WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision Number: 20150063
Decision Date: May 28, 2015
Objecting Party: Worker
Represented by: Worker Representative
Respondent: Employer Represented by: Self-Represented
Hearing: Hearing in Writing
Heard by: H. Mohamed, Appeals Resolution Officer
ISSUES
The worker representative on behalf of the worker is requesting an extension to the time limit to object to the decisions dated April 7, 2011 and September 13, 2011.
BACKGROUND
On August 25, 2004, this then 21 year old development service worker injured her left shoulder at work and was granted entitlement to left shoulder supraspinatus tendinosis. The worker received a 12 per cent non-economic loss (NEL) award for her injury in June 2007.
The worker she was referred for Work Transition (WT) Services (formerly known as LMR services) in 2008. Due to numerous difficulties in completing her training program, various extensions were required and the vocational goal was changed a few times. The last change occurred in November 2009 when the Suitable Occupation (SO) of General Office Clerks was selected. The worker was unable to successfully complete the plan due to poor attendance which she claimed was due to her pain and medication. The worker’s benefits were adjusted in March 2010 based on entry level wages in the selected SO at 40 hours a week. This was outlined in a decision letter dated March 15, 2010. The worker’s previous representative objected to this decision and requested additional retraining as noted in the letter dated April 7, 2010.
In November 2010 the worker requested entitlement to a NEL redetermination as well as psychotraumatic disability and chronic pain disorder (CPD). Entitlement to CPD was granted as per the letter dated February 18, 2011.
In a decision dated April 7, 2011 the operating conducted the worker’s final LOE review and confirmed the decision to pay partial LOE benefits to age 65 based on SO wages of $12.33 per hour at 40 hours a week. This decision also stated that once the worker’s CPD NEL was rated, this decision would be revisited. The letter provided a time limit of October 7, 2011 to object to this decision.
On June 10, 2011, the worker’s previous representative requested additional retraining services given that entitlement had been expanded to include CPD.
In August 2011 the worker’s organic NEL award was converted to a 20% award for CPD. Following the NEL increase, the Case Manager (CM) confirmed that the previous decision of April 7, 2011 to pay partial benefits to age 65 remained in order. This was communicated to the worker and her representative in a decision dated September 13, 2011 and a time limit to object was also provided. This decision was not objected to within the 6 month time limit outlined in the letter.
In September 2014, the worker obtained a new representative who requested that partial benefits be granted to age 65 based on the worker’s ability to work only 24 hours per week. The CM denied this request, as per the letter dated February 4, 2015, on the basis that the issue with respect to the worker’s ability to work was addressed in the letters dated April 7 and September 13, 2011 and these decisions were not objected to within the specified time limits.
The issue of the time limit extension is now before me.
AUTHORITY
Section 120 - Workplace Safety and Insurance Act (WSIA)
The Workplace Safety and Insurance Board Appeal Division Practice and Procedures Manual
ASSESSMENT OF THE EVIDENCE
Sections 120 of the Workplace Safety and Insurance Act (the “WSIA”) read as follows:
Objection to Board decision
- (1) A worker, survivor employer, parent or other person acting in the role of a parent under subsection 48 (20) or beneficiary designated by the worker under subsection 45(9) who objects to a decision of the Board shall file a notice of objection with the Board,
(a) in the case of a decision concerning return to work or a labour market re-entry plan, within 30 days after the decision is made or within such longer period as the Board may permit; and
(b) in any other case, within six months after the decision is made or within such longer period as the Board may permit.
Notice of objection
(2) The notice of objection must be in writing and must indicate why the decision is incorrect or why it should be changed.
I have reviewed the representative’s correspondence of April 30, 2015. The representative argues that an extension to appeal the April 7, 2011 should be granted on the basis that the worker was unsophisticated with WSIB matters and in particular the time limit criteria. He also articulates that due to the following reasons, the time limit extension should be granted:
The worker and her father met with WSIB staff on March 15, 2011 as she disapproved of the final 72 month decision. There was discussion that day regarding the appeals process and the promise of handling the worker’s appeal on a priority if the worker chose to appeal. The representative argues that this supports that the worker verbally met the time limit and intended to appeal.
