The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer disagrees with the decision made by the Workers Compensation Board ("WCB") that they were required to pay a late reporting penalty for not filing their Employer's Injury Report until April 10, 2014. A file review was held on September 23, 2014 to consider the matter.

Issue

Whether or not the employer is required to pay a late reporting penalty of $225.00.

Decision

That the employer is not required to pay a late reporting penalty of $225.00.

Decision: Unanimous

Background

On March 24, 2014, the WCB received a Doctor First Report stating that the worker experienced acute low back pain at work on March 20, 2014. On the same date, the WCB attempted to contact the worker by telephone and then sent a Worker’s Report of Injury form to the worker by mail.

On March 31, 2014, the WCB adjudicator contacted the employer and was advised by a representative that the employer was aware the worker had a sore back as a result of a workplace injury that occurred on March 17, 2014 but was unsure exactly what was reported to the dispatcher. The employer’s representative indicated that he would ensure that an employer's report was completed as soon as possible and provided the adjudicator with the contact information for the employer’s WCB contact.

The WCB was unable to reach the worker by telephone and a letter was sent to him on April 2, 2014, asking him to complete a Worker’s Report of Injury form. The letter also advised that if the worker failed to do so by April 11, 2014, the WCB would not accept responsibility for time loss or medical treatment.

On April 9, 2014, the WCB contacted the employer by telephone and left a message requesting a call back regarding the employer’s report and advising a late reporting fee would be considered.

On April 10, 2014, the employer contacted the WCB and left a message for the adjudicator requesting a call back. The adjudicator called and left a further message. The adjudicator wrote to the employer advising that a penalty of $225.00 had been imposed for late reporting.

On April 10, 2014, a WCB Claim Information Representative completed the Employer's Report of Injury form with the employer. In that process, the employer explained that the first employer's report form they received was from a company out east with only the worker's name on it. They wanted to confirm if it was their employee prior to making a report. The employer indicated that they were unable to get in touch with the worker who was not answering his phone.

On April 11, 2014, the employer contacted the adjudicator with respect to the late penalty fee. The employer asked why the telephone conversation on March 31, 2014 was not a sufficient report and the adjudicator’s notes indicate that she provided an explanation. On the same date, the WCB adjudicator advised the employer that she would not change her position regarding the late reporting penalty. The employer asked for information about appealing that decision to the Review Office.

On April 14, 2014, the worker filed his claim with the WCB for a back injury that occurred on March 17, 2014. The worker reported that when he bent over to open a box, he felt a pop in his low back when he stood up. The worker noted that the injury occurred after 6:00 p.m. and there was no one in the office at the time and that he reported the incident to the dispatcher on March 18, 2014.

On April 16, 2014, the employer asked Review Office to reconsider the adjudicator's decision of April 10, 2014. The employer indicated that they tried on numerous occasions to speak with the worker about his injury and that this was the first penalty they had ever received.

On June 12, 2014, Review Office confirmed that the employer was required to pay a late reporting penalty of $225.00. On June 26, 2014, the employer appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation:

The Workers Compensation Act, in s.18, requires that employers shall report a workplace accident giving rise to a claim for compensation within 5 business days of the earliest of the day

upon which the worker reports the occurrence to the employer or the day the employer otherwise learns of it. Such a report is to be in writing and filed in a form and manner acceptable to the board. The Act goes on to provide in s.18(4) that an employer who fails to make a report commits an offence and is subject to an administrative penalty under subsection 109.7(1).

Section 109.7(3) provides that the WCB may, if it is satisfied that a person has a reasonable explanation for the contravention, relieve the person in whole or in part from the payment of such a penalty.

These provisions are addressed in the WCB Policy 22.70.30, Employers' Responsibilities for Reporting Claims ("the Policy") which sets out that a penalty may be imposed against a late-reporting employer because the worker’s claim depends on the employer’s report to ensure prompt adjudication.

