The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The appellant/third party is appealing the decision made by the Workers Compensation Board ("WCB") that it should be charged 50% of the claim costs in relation to an injury sustained by a worker employed by another firm. A hearing was held on December 11, 2017 to consider the appellant/third party's appeal.

Issue

Whether or not the appellant firm should be charged 50% of the claim costs in relation to an injury sustained by a worker employed by another firm.

Decision

The appellant firm should be charged 50% of the claim costs in relation to an injury sustained by a worker employed by another firm.

Background

On March 21, 2014, the worker injured her left leg when she slipped and fell in a parking lot outside the front doors of a retail establishment. At that time, she was taking clients by bus to that store as part of her job duties. WCB accepted her claim and has provided a variety of benefits to the worker.

File information discloses that as costs attributed to the WCB claim climbed beyond the $10,000 claim threshold for transfer of costs, WCB Legal Services began to investigate whether some or all of the claims costs should be transferred from the accident employer ("Employer A") to the employer who occupied the retail establishment ("Employer R"), both of whom are covered employers under the Act. Letters were sent to the two employers asking for their positions on the issue.

On November 10, 2014, Employer A asked for all costs of the claim to be transferred to Employer R, as the worker's injury was caused by a large patch of ice on their property which was only dealt with after the worker's injury had occurred.

On November 24, 2014, Employer R provided video which confirmed that there was a patch of ice on the concrete caused by an overflow of a rain gutter that had been identified on an employee grounds inspection earlier in the day. Their position was that ice was a common hazard in Winnipeg in March of any year. The injury occurred because of the negligence of the worker in failing to pay appropriate attention to the expected normal hazards, and because it was the worker's decision to run to the bus.

On March 17, 2015, Employer A provided their response, indicating that the worker had parked close to the front doors to safely unload clients and that this was a normal practice. The worker had increased her pace because it was cold out. The slip would not have occurred if Employer R had assessed the risk or salted the area. Employer R knew that their downspouts were a problem but didn’t correct the situation.

On March 17, 2016, WCB Legal Services determined that 50% of the claim costs should be transferred to Employer R. The decision referenced the Occupiers Liability Act, and in particular section 3(1) which requires a property owner to take such care that a person will be reasonably safe on the premises. It noted that the courts acknowledge that ice and snow are common hazards and that the property owner is not a guarantor or insurer. However, there is still some obligation to keep a property clear of ice and snow. In assessing 50% responsibility (and thus a 50% cost transfer) to Employer R, WCB Legal Services found that Employer R did notice the ice problem, yet had undertaken no action. As well, the worker did bear some responsibility for increasing her pace when she left the store, compared to when she entered.

On April 10, 2017, Employer R appealed this decision to Assessment Committee, citing similar arguments to those provided to Legal Services prior to its decision.

On May 31, 2017, the Assessment Committee provided a decision that upheld the Legal Services decision. The supporting reasons for the 50% cost transfer followed a similar analysis to that provided in the Legal Services decision.

Employer R appealed this decision to the Appeal Commission, and a hearing was held on December 7, 2017.

Reasons

Applicable Legislation and Policy

The Appeal Commission and this panel are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB Board of Directors.

This appeal deals with the transfer of claims cost from the accident employer to the appellant employer.

The Act provides that the WCB may move claim costs from one employer to another. This is done pursuant to subsection 82(4) of the Act which provides:

Determination of experience 

82(4) In determining the record and experience of an employer, the board may:

(a) exclude the cost of compensation awarded to the workers of the employer resulting from the negligence of another employer or the workers of another employer; 

(b) include the cost of compensation awarded to the workers of another employer resulting from the negligence of the employer or the workers of the employer;…

The WCB Board of Directors enacted WCB Policy 31.05.10, Cost Relief/Cost Transfer, which deals with the WCB process of moving costs from one employer to another. It provides in part that:

…To ensure fairness, accountability and responsibility among employers, some claim costs should be removed from an individual employer's cost experience and shared by a larger group of employers or transferred to another employer…The cost transfer process occurs when claim costs are removed from the accident employer and charged to another employer…

Schedule F of the policy deals with the transfer of costs from one employer to another in cases of negligence. It provides, in part:

SCHEDULE F

NEGLIGENCE

The claim costs may be removed from an accident employer's cost experience if the worker is injured or killed due to the negligence of another employer or workers of another employer.

