WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2289/08

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2289/08 BEFORE: M. Crystal: Vice-Chair HEARING: October 31, 2008 at Toronto Written case DATE OF DECISION: October 31, 2008 NEUTRAL CITATION: 2008 ONWSIAT 2850 DECISION(S) UNDER APPEAL: WSIB ARO decision dated June 12, 2007 APPEARANCES: For the worker: For the employer: Mr. Claudio Tapia, consultant Did not participate Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2289/08 REASONS (i) Introduction [1] This appeal was considered as a written case on October 31, 2008, in Toronto. [2] The worker appeals the decision of Appeals Resolution Officer (ARO) D. McParland dated June 12, That decision concluded that the worker was not entitled to an extension of the six month time limit for filing a claim with the Board, which is provided in section 22 of the Workplace Safety and Insurance Act, 1997 ( the Act ). [3] The worker was represented by Mr. Claudio Tapia, consultant. The employer did not participate in the appeal. Written submissions, dated July 7, 2008, were provided by Mr. Tapia. (ii) The issues on appeal [4] The issue to be determined in this appeal is whether the worker is entitled to an extension of the six month time limit for filing a claim with the Board, provided in section 22 of the Act. (iii) The evidence [5] The worker suffered an accident on December 8, 2000, when he slipped on icy pavement in a parking lot. According to a Health Professional s First Report (Form 8), dated February 1, 2005, prepared by Dr. J. Subirana, the worker s family physician, the worker suffered a fractured right ankle as a result of the accident. The fact that the worker slipped on ice in a parking lot and fractured his right ankle is not contentious. [6] The case materials included a claim form, dated March 26, 2001, which was part of the worker s application for long-term disability (LTD) benefits from the employer s private disability benefits insurer. The form, which was apparently completed by the worker, stated in part: Is your illness or injury work related? No. I was on my way to work. [7] According to correspondence from the Board to the worker, dated March 4, 2005, the Board established a claim in relation to the December 8, 2000 accident, when it received the Form 8 from Dr. Subirana, referred to above. Correspondence dated February 9, 2005, from the employer, a manufacturer of patio doors, to the Board, referred to Board correspondence to the employer, also dated February 9, 2005, which enclosed an Employer s Report of Injury (Form 7) to be completed by the employer. The correspondence from the employer to the Board stated in part: Please allow this letter to serve as our response to your letter of February 9 th, 2005 requesting that [the employer] complete a Form 7 for an incident/accident involving [the worker] which he claims occurred on December the 8 th Upon receipt of this letter, an investigation of [the worker s] file was conducted and concluded that an incident/accident did occur on December 8 th, 2000, however, this injury did not occur at work and was therefore not reported to the Workplace Safety and Insurance Board (WSIB).

3 Page: 2 Decision No. 2289/08 Below is a summary of events that occurred relating to the alleged injury: On December the 8th, 2000, [the worker] was on his way to work and decided to take a short cut through some parking lots belonging to other companies. Due to the weather, [the worker] slipped on ice and injured his right ankle at approximately 6:30 a.m. A co-worker was passing through and happened to see him. [The worker] was taken to the hospital and treated for his right foot injury.. Due to the fact that this injury was not sustained at work, [the worker] was provided with our Short-Term Disability Kit for completion and was instructed to submit it to our Insurance Company [8] The correspondence, dated March 4, 2005, from the Board to the worker, referred to above, advised the worker that the Claims Adjudicator (CA) was unable to consider any entitlement in the claim as it was not claimed within the 6 months from the date of injury. [9] The case materials also included a medical report, dated October 24, 2005, prepared by Dr. P. Kirwin, which stated in part: [The worker s] first work injury dates back to Prior to this work injury he was totally well. Apparently back in 1998 because of heavy lifting there was a precipitation of the low back pain. He cannot be specific on the exact day. Between 1998 and 2000 his low back pain gradually increased because of the repetitive lifting at his former job. Unfortunately he had another work injury on December 8, On this date he was in the company parking lot when he slipped and fell exacerbating his low back pain and causing a right leg pain in particular a right ankle pain. He apparently fractured his right ankle. He was not aware of [sic -- the possibility?] that injuring himself the company parking lot is a work related issue therefore he did not report this to the WSIB until recently. [10] The ARO prepared an internal Board memorandum, dated June 6, 2007, to file, following a discussion with the worker s representative. The memo stated in part: I called Mr. Tapia, [the worker s representative] to discuss. He advised that when he interviewed the worker for the issues under [a claim in relation to a different accident], the subject of the ankle injury came up. Mr. Tapia then advised him that it could be work related a claim was established. He explained that the family doctor was not aware whether it was work related. The worker does have a language barrier, and is from a small town in Equador [sic] and does not understand his rights. He is currently in Equador [sic] on a family matter. We discussed the fact that his position has been outlined in his letters, and testimony would not really clarify this. I noted that I would only be ruling on the time limit issue and not initial entitlement. I note that the employer is disputing that the accident occurred on their property, and if I grant the time limit extension I would direct the operating area to conduct an investigation into this, interview witnesses etc., and then rule on initial entitlement. (iv) Applicable law and policy [11] The alleged workplace accident which is the subject of this appeal occurred on December 8, Accordingly, the worker s entitlement to benefits in this appeal is governed by the Workplace Safety and Insurance Act, 1997 ( the Act ).

