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a. |
Section 39(1)(e) of the Workers Compensation Act requires
the Board to collect sufficient funds to
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provide and maintain a reserve for payment of that portion of the disability
enhanced by reason of a pre-existing disease, condition or disability. |
|
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b. |
Section 39(1)(e) was added to the Workers Compensation Act in 1968; |
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c. |
Section 39(1)(e) gives the Board the discretion to determine how the reserve
under the section will be established and administered; |
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a. |
In 1978, in Decision No. 271, the Commissioners of the Board established
procedures and principles for deciding when Section 39(1)(e) is applicable
to any individual claim; |
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b. |
In Decision No. 271, the Commissioners said Section 39(1)(e) is
fundamentally a rehabilitation measure, giving reassurance to potential
employers of workers with pre-existing conditions, diseases or disabilities
that, in employing those workers, they will not incur undue costs in respect
of possible future injuries; |
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c. |
In Decision No. 271, the Commissioners stated that the procedures contained
therein were effective on March 15, 1978; |
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d. |
One of the procedures set out in Decision No. 271 provided that the
Board would apply Section 39(1)(e) in all appropriate cases without
the need for a request from the employer; |
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e. |
Decision No. 271 also stated that, once a decision was made, the employer
would be notified and given an opportunity to appeal; |
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f. |
In 1984, Decision 271 was modified (by what is now #114.43 of the Rehabilitation
Services and Claims Manual) to provide that employers would be given
notice of a decision only if "relief" was granted or the employer
had requested "relief" under section 39(1)(e); |
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Between 1978 and 1993, the Board in many claims did not consider the application
of Section 39(1)(e) or did not inform employers that a decision had
been made about a claim which concerned them; |
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In 1991, employers began making an increasing number of requests for the
Board to consider the application of Section 39(1)(e) in regard to
specific claims; |
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a. |
In 1993, the Board affirmed that, in all present and future cases, it would
automatically apply Section 39(1)(e) to all appropriate cases; |
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b. |
The Board considered various methods for dealing with the application of
Section 39(1)(e) to the backlog of requests for "relief"
under section 39(1)(e) on claims which had arisen between 1978 and
1993; |
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c. |
In 1995, the Senior Executive Committee of the Board established the Section 39(1)(e)
Historical Relief of Costs Project to deal with the application of Section 39(1)(e)
to temporary wage loss costs on claims between 1978 to 1993; |
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d. |
Permanent disability costs on those claims have been dealt with by the Disability
Awards Department, and not as part of the Historical Relief of Costs Project; |
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The Panel of Administrators requested that the Policy Bureau consult with
employers and workers, |
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1 |
on proposals to bring closure to the application of Section 39(1)(e)
to "historical" claims, |
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2 |
on the application of Section 39(1)(e) to "pre-1978" claims, |
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3 |
on the application of Section 39(1)(e) to "same employer"
situations, and |
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4 |
on the payment of interest on refunds granted pursuant to Section 39(1)(e); |
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On the advice of the Policy Development Consultative Committee, the Policy
Bureau consulted with the employer and worker communities on the issues; |
| 1. |
With respect to all claims where wage loss payments concluded after March 15,
1978 and on or before December 31, 1993 and all claims where pensions
were awarded after March 15, 1978 and on or before December 31, 1993,
and on which the Board has not considered, nor received a request to consider,
the application of Section 39(1)(e): |
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a. |
the administration is directed to provide notice, within 3 months of
the date of this resolution, to all employers who, according to the Board's
records, have such claims to which Section 39(1)(e) could be applied
to result in a financial benefit to the employer; |
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b. |
the notice shall be sent by regular mail to each employer, identified under
(a), at the address of the employer on file with the Assessment Department; |
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c. |
employers so notified will have not less than 90 days and not more
than 180 days from the date the notice is mailed to them to
make a request in writing for the Board to consider the application of Section 39(1)(e)
to specific claims; |
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d. |
the Board will not apply Section 39(1)(e) to a claim unless an employer
makes a request in writing to the Board for "relief" in respect
of that claim within the time specified above, or unless the Board fails
to mail a notice to the employer as specified above; |
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e. |
the administration will have satisfied the requirement, set out in this
resolution, to provide notice to an employer if a notice is mailed to the
employer at the address on file with the Assessment Department, regardless
of whether the employer actually receives the notice. |
| 2. |
The Board will not apply Section 39(1)(e) to wage loss payments which
concluded prior to March 15, 1978 and to pensions which were awarded
prior to March 15, 1978, unless it is established that, prior to that
date, the employer made a request to the Board to consider the application
of Section 39(1)(e) to those specific claims, and the Board has not
made a decision on that request. |
| 3. |
a. |
The Board will not apply Section 39(1)(e) in "same employer"
situations where the date of the injury or disease, for the injury or disease
on which "relief" is sought, was prior to July 1, 1998. "Same
employer" refers to situations where the Board determines that the
worker's pre-existing disease, condition or disability arose out of and
in the course of employment with the same employer as the injury or disease
which is being considered for "relief" under Section 39(1)(e). |
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b. |
The Board will apply Section 39(1)(e) in "same employer"
situations, as defined above, where the date of injury or disease, for the
injury or disease on which "relief" is sought, is on or after
July 1, 1998. |
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c. |
The date of the disease, for the purposes of this section of the resolution,
is the date that the first claim document is registered at the Board. |
| 4. |
With respect to all claims where wage loss payments concluded, or a pension
was awarded, after March 15, 1978 and on or before December 31,
1993, and on which an employer makes a request in writing for the Board
to consider the application of Section 39(1)(e); |
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a. |
the Board will pay interest on any resulting refund effective from the date
of the employer's request; |
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b. |
interest on all such refunds will be paid at the same interest rate as interest
paid on retroactive payments of compensation under #50.00 of the Rehabilitation
Services and Claims Manual. |
| 5. |
In the event of a conflict between this resolution and other published policy
of the Governors, this resolution shall prevail. |
| 6. |
This resolution constitutes a policy decision of the Panel of Administrators. |
