Decision #43/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the firm was assessed a $4,000.00 penalty for violation of sections 19.1(1) and 19.1(2) of The Workers Compensation Act ("the Act".) A file review was held March 10, 2021 to consider the employer's appeal.
Whether or not it is appropriate to implement a $4,000.00 penalty against the employer for violation of sections 19.1(1) and 19.1(2) of the Act.
It is appropriate to implement a $4,000.00 penalty against the employer for violation of sections 19.1(1) and 19.1(2) of the Act.
On October 23, 2018, the WCB’s Compliance Services provided the firm with a Notice of Allegation indicating it had been alleged the firm violated ss 19.1(1) and 19.1(2) of the Act. With respect to s 19.1(1), it was alleged the firm had discouraged or prevented a worker from pursuing their claim for compensation; and with respect to s 19.1(2), it was alleged the firm terminated the employment of that worker as a result of the worker pursuing their claim for compensation.
WCB’s Compliance Services advised the firm on June 12, 2019 that an investigation into the above noted allegations had been conducted and it had determined the firm did prevent or attempt to prevent a worker from applying for compensation in contravention of s 19.1(1). Additionally, the allegation the firm contravened s 19.1(2) was investigated but the WCB’s Compliance Services advised it would not be proceeding with enforcement of that section at this time. The firm was advised Compliance Services was contemplating imposing the $4,000.00 administrative penalty provided for under the Act and the firm was given until June 26, 2019 to respond to the Investigation Findings Report.
On June 21, 2019, the firm provided a response to Compliance Services stating the firm had not discouraged or prevented the worker from submitting a claim for compensation and provided a detailed summary of the events from the worker’s date of accident, being August 16, 2018 and included statements from the third party who supervised the jobsite where the worker was injured on August 16, 2018 and the firm’s human resources manager. On August 7, 2019, the firm was advised the information was reviewed and it was determined the firm had committed claim suppression in contravention of s 19.1(1) of the Act and a $4,000.00 administrative penalty had been assessed against the firm.
The firm requested reconsideration of Compliance Services’ decision to the Vice President, Compliance and Corporate Services on September 3, 2019. In their submission, the firm, represented by their office manager, noted their belief the WCB’s Compliance Services’ officer who investigated the allegation was biased, denied the worker was discouraged from submitting a claim, and noted the firm’s human resources manager was a witness to the conversation between the firm’s office manager and the worker. The firm provided a written statement from the office manager. A copy of the materials from the firm’s June 21, 2019 submission was also provided.
On September 16, 2020, the Vice President, Compliance and Corporate Services advised the firm their request for reconsideration was denied and the finding of Compliance Services was confirmed along with the imposition of the $4,000.00 administrative penalty. The Vice President noted the investigation was conducted fairly and reasonably and found it reasonable to prefer the evidence of the worker over the evidence of the firm.
The firm filed an appeal with the Appeal Commission on September 28, 2020. A file review was arranged and held on March 10, 2021.
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
Section 19.1 of the Act prohibits employers and their representatives from taking action to discourage making claims under the Act. Section 19.1 provides, in part:
Discouraging worker from claiming compensation
19.1(1) No employer or person acting on behalf of an employer shall take any action that prevents or discourages or attempts to prevent or discourage a worker from applying for compensation, pursuing an application that has been made or receiving compensation under this Part.
No discriminatory action
19.1(2) No employer or person acting on behalf of an employer shall take or threaten to take discriminatory action against a person for
(a) reporting or attempting to report an alleged violation of subsection (1) to the board; or
(b) exercising any right or carrying out any duty in accordance with this Act or the regulations. ...
Offence and administrative penalty
19.1(4) A person who contravenes this section commits an offence and is subject to an administrative penalty under subsection 109.7(1).
Where a person is subject to an administrative penalty under s 19.1, s 109.7(1) provides that they shall, where the board determines, pay to the board a penalty in an amount prescribed by regulation. Manitoba Regulation 15/2015 sets out the amounts of such an administrative penalty, as being, in respect of a breach of s 19.1(1): $4,000 if no other failures to comply with subsection 19.1(1) in the preceding five-year period; $5,000 for second contravention in a five-year period; and $6,000 for third or subsequent contravention in a five-year period.
The firm’s position in respect of the appeal is set out in the Appeal of Assessment Decision form submitted to the Appeal Commission, dated September 26, 2020 as well as in the Appeal Letter provided to the WCB’s Vice President, Compliance and Corporate Services, dated September 3, 2019.
With respect to the determination that the employer violated s 19.1(1) of the Act, the firm’s position is that the worker “was never prevented or discouraged from pursuing” their WCB claim, but that the worker “opened, closed and reopened” their WCB claim of their own free will.
