WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1457/13

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1457/13 BEFORE: R. McCutcheon: Vice-Chair HEARING: July 22, 2013 at Toronto Written DATE OF DECISION: February 12, 2014 NEUTRAL CITATION: 2014 ONWSIAT 290 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) J. Williamson dated August 9, 2011 APPEARANCES: For the worker s estate: For the accident employer: For the respondent employer: Interpreter: Not participating S.C. Roberts, Lawyer Not participating Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1457/13 REASONS (i) Introduction to the appeal proceedings and the issue [1] This appeal relates to a fatal accident which occurred on February 20, The accident employer appeals a decision of the ARO, which concluded that 90% of the costs of this claim ought to transferred to the respondent employer and allocated the remaining 10% of the claim costs to the accident employer. [2] The worker s estate was notified of this appeal and elected not to participate. The respondent employer s account with the WSIB has been inactive since August 2012 and there is no successor account. Accordingly, the respondent employer did not participate in this appeal. [3] The accident employer s request for a written hearing was approved by the Vice-Chair Registrar. The employer's representative relied upon previous written submissions on the record in support of this appeal. (ii) Issue [4] The accident employer seeks a transfer of 100%, rather than 90%, of the claim costs to the respondent employer. That is the issue in this appeal. (iii) Background [5] The deceased worker was in the course of his employment as a transport truck driver when he was involved in the fatal accident. He was merging onto the westbound Highway 401 from Highway 403 when he struck another transport truck which was stopped in the merge lane. The worker died upon impact. The accident occurred on February 20, 2008 at approximately 3:00 a.m. [6] The accident employer is in the business of transport trucking. It is a Schedule 1 employer that provides WSIB coverage for all of its drivers, including owner operators. The WSIB determined that the accident was covered by the WSIA and the worker s surviving spouse and dependent children were eligible for benefits. The worker s surviving spouse elected to receive WSIB benefits in respect of the accident. [7] The WSIB identified the employer of the driver of the other vehicle in the accident (the respondent employer ). The respondent employer was also a Schedule 1 employer at the time of the accident. [8] In May 2008, the WSIB began an investigation into whether it was appropriate to transfer costs in this matter. In the meantime, the driver of the other vehicle involved in the accident was charged under section 130 of the Highway Traffic Act. The respondent employer s driver was eventually found guilty of careless driving and received a fine of $500. [9] The accident employer requested the transfer of 100% of the claim costs to the respondent employer. Following an investigation, the WSIB Transfer of Costs Adjuster determined that it was appropriate to transfer 90% of the costs of the claim to the respondent employer. The respondent employer did not respond to requests for submissions, and as such, the decision was rendered based on the accident employer s submissions, without the benefit of submissions from the respondent employer. In correspondence of July 22, 2010, the transfer of costs decision was explained in part as follows:

