WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20150018
DECISION DATE: March 25, 2015
OBJECTING PARTY: Employer (TUV)
REPRESENTED by: FGH
WORKER: J.R.
RESPONDENT: Company XYZ REPRESENTED by: ABC
HEARING: December 3, 2014 - Hamilton,
HEARD by: C. da Cunha, Appeals Resolution Officer
ATTENDEES:
- Employer (resource person): A.J., Owner, TUV
- Employer Representative: K.T., FGH
- Respondent (resource person): R.J., XYZ
- Respondent Representative: C.R., ABC
- Witness (for the employer): J.R., Worker
- Witness (for the employer): G.G., Shop Superintendent, TUV
- Witness (for the respondent): M.C., Technical Service Manager, XYZ
- Observer: D.Z., Owner, TUV
ISSUE
The employer, TUV, seeks the transfer of 100% of the costs of the claim to the accident record of the respondent, XYZ.
HOW THE ISSUE ARISES
On March 20, 2012, the worker injured his right forearm, right shoulder, neck and low back when pressurized oil shot out of a 10-inch flange he had loosened to drain, striking his arm and forcing it behind his back. He was 34 years of age at the time and had worked with the employer as a steamfitter for almost 3 ½ years.
XYZ hired TUV to perform a hydrostatic oil test on one of its brand new piping skids. TUV assembled the piping skid on its premises. XYZ then sent its technical service manager to oversee a pre-test on March 19, 2012. On inspection of the piping skid, the technical service manager noticed that a drain connection had not been installed on a blank flange located at the very bottom of the machine. He informed TUV’s shop superintendent that they should have installed a flange with drainage holes and plugs and warned him to be careful when draining this flange.
XYZ and TUV went ahead with a hydrostatic pre-test on March 19, 2012, leaving the same flange on the machine. The pre-test went well and the technical service manager left. TUV depressurized the piping skid, but did not drain the machine, before closing for the night.
On March 20, 2012, XYZ and TUV conducted the same test in the presence of XYZ’s customer. The test went well. The technical service manager again advised TUV to be very careful when draining the same flange.
TUV bled the unit and two hours later, the worker attempted to drain the 10-inch flange. As the worker loosened the top bolts on the drain flange, the gasket let go and pressurized oil shot out, injuring him.
TUV’s representative asked the Workplace Safety and Insurance Board (WSIB) to transfer the costs of the claim to XYZ’s accident cost record on July 4, 2013. TUV put forth that XYZ’s technical service manager, in his supervisory capacity, had not provided adequate guidance or sufficient warning with respect to the drainage of the flange, leading to the accident. The transfer of costs (TOC) adjuster contacted XYZ’s representative, who provided a written submission on September 4, 2013. TUV’s representative provided a written submission in response on October 30, 2013.
The TOC adjuster then contacted TUV’s representative for further clarification surrounding the accident. TUV’s representative responded to the TOC adjuster on February 21, 2014.
On May 20, 2014, the TOC adjuster reviewed and considered all of the information on record, including the submissions of both parties. After doing so, the TOC adjuster denied TUV’s request for a transfer of costs, concluding that XYZ’s technical service manager had provided appropriate guidance to TUV and was not present during the accident. Furthermore, the TOC adjuster found that TUV knew that the machine had been subjected to pressure testing, had control of the unit at all material times prior to the accident and should have been aware of the risks and safety precautions involved in dismantling the machine.
TUV’s representative objected to the TOC adjuster’s decision and, on May 29, 2014, completed and submitted an Objection Form (TOC) to the case file. The TOC adjuster then referred the claim to the Appeals Services Division for further review.
AUTHORITY
Section 84 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy: 14-05-01: Transfer of Cost
EXHIBITS
Exhibit #1 – Workplace Safety and Insurance Appeals Tribunal decision 432/00 Exhibit #2 – FGH’s written submission and closing arguments of January 19, 2015 Exhibit #3 – ABC’s written submission and closing arguments of January 30, 2015 Exhibit #4 – FGH’s rebuttal of February 6, 2015 Exhibit #5 – ABC’s response of February 18, 2015
ASSESSMENT OF THE EVIDENCE
In arriving at my decision, I reviewed and considered the information in the case file, the testimony of the witnesses, the exhibits and the applicable legislation and policy.
Testimony
The worker testified to the following:
- He had performed the same type of work (i.e. fabricator, welder, fitter) for about 10 years prior to starting with TUV. He was in the second year of a 5-year steamfitter apprenticeship program with TUV when the accident occurred.
