Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision number: 20100001
Objection by: Worker
Employer: Participating
Representatives: Worker
Hearing Date: N/A
Issue
The worker objects to the decision that denied an extension for the time limit to appeal.
How the Issue Arises
In 2003 this then 32 year old worker felt a gradual onset of pain in his back as he was performing his regular job duties. Entitlement was accepted for the work injury with an incident date of August 23, 2008.
In December 2003, information was submitted to the claim file indicating that the worker was suffering from depression. The claim was reviewed for entitlement to a psychotraumatic impairment. The adjudicator found that the evidence did not support that the depression was related to the work injury and as such entitlement was denied. The worker was advised of this decision on January 26, 2004.
On June 20, 2007 the worker representative wrote to the adjudicator requesting that the psychological issues be addressed. The request for a review of this issue was again requested by the worker representative on October 20, 2008. In a letter dated October 23, 2008, the adjudicator advised the worker and his representative that they did not meet the time limit to appeal. This decision was upheld in July 2009.
An Objection Form was received by the Workplace Safety and Insurance Board (WSIB), indicating that the worker objected to the above decision, and the file was referred to the Appeals Branch for further review and consideration.
Authority
Workplace Safety and Insurance Act, 1997 (Act)
Section 120
Section 121
Appeal System Practice and Procedures Document – Appendix A
Resolution Method and Process
An expedited 30 day decision without a hearing will be based on a review of the information on file and the submission of the worker representative’s written arguments to support their appeal.
Assessment of the Evidence
Bill 99 imposed time limits on appeals. The time limit applied regardless of the date of decision (i.e. prior to, on or after January 1, 1998). Depending on the type of decision, the Act required the adversely affected party to notify the WSIB within a specific time limit and in writing of their intention to appeal the decision. The time limits were set out as follows:
A 30 day time limit on appealing a WSIB decision about Return to Work or LMR plans.
A six month time limit on appealing any other WSIB decision.
The WSIB has the authority under Bill 99 to reconsider any decision at any time as it considers it advisable to do so. This provides an opening for decisions being changed by the WSIB (through reconsideration) after the expiry of the statutory appeal period.
If reconsideration is not possible and the case has been brought forward for review after the expiry of the statutory time limit, the WSIB has the authority to extend the time limit in appropriate cases.
On January 26, 2004, correspondence was sent to the worker advising that there was no entitlement to a psychotraumatic impairment. The letter outlined that if the worker intended to appeal the decision, he was required to notify the operating area of his intent, in writing, by
July 27, 2004.
The worker spoke to the adjudicator on March 10, 2004 and acknowledged receipt of the January 26, 2004 letter.
Subsequently, a letter dated May 24, 2006 was addressed to the worker outlining further decisions as well as the prior decision of January 26, 2004. The letter indicated that as the depression had been denied there was no entitlement to payment of his medication for that condition. The letter again stated that a written objection was required should the worker wish to appeal and the letter clearly specified that the time limit to appeal was July 27, 2004.
The worker submitted a letter to the WSIB, dated June 28, 2004, titled Appeal. The worker started by indicating that the WSIB made a mistake by denying his antidepressant medication. Multiple issues were brought forth in the worker’s letter. The worker indicated in the letter that the WSIB had information on file pertaining to his health situation and anti-depressant medication so the WSIB could agree to pay for the anti-depressant medication. This letter was received in the Kitchener area office on July 9, 2004.
Although the worker did not specifically indicate that he was appealing the denial of entitlement to a psychotraumatic impairment, his June 28, 2004 correspondence was titled Appeal and it referenced what he felt to be an incorrect decision related to his psychological condition and related medication. Given the above, I find that the intent of appealing the January 26, 2004 decision was implied in the worker’s correspondence. As this correspondence was received within the time limit to claim, it is my finding that the worker did meet the time limit to appeal and consideration of an extension of the time limit is not required.
Conclusion
The worker has met the time limit to appeal the January 26, 2004 decision that denied entitlement to a psychotraumatic impairment.
The objection is allowed.
DATED January 25, 2010.
K. Hille
Appeals Resolution Officer