3 Page: 2 Decision No. 1457/13 The costs of a claim may be transferred to the accident cost record of another Schedule 1 employer if negligence can be shown on the part of that employer. Negligence has been considered in accordance with common law principles, which include relevant legislation, regulations or standards. [ ] [The worker] was operating a Volvo tractor trailer westbound in the north onramp lane from Highway 403 to Highway 401 within the City of Woodstock, when he struck the rear of a truck that was stopped in the same lane, resulting in fatal injuries. The operator of the stopped Freightliner tractor trailer was employed by [the respondent employer]. [ ] The collision occurred at approximately 3:00 a.m. The temperature was -15 degrees Celsius with a wind chill of -23 degrees Celsius. The road surface conditions were wet with snow and slush. The lane markings were partially obscured. There were large overhead lights in the area of the collision scene. Information on file indicates that [the other worker s vehicle] slowed and stopped in the north lane of the onramp from Highway 403. This onramp lane ended west of Highway 403 with road signs posted indicating the lane was ending at Highway 401. The operator was preparing to exit the vehicle to conduct an inspection of the vehicle when it was struck from behind by the vehicle operated by [the worker]. [ ] An independent witness provided a statement to the police indicating that she passed the [other truck] prior to the collision and indicated the vehicle did not have its four-way hazard lights on at the time. For unknown reasons, [the worker] failed to notice that [the other worker s] vehicle was stopped. There were no tire skid marks to indicate that he was braking and attempting to stop his vehicle prior to striking the [other worker s] vehicle. There was no evidence to indicate that [the worker] attempted evasive maneuvers to avoid the stopped vehicle. He drove directly into the rear of the stopped vehicle. The operator of [the other] vehicle did not pull over to the shoulder of the highway. He stopped his vehicle in a live lane without activating the hazard lights to warn other motorists that he was stopped. [The worker] did not keep a proper lookout and failed to notice the stopped vehicle in his lane when he drove directly into the rear of the tractor trailer without attempted stop or avoid the other vehicle. [10] In view of this evidence, the Transfer of Costs Adjuster determined that it was appropriate to transfer 90% of the costs of the claim to the respondent employer. The ARO upheld that finding in the decision under appeal. The ARO found that a reasonable and prudent person would have engaged the four-way hazards lights to identify a vehicle had stopped on a high-speed road and also that the respondent employer s driver failed to pull off the highway or park on the side of a high speed road. With regard to the worker s contribution to the accident, the ARO noted that at least one witness, and possibly two, saw the stopped tractor trailer on the highway and were able to avoid a collision. The ARO also noted that the police report indicated that visibility and speed were not factors in the incident, and that the worker did not attempt to brake or veer away from the parked vehicle. As such, the ARO concluded that the worker contributed to the accident by failing to notice the stopped vehicle and failing to attempt to brake or take other steps to avoid the stopped vehicle. [11] The accident employer appeals to the Tribunal.

4 Page: 3 Decision No. 1457/13 (iv) Law and policy [12] The Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [13] Section 84 of the WSIA provides for the transfer of claim costs to another employer: 84. In a case where subsection 28(1) applies and the Board is satisfied that the accident giving rise to the worker s injury was caused by the negligence of some other employer in Schedule 1 or that other employer s workers, the Board may direct that the benefits, or a proportion of them, in that case be charged against the class or group to which the other employer belongs and to the accident cost record of the other employer. [14] Document No of the Operational Policy Manual (OPM), Transfer of Costs, applies to the circumstances of this appeal. That policy document states in part: s.84 If the WSIB finds that an accident or disease to a Schedule 1 worker was caused by the negligence of another Schedule 1 worker or employer, the WSIB may charge all or part of the claim costs to the negligent employer's cost record. Policy If negligence is determined and claims costs have already been charged to the accident employer, all or part of these costs are transferred from the accident employer's cost record to the negligent employer's cost record. Guidelines Investigating possible negligence Definition 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. On a case by case basis, the WSIB applies common law principles to determine if another employer is negligent in a work-related accident. (v) Analysis [15] The appeal is denied for the reasons that follow. [16] There is no dispute that the respondent employer s driver was negligent and that his negligence was a cause of this tragic accident. The respondent employer s driver was found guilty of the offence of careless driving contrary to section 130 of the Highway Traffic Act, and received a fine of $500. The question is whether it is appropriate to apportion the transfer of costs based upon the contributory negligence of the accident employer s driver. The file includes the Information which confirms the conviction, but a copy of the Judgment was not submitted. [17] The employer's representative relied in particular upon the conclusion reached by the investigating officer who prepared a Technical Traffic Collision Investigation Report:

