WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1147/16

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1147/16 BEFORE: R. Nairn: Vice-Chair HEARING: April 18, 2016 at Toronto Written DATE OF DECISION: July 14, 2016 NEUTRAL CITATION: 2016 ONWSIAT 1886 DECISION(S) UNDER APPEAL: WSIB ARO decision dated February 17, 2015 APPEARANCES: For the worker: For the employer: Interpreter: J. Bartolomeo, Lawyer Did not participate None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1147/16 REASONS (i) Introduction [1] The following background information is provided in order to place this appeal into its proper context. The WSIB (the Board ) established a claim with an accident date of November 3, 2005, after receiving an Employer s Report of Injury/Disease (Form 7) also dated November 3, The Form 7 indicated that the worker, a warehouse employee, reported that he had bent down and reached under a pallet to pick up a tire, when he felt pain in his back. The employer attached a letter to their Form 7 with a representative, JZ, indicating: During the course of filling out the Form 7, [the worker] advised me that he has had numerous back problems over the years. Due to his ongoing back problems, he had a MRI scheduled by his physician before this incident occurred. The incident occurred on Nov 3, 2005 and he told me that he had applied roofing shingles to a house the weekend before the incident (Oct 29, 30). This type of work is extremely hard on the back due to the amount of lifting and the fact that the worker is constantly bent over to perform this task. He is being very cooperative with the company and we will facilitate him with modified duties until he is ready to return to full duties. He will not lose any wages or time from work. Information on file indicates that after receiving the employer s Form 7, the Board sent the worker a Form 6 his Report of Injury/Disease - for completion. Information contained in Memo No. 12 indicates that when the Form 6 was not returned, the claim was abandoned on November 18, There is no correspondence contained in the claim file documenting the abandonment of the worker s claim. As noted in Memo No. 2, the worker visited the Board on September 30, 2010 to pursue his 2005 initial injury. In Memo No. 2, the Board adjudicator indicated in part: It was difficult to obtain information from [the worker] as he seemed confused on some of his issues. He has been off work since April 2010 due to psychological issues. We discussed that his claim in 2005 was abandoned due to his non-response to our attempts to contact him. Advised that Form 6 was sent to him along with a no further action letter. Confirmed his address on PARS has not changed. He advanced that he had another claim in 2006 which stated that it was due to a forklift accident. He advised that he is now going to require back surgery and is looking to pursue ongoing benefits in his claim. In our conversation he stated that he felt the employer attempted to get him to not report so that the claim would just be closed. I advised him they did report the claim to us and that there was a F7 on file.

3 Page: 2 Decision No. 1147/16 He said that he has been dealing with a BD in HR sounds like the plant where [the worker] worked closed and they are looking to provide him with a severance package. In Memo No. 3 of October 7, 2010, the Board adjudicator concluded that I am unable to allow this claim as the worker has surpassed the six months required to file a report of work-related injury to the WSIB and therefore I am unable to allow this claim for benefits. The adjudicator reconsidered the issue in Memo No. 6 of May 9, 2011 and concluded: I note that this worker has had two prior claims prior to the 03-Nov-2005 incident and is aware of the WSIB. I also note this worker has had a claim in 2006 which was for his low back as well, which was also denied as no med attention sought at the time of the injury. Both accident histories are based on picking up tires. Noting this worker has not provided any new info for review, has had two prior claims, one is one year of 2005 incident, which confirms he has knowledge of WSIB. The worker failed to respond and provide F6 that was mailed to him, and failed to respond to the abandonment LTR sent to him. I am upholding my decision. The worker disagreed with the conclusions of the adjudicator and the matter was referred to an Appeals Resolution Officer ( ARO ). Prior to considering the issue however, the ARO requested that further inquiries be conducted and in Memo No. 12 of October 9, 2012, the ARO indicated in part: With this information provided by the worker, it is necessary for the operating level to confirm his allegations with the employer and additionally determine if the employer has the Form 6 of 2005, as indicated by the worker. If so, why was it not forwarded to the WSIB. There is also indication in an August 2, 2011 medical report that the worker had been working full duties lifting tires, until he developed a sudden increase in his low back pain on March 15, 2010) and has not worked since. Your additional inquiry should include what occurred in and around this timeframe and whether there was involvement of perhaps another accident, noting the worker presented to the WSIB in As further inquiry was necessary at the operating level, the referral to the Appeals Branch is considered premature. The worker was so advised of my discussion with him on October 4, 2012 at which point he indicated he would be seeking representation through the OWA while the operating level carried out their further action. Further investigation was conducted in approximately December 2012 and in Memo No. 24 of October 24, 2014, the Board adjudicator reconsidered the issue of a time extension and concluded: Reconsideration Decision I do not find that compelling evidence has been presented in this case to justify extending the six month timeframe that a worker has to claim for benefits following an accident (as provided by WSIB Policy This

