The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 23, 2001, at the request of the employer.

Issue

Whether or not the employer must pay a penalty of $150.00 for late reporting.

Decision

That the employer must pay a penalty of $150.00 for late reporting.

Background

On January 15, 2001, the claimant filed a claim for compensation benefits indicating that he pulled a muscle in his lower back on December 5, 2000 from picking up a flow rack. The claimant incurred time loss starting December 5, 2000 and returned to work on December 11, 2000.

The employer's report of injury dated January 15, 2001 was received at the Workers Compensation Board (WCB) on January 17, 2001. It stated that the employer was unaware of any injury.

On January 27, 2001, a WCB adjudicator called the claimant to discuss the claim. The claimant indicated that he told his company dispatcher on the following day that he hurt his back carrying racks and that he would not be at work because of his back injury.

On January 30, 2001, the same WCB adjudicator spoke with the company's dispatcher who indicated that the claimant returned to work on December 11, 2000. The dispatcher said he was aware that the claimant hurt himself at work but not the exact details. He did not think that the claimant was going to file with the WCB so he did not fill out an employer's report. On January 30, 2001, the claim was accepted by the WCB and the claimant was paid 3 days of wage loss benefits from December 6th to 8th, 2001.

In a letter dated February 11, 2001, the employer was advised that the company was being charged a penalty of $150.00 for late reporting pursuant to Section 18(1) of the Workers Compensation Act (the Act). On February 14, 2001, the employer appealed the decision to Review Office.

On March 9, 2001, Review Office confirmed the decision that the employer must pay a penalty of $150.00 for late reporting. Review Office noted the argument that was put forth by the employer's representative that the late reporting penalty was unjust as the worker did not report the injury to the employer and that the employer was not even aware the worker had an injury. Review Office indicated that the file documentation did not support the employer's contention. The WCB adjudicator was able to confirm with the worker and the company dispatcher that the dispatcher was made aware of the injury suffered by the worker shortly after it took place. It was clear to Review Office that the employer knew of the accident and failed to report it in a timely manner as required by Section 18(1) of the Act.

On March 19, 2001, the employer appealed Review Office's decision and requested a non-oral file review. On the application to appeal, the employer indicated the following:

"The worker said he was not going to file a claim with the WCB. He then went and filed a claim 45 days later. If he was going to file, shouldn't he have done that immediately so we could fill out an employer's report immediately. When he did file on Jan. 15/2001, I subsequently filled out the employer's report within 5 days as is policy. I believe there wasn't an error in late reporting."

On May 23, 2001, a non-oral file review took place at the Appeal Commission.

Reasons

This case concerns an employer which, allegedly, failed to file an accident report as required by statute. As a result, the employer was fined $150.00 by the WCB. It is the appeal of this fine that was the subject of a non-oral file review by the panel.

In its appeal submission, the employer stated that it did not file in a timely matter, as it was unaware of the injury. It argued that, as soon as it was made aware - when the worker filed a claim - the employer made its report. It further argued that, given the nature of their work, it is not uncommon, nor unreasonable, for the employer to be unaware of injuries to workers.

For the employer to succeed in this appeal, the panel had to determine that the employer was legitimately unaware of the occurrence of the injury to the worker.

We found that the employer was aware of the injury. The injury occurred on December 5, 2000. The next day, the worker reported to the firm's dispatcher that he would be unable to work for a few days due to an injury suffered when carrying heavy racks the day before. On December 7, the worker attended at a medical clinic for treatment. He returned to work on December 11.

The dispatcher, in conversation with WCB adjudication staff, confirmed that the worker had reported his injury on December 6th and that he was off work until the 11th. We find that the dispatcher's position with the employer meets the requirement of the statute, that the notice is to be given to the employer or superintendent or agent in charge of the work.

It is true that the worker did not file a claim with the Board until January 15, 2001. But, that is within his rights, pursuant to statute -- as long as he reports to the employer within 30 days, he has one year to file a claim. The claim was accepted by the Board and wage loss benefits paid for the days missed.

The statute places a different onus on the employer, which must report the accident within five days of when the worker reports it to the employer. This is particularly important in cases like this, where the worker in fact missed days of work because of the work related injury. It is up to the employer to ensure that its internal procedures meet this onus. We conclude that the employer was aware of the compensable injury and failed to meet the requirements to report.

Accordingly, we uphold the decision of the Review Office and do not allow the appeal.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of May, 2001