The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The accident employer is appealing the decision made by the Workers Compensation Board ("WCB") that their firm is not entitled to transfer of claim costs to another firm. A file review was held on December 13, 2022 to consider the accident employer's appeal.

Issue

Whether or not the firm is entitled to transfer of claim costs to another firm.

Decision

The firm is not entitled to transfer of claim costs to another firm.

Background

On December 8, 2021, the worker filed a Worker Incident Report with the WCB reporting an injury to his left ankle after he slipped and fell in the parking lot while on a home visit with a client. The employer filed an Employer's Accident Report on December 9, 2021, reporting that after completing a home visit on December 8, 2021, the worker "slipped in ice & snow" in the parking lot and twisted his ankle. The worker's claim was accepted for a left mid-shaft fibula fracture and payment of various benefits was approved.

On April 22, 2022, the WCB contacted the employer to gather information regarding a potential transfer of claim costs to another employer. The WCB noted that the facts indicated the worker slipped and fell in the parking lot while on a home visit, and the employer's Report indicated the worker slipped in ice and snow. The WCB determined the location where the workplace accident occurred was owned by a third party, and the claim costs had reached the threshold amount for consideration of a transfer of costs. The WCB asked the employer to advise as to their position with respect to the potential transfer of claim costs, and provide any information that would assist the WCB in determining whether the worker's injury was the result of negligence on the part of the third party.

On May 13, 2022, a representative for the employer responded to the WCB's letter, indicating the employer supported the "…WCB transferring the entirety of the claims costs (100%) to [the third party]." The representative advised that it was their position that the third party was "…responsible for maintenance of the property where the worker's fall took place and… for maintaining a safe environment for worker's (sic) going to and from the facility. This should've included clearing the sidewalks and parking lot of snow and ince (sic) on a timely basis as well as sanding where and when required. We also believe that this should've been done on a timely basis in order to prevent falls such as this worker experienced." The representative noted the worker was wearing appropriate footwear for the weather, which was of good quality.

On May 16, 2022, the WCB requested that the third party provide information regarding the potential transfer of claim costs to their firm. By letter dated June 4, 2022, the third party advised that it was their position the employer should be 100% responsible for the claim costs. The third party noted that the government's weather site indicated it snowed on December 8, 2021. The third party also noted that their maintenance records showed they paid for 1.5 hours of snow clearing that day, that this was completed on a timely basis, and that "…more than adequate attention is made to keep the parking lot safely cleared and sanded." In addition, the third party noted that they had not been notified of the workplace accident on a timely basis.

In a memorandum to file dated June 22, 2022, the WCB noted that there would be no transfer of claim costs as they could not establish there was negligence on the part of the third party. The WCB noted the third party had a snow clearing procedure in place, which was implemented on December 8, 2021. The WCB found the third party's actions were reasonable and what would be expected for any employer under similar circumstances. The WCB further noted the employer did not initiate any further investigation to provide more information related to the workplace incident or the conditions at the time of the incident. On June 28, 2022, the WCB advised the employer and the third party that they had determined there would be no transfer of claim costs to the third party.

On July 27, 2022, the employer's representative requested that Review Office reconsider the WCB's decision. The representative disagreed with the WCB's determination that the third party "…took adequate and reasonable care in the maintenance and cleaning of their parking lot." The representative noted the third party's residents were made up of senior citizens, caregivers and physically vulnerable people, and the third party should have taken extra precautions to ensure their parking lot was clear and free from ice and snow. The representative submitted that the fact the worker slipped and severely fell, despite being in good health, demonstrated the parking lot was not properly or reasonably cleaned at the time of the accident.

On August 30, 2022, Review Office determined that the employer was not entitled to transfer of claim costs on the claim. Review Office found that the third party's snow clearing plan was appropriate and that snow clearing was performed on December 8, 2021. Review Office further found that the claim information did not support the third party was negligent in providing appropriate care and management of the parking lot, and the employer was not entitled to transfer of claim costs to the third party.

