The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decisions made by the Workers Compensation Board (“WCB”) that they should be assessed administrative penalties for not reporting a workplace injury within five business days of being aware of it and for attempting to prevent or discourage a worker from applying for, pursuing, or receiving benefits.

A hearing was held December 12, 2023 to consider the employer's appeal.

Issue

1. Whether or not the time frame for appealing a penalty imposed under section 19.1(1) of the Act should be enlarged; and 

2. Whether or not the accident employer should be assessed an administrative penalty for contravening section 19.1(1) of the Act; and 

3. Whether or not the accident employer should be assessed an administrative penalty for contravening section 18(1) of the Act.

Decision

1. The time frame for appealing a penalty imposed under section 19.1(1) of the Act should be enlarged; and 

2. The accident employer should not be assessed an administrative penalty for contravening section 19.1(1) of the Act; and 

3. The accident employer should be assessed an administrative penalty for contravening section 18(1) of the Act.

Background

On December 8, 2022, the WCB's Compliance Services provided the employer with a Notice of Allegation alleging the employer had contravened sections 18(1) and 19.1(1) of The Workers Compensation Act (“the Act”) by not reporting a workplace injury within five business days of being aware of it and attempting to prevent or discourage a worker from applying for, pursuing, or receiving benefits. Following an investigation by the WCB’s Compliance Services, the WCB advised the employer on February 15, 2023 that it determined the employer became aware of a reportable workplace injury involving a worker on July 25, 2022 which was not reported to the WCB until September 21, 2022, more than the five business days required under s 18(1) of the Act. The WCB also determined the employer attempted to prevent or discourage a worker from applying for, pursuing, or receiving workers compensation contrary to s 19.1(1) of the Act. As a result, the WCB imposed a combined administrative penalty for contravention of both sections of the Act.

On March 16, 2023, the employer requested reconsideration of both decisions. On June 19, 2023, the WCB advised the employer that their reconsideration request for the administrative penalty under s 19.1(1) can be directed to the Appeal Commission; however, their request related to the administrative penalty for s 18(1) must be directed to Review Office. On July 12, 2023, the employer filed an appeal with the Appeal Commission requesting reconsideration of both penalties. On July 17, 2023, the Appeal Commission directed the employer’s request related to s 18(1) to Review Office. The employer was advised by the Reconsideration Committee on July 19, 2023 the WCB’s decision to apply an administrative penalty related to s 18(1) of the Act was upheld.

The Appeal Commission contacted the employer on September 14, 2023 to advise a hearing on all issues would be 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 18(1) of the Act sets out the reporting requirements for employers on becoming aware of a workplace injury, as follows:

Employer to report accident 

18(1) In case of an accident giving rise to a claim for compensation, the employer of the worker shall, within five business days (a) from the day upon which the worker reports the occurrence to the employer; or (b) from the day the employer otherwise learns of it; whichever day is earlier, report the accident and the injury resulting therefrom to the board, and also to any local representative of the board at the place where the accident occurred.

Section 18(4) provides that it is an offence to fail to make a report as required.

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.

Section 109.7(1) authorizes the WCB to impose an administrative penalty in various circumstances, including on a person who contravenes s 18(1) and s 19.1(1). Section 109.7 goes on to provide, in part, as follows:

Notice of administrative penalty 

109.7(1.1) The board may impose the administrative penalty by issuing to the person referred to in subsection (1) a notice of administrative penalty that sets out 

(a) the amount of the penalty determined in accordance with the regulations; 

(b) when and how the penalty must be paid; and 

(c) a statement that the person may appeal the matter to the appeal commission within 30 days after being served with the notice. 

Serving the notice 

109.7(1.2) The notice of administrative penalty must be served on the person who is subject to the penalty. It may be served personally or may be delivered to the person's last known address by a delivery service that provides the sender with acknowledgment of receipt. 

Appeal to the appeal commission 

109.7(1.3) Within 30 days after being served with the notice, the person required to pay the administrative penalty may appeal the matter to the appeal commission by sending a notice of appeal to the appeal commission, with a copy to the board, together with reasons for the appeal. The requirement to pay the penalty is stayed until the appeal commission decides the matter. 

… 

Decision of appeal commission 

109.7(1.5) After hearing the appeal, the appeal commission must decide the matter and 

(a) confirm or revoke the administrative penalty; or 

(b) vary the amount of the penalty if the appeal commission considers that it was not established in accordance with the regulations.

Section 109 of the Act permits the enlargement of the time for making any application or taking any proceedings where, in the opinion of the board, an injustice would result unless granted.