The June 10, 2011 letter from the representative forms the intent to appeal the prior decision.
The fact that the worker retained a representative supports that she was intending to appeal this decision. The worker shouldn’t be penalised because of the representative’s shortcomings in clearly specifying the intent of the June 10, 2011 letter and she was expecting the representative to act diligently and competently on her behalf.
It is reasonable for the worker to have presumed that the time limit to object to the April decision was met by the June 10, 2011 letter
The worker suffers from CPD and due to the amount of medications she takes, which is noted in the NEL assessment narrative report, it may have caused problems for her to understand the significance of the appeal process and requirements
After carefully weighing the evidence, I am not persuaded that the worker has met the time limit to object to either the April 7, 2011 or September 13, 2011 decisions.
In reviewing the file it is evident that the worker was struggling with attendance during the WT plan and when her benefits were adjusted in March 2010, her representative objected to this and requested that the worker be provided additional training. In memorandum 141 dated June 9, 2010 the worker asked the CM to allow her to go back for further retraining services as an office assistant. She also advised that she had found employment in a shoe shop but had to stop as it was unsuitable.
In Memorandum 144 dated July 22, 2010 the CM spoke with the representative and advised that further training would not be offered and the representative advised that she would discuss this with the worker and she may file an objection.
The worker subsequently requested entitlement to CPD and psychotraumatic disability in a detailed letter she wrote on November 1, 2010. The worker and her father met with the CM on February 15, 2011 and during this meeting she confirmed that she was requesting entitlement to full benefits, further retraining, medication coverage a NEL redetermination and entitlement to CPD. The CM advised that she would review these issues and subsequently granted entitlement to CPD.
The worker met with the CM, Manager and Assistant Director on March 15, 2011 regarding issues with further retraining and handling of her file. The meeting was arranged because the worker had contacted the president’s office regarding her dissatisfaction with the way her claim was being managed. The worker attended with her father and a family friend. The meeting had a lot to do with the upcoming 72 month final review and the outstanding notice of assessments (NOA) that were required to conduct the review. With regards to retraining, the worker wanted further LMR services and felt that the WSIB had not considered all of her disabilities. The memorandum, written by the Assistant Director, noted the following:
“I promised to request the appeal be handled as a priority if they chose to appeal…The CM agreed that as soon as the NEL was assessed for CPD she would review the rating and report and determine if the LOE benefits should be reviewed. If it appeared that the NEL changed (the worker’s) ability to work full time doing clerical work further services would be considered.”
The memorandum also noted that the appeals process and tribunals role was explained ‘when asked’.
The worker subsequently submitted her NOA and the final LOE review took place on April 7, 2011 and the worker was advised of this decision. This decision was made within a month of the meeting at WSIB office where the whole process was explained to her in quite some detail. The decision clearly stated the time limit to appeal and also explained that once the CPD NEL was rated a further review would be conducted.
The worker had her NEL assessment on May 13, 2011 and subsequent memorandums indicate that she called frequently to ask about the status of her NEL award (memorandum 178 and 179).
In a letter dated June 10, 2011, the worker’s previous representative requested that a new LMR plan be considered noting the recent entitlement to CPD. On July 12, 2011 the CM wrote to the representative and copied the worker that the worker was not entitled to a new training program at this time. However the file would be reconsidered once the CPD NEL is rated. It is noted that the June letter from the representative did not indicate an intention to appeal any prior WSIB decision.
On August 31, 2011, the worker advised that she had started a part-time job with a pet food store and this is documented in memorandum 180.
The worker’s NEL increased to 20 percent and this resulted in an additional cheque to the worker of $6038 plus interest. This was outlined in the NEL decision letter dated August 11, 2011. Memorandum 181 documents that the worker’s address was incorrectly changed and therefore her NEL cheque and NEL decision letter would be re-sent to her. The worker advised she would be sending in her paystubs.
Following the NEL decision, the CM wrote to the worker and her representative on September 13, 2011 that the increase in the NEL award did not change the previous April 7, 2011 decision and that the worker was not entitled to any further training. This decision was not objected to by the worker and there was no contact from the worker regarding this decision.
