WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20180024
WORKER: XXXXXXXX
OBJECTING PARTY: Employer X
account number: xxxxxxx
FIRM NUMBER: xxxxxx
represented BY: Self
RESPONDENT 1: abc COMPANY (Canada)
account number: XXXXXXX
FIRM NUMBER: XXXXXX
represented by: Paralegal
RESPONDENT 2: def COMPANY
account number: XXXXXXX
FIRM NUMBER: XXXXXX
represented BY: Self
HEARING: Hearing in Writing
HEARD BY: C. da Cunha, Appeals Resolution Officer
DATED: May 31, 2018
ISSUE
Employer X objects to the transfer of cost (TOC) adjuster’s decisions of October 26, 2015 and March 10, 2017, which denied its request to remove 100% of the costs of this claim from its accident cost record.
It seeks the transfer of 100% of the claim costs to the accident costs records of ABC and/or DEF.
HOW THE ISSUE ARISES
On October 31, 2013, the worker slipped and fell in the parking lot of the building where she worked while heading to her office from her car in the rain, injuring her left wrist. She was 51 years of age and had worked with the employer for over 1 ½ years as an executive assistant.
Employer X completed and submitted an Employer’s Report of Injury/Disease (Form 7) to the Workplace Safety and Insurance Board (WSIB) on November 1, 2013. On the Form 7, Employer X requested that the costs of the claim be transferred to ABC, who controlled and maintained the parking lot, which had recently been recoated, painted and sealed, arguing that this made it extremely slippery, especially under rainfall conditions, causing the worker’s accident.
After obtaining written submissions from Employer X, ABC and DEF, the party that ABC had hired to resurface and seal the parking lot in August 2013, the TOC adjuster ruled on the matter.
The TOC Adjuster’s Decisions
On October 26, 2015, the TOC adjuster denied Employer X’s request, finding that no documentary evidence had been provided to show that either ABC or DEF had been negligent in any way that would have contributed to the worker’s accident.
Employer X objected to the decision and, on April 11, 2016, submitted a January 7, 2015 assessment of the parking lot’s slip and fall resistance conducted by a pavement engineer from M. Engineering Firm (MEF) for the TOC adjuster’s consideration.
The TOC adjuster reconsidered and upheld the original decision on March 10, 2017, advising the parties that there are no formal standards or regulations in Ontario that govern friction values on road or walking surfaces.
Employer X’s Position
Employer X argues that the costs of the claim should not be allocated to its accident cost record because it believes that the cause of the worker’s accident was the negligent application of sealer to the parking lot surface by DEF in August 2013. Testing shows that in the areas of the parking lot where DEF applied the sealer had greatly reduced surface friction making them much more slippery. Therefore, either DEF was not expert in the application of the product and misapplied it or purposely reduced the friction of the product by not incorporating silica aggregate in order to save on costs.
ABC‘s Position
ABC’s representative contends that the evidence does not show that it acted negligently in any way leading up to the worker’s accident. In fact, it prudently and responsibly hired DEF in 2010 to maintain the parking lot, which it resurfaced and sealed in August 2013. After the accident, it had the parking lot sanded as an added precaution and not as an acknowledgement that the surface was unsafe prior to the accident. Furthermore, it appears that the worker was the author of her own misfortune by not wearing the appropriate footwear for the rainy conditions and possibly rushing while carrying and juggling her laptop bag, purse and belongings in the wet parking lot.
DEF’s Position
DEF, through its previous representative, puts forth that it applied the sealer in the manner prescribed by its manufacturer and inspected the work after completion. Furthermore, ABC also inspected the work and was satisfied that it had been completed correctly and pursuant to the manufacturer’s requirements, releasing DEF from any further legal responsibilities or warranty on October 9, 2013. Therefore, DEF is not responsible for the worker’s accident.
AUTHORITY
Section 84 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy:
14-05-01: TOC
ANALYSIS
Having reviewed and considered the evidence contained within the case record, I find that ABC and DEF are equally responsible for 100% of the costs of this claim.
