Decision #18/00 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 3, 2000, at the request of the employer. The Appeal Panel discussed this case on February 3, 2000.

Issue

Whether or not the accident employer is entitled to transfer of claims costs.

Decision

That the accident employer is entitled to the transfer of claims costs.

Background

On August 2, 1996, the claimant attended a Winnipeg residence that was under construction to install a water meter. The basement floor of the house had not yet been poured. The basement staircase, which lead down to a temporary wooden step was sitting on the mud floor. When the claimant stepped on the temporary step it gave way and the claimant fell into the mud. His foot became stuck in the mud and he fell over causing pain in his right knee and left shoulder. File information revealed that the claimant opted to claim workers compensation benefits as opposed to taking legal action against a third party. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

On May 25, 1998, a WCB Legal Services Officer notified the employer that the WCB decided not to proceed with legal action. "Mr. [the claimant] informed the WCB that the house in question was obviously under construction at the time. He descended the stairs, using a flashlight, and noticed a temporary step sitting on the mud floor. Mr. [the claimant] decided to continue, but the temporary step broke and he became stuck in the mud. Mr. [the claimant] stated that he has worked in conditions like this for years and found nothing out of the ordinary about the jobsite and landing. Given Mr. [the claimant's] knowledge of the particular circumstances, experience with similar conditions, and opinion that no unusual conditions existed in the construction site, we decided not to proceed with legal action."

In a letter, dated June 26, 1998, the employer indicated that the claimant was asked to clarify what he meant by the statement "there was nothing out of the ordinary about the job site stairs/landing, etc.". The claimant indicated that visually there was nothing out of the ordinary about the job site. The employer stated, "However, the facts of the matter indicate that the temporary step was faulty and that this, in our opinion, constitutes negligence on the part of the contractor responsible. In our opinion, the contractor failed to afford Mr. [the claimant] the duty of care required under the Occupiers Liability Act. Accordingly, we believe that the entire costs of the above-referenced claim ought to be transferred to the contractor involved."

After consultation with the WCB's legal consultants, legal services wrote to the employer on July 31, 1998, stating in part, as follows:

    "Counsel made inquiries of the insurers for the owners of the house in question. Counsel was informed that the owners did not act as general contractors and did not take possession of the house until after the accident. Accordingly counsel's opinion was that there was no possibility of action against the homeowners. Counsel was informed that the general contractor was [name of the contractor]. As this firm was registered with the WCB on the date of accident, action is precluded by operation of 9(7) of the Workers Compensation Act. Accordingly we are providing notice to [contractor's name] of a possible transfer of costs under section 82(5) of the Act."

In reply to the WCB's notice of a possible transfer of costs, the general contractor objected to the delay in providing notice to his company. The firm noted that discussions with trades and site personnel had resulted in little or no information with respect to the circumstances surrounding the accident. In addition, the firm advised:

    "We can only state that what may have appeared to be a temporary step to Mr. [the claimant] was in fact not a step and was not intended to be used as such. We have never instructed any one working on our sites to install an item as described in Mr. [the claimant's] statement. This applies to all our job sites.

    It is every employee's job whether employed by us or employed by others to use common sense when entering any work place to ascertain whether any situation may pose unsafe conditions and to act accordingly.  Anyone entering a workplace who does not use common sense in effect becomes the negligent party."

On February 24, 1999, the WCB's legal services branch referred to subsections of the Workers Compensation Act (the Act) and as well applied sections of the Occupier's Liability Legislation when reaching its decision that the costs of the claim should remain with the accident employer. In part, legal services stated, "The degree of care to be expected of persons ordinarily coming onto a construction site is a relevant factor in determining whether the occupier has discharged its obligations. It is reasonable to expect that a person familiar with construction would have knowledge of the risk of stepping onto a temporary platform on a mud floor. In this case, therefore, it is our opinion that costs arising from Mr. [the claimant's] claim should remain with the accident employer." On June 23, 1999, the employer appealed this decision to the Assessment Committee suggesting that the claimant had a reason to attend the work site and that the occupier did nothing to alert him to this hidden hazard. There had been no action on the part of the claimant that would excuse the requirements of the Occupier's Liability Act.

