Decision #128/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he failed in his duty to report his return to work and that relief from the administrative penalty which was assessed against him was not warranted. A file review was held on October 21, 2020 to consider the worker's appeal.
Whether or not the worker failed in his duty to report his return to work; and
Whether or not the $225.00 penalty assessed against the worker should be reduced or waived.
That the worker failed in his duty to report his return to work; and
That the $225.00 penalty assessed against the worker should not be reduced or waived.
This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 137/18, dated September 21, 2018. The background will therefore not be repeated in its entirety.
The worker has an accepted claim for a right hip/leg injury which occurred on June 5, 2017. On August 15, 2018 permanent restrictions of no running or jumping; no repetitive squatting, kneeling or crawling; no lifting and carrying more than 50 pounds; and no repetitive ladder or stair climbing were recommended. On August 18, 2018, the WCB's Compensation Services advised the worker of his permanent restrictions and the worker was referred for vocational rehabilitation services.
On March 13, 2019, the WCB's Compliance Services advised the worker that a preliminary investigation had disclosed sufficient evidence to suggest he had failed in his duty to report a return to work. On March 14, 2019, the worker's vocational rehabilitation services were placed on hold pending an investigation by Compliance Services into allegations that he had failed in his duty to report a return to work.
On November 26, 2019, Compliance Services advised the worker that they had completed their investigation and determined he had violated subsection 19(4) of The Workers Compensation Act (the "Act") by failing to notify the WCB of a return to work. Compliance Services further advised that they were recommending imposition of a $225.00 penalty. By letter dated December 16, 2018, Compliance Services confirmed their finding that the worker contravened subsection 19(4) of the Act and that the worker was required to pay an administrative penalty of $225.00.
On January 3, 2020, the worker requested that Review Office reconsider Compliance Services' findings and administrative penalty. The worker advised that he had been awarded a limited business opportunity, which he accepted, and had only performed what was required to preserve that opportunity for the future. On January 28, 2020, Review Office advised the worker that his request for reconsideration was being directed to the Reconsideration Committee.
On March 24, 2020, the Reconsideration Committee determined that the worker failed in his duty to report his return to work and that relief from the administrative penalty was not warranted. The Reconsideration Committee advised that they had reviewed the information on the worker's file and noted the evidence showed the worker had worked for three different companies starting in May 2018. The Committee found that the worker had opportunities to advise the WCB of his return to work, but failed to do so. The Committee also noted that in a conversation with the case manager on August 28, 2018, the worker had denied returning to work, and that in a WCB Other Information letter on March 6, 2019 he had indicated he had no other income. The Reconsideration Committee went on to find that the worker had provided no reasonable explanation for his failure to notify the WCB of his return to work and they had therefore determined not to waive or reduce the administrative penalty.
On June 23, 2020, the worker filed an appeal with the Appeal Commission and a file review was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.
Subsections 19(4) and 19(5) of the Act deal with a worker's duty to report a return to work, and read as follows:
Worker's duty to report return to work
19(4) A worker who has been unable to work as a result of an accident must immediately notify the board upon returning to work.
19(5) A worker who fails to comply with subsection (4) commits an offence and is subject to an administrative penalty under subsection 109.7(1).
Subsection 109.7(1)(g) of the Act provides that a person who is subject to an administrative penalty under subsection 19(4) "…shall, where the board determines, pay a penalty to the board in an amount prescribed by regulation." Subsection 109.7(3) allows for relief from payment of a penalty, and reads as follows:
Relief from penalty
109.7(3) The board 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 a penalty under this section.
Subsection 5(1) of the Interest, Penalties and Financial Matters Regulation (the "Regulation") provides that the amount of the administrative penalty for failing to comply with subsection 19(4) of the Act is the greater of $225.00 or 10% of the amount of the claim overpayment.
The worker was self-represented on the appeal. The worker's position, as set out in his Worker Appeal of Claims Decision form, was that he did not actually return to work and should not be charged an administrative penalty.
The worker stated that he won a "one time opportunity" in early March 2018 which he did not want to lose. He said he did what he had to do to try and save that opportunity so it would still be available to him when he recovered from his injury.
The worker submitted that returning to work meant doing the job and earning money, and that this did not happen in his case. He said he did not earn any money; rather, he lost money in the process. The worker submitted that he was therefore not in violation of the Act and a penalty should not have been imposed.
