WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 190/06E

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 190/06E BEFORE: R. McCutcheon: Vice-Chair HEARING: January 11, 2006 at Toronto Written DATE OF DECISION: June 16, 2006 NEUTRAL CITATION: 2006 ONWSIAT 1333 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) N. Ranta June 2, 2003 APPEARANCES: For the worker: For the employer: Not represented Not participating 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. 190/06E REASONS (i) Background [1] The worker was employed as a tractor-trailer driver with the accident employer from In 1998, he reported that he experienced symptoms in his lower arms, which he attributed to his job duties. Although the Form 7 indicated that the onset of symptoms occurred in 1991, the worker also noted in a statement to the WSIB that he had the odd funny feeling in his hands beginning in the early 1970 s. [2] The WSIB undertook an investigation of the worker s claim. Dr. Arvisais, WSIB medical consultant, reviewed the medical information and noted that the worker would have been approximately 30 years of age when his symptoms began in Dr. Arvisais view, this was unusual, given that the worker was male. It was also noted that the worker had bilateral Dupuytren s contracture, which was considered to be a non-compensable condition with similar causal factors to carpal tunnel syndrome. Although the worker s bilateral CTS may have been symptomatic while driving, Dr. Arvisais stated that driving did not cause it. However, Dr. Arvisais considered the diagnosis of left cubital ulnar compression to be compatible with the worker s job duties, as he held his left elbow in fixed 90-degree flexion, holding the steering wheel. The worker used the right hand to shift. [3] In a decision dated December 14, 1999, the claims adjudicator concluded as follows: Based upon your work history and the existence of a co-existing bilateral Dupuytren s contracture, it appears that only the cubital tunnel entrapment was caused by your work, most likely due to driving with bent elbows. There is no evidence to show that driving caused the carpal tunnel syndrome. I also wish to inform you that the Workplace Safety and Insurance Act imposes time limits on appeals. If you plan to appeal the decision, the Act requires that you notify me in writing by June 14, [4] The WSIB memoranda document that the worker called on two occasions to discuss his claim. [5] On June 29, 2000, the worker underwent a permanent disability evaluation at the Ottawa district office. In a letter dated July 17, 2000, the worker was advised that his permanent disability was assessed at 6%. [6] In a letter dated August 9, 2000, the worker objected to the level of his permanent disability pension. He noted that he spoke with the claims adjudicator on August 4, 2000, who advised him to put his concerns in writing. In that letter, the worker also stated that he suffered from a social phobia, which makes it difficult for him to communicate with the physicians. The worker stated that he was no longer able to work. [7] On August 29, 2000, the claims adjudicator advised the worker that the 6% pension was confirmed and the worker was considered capable of his regular duties.

3 Page: 2 Decision No. 190/06E [8] The worker wrote to the WSIB again on September 18, He objected to the 6% pension and the decision that he could return to his regular job. The worker stated that I was able to contact WSIB in Toronto and they advised me that my bilateral carpal tunnel is compensable. The worker requested explanation for the discrepancy. [9] The claims adjudicator responded in a letter dated October 18, The claims adjudicator stated that the worker was advised that entitlement for CTS was denied in a letter of December 14, 1999, but he had not registered an appeal within six months. Therefore the denial of entitlement for CTS was no longer an appealable issue. The claims adjudicator confirmed prior decisions on the other issues in the claim. [10] In a letter dated July 3, 2001, the worker stated that he did not understand the pension assessment process and had assumed that the pension for the ulnar nerve would include bilateral carpal tunnel syndrome. The worker requested the opportunity to appeal the denial of CTS. He also stated he had obtained the help of friends to write letters and help him understand the process. The worker had also contacted the Office of the Worker Adviser for assistance. [11] In a letter dated August 14, 2001, the claims adjudicator stated that the worker missed the time frame to appeal the CTS decision and refused to reconsider the issue. The worker objected. The ARO denied an extension of the time to appeal, and the worker appeals to the Tribunal. (ii) Issue [12] The issue in this appeal is whether the Board ought to have allowed the worker an extension of time to file an appeal from a decision by a claims adjudicator dated December 4, 999. (iii) Law and Policy [13] On January 1, 1998, the Workplace Safety and Insurance Act ( WSIA ) took effect. The legislation imposed time limits on appealing decisions made by the operating level of the Board. For decisions made prior to January 1, 1998, the deadline was July 1, [14] Section 120 of the Workplace Safety & Insurance Act ( WSIA ) stipulates that a notice of objection to a decision of the Board must, with respect to any matter other than a decision regarding a return to work or a labour market re-entry plan, be filed within six months after the decision is made. Where such a decision was made prior to January 1, 1998, the legislation requires that any appeal from that decision be filed by June 30, The subsection gives the Board the discretion to extend the time limit. [15] Tribunal decisions have concluded, and the Board has accepted, that the Tribunal has jurisdiction to hear appeals from final decisions made by the Board on a time limit issue (see, for example, Decision No. 1790/01I (2001), 58 W.S.I.A.T.R. 321). In such cases, in reviewing the Board s final decision, Tribunal panels have applied the same criteria as those applied in time extension applications regarding appeals to the Tribunal. Those criteria are as follows: The lapse of time between the expiration of the six months and the date the appeal was filed and any explanation for the delay;

