Highlights of Noteworthy Decisions

Decision 1034 14
S. Netten
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition)
  • Board Directives and Guidelines (SIEF) (matrix or fifty per cent relief provision)

The worker suffered a back and neck strain in 2011, for which she received health care benefits but did not lose time from work and did not suffer a permanent impairment. The employer appealed a decision of the Appeals Resolution Officer denying the employer SIEF relief.

There is a provision in the Board's SIEF policy for 50% relief if there has been an aggravation of a pre-existing condition or if there is evidence that the disability following the accident has been enhanced because of a pre-existing condition. The employer submitted that, pursuant to this provision, prolongation or enhancement is not required where an aggravation has been established. However, the Vice-Chair was of the view that the policy guidelines are subject to the over-arching policy statement found at the beginning of the SIEF policy, which requires either a pre-accident disability which causes or contributed to the accident or a pre-existing condition which prolongs recovery or enhances the disability. These are conditions precedent to an employer's entitlement to any level of SIEF relief.
In this case, the Vice-Chair found that the worker's neck impairment was prolonged due to a pre-existing condition. Accordingly, the employer was entitled to SIEF relief.
The quantum of SIEF relief is generally determined in accordance with the matrix in the Board policy, which is based on the severity of the accident and the medical significance of the pre-existing condition. In this case, the Vice-Chair found that the accident was of moderate severity and the pre-existing condition was of moderate medical significance. Thus, using the matrix, the employer was entitled to 50% SIEF relief, which is the same amount to which the employer would be entitled under the 50% SIEF relief provision.
Decision No. 393/01 obtained submissions from the Board regarding the 50% SIEF provision in the policy. The Board explained that a decision-maker could immediately grant 50% relief if entitlement was granted based on aggravation of a pre-existing condition or if the disability became enhanced because of a pre-existing condition. That amount could later be reviewed. However, the Board practice was to use the matrix, as it provided a more accurate calculation.
The Vice-Chair noted that the structure of the policy was consistent with that explanation, that 50% SIEF relief was granted initially in certain circumstances for compensation and health care costs only, subject to review at a later date using the more detailed matrix. The Vice-Chair also noted that the 50% relief provision continued to be part of the policy, notwithstanding the Board practice of using the matrix in all cases. However, the Vice-Chair noted that use of the 50% provision appears to apply in only limited circumstances. The 50% provision would be superseded by the matrix if the employer applies for relief in excess of 50% or if there is a permanent impairment.
The employer was entitled to 50% SIEF relief. The appeal was allowed.