Historically, both the WSIB and the WSIAT have embraced the concept of "whole person" adjudication. This concept is based on the principle that decision-making in disability-related cases should not be fragmented by issue or by body part, as this can lead to incomplete and unfair results as well as duplication of process.
The concept of whole person adjudication has, however, been tempered by the practical realities that apply in disability cases. Entitlement issues often arise and are addressed in sequential order over time consistent with the legislated benefit scheme. This, combined with the fact that disability levels can change over time, may limit the ability of an adjudicator at any level to deal with all issues at one point in time. Also, a legislated obligation exists for both WSIB and WSIAT to resolve appeals within their jurisdiction.
The following guidelines, prepared by the WSIB and the WSIAT, express their common understanding and practices with respect to how the concept of whole person adjudication should apply. This does not alter the ongoing need for adjudicators at all levels to exercise their judgment based on the circumstances of individual cases.
All relevant aspects of a worker's claim should be considered at the same time. As a result, the following guidelines should be applied in the adjudication of appeals:
a) In determining which issues are relevant to an appeal, consider whether there are any outstanding matters which will likely be adjudicated on the bases of the same or similar evidence as the issue under appeal and add these issues to the appeal proceedings where possible;
b) If a worker is claiming entitlement to benefits for chronic pain disability/ psychotraumatic disability, the resolution of all issues related to the worker's entitlement on a non-organic basis should be dealt with before proceeding;
c) If the worker is claiming entitlement to benefits for a particular body part, all outstanding entitlement issues with respect to related claims should be resolved before proceeding (please see guidelines below with respect to defining related claims);
d) If the issue under appeal relates to the worker's entitlement to ongoing benefits, all outstanding issues related to initial entitlement should be resolved before proceeding;
e) If the appeal involves the worker's entitlement to temporary disability benefits, VR/LMR services, suitable work or supplementary benefits under s. 43(9), all outstanding issues related to the worker's FEL award should be resolved before proceeding;
f) If the worker is claiming entitlement to supplementary benefits under s. 147, all outstanding issues related to the quantum of the worker's pension, as well as outstanding issues involving supplementary benefits in other claims, should be resolved before proceeding.
In cases where an appeal has been brought that is incomplete for one or more of the reasons identified above, the appellant should be advised as early in the appeal process as possible that he or she may be prejudiced by proceeding in the absence of a ruling on the outstanding issue(s). The appellant should be given an opportunity to defer the appeal pending resolution of the outstanding issue(s) in question. If the appellant insists on proceeding, the WSIB will reach a decision on the presenting issue(s) only. If the outcome of any subsequent adjudication on a related issue affects the decision reached, the decision may be reconsidered.
In cases where an incomplete appeal has been brought before the WSIAT, it may defer further action on the appeal until such time as the WSIB has completed adjudication on the outstanding matters as is reasonably necessary for the full and fair adjudication of the appeal (please see the Tribunal's Practice Direction on Inactive Appeals).
Claims occurring either before or after the claim under appeal should be reviewed, and outstanding issues resolved, where:
a) The claim relates to an accident occurring within five years preceding the date of the accident under appeal;
b) The claim involves the same body part as the claim under appeal (for purposes of reviewing related claims, "body part" should be interpreted broadly. For example, all claims involving the spine should be reviewed when the issue under appeal involves an injury to the back. Similarly, if the issue under appeal involves the hand or elbow, claims involving the shoulder should be reviewed);
c) The claim has resulted in a PI or PD award, regardless of the part of the body involved or the date of the claim;
d) The issue under appeal involves entitlement to benefits for CPD /psychotraumatic disability (in these circumstances, all claim files should be reviewed).
Discretion should be exercised by the decision-maker in considering which files may be relevant to a particular appeal, since some prior or subsequent claims may be so minor, or occurred so long ago, that a review is not practically warranted.
Relevant Medical Evidence
Decision-makers at all levels should identify and obtain all relevant medical information necessary to ensure a full and fair enquiry. Workers and their representatives are expected to assist by providing information in their possession or by obtaining and providing current medical information. Examples of such information include:
a) Diagnostic test reports;
b) Consulting specialist reports;
c) Psychiatric reports where entitlement to CPD/psychotraumatic disability is at issue;
d) Medical reports relating to prior or subsequent non-compensable accidents, including motor vehicle accidents.
If relevant outstanding information has not been obtained by the prior level of adjudication, it should be identified and requested from the appellant as early in the appeals process as possible.
Benefits that Flow from a Decision
To the extent that it is reasonable, and where reliable evidence is available to do so, a decision on an appeal should include a ruling on benefits payable. This avoids duplication in process and difficulties in the implementation of decisions. Therefore, where a decision is made to grant entitlement, the benefits flowing from that entitlement, including type, level and duration, should be determined at the same time. As a matter of procedural fairness, the parties must be advised that benefits are a related issue and that submissions on benefits should be included along with submissions on the substantive entitlement issues under appeal.