Decision Nº ReleasedDecisionsWithSummaryAdded from Workplace Safety and Insurance Appeals Tribunal of Ontario, 24-02-2021
| Judge | L. Gehrke : Vice-Chair |
| Judgment Date | 24 February 2021 |
| Neutral Citation | 2021 ONWSIAT 279 WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL Decision No. 885/20R BEFORE: L. Gehrke : Vice-Chair HEARING: November 25, 2020 at Toronto Written Post-hearing activity completed on January 12, 2021 DATE OF DECISION: February 24, 2021 NEUTRAL CITATION: 2021 ONWSIAT 279 DECISION UNDER APPEAL: Worker request for reconsideration of Decision No. 885/20 dated August 5, 2020 APPEARANCES: For the worker: A. Armstrong, Office of the Worker Adviser For the employer: J. Smith, Lawyer Interpreter: Not required REASONS (i) Introduction to the reconsideration proceedings The worker requests the reconsideration of Decision No. 885/20 (the original decision) dated August 5, 2020, which concluded that the worker was not entitled to an extension of time under section 120(1)(a) or (b) to appeal a WSIB decision of August 8, 2012. The background to the time extension issue is stated by the Appeals Registrar (AR) decision dated August 21, 2019, which was under appeal in the original decision, as follows: On August 8, 2012, the Case Manager (CM) issued a decision letter to the worker advising that entitlement to benefits for low back degenerative changes was denied as this condition was deemed non-compensable, and that the worker’s compensable low back strain condition was expected to fully resolve with no work-related permanent precautions. Noting this, the August 8, 2012 decision letter determined that entitlement to ongoing benefits in the claim was denied. On the last page of the decision letter, the CM noted that should the worker wish to object to the decision, she must do so, in writing, by February 8, 2013. On December 15, 2015, the CM issued a decision letter to the worker indicating that entitlement to benefits for the low back as a recurrence was denied. This letter also noted that because the recurrence was denied, there remained no entitlement to benefits beyond the previous August 8, 2012 decision. The December 15, 2015 decision letter stated that the worker had missed the objection deadline for the August 8, 2012 decision, but that the worker had until June 14, 2016 to submit an objection in writing related to the recurrence denial if she wished to do so. The worker submitted an Intent to Object (ITO) Form to object to the December 15, 2015 decision letter on June 9, 2016. The worker’s representative submitted a Direction of Authorization (DOA) to file dated May 18, 2018. This was followed by written documentation from the worker’s representative objecting to the August 8, 2012 and December 15, 2015 decision letters, which was received on file July 31, 2018. In a letter dated November 21, 2018, the CM concluded that the worker and her representative had not met the time limit to appeal the August 8, 2012 decision, and that an extension of the time limit to object was not granted. The CM issued an additional letter dated May 1, 2019, which provided the list of criteria considered for the November 21, 2018 decision. As there appeared to be an arguable case, and the employer participated in the original hearing, I requested that the employer be notified and given an opportunity to provide submissions prior to making a decision on the threshold test. (ii) The reconsideration test The Workplace Safety and Insurance Act, 1997 and the Workers’ Compensation Act provide that the Appeals Tribunal’s decisions shall be final. However, section 129 of the Workplace Safety and Insurance Act, 1997 and sections 70 and 92 of the Workers’ Compensation Act provide that the Tribunal may reconsider its decisions “at any time if it considers it advisable to do so.” Because of the need for finality in the appeal process, the Tribunal has developed a high standard of review, or threshold test, which it applies when it is asked to reconsider a decision. Generally, the Tribunal must find that there is a significant defect in the administrative process or content of the decision which, if corrected, would probably change the result of the original decision. The error and its effects must be significant enough to outweigh the general importance of decisions being final and the prejudice to any party of the decision being re-opened. The threshold test has been discussed in some detail in Decision Nos. 72R (1986), 18 W.C.A.T.R. 1; 72R2 (1986), 18 W.C.A.T.R. 26; 95R (1989), 11 W.C.A.T.R. 1; and 850/87R (1990), 14 W.C.A.T.R. 1. As discussed in Decision No. 871/02R2, one of the fundamental concepts which guides the entire Tribunal process is a duty of fairness. The Tribunal has gone to considerable lengths, in spite of limited resources, to promote a fair process. The threshold test and the role of the reconsideration process must be understood in the context of the Tribunal’s processes generally. Most parties have the option of an oral hearing, which is a hearing “de novo” at the Tribunal. This is very unusual at the final level of appeal within any adjudicative system. The Tribunal invests considerable resources in preparing cases for hearing and assisting parties to identify the issues in dispute so that parties can in turn be fully prepared for the hearing. The reconsideration process should not be so generally available that it undermines the important role of the original hearing or the finality of decisions which are reached after a fair