5 Page: 4 Decision No. 1457/13 There was nothing observed at the collision scene that would have prevented the operator of the [worker s truck] from seeing the [respondent employer s truck] prior to the collision. The weather and road conditions at the time of the collision were not a factor. The fact that the [respondent employer s truck] was parked in a lane of traffic without its four way flashers on was a factor in this collision. The evidence I observed at the collision scene indicated that the [worker s truck] was travelling westbound on the Highway #403 onramp to Highway #401. The speed was not a factor in this collision. For unknown reasons, the operator of the Freightliner failed to notice that he was parked in a lane of traffic. Although the lane markings were partially obscured by snow and slush, the lanes were still clearly visible. I noted that the front passenger s side wheel was parked on top of the rumble strip located along the north side of the Highway. The Freightliner had travelled a short distance over the rumble strip prior to stopping. As the Freightliner was slowing to stop, the operator would have felt a slight rumble while driving over the strip. It was unknown why the operator of the Freightliner failed to notice the rumble strip that he had driven on prior to stopping his vehicle. If the operator of the Freightliner had parked his motor vehicle and trailer on the north shoulder of the Highway or exited at the next off ramp that was approximately two kilometres west of the collision scene, this collision would have been avoided. [18] The Technical Traffic Collision Investigation Report concluded that the fact that the respondent employer s truck was parked in a lane of traffic without its four-way flashers on was a factor in this collision, 1 but it does not necessarily rule out other contributing factors. I find that the WSIB s adjudication appropriately took into account that there was no evidence that the deceased worker attempted to brake, turn, or otherwise avoid the stopped truck and appropriately allocated a small proportion of the costs to the accident employer as a result. In this regard, the Technical Traffic Collision Investigation Report includes the following information that is relevant to the issue: 1 Emphasis added. In the area of the collision scene, there were two onramp lanes from the westbound Highway 403 onto Highway 401. Both these lanes ended west of the Highway 403 overpass with the north lane ending first. Road signs were posted indicating the ramp lanes were ending at Highway 401. The respondent employer s vehicle was in the north onramp lane. The worker thereby would have had the opportunity to avoid the respondent employer s truck by switching to the other lane. Another tractor trailer driver drove by the scene just before the accident and provided a statement to the police. She confirmed that traffic was very light and the roadway was dry. She noticed the parked truck and trailer on the north ramp lane underneath the highway light. The fact that traffic was light would suggest that there would have been an opportunity to change lanes to avoid the stopped truck. According to this witness, All the truck and trailer lights were on at this time, but she did notice that the four-way hazard lights were not on. She also noted that the interior lights were on in the truck but the driver was not visible as she passed. This is contrary to the employer's representative s assertion in submissions of October 22, 2009 that there were no lights on It is undisputed that the four-way flashers were not on (nor were there flares set as the respondent employer s driver had not yet left his vehicle), but the truck and trailer lights were on, providing some visibility.

