The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The firm is appealing the decision made by the Workers Compensation Board (“WCB”) that the accident employer should be assessed a $4,000.00 penalty for contravening s 19.1(1) of The Workers Compensation Act. A hearing was held June 19, 2023 to consider the firm's appeal.

Issue

Whether or not the accident employer should be assessed a $4,000.00 penalty for contravening s19.1(1) of The Workers Compensation Act.

Decision

The accident employer should not be assessed a $4,000.00 penalty for contravening s 19.1(1) of The Workers Compensation Act.

Background

On September 27, 2022, the WCB's Compliance Services provided the firm with a Notice of Allegation alleging the firm had contravened s 19.1(1) of The Workers Compensation Act (“the Act”) by attempting to prevent or discourage a worker from pursuing a claim for compensation by providing the worker with misleading or incorrect information about the worker’s WCB claim. After an investigation by the WCB’s Compliance Services, the WCB advised the firm on February 2, 2023 that it determined the firm attempted to prevent or discourage a worker from applying for, pursuing, or receiving workers compensation contrary to s 19.1(1) of the Act and therefore, the firm was required to pay an administrative penalty of $4,000.00.

The firm filed an appeal with the Appeal Commission on March 3, 2023 and a hearing was arranged.

Reasons

Applicable Legislative Provisions

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, as follows:

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.

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 71/2001 sets out the amounts of an administrative penalty in respect of a breach of s 19.1(1) as being: $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.

Firm’s Position

The firm was represented in the appeal hearing by its owner, who made oral submissions on behalf of the firm and provided testimony through answers to questions posed by members of the appeal panel.

The firm’s position is that it should not be subject to a fine for contravention of s 19.1(1) as there is no evidence of any attempt or intention to discourage the worker from making a claim to the WCB or from pursuing the claim once made.

In their submissions, the firm owner described receiving a phone call in their vehicle while driving on the morning of July 15, 2022. They recalled that the caller was not identified on their phone but stated they were with the WCB and investigating concerns regarding an accident claim by one of the firm’s workers. The firm owner recalled that the caller stated their name was “Andrew” or something like that but noted they could not make any notes of the call while driving. The firm owner stated that the caller had information about the firm and the specific claim that only the WCB would have had access to, including the firm’s WCB account number, the firm owner’s personal phone number and the worker’s information. The firm owner recalled that the caller stated the WCB was investigating the recent accident claim and asked for the employer’s cooperation in the investigation. The firm owner further recalled asking the caller to confirm the information by email as they could not make notes of the call. In their submission, the firm owner noted that the WCB compliance services officer later confirmed that a call was made to the firm owner from the WCB but could not confirm who made that call or why.

The firm owner described that around noon the same day, they went to the location where the worker’s accident happened to attend a previously scheduled workplace safety meeting. The firm owner stated that their phone records indicate that the WCB called again during that meeting, but they missed that call. The firm owner noted that the minutes of that meeting were provided to the WCB along with the site safety checklist completed in advance of the meeting. On questioning by members of the appeal panel, the firm owner confirmed that these minutes were prepared after the meeting based upon the notes of those present. The firm owner stated that the worker was asked to join the meeting at the outset to discuss the worker’s concerns about the chair they were using in their accommodated duties as these were safety issues. In that meeting, the firm owner told the worker about the call from the WCB, and that the employer would cooperate with the WCB in their investigation, requesting that the worker do the same. The firm owner acknowledged to the panel that they asked the worker if they had previous WCB claims and to describe those injuries. The firm owner also noted that the worker was already at this time being accommodated in relation to the workplace injury and that the worker continued working until September 6, 2022 when the business closed temporarily for renovation.

Later the same day, the WCB case manager again called the firm owner to speak about the worker’s claim. The firm owner acknowledged to the panel that they became frustrated with the case manager during this call and commented that if the WCB was investigating the claim, the employer’s view was that the worker seemed to be okay. The firm owner disputed the case manager’s file notes relating to this conversation, stating that they did not hire an investigator or say they did.