hearing process. Because of limited resources, the Tribunal must also carefully balance its processes to ensure that parties awaiting their first hearing are not penalized because of the expenditure of scarce resources on reconsideration requests. It is instructive to refer to Decision No. 871/02R2’s analysis of the threshold test that a reconsideration request must meet and the reasons for this: Section 123 of the Workplace Safety and Insurance Act provides that a decision of the Appeals Tribunal under the Act is final. While the Appeals Tribunal does have the discretionary power to reconsider its decision under section 129 of the Act, this remedy is an exceptional one. Because the integrity of the appeal process and the finality of Tribunal decisions are important considerations in any reconsideration application, the standard of review or threshold which must be met in the reconsideration process is a high one. Although some representatives may advise their clients that a reconsideration application is merely a routine step in the WSI appeal process, this advice is wrong. The reconsideration process is a special remedy and the Tribunal’s power to reconsider is invoked only in unusual circumstances; it is not intended as a routine process for any party or representative unhappy with a Vice-Chair or Panel decision. To treat reconsiderations as a routine, insignificant process would effectively undermine the statutory principle of finality, suggest that parties could routinely discount the original hearing process, and put successful parties at risk of multiple proceedings. To be successful on a reconsideration application, an applicant must discharge the onus to satisfy the Tribunal that an otherwise final decision should be reopened. Essentially, an applicant must: (a) demonstrate that there was a fundamental error of law or process which, if corrected, would likely produce a different result, or (b) introduce substantial new evidence which was not available at the time of the original hearing and which would likely have resulted in a different decision had this substantial evidence been introduced at the original hearing. Any error and its resulting effects must be sufficiently significant to outweigh the importance of decisions being final and the prejudice to any party of the decision being re-opened. [emphasis in original] The Divisional Court has reviewed and upheld the Tribunal’s reconsideration process in Gowling v. Ontario |
| Judgement Number | ReleasedDecisionsWithSummaryAdded |
| Hearing Date | 25 November 2020 |
| Issuer | Workplace Safety and Insurance Appeals Tribunal of Ontario |
--SUMMARY--
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Decision No. 885/20R |
24-Feb-2021 |
L.Gehrke |
- Reconsideration (consideration of evidence)
- Time limits (appeal) (related issues)
Decision No. 885/20 denied the worker a time extension to appeal a 2012 decision at the Board pursuant to s. 120(1) of the WSIA.
The worker requested a reconsideration on the basis that the original decision ignored evidence with respect to an intent to appeal found in the memoranda of the Board Case Manager (CM).
In order to meet the requirements of transparency, justification and intelligibility, while it is not possible or necessary to review all the evidence submitted on an appeal, important evidence which supports a losing party's case should be addressed and the reasons given should be based on a reasonable interpretation of the evidence. The CM memoranda regarding conversations with the worker and with her family doctor were significant evidence about relevant factors of intent, delay and reasons for delay, which supported her case for a time extension. This evidence, if considered, could have affected the outcome of the original decision to deny a time extension.
Furthermore, referring to Decision 1891/18IR, the Vice-Chair found that the 2012 Board decision was intertwined with an "in time" appeal of a 2015 Board decision. This was not addressed in Decision No. 885/20. The findings in the 2015 decision were predicated upon the foundation of the findings regarding permanent impairment and MMR in the 2012 decision. The reasons for the 2015 decision specifically considered the 2012 decision. The 2015 decision could therefore reasonably be construed as including a decision on the 2012 decision. The worker therefore had an arguable case based upon the explicit consideration of the 2012 decision which demonstrated that the issues in the two decisions were so intertwined that the December 2015 decision could not have been made without considering the 2012 decision.
The reconsideration request was allowed. The Vice-Chair who remained seized directed that the parties be given to make submissions on the merits.
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2021 ONWSIAT 279 |
WORKPLACE SAFETY AND INSURANCEAPPEALS TRIBUNAL
Decision No. 885/20R
BEFORE: L. Gehrke : Vice-Chair
HEARING: November 25, 2020 at Toronto
Written
Post-hearing activity completed on January 12, 2021
DATE OF DECISION: February 24, 2021
NEUTRAL CITATION: 2021 ONWSIAT 279
DECISION UNDER APPEAL: Worker request for reconsideration of Decision No. 885/20 dated August 5, 2020
APPEARANCES:
For the worker: A. Armstrong, Office of the Worker Adviser
For the employer: J. Smith, Lawyer
Interpreter: Not required
REASONS
(i) Introduction to the reconsideration proceedings
- The worker requests the reconsideration of Decision No. 885/20 (the...
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