6 Page: 5 Decision No. 1457/13 The markings on the road at the scene indicated that the tires of the worker s truck were freely rolling and did not show any sign of braking prior to the truck colliding with the rear of the respondent employer s trailer. This shows that no attempt was made to brake, thereby lessening the impact of the crash. Since the witness who provided the statement to police had passed the scene prior to the accident, it is evident that the respondent employer s truck did not stop suddenly in front of the worker s vehicle without an opportunity for worker to apply the brakes or take evasive maneuvers. The roadway was flat and the view was unobstructed. The collision report also notes that there was nothing at the scene that would have prevented the worker from seeing the parked truck prior to the collision. The weather and road conditions were not a factor. This supports the allocation of a small portion of the costs to the employer s account. [19] In previous submissions to the WSIB, the employer's representative relied upon the decision of the Ontario Superior Court of Justice in Allied Systems (Can) v. Sullivan Estate, [2005] O.J.703, in support of the submission that the respondent employer s driver was negligent. This decision addressed civil actions arising out of a fatal motor vehicle accident on the southbound lanes of Highway 400 at Holland Marsh near the Canal Road turnoff at 8:10 a.m. on December 30, Mr. Sullivan had parked his motor vehicle in the right lane to check his windshield fluid line. He did not turn on his four-way hazard lights and was standing outside of his vehicle. Ms. Kerr was the driver of a blue Chevrolet. She had to swerve suddenly to avoid collision with Mr. Sullivan s vehicle. Mr. Adams was the driver of a tractor trailer car carrier that collided with Mr. Sullivan s vehicle. Mr. Adams was following approximately 200 feet behind Ms. Kerr s vehicle before she swerved. The judgment describes the collision in part as follows: On seeing the stopped Blazer and Mr. Sullivan beside it after the Kerr van had swerved, Mr. Adams hit his brake hard. Mr. Stuart driving beside him confirmed that he did so. Mr. Adams realized he could not go to his left or stop safely and so steered for the shoulder. He braked again, probably less heavily as he left no skid marks. The momentum of the trailer twisted the rear end of the tractor in a counter clockwise direction as the trailer headed for the ditch, landing on its right side in the ditch. The twisting of the tractor caused it to start rolling clockwise onto its right wheels as it passed to the right of Ms. Campbell and headed back into the right lane. The tractor was at about a 20º angle on its right wheels when its left front bumper and grille struck the Blazer in its right rear. The Blazer was thrust forward and spun violently counterclockwise. As it started to do so Mr. Sullivan was struck by the left front headlight and thrown up, striking the left side of the windshield and landing in the centre lane. The Blazer was struck a second time as it was spinning by a Honda on top of the rolling tractor. The Blazer ended up in the centre and left lanes facing northeast, about 24 m. ahead of the point of impact. The tractor ended up in the right lane on its right side about 30 m. ahead of the point of impact facing southeast. [20] The primary issue in that case was the negligence, if any, of Mr. Sullivan and/or Mr. Adams in this accident. Cameron J. cited the following relevant statutory provisions: All drivers have a duty to other users of a highway to use reasonable care not to create, or permit to continue, circumstances which could result in harm to other users of the road. That duty of care includes compliance with the rules of the road in or made under the Highway Traffic Act ( HTA ).

7 Page: 6 Decision No. 1457/13 Section 170 of the HTA provides in part: Parking on roadway 170. (1) No person shall park, stand or stop a vehicle on a roadway, (a) (b) when it is practicable to park, stand or stop the vehicle off the roadway; or when it is not practicable to park, stand or stop the vehicle off the roadway unless a clear view of the vehicle and of the roadway for at least 125 metres beyond the vehicle may be obtained from a distance of at least 125 metres from the vehicle in each direction upon the highway. Disabled vehicle (8) The provisions of this section do not apply to the driver or operator of a vehicle that is so disabled while on a highway that it is impossible to avoid temporarily a contravention of the provisions. Vehicles interfering with traffic (12) Despite the other provisions of this section, no person shall park or stand a vehicle on a highway in such a manner as to interfere with the movement of traffic or the clearing of snow from the highway. The Negligence Act provides in part: Plaintiff guilty of contributory negligence 3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively. [21] In the result, Cameron J. found that both Mr. Sullivan and Mr. Adams were negligent, apportioning their liability 80% and 20%, respectively. In setting Mr. Adams proportion of negligence at 20%, Cameron J. reasoned as follows: Mr. Adams was behind Ms. Kerr, Ms. Campbell and Mr. Sullivan in the curb lane. He had an obligation to keep a lookout for traffic in front of him and not to follow so closely that he could not come to a safe stop. Ms. Campbell mentioned cars changing lanes to avoid slow traffic in the right lane. Her evidence is not clear whether this was immediately before she stopped or some distance back. On hearing her evidence and reading her statements I am satisfied that it was sufficiently close to the scene of the accident to suddenly present her with a Blazer without brake or hazard lights. The evidence does not persuade me that on moving into the right lane Mr. Adams speed was too great and that he should have slowed immediately because he was too close to cars in front of him. Ms. Kerr was over 200 feet ahead of him. Mr. Adams could see over the cars ahead of him but as they closed on the Blazer they would prevent a view of the Blazer s left and right brake lights but probably not the higher centre light. If the Blazer was stopped and the brake pedal not depressed none of the three brake lights would be on and one would have the initial impression that it was moving. The Kerr van clearly blocked a view of Ms. Campbell s stoplights until it swerved left.

