Highlights of Noteworthy Decisions

Decision 262 19 R
J. Smith
  • Second Injury and Enhancement Fund {SIEF}
  • Downside risk
  • Reconsideration (error of law)
  • Reconsideration (procedural error) (submissions)

Decision No. 262/19, found the employer was not entitled to SIEF, but did not rescind the 50% SIEF granted by the Board, on the basis that the employer had not been provided an opportunity to make submissions on downside risk. The vice-chair also granted retroactive entitlement to the employer's CAD-7 adjustment to reflect the 50% SIEF already granted by the Board. The Board requested reconsideration of Decision No. 262/19.

The Vice-Chair accepted and applied the analysis in a trio of reconsideration decisions that were based on similar facts and submissions by the Board; Decision Nos. 3196/18R, 3227/18R, and 3512/18R.
The Tribunal is not required to provide notice of downside risk, particularly in cases involving sophisticated litigants and representatives who know or ought to know of a downside risk.
The Vice-Chair noted the employer was not an unsophisticated litigant, and was represented by the Office of the Employer Adviser, an organization routinely representing employers in worker's compensation matters and as such is well-versed in the processes and applicable law. In these circumstances, the employer and its representative would know, or ought to have known, about a potential downside risk in a SIEF appeal. As such no procedural error results from the employer having not been provided with notice of a downside risk by the Tribunal.
The Vice-Chair noted that the Tribunal is required to apply Board policy. The application of Board policy occurred in Decision No. 262/19, in determining that the employer had no entitlement to SIEF cost relief, but then, inconsistently, the decision went on to confirm the SIEF quantum granted by the Board. This result is inconsistent with the application of Board policy and as such is an error in law that is significant to a degree that meets the Tribunal's threshold for reconsideration.
The Vice-Chair noted that the employer's representative chose to make no submissions in response to the request for reconsideration, and found it was appropriate to amend Decision No. 262/19 by giving effect to the findings of that decision in applying Board policy.
The reconsideration threshold was met. Decision No. 262/19 is amended to give effect to the findings contained within it. As a result of the findings in Decision No. 262/19 in applying Board policy, the employer's entitlement to SIEF cost relief is rescinded.