Highlights of Noteworthy Decisions

Decision 381 20
15/04/2020
E. Smith
  • Experience rating (NEER) (retroactive adjustment) (implementation of award)

Following a claim granted to a worker the employer requested SIEF which was denied on December 13, 2011. This relief was requested again on February 27, 2012, citing new medical reporting and grounds for relief. This request was denied on May 4, 2012. A request for reconsideration was denied on June 27, 2012. The denial of SIEF relief was not appealed at this time.

The NEER window for adjustments to the 2012 NEER assessment closed on September 30, 2015. On the date that the NEER window closed, on September 30, 2015, the employer again sought reconsideration of the prior SIEF decision. The request was for the operating branch to reconsider the prior denial. This request was denied on October 5, 2015.
The employer appealed on February 3, 2016, and in decision dated April 11, 2016, was granted SIEF relief. This was six months and 11 days after the NEER window closed.
The employer then applied for a retroactive adjustment to its 2012 NEER assessment, which was denied because the ARO decision was made after the September 30, 2015 closure of the NEER window.
The representative appeals for a retroactive adjustment of its 2012 NEER account, submitting exceptional circumstances.
The Vice-Chair considered Decision No. 2113/15R2, noting that it appeared to accept that the lack of time limits prior to 1998 supported the view that the policy's time limits on NEER adjustments were not beyond the authority of the Board, subject to exceptional circumstances and the principles of due diligence. A different view of the legislation in that time period would have led to the possibility of NEER adjustments 10 or 20 or 40 years after the usual closure date, which might have been impracticable.
The Vice-Chair was of the view that the introduction of a statutory time limit to appeal changed the practical implications of the retroactive NEER policy because of the extent to which the otherwise open-ended appeal rights became more limited. The introduction of time limits into the Act did not directly address the substantive nature of an appeal process.
Therefore, if the statutory right to appeal includes an implicit right to have the Board implement the Tribunal decision, without limitation, that entitlement to receive the benefit of the award must be understood to have existed under the pre-1997 Act as well as under the WSIA. Consequently, Decision No. 2113/15R2 is best read as implicitly overruling the prior Tribunal decisions such as Decisions No. 591/94 and 1085/98.
Having considered how the principles of Decision No. 2113/15R2 and the NEER process applied to this case, the Vice-Chair noted that the appeal before her was distinguishable from the facts of Decision No. 2113/15R2 because the employer did not appeal the SIEF decision of the Board until after the NEER window had already closed.
The Vice-Chair found however that exceptional circumstance existed in this case.
The first relevant fact was that the employer made a request for reconsideration of the Board's prior denial of SIEF on the day that the NEER window closed, on September 30, 2015. Therefore, the effects of any lack of due diligence prior to that date were appropriately waived with respect to the application of the NEER policy.
With respect to the time period for the processing of the appeal after the request was received by the Board on September 30, 2015, the entire time was due to adjudicative delay.
The Vice-Chair agreed with Decision No. 2113/15R2 that, given the legislative time limit, the test of due diligence generally did not require more of an employer than to meet the six-month deadline, in this respect. There may be circumstances involving lengthy or unexplained delay by a party during an appeal process, requiring those facts to be addressed, but such facts were not before the Vice-Chair in this appeal. The full time period of the delay after the 2015 request for reconsideration was not long in this case.
The employer was granted the retroactive adjustment to its NEER account.