WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20210020
WORKER: Worker
CLAIM NUMBER: XXXXXXXX
OBJECTING PARTY: Employer 1
ACCOUNT NUMBER: XXXXXXX
FIRM NUMBER: XXXXXX
REPRESENTED BY: Employer Representative
RESPONDENT 1: Respondent 1
ACCOUNT NUMBER: XXXXXXX
FIRM NUMBER: XXXXXX
REPRESENTED BY: Self (not participating)
RESPONDENT 2: Respondent 2
ACCOUNT NUMBER: XXXXXXX
FIRM NUMBER: XXXXXX
REPRESENTED BY: Respondent 2 Representative
HEARING: Hearing in Writing
HEARD BY: C. da Cunha, Appeals Resolution Officer
DATED: September 7, 2021
ISSUE
The Employer (E1) objects to the Transfer of Cost (TOC) Adjuster’s decisions of September 5, 2017 and November 20, 2020. These decisions transferred 100% of the costs of this claim to its accident cost record from Respondent 1’s (R1) accident cost record.
It seeks the transfer of all claim costs to the accident cost record(s) of R1 and/or Respondent 2 (R2).
BACKGROUND
On July 23, 2015, the worker’s right lower extremity went approximately two feet down through an open, unmarked vent hole in the floor as they walked around the corner of a desk in an office building, sustaining a right ankle injury. They were in their early 40s at the time, and had worked with R1 as a Floor Mechanic (Journeyperson) for almost two months.
R1 submitted a letter to the Workplace Safety and Insurance Board (WSIB) on December 18, 2015, with authenticated photographs taken of the accident area by the worker on the date of injury (DOI). R1 requested that the costs of the claim be transferred to E1’s accident cost record.
R1 confirmed that, at the time of the accident, it was working as one of R2’s sub-contractors on the fifth floor of a construction project at a Building in Toronto, Ontario. R1 stated that R2’s other sub-contractors had removed the floor coverings and gratings, leaving exposed openings in the floor. Furthermore, neither R2 nor the sub-contractors placed warning signs over or around these hazardous openings in order to prevent injury.
R1 added that, on July 22, 2015, the day before the accident, the worker noted that many of the protective floor covers had been removed, with the holes left open and exposed and no warnings signs or barriers put in place to protect individuals from these hazards. The worker called RB at R1, who told the worker to discuss the situation with R2’s Supervisor, BW. According to RB, the worker stated that BW did not address the worker’s safety concerns, and work on the project continued, with no changes made.
As R2 failed to take reasonable precautions to prevent a foreseeable injury, R1 argued that it was 100% responsible for the accident and the costs of the claim.
The TOC Adjuster subsequently obtained further submissions from R2 and R1. In its submissions, R2, the General Contractor onsite, denied any responsibility for the accident. Essentially, it stated that the accident occurred in a “not in contract” (NIC) area of the fifth floor, which was outside of its care and control. R2 did not have the authority to allow R1 to enter the NIC area and it did not direct or authorize R1 to enter it. R2 added that it was E1, the Building’s Project Manager and Agent, who directed and authorized R1 to enter and work in the NIC area of the fifth floor. Therefore, R1 and/or E1 were 100% responsible for the accident.
E1 responded, denying any responsibility for the accident. It acknowledged that, during the morning of July 23, 2015, R2 agreed to expand the work area under their scope of work to include the vacant NIC area where the accident occurred, for an extra $16,000.00. R2 was to have the carpet removed from this vacant NIC space and reinstalled in the contracted construction area. Once R2 agreed to this amendment to their agreement, E1 authorized R2 to perform work in the vacant NIC space. R2, in turn, authorized R1 to go into the vacant NIC space to remove the carpet. This is when the accident occurred.
E1 added that it was R2 that had previously removed the grilles from the floor vents in the vacant NIC area to place them in the floor vents of the contracted construction area. However, it left the openings in the floor uncovered and unmarked, failing to take the precautions necessary to prevent a foreseeable accident.
The TOC Adjuster’s Decisions
On May 9, 2017, the TOC adjuster granted R1’s request, transferring 100% of the costs of the claim to the accident cost record of R2. The TOC Adjuster found that R2 was aware that R1 would be continuing their floor covering duties in the vacant NIC area, beside their current work space in the contracted construction area. As the General Contractor onsite, R2 had the responsibility to ensure that floor openings on the project site were safely covered, cordoned off, or properly marked with warning signs. In this specific case, it failed to meet this responsibility. Therefore, it did not take reasonable care to ensure the safety of R1’s worker.
R2 objected to the original decision on May 26, 2017. R2 stated that, between 9:00 AM and 9:10 AM on July 23, 2015, SB of the Building, not E1, gave R2 verbal permission to proceed with work in the NIC area of the fifth floor. BW of R2 then e-mailed RB of R1 at 9:16 AM, advising them that they had approval to proceed with the removal of the carpet from the NIC area. Therefore, R2 relayed the Building’s approval to R1 after the accident, which occurred at 9:15 AM, not before.