- He had worked on pressurized machines before but never one as complicated or with so much internal pressure as the one built by XYZ. He and his co-workers assembled the machine with verbal instructions from their TUV superiors. He understood that these instructions had been passed down from XYZ. No written instructions regarding the assembly and disassembly of the machine were ever given to him by anyone. TUV had drawings with the specifications of the machine, but he never worked off of these drawings. He heard after the accident that a written document had been created outlining the procedures to be followed when testing and decompressing the machine.
- He was present during both the pre-test on March 19, 2012 and the test on March 20, 2012. They were frantically trying to get everything completed as the machine had to be shipped to the customer by the end of that week. They worked late on March 19, 2012 in order to depressurize the machine after the pre-test.
- No one told him that there was a problem with one of the flanges. If there was a problem, the whole process should have been shut down.
- As a steamfitter he knew of the potential risks involved in working on a highly pressurized machine. However, no one told him anything about any potential risks involved in loosening the blank flange. He would not have attempted to remove the flange if anyone had told him that it was under 1204 pounds per square inch (PSI) of pressure.
- Mr. G.G. and Mr. P.E. told him to remove the oil by loosening the blank flange. Prior to loosening the flange, he was assured that the machine was dead, which means that it had zero pressure inside. He and his co-workers had depressurized and drained the machine from 11:00 AM to 2:30 PM. He did not imagine that he would be asked to disassemble the machine if it was still pressurized.
- He attempted to remove the bottom bolts of the flange first. However, he was unable to properly access these bolts because a tray placed under the flange by TUV to catch the released oil got in the way. Being unable to access the bottom bolts, prevented him from “going away from himself” while loosening the bolts. If he had removed the bolts while “going away from himself” his body would likely not have been in the way of the oil when it exploded out of the flange.
- He normally wears safety glasses and work boots as personal protective equipment (PPE). He would have also worn a face shield if he knew that the machine was still under pressure when he loosened the bolts on the flange. Unfortunately, everybody overlooked the fact that two check valves had trapped pressure in the chamber between them, the chamber where the blank flange was situated, leading to the accident when he loosened the bolts.
- TUV put a drain on the blank flange after his accident and he understands that all the tests went fine after that. In his opinion, if a relief valve had been installed in the corner of the machine where the accident occurred, the accident would not have occurred. He confirmed that it was not a good practice not to have a ¼ inch valve on the flange. If present, it would have reduced the likelihood of the accident occurring as the pressure would have been released.
- He does not feel that he did anything wrong; someone simply overlooked the absence of the pressure release valves on the flange, leading to the accident.
Mr. G.G. testified to the following:
- He has worked with TVU for over 25 years, the last 15 years as the shop superintendent. He is a machinist by trade, with a welding certificate and a business degree. He also completed a steamfitter’s course.
- He and Mr. A.J. worked on securing the contract to test the machine from XYZ, which provided 95% of the partially assembled parts, the pressure test system, its technical expertise and the blueprints and specifications to fully assemble and test the machine. TUV provided some of the miscellaneous hardware and fittings. Another of XYZ’s workers, Mr. F.I., was on site every other day to monitor the assembly of the machine and to make sure it was being put together correctly. Mr. M.C. came on site less frequently to make sure they were on schedule and to witness and guide TUV through the pressure tests on the machine.
- TUV had never tested a machine so highly pressurized and he was nervous about this. They normally worked on machines with 200 to 500 PSI of pressure but this machine was pressurized to 1204 PSI. Furthermore, TUV was not familiar with XYZ’s system. This is why he was so dependent on Mr. M.C.’s guidance. He took Mr. M.C.’s instructions to Mr. P.E. who, in turn, passed them on to the workers. This sequence was always completed verbally.
- TUV put all the test flanges and gauges on the machine to the best of its ability. They kept the vented ones up high on the machine to that the air could be bled out of the system, releasing the pressure, after the testing.
- Before the pre-test on March 19, 2012, Mr. M.C. noticed that the bottom drain flange at the lowest point in the machine did not have a plug or drain port. Mr. M.C. suggested that TUV drill a hole in the flange to put a drain in it but there would be no way to control the outflow of oil if they did that. They discussed the matter and together agreed that, after the March 20, 2012 test, the solution would be to loosen the bolts at the bottom of the flange after the machine had been depressurized to drain the 300 gallons of oil in the system.
- The pre-test on March 19, 2012 went well. The pressure was released after the pre-test but the machine was not drained.
- XYZ wanted the project completed and the machine shipped to its customer before the end of the month. They were on a tight schedule but did not cut any corners.
