APPEALS RESOLUTION OFFICER DECISION
WORKER:
DATE OF INJURY/ILLNESS:
WORKER
FEBRUARY 2019
TRANSFER OF COST NUMBER:
YYYYYYY
OBJECTING PARTY:
DECISION NUMBER:
FIRM NUMBER:
EMPLOYER
20230056
XXXXXXX
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
MARISA LA CIVITA, appeals resolution officer
MARCH 28, 2023
ISSUES
The employer objects to the Transfer of Cost (TOC) Adjuster’s January 6, 2022 decision, upholding their decision of October 15, 2021 to deny it cost relief with respect to the worker’s claim.
The employer seeks full removal of the claim and its costs from its claims experience.
BACKGROUND
On February 25, 2019, the worker sustained injuries, as a passenger, in a motor vehicle accident while in the course of employment with this employer.
According to the Employer’s Report of Injury/Disease, dated February 27, 2019, the worker, who was an RPN (Registered Practical Nurse), was accompanying a patient by non-urgent transport when there was a pile-up on the route during a whiteout.
The Avis de lésion ou de maladie (travailleur), i.e. the Worker’s Report of Injury, dated March 4, 2019, corroborated that the worker suffered injuries while transferring a patient to City X via a non-emergency vehicle, on February 25, 2019. The worker reported the vehicle they were travelling in was suddenly hit by a truck, and that they were part of a car accident on Highway 17.
In a submission dated November 30, 2020, the employer representative requested the Workplace Safety and Insurance Board (WSIB) investigate the matter of cost relief for the employer, with respect to the claim, since it appeared that a third party driver may have been at fault. Specifically, the employer representative requested the claim be removed from the employer’s record under WSIB Policy 15-01-06, Third Party Motor Vehicle Accident Claim Costs.
On June 8, 2021, the TOC Adjuster provided the employer representative with a Motor Vehicle Accident Report, for completion in as much detail as possible.
The employer representative submitted the completed Motor Vehicle Accident Report to the WSIB on September 6, 2021. The employer representative noted, on the cover page, that the injured worker was a passenger in a vehicle driven by “an EE” from Y Transportation (YT). They added that information from the employer was very limited. The completed report contained no information with respect to the make and model of the vehicle in which the worker was a passenger, nor did it identify the driver of that vehicle. Other drivers and vehicles involved in the collision were also listed as unknown. The report described the event leading up to the accident, and the accident itself, as a multi car pile-up.
On October 15, 2021, the TOC Adjuster decided that, as there was insufficient information regarding the parties’ identities, cost relief could not be provided to the employer.
On November 29, 2021, the employer representative emailed the TOC adjuster advising of the employer’s intent to object to the October 15, 2021 decision, and requesting the appropriate forms.
On January 6, 2022, the TOC adjuster upheld their October 15, 2021 decision and provided the employer representative an Objection Form with instruction sheet.
The employer completed and submitted the Objection Form, dated February 9, 2022 objecting to the TOC Adjuster’s January 6, 2022 decision, upholding their decision of October 15, 2021 to deny cost relief with respect to the worker’s claim. The TOC Adjuster received the completed Objection Form on June 14, 2022 via an email from the employer representative.
On February 14, 2023, the TOC Adjuster advised the employer representative that the objection had been forwarded to the Appeals Services Division (ASD).
In a Hearing Request Form faxed to the WSIB on March 2, 2023, the employer requested the appeal be resolved via a hearing in writing, without additional information, and the appeal is now before me for review.
AUTHORITY
Legislation:
Section 84, Workplace Safety and Insurance Act, 1997
Operational Policy Manual
14-05-01, Transfer of Costs
15-01-06, Third Party Motor Vehicle Accident Claim Costs
Published
January 2, 2020
January 2, 2020
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision, and am denying the employer’s appeal. The claim and its costs will remain on the employer’s record.
In motor vehicle accident claims, the Workplace Safety and Insurance Board (WSIB) conducts an investigation as described in Policy 14-05-01, Transfer of Costs. If third party negligence is determined, the WSIB removes any claims costs from the accident employer’s claims experience according to the degree of negligence attributed to the third party, and may also adjust the claim frequency. If the WSIB finds that the third party was 100% negligent, the claim count and all current and future costs are removed from the accident employer’s claims experience. If the WSIB finds the third party was less than 100% negligent, current and future costs are removed from the accident employer’s claims experience according to the percentage of third party liability; however, the frequency component resulting from the accident is not adjusted.
Under the authority of section 84 of the Workplace Safety and Insurance Act (WSIA), the WSIB applies policy 14-05-01, Transfer of Costs, if at the time of the motor vehicle accident, both parties are covered under Schedule 1, and third party negligence is suspected.
Policy 15-01-06, Third Party Motor Vehicle Accident Claim Costs, is applicable in cases of motor vehicle accidents involving a negligent third party who is not covered under Schedule 1. The WSIB removes from an employer’s claims experience, part or all of the costs of motor vehicle accidents in Ontario involving a negligent third party who is not covered under Schedule 1.
There is no definition of negligence in WSIB Policy 15-01-06; however, Policy 14-05-01 notes that, on a case-by-case basis, the WSIB applies common law principles to determine if another employer is negligent in a work-related accident, and that, in common law, 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.
In proving negligence, there must be evidence to show, on a balance of probabilities, that the third party was negligent. Furthermore, the employer of record bears the evidentiary burden of proving negligence on the part of the third party.
In the case before me, on the date of the accident, February 25, 2019, the employer’s worker was accompanying a patient, as a passenger, in a vehicle driven by a worker of YT, another Schedule 1 employer. YT’s driver was not identified; however, there is no indication in the appeal before me, that the employer is seeking a transfer of costs to YT.
According to the Worker’s Report of Injury, dated March 4, 2019, the vehicle in which the worker was travelling was suddenly hit by a third party vehicle, namely a truck. Neither the worker nor the employer identified the third party. Therefore, I am unable to determine whether the third party was covered under Schedule 1 of the WSIA at the time of the February 25, 2019 accident, or not. Consequently, I am unable to identify which WSIB policy is applicable in this case, Policy 14-05-01, Transfer of Costs, or Policy 15-01-06, Third Party Motor Vehicle Accident Claim Costs.
Moreover, I find the employer has not met the evidentiary burden of showing, on a balance of probabilities, that a third party was negligent in this case. Based on the evidence before me, the accident of February 25, 2019 took place during whiteout weather conditions and was described, by the employer, as a multi car pile-up. Therefore, there were multiple unidentified parties involved in the accident, and the weather conditions at the material time of the accident may possibly have led to the accident or may have been a significant contributing factor to the accident.
While I find that, as a passenger in the vehicle, it is improbable that the injured worker, or their employer, was negligent in this case; for the purpose of transferring costs or providing cost relief to an accident employer, this is not enough. The evidence must indicate that it is more likely than not that a third party was negligent.
Given the reported whiteout conditions and the limited information before me with respect to the parties involved in the accident and the events leading up to the accident, I am unable to establish that a third party’s negligence caused the accident of February 25, 2019, which in turn caused injury to the employer’s worker.
CONCLUSION
The employer’s objection is, therefore, denied.
The claim and its costs will remain on the employer’s claims experience.
DATED March 28, 2023
M. LaCivita
Appeals Resolution Officer
Appeals Services Division