WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 657/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 657/15 BEFORE: R. Nairn: Vice-Chair HEARING: April 29, 2016 at Toronto Oral DATE OF DECISION: August 10, 2016 NEUTRAL CITATION: 2016 ONWSIAT 2124 DECISION(S) UNDER APPEAL: WSIB Transfer of Cost Administrator decision dated June 10, 2011 APPEARANCES: For the worker: For the employer: Tribunal Counsel: Interpreter: Did not participate M. Zacks, Office of the Employer Adviser LT, Witness C. Salomon-Labbé N/A 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. 657/15 REASONS (i) Introduction [1] The following background information is, generally speaking, not contested and I have relied on it in reaching my decision: The employer is an international transport company that hauls goods between Canada and the United States. It is a Schedule 1 employer for WSIB ( Board ) purposes and has been in operation since about On October 21, 2010, the worker, a driver employed by the employer, was involved in a motor vehicle accident on Highway 68 near Kenton, Ohio. At the time of the accident, the employer s truck was being driven by the worker s spouse who also worked for the employer. The worker was a passenger in the truck at the time of the accident. Information on file (including material in Exhibit No. 12) indicates that the employer s vehicle was struck from behind while stopped in traffic by the trailer of a transport truck owned by an American company. Both the worker and his spouse suffered injuries as a result of the collision. Both filed WSIB claims and received WSIB benefits. The accident was investigated by the local police and an Ohio Traffic Crash Report was produced. The report indicated that the transport truck driven by the worker s spouse was stopped on the highway in traffic. The driver of another transport truck failed to see the worker s truck in time, applied the brakes and swerved off the road. The trailer which was being hauled, broke away from the swerving transport truck and hit the worker s vehicle in the rear. Both trucks were insured. Subsequently, the employer contacted the Board requesting that it be granted cost relief pursuant to Operational Policy Manual ( OPM ) Document No The employer eventually received a decision dated June 10, 2011, from a Board Transfer of Cost Administrator which indicated: On October 21, 2010 [the worker] was injured while in the course of employment. The worker was injured in a motor vehicle collision outside the Province of Ontario. The matter has been referred for consideration of cost relief pursuant to MVA Cost Relief Policy Please be advised that WSIB practice on this issue has changed. The WSIB does not have jurisdiction to consider external law. As a result, this Policy cannot be applied to incidents occurring outside the territorial limits of the Province of Ontario. Therefore, we are not able to consider this claim for cost relief. Information contained in Exhibit No. 10 establishes that the employer s accident costs for the worker were $91, and for his spouse, $97, for a total of $188, In a decision dated December 24, 2013, Ms. S. Hewitt, a Legal Policy Analyst with the Board s Legal Services Division indicated that the June 10, 2011, Transfer of

3 Page: 2 Decision No. 657/15 Cost Administrator s decision would be considered a final decision of the Board for appeals purposes. In Decision No. 657/15I dated August 13, 2015, the Tribunal concluded that the worker did not have the right to participate in the employer s appeal of the Transfer of Cost Administrator s decision. (ii) Issue on appeal [2] The issues to be determined in this appeal are: a) Whether the Board had the jurisdiction to consider the employer s request for cost relief under OPM Document No given that the motor vehicle accident occurred outside of Ontario, and b) If the Board did have the jurisdiction to consider the matter, should the issue be returned to the Board for further adjudication or decided at the Tribunal. (iii) Submissions of the WSIB [3] When advised of this appeal, the Board requested the opportunity to provide written amicus curiae submissions. I agreed to the Board s request and submissions dated December 9, 2015 (included in Addendum No. 5) were provided by Ms. L. Turner, Legal Counsel with the WSIB. In those submissions, Ms. Turner indicated: Thank you for giving the WSIB the opportunity to provide amicus curiae submissions in this appeal on the subject of Operational Policy Manual ("OPM") policy ("Third Party Motor Vehicle Accident Claim Costs"). Specifically, whether or not the transfer of costs contemplated in the policy applies to motor vehicle accidents that take place outside of Ontario. History of Policy OPM Policy was introduced into the OPM on February 21, The policy was developed in response to the October 13, 1989 amendments to the Insurance Act, R.S ,c the implementation of no-fault automobile insurance in Ontario. Prior to the amendments to the Insurance Act, the WSIB could, on behalf of a worker, sue a non-schedule 1 third party for negligence for motor vehicle collisions occurring in Ontario. The WSIB would then use any court award or settlement to reduce the accident costs, thereby providing cost relief to the worker's employer. After the 1989 amendments to the Insurance Act, and in particular the addition of s.267.8(19), the WSIB no longer had a right to a subrogated action on behalf of an injured worker. Section 267.8(19) reads as follows: Workplace Safety and Insurance Board (19) The Workplace Safety and Insurance Board is not subrogated to a right of recovery of the insured against another person in respect of a payment or benefit paid by the Workplace Safety and Insurance Board to the insured or in respect of a liability to make such payment or benefit. OPM policy was created to address the unfairness of holding an employer liable for costs of a motor vehicle collision via transfer of costs. While the WSIB can no longer pursue subrogated claims against non-schedule 1 negligent third parties in motor vehicle accidents in Ontario, it can conduct a transfer of costs investigation. If a non-schedule 1 third party is attributed negligence, the WSIB will remove benefits paid to the worker