Section 84 of the WSIA is the provision that governs issues concerning a transfer of costs. This section provides that, where the WSIB is satisfied that the accident giving rise to the worker’s injury was caused by negligence of some other Schedule 1 employer or that other employer’s workers, all or part of the costs of the accident may be transferred to that other employer’s record.
The legislation does not define “negligence”. The only WSIB guideline on this matter is set out in operational policy 14-05-01, TOC. This document states that the WSIB will apply common law principles and that “negligence” is defined as:
failing to do something which a reasonable and prudent person would do, or
doing something which a reasonable and prudent person would not do.
Therefore, as in common law, the firm that is potentially liable under Section 84 of the WSIA is held to a reasonable standard of care.
Operational policy 14-05-01 dictates that the standard for proof of negligence is founded on the balance of probabilities. In other words, if the evidence indicates that it is more likely than not that the other Schedule 1 employer was negligent, then the WSIB will determine the degree of negligence and transfer costs accordingly.
In order to determine if the necessary standard for proof of negligence has been met, the following questions are put forth and addressed.
Was there a Duty of Care to the Worker by ABC and DEF?
Yes.
ABC had control of and responsibility for the maintenance of the parking lot. Any carelessness on the part of ABC in conducting its duties in relation to the parking lot might reasonably cause injury to Employer X’s workers. Therefore, ABC had an obligation to take reasonable care to avoid any conduct that would entail an unreasonable risk of harm to the worker.
ABC contracted DEF to maintain the parking lot regularly, keeping it safely accessible for Employer X’s workers. Any carelessness on the part of DEF in conducting its duties in relation to the parking lot might reasonably cause injury to Employer X’s workers. Therefore, DEF also had an obligation to take reasonable care to avoid any conduct that would entail an unreasonable risk of harm to the worker.
Did Either or Both ABC and DEF Breach Their Duty of Care to the Worker?
They both breached their duty of care to the worker.
The worker arrived in the parking lot at approximately 10:30 AM on October 31, 2013. She was wearing flat-soled footwear with light tread. It was lightly raining and the parking lot surface was wet. The worker got out of her car and walked across the parking lot towards the building where her office was located, carrying a personal bag and a computer bag. While walking, she slipped, fell, injuring her left wrist. The worker subsequently informed her employer that the parking lot surface was very slippery.
A co-worker, who had walked across the same parking lot immediately prior to the worker’s fall, provided the following statement, in part:
As I got out of my car, I noticed that the ground was very slippery and I almost slipped but continued to walk slowly.
Another co-worker, upon being informed that someone was sitting on the wet parking lot surface, went outside to investigate and provided the following statement, in part:
Additionally…the ground outside was VERY slippery when I went out to see and I could see how it would be easy to slip.
The evidence shows that three different people found the surface of the parking lot to be abnormally slippery, resulting in one fall, one near-slip and leading one person to conclude that the condition of the surface could easily cause someone to slip.
There is no evidence that the worker was rushing or juggling her purse, computer bag and personal belongings at the time of the accident. Furthermore, the worker was wearing what appears to be either rubber or leather boots with treaded soles, which is reasonable footwear for the climactic conditions.
Sometime between August and October 9, 2013, DEF repaved and sealed the parking lot under contract to ABC. That contract, dated September 11, 2010, gives ABC the right to access the worksite, inspect it and to require that DEF correct any defects or deficiencies in the work for up to two years after completion of the same.
The record shows that DEF used a product called Jennite to seal the parking lot. Jennite’s literature states that only Jennite-trained and licensed contractors, who receive an applicator license number, can buy and apply its surfacing system. The information on file does not clarify or confirm whether DEF is a Jennite-trained and licensed contractor or whether ABC verified that it is.
The evidence currently available to me also indicates that, when DEF completed the resurfacing and sealing of the parking lot, ABC inspected the work and was satisfied with its quality and that it had been completed correctly and pursuant to the manufacturer’s requirements, releasing DEF from any further legal responsibilities or warranty on October 9, 2013.
The record shows that DEF was to have applied the Jennite sealcoating after it had been mixed with silica sand at the rate of five to six pounds per gallon in order to enhance skid resistance and coating durability. DEF states that it did so. By inspecting the work, confirming that it had been completed correctly and pursuant to the manufacturer’s requirements and releasing DEF from any further legal responsibilities or warranty on October 9, 2013, ABC corroborated DEF’s contention.
