NL·CBC Investigates

Appealing a workers' compensation decision in N.L.? It may take a year to get a hearing

Injured workers who want to appeal decisions about their cases are currently facing a one-year wait for a process that, by law, is supposed to take just 60 days.

Recent hiring of new full-time commissioners expected to ease backlog

The Workplace, Health, Safety and Compensation Review Division handles appeals filed by employers and injured workers. (CBC)

Injured workers in Newfoundland and Labrador who want to appeal decisions about their cases are currently facing a one-year wait for a process that, by law, is supposed to take just 60 days.

In fact, the appeal backlog is worse now than it was in 2014, when the then premier pledged to address the issue.

The extent of the problem is outlined in government briefing papers obtained by CBC News through an access to information request.

The system has been hobbled by a lack of review commissioners to hear appeals, made worse by troubles retaining them after they are appointed.

That's resulted in a big queue to get cases heard at the Workplace, Health, Safety and Compensation Review Division (WHSCRD). 

The WHSCRD is an independent, quasi-judicial body that hears appeals of WorkplaceNL decisions. Most of them are filed by workers, although employers can also request reviews.

Advocates for injured workers are dissatisfied with the current wait time of one year for an appeal.- N.L. government briefing note

There were "approximately 217 cases waiting to be scheduled," according to a June briefing note prepared for Service NL Minister Sherry Gambin-Walsh.

"Concerns regarding caseload backlog and wait times for hearings have been raised consistently, and more frequently in the past year," the note advised. 

"Advocates for injured workers are dissatisfied with the current wait time of one year for an appeal."

The province said it's working on the problem, and recent hirings should help reduce the backlog.

'Numbers are certainly high' 

The Tory critic for workers' compensation issues points to answers given at legislative committees in recent years as proof that the waits have been getting worse.

"The numbers are certainly high," Loyola O'Driscoll said.

In 2017, hearings were expected to occur within six months of an appeal. The following year, there were 164 cases waiting for hearings, and the timeline stretched to between six to eight months. By this June, the number of cases waiting to be heard grew to 200, with the timeline extended to around a year.

Ferryland MHA Loyola O’Driscoll is the Progressive Conservative critic for workers compensation issues. (Eddy Kennedy/CBC)

"It's pretty tough on the families to go through this and be waiting that long," O'Driscoll said. 

"So it's something that should be handled a little more quickly."

'They're losing everything'

Les Mitchell, a paralegal in Grand Falls-Windsor who helps injured workers with their cases, says the backlog is causing big problems.

"The impact on my clients is that they're losing everything. I've got clients that's coming in here that said, 'Look I had to give back my truck. I had to give up my house,'" Mitchell told CBC News.

"I've had clients that said, 'Look, you know, I'm gone so far in the hole that I don't know where to turn to. I've got all my credit used up. I can't go any further.'"

Mitchell said he has a case dating back to March 2018 that still doesn't have a hearing scheduled. 

Recruitment, retention have been challenges

Gambin-Walsh was not available for an interview before deadline, although officials said she may be able to speak to the issue later this month.

The chief review commissioner, Marlene Hickey, was also not available for an interview, but sent a written update to CBC News.

"Recruiting qualified review commissioners has always been a challenge for the review division since its inception," it noted. 

"Retention has also been challenging due to the nature of the work of the part-time availability of review commissioners."

Marlene Hickey, chief review commissioner of the Workplace, Health, Safety and Compensation Review Division, is pictured in a 2014 file photo. (CBC)

The legislation allows for seven review commissioners to be appointed.

But in the last fiscal year, there was a "significant period of time" with only one person — Hickey herself — available to hear cases.

Earlier this year, the province appointed three new full-time commissioners.

There are currently four full-timers and one part-timer available to hear appeals.

More commissioners means more opportunities to reduce the wait list, and wait times.

"We're hoping within the next year, certainly, we'll be able to take a big chunk out of that number," Hickey told a House of Assembly committee in June.

There are now 175 cases waiting to heard, according to information provided to CBC News last week, and that number is expected to ease over the coming year.

Long waits a problem in the past

Backlogs at the WHSCRD are not a new phenomenon.

In 2014, a CBC News investigation sparked then premier Paul Davis to say that the legislation related to the appeal process is "just not functionally working."

Five years ago, there was an overall backlog of 150 cases — a shorter queue than there is this year.

At that time, officials said cases were being completed in an average of six to seven months. That's significantly quicker than today.

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Rob Antle

CBC News

Rob Antle is producer for CBC's investigative unit in Newfoundland and Labrador.