The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 23, 2004, at the employer's request.

Issue

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

Decision

That the $150.00 penalty for late reporting should be assessed against the employer.

Decision: Unanimous

Background

On May 17, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred during the course of his employment as a mechanic on April 28, 2004. The worker advised the WCB's call centre that he reported the accident to a supervisor on April 28, 2004 and that he had returned to work on May 12, 2004. The Employer's Accident Report dated May 17, 2004 also confirmed that an accident occurred at work on April 28, 2004 and that the accident was reported to the same person as noted by the worker.

In a letter dated June 18, 2004, the WCB advised the employer that it had not received a fully completed "Employer's Report of Injury" form with regard to this claim within the required five business days after becoming aware of the accident. As a result of its late reporting, a penalty of $150.00 was levied against the employer. On July 13, 2004, the employer appealed the WCB's decision of June 18, 2004 to Review Office stating the following:

"Employee was not familiar with procedure of workers comp. He did not tell us exactly what happened until he brought in a written form as attached. It was phoned in immediately when received. This late filing was not our fault."

On July 19, 2004, Review Office determined that the penalty of $150.00 had been correctly assessed against the employer in accordance with subsection 18(1) of The Workers Compensation Act (the Act). Review Office outlined its opinion that the employer clearly delayed longer than the required five business days in providing the WCB with an Employer's Accident Report form concerning this claim. Review Office noted that a supervisor knew of the injury the day it occurred as this was indicated on both the original Worker's Accident Report form and the Employer's Accident Report. From that moment on, Review Office said the clock was ticking as to when the WCB expected a report of that injury.

On August 11, 2004, the employer disagreed with Review Office's decision and a non-oral file review was arranged.

Reasons

As noted this is an employer appeal. The issue before us was whether the $150.00 penalty for late reporting should be assessed against the employer.

For the employer to be successful, we must find that this is an appropriate case to waive the imposition of the administrative penalty that has been levied against the employer. We do not consider this to be an appropriate case to waive the penalty.

Subsection 18(1) of the Act provides that an employer must report an accident which gives rise to a claim for compensation within five business days from the day on which the worker reports the accident to the employer or from the day the employer otherwise learns of the accident.

Subsection 18(4) of the Act provides that the WCB may impose a penalty against an employer who fails to report an accident as required by subsection 18(1).

The Board of Directors of the WCB has made Regulation 280/91 which provides:

Penalty for failure to report accident

2. The penalty that the board may impose on an employer under subsection 18(4) of the Act is $150.

The Board of Directors has also made Board policy 22.70.30 dealing with the application of subsections 18(1) and (4). This policy provides that the WCB will consider the circumstances surrounding the employer's delay in reporting the accident and states "If the delay can be explained satisfactorily, the penalty may be waived."

The Employer's Argument

The employer noted on the appeal application that "The employee did not even mention he hurt himself at work. He only said his back was sore." The employer noted that the worker provided a letter acknowledging that he was unsure of the procedure.

In the employer's application for review by Review Office, the employer stated that "Employee was not familiar with procedure of workers comp. He did not tell us exactly what happened until he brought in the written form as attached. It was phoned in immediately when received. This late filing was not our fault."

Conclusion

The worker was injured on April 28, 2004. The worker reported his injury the same day to his employer. This is confirmed on both the worker's report and the employer's report. Both these reports were provided via telephone to the WCB on May 17, 2004.

The worker attempted to work on April 29, 2004 but due to the pain in his back left early and went home to rest. On April 30, 2004 the worker saw a physician. He remained away from work from April 30, 2004 until May 12, 2004.

During the time that he was away, neither he nor his employer reported the accident to the WCB.

The worker submitted a letter to the WCB in which he advised:

"…My employer told me to file a claim on paper at that instant but I told her I had to go to the doctor first. She gave me a form to fill up at that time but I didn't file or send it immediately because I do not know the extent/nature of my injury"

This evidence suggests that the employer was aware that the injury was work related and provided the worker with a form to report the accident.

The employer states it did not know that the injury was work related. This is a difficult conclusion to reach given the worker's and employer's reports to the WCB indicate that the worker advised the employer on the date of the accident and provided a description of the injury as being work related. As well the employer gave the worker a form to complete. That the worker did not complete the form until his return to work does not remove the employer's duty to report the injury to the WCB.

We find that the penalty under subsection 18(4) was properly assessed and that the employer has not provided a satisfactory explanation for the delay in reporting. The employer knew of the accident and should have reported to the WCB.

The employer's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of October, 2004