Highlights of Noteworthy Decisions

Decision 1640 21
K. Evans
  • Board Directives and Guidelines (SIEF) (severity of accident)
  • Evidence (surveillance)
  • Second Injury and Enhancement Fund {SIEF} (severity of accident)
  • Second Injury and Enhancement Fund {SIEF} (severity of preexisting condition)
  • Words and phrases (expected)

The worker, a truck driver, was driving on a bridge in another country when a tire blew, causing him to veer into the bridge side wall and guard raining. The fuel tank ruptured and caught on fire. The worker exited his truck and received emergency medical treatment for a burn on his arm. The worker was granted entitlement for left forearm severe burn, post-traumatic-stress disorder, and major depressive disorder. The employer appealed a decision of the Appeals Resolution Officer denying entitlement for SIEF relief.

The appeal was dismissed.
The accident was of major severity. The employer and the worker disagreed about the accident details. Based on video of the accident obtained from the foreign transportation department, the employer submitted that the worker exited the truck 3 and a half minutes before it caught on fire. However, the worker stated that the truck caught on fire as soon as it hit the side of the bridge.
In determining the weight to be given to video surveillance evidence, the Tribunal's Practice Direction notes that one factor is the quality and clarity of the surveillance evidence. The video was of poor resolution with obscuring smoke, dust, and flames, and did not clearly show the accident mechanics. As such, significant weight was not placed on this evidence.
Even if the employer's version of the accident was accepted, the accident was still of major severity. The employer submitted that the severity of the accident be determined by actual events and not the potential for injury. However, the SIEF policy uses the words "expected to cause" and not "caused" serious disability, which Tribunal case law has interpreted to mean that an injury was reasonably probable or not unexpected. In this case, where the worker was in proximity of a burning truck on a highway suspension bridge over water, the accident mechanics were more serious and threatening and could be expected to cause serious disability of probable permanent disability.
The severity of the worker's pre-existing condition was minor. While the worker had some pre-existing depressive symptoms, they were minor and overwhelmed by the severity of the accident, which caused a significant psychological condition.
The employer's entitlement to SIEF relief was 0% for a major accident and minor pre-existing condition.