WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2005 ONWSIAT 2583 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1767/05 [1] This appeal was considered by means of written submissions on October 28, 2004, by Tribunal Vice-Chair R. Nairn. THE APPEAL PROCEEDINGS [2] The employer is appealing the decision of Ron Lovelock, Director of Prevention Services, dated March 9, That decision concluded that there was no authority under existing WSIB ( Board ) policy which would permit a retroactive adjustment of the employer s NEER account to reflect Second Injury and Enhancement Fund ( SIEF ) relief granted in this worker s claim. [3] The employer agreed to have its appeal considered on the basis of written submissions provided by its representative, Mr. S. Lam, a consultant. The worker did not participate in the proceedings. THE RECORD [4] In considering this matter, I had before me: Exhibit #1: Case Record Exhibit #2: Case Record 2 Exhibit #3: Addendum No. 1 dated May 30, THE ISSUE ON APPEAL [5] The issue to be determined in this case is whether the employer is entitled to a retroactive adjustment of its NEER account to reflect the SIEF relief granted in this worker's claim. THE REASONS (i) Background [6] The following background information is, generally speaking, not contested and I have relied on it in reaching my decision: At the time of the accident under consideration here, the worker was employed as a pick off man in the employer s glass manufacturing business. On November 30, 1996, the worker experienced an onset of pain in his back as he bent over while shovelling. In its Report of Injury/Disease dated December 6, 1996, the employer answered No to the question To your knowledge, has the worker had a previous similar injury/disease? The employer also indicated it had no reason to doubt that the injury/disease was work-related. The injury was initially diagnosed as a lumbar strain.

2 Page: 2 Decision No. 1767/05 The worker s back injury was recognised as compensable by the Board and he was granted various periods of temporary compensation benefits. In a letter dated March 25, 1998, the employer s occupational health nurse requested that the Board consider 50% SIEF relief, noting that the worker s injury was very minor in nature and it was expected he would have a complete recovery. A medical opinion was requested and in Memo #44 dated July 29, 1998, Dr. Germansky of the Board concluded: The degenerative changes at L4-5 on CT scan would represent a minor pre-existing condition. In light of Dr. Germansky s comments, the Claims Adjudicator (in Memo #45) indicated that: Noting the accident history and severity of pre-existing condition, based on MA opinion, would allow 50% SIEF relief to the employer (minor pre-existing and minor accident history). Refer SIEF relief to all claims costs. The employer objected to the quantum of SIEF relief but in Memo #61 dated October 18, 1999, the Claims Adjudicator indicated: [ ] after reviewing the file material, that SIEF relief will remain at 50%. In a letter dated June 10, 2003, Mr. Lam advised the Board: The above 1996 claim was granted 50% SIEF relief; yet, the credits were not applied to all the benefits at the time of the award and before the final NEER review was issued on 30 Sep 99. Due to Board error in not applying the credits before the NEER statement was finalized, we respectfully request a manual adjustment to this claim. Once processed, could you please issue a refund of the credit balance with interest? In a letter dated February 18, 2004, Ms. L. Trotman, an Incentive Program Adviser, denied the employer s request and concluded: According to the WSIB policy entitled Adjustments to NEER Refunds and Surcharges, effective January 1, 1997, it states that the WSIB adjusts the final NEER refund or surcharge for an accident year if: A WSIB error occurred on or before September 30 of the third year after the accident year, and The Experience Rating Section is made aware of the error on or before September 30 of the fourth year of the accident. Since the deadline for making the Experience Rating Section aware of the error on 1996 claims was September 30, 2000, your request cannot be considered. The employer objected to Ms. Trotman s decision and the matter was referred to Mr. Ron Lovelock, the Director of Prevention Services. In a decision dated March 9, 2004, Mr. Lovelock denied the employer s appeal and concluded: I have had an opportunity to review the matter and I am satisfied that there is no authority under existing Board policy which would permit us to grant the adjustment. For this reason, it is unlikely that a favourable resolution to this issue could be obtained through the Board s internal appeal system. I am prepared to treat the decision of February 18, 2004 as the final decision of the Board in order that you might expedite the employer s appeal to the Workplace Safety and Insurance Appeals Tribunal.

