WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090030
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker Representative
HEARING DATE: N/A
ISSUE
The worker is objecting to the decision to deny a time limit extension to appeal a decision dated March 18, 1988 denying Chronic Pain Disability (CPD) and psychotraumatic disability.
HOW THE ISSUE ARISES
This now 69 year old Registered Nursing Aide injured her back on December 26, 1983 when she slipped and fell on a wet floor.
The original diagnosis was strain of the cervical and lumbar spine, and right shoulder. It was also noted that the worker had a pre-existing scoliosis. The worker was referred to the Hospital and Rehabilitation Centre for assessment, where it was opined that the worker could return to full unrestricted duties. The Adjudicator, after reviewing this information concluded the worker was not entitled to further benefits beyond August 13, 1984. A letter confirming this decision was issued on August 2, 1984.
The worker representative appealed this decision, and on October 17, 1984 the Claims Review Branch issued a decision concluding the worker’s ongoing problems were the result of the pre-existing scoliosis and ongoing entitlement beyond August 13, 1984 was not in order.
The worker representative objected to this decision and on February 14, 1985 a WSIB Appeals Adjudicator confirmed the earlier decisions. The worker representative further appealed the Appeals Adjudicator decision and on October 1, 1985 the WSIB Appeal Board also confirmed the earlier decisions to deny ongoing entitlement.
A lawyer wrote to the WSIB on June 10, 1987 requesting entitlement for psychogenic pain disorder and further benefits on this basis. The Adjudicator requested a medical opinion from a WSIB psychological consultant regarding possible entitlement for psychotraumatic disability entitlement. The psychological consultant opined there was no evidence of emotional difficulties resulting from the accident. The psychological consultant requested a further medical opinion from the WSIB Pensions Assistant Medical Director regarding CPD entitlement. The medical director opined the symptoms were consistent with an organic disability. The Adjudicator after reviewing the information contained in the claim file and considering the medical opinions concluded there was no entitlement for either psychotraumatic disability or CPD in this claim. A letter confirming this decision was issued on March 18, 1988.
The worker representative sought leave to appeal the WSIB Appeal Board decision through the Worker’s Compensation Appeals Tribunal (WCAT). In a decision dated June 7, 1988 WCAT issued a decision denying the worker the right to appeal the previous Appeal Board decision.
The worker obtained new representation in 1999 and the new worker representative approached the Workplace Safety and Insurance Appeals Tribunal (WSIAT) requesting they reconsider the decision of June 7, 1988 denying the worker the right to appeal the Appeal Board decision. On July 9, 1999 WSIAT issued a decision denying the request for reconsideration.
The worker obtained new representation in 2005 and the new worker representative requested entitlement for CPD. The Adjudicator advised the worker representative in a letter dated July 8, 2005 that ongoing entitlement had been denied by WSIAT.
The worker representative submitted a letter in 2008 and requested that the decision of March 18, 1988 be referred to the Appeals Branch. The Adjudicator after reviewing the information contained in the claim file concluded the worker had not met the time limits to appeal the March 18, 1988 decision. A letter dated March 17, 2008 was issued confirming this decision.
The worker disagrees with this time limit decision, and the case has been referred to the Appeals Branch for further consideration.
AUTHORITY
Workplace Safety and Insurance Act 1997 Section 120
RESOLUTION METHOD AND PROCESS
An appeal of a time limit requires the Appeals Resolution Officer to provide a written decision within 30 days of receiving written submissions.
ASSESSMENT OF THE EVIDENCE
Upon assessing the available information contained in the claim record I find that the request for time limit extension is denied, the worker does not have the right to appeal the decision of March 18, 1988.
In arriving at my decision, I considered the evidence and submissions in the context of the relevant legislation and Workplace Safety and Insurance Board (WSIB) policy. The following is a summary of my observations and assessment of the evidence in reaching my conclusions.
File documentation
On August 2, 1984 the Adjudicator issued a decision indicating that benefits would cease as of August 13, 1984. At that time the worker had been seen at the Hospital and Rehabilitation Centre and was considered able to return to full unrestricted employment.
The worker’s first representative submitted a letter dated August 15, 1984 objecting to the decision to cease benefit payments and requested the claim be referred to the Claims Review Branch.
The Claims Review Branch issued a decision dated October 17, 1984 concluding the worker had recovered from the injury sustained on December 26, 1983 and that ongoing problems were the result of a pre-existing scoliosis.
On November 27, 1984 the worker’s first representative submitted a request for photocopies of the worker’s claim file indicating the issue under appeal was the Claims Review Branch decision of October 17, 1984.
The claim was referred to a WSIB Appeals Adjudicator and a hearing was held on February 11, 1985. Following the hearing the Appeals Adjudicator issued a decision dated February 14, 1985 confirming the Claims Review Branch decision to deny ongoing entitlement.
On February 21, 1985 the worker’s first representative submitted a further request for photocopies of the claim file indicating the issue under appeal was the Appeals Adjudicator decision dated February 14, 1985.
The claim was referred to the WSIB Appeal Board and a further hearing was held on September 10, 1985. Following this hearing the Appeal Board issued a decision dated October 1, 1985 confirming the Appeals Adjudicator decision to deny ongoing entitlement.
On June 10, 1987 a lawyer submitted a letter to the WSIB requesting consideration for entitlement on the basis of psychogenic pain disorder.
On November 24, 1987 an internal WSIB memo recommended that the issue of psychotraumatic disability entitlement and entitlement for CPD could be ruled on by obtaining an opinion from the WSIB psychological consultant.
The Adjudicator wrote to the lawyer on December 2, 1987 requesting clarification as to who was representing the worker.
On December 4, 1987 the worker’s first representative submitted a copy of a letter to the lawyer also signed by he worker advising that the first representative was still active in the claim.
The Adjudicator requested a medical opinion from the WSIB psychological consultant regarding possible entitlement for psychotraumatic disability or CPD. In memo in memo 46 on January 29, 1988 the psychological consultant opined that there was no evidence to indicate the worker had emotional problems resulting from this accident in this claim. The psychological consultant then requested that the WSIB Pensions Assistant Medical Director review the claim for possible entitlement under CPD criteria. The Assistant Medical Director opined in memo 47 that the symptoms were consistent with an organic injury.
On March 18, 1988 the Adjudicator after reviewing the information contained in the claim file and considering the medical opinions issued a decision to the worker’s first representative with a copy to the worker advising that entitlement to psychotraumatic disability and CPD did not exist in this claim.
The worker’s first representative contacted WCAT seeking leave to appeal the Appeal Board decision of October 1, 1985. A hearing was held