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How to successfully appeal a workers’ compensation decision

The workers’ compensation scheme was established to provide workers with a means of compensation for work-related conditions. In an ideal world, workers would receive compensation for those conditions and would then return to work. In reality, that is not always the case — benefits may be extended which drive up the costs of a claim. If an employer disagrees with the decisions made in a claim, the appeal is an effective cost containment strategy as it may result in entitlement being overturned and costs rescinded. The appeal process can be either informal or formal, but there are a number of things a claims manager must consider before moving forward with an appeal.

Do you have a decision?

Sometimes the workers’ compensation board will allow treatment or medication for a condition for which it has not formally accepted entitlement. Sometimes there are valid reasons for this. For example, if an employee had a significant traumatic injury and is experiencing some psychological issues related to it, perhaps a short-term treatment session would help facilitate his recovery with very little cost. However, the employer should be advised of those types of allowances and their expected duration.

In most situations, the compensation board would have to formally accept entitlement for an area of injury to allow compensation benefits. Therefore, it is important to receive a decision letter from the board confirming entitlement. Those letters should set out the entitlement decision, rationale and any corresponding reference to the applicable workers’ compensation legislation or policy. Without a formal decision, the right to appeal may be compromised.

Why is the decision incorrect?

There can be many scenarios under this category.

The decision is inconsistent with applicable legislation and policy: In this scenario, it becomes abundantly clear that claims managers need to be familiar with the legislation and policy in the jurisdiction in which they operate. It is important for claims personnel to know how to access the workers’ compensation legislation and policy documents so they can confirm what the decision should be.

If the decision is contrary to the law and policy provisions, consider pointing this out to the decision-maker. Provide the correct legislative or policy references and advise the individual of why or how the current decision should be changed. Generally, decisions must be consistent with the overriding law and policies and there are very few situations where decision-makers are allowed to circumvent those provisions.

The decision is based on incorrect evidence: Decisions are made on evidence that is made available to the decision-maker. Therefore, it is important to ensure a thorough investigation is completed so the compensation board has as much evidence as possible before the decision is made. Remember, the workers’ compensation scheme is one where the benefit of doubt will go to the worker if the evidence for and against an issue are more or less equal.

If a decision is received that is based on incorrect facts or not all of the evidence has been provided, consider requesting a reconsideration of the decision based on additional evidence and arguments. Most compensation boards use a reconsideration approach as their first line of appeal. A reconsideration request should contain reasons for why the decision is incorrect and provide any new or additional evidence not previously considered.

Remember, a reconsideration request is not the same as an appeal. It is important to be mindful of any appeal deadlines when using this approach. The reconsideration request can also be used if an appeal deadline has been missed. However, your ability to proceed with an appeal may be limited in that case.

The formal appeal: When pursuing a formal appeal, there are a number of considerations as well. These include the likelihood of success and cost recovery potential and whether there is any downside risk in pursuing the appeal (such as could an employer appeal actually result in additional benefit costs to the employer). Another consideration is whether an appeal could spur a worker cross-appeal, which could result in additional benefits. These scenarios need to be examined on a case-by-case basis.

One of the most important considerations is the appeal deadline. It is important to be familiar with the deadlines and mechanisms for appeal, which vary by jurisdiction, and to meet those deadlines. Failure to meet an appeal deadline may limit the right to appeal and ultimately impede the ability to proceed through the appeal process.

While a formal appeal may be the ultimate destination for an issue in dispute, claims managers can avoid having an appeal stalled by ensuring a formal decision is made on the issue in the first place, and they may be able to avoid the appeal through a reconsideration request.

David Marchione is an occupational health and safety and workers’ compensation specialist with Compclaim, a consulting practice of Mathews, Dinsdale & Clark LLP in Toronto. He can be contacted at dmarchione@compclaim.com.

This article originally appeared in the October 2014 issue of COS.

David Marchione

David Marchione is an occupational health and safety consultant and paralegal at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-3468 or dmarchione@fasken.com, or visit www.ehslaw.ca for more information.
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