WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision: 20150004
WORKER: Worker
OBJECTION BY: MPS Company
RESPONDANT: MC Company
PARTICIPANTS:
OBJECTOR: MPS
OBJECTOR’S REPRESENTATIVE: MPS REPRESENTATIVE
RESPONDANT: MC
RESPONDANT’S REPRESENTATIVE: MC REPRESENTATIVE
ISSUE
The accident employer MPS asks the Workplace Safety and Insurance Board (WSIB) to transfer 100% of the costs of this claim from its accident record to that of MC on the basis that the accident was caused by their negligence.
The representative of employer MPS asks the WSIB to amend the September 19, 2014 decision of the Transfer of Cost Adjuster to transfer only 50% per cent of the costs of the claim. They request that 100% of the claim costs for the worker be transferred to MC’s accident record.
HOW THE ISSUE ARISES
The worker an employee of MPS was on a temporary work assignment as a general labourer at MC. The worker climbed up onto a machine to release a preform plastic bottle that was caught between rollers when the machine cut the tip of his right middle finger.
The Transfer of Cost Adjuster determined that MC was partially negligent in this accident as they failed to have proper guarding on the machine and did not provide sufficient evidence that the worker was properly trained to operate the machine. It was acknowledged that the worker had placed himself in harm’s way when he did not properly power down the machine. The Transfer of Cost Adjuster determined the cost of the claim is to be equally share between MPS and MC. MPS objects to this decision and is of the opinion that MC should be assigned 100% of the costs of this claim. This is the issue currently before me.
AUTHORITY
Operational Policy Manual Document 14-05-01 (“Transfer of Costs”).
RESOLUTION METHOD AND PROCESS
The decision is based on the information contained within the claim record.
ASSESSMENT OF THE EVIDENCE
In my determination of transfer of cost, I considered the record, evidence and policy and find that MC was negligent and that 100% of the costs for this claim are to be transferred from the record of MPS to that of MC. I have only included a synopsis of the relevant evidence in my decision.
The representative for MPS has indicated in their submission that there was no guard in place on the machine the worker was operating and that the worker’s lack of training by MC were contributing causes to the worker’s accident. The representative for MC has submitted that safety procedures were in place at the time of the worker’s injury and that he had been provided with health and safety training.
There is no doubt the guard was not on the machine at the time of the injury. Had it been, it would have prevented the worker’s hand injury. The Incident Report Form completed by MC states “the guard was not on and he put his finger in”. Both parties have confirmed there was no guard on the machine the worker was operating. Occupational Health and Safety Act R.R.O. 1990, Regulation 851 Industrial Establishment section 25 states “An in-running nip hazard or any part of a machine, device or thing that may endanger the safety of any worker shall be equipped with and guarded by a guard or other device that prevents access to the pinch point”. Section 25(1) of the OHSA states that “An employer shall ensure that,
(a) the equipment, materials and protective devices as prescribed are provided;
(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;
(c) the measures and procedures prescribed are carried out in the workplace;
(d) the equipment, materials and protective devices provided by the employer are used as prescribed”.
MC was responsible for the maintenance of the machine and therefore was negligent when they did not ensure the guard was in place.
In the issue of training, MC has indicated they trained this worker on the subject of refusal of unsafe work according to OHSA. They also tested the worker. The parties do not agree on whether the worker understood his rights to decline unsafe work. MC states that though the worker had incorrectly answered 3 questions on his test, he was informed of his errors and given the correct answers by MC staff. I have noted the worker correctly responded to the question “What would you do if you felt the job was unsafe?” The worker replied that “he would refuse and report to supervisor”. I am satisfied the worker was aware of his right to refuse unsafe work. However what remains unclear is whether the worker thought he was performing a hazardous activity when he climbed up to remove the jammed preform plastic bottle from the machine.
MC submits that it has had safety procedures for outside workers in place since November 2004. MC has provided copies of the procedure that requires workers to inform a machine operator or lead hand in the case of an alarm, jam up or machine stoppage. There is also a procedure for machine lockout, tag lock out. MC has not provided any evidence to confirm that the worker was trained on these procedures. It is not sufficient to have written safety policies in place, it is the responsibility of the company to ensure their staff members are trained on the policies and procedures. I find no evidence to support the worker was properly trained by MC on the operation of the machine or the related safety procedures.
Though this worker had taken it upon himself the climb up the machine he was operating to remove a preform plastic bottle that was jamming his machine, I find the likelihood of injury would have been significantly diminished if the guard was in place. Furthermore, I find if the worker was properly trained on the operation of the machine as well as the safety procedures it is unlikely the worker would have performed the action that caused his injury. Based on the evidence before me, I find no evidence of the worker receiving adequate training on the operation of the machine or related safety procedures.
As provided for under section 84 of the Workplace Safety and Insurance Act and under OPM document 14-05-01, I may order a transfer of costs if I am satisfied that the accident giving rise to the worker’s injury was caused by the negligence of MC. There must be evidence to show, on the balance of probabilities, that MC was negligent in that they did not fulfil their duty of reasonable care in the circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, the burden or cost which would be incurred to prevent the injury. One may also look to external indicators of reasonable conduct such as custom, industry practice and statutory or regulatory standards. Using the reasonableness standard, the law requires a minimum level of performance but not perfection. Allowances are made for accidents or errors in judgment.
I am satisfied that that evidentiary burden has been met in this case as MC failed to ensure the presence of a machine guard. I furthermore find no evidence of the worker being sufficiently trained by MC on the machine operation or safety procedures. In both of these actions the employer has not met their requirements under the OHSA. As a result, I find 100% of the costs for this claim are to be transferred from the record of MPS to that of MC.
CONCLUSION
100% of the costs for this claim are to be transferred from the record of MPS to that of MC.
The objection is allowed.
DATED
March 26, 2015
Mrs. A. Rivet
Appeals Resolution Officer
Appeals Services Division