4 Page: 3 Decision No. 190/06E Whether there is evidence to show an intention to appeal prior to the expiry of the six months; Whether the applicant ought to have known of the time limit; Whether the applicant acted diligently; Whether there is prejudice to a respondent; Whether the case is so stale that it cannot reasonably be adjudicated; Whether the issue is so connected to another appeal that the Tribunal cannot reasonably adjudicate the other appeal without considering it; Whether a refusal to hear the appeal could result in a substantial miscarriage of justice due to defects in prior process or clear and manifest errors; Whether there are exceptional circumstances. [16] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #5, would apply to the subject matter of this appeal: #193 Extension on Time Limit to Appeal; #300 Decision Making/Benefit of Doubt/ Merits and Justice. [17] The WSIB stated that there is no policy document from the Operational Policy Manual (OPM) for the issue of time extensions, but policy package #193 contains Appendix A from the Appeal System Practice and Procedures Document, Guidelines for Dealing with Appeal Time Limits. This document sets out the following criteria to be applied in determining time limit extensions: 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; Whether the worker had actual notice. This acknowledges that post-1998 decisions specifically refer to the time limits but pre-1998 decisions do not; The length of the delay; Whether there are other issues in the appeal which were appealed within the time limits and which are closely related to the issue not appealed within the time limits; The significance of the issue in dispute; Whether the worker was able to understand the time limit requirements. [18] In 2003, the WSIB amended this document, adding that broad discretion to extend [the time limit] will be applied where appeals are brought within one year of the date of the decision. (iv) Discussion and Conclusions [19] The appeal is allowed, for the reasons that follow.

5 Page: 4 Decision No. 190/06E [20] In the present case, the lapse of time between the expiration of the time limit for appealing and the filing of a notice of appeal with respect to the decision in question was approximately three months. While this delay cannot be considered negligible, it is not extremely lengthy. There is no evidence that any prejudice was caused by this delay. The worker seeks to appeal denial of entitlement for CTS this is a medical issue, and does not turn on the availability of witnesses. The employer has not opposed the worker s request for a time extension. [21] At the same time, the worker had ongoing issues with the WSIB about the quantum of the pension and his ability to work. He pursued these issues in a timely manner, and the quantum of the pension award is interrelated with entitlement for CTS. The ARO dismissed the worker s claims of social phobia and an inability to understand the appeals process. However, from the timeline of events in this claim, it is evident that that the implications of the denial of CTS were not made clear until the worker was granted a 6% pension. He then objected in a timely fashion. [22] In the objection form submitted to the WSIB, T. McConnell submitted as follows on the worker s behalf: [The decisions under appeal] are all related to the denial of entitlement for carpal tunnel syndrome which was denied December 14/99. Entitlement was allowed for [right] elbow and denied for CTS. A pension assessment was to follow. [The worker] thought the pension assessment would include everything, he misunderstood the letter denied CTS. After pension assessment, he understood CTS wasn t part of entitlement and verbally objected following July 17, 2000 letter. He objected again on September 18, 2000 following August 29, 2000 decision. We maintain he did object as soon as he understood denial. [23] In my view, this explanation is reasonable and accords with the events in this claim. [24] I agree with the ARO that the worker has submitted a number of clear letters that contradict his claim that he misunderstood the appeals process. However, the worker did state that he obtained help in writing those letters. The worker also cited a social phobia I see no medical evidence or other references to substantiate the presence of this condition. However, in the circumstances of this appeal, it is unnecessary to consider this further. [25] In summary, the appeal is allowed. The worker is entitled to an extension of the time limit, noting the following: The delay was not extreme; There is no evidence of prejudice to any party; The worker objected to a related issue in a timely fashion; The worker s explanation for the delay is reasonable.

6 Page: 5 Decision No. 190/06E DISPOSITION [26] The appeal is allowed. The worker is entitled to an extension of the time limit to appeal the claims adjudicator s decision dated December 14, DATED: June 16, 2006 SIGNED: R. McCutcheon