The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 26, 2000, at the request of the employer.

Issue

Whether or not the employer should be assessed a penalty for late filing.

Decision

That the employer should be assessed a penalty for late filing.

Background

On November 9, 1999, the claimant submitted an application for compensation benefits for a lower back injury which occurred during the course of his employment as a police officer on October 16, 1999. The employer's report of injury for the same accident was received at the Workers Compensation Board (WCB) on December 3, 1999. On December 8, 1999, the employer was charged a penalty of $150.00 for late reporting in accordance with Section 18(1) of the Workers Compensation Act (the Act).

On December 13, 1999, the employer's representative asked a WCB case management supervisor to determine the appropriateness of the $150.00 penalty. The employer's representative stated that he was not sure as to the exact reasons for the delay in reporting, however, he assured that the claimant received full salary continuation during his period of disability. According to the employer's representative, the purpose of section 18(1) was to prevent financial hardship that can accompany a delay in reporting. As no financial hardship existed, he did not believe the purpose of the fine to be appropriate.

In response to the employer's appeal, the supervisor of case management stated, in part, the following in a letter dated January 17, 2000:

"One of the benefits of prompt reporting is to prevent financial hardship to injured workers. This, however, does not encompass the entire intent of the section of the Act. Prompt reporting also enables the Workers Compensation Board to make more timely decisions which in turn leads to prompt payment of service providers who are offering services to injured workers. This also applies to providing expedient repayment of expenses incurred in relation to workplace accidents."

In view of the above, the supervisor was of the opinion that the application of the penalty for late reporting was appropriate.

On March 29, 2000, the employer's representative appealed the supervisor's decision to Review Office. The employer's representative argued that the late filing penalty was inappropriate and should be rescinded as the worker was not subjected to any financial hardship as a result of the oversight.

In a decision dated April 7, 2000, Review Office determined that the imposition of the penalty prescribed under Section 18(1) of the Act was confirmed. Review Office accepted the comments of the employer in their correspondence of March 29, 2000. However, Review Office stated that the employer was aware of the legislated requirements of Section 18(1) to report the accident as soon as they were notified of such an event occurring. It appeared to Review Office that it was approximately six weeks after the fact that the WCB finally received its report. In reviewing WCB policy and legislation, Review Office concluded that it was unable to waive the prescribed penalty.

On April 19, 2000, the employer appealed Review Office's decision and a non-oral file review was arranged. On May 15, 2000, the employer's representative provided a written submission to the Appeal Panel for consideration.

Reasons

The issue in this appeal is whether or not the employer should be assessed a penalty for late filing of a report of injury. The relevant subsections of The Workers Compensation Act (the Act) are 18(1) which provides for the reporting of an accident by an employer; 18(4) which provides for a penalty as prescribed by regulation and 18(5) which provides for relief from penalties. Regulation 280/91 provides:

Penalty for failure to report accident

2. The penalty that the board may impose on an employer under subsection 18(4) of the Act is $150.00.

We reviewed all the evidence on file and find that the weight of the evidence, on a balance of probabilities, supports a finding that the employer should be assessed a penalty for late filing of an accident report.

We note that the claimant sustained an injury at work on October 16, 1999 and claims to have reported this to his employer immediately. The employer has reported that they were not aware of the accident until November 3, 1999. Regardless, the Employer's Report of Injury was not received by the WCB until December 3, 1999 and therefore there was at least a three week or longer delay.

In considering this issue we note the employer has argued that the penalty assessed by the WCB should be waived as the claimant did not experience any financial hardship resulting from the delay as the worker continued on the employer's payroll while on time loss. The employer has argued that the primary purpose of Section 18(1) is to prevent financial hardship that can accompany a delay in reporting. We acknowledge the employer's submission as to their prior good record of reporting given the size of their work force.

However, we are of the view that the purpose and intent of WCB Policy Section 22.70.30, Employer's Reporting Responsibilities, goes beyond the lack of financial hardship to the worker. Prompt reporting facilitates the WCB's ability to adjudicate claims efficiently and to ensure that any ancillary or associated costs are dealt with in an expedient manner.

We further note that WCB Policy 22.70.30 deals with the circumstances under which a penalty may be waived. It states two criteria that will be considered:

"The WCB will consider the circumstances of the delay as explained by the employer and the consequences of the delay in the adjudication of the claim before applying the penalty. If the delay can be explained satisfactorily, the penalty may be waived." (emphasis added)

In reaching our conclusion to uphold the WCB's decision to assess a late reporting penalty we take special note of the employer's comments in correspondence to the WCB dated December 13, 1999 where the employer acknowledges the delay and indicates being unsure of the exact reasons for the same. We further note in the employer's later submission of March 29, 2000, once again there is no clarification provided regarding the delay. We find that there has not been a satisfactory explanation given for the delay, nor has the employer addressed all the relevant consequences beyond wage loss as set out in the policy, which would allow us to consider waiving the penalty. Therefore the employer's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of June, 2000