The employer did not participate in the appeal.
Issue 1: Whether or not the worker failed in his duty to report his return to work.
For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker did not fail in his duty under subsection 19(4) of the Act to notify the WCB of a return to work. The panel is unable to make that finding.
The panel notes that there is no dispute that the worker returned to work at a time when he was receiving wage loss benefits from the WCB.
Information on file shows that Compliance Services interviewed the worker on March 27, 2019 as part of their investigation into this matter. The worker acknowledged at that time that he started working for one company at the beginning of May 2018. The worker said he worked seven or eight days over a period of approximately two weeks, and made $600.00 to $700.00 in cash. The worker also acknowledged that he worked for a second company between the middle of May and November 2018, and for a third company starting in late December 2018 or early January 2019. Representatives of each of these companies confirmed that the worker worked for their companies during these periods of time.
The worker has argued, however, that he did not actually return to work, as returning to work meant working and earning money, which did not happen in his case. The panel is not able to accept the worker's argument in this regard.
The panel notes that at the March 27, 2019 interview with Compliance Services, the worker stated, for example, that while he made $600.00 to $700.00 working over the two-week period in May 2018, that amount did not even cover his expenses, which included fees, insurance and repairs, and that "…after doing all expenses and everything…I didn't save anything on that time…"
In the panel's view, whether the worker realized a profit from the work he performed, or not, is beside the point. The question is not whether the worker received any net income from his work, but whether he was able to, and did, return to work in some capacity. The panel is satisfied that the evidence clearly shows, and the worker acknowledged, that he was not totally disabled; that he was able to return to work in some capacity; and that he did in fact return to work in 2018.
In addition, when Compliance Services asked the worker on March 27, 2019 whether he had talked to his case manager about his ability to drive or to work at all, the worker said he had not. The worker went on to explain that he had not shared his business or work with his case manager because he did not have any income. He indicated that it was his understanding that he would only be required to talk to his case manager if he started making money. The worker further stated that he did tell his case manager that he had won this opportunity when it happened, but his case manager didn't understand and then left her position. The worker went on to say that "I stop that after that time. Didn't share anything about my, like, business."
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker failed in his duty to notify the WCB of his return to work starting in May 2018, in breach of subsection 19(4) of the Act.
The worker's appeal on this issue is therefore dismissed.
Issue 2: Whether or not the $225.00 penalty assessed against the worker should be reduced or waived.
For the worker's appeal on this issue to be successful, the panel must be satisfied that the worker has provided a reasonable explanation for failing to notify the WCB of his return to work. The panel is unable to make that finding.
The worker has argued that he was just working to keep his license active and to preserve his opportunity to pursue this work once he recovered. In his March 27, 2019 interview with Compliance Services, the worker stated that he returned to work "…because I just want to keep my license. That's appropriate." The panel finds that the worker's assertion that he just wanted to keep his license does not explain why he could not have reported his return to work or should not have been required to do so.
The panel notes that information on file further indicates that the worker was unclear as to what he had to do, or to what extent he had to work, to keep his license active or to preserve his opportunity to pursue that work. In response to questions from Compliance Services as to how much he had to work to keep his license active, the worker stated that "…it's just some days a year on the road" and that "There is no particular requirement."
Further, or in any event, the panel is unable to find that the worker's expressed interest in preserving such a business opportunity should have excused him from complying with his duty under the Act to report a return to work or would justify or explain his not having advised the WCB that he had returned to work.
In the circumstances, the panel is satisfied that the worker does not have a reasonable explanation for failing to notify the WCB of his return to work.
The panel is further satisfied that the $225.00 penalty which was assessed against the worker was established in accordance with the Regulation. The panel notes that in their decision letter dated November 26, 2019, Compliance Services advised the worker that they were unable to determine the exact nature of his post-accident earnings and had therefore recommended a penalty of $225.00. The panel notes that $225.00 is the minimum penalty amount which is prescribed under subsection 5(1) of the Regulation for a worker's failure to report a return to work.
In conclusion, the panel finds that the worker should not be relieved, in whole or in part, from payment of the $225.00 administrative penalty assessed against him. The $225.00 penalty should therefore not be reduced or waived.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of December, 2020