Decision #39/09 - Type: Workers Compensation

Preamble

The appellant is appealing a decision of the Workers Compensation Board (“WCB”) Assessment Committee which determined that work performed by the appellant’s medical drivers off reserve land required mandatory coverage with the WCB. A file review was held on February 24, 2009 to consider the matter.

Issue

Whether or not “off” reserve work performed by medical drivers requires mandatory WCB coverage.

Decision

That “off” reserve work performed by medical drivers requires mandatory WCB coverage.

Decision: Unanimous

Background

In early August 2006, the WCB asked the appellant to respond to a WCB questionnaire regarding its business activities. On August 11, 2006, the appellant indicated that it was a non-profit organization which provided community health prevention and educational programs on Indian reserve land. The appellant provided the WCB with payroll information for 2004, 2005 and 2006.

On February 2, 2007, a WCB employer account representative advised the firm that based on its response to the WCB questionnaire, it did not have to register with the WCB as its industry was not listed in The Workers Compensation Act (the “Act”). It was considered by the WCB to be a voluntary industry.

On June 26, 2007, the WCB learned through the Manitoba Gazette that the appellant registered as an Intra-Municipal Livery under The Highway Traffic Act.

In a WCB memorandum dated August 9, 2007, the WCB employer account representative recorded that he spoke with the appellant’s health director and was advised that the appellant used their vehicles for medical trips on a daily basis. They transported Treaty patients from the reserve to a nearby local hospital or clinic on a daily basis. The workers were all Treaty status and were paid by the appellant.

On September 19, 2007, the WCB registered the employer for 2005, 2006 and 2007. In a letter to the appellant dated September 28, 2007, the WCB indicated “Based on your workers’ earnings, we have registered your firm for coverage for the workers performing work off the reserve only.” The appellant was also advised that it was being assessed a late filing penalty for the year 2005.

In a letter of appeal dated October 15, 2007, the appellant stated the following:

“In July or August 2007, I received a call from a representative in your organization. He stated that we had to register with Workers Compensation because of our medical drivers. He mentioned that it was due to them transporting patients off the reserve (to [name of hospital]). He then asked me for the gross salaries for 2006 and 2007. I gave him the information.

I have several concerns regarding the registration and the invoice that has been sent to our organization.

1. We are a First Nation/Non-Profit organization that is located on-reserve and should be exempt from paying into Worker’s Compensation. The medical trips originate and end on the [reserve].

2. Our medical drivers are covered under [private insurance] for any coverage they may need. This includes disability, life insurance, dependant coverage, etc. They will also be covered under Manitoba Public Insurance Corporation, if they are in a vehicle related accident.

3. The invoice dated October 5, 2007 states that we are a business. This is incorrect as we are a non-profit organization. The [employer] does not “profit” from any of the services we provide.

4. The letter also states the “firm did not register within 6 months of employing workers”. The [employer] did not register as our main office, [name], is also exempt from registering with the Worker’s Compensation Board. Our organization was established in 1992. Why did WCB wait until 2006 to request a description of our organization?

5. Lastly, we are 100% government funded. Health Canada does not provide enough funding for the [employer] to pay additional coverage for insurance. The medical transportation program has been in a deficit for the past 10 years. We do not have the funding to pay the additional expense of $9,404.41 that WCB is requesting.”

I hope I provided sufficient information for WCB to reverse the decision that was made to register the [employer] as a “business”.”

The appellant’s first level appeal was denied by the WCB based on the following rationale:

“The organization is performing work off the reserve, when providing transport to and from the medical facility which is in a compulsory industry.”

On January 23, 2008, the Assessment Committee reconsidered the appeal and determined that the work performed by the appellant while off the reserve is compulsory. Therefore the “medical drivers” earnings while off the reserve must be reported to the WCB. The Committee further determined that the appellant should only be assessed for the earnings effective January 2007. As a rationale for its decisions, the Assessment Committee referred to the Act which sets out compulsory industries.

On December 2, 2008, the appellant appealed the Assessment Committee’s decision to the Appeal Commission and stated the following:

“We are registered as “livery license operators” only for liability reasons. We transport all First Nation members who live on [a named reserve], NOT JUST OUR MEMBERS. We do not “profit” from the transportation program. We are providing a “required” service.”

A file review was held at the Appeal Commission on February 24, 2008 to consider the issue under appeal.

