DECISION NUMBER:

20230109

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

M. RODRIGUES, APPEALS RESOLUTION OFFICER

AUGUST 25, 2023

ISSUE

The worker, through their representative, is objecting to the eligibility adjudicator’s decision of May 16, 2022. That decision determined the legislated six-month time limit to file a Workplace Safety & Insurance Board (WSIB) claim was not met.

BACKGROUND

On April 13, 2022, this custodian submitted a Worker’s Report of Injury/Disease (Form 6), claiming low back, right hip and right hamstring injuries. The dates of injury and reporting were each identified as April 13, 2022, but no details were given about the accident history.

The worker provided the accident details to the WSIB customer service representative (CSR) during their conversation on April 20, 2022. The worker reported sitting on a yoga ball chair in the library on October 4, 2021, when the chair flipped from underneath them and caused them to fall backwards. The worker reported the incident to their supervisor before the end of their shift and went to the hospital. They began losing time from work on October 5, 2021.

On May 5, 2022, the employer completed the Employer’s Report of Injury/Disease (Form 7). They stated on October 4, 2021, the worker plugged a cell phone to charge while sitting on an exercise ball in the school library and then fell. The worker reported the incident to the supervisor immediately and lost time from work the following day. The employer stated the worker did not follow-up and complete an incident report with their supervisor, nor did they receive any WSIB report or clinical information for the hospital visit. They said the worker went on short-term disability (STD) benefits, but none of those forms indicated the incident was work-related. On April 19, 2022, the employer was notified by the WSIB that the worker reported a claim.

In a decision letter of May 16, 2022, the eligibility adjudicator noted the worker reported seeking health care on the date of injury, but the employer did not receive any clinical information or WSIB forms. The worker lost time from October 5, 2021 and benefits were claimed through the STD benefit provider. The eligibility adjudicator stated the worker claimed WSIB benefits after the STD benefits ran out. A claim for

WSIB benefits was submitted via the Form 6 on April 13, 2022. The eligibility adjudicator was unable to allow the claim because the evidence supported the legislated six-month time limit to file a WSIB claim was not met. The decision was reconsidered on August 30, 2022 and May 17, 2023. The eligibility adjudicator noted the worker had filed prior claims and would have been aware of WSIB reporting processes and requirements.

The worker objects to the decision dated May 16, 2022 and the issue was referred to the Appeals Services Division for further consideration.

AUTHORITY

Workplace Safety and Insurance Act (WSIA), 1997 – Section 22(1)

Operational Policy Manual

Published

15-01-03 Workers’ Requirement to Claim and Consent

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find the time limit for filing a claim is to be extended in order to allow the worker to file a claim with the WSIB. I make no findings of fact in regards to initial entitlement for the worker’s claim for low back, right hip and right hamstring injuries; only that the worker met the time limit to claim benefits with the WSIB. The worker’s objection is allowed.

Worker position

In the Intent to Object Form of June 16, 2022, the worker representative provided a 44-page submission consisting of clinical reports, various emails and claim and return to work (RTW) information. In the submission of April 3, 2022, the representative argued the worker reported their injuries within the legislated six-month time limit to file a WSIB claim. The workplace accident occurred on October 4, 2021 and the worker immediately reported it to the supervisor and sought health care. The supervisor was supposed to follow-up with the worker the next day, but did not. On October 12, 2021, the worker contacted the employer to start the paperwork, but received no response.

The representative argued that due to the employer’s late reporting and refusal to accommodate the worker, entitlement to benefits was denied and the worker exhausted their STD benefits. They stated the worker reported the injuries as work-related at the hospital and acknowledged the discrepancies in the dates in the Form 6 and Health Professional’s Report (Form 8). Once the WSIB was notified about the injury in April 2022, the employer scheduled a RTW meeting and the worker returned to work on May 16, 2022. The representative referenced several WSIB policies and sections 21(1), 22(1) and 149 of the WSIA in support of their position. They also opined that initial entitlement should be allowed in this claim.

Employer position

In the submission of August 8, 2023, the employer representative argued the worker did not meet their obligation to file a WSIB claim within the legislated six-month time limit. They acknowledged the worker reported the injury to the employer on October 4, 2021 and the Form 7 was not filed within the required

time frame. They said the worker did not file a Form 6 until six-months after the date of injury, stating policy 15-01-03 (Workers' Requirement to Claim and Consent) indicates a worker is expected to complete a Form 6 in order to be considered for WSIB benefits.

