The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with whether or not the employer should be assessed a late reporting penalty for not submitting its Employer’s Report of Accident form within five business days after becoming aware of the worker’s injury. A file review was held December 13, 2007 to consider the employer’s appeal.

Issue

Whether or not the employer should be assessed a late reporting penalty of $225.00.

Decision

That the employer should be assessed a late reporting penalty of $225.00.

Decision: Unanimous

Background

On May 30, 2007, the employer completed an Employer’s Accident Report with respect to a work related accident that occurred on May 7, 2007 when its worker injured his back while moving heavy rollers. The accident was reported to the employer’s department manager on May 7, 2007.

On June 6, 2007, the employer was assessed a late reporting penalty by the WCB in the amount of $225.00 because the Employer’s Accident Report was not received within the five business days of becoming aware of the worker’s injury as required by subsection 18(1) of The Workers Compensation Act (the Act). The employer was made aware of this decision in a letter dated June 6, 2007.

In a letter dated July 13, 2007, the employer requested the Workers Compensation Board (WCB) waive the penalty of $225.00. It indicated that they did not receive the June 6, 2007 WCB letter in a reasonable time period. On July 17, 2007, a WCB adjudicator spoke with the employer. The employer indicated that she would send in documentation to show that the worker did not provide her with an assessment form from his doctor which meant the employer could not complete the report. The adjudicator indicated that the worker’s supervisor was aware of the accident on the date of injury and that the report should have been submitted. The employer was advised that the decision of June 6, 2007 was confirmed.

On July 18, 2007, the employer submitted the following additional documents and comments to support its position that the late penalty charge should be waived:

• A Notice of Injury/Accident form dated May 7, 2007. The employer stated that the accident was not reported to the employer immediately because ‘it got worse over time’. This, it submitted, indicated that the employer was unaware of the injury until an unspecified time thereafter;

• An occupational health fitness assessment dated May 11, 2007. This was completed by the attending physician on a non-scheduled work day for the worker;

• An e-mail that was sent on May 30, 2007 to the employer’s payroll administrator requesting the worker’s earnings for WCB reporting purposes; and

• The employer said they were unable to complete the claim without a proper assessment form from a physician/practitioner which form was submitted beyond the five business days of reporting.

In a response dated August 16, 2007, Rehabilitation and Compensation Services advised the employer that there would be no change made to its original decision. The file was then forwarded to Review Office for consideration.

On September 10, 2007, Review Office confirmed that the employer should be assessed a late reporting penalty. Review Office considered the arguments put forth by the employer that they could not submit their form as they had not received the occupational health fitness assessment form, that they were awaiting wage information and had not been notified by the WCB. Review Office felt these were invalid reasons for removing the penalty. It stated an employer does not have to wait for medical or wage information before notifying the WCB as this can be provided at a later date. It also stated it was not the WCB’s responsibility to advise the employer to report any injury and that the onus was on the employer to notify the WCB of injuries and to report them promptly.

On October 9, 2007, the employer appealed Review Office’s decision of June 6, 2007 to the Appeal Commission on the following grounds:

“Since the worker was able to return to work on May 9, 2007, a Physician’s assessment is required to prevent further injury for the worker and to determine our ability to accommodate his limitations which was not completed and submitted to the employer until May 11, 2007, further the delay of a Physician’s assessment did not allow the employer to submit the employer’s incident report in time, payroll information on earnings was not available until May 15 as the Payroll Administrator was on vacation. The Worker’s Compensation policy of reporting within 5 business days is questionable as we did not receive the physician’s assessment in time.”

Reasons

The facts of this matter are straight forward.

The employer ultimately provided the WCB with an Employer’s Report of Injury (“the report”) on May 30, 2007. The report indicated that the worker sustained an injury to his back on May 7, 2007 after moving heavy rollers. The report, entitled: “Notice of Injury/Accident” was filled out by the employee on May 7, 2007. It was signed on that date by both the employee and the employee’s supervisor.

The worker was absent from work the next day because of the injury and he sought medical treatment shortly after the accident, again to the employer’s knowledge.

The facts are clear, therefore, that the employer was aware of the worker’s injury as of May 7, 2007.

The Act requires employers to send a report to the WCB within five (5) business days of becoming aware of an injury. This helps the Board to ensure that claims are adjudicated promptly and fairly.

Subsection 18(1) of the Act specifically provides 

18(1) In case of an accident giving rise to a claim for compensation, the employer of the worker shall, within five business days

(a) from the day upon which the worker reports the occurrence to the employer; or

(b) from the day the employer otherwise learns of it;

whichever day is earlier, report the accident and the injury resulting therefrom to the board, and also to any local representative of the board at the place where the accident occurred.

Subsection 18(4) of the Act provides for relief from penalty if a reasonable explanation is provided by the employer.

In considering this appeal, we have also referred to WCB Policy 22.70.30 which discusses the employer's responsibility for reporting. It provides that the WCB will consider the circumstances of the delay as explained by the employer. The Policy further provides that if the delay can be explained satisfactorily the penalty may be waived.

Having considered the evidence in its totality, we are of the view that the employer’s explanation for delay is not satisfactory.

The employer was aware of the injury on the date it occurred and should have provided a report to the WCB within five (5) business days.

By way of explanation for its delay, the employer stated that it was waiting to obtain a proper assessment form from a physician/practitioner which form was submitted beyond the five (5) business days of reporting.

The file does contain an occupational health fitness assessment form dated May 11, 2007 regarding the worker’s injury. We note that even after receiving that form, however, the employer delayed in reporting the matter until May 30, 2007.

The employer also stated by way of explanation that it could not submit its form to the WCB as it was waiting for wage information.

Neither of these reasons provides a satisfactory explanation for a delay in reporting the accident in the first instance. An employer does not need to wait for either medical or wage information before providing initial notice to the WCB of a claim. Such information can and certainly should be provided but may be sent at a later date. The onus, as per the legislation, is on an employer to notify the WCB of injuries and to do so promptly.

For the reasons noted above, the employer’s appeal is denied.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

S. Walsh - Presiding Officer

Signed at Winnipeg this 23rd day of January, 2008