3 Page: 3 Decision No. 1767/05 (ii) Relevant law and policy [7] In accordance with section 126 of the Workplace Safety and Insurance Act, 1997, the WSIB has identified the following policy as applicable in this case: Policy Package #123 Policy Package #299 Revision #6 NEER & NEER Adjustments Revision #6 Decision-making [8] In this case, the Board notified the Tribunal that Board Operational Policy Manual Document No , entitled Introduction to Experience Rating ; Board Operational Policy Manual Document No , entitled NEER (New Experimental Experience Rating Plan); and Board Operational Policy Manual Document No , entitled Adjustments to NEER Refunds and Surcharges, applied. [9] Operational Policy Manual Document No identifies four types of circumstances which may lead to a retroactive adjustment. The only one which is relevant to this appeal deals with WCB errors. The types of errors mentioned in the policy which qualify for adjustment are: clerical (i.e., typographical), data processing (i.e., computer related), and omissions (i.e., failure to process or act upon a decision). An adjustment is permitted if the error occurred within the three year valuation period, and the Experience Rating section was aware of the error by September 30 th of the fourth year after the accident year. [10] This policy states that all decisions under the policy must be made in accordance with the real merits and justice of the case. This policy was made on July 25, 1997, and it applies to all decisions made on or after January 1, [11] In determining an appeal on the real merits and justice, Tribunal decisions have found that the question to be asked is whether the application of the policy criteria to a particular employer results in manifest unfairness, which, because of exceptional circumstances, merits a waiver of the usual rules governing retroactive adjustments (see for example Decision No. 1085/98 (1998), 48 W.S.I.A.T.R. 175). In determining what constitutes exceptional circumstances, decisions of the Tribunal have found that the following factors may be considered (see for example Decision No. 591/94 (1995), 33 W.C.A.T.R. 157): 1. whether the employer had acted with due diligence in pursuing a SIEF claim after the employer knew, or ought to have known, of a prolonged recovery period or enhanced disability; 2. the nature of the disability - i.e. whether it involved a longer than usual recovery period; whether it involved a complex condition which made diagnosis and treatment difficult; or whether the pre-existing condition was unknown; 3. whether systemic delay resulted in a final decision outside the three-year window ; and 4. the elapsed time between the NEER cut-off date and the final SIEF decision because a longer elapsed time period could mean a more complex adjustment.

4 Page: 4 Decision No. 1767/05 I agree that these factors are useful in assessing whether the real merits and justice of the case require that an employer be granted a retroactive adjustment of its NEER record. I also agree that the facts on appeal must be sufficiently unique that they can be characterized as fundamentally exceptional. (iii) Submissions of the employer s representative [12] In his submissions dated March 25, 2005, Mr. Lam indicated in part: (iv) This letter is our final submission in response to the Board s decision to deny our request for a retroactive adjustment to our client s Experience Rating assessment, that 50% SIEF was granted on this individual but not reflected on the final NEER statement issued. WSIB Policy # allows for retroactive adjustments beyond the year of the accident if there is exceptional circumstances. In regards to the issue in dispute, we ask the Panel to reference: WCB errors: The type of errors which qualify for adjustments are clerical (i.e. typographical); data processing (i.e. computer related); or omissions (i.e. failure to process or act upon a decision). An adjustment is permitted if the error occurred within the three-year valuation period and the Experience Rating section was aware of the error by September 30 of the fourth year after the accident year. The Board is responsible to ensure proper application of SIEF is applied before the final NEER statement is issued. SIEF is a program to allow cost relief from a pre-existing condition recognizing an employee s inability to return to their normal duties. Recognition of the prior condition was allowed and granted cost relief, within the NEER window. Delays in the processing of the credits were beyond the control of the company, yet, the WSIB is punishing the firm for delays unrelated to their efforts. Our client has exercised due diligence to ensure the WSIB is fully aware of the presence of any pre-existing condition. Understandably, the Board s decision to deny a manual adjustment is unfair to a firm that was not responsible for the delay. Cost relief was granted, but not properly applied to all the benefits prior to closure of the NEER program. This oversight constitutes a WSIB administrative error and Prevention was aware of the error before the fourth year. In essence, the firm should not be penalized for the Board error and ask that a retroactive adjustment be applied on this claim and a refund (with interest) of the credit be issued to the company. Conclusions [13] As noted by Ms. Trotman and Mr. Lovelock, Board policy provides that in order to consider a retroactive NEER adjustment, the Board must be notified about the error that forms the basis of the employer s request, by September 30 th of the fourth year after the accident. In this case, the deadline for making such an application to the Board would have been September 30, Given that the matter was not raised with the Board until Mr. Lam s letter in 2003, Board policy did not permit such an adjustment. [14] That being said, however, Tribunal case law has held that there may be situations where the facts of a case are sufficiently exceptional such that it would be manifestly unfair were an employer to be bound by Board policy and denied a retroactive adjustment. That case law has also held that in considering whether fundamentally exceptional circumstances exist, one must consider both the conduct of the Board and the employer.

5 Page: 5 Decision No. 1767/05 [15] Assuming that the Board erred in failing to properly implement 50% SIEF relief on all the costs of this claim prior to the NEER deadline, I must also consider the conduct of the employer in pursuing this matter. As noted above, it was close to three years after the applicable deadline that the employer first raised the matter with the Board. No explanation was given for this delay. While Mr. Lam may well be correct that the Board has some obligation with respect to ensuring the proper application of SIEF, it is not unreasonable to suggest that the employer also has an obligation to review its accounts and confirm that SIEF has been properly applied. No explanation has been provided as to why this review could not have taken place before [16] Given the employer s lack of diligence in pursuing the matter, I am not satisfied that the facts of this case are sufficiently unique such that they could be characterized as fundamentally exceptional. THE DECISION [17] The employer s appeal is denied. DATED: November 22, 2005 SIGNED: R. Nairn