4 Page: 3 Decision No. 657/15 from the accident employer's experience rating record according to the degree of negligence so attributed. Intended Application of Policy Since its creation in 2002, OPM Policy has consistently delivered the message that the policy is a response to the implementation of no-fault automobile insurance in Ontario and presents an alternative to the subrogation of third party negligence of motor vehicle accident claims. The first version of the policy, dated March 1, 2002, provided as follows: Before the implementation of the no-fault automobile insurance, the WSIB could, on behalf of an injured worker, sue a non-schedule 1 third party for negligence. If the legal action was successful, the WSIB used the court award to provide cost relief to the accident employer by adjusting the employer's experience rating record by the amount of the award. With the advent of Ontario's no-fault automobile insurance legislation, in most cases, a third party cannot be sued for negligence. Since the WSIB is thus precluded from taking legal action on behalf of an injured worker against a non- Schedule 1 third party, it must conduct its own investigation to determine the degree of negligence for cost relief purposes. The October 12, 2004 version of the policy, which was in effect at the time of motor vehicle accident that is the subject of this appeal, contains identical language. In 2015, the policy was revised to bring it into compliance with the new look and feel of the OPM. During the revision, seven words were added to the "Right of action" section of the policy, quoted above. As of January 2, 2015, the policy now reads (addition quoted in bold): Before the Implementation of no-fault automobile insurance, the WSIB could, on behalf of a worker, sue a non-schedule 1 third party for negligence for motor vehicle collisions occurring in Ontario. If the legal action was successful, the WSIB used the court award to provide cost relief to the accident employer by adjusting the employer's experience rating record by the amount of the award. By making a small revision to the policy in 2015, the WSIB has simply made explicit that the policy is intended to apply to motor vehicle collisions in Ontario involving nonschedule 1 third parties who may be negligent: this was always the intended scope of the policy, as the excerpts from past policies show. The addition was intended to provide additional clarity, but the scope of the policy's application remains unchanged. The WSIB hopes that this submission will be of assistance to the Panel in rendering their decision. (iv) The testimony of LT [4] LT is the general manager of the employer and has worked for the company for about 30 years. She confirmed that the employer was a long haul transportation company operating between Ontario and the United States. [5] Referring to the documentation contained in Exhibit No. 12, LT testified that shortly after becoming aware of the motor vehicle accident, she contacted the Board and raised the issue of cost relief. The Board adjudicator requested that she send in the accident report about the incident and advised her that the issue would be considered further. LT faxed the Traffic Crash Report to the Board on December 30, 2010 and in January 2011 received the decision of the Transfer of Cost Administrator indicating there would be no transfer of costs.