Reasons

Employer’s Position

The employer objects to being registered as an employer in a compulsory industry and being assessed premiums in respect of the off reserve work being performed by its medical drivers.

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB’s Board of Directors.

Part I of the Act establishes the compensation system and the rights of workers and employers under the system. Section 2 of the Act provides that Part I applies to all employers and all workers in all industries in Manitoba except for those excluded by regulation. Thus the Act operates under an exclusionary coverage model which means that WCB coverage is mandatory, unless specifically excluded.

Manitoba Regulation 196/2005, Excluded Industries, Employers and Workers Regulation (the “Regulation”) lists the industries, employers and workers which do not fall under the mandatory coverage. Paragraph 46 of Schedule A of the Regulation deals with Indian bands and provides the following exclusion:

Industry or employer on reserve land

46 Carrying on of any industry or business by an Indian or an Indian band or bands on reserve land, including the management and operation of the band and band council.

(Where the industry or business is carried on by a corporation or partnership, the majority ownership must be held by an Indian or Indian band.)

Analysis

The issue before the panel is: Whether or not “off” reserve work performed by medical drivers requires mandatory WCB coverage. In order for the employer’s appeal to be successful, the panel must find that the exclusion outlined in paragraph 46 applies to the medical drivers who transport patients off reserve. We are not able to make that finding.

In the panel’s opinion, the legislation very clearly limits the exclusion to industry or business by an Indian or Indian band while on reserve land. If the exclusion was meant to apply to all business activities by an Indian or band regardless of where it occurs, then the words “on reserve land” would not have been included in paragraph 46. We find that the intent of the regulation is quite clear and is meant only to apply to activity occurring on a reserve. The panel acknowledges that an argument could be made to say that an off-reserve activity reasonably ancillary to an excluded industry or business under paragraph 46 should also be excluded. On the facts of this case, however, we find that the transportation duties being performed by the medical drivers cannot be considered “ancillary”.

The information provided to the WCB by the employer’s health director was that the medical drivers transport residents from the reserve to another community. The trip is approximately 3 hours one way and the driver waits until the medical visit is complete, then brings the residents back to the reserve. The drivers are hired only to transport people and they do nothing else for the employer. In the panel’s opinion, there can be little dispute that the work done by the medical drivers is being performed off reserve land on a regular basis. It is not a task which arises incidentally and occasionally in the course of performing other duties. As such, we do not feel that the work can be considered ancillary.

We have given consideration to the concerns raised by the employer in letters dated October 15, 2007 and November 24, 2008, and respond to same as follows:

  • Even though the employer is a First Nation organization which is located on the reserve, and the trips originate and end on the reserve, the medical drivers are nevertheless performing a majority of their work off the reserve. Most of the time spent driving occurs off reserve.
  • The fact that an “Inter-Municipal Livery” license was required does not impact on whether or not WCB mandatory coverage applies. The Motor Transport Board regulations are a different statutory regime from the workers compensation system established under the Act.
  • The availability of alternate sources of insurance benefits does not affect whether or not WCB coverage applies. As indicated by the Assessment Committee, the Act does not exempt industries based on other insurance programs.
  • The employer notes that it is a non-profit organization which provides a required service. The fact that an employer operates on a not for profit basis is not determinative of whether or not its workers are subject to mandatory coverage under the Act. Again, it is the wording of the exclusions which determines whether or not WCB coverage applies.
  • Although the WCB initially indicated that the employer (or a related entity) was exempt from registration, this was based on information received by the WCB that the business activities of the employer (related entity) included the provision of community health prevention and education programs. These programs would have been considered mandatory WCB coverage if they were performed “off” reserve, but as they are performed entirely on reserve are exempt by regulations. There was no indication at that time that some services were being provided off reserve. Once it became apparent that off reserve work was being performed i.e. the drivers, investigations into whether or not WCB coverage applied were commenced.
  • Unfortunately, financing concerns regarding sources of funding and deficit budgeting are not ones which affect the determination of whether or not an industry or business is excluded from mandatory coverage under the regulations. The ability to pay WCB premiums is a separate issue from whether or not an employer is subject to pay.

For the foregoing reasons, it is the panel’s decision that the “off” reserve work performed by medical drivers requires mandatory WCB coverage. The employer’s appeal is therefore denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 26th day of March, 2009

Back