With respect to the determination that the employer violated s 19.1(2) of the Act, the firm’s position is that there was no discriminatory action taken against the worker, who was not discriminated against nor terminated, but took another job leaving their job with the employer, of their own volition.
In the Appeal Letter, the firm submitted that the WCB and Compliance Services in particular “made a false accusation with intend (sic) to charge [the firm] with a penalty of $4,000 for something that did not happen, and based on false and fabricated stories “hearsay” and “felt.”” Further, the firm submitted that the worker was never given an ultimatum to take compensation or continue working, and that this allegation is false. The firm also submitted that the evidence of the human resources manager who witnessed the conversation between the worker and the manager supports the firm’s position.
The firm also submitted that the WCB investigation undertaken by Compliance Services was not fair and impartial and did not adhere to the principles of natural justice, suggesting that the investigative findings are false and fabricated. The firm further submitted that the WCB Claims Information Representative is not an independent witness and as such, their testimony should not therefore be given any weight.
The issue on appeal is whether or not it was appropriate to impose a $4,000.00 penalty against the employer for violation of s 19.1(1) and s 19.1(2) of the Act. In order to find that the penalty imposed was not appropriate, the panel would have to determine that the firm did not prevent or discourage or attempt to prevent or discourage the worker from applying for compensation, and that the firm did not take or threaten to take a discriminatory action against a person for exercising a right under the Act or if there was a breach of s 19.1(1) or (2), that the WCB applied the incorrect penalty against the firm.
In considering the issue under appeal, the panel reviewed the evidence with respect to the firm’s actions in respect of the workplace accident of August 16, 2018. The file documents confirm that the WCB was notified of the accident when a medical report was submitted on August 22, 2018 by the attending physician who treated the worker on August 18, 2018. The WCB followed up with the firm and the worker on August 23, 2018 and the worker provided an accident report by telephone that morning. Later that day, the worker and the manager of the firm jointly called the WCB and spoke with a WCB claims information representative (“CIR”).
In the course of this call, the CIR took the Employer’s Accident Report, which was entered at 5:28 p.m. The CIR subsequently documented their concerns regarding the call and the manager’s subsequent phone call in an internal email to the WCB adjudicator sent at 5:48 p.m., reporting:
“Just FYI, I have a strange feeling that the worker was somewhat forced to not pursue the claim. The employer...was the one who called and was disputing the claim....
Employer said that they are calling because the worker will not proceed with the claim. When I talked to the worker, [they] seemed to be unsure of the process and whether [they] would proceed. Employer was there the whole time and was telling [the worker] what to say. Later on, worker just said [they] will not pursue the claim and I said I would note on file.
Employer called back, got my name and confirmed that I have closed the claim. I told [the employer] I have noted the file but I don’t have the authority to close the claim....”
In a conversation with WCB Compliance Services, the CIR provided further detail on the August 23, 2018 telephone conversation, as recorded in a memorandum to file dated September 24, 2018. The memorandum indicates both the manager and the worker were on the call with the CIR, and during the call, which lasted more than 30 minutes, the manager repeatedly stated “there is no claim” “not work related” throughout the conversation. The CIR recalled the manager saying the injury was not reported by the worker until that day, the worker went home ok and was only making a claim because the doctor told the worker to remain off work. The CIR described the manager as adamant that the claim be closed and heard the manager direct the worker to state that they did not want to make a claim. The worker stated that they did not wish to make a claim and the CIR explained to the worker why it was advisable to make a claim.
In the same conversation with WCB Compliance Services, the CIR confirmed that shortly after the initial call on August 23, 2018 the manager called again to confirm that the claim should be closed and that after the second call, the CIR wrote the email to the adjudicator as outlined above. The CIR described the manager’s interaction with the worker as controlling and demanding, and “dictating” to the worker what should be said.
When WCB Compliance Services interviewed the worker on October 16, 2018, the worker confirmed that the date of injury was their first day working with the firm and that they first noted symptoms on August 17, 2018 and notified their manager by telephone the same day that they were unable to work. The worker stated they sought medical treatment on August 18, 2018 and subsequently advised the manager that the physician recommended they remain off work. The worker further confirmed a conversation with the manager on August 22, 2018 about an incomplete timecard, which led the worker to visit the worksite where the injury occurred to have the timecard signed. On August 23, 2018, the worker spoke to the manager by telephone and was asked to come in for a meeting.
