The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

As noted in the preamble, this case deals with a Manitoba-based employer (A) who is seeking to have the costs associated with the worker’s accident in Ontario either transferred to employer (B) who operates the Ontario worksite, or to get cost relief for the costs of the claim. This appeal in no way deals with the merits of the worker’s claim or his entitlement to benefits. The worker did choose to participate in this appeal, however, to “clear his name”. The panel did in fact find his participation to be helpful, in respect of his descriptions of what transpired on the day of his accident and with respect to general industry practices in the trucking industry.

In order for employer A to be successful in this appeal, the panel would have to find either that employer A is eligible for a cost transfer or for cost relief under WCB policy. After a review of all the evidence on file and as presented at the hearing, the panel did find that employer A was not eligible for a cost transfer to employer B, but was entitled to cost relief on this claim. Our analysis and reasons follow.

Relevant Legislation and Policy

Under the Act, cost transfers or cost relief may be provided under subsections 82(4)(a) and (b), for accidents occurring on or after January 1, 1992, or under Section 82(5), for all claims, where the worker of one employer is injured as a result of negligence of another employer or the worker(s) of another employer.

WCB Board Policy 31.05.10 Cost Relief/Cost Transfers sets out the circumstances under which claim costs can be allocated among employers. It states that “initially, all claims costs are charged to the cost experience of the accident employer. Cost relief or cost transfers may be provided for some or all of those costs according to the criteria within this policy”.

The policy describes the requirements that must be met for a cost transfer from one employer to another to occur. In the context of this case, Schedule F provides that:

1. Cost transfers will be provided to the accident employer where:

(i) The accident involves only workers and/or employers within Class E; and
(ii) The injury results in costs of $5,000 or more; or
(iii) The accident involves workers and/or employers in different classes or self-insured employers in the same class: and

The injury results in costs of $1,500 or more.

Cost transfers will only be made when the negligence of another party is established to the satisfaction of the WCB. In making this decision, the WCB may consider a determination of negligence made by a third party.

2. In exceptional circumstances, cost relief (rather than a cost transfer) may be provided to a Class E employer where:

(i) the injury results in costs of $5,000 or more; and

(ii) the WCB has determined to its satisfaction, after investigation, that:

a) the injury to the worker of the Class E employer involved negligence on the part of another employer or the worker(s) of that employer; and

b) the injured worker was clearly not negligent; and

(iii) the WCB has determined that a transfer of cost to a negligent employer is not appropriate because:

(a) the negligent employer is out-of-province or out-of-business, or;
(b) the identity of the negligent employer cannot reasonably be determined, or;
(c) further investigation is not feasible given the passage of time, lack of information, or excessive cost of investigation.

Analysis

The Cost Transfer Issue

The representatives of employer A argue that employer B is an international company that operates plants in both Ontario (where the accident took place) and Manitoba, as well as other international locations. They argue that since employer B’s Manitoba operation is registered as an employer in Manitoba, this brings employer B in its entirety into Manitoba for the purpose of there being two qualifying Class E employers to allow the cost transfer to employer B. They also argue that the claim is in excess of $5,000, and the evidence supports a conclusion that employer B was negligent in its operations, in particular, that it did not maintain a safe loading area. As such, employer A concludes that all the cost transfer criteria of Schedule F have been met.

The panel is unable to accept this argument as it finds that the requirement of two Manitoba Class E employers has not been met.

Constitutionally, workers compensation is a matter of provincial jurisdiction, and each province has enacted its own workers compensation legislation to compensate workers who work within its own jurisdiction, and in some cases, beyond. Provincial legislation requires qualifying employers carrying on business within a particular province to register under its legislation, and to pay premiums for its covered workers, for accidents that may occur within the ambit of their employment. The Act in Manitoba is silent as to the nature of the employer – whether it is provincially or federally incorporated, or registered internationally. What does count is the level of business (and employment) activity of a particular employer in Manitoba, with assessment rates being established on the basis of size of its Manitoba payroll, the risk profile (based on Manitoba experience) of the particular industry segment within which the employer resides, and the particular accident and cost experience of the employer’s Manitoba operations. Simply stated, a Manitoba employer has its assessment rates set on the basis of its own claims experience, and within the rate setting model used by the WCB, and can rely on a certain level of predictability for those costs.

