Highlights of Noteworthy Decisions

Decision 62 20
27/07/2020
R. Nairn
  • Merits and justice
  • Experience rating (fatal claim premium adjustment)
  • Assessment of employers (fatal claim premium adjustment)
  • Board Directives and Guidelines (employer assessment) (fatal claim premium adjustment)

The worker was fatally injured in March 2011. The employer appealed a decision of the Appeals Resolution Officer confirming a fatal claim premium increase.

A flatbed truck delivered a number of prefabricated balconies to a construction site. Five slabs were lifted by crane without incident. During the lifting of the sixth slab, the worker noticed a piece of wood, which had been used as a spacer between the slab and the flatbed trailer, had attached itself to the bottom of the slab that was being lifted. The worker instructed the crane operator to stop the hoisting of the load. The worker walked underneath the suspended load so that he could knock the wood off. The slab descended unexpectedly, pinning the worker between the slab and the trailer, ultimately causing his death.
Board Operational Policy Manual, Document No. 14-02-17, on fatal claim premium adjustment, provides that, once a traumatic fatality occurs, the decision-maker examines whether the deceased worker's employer would be entitled to receive an experience rating refund. If so, a premium increase is applied to the employer of the deceased worker equivalent to the refund. The policy also provides that the decision-maker will consider the Board's policy on merits and justice.
The Vice-Chair did not interpret the Board's policy on fatal claim premiums to be a type of absolute liability matter, considering the reference to the merits and justice policy and provisions of the WSIA. The Vice-Chair accepted that it is appropriate in some situations to consider whether the exceptional circumstances of an accident require that the merits and justice provisions be applied to relieve an employer from application of the policy.
The Board's decision to levy the fatal claim premium was based in large part on various charges being laid against the employer under the Occupational Health and Safety Act. The ARO confirmed the levying of the premium before the merits of those charges were considered. However, all charges were dismissed by the Court without the employer even having to call evidence in support of its position. In the end, no explanation could be found for the accident. No issues were identified with the crane or the lifting process, or with the actions of the individuals who were involved in the lift that day. There was no evidence of significance that the employer had not taken sufficient precautions to prevent accidents to workers or that the working conditions were not safe for workers.
The Vice-Chair concluded that the facts of this case were sufficiently exceptional. It would be manifestly unfair to apply the policy and levy a fatal claim premium. The employer appeal was allowed.