Highlights of Noteworthy Decisions

Decision 1409 18 R
E. Smith
  • Reconsideration (Board policy)
  • Reconsideration (standard of proof)
  • Second Injury and Enhancement Fund {SIEF} (preexisting condition)

The employer applied for reconsideration of Decision No. 1409/18, in which the original vice-chair denied the employer SIEF relief.

The original vice-chair noted that Board policy allows for SIEF relief when the worker had a pre-existing disability that required treatment and disrupted employment pre-accident, and that the disability caused or contributed to the accident, or when the worker had an underlying or asymptomatic condition that became manifest post-accident, and that the condition prolonged or enhanced the recovery or claims period. The original vice-chair found that the worker had a pre-existing disability for which the worker received treatment but that it did not disrupt employment. The original vice-chair also indicated that, in the case of a prior disability, the disability must be a direct causal factor in the mechanism of the accident, implying that it would not be sufficient for the pre-existing disability to be a factor that enhances or prolongs the injury resulting from the accident.
The employer applied for the reconsideration relying on Decision No. 2970/18, which found that the provisions of the policy should be interpreted broadly, noting inconsistency in the Board policy regarding use of the terms disability and condition, and noting that strict application of the policy definitions creates a gap in SIEF entitlement in the case of a prior symptomatic disability that has not disrupted employment irrespective of the causal role in the subsequent compensable injury.
The Vice-Chair referred to Decision No. 1119/04R, which stated that the fact different Tribunal decisions differ in their interpretation of the provisions of a Board policy, is insufficient for an interpretation to be considered an error in the content of a decision for the purposes of the Tribunal threshold test for reconsideration.
In this case, there has not been a consistent prior line of Tribunal decisions from which Decision No. 1409/18 diverged. Tribunal decisions have been inconsistent in their approach to the SIEF policy. Decision No. 2970/18 was the first Tribunal decision to fully and expressly address those inconsistencies. That decision was issued after Decision No. 1409/18.
While the Vice-Chair found that there are difficulties in the approach adopted in Decision No. 1409/18, there was insufficient basis to re-open the original decision. The employer did not raise the issue of interpretation of the policy at the original hearing, and there are prior Tribunal decisions interpreting the policy in the manner of the original decision.
The Vice-Chair preferred the interpretation in Decision No. 2970/18, and it remains for future Tribunal decisions to address how the inconsistencies in the policy will be interpreted or applied. However, there was insufficient basis for reconsideration of the original decision.
The application to reconsider was denied.