APPEALS RESOLUTION OFFICER DECISION
Decision number:
20210033
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
employer REPRESENTATIVE)
HEARING:
HEARING IN WRITING
HEARD by:
l. diaz, appeals resolution officer
October 27, 2021
ISSUE
The worker objects to the Eligibility Adjudicator’s February 20, 2019 decision and July 15, 2019 reconsideration which concluded the worker had not met their time limits to claim for benefits for a lower back injury.
BACKGROUND
On October 29, 2018, the worker submitted a Worker’s Report of Injury/Disease (Form 6), claiming for a lower back injury. The worker indicated in this report that their lower back had been progressively getting worse over the past ten years. The worker listed the date of injury as January 1, 2016, and advised they had ceased working and reported the injury to their employer on August 4, 2017.
The employer confirmed in a January 30, 2019 Employer’s Report of Injury/Disease (Form 7) that they first learned of the worker’s claim for work-related disablement injury on January 24, 2019, and that the worker’s back condition was not as a result of any injury which occurred at work. The worker was hired as an Apprentice Electrician by the employer on February 23, 2015.
The file information confirms the worker underwent posterior decompression at L4-5, L5-S1 and posterior instrumented L5-S1 fusion on November 1, 2018.
Eligibility Adjudicator’s decision
Further to the February 20, 2019 decision and the July 15, 2019 reconsideration, the Eligibility Adjudicator determined they were unable to review the worker’s claim for benefits as the worker had not reported their claim within the six-month time period. In addition, it was noted the worker had filed previous claims with the WSIB and would have been familiar with their reporting obligations and requirement to claim for benefits.
Worker’s position
The worker representative submitted that the decision to deny the worker to claim for benefits was incorrect, that the worker did file a claim for benefits within six months when their physician first attributed the worker’s injury to their occupational duties. The worker representative pointed out that the nature of the worker’s lower back injury was a gradual disablement onset and that the requirement for reporting this type of injury differs from that of a chance event type of injury.
Employer’s position
The employer representative submitted the worker had a long history of claims with the WSIB. However, despite the worker’s prior claims, the employer representative indicated the worker chose not to pursue a claim through the WSIB and elected to secure long term disability benefits and employment insurance benefits instead. The employer representative also referenced the Workplace Safety and Insurance Appeals Tribunal (WSIAT) medical discussion paper entitled ‘Low Back Pain’. The employer representative indicated that there were no ‘exceptional circumstances’ provided by the worker which would warrant an extension for filing a claim with the WSIB.
AUTHORITY
- Operational Policy Manual Published
15-01-03, Workers’ Requirement to Claim and Consent February 15, 2013
- Workplace Safety and Insurance Act, the “Act”
Section 22
ANALYSIS
I find the worker has met their time limits to claim for benefits with the WSIB. In arriving at this decision, I had regard for the relevant file information, the arguments presented, and the applicable legislation and policies.
Policy 15-01-03, Workers' Requirement to Claim and Consent, records the following:
As soon as possible after an accident, workers must file a claim for benefits. They must also consent to disclose their functional abilities information, which is provided by the treating health professional.
A claim must be filed within six months of an accident or, in the case of an occupational disease, within six months of the worker learning of the disease. The WSIB may extend the six-month deadline, or waive the dual requirement altogether if in the WSIB's opinion it is just to do so.
If the worker does not file the claim for benefits, or consent to the disclosure of functional abilities information within the six-month deadline, the WSIB does not provide benefits unless, in its opinion, it is just to do so.
The requirement to claim and consent is also similarly documented in Section 22 of the Act.
The above policy specifically records the following requirement with respect to disablement claims:
Disablements
In disablement claims (conditions that emerge gradually over time), the six-month deadline begins from the date the worker reports the disablement as work-related. This can be reported to the employer, health professional, or the WSIB.
The file information, including the file memos, the medical reports submitted, and the Form 6, all confirm the worker is claiming that their lower back injury occurred gradually over time. This is confirmed on the worker’s Form 6 which records “Lower back that has been progressingly [sic] getting worst over 10 years. … It is a gradual injury and not a singular incident”.
As is noted in the above policy, in disablement claims, the six-month deadline begins from the date the worker reports the disablement as work-related to the employer, the health professional, or the WSIB.
The employer confirmed in their Form 7 that the worker did not report a work-related injury to them.
I have also carefully reviewed the numerous medical reports submitted to file from 2016 to the present time and I was unable to find any reference to the worker reporting to a physician that their lower back condition was related to their work duties until the Health Professional’s Report of December 4, 2018 was submitted to file. Dr. Abrahim subsequently indicated in a March 13, 2019 report that the worker has had chronic back pain secondary to their job related to wear and tear.
The worker first reported a lower back injury to the WSIB on October 29, 2018 with the submission of their Form 6.
As a result, according to the above policy the six-month deadline to report a work-related disablement (emphasis added) was therefore the date the worker completed their Form 6, i.e. October 29, 2018.
Although the employer representative submitted that the worker ought to have known to claim for benefits with the WSIB at a much earlier date given the worker’s past claims, I note that the nature of this particular claim, i.e. gradual onset disablement, was different from past claims which were considered ‘chance events’. Furthermore, the worker’s last claim with the WSIB was in the distant past, i.e. almost 20 years earlier. Nonetheless, the six-month deadline to claim and consent for a ‘chance event’, i.e. an identifiable unintended event, differs from that of ‘disablement’, i.e. a condition that emerges gradually over time, as is outlined in the above policy.
Having regard for the file evidence, I therefore accept that the worker reported their injury to the WSIB within the requisite timeframe specified in Policy and the Act. As a result, I conclude the worker has met their time limits to claim for benefits with the WSIB.
I make no findings with respect to the merits of the worker’s claim for a lower back injury, only that the worker has met the time limits to claim for benefits with the WSIB.
CONCLUSION
I conclude the worker has met the time limits to claim for benefits for a lower back injury.
The worker’s objection is therefore allowed.
DATED October 27, 2021
L. Diaz
Appeals Resolution Officer
Appeals Services Division