If we were to accept employer A’s argument to transfer its costs, employer B’s Manitoba operation would be tagged with the costs of its counterpart operation in Ontario, and presumably see its assessment rates rise as a result of negligent activities or workplace conditions in another province over which it had no control . The panel has found nothing in the Act that would allow for common ownership of multiple sites in multiple jurisdictions to be the basis for claims cost or accidents to transfer costs back into Manitoba and affect a Manitoba employer’s claims experience. To the contrary, Schedule F specifically notes that the WCB will not initiate a cost transfer where the negligent employer is out-of province (thus acknowledging its jurisdictional constraints), but may allow for cost relief instead, under certain circumstances.

In this case, as employer B was a registered employer with the WSIB, with a co-worker outside Manitoba, it does not fall under Manitoba’s jurisdiction, and as such, is an out-of-province employer. As such, the first requirement for cost transfers – two Class E employers – has not been met.

Accordingly, employer A is not entitled to cost transfer.

The Cost Relief Issue

The employer argues in the alternative that the cost relief provisions of the WCB policy have been met. In particular, they suggest that there is an out-of-province employer B, there was negligence on the part of that employer, and the injured worker in this case was not clearly negligent.

Employer B is an out-of-province employer

With respect to the first criteria noted above, the panel notes that given its earlier findings, employer B is considered to be an “out-of-province employer” in this case, and thus this criterion is met.

Employer B was negligent

With respect to the second criterion, the negligence of employer B, employer A argues that a variety of Ontario safety regulations required employer B to maintain a safe loading station with a fall-protection system that would have allowed a truck driver to attach a harness while working on top of a load to secure it. Their position is that such a system had been constructed at the worksite, but was used instead as a storage area for other trucks and was not accessible to the worker on the day that he was at employer B’s worksite. To this point, the employer and worker presented photographs of the site, and provided information on what a fall-protection system would normally provide for someone loading a truck. Employer A argued that it was entirely in the control of employer B to have that system operational and to provide a safe workplace to their truck driver, and that the failure to do so amounted to negligence on the part of employer B, which meets the criteria of the cost relief policy.

The worker also provided additional information on the fall-protection systems, and how he would use it when it was available at a delivery site. He also testified as to the non-functioning status of the fall-protection system at employer B’s workplace, and the alternative methods of loading a truck in the absence of such a system.

The panel notes that a fall-protection system effectively requires the person securing a load to be harnessed to a structure higher than the load that they are securing. This requires some type of steel structure, with a cable system attached to a higher point that connects to a harness worn by the worker. In the event of a fall, a clutch on the cable engages, arresting the fall. These systems must receive engineering approvals. Such a system was installed at employer B’s Ontario worksite. It was, however, unavailable for the worker’s use. This point has not been contradicted at any point in the file. It is also clear, from Ontario Regulations that this was an important consideration in terms of workplace safety regulations.

The panel finds that employer B was negligent, on a balance of probabilities, to the point where it created a workplace hazard that led to the worker’s injuries. We note that the employer’s business deals with the processing and shipment of lumber products from its worksite, and that an integral portion of its business would involve the loading of lumber on trucks visiting its yards, and the need to tarp that load prior to departure, in order to ensure safe and legal transport of the load on public roads. We also note that employer B had made a significant financial commitment in its construction of a steel structure and fall-protection system on its premises, indicating to us a clear understanding on its part of the risks associated with the loading and securing of trailer loads on that visited its premises, and of the general requirement for safe securing of lumber loads.

Employer B in fact had a policy requiring the fall arrest system to be used by all contractors and truck drivers while tarping loads of forest product for transportation and/or untarping when exposed to the hazard of falling where the surface he or she may fall is more than three meters. This allows the truck driver to have a safe means of access to and from the top of the load and the ability to safely walk about on the top of the load. This system was originally set up in compliance with Ontario Occupational Health and Safety Act and Regulations, Section 85 which provides that “where a worker is exposed to the hazard of falling and the surface to which he or she might fall is more than three (3) metres below the position where he or she is situated, the workers shall wear a serviceable safety belt or harness and lifeline adequately secured to a fixed support and so arranged that the worker cannot fall freely for a vertical distance of more than 1.5 metres…”