- Under cross-questioning he stated that after Mr. M.C.’s warning on March 19, 2012 he did not immediately stop everything prior to the pre-test and order that the machine be drained and the proper flange installed. He confirmed that he did not do so because of the time constraints to get the machine tested and shipped.
- After the March 20, 2012 test, Mr. M.C. guided TUV with respect to the bleeding of the machine. They first bled the main pressure. There were also 10 gauges with needle valves installed throughout the machine. They then released the remaining pressure through each of these individual valves.
- Mr. M.C. supervised and guided this process and left. Before leaving, Mr. M.C. told him to be careful when loosening the bolts on the flange. He was satisfied with these instructions but he understood them to be in relation to controlling the outflow of the large amount of oil in the machine. Mr. M.C. did not warn him about any potential trapped pressure or he would not have proceeded to loosen the bolts. To his understanding, the pressure inside the machine had been completely neutralized. Therefore, he had no concerns about Mr. M.C. leaving.
- The worker then loosened the top bolts of the flange after being unable to access the bottom ones. The machine was under extremely high pressure and that’s when the oil shot out. If the worker had been successful in loosening the bottom bolts, the risk of injury would have been lower. However, the oil would still have shot out, but from the bottom of the flange, because pressure had been trapped between 2 check valves in the area within which the flange was located. If the pressure had not been trapped, the loosening of the bolts would not have resulted in the explosion of oil.
- He did not know that there were check valves in the area of the blank flange. The check valves had been pre-assembled by XYZ. TUV had no way of knowing that they were installed in that area of the machine because they were out of sight. Furthermore, the drawings and specifications given to TUV by XYZ did not show where the check valves were located on the machine. Neither Mr. F.I. nor Mr. M.C. ever told him about the location of the check valves.
- In his opinion, Mr. M.C. also did not know about the location of the check valves and the potential for trapped pressure or he would not have advised TUV to split the flange or left before that was completed.
- Under cross-questioning he confirmed that, while there is a probability that there would be check valves present on a machine like this one, they could be located in another component of the machine, a component that they were not currently working on, or anywhere along the piping.
- After the accident, XYZ provided the Test Procedure/Work Instruments for Piping Skid Assemblies document. They subsequently followed these instructions, creating one ½ inch hole on top of the flange and another on the bottom. The top hole was fitted with a gauge and a needle valve to measure and relieve the pressure. The bottom hole worked like a tap to drain the oil. Two identical assemblies were tested after the accident using these flanges and everything went smoothly. If the flange had originally been fitted like this, the accident would not have occurred because they would have noted and released the trapped pressure before draining the oil.
Mr. M.C. testified to the following:
- He has worked with XYZ for over 30 years, the last 11 years as a technical service manager. He is a licensed auto mechanic with a Red Seal. He performs field service work and the commissioning and start-up of equipment.
- XYZ was over-capacity and hired TUV to pressurize and test its machine because of its expertise in the area and upon the recommendation of its client.
- After TUV had assembled the machine and prepared it for the pre-test by filling it with oil, he noticed that the ¼ inch hole and valve was missing from the drain flange. He discussed the need for the valve with Mr. G.G. but was informed that TUV did not have any valves available to install. Therefore, he and Mr. G.G. agreed to proceed with the pressurization and pre-test on the understanding that the flange would be split from the bottom once the March 20, 2012 test had been completed. The only reason he did not order the machine drained and the proper flange installed before the pre-test was because TUV did not have any valves to install. Otherwise, he would have ordered the process stopped and the flange corrected. Under cross-questioning, he confirmed that all the valves for the machine had been provided to TUV by XYZ.
- He explained that the check valves are metal flaps that open one way to allow the oil to flow in one direction then close and prevent it from flowing backwards. When closed, the metal valves touch the metal pipe and there is slow leakage, leading to decay in the amount of pressure over time.
- Over the years, he has worked on 4000 to 5000 machines like this one without an accident. He encountered the same situation (i.e. a blank flange without the proper ports) on perhaps a dozen occasions and always had the flange split from the bottom without incident. He proceeded in the same way on March 20, 2012. Based on his experience, loosening the bottom bolts would have been a safe way to proceed. Even if there was pressure present, the oil would shoot downwards and not up at the worker. Furthermore, the decay over time should have lessened the pressure and lowered the force of any escaping trapped pressure.
- After the test on March 20, 2012, he informed Mr. G.G. of the potential for trapped pressure anywhere in the machine, including between the 2 check valves, and reiterated that he needed to be careful when splitting the flange due to both the potentially trapped pressure and the spillage of the oil. He told Mr. G.G. to ensure that the workers used the appropriate PPE but he did not specify the PPE to be used. Mr. G.G. indicated to him that he understood the potential dangers of trapped pressure.