5 Page: 4 Decision No. 657/15 [6] LT testified that she spoke with the Legal Department at the WSIB and was advised that the rules had changed and the employer could not pursue this issue. [7] LT confirmed that at the time of the accident, the employer s vehicle was being driven by the worker s spouse. She also confirmed information on file would suggest that the worker and her spouse subsequently incurred WSIB costs in excess of $189,000. LT testified that these claim costs resulted in a $75,000 NEER penalty for the employer. [8] LT testified that she was not aware of any court action being commenced in Ohio with respect to this matter and she noted that the employer had never been involved in a similar situation in the past. (v) Analysis [9] Since this accident occurred in 2010, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). (a) Does the WSIB have jurisdiction to consider a transfer of costs? [10] Pursuant to section 126 of the WSIA, the Tribunal is required to apply Board policy. The Board has advised that one of the policies applicable to this appeal is Operational Policy Manual ( OPM ) Document No entitled Third Party Motor Vehicle Accident Claim Costs. The version of this policy which was in place at the time of the motor vehicle accident in 2010 was the version published on October 12, 2004, which provided in part: ( ) Guidelines Right of action Before the implementation of no-fault automobile insurance the WSIB could, on behalf of a worker, sue a non-schedule 1 third party for negligence. If the legal action was successful, the WSIB used the court award to provide cost relief to the accident employer by adjusting the employer's experience rating record by the amount of the award. With the advent of Ontario's no-fault automobile Insurance legislation, in most cases, a third party cannot be sued for negligence. Since the WSIB is thus precluded from taking legal action on behalf of a worker against a non-schedule 1 third party, it must conduct its own investigation to determine the degree of negligence for cost relief purposes. ( ) [11] As the Board indicated in its amicus curiae submissions, a new version of OPM Document No was published on January 2, 2015 and certain changes were made to the 2004 version of that policy. The 2015 policy provides: Policy The WSIB removes from an employer's experience rating record, part or all of the costs of motor vehicle accidents in Ontario involving a negligent third party who is not covered under Schedule 1. Purpose The purpose of this policy is to provide cost relief guidelines for certain motor vehicle accident claims which involve negligent third parties. Guidelines Right of action

6 Page: 5 Decision No. 657/15 Before the implementation of no-fault automobile insurance, the WSIB could, on behalf of a worker, sue a non-schedule 1 third party for negligence for motor vehicle collisions occurring in Ontario. If the legal action was successful, the WSIB used the court award to provide cost relief to the accident employer by adjusting the employer's experience rating record by the amount of the award (emphasis added). With the advent of Ontario's no-fault automobile insurance legislation, in most cases, a third party cannot be sued for negligence. Since the WSIB is thus precluded from taking legal action on behalf of a worker against a non-schedule 1 third party, it must conduct its own investigation to determine the degree of negligence for cost relief purposes. [12] As I understand the amicus curiae submissions, the Board takes the position that the addition of the seven words for motor vehicle collisions occurring in Ontario simply provides additional clarity, but the scope of the policies application remains unchanged. The Board has submitted that it has always been the intended scope of the policy that employers like the one involved in this appeal would not be entitled to a transfer of costs for motor vehicle accidents that occurred outside of Ontario. The Board submits that the change in wording was not meant to reflect a change in Board policy or practice but rather, to bring the 2004 policy into compliance with the new look and feel of the OPM. [13] While the Board appears to take the position that it has always been its practice and policy that transfers of costs were only considered for motor vehicle accidents which occurred in Ontario, my review of the evidence before me suggests otherwise. In addition to the fact that the version of OPM Document No which was in place at the time of the accident in 2010 (and had been in place since 2004) makes no mention of transfer of costs being limited to motor vehicle accidents in Ontario, Mr. Zacks has provided documentation from another Ontario trucking company involved in a similar situation. The documentation indicates: In a June 19, 2006, letter addressed to the Board, the trucking company s safety and compliance coordinator indicated: I am requesting Transfer of Cost of this claim as it was a motor vehicle accident that was caused by a third party. I have forwarded you the Preliminary Police Report on March 14/06. The accident was caused by the negligence of the third party driver who received several citations. The official police report is not being completed as New York State Police had a reconstruction team reconstruct the accident and we do not expect to see it for a couple of month s yet. I will forward information as I receive it. If you have any questions, please do not hesitate to call. Thank you for your assistance. In a letter dated July 6, 2006, a Board Transfer of Cost Administrator replied and indicated: The Workplace Safety and Insurance Board will remove part or all of the costs of motor vehicle accidents from an employer s Experience Rating Record if the accident involves a negligent third party that is not registered as an employer with the Board. The circumstances of this accident have been investigated by the Prevention Services Branch and it has been determined that this motor vehicle accident was caused by the negligence of a third party. It is the policy of the Workplace Safety and Insurance Board to provide Experience Rating Cost Relief in this situation.

