Decision #96/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on July 30, 2002, at the employer's request.

Issue

Whether or not the Workers Compensation Board should charge the employer the late filing penalty of $416.60.

Decision

That the Workers Compensation Board should charge the employer the late filing penalty of $416.60.

Decision: Unanimous

Background

The Employer Services branch at the Workers Compensation Board received the employer's 2001-2002 Annual Workers' Earnings Report (AWER) by facsimile on March 18, 2002, which was 18 calendar days past the due date of February 28.

Attached to the AWER was a note which indicated that the original AWER was mailed to the WCB's offices on February 22, 2002. The original AWER was later received by mail at the WCB's offices on March 22, 2002. The date on the AWER beside the firm's authorized signature was February 22, 2002. Due to the lateness of submitting the form to the WCB, the employer was charged a late filing penalty of $416.60. The employer appealed the late filing penalty and the case was referred to the Assessment Committee for consideration.

In April 2002, the Assessment Committee confirmed that the employer must pay the late filing penalty of $416.60. In making its decision, the Assessment Committee noted that over the last two years, the employer had filed their AWER after the due date. Consideration was also given to the criteria set out in WCB Policy 35.40.10, Relief from Penalties and/or Interest Charges, and it was determined that the employer's appeal did not meet any of the criteria as there was a history of default. On May 27, 2002, the employer appealed the Assessment Committee's decision and a non-oral file review was arranged.

Reasons

As noted above, the issue before the Appeal Panel was whether or not the appellant should pay a late filing penalty, as determined by the Assessment Department and upheld, on reconsideration, by the Assessment Committee.

For the appeal to be successful, the Panel would have to determine - on a balance of probabilities - that the reasons this employer was late in remitting its Annual Workers' Earnings Report (AWER) to the board were beyond its control. We were not able to make that determination.

Our decision was based on a careful reading of the file, followed by a non-oral file review.

In coming to our decision, we took note of the following facts:
  • The AWER is to be submitted to the board no later than February 28 each year.

  • The employer's representative maintains that she signed the report on February 22, 2002 and mailed it on the same day. It is her position that it was either unreasonably delayed by Canada Post, or that the board did not correctly record the date it received the report.

  • On March 13, 2002, the board sent a letter to all firms, whose reports had not been received, notifying them that they were post-due.

  • On March 18, 2002, the board received this employer's report by fax. The original copy was received on March 22.

  • On at least three occasions in recent years, this employer has been late in filing its AWER. In 1996, it was 18 days late; in 2000, 21 days; and in 2001, 37 days.
In considering this sequence of events, we have come to the conclusion that the employer did not submit its AWER in a timely manner.

Board Policy 35.40.10, Relief from Penalties and/or Interest Charges, allows for the relief of penalties as follows:
  • Up to 100% of the penalty where the period of default is less than 5 business days.

  • Up to 50% of the penalty where the period of default is less than 30 calendar days, the employer does not have a prior history of default, and has cooperated fully with the WCB.

  • Up to 100% of the penalty amount may be provided where the cause of the default was beyond the control of the employer, the employer does not have a prior history of default, the employer has cooperated fully with the WCB, and the default does not extend beyond 60 calendar days.
All of the criteria set out in the policy must be met. In the last two provisions, above, one of those criteria is that the employer has no previous history of default. That is not the case with this employer.

The Appeal Commission is bound by statute to adhere to board policy in making its decisions. Pursuant to policy, therefore, we are not able to provide any relief on the penalty assessed.

Accordingly, the appeal is not allowed.

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 14th day of August, 2002

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