Highlights of Noteworthy Decisions

Decision 2970 18
03/07/2019
E. Smith
  • Board Directives and Guidelines (SIEF) (preexisting condition)
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition)
  • Statutory interpretation (principles of)

The worker suffered a left knee injury in March 2015. The Board granted the employer 50% SIEF relief based on an accident of minor severity and a pre-existing condition of minor medical significance. The employer appealed, requesting 90% SIEF relief.

A strict application of the definitions of pre-accident disability and pre-existing condition in Board Operational Policy Manual, Document No. 14-05-03, on Second Injury and Enhancement Fund, creates a gap in SIEF entitlement in the case of prior symptomatic conditions/disabilities which have not disrupted employment. A pre-existing condition does not fall within the definition of a pre-accident disability when it has not disrupted employment. However, if it has been previously symptomatic (without evidence of disruption of employment, it also does not fall within the definition of a pre-existing condition which became symptomatic only post-accident.
A strict interpretation of the definitions would have led to exclusion of the worker's pre-existing condition from any consideration for SIEF relief. In granting 50% SIEF relief, the ARO did not apply a strict interpretation.
Given inconsistencies in the use of the pre-existing condition/disability in the policy, the Vice-Chair requested submissions from the Board and from the Tribunal Counsel Office. The Board responded that it recognizes places in the SIEF policy that would benefit from some clarification, and noted that the SIEF policy was on its list of policies to review. The Board did not provide any submissions on how the provisions in the policy should be reconciled.
The Vice-Chair reviewed the submissions of the employer and of TCO.
The Vice-Chair agreed with the employer and TCO that the language used in the body of the SIEF policy is not consistent with the wording of the definition sections, and requires a broader reading in order to achieve a fair and consistent result.
The preferable solution is to interpret the definition sections as not covering the field of all types of pre-existing conditions that are included by implicit reference in the body of the policy. A fair interpretation of the policy is that the body of the policy applies to a pre-existing condition/disability that has been previously symptomatic irrespective of whether it has disrupted employment even though no definition section has been included for that type of pre-existing condition.
The SIEF policy is best understood to have two distinct objectives: providing employers with financial relief when a pre-existing condition (broadly interpreted) enhances the extent of or prolongs the recovery from a work-related injury; and encouraging employers to hire workers with disabilities. These goals can only be accomplished by reading the term condition in the body of the policy broadly, in its common used, to include both pre-existing conditions and disabilities as defined and also pre-existing symptomatic conditions/disabilities that have not disrupted employment.
This was not an appropriate case in which to rely on the merits and justice provisions of the Act. The merits and justice provisions apply to override a policy when there are exceptional facts that were likely not intended to be addressed by the policy. That was not the situation in this case where, to the contrary, the facts are not exceptional or rare but the provisions of the policy are inconsistent in how the facts are addressed.
Applying the analysis and conclusions above to the facts of the case, the Vice-Chair found that the employer was entitled to 90% SIEF relief. The worker had a prior knee dislocation that had not disrupted employment and underlying osteoarthritis that was not actively symptomatic in the time period prior to the compensable accident. Accepting the broad definition of the term condition, the Vice-Chair found that the worker had a major pre-existing condition. The pre-existing condition impacted both as a causative factor in the extent of the injury and by prolonging the period during which the worker was off work.
The appeal was allowed.