- He created the Test Procedure/Work Instruments for Piping Skid Assemblies document after the accident. There was no such document prior to the accident and he never handed one out during any of the 4000 to 5000 previous tests.
- The diagrams and specifications of the machine provided to TUV by XYZ identified the locations of the check valves on the machine, including those in the pre-assembled areas.
Closing Arguments from the Representatives:
At the completion of the witnesses’ testimony, I informed both representatives that I wanted to review the drawings and specifications provided to TUV by XYZ since these documents were commented on by all three witnesses and were integral to determining the issue of whether or not XYZ made TUV aware of the location of the check valves within the machine prior to the accident.
TUV agreed to provide its closing arguments and copies of all the drawings and specifications in its possession to me and XYZ, who would then provide its closing submission, with TUV provided a final opportunity for rebuttal.
The parties agreed to proceed in this manner and their closing arguments and submissions are noted above under the “Exhibits” sub-heading. As their positions form part of the written record, I will not repeat them here.
Analysis:
Section 84 of the WSIA is the provision that governs issues concerning a transfer of costs. This section provides that, where the WSIB is satisfied that the accident giving rise to the worker’s injury was caused by negligence of some other Schedule 1 employer or that other employer’s workers, all or part of the costs of the accident may be transferred to that other employer’s record.
The legislation does not define “negligence”. The only WSIB guideline on this matter is set out in operational policy 14-05-01, TOC. This document states that the WSIB will apply common law principles and that “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.
Therefore, as in common law, the firm that is potentially liable under Section 84 of the WSIA is held to a reasonable standard of care.
Operational policy 14-05-01 dictates that the standard for proof of negligence is founded on the balance of probabilities. In other words, if the evidence indicates that it is more likely than not that the other Schedule 1 employer was negligent, then the WSIB will determine the degree of negligence and transfer costs accordingly.
Was there a Duty of Care to the Worker by TUV and XYZ?
Yes.
As his employer, TUV has a duty to maintain a healthy and safe work environment for the worker. Therefore, it has an innate duty of care to him.
The information on file shows that XYZ had a duty of care to the worker. There was a sufficiently close relationship between the parties in that XYZ built the machine, sent the parts to TUV so that it could be assembled and tested and its technical service manager reviewed the completed assembly of the unit and oversaw the testing. XYZ was required to maintain a reasonable standard of care during these processes. Any carelessness on the part of XYZ in carrying out these duties might reasonably cause damage to TUV’s workers. Therefore, XYZ had an obligation to take reasonable care to avoid any conduct that would entail an unreasonable risk of harm to the worker.
Did Either or Both TUV and/or XYZ Breach Their Duty of Care to the Worker?
TUV breached its duty of care to the worker; XYZ did not.
In reaching this decision, I make particular note of the following:
- The decisions and actions of the worker were the direct and proximal causes of the accident. He knew that he needed to “go away from himself” in order to safely loosen the bottom bolts on the flange. The catch tray, put in place by TUV, prevented him from doing so. Instead of stopping and obtaining further guidance from his superiors, he chose to proceed in a knowingly unsafe way, loosening the top bolts of the flange. If he had notified his superiors of the obstacle, the accident may have been prevented. TUV may have been able to modify the catch tray to allow him to loosen the bottom bolts or it could have obtained further instructions from XYZ’s technical service manager since he directed them to loosen the bottom bolts of the flange when splitting it. The injuries would probably not have occurred if not for these actions on the part of the worker.
- TUV assembled the piping skid without insisting upon and obtaining written instructions from XYZ in the form of a document like the Test Procedure/Work Instruments for Piping Skid Assemblies sheet. The shop superintendent confirmed that TUV had never worked on a machine with such extreme pressure and that he, with over 25 years of experience in the field, was nervous about doing so. Securing written instructions to ensure that all potential hazards were identified prior to assembling, testing and dismantling the machine would have been the reasonable and prudent thing to do under these circumstances. TUV failed to do so.
- One of the largest pillars forming the foundation of TUV’s arguments is that it did not know that pressure could be trapped in the machine because XYZ did not make it aware of where the check valves were located within the machine. TUV’s shop supervisor testified that the drawings and specifications provided by XYZ did not show where the check valves were located inside the pumping skid. However, his testimony is contradicted by the Bill of Material (BOM) provided to TUV by XYZ, and which can be found in appendix #3 of ABC’s submission dated January 30, 2015. In the BOM, the check valves are clearly identified. In FGH’s rebuttal of February 6, 2015, TUV does not dispute that it was in possession of this document prior to the accident. Therefore, it was or should have been aware of the location of the check valves within the assembled skid at the time of the accident.
