Worker v. Employer, 2015 CanLII 39605

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

Decision number: 20150068 Decision date: June 23, 2015

OBJECTING PARTY: Worker REPRESENTED by: Worker Representative

RESPONDENT: Employer REPRESENTED by: Employer Representative

HEARING: Hearing in Writing HEARD by: M. Elliott, Appeals Resolution Officer

ISSUE

The worker is requesting entitlement for:

1. An extension to the time limit to appeal the Case Manager (CM) decision of February 14, 2011. The letter from the CM dated March 20, 2015 indicated the worker did not meet the time limit to appeal the decision of February 14, 2011.

BACKGROUND

On February 6, 2006, this police officer volunteered to be tasered during training. Left shoulder soft tissue injuries (a strain and tendonitis) were identified as related to the incident. The worker was treated with acupuncture to facilitate healing of the left shoulder tendinitis.

There are no memorandums in this claim between July 25, 2006 and August 18, 2010. On August 18, 2010, the worker contacted the WSIB and spoke to an Eligibility Adjudicator. He stated he had ongoing issues with his shoulder. He had recently undergone two MRIs and a tear in the shoulder was demonstrated. The Adjudicator requested that the worker have all test results and updated medical information sent to the WSIB. A decision would then be issued regarding further entitlement in the claim.

Case Manager Decisions

• The Case Manager decision dated February 14, 2011 indicated there was a gap in medical continuity between July 28, 2006 and August 7, 2007 and there was no correlation to the taser incident in February 2006 and the labral tear identified on MRIs in July and August 2010. Therefore, the recurrence of August 18, 2010 was denied. The decision indicated that the Workplace Safety and Insurance Act (The Act) imposes time limits on appeals. If the worker planned to appeal the decision, The Act required him to notify the Case Manager in writing by August 14, 2011.
• A decision was issued to the worker January 9, 2012 after further medical information had been obtained regarding his left shoulder condition. This decision indicated that the acupuncturist who originally treated the worker had diagnosed a strain as well as rotator cuff tendinitis as related to the worker being tasered in the left shoulder during a training exercise. This decision identified May 8, 2006 as the maximum medical recovery (MMR) for the accepted injury and stated that additional Healthcare Benefits would not be allowed beyond that point in time.

The decision confirmed that a labral tear was not accepted as related to the accident on February 6, 2006 specifically since an MRI from March 5, 2006 did not show a tear. This decision reiterated that the worker's recurrence would not be allowed. The CM also indicated there would be no entitlement to a permanent impairment award or surgery for the left shoulder in the future. If the worker planned to appeal the decision, The Act required him to notify the Case Manager in writing by July 9, 2012. The worker provided a written objection on March 9, 2012.

• A letter was issued to the worker March 20, 2015 by a Case Manager regarding an Appeals Readiness Form (ARF) that had been completed by the worker’s representative on November 6, 2014. The CM stated that after careful review of the claim file, it was determined there were no memos, letters or forms received in the file that indicated the worker's intent to object to the original decision of February 14, 2011 within the time limit that would have allowed him to pursue an appeal to that decision. As the worker did not meet the time limit to object to the original decision, he could not object to the subsequent reconsideration decisions.
• A further letter regarding this issue was sent to the worker March 24, 2015. This letter from the CM indicated that an Appeals Readiness Form had been received November 6, 2014 indicating that the worker wanted to object to decisions dated January 9, 2012 and October 22, 2014. This letter of March 24, 2015 stated that the original denial letter for the recurrence was February 14, 2011 and that the further decisions were reconsideration decisions that upheld the denial of the recurrence. The Appeal Readiness Form could not be referred to the Appeal Services Division as the worker had not met the time limit to object to the original decision and objecting to reconsideration decisions regarding the same issue is not permitted.

Worker's Position

On behalf of the worker, the worker's representative provided a submission March 26, 2015. The representative indicated that after the denial decision dated February 14, 2011, a CM sent a letter to the worker July 12, 2011 requesting additional information for the claim and specifically the names of doctors from whom he sought medical attention before and after the accident. The CM then directed letters to caregivers requesting outstanding medical information. The information was necessary to determine if the worker could be reimbursed for ongoing treatments.

