The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on March 27, 2002, at the employer's request.

Issue

Whether or not the employer must pay WCB premiums from 1998 and 1999.

Decision

That the employer must pay WCB premiums from 1998 and 1999.

Decision: Unanimous

Background

A questionnaire dated November 2, 2000 was sent out to the employer to determine its possible liability under The Workers Compensation Act (the Act). The employer was requested to provide a description of his business activities and to provide workers' earnings for the years 1998, 1999 and 2000.

On December 1, 2000 the appellant called the Workers Compensation Board (WCB) to explain it had no idea that it needed to cover workers. The appellant assumed that WCB coverage was for construction and trucking industries. The appellant provided a description of its business activities and stated that it should not be required to report for previous years. Although it disagreed with the idea of being charged for prior years, the appellant agreed to complete and send in the form.

On December 11, 2001, the employer completed the questionnaire and provided the WCB with a brief description of its business activities including workers' earnings for 1998, 1999 and 2000. The employer indicated it started business in May 1977 and started hiring workers in 1983.

Based on the above information, the WCB registered the employer retroactive to 1998. On January 16, 2001, the employer was charged a total of $2,012.15, which included premiums for 1998, 1999 and 2000 as well as late filing penalties for all three years. On August 8, 2001, the appellant disagreed with the premiums and late filing penalties charged for 1998 and 1999. The case was then referred to the Assessment Committee for consideration.

The Assessment Committee reviewed the employer's file. The WCB sent a questionnaire to the employer on April 6, 2000. The form had been generated as the employer's trade name had been listed in the Manitoba Gazette, a publication of the Manitoba Corporations Branch. The employer was asked to describe its business activities and provide workers' earnings for 1998, 1999 and 2000. A generic copy of the form was provided for the Assessment Committee's review.

On December 19, 2001, the Assessment Committee determined that the employer must pay the WCB premiums for 1998 and 1999 and waived the WCB late filing penalties for 1998 and 1999. The rationale used by the Assessment Committee was as follows:

• in accordance with subsection 80(7) of the Act entitled "Continuing Liability of Employers," employers are responsible to pay the WCB the amount for which they should have been assessed. The Assessment Committee considered the WCB's liability in making its decision. Under the Act, the WCB was required to cover workers in compulsory industries. This included coverage for workers of registered and unregistered employers. Retail was a compulsory industry under the Act. The WCB assumed the liability to cover the employer's workers from the date they were employed. The employer must therefore be held accountable for the corresponding premiums.
  
  
• the decision to waive penalties was based on the employer's particular circumstances. The employer acted in good faith by providing the WCB with workers' earnings information for 1998, 1999 and 2000. The employer also paid their assessment for the 2001 calendar year. The committee therefore waived the employer's late filing penalties for 1998 and 1999.

On January 16, 2002, the employer appealed the Assessment Committee's decision and a non-oral file review was held.

Reasons

The applicant corporation appeals the WCB's decision to charge employer premiums for the years 1998 and 1999. The corporation started its business in May 1977 and began to hire workers in 1983. The employer's business activities fall squarely within the compulsory provisions of the Workers Compensation Act (the Act). Despite this fact, however, the employer was not aware of its responsibility for paying WCB premiums because it argued that it had never been informed or alerted to this requirement.

It would appear that the employer never contacted the WCB to determine its responsibility, if any, under the provisions of the Act. Section 80(7) clearly states that "Where, for any reason, an employer liable to assessment is not assessed in any year, he is nevertheless liable to pay to the board the amount for which he should have been assessed ".

As pointed out in the Assessment Committee's decision, the Act confirms that the WCB is responsible for paying compensation to workers in compulsory industries who become injured while in the course of their employment. And "had a worker been injured prior to the employer (sic) being registered, the WCB would have considered the injured individual a worker" and therefore bound to provide coverage.

Inasmuch as the appellant corporation's business activities come within the scope or jurisdiction of the compulsory provisions of the Act, we find that the employer must pay the WCB premiums for 1998 and 1999. Accordingly, the appeal is hereby dismissed.

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 8th day of May, 2002