On August 31, 2022, the employer's representative appealed the Review Office decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act, and policies established by the WCB's Board of Directors. The provisions of the Act that were in effect at the time of the December 8, 2021 accident are applicable.

This appeal deals with whether or not claim costs should be transferred from the accident employer to a third party who is also covered as an employer under the Act.

The Act provides that the WCB may transfer claim costs from one employer to another in certain circumstances. Subsection 82(4) of the Act thus states, in part, as follows:

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's Board of Directors has established Policy 31.05.10, Cost Relief/Cost Transfer – Class E (the "Policy"), which provides a framework for the transfer of claim costs from a one employer to another. The Policy provides that the goal of Cost Relief and Cost Transfer is to ensure fairness and accountability for employers, and that to achieve this goal, the WCB may re-allocate claim costs to reflect collective or individual responsibility.

The Policy outlines the circumstances for Cost Relief or Cost Transfer, in part, as follows:

As described in the attached Schedules, Cost Relief or Cost Transfer may be provided to Class E Employers in the following circumstances: 

…. 

• The claim involves negligence by another covered employer or the worker(s) of another covered employer. See Schedule F – Negligence….

Schedule F of the Policy provides, in part, as follows:

SCHEDULE F

NEGLIGENCE

Under the Act, an injured worker (or his or her dependants) cannot sue the worker's covered employer, another covered employer, or a fellow worker if any of them caused the work-related injury or death. The only recourse the worker (or his or her dependants) has is to claim compensation under the Act. Under subsection 82(4) of the Act, the WCB may remove the claim costs from an Accident Employer's Claim Costs Experience if the worker is injured or killed due to the negligence of another employer or the worker(s) of another employer.

Cost Transfer

If the WCB determines the worker's injury or death resulted in whole or in part from the negligence of another employer or the worker(s) of another employer, claim costs are transferred to the negligent employer's Claim Costs Experience (Class E Employer) or Claim Costs Account (Self-Insured Employer) or to Claim Costs Experience or Claim Costs Account of employers whose workers were negligent.

The claim costs are transferred to the Claim Costs Experience or Claim Costs Account of other employers in proportion to the degree of negligence of each employer or worker.

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 contributorily 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….

Accident Employer's Position

The accident employer was represented by an advocate, who provided a written submission in support of the employer's appeal.

The employer's position was that their firm should be entitled to a significant transfer of costs to the third party's WCB cost experience as the evidence indicates that, at the very least, the third party bore some responsibility for the worker's accident.

The employer's advocate argued that negligence has been defined as failing to exercise the care expected of a reasonably prudent person in like circumstances. It was submitted that while having a parking lot cleaned regularly and when it snows is a reasonable expectation for most parking lots, a "reasonably prudent" organization would take extra precautions to ensure their parking lot was clear when it is used almost exclusively by senior citizens, caregivers, and physically vulnerable persons. It would therefore not be unreasonable to expect the third party to have had an internal maintenance person available to do extra clearing of the parking lot on particularly snowy and slippery days, such as the date of the accident.

The advocate submitted that the fact the worker slipped and was injured, despite having been in good health, showed that the parking lot was not properly or "reasonably" cleaned at the time of the accident. The advocate suggested that the third party was fortunate that "one of their vulnerable residents" did not slip and fall as the consequences of such a fall would likely have been more severe.

The advocate further submitted that the fact the injury was accepted by the WCB essentially proved that something other than the worker's physical condition or actions caused the accident and injury. As the worker had no pre-existing condition which could have caused the accident and injury, it could only be concluded that a hazard of the premises was involved, which would be the responsibility of the third party who owned the parking lot.

In summary, it was submitted that there is no real question that the cause of the accident was the snow and ice build-up in the parking lot that day. As the third party is responsible for the condition of that lot, they should bear responsibility for 100%, or at the very least 50%, of the costs of this claim.