4 Page: 3 Decision No. 1147/16 worker's reported accident occurred on 02Nov2005. I find that the fact the employer submitted the F7 on 03Nov2005 an indication that the employer was not trying to avoid a WSIB claim as the worker reports. The worker has union representation and the union confirms that they have a program in place to assist workers with their WSIB claims. The worker was unable to produce copy of the F6 he reports he completed in The employer also does not have a copy. The worker had prior WSIB claims and accordingly it is most reasonable to conclude he would be familiar with WSIB processes. Ultimately the submission of the F6 and contact with the WSIB is the responsibility of the worker. Do not find the 5 year delay in the working first contacting the WSIB about his claim to be reasonable. The WSIB attempted to contact the worker directly in A copy of the F6 and a NFA letter were sent to the worker in When the worker came to the WSIB as a walk-in in This was discussed at that time. The worker confirmed his address. This accident was reported by the employer and I do not find that compelling evidence has been presented to demonstrate that on the balance of probabilities the employer created a coercive workplace environment that resulted in the worker waiving or forgoing potential entitlement to benefits. In summary, I do not find there to be just cause to extend the six month timeframe taking into consideration the 5 year delay in the worker claiming for benefits following the reported accident of 02Nov2005. I note that the ARO also requested in 2012 that Eligibility establish whether there was a subsequent accident in After reviewing the investigation report and medical on file I find no evidence of any unreported 2010 workplace accident. The worker reports that he has been off work since 2010 due to mental health issues he relates to his lower back injury attributed to the accident of 02Nov2005. The worker continued to disagree with the conclusions of the adjudicator and the matter was eventually returned to an ARO. In a decision dated February 17, 2015, the ARO denied the worker s appeal and concluded: The worker confirmed that he did receive a Form 6 - Worker's Report of Injury. However, the worker said that after he discussed the situation with his union representative, rather than file the Form 6 with the Board, he gave it to his employer. The worker's position is that his employer discouraged him from making a claim for Workplace benefits, saying they would cover him for any lost wages. I find no evidence to support this statement, noting in particular that the claim was established upon the receipt of the employer's report within one week of the incident. I also note the worker did make a subsequent claim for benefits for a separate accident of July 21, Again, this separate claim was set up because the employer submitted a report. In the 2006 case, the worker did complete and submit a Form 6, which would suggest that in 2006 the employer was not discouraging the worker from making a claim.

