Decision #114/21 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to 100% cost transfer. A file review was held on September 15, 2021 to consider the employer's appeal.
Whether or not the employer is entitled to 100% cost transfer.
The employer is not entitled to 100% cost transfer.
The worker filed a Worker Incident Report with the WCB on January 30, 2015, reporting an injury to their lower back, describing the January 27, 2015 incident as “I slipped on some ice in the parking lot. I had come out the door. I did not fall, but had pain in my lower back right away....” The incident occurred on the property of the third party employer. The worker’s claim was accepted by the WCB for a lumbosacral sprain/strain on February 4, 2015 and the payment of various benefits started.
On May 7, 2015, the WCB’s Legal Services contacted the employer to advise a review of the worker’s claim was being conducted to determine if all or part of the costs associated with the claim should be transferred to another employer. The WCB sought the employer’s position on how the costs should be allocated and further information to help the WCB to determine if the workplace accident was a result of the negligence of any other employer. The employer provided a response to the WCB on June 15, 2015, advising “As the incident occurred in the parking lot of another employer, [the employer] does not believe they are responsible for the costs associated with this claim. It is the responsibility of the employer who was in control of the premises where the incident occurred. It is their responsibility to ensure a duty of care is taken to protect persons who are present on their premises. This would include ensuring areas where people walk are clear of obstructions and hazards.”
The WCB’s Legal Services wrote to the third party employer on July 16, 2015 to gather further information on the worker’s claim. The WCB asked the third party employer to advise of their position on the allocation of claim costs and any information relating the worker’s injury to the negligence of any other employer, providing a copy of the employer’s response to the third party employer. On July 27, 2015, the third party employer responded advising that the door the worker used was the same entrance used by their customers, was in a high traffic area, and was monitored every day during the winter by an employee. The third party noted “If there is ice on the front entrance a de-icer is used to make it safe. If there is snow the entrance is shoveled. The parking lot is cleaned of snow when necessary.” The third party employer further noted its belief the necessary precautions were taken for their customers and other individuals entering and exiting their property. A copy of the third party employer’s letter was provided to the employer on July 31, 2015. On the same date, the WCB Legal Services’ requested snow removal logs or records from the third party employer. On August 12, 2015, the third party employer advised there were no logs kept but a visual observation of the area is done every morning by their store manager, who will request the staff clear snow or put down salt to melt the ice, when necessary.
On September 17, 2015, the employer provided a response to the information received by the WCB from the third party employer. The employer indicated they spoke again to the worker who advised of noticing a “…roof scupper above the area” where they slipped. The employer noted “This apparatus is designed to drain the roof. It is unusual and dangerous to have a scupper over a walkway” and provided photographs of the third party employer’s building with the location of the worker’s slip and the roof scupper indicated.
WCB’s Legal Services advised both the employer and the third party employer on December 18, 2015 that after review of the information provided, 50% of the claim costs would be applied to each party.
On February 11, 2021, the employer’s representative requested reconsideration of the WCB’s decision to Review Office. The representative noted that while the worker was leaving the building, it was necessary for them to walk through the entrance of the third party employer’s building where they encountered the hazard created by the roof scupper and it was not reasonable to assume the worker could have avoided the hazard. As such, the employer’s representative provided that reasonable care was not taken by the third party employer to ensure the worker was reasonably safe while on their premises and the third party employer should be responsible for 100% of the costs of the claim.
Review Office upheld the WCB’s decision to allocate 50% of the claim costs to both parties on April 13, 2021. Review Office found the evidence on file indicated the worker bore some responsibility for their injury as the transitioning weather conditions of that day would have meant there was a possibility of ice build-up and the worker had responsibility to ensure they were walking in a safe manner when leaving the third party employer’s premises. As such, Review Office determined it was correct to assign 50% claim costs to each of the parties.
The employer’s representative filed an appeal with the Appeal Commission on April 21, 2021. A file review was arranged for September 15, 2021.
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 in s 82(4) that the WCB may move claim costs from one employer:
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 established WCB Policy 31.05.10, Cost Relief/Cost Transfer (the Policy) to deal 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:
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.
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. In making this decision, the WCB may consider a determination of negligence made by a third party.
Where the accident does not meet these criteria, the claim costs will remain on the cost experience of the accident employer.
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 s 3(1) of the OLA which provides:
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.
Application of duty
3(2) The duty referred to in subsection (1) applies in respect of
(a) the condition of the premises;
(b) activities on the premises; and
(c) the conduct of third parties on the premises.
The employer was represented in the appeal by an advocate who provided the panel with a written submission dated September 8, 2021 in support of the appeal. The employer’s position is that the third party failed to take reasonable care to see that the worker was reasonably safe while on the third party’s premises and further that there is no evidence to suggest that the worker was contributorily negligent as determined by the WCB.