4 Page: 3 Decision No. 2289/08 [12] The issue in this appeal is whether the six month period for filing a claim should be extended to allow the worker to file a claim for an accident he has alleged occurred on December 8, The six month period is provided by the Act pursuant to section 22, which states, in part: 22(1) A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease. (3) The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so. [13] The obligations of a worker to file an accident claim, and the circumstances when the time limit for filing a claim will be extended, are described in the Operational Policy Manual Document No , which states in part: Law As soon as possible after an accident, workers must file a claim for benefits. They must also consent to disclose their functional abilities information, which is provided by the treating health professional. A claim must be filed within six months of an accident or, in the case of an occupational disease, within six months of the worker learning of the disease. The WSIB may extend the six-month deadline, or waive the dual requirements altogether if in the WSIB's opinion it is just to do so. If the worker does not file the claim for benefits, or consent to the disclosure of functional abilities information within the six-month deadline, the WSIB does not provide benefits unless, in its opinion, it is just to do so. Workers must give their employers a copy of the claim for benefits at the same time they give a copy to the WSIB. In the case of occupational diseases, workers must give a copy of the claim to the employer who most recently employed them in the employment to which the disease is associated. Extending the 6-month deadline. Exceptional circumstances If a worker fails to file a claim by the respective deadline, the WSIB allows the claim to be filed at a later date if the worker can show that exceptional circumstances existed at the deadline. Exceptional circumstances can include compelling personal reasons, such as serious health problems or accident (experienced by the party or the party's immediate family), or the party leaving the province/country due to the ill health or death of a family member the worker's ability to understand the time limit requirements and consequences of not meeting them (e.g., was the worker made aware at the workplace of the requirement to claim and consent; were language difficulties a factor?), and

5 Page: 4 Decision No. 2289/08 whether the worker reported the accident to the employer, health care professional, or co-workers. (v) Analysis [14] In an application for a time extension under section 22 of the Act, where the merits of the accident claim remain in dispute, in my view, it is not appropriate for an adjudicator to consider the merits of the claim, or to allow his or her views on the merits of the claim to be a factor in deciding the time extension issue. In Decision No. 31/08I, the Board had considered the issues of proof of accident and whether the time to file a claim for the accident should be extended. The decision stated in part: [The Board] has considered the first issue as relevant to the second. However, the issue of proof of accident is not before me. It is relevant to the merits of the appeal, and not to the time extension issue. Therefore I have assumed, without deciding, that [the accident] occurred in June 1999, as the worker now claims, for the purposes of this decision. [15] In my view, it is particularly important, in the context of adjudication of an application for a time extension under section 22 of the Act, for an adjudicator to avoid considering the merits of the claim, or proof of a workplace accident, where further investigation would be required to shed light on the merits of the claim. I note that, in the circumstances of this appeal, the ARO indicated, in a memo to file, that if the time extension application were to be allowed, further investigation would be required. [16] In this case, the worker did not make a claim to the Board until 2005, slightly more than four years after the accident occurred, missing the six month time limit set out in section 22 by slightly more than three and a half years. The worker sought medical attention promptly, and made an application for disability benefits from the employer s private insurer. According to information provided by the employer, a co-worker took the worker to hospital on the date of accident, and it is therefore probable that the employer was aware of the accident almost immediately after it occurred. In this case, there was no delay by the worker in seeking medical attention for his injury, or in making the employer aware of the accident. [17] I find that the worker s delay in reporting the accident to the Board was due to the worker s belief that the accident was not work-related. The worker stated that he did not believe that the accident was work-related in his application for LTD benefits. I also note that the medical report, dated October 24, 2005, prepared by Dr. Kirwin, stated that the worker was not aware of the possibility that injuring himself in the company parking lot could be a work-related issue, and that therefore he did not report this to the WSIB until recently. It appears that the worker retained his representative in relation to a different, subsequent accident in or about 2005, and from discussions with the representative, the worker understood for the first time that the December 2000 accident might be work-related. When he realized that the 2000 accident might be work-related, he promptly made a claim to the Board. [18] Previous Tribunal decisions have considered the question of whether an extension of the time limit provided under section 22 should be allowed, where delay in reporting an accident to the Board can be attributed to the failure of the worker to understand that an accident might be work-related.

