Highlights of Noteworthy Decisions

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.