The Policy goes on to note that reporting may occur in a number of ways, including communication of the details of the reportable injury to the WCB by telephone. Where there has been a delay in reporting by the employer, the Policy states that:

…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.

Worker’s Position

The worker did not participate in the appeal.

Employer’s Position

The employer appealed the June 12, 2014 decision of the Review Office on the basis that the employer was late in reporting because they were trying, without success to confirm the details of the injury with the worker.

Analysis

In order to find for the employer in this appeal, the panel must consider whether it is satisfied that the employer has provided a reasonable explanation for the failure to make a report within the time period required under the Act. In making that determination the panel must consider both the circumstances of the delay as explained by the employer and the consequences of the delay in the process of adjudication of the claim.

The facts before the panel are that the WCB first became aware of the worker’s potential claim on March 24, 2014 upon receipt of a Doctor First Report form dated March 20, 2014 and in relation to a workplace injury that occurred on March 20, 2014 (according to the report).

The WCB contacted the employer by telephone on March 31, 2014 at which time the employer confirmed that the worker was their employee and that they were aware he had been injured in the course of his employment on March 17, 2014. The employer’s representative was advised to provide an Employer’s Accident Report and the representative advised the WCB of the name of the appropriate employer contact for WCB matters.

On April 2, 2014, the WCB wrote to the worker advising that the WCB had been unable to reach the worker by telephone and that if he failed to contact the WCB and file a Worker Incident Report by April 11, 2014, the WCB will assume he does not wish to pursue a claim and no further action will be taken.

On April 10, 2014 the employer provided the Employer’s Accident Report to the WCB.

On the same date, the WCB adjudicator wrote to the employer advising that an administrative penalty of $225.00 would be imposed for late reporting of the workplace accident. The WCB adjudicator’s notes do not indicate whether she sought or considered any explanation for the late report.

On April 10, 2014, although the worker’s accident report had not yet been received and would not be received until April 14, 2014, the claim was accepted for adjudication and on April 11, 2014, the claim for time loss compensation was accepted.

The employer contacted the WCB by telephone on April 11, 2014 disputing the penalty and questioning why the telephone conversation of March 31, 2014 was not sufficient as a report.

On April 16, 2014, the employer appealed the late reporting penalty decision of April 10, 2014 on the basis that the delay resulted from failed attempts to confirm with the worker the details of his injury. The employer also noted that this was the first such penalty ever received by it.

The panel has considered the employer’s explanation for the late report and notes that the employer suggested it was seeking to confirm some details with the worker, but had difficulty in contacting him. Although it was not necessary for the employer to confirm details with the worker before making its report, we nonetheless note that WCB likewise experienced some difficulty in contacting the worker. In fact, as a result of that difficulty, there was some uncertainty as to whether or not the claim would remain open, as set out in the WCB’s letter to the worker of April 2, 2014.

The panel further notes that although the Act requires the employer to report an accident in writing, the Policy specifically allows for employers to submit a report by telephone as well as a number of other means. Here, the employer, upon receiving notification of the late reporting penalty, did in fact question the adjudicator as to why the telephone conversation of March 31, 2014 was not considered to be an accident report. While the telephone conversation with the WCB on March 31, 2014 was outside the 5-day reporting period, based on the employer’s own confirmation they were aware that the worker reported an injury on March 18, 2014, the late filing of the written report is further explained by the employer’s belief that the telephone conversation was a report. Indeed, the Policy allows for employer reports to be provided by telephone.

The panel must also consider the consequences of the delay in the adjudication process. Here, it does not appear that there were any consequences to the adjudication process as a result of the delay. That process may have been delayed by the challenges in making contact with the worker; however, the worker’s time loss claim was accepted on the same day as the employer’s report was provided, even before the worker’s own accident report was filed with the WCB.

Having considered both the circumstances of the delay in reporting and whether there were any consequences of the delay in the adjudication process, the panel finds on a balance of probabilities that the employer has provided a reasonable explanation for the delay in reporting and that the penalty should be waived.

The appeal is therefore accepted.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 2nd day of October, 2014