The firm owner stated that they followed corporate policies in respect of investigating incidents that occurred in the workplace and pointed to the policy provisions as contained the information submitted in advance of the hearing.

In sum, the firm owner’s position is that the evidence does not establish that they took or threatened to take any action to suppress or discourage the worker from making or continuing with their WCB accident claim, and therefore, the firm should not be subject to a fine for contravention of s 19.1(1).

Analysis

The issue on appeal is whether the employer should be assessed a $4,000.00 penalty for contravening s 19.1(1) of the Act. For the appeal to succeed, 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, pursuing, or receiving compensation. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the appeal is granted.

The panel considered first whether the alleged action or event occurred. The WCB’s investigative finding is that the firm owner attempted to prevent or discourage the worker from pursuing a claim for compensation from the WCB by providing misleading or incorrect information to the worker about their WCB claim, specifically, by telling the worker that the WCB had hired a private investigator to follow the worker and may take the worker to court.

The evidence before the panel, including testimony, investigation reports from the WCB’s compliance services and the documents contained within the related WCB accident claim file and the firm account file, confirms that in a meeting on July 15, 2022, the firm owner advised the worker that the WCB was investigating the worker’s accident claim. The panel is satisfied that this occurred, noting that this is consistent with the information provided by the firm owner and with the information the worker provided to the WCB case manager on July 19, 2022. The panel also noted that the evidence as to the conversation between the case manager and the firm owner of July 15, 2022 confirms a discussion about investigation of this claim, although documented by the case manager as relating to the employer’s investigation of the claim and recalled by the firm owner as relating to a WCB investigation of the claim. Given the contradictory evidence, including the worker’s later statement about what they were told in the meeting, it is not clear to the panel that the firm owner’s comments in this conversation were accurately documented by the case manager. The panel is satisfied, on the evidence before us, that the firm owner did advise the worker that the WCB was investigating their accident claim.

The panel does not find, however, that the evidence supports that this information was relayed to the worker for any improper purpose. The panel noted that both the WCB and the accident employer have the right to investigate a claim of workplace accident resulting in an injury. Whether or not the information the firm owner was relying upon was accurate, we are satisfied that the firm owner believed it to be accurate and as such, relayed the information to the worker for the purposes stated, being to communicate that the information was received, that the employer would cooperate with the WCB, and that the worker should also do so.

In making this finding, the panel considered that the evidence relating to the allegation of claim suppression is grounded in the details of an undocumented telephone call from the WCB to the firm owner. This call is significant because the firm owner’s understanding of what was conveyed in that call is the basis for the allegation of claim suppression. The only evidence relating to that call is from the firm owner, who admits they did not have opportunity to make any notes as they took the call while driving between meetings on July 15, 2022. The WCB compliance services investigation confirmed that a 6-minute phone call from a WCB number to the firm owner took place at 11:15 a.m. on that date. The panel noted that while the firm owner stated that they thought the caller identified themselves as “Andrew”, they were not certain of the name provided; nonetheless, the compliance services investigation put significant weight on the fact that none of the persons named Andrew employed by the WCB had made that call but gave little weight to the fact that the call occurred as the firm owner stated it did.

The panel finds it concerning that this call is not documented by the WCB despite such documentation being standard procedure, creating a significant gap in the evidence, with only the firm owner’s recollection of that call to rely upon. The WCB compliance services investigation concluded that the firm owner’s recollection of the July 15, 2022 telephone conversation is “inconsistent with both the claim file and WCB practices” and as such, is implausible. While the firm owner’s recollection may not be consistent with WCB practice in terms of claim investigation, neither is an undocumented 6-minute phone conversation regarding a claim consistent with WCB practice. The evidence before the panel confirms that this call took place, and the panel has only the firm owner’s evidence to rely upon in terms of what took place during that call. Absent any evidence to the contrary, we accept the firm owner’s testimony in this regard.

