The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on October 10, 2002, at the employer’s request.

Issue

Whether or not the $150.00 late reporting penalty assessed against the employer should be waived.

Decision

That the $150.00 late reporting penalty assessed against the employer should not be waived.

Decision: Unanimous

Background

In May 2002, the claimant filed an application for compensation benefits in relation to a left arm injury which occurred at work on April 19, 2002. The claimant advised that she had reported the accident to her manager on the same date of accident.

On June 17, 2002, a Workers Compensation Board (WCB) adjudicator wrote to the appellant employer to advise that the firm was being charged a $150.00 fine for late reporting as the WCB did not receive a fully completed Employer’s Report of Injury form for this claim within the requested time period.

In an un-dated appeal submission to Review Office, the employer stated the following:

“Before I give you my reasons this charge is unjust - let me begin by saying when I filed the report eventually over the phone, and I let the person know that I was unaware of an ‘accident’. The employee continued to work and complained of her “pain” the day she started. So I was a bit confused over what was happening and therefore had no reason to contact you are (sic) anybody else for that matter. The employee at a later date then said she would be on compensation and quit.

Being a new employer is (sic) a business I was unaware of your policies. Even though it may be my responsibility to know this information I would imagine many ‘new’ employers don’t understand or even know of WCB’s policies. On that point I can only say it would be unfair of WCB to charge me before I knew the rules. Furthermore a charge of $150 to me as an employer who is innocent and unaware is ridiculous and I can only hope you will understand this matter and not charge me.”

In a decision dated July 19, 2002, Review Office confirmed that the $150.00 late reporting penalty assessed against the employer should be upheld. Review Office noted that as of the date of its review, there was no completed employer’s report of accident on file. Review Office stated that “…the employer’s ignorance of his responsibility to have coverage for his workers and to report all accidents promptly to the board is insufficient rationale to waive the late reporting penalty.”

Review Office noted that the employer, through his own actions on file, had not been cooperative with WCB staff in terms of registering his firm and in allowing the board to adjudicate the worker’s claim. On September 3, 2002, the employer appealed Review Office’s decision and a non-oral file review was held on October 10, 2002.

Reasons

Section 18(4) of The Workers Compensation Act (the Act) authorizes the WCB to exact a penalty for failure on the part of an employer to report an accident. The amount of the penalty has been prescribed by the WCB in that portion of regulation 280/91, which deals with interest, penalties and financial matters. Specifically section 2 of the said regulation reads as follows:
“The penalty that the board may impose on an employer under subsection 18(4) of the Act is $150.00.”

Section 18(5) of the Act outlines the criterion under which a penalty may be relieved. An employer may be absolved from liability of having to pay a penalty under section 18(4) where the WCB is “satisfied that an employer has a reasonable explanation for failing to make a report in accordance with this section”.

The employer advanced the argument that being a new employer he was unaware of the WCB’s policies and therefore it would be unfair to charge a penalty for late reporting. “On that point I can only say it would be unfair of WCB to charge me before I knew the rules.” A thorough review of the file clearly reveals that the employer for whatever reason refused to file a report of injury form with the WCB.

We are bound to apply and adhere to the provisions of the Act. Accordingly, we find based on the weight of evidence that the employer does not qualify for relief as provided for in section 18(5) of the Act. Therefore, the employer must pay the $150.00 penalty and his 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 13th day of November, 2002