5 Page: 4 Decision No. 1147/16 (ii) However, the worker still did not indicate any intention to file a claim for the 2005 incident, and in fact did not do so until September 30, I reviewed all the information and find no basis on which to extend the six-month deadline. The law and the policy are specific that a claim must be filed within six months. Although the worker did report an incident and receive medical treatment the same day, this is not equivalent to filing a claim with the Board. No evidence has been presented to show that there were any exceptional circumstances in this case. Therefore an extension to the six-month time limit to file a claim cannot be granted. Issue on appeal [2] The issue to be determined in this case is whether the worker ought to be granted an extension of the time limit, imposed by section 22 of the Workplace Safety and Insurance Act, 1997 (the WSIA ), to permit him to file a claim with respect to the incident on November 2, (iii) Submissions of the worker s representative [3] The worker agreed to have this appeal considered by means of written submissions. Mr. Bartolomeo has provided submissions dated February 25, 2016, which have been reviewed and are included in Addendum No. 3. In those submissions, Mr. Bartolomeo concluded: Summary In November 2005, [the worker] suffered a painful workplace accident that his employer and co workers knew about. It was according to one witness the only time someone left via ambulance. Rather unusually, the worker was visited at home by the employer. [The worker] contends it was to assure him that the company would take care of him. Other witnesses corroborate such benevolence which in reality allowed the employer to keep claim costs down. The worker received his wages and health care treatment courtesy of his employer. He was able to take time off with pay and worked lighter duties. He gave his Form 6 to the employer, specifically to an employee that loses papers. Notwithstanding, [the worker] knew that he could not get both benefits and wages. He was content to receive his wages and stay home as required or work light duties. When he suffered what was described as a relapse, he filed a Form 6. I submit that this was a change in claim status that should open the door to a review of initial entitlement. Alternatively, as the worker continued to work light duties there was no need to contact the WSIB. It was only when there was another change in claim status -unable to work any further that the WSIB should have reviewed initial entitlement. As this would be the first time benefits would have been payable, this appeal should be granted given [the worker s] diligence in Given that the employer and health care professionals were aware of the accident and he received continued accommodation, the worker meets the requirements of the exceptional circumstances in the applicable policy and the appeal should be allowed. Alternatively, the WSIAT case law recognizes that discoverability is an issue for consideration. [The worker] acted quickly when the claim status changed. Notwithstanding the passage of time, the extension should be granted.

6 Page: 5 Decision No. 1147/16 (iv) Analysis [4] Section 22 of the WSIA deals with the time limits for filing claims. The relevant provisions of section 22 provide: 22. (1) 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. (3) The Board may permit a claim to be filed after the six- month period expires if, in the opinion of the Board, it is just to do so. (6) If the claimant does not file the claim with the Board in accordance with this section or does not give the consent required by subsection (5), no benefits shall be provided under the insurance plan unless the Board, in its opinion, decides that it is just to do so. [5] Pursuant to section 126 of the WSIA, the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies in this case is Operational Policy Manual ( OPM ) Document No entitled Worker s Requirement to Claim and Consent. The Board s policy outlines five types of circumstances that would justify providing an extension of time to file a claim. These circumstances exist where: There are changes in law or policy (that create new areas of entitlement). The worker has made an incorrect election. There is a change in claim status (from no lost time or lost time of less than two weeks to lost time). The employer has failed to report an accident. There are exceptional circumstances. [6] With respect to the matter of exceptional circumstances, the policy provides: Exceptional circumstances 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. Exceptional circumstances can include: compelling personal reasons, such as serious health problems or accident (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.

7 Page: 6 Decision No. 1147/16 [7] At the outset, it is important to note that there is a distinction to be drawn between whether an extension of time to file a claim should be granted and whether an accident actually took place. Granting a time extension does not mean that the Tribunal accepts that an accident did in fact take place. The Tribunal treats the issue of granting an extension of time as distinct from the merits of an appeal (see for example Decision Nos. 139/07 and 31/08). [8] Having had the opportunity to consider all the evidence before me, I find that this would be an appropriate case in which to grant an extension of the time to file a claim. In reaching that conclusion, I have taken particular note of the following: In this case, there is no dispute that both the Board and the employer were aware of the events of November 2, The Board was advised when the employer provided them with their Form 7. In that Form 7, the employer confirmed that the worker advised them of the incident on November 3, The employer s representative, JZ, acknowledged that the worker is being very cooperative with the company and we will facilitate him with modified duties until he is ready to return to full duties. The Board has maintained that the worker s initial claim was closed as abandoned when the worker did not return a completed Form 6. The case materials do not contain correspondence from the Board confirming the abandonment of the worker s claim. The worker s position is summarized in a March 1, 2016, letter from Mr. Bartolomeo (contained in Addendum No. 4) in which he indicates: [The worker] was advised by personnel from his employer not to file a claim with the WSIB because they would take care of the necessary paperwork. When visited at his home, he was told to take care of himself and any paperwork that needed to be done would be done on his return. He completed a Form 6 and it was given to JZ. The worker was told by JZ that he would take care of the necessary paperwork with WSIB. However, as [the worker] had returned to work he could not receive his full wages and WSIB benefits as it was told to [the worker]. He was told to trust the company and they would take care of everything. The worker s position that he was advised by his employer that they would take care of everything is consistent with the comments from JZ in the attachment to the Form 6 in which he indicates that we will facilitate him with modified duties until he is ready to return to full duties. He will not lose any wages or time from work. The worker s comments with respect to the employer suggesting he not pursue a WSIB claim is consistent with the statement taken by a Board investigator from a co-worker, WB, who noted in part: He recalls the worker was off work and paid by the employer. He recalls other people were off work as well and paid by the employer for unknown reasons. JZ tended to hide papers and not disclose information completely.

