NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer); and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: Form of Appeal: WCB Claim No.: [X] Written submission [X] Date of Decision: November 30, 2010 Decision: The appeal of the August 25, 2010 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner Gary H. Levine.
2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Workers Compensation Act, S.N.S. 1994-95, c. 10, as amended, (the Act ) applies to this appeal. The Worker* sustained a right knee injury on April 16, 1990 while working as a general construction labourer for the Employer, a federal crown corporation. His injury was recognized by the Board for purposes of compensation under the Act. The history and proceedings of this matter are somewhat involved. The Worker was awarded benefits in a May 13, 2010, Permanent Impairment and Extended Earnings Replacement Benefit Decision issued by a Board Case Manager. The benefits included an increase to his permanent impairment benefit (PIB), an increase in his pain-related impairment (PRI), and an extended earnings-replacement benefit (EERB). The Case Manager sent a copy of her decision to the Worker with a May 13, 2010 transmittal letter. Her transmittal letter indicated that a copy was also sent to the Employer, but the Employer denies receiving it in May. The Worker filed a Notice of Appeal to Hearing Officer with the Board s Internal Appeals concerning the Case Manager s calculation of his earnings loss, the effective date of benefits and the calculation of his EERB. His Notice of Appeal was dated June 7, 2010 and was stamped received by the Board on June 11, 2010. It is not clear from the available documents when or if the Employer received a copy of this Notice of Appeal. However, on July 9, 2010, a notice concerning the Worker s appeal was sent out by the Registrar of Internal Appeals. The July 9 notice was addressed to the Worker, the Employer and HRSDC. On July 13, 2010, the Employer s representative (hereinafter, RM ), faxed copies of the Worker s T4's to the Board s Internal Appeals with a note indicating that the documents pertained to the Worker s appeal and claim number. RM subsequently filed a letter and a Notice of Appeal to Hearing Officer on August 19, 2010. According to the Notice of Appeal, the Employer challenged the Worker s entitlement to an EERB. Since more than 30 days had passed since the May 13, 2010 decision was issued, RM also requested an extension of time to appeal the decision. In support of his request, RM advised that the Employer had only been provided a fax copy of the decision on August 18, 2010. The Manager of Hearing Officers for Internal Appeals (hereinafter, AM ) granted the requested extension of time in a letter dated August 25, 2010. AM s decision was based, in part, upon RM s August 19, 2010 letter. AM also noted, contrary to what is apparently the Internal Appeal s standard procedure when dealing with the crown corporation Employer, that a copy of the Case Manager s decision had not been sent to HRSDC. AM inferred this omission supported the Employer s representation that the Case Manager s *This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.
3 decision had also not been mailed to the Employer in May. The Worker objected to AM granting the extension of time in an August 26, 2010 fax to the Board. He argued that inadequate grounds had been shown, that the Board s action demonstrated bias in favour of the Employer and that such action was prejudicial to the Worker. He also cast doubt on RM s representation that there had been a non-timely receipt of the Case Manager s decision. On September 20, 2010, AM acknowledged having erred in accepting RM s representation that RM contacted the Board immediately after learning of the Case Manager s decision. (AM s acknowledgement was based upon his discovery of the July 9, 2010, notice from the Registrar of Internal Appeals.) Nonetheless, AM considered that there was a likelihood the May 13, 2010, Case Manager decision had not been sent to participants in a timely way. For this reason, he confirmed that the extension remains in effect and the extension granted also remains unchanged. Thus, AM permitted the Employer to appeal the Case Manager s decision. (As an aside, the Worker subsequently withdrew his appeal of the Case Manager s decision). The Worker disagreed with AM s August 25, 2010, decision and filed an appeal with the Tribunal. This matter proceeded by way of a review of the written record, correspondence and submission from representatives. The record includes the decision under appeal and the contents of the Worker s claim file. While all of the foregoing were considered, I will only refer to a portion of the relevant evidence and submissions in the analysis below. As a preliminary matter, I note that AM is a Board staff member and manager of the Board s Hearing Officers. No issue has been raised concerning his authority to issue procedural decisions, including extensions of time. Similarly, no issue has been raised concerning the Tribunal s jurisdiction to consider an appeal of a procedural decision made by AM. In this regard, I note that the Tribunal previously dealt with Board denials of requests made by workers as appealable final decisions of the Board. These requests were for extensions of time to appeal to Hearing Officers as well as other procedural decisions. The respective decisions were made by AM and other similarly situated Board staff members. Under the circumstances, I consider AM s decision in the present case to have been rendered by a de facto Hearing Officer. ISSUE AND OUTCOME: Did the Board s Manager for Hearing Officers err in granting the Employer s request for an extension of time to appeal a May 13, 2010 Case Manager s decision? No. Board staff members have broad discretion under Section 190 of the Act to extend the 30 day time limit for filing appeals to Hearing Officers. There were sufficient facts and circumstances present to support the exercise of the Board s discretion in extending the 30 day time limit for the Employer.