The worker described to WCB Compliance Services that at the meeting with the manager on August 23, 2018 the manager said to the worker “You can either take compensation or you can work for me. There’s no two ways about it. You’ll either have a job or you won’t, and there was no in between. There was no other choice. Like it was one or the other....” The worker described that after the manager provided this ultimatum, the call to WCB was made and “...that’s when [the manager] starts insisting that I’m not to take the claim, Tell the person at Compensation that you’re...not taking the claim and you’re working for me. That’s what it boiled down to....” The worker described that during this call the manager was instructing as to what to say, “...telling me, cajoling me that, If you don’t – and he’s holding the paper if you – if you basically don’t say no to this, then we’re going to get rid of you....”
The worker explained to Compliance Services that they needed the job and for that reason, withdrew the claim. The worker stated that during this conversation they were alone in a room with the manager and no one else was around. After the phone call with WCB ended, the worker described that the manager told him that the injury was probably caused by the work boots the worker was using.
The panel considered that the evidence of the worker and of the CIR is contradicted by the firm. The firm’s position as set out in their correspondence with the WCB and in the transcript of the interview of the manager conducted by WCB Compliance Services is that the worker was not injured on the worksite but experienced symptoms arising out of improperly fitted work boots. Further, the firm denied that the manager gave the worker an ultimatum as to withdrawing the claim or keeping their job but stated that it was the worker who stated that they would stop the claim because they were short of cash, and that the claim was made by the hospital on the worker’s behalf. The manager stated that they never instructed or advised the worker to cancel the claim or discouraged the worker from continuing with the claim and further, that they told the CIR that the worker said of their own accord that they did not make a claim and wanted to cancel the claim. The manager stated the worker then took the phone and confirmed to the CIR that they did not wish to continue the claim, and that it seemed there was some misunderstanding between the worker and the CIR. In response to the CIR’s testimony that the manager was heard in the background of the call giving the worker instruction on what to say, the manager stated that the CIR “...must have heard wrong” as the manager was not even speaking.
The panel noted as well the evidence of the firm’s human resources manager, interviewed by Compliance Services on December 6, 2018. The human resources manager stated that they heard the conversation between the manager and the worker via speakerphone, as the manager was on a call with the human resources manager when the worker came in for the meeting on August 23, 2018. The human resource manager stated they heard the whole conversation prior to the phone call with the WCB, and that the manager did not tell the worker to cancel any claim, but that the worker stated “I want to cancel.... I’ll call WCB and I’ll cancel the claim.” The worker stated that they did not apply for compensation and would cancel the claim. The human resource manager further testified that the manager is not responsible for terminating employees but is the main recruiter for the firm.
The panel also considered the firm’s submission that the evidence of the CIR was not reliable because the CIR is in a conflict of interest as an employee of the WCB. The panel rejects this position and finds there is no evidence to support that the CIR has any personal interest in the outcome of this claim or reason to fabricate the information provided to the WCB adjudicator, and later, to Compliance Services with respect to the comments made by the manager of the firm.
The panel also rejects the employer’s position that Compliance Services demonstrated any bias in its investigation of the matter. We find that that the evidence supports that the Compliance Services staff exercised their responsibilities fairly and reasonably and that there is no evidence of conflict of interest or demonstration of bias in doing so.
We accept and give significant weight to the evidence of the CIR as to the contents of the telephone conversation between the worker and the manager of the firm and the CIR on August 23, 2018, noting that this was documented immediately thereafter. Further, the CIR’s testimony is supported by the worker’s own recollection of the contents of that telephone conversation. The panel also accepts the evidence of the worker that an ultimatum was provided to the worker by the manager on August 23, 2018 to the effect that the worker should choose between continued employment and continuing the WCB claim.
The panel gives less weight to the manager’s evidence, noting that it is contradicted by the evidence of the CIR and the worker, with respect to the telephone conversation. Although the human resources manager supports the manager’s testimony with respect to the conversation that occurred prior to the August 23, 2018 telephone call with the WCB CIR, the panel is not persuaded by this testimony, given it is not consistent with the evidence of the contents of the subsequent telephone call.
On the standard of a balance of probabilities, the panel is satisfied that the evidence supports a determination that the employer did take action to prevent or discourage or attempt to prevent or discourage the worker from continuing their application for compensation, in contravention of s 19.1(1) and further, that the employer did threaten to take a discriminatory action against the worker for exercising a right under the Act, in contravention of s 19.1(2).
With respect to the amount of the penalty imposed, the panel is satisfied that the WCB correctly applied the provisions of s 19.1(4) and s 109.7(1) of the Act. Manitoba Regulation 15/2015 establishes that the amount of an administrative penalty in respect of a breach of s 19.1(1) is $4,000 if the employer has no other failures to comply with s 19.1(1) in the preceding five-year period. There is no evidence of any prior breaches of this provision by the firm and therefore the amount of the penalty is correct as assessed.
The employer’s appeal is therefore denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 12th day of April, 2021