Workers' comp tribunal looks at criteria for delayed benefits and employer's 'prejudice'
What happens if a claim for disability is filed after more than 20 years?
Before his retirement in 1994, a New Brunswick employee worked for roughly 28 years in industries where he was exposed to occupational noise, such as saws, machinery, engines, etc., without hearing protection.
According to records, his hearing was first tested in November 2010, which showed “mild to moderate S/N [sensorineural] loss bilaterally.” A second audiogram was then conducted in June 2018, which showed “severe SNHL” [sic] in the right ear, and “moderately severe SNHL.”
That same year, the worker applied for benefits concerning his hearing loss. However, the Workplace Health, Safety and Compensation Commission of New Brunswick (WorkSafeNB) denied his claim because his “late notification of possible hearing loss has caused prejudice to his former employer.”
“The Workers’ Compensation Act requires workers to notify their employer of hearing loss as soon as practicable. You had an audiogram in November of 2010 that noted you have hearing loss and a history of occupational noise exposure; at that time, you did not notify your employer or make an application to WorkSafeNB,” the Commission said.
“Further, at the time of making your application, you had been retired for twenty-four (24) years,” it noted.
“Given the delay in reporting, it is reasonable to conclude that the information available to the employers to defend the claim against them is compromised. This could include, but is not limited to, witnesses no longer being available, or their memories having faded, changes to the worksite or worksites no longer existing. When an employer’s ability to defend against a claim has been compromised, a prejudice exists,” the Commission said at first instance.
HRD recently reported on “invisible disabilities.” The latest survey claims almost half (43 per cent) of employees with a less visible disability haven’t disclosed it to their employer.
The employee’s appeal
On appeal, the worker argued that such “prejudice” does not exist. So, the Workers’ Compensation Appeals Tribunal re-examined his case and assessed the worker’s circumstances.
It found that there was a policy in place that applied to the worker when he filed his application:
“When a worker fails to notify the employer of an accident as soon as practicable and before voluntarily leaving the employment relationship with the accident employer, the claim can only be adjudicated for entitlement to benefits if WorkSafeNB determines that the late notification has not prejudiced the employer.
Employers are considered to be prejudiced when, because of the late notification of the accident, information or evidence has been compromised or is unavailable which would cause the employer difficulty to defend against the claim.”
It then reversed its original ruling and entertained the worker’s appeal.
“The wording of the policy clearly requires positive action on the part of the tribunal in assessing possible employer prejudice,” the Feb. 15, 2023 decision said.
“And there is no evidence of any information to determine if information or evidence has been compromised or is unavailable due to the late notification of the accident.”
Although the worker’s claim took more than 20 years to be filed, the tribunal explained that “the passage of time is insufficient to establish the existence of prejudice.”
Thus, it ruled that the application should be accepted. The case is now awaiting further determination if the worker is indeed entitled to the benefits and compensation under the law.
Meanwhile, a recent survey found that one in four workers don’t think their employer cares about their well-being — the lowest percentage in nearly a decade.