However commendable it was to build the system, employer B had a responsibility to ensure the system’s availability for truck drivers picking up loads, to ensure that the risks it was intended to mitigate were in fact mitigated. This was also a legal requirement, under the Ontario workplace safety regulations for employer B’s worksite, which formed part of the evidence on file. Instead, the evidence discloses that the system fell into disarray or disuse. In that light, we find that employer B’s redirected use of the steel shed as a storage location for other vehicles added a specific occupational hazard back into its workplace. As such, it breached a duty of care owed to visiting truck drivers, and in particular to the worker who was injured in this case. As such the panel finds that employer B was negligent, and that the second criterion of the cost relief provisions are met.

The Worker was not negligent

The third criterion for cost relief is that the worker was “not clearly negligent.” At the outset, the panel notes that the interpretation of the phrase “the injured worker was clearly not negligent” is ambiguous, with respect to the legal test it implies. The word “clearly” seems to suggest a standard beyond the normal civil standard under which we would normally find that the worker was “not negligent, on a balance of probabilities.” Does the addition of the word “clearly” suggest a higher standard, such as “not negligent beyond a reasonable doubt,” or some equivalent standard? Or does it imply that some (little or greater) degree of contributory negligence by an injured worker will wipe out any opportunity for an employer’s cost relief? While we have turned our mind to this dilemma in our considerations, we were not required to render an opinion on its interpretation, given our final finding is that there is no evidence that the worker was negligent in his execution of his job duties when he got hurt.

Briefly, both employer A and the worker argued that the WCB has misunderstood what “industry standards” are in play, in the trucking industry, and instead applied the industry standards for wood processing plants to the worker. They argued that many workplaces do not have fall-protection systems; it is common for truckers to tarp loads without such a system; the worker had done so, many times before, and that it was common practice for truckers to do so; there was no contractual stipulation between employer A and B regarding the presence of a fall-protection system; it was not common practice for truckers to refuse loads because of the absence of a fall-protection system; and, the worker was not specifically negligent in how he was tarping the load when he got injured.

In dealing with the issue of negligence, the panel will deal with several issues:

• Was the worker negligent in how he tarped his load?

• Was the worker negligent in choosing to tarp the load?

How the worker tarped

Dealing with the workplace accident itself, the panel heard evidence that the worker was following “normal” practices for tying down a load of lumber when he got injured. The tarps themselves are very heavy, and were draped over one end of the trailer load, following which the worker would normally unroll them along the top of the load and later secure them at the bottom. Photographs of the load show that there were several piles of lumber along the trailer, with spaces between them. The worker advised the gaps had to be covered or bridged in order to roll the tarp across them. At the time of the accident, he was kneeling on the top of the load and had slid two top boards of lumber across the gap, with some force. He applied the same force on a third piece of lumber, but it moved too easily and quickly, making him lose his balance and fall.

The panel also heard evidence as to the number of years that the worker had been driving and tarping (15) and the number of times per week he was likely to find himself tarping (less than once per week). The panel accepts and finds that in terms of the specific tarping job the worker was doing, he had established a long term proficiency in tarping. The panel finds that the worker was in a stable kneeling position on top of a flat load when he was covering the gap between the loads in good weather conditions, and that the loose board that he pulled amounted to a chance event leading to his injury, and not to a negligent act on his part.

The decision to tarp

The evidence before the panel is that the worker asked employees of employer B twice as to whether there was a tarping station but received no reply. He therefore tarped his load using the same technique he had used for many years. Knowing as we do now that employer B did have a tarping station, was the worker negligent in tarping without a tarping station? We find that he was not.

The evidence on file is that employer B’s tarping station was not functional. There is no evidence that the worker could have done anything to change that, short of refusing to tarp the load – a requirement stated by employer B’s client.

Employer A and the worker both testified that tarping stations are not always available when tarping; “customers can come from anywhere”; loads can come from all types of locations including rough areas which are not part of an industrial worksite; many tarp and strapping adjustments are made while on the road where no fall-protection systems are available. They also testified that there is no such thing as a portable fall-protection system available for truckers; any such system would have to be above the load, in order to prevent a fall, and the lumber strapping itself is not strong enough to support or arrest a fall.