R2 added that RB of R1 confirmed in their submissions that it was JM of E1 who authorized R1 to enter the NIC area of the fifth floor prior to the worker’s accident. Therefore, R1 and/or E1 were 100% responsible for the accident.
E1 replied that R2 accepted the expansion of the physical scope of the contracted work and directed R1 to perform the carpet removal in the NIC area of the fifth floor, which incorporated the expanded area. As the General Contractor onsite, R2 was identifiably, voluntarily, statutorily, and practically responsible for the safety of everyone, at all times, in every aspect of the project. Therefore, it remained 100% responsible for the worker’s injury.
On September 5, 2017, the TOC Adjuster reconsidered and overturned the original May 9, 2017 decision. The TOC Adjuster transferred 100% of the claim costs to the accident cost record of E1, finding that the accident occurred in the NIC area of the fifth floor, over which R2 did not carry out its role as a General Contractor. Furthermore, the TOC adjuster concluded that E1, not R2, directly authorized R1 to work in the NIC area where the accident occurred. Therefore, E1 owed a duty of care to the worker in that area. As it did not meet that duty by ensuring that the floor openings were safely covered, cordoned off, or properly marked, it was responsible for all of the claim costs.
E1 objected to the reconsideration decision and requested another reconsideration. The TOC Adjuster then obtained further written submissions from the representatives of E1 and R2.
On November 20, 2020, the TOC Adjuster reconsidered and upheld the September 5, 2017 decision, for essentially the same reasons. The TOC Adjuster added that the evidence also showed that E1 directly supervised other contractors in the NIC area supporting that R2 did not have care and control over the entire job site, and, specifically, the NIC area, where the accident occurred.
The Positions of R2 and E1
The representatives of R2 and E1 have provided multiple voluminous written submissions regarding the positions of R2 and E1. However, the essence of their arguments is captured above.
AUTHORITY
Section 84 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy:
14-05-01: TOC (published October 12, 2004)
ANALYSIS
Having reviewed and considered the evidence contained within the case record, the relevant legislation, and the appropriate operational policy, I find that R1 is 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 this specific case, R1 bears the evidentiary burden of proving negligence on the part of R2 and/or E1. 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 Owed to the Worker by R1, R2, and E1?
Yes.
As the employer, R1 had a duty to maintain a healthy and safe work environment for the worker. Therefore, it had an innate duty of care to them.
Furthermore, the evidence shows that there was a sufficiently close working relationship between the parties in that the construction and non-construction firms subcontracted by R2 and E1 carried out their duties potentially concurrently on the same worksite, using and operating tools that carried elements of added risk to ABF’s worker. All firms and individuals were responsible, to a reasonable standard, for ensuring that they carried out their duties in a safe manner. Any carelessness on the part of R2, E1 and their subcontractors and workers in doing so might reasonably cause damage to R1’S worker. Therefore, R1, R2, and E1 had an obligation to take reasonable care to avoid any conduct that would entail an unreasonable risk of harm to R1’s worker.
Did R1, and/or R2, and/or E1 Breach their Duty of Care to the Worker?
R1 did. R2 and E1 did not.
The record shows that R2, the General Contractor at the Building construction project, signed a construction contract which specifically identified the areas over which it had care and control, the construction contract area, and those which it did not, the NIC area.
As the General Contractor, R2 sub-contracted R1 to perform floor covering work in the construction contract area of the fifth floor of the building, which it had been doing prior to the date of injury.
On July 2, 2015, R2 informed R1by e-mail that there was not enough carpet to finish covering the construction area floor. E1 and/or R2 realized that the materials required to finish the flooring in the construction contract area would not arrive in time to complete the project on schedule. In a July 15, 2015 e-mail, and during a July 22, 2015 meeting involving the parties, JM of E2 suggested that the floor coverings and grilles from the NIC area of the floor be removed and reinstalled in the construction contract area of the same floor. This suggestion did not fall within the scope or areas of work of both R1and R2, and they refused to proceed until the Building and/or E1 approved both the expanded scope of the work and the physical work area, with added payment for the amendment.
According to RB of R1’s December 18, 2015 written statement, on July 22, 2015, the day before the date of injury, the worker notified them, their employer, that the worksite was unsafe. The worker advised RB that many of the protective floor covers had been removed. No protective coverings had been placed over the exposed holes and no warning signs or barriers had been used to warn others of the potential danger the holes in the floor created. RB then advised the worker to speak with BW of R2 regarding the situation. According to RB, the worker stated that BW did not address the safety concerns, and the work on the project continued.
