The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The issue before the panel is whether or not company C should be assessed 50% of the costs associated with a compensable accident sustained by a worker of another firm on August 10, 2007. Transfer of costs from one employer to another is provided for under WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”). Section 3(b) sets out the procedure regarding cost transfers. The relevant portions read as follows:

(b) Cost transfers will be available to eligible employers in the following circumstances:

(ii) Where the claim involves negligence of another employer or the worker(s) of another employer. In exceptional circumstances involving negligence the accident employer may be eligible for cost relief where a cost transfer is not appropriate. The cost relief criteria and method of cost allocation are described in Schedule F.

Schedule F sets out criteria for cost transfers where the worker of one employer is injured as a result of the negligence of another employer or the worker or another employer. With respect to determination of negligence, Schedule F provides:

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.

Company C’s Position:

The owner of company C attended the hearing accompanied by an advocate. They argued that its responsibility as the onsite safety coordinator was to review the inspection reports submitted by the various companies and to follow up with the contractors to ensure that recommendations regarding corrective action were followed. Given that the regular inspections did not identify the hazard, it was company C’s position that it was not reasonable to expect it to foresee a hazard, as would be required to make a finding of negligence. In order to find that company C was negligent in any way, it would have to be established that something they did or failed to do caused the accident in question, and it was submitted that they were duly diligent in performing the duties it was hired to do. It was also submitted that at no time was company C ever the prime contractor at the site and disproportionate weight was placed on a response given by the company C’s owner which was then interpreted by the WCB very narrowly. Overall, company C claimed that there was no negligence in the performance of its duties and requested that the WCB’s decision be reversed. It was added that as a safety professional with a CSO gold seal designation, company C took great issue with the WCB’s assessment of its negligence.

The accident employer, as a party with a direct interest, was given notice of company C’s appeal. It advised the Appeal Commission that it would not be attending the hearing nor participating in the appeal.

Analysis:

In order for company C to be successful in its appeal, the panel must find that the worker’s injury was not caused by negligence on the part of company C. We are able to make that finding. In the panel’s opinion, by informing the site owner of the need to designate a prime contractor and by ensuring that proper inspection procedures were in place, by the owner and the various contractors on the site, company C discharged its duty of care and cannot be considered negligent in respect of the accident.

At the outset, we note that it is not known what caused the accident to occur. The worker was injured when the bridge/catwalk he was walking on collapsed. At the hearing, company C’s owner described his inspections of the catwalk following the accident, and he was unable to determine whether the catwalk was poorly constructed from the outset, or whether the integrity of the original structure had been compromised by a sub-trade. His evidence was that either scenario was possible.

As noted by company C’s advocate in her submission, a finding of negligence involves three elements: (a) a duty of care, (b) a breach of that duty, and (c) damage resulting from that breach.

At the hearing, the owner of company C outlined his duties as “On Site Safety Co-ordinator”. He stated that he was hired to be present onsite to monitor and assess the situation. Reference was made to a purchase order form which outlined the services as: “Provide onsite safety co-ordination for (project) from Dec 2005 – Dec 31, 2006 as directed by (site owner)…”. This was the extent of the written documentation of the agreement between the firm and the site owner.

Company C’s owner also gave evidence as to the types of safety inspections which he coordinated on the worksite. In his view, the general level of inspections at this site was above and beyond the normal practice at construction sites. Every company was expected to perform their own inspections of their work area on a regular basis. Depending upon the type of work being done by each company, this could be a monthly or a weekly inspection. This would involve each company walking around their area of the building to check for conditions which required attention. Sample checklist reports which identified various areas of concern were referred to as an example. The types of hazards identified included issues such as the need for better housekeeping, removal of garbage, better lighting, removal of obstructions, etc. In addition to inspecting its own work, if a company detected something out of the ordinary with another trade, it would be marked down on the report. This was where company C became involved and after the hazard report was handed in to company C, it was responsible for organizing the reports from the various trades and ensuring that all identified concerns were addressed.

The company managing construction of the project also performed its own weekly inspection of the entire site.

In addition to the regular inspections by the companies and management, there were workplace safety and health committee meetings. This committee would meet on a monthly basis, and after meeting, they would go out and have a walk-through of the site together.

Finally, there were daily hazard assessments. Each day, the companies onsite would prepare a written hazard assessment which was handed in to company C. The purpose of the daily hazard assessments was to assess potential hazards and ensure that workers were aware of the risk so that they could arrange for the proper safety equipment. A second reason was to make sure that all people were accounted for in an emergency situation. Each day company C was responsible for keeping a list of all people who were onsite.

In the panel’s opinion, company C’s duty of care required it to take all reasonable steps to assist the site owner, project managers and sub-contractors in coordinating their activities. Its role involved the responsibility to ensure that proper inspection processes were in place to promote safety on the work site and that identified concerns were addressed. The evidence supports that there were extensive inspection procedures in place at this worksite. Company C’s area of responsibility related to coordinating the identification of workplace hazards as opposed to actually inspecting for proper workmanship. As noted by company C’s owner at the hearing, he does not possess the specialized mechanical/electrical/structural expertise to be in a position to inspect the work of the subcontractors. In order to do so, he would need much more schooling and experience. For example, to be able to inspect the building structurally, he would have to be knowledgeable with the Manitoba Building Code. He did not possess this expertise and this was not within the scope of his responsibility.

The panel accepts company C’s submission that its role was limited to monitoring the entire worksite to ensure a coordinated approach to identifying and addressing hazards, and that it adequately discharged its duties in this regard. There was no breach of duty which would lead to a finding of negligence.

There was some uncertainty on the file as to who assumed the role of prime contractor on the site. The panel is satisfied that the site owner (company B) was the prime contractor and that company C advised the site owner of that role. In coming to that finding, we rely on the following:

· As submitted by company C at the hearing, the purchase order references the purchase of a sign to meet WH&S requirements. A replication of the sign was produced at the hearing and it clearly identified the site owner as prime contractor;

· Company C’s owner gave evidence that the site owner was issued a Workplace Safety and Health violation as prime contractor in relation to a minor transgression which occurred several months prior to the accident;

· Correspondence from a workplace safety and health officer advised that she inspected the site on July 5, 2007 and that her notes indicated that company C’s role at the worksite was to deal with the construction project for the site owner as Prime Contractor;

· Company C’s owner gave a credible explanation for why he responded to the WCB’s letter of June 24, 2008 in the way that he did. Company C’s owner noted that the question which was asked was: “Do you know of any other party that was the prime contractor other than [company B]?” When company C’s owner replied that he did not know, this did not mean that he did not know who the prime contractor was. He always thought that company B was the prime contractor; his response was meant to indicate that he did not know of anyone else who may be the prime contractor.