Decision #114/23 - Type: Workers Compensation
The accident employer is appealing the decision made by the Workers Compensation Board (“WCB”) that they should be assessed a $4,000.00 penalty for contravening s 19.1(1) of The Workers Compensation Act. A hearing was held September 26, 2023 to consider the firm's appeal.
Whether or not the accident employer should be assessed a $4,000.00 penalty for contravening s 19.1(1) of The Workers Compensation Act.
The accident employer should be assessed a $4,000.00 penalty for contravening s 19.1(1) of The Workers Compensation Act.
On January 6, 2023, the WCB's Compliance Services provided the accident employer with a Notice of Allegation alleging they 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 accident employer on April 19, 2023, that it determined they 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 accident employer filed an appeal with the Appeal Commission on May 16, 2023 and a hearing was arranged.
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 WCA. Section 19.1 provides 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.
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.
Onus on employer
19.1(3) If, in a prosecution or other proceeding under this Act, it is established that discriminatory action was taken against a person after he or she
(a) reported or attempted to report an alleged violation of subsection (1); or
(b) exercised any right or carried out any duty in accordance with this Act or the regulations;
the employer is presumed to have taken the discriminatory action contrary to subsection (2). The employer may rebut the presumption by showing that the action taken was not related to the conduct described in clause (a) or (b).
19.1(4) A person who contravenes this section commits an offence.
Meaning of "discriminatory action"
19.1(5) In this section, "discriminatory action" includes any act or omission by an employer or a person acting on behalf of an employer that adversely affects a worker's employment, including a transfer, demotion, layoff or termination.
Where a person commits an offence under s 19.1, s 109.7(1) provides that the board may impose an administrative penalty. Manitoba Regulation 71/2021 sets out the amounts of such an administrative penalty, as being, in respect of a breach of s 19.1(1) or (2): $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.
Accident Employer's Position
The accident employer was represented in the appeal hearing by its owner, who made oral submissions on behalf of the employer and provided testimony through answers to questions posed to them by members of the appeal panel.
The employer's position is that it should not be subject to a fine for contravention of s. 19.1(1) as the owner did not discourage the worker from making a claim to the WCB.
The owner acknowledged that there was an injury and that they were advised of the injury by the worker. In response to this information the owner claimed that they indicated to the worker that they should go see a doctor, as set out in their text message to the worker of September 7, 2022.
With respect to the communication between the owner and the worker on September 8, 2022, the owner advised the panel that he did not recall exactly what was said in the phone call to the worker on September 8, 2022, while the worker was at the hospital for their injury. Notwithstanding the owner did not recall exactly what was said in the phone call of September 8, 2022, the owner stated that they did not discourage the worker from making a claim to WCB. Further, the owner indicated that in the phone call between them and the worker, the worker let the owner know that they did not want to stay because it was a six hour wait in the Emergency Room and therefore the worker left of their own accord.
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 compensation, or if there was a breach of s 19.1(1), that the WCB applied the penalty against the firm incorrectly.
In considering whether the employer took action to suppress the worker’s claim, the panel assessed the claim on the standard of a balance of probabilities given the contradicting evidence of the worker and the firm with respect to the communications between these parties on September 7 and 8, 2022. Specifically, the panel assessed the contradictory evidence of the parties with respect to the version of events corroborated by the text message exchange and the contradictory evidence of what was said in the phone conversation held between the parties on September 8, 2022.
The panel noted that in the investigation undertaken by WCB’s Compliance Services, the worker provided copies of text messages they state were exchanged with the firm owner. The firm owner did not deny the authenticity of these text messages as the text message exchange produced by the firm contained identical messages. The text message exchange included a text message received by the owner from the worker on September 7, 2023, at 5:24 pm stating that the worker had twisted his ankle at work. The owner acknowledged the injury by asking for a Doctor’s note and further responded to the worker by text message at about 9:18 pm asking “Do you think you’re going to need compensation from workers comp?...Or just need A-day off with rest” . The panel noted that this text message exchange seemed to indicate that the owner felt that reporting an injury to the WCB is voluntary, which is not the case. The text message clearly indicated that the owner was aware there was an injury, and then posed a question to the worker as to how they wished to proceed regarding making a claim to WCB or not. In the hearing, the panel expressed to the owner that reporting an injury to WCB is not in fact voluntary and it is not a decision to be taken by an employer nor by the worker themselves. Once an injury has occurred, both the employer and the worker have an obligation to report it, regardless of whether they feel that the injury is serious or minor in nature. The panel noted that the owner acknowledged that the worker had been injured in the course of their duties and that their failure to report the injury was a mistake caused by the owner dismissing the injury as minor.
