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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.



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  Decision 2354 12 R
T. Mitchinson

  • Experience rating (NEER) (retroactive adjustment)
  • Reconsideration (consideration of issue)

In Decision No. 2354/12, the Tribunal granted the employer 75% SIEF relief with regard to an accident suffered by one of its workers. The employer applied for reconsideration or clarification of Decision No. 2354/12 to include a direction to the Board to provide the employer with retroactive adjustment of its NEER experience rating account to reflect the increase in SIEF relief.
The question of a NEER adjustment was not explicitly part of the issue agenda before the vice-chair hearing the original appeal. The employer submitted that the question of a NEER adjustment was implicitly before the vice-chair because the employer's sole purpose in claiming SIEF relief was to obtain a NEER adjustment.
The Vice-Chair accepted that, in appropriate circumstances, the Tribunal can assume jurisdiction over sequential issues. However, this must be done with care, particularly in circumstances where a finding is based on individual facts and circumstances, and the issue of entitlement is discretionary in nature.
Even if the original vice-chair had decided to assume jurisdiction over a retroactive NEER adjustment in the context of this appeal, she would not have had sufficient information to make a determination because the employer had not provided submissions as to whether exceptional circumstances were present.
There was no omission or ambiguity in the original decision. The vice-chair was asked to make a determination regarding SIEF entitlement, which she did. It may have been within her jurisdiction to seek submissions from the employer on the sequential issue of a retroactive NEER adjustment but the failure to do so was not an error on her part, nor did it necessarily follow that the decision requires clarification.
The application was denied.