Appellant Employer’s Position

The employer was represented in the hearing by its owner, who made a submission in support of the appeal and provided testimony through answers to questions posed by members of the appeal panel.

The employer’s position is that the evidence does not support a finding that they took any action to suppress the worker’s claim for compensation, and further that they should not receive any penalty for late reporting of the worker's accident as this was not their error, but that of the WCB.

The owner submitted that they have prior experience with injured employees making claims to the WCB and that in their experience, the WCB would routinely provide the employer with a form to complete after receiving notice of the accident from the physician or the worker. The owner stated that the “WCB fell asleep on this” and that it should not be the employer’s responsibility to provide information that has not been requested.

The owner outlined that they were aware that the worker was in a motor vehicle accident while at work and sought medical attention, going to hospital by ambulance. The owner further acknowledged that the worker was away from work for a few days afterward as a result, and stated, in response to questioning by the appeal panel, that they told the worker not to come in the day after the accident as the owner had already arranged to cover the worker’s position that day. The owner stated that although they knew the worker was in an accident, they did not have confirmation of an injury. The owner confirmed the worker was away for four days after the accident, but that the passenger in the vehicle, another employee, returned to work the next day.

The owner stated that they did not recall telling the WCB adjudicator that the worker had no time loss when they spoke by telephone on September 21, 2022, and could not think of a reason why they would have said that as there was time loss of four days.

Analysis

The panel considered and determined each of the three questions in this appeal as detailed below.

Should the time frame for appealing a penalty imposed under s 19.1(1) of the Act be enlarged? 

The Act requires that when a penalty is imposed under s 19.1(1), the imposition of that penalty may be appealed to the Appeal Commission within 30 days of notice being given of the penalty by the WCB. The Act also allows the time for making any application or taking any proceedings to be enlarged or extended, under the provisions of s 109, where “an injustice would result” unless allowed.

The panel considered whether there are circumstances here that would result in an injustice should the time frame for appealing the penalty imposed under s 19.1(1) not be enlarged. The panel noted that the file evidence indicates that the WCB informed the employer by letter dated February 15, 2023 of the assessment of a penalty for contravention of s 19.1(1) of the Act, and that this letter was sent to the employer by email. The panel further noted that the employer's owner responded to the WCB by email dated March 15, 2023 indicating that they wished to appeal the WCB’s decision. The employer did not send this correspondence to the Appeal Commission and the WCB did not forward the correspondence to the Appeal Commission, although the file indicates that it was received by Review Office on March 16, 2023.

A strict application of s 109.7(1.3) would require that the employer submit their appeal to the Appeal Commission with a copy to the WCB by March 17, 2023 which is 30 days after February 15, 2023. Here, the notice of appeal was received by the WCB Review Office on March 16, 2023, which is within the statutory time period. However, the employer did not formally appeal the decision to the Appeal Commission until July 12, 2023. The panel noted that the employer owner was contacted by the Review Office on June 19, 2023 and advised that their request for reconsideration of the decision was “lost” after it was received on March 16, 2023. At the same time, Review Office confirmed to the owner that their appeal from the finding of contravention of s 19.1(1) must be appealed directly to the Appeal Commission.

In these circumstances, where the employer owner clearly communicated to the WCB their intention to appeal the assessment of penalties within the required time frame and where the WCB misplaced that correspondence until several months later, the panel is satisfied that it would result in an injustice if the time frame for appealing the decision to the Appeal Commission was not enlarged.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the time frame for appealing the penalty imposed under s 19.1(1) of the Act should be enlarged to permit the firm’s appeal to proceed. The appeal on this question is granted.

Should the accident employer be assessed an administrative penalty for contravening s 19.1(1) of the Act? The WCB determined the employer contravened s 19.1(1) of the Act in relation to an accident claim arising out of an accident on July 25, 2022. For the appeal to be granted, the panel would have to determine that the evidence supports a finding that the employer took no action to prevent or discourage or attempt to prevent or discourage a worker from applying for compensation, pursuing an application that has been made or receiving compensation under the provisions of the Act. As detailed below, the panel was able to make such a finding and therefore we determined that the employer should not be assessed an administrative penalty for contravening s 19.1(1) of the Act.