The investigation undertaken by WCB’s Compliance Services also included an interview of the worker, who indicated that the owner asked the worker to call him on September 8, 2022 via text message, which the worker did. The worker testified that in that phone conversation the owner indicated that if a WCB claim was made that would mean a lot of paperwork and suggested that instead of seeing a doctor the owner would just pay the worker for the day off. Approximately 11 minutes after receiving a text message from the employer asking the worker to call them, the worker sent a text message to the owner which stated “Yeah no it wasn’t really an issue at all. They said if I come back again then I’d have that file re opened.” Based on this text message, it is evident that the worker was informing the employer that he had left the hospital waiting room and it was not an issue to do so. This indicates that in the phone conversation the worker and the owner discussed the worker leaving hospital without seeing a doctor although he had already been registered for triage. The worker also indicated that they believed they were paid for September 8, 2022 by the employer although the worker did not report to work as scheduled.
It is not disputed that the worker returned to work on September 9, 2022 and reported the claim on October 13, 2022. Also not in dispute was the fact that the employer did not report the worker’s injury until November 17, 2022 after the owner was contacted by the WCB requesting the report. The investigation undertaken by WCB’s Compliance Services also revealed that the employer had been found to have contravened s.18(1) of the Act by failing to report a different workplace injury in August of 2022, which indicates that the owner was aware of the need to report a workplace injury.
The investigation undertaken by WCB’s Compliance Services further included an interview of the employer, which indicated that the owner did not recall speaking with the worker while the worker was in the hospital. In the hearing the owner indicated that they did not really remember what happened regarding the phone call to the worker, but that they did not tell the worker to leave the hospital and that they would not do that. In the owner’s interview with Compliance Services as well as in the employer’s report of the injury of November 17, 2022, the owner indicated that the worker did not miss time due to the injury. The owner later recanted this statement and indicated that in fact the worker did miss one day of scheduled work due to their injury. In the hearing, the owner acknowledged that the worker did not report for scheduled work on September 8, 2022.
With respect to the issue of whether the worker was paid for September 8, 2022, the records produced by the employer indicate that the worker was paid nearly seven (7) hours more than the worker actually worked for the relevant pay period. The investigation by WCB’s Compliance Services revealed, through evidence from the employer's payroll services provider, that they were instructed by the owner to switch the worker’s pay with another employee’s pay for the relevant period, which resulted in the worker being paid approximately 10 hours more and the other employee being paid about 10 hours less. This instruction to the payroll services provider was documented through their handwritten notes, which they provided to the WCB Compliance Services. Further, the payroll services provider indicated that several months later the owner indicated that the payroll switch was a mistake and that they did not remember instructing the payroll services provider to make this switch. In the hearing the owner indicated that the employer had in fact corrected the other employee’s hours due to the mistaken payroll switch but acknowledged that the injured worker was paid for several hours more than what was on that sheet, which was an error on the owner’s part.
Based on the foregoing, the panel finds that the employer did in fact attempt to suppress the worker’s claim before it was made. We accept and give significant weight to the evidence of the text message exchanges which indicate that the owner felt that making a claim with WCB was voluntary notwithstanding there was an injury. Further, the text message about the worker having left the hospital received by the owner 11 minutes after the owner asked the worker to call them indicates that on a balance of probabilities the worker left the hospital without seeing a doctor as a result of their call with the owner. In the hearing, the owner claimed that they did not recall what was discussed in the telephone conversation but that they recalled that the worker did not want to stay at the hospital any longer due to the wait time involved. This is inconsistent with the worker’s earlier text message at 9:39 am on September 8, 2022 which stated “…If I’m not seen by the afternoon then I’ll probably leave.” After this text message, the owner asked the worker to call him and 11 minutes later the worker indicated to the owner that he had left the hospital without seeing a doctor. This text message exchange corroborates the worker’s recollection of the contents of that telephone conversation between the worker and the owner that the conversation was about whether the worker should see a doctor and instead the employer would pay the worker for the day.
The evidence before the panel, when examined as a whole, supports a finding that the employer 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. The panel gives less weight to the owner’s evidence, noting that it is contradicted by the evidence that can be gleaned from the text messages exchange and the worker’s version of events with respect to the telephone conversation of September 8, 2022. On the standard of a balance of probabilities, the panel finds that the employer has contravened s 19.1(1) of the Act and as such a penalty should be assessed against the employer in that regard.
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 71/2021 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 employer and therefore the amount of the penalty is correct as assessed.
The employer’s appeal is therefore denied.
N. Smith, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
N. Smith - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of October, 2023