- Even if TUV did not have possession of the BOM prior to the accident, its shop supervisor testified that he knew that check valves were probably present somewhere in the machine and was aware that he did not know where in the machine they were located. Despite being aware of this potentially serious omission in his knowledge, there is no evidence that he asked XYZ to identify the location of all check valves prior to assembling, testing and dismantling the machine. By proceeding to work on the machine under these circumstances, he did something that a reasonable and prudent person would not do. His testimony shows that he did so because of time pressures.
- TUV actively sought and secured XYZ’s business based on its expertise in dealing with highly pressurized machines. Therefore, I find that XYZ’s technical service manager acted reasonably and appropriately when he provided TUV’s shop superintendent with verbal warnings in relation to the splitting of the blank flange. While the perfect course of action would have been for him to stop the process, drain the machine and replace the incorrect flange with the correct one prior to proceeding, perfection is not the standard that must be met; reasonableness is. He had every reason to believe in and rely on TUV’s expertise and chose a reasonable course of action with his verbal warnings under these circumstances.
In summary, the worker’s failure to stop and seek further instructions from his direct supervisor when he could not release the bottom bolts of the flange and his conscious decision to unsafely loosen the top bolts instead were the direct and proximal causes of the accident and injuries; TUV did not act reasonably when it failed to demand and secure detailed written instructions from XYZ prior to assembling, testing and draining a pumping skid pressurized to levels it had never before worked on; TUV was, or should have been, aware of the presence and/or location of the check valves within the machine and the potential that the area encompassing the incorrect blank flange was highly pressurized subsequent to the final test and should have proceeded in a safer manner; and, XYZ’s technical service manager acted in a reasonable fashion when he provided TUV’s shop superintendent with verbal warnings in relation to the incorrect blank flange, noting that he had every reason to believe in and rely upon TUV’s expertise in draining highly pressurized machinery.
In his post-hearing submissions, TUV’s representative provided a copy of an April 16, 2012 e-mail from H.L., Vice President, XYZ, to Mr. A.J., Owner, TUV. In this correspondence, Mr. H.L. wrote:
A., as discussed please see attached procedure for testing the next three Flowserve piping skids. We have done an investigation internally and clearly our team dropped the ball on providing the proper documentation and direction on testing these units. M. did notice the issue when he arrived at your facility and should have taken a different action then he did. Thankfully no one was seriously injured and moving forward it is imperative that both of our teams take the appropriate action to make this process safe for all members involved.
Please review the documentation with F.I. when he is at your facility to ensure that everyone understands the process and that all steps will be followed on future test.
TUV’s representative essentially contends that this e-mail from XYZ’s vice-president is an admission of negligence on the part of XYZ. Having reviewed and considered the contents of the e-mail, I do not find this to be the case.
The correspondence merely transmits the vice-president’s acknowledgement that XYZ could have and should have provided TUV with a document like the Test Procedure/Work Instruments for Piping Skid Assemblies sheet prior to the assembly of the piping skid. While I acknowledge that this is good practice for XYZ going forward, and should have been its practice from day one, in my view, its failure to do so in this case does not meet the threshold test for negligence under the circumstances noting TUV’s admitted experience and expertise in assembling such machines. If TUV was not experienced or did not possess the necessary expertise to properly assemble this specific piping skid, then the burden to secure a document like the Test Procedure/Work Instruments for Piping Skid Assemblies sheet prior to working on the machine fell solely upon its shoulders.
The facts and circumstances contained within the case record lead me to find that XYZ did not breach its duty of care to the worker. Therefore, it is not responsible for any of the costs of this claim.
CONCLUSION
As provided for under Section 84 of the Workplace Safety and Insurance Act and under operational policy 14-05-01, Transfer of Costs, I may order a transfer of costs if I am satisfied that the accident resulting in the worker’s injury was caused by the negligence of the respondent. There must be evidence showing, on a balance of probabilities, that the respondent was negligent by not fulfilling its duty of reasonable care in the circumstances. I am not satisfied that that evidentiary burden has been met in this case. Therefore, I find no basis upon which to order the transfer of any of the costs of the accident from the record of the employer to that of XYZ Company Ltd.
The employer’s objection is, therefore, denied.
DATED March 25, 2015 at Toronto, Ontario.
C. da Cunha Appeals Resolution Officer Appeals Services Division