WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2444/06

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2444/06 BEFORE: M. Crystal: Vice-Chair HEARING: December 4, 2006 at Toronto Written case DATE OF DECISION: December 5, 2006 NEUTRAL CITATION: 2006 ONWSIAT 2845 DECISION(S) UNDER APPEAL: WSIB ARO decision dated February 21, 2006 APPEARANCES: For the worker: For the employer: Mr. Ed Robinson, 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. 2444/06 REASONS (i) Introduction [1] The worker suffered a workplace accident on September 20, The Worker s Report of Injury, dated November 18, 1991 indicated that the accident occurred while the worker was working as a labourer digging on a pipeline right of way when he hit a piece of steel and suffered a shoulder injury. The claim was allowed by the Board on a no lost time basis and entitlement was allowed for heath care benefits. [2] The worker sought to re-open the claim in By correspondence from the Board to the worker dated June 24, 1998, the worker was advised that his shoulder condition in 1998 was not compatible with the September 1991 accident. The correspondence stated that ongoing entitlement for the shoulder injury and entitlement for a permanent impairment assessment were denied. The correspondence stated that if the worker wished to appeal the decision he was required to notify the Claims Adjudicator (CA) accordingly in writing, by December 24, 1998, six months from the date of the decision letter. [3] The worker had another workplace accident with an established accident date of September 26, The worker s injuries from that accident affected his hands and he sought entitlement for bilateral carpal tunnel syndrome (CTS) under that claim. By correspondence dated June 24, 1998, the worker was advised by the Board that the claim had been allowed for a period of time, but that the worker was not entitled to benefits for a permanent impairment associated with the CTS. The claim for the 1997 accident is not the subject of this appeal. [4] It should be noted that the Board provided the worker with two separate letters in relation to his two claims. The date of each of the letters, apparently as the result of coincidence, was June 24, [5] The worker retained legal counsel to represent him in relation to the 1997 claim. That counsel sent the Board correspondence dated June 29, 1998 stating that the worker was objecting to the Board s June 24, 1998 decision letter, however, the correspondence cited the claim number for the 1997 accident and did not refer to the claim for the 1991 accident. [6] The worker s current representative requested access to the worker s claim file relating to the 1991 accident on August 25, 2005, and access was granted in September By correspondence, dated October 5, 2005, the representative indicated that the worker had intended to appeal the Board s June 24, 1998 decision, and asked the Board to consider the worker s objection to the decision. By correspondence dated October 7, 2005, the Board s CA advised the representative that the worker did not object to the June 24, 1998 decision and that the time limit to appeal the decision June 24, 1998 decision had expired many years ago. (ii) The Issue on Appeal [7] The issue to be determined in this appeal is whether the worker is entitled to an extension of time to appeal the Board s decision dated June 24, 1998.

3 Page: 2 Decision No. 2444/06 (iii) The Law on Time Extension Applications [8] On January 1, 1998, section 125(2) of the Workplace Safety & Insurance Act, 1997 ( the WSIA ) came into effect. It provides that notice of appeal shall be filed with the Workplace Safety and Insurance Appeals Tribunal within six months of the Workplace Safety and Insurance Board s decision or such longer period as the Appeals Tribunal may permit. [9] Section 120(1) of the WSIA applies to appeals of Board decisions, within the Board. It states: 120(1) A worker, survivor employer, parent or other person acting in the role of a parent under subsection 48(20) or beneficiary designated by the worker under subsection 45(9) who objects to a decision of the Board shall file a notice of objection with the Board, (a) in the case of a decision concerning return to work or a labour market re-entry plan, within 30 days after the decision is made or within such longer period as the Board may permit; and (b) in any other case, within six months after the decision is made or within such longer period as the Board may permit. [10] Section 125(2) of the WSIA applies to appeals of Board decisions made on or after January 1, For Board decisions made prior to January 1, 1998, section 112(3) of the WSIA provides that the time limits in section 120 and subsection 125(2) apply only from January 1, Accordingly, the time limit for appealing decisions made before that date is June 30, 1998 [11] In determining time extension applications, Tribunal decisions have considered the following factors (see, for example, Decision Nos. 1493/98I (1998), 48 W.S.I.A.T.R. 239 and 1522/98I2 (1998), 48 W.S.I.A.T.R 252.): The lapse of time between the expiration of the six months and the date the appeal was filed and any explanation for the delay; Whether there is evidence to show an intention to appeal prior to the expiry of the six months; Whether the applicant ought to have known of the time limit; Whether the applicant acted diligently; Whether there is prejudice to a respondent; Whether the case is so stale that it cannot reasonably be adjudicated; Whether the issue is so connected to another appeal that the Tribunal cannot reasonably adjudicate the other appeal without considering it; Whether a refusal to hear the appeal could result in a substantial miscarriage of justice due to defects in prior process or clear and manifest errors; Whether there are exceptional circumstances.