8 Page: 7 Decision No. 1147/16 Employer wanted a good accident rating and therefore tried to pay staff - was not to report Workplace Safety & Insurance Board any lost time. Employer accommodated the worker with full pay to do office work and part-time hours. He recalls he told the worker in approximately 2005 to go on Workplace Safety & Insurance Board pay instead of pay from the employer so that there will be a paper trail of his injury. However, worker trusted JZ and the employer because they continued to pay him. (...) The worker s explanation for the delay is also consistent with the statement provided to the Board investigator by another co-worker, DC, who indicated in part: BD, HR rep did not get involved, but JZ was involved. There was always a fight (disagreement) with the employer trying to prove workers cases. The employer was not very good with paperwork and staff were not believed by the employer if they were injured. Employer did the wrong thing dealing with the workers; employer paid the workers to stay home because they could not provide suitable modified work. Management further never believed anyone who claimed they were injured at work it was a poor working atmosphere; poor morale. He is aware of many others who stayed at home and were paid by the employer. It was because the employer wanted to reduce cost related to Workplace Safety and Insurance Board NEER issues and avoid surcharges. It was all related to Workplace Safety and Insurance Board and employer always trying to decrease costs of Workplace Safety & Insurance Board claims. It was a constant battle dealing with management. The employer has decided not to participate in these proceedings and as such, there is no evidence establishing that its position would be prejudiced in anyway were a time extension to be granted. Documentation on file confirms that the worker sought medical treatment after the incident on November 2, 2005 and was taken by ambulance to hospital. In his statement to the Board investigator, JZ testified that he recalls the ambulance because it was the only time an ambulance was called into the plant. Information on file indicates that after the incident on November 2, 2005, the worker sought prompt medical treatment, attending CBI. The worker s attempt to reactivate his claim in 2010 is consistent with medical reporting on file (see for example the August 12, 2011, report from Dr. R. Zabieliauaskas which indicates he experienced an increase in his low back pain in 2010). I accept, as reasonable, the worker s explanation for the delay namely, since the employer had compensated him for his lost time initially, there was no need for him to apply for WSIB benefits until he experienced further problems in 2010.

9 Page: 8 Decision No. 1147/16 [9] In this case, both the employer and the Board received timely notice of the incident on November 2, The worker sought prompt medical attention. The employer provided the worker with modified duties and compensated him for his lost time. As such, the worker had no reason to pursue the matter with the WSIB until a number of years later when he experienced further problems with his back. In my view, despite the significant delay in pursuing the matter, there are exceptional circumstances which warrant granting an extension of the time limit to permit the worker to file a claim regarding the incident of November 2, 2005.

10 Page: 9 Decision No. 1147/16 DISPOSITION [10] The worker s appeal is allowed. [11] The worker may file a claim with respect to the November 2, 2005, incident. DATED: July 14, 2016 SIGNED: R. Nairn