WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2395/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2395/13 BEFORE: A.G. Baker: Vice-Chair HEARING: December 27, 2013 at Toronto Written DATE OF DECISION: May 9, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1027 DECISION(S) UNDER APPEAL: WSIB ARO decision dated February 16, 2012 APPEARANCES: For the worker: For the employer: Interpreter: Self Represented N.S., Employer Representative Not Applicable 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. 2395/13 REASONS (i) Introduction and issue [1] The employer has appealed to the Tribunal requesting the denial of entitlement to an extension of the six month time limit to file a claim. (ii) Background [2] As stated in the Appeals Resolution Officer (ARO) decision under appeal, dated February 16, 2012, the worker objected to the denial of a time extension to file a claim. In July of 2008, the worker initiated a claim for a workplace injury that occurred 13 years earlier, on June 14, She reported that on that date, she was working as a letter carrier and was attacked by a dog and knocked to the ground. She reported sustaining a left forearm and back injury. As the ARO noted, the worker s rationale for the late filing was that she had been under the impression she was not allowed to claim compensation because of her temporary status. [3] The Board considered the evidence and denied entitlement on the basis of the late filing of the worker s claim. It was also concluded the worker did not meet the criteria for an extension to the time limit. [4] The worker objected and the ARO allowed the worker s objection, and granted a time extension to file a claim. The employer has now appealed that finding to the Tribunal. I also note that the worker was provided the opportunity to seek representation and has chosen to represent herself in this case. [5] I also note for the record that the worker took issue with this matter being ruled on through a written hearing process. In that regard, I note the Tribunal s Practice Direction: Written Appeals and I find that this application falls under the Practice Direction. Put succinctly, there is a single discrete issue for which it does not appear that testimony would not add to the information that already exists in the case materials. I also note that it is the Tribunal s practice, given its limited resources, to adjudicate time extension applications by way of a written process. Further, and as will be explained in the below decision, given the findings of fact in a prior Tribunal decision, it would not be necessary in my view for there to be an oral hearing in this appeal. [6] Finally, the worker has indicated she has other claims pending and on appeal to the Tribunal. For clarity, I have jurisdiction to deal solely with the time extension claim on appeal from the ARO decision of February 16, (iii) Law and policy [7] The claimed injuries occurred in 1995 and before January 1, Therefore Section 22 of the pre 1997 Workers Compensation Act (the pre-1997 Act) is applicable to this appeal and provides as follows: 22(1) Subject to subsection (5), compensation or health care is not payable unless notice of the accident is given as soon as practicable after the happening of it and before the worker has voluntarily left the employment in which he or she was injured and unless the claim for compensation or health care is made within six months from the happening of the accident or, in case of death, within six months from the time of death.

3 Page: 2 Decision No. 2395/13 (5) Failure to give the prescribed notice or to make such claim or any defect or inaccuracy in a notice does not bar the right to compensation if in the opinion of the Board the employer was not prejudiced thereby or, where the compensation is payable out of the accident fund, if the Board is of opinion that the claim for compensation is a just one and ought to be allowed. [8] Board Operational Policy Manual (OPM) Document No , entitled Worker s Requirement to Claim and Consent describes the worker s obligations to file a claim within six months of an accident. It is also notable that the Board may extend that deadline, or waive the dual requirements if it is just to do so. The policy also states in part: 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 exceptional circumstances existed at the deadline. Exceptional circumstances 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 inability to understand the time limit requirements and the consequences of not meeting them (i.e. was the worker made aware at the workplace of the requirement to claim and consent; were language difficulties a factor?) Whether the worker reported the accident to the employer, health care professional, or co-workers. (iv) Decision [9] I note at the outset that this appeal arises not only from a long delayed claim from the worker of some 13 years, but also involves a previous appeal before the Tribunal. As will be noted further below, the worker has previously pursued a traumatic mental stress (TMS) claim before the Tribunal. (See Decisions No. 2227/08 and 2227/08R.) Among the grounds raised in the worker s denied TMS claim were the circumstances surrounding the June 1995 dog bite incident. The findings from those decisions are noted further below. [10] The worker has now requested in further submissions to have the 1995 dog bite incident pursued separately. There were also multiple letters from the worker on file, which I have reviewed in reaching this decision. I noted in particular the submission of October 4, 2012, in which the worker claimed that the prior decisions should not be used to determine the claim at issue in this case. She raised that she was not informed that the matter would be dealt with by the Tribunal and she was not provided the opportunity to call witnesses or present evidence in that regard. The worker also stated that she would be seeking judicial review of the prior decisions, which I note only for the record. [11] The worker also submitted that there was no final decision of the Board in regard to the 1995 incident when the Tribunal heard the TMS appeal. Again, she stated she was not prepared to address the dog bite claim at that time, and that she was not told such a ruling was going to be made. It was submitted that such a ruling was outside the Tribunal s jurisdiction at that time. The worker has also submitted generally that the prior rulings have negatively impacted her rights for a fair hearing into the claim at issue.