Cost Transfer

If the WCB determines the worker's injury or death resulted from the negligence of another worker or employer, all or part of the claim costs are transferred to the negligent employer's cost experience. Cost transfers for negligence are available to employers in all classes.

The claim costs are transferred to the cost experience of negligent employers or whose workers were negligent in proportion to the degree of negligence of each worker or employer.

The injured or deceased worker's own negligence may have contributed to the injury or death. If this is the case, the WCB will consider to what degree the worker was contributory negligent when it determines the amount of claim costs to transfer to other employers.

Criteria for cost transfer:

Cost transfers will only be made when the negligence of another party is established to the satisfaction of the WCB and the worker's injury or death results in claim costs of $10,000 or more.

Also relevant to this appeal is The Occupiers' Liability Act (the "OLA") which sets out the duty owed by occupiers of premises to visitors to keep the occupied premises in a reasonably safe condition. This duty is set out in section 3(1) of the OLA which provides:

Occupiers' Duty 

3(1) 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 the 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.

Appellant Employer's Position

Employer R was represented by its Director of Human Resources and an employer advocate who made a submission on behalf of the employer. They called the senior operations manager of the retail outlet as a witness, at the outset of their presentation.

The manager provided a detailed physical description of the retail outlet which included a large parking lot holding 337 parking spots. A lane separated the parking spots from the store, which had two separate entrances. The lane was designated as a fire lane. There were no specific designated drop off/load out areas in front of the store. At that time of year, the store would typically have 750-1000 customers per day.

The manager then described the maintenance and inspection protocol used to ensure the safety of its customers. The common practice was for the maintenance lead hand to walk the external perimeter of the store four times a day, "looking for, like picking up garbage, making sure the property looked presentable and looking for any kind of scenarios where he thought that it might be slippery. If there was ice, the practice would be to throw safety salt or ice melt, whatever you want to call it, and try to melt the ice." They did expect that different spots would have ice and be slippery, and they were committed to do their best, but did note that conditions would change rapidly over the course of the day. If customers came in to complain, maintenance would also address those concerns.

In response to questions from the panel, the manager advised that no records were kept on when the maintenance checks were done and he couldn’t say for sure whether four grounds inspection walks had been done on that specific day. He indicated that "There would have been for sure a walk done in the morning. Whether the second, I mean, the time of day that it happened, I don’t know if he went out." The first walk would be before the store opens at 9:00 am.

The employer was aware that Employer A would on occasion bring their clients to the store but was not aware of the frequency. The area actually used by Employer A and its bus to drop off and load out its clients was commonly used for that purpose, as the area could also accommodate a wheelchair ramp and was near the store entrance.

Regarding the specific area where ice had accumulated on that day, the senior operations manager described the eavestrough system as running a long stretch along the front of the store, with seams.

We've had in some years, and we've had it fixed, the seams that didn't hold. And because of thaw and freeze, and we have what's called drain melt, like, an ice melt system to try and mitigate that it doesn’t freeze up so that we have melting in there. So there would be sometimes that water would, when the conditions are right, water would drip and then freeze coming around.

The manager noted that there was also a downspout in that area but didn’t know if the water came from the downspout or the eavestrough. However, the downspouts don't drain onto the street but underneath the ground. He confirmed that a heat trace system is run in the eavestroughs and down the downspouts "because you don't want it to over freeze, right, because if it all freezes up, then you have it coming all over the top…" The manager noted that while he couldn’t recall the general state of the parking lot, the particular icy spot was in the area where eavestrough dripping usually accumulated. It had happened before. The advocate submitted that Employer R made a reasonable attempt to keep a safe parking lot, given that there will always be hazards when it rains or snows in Winnipeg. In this case, the worker was running, suggesting the accident was due more to misfortune than negligence.

