The Appeal CommissionThe Workers Compensation Act of Manitoba

The worker in this case is seeking to be compensated for fees that he paid to a lawyer to assist him in getting a 1992 Appeal Commission decision properly implemented by the WCB. For this panel to grant the worker's appeal, we would have to find that we have the legislated authority to make such a payment to the worker. We were unable to do so, for the reasons that follow.

Worker's position:

The worker was assisted by his daughter at the hearing. The worker advised that his benefits were improperly calculated in the early 1990s, and when he expressed his dissatisfaction to his adjudicator, he had been advised that he had a right of appeal and that it was open to him to get a lawyer to help him. He did in fact use the services of a lawyer, and was successful in restoring a correct calculation. The decision made by an earlier panel of this Appeal Commission resulted in a payment to the worker in the amount of $20,500. The worker in turn paid 25% of that amount to his lawyer, or $5,125, in accordance with the fee arrangement he had made with his lawyer.

The worker indicated at the hearing that he was not told that it would be his responsibility to pay the lawyer, and was later surprised to find out that the lawyer's fees would have to be paid out of his successful appeal. The worker's position is that the WCB had misinformed him of his responsibility to pay his own legal fees and they should repay him for that unanticipated expense. The worker also argued that the lawyer was instrumental in helping the worker to be paid his proper due, and that he should receive his whole benefit entitlement, and not a portion of it. The worker relied on WCB Policy 22.80 "Legal Expenses of Judicial Review" which he argued allowed for the payment of this particular legal fee.

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), any supporting Regulations, and policies enacted by the WCB Board of Directors.

There are two WCB policies which deal in some form with the payment or reimbursement to workers for legal fees in the decision-making process.

The current WCB Policy 21.10.40, "Expenses for Attendance at Appeal Hearings" was established under Board Order 31/90. At the time of the worker's Appeal Commission hearing in 1992, this particular Board Order provided the framework for acceptable fees or expenses for attendance at hearings before the Appeal Commission. Specifically, it provides:

3. Advocates, professional or otherwise, appearing on behalf of a worker will not be paid fees or expenses by the Board.

As well, WCB Policy 22.80, "Legal Expenses of Judicial Review" provides, in part:

GENERAL INFORMATION

The workers compensation system is structured on the enquiry model and claims rarely involve litigation. The enquiry model allows workers or employers to make their case without the involvement of a lawyer. Advocates are allowed to assist in the presentation of cases, but the WCB does not pay costs associated with their involvement. Workers may be assisted by the Office of the Worker Advisor, whose costs are paid by the WCB, but other advocates of any kind are not paid.

The WCB has exclusive jurisdiction in the determination of matters arising from the Worker's Compensation Act and does not encourage the use of the courts as an additional level of appeal.

Analysis:

As noted above, this panel can only provide benefits or payments to a worker where the Act, Regulations, or WCB policies allow us to do so. In this case, the panel has concluded that it does not have the authority to order repayment of the worker's legal expenses incurred by him in his efforts to have a 1992 Appeal Commission decision correctly implemented by the WCB.

At the hearing and in the file, it was apparent that there was some confusion by the worker as to the forum in which he had appeared, and where the lawyer's services had been used. The panel spent some time at the hearing describing and explaining the legislated appeal process (WCB adjudication, then the WCB's Review Office, and finally the Appeal Commission) versus the process of an external judicial review in Manitoba's court system.

It is clear from our review of the file that the following sequence of events represents what actually transpired. The worker had used the services of a worker advisor to appear on his behalf at an Appeal Commission hearing in 1992. His difficulties arose afterward, when he believed that the WCB was not correctly implementing the decision. The Appeal Commission itself was unable, legally, to provide clarification of its decision or to force specific implementations of its decisions, and the worker was at the outset unable to get the benefits that he felt were due to him in his subsequent dealings with the WCB. It was at this point that the worker hired a lawyer, for the purposes of advocating on his behalf within the WCB structure. Ultimately, the worker was successful in having his benefits recalculated, with the worker entitled to a payment of $20,500.

In the panel's view, the activities of the lawyer following the Appeal Commission were not in the sphere of a judicial review in Manitoba's court system, but rather the services represented advocacy activities within the WCB structure.

The two WCB policies noted above provide considerable guidance as to what types of legal expenses will or will not be covered, where a worker seeks to have his benefits changed.

For example, if the lawyer had been advocating on behalf of the worker at his 1992 Appeal Commission hearings, Board Order 31/90 is very specific in its wording that the fees of a worker's advocate (in this case, a lawyer), will not be paid or reimbursed by the Board. There is nothing in the wording of the Board Order that draws a difference between a successful or unsuccessful appeal. It is simply not a factor in deciding whether the worker should be reimbursed.

In a similar manner, the panel notes that WCB Policy 22.80, Legal Expenses of Judicial Review, while not directly applicable to the facts of this case, does provide a further explanation as to why the use of paid advocates is discouraged. It reflects some of the founding principles behind the development of workers compensation legislation in Canada, and in particular, the notion that the workers compensation system and appeals should be readily accessible, inexpensive, and non-adversarial.

In this case, the worker's lawyer was assisting the worker to make his point, within the internal processes of the WCB. The policy makes it clear, that the worker is certainly allowed to use those services, but that the WCB will not pay the legal costs associated with that advocacy.

We understand but do not accept the worker's argument that since he was successful, it proves that the WCB was wrong, that he should not be punished (financially) as a result, and that the lawyer's services were necessary and therefore should be repaid. This argument is similar to a request by a winning party in a court proceeding for costs. The panel notes that the Appeal Commission's authority is drawn from the Act, Regulations, and Board Policies. Unlike a court, there is no provision granting this panel or the Appeal Commission the jurisdiction to award costs, or in this case, to reimburse the worker who was successful in his efforts to collect from the WCB what he felt was owed to him.

Based on this analysis, the panel finds that we do not have the authority to grant the worker's request for repayment of the legal fees that he paid out to his lawyer for his advocacy services in his dealings with the WCB. Accordingly, the worker's appeal is denied.