1 A Paralegal s First WSIB File Presented by: Ontario Paralegal Association September 26, 2015
2 Interview Opening a file Determining injured workers problem Defining relevant issues Rules of Conduct
3 Purpose of the Initial Interview 1) To determine the nature of the client s problem 2) To define the relevant issues; and 3) To start forming a general casework strategy of what has to be done and when it has to be done. Time Limits It is extremely important for representatives to be aware of all time limits If the client brought the file, review it to be sure that decisions are within time limits.
4 The Initial Interview Interviewer s Perspective It is in the best interest of your client that you maintain professional credibility with the WSIB and Tribunal It is important to maintain objectivity without sacrificing compassion and empathy. Clients will often seek advice about compensation, you should become aware of those resources and knowledgeable of their content The first interview with the client, remember they have likely accessed multiple resources and received different information.
5 Type of Assistance Information Only No intervention or third party communication advice Explanation of a board decision or clarification of a board process Minimal Intervention Issues requiring a single phone call, letter to board, or fact finding You must be clear about your limited involvement get it in writing Close the file and notify the client immediately Full Representation Reflect on rule 3 Competence, be sure you are comptent to advocate the issue
6 Concluding the Interview Clarify what you are undertaking to do and what you are not undertaking to do (ie. NEL but CPP) Follow up the interview with a written confirmation of what you have agreed to do for the client If the client has multiple WSIB matters, you may need to review them. Authorization to Act If retained, you will need a signed Direction of Authorization (DOA) Or, an authorization limiting your involvement to obtaining information only but not to represent Medical release forms (even if you are uncertain that you need them)
7 Authorization Needed in order to represent injured workers at the adjudication level and at both levels of appeal. WSIB WSIAT The Form 6 provides limited authorization 7
8 Making a Case Plan Open a file for each Client Keep copies of all information Record all activities Phone Calls Interviews Letters Confirm with the Client what issues will be addressed 8
9 Making a Case Plan Prioritize issues and action Note the date and level of decision by the Board relating to each issue Note any issues that arise in qualifying for benefits Determine what information is required witnesses medical information physical demands exposures Analyze each problem and outline action plan 9
10 Paralegal Rule of Conduct 3.01 COMPETENCE (1) A paralegal shall perform any services undertaken on a client s behalf to the standard of a competent paralegal. (2) A paralegal is required to recognize a task for which the paralegal lacks competence and the disservice that would be done to the client by undertaking that task. A paralegal shall not undertake a matter without being competent to handle it or being able to become competent without undue delay or expense to the client.
11 Who is Competent For the purposes of this rule, a competent paralegal is one who has and applies the relevant knowledge, skills, and attributes appropriate to each matter undertaken on behalf of a client including, knowing general legal principles and procedures and the substantive law and procedures for the legal services that the paralegal provides; investigating facts, identifying issues, ascertaining client objectives, considering possible options, and developing and advising clients on appropriate courses of action; implementing, as each matter requires, the chosen course of action through the application of appropriate skills
12 Medical-Legal Reports (18) A paralegal who receives a medical-legal report from a physician or health professional that is accompanied by a proviso that it not be shown to the client, shall return the report immediately to the physician or health professional, without making a copy, unless the paralegal has received specific instructions to accept the report on that basis. (19) A paralegal who receives a medical-legal report from a physician or health professional containing opinions or findings that, if disclosed, might cause harm or injury to the client, shall attempt to dissuade the client from seeing the report but, if the client insists, the paralegal shall produce the report.
13 Medical-Legal Reports (20) If a client insists on seeing a medical-legal report about which the paralegal has reservations for the reasons noted in subrule (19), the paralegal shall recommend that the client attend at the office of the physician or health professional to see the report, in order that the client will have the benefit of the expertise of the physician or health professional in understanding the significance of the conclusions contained in the medical-legal report.
