WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2529/07E

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2529/07E BEFORE: U. Ferdinand: Vice-Chair HEARING: November 5, 2007 Written DATE OF DECISION: December 11, 2007 NEUTRAL CITATION: 2007 ONWSIAT 3175 APPLICATION BY EMPLOYER FOR ORDER EXTENDING THE TIME TO APPEAL APPEARANCES: For the worker: For the employer: Interpreter: Donna Chaplow, OWA Anna M. Vanelli, Lawyer N/A 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. 2529/07E REASONS (i) Introduction [1] The employer requests an extension of time to appeal an Appeals Resolution Officer s decision dated April 13, The decision concluded that: 1. The worker has not established entitlement for an escort to attend Botox injection treatments. 2. the worker has not established that (sic) the need to adjust the pension arrears date with respect to the increase of his pension to the 25 per cent level prior to February 4, The worker has not satisfied the time limit requirements regarding objecting to the denial of right knee entitlement. 4. The employer has not established that the worker would not have been entitled to an ILA. 5. The employer has not established that the worker would not have been entitled to a permanent partial disability award for the neck and headaches resulting from the 1984 accident. [2] The Vice-Chair considered the Time Extension Materials prepared by the Office of the Vice-Chair Registrar on July 9, (ii) The law on Time Extension Applications [3] 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. [4] Section 125(2) 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 appeal must be filed with the Tribunal by June 30, 1998, or such longer time as the Appeals Tribunal may permit. [5] 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;

3 Page: 2 Decision No. 2529/07E 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. (iii) Conclusions [6] A review of the materials in this application reveals the following: The decision under appeal is dated April 13, The deadline for filing an appeal with the Tribunal was October 13, The Tribunal received a letter of appeal on December 4, Thus, the appeal was one month and three weeks late. Ms Vanelli, the employer s representative, provided submissions on the request for a time extension dated March 13, She submitted that the delay in filing the appeal, approximately six weeks, was very minor. She also submitted that there is evidence of an intention to appeal the decision within the six-month time limit, namely her telephone call to the Appeals Resolution Officer on April 24, 2006 in which she left a message expressing the employer s concern regarding the NEL quantum issue, entitlement for the hip area, and Board policy on Independent Living Allowance. She stated that the Appeals Resolution Officer returned her call on May 31, 2006, but did not respond directly to any of the concerns expressed in her message. The employer s representative submitted that the employer acted diligently throughout the entire history of these claim files. She also submitted that there is no prejudice to the worker as the worker is the only witness to the proceeding, and is very familiar with the issues in the appeal. Ms Vanelli also stated that the Tribunal cannot effectively adjudicate the worker s objection to a Board decision on entitlement for chronic pain disability benefits without considering the Appeals Resolution Officer s decision of April 13, It appears that the representative is referring to an objection that is under appeal at the Board. Ms Vanelli submitted that a refusal to hear the appeal would result in a substantial miscarriage of justice, as there were defects in the prior processes and manifest errors. The employer s representative concluded her submissions as follows: On behalf of (the employer), we are urging the Tribunal to be judicious in its deliberations and to recognize that as a result of the complexity of these files, there were errors and defects in the processes that spanned almost twenty years. It is difficult to maintain the proper continuity and flow of the files when issues are being dealt with on a piecemeal basis, as was done in these claim files. This is an opportunity for a specialized adjudicating body to examine these files thoroughly and accurately, in order to ensure the true merits and justice of the case for all parties involved.

4 Page: 3 Decision No. 2529/07E The worker does not agree with the employer s request for a time extension. Donna Chaplow, the worker s OWA representative, provided submissions on the time extension request dated May 16, She submitted that the delay in filing the appeal was not minor. She noted that Tribunal decisions have held that compelling reasons must exist in order to grant a time extension, and submitted that the employer has offered no compelling reasons for the delay in filing the appeal. The worker s representative stated that the employer s representative s firm is an experienced legal firm in Board matters, and ought to have known that contacting the Appeals Resolution Officer to essentially re-argue the case does not constitute an intent to appeal to the Workplace Safety and Appeals Tribunal. Ms Chaplow submitted that the worker would be prejudiced if the employer were granted an extension of time, for the worker might have appealed the decisions that were not favourable to him if the employer had appealed within the time limit. Ms Chaplow concluded her submissions as follows: The Tribunal has developed and consistently applied specific criteria in arriving at decisions where an applicant is seeking a time limit extension. The preponderance of Tribunal decisions confirms that extensions are not granted simply as a matter of routine where an Applicant produces no evidence to support their (sic) request for an extension of time. The Applicant has offered no compelling explanation for the delay in submission of the Notice of Appeal. There is no evidence presented that the Applicant made reasonable attempts within the time frame to object to the ARO decision. The Employer Representative was notified of the statutory time limits and was not diligent in pursuing the appeal. The ARO decision was two-fold, and if the extension of the time limit is allowed, the worker is not afforded an opportunity to re-examine the decision and potentially initiate an appeal of his own issues. The worker would be significantly prejudiced in this regard. [7] The application is denied for the following reasons: There is no evidence of an intention to appeal to the Tribunal within the six-month time limit. Tribunal decisions have held that requests for reconsideration within the time limit may constitute evidence of an intent to appeal. However, while the employer s representative telephoned the Appeals Resolution Officer to express concern regarding certain issues in the decision, there was no request for a Board reconsideration of the decision. The employer s representative s explanation for the delay in filing the appeal, i.e. that the employer had been investigating possibilities to resolve/mediate this matter once and for all, and that there were extensive delays at the Board in processing the employer s objections, is not adequate. The employer was aware of the deadline for filing the appeal with the Tribunal, and was not diligent in pursuing the appeal. There is no information in the Time Extension Materials that there is another appeal before the Tribunal that is connected to the decision under appeal.

5 Page: 4 Decision No. 2529/07E DISPOSITION [8] The application is denied. The employer is not granted an extension of time under section 125(2), and the appeal may not be heard by the Appeals Tribunal. DATED: December 11, 2007 SIGNED: U. Ferdinand

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