WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100112
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker Representative
ISSUE
The worker is objecting to the decision that he did not meet the six month reporting obligation under Section 22(1) of the Workplace Safety and Insurance Act (the Act).
HOW THE ISSUE ARISES
The worker was hired in 2005 as an Electrician with the accident employer.
In a letter dated December 15, 2009, the claims adjudicator (CA) denied the worker’s claim on the basis that he had not filed with the Workplace Safety and Insurance Board until November 18, 2009 and was unable to accept the claim on the basis that it was beyond the six month time limit from the onset of the injury or disease of an alleged accident dated May 17, 2007.
This is the issue for determination.
AUTHORITY
Workplace Safety and Insurance Act (the Act) Operational Policy Manual (OPM) Documents:
11-01-03 – Merits and Justice;
15-01-03 – Workers’ Requirement to Claim and Consent
Section 22(1) of the Workplace Safety and Insurance Act (the Act)
ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS
I have considered the information on record. Upon assessing the available information contained in the claim record and the submissions provided by both parties, I conclude that the evidence does not establish that the worker meets the reporting obligations under Section 22.
The issue for determination on appeal is whether the WSIB should waiver the time limits to file a claim in this case.
The worker’s representative in his prior submissions and July 5, 2010 is of the opinion that the worker acted in good faith and in compliance with Section 22 by filing a claim within six months of being aware of a work-related disablement. In October 2007, the worker visited the union office to discuss his situation followed by completing and mailed a Form 6 to the Workplace Safety and Insurance Board (WSIB) along with requesting the family physician to submit a Doctor’s First Report. The worker and union did file a Form 6, but there was an administrative error and miscommunication not being the fault of the worker. There was a language barrier where the worker detrimentally relied on incorrect information that there may be an 18 month to 5 year delay before a claim was registered. On this basis, to summarise, it is their position that the worker did in fact file a WSIB claim in a timely manner; however, the claim for some unknown reason was never actually registered.
Section 21(1) of the Act states:
“A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease.”
The record shows that the worker completed a Worker’s Report of Injury/Disease (Form 6) on November 16, 2009 at the WSIB Information Centre – Multi-lingual Information Officer. The memo indicates a Form 6 was completed for him and signed by him providing additional information. The worker reported that the date and hour of the accident occurred on May 17, 2007, reported to the employer on the same day. Six months before May 2007, he started to feel pain in his shoulder as a result of his work employment. He reports that he obtained medical attention from Dr. Nguyen in December 2006 and obtained a specialist’s appointment on October 29, 2007 with Dr. Wong.
He resulted in lost time from May 17, 2007 and received Sickness & Accident benefits thereafter.
His benefits with Sickness & Accident ended on November 19, 2009, at which time he was advised that his benefits would cease.
A letter dated May 30, 2007 from the Great West Life (Sickness & Accident) advised the worker that under the terms of his group plan, he was required to file a claim with the WSIB.
The worker completed also completed a Worker’s Report of Injury/Disease (Form 6) dated October 23, 2007 which was received by WSIB on January 21, 2010. The worker indicates the date of accident/awareness of illness occurred in the year of 2006 and reported the accident to his supervisor. The pain originally commenced in approximately 2006 and it deteriorated greatly in May 2007.
On Page 4, the worker further added that in or about April 2006, he started to develop left shoulder symptoms initially as niggling discomfort. He indicates that he is not familiar with WSIB, particularly the distinction between chance event verses disabling injuries. After speaking to his representative, he realised that his work duties were in fact the cause of his problem and after seeing his representative in October 2007, asked for his assistance in filing a WSIB claim. The union assisted in completing his Form 6 with his input.
On September 13, 2007, the Great West Life had written to the family physician. The family physician on October 11, 2007 provided the following in part,
“Although the lesions of rotator cuff tear and tendonitis in the left shoulder and tendonitis in the left elbow are most likely the result of injuries, it is not possible for me to determine if they are the results of his current employment.”
A Health Professional’s Report (Form 8) was completed by the treating physician on April 10, 2008 reporting a diagnosis of left rotator cuff tear/right cuff tendonitis.
In my analysis, the record shows that initial reporting of the accident was made on November 16, 2009 when the worker provided a Worker’s Report of Injury/Disease (Form 6) to the Information Centre. He reported the accident date as May 17, 2007 with medical attention first obtained in December 2006 when he saw his family physician. Thereafter, he provided a second Worker’s Report of Injury/Disease (Form 6) predated October 23, 2007 indicating an accident date of 2006 different from the original date of May 17, 2007. In addition, the worker’s representative alleges that the original Form 6 was mailed to the WSIB on or about October 23, 2007 and not received for some unknown reason.
On February 20, 2008, the worker’s representative in a letter to the family physician requested a completion of the Health Professional’s Report (Form 8). Subsequently, the family physician completed a report on April 10, 2008, but was not received. In my analysis, I find insufficient evidence to indicate why both the Worker’s Report of Injury/Disease (Form 6) and the Health Professional’s Report (Form 8) were not received by the WSIB. Furthermore, there is no evidence or documentation in a memo of any phone contact made by the worker to the claims adjudicator to report the alleged accident until November 25, 2009 as reported in memo 1. In weighing all the evidence and circumstances, I find the worker does not meet the reporting obligations under Section 22.
CONCLUSION
I find the worker does not meet the reporting obligations under Section 22.
The worker’s objection is denied.
Dated: July 30, 2010
M. Palmieri
Appeals Resolution Officer
Appeals Branch
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