14 CONFIDENTIALITY Once you start receiving confidential information, it is imperative that you keep it in a secure place S.59(6) of the Act explains the obligation of the employer or employer s representative in regards to their duty of confidentiality S.37(4) prohibits the divulging of information contained in the Functional Abilities form, other than for the facilitation of early and safe return to work S.181(1) confirms a duty of confidentiality on a worker s representative S.181(3) prohibits the employer from disclosing any health information
15 The Representative Knowledgeable Confidentiality Honesty Organized Diligence Promptness 15
16 Structure of WSIB and General Adjudication
17 Workplace Safety & Insurance Board of Ontario Organizational Structure Board of Directors Chair Fair Practices Commission Officeofthe Secretary President & CEO Chair/BOD Direct Advisors as required Chief Corporate Services Officer ChiefFinancialOfficer Chief Operating Officer Chief Strategy/Chief Transformation Officer Chief Investment Officer Chief Information Officer Human Resources Financial Reporting Service Delivery, Entitlement Strategy & Communications Strategy & Alternatives Planning & Architecture Compliance Services Operations Finance Service Delivery, Program Quality Corporate Statistics Corporate Business Solutions Services Policy & Consultation Services Appeals Services Actuarial Services Internal Audit & Enterprise Risk Management ServiceDelivery, Return to Work Health Services Occupational Disease & Specialized Services Corporate Business Information & Analytics Workplace Health & Safety Services Operations Business Solutions Services Application & Infrastructure Services ACES Project Employer Account Services Channel Solutions July Subject to
18 WSIB Policies Developed by Policy Branch Passed by Board of Directors Operational Policy Manual (OPM) Entitlement Payment Health care Work Reintegration Employer Classification Manual (ECM) Compulsory coverage Business classification Revenue issues 18
19 Scope of Authority Merits and justice of case Not bound by legal precedent Balance of Evidence Significant contribution rule Balance of probabilities rule Best available evidence rule 19
20 Service Delivery Roles 20
21 Decision Making Roles Eligibility Adjudicator determines eligibility upon receiving a claim for benefits; Case Manager (short term & long term) concentrates on the opportunities and obstacles to return to work, determines ongoing benefits to be paid to the worker, and arranges and monitors Work Reintegration services wherever and whenever needed 21
22 Supporting Roles Nurse Consultant coordinates specific medical interventions and improved timelines aimed at resolving health care barriers and decides what health care services and benefits are allowable; Return to Work Specialist facilitates return to work and case resolution at the workplace; decision maker on s. 40, 41 and 42(2) issues. Work Transition Specialist provides expert advice, direction, vocational rehabilitation counselling and support to workers and employers. 22
23 Dedicated Resources Medical Advisor Causation Compatibility P.I. Investigator Medical documents Witness statements 23
24 Initial Reporting Forms WSIB forms are available on their website -
25 WHAT HAPPENS WHEN THE BOARD RECEIVES A CLAIM? Most claims are set up when the employer sends a Form 7 to the Board Once the Board has received the employer's Form 7 or the doctor's Form 8, the Board assigns a claim number and processes the claim This includes sending a Form 6 to the worker if one has not been received by the Board This 8 digit number is the means by which the Board will identify the worker's claim
26 Intent to Object Form Claim Identifiers: Worker s Name, Claim # Objecting Party: Check which one Complete Section 4 Representation Complete Section 5 Intent to Object Date and Issue in dispute
28 Adjudication Process 30 days 180 days D O I CCP / Primary Initial Entitlement Short Term Case Management Eligibility Area Long Term Case Management Transitions cannot be a hard-stop alone, criteria will be used to maintain claims which will be resolved imminently, while triaging forward those which need alternative service 28
29 Moving Forward with Representation planning the next steps/actions to advocate for your client.
30 WSIB Negative Decision Is the issue stated by the Board the correct issue? What are all the potential issues under dispute? What is the critical issue(s)? What evidence do I need to prove the issue? What favourable/unfavourable evidence do I have? What section of the Act, Regulations and Policy supports the worker? Is the decision worth appealing? What can I do? BE SURE TO REVIEW THE TIME LIMIT AND ADVISE CLIENT APPROPRIATELY!!!! 30
32 Time Limits WSIA S. 120 Objection to Board Decision RTW or LMR 30 days! Sec 120(1)(a) 6 months after decision is made Sec 120(1)(b)
33 How to get the WSIB Board File Adverse Decision Review Time Limits Complete ITO (Intent to Object) Triggers WSIB releasing Access to Representative on File *Latest DOA* No Adverse Decision FIPPA Access Requesting updates to files Stale information New information coming file during review
34 WSIB Claim File A separate Board file is opened for each claim number (8 digits) A Board file is usually collected and then sent in a specific order. It contains all internal memos, reports and correspondence. It is recommended that inexperienced representatives not change the order of the file 34
35 WSIB Claim File Board Memorandum WSIB Forms Medical Correspondence ESRTW/WT NEL To Be Filed 35
36 Reviewing a WSIB File Read the decision under appeal. Read the Board s memorandum history from memo #1 to the most recent. Read the accident history Determine why the decision was to deny entitlement. Look for an opinion from a Board doctor See if evidence relied on by adjudicator is accurate. Determine if witness statements are accurate Read the medical reports to determine if workrelatedness is supported Read correspondence looking for other explanations or subsequent/prior decisions DO NOT CHANGE THE ORDER OR STRUCTURE OF THE CLIENT CLAIM FILE 36
37 Things to Look for and Consider Identify reasons for denial Identify missing evidence Identify misinterpreted evidence Provide new evidence Correct inaccuracies Provide legal arguments 37
38 Appeals Written notice of objection(ito) Time limit Adjudicator review of decision Access and ARF Submission of ARF Referral to Appeals Services Division ARO appeal WSIAT 38
39 Where to find out more ODRT At this time Level 1 Level 2 Level 3 IAVGO
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