7 Page: 6 Decision No. 657/15 The costs of this claim will be removed from the experience rating record of (the trucking company), however, the cost will continue to appear on your Accident Cost Statement. Information contained in Exhibit No. 9 confirms that the WSIB subsequently commenced a subrogated claim in the United States District Court Western District of New York against the other parties seeking damages for wrongful death arising out of the motor vehicle accident on February 22, This information is consistent with the testimony provided by LT to the effect that when she initially contacted the Board and spoke to the Case Manager about a transfer of costs, she was not advised that this request could not be considered. In fact, the Case Manager requested that she send in the accident reporting so that the matter could be considered further. [14] In my view, the evidence submitted by Mr. Zacks, as well as the 2011 Board decision of the Transfer of Costs Administrator, establishes that the Board did, in fact, at least in 2010 (the date of the accident in question) still consider transfer of costs in cases where workers of Schedule 1 employers were involved in motor vehicle accidents outside of Ontario. This is consistent with a plain reading of the version of OPM Document No in effect at the time of the accident in 2010 which provides that since third parties can no longer be sued for negligence with the advent of Ontario s no fault automobile insurance, the Board must conduct its own investigation to determine the degree of negligence for cost relief purposes. The policy continues: However, in motor vehicle accident claims, the WSIB conducts an investigation, as described in , transfer of costs. If third party negligence is determined, the WSIB removes any benefits paid to the worker from the accident employer s experience rating record according to the degree of negligence attributed to the third party ( ) [15] There is nothing in this version of OPM Document No which would suggest the Board would only be conducting these investigations of negligence for accidents that occurred in Ontario. [16] Even if I were to accept, for the sake of argument, that the Board s practice prior to 2015 had been not to consider transfer of costs for motor vehicle accidents occurring outside of Ontario, I note that section 126 of the WSIA requires the Tribunal to follow Board policy, not its practice. In Decision No. 87/12 for example, the Panel noted: [24] The Panel finds that there is no policy that applies to the payment of LOE benefits in these circumstances, included in the Policy Packages that the Board advised were applicable to this appeal. We observe that Operational Policy Manual (OPM) Document No Older Workers and LOE Benefits was one of the policies included in the Policy Package. We find, however, that this policy document does not pertain to retired workers, and it does not specify how LOE benefits would be calculated or paid in the case of a retired person. While we have no reason to question this policy generally, we find that this policy is not relevant or applicable to the facts and circumstances of this appeal. We also note that while the Claims Adjudicator referred to this policy, the ARO did not. The ARO based his decision on Board operational practice. Unlike Board policy, the Tribunal is not required to apply Board operational practice. [17] Once again, even assuming that the Board s practice was not to consider transfer of costs in motor vehicle accidents outside of Ontario, my review of the Board policy in effect at the time does not reveal any such limitation.