8 Page: 7 Decision No. 1457/13 As Ms. Campbell approached the Blazer, she did not recall seeing brake lights on the Blazer. She realized it was stopped and braked hard suddenly. Ms. Campbell s abrupt stop two or three car lengths behind the Blazer clearly shortened Mr. Adams stopping distance. The abruptness of her stop also suggests that Ms. Campbell was slow in recognizing the Blazer was not moving. This is confirmed by Ms. Kerr s sudden swerve to avoid Ms. Campbell. Mr. Adams was, in my opinion, negligent in driving on cruise control when changing lanes in moderately heavy traffic with a heavy vehicle. He came close to the rear of Mr. Stuart [another vehicle not involved in the accident] while on cruise control. While cruise control mechanisms are released on lightly depressing the brake, the driver loses the advantage of the loss of momentum in the fraction of a second between taking his or her foot off the accelerator and hitting the brake. In addition, in my experience, the use of cruise control permits a slightly reduced attentiveness in the driver which increases the risk in heavier traffic unless the right foot is kept at the ready at the accelerator as if it was pressing the accelerator. [22] In summary, although Mr. Sullivan was found to be negligent because he parked in a live lane without his hazard lights on, Mr. Adams was also negligent in driving on cruise control when changing lanes in moderately heavy traffic with a heavy vehicle. His negligence was attributed to the the loss of momentum in the fraction of a second between taking his foot off the accelerator and hitting the brake related to driving in cruise control. It should be noted that, in the circumstances of the Sullivan case, Mr. Adams had less opportunity to see the stopped vehicle due to the van in front of it and also had no option to change lanes safely due to the moderately heavy traffic. Mr. Adams did in fact make an attempt to avoid the stopped vehicle and Cameron J. found that he was not following too closely. In such circumstances, it was held to be appropriate to attribute 20% of the liability to Mr. Adams. [23] Unlike the Sullivan case, in this case, due to light traffic conditions, there would have been an opportunity for the worker to change lanes or at least make an attempt to change lanes or apply the brakes. Furthermore, his view of the tractor-trailer was not obscured by other traffic, as it was in the Sullivan case. [24] The employer's representative argues that the conviction of the respondent employer s driver of careless driving strongly supports that 100% of the claim costs ought to be transferred to the respondent employer. While I accept that the conviction is conclusive proof that the respondent driver did drive carelessly, and it thereby shows negligence on his part, that does not necessarily rule out contributory negligence of the accident employer s worker. In this regard, I find the circumstances of the Sullivan case above, to be persuasive. The employer's representative submitted the Sullivan decision to the WSIB and has not cited any other authority in support for the argument that 100% of the costs ought to be transferred to the respondent employer. [25] The employer's representative also noted that the employer s September 30, 2010 NEER statement assessed limited claim costs of approximately $89,000, even with 90% of the costs being transferred to the respondent employer. The quantum of the costs, however, is not a relevant factor to consider in the determination under section 84 and OPM Document No In the case of contributory negligence, the question is the appropriate apportionment of the costs based upon the degree of fault or negligence found against the parties respectively. For the reasons set out above, I find that it was appropriate to allocate 10% of the

9 Page: 8 Decision No. 1457/13 claim costs to the accident employer based upon the degree of the worker s negligence in contributing to the accident. [26] Taking into account the evidence and the jurisprudence on the record, the WSIB s decision to transfer 90% of the costs to the respondent employer was correct. If I were to vary the WSIB s decision at all, it would be to decrease the transfer to 80%, based upon the comparable circumstances reflected in the Sullivan decision. I will not, however, make such an order as the employer was not notified of a downside risk in this appeal.

10 Page: 9 Decision No. 1457/13 DISPOSITION [27] The appeal is denied. DATED: February 12, 2014 SIGNED: R. McCutcheon