Law Times

Law Times • November 12, 2012 OBA wants ADR at heart of WSIB appeals modernization FOCUS BY MICHAEL McKIERNAN Law Times T art Storie LLP, co-authored the OBA workers' compensation law sec- tion submission to the WSIB' he Ontario Bar Association has urged the Workplace Safety and Insurance Board to put alternative dispute resolution at the heart of its planned appeals program modernization. William LeMay, a partner at Hicks Morley Hamilton Stew- members who represent both employees and employers, and one of the areas of consensus was that we as a bar need to do more in terms of ADR and early dispute resolution in order to streamline appeals," says LeMay. "It' "The OBA group has a unique perspective because we have s consultation process. which it says opens up the po- tential for "endless reviews of decisions that never reach the appeals branch" by reviewing the material from only one side. " s important to remember these are oſten cases between employ- ers and employees where there's an ongoing relationship there which may need to be preserved." the table from both sides as early in the process as possible. "In my experience, the more I know about the opposing case, the Many of the OBA recommendations focus on getting the cards on more room there is to talk about whether we can get a resolution or not," says LeMay. "This is an opportunity to increase the reliability, efficiency, and ting "systemic problems" had led to lengthy delays in addressing ap- peals by both employers and workers. Appellants typically face a six-month wait before they can get their affordability of the decision-making process." The WSIB put out a call to stakeholders this summer aſter admit- case assigned to an appeals resolution officer. During recent years, the number of unassigned matters has steadily grown to around 4,500. "Workplace parties and their representatives deserve a timely and responsive appeals program that produces quality decisions," reads the WSIB' "In recent years, the WSIB's appeals services division's ability to meet that standard has been eroding." s consultation report from June 2012. in initial decisions, including through the insertion of a paragraph outlining the appeals process, and also to clamp down on the time limits for lodging objections. Parties have 30 days to file a new, sim- pler intent-to-object form in return-to-work cases and six months for all others. Parties then have an unlimited amount of time to fill out a more In its report, the WSIB pledges to improve the quality of reasons detailed objection form that lists all of the evidence and submis- sions in support of their position. A dedicated objection intake team then reviews the documents and either sends the case back for reconsideration by the original decision-maker or to the ap- peals services division. It' objects to a decision and pro- vides new information. The employer is not involved in the process, and the objection intake team sends the objec- tion back to the operating area to reverse the decision. The employer then objects, and provides As an example, a worker which causes the objection in- take team to find for the em- ployer, and then reverse the decision again. It then goes back to the operating area for the worker to object again. This could go on forever. new information, mends the objection intake team hear from both ides of the dispute before reversing the original decision if nec- essary. The losing side would then be able to proceed directly to the appeals branch. The submission says that approach would also provide more opportuni- ties for alternative dispute resolution. " Instead, the OBA recom- " are aware of the case that the other side is advanc- ing, ADR only functions properly when both sides " the OBA submission notes. proposed processes need to be changed in order to ensure that parties to an appeal ex- change information as soon as possible aſter an appeal is launched. "As a result, the WSIB's employers and workers were also concerned by the con- sultation report' Lawyers representing both " on downside risk that would allow the WSIB to reconsider and reverse prior entitlement decisions granted in the file. The OBA' s proposals 'This is an opportunity to increase the reliability, efficiency, and affordability of the decision-making process,' says William LeMay. issues have been resolved by WSIB, they open up the whole case for review, bilizing for an employer or worker to be informed that if they appeal a specific issue, sometimes years aſter earlier with a serious issue or concern holds back for fear of losing something granted by WSIB previously. So a potential injustice will go unchallenged be- cause of fear of negative consequences for earlier decisions." "In many cases, this could mean that a party " the submission reads. LT sation law section worries that the report sets the bar too low for reconsideration and underplays the importance of finality in decision-making. "It is tremendously desta- s workers' compen- PAGE 13 OBA. In its submission, it raises concerns about extremely long de- lays in moving cases forward following the filing of a notice to object. "In some situations, we are seeing appeals brought forward a num- s at this stage that the process could fall down, according to the ber of years later. . . . Section members observed that in at least some cases, it appears that some clients may be informed by their repre- sentative that their appeal is being brought forward, when in fact no action is being taken," the submission reads. Even more concerning to the OBA is the reconsideration process, Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected 82 Scollard Street, Toronto, Canada, M5R 1G2 (416) 921-7997 ext. 225 or srball@82scollard.com Contact Stacey Ball at web: www.staceyball.com Untitled-1 1 all_LT_Nov7_11.indd 1 11-11-08 11:44 AM www.lawtimesnews.com Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Labour & Employment • Wills, Estates & Trusts NOT TOO BIG. NOT TOO SMALL. We are a law rm that combines experience, leadership and teamwork. We are a law rm that aligns best practice with exibility and pragmatism. We have an innate appreciation for each client's unique challenge. If this sounds like the right t for you, you've discovered Right-sized Thinking. ® Let us show you where it can lead. ® 12-03-07 11:28 AM One of the Top Three Ontario Regional Law Firms as chosen by the readers of Canadian Lawyer magazine.

• Cover