In a decision, dated August 18, 1999, the employer's appeal was denied by the Assessment Committee. The Assessment Committee noted the claimant was well aware that he was on a construction site at the time of the accident and that he was not required to do anything out of the ordinary to perform the task. The claimant was aware the basement was not completed and unlit. There existed some confusion as to whether the plywood "step" which the claimant stepped on was intended for that purpose. The staircase leading to the basement was built before the basement was poured. Section 5(a) of the Workplace Safety and Health Act indicates that a worker maintains his responsibility to provide reasonable care in protecting his own safety and health. Under section 43(1), the claimant had the opportunity to refuse to perform the work in an unlit, unfinished basement. The Assessment Committee confirmed that the third party was not negligent and that the costs of the claim would remain with the accident employer.

The employer appealed the Assessment Committee's decision and an oral hearing was held.

Reasons

Initially, all claims costs are charged to the cost experience of an accident employer. For the most part, an accident employer is considered to be the employer of the worker at the time of the injury. However, the Act makes provision for cost relief in a number of circumstances. Section 82(5) of the Act allows the WCB to direct that any compensation awarded to an injured worker as the result of the negligence of an employer, who is in a class other than that of the injured worker, be charged against the class of the negligent employer:

    "Where the board determines that a worker's injury is the result of the negligence of an employer, or the worker of an employer, who is in a class other than that of the injured worker, the board may direct that the compensation, or any part of the compensation, awarded to the injured worker be charged against the class of the negligent employer or worker."

WCB policy 31.05.10 outlines the circumstances under which an accident employer will qualify for cost relief or cost transfer. When claim costs are conveyed from the cost experience of the accident employer to a shared cost pool, this is referred to as cost relief. And when these costs are conveyed from the accident employer to another employer, it is called a cost transfer.

The accident employer brings forward this appeal asserting that it is entitled to a cost transfer with respect to an injury involving one of its employees. According to the above referenced policy, a cost transfer will be available to an eligible accident employer in one of three possible situations. In the case at hand, the employer contends that it qualifies under the following policy provision, "Where the claim involves negligence of another employer or the worker(s) of another employer." It is important to note, however, that "cost transfers will only be made when the negligence of another party is established to the satisfaction of the WCB."

According to the evidence, the injured worker was summoned to a work site still under construction to install a water meter and while descending the basement stairs he sustained an injury to his right knee. The basement staircase lead down to a temporary step, which had been placed at the bottom of the stairs on the mud floor. When the worker stepped on this temporary step, it gave way and his foot got stuck in the mud. In the next instant, he fell over in a twisting motion and immediately felt pain in his right knee. The worker's injury was ultimately diagnosed as a torn medial meniscus of the right knee.

The general contractor testified at the hearing that he had no idea how the temporary step or platform got placed at the bottom of the stairs. "With the stairs, typically what we do is we hang a set of stairs in the basement so they can have access to the basement. The stairs on - and it is hung - from the top of the last step to the mud typically is about 21 inches. Obviously that is a fairly large step for anybody to try to gain access to the basement. So if a step or anything was put there, we have no idea who may have put that there." He also stated that it was not usual to use a temporary platform. Normally, a scrap piece of plywood would be placed at the base of the staircase so individuals would not be stepping directly onto the mud floor. The general contractor further indicated that he occasionally visited his various construction sites to view the stage of construction, but his foremen usually took care of this task.

The injured worker also testified at the hearing with respect to the temporary step or platform.

Q. Mr. [the claimant], you said that there was some kind of back stair. Can you describe its dimensions?

A. Well, it was - like I've been in lots of homes where they have a stair at the bottom. Like they just put a couple of pieces of two by ten or whatever with a piece of plywood across the bottom and it's in the mud, so you have - in fact, I was at one about three, four weeks ago and exactly the same situation.