I note that the worker called the CM on February 24, 2012 with regards to issuing a T5 and she spoke to the Nurse Consultant on April 19, 2012 regarding opioid medications. The worker called periodically for the next few years but none of those calls were with regards to either of these two decisions.
Contrary to the representative’s arguments, I do not believe the worker is unsophisticated in WSIB matters. The worker is college educated and English is her first language. I note that she wrote a detailed letter on November 1, 2010 requesting entitlement to LOE benefits, CPD and psychotraumatic disability and referenced WSIB policy and articulated her position quite well. She did this of her own accord despite being represented at the time. Clearly she is capable of doing her own research and appears to be well aware of her rights. The worker is also not someone who shies away from escalating issues. She had no problems contacting the Fair Practice Commission (memorandum 151) and also escalated calls to the president’s office when she was unsatisfied with the direction her claim was going in. In my view, the worker presents as someone who was quite capable of understating the importance of the time limit.
With regards to that meeting on March 15, 2011, which took place before both decision letters were written, I disagree that this meeting was a verbal intent to appeal. My review of this well documented memorandum is that the worker wanted answers to her concerns with respect to retraining and the upcoming final review. It is important to note that the worker’s father noted in that meeting that he was under the impression that the meeting was to get the worker back to retraining. Clearly the intention of the meeting was not to “bookmark” any future appeal but rather to understand what the next steps were in the claim. The worker was provided a detailed explanation of the appeal process in the event that she chose to object once these decisions were rendered. This does not mean that she had any “intention” of appealing but rather that she wanted to know what all her options were.
With regards to the June 10, 2011 letter from the previous representative, I do not consider this letter to constitute intent to object to the April 7, 2011 lock-in decision. The letter is very clear in that it is simply requesting a decision on whether the worker would be entitled to a new training program now that CPD had been granted.
The representative stated that the very fact the worker hired a representative in the first place supports her intention to appeal that decision. Again I disagree. Many workers and employers hire representatives to help them navigate through the claims process as well as provide them with an opinion on whether their case has any merit and whether it is worthwhile to pursue particular areas of entitlement or benefits. It can be argued that perhaps her representative advised her against appealing or perhaps the worker chose not pursue the appeal because she had been granted a NEL award and had a part time job she was satisfied.
The representative also noted that the worker was suffering from CPD and taking significant medications and this may have impacted her ability to fully appreciate the importance of the statutory time limit. My review of the evidence doesn’t support this notion. As indicated, the worker was able to articulate her thoughts quite well in her November 2010 letter and also secured employment around the time these decisions were made. She had no issues escalating her concerns when she felt her claim was not being administered properly. There is no evidence that her medical condition or medications clouded her ability to respond to the aforestated letters.
There also appears a significant lack of diligence on the part of the worker to appeal both decisions. There was no contact from the worker in the year following both decisions other than her calls to the Nurse Consultant on occasion for medication purposes. In my view three years is a significant period of time for me to overlook.
Although there is no formal operational policy on dealing with time limit extensions, the Appeal Services Division Practice and Procedures manual provides the following criteria that should be considered for objections beyond the statutory time limit:
Whether there was actual notice of the time limit. This acknowledges that as of January 1, 1998, decisions specifically refer to the time limits but prior to that date, they do not;
Serious health problems (experienced by the party or the party’s immediate family) or the party leaving the province/country due to the ill health or death of a family member;
An organic or non-organic condition that prevents the worker from understanding the time limit and/or meeting the time limit;
Whether there are other issues in the appeal that were appealed within the time limit which are so intertwined that the issue being objected to within the time limit cannot reasonably be addressed without waiving the time limit to appeal on the closely related issue.
None of the criteria above have been met in this case. Accordingly, I find that the worker has not met the time limit to appeal the April 7, 2011 and September 13, 2011 decisions.
CONCLUSION
Based on the foregoing reasons, I conclude that the time limit to object to the decisions dated April 7, 2011 and September 13, 2011 has not been met.
The worker’s objection is denied.
DATED: May 28, 2015
Mr. H. Mohamed Appeals Resolution Officer Appeals Services Division