The representative noted the worker had three prior claims and would have been aware of the reporting process. They referenced the reconsideration letter of May 17, 2023 in support of their argument. They noted the WSIB typically contacts the worker to complete a Form 6 following the receipt of the Form 7 or Form 8, or if requested by the worker themselves. They note a Form 7 was only completed after the Form 6 was received in this claim.

The representative also spoke to the issue of initial entitlement, stating the worker removed themselves from the course of employment when the injury occurred. They argued the evidence did not support that a personal work-related injury occurred in the course of employment. They agreed with the outcome of the May 16, 2022 decision and also referenced sections 22(1) and (3) and 22.1(1) and (2) in support of their position.

Findings

Before I state my findings, it is important to note I make no findings of fact on whether the worker’s claim that their low back, right hip and right hamstring injuries are work-related. The eligibility adjudicator did not rule on initial entitlement in the decision of May 16, 2022, or the subsequent reconsideration decisions. Their decision explicitly dealt with the issue of the legislated six-month time limit to file a WSIB claim. As such, my decision will strictly focus on whether the legislated six-month time limit to file a WSIB claim is met.

In order to do so, I turned to section 22(1) of the WSIA and policy 15-01-03 (Workers' Requirement to Claim and Consent). Section 22(1) of the WSIA 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.

Policy 15-01-03 (Workers' Requirement to Claim and Consent) outlines how workers can meet the requirements for claiming benefits, and to identify when the WSIB may extend the time to claim and consent. 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. However, in this claim, the worker is not claiming a gradual onset of their injuries, but a specific incident instead, given they fell off the yoga ball chair. As such, a claim must be filed within six-months of an injury.

I first need to determine the date the six-month deadline began from the date the worker reported the incident as work-related. In reviewing the available evidence in the case record, I find the following facts are not in dispute:

• The date of injury is October 4, 2021.

• Both workplace parties agree the worker reported an incident to the employer on October 4, 2021.

• The Form 6 was submitted to the WSIB on April 13, 2022, where the dates of injury and reporting were each identified as April 13, 2022.

• A claim registration entitlement pending letter was sent to both workplace parties on April 19, 2022.

• The worker provided a statement about the workplace accident to the CSR on April 20, 2022.

• Medical information was requested from the hospital on April 20, 2022.

• A late filing penalty was levied on the employer on April 25, 2022 for $250.00 due to late reporting.

• On May 5, 2022, the employer completed the Form 7 and it was received on file on May 11, 2022.

Noting the above information, I find the available evidence supports that October 4, 2021 is the date the worker reported their low back, right hip and right hamstring injuries as being work-related. This is supported by the fact that both workplace parties agree the worker reported the incident to the employer on October 4, 2021, in addition to the accident/illness dates and details in the Form 7.

I find the emergency room (ER) record of October 4, 2021 supports the worker went to the hospital following the workplace accident. The ER doctor noted the worker fell, injured their right proximal tibia and had a hematoma. They had normal dorsal pedal pulse and movement of the toes, along with a knee effusion.

I find the available clinical evidence supports that October 4, 2021 was also date the worker reported their injuries as work-related. The ER report goes onto state the worker fell going up the stairs the day prior and did not hit their head. The worker reported going to work today and had another fall, injuring the same side. They were unable to weight bear. The doctor noted the worker was in obvious distress. They were placed in a wheelchair for their own comfort and safety.

Given the worker reported their injuries as work-related on October 4, 2021, I find this is the date from which the time limit would run under policy 15-01-03 (Workers' Requirement to Claim and Consent). Noting the six-month deadline began from October 4, 2021, which is the date of injury and the date the worker reported the incident as work-related to the employer and ER doctor, I need to determine whether they filed a claim within six-months of their injuries.

The employer representative referenced the “accident not reported by employer” section in policy 15-01- 03 (Workers' Requirement to Claim and Consent). They argued that while the worker did not file a claim by the six-month deadline and the employer did not report the injury, Stakeholder Compliance Services confirmed there was no evidence to support the employer tried to suppress the claim or created a coercive environment. However, the fact remains that in this claim the worker reported the incident to the employer on the date of injury.

