Consider downside risk to appeals

David Marchione
Many articles have been written about an employer’s right to appeal adverse decisions made by workers’ compensation boards and how to determine when and how to do that. While appealing decisions should form an important part of an employer’s cost management arsenal, the potential downside risk of an appeal needs to be considered.

When determining whether or not to proceed with an appeal, the employer must consider the reason for the appeal, such as the decision was inconsistent with applicable law or policy, and what it hopes to gain from a successful appeal. The potential adverse consequences of that appeal, or the downside risk, also need to be considered.

Consider this scenario: A worker sustains a workplace injury and is off work for three months. The employer offered the worker accommodated work after the first two weeks off, but the worker remained off work because his doctor did not consider the worker to be able to return to work nor the accommodated work to be suitable. The workers’ compensation board stopped the worker’s wage loss benefit after six weeks, having determined the work offered was suitable at that time and the worker could return to work.

As the employer, while you are happy the board stopped the worker’s benefits, you disagree with the decision to pay benefits for any period beyond when suitable work was offered and want to appeal the decision to pay the worker for the additional four weeks.

When deciding whether or not to proceed with an appeal, all of the facts need to be considered. Ask yourself the following questions:
• ?What was the worker’s injury?
• ?Does the medical information on file support the notion that the worker could have returned to suitable work when the accommodated work was initially offered?
• ?Does the medical information on file support the notion that the worker could have returned to suitable work during the six-week period for which he was paid by the board?
• ?Is the work that was offered by the employer objectively suitable, given the medical information on file and the worker’s functional abilities?

If the medical information on file does not support the notion that the worker could have returned to suitable work or there is evidence the work offered by the employer was not suitable, it is possible any appeal may result in the board upholding the decision. However, depending on the medical information on file, it is also possible the board could conclude the worker was unable to work for the entire period he was off and extend benefits for the full three-month period. The facts of the case must be carefully considered before proceeding because decisions based on benefit of doubt generally favour the worker.

Another thing to consider is whether the worker appealed the decision to stop his benefits. Using the scenario above, if the worker disputed the decision, taking the position he should have received benefits for the full three months, the employer should participate in the worker’s appeal and present the downside risk argument to the worker’s position. In this case, the employer would likely want to argue not only should the worker not receive benefits for the three-month period, but he should not have received benefits beyond when suitable work was offered (at the second week), thus encouraging the workers’ compensation board to claw back monies which were already paid.

Downside risk is an important consideration because an unsuccessful appeal may have unintended consequences. When determining whether to proceed with an appeal, all of the facts of the case must be considered, including what the employer hopes to gain from the appeal and the potential downside risk. Once that is known and has been evaluated, an informed decision can be made on how or whether to proceed through the appeals process.

David Marchione is an occupational health and safety consultant and paralegal at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-3463 or [email protected], or visit

This article originally appeared in the June/July 2015 issue of COS.