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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 323 20
J. Dimovski

  • Experience rating (NEER) (retroactive adjustment)

The employer in this appeal was seeking a retroactive adjustment beyond the window of 50% SIEF relief which was granted to him in respect of a worker's claim.
The Vice-Chair noted that the February 2016 ARO decision granting SIEF was rendered shortly after the NEER cut-off in September 2015. In the case materials there was no explanation for the delay by the Board in addressing the employer's June 2015 SIEF appeal until mid-September 2015. This delay was a significant barrier to responding to the Board as the updated case materials could not be provided to the employer until it appealed the Board's initial SIEF decision.
Considering the speed at which the employer obtained the supporting medical report once it had been provided with the worker's claim file, the Vice-Chair found that the Board's delay in addressing the employer's claim in June or July 2015 prevented the employer from obtaining cost relief within the NEER cut-off period.
The employer was entitled to retroactive cost-relief, given the short time from the Board's initial SIEF decision and the Board's final decision in February 2016 and the time since the closure of the NEER window. Given this short delay there were exceptional circumstances as described in the Board's "Practice Guidelines: Experience Rating Adjustments – Exceptional Circumstances."
While retroactive NEER adjustments should not occur as a right with every SIEF decision, the Vice-Chair agreed with Decision No. 2113/15R2 that a SIEF decision outside the NEER cut-off should have necessarily included consideration of a retroactive adjustment.
The appeal was allowed.