WSIAT GUIDE: WSIAT-INITIATED ASSISTANCE FOR MEDICAL ISSUES

As part of the WSIAT’s on-going efforts to promote consistency, transparency and overall fairness in its adjudication, a WSIAT Guide, entitled “WSIAT-Initiated Assistance for Medical Issues” has been created.

The Guide explains the roles of the Medical Liaison Office (“MLO”) as well as the WSIAT’s Medical Counsellors and Medical Assessors. The Guide also provides a comprehensive overview of the WSIAT-initiated assistance that is available in relation to medical issues arising in appeals, including:

Adding additional medical information to the appeal record if a gap in the medical record is noted.
Adding a WSIAT Medical Discussion Paper to the appeal record.
Adding supplemental medical literature to the appeal record.
Requesting assistance from a Medical Assessor.

A copy of the Guide can be found here: WSIAT GUIDE.

In general, the WSIAT’s current processes with respect to seeking WSIAT-initiated assistance in relation to medical issues have remained the same. However, some changes to the processes have been made, including:

WSIAT Medical Counsellors will provide a short summary describing why supplemental medical literature is being added to the appeal record pre-hearing, which will be provided to the parties and the WSIAT adjudicator. Supplemental medical literature includes text excerpts, medical articles, studies (including epidemiological studies) and medical definitions.
WSIAT Medical Counsellors will identify medical issues that may be addressed by a Medical Assessor, rather than questions, during their pre-hearing review. All recommendations made by a Medical Counsellor will continue to be included in the Hearing Ready Letter that is provided to the parties.
Questions for a Medical Assessor will be determined by the WSIAT adjudicator deciding the appeal. The WSIAT adjudicator can, however, seek on the record assistance from the MLO for help framing questions when necessary.
Requests for assistance from a Medical Assessor will in most cases be set out in an interim decision, rather than a post-hearing memorandum.
A Medical Assessor Brief will be created in all cases when a request for assistance from a Medical Assessor is made by the WSIAT adjudicator. The contents of the Medical Assessor Brief will be standardized, subject to directions from the WSIAT adjudicator, and will continue to include all of the medical information in an appeal but will no longer include a copy of the WSIB ARO decision. More information about the organization and contents of Medical Assessor Briefs is set out in the Guide.

It is important to note that all of the processes outlined in the Guide may be varied as appropriate in any appeal in the sole discretion of the WSIAT adjudicator determining the appeal.

The creation of the Guide and the changes to current processes reflect the WSIAT’s commitment to transparency, efficiency, sustainability, and excellence in adjudication. Overall, WSIAT-initiated assistance in relation to medical issues supports the WSIAT in providing well-reasoned decisions in accordance with the principles of natural justice.

General questions or comments concerning the Guide and/or WSIAT-initiated assistance for medical issues can be made in writing and directed to the WSIAT’s General Counsel, Michelle Alton.

QUESTIONS AND ANSWERS

1. Are parties given an opportunity to provide additional evidence if a gap in the medical evidence is identified during the WSIAT’s pre-hearing review?

Yes. If medical evidence is noted to be missing from the appeal record pre-hearing, WSIAT staff will request the documentation from the worker and add it to the appeal record. For more information, including information about payment, see WSIAT Practice Direction, Medical Information Requested by the Tribunal.

2. Can parties provide input or make submissions when the WSIAT seeks assistance in relation to medical issues on its own initiative?

Yes. The WSIAT adjudicator assigned to decide an appeal will ultimately determine how a particular hearing will proceed. However, regardless of the hearing format, parties will be given an opportunity to present evidence and make submissions about the evidence and law during the appeal process in writing, orally or both.

3. Will parties have an opportunity to make submissions about additional medical information, Medical Discussion papers and/or supplemental medical literature that has been added to the appeal record by the WSIAT and/or the other party?

Yes. When additional medical information, Medical Discussion papers and/or supplemental medical literature is added to the appeal record by WSIAT staff, a Medical Counsellor, a WSIAT adjudicator and/or another participating party, the practice is for parties to be given an opportunity to make submissions about the information that has been added.
Further, it is always open for parties to challenge the additional information, Medical Discussion paper and/or supplemental medical literature that has been added with alternative evidence.
The WSIAT adjudicator will ultimately control the format and timing of these submissions, but in general, parties will be provided with an opportunity to make submissions at the hearing.

