Decision #75/09 - Type: Workers Compensation

Preamble

The employer is appealing a decision made by the Review Office of the Workers Compensation Board (“WCB”) which determined that it was required to pay a late filing penalty for failure to submit their Employer’s Report of Injury or Occupational Disease report within five business days of a work related accident. A file review was held on June 4, 2009 to consider the matter.

Issue

Whether or not the employer must pay an administrative penalty for late reporting of a claim.

Decision

That the employer must pay an administrative penalty for late reporting of a claim.

Decision: Unanimous

Background

The worker filed a claim with the WCB claiming that he injured his back when he slipped on ice on February 10, 2009. The worker indicated that he reported his injury to a foreman as well as the co-workers on the date of accident. The employer’s report of injury dated March 5, 2009 confirmed that the worker slipped and fell at work on February 10, 2009.

On March 9, 2009, the accident employer was advised that it had incurred a late filing penalty of $225.00 as the WCB did not receive a fully completed Employer’s Report of Injury form for the accident.

In e-mail correspondence dated March 9, 2009, an employer representative asked the WCB to reconsider its March 9 decision based on the following rationale:

“…this employee injured himself in the parking lot prior to the commencement of his shift. Based on these circumstances the dept did not believe it to be compensable. It would seem that the (attending physician) and the worker initially were of the same mind as we did not receive a #33 until March 5. You will note that as soon as it became apparent that this was, indeed, a compensable incident, the dept submitted a completed form 2 E on the very day it was requested.”

In a response to the employer dated March 12, 2009, the adjudicator stated,

“[the worker’s] injury occurred on employer property due to a hazard of the premise. It was reported to the employer on the day it occurred, with time loss effective the next day. The late reporting penalty stands…”.

On March 12, 2009, the employer stated,

“…I am well aware that the claim is compensable but, based on the circumstances, the dept representative did not think that it was and thus the delay. Add to this the fact that the #33 was not requested until Mar 5 which seems to suggest that the worker and (attending physician) were not initially of a mind that it would be covered. There is latitude to use discretion in cases such as these and it is unfortunate that none is being employed in the case at hand. As you can appreciate the monetary penalty is not the issue but rather the failure to take into account the precipitating circumstances.”

On March 31, 2009, the employer representative provided Review Office with a submission appealing the WCB’s late filing penalty.

In a decision dated April 9, 2009, Review Office confirmed that the employer was required to pay the administrative penalty for late reporting. In making its decision, Review Office referred to WCB policy 22.70.30, Employer’s Reporting Responsibilities-Claims (“the Policy”), which indicates that a worker’s employer must report the accident that results in the injury to the WCB within five business days. Review Office noted that the worker’s supervisor knew of the incident on the date of its occurrence on February 10, 2009 which was supported by the employer’s accident report signed on March 5, 2009. On April 29, 2009, the employer appealed Review Office’s decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsection 18(1) of the Act imposes a duty on employers to report accidents. It provides as follows:

Employer to report accident

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.

The Policy sets out an employer’s responsibility for reporting accidents and specifies when and how late reporting penalties are applied. The Policy states in part:

If employer fails to submit a report of an accident that results in an injury in a format acceptable to the WCB within five business days, the administrative penalties and fines in the Act, related regulations and policies will apply. A fine is generally reserved for employers who are chronic late reporters while administrative penalties are levied for late reporting.

The WCB will consider the circumstances of the delay as explained by the employer and the consequences of the delay in the adjudication of the claim before applying the penalty. If the delay can be explained satisfactorily, the penalty may be waived

Employer’s Position

The employer’s submission argues that the circumstances surrounding the claim and which resulted in the delay in reporting are such that discretion ought to be employed to waive the late reporting penalty. It was acknowledged that although the risk management department was unaware of the incident, the worker’s immediate superiors were aware that the worker had been injured while on his way to work. They had erroneously believed that the worker’s slip and fall did not constitute a compensable incident. It was submitted that the worker also initially did not consider the incident to be a workplace accident because although the fall occurred on February 10, 2009, the claim was not established until March 3, 2009. The worker did not complete his report until March 4, 2009 and the employer’s report was submitted on March 5, 2009, the same date as requested by the WCB. It was submitted that the primary purpose of subsection 18(1) of the Act is to ensure that employer reports are received as soon as possible so as to protect the injured worker from any financial hardship that might result. In this case, no financial hardship was incurred by the worker as he continued to receive his full regular wages by utilizing sick leave credits. As there were no consequences of the delay in the adjudication of the claim, the late reporting penalty ought to be waived.

Analysis

The issue before the panel is: Whether or not the employer must pay an administrative penalty for late reporting of a claim. In order for the employer’s appeal to be successful, the panel must consider the circumstances of the delay and the consequences of the delay in the adjudication of the claim. If we find that the delay can be explained satisfactorily, we have the discretion to waive the penalty. After reviewing the circumstances of the claim, we find that the discretion should not be exercised in this case.

Under the provisions of the Act, employers have the primary responsibility to report accidents to the WCB. When an accident occurs, there is an onus on the employer to report the accident to the WCB within five business days. An employer who fails to make a report as required commits an offence under the Act and is subject to an administrative penalty.

The Act also provides that the WCB has the exclusive jurisdiction to determine whether an injury was caused by an accident within the meaning of the Act and whether an injury has arisen out of or in the course of an employment within the scope of the Act. In the present case, it would appear that certain staff members of the accident employer undertook to make this determination on their own. Unfortunately, they wrongly concluded that there was no coverage for the worker.

In the panel’s opinion, employers should avoid engaging in the exercise of trying to determine whether or not an injury is compensable. If there is any doubt, employers should err on the side of reporting and let the WCB sort out whether or not a claim is established. In the present case, the panel is of the view that the facts suggested enough work relatedness that the employer should have erred on the side of reporting. These facts include:

  • The time of the accident was shortly prior to the worker’s scheduled shift;
  • The worker was directly en route to work when the accident occurred;
  • The location of the accident was on the accident employer’s property;
  • The worker notified his superiors and co-workers of the accident and the injury on the day it occurred;
  • The worker was immediately in a time loss situation.

Although it was argued that the worker himself may not have considered the incident to be compensable, the facts would suggest otherwise. On the day of the accident, the worker went to his chiropractor with complaints of sharp low back pain radiating into the right leg. The attending chiropractor prepared a WCB medical report in respect of that attendance. This would indicate that both the worker and his chiropractor considered the incident to be work related. Unfortunately, due to administrative oversight, the Chiropractor’s First Report was not sent to the WCB until mid-March 2009.

Overall, the panel is of the opinion that delay caused by an erroneous determination by the employer that an accident is not compensable is not a satisfactory explanation for the delay. Accordingly, we find that the administrative penalty should not be waived. The employer’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 16th day of July, 2009

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