4 Page: 3 Decision No. 2444/06 [12] Although these factors, which are included in the Tribunal s Practice Direction on Time Extension Applications, have been applied by the Appeals Tribunal in relation to applications for time extension where an appeal is sought from a final decision of the Board to the Appeals Tribunal, in my view, they are also generally applicable to an application for an extension of time to appeal a Board decision within the Board. [13] The Board has also provided criteria to be applied in determining time limit extensions, in a document entitled, Appeal System, Practice and Procedures. The document sets out criteria the Board applies in determining time limit extensions at the Board level. These criteria were included in the Appeals Resolution Officer s (ARO) decision. In this regard, the document states: CRITERIA TO BE APPLIED IN DETERMINING TIME LIMIT EXTENSIONS The length of the delay. Broad discretion to extend will be applied where appeals are brought within one year of the date of the decision. Additional criteria to be considered for longer delays include: Serious health problems (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; Whether there was actual notice of the time limit. This acknowledges that post 98 decisions specifically refer to the time limits but pre 98 decisions do not; Whether there are other issues in the appeal which were appealed within the time limits and which are closely related to the issues not appealed within the time limits; The significance of the issue in dispute; Whether the party was able to understand the time limit requirements. All decisions to extend time limits will be based on the merits and justice of the case. (iv) Conclusions [14] I have considered the written submissions, dated September 20, 2006, provided by the worker s current representative. The submissions refer to the Board s Criteria to be Applied in Determining Time Limit Extensions which are set out above. The representative s submissions acknowledge that there was a significant delay (i.e. from December 1998 to October 2005) in the commencement of the appeal, that serious health problems were not responsible for the delay, that actual notice of the time limits was given to the worker, that there were no other related issues in the appeal which were appealed within the time limits so as to make a time extension appropriate and that the worker was aware of the time limits at the Board. [15] The main argument presented by the representative is the submissions related to the representation of the worker by another representative. In this regard it was noted that the worker might have believed that the letter from counsel, dated June 29, 1998, advising the Board of the worker s appeal in relation to the 1997 accident claim, was effective notification of an intention to appeal the decision in the 1991 accident claim. The submission is also made that counsel representing the worker in relation to the 1997 accident claim was not diligent, should have commenced an appeal in relation to the 1991 accident claim and that the worker should not be held responsible for the incompetence of his representative. Finally, the submission

5 Page: 4 Decision No. 2444/06 notes that the subject matter of the appeal is significant to the worker, and that the time limit extension ought to be allowed on the real merits and justice of the case. [16] First, I note that there is no evidence before me to suggest that the law firm representing the worker in relation to the 1997 accident claim was also representing the worker in relation to the 1991 accident. The letter, dated June 29, 1998, from counsel representing the worker in relation to the 1997 claim refers exclusively to that claim. This is acknowledged in the submissions by the current representative. Given that it does not appear that counsel representing the worker in relation to the 1997 had authority to act in relation to the 1991 accident claim, which is the subject of this appeal, I am unable to find that there was any lack of diligence or that there was incompetence attributable to counsel in not acting. Counsel, who does not have authority to act in a matter, cannot be attributed with incompetence for failing to so act. [17] As to whether the worker believed that counsel had also appealed the decision in relation to the 1991 accident claim, there is no evidence before me to suggest that that was the case, except for the submission from the current representative that it might have been the case. From the evidence before me, I am not able to conclude that the worker believed that counsel had appealed the decision in the 1991 accident claim, or that he expected counsel to do so. As I have already indicated, it does not appear that counsel was retained to act in relation to the 1991 accident claim. [18] As for the significance of the issue in dispute, I note that almost every worker who makes an accident claim considers it to be significant. In order to be entitled to a time extension on the ground that the issue in dispute was significant, in my view, there must be exceptional circumstances. If it was not necessary to demonstrate exceptional circumstances, almost all time extensions could be allowed on the basis that the issue in dispute was significant. There is no evidence before me to indicate that there were exceptional circumstances in this case. [19] Similarly, in order to allow a time extension on the basis of the merits and justice of the case, exceptional circumstances must be demonstrated. As noted above, there does not appear to be any evidence of exceptional circumstances in this case. [20] In the circumstances of this appeal, the worker was advised in writing of the Board s decision in relation to the 1991 accident claim on June 24, The decision letter stated explicitly that in order to appeal the decision, the worker was required to provide his objection in writing within six months. The objection was made in There is no evidence to demonstrate that any of the criteria for allowing a time extension of a Board decision were met. [21] Accordingly, the worker s appeal of the ARO decision, dated February 21, 2006, which denied an extension of the statutory time limits for appealing a Board decision, is denied.

6 Page: 5 Decision No. 2444/06 DISPOSITION [22] The appeal is denied. The worker is not allowed an extension of time to appeal the Board s decision of June 24, DATED: December 5, 2006 SIGNED: M. Crystal