Worker v. Employer, 2023 CanLII 68381

DECISION NUMBER:

20230077

OBJECTING PARTY:

Worker

REPRESENTED by:

RESPONDENT:

Employer

REPRESENTED by:

HEARING TYPE:

HEARD by:

Stephanie Waters, Appeals Resolution Officer

DATED:

JUNE 16, 2023

ISSUE

The worker objects to the Case Manager’s (CM’s) decisions dated September 2, 2022 and May 5, 2023, which granted a time limit extension for the employer to object to the initial entitlement decision dated July 12, 2016.

BACKGROUND

In April 2016, the worker submitted a Worker’s Report of Injury/Disease (Form 6) claiming the development of posttraumatic stress disorder (PTSD) due to their work duties as a primary care paramedic. The worker stopped working as of December 17, 2014 and resigned on October 26, 2015. The worker participated in an assessment with the Psychological Trauma Program at the X Health Centre on July 4, 2016 and received the diagnosis of PTSD.

In a letter of July 12, 2016, the CM determined the worker’s PTSD arose out of and in the course of their employment by presumption and granted initial entitlement to healthcare benefits. The CM added that they would rule on entitlement to loss of earnings (LOE) benefits once they received additional medical information. The CM mailed this letter to the worker, worker’s representative, and employer. Page two of the letter stated that if any party wished to object to the decision, they must do so, in writing, by January 12, 2017. The cover letter mailed to the employer provided the same appeal deadline. The employer did not submit an Intent to Object (ITO) form for this decision within the time limit.

On July 21, 2017, the CM wrote a letter granting full LOE benefits from December 17, 2014 to June 10, 2015 as well as from June 21, 2017 onward. Within the same letter, the CM denied LOE benefits for the period of June 11, 2015 to June 20, 2017. The CM mailed the letter to the worker, worker’s representative, and employer. Page two of the letter indicated that a party would need to submit their objection to this decision in writing by January 27, 2018 if they wished to do so. The employer met the time limit to object to this decision with an ITO form dated August 11, 2017.

The CM wrote another letter on February 13, 2020, stating available information supported the worker’s diagnoses of PTSD and moderate depressive disorder (MDD) were directly attributable to work. The CM determined the worker reached maximum medical recovery (MMR) for these conditions with a permanent impairment. The CM mailed this letter to the worker and employer. Page one of the letter listed the time limit to object to the decision as August 13, 2020 if either party wished to do so. Following this decision, the worker received a 20% Non-Economic Loss benefit for their permanent psychological impairment on April 14, 2020.

The employer submitted an ITO form to object to the February 2020 decision on October 22, 2020. In a memo dated August 30, 2022, the CM documented that the WSIB temporarily suspended certain legislated time limits during the COVID-19 pandemic from March 16, 2020 to September 14, 2020. As a result, the CM accepted that the employer’s October 2020 ITO form met the time limit to appeal the February 2020 decision. The employer acquired representation and submitted a Direction of Authorization form dated March 13, 2022.

In a letter of August 29, 2022, the CM determined it was unlikely the worker could return to gainful employment to mitigate their wage loss due to their work-related psychological impairment. The CM granted full LOE benefits to age 65 as a result. The CM mailed a copy of the letter to the worker, worker’s representative, employer, and employer’s representative. The first page of this letter stated that if any party wished to object to the decision, they must do so, in writing, by February 27, 2023. The employer objected to this decision with an ITO form dated September 19, 2022.

The employer’s representative submitted an Appeal Readiness Form (ARF) on July 29, 2022, pursuing an appeal of the July 12, 2016, July 21, 2017, and February 13, 2020 decisions. They submitted another ARF on November 22, 2022 to pursue an appeal of the August 29, 2022 decision.

On September 2, 2022, the CM wrote a letter to the employer, the worker, and their respective representatives. The CM accepted a letter from the employer dated November 17, 2016 as a written objection to the July 12, 2016 decision, and determined the employer met the time limit for this issue.

The worker acquired a new representative and provided a Direction of Authorization form dated April 17, 2023. The worker’s new representative then provided a letter on May 2, 2023, objecting to the time limit extension allowance. In a letter of May 5, 2023, the CM confirmed their decision to grant a time limit extension for the July 12, 2016 decision and referred the worker’s objection to the Appeals Services Division (ASD) for review.

AUTHORITY

Section 120 of the Workplace Safety and Insurance Act, 1997.

WSIB’s Appeals Services Division Practices and Procedures, dated July 9, 2020, lists the criteria used to consider a time-limit extension request:

For decisions made on or after July 1, 2016:

Whether you received actual notice of the time limit.
You have experienced serious health problems.
Someone in your immediate family has experienced serious health problems.
You had to leave the province or country due to an illness or death in your family.
You have a condition that prevents you from understanding or meeting the time limit.
Information in your claim file clearly shows you objected to a particular issue, even though you did not submit an Intent to Object Form or an objection letter. To show this, we look for mail or memos about a telephone discussion on the particular issue.
You have objected to other closely related issues within the time limit, and it would be impossible to address all of the issues separately.

