- Jurisdiction, Tribunal (reconsideration)
- Reconsideration (consideration of issue)
- Recurrences (compensable injury)
- Second accident
- Accident (date) (occupational disease)
- Earnings basis (occupational disease)
The worker applied for reconsideration of Decision No. 1318/13, which granted entitlement for occupational asthma. In that decision, the panel noted that the worker's accident date was deemed by the Board to have occurred in 1994. The accident date was not specifically put in issue at the hearing. The worker sought an accident date or new claim for asthma in 2003, rather than 1994. He did not receive benefits before 2003, and his employment earnings were substantially higher in 2003.
The application to reconsider was granted and the worker's appeal was allowed. The worker was advised of the potential consequences of changing the accident date in his asthma claim and confirmed that he wished to proceed with the reconsideration request. The Tribunal had jurisdiction to consider whether the worker's onset of symptoms in 2003 was a recurrence of his previous symptoms or a new accident. The worker had pursued the issue of accident date and earnings basis at the Board, but was told that Decision No. 1318/13 had determined the accident date of May 30, 1994 and it could not be changed. The worker's objection to the accident date could only be addressed through a reconsideration of the Tribunal's decision. Additionally, the question of the appropriate date of accident is an included issue or deep issue in an appeal where a worker is seeking initial entitlement. The threshold test for reconsideration was met. As the date of accident was not brought to the panel's attention, no adjudication of this issue was undertaken in the decision. This was a fundamental error of process in the appeal. The record showed that the worker had been trying to change the accident date at the Board since 2009. On the merits, the worker's appeal was allowed. As there are no statutory provisions for determining the date of accident in a claim, the approach has been set out in Board policy. The relevant policies should be construed in a broad and purposive manner that takes into account the merits and justice of the claim and impact of those determinations on a worker's entitlements. As held in Decision No. 1269/14, determination of a worker's earnings basis for calculating benefits should accurately reflect the income loss related to the injury. The determination of accident date should recognize that both the FEL provisions of the pre-1997 WCA and the LOE provisions of the WSIA were intended to address the economic loss caused to a worker's regular income in the future. It was not in keeping with these principles to choose a notional accident date that leads to a FEL or LOE determination that bears little resemblance to the worker's actual income loss, particularly where the worker was not granted wage loss benefits until years after the deemed date of accident. In this case, the choice of accident date or establishing a new claim had a significant impact on the earnings basis used for the calculation of the worker's long-term wage loss benefit. The worker did not receive any wage loss benefits until 2003. He was employed with a different employer from 1997 to 2003 after the original accident date in 1994, and this employer was identified as the accident employer in his claim. Although he was diagnosed with asthma in 1994, this claim should have been treated as a no lost time claim. He received treatment in 1994 and 1997, but did not seek further treatment until 2003. The evidence indicated that he had increased work duties and exposures in 2000, 2001, and 2002, which caused him to seek treatment and new employment. The exposures with this employer represented a significant new injuring process with an accident date of January 1, 2003. As such, the worker's asthma condition in 2003 was a new claim, rather than a recurrence of his symptoms from 1994.