The representative asserted that the worker's injuries were entirely due to her actions. She had the choice to park anywhere on the facility. She had the obligation to make sure that her clients were safe, which was a requirement of The Workplace Safety and Health Act and its Regulations. Had she inspected the area, she could have moved the bus to another spot or advised Employer R of the hazard, and in any event, that area was not that dangerous; she was already on her 6th trip between the bus and store when she fell. The worker's injuries occurred due to personal choices that were out of the control of Employer R.

Accident Employer

Employer A was represented by its Senior Manager Human Resources as well as its Risk Officer who made the primary submission on behalf of the employer.

Their position was that Employer R does bear liability for the worker's injuries, citing section 3(1) of the OLA, in that the operator of premises owes a duty of care to ensure that conditions are maintained as best as possible. This duty of care was not met. While Employer R did do four sweeps of the property each day, there is no evidence as to when they occurred. Given where the ice patch was, at the front entrance area of the store, it was clearly visible and in a high traffic area, and that was where the worker fell and where anyone could have fallen. Employer R failed to provide its customers, including the worker, with protection such as a traffic cone or to get rid of the ice patch entirely.

As to their worker's conduct, the risk officer advised that the weather was brisk at the time. It was -13C with a 43 kmh wind, leading to a wind chill of -26C. There was video footage from a store surveillance camera which recorded the worker's accident. The video shows that the worker was walking briskly, not running. The hazard was clearly there, but it was not clearly visible, in that every person walking is not going to be walking with their head down. He also noted that the area of ice accumulation was in the store's:

…prime zone, if you look at it from a risk perspective, if you score it, that's a fairly significant risk there because that's where most of your traffic is going to be coming in the building and exiting the building, that sooner or later, the probability and the frequency, if you put it together, somebody is going to slip and fall, and in this case it did, and in this happened to our [employee].

…and in this case, granted they've done it as reasonably practical, however, given the close proximity to the doors, that, to me, is a glaring safety hazard that [employer R] failed in their duty to mitigate.

The Risk Officer acknowledged that their worker did bear some responsibility for her slip and fall but that Employer R also had some responsibility for what had happened.

Worker's Position

The worker did not participate in the appeal.

Analysis

For Employer R to succeed in its appeal to have all claim costs removed from their firm experience, the panel would have to find that Employer R was not negligent and thus had no role in the worker's injury that occurred on its premises. After consideration of all the evidence and the submissions made on behalf of both employers, the panel was unable to make this finding. The panel further finds that employer R and the worker were both negligent and both contributed to the worker's injury, and that the current allocation of fault (50%-50%) with the associated transfer of 50% of claims cost to Employer R is appropriate.

At the outset, the panel notes that the Cost Transfer Policy brings the common law torts of negligence and occupiers' liability (as codified by statute in the OLA) into a small corner of the workers compensation legislative scheme, which is historically a no-fault system. However, these torts are specifically limited by this Policy to issues surrounding the apportionment of claims costs between two employers covered under the Act, and has no bearing on the benefits paid to the worker or to the historic tradeoff between workers and employers.

At the hearing, the panel noted that in their primary submissions, Employers A and R did not comment directly on the OLA or on the interpretation provided by WCB Legal Services that formed the framework of its original decision on March 17, 2016. The panel therefore asked each employer as to their positions. Both advised that they were satisfied with the accuracy of the WCB Legal Services' summary and review of the case law.

The panel likewise is satisfied with the WCB Legal Services summary, and will rely on it as part of our analysis. WCB Legal Services cited section 3(1) of the OLA, which refers to the duty of care owed by an occupier of premises to a person entering their premises to see that the person is reasonably safe while on the premises, and then provided the following commentary:

The case law regarding an occupier's liability is quite clear than an occupier is not a guarantor or insurer of a person's safety, but they must take reasonable care to keep the premises reasonably safe. What constitutes reasonable care will depend on the particular circumstances of each case.