However, subsequently, the worker’s accident of October 31, 2013 occurred. Furthermore, Employer X reported the following slip/fall incidents in the same parking lot to ABC:
January 27, 2014 – An Employer X worker slipped in the parking lot and reported areas of slippery conditions, not covered by ice and snow in the same parking lot;
July 15, 2014 – An Employer X worker slipped in the parking lot and reported previous slips in the same parking lot earlier in the month after rainfall; and,
August 8, 2014 – An Employer X worker slipped and fell in the parking lot after a rainfall, sustaining injuries.
As a result of these events, Employer X contracted MEF, who assessed the parking lot surface on November 25, 2014 and provided a January 7, 2015 written report outlining its findings. MEF found that:
Areas where no Jennite coating had been applied had the highest friction;
Areas of the parking lot treated with the Jennite coating had greatly reduced friction of the asphalt surface as compared to non-treated areas;
Areas where Jennite coating had been applied and had been exposed to little or no vehicular/ploughing traffic had the lowest friction values;
Areas where the Jennite coating had been partially covered with line paint had greater friction than those areas with Jennite coating that were not covered with line paint; and,
A visual inspection of the intact Jennite coated surfaces suggested that the Jennite coating may have been applied without the addition of the silica aggregate. Without this aggregate, the application of the Jennite coating to the asphalt surface would have covered the existing asphalt aggregate, greatly reducing the friction of the asphalt surface.
As the results suggested that vehicular and ploughing traffic removed the Jennite coating, causing the asphalt surface to regain its friction, MEF recommended the full or partial removal of the Jennite to improve the surface’s friction. Alternative potential solutions included re-sealing the surface with a second layer of Jennite coating but incorporating the appropriate mineral aggregate or re-sealing it with a thin layer of bituminous emulsion and graded aggregate to improve its skid resistance.
It is true that rain reduces the friction on any surface, making it more likely that a person might slip on that surface. However, anyone that has walked on asphalt knows that it is generally pockmarked and contains aggregate that allows the soles of our footwear, especially those with tread, to safely adhere to its surface, even when it is wet. It would be unusual, and cause for concern, for an asphalt surface subject to light rain to turn into such a dangerous substrate that it would force one to walk slowly upon it for fear of slipping and falling. The evidence on file shows that, in this case, the rain was not the causal agent for the high degree of slipperiness observed and experienced by the three witnesses noted above. The evidence shows that the condition of the surface of the parking lot was the sole and direct cause of the worker’s slip and fall on October 31, 2013.
Noting the statements of the three witnesses, the lack of any evidence showing negligence on the worker’s part, the lack of confirmation that DEF was a trained and licensed Jennite contractor, the four slip/fall incidents following the application of the Jennite coating by DEF and MEF’s undisputed results, I find that DEF applied the Jennite coating in a negligent manner by not following the manufacturer’s instructions in relation to the appropriate inclusion of the silica aggregate in the coating. Furthermore, I find that ABC negligently exercised its contractually-provided supervisory authority over the same work by approving the quality of the same and concluding that it had been completed correctly and pursuant to the manufacturer’s requirements, releasing DEF from any further legal responsibilities or warranty. In other words, both DEF and ABC acted in ways that a reasonable and prudent person would not. The application of an asphalt sealer containing little or no aggregate to a surface exposed to the Canadian climate is a recipe for disaster. Both DEF and ABC were, or should have been, aware of this, even in the absence of a law or standard governing friction values on road or walking surfaces.
The accident would not have occurred had DEF properly applied the Jennite coating as per the manufacturer’s instructions. Equally, the accident would not have occurred had ABC properly inspected the finished job and ordered DEF to correct it. Therefore, I find that they are equally negligent and the costs of the claim are to be divided equally amongst them.
CONCLUSION
Employer X’s objection is allowed.
I find the evidence shows, on a balance of probabilities, that ABC and DEF were equally negligent and responsible for the worker’s October 31, 2013 accident. Therefore, the costs of the claim are to be equally divided amongst both parties.
DATED May 31, 2018 at Toronto, Ontario.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division