met for filing an appeal or raising an objection, the employer can be precluded. Although both the WSIB and the WSIAT have the authority to extend time limits, Willson said the WSIB is more likely to grant extensions.
2. Evaluate the cost-effectiveness of participating in these processes: Employers need to consider how much it’s going to cost in terms of time and money to successfully engage in the process, she said.
3. Provide timely disclosure: If the employer fails to disclose evidence or witnesses in a timely manner, the WSIB and WSIAT can refuse to consider that evidence or refuse to allow the witness to testify.
4. Effectively use statutory procedures to get evidence in support of your case: If an employee rejects the employer’s request for a medical examination, Section 35(1) of the Workplace Safety and Insurance Act allows the WSIB to direct an employee to attend the exam (and the WSIB chooses the health professional).
While this is beneficial for the employer, Willson stressed that the employer must have “compelling reasons” (e.g., to understand the nature of the worker’s injury) why the medical examination is necessary.
5. Become an expert on expert reports: To make sure a decision-maker will admit and consider an expert report, an employer needs to meet five basic conditions:
• ensure the worker’s identity is protected if health information is disclosed;
• disclose a copy of the letter (which should include the questions the expert was asked) that was sent to the expert soliciting the report;
• provide a copy of all the documents given to the expert;
• have the expert sign the report; and
• provide a copy of the expert’s resumé, outlining his or her education, training and expertise.
For more information, visit wsib.on.ca or wsiat.on.ca.