Q. This box that was there that day, how wide was it, for example, from side to side?

A. Two, two and a half feet wide, three feet wide.

Q. Do you remember - I guess did you have a chance to examine this after you -

A. No. It was the least that I was worried about.

Q. Do you remember how deep it was?

A. Maybe 12, 14 inches.

Q. Do you remember how it was constructed? You indicated that you stepped through -

A. I stepped in the middle of it. My leg went through and then I fell over sideways and my knee popped. And then I was in the mud and water and, well, it kind of popped out and I was -

Q. Do you remember how thick the plywood was?

A. Like I said, that was the least - that wasn't what I was thinking about at the time.

Q. Where exactly was this box placed relative to the stairs? Was it right -

A. Right in front of the stairs.

Q. Was it partially underneath or just -

A. No, it was in front, as if it was there for as a step. Like I seen this lots of time. Like I said, it's - you don't get it on every work site, but you do get it from time to time.

Q. Well how many mud basements have you gone into?

A. Lately we don't put them in now until after the concrete's poured, but probably 200 or 300.

Q. How many times have you seen a temporary - I will use the word "temporary step" because that is your words. How often have you seen a temporary step?

A. Fifty, seventy-five times, somewhere in there, over the years.

Q. This stair, was it half the height of the gap or a quarter or a third? Can you describe -

A. It was probably about halfway down to the mud.

Q. What kind of stuff were you carrying with you when you went down the stairs?

A. Flashlight, a water meter, pipe wrench.

Q. What is in what hand or how are you doing this?

A. Probably the flashlight in the right hand and the water meter and pipe wrench in the left hand.

Q. A flashlight, do you use a flashlight? A. Yes. Q. Was there any lights down there? A. No. Q. No. What time of day was this?

A. I have to look on there. Like I said, this is almost four years ago. I think it was in the morning.

The accident employer alleged that, in accordance with the provisions of the Occupiers' Liability Act, the general contractor was negligent. By his permitting a faulty step to be placed at the bottom of the staircase, the general contractor failed to take reasonable care, and thus breached the duty of care owed to the accident employer's worker. Therefore, as a consequence of this breach, the general contractor should be liable for the costs of the worker's injuries.

We note that section 3(1) of The Manitoba Occupiers' Liability Act, imposes an affirmative duty on the part of an occupier to take reasonable care for the safety of persons permitted on his premises:

    "An occupier of premises owes a duty to persons entering on the premises and to any person, whether on or off the premises, whose property is on the premises, to take such care as, in all circumstances of the case, is reasonable to see that the person or property, as the case may be, will be reasonably safe while on the premises."

Also, an occupier is defined as, "an occupier at common law and may include (a) a person who is in physical possession of premises, or (b) a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises or the persons allowed to enter the premises."

The facts of the case confirm that the registered owners of the construction site did not act as their own general contractor, but rather, retained the services of a general contractor to supervise construction of their dwelling. In addition, they did not take possession of the premises until some time long after the accident.

We find that the general contractor was an occupier, as defined by the Occupiers' Liability Act, of the premises at the time of the compensable accident. Ultimate responsibility for controlling the various activities being conducted on those premises during the course of construction clearly rested with the general contractor. The injured worker had every reasonable expectation to believe that when he stepped onto the temporary platform, it would not collapse under him.

Pursuant to section 3(1) of the Occupiers' Liability Act, the general contractor owed a duty of care to persons entering on the premises that they would be reasonably safe while on those premises. We further find that the general contractor breached this duty of care owed to the injured worker. He failed to take reasonable care to ensure that the premises were reasonably safe and therefore was negligent. In light of our finding of negligence on the part of the general contractor, it necessarily follows that the accident employer would then be entitled to transfer of its claims costs in accordance with the provisions of the Act and WCB policy 31.05.10.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of February, 2000

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