Decision #56/10 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Assessment Department of the Workers Compensation Board (“WCB”) that it was required to report assessable payroll earnings and pay premiums retroactive to January 1, 2009. A file review was held on June 21, 2010 to consider the matter.Issue
Whether or not the employer is required to report assessable payroll and pay premiums to the WCB retroactive to January 1, 2009.Decision
That the employer is required to report assessable payroll and pay premiums to the WCB retroactive to January 1, 2009.Decision: Unanimous
Background
On September 9, 2008, the Assessment branch of the WCB notified the employer that in conjunction with the extension-of-coverage initiative, the firm would be required to register as an employer in a compulsory industry and that it would have to report its assessable payroll to the WCB and pay the appropriate premiums. The coverage was to become effective January 1, 2009.
On September 19, 2008, the employer’s executive director advised the WCB the organization was not on the mandatory list published by the Government.
The employer’s account was not addressed by the WCB until October 14, 2009 when an Assessment Accounts Representative (“AAR”) wrote the employer to advise that registration was required as the workplace was in a compulsory industry effective January 1, 2009. The employer was asked to complete a WCB Annual Workers’ Earnings Report and to return it to the WCB within 15 calendar days from the date of the letter.
On October 21, 2009, the employer’s executive director wrote the WCB indicating that the organization is a church. He also noted that the organization has a compensation plan that is superior to the WCB plan.
On November 2, 2009, the AAR advised the employer that religious organizations were excluded under the Act but that information obtained from the employer’s website showed that it ran programs for youth, children and adults that were mandatory under the Act. The employer was therefore advised to complete the Annual Workers Earnings Report and to return the completed form to the WCB by November 23, 2009.
On November 27, 2009, the employer indicated that he approached his MLA regarding the requirement for his organization to register with the WCB and that he would not be getting the earnings information together. The AAR advised the employer that the WCB would still require earnings information to get the firm registered and that if it was decided that the firm did not have to register, the premiums would be refunded.
In January 2010, it was confirmed by the WCB that portions of the employer’s business activities fell under 702-04, Social Services, effective January 1, 2009.
On January 15, 2010, the employer’s executive director advised that he would be providing the WCB with the 2009 and 2010 earnings information by the end of the following week.
On January 26, 2010, the firm’s director appealed the decision to register for 2009. He noted that no claims were made during 2009 and asked to be excused from payment for 2009.
On February 23, 2010, the Assessment Committee determined that the employer was required to report earnings and pay premiums retroactive to January 1, 2009 and that late filing penalties would not be applied.
As the rationale for its decision, the Assessment Committee noted that the employer was advised by the WCB of the requirement to register and report workers’ earnings in writing, telephone conversations and emails. It found that the employer made an informed choice to dismiss the advice of board staff. The Assessment Committee stated, “Notwithstanding the rights of employers to appeal decisions of the WCB, registration information was required and assessable earnings had to be reported when compulsory coverage of the employer became effective, and not at the point where appeal options had been or would be exhausted. The Act gives the board authority to collect retroactive assessments, as referenced.” The Assessment Committee noted that the decision of the government to extend coverage to industries, including the business activities of the employer, was effective on January 1, 2009. Coverage was therefore in effect throughout 2009, and its workers were entitled to the benefits and services of the WCB whether they filed a claim for benefits or not.
On March 8, 2010, the employer appealed the Assessment Committee’s decision to the Appeal Commission.
Reasons
The issue before the panel was whether the employer is required to report assessable payroll and pay premiums to the WCB retroactive to January 1, 2009. The panel found that the employer was required to report assessable payroll and pay premiums to the WCB retroactive to January 1, 2009.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB’s Board of Directors.
The following sections of the Act are relevant to the payment of assessments by employers:
Payroll estimates and certified copies
80(1) An employer shall, on becoming an
employer and at such other times as the board may
require, furnish to the board an estimate of the amount
of the payroll of each undertaking in an industry for the
following year, with such other information required by
the board for the purpose of
(a) assigning the employer or undertaking of the
employer to a class, sub-class, group or sub-group;
and
(b) making assessments under this Act;
and the employer shall, at the close of each year, and at
such other times as the board may require, furnish
certified copies of the payroll.
Continuing liability of employer
80(7) Where, for any reason, an employer liable
to assessment is not assessed in any year, he is
nevertheless liable to pay to the board the amount for
which he should have been assessed; and payment of
that amount may be enforced in the same manner as the
payment of an assessment may be enforced.
Employer’s Position
In support of this appeal, the employer’s representative wrote that:
“We are now appealing only the 2009 fee assessment. During all of 2009, we honestly believed we would not be compelled to join the WCB plan. Consequently, the WCB plan was not presented to our staff, and there was no thought to applying for WCB compensation.
We realize this is an unusual situation, but respectively request you would consider the circumstances, including the long response time from the WCB. This has been as unexpected addition to last year’s budget (as well as to this year’s budget).”
Decision
The panel notes that the issue under appeal is limited to the employer’s requirement to report assessable payroll and pay the resulting premium. The employer had initially contested its inclusion under the Act but had abandoned this position and was not appealing its inclusion in coverage.
In its submission, the employer advised that its workers were not aware of the WCB coverage and there was no thought of applying for WCB compensation during the period in question. This does not provide a basis to relieve the payment of an assessment. The panel notes that coverage was in place and that the employer’s workers may still apply for compensation for work injuries that occurred during this period.
The employer also asked that the panel consider the WCB’s long response time. The panel finds that this does not provide a basis for relieving the employer from the payment of assessment. The panel accepts that the employer’s failure to report earnings information was due to a misunderstanding but notes there is no authority to allow for waiver of retroactive assessments.
The panel notes, however, that the WCB did not levy late filing penalties as permitted under the Act and WCB policy.
In considering this appeal, the panel reviewed the provisions of the Act and WCB policies. The panel notes that subsection 80(1) of the Act imposes a mandatory duty on employers to furnish payroll information. Subsection 80(7) of the Act compels employers to pay all amounts for which the employer should have been assessed, regardless of whether or not the assessment was issued in a given year. This would include retroactive assessments. The Act and the WCB policies do not give either the WCB or the Appeal Commission the discretion or capacity to waive the requirement to furnish payroll information nor to provide relief to an employer from its obligation to pay a retroactive assessment. Accordingly, the panel finds that the employer is required to report the assessable payroll for 2009 and must pay the assessment. The appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 25th day of June, 2010