6 Page: 5 Decision No. 2289/08 [19] In Decision No. 1734/06, the worker filed the claim on March 3, The ARO found that the worker was diagnosed with carpal tunnel syndrome in There was no indication that the worker believed his symptoms were work-related in The first indication that there might be an employment connection was in February 2004 when the worker s family doctor filed a Form 8 with the Board. The Vice-Chair noted that the time for filing a claim begins running, not from the date a worker is informed that he has a particular condition, but from the date the worker has effective notice that the condition may be occupational in nature. [20] A similar disposition was made in Decision No. 2555/06. In that appeal, the worker was a long distance truck driver. He claimed that he suffered an injury in April 2002 in Texas when he tripped in a pothole and fell. The worker did not file the claim until July The worker thought that he was off duty at the time of the accident. He worked with his wife as his co-driver. At the time, he was logged out as not driving. When the worker learned that he might be eligible for workplace insurance benefits, he filed the claim promptly. The Vice-Chair concluded that it was just to extend the time to file the claim. [21] In the circumstances of this appeal, without deciding whether the worker s December 8, 2000 accident was, in fact, work-related, I am satisfied that the worker believed that the accident was not work-related until he learned that it might be work-related through discussions with his representative in or about As in the Tribunal decisions referred to above, when the worker became aware that the accident might be work-related, he promptly made a claim to the Board. [22] I note that in his submissions, the worker s representative indicated that the worker was unsophisticated, and had a language barrier. These considerations might well be true, however, in my view, given that the worker was not aware that his injury was work-related, it is unlikely that these considerations affected the worker s delay in filing his claim with the Board. I am satisfied that the delay occurred because, until he was advised by his representative, the worker was not aware that an injury caused by a fall in a parking lot under the control of the employer, occurring while on the way into work (which may or may not have been the case in the matter under appeal), could be work-related. In my view, this is a relatively technical point, which may not be well understood, even by otherwise sophisticated individuals, who are fluent in English. [23] I have also taken into account that the length of the delay in making a claim to the Board was about four years, which is a fairly lengthy delay. It is, however, about the same amount of delay that occurred in Decision No. 1734/06, where the time extension was allowed for similar reasons. Further, there do not appear to be any apparent reasons for concluding that a further investigation by the Board into the circumstances of the accident would be precluded by the delay, or that the employer would otherwise be prejudiced by the delay. I note that the employer elected not to participate in this appeal [24] I am satisfied that the worker s delay in filing an appeal with the Board within the prescribed time limits was due to exceptional circumstances, within the meaning of the Board s Operational Policy Manual Document No Given the worker s lack of understanding (which apparently persisted until 2005) that the December 2000 accident might be work-related, in keeping with the Tribunal s jurisprudence, it is an appropriate case in which to allow a time extension. Accordingly, I find that the time for filing a claim, as provided by section 22 of the

7 Page: 6 Decision No. 2289/08 Act, should be extended to allow the worker to file a claim with the Board in relation to his accident on December 8, 2000, and that it is just to do so.

8 Page: 7 Decision No. 2289/08 DISPOSITION [25] The appeal is allowed. The period for filing a claim shall be extended to allow the worker to file a claim with the Board in relation to his accident on December 8, DATED: October 31, 2008 SIGNED: M. Crystal

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