By Mari-Len De Guzman
Appealing decisions made by a representative of the compensation board is a right that both workers and employers have.
Workers may appeal decisions to deny entitlement to health care or wage loss benefits, or a decision to limit entitlement in some way. These decisions may have a significant impact on the worker in terms of access to medical treatment or financial support. Employers may appeal decisions determining their classification or rate group, which may affect the premiums they pay. They may also appeal decisions to allow entitlement to benefits to a worker following a reported workplace accident.
Following are some practical tips for advancing the appeal of a decision by the compensation board. These tips apply to any party advancing an appeal, and although one can never guarantee success, bringing forward an appeal that focuses on the issues, the evidence, and any error in law and policy may increase your likelihood of success.
Employers and workers have often expressed concern with appealing a decision, as they are fearful of angering the decision maker and perhaps negatively influencing future decisions. Decision makers are required, however, to make decisions in accordance with applicable legislation and policies. Therefore, all decisions must be made based on the evidence relevant to the matter being decided. Knowing this, the decision to begin an appeal should be made based on the evidence as well.
Weighing the merits
Before deciding to appeal a decision, regardless of the issue, consider whether the appeal has merit. Is there some evidence that was not considered? Is there an applicable policy or guideline that was either not used or not applied properly? These are important considerations, as appeals should only be brought where there has been some factual error.
Once the decision to appeal has been made, consider the following in order to increase your likelihood of success:
1. Understand the decision. Ensure that you receive a written decision on the issue, setting out the rationale for the decision, what evidence was considered, and what legislation or policy was followed.
2. Understand the applicable legislation and policy. Each compensation board must follow its own compensation legislation. Each compensation board also has its own operational policies that are used to assist decision makers in making decisions consistent with that legislation. Determine what policy applies to the decision? Most policy manuals are available online from your respective board. Was the policy applied, and was it interpreted and applied correctly? If a policy was not applied, or was applied incorrectly, this must be brought to the attention of the decision maker in order to ensure that a decision consistent with policy and law is made.
3. Consider any applicable time limits to begin an appeal. Most decisions have time limits during which they may be appealed. The applicable time limit should be included in the decision letter. The time limit may change, depending on the type of decision being made. Ensure that you bring your appeal within the applicable time limits. Failure to do so may result in the compensation board disallowing the appeal to continue. It is recommended that the decision to appeal an issue be communicated to the decision maker in writing as soon as possible. This will often satisfy the time limit requirement. More detailed information may be brought forward at a later date.
4. Prepare your case. Prepare your argument based on the evidence, facts, any new evidence or evidence that was not considered, any new witnesses with additional information, and applicable law and policy.
5. Appeal to the decision maker first. Bring forward any new evidence, or a perceived error in law and policy to the decision maker. Doing this may allow the decision maker to change the decision without having to go through a more formal appeal process or appeal hearing.
6. Request specific outcomes. When appealing a decision, be sure to state what decision you disagree with, why, and your desired outcome. The outcome may be a change to a different classification or rate group, entitlement to benefits, or denial of entitlement, limitation of benefits or application of cost relief. Regardless of the desired outcome, ensure that this is clearly stated in your appeal.
The appeal process varies slightly from province to province. Become familiar with the applicable procedures in your jurisdiction. It is also your right to have representation for an appeal. If you choose to engage a representative, whether they are a lawyer, paralegal or consultant, ensure that they are competent to represent your interests.
Although it is impossible to guarantee the success of an appeal, it is important to ensure that the appeal has merit before even beginning. Then bring forward your best argument based on fact, evidence, law and policy. By doing this, you will advance the best possible argument, thereby increasing your likelihood of success.
David Marchione is an OHS consultant with Gowling Lafleur Henderson LLP in Toronto, specializing in workers’ compensation matters. You can reach him at firstname.lastname@example.org or www.gowlings.com/ohslaw.
Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and www.cos-mag.com.