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3.3.1 Issues in Decision(s) Appealed

Where a decision of the Review Division is appealed to WCAT, WCAT has jurisdiction to address any issue determined in either the Review Division decision or the Board decision(s) which was under review, subject to the statutory limits on WCAT’s jurisdiction. Similarly, when considering appeals of Board decisions which are appealable directly to WCAT, WCAT has jurisdiction to address any issue determined in the decision appealed.

WCAT will generally restrict its decision to the issues raised by the appellant in the notice of appeal and the appellant’s submissions to WCAT. The appellant is entitled by right to a decision on the issues expressly raised in the appeal.

Panels may address an issue raised by the respondent in relation to the decision under appeal. To ensure that the panel will address a particular issue which may not be raised by the appellant, the respondent should file a cross-appeal. This may require an extension of time to appeal (items 8.2 to 8.2.3).

The panel will normally not address issues not expressly raised by the parties, but has the discretion to do so. The panel will give notice to the parties of the panel’s intention to address any issue which was not raised in the notice of appeal or in the parties’ submissions to WCAT (item 1.5.3.1).

An exception is where the subject of an appeal is a permanent disability award which typically includes the effective date of the award as well as the assessment of the permanent functional impairment or the loss of earnings entitlement. Panels may address any aspect of the permanent disability award decision which was addressed in the Board decision under review by the Review Division, or which was addressed in the Review Division decision, without notice to the parties.

3.3.2 Termination of Short-term Disability (Wage Loss) Benefits

Where a decision terminating a worker’s short-term disability (wage loss) benefits is appealed to WCAT, the panel may address any aspect of that decision including whether the worker can return to work. This does not fall within any of the statutory limits on WCAT’s jurisdiction. Specifically, it is not a decision respecting matters referred to in section 16 (vocational rehabilitation benefits).

3.3.3 Personal Injury (Section 5) and Occupational Disease (Section 6)

Where a decision denying acceptance of a claim adjudicated under section 6 (occupational diseases) is appealed to WCAT and the panel concludes that it should have been adjudicated under section 5 (personal injury), or vice versa, the panel may address the issue if no further evidence is required and there are no procedural fairness

3.3.4 Entitlement to Interest

WCAT considers that entitlement to interest is an ancillary issue over which a panel has jurisdiction regardless of whether it was addressed in the decision(s) below. Where the issue of interest has not been raised by the appellant, and the panel intends to address it, the panel must first give the parties an opportunity to make submissions on the issue. WCAT may also decline to address the issue of interest until there is a Board decision on the issue.

3.3.5 Unappealed Decisions

Occasionally the parties to an appeal will attempt to raise issues relating to a decision that has not been appealed. Panels do not have authority to consider issues that are not addressed in the Review Division decision under appeal or in the Board decision which was under review. If the appellant raises concerns about an unappealed decision, including one for which the appeal or review period has expired, WCAT will advise the appellant of the right to review or appeal and extension of time processes (either to WCAT or the Review Division).

3.3.6 Adverse Effect

WCAT decisions may, on occasion, adversely affect the appellant in that the appellant may be in a worse position having appealed to WCAT than if the appellant had not appealed at all. For example, where a worker appeals a permanent disability award decision, the panel may not only increase or confirm the award, the panel may also decrease the award. If the adverse decision relates to an issue not raised by a party, the panel must first give the parties an opportunity to make submissions on that issue (item 1.5.3.1).

3.3.7 Other Claim Files Involving the Same Worker

A panel may, without notice, review documents from another claim file involving the same worker for relevance. If the panel determines there are relevant documents in another claim file, the procedure set out immediately below will be followed.

A panel may, upon giving notice, rely on relevant documents from any claim file that has or has not previously been disclosed to all parties to an appeal. For example, a worker has appealed a Board decision related to a 2013 injury, and also has a separate claim file with the Board from 2004. If it appears to the panel that some of the documents related to the 2004 injury may be relevant to the current appeal, the panel will give notice to the parties that it intends to rely on relevant documents from the 2004 claim file in coming to a decision. If the documents have not been previously disclosed to the parties, the panel will provide copies of those documents. The panel will then give the parties an opportunity to make submissions regarding those documents. If the documents have been recently disclosed to the parties, the panel may invite submissions directly.