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Adjusters in the Field


September 30, 2011   by Greg Merrithew


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Workplace safety is becoming a very hot topic nationally with occupational health and safety regulators. Safety legislation has been lawfully in force for many years. Recently, safety inspectors are becoming more proactive on enforcing the intent of the existing legislation found in most jurisdictions in Canada.

This increased enforcement of safety legislation affects the duties and responsibilities of the independent adjuster in a number of provincial and territorial jurisdictions. For the most part, but not exclusively, the types of claims that are affected by this issue are property losses. Although reportedly only experienced to date by independent adjusters, the insurance company staff adjuster is potentially exposed to this issue as well. Also, arguably, an in-house examiner who provides direction to the employees of service providers can have exposure to the regulations respecting work site safety. For the purpose of this article, we will only address the issue as to how this increased enforcement has affected independent adjusters to date.

In the normal course of a property claim, an independent adjuster is most often the first professional to give assistance to the building owner (Insured) affected by a claimable event, (fire/water escape etc). The building owner relies heavily on the advice and guidance of the independent adjuster in the investigation, mitigation and repair of the damage.

On initial attendance to a loss site, the independent adjuster may be required to make arrangements to retain employees of other employers, such as origin & cause experts, engineers, disaster restoration contractors, etc. When these other employees are engaged at the loss site, the regulatory authority might identify the independent adjuster as being the responsible party for work site safety. Safety inspectors in some jurisdictions have already deemed independent adjuster as the agent of the owner in charge of the site, and, therefore, responsible for site safety.

This view may be solidified by how courts have perceived the actions of the independent adjuster, triggering the “election to repair” provision of property policies. An election to repair can be found by conduct. The actions of the independent adjuster, acting under the authority of the insurers in negotiating prices and terms for labour and materials and in dealing directly with the contractor on payments, could support a conclusion that there is a contract of repair. Accordingly, it is reasonable to believe regulatory authorities would follow the same logic of the courts. The logic being that the independent adjuster, if not the contracting authority is, at the very least, the controlling authority.

On a review of the legislation of some jurisdictions across Canada, enabling legislation has the following intentions:

Ontario

The Occupational Health & Safety Act states a general contractor (GC) is responsible for on-site safety. The general contractor must file a Notice of Project with the Ministry of Labour. Also, the general contractor is responsible to ensure all workers on-site are registered with the Workplace Safety & Insurance Board. The general contractor is responsible for all individuals working on-site.

Safety officers have previously stated that independent adjuster’s are the contractor in the absence of an identifiable general contractor. Therefore, the independent adjuster is responsible for work site safety

Prince Edward Island

The defining word in P.E.I. safety legislation is “constructor.” The definition includes a person who “undertakes work on a project as an owner.” Obligations in the Act placed upon the constructor include ensuring that “every reasonable precaution is taken to protect the occupational health and safety of persons at or near a project.”

It is probable, if the issue was ever raised, the independent adjuster would be responsible for workplace safety as the owner’s agent in the absence of others specifically identified to undertake responsibility for site safety.

Manitoba

Legislation in Manitoba is different than in other jurisdictions. There does not appear to be the same onus on-site safety on a preliminary review of Manitoba legislation. Independent adjuster’s contacted in Manitoba said this has not been raised as an issue by Safe Work inspectors in their province. Of interest, independent adjuster’s in Manitoba are excluded from Workers Compensation Board of Manitoba coverage.

Nova Scotia

Nova Scotia legislation for workplace safety states on work sites someone must have ultimate responsibility for site safety. It appears to be left to regulatory authorities to deem who that person may be.

“Owner” in Nova Scotia includes “a person who acts for, or on behalf of, an owner as an agent or delegate.” This certainly could include an independent adjuster, from the regulator’s perspective, during an independent adjuster’s normal course of duties on a typical property loss.

