Highlights of Noteworthy Decisions

Decision 1999 13 R
J. Moore
  • Reconsideration (conflicting decisions)
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition) (normal condition)

Decision No. 1999/13 denied the employer SIEF relief in relation to a shoulder injury suffered by the worker. The employer applied for reconsideration of Decision No. 1999/13.

The vice-chair who heard the appeal found that the worker likely had at least some pre-existing degenerative changes in her shoulder but that the degree of the degenerative changes was not abnormal or unexpected for a woman of her age to the extent that it would make her more liable to develop a disability of greater severity than a normal person.
The employer submitted that exclusion of age-related pre-existing conditions was inconsistent with the purpose of the policy. However, the Vice-Chair was of the view that the policy was not intended to protect employers from the effects of every pre-existing condition, particularly those that reflect normal ageing. To apply protection in such cases could well impose an unwarranted obligation on the Insurance Plan and unfairly burden employers in any class.
The employer also submitted that there is a line of Tribunal decision that supports its position. However, the Vice-Chair referred to, and agreed with, the other line of decisions that finds it reasonable to interpret pre-existing condition in the SIEF policy as generally not including normal age-related change.
In any event, Tribunal decisions have concluded that a Tribunal decision will not be re-opened simply on the basis of there being a contrary line of decisions. If a Tribunal decision cites and relies on a line of case law that is inconsistent with another line of case law, that reliance, in and of itself, is not an error.
In this case, the original vice-chair cited both lines of cases and provided reasons for preferring one over the other. The Vice-Chair noted that this appears to be the predominant line of case. The original vice-chair considered the evidence and the case law, and came to a conclusion that reflected an interpretation of the policy that was consistent with the objectives of the policy.
The application to reconsider was denied.