The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 23, 2002, at the request of the appellant.

Issue

Whether or not the Workers Compensation Board should charge the employer premiums for the years 1999 and 2000.

Decision

That the Workers Compensation Board should charge the employer premiums for the years 1999 and 2000.

Decision: Unanimous

Background

In December 2001, the Workers Compensation Board (WCB) was notified that an injury occurred to one of the appellant's workers. As no coverage information was available, the appellant was contacted to determine if it was a compulsory industry.

On December 3, 2001, a WCB staff member documented that the appellant firm had been in existence since 1986/1987. The appellant was a non-profit shelter for abused women which provided counseling and overnight accommodations. It did not provide any medical services or treatment. The appellant was informed that it had been employing workers in a compulsory industry under The Workers Compensation Act (the Act) and that registration with the WCB was mandatory. On December 5, 2001, the appellant was asked to submit a statement of actual earnings for 1999 and 2000, plus an estimate of earnings for 2001.

In a letter of appeal dated December 11, 2001, the appellant's office administrator requested that the WCB waive assessments for the years 1999 and 2000 based on the fact that the appellant was unaware of the requirement to register. The appellant also made note that it was a non-profit organization and that retroactive payment for prior years may cause undue financial hardship on the organization's budget for the fiscal year. The office administrator indicated that the firm was more than willing to join Workers Compensation beginning January 1, 2001.

On January 28, 2002, the Assessment Committee determined that the firm would be required to pay retroactive assessments for 1999 and 2000. The Assessment Committee made reference to Section 80(1) of the Act which states, "on becoming an employer" a firm must provide an estimate of workers' earnings for the purpose of making an assessment. As soon as the firm began employing workers, they should have registered with the WCB.

The Assessment Committee indicated that limiting the retroactive assessment to two years maintains consistency with the WCB's policy regarding audits. Policy 35.30, Audits and Investigations stipulated that an audit would normally only cover the most two complete fiscal years. If the firm were selected for audit in 2001, then records of the workers' earnings in 1999 and 2000 would be reviewed. The Assessment Committed concluded that the firm should pay assessments based on the years that it should have been audited. On March 4, 2002, the Assessment Committee's decision was appealed by the appellant's office administrator and a non-oral file review was arranged.

Reasons

The Applicant Corporation appeals the WCB's decision to charge it employer premiums for the years 1999 and 2000. The corporation came into existence in 1986 as a non-profit organization and its business activities fell 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 having to pay WCB premiums. The Applicant Corporation requests that the WCB forgo the requirement to pay the assessments for 1999 and 2000 as this would "cause undue financial hardship on the organization's budget for this fiscal year" given that it was a non-profit corporation totally dependent on government financing.

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 ".

The provisions of the Act clearly confirm the WCB's responsibility for paying compensation to workers in compulsory industries who become injured while in the course of their employment. And should a worker be injured prior to the employer's being registered, the WCB would have considered the injured individual a worker within the meaning of the Act 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 1999 and 2000. Accordingly, the appeal is hereby dismissed.

Hopefully because of the corporation's strict budgetary requirements as a non-profit organization, an accommodation can be reached between the parties, which will allow for an orderly repayment of the outstanding assessments over a mutually suitable period of time.

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 14th day of May, 2002