WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1599/15

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1599/15 BEFORE: S. Peckover: Vice-Chair HEARING: August 7, 2015 at Toronto Written DATE OF DECISION: August 10, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1741 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated June 12, 2014 APPEARANCES: For the worker: For the employer: Interpreter: S. Hart, Office of the Worker Adviser D. Wright, Office of the Employer Adviser Not Required 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. 1599/15 REASONS (i) Introduction [1] The worker appeals a decision of the ARO dated June 12, 2014, which concluded that he was not entitled to an extension of time in which to appeal a Case Manager decision dated July 27, That decision denied the worker entitlement to loss of earnings (LOE) benefits beyond July 25, 2011, since suitable work had been offered which was within the worker s abilities as of that date. In the decision letter, the time limit to appeal the decision was noted to be January 27, [2] The worker wrote to the Board on November 19, 2012, about nine months and three weeks after the expiry of the six-month statutory time limit for appealing this decision, stating that he wished to object to the Case Manager decision of July 27, He indicated that a Case Manager had informed him on November 16, 2012 that he had missed the appeal deadline of January 27, He indicated that, after this conversation, he had gone through his WSIB correspondence, and had been unable to locate the July 27, 2011 decision letter. Also, he stated that he had been on a waiting list to see neurosurgeon Dr. Adegbite, and his appointment had occurred on October 31, He had since been referred for an MRI. He had presumed that, once this appointment had occurred, he would be able to receive the benefits associated with his claim. [3] The worker objected to the July 27, 2011 decision letter, as well as to a decision letter dated March 11, The latter decision denied the worker entitlement for a disc herniation, as being incompatible with the mechanism of injury. As the time limit had not been met in the July 27, 2011 decision letter, it was returned to the Case Manager for a time extension decision. In a decision letter dated April 7, 2014, the Case Manager denied a time extension, as the worker did not meet the Board s criteria. The worker objected. [4] In a decision dated June 12, 2014, the ARO denied the worker s request for a time extension, finding as follows: Having weighed the circumstances of this case, including the 10 month delay; the fact that the worker was given actual notice of the time limit to appeal, I find that the evidence suggests that through inattentiveness and lack of responsibility for his situation, the worker s appeal has been significantly delayed and it would not be appropriate in these circumstances to exercise discretion and extend the time limits. [5] The worker appeals from this decision. (ii) Issue [6] The issue before me is whether the worker s request to extend the time to appeal should be granted. (iii) Law and policy [7] 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 (the Tribunal) within six months of the Workplace Safety and Insurance Board s (the Board) decision or such longer period as the Tribunal may permit.

3 Page: 2 Decision No. 1599/15 [8] On January 1, 1998, the Workplace Safety & Insurance Act, 1997 ( the WSIA ) came into effect. 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. [9] The Board has provided criteria to be applied in determining time limit extensions in a document entitled PRACTICE GUIDELINE: Time limit to Object. The document includes a section entitled Criteria for Extending Time Limit to Object which sets out criteria the Board applies in determining time limit extensions at the Board level. These criteria were included in the case materials. The document states, in part: Criteria for Extending Time Limit to Object Criteria to be considered for objections beyond the statutory time limit include: Whether there was actual notice of the time limit. This acknowledges that as of January 1, 1998, decisions specifically refer to the time limits but prior to that date, they do not; 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; An organic or non-organic condition that prevents the worker from understanding the time limit and/or meeting the time limit; Whether there are other issues in the appeal that were appealed within the time limit which are so intertwined that the issue being objected to within the time limit cannot reasonably be addressed without waiving the time limit to appeal on the closely related issue. All decisions to extend time limits will be based on the merits and justice of the case. [10] The purpose and gravity of statutory time limits has been cogently summarized in Decision No. 972/99E: Time limits are often in legislation for a number of reasons, including the need to ensure appeals are brought in a timely fashion, while the evidence, including the memories of witnesses involved in the case are fresh, to prevent prejudice to the other parties who may act on the basis of the prior decision, and to generally establish finality and certainty in the appeal system. The Tribunal's decision to extend time therefore must be exercised with a view to also ensuring the effective and consistent application of this provision. (iv) Submissions [11] On behalf of the worker, Ms. Hart noted that the worker s letter faxed to the Board on November 19, 2012 was not the first time the worker had indicated his intention to

