Worker (Estate of) v. Employer, 2021 CanLII 156034

Decision Number:

20260013

WORKER (Estate Of)

REPRESENTED by:

Employer (not participating)

HEARD by:

DATED:

l.cirillo, appeals resolution officer

JULY 8, 2021

ISSUE

The estate objects to the Adjudicator’s decision dated June 24, 2020, which denied initial entitlement for the worker’s death arising out of and in the course of his employment on March 6, 2020.

BACKGROUND

This claim was registered in May 2020, upon receipt of a Form 6, Worker’s Report of Injury dated May 25, 2020. The worker’s spouse claimed that on March 6, 2020, the worker attended a property, which had been purchased with the intent to build a townhouse development of up to 24 units. On that day, the worker attended the property, with an individual he had hired, to commence the process of clearing trees and while felling a tree, something went wrong and the worker was fatally injured. The worker was 54 years of age at the time and was the owner, in partnership with his wife, of the company.

The operating area concluded that at the time of the accident, the worker was working on his own property, doing a personal task and using his personal skills and it did not appear he was doing work for the purpose of the company. It was also determined that there was no contract of employment confirming he was performing work on behalf of the company. As there was no proof of exchange of money for services provided, there was no proof the worker was in the course of his employment and as result, initial entitlement denied. The decision was communicated to the estate in correspondence dated June 24, 2020.

The estate objected to the denial of initial entitlement; however, the decision remained unchanged and as a result the matter was referred to the Appeals Services Division for further consideration.

Estate’s Position:

In correspondence dated February 17, 2021, the estate’s representative objects to the denial of initial entitlement. She provides a claim background, refers to operational policy and previous case law in support of her position, which will not be repeated in its entirety.

She argues the following in part:

Policy 11-01-01 describes the adjudicative process to determine entitlement to benefits and services under the Workplace Safety and Insurance Act. The five-point check system describes that there must be an employer, a worker, a personal work-related injury, proof of accident and compatibility of diagnosis to accident or disablement;
In this case, there was a worker – the worker was insured as a self-employed worker and mandatory coverage was in place. There is no policy requirement that a self-employed person have a “contract of employment” with himself. A contract can be verbal, written or implied. There is no policy requirement regarding the mechanism or cadence of payment in a self-employment situation. The worker would be paid when the properties were sold or at other intervals determined by the Company partnership, but not to be determined by the WSIB;
There was an employer. The work activity and premiums were calculated by the Board and remitted without delay by the company. The worker’s lawyer confirmed the property was purchased for a business endeavor. The owners of the property, the worker and his wife, and the owners of the company are one and the same.
Policy 14-02-18 states that “sole proprietors in construction, and the partners of a partnership in construction, are compulsorily covered. These individuals are the deemed worker and the deemed employer under the WSIA”;
There was a work-related injury. The worker was a worker on the property and performing duties of clearing trees when he was fatally injured;
There is ample evidence in the file of the accident, which confirms proof;
Policy 15-02-01 provides clarity that “a chance event is defined as an identifiable unintended event which causes an injury”. The accident circumstance of a tree falling on the worker and producing a fatal outcome is well described as a chance event that was unintended and caused an injury;
There is ample evidence that the work-related activity resulted in the fatality;
She submits that all the criteria of the five-point check system are fulfilled and as a result, entitlement ought to be in order;
In the present case, the worker was self-employed in building homes. He did much of the work himself and would hire sub-contractors when appropriate. He purchased and used business machinery for labour jobs. On the day of the accident, he was clearing the land with the business equipment which was part of the process of developing the land for the townhome construction. This was not a leisure activity;
She submits that proper application of Policy and evidence will produce the result of a favourable decision that concludes the worker was in the course of his employment at the time of the fatal accident.

AUTHORITY

Section 13(2) of the Workplace Safety & Insurance Act (WSIA), 1997

Operational Policies

Published

11-01-01 – Adjudicative Process 15-02-01 – Definition of an Accident 15-02-02 – Accident in the Course of Employment

November 3, 2008 October 12, 2004 October 12, 2004

ANALYSIS

I have reviewed the record and considered the information and relevant operational policies in reaching this decision. In considering all of the evidence, including the employer’s status with the WSIB at the time of the accident, the information provided by the worker’s counsel and a planning consulting company as well as the arguments presented, I find the worker was in the course of his employment at the time of the accident, which resulted in his death. As a result initial entitlement is allowed and the operating area is directed to review entitlement for survivors’ and associated benefits. The rationale for my decision is as follows.

Prior to my analysis, I must outline while I have had regard for the previous case law, which has been referred to, the WSIB is not bound by these decisions and each case is adjudicated based on its own merits.

