Highlights of Noteworthy Decisions

Decision 898 20
28/01/2021
M. Crystal
  • Experience rating (NEER) (retroactive adjustment)
  • Second Injury and Enhancement Fund {SIEF} (severity of accident)
  • Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)

The worker suffered a left knee injury in December 2017. The Board granted the employer 50% SIEF relief, based on an accident of minor severity and a pre-existing condition of moderate medical significance. The employer appealed, claiming 90% SIEF relief and retroactive adjustment of its 2017 NEER assessment.

The worker fell from a low height to the ground and, in addition to hitting his buttocks and head, he landed on his left leg, which was twisted in an awkward position. The Vice-Chair found that the accident was of moderate severity. However, the Vice-Chair agreed with the employer that the worker had a pre-existing condition of major medical significance. The worker had been diagnosed with an ACL tear and was not able to play pivoting-type sports because of the injury. Prior to his accident, arrangements were being made for surgery to repair this problem. Accordingly, the employer was entitled to 75% SIEF relief.
Several Tribunal decisions have followed the approach taken in Decision No. 2113/15R2 regarding retroactive experience rating adjustments. However, other Tribunal decisions have continued to apply the approach of determining whether the employer has exercised due diligence in seeking the SIEF cost relief.
In this case, the SIEF relief was awarded by the Board in November 2018, which was subsequent to the cut-off date of September 30, 2018, for inclusion in the valuation year which ended on that date. Accordingly, the cost relief accrued to the employer for the next valuation year.
The circumstances contemplated in Decision No. 2113/15R2, where a retroactive adjustment was required to ensure that the employer would obtain any benefit from its SIEF award, did not arise in this case. In this case, the employer obtained the benefit of the 50% SIEF award, albeit not in the assessment year it requested.
However, this decision awarded the employer an additional 25% SIEF cost relief. The decision was released in early 2021, and the cost relief awarded in this decision arose after the employer's final NEER assessment in relation to the worker's accident, which closed on September 30, 2020. Without a retroactive adjustment, the employer may not obtain the benefit of the additional 25% cost relief.
The employer was diligent in seeking the cost relief in the first year after the accident. The employer was entitled to a manual retroactive adjustment to its final NEER assessment in relation to the worker's accident in December 2017, to permit the employer to obtain the benefit of the additional 25% cost relief awarded in this decision.
The appeal was allowed in part.