For decisions made between February 1, 2013 and June 30, 2016, we apply the same criteria as above, except for number six.

For decisions made between January 1, 2008 and January 31, 2013 we will apply all of the criteria above except for number six. For this period, we may also consider the significance of the issue in dispute.

In this case, the initial adverse decision that denied an extension of the time limit was made on September 2, 2022. As such, I will consider the criteria that apply to decisions made on or after July 1, 2016 as stated above.

ANALYSIS

I have carefully considered all of the available information, legislation and relevant extension criteria in reaching this decision. I find a time limit extension for the July 12, 2016 decision is in order.

The worker’s appeal is denied.

Worker’s Position

In correspondence dated June 5, 2023, the worker’s representative provided the following arguments to support their position that the time limit extension should be rescinded:

The November 17, 2016 letter from the employer raises concerns around LOE and accommodation responsibilities of the employer. Although the employer requested clarification as to whether additional medical records were obtained in the adjudication of the claim, the letter does not state the employer objected to the initial allowance of the claim for PTSD. As such, it does not satisfy the sixth criterion.
The employer had ample opportunity to file an intent to object to the July 2016 decision, and were clearly aware of the necessity to do so since they followed that process for subsequent decisions, but did not raise any intent to appeal the initial allowance of PTSD until the employer representative’s August 16, 2022 correspondence.
The seventh criterion is not satisfied because the issue of initial entitlement is not so closely related that it would be impossible to adjudicate the issues of LOE, MMR/permanent impairment, and the final review separately. To support this argument, the representative included a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision regarding a worker’s objection to the allowance of a time limit extension for an employer.

Employer’s Position

In correspondence dated June 5, 2023, the employer’s representative provided the following arguments to support their position that the time limit extension should be upheld:

The worker is barred from objecting to the September 2, 2022 time limit extension decision even though the letter did not include an objection time limit. The representative argued the worker was represented by experienced counsel who ought to have been familiar with time limits, but an objection was not filed until eight months after the decision.
The employer and employer’s representative have maintained objections and attempted to further the employer’s objectives over the life of the claim, rather than only at the six-year mark with the filing of their ARF in July 2022. Despite the employer’s efforts to have the WSIB investigate the worker’s pre-existing medical records and conditions, the issues were not resolved in a timely or satisfactory manner, resulting in delays of their objections.
The employer satisfied the sixth criterion by expressing an intent to object to the initial entitlement decision within the legislated timeline in multiple documents dated May 7, 2016, May 12, 2016, November 17, 2016, and July 17, 2017. The CM also documented the employer’s concerns in a memo dated May 19, 2016.
The employer satisfied the seventh criterion because they are pursuing an appeal of other issues integrally related to initial entitlement. The representative argued the employer’s objections are rooted in the same concerns regarding a pre-existing psychological condition.
Allowing the time limit extension and amalgamating the employer’s appeals into one hearing would be in line with the WSIAT’s holistic approach regarding time extensions, and would be a proper use of the WSIB’s resources while allowing all involved parties appropriate access to justice.

Assessment of Entitlement

The worker is entitled to object to the September 2, 2022 time limit extension decision.

Within their submissions, the employer’s representative argued that the worker is barred from objecting to the time limit extension decision even though the September 2, 2022 decision letter did not state the objection time limit in it. I will address this position since it is directly relevant to the appeal before me and I am mindful of the active appeal pending in the ASD. The allowance or denial of a time limit extension is an appealable decision, demonstrated by the appeal presently before me. I find information on file does not support the employer representative’s position, and the worker has a right to object to the September 2022 decision.

It appears the CM already approved a time limit extension for this issue. The CM provided a reconsideration decision on May 5, 2023, in response to the worker representative’s objection letter of May 2, 2023. Although the employer’s representative raised concerns that the worker’s representative did not file this objection letter until eight months after the September 2022 decision, the CM provided a new objection time limit and stated they would refer the worker’s objection to the ASD for further action.

Additionally, the first criterion to consider when reviewing a time limit extension is whether the objecting party received actual notice of the time limit. The September 2022 letter did not list an appeal deadline and thus did not provide actual notice of the time limit to object to this decision. The worker having a representative who ought to be familiar with time limits, as argued by the employer’s representative, does not change the fact that the worker and their representative did not receive actual notice of the time limit for this decision, satisfying the first criterion for granting a time limit extension.

For these reasons, I find the worker has a right to object to the September 2022 decision and I will now review both parties’ positions regarding the approved time limit extension for the July 12, 2016 decision.

A time limit extension for the July 12, 2016 decision is in order.

