SUMMARY DECISION NO. 2362/99. Experience rating (NEER) (three year window).

Transcription

1 SUMMARY DECISION NO. 2362/99 Experience rating (NEER) (three year window). The worker was injured in August The employer requested SIEF relief in March 1995 and September 1995, but it was denied. In August 1996, the Board granted 50% SIEF relief. The employer appealed a decision of the Board denying retroactive adjustment of the employer's NEER account to reflect the SIEF relief. There was no error within the meaning of Board policy. There was a lack of due diligence by the employer until March The facts of the case reflected many of the anticipated delays and reversals of adjudication present in a significant number of cases. The employer was not entitled to the retroactive adjustment. The appeal was dismissed. [6 pages] DECIDED BY: Nairn DATE: 25/01/2000 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: Decision No. 1085/98 (1998), 48 W.S.I.A.T.R. 175 refd to; Decision No. 2135/98 (1999), 49 W.S.I.A.T.R. 191 refd to; Decision No. 1256/99 consd BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual, Document No

2 2000 ONWSIAT 164 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2362/99 [1] This appeal was considered in Toronto on December 21, 1999, by Tribunal Vice-Chair R. Nairn. THE APPEAL PROCEEDINGS [2] The employer appeals the decision of Experience Rating Officer, Robert Harper, dated February 18, That decision concluded that the employer was not entitled to a retroactive adjustment of its NEER account to reflect the 50% Second Injury and Enhancement Fund ( SIEF ) relief granted in this worker s claim. [3] The appeal was considered by means of written submissions. The employer was represented by Mr. Robert Wood, a consultant. The worker, whose claim forms the basis of this appeal, did not participate. THE EVIDENCE [4] The material in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1) was considered. In addition, I considered: Exhibit #2: Addendum No. 1A dated January 13, 1999; Exhibit #3: Addendum No. 1B dated January 13, 1999; Exhibit #4: Addendum No. 3 dated January 13, 1999 and, Exhibit #5: Written submissions from Mr. Wood dated September 27, THE ISSUES [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 50% 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 upon it in reaching my decision: According to the Worker's Report of Injury, at the time of the incident under consideration here, the worker was employed as a "Developmental Care Worker" with the accident employer. On August 2, 1992, while carrying bags of laundry, the worker's left foot was struck by a closing door.

3 Page: 2 Decision No. 2362/99 The initial diagnosis by Dr. E. Stepita was a "lacerated left achilles tendon/lacerated left heel". The worker was placed in a below knee cast. Dr. Stepita advised that a complete recovery was expected. In the Employer s Reporter Accident dated April 8, 1992, the employer answered "No" to the question "To your knowledge, has the worker had a prior similar disability?". The claim was recognized as compensable by the WSIB (the Board ) and the worker received various periods of temporary disability benefits. In a report dated July 20, 1993, Dr. A. Sarne noted in part: This 30 year old lady was originally seen at Stoney Creek Emergency Clinic last August when the Emergency physician drained a bursa over her left heel. Ever since then, she has developed a nodule at the back of the calcaneum reminiscent of a Haglund s deformity. X-rays taken today show pronounced heel spur. On July 22, 1993, Dr. Sarne operated on the worker s left foot. The pre-operative diagnosis was "left foot Haglund s deformity with heel spur and bursa". The operation was described as "excision of bursa and heel spur, left heel". On November 24, 1994, the employer's representative wrote to the Board asking for file access indicating that they were considering objecting to a decision which granted ongoing benefits from October 7, In a letter dated March 1, 1995, the employer's representative wrote to the Board requesting 50% SIEF relief suggesting that the worker's recovery was "significantly enhanced and prolonged" because of an "underlying" condition the Haglund s deformity. The question of entitlement to SIEF relief was referred by the Claims Adjudicator to Dr. R. Redfearn of the Board who indicated in Memo No. 22 dated March 13, 1995: I would agree there does not appear to myself to be a pre-existing condition here. Dr. Sarne indicated that the findings were reminiscent of a Haglund s deformity, noting that there was a nodule at the back of the calcaneous. This says to me this was not necessarily a pre-existing condition, but reminded him of such. On this basis, I would not consider this to be pre-existent. I do note there was a healed spur in the area of the bursa, and I would ask if there was an x-ray taken at the time of the injury. This questions if this healed spur which is pressing on the bursa was existing condition or not. The doctor dictated his original note on July 20, 1993 and the injury occurred on August 2, So I feel the healed spur may well be part of this claim. In Memo No. 23 dated April 11, 1995, the Claims Adjudicator s supervisor confirmed the decision to deny SIEF relief noting "there is no indication that the worker actually has Haglund s deformity". The denial of SIEF was confirmed in a letter to the employer dated April 13, In a letter dated September 12, 1995, the employer's representative requested that the Board review its decision to deny SIEF relief, suggesting that a pre-existing condition was present at the time of the injury. The Claims Adjudicator in a letter dated November 16, 1995, confirmed the denial of SIEF relief suggesting: Therefore, since there is no evidence that there was any prior problem with the worker s heels prior to the injury under this claim, the assumption must therefore be made that the Haglund s deformity must have been a result of the original injury under this claim.

