WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090034
OBJECTION BY: Employer
WORKER: Participating
REPRESENTATIVES: N/A
HEARING DATE: N/A
ATTENDEES: N/A
ISSUE
Relief/removal of the costs of the worker’s February 27, 2008 workplace injury claim from the experience rating (NEER) record of his employer.
HOW THE ISSUE ARISES
First of all, the adjudicator’s decision dated November 27, 2008 denied the cost relief requested under the Second Injury and Enhancement Fund (SIEF) citing that there was no evidence of any pre-existing condition present that had caused the workplace incident or prolonged the worker’s recovery from his injuries. That decision also indicated that, following consultation with the Workplace Safety and Insurance Board’s (WSIB) legal branch, neither was there any basis for a transfer of the costs of the claim from the employer’s experience rating record.
The latter point was subsequently affirmed in the transfer of cost adjuster’s decision dated June 16, 2009 on the basis that the worker’s workplace injuries were solely attributable to his fault as the cause of the workplace incident of February 27, 2008.
AUTHORITY
Operational Policy Manual (OPM) documents:
14 05 01 – Transfer of Costs
14 05 03 – Second Injury and Enhancement Fund (SIEF)
15 01 06 – Third Party Motor Vehicle Accident Claim Costs
15 02 01 – Definition of an Accident
15 02 02 – Accident in the Course of Employment
RESOLUTION METHOD & PROCESS
The employer submitted a 60-day expedited decision option form dated July 25, 2009, which required the Appeals Branch to make a decision based on the information on file along with any final submission/argument received.
ASSESSMENT OF THE EVIDENCE
In his submissions to date, the employer never alluded to the presence of any pre-existing medical condition that either caused the worker’s workplace incident to occur or in any way enhanced his resulting injuries and/or prolonged his recovery. Neither was there any such condition evident at the time of the adjudicator’s November 27, 2008 decision. Therefore relief of costs under the SIEF was appropriately denied.
The employer then also suggested that the worker’s actions, travelling on a route prohibited by local by-law and failing to obey the stop at the intersection where the incident occurred, constituted removing himself from the course of his employment and/or serious and wilful misconduct.
With respect to the first of those two points, while it can be acknowledged that his route deviated from the norm, the worker did not apparently do so in order to undertake some personal errand. However, while the employer acknowledged that the route taken was an unapproved shortcut to his designated destination, such indicated that the worker had actually remained “in the course of” his employment which would not be indicative of serious and wilful misconduct, despite the minor traffic control by-law violation indicated.
Then as to the second point, it was evident from the details of the incident that the worker was driving in inclement weather that obscured his vision sufficiently so that he failed to notice the stop sign until he was almost upon it and was unable to bring his vehicle to a stop without entering the roadway ahead into the path of any unrestricted oncoming traffic. His actions were therefore unintended as opposed to any deliberate violation of the rules of the road which cannot be considered as serious and wilful misconduct either.
It should also be noted that despite his choice of route, his subsequent inattentiveness leading him to fail to obey the stop sign in time cannot be considered as “a wilful and intentional act” so as to negate acceptance of his workplace injury claim as a compensable workplace incident in the first place.
Subsequent to the foregoing analysis, section 84 of the Act also provides the Board the authority to transfer the costs of an injured worker’s claim from his/her Schedule 1 employer to another Schedule 1 employer. Where that employer’s, or one or more of their employee’s, negligence led to that worker being injured, in proportion to the degree of negligence evident.
Negligence is defined in OPM document 14-05-01 as doing something a reasonable and prudent person would not do or failing to do something a reasonable and prudent person would do.
As the transfer of cost adjuster noted, the fatally injured driver of the other vehicle was operating his vehicle without “any traffic controls” and, therefore, was an innocent party in the workplace incident. There was no suggestion of any evident negligence on his part that led to the worker’s workplace injuries and no transfer of any of the costs of the worker’s claim to the experience rating record of the driver’s employer would therefore be applicable, which the transfer of cost adjuster appropriately denied.
The employer also referenced the Workplace Safety and Insurance Appeals Tribunal’s decision number 502/92, in a dissimilar case involving a motor vehicle collision, as being determinative with respect to the issues of fault and cost relief for their appeal. While the issue of cost removal in similar cases to the Tribunal’s decision has since been addressed in OPM document 15‑01‑06 referenced above, the employer is off point in this worker’s claim.
That is, the Tribunal’s decision pertained to the then lack of a remedy for an employer’s relief/removal of the costs of their injured worker’s claim caused by the fault of a third party not covered under the collective liability provisions of Schedule 1 of the Workplace Safety and Insurance Act (the Act). Whereas, although this case at hand also involved a motor vehicle collision, it was this employer’s own worker who was deemed to be entirely at fault which, under the no-fault provisions of the Act, effectively renders their argument without merit. Just as if, for example, an employer of a hypothetical band saw operator who inadvertently amputated a finger with the moving blade while continuing to perform his routine work after intentionally removing the safety guard would bear the costs of that claim. Despite the fact that such an individual would be potentially open to disciplinary action for his safety violation, just as the worker in this subject case was said to have been, while none was actually taken.
CONCLUSION
I reviewed the file documentation in detail having regard for the submissions and argument tendered as well as the relevant WSIB policies. In my analysis, I concurred with the determinations of the adjudicator that SIEF relief of the costs of the worker’s claim was not applicable as well as of the transfer of cost adjuster that a transfer/removal of costs be denied.
The employer’s objection is denied.
DATED this day, August 27, 2009, at Toronto, Ontario
W. D. Thomson Appeals Resolution Officer Appeals Branch