Highlights of Noteworthy Decisions

Decision 329 20
24/03/2020
G. Dee
  • Experience rating (NEER) (retroactive adjustment) (implementation of award)

The employer appealed a decision of the Appeals Resolution Officer denying retroactive adjustment of the employer's NEER experience rating account to reflect 75% SIEF relief granted by the Board with respect to an injury suffered by a worker.

The worker suffered the injury in August 2010. The employer requested SIEF relief in April 2012, but it was denied by the Board. The employer appealed that decision in May 2012, but did not pursue the appeal until November 2016. The Board again denied SEIF relief. The employer appealed again, and the Board granted 75% SIEF relief in June 2017, but denied retroactive adjustment of the employer's experience rating account.
The employer applied for SIEF while the NEER window was still open. If SIEF relief had been granted when it was initially requested, the employer would have been entitled to an adjustment of its NEER record. The employer also appealed the denial of SIEF relief within the statutory time limits that apply to such appeals. Those actions were taken in a timely manner.
The employer delayed from May 2012 until November 2016 in the pursuit of its appeal at the Board. There was a lack of due diligence by the employer in delaying more than four years in pursuing the appeal. However, as noted in Decision No. 2113/15R2, the employer had a right to appeal a decision of the Board and, while time limits apply to the filing of an appeal, there is no provision in the Act that allows for an employer to be denied its appeal rights due to a lack of due diligence in its pursuit of SIEF relief.
The employer made its SIEF request while the NEER window was open. The employer pursued its appeal at the Board within statutory time limits. Once the employer received a favourable result from that appeal, it was entitled under the WSIA to have that result effectively implemented even if that required a retroactive NEER adjustment.
The appeal was allowed.