4. Will parties have an opportunity to make submissions if a Medical Counsellor recommends that the WSIAT adjudicator obtain assistance from a Medical Assessor?

Yes. If a Medical Counsellor has made recommendations about seeking assistance from a Medical Assessor, the standard practice is for the parties to be given an opportunity to provide submissions about whether it would be beneficial to seek assistance from a Medical Assessor and what findings of fact should be accepted by the WSIAT adjudicator. Ideally, parties will make these submissions at the hearing. The scope of these submissions will ultimately be determined by the WSIAT adjudicator, but could include suggestions for questions to ask the Medical Assessor.
In an effort to promote efficiency, the WSIAT is encouraging parties to be proactively prepared to make submissions at the hearing with respect to whether assistance from a Medical Assessor should be obtained, even in circumstances when a Medical Counsellor has not made such a recommendation.
It is hoped that if parties proactively prepare to address these issues during the hearing, there will be less need to obtain post-hearing submissions and as a result, less unnecessary delay.
In support of this approach, the Hearing Ready Letter will now proactively inform parties to be prepared to address issues related to obtaining assistance from a Medical Assessor during the hearing process.
It is important to note that it is always in the discretion of the WSIAT adjudicator to determine whether post-hearing submissions are warranted in any individual appeal.
Parties who have concerns or questions with respect to any aspect of the process for obtaining assistance from a Medical Assessor are encouraged to raise these concerns and questions as soon as possible.

5. Can parties comment on the questions to be posed to the Medical Assessor?

Parties are encouraged to be prepared to make submissions about obtaining assistance from a Medical Assessor at the hearing. Subject to specific direction from the WSIAT adjudicator, these submissions can include suggestions for questions for the Medical Assessor.
However, as an important part of the WSIAT adjudicator’s role is to determine the questions to ask the Medical Assessor, the ultimate decision as to what questions should be asked will be made by the WSIAT adjudicator taking into account the findings of fact as determined.
Questions for a Medical Assessor will focus on the medical issues and not the legal issues to be determined in the appeal in recognition that the ultimate decision to allow or deny an appeal is the sole preserve of the WSIAT adjudicator.
A WSIAT adjudicator can seek assistance from MLO with respect to drafting the questions for the Medical Assessor by submitting a written request to MLO asking for questions to be reviewed or suggested. The written request, which will be in the form of a post-hearing memorandum, will be provided to the parties.
A WSIAT adjudicator may also, at their discretion, specifically request submissions from the parties with respect to the questions to ask the Medical Assessor, although this is not a standard practice.

6. Why does MLO recommend only one Medical Assessor to the WSIAT adjudicator?

MLO selects a Medical Assessor by taking into account the nature of the request for assistance and the required expertise, the geographic location of the worker, the need to avoid conflicts of interest and the overall availability of potential Medical Assessors.
As the WSIAT does not have access to an unlimited number of Medical Assessors, only one Medical Assessor is recommended at a time.

7. Why is a Medical Assessor Brief being created in all cases when there is a request for Medical Assessor assistance? Can parties comment on the content of the Brief?

A Medical Assessor Brief will be prepared for every request for assistance from a Medical Assessor in order to promote consistency in the WSIAT’s adjudication.
The contents of the Brief will also be standardized to include the same general content, unless specific directions are provided by the WSIAT adjudicator determining the appeal. More information about the standardized content of a Medical Assessor Brief is set out in the Guide.
The standardization of the contents of the Medical Assessor Brief promotes consistency and will also help parties proactively prepare to address what should be included in a brief at the hearing, as opposed to post-hearing.
In certain circumstances, the WSIAT adjudicator may deem it appropriate for a draft of the Medical Assessor Brief to be sent to the parties so that they may have an opportunity to provide submissions about the Brief. In those circumstances, the draft Medical Assessor Brief will then be sent to the WSIAT adjudicator to make a final decision about the contents.