4 Page: 3 Decision No. 2362/99 By way of a letter dated June 12, 1996, the employer s representative filed further submissions on the question of SIEF relief. The Claims Adjudicator requested an opinion from Dr. N. Preradovic of the Board. Dr. Preradovic asked (in Memo No. 31 dated June 25, 1996) that the original x-ray reports be obtained before a definite opinion could be offered. Ultimately, it was determined that no x-rays had been taken at the time of the accident and matter was returned to Dr. Preradovic who indicated in Memo No. 35 dated August 21, 1996: Most unfortunately, we cannot have the advantage of viewing the x-ray report from the time of the initial injury; therefore, we cannot say anything for sure. The best I can come up with is that noting the size of the bony exostosis that was found during the surgery, there is a possibility that it may have been pre-existing. With all these uncertainties, the best I could come up with would be to say that maybe we are dealing with a pre-existing condition of maximum minor significance. As a result of Dr. Preradovic's opinion, the employer was advised by a letter dated August 27, 1996, that 50% SIEF relief was being granted on all claim costs. In a letter dated September 11, 1996, the employer's representative contacted the Board requesting that its NEER account be adjusted to reflect the 50% SIEF relief granted in this claim. By way of a letter dated February 18, 1997, Robert Harper, an Experience Rating Officer with the Board, replied: A review of the claim shows an accident data of August 2,1990 (sic). The final NEER valuation for 1992 claims was September 30, Any cost adjustment, whether it is a debit or credit, made after the final NEER valuation will have no effect on the firms NEER record. In a letter dated August 27, 1996, Ms. R. Blaschuk, Claims Adjudicator, granted SIEF relief of 50 percent of all costs of the claim. Since the decision to award SIEF relief was made after the claim s final NEER valuation, a manual adjustment of the firm s NEER record cannot be considered. In a letter dated November 24, 1997, John Slinger, the Director - Appeals Branch, agreed to treat the February 18, 1997, decision of Robert Harper as a "final" decision of the Board for appeal purposes. (ii) Relevant law and policy [7] In accordance with subsection 126 (2) of the Workplace Safety and Insurance Act, 1997 (the WSI Act), the Board has identified the following policies as applying to the subject matter of this appeal: (iii) Policy Package # 123 Revision # 3 NEER Adjustments "Adjustments to NEER Refunds and Surcharges" "Introduction to Experience Rating" "New Experimental Experience Rating Plan (NEER)" The employer s submissions [8] The employer s written submissions contained in Exhibit No. 5 have been reviewed. They suggested in part that: It is respectfully submitted that notwithstanding such equivocation on the medical adviser s part before finally granting Second Injury and Enhancement Fund relief, that