8 Page: 7 Decision No. 657/15 [18] For these reasons, I find that applying the version of OPM Document No in place at the time of the accident under consideration here, the Board had jurisdiction to consider the transfer of costs request by the employer relating to the motor vehicle accident that occurred in Ohio. (b) The merits of the employer s application [19] Having considered the evidence before me, including the submissions provided by Mr. Zacks and Tribunal Counsel, I am satisfied that it would be appropriate and more expeditious to deal with the merits of the employer s transfer of costs application rather than returning it to the Board for further adjudication. [20] With respect to the issue of cost relief, OPM Document No provides: Cost relief When the WSIB suspects third party negligence has contributed to a claim, that claim is initially reviewed under the policy , Third Party Rights of Action, since the possibility exists that the WSIB could take legal action on behalf of the worker. However, in motor vehicle accident claims, the WSIB conducts an investigation, as described in , Transfer of Costs. If third party negligence is determined, the WSIB removes any benefits paid to the worker from the accident employer's experience rating record according to the degree of negligence attributed to the third party. For example, if the WSIB finds that the third party was 100% negligent, all current and future costs are removed from the accident employer's cost record. Under the CAD-7 and MAP experience rating plan, the accident frequency component of the refund or surcharge calculation is also adjusted. See , Construction Industry Plan (CAD-7) and Merit-Adjusted Premium Program (MAP) less than 100% negligent, current and future costs are removed from the accident employer's record according to the percentage of third party liability. The frequency component resulting from the accident is not adjusted. [21] The version of OPM Document No entitled Transfer of Costs in place at the time of the motor vehicle accident provides: Law Workplace Safety and Insurance Act: 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. Guidelines Right of action/recovery In the case of an accident or disease to a Schedule 1 worker, the injured worker does not have a right of action/recovery against another Schedule 1 worker or employer. NOTE A worker may, however, have the right of action/recovery against third parties not covered under Schedule 1 (see , Third Party Rights of Action). Investigating possible negligence

9 Page: 8 Decision No. 657/15 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. ( ) Sources of information The WSIB investigates possible negligence based on its own suspicions of negligence, or information on the Worker s Report of Injury/Disease Form 6, or the Employer s Report of Injury/Disease Form 7, or information subsequently provided by the accident employer, or from any other source The cost adjuster investigating the claim may review information concerning the accident from the following sources: police reports Environment Canada weather reports Interviews with witness or the injured worker Ministry of Labour reports Inspection of the accident location discovery transcripts court transcripts inquest findings accident scene photographs reports from employers, workers, representatives, agencies, and any other relevant source. As part of an investigation, the cost adjuster contacts the potentially negligent Schedule 1 employer and gives the employer an opportunity (usually 30 days) to present the facts of the accident, and explain why the employer was not negligent. The accident employer, the worker, or any other source considered relevant to the investigation may also be contacted for information about the accident. ( ) [22] As the above-mentioned policy suggests, according to OPM Document No , where an employer requests a transfer of costs, the Board conducts an investigation to determine if there has been negligence on the part of a third party. OPM Document No sets out the type of information that is considered in reaching a decision. [23] In Decision No. 200/13, a Tribunal Panel considered an employer s request for a transfer of costs and indicated: [33] The Panel does not find it necessary to determine the very complicated legal issues of foreseeability and duty of care as defined by tort law in order to apply the provisions of the Act and WSIB policy concerning employer cost transfers. While Document No was introduced in response to the removal of the WSIB s ability to pursue subrogated claims in motor vehicle accidents, the policy itself does not restrict cost transfers to those cases where it can be demonstrated that there would have been

10 Page: 9 Decision No. 657/15 recovery but for the introduction of no fault auto insurance. The standard for cost transfers under Document No (as well as under section 84 and Document No ) is negligence and negligence is defined in the provisions of Document No and does not involve considerations of foreseeability and duty of care. [34] In conclusion, the Panel finds that the worker s injuries were the result of a motor vehicle accident. We find, further, that the accident was caused by the negligence of either the car driver or the pedestrian who was not covered by Schedule 1. The employer is therefore entitled to 100% cost relief under Document No [24] Similarly, in Decision No. 303/14, a Tribunal Vice-Chair dealt with another transfer of costs appeal and in addition to considering OPM Document No , applied the criteria noted in OPM Document No The Vice-Chair indicated in part: [44] Having considered all of the information before me, I find that what occurred on February 9, 2007, satisfies the policy criteria of being injuries that occurred as a result of a motor vehicle accident. As required by Martin v Ontario Inc., it was clear from the testimony of all the witnesses that it was the use or operation of this trailer which caused the worker's injuries. D. L. had returned to the worksite to hook up and take away his trailer and the worker was injured when the ramps, which D. L. was in the process of lowering, unexpectedly fell to the ground. It is also clear from the testimony provided that the use or operation of this trailer was the direct cause of the worker's injuries. There was no intervening act or acts which would suggest that something other than the operation of the trailer was responsible for the worker's injuries. [45] A review of the relevant policy suggests that even if one is satisfied that a worker's injuries were the result of a motor vehicle accident, it must also be established that there was negligence involved on the part of the third party who is not covered under Schedule 1. [46] OPM Document No notes the following with respect to 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. [47] In Decision No. 432/00, a Tribunal Panel, dealing with a transfer of costs case, noted: [79] The elements of the tort of negligence, as set out in a number of Tribunal decisions 1 are as follows: (a) (b) (c) (d) There must be a relationship between the parties (i.e., between the injured worker and the second employer) creating a duty to exercise reasonable care. The duty must be breached. That is, the conduct of the second employer must have fallen below the required standard of care. The worker must have suffered damage (i.e., injury) and the injury must have been caused by the second employer s failure to conform to the standard of care. The damage must not be too remote.