4 Page: 3 Decision No. 2395/13 [12] I noted that the ARO allowed the worker s objection and granted a time extension, which the employer has now appealed. In coming to that decision, the ARO found in part that the worker provided an explanation for her delay. Key support for that finding was that the worker was under the impression she could not file a claim as a temporary worker. The worker s personal life and other work events were also cited, but the worker continued working. It was found that it was therefore unlikely that the worker s psychological condition prevented her from pursuing her claim, a conclusion with which I also agree. [13] The ARO continued by noting the worker s primary submission that she was a temporary worker, and that she had contacted a supervisor at the time, who had since retired. In that regard, the employer had disputed any such conversation and cited a specific process for reporting such incidents. [14] It was noted by the ARO that the worker did not pursue the matter further, again citing her temporary status. A hospital record was also noted for the treatment of the worker s dog bite on June 14, The employer s name was cited and an emergency room physician evidently wrote WCB on the form. There were also clinical notes that followed in later [15] The ARO concluded that the worker was able to continue working without any special accommodation. Further, that the minor nature of the injuries were simply accepted by the worker, and that her temporary status and lack of ongoing problems made it unnecessary for her to pursue the claim further. In brief, the ARO found that there were exceptional circumstances and that there was no prejudice to the employer for the claim to proceed. [16] However, in my view, there are no grounds to allow a time extension in this matter. In reaching that decision, I have also noted the employer s submissions of September 16, I have also noted the previous Tribunal decisions cited above and specifically as they have dealt with the very incident at issue in this appeal. [17] The decision of the Vice-Chair in the reconsideration Decision No. 2227/08R was that the Panel s conclusions in Decision No. 2227/08 did not turn on adjudication of whether or not a compensable dog bite occurred. However, the initial decision addressed the same allegations that the worker raised in this application in regard to her failure to file a claim. Namely, that the worker was somehow discouraged from making a compensation claim, or that her temporary status left her unaware of her ability to file a claim. [18] In that regard, it was the worker who raised the circumstances surrounding the dog bite incident as part of her TMS claim. While it may not have dealt directly with the physical injuries the worker claimed, the factual allegations regarding the failure to file a claim are essentially the same. Again, as in this appeal, it was the worker who raised those allegations, and she had every opportunity to present evidence in regard to those circumstances. In that regard, I noted the following from Decision No. 2227/08, which has been upheld in reconsideration: [24] We now turn to the specific incidents the worker claims occurred. (a) Dog bite [25] Some time in 1995, the worker claims that she was bitten by a dog during her delivery route and discouraged from seeking medical attention or filing a WSIB claim. She was working at station 2 at the time. She testified that she phoned her then supervisor, Mr. M.Y. We note, however, that Mr. M.Y was not the worker s immediate supervisor. Rather Mr. R.M. was the worker s immediate supervisor. Mr. M.Y. was the

5 Page: 4 Decision No. 2395/13 supervisor above Mr. R.M. who was mostly responsible for station 1 as opposed to station 2 where the worker worked. [26] According to the worker, Mr. M.Y. was only concerned about whether the worker could finish her route. The worker alleged that Mr. M.Y. advised her that she could not file a claim for WSIB because she was a temporary employee. The worker testified that she attended the hospital but the file documentation does not include any hospital reports regarding a dog bite. [27] Mr. M.Y. was unavailable to testify at the Tribunal hearing as the result of being out of the country. Mr. R.M., who was the worker s direct supervisor at the time that the incident allegedly occurred, testified having no knowledge of any dog bite. He testified that dog bites are a frequent issue among letter carriers and there is a set procedure to follow that does not change whether the employee is a temporary or permanent one. No temporary employee would ever be told not to file a WSIB claim. [28] The Panel does not accept the worker s testimony that she was discouraged from filing a claim in respect of a dog bite. Mr. R.M. was the worker s immediate supervisor at the time that the worker testified that the incident allegedly occurred. He, rather than Mr. M.Y., would have been the one that should have been notified of such an incident yet he had no knowledge of such. The worker s testimony that she was unaware that she was entitled to file a claim to the WSIB was not credible. The worker demonstrated that she was well aware of her rights to file a WSIB claim, as she subsequently did regarding her shin splint claim during her pregnancy. Dog bites are a common occurrence in this profession with a very well established procedure to follow. There would be absolutely no reason for the employer to try and prevent an employee from filing a claim for a dog bite or discouraging the worker from seeking medical attention. [19] Again, I realize that the physical injuries claimed by the worker were not directly at issue in the above noted decision. However, there has been a previous ruling by the Tribunal that has rejected the worker s claims that she was somehow discouraged from making a claim by the employer. Those findings also rejected the position that she was unaware of her entitlement to file a claim due to her temporary status. In this application, I find there is also insufficient evidence of substance to support the worker s argument that she was discouraged from making a claim, or that she was unaware of her right to file a claim due to her temporary status. In that regard, the worker has essentially brought back the same allegations that were raised in the above noted decision. I similarly find they do not support entitlement to a time extension in this application. [20] In coming to that finding, I have noted that there were hospital records regarding the worker s treatment for an apparent dog bite on the date the worker claimed. However, in my view, that alone does not relieve the worker from such an egregious delay in filing her claim. There were no compelling personal or health reasons raised that would have prevented her from pursuing her claim in a timely manner. Further, the worker provided no credible reason why she was unable to understand the time limit requirement or pursue her claim. [21] I also noted the employer s further submissions, which raised the potential prejudice that would arise attempting to hear an initial entitlement appeal some 18 years post-accident. I also noted the employer s submissions regarding the benefit of the doubt, further statutory arguments, and the submission of Decision No. 755/08, which I did not find necessary to address in this decision.

6 Page: 5 Decision No. 2395/13 [22] In my view, the worker has failed to raise exceptional circumstances that would warrant granting an extension for a 13 year delay in filing a claim. The employer s appeal is therefore allowed. I find therefore that the worker is not entitled to an extension of the time limits to pursue her claim for the accident and injuries on June 14, 1995.

7 Page: 6 Decision No. 2395/13 DISPOSITION [23] The employer s appeal is allowed. The worker s time extension application is denied. DATED: May 9, 2014 SIGNED: A.G. Baker