Highlights of Noteworthy Decisions

Decision 1444 13
S. Martel
  • Experience rating (NEER) (retroactive adjustment)
  • Procedure (stay pending other proceedings)
  • Second Injury and Enhancement Fund {SIEF} (severity of accident)

The worker suffered a low back injury in April 2008. The Board granted the employer 25% SIEF relief based on an accident of moderate severity and a pre-existing condition of minor medical significance. The employer appealed, claiming that it should be entitled to 75% SIEF relief.

In a preliminary matter, the Vice-Chair considered the worker's request for a stay of proceedings. The worker requested the stay on the grounds that the Tribunal proceedings could prejudice the worker's pending action against the employer in the Superior Court of Justice. The worker submitted that a Tribunal finding concerning a pre-existing condition on the SIEF claim might prejudice the worker with respect to quantum of damages in the civil case.
The Vice-Chair noted that the civil case related to allegations of negligence from an incident at a meeting with the employer in September 2010. The Board had denied entitlement for this incident, finding that the worker was not in the course of employment. The Vice-Chair found that the SIEF appeal concerns whether the worker had a pre-existing condition prior to the accident in April 2008, and does not address whether the worker had a pre-existing condition prior to September 2010. Further, the factors in deciding the employer's entitlement to SIEF relief are not necessarily the same as the factors to be considered in the civil case. A party cannot be expected to have its appeal rights put on hold indefinitely pending resolution of a matter that is not directly relevant to the Tribunal appeal. Finally, further delay could have an impact on adjustment of the employer's NEER experience rating account.
The Vice-Chair denied the worker's request for the stay of proceedings.
The Vice-Chair agreed with the Board that the worker's pre-existing condition was of minor medical significance but found that the accident was of minor severity. Based on an accident of minor severity and a pre-existing condition of minor medical significance, the employer was entitled to 50% SIEF relief. The employer was also entitled to retroactive adjustment of its NEER account to reflect the increase in SIEF relief.
The appeal was allowed in part.