The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker sustained an accident as defined under The Workers Compensation Act (the "Act"). A file review was held on June 9, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 11, 2013, the worker suffered injuries to his back, left side and rib when he lost control of the truck he was driving and struck a ditch, flipping the truck onto its left side.

On January 31, 2013, the worker's claim for compensation was accepted as the WCB found a relationship between the development of the worker's difficulties and an accident arising out of and in the course of his employment.

On December 16, 2013, the employer was advised that the WCB accepted responsibility for the related medical costs and the worker's time loss from work. On December 19, 2013, the employer appealed the WCB's decision to accept responsibility for the worker's claim and the case was referred to Review Office. The employer indicated that the worker's claim was the result of a motor vehicle accident ("MVA") for which the worker was at fault. Manitoba Public Insurance Corporation ("MPIC") accepted the claim and the vehicle was written off. The employer felt they were being penalized twice for the same accident. The employer requested that Review Office remove this claim from the firm's experience as they were being penalized by MPIC for having an accident, and the WCB was raising their firm rate by approximately $4,500 because of claims costs of approximately $3,000.

On February 20, 2014, Review Office confirmed that the worker's claim was acceptable. Review Office noted that the worker was performing his truck driving job duties when he was involved in an MVA on January 11, 2013. The worker elected to claim benefits through WCB and his claim was accepted. The MVA was an event that arose out of and in the course of his employment and as a result he was injured. Regarding the employer's comments concerning a claim with another agency (MPIC), Review Office was unable to speak to another agency's practices/policies or the circumstances as this was beyond the jurisdiction of the WCB and Review Office. On March 18, 2014, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

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

This is an employer appeal. The worker was injured in an MVA while in the course of his employment. The worker applied for and received benefits from WCB. The employer has asked that the worker's claim be dealt with by MPIC instead of WCB.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”

As this claim involves an injury sustained in a motor vehicle accident, Section 195 of the Manitoba Public Insurance Corporation Act (the "MPIC Act") is applicable. Subsection 195 (1) provides that a worker who is injured in a motor vehicle accident may choose between filing a claim with the WCB or MPIC. Subsection 195 (2) provides that when a worker elects to receive benefits from WCB, the worker cannot change his election.

Employer Position

The employer's Appeal of Claims Decision form dated March 18, 2014 indicates:

"I believe that the employees claim for injury and lost wages should have been made through MPIC. There was one accident and it has resulted in [the employer] being penalized twice, both by the Manitoba Public Insurance Corporation, and the Workers Compensation Board, both of which are agencies of the Province of Manitoba."

The employer's Request for Review form dated December 19, 2013 indicates:

"This claim came as a result of a motor vehicle accident, for which the claimant was at fault. MPIC accepted the claim and wrote off the vehicle, net of the deductible. The worker chose to claim personal injury through WCB, and was also approved. The worker does not speak English and used his 19 year daughter as an interpreter. I have spoken to the worker, and he stated that the Doctor who attended him thought that claiming through WCB would be easier than through MPIC. As a result of this decision, [the employer] , is being penalized twice for the same accident.

It also does not seem fair that [the employer] and all other businesses in Manitoba are assessed insurance premiums twice for the same potential liability, by both WCB and MPIC. It seems even more unfair that if there is a claim, only one claim will be accepted...Based on this reasoning, I would respectfully request that you remove this claim from our firm experience. We are being penalized by MPIC for having an accident, and now WCB is raising our rate by approximately $4,500 because of a payout of approximately $3000."

Worker Position

The worker wrote to the Appeal Commission on May 22, 2014. He advised that he does not agree with his employer. He wrote that:

"I had an option to choose between Manitoba Public Insurance and Workers Compensation Board to file the claim. I asked him if he prefers one or the other and he said that it didn't matter which one I choose, so I chose to file the claim with the Workers Compensation Board and it was accepted."

Analysis

The issue before the panel is "Whether or not the claim is acceptable."

The panel notes that no argument has been advanced on whether "...personal injury by accident arising out of and in the course of employment is caused to a worker..." The facts as set out in the claim file are clear and are not challenged: the worker was injured in a motor vehicle accident while working. The panel finds that the claim is acceptable.

The panel notes that under the MPIC Act the worker had an election, he could chose to claim benefits from WCB or MPIC. He elected to claim with WCB. The legislation provides that once the worker has made his election, the election cannot be revoked. It is not possible under the legislation for the worker's WCB claim to be cancelled and transferred to MPIC.

The panel notes that the employer's primary concern appears to relate to the impact that the worker's claim is having on the employer's WCB firm experience and resulting premium. The employer may consider contacting the WCB Assessment Department to discuss its concern about the firm experience. This issue is not before the panel and the panel is not able to address it.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 11th day of June, 2014