- Adjournment (additional submissions)
The worker appealed the quantum of her Non-Economic Loss (NEL) award for permanent neck and upper back impairments that had been set at 11% by the Board.
The appeal was adjourned for additional submissions.Section 125(2) of the WSIA contains a description of requirements for individuals wishing to provide notice of appeal of a final decision of the WSIB to the Appeals Tribunal. The worker's notice of appeal was filed with the Tribunal within 6 months of the final decision of the WSIB. There was, however, no meaningful statement contained in either the notice of appeal or in any subsequent correspondence indicating why the ARO decision was incorrect or why it should be changed. The Vice-Chair noted that the Appeals Tribunal has generally adopted a flexible approach to the requirements of section 125(2) regarding notices of appeal (see Decision No. 790/19). However, the Vice-Chair stated that it would not be appropriate for those requirements to be completely ignored. The costs of conducting appeals at the Appeals Tribunal are not insignificant. The absence of application fees and cost awards avoids the creation of barriers to access to justice. The filing of appeals without prior evaluation of whether significant grounds for the appeal exist, can contribute to the lengthening of the Appeals Tribunal's backlog and delay the consideration of appeals with legitimate grounds for argument. Therefore, in the Vice-Chair's view, it would not be an onerous requirement for appellants to be required to state, with at least some degree of specificity, the grounds they have for believing that a decision is incorrect. It was concluded that If the worker's representative provides submissions regarding why the decision is incorrect in its consideration of the evidence or the law, the Vice-Chair will proceed to provide a decision on the merits of the worker's appeal for a higher NEL. Additionally, if a reduction of the NEL award is deemed appropriate, the Vice-Chair will make that decision without providing further notice of the likelihood of a downside result. As this is a quantum appeal, the presence of a downside risk is inherent in the very issue. On the other hand, if no significant submissions are received within 8 weeks of the release of this decision, or the appeal is not withdrawn, then it will be concluded that the requirements of section 125(2) of the WSIA for filing a notice of appeal have not been met and the appeal will be dismissed.