11 Page: 10 Decision No. 657/15 [48] While Decision No. 432/00, applies to a transfer of costs case, I am satisfied that similar principles would apply in cases considered under OPM Document No Specifically, I am satisfied that there was a relationship between these parties as they were both working on the same worksite at the time of the accident on February 9, 2007 and as such had a duty to exercise reasonable care. I am also satisfied that the conduct of D. L. fell below the standard of care expected of a reasonably competent truck driver/hauler. In his testimony, D. L. advised he had no idea that the worker was at the back of his trailer. He did not check to see if anyone was in the vicinity of the rear of the trailer before he started this task and did not keep a proper lookout while he was performing it. This would reasonably be expected from a competent driver/hauler If one accepts that D. L. did not lower the ramps on the worker on purpose, and that the worker did not lower the ramps on himself, then the only reasonable explanation for what occurred is either that there was a problem with the air pressure (the explanation provided by both the worker and A. P. immediately after the accident) or that by connecting the air hoses, D. L. somehow moved the trailer, causing the ramps to fall unexpectedly. In either case, that conduct would fall below the level of care expected of a reasonably competent driver/hauler i.e. he failed to keep his truck/trailer in a state of proper repair or, as above, failed to keep others a proper distance from the rear of the vehicle. [49] I accept that the worker's injuries were caused by D. L. s failure to conform to the usual standard of care and that the worker s injuries were a foreseeable consequence of the ramps being improperly lowered. [50] Given the facts available, I am satisfied that the injuries sustained by the worker were caused, in their entirety, by the actions of the third party and therefore, pursuant to OPM Document No , the related costs should be removed in their entirety from the employer's Experience Rating Record. ( ) [25] Applying the provisions of OPM Document No , I am satisfied that the balance of evidence in this case establishes that the injuries which the worker sustained in this case were due entirely to the negligence of the other truck driver. Put another way, the other truck driver failed to do something which a reasonable and prudent person would do. In reaching that conclusion, I have taken particular note of the police reports contained in Exhibit No. 12 which establish: At the time of the accident, the vehicle in which the worker was travelling was stopped in highway traffic. The driver of the other vehicle failed to see that the worker s vehicle was stopped and hit his brakes, swerved to the right and when this happened the back trailer broke away from the other driver s truck and hit the worker s truck in the rear. The other truck continued off the road and struck a power pole. The driver of the second vehicle was charged by police with operating vehicle without reasonable control. [26] Mr. Zacks has also submitted documentation, contained in Exhibit No. 10, which confirms that at the time of the accident there was no precipitation and visibility was 10 miles. [27] In my view, the evidence before me supports a conclusion that this accident was entirely the fault of the non-ontario driver and there would be no purpose served in returning the matter to the Board for further investigation or adjudication.

12 Page: 11 Decision No. 657/15 [28] As a result, applying OPM Document No , I find that the third party was 100% responsible for this accident and therefore the employer is entitled to have all current and future costs removed from its accident cost record with applicable interest as permitted by Board policy.

13 Page: 12 Decision No. 657/15 DISPOSITION [29] The employer s appeal is allowed. [30] The employer is entitled to have all of the costs relating to this worker s claim transferred from its cost record. DATED: August 10, 2016 SIGNED: R. Nairn