WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20150045
DECISION DATE: March 11, 2015
OBJECTING PARTY: Worker
REPRESENTED by: Worker Representative
RESPONDENT: Employer (Self Represented)
HEARING: Hearing in Writing
HEARD by: F. Bruno, Appeals Resolution Officer
ISSUE
The worker objects to the Case Manager's decision dated May 1, 2014 and December 30, 2014 that denied the worker's request for an extension to the time limit, to appeal the October 18, 2010 decision.
BACKGROUND
The worker was employed as a Truck Driver with the employer. He began his employment with them in March 2007.
On December 16, 2008, at 46-years of age, he was driving through an intersection when he collided with another truck that failed to stop at a red light. The worker suffered injuries to the left shoulder, left arm and a whiplash injury to the neck. A permanent impairment was later accepted for the neck and upper back and the worker was granted a 25% Non-Economic Loss Award for the injuries accepted.
The worker was unable to perform his pre-injury job and Labour Market Reentry (LMR-now referred to as Work Transition) Services were initiated.
The worker completed his LMR program on October 15, 2010 for the Suitable Employment or Business (SEB-now referred to as Suitable Occupation) of NOC 661-cashier. Full Loss of Earnings Benefits were adjusted to partial Loss of Earnings Benefits, commencing on October 18, 2010 based on the SEB entry level wages of $10.25 per hour, 40 hours per week. These details were explained in the Case Manager's letter dated October 18, 2010.
The final LOE Benefit review was explained in the Case Manager's letter dated December 17, 2014. The worker's partial LOE Benefits were adjusted using updated wages of a cashier for the Kitchener, Ontario area at $11.00 per hour for a 40 hour work week. The new LOE Benefit rate was $158.30 per week and the decision became effective from December 16, 2014 to March 9, 2026 (age 65).
In a letter dated March 30, 2012, the worker outlined various issues he was objecting to, that included the decision dated October 18, 2010. He provided a further explanation in his letter dated June 11, 2012, as to why he missed the appeal time limit to object to the October 18, 2010 decision.
The Case Manager's letter dated May 1, 2014 denied the worker's request to appeal the October 18, 2010 decision.
The Worker Representative, on behalf of the worker objects to the decision dated May 1, 2014 regarding the time limit issue. The matter was referred to the Appeals Services Division to address the worker's objection.
AUTHORITY
The WSIB Appeals System Practice and Procedures Manual;
WSIB Operational Policy: 21-02-02 - Disclosure of Claim File Information (Issue in Dispute);
Workplace Safety and Insurance Act Section 112(3) - Application of Time Limits
Section 120-Objection to Board Decision
ANALYSIS
I have reviewed the record and have considered the matter.
As indicated in the Appeal Readiness Form dated November 25, 2014, the Worker Representative requests the WSIB extend the time limit issue as the worker was depressed and confused.
The balance of evidence supports that there are no extenuating circumstances that could account for the worker's delay in objecting to the decision dated October 18, 2010 within the legislative timeframe. Therefore, I find the worker is not entitled to an extension to the time limit issue. In reaching this conclusion, I have regard for the following details.
The letter dated October 18, 2010 was addressed to the worker. There is no indication from him that the letter was not received. The letter invites the worker to contact the Case Manager if he disagrees with the decision. There is no indication that he made contact regarding the decision within the legislative time frames. The letter advises the worker of the imposed time limit on appeal, and that the time limit to appeal would expire as of April 18, 2011.
The record shows the worker contacted the Case Manager on January 5, 2011 inquiring if he could arrange to have his partial LOE Benefits processed via direct deposit. He made no mention of the October 18, 2010 decision.
He contacted the Case Manager again on January 7, 2011, May 30, 2011, January 11, 2012, January 18, 2012, February 15, 2012 and March 9, 2012 but no mention was made regarding the October 18, 2010 decision.
I note the worker has made various other objections to other issues on the case record and met the appeal time limits on several of those issues. I note a prior Appeals Resolution Officer decision also on the case record.
In his letter dated March 30, 2012, the worker explains he is objecting to various decisions, including the decision of October 18, 2010.
His letter dated June 11, 2012 explains that the only reason he had not appealed previously was that he could not get a doctor while living in "Palmer Rapids" due to a provincial lack of resources and, that he had asked Dr. R how he was supposed to be able to retrain at anything when he could not sit for any length of time without putting himself in severe pain, and that he had, at the time, turned his back to the Case Manager and this left him with the belief that he had no further recourse.
Section 120(1) of the Act, indicates that a notice of appeal must be filed with the Workplace Safety and Insurance Board within 30 days after a decision is made concerning a return to work or a Work Transition Plan, (LMR) Plan. In any other case, the appeal must be filed within 6 months. Section 120 (1) also provides the WSIB with the discretion to extend the 30 day and 6 month time limits.
The WSIB has adopted the following guidelines when considering the statutory time limits for objections to decisions:
serious health problems (experienced by the party or parties immediate family) or the party leaving the province/country due to the ill health or death of a family member;
whether the party had actual notice;
the length of the delay;
whether there are other issues in the appeal which were appealed within the time limits and which were closely related to the issues not appealed within the time limits;
the significance of the issue in dispute;
whether the worker/employer was able to understand the time limit requirements.
In this case, I do not find there were compelling personal reasons such as a serious health problem or an accident experienced by the worker that would warrant considerations, as an exceptional circumstance.
The worker was provided notice of the appeal process in the Case Manager's decision of October 18, 2010. The evidence before me does not lead me to conclude or accept that the worker did not understand the decision and the time limit to appeal.
The first indication by the worker to appeal the decision was explained in his letter dated March 30, 2012 which was almost one year beyond the appeal time limit. It was almost one and a half years after the October 18, 2010 decision was issued. No other issues were closely related to the decision of October 18, 2010. There is no evidence indicating the worker/representative contacted the WSIB either verbally or in writing to express intent to appeal the decision within the legislative time frames. I find the request for an extension in regards to the time limit is not warranted. The worker does not have the right to appeal the decision of October 18, 2010. The worker has not met any of the criteria to consider an extension of the time limit. There is no indication to suggest an extraordinary circumstance occurred which would have prevented the worker from appealing the decision within the legislative time frames. There is no indication or suggestion that any of the criteria are indicated.
CONCLUSION
The worker's objection is denied.
The worker is not entitled to an extension of the time limit to appeal the Case Manager's decision of October 18, 2010.
Dated March 11, 2015 at Toronto, Ontario
F Bruno Appeals Resolution Officer Appeals Services Division