4 ANALYSIS: My decision must be based upon the real merits and justice of the case and in accordance with the Act, regulations and policies of the Board. The issue before me concerns the exercise of the Board s discretion to extend a deadline to file an appeal. It does not directly involve compensation. Hence, Section 187 does not come into play and the burden of proof the participants are required to meet is the balance of probabilities standard generally applied in civil matters. However, even if Section 187 did apply, the result would be the same in this case. Filing an Appeal to Hearing Officer, Extending Time: According to Section 197 of the Act, both workers and employers may appeal from Board decisions such as the Case Manager s May 13, 2010 decision. Any appeal is to be commenced by filing a written notice within 30 days of being notified of the decision. However, there may be circumstances where the 30 day time limit can be extended. Section 190 of the Act provides: Subject to Section 83, the Board may, at any time, extend any time limit prescribed by this Part or the regulations where, in the opinion of the Board, an injustice would otherwise result. Section 83 of the Act does not apply to the present appeal. Therefore, the critical test to consider is whether an injustice would otherwise result if an extension of time were not granted. Upon consideration of the entirety of the evidence, I conclude that the Employer satisfied this test and AM properly exercised the Board s discretion in granting the extension of time to file an appeal. I will briefly outline the reasons for this. The Employer submitted its request on August 19, 2010, a little over 3 months from the date of the Case Manager s decision. Seen in the context of the Worker s 1990 injury, a 3 month delay is not a long period of time. There is no question that the Employer was on notice of the Case Manager s decision sooner than was represented by RM in his August 19, 2010, letter. Even assuming that the Employer was not sent the Case Manager s decision in May 2010 or that the Worker s Notice of Appeal was not received by the Employer, RM was certainly aware of the appeal when he forwarded copies of the Worker s T4's in July 2010. Nonetheless, RM may not have received an actual copy of the Case Manager s decision until he made subsequent inquiries. This was AM s view according to his August 25, 2010, letter and I do not consider his view to be unreasonable in the circumstances. That is,
5 HRSDC did not receive a copy of the decision and there was a reasonable inference that the Employer did not receive it in a timely way either. Given the uncertainty presented to AM, it was prudent to permit an extension of time to file an appeal. I further note that the issue raised in the Employer s Notice of Appeal concerns the determination of the Worker s EERB. The Worker is already in receipt of an EERB and has withdrawn his appeal. Although it is possible the appeal could proceed by way of an oral hearing, it seems more likely that it will be heard by way of a review of the written record and written submissions. It also seems likely that facts concerning the Worker s EERB will be ascertained from documents already on file. Documentary evidence is not subject to the same difficulties inherent with oral evidence where memories can fade and individuals become unavailable. In my view, the degree of prejudice to participants by virtue of a 3 month delay should not be significant under the circumstances. Certainly, any prejudice to the Worker must be balanced against the possible prejudice and injustice to the Employer if it is not allowed to pursue an appeal. In light of the foregoing, I find that there were sufficient facts and circumstances present to support the exercise of the Board s discretion in extending the 30 day time limit for the Employer to appeal the Case Manager s May 13, 2010 decision to a Hearing Officer. It follows that the Worker s appeal should be denied. CONCLUSION: The appeal is denied. The extension of time for the Employer to appeal the Case Manager s May 13, 2010 decision to a Hearing Officer was an appropriate exercise of the Board s discretion. th DATED AT HALIFAX, NOVA SCOTIA, this 30 day of November, 2010. Gary H. Levine Appeal Commissioner