5 Page: 4 Decision No. 2362/99 nonetheless the employer's representative pursued the issue of SIEF relief with all due diligence. It is further submitted that the time span between the first requesting of access to the worker's claim file in November 1994 and the ultimate granting of Second Injury and Enhancement Fund relief on August 27, 1996, was not the fault of the employer or its representative. Moreover, it does not appear that the worker s disability was unusually complex but rather there was an absence of initial x-ray reporting which would have allowed more definitive conclusions earlier on as to whether or not the "Haglund s deformity" was in fact pre-existing although as noted the sheer size of the bony spur led Dr. Preradovic to conclude that the condition was likely pre-existing. [9] The employer s representative also suggested that the decision ought to be made in accordance with the real merits and justice of the case. (iv) Conclusions [10] Document No of the Board's Operational Policy Manual dealing with "Adjustments to NEER Refunds and Surcharges" provides that retroactive NEER adjustments will be permitted where the Board has made an error that can be characterized as clerical (i.e. typographical), due to data processing or caused by an omission (i.e. the failure to process or act upon a decision). The policy also indicates that adjustments can be made as a result of a "retroactive adjustment; court judgment or reversal of entitlement in a claim". In addition, the policy notes that "every decision made pursuant to this policy must be made in accordance with the real merits and justice of the case". [11] A review of the facts of this case suggests that they do not fall into any of the circumstances outlined above, permitting a retroactive adjustment. To use the words of Tribunal Decision No. 2135/98 "there is nothing in the Board's conduct of this case which can be characterized as a clerical or mechanical error which would permit a cost adjustment". That being said however, prior Tribunal decisions have suggested that Panels may consider (as Board policy suggests) the real merits and justice of the case. In other words, we can examine the conduct of the Board and the employer to determine whether there is something exceptional about it which would suggest a retroactive recalculation of NEER costs should be granted. Tribunal Decision No. 1085/98 suggested that when making a decision based on the "real merits and justice" the Panel ought to consider whether there was a "manifest unfairness" to the employer. [12] After reviewing all of the material before me, I am not satisfied on a balance of probabilities that this is a case in which the real merits and justice dictate that the employer should be entitled to a retroactive adjustment of its NEER costs. In reaching that conclusion, I have noted in particular that it was not until March 1, 1995, (2.5 years after the accident) that the employer first asked that the Board consider the question of SIEF relief. Given that delay, I do not believe that it can be said that the employer acted with due diligence in pursuing this matter. [13] As to the Board s conduct, I would suggest (as was the case in Tribunal Decision No. 1256/99) that it reflects many of the anticipated delays and reversals of adjudication present in a significant number of cases. Decision No. 1256/99 went on to note: Often, these delays will work to the benefit of the employer. That is, frequently, initial entitlement or a recurrence will be denied the worker and, by the time the appeal process has concluded with a favourable decision, the employer s NEER window is closed and

6 Page: 5 Decision No. 2362/99 the employer bears none of the claim s costs. In my mind, there is a certain and necessary element of give and take to this system. I am mindful that the finality of the Board policy with respect to the three-year window can protect as well as cut the employer. In my view, this is simply one of those situations where, owing to the fault of no one in particular, the system "cut" the employer rather than "protected" it. I cannot see that there is a manifest unfairness to this or circumstances inviting an overriding of the plain meaning and import of the applicable policy. At the end of the day, one cannot, without real cost to the system s integrity, regularly grant a retroactive adjustment or "give" in the employer's favor when there is no corresponding ability to "take". If the instances of retroactive adjustments are not rigorously controlled - as they currently are by the Board policy - the system would not be sustainable. I cannot conclude the circumstances of this case constitute an instance where a retroactive adjustment would be appropriate. [14] Again, in my view, there is nothing in the Board s handling of this case that I would view as extraordinary. This includes the time it took to finally grant SIEF relief, the differences of opinion between Drs. Redfearn and Preradovic and the unavailability of an initial x-ray report. These are matters which, for better or worse, are part of a significant number of cases. The employer, in its submissions, suggests that the delay between the initial request for SIEF and the ultimate decision to grant it, was not the fault of the employer or its representative. As was the case in Decision No. 1256/99, I would suggest that this is simply one of those situations where, owing to the fault of no one in particular, an SIEF decision was not made within the required NEER time limits. As a result, I am not satisfied that there is any manifest unfairness to the employer in this case which would lead me to grant a retroactive NEER adjustment. THE DECISION [15] The employer s appeal is denied. DATED: January 25, 2000 SIGNED: R. Nairn