Highlights of Noteworthy Decisions

Decision 1692 19 I
03/12/2020
R. McCutcheon - M. Christie - M. Tzaferis
  • Referral to Board (stress, mental)

The worker appealed two ARO decisions. The first was dated June 28, 2013, denying the worker's claim for mental stress attributed to an incident on April 7, 1999. The second was dated March 9, 2018, denying the worker's claim for mental stress attributed to incidents in the workplace on January 29, 2014.

The preliminary issue in this interim decision was whether either or both of these appeals ought to be referred back to the Board under the transitional provisions for mental stress claims, and whether any further procedural directions are necessary.
With respect to the June 2013 ARO decision, it was noted that in July 2013, the worker filed an appeal in respect of this decision but withdrew it at a Tribunal hearing on May 3, 2016. The worker then pursued the appeal again in May 2018, filing a new Notice of Appeal form. The worker's application for an extension of the statutory time limit was granted in Decision No. 1692/19E. While it could be argued that the claim was not "pending" at the WSIB or WSIAT as of January 1, 2018, as it had been withdrawn, a withdrawal of an appeal was not the same as a decision on the merits and did not finally dispose of the appeal. Instead, it put the appellant in the same position they would have been in if the appeal had not been filed.
Section13.1(9) provides that the Tribunal shall refer back to the Board an appeal in respect of a claim under s. 13(4) if on or after January 1, 2018 and within the time limit set out in s. 125(2), a worker or a survivor filed a notice of appeal of a final decision of the Board made before January 1, 2018 regarding a claim for entitlement to benefits for mental stress with the Appeals Tribunal.
The Panel found that as long as an appeal of a Board decision made prior to January 2, 2018 is filed with the Tribunal within the time limits set out in s. 125, then s. 13.1(9) applies. While this appeal was filed outside the time limits, the granting of the time extension in Decision No. 1692/19E brought it within the terms of section 125(2).
The appeal in respect of the 2013 ARO decision was referred back to the Board.
With respect to the appeal of the 2018 ARO decision, the Panel found that although it was not appropriate to refer this appeal back to the Board under the transitional provisions, this appeal was put on hold at the Tribunal pending the outcome of the referral back of the appeal from the ARO decision dated June 28, 2013, in order that the appeals of both ARO decisions could be considered together.
The Panel found that s. 13.1(4), as amended by Bill 127, was applicable in this appeal. Referring to Decision No. 382/98 the Panel noted that it had jurisdiction to consider the applicable statutory provisions and policies in this appeal.