- Death (maintenance of claim by estate)
- Time limits (appeal) (length of delay)
- Time limits (appeal) (unrepresented worker)
The issue on appeal was whether the worker's estate's request to extend the time to file a notice of objection with the Board should be granted.
The estate's representative submitted that Decision No. 114/19, which determined that the worker's 2016 PD award should not be apportioned based on the worker's smoking history, was "intertwined" with the 2005 Case Manager decision which determined that the worker's PD awards of 1984, 2001 and 2004 should be apportioned based on the worker's smoking history. The estate's representative submitted that the two decisions were connected and, as a result, the time extension should be granted.The appeal was allowed.The Vice-Chair noted that from 2005 until the worker passed away in 2012, he did not have a representative advising him on entitlement issues with the WSIB. As a result, it was determined that the worker was likely unfamiliar with worker's compensation issues, such as the need to file on-time appeals with the Board. It was found that the lack of a representative to provide advice was likely a significant contributing factor causing the worker not to appeal the 2005 Case Manager decision. As a result, this was determined to be an exceptional circumstance supporting the estate's request for a time extension.In addition, it was noted that neither the worker nor the worker's estate appealed the July 19, 2005 Case Manager decision until roughly 17.5 years after the expiry of the statutory 6-month appeal time limit. This was a significant delay. Despite this, the Vice-Chair found that the necessary documents and evidence needed to adjudicate the estate's appeal were likely retained in the Board's claim file. It was noted that the Tribunal in Decision No. 114/19 was able to adjudicate the issue of whether or not the worker's 2016 permanent disability award should have been apportioned. As the issues involved in the 2019 Tribunal decision and the 2005 Case Manager decision were similar and relied on similar evidence, the Vice-Chair found that this supported the estate's request for a time extension.Having made this finding that the decisions were connected, the Vice-Chair noted that it would be manifestly unfair to deny the estate's request for a time extension to appeal the 2005 Case Manager's decision. The Vice-Chair stated that denying this request for a time extension would lead to "an absurd or unfair result that the WSIB never intended" as indicated in OPM Document No. 11-01-03 (Merits and Justice). It was noted that the unfair result would involve two different standards being applied to the same issue of whether or not the worker's permanent disability award for his compensable COPD condition should or should not be apportioned based on his history of smoking. As a result, it was deemed to be reasonable to allow the worker's time extension request to move forward, and to allow the Board to examine the 2005 Case Manager decision in light of the subsequent Tribunal decision of 2019.