Notice by Employer of Accident

Workplace Safety and Insurance Act, 1997

2 (1) In this Act,

“accident” includes,

(a) a wilful and intentional act, not being the act of the worker,

(b) a chance event occasioned by a physical or natural cause, and

(c) disablement arising out of and in the course of employment; (“accident”)

21 (1) An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages.

(2) The notice must be on a form approved by the Board and the employer shall give the Board such other information as the Board may require from time to time in connection with the accident.

(3) An employer who fails to comply with this section shall pay the prescribed amount to the Board. This payment is in addition to any penalty imposed by a court for an offence under subsection 152 (3).

(4) The employer shall give a copy of the notice to the worker at the time the notice is given to the Board. 1997, c. 16, Sched. A, s. 21.

Decision No. 1283/16, 2016 ONWSIAT 1390 (CanLII)

[20] In my view, the interpretation of an “accident” in section 21 of the WSIA should be liberally construed and should apply to alleged work-related accidents in order to encourage and promote the reporting of all work-related accidents and disablements. The intent of the subsection is to encourage the reporting of all work-related accidents whether they are obviously work-related or more tenuously work-related. It is the Board and the Tribunal, based on the parties’ reporting of the accident, who then determine its work-relatedness.

[21] In this case, the worker experienced pain while at work on October 8, 2014 and reported the incident to her supervisor that same day. She sought medical attention. When she returned to work on October 9, 2014, she advised her employer of having sought medical attention and needing modified work. Her physician fulfilled his reporting obligations in completing a Health Professional’s Report on October 8, 2014. In my view all of the reporting conditions were met; the worker reported a work-related accident that required medical attention and modified work. The employer then had an obligation to report and could, as it ultimately did in this case, dispute entitlement for the accident. There is no excuse, however, for the employer to have waited until October 29, 2014 to complete its Form 7 when it had all of the information required to complete the form on October 9, 2014.

Decision No. 1600/17, 2017 ONWSIAT 1787 (CanLII)

[20] In Board Policy package No. 300 is found OPM Document No. 11-01-02, “Decision‑Making”. That policy refers to aforementioned OPM policy No. 15-01-02. I have thus consulted that policy document as well as a Tribunal decision which comments thereon.

[21] I have also reviewed section 21 of the WSIA. It is helpful to set out section 21, as it is short, succinct and, in my view, applicable as I consider the employer’s reporting obligations on the facts of this case. Section 21 of the WSIA reads as follows:

Notice of Accident and Claim for Benefits

Notice by employer of accident

21 (1) An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages [emphasis added].

Same

(2) The notice must be on a form approved by the Board and the employer shall give the Board such other information as the Board may require from time to time in connection with the accident.

Failure to comply

(3) An employer who fails to comply with this section shall pay the prescribed amount to the Board. This payment is in addition to any penalty imposed by a court for an offence under subsection 152 (3).

Copy to worker

(4) The employer shall give a copy of the notice to the worker at the time the notice is given to the Board. 1997, c.16, Sched. A s.21.

[25] The question arising then is whether that event is an “accident” as defined in law and policy. Before I address that key question, however, a short, preliminary discussion whether the employer’s reporting obligations were engaged is required given that the workplace representatives addressed that issue before me.

[26] I find the answer to this preliminary question is straight-forward. Above referenced section 21 of the Act and OPM Document No. 15-01-02 in my view make clear that the employer’s reporting obligations were not engaged by what the worker purportedly told GM on April 8, 2011, and by what happened in the coming days/weeks/months. That is because:

• the worker lost no time from work,

• he did not seek medical attention (thus, no “health care” was sought),

• he did not require any modification for his duties for approximately 20 months following the claimed accident (thus, he earned his full wages),

• during that nearly 20 months following the claimed accident, the worker never contacted GM or anyone else about what he only subsequently, very much later, claimed were persistent left knee difficulties.

Accordingly, pursuant to the Act and policy, the employer had no obligation to report the claimed incident of which the worker informed GM. Simply, the legal threshold was not met.

Ontario v. Hamilton Health Sciences Corporation, 2000 CanLII 16901 (ON CA)

[13] Thus, the purposes of this Act include the return of injured workers to work and the provision of compensation and other benefits. The reporting provision in s. 21 is central to this scheme. The Board can only provide the compensation, benefits, vocational training and rehabilitation if it learns of the injury. The statute is constructed to place the primary reporting obligation upon the employer. While the worker (s. 22) and health care professionals (s. 37(1)) also have reporting obligations, their failure to report is not an offence.

[14] In my view, the interpretation of s. 21(1) that best ensures that the objects of the legislation are achieved emphasizes the employer's duty to report rather than the timeliness of the reporting. In s. 21(1), the legislature has placed a duty on the employer to report the injury to the Board and provided a reasonable (three-day) grace period for the employer to comply with the duty. It is my view that the offence continues until the employer complies with its reporting obligation. Any other interpretation gives an employer who fails to meet the three-day deadline an incentive to hold off reporting entirely, or at least for six months, in the hope that the Board will not learn of the injury from another source within six months. If the employer succeeds, it will at worst face the $250 administrative penalty imposed by the Board. Such an interpretation of the legislation would hardly encourage compliance and could defeat the statutory scheme. [See * at end of document] An interpretation that would lead to such a result should be avoided if possible. As Iacobucci J. held in Rizzo at p. 43 [S.C.R.]:

It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88).