Highlights of Noteworthy Decisions

Decision 1091 22 E
19/09/2022
B. Pollock
  • Statutory interpretation (principles of)
  • Time limits (appeal) (diligence of applicant)
  • Time limits (appeal) (length of delay)
  • Time limits (appeal) (receipt of decision)
  • Time limits (appeal) (new evidence)

The issue on this application was whether the employer's request to extend the time to appeal should be granted.

In support of the application for a time extension, it was submitted that the six-month time period for filing an appeal had not expired as it was the December 8, 2021 reconsideration decision which triggered the running of the six-month time limit rather than the March 29, 2021 ARO decision, given that the request for reconsideration included five new medical reports that post-dated the March 29, 2021 ARO decision and which could be considered significant. The employer representative referenced Tribunal Decision No. 3272/17E in support of this submission. It was submitted that the employer acted diligently after receipt of the additional medical evidence in late October 2021 as evidenced by the filing of its notice of appeal on January 14, 2022. Further, it was submitted that the case was not so stale that it could not be reasonably adjudicated by the Tribunal given the medical evidence remained available in the Board's file, and there was not likely to be any prejudice to the worker if the time extension was granted.
The appeal was allowed.
In the Vice-Chair's view, the use of "or" in section 3.3 meant that there are two discrete situations in which the six-month time limit would begin to run from the date of the Board's reconsideration decision. The first is where the Board considered significant new evidence in the reconsideration. The other is when the reconsideration decision changes the result of the original decision. The Vice-Chair found that consideration of significant new evidence in a reconsideration decision, even if such evidence does not result in a change to the original decision, is sufficient to result in the six-month time limit for filing an appeal beginning to run from the date of the reconsideration decision, rather than the date of the original decision.
In this case, the reconsideration decision was dated December 8, 2021, and the employer's notice of appeal was filed on January 14, 2022, which was well within a six-month period from the date of the reconsideration decision. Accordingly, the Vice-Chair noted that if the reconsideration decision was the operative decision for the purpose of commencing the six-month time limit for an appeal, the employer filed its notice of appeal within six-months of the ARO March 29, 2021 decision, and permission to extend the time limit for appeal would not be required.
In addition, the Vice-Chair noted that the medical reports referenced were clearly "new", given that each of them was dated after the date of the March 29, 2021 ARO decision. It was noted that the ARO reviewed all of these reports as part of the reconsideration of the March 29, 2021 decision, but concluded that they did not contain significant new evidence that would cause a reconsideration of the result. However, as noted above, the Vice-Chair found that the six-month time limit to appeal begins from the date of the reconsideration decision where significant new evidence was considered even if it did not result in a change in the original decision. In this case, the Vice-Chair found that cumulatively, the five reports which post-dated the March 29, 2021 ARO decision were arguably significant. Each provided medical evidence relating to the worker's compensable conditions and to the existence of pre-existing conditions that may have contributed to the severity or duration of the worker's compensable conditions and his ability to return to work.
In summary, the Vice-Chair found that the six-month time limit to appeal began from the date of the reconsideration decision, December 8, 2021. Given the notice of appeal was filed on January 14, 2022, approximately five weeks later, permission to extend the time limit for appeal was not required.
In any event, however, the Vice-Chair found that the justice of the case merited an extension of the six-month time limit even if such an extension was required. According to the application materials, the five medical reports noted above, which formed the basis of the employer's reconsideration request, only came to the employer's attention on October 22, 2021 as part of an update from the Board. This was already after the expiry of the six-month time limit following the March 29, 2021 ARO decision. After becoming aware of such additional reports, the employer moved expeditiously, first by requesting a reconsideration of the ARO decision on November 8, 2021, and then by filing a notice of appeal on January 14, 2022, approximately five weeks after the date of the reconsideration decision. The Vice-Chair noted that this would explain why the employer had not previously formed an intention to object to the decision, and constituted a reasonable explanation for the delay in filing a notice of appeal.
In addition, the delay in this case from the date of the March 29, 2021 ARO decision was approximately 3.5 months. The Vice-Chair found that, in the circumstances of this case, a delay of that length was not likely to affect the Tribunal's ability to reasonably adjudicate the appeal on its merits (see, for example, Decision No. 1245/19). The Vice-Chair also found that the employer had an arguable case on the merits of the appeal, specifically when the five medical reports which post-dated the March 29, 2021 ARO decision were considered together with the evidence that led to the conclusion of the ARO that the pre-existing condition was moderately significant.