The Workplace Safety & Insurance Board’s (WSIB) policy for the Adjudicative Process states in part:

A claim created by the WSIB for a workplace accident/disease is adjudicated based on entitlement principles and the facts of the case.

Five point check system

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."

An allowable claim must have the following five points

an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history

Proof of accident

Decision-makers may consider the following when examining proof of accident,

Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?

Diagnosis

If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.

Operational Policy 15-02-01 states the following in part:

Accident includes

a willful and intentional act, not being the act of the worker
a chance event occasioned by a physical or natural cause, and
a disablement arising out of and in the course of employment.

Chance event

A chance event is defined as an identifiable unintended event, which causes an injury. An injury itself is not a chance event.

Operational policy 15-02-02 states the following in part:

A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.

In reviewing the record and the WSIB Employer Account information, I note that the employer in this case is registered with the WSIB as: the worker & his wife (Partnership) operating as the company. Their account information demonstrates that they first registered with the WSIB in 2008 under the classification of new home building construction. The account was closed in 2011 when they ceased employing but re-opened again in late 2012/early 2013 due to Bill 119 and it was at this point that the worker was put on coverage. The worker’s spouse was exempt from coverage under Bill 119 as she was not working on the "tools". Currently, the WSIB Employer Account Information confirms that under “Class” the account is considered G1: Building Construction/Residential Building Construction.

In correspondence dated June 2, 2020, the worker’s lawyer confirmed the following:

The property was purchased by and transferred to the worker and his wife (as joint tenants) on April 30, 2019. The Property had site-specific zoning being Industrial Light (M1-7);
Their office was retained in connection with the purchase of the property and to assist with applications to re-zone the property and develop townhomes/rental properties in connection with said property;
While the worker and his wife did not operate under an incorporated corporation, this business endeavor was conducted under their partnership;
In support of the above, counsel provided a copy of a draft site plan and a draft Plan of Survey dated January 10, 2020;
These documents confirm the site was the proposed location of “single family residential dwellings”.

In correspondence dated June 3, 2020, the planning consultant outlined the following in part:

Their client, the company, was owned by the worker and his wife. They purchased the property as to be developed by their construction company;
The property was purchased for the sole intent to provide employment for the company;
The subject property was designated “Industrial” in the Official Plan and zoned “Industrial Light (M1-7)” in the Comprehensive Zoning Bylaw for the Municipality of City A;
They purchased the property with the intent to develop it for a 24-unit residential townhouse development. In support of this she attached a site plan drawing prepared by an engineering firm showing the 24-unit residential townhouse development proposed to be built on the land;
They noted that pre-consultation occurred with the Municipality of City A and County A to establish support in principle and to determine what reports and studies were required to complete amendment applications;
Amendments to the official plan and comprehensive zoning bylaw were necessary to change the policy and regulations to allow for residential development instead of industrial on site;
Various studies in support of the amendments were acquired and by February 7, 2020, the worker was provided direction to have the trees on the property cleared in order to progress site servicing studies to determine unencumbered site lines.

As is outlined in the Bill 119 Coverage Response Memo dated May 26, 2020, at the time of the accident, the worker was considered a Partner in a partnership with coverage.

It is my understanding that a partnership is a business entity that is managed by two or more individuals where each owner has rights to the business, contributes financially, manages operations and shares in the business's liabilities. Unlike in an incorporated corporation, in a partnership, the law does not recognize the business to be a distinct legal entity and the business and partners are considered one in the same.

Therefore, while the property was purchased by and transferred to the worker and his wife (as joint tenants), I find that they (partnership) were one and the same with the company and it stands to reason that the property was purchased by the business.

In considering all of the above and in the absence of any information to the contrary, I find that the evidence supports that the worker and his wife, operating as the company, purchased the property for the sole purpose of developing it into townhomes/rental properties as a business endeavor under their partnership and the activities performed by the worker on Friday March 6, 2020 at approximately 4:00 p.m. (regular business hours) on said property were in the course of his employment.

According to the evidence provided by the estate, the worker suffered fatal injuries while felling a tree, as a result of a chance event type accident that occurred on March 6, 2020, with which I agree. Under these circumstances, the estate has the benefit of the presumption clause under s. 13(2) of the WSIA, which states in part:

If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

In considering all of the above, I find that the five-point check has been met and the contrary has not been shown. As the worker was in the course of his employment at the time of his death, initial entitlement is allowed.

The operating area is directed to review entitlement for survivors’ and associated benefits.

CONCLUSION

I conclude the worker was in the course of his employment at the time of his death and as a result, initial entitlement is allowed.

The operating area is directed to review entitlement for survivors’ and associated benefits

The estate’s objection is therefore, allowed.

DATED July 8, 2021

L. Cirillo

Appeals Resolution Officer

Appeals Services Division