The representative has indicated that this lead the worker to believe entitlement was still being considered. The representative pointed out that the decision issued by the CM dated January 9, 2012 provided additional issues for appeal which are inextricably linked to the denial of the recurrence of August 10, 2010 in the decision dated February 14, 2011. The decision of January 9, 2012 provided a maximum medical recovery date and denied entitlement to a permanent impairment award and surgery for the left shoulder in the future. The worker provided a written objection to this decision within the time limit identified on the decision.

As the worker has met the timeframe for objecting to the decision of January 9, 2012, it is the position of the worker and his representative that in order to pursue the objection to that decision, the worker has to be allowed to proceed with an objection to the content of the decision dated February 14, 2011.

AUTHORITY

Under Section 120(1) of the WSIB Act, a notice of appeal must be filed with the WSIB within 30 days after a decision is made concerning any aspect of a Work Transition Plan or a Labour Market Re-Entry Plan. In any other case, the appeal must be filed within six months. Section 120(1) also states the WSIB has the discretion to extend the 30-day and 6-month time limits. In the absence of specific policy, the WSIB has adopted guidelines for extensions which are outlined in the Appeal Services Division Practice and Procedures Manual which was last updated July 1, 2014.

An Appeals Resolution Officer will rule on a time limit issue within 30 days of receiving submissions from Workplace parties.

Time Limit to Appeal Criteria

When the WSIB issues a decision, the workplace parties (WPP) must be advised in a decision letter of the applicable time limit for objecting, and in order to meet the section 120 statutory requirements for objecting, the WSIB must receive a completed “Intent to Object” form by the time limit date set out in the decision letter. If the parties do not confirm a desire to proceed, no further action will be taken. If the case is brought forward for review after the appeal time limit has expired, the WSIB has the authority to extend the time limit in appropriate cases. Requests for extensions will be considered by Decision-Makers who will notify the WPP in writing of the outcome of the review.

Criteria to be considered for objections beyond the statutory time limit include:

1. Whether there was actual notice of the time limit;
2. Serious health problems (experienced by the objecting party or the party’s immediate family including the need to leave the country due to the ill-health or death of a family member;
3. An organic or non-organic condition that prevents the Objecting Party from understanding the time limit and/or meeting the time limit;
4. Whether there are other issues in the appeal that were appealed within the time limit which are so intertwined that the issues being objected to within the time limit cannot reasonably be addressed without waiving the time limit to appeal the closely-related issue(s) not appealed in time.

All decisions to extend the time limit will be based on the merits and justice of the case.

Merits and Justice of any case are adjudicated according to WSIB Operational Policy Document 11-01-03 which states the following in part:

Every decision made by the WSIB must be based on the merits and justice of the case, which means decision-makers must take into account

• All facts and circumstances relating to the case
• The relevant WSIB policy or policies, and
• The relevant provision or provisions of the WSIB Act

ANALYSIS

1. Time limit extension to appeal the decision dated February 14, 2011

In assessing the facts and circumstances related to this case, I am granting the worker an extension to the time limit to appeal the decision of February 14, 2011 and determine that the worker is able to proceed with his appeal at the Appeal Services Division for the decision of February 14, 2011. I agree with the worker's representative that the worker was under the impression that the WSIB would be obtaining further documentation after that decision was issued for the purpose of revisiting the contents of that decision. Therefore, he did not proceed with a written objection to the denial of the recurrence or the tear as he was awaiting a new decision.

A letter from the CM dated March 20, 2015 indicated there were no memos, letters or forms to indicate the worker's intent to object to the original decision of February 14, 2011. Memorandum #8 dated March 2, 2011 documents a phone call between the worker and a Adjudicator. The top of the memorandum indicates the Adjudicator will do a reconsideration of the decision as well as a referral to a Medical Consultant for the purpose of reconsidering the decision. This memorandum was clear in stating that the Adjudicator had received calls from the worker regarding the February 14, 2011 decision letter and that he was upset with the denial of treatment.

This lengthy memorandum indicates that the worker maintained the position his current condition was directly related to the taser incident and that he would take the next step if necessary which would be an appeal to the decision. The worker stated he had been assessed by a specialist, Dr. ‘O’ and that the specialist had told him his shoulder condition was related to the electrical shock. The worker stated that he did want to pursue surgery but had been doing strengthening exercises which was helping the shoulder. He was, however, concerned about what would happen in the future.