RB did not specify whether the worker was referring to the NIC area or the construction area of the floor, or to both. From the circumstances noted above, they may have been referring to both areas since JM suggested transferring floor grilles from the NIC area to the construction area prior to this date. However, RB’s statement is hearsay, unsupported by a direct statement from the worker, either sworn or unsworn. R2, also based on hearsay, denies that the worker spoke with BW regarding health and safety concerns on July 22, 2015. Regardless, even if I were to place more evidentiary weight on RB’s hearsay statement, which I do not, RB’s statement shows that, instead of taking every reasonable precaution to protect the worker, such as removing them from the site until either R2 or E1 had addressed the hazards, as is their responsibility under the Occupational Health and Safety Act (OHSA), RB of R1 knowingly allowed the worker to continue to work in what the worker had told them was an unsafe environment.
Sometime prior to 9:15 AM on July 23, 2015, the record shows that the worker decided to take a break from their floor covering duties in the construction area of the fifth floor. However, they decided to do so in the NIC area of the floor, which, according to RB’s statement, they knew to be an unsafe area. The evidence also shows that, up to this point, R1 did not have authorization to be in that area. Furthermore, documentary evidence submitted by R2 shows that the area was cordoned off and all trades had been repeatedly notified not to enter the NIC area under any circumstances. The worker breached R2’s instructions, the perimeter hazard warnings and barriers, and their own awareness that they were entering an unsafe environment.
Once they finished their break, which they had taken at a desk in the NIC area, the worker arose and walked back to the construction area, to continue their floor covering duties. As they turned the corner around a desk, their right leg suddenly dropped two feet down into an uncovered floor vent opening in the NIC area floor, causing injury. According to the Worker’s Form 6 and the Employer’s Form 7, this occurred at 9:15 AM.
At 9:16 AM, BW of R2 e-mailed RB of R1 informing them that they had received approval to proceed with the removal of carpet from the NIC area, which was to be reinstalled in the construction area of the fifth floor. BW asked RB to call him when they had a chance to discuss the matter. According to R2, the approval had been verbally received six to sixteen minutes earlier from SB of the Building. According to E1, R2 agreed to proceed with the expansion in exchange for an increased payment of $16,000.00.
The contemporaneous documentary evidence on record shows that, prior to 9:16 AM on July 23, 2015, R1 did not have authorization from R2 to access or to perform work in the NIC area of the fifth floor of the building. Therefore, the worker was where they knew they were not allowed to be, and that they knew they had entered a hazardous area, when the accident occurred.
Furthermore, JM of E1 has provided a sworn affidavit date December 18, 2018 stating that they did not instruct R1 to remove carpet from the NIC area of the fifth floor. R1 has not provided any evidence of greater evidentiary weight to support that JM of E1 did instruct it to work in the NIC area where the accident occurred.
While some party(ies) was/were clearly negligent in removing the floor vent coverings and then not covering up the holes and erecting safety controls, such as placing hazard warnings and barriers on or near them, R1 has not discharged the evidentiary burden placed upon it of showing, on a balance of probabilities, that R2 and/or E1 were the parties responsible, in whole or in part, for that negligence. Furthermore, while E1 and its client, the Building, had care and control of the NIC area at the time of the worker’s injury, R1 has not shown that E1 and/or the Building directed and authorized it to enter and be in that area at that time. In short, R1 has not demonstrated, on a balance of probabilities, that, prior to 9:16 AM on July 23, 2015, it had been instructed and authorized, by either R2 or E1, to be in the NIC area where the accident occurred at 9:15 AM that same day. What the evidence does show is that R1’s worker entered an area that a) they had been instructed not to enter, b) R2 had cordoned off with health and safety barriers, and c) they knew was unsafe. Furthermore, RB of R1’s own statement confirms that they did not meet their obligation under the OHSA to take every reasonable precaution to protect the worker from the hazards in the NIC area. The evidence shows that both R1 and the worker did something that a reasonable person would not do, and failed to do something that a reasonable person would do on the date of injury. They acted negligently and that negligence was the proximate and direct cause of the worker’s foreseeable injury. Therefore, R1 is not entitled to a transfer of costs in relation to this claim.
CONCLUSION
As provided for under Section 84 of the Workplace Safety and Insurance Act and under operational policy 15-04-01, Transfer of Costs, I may order a transfer of costs if I am satisfied that the accident resulting in the worker’s injury was caused by the negligence of the third parties. There must be evidence showing, on a balance of probabilities, that R2 and/or E1 were negligent by not fulfilling their duty of reasonable care in the circumstances. I am not satisfied that that evidentiary burden has been met in this case. Therefore, I find no basis upon which to order the transfer of any of the costs of the accident from the record of the employer to that of R2 and/or E1 Limited.
E1’s objection is, therefore, allowed.
DATED September 7, 2021.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division