It is the worker representative’s position that the time limit extension for this decision should be rescinded. It is the employer representative’s position that the approved time limit extension should be upheld. Information on file supports the employer representative’s position. I find information on file supports that a time limit extension for the July 2016 decision is in order because the sixth criterion is satisfied.

The worker’s representative argued the November 17, 2016 letter from the employer does not satisfy the sixth criterion, and the employer did not indicate an intent to appeal the July 2016 decision until their August 16, 2022 correspondence. By comparison, the employer’s representative argued the November 2016 letter and other documents on file satisfy the sixth criterion and they maintained objections over the life of the claim. I agree with the employer’s representative that the sixth criterion is satisfied. This criterion indicates that a time limit extension may be granted when information in the claim file clearly shows a party objected to a particular issue, even if they did not submit an ITO form or objection letter. The Practices and Procedures document directs a decision-maker to consider mail or memos about a telephone discussion regarding the particular issue when reviewing this criterion.

I placed significant weight on a memo and letter dated November 17, 2016 since these occurred after the entitlement decision but before the six-month time limit expired, though I considered all documents on file when making my decision. For the reasons that follow, I find claim documents show the employer demonstrated concerns with, and clearly objected to the initial allowance of entitlement for PTSD in the claim within the November 2016 memo and letter, and more broadly from May 2016 until July 2017.

The worker’s representative argued that although the employer requested clarification about whether the WSIB obtained additional medical records within the November 2016 letter, the employer did not state their objection to the initial allowance of the claim and only raised concerns about LOE and accommodation responsibilities. I acknowledge the employer argued they should not be accountable for not offering suitable work, and their reasons for this position, within this letter. With that said, I find the employer’s statements within this letter clearly show they objected to the allowance of initial entitlement even though they did not plainly state “we object”.

The employer provided their November 2016 letter after reviewing the July 2016 decision. The employer asked for clarification about the medical records used for the adjudication of the claim and restated their concerns that the worker sought treatment for multiple psychological issues. This repeats their position provided in the May 12, 2016 submission that the worker had significant pre- and/or co-existing conditions impacting their PTSD condition. The employer stated an additional concern that the worker performed their full duties and hours since 2012 with no complaint or reported workplace injury.

In tandem with this letter, I find the employer indicated their objection to the allowance of entitlement when speaking to the CM on November 17, 2016. The employer clearly stated their position that the worker did not claim their psychological condition as work-related. To support this, the employer also highlighted that their third-party sick leave adjudicator did not report that the medical information indicated the worker’s condition was work-related.

Within their July 17, 2017 letter, the employer more directly demonstrated their objection to the initial allowance of the claim by stating they challenged the work-relatedness of the worker’s condition. The employer provided the same arguments regarding the worker’s mental health issues pre-dating the accident date or their employment, and the worker performing their duties without reporting a workplace injury. The employer added that the July 2016 decision letter indicated the worker’s PTSD diagnosis was not established until July 4, 2016.

Criterion six does not require a party to directly state “I object”. Instead, the criterion directs the decision-maker to determine if information on file clearly shows the party objected and disagreed with a particular issue. I find the summarized information on file satisfies this criterion. When considered holistically, I find the employer objected to the allowance of entitlement in the claim from their Employer’s Report of Injury/Disease (Form 7) in May 2016 until at least their July 2017 letter. They consistently highlighted the same concerns and questioned the work-relatedness of the worker’s condition in letters and a documented telephone discussion during this period.

Even if I disregard the May 2016 documents – because they predate the decision – and the July 2017 letter – because the employer submitted it after the time limit expired – I reach the same conclusion based on the November 2016 letter and memo. Within these two documents, the employer clearly objected to the CM’s determination that the worker’s PTSD was work-related based on their concerns about the worker’s various psychological issues, the worker not reporting a work-related injury, and the fact that the sick leave adjudicator did not report that the medical information indicated the worker’s condition to be work-related. For all of the above reasons, I find the sixth criterion is satisfied and a time limit extension for the July 12, 2016 decision is in order.

I am mindful of the other argument provided by the worker’s representative to support their position that the time limit extension should be rescinded. Specifically, they argued the seventh criterion is not satisfied because it would be possible to adjudicate the employer’s other appealed issues separately from the issue of initial entitlement. I considered this argument and reviewed the attached WSIAT decision to provide a fulsome review of the file and the parties’ positions. However, I do not find the question of interrelatedness changes my determination that the employer demonstrated an objection to the July 2016 decision within the time limit. As such, I find a time limit extension for the July 12, 2016 decision remains in order based on the employer meeting the sixth criterion.

CONCLUSION

I find a time limit extension for the July 12, 2016 decision is in order.

The worker’s appeal is denied.

DATED June 16, 2023

Stephanie Waters

Appeals Resolution Officer

Appeals Services Division