4 Page: 3 Decision No. 1599/15 appeal. She cited a number of instances during the appeal period when there had been contact between the worker and the Case Manager, in which the issue of the worker s medical condition and/or the suitability of the modified work had been discussed. She noted that the worker had not been informed on any of these occasions that a written objection to the decision needed to be filed. Further, she argued, the Case Manager had advised the worker that the July 27, 2011 decision was under review, but no further letter was ever issued advising the worker of the results of the review. [12] Ms. Hart also noted that, in an ARO decision dated October 14, 2014, the worker was granted entitlement to the L5-S1 disc herniation. She enclosed a copy of this decision, as well as Board Memo #72 dated December 8, 2014, which was the Implementation Case Manager s memo with respect to the ARO decision. That memo stated that the objection to the June 12, 2014 ARO decision and the LOE benefit entitlement were related, and noted that updated medical information was required before any ongoing entitlement could be confirmed. [13] In her submissions dated May 5, 2015 on behalf of the employer, Ms. Wright submitted that the denial of the time extension was correct, and should be upheld. She noted that the decision letter advised the worker of the deadline for filing the objection. The worker stated that he did not submit an objection because he was not notified of the process, and also, that he was awaiting an appointment with a specialist before objecting. She also noted that the ARO decision dated March 11, 2013 granting the worker entitlement to the disc herniation is the subject of an employer appeal at the Tribunal. She submitted that there was no implied intent to object, as the worker was informed of the requirement to object in writing during the appeal period, and did not do so. She also cited the Tribunal s criteria for allowing a time extension, as outlined in Decision No. 1800/05E and 1803/00E, and argued that they were not met. (v) Analysis [14] In the case before me, the worker clearly was given notice of the appeal deadline, and of the requirement to file an objection in writing within the appeal period, in the decision letter dated July 27, The objection was filed on November 25, 2012, approximately 10 months after the appeal period had expired. I find that there is no reasonable explanation before me for this delay. [15] Nevertheless, I am of the view that the appeal should be allowed. Both representatives have indicated that the worker was granted entitlement to the L5-S1 disc herniation in an ARO decision dated October 14, Ms. Wright has added that the employer has appealed this decision to WSIAT. This is a new entitlement, which was not allowed at the time of the decision relating to the suitability of the modified work offered to the worker, and therefore was not considered in the adjudication of whether the worker had declined suitable modified work. [16] In the normal course of events, the suitability of the work offered, and therefore the worker s entitlement to LOE benefits for all or a part of the period of time that he was off work, would be reviewed as a matter of course, following the granting of additional entitlements. If the appeal were not allowed, it is conceivable that, if the worker prevailed on the employer s appeal to the Tribunal and the entitlement to the disc herniation remained in place, the worker could find himself in the situation that he had the additional entitlement,

5 Page: 4 Decision No. 1599/15 and the work offered was found to be unsuitable with this new evidence, but the LOE benefit entitlement could not be reviewed, because the appeal of the time extension application had been denied. This is an anomalous potential situation which must be avoided. [17] I therefore find that the worker s entitlement on this appeal is interwoven with the issues before the Tribunal with respect to the worker s entitlement to a disc herniation. While not so interconnected that the one could not be heard without the other, I find that this is an appropriate case in which to exercise my discretion to allow the appeal.

6 Page: 5 Decision No. 1599/15 DISPOSITION [18] The appeal is allowed. The worker is entitled to an extension of time in which to appeal the Case Manager decision dated July 27, DATED: August 10, 2015 SIGNED: S. Peckover

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