Published on: 16/06/2015

The Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently issued a decision dealing with the WSIB fatal claim premium adjustment policy that penalizes an employer by removing its rebate in the year the employer has a fatal accident. This policy has been applied in many tragic situations where a worker has died as a result of a workplace incident. To penalize the employer for a fatality, the WSIB removes the rebate the employer would otherwise receive for its good experience rating performance prior to the fatality.

This recent decision stems from a 2008 incident, where an employer was expecting to receive a premium rebate of more than $1,000,000 under the NEER experience rating system, based on its safety record between 2005 and 2007. On October 30, 2008, just prior to the rebate being issued, a worker died as a result of a workplace accident. The WSIB consequently cancelled the rebate in accordance with its fatal claim policy. The employer appealed this cancellation as being unfair and unjust, particularly in light of the received $300,000 fine and $75,000 victim surcharge under the Occupational Health and Safety Act from the Ministry of Labour. The employer submitted that it should retain its 2008 NEER rebate based on the merits and justice and the circumstances of the case (details of the case and appeal can be found at: WSIAT Decision 2346/12 I2).

The WSIB’s fatal claim policy, however, is very clear with respect to its intent. Once a traumatic fatality occurs, a premium increase is applied equivalent to the amount of any NEER or CAD-7 refund, no matter the size of the company or of the expected rebate. The policy contains no provisions to indicate that either the circumstances of the accident or the circumstances of the employer are to be considered when determining whether the remove the employer’s earned rebate.

This WSIAT decision removes any future opportunity for an employer to argue that the WSB’s fatal claim policy allows for relief from forfeiture of a rebate when the employer has been convicted for a breach of the OHSA. The employer is therefore not entitled to relief from the application of the fatal claims policy based upon the merits and justice of its situation as it relates to its accident performance record and the foreseeability of the worker’s death.

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