Third Party's Position

The third party was represented by its president, who provided a written submission in response to the employer's appeal. The third party's position was they are not responsible for any of the claim costs, and 100% of those costs should remain the responsibility of the employer.

The president emphasized that the third party maintains a safe environment. Weather information showed it snowed on the day of the accident, and a review of their maintenance records indicated they paid for 1.5 hours of snow clearing that day. Snow clearing was completed on a timely basis, and more than adequate attention was paid to keeping the parking lot safely cleared and sanded.

The president submitted that the third party does supply the level of care that would be expected of a reasonably prudent person in the circumstances. The third party has its parking lot cleaned regularly and snow clearing occurs every time it snows.

The president noted that the employer is making assumptions and generalizations with respect to the nature of the facility and its tenants. The building is a "55 plus facility", and while the employer refers to "vulnerable residents", the employer does not have access to the age or physical status of the tenants, which is confidential information. The president further noted that although the employer's advocate suggested that such residents would fall or have fallen in these conditions or circumstances, no residents or members of the public did fall, even though they would have used the same parking lot that day.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue on appeal is whether or not the firm is entitled to transfer of claim costs to another firm. For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's accident and injury resulted in whole or in part from the negligence of the third party or its workers. After consideration of all of the information on file and the submissions provided by the employer and the third party, the panel was unable to make that finding.

The panel notes at the outset that the workers compensation legislative scheme is historically a no-fault system. The issue of negligence is brought into the Cost Transfer Policy, but is specifically limited under that Policy to issues relating to the apportionment of claim costs between two employers covered under the Act, and has no bearing on the benefits paid to a worker or the historic trade-off between workers and employers.

The panel accepts that the third party, as the owner of the premises, has an obligation to take reasonable care to keep the premises reasonably safe, and that what constitutes reasonable care will depend on the particular circumstances of each case.

The employer has claimed that there is no real question that the cause of the accident in this case was the snow and ice build-up in the parking lot that day. The panel notes, however, that while the employer indicates in their report that the worker "slipped in ice & snow", there is no such reference to ice and snow in the Worker Incident Report, and there is little or no information on file with respect to the particular area where the worker fell or the condition of that area at the time of the accident.

The panel finds that the evidence supports the third party took reasonable and appropriate steps to keep the premises and parking lot reasonably safe in the circumstances. The panel is satisfied that the evidence shows the third party had a reasonable program and procedure for keeping the property clear of ice and snow, where the parking lot was cleaned regularly and snow clearing occurred every time it snowed. The panel is further satisfied that the program and procedure were followed at the time of the injury, and notes that the third party's evidence that it snowed on the day of the accident, and their maintenance records showed they paid for 1.5 hours of snow clearing that day, which was done on a timely basis, is undisputed.

The panel is of the view that to the extent that snow and ice may have been a factor in the accident, snow and ice are common occurrences in Manitoba in the winter, and icy conditions can never be completely eliminated. The panel does not agree with the employer's argument that the fact the worker slipped and fell in the parking lot, despite being in good health, meant that the parking lot was not properly or reasonably cleaned, or that the WCB's acceptance of his claim, where he had no pre-existing condition, inevitably meant that a hazard of the premises was involved, and that the third party was therefore negligent.

The panel notes that the employer provided and relied on a general dictionary definition of negligence and argued that a "reasonably prudent" organization would take extra precautions to ensure their parking lot was clear given the "known nature of the persons using it." The panel has considered the employer's argument, but as previously stated, is satisfied that the evidence supports the third party took reasonable and appropriate steps in the circumstances of this case to keep the parking lot reasonably safe. The panel is therefore unable to find that the evidence establishes the third party was negligent in this case.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's injury did not result, in whole or in part, from the negligence of the third party or its workers in the circumstances of this case. Accordingly, the panel finds that the accident employer is not entitled to transfer of claim costs to the third party.

The firm's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of February, 2023