The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel file review was held on August 2, 2001, at the request of the employer.

Issue

Whether or not a penalty under Section 18(4) of The Workers Compensation Act should have been imposed on the employer.

Decision

That a penalty under Section 18(4) of The Workers Compensation Act should not have been imposed on the employer.

Background

On November 2, 2000, the Workers Compensation Board (WCB) received notification by way of a medical report advising that the claimant had sustained an injury on October 30, 2000. The medical report provided a diagnosis of "acute disc lumbar". There was no indication, according to the medical report, that the claimant was losing time from work.

A request was made to the employer on November 2, 2000, for the completion of an Employer's Report of Injury or Occupational Disease that was subsequently received at the WCB on December 2, 2000. In the meantime, the claimant had telephoned the WCB on November 15, 2000, to advise that he remained off work due to the injury. At that time, the WCB requested that the claimant complete a Worker's Report of Injury or Occupational Disease. The claimant's report, dated November 21, 2000, was received by the WCB on November 23, 2000.

A representative of the WCB telephoned the employer on November 17, 2000, with respect to the completion of the employer's report. The employer advised that the individual responsible for the completion of these forms was away from the office for several weeks. It was requested that another employer's report be sent out in the event that the original could not be located. During this conversation, the employer also advised that the claimant was to be laid off from work however, a specific date for the layoff was not known.

Once the employer's report was received, the WCB accepted the claim and extended benefits to the claimant. By letter dated December 15, 2000, the employer was advised that pursuant to the provisions of the Workers Compensation Act (the Act), employers are required to report to the WCB within five business days of becoming aware of an accident. As the employer's report in this case was not received within the specified time period, and as a result a penalty for late reporting in the amount of $150.00 was being assessed.

The employer appealed this decision to the WCB's Review Office. In its letter of appeal dated January 31, 2001, the employer advised that the claimant was being laid off at the time of his injury and therefore, it was not until several weeks later that the employer was made aware that a claim was being established. The letter also advised that the original employer's report that was mailed on November 2, 2000, could not be found which necessitated that another form be sent to the employer. Once the form was received, the employer advised they were unable to get a hold of the claimant in order to obtain the information necessary for the completion of the form.

By letter dated February 22, 2001, the Review Office advised the employer that the penalty for late reporting had been correctly assessed. In reaching this decision, the Review Office stated:

"it is apparent that the employer was at the very least made aware of the worker's injury and the need to send a report through his telephone conversation with the WCB on November 17, 2000. In spite of this, there was a further delay approximating two weeks between that telephone conversation and the ultimate receipt of a fax copy of the report. While the worker may have been difficult to reach to obtain information, there is no documentation on file of any efforts made by the employer to contact the WCB to inform us of this problem."

On June 15, 2001, the employer completed an application to appeal and requested consideration by an Appeal Panel with respect to the above referenced issue. A non-oral file review was convened on August 2, 2001.

Reasons

The employer in this matter is appealing a $150 penalty levied by the Workers Compensation Board for late filing of an employer accident report in respect of a worker injury.

Section 18 of The Workers Compensation Act ("the Act") deals with the employer's responsibility to report a workplace accident to the Board within five business days from the day the worker reports the accident to the employer, or from the day the employer otherwise learns of it. Section 18(2) specifies the required contents of the report, which include the name and address of the worker, the time and place where the accident occurred, the cause and nature of the accident and the name and address of the physician dealing with the worker's injury. It should also be noted that WCB Policy 22.70.30 deals with employer's reporting of injuries.

Briefly, the facts of the case disclose that a worker was injured on October 30, 2000, which was also his last day on the job with the employer because of a layoff. The Worker's Report of Injury form noted that a co-worker was aware of the injury. The worker did not report the accident to the employer at that time, however, or at any time thereafter, even though Section 17 of the Act requires a worker to notify the employer of a workplace injury, including detailed information with respect to the nature and cause of the injury and the time when, and place where, the accident occurred.

A WCB claim was initiated by the worker's physician on November 2, 2000 as a result of his examination of the worker and the history of injury, which suggested that the worker's injuries were work-related. The WCB's first contact with the worker was on November 15, 2000, and it appears from the file the worker completed a Report of Injury that was signed by him on November 21, 2000 and that was received by the WCB on November 23, 2000. This was the first indication on file that the WCB had received any details regarding the circumstances concerning the worker's accident.

A WCB adjudicator first spoke with the accident employer on November 17, 2000, at which time the employer indicated that he was unaware the claimant had been hurt. The employer asked that a copy of the Employer's Report of Injury form to be sent out. He indicated that he may have difficulty finding the earlier copy of the form that had been mailed out, as the designated office person responsible for handling such matters was away for a few weeks.

An Employer's Report of Injury was signed by the employer on November 29, 2000, and faxed to the WCB on December 2, 2000. The WCB later decided that the employer had filed its report late, and assessed the $150 penalty. With respect to the employer's handling of the matter during this period, we note that the employer sent a letter to the WCB on January 31, 2001, which states, in part:

"The fellow who had been unjured (sic) was being layed off at the time of the injury. So I did not know for a few weeks that he was making a workers compensation claim and could not find the form that was mailed to me so I had you mail another one. When we received the letter that was to be filled out, we could not get a hold of him to answer any of the questions that needed to be answered.

We finally talked to a family member and she answered one of the questions that we needed answered".

We further note that WCB Policy 22.70.30, Employers' Reporting Responsibilities - Claims also requires that an employer's report be submitted within five days. According to Section A the 5 day time frame normally starts when a supervisor, first aid attendant or other employer representative first becomes aware of the worker's injuries. The policy deals with circumstances, such as in this case, where the first contact is initiated by the WCB. It states:

"The WCB considers that an accident has been reported by the employer if a memorandum signed by a WCB staff member describes a telephone conversation with the employer, in which details of the accident were confirmed with the employer; however, it is still the employer's responsibility to submit the completed report. If an employer disagrees with the validity of the claim, the report must still be submitted complete and on time, however the employer may attach a statement of disagreement". [emphasis ours]

In the case at hand, we note that the WCB staff member's call to the employer on November 17, 2000, was made prior to the WCB's having received any details of the accident from the worker (whose report was received on November 23, 2000). In addition, the worker never reported the accident to the employer. At the time he contacted the WCB, he was no longer working for the employer.

Under this set of circumstances, we find that the "starting date" requirements of the Section 18 of the Act and the above-noted policy could not have been met. The WCB did not communicate to the employer the "details of the accident" that it would require in order to complete the employer's report of injury form. As such, the employer was not in a position to complete the report to the degree required by Section 18(2) of the Act or comment in any way at all on the worker's claim until it undertook its own investigation. The employer did provide a fully completed Employer's Report of Injury form to the WCB in a timely manner after its investigation, with information which corresponded with the information provided directly by the worker to the WCB.

After having considered all of the evidence, we find that the five day filing period cannot be considered to have started on November 17, 2000, at the time when the WCB staff member spoke to the employer. Accordingly, the employer should not be liable for a late reporting penalty of $150 and its appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of August, 2001