The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation

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

WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”) is applicable to the present appeal. The Policy purpose is stated as follows:

The WCB uses an employer's actual claims costs as part of the calculations used to establish assessment rates. This "experience-based" approach means that the accident record and cost experience of an employer has an impact on the employer's assessment rate. In the interest of fairness, some claims costs are not directly included in the individual employer's cost experience but instead are shared by a larger group of employers or transferred to another employer. When a claim cost is moved from the accident employer to a shared cost pool it is called cost relief. When it is moved from one employer to another, it is called a cost transfer.

The Policy then goes on to describe circumstances under which cost relief/cost transfer is provided to eligible employers.

Employer’s Position

The Notice of Appeal form filed on behalf of the employer asks that the charges for the physician's reports be removed from its firm experience statement as they are not related to a workplace accident. It submits that it is unable to reconcile these costs on its firm experience statement as a claim does not exist. There was no workplace accident. In its written submission to Review Office, the employer indicated that it was not a money issue, but rather a matter of pride in its safety record. The employer had been working continuously to improve its safety record and its goal was to have zero accidents and a blank firm experience statement. To see the expenses charged to its account was disheartening. The employer acknowledged that costs had to be assigned to an account; however, it should not be the employer account in cases where a claim did not exist. These types of charges were a cost of doing business for the WCB and should be managed internally.

Analysis:

The employer requests that the costs for two physicians' reports be removed from its firm experience statement because the costs are not related to a workplace accident. In order for the employer’s appeal to be successful, the panel must find that the costs for the reports should not be charged to the employer pursuant to the terms of the Policy.

The panel has carefully reviewed the terms of the Policy and we are unable to find any provision which would allow us to relieve the employer in respect of the costs of the two physician's reports.

Subsection 2(a) of the Policy states that:

a) Initially, all claims costs are charged to the cost experience of the accident employer. Cost relief or cost transfers may be provided for some or all of those costs according to the criteria within this policy. Cost relief or transfers may include costs charged to an employer's cost experience in prior years.

"Accident employer" is defined in the Policy as: "generally the employer of the worker at the time of the injury." Thus, as a starting point, any costs incurred in respect of a claim (or a potential claim) are to be charged to the employer of the worker.

In the present case, there are two medical reports filed by physicians on WCB standard forms. Section 20 of the Act imposes a duty on health care providers to submit reports to the WCB in respect of the injuries to workers. It would appear that the subject medical reports were submitted by the worker's physicians with the honest but mistaken belief that the medical condition complained of by the worker was caused by work. In the panel's opinion, the cost of these mandatory reports was properly considered by the WCB to be claims costs, even though it was subsequently determined that the worker's injuries did not result from his work for the accident employer.