Highlights of Noteworthy Decisions

Decision 439 20
B. Kalvin
  • Board Directives and Guidelines (experience rating) (NEER)
  • Experience rating (NEER) (active file)

In Decision No. 546/17 (released in March 2017), the Tribunal found that the worker had initial entitlement for a left elbow injury in April 2013. The Board then (in June 2013) granted the worker benefits from April 2013 to September 2013.

The employer now appealed a decision of the Appeals Resolution Officer considering the employer's file to be active in 2013 for NEER assessment purposes.
Board Operational Policy Manual, Document No. 13-02-02, on NEER, provides that a claim is inactive in a given calendar year if the claim draws no benefits. The ARO interpreted the policy to mean that the year in which a claim "draws" benefits is the year in which the benefits are actually paid rather than the year in which the benefits accrue. Since the worker's LOE benefits for the period in 2013 were only paid out in 2017, the ARO ruled that the worker's claim should be regarded as active for 2017.
The Vice-Chair noted that, while some earlier Tribunal decisions adopt the interpretation taken by the ARO, more recently a consensus appears to have emerged which interprets the Board's policy differently than did the ARO. Specifically, these Tribunal decisions conclude that benefits are drawn in the year in which they accrue or are earned rather than in the year in which they are actually paid out.
The Vice-Chair agreed with the consensus in the more recent decisions. The worker's claim should be considered inactive in 2017. The appeal was allowed.