The Adjudicator told the worker that the decision would be revisited when all the reports from the treating practitioners had been obtained. The Adjudicator also indicated that the file would be referred to a WSIB Medical Consultant to determine if the diagnosis of the labral tear was related to the taser incident.

The worker asked the Adjudicator if the November 2010 report from Dr. O was on file. The Adjudicator indicated that report had not yet been received. The worker indicated he would fax the report to the Adjudicator. The Adjudicator confirmed that once the reports were received and the file had been assessed by a WSIB Medical Consultant, the worker would be informed of the results. The memorandum concludes by stating the worker indicated this would be fine.

I have to accept that this important memorandum indicates this worker's intent to object to the decision of February 14, 2011. It would appear that the only reason the worker did not proceed with sending in a written objection was because he was under the impression that the decision of February 14, 2011 was not the final decision since further inquiries were to be made regarding the issues outlined in that decision.

Discussions continued with the worker and decision-makers at the WSIB. Memorandum #15 dated September 6, 2011 indicates that after much discussion, the decision-maker would allow for the worker's outstanding treatment to date based on the Medical Consultant review from May 10, 2011. Memorandum #15 indicates the worker was informed that a permanent impairment was not warranted; however, the issue of entitlement to a permanent impairment was still under review according to memorandum #16 dated November 21, 2011.

Memorandum #16 documents a conversation with the worker and a Manager at the WSIB. The Manager indicated that medical reports still needed to be secured to determine if there was a preexisting condition and the CM would still have to rule on entitlement to a permanent impairment with new medical information. More medical information was therefore required to determine whether or not the worker's ongoing problems were related to a preexisting condition or the accident history.

By that point in time, issues beyond just the recurrence and the denial of the labral tear were being considered. Memorandum #17 dated January 9, 2012 documents the final position of the Case Manager regarding Healthcare Benefits for treatment, entitlement to the labral tear, maximum medical recovery, a permanent impairment and future surgery for the left shoulder. Clearly these issues extend beyond those that had been outlined in the decision of February 14, 2011.

All of these issues were then addressed in the decision from the Case Manager dated January 9, 2012. While this decision continued to deny the recurrence of August 2010 and entitlement to the labral tear, the worker was also informed of the maximum medical recovery date for the injury that had been accepted and he was informed that he would not be granted entitlement to a permanent impairment for the injury that had been accepted.

The decision of February 14, 2011 did not comment on maximum medical recovery or entitlement to a permanent impairment related to the injury sustained February 6, 2006. As the worker did submit a written objection on March 9, 2012 to the decision of January 9, 2012, he has met the time limit to appeal the decision of January 9, 2012. This suggests to me that the worker did in fact intend to object to the content of the decision dated February 14, 2011 but did not do so as he was under the impression that entitlement was still under review and the decision of February 14, 2011 did not actually represent the final position of the CM.

I concur with the worker's representative that there are issues in the decision of January 9, 2012 that are inextricably linked to the denial of issues in the decision letter dated February 14, 2011 and that the decision of January 9, 2012 denies new issues that were not addressed in the February 14, 2011 decision.

Criteria #4 in the “Time Limit to Appeal Criteria” (stated above in the “Authority” Section) gives me the authority to waive the time limit to appeal the issues in the decision of February 14, 2011. The maximum medical recovery date, entitlement to a permanent impairment, and entitlement to further recurrences or surgery outlined in the decision of January 9, 2012 cannot reasonably be addressed without including an appeal regarding entitlement to the labral tear found in 2010. The recurrence that was denied in 2010 was denied in part because the labral tear was not considered compatible with the accident history from February 6, 2006. As all ongoing entitlement is tied into whether or not the worker has entitlement to the labral tear, I am allowing the worker to proceed with his appeal to the decision of February 14, 2011.

CONCLUSION

I conclude the following:

1. I am extending the time limit for this worker to appeal the decision of February 14, 2011 and determine the worker is able to proceed with his appeal to that decision. There are other issues in the worker’s appeal from the decision dated January 9, 2012 that were appealed within the time limit and these issues are so intertwined to the issues in the February 14, 2011 decision that the issues being objected to within the time limit cannot reasonably be addressed without waiving the time limit to appeal the closely-related issue(s) in the February 14, 2011 decision.

The worker's objection is, therefore, granted.

DATED: June 23, 2015

M Elliott Appeals Resolution Officer Appeals Services Division