Of note, the above section in policy 15-01-03 (Workers' Requirement to Claim and Consent) also states that independent of the worker's requirements to claim and consent, employer’s must report injuries to the WSIB. In this claim, the employer, for reasons which are unclear, decided not to submit a Form 7 to the WSIB until May 11, 2022. As such, I reviewed the information in the case record to see if exceptional circumstances existed at the deadline noting the Form 6 was submitted to the WSIB on April 13, 2022, which was nine-days after the legislated six-month time limit expired.

Policy 15-01-03 (Workers' Requirement to Claim and Consent) speaks to when 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 a worker fails to file a claim by the respective deadline, the WSIB allows the claim to be filed at a later date if the worker can show that exceptional circumstances existed at the deadline. This can include:

• compelling personal reasons, such as serious health problems or injuries (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

• the worker's ability to understand the time limit requirements and consequences of not meeting them (e.g., was the worker made aware at the workplace of the requirement to claim and consent; were language difficulties a factor?), and

• whether the worker reported the accident to the employer, health care professional, or co- workers.

Given the date of injury was October 4, 2021 and I found this was the start of the six-month deadline, this means the six-month deadline date was April 4, 2022. Of note, the worker filed a claim with the WSIB on April 13, 2022. While the worker did not file a WSIB claim until nine-days after the respective six-month deadline, I find exceptional circumstances existed at the deadline. I find the time limit for filing a claim should be extended in order to allow the worker to file a claim with the WSIB.

I acknowledge the worker understood the role the WSIB played in workplace injuries and was aware of the reporting timelines, given they had three prior WSIB claims. However, I note the worker’s last claim was in 2015, more than six-years before the October 4, 2021 date of injury.

In addition, the fact remains that neither workplace party disputes the worker reported their injuries to the employer on October 4, 2021. This is supported by the evidence in the case record and the claim details in the Form 7. Furthermore, I find the worker sought health care on the date of injury as well and reported their injuries as work-related to the ER doctor. This is documented in the ER record of October 4, 2021.

While the worker did not file a WSIB claim until after their STD benefits were exhausted, I find it significant their supervisor contacted another supervisor, via email on October 6, 2021. At that time, the supervisor asked if the Form 7 could be completed. I note this was not done.

I find it compelling the worker emailed one of the supervisors on October 12, 2021, stating they did not hear back from their supervisor the week before about an incident report. The worker sent their immediate supervisor an email as a reminder and saw they were out-of-the-office until the following week. The worker asked what they should do in that situation. The supervisor responded, stating the worker’s immediate supervisor reached out to them, but received no response.

The supervisor also said the reports are filed within 72-hours and they would put something in, but could not do so until they got the floaters done. The supervisor said they would contact the worker later that day. The worker responded and said they did not receive any phone calls, emails, or voicemails from their immediate supervisor. The worker outlined their availability for the remainder of the day. However, I note a Form 7 was not completed at that time, but on May 5, 2022 instead and then submitted to the WSIB on May 11, 2022.

I acknowledge the Form 6 was filed nine-days after the six-month time limit and the worker failed to file the claim by the respective deadline of April 4, 2022. However, I am satisfied there were exceptional circumstances that existed in this claim at the deadline. I find the worker reported the incident to their supervisor and ER doctor on the date of injury of October 4, 2021. The emails of October 6 and 12, 2021 support the worker contacted the employer about the incident and filing an incident report.

Thus, for the reasons noted above and policy 15-01-03 (Workers' Requirement to Claim and Consent), I find the time limit for filing a claim is to be extended in order to allow the worker to file a claim with the WSIB. I make no findings of fact in regards to initial entitlement for the worker’s claim for low back, right hip and right hamstring injuries; only that the worker met the time limit to claim benefits with the WSIB.

CONCLUSION

The worker’s time limit to file a claim with the WSIB is extended.

The operating area should make the necessary inquiries in order to make a decision regarding initial entitlement in this claim.

The worker’s objection is allowed.

DATED August 25, 2023

Ms. M. Rodrigues

Appeals Resolution Officer Appeals Services Division