With respect to slips and falls during winter months, courts have stated that an occupier's duty includes some obligation to keep the property clear of ice and snow, and to have a reasonable program of snow and ice removal in place. There must also be evidence that the program has been followed at the time of the injury. Courts however have been clear that snow and ice are common occurrences in winter and that icy conditions can never be completely eliminated.

With due consideration of the position advanced by Employer R, the panel finds that Employer R did not meet the duty of care requirements set out in subsection 3(1) of the OLA, based on the following considerations:

• Video and photographs taken at the time of the March 21, 2014 incident show that the general area in front of the retail outlet was generally clear of ice and snow, suggesting that the specific ice accumulation that led to the worker's injury was not a result of general winter conditions where ice and snow buildups would be routinely expected. In the panel's view, the facts of this claim do not fall within the "common occurrence in winter" scenarios that the courts have generally acknowledged.

• Rather, the evidence presented suggests that the ice accumulation that led to the worker's injury was specifically caused by a known building issue, being the eavestroughs at the front of the building which could not handle water flow during freeze/thaw cycles. Employer R's senior operations manager confirmed at the hearing that the specific ice accumulation where the worker fell on March 21, 2014 was likely caused by eavestrough overflow from over freezing, as it had happened before.

• The panel has reviewed the video and photograph evidence provided and notes that there were no other icy spots visible in near proximity to the injury location. The ice accumulation was in a specific area, approximately 1 foot by 3 feet in size. In the panel's view, this ice accumulation arose out of a unique hazard of the premises known only to Employer R. Given that this particular hazard would (and did) lead to a concentrated ice accumulation in a high traffic area very close to the store entrance, there was a clear duty of care on Employer R, as occupier of the premises, to keep its customers reasonably safe from that specific hazard.

• The panel finds that this duty of care was breached, in the circumstances of this case. While Employer R has relied on its four-times-a-day walks around the exterior of the building, the panel finds that this was not sufficient in the circumstances:

o Early file evidence suggests that there was likely only one maintenance walk-through done before the incident occurred, and evidence at the hearing suggests it was most likely done before the store opened at 9:00 am.

o Employer R was generally aware that ice near the building was a risk for its visitors, in that its maintenance practices included the use of ice melt, as required.

o Employer R also knew of the specific problems caused by its eavestroughs and downspouts, including leaking seams and overflow caused by over freezing. The employer acknowledged that it had installed a heat trace system to try to deal with the issue but that it was not always successful; it was aware that the spot where the ice had accumulated was from the eavestrough issue, as it had happened before.

o The time of year, late March, is known for significant changes of weather in Winnipeg including freeze/thaw cycles because of temperature swings, day to day or in the course of the day. When coupled with the eavestrough/overflow/ice hazard that was known only to Employer R and the location so close to the store entrance, the panel finds that Employer R's general maintenance/inspection practices were not adequate at that time to manage the specific risk to its visitors. In the alternative, it would have been open to Employer R simply to place a traffic cone or other cautionary sign at that particular spot (much as it did immediately after the incident) to ensure the general safety of its visitors, or of course to fix the underlying and ongoing eavestrough problem.

In accordance with the Policy, the panel has also considered the activities of the worker on the date of the accident in determining whether and to what degree there was contributory negligence on the part of the worker. The panel finds that the worker also bears some responsibility, by her actions, for her injury. In particular, given that March 21, 2014 presented with wintery conditions, the worker did have an obligation to exercise some care. The evidence discloses that the worker did increase her speed to a brisk walk after a number of prior trips to and from her van, and did change directions quickly on this last trip without due regard to the ground surfaces that she was traversing, all of which led to her slip and fall.

The panel therefore finds, on a balance of probabilities, that Employer R and the Employer A, through the actions of its worker, each bear responsibility for the worker's accident. In terms of apportionment, the panel is satisfied that the allocation of fault to Employer R, at 50%, is appropriate, and that the appellant firm, Employer R, should be charged 50% of claim costs in relation to the injury suffered by the worker who was employed by Employer A.

Employer R's appeal is therefore denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of January, 2018