The panel considered and reviewed the findings from the WCB’s Final Investigation Report which outlines the allegation against the employer owner that they attempted to prevent the injured worker from receiving compensation from the WCB by providing the WCB with misleading or incorrect information about the worker’s eligibility for benefits. In that report the WCB relied on the WCB adjudicator’s notes of a telephone call with the employer owner that took place on September 21, 2022 as establishing the “action” to suppress the claim occurred. The panel therefore reviewed the September 21, 2022 file memorandum prepared by the WCB adjudicator in relation to an initial conversation with the employer owner which contains a comment “NTL after incident”, which the panel understands to mean “No time loss”. The file memorandum appears to the panel to summarize that conversation but does not explicitly note the structure and content of the conversation. More specifically, it does not indicate who said what nor does it contain any direct quotes from the conversation. Furthermore, it is not clear from this brief memorandum what is meant by “after incident” as this could refer to any period following the accident. There is clear evidence on file that the injured worker had time loss in the days immediately following the accident, but soon afterward returned to work until they were dismissed from their job by the employer in mid-September 2022, such that by the time of this conversation between the employer owner and the WCB, the worker had been off work due to injury for a few days, then returned to work for more than one month and then left work permanently. The panel noted also that the employer confirmed in their Employer Accident Report of November 15, 2022 that the worker had time loss after the accident and returned to work on August 3, 2022. The panel also noted that the worker did not make an accident claim to the WCB until October 17, 2022.

The panel also considered the testimony of the employer owner that they did not recall stating to the WCB adjudicator that the worker had no time loss and noted that when the employer owner was interviewed by Compliance Services on January 19, 2023, they stated “…that’s wrong. Yeah. [The worker] definitely missed work….I don’t know why [the adjudicator] got that in [their] notes, but – I mean, [the worker] never came back to work after the accident for four days…..Maybe I thought [the adjudicator] was talking about a different date or after that, but [the worker] definitely – after the accident [they] definitely missed work.” The employer owner went on to confirm that they had no memory of that conversation.

In these circumstances, the panel does not find that the recorded comment “NTL after incident” is sufficiently clear to establish that the employer owner took an action to suppress information for the purpose of claim suppression. The unattributed comment is but the thinnest of evidence, unsupported by any other evidence, and is not sufficient to establish on the balance of probabilities that the action was taken. The panel also finds that there is no evidence of any other action taken by the employer that could fall within the scope of the prohibitions under s 19.1(1).

Based on the evidence before the panel and on the standard of a balance of probabilities, we are not satisfied that the employer took an action to prevent or discourage or attempt to prevent or discourage a worker from applying for compensation, pursuing an application that has been made or receiving compensation under the provisions of the Act, and therefore the employer should not be assessed an administrative penalty for contravention of s 19.1(1) of the Act. The appeal on this question is granted.

Should the accident employer be assessed an administrative penalty for contravening s 18(1) of the Act? 

The WCB determined the appellant employer contravened s 18(1) of the Act in relation to an accident claim arising out of an accident on July 25, 2022. For the appeal to be granted, the panel would have to determine that the employer did not fail to report the accident and injury resulting from the accident to the WCB within five business days. As detailed below, the panel was not able to make such a finding and therefore we determined the employer should be assessed an administrative penalty for contravening s 18(1) of the Act.

The requirement for employers to report an accident as set out in s 18(1) of the Act is explicitly mandatory. The provision states that “In case of an accident giving rise to a claim for compensation, the employer of the worker shall, within five business days… report the accident and the injury resulting therefrom to the board”. The report must be made at the earliest of five business days after the date the worker reports the accident to the employer or the date the employer learns of the accident.

In this case, the employer owner confirmed that they learned of the accident on the date it occurred, being July 25, 2022. Five business days from that date, considering the Terry Fox Day statutory holiday on August 1, 2022, is August 2, 2022. As such, that is the last date that the employer could have submitted its Employer Injury Report on time. The file evidence confirms that the employer confirmed to the WCB on September 21, 2022 that an accident occurred on July 25, 2022. Further, the Employer Injury Report was signed by the employer owner on November 15, 2022 and received by the WCB on November 17, 2022. The panel therefore finds that the employer did not report the accident to the WCB within the time required.

Section 18(4) of the Act states that it is an offence to fail to make a report as required under s 18. The employer owner submitted that they should not be subject to an administrative assessment for failing to report as the WCB failed to provide them with a form to complete after it learned of the accident in September 2022; however, the panel noted that the Act does not indicate that there are any exceptions to that requirement. The panel is therefore satisfied that the employer committed an offence by failing to make a report as required.

Section 109.7 allows the WCB to impose an administrative penalty in relation to an offence under s 18(1) of the Act by issuing a notice of administrative penalty that sets out the specific information required by s 109.7(1.1). The file evidence confirms that the employer received such a notice on February 15, 2023. The panel therefore finds that the appropriate notice of the administrative penalty imposed was given.

Based on the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the employer failed to report the accident to the WCB within five business days as required and therefore the employer should be assessed an administrative penalty for contravening s 18(1) of the Act. The appeal on this question is denied.

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 5th day of January, 2024