Northwest Territories and Nunavut

“Employer” includes owner, agent, principal contractor, subcontractor, manager or other authorized person having charge of an establishment in which one or more workers are engaged in work. If two or more employers have charge of an establishment, the principal contractor or, if there is no principal contractor, the owner of the establishment or their agent, shall coordinate the activities of the employers in the establishment to ensure the health and safety of persons in the establishment.

In the NWT, safety officers have already made it clear that when two or more employers have employees on a job site where an independent adjuster is providing the owner with guidance, instruction and making recommendations on the scope of work and payments, then, in the absence of a general contractor, the independent adjuster is deemed to be the “employer” having responsibility for safety.

British Columbia

In B.C., the “prime contractor” on a work site is responsible for the safety of workers on that site. The legislation states, “Every employer must ensure the health and safety of all workers working for that employer, and any other workers present at a workplace at which that employer’s work is being carried out.” Work Safe officers in B.C. take the position that independent adjuster’s are ultimately responsible for the safety of every worker on the site in the absence of others being appointed, where the independent adjuster is adjusting a property loss.

B.C. regulators agree employers other than the independent adjuster can be identified as the prime contractor responsible for work site safety, but only when a written agreement is in place to confirm this obligation.

Recommendations

Independent adjuster’s should ensure they address workplace safety as one of their initial priorities on attendance to a loss site. In the absence of any other employees on a site, it is still the obligation of the independent adjuster’s employer to ensure the safety of their own employees.

1. When outside experts such as origin & cause, engineers, disaster restoration technicians, quantity surveyors are retained, a site safety meeting should be placed on the agenda as one of the first matters to be dealt with by the independent adjuster.

  • Site conditions, hazards and necessary safety equipment should be discussed. All employees traveling to remote sites should be forewarned of the need for safety equipment. This includes hard hats, eye protection, appropriate footwear and safety clothing, reflective vests and respiratory protection.
  • A site “tailgate” meeting should be conducted with on-site employees to ensure all safety issues are discussed. Minutes of the meeting should be kept and distributed to all on-site employees as soon as possible.
  • Where necessary, site hazard war
    nings should be posted on a safety bulletin board at the entrance to the work site.
  • Structural integrity of buildings should be assessed by a qualified engineer prior to entry when the structure has been compromised, especially due to fire.
  • Where required, air quality tests should be undertaken if there is evidence of potential airborne hazards (asbestos, vapour borne contaminants, mould).

2. Once contractors have been retained to undertake repairs, the person responsible for site safety should be identified and a Certificate of Compliance should be drafted and signed by that individual. This person normally would be the general contractor’s site superintendent or his designate.

3. The requirement for site safety and compliance should be included within the scope of work prepared by the independent adjuster or the quantity surveyor.

4. Independent adjusting firms must ensure that employees of their firms are provided training in workplace safety as it relates to their duties. This includes, but is not limited to:

  • WHMIS;
  • ladder use;
  • fall arrest systems;
  • enclosed spaces;
  • asbestos contaminated work sites;
  • mould remediation; and
  • personal protection equipment

Conclusion

Independent adjuster’s across Canada must ensure they are aware of the appropriate safety legislation in their jurisdiction and the obligations placed upon them for the safety of others. Regulators are prepared to take legal action against employers who fail to fulfill their responsibility under the laws of the jurisdiction in which they work. This can expose independent adjusting firms to fines and, in some cases, civil action in the event of an injury to an employee due to employer’s failure to fulfill their obligations under the safety laws in place.

Independent adjuster’s have for years entered unsafe work sites with minimal or no safety training, inadequate safety equipment as well as entering buildings with suspect atmospheres full of contaminants with little or no thought to the long term effects on their respiratory health. Independent adjuster’s have an obligation to promote on-site safety to other contracted employees in the course of claims adjusting. We should embrace work place safety and be proactive in providing site safety information to assist others in ensuring a work safe site.

Greg Merrithew is the managing director of Arctic West Adjusters Ltd. and the president of the Canadian Independent Adjusters’ Association.


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