Highlights of Noteworthy Decisions

Decision 27 20
27/03/2020
L. Gehrke
  • Out of province (election)
  • Procedure (submissions) (written submissions)
  • Notice of accident (by worker)
  • Presumptions (out of province) (election)

The worker suffered a head injury in September 2013, while working on a temporary assignment in Manitoba. The worker and employer reported the injury to the Manitoba Workers' Compensation Board. The Manitoba Board accepted entitlement for the head injury, with no lost time.

In April 2016, the worker attempted to file a claim in Ontario for the accident. The worker appealed a decision of the Appeals Resolution Officer denying an extension of the time to elect to claim benefits in Ontario under s. 22 of the WSIA and an extension of the time to file the claim under s. 22.
Section 20 applies if a worker is entitled to benefits under the WSIA relating to an accident and is also entitled to compensation under the laws of another jurisdiction in respect of the accident. It requires the worker to elect within three months of the accident whether to claim benefits under the WSIA or the other jurisdiction. If the worker does not make an election, the worker is presumed to have elected not to receive benefits under the WSIA, unless the contrary is shown.
Under s. 22, a worker is required to file a claim no more than six months after an accident.
The Vice-Chair found that the worker was not aware of his right to elect to file his claim in Ontario, rather than Manitoba, until April 2016. Since the worker filed an election form in April 2016, and was unaware of his right to elect before then, the presumption in s. 20(4), that the worker elected not to claim in Ontario, does not apply.
The worker was working for the employer temporarily in Manitoba when the injury occurred. His first contact was with the Manitoba Board. He was not provided with an election form by the Ontario Board until April 2016.
There were exceptional circumstances which warrant granting a time extension. First, the worker reported the injury immediately to his employer, and within days to the Manitoba Board and health care professionals. Secondly, the worker was not aware of his right to elect and file a claim in Ontario until he obtained representation. This was a complex situation, involving an out-of-province injury, about which the worker would not be expected to be aware of his right to elect to claim in his home province. In addition, the worker's injury accepted was a head injury and that the worker stated that he was confused afterward. Further, he had a limited educational background and, according to his statements, had difficulty obtaining representation for his claim in Manitoba.
In the circumstances, the worker was entitled to the extension of the time to file the election to claim benefits under the WSIA and the extension of the time to file the claim. The appeal was allowed.