Highlights of Noteworthy Decisions

Decision 186 13
B. Kalvin - M. Christie - A. Grande
  • Issue setting
  • Jurisdiction, Tribunal (Board implicitly dealt with issue)
  • Second Injury and Enhancement Fund {SIEF} (severity of accident)
  • Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)

A truck driver was getting out of his truck when he caught his foot and fell a distance of about two feet from the bottom step of the truck to the ground. The Board granted a 16% NEL award for permanent low back impairment and full LOE benefits. The Board also granted the employer 25% SIEF relief. The employer appealed a decision of the Appeals Resolution concerning the quantum of LOE benefits and SIEF relief.

The Panel found that falling a distance of two feet and landing directly on the buttocks without being able to brace against the impact of the fall is an accident that is likely to cause a disabling injury. It is conceivable that such an accident could cause a non-disabling or minor disabling injury but it is more likely to cause a disabling injury. The Panel concluded that the severity of the accident was moderate.
The worker had pre-existing degenerative disc disease and spinal stenosis. The Panel concluded that the medical significance of the pre-existing condition was moderate.
Based on an accident of moderate severity and a pre-existing condition of moderate medical significance, the employer was entitled to 50% SIEF relief.
At the hearing, the employer asked the Panel to make an order regarding retroactive adjustment of the employer's NEER experience rating account to reflect the increase in SIEF relief. There was no final decision of the Board on this issue, and the employer had not raised the issue in its notice of appeal. Further, this was not a straightforward case, as the employer was undergoing restructuring during the NEER rating period affected by the SIEF award.
Numerous Tribunal decisions have addressed a NEER issue in the course of an SIEF appeal. However, the Panel noted that many of those decisions involve appeals from denial of initial entitlement for SIEF relief. In such cases, the Board would not have had the opportunity to address the NEER issue because no SIEF relief was granted. If the Tribunal reverses the Board decision and grants SIEF entitlement, it may then make sense to address the NEER issue as implicit, rather than send it back to the Board for determination. However, when the appeal relates to the quantum of SIEF, the Board has already granted entitlement to SIEF and, accordingly, had the opportunity to review the NEER issue. The employer would have had the opportunity to raise the NEER issue and obtain a final decision from the Board.
In the circumstances, the Panel refused to consider the NEER issue.
On the evidence, the worker was entitled to full LOE benefits.
The appeal was allowed in part.