Further we note that the subsequent actions of the firm owner are consistent with their recollection, in that they advised the worker of what they recalled being told approximately one hour earlier and further, raised the same issues in a call with the case manager later that day. We note that approximately two hours later, the worker’s case manager called the firm owner but did not connect, as documented in the accident claim file. Then the case manager called the site manager of the employer who referred the case manager to speak with the firm owner. This call is also documented in the file.

Later the same day, the firm owner returned the case manager’s call, and engaged in a heated exchange regarding the employer’s difficulty in accommodating the worker’s need for a different kind of chair and the case manager advising that the worker might sustain a further injury, resulting in another claim, if the appropriate chair was not provided. In that conversation, which was documented by the WCB case manager, the firm owner allegedly commented that they would investigate the worker’s injury claim. As noted by the firm owner in the hearing, they regularly look at the video from the premises, which are always monitored by camera, and have noted that the worker appears to have better function than reported to the WCB and that there was no evidence of the initial accident occurring. The employer’s position in this regard was already documented in the claim file before this conversation even occurred. While the WCB compliance services investigation also drew negative inferences against the firm owner on this basis, the panel does not accept the logic of this finding, noting that it is not uncommon for employers to question the acceptability of a claim, particularly when there is no witness to the accident causing the injury claimed as is the case here. The employer is entitled to their view and to suggest to the WCB that further investigation is warranted in some circumstances, but that does not mean that the employer is more likely to engage in claim suppression activities. In fact, the claim file evidence here indicates that this employer, despite their misgivings as to the legitimacy of the worker’s claim, created a position to accommodate the worker’s injury-related restrictions and further, that the worker continued in their employment in the accommodated role until September 6, 2022 when the employer’s premises were temporarily closed for a previously scheduled renovation. As such, the panel does not make any inferences against the firm owner based on their concerns regarding the accident claim.

The panel noted that the WCB investigation also made a negative inference against the firm in relation to the accuracy of meeting minutes from the July 15, 2022 workplace meeting, as these were not immediately provided to the WCB during the investigation and were not created contemporaneously; however, the panel does not make such an inference, noting the firm owner’s explanation that the minutes were created subsequently based upon the notes taken by the various persons present. The panel does not find that this means that the contents of the meeting minutes are not accurate and noted that the investigation report also concludes that the “events of the meeting are not in dispute”. The panel reviewed the minutes of that meeting which the firm owner confirmed were prepared after the meeting based on notes taken during the meeting by those present and participating. We noted that despite the negative inferences made by the WCB compliance services, there is no indication that the WCB at any time requested that the firm owner provide the original meeting notes relied upon to create the minutes.

The panel also considered that when, on July 19, 2022, the case manager spoke with the worker, they recorded that the worker advised, during a conversation about their chair, that the firm owner told them that the WCB was investigating their claim. The panel noted that this statement from the worker as documented by the case manager is inconsistent with the statement from the firm owner as documented by the case manager on July 15, 2022, but that this inconsistency was not considered or explored by the WCB in the compliance services investigation.

The panel is satisfied based on the evidence before us that the firm owner made a statement to the worker on July 15, 2022 that the WCB was investigating the worker’s claim, but find that, in all the circumstances, this statement was nothing more than passing on information, which later proved to be inaccurate, as confirmed to the worker by the case manager on July 19, 2022. We also note that although the worker referenced this comment to the case manager on that date, it was recorded by the case manager, in their notes of the conversation, as almost incidental and not the focus of the worker’s concerns at that time, nor afterwards. We note further that when the worker was questioned about this conversation by compliance services just one month later, the worker was unable to confirm what was said or even when the conversation occurred.

The evidence before the panel, when examined as a whole, does not support a finding that the employer firm took action to prevent or discourage or attempt to prevent or discourage the worker from applying for compensation, pursuing an application that has been made or receiving compensation. On the standard of a balance of probabilities, the panel finds that the employer firm has not contravened s 19.1(1) of the Act and as such no penalty should be assessed against the employer firm in that regard.

Panel Members

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 25th day of July, 2023