Highlights of Noteworthy Decisions

Decision 1130 17
R. Nairn
  • Board Directives and Guidelines (experience rating) (NEER)
  • Discretion, Board (experience rating)
  • Experience rating (NEER)
  • Merits and justice
  • Transfer of costs (experience rating)

Two workers of the employer were injured in a compensable accident in 2011. The employer terminated their employment for cause, due to violation of various safety rules and procedures at the time of the accident as well as in the past. The employer was found not to have breached its re-employment obligations. As a result of the significant costs associated with the injuries suffered by the two workers, the employer received a NEER surcharge. The employer appealed a decision of the Appeals Resolution Officer denying exclusion of the costs of the claims of the two workers from the NEER calculation.

The employer submitted that it had no alternative but to terminate the employment of the two workers for safety reasons and that the termination of their employment made it impossible for the employer to mitigate its NEER costs.
Board policy does provide for exclusion of some types of claim costs from the experience rating calculation. Those types of costs were associated with long-latency conditions and diseases. The situation in this case was not similar to the situations in the Board policy.
The employer submitted that the claims costs in this case should be excluded based on the merits and justice. However, the Vice-Chair agreed with Decision No. 2346/12I2 that the merits and justice should not be used to make decisions that are clearly contrary to the Board's intentions, as disclosed in its policies. In this case, a general holding that inability to mitigate is grounds for applying the merits and justice provisions would verge on policy-making, since there are many situations in which an employer might not be able to mitigate. It is also reasonable to suggest that there would be cost to the system in any event, even if the employer had been able to mitigate.
The Tribunal has discretion to depart from Board policy but that discretion should be exercised only in exceptional fact situations. The facts in this case were not sufficiently exceptional as to warrant deviation from the Board policy.
The appeal was dismissed.