The employer’s advocate submitted that the standard of reasonable care would suggest that the third party should have repositioned the roof scupper to prevent ice buildup at the entranceway so as to keep persons entering the premises reasonably safe while doing so. The advocate stated in their submission that “Regardless the snow removal program in place at the time of the incident, the roof scupper still would have drained on to the entranceway creating the hazard....But for the location of the roof scupper, on a balance of probabilities, this injury would not have occurred.”
The employer’s advocate noted that although the third party states they have a program of ice and snow removal in place, there is no evidence that they complied with or acted upon that program, pointing to the absence of any log or records in this regard.
With respect to the finding by the WCB that the worker was 50% negligent, the employer’s advocate noted the absence of evidence of negligence on the part of the worker and stated that the worker’s injury was caused solely by the hazard created by the unsafe placement of the roof scupper.
Therefore, the employer’s position is that all costs associated with the claim should be transferred to the third party, and failing that, the employer should be entitled to cost relief under the Policy.
Third Party’s Position
The third party provided a written submission dated May 20, 2021 in response to the employer’s appeal. The third party’s position is that there was no basis for a review of the 2015 decision by the WCB and further, that it is their belief that they should be found to be less than 50% responsible, if at all, for the injury sustained by the worker.
The third party, in their written submission, confirmed the information previously provided to the WCB that since 2013 when the building entry was enhanced with the addition of a concrete ramp to facilitate access to the building by elderly and mobility-challenged customers, they have not had a single incident reported other than this worker’s accident. Further, the third party confirmed its practice of making regular checks of the parking lot and building entrance in the winter to ensure that snow is removed when needed and de-icing takes place when there is ice at the entry.
The third party noted that the worker did not notify the personnel at the premises when the injury was sustained and “...thus deprived us of the opportunity to investigate immediately” or to “document a contemporaneous record with our staff.”
The third party further submitted that absent new evidence to support the employer’s position that the third party should be more than 50% responsible as originally determined or that the initial ruling was unjust, the employer’s appeal imposes an undue administrative burden upon the third party.
The worker did not participate in the appeal.
For the employer to succeed in its appeal to have all claim costs removed from their firm experience, the panel would have to find that the third party employer was negligent and further, that the worker was not contributorily negligent in the injury that occurred on the third party employer’s premises. Upon consideration of all the evidence and the submissions made on behalf of both employers the panel was unable to make such findings.
The panel notes that the Policy brings into play both the common law tort of negligence and the legislative scheme under the OLA. Although the workers compensation program legislatively provides for a no-fault system of compensation to workers for injuries arising in and out of the workplace, s 82(4) of the Act and the Policy require the panel to consider issues surrounding the apportionment of claims costs as between two employers covered under the Act on the basis of findings of negligence made for the specific and limited purposes set out in the Policy.
The OLA sets out the duty of an occupier of premises to persons who enter onto those premises. The occupier’s duty of care is to “...take such care as, in all the circumstances of the case is reasonable to see that the person...will be reasonably safe while on the premises.”
As noted by the WCB’s Legal Services in its memorandum to file dated December 18, 2015:
The case law regarding an occupier’s liability is quite clear that 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.
The panel accepts that the Legal Services memorandum accurately sets out the state of the law as at that date. The occupier’s duty, then, as set out in the OLA is not one of perfection, but of reasonableness and it will be met where the particular circumstances establish that the occupier has a snow and ice removal program in place and has taken steps to follow that program.
The panel therefore considered the evidence as to whether the third party employer satisfied this standard. There is evidence that the worker slipped on ice, but did not fall, upon exiting the third party employer’s building on the date of accident, where the worker was undertaking work duties at the direction of the employer, and while going to their vehicle in the parking lot, located on the premises to retrieve some equipment required for the job. This is not in dispute.
The worker’s statement to the WCB provides some evidence as to the location of this incident; namely, that the worker slipped on a slope upon exiting the third party’s building and travelling 3 to 4 steps beyond the door. The file contains a photograph supplied by the employer to the WCB with a marking indicating the location of the fall, which the employer has stated is based upon their discussion with the worker. This location, as marked on the photograph appears to be near the front of the building, at least several feet away from the doorway where the worker exited the building and alongside the building in the parking area, near where a scupper is placed on the roof of the building. The panel noted the worker did not themself provide this information to the WCB and it does not align with the information provided to the WCB on February 4, 2015. The panel also notes there is no video surveillance footage available to confirm the location of the incident. Further, as noted by the third party, the worker did not report the incident to the third party at the time it occurred, and the third party was therefore unable to verify the location of the accident.
The panel also considered the information provided by the employer as to the location of the roof scupper, as revealed by the photograph provided by the employer to the WCB in September 2015, and the information obtained by the WCB as to the weather conditions on the date of accident. With temperatures on that date above freezing and intermittent freezing rain, the panel accepts that it is likely could have been some melting of snow and formation of ice on that date. The employer submitted that in those conditions it is likely that there was melt water draining from the roof scupper on the third party’s building, which could have frozen on the parking lot surface and caused the worker to slip while traversing that area. The panel finds this scenario to be speculative. The earliest evidence from the time of the accident as to the condition of the third party’s premises is the worker’s January 30, 2015 statement that they slipped on some ice. Approximately one week later the worker indicated they slipped on a slope. There are no photographs of the parking lot surface taken on or near the date of accident to confirm whether and to what extent the surface was covered by snow or ice. As noted by the third party, the worker failed to report the incident to the third party at the time it occurred so that a timely investigation into the circumstances of the accident could not occur. Further, it was only some nine months later that the employer advised the worker recalled noticing a roof scupper located above the area where they fell. Due to the passage of time, it was by then impossible for the WCB to investigate and determine whether there was in fact any drainage from the roof scupper on the date of the accident, and if so, whether any such melt water may have frozen at the location where the worker slipped.
The panel also considered the information provided by the third party to the WCB as to the efforts taken to maintain the entry area to its premises. The third party stated that the exit door used by the worker to go to their vehicle was the same door used by its customers. The doorway area was a high traffic zone monitored daily during the winter by an employee as to the presence of ice and snow, so as to keep it safe. The third party further noted its belief that the precautions taken for their customers and other individuals entering and exiting their property were sufficient, citing the lack of any other incidents since 2013 when a ramp had been built between the entry and the parking lot to assist those entering and exiting the store as the basis for that belief. The third party advised the WCB that it could not provide any records or log of the snow and ice removal program implementation but noted that “What does happen each morning is, the store manager unlocks the door...and when she does this observes the front entrance and if snow removal is required or if there is ice on the walk she will have the janitorial staff clear the snow or put down salt to melt the ice. Whatever is necessary to make the walk safe.”
The employer argues that the mere fact the worker slipped on the premises of the third party at or near a location below the roof scupper is sufficient to establish that the third party did not take reasonable steps to ensure the worker’s safety.
The panel does not agree with this conclusion. The fact that the worker slipped on ice on the premises of the third party is not of itself proof that the steps taken by the third party were not reasonable. Similarly, the fact that there was ice on the parking lot surface in Winnipeg on a mild day in January does not prove the third party did not take reasonable care to make the property reasonably safe. Further, there is a lack of evidence of a preventable safety hazard present in relation to the location of the roof scupper on January 27, 2015.
While there is no evidence in the form of maintenance logs or records kept confirming the implementation of the snow and ice removal program of the third party, there is evidence that the third party has a reasonable system in place to monitor and respond to weather conditions that might result in icy or snowy premises. Further, we accept the third party’s evidence that there have been no other slip and fall accidents in this location since 2013, suggesting that there is not a known hazard that the third party has failed to reasonably address.
On the basis of the evidence before us, the panel is satisfied on a standard of a balance of probabilities, that the third party’s ice and snow clearing program was reasonable in the circumstances and finds that the third party met its obligation to take reasonable care to ensure the premises were reasonably safe.
Given the panel’s finding that the third party employer met its obligation to take reasonable care to ensure their premises were reasonable safe and was not negligent, the panel is not required under the provisions of the Policy to make any findings as to the question of contributory negligence of the worker. However, the panel notes there is little evidence to support a finding that the worker in any way contributed to their own injury or caused the accident and as the employer pointed out, it is purely speculative to conclude that the worker was negligent in the circumstances. At the time of the accident the worker was on the premises of the third party for purposes arising out of and in the course of their employment, at the behest of the employer. As noted in the WCB’s Legal Services memorandum, snow and ice are common occurrences in winter and icy conditions can never be completely eliminated. As such, it is possible that an individual might slip on ice and injure themselves without there being any fault or blame ascribed to them. Here the WCB determined the worker was injured as a result of an accident, defined in the Act as a chance event occasioned by a physical or natural cause. On the basis of the evidence before the panel, this is the correct conclusion, as there is no evidence to support a finding that the worker was negligent in the circumstances.
The panel finds that the employer is not entitled to 100% cost transfer.
With respect to the employer’s further and alternate request for cost relief under the Policy, the panel notes that there has been no decision of the WCB in